Volume 174 — Pennsylvania State Reports

<p>Appeal, No. 20, July T., 1895, by Rosa B. Scboneman from order of C. P. No. 2, Pbila. County, Sept. T., 1893, No. 1017, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report distributing estate of the Mutual Benefit Association of Pennsylvania.</p> <p>The auditor, Silas W. Pettit, Esq., reported as follows :</p> <p>Mr. Samuel B. Huey, on behalf of Mrs. Rosa B. Shoneman presented a claim upon certificate of membership issued to her husband, Raphael A. Schoneman, No. 441, dated March 25,1876, for the sum of $4,000, with interest from the 10th day of October, 1881, under the following circumstances : Mr. Schoneman was, on the 10th day of October, 1881, a member of the firm of James Thompson & Co., dealers in and manufacturers of twines and similar articles, doing business at No. 86 Leonard street, in the city of New York, and at that time living at Fort Washington, in that city. He left his home on the morning of Monday, October 10, 1881, at about half-past 7 o’clock, to go to his place of business, with the expectation of taking the 4 o’clock train on that afternoon for Boston, and of returning therefrom on Wednesday, October 12, and took with him a small satchel with some collars and cuffs and necessary toilet articles for such an expected absence. He did go to his place of business, and left there about 8 o’clock in the afternoon, having first drawn $25.00 in currency for his expenses and having with him, so far as known, no more than $50.00, with the announced intention of taking the elevated railroad to the Forty-second street station, there to take the 4 o’clock train to Boston, and from that time to this has not been heard of, nor has any trace of him been discovered. Mr. Schoneman was a man of regular habits, whose relations with his wife and child were of the happiest and most affectionate kind, his business was fairly successful, and his financial affairs, after his disappearance, were found to be perfectly regular, and in entire accordance with the appearance held out to the world, namely, that of a man not only abundantly solvent, but possessed of some means beyond his liabilities.</p> <p>Every inquiry and method of search reasonably possible were adopted by his family and friends to discover his whereabouts, but entirely without avail. All assessments due by Mr. Schoneman to the Mutual Benefit Company, prior to October 10, 1881, had been paid, and nothing was due by him on that account until the assessment payable March 7, 1882, which assessment and all subsequent assessments remain unpaid, and after notice, the name of Mr. Schoneman was stricken from the rolls of the Mutual Benefit Company on or about May 1, 1883, for default in payment of assessments, pursuant to the regulations of the company in such case made and provided. Mr. Schoneman had made no designation of the beneficiary entitled to receive the insurance in case of his death, and, therefore, under the rules of the association, it became payable to his wife, and about that no question is made.</p> <p>Mrs. Schoneman made due claim upon the Mutual Benefit Company in the year I«83, and it was proved without objection, although believed to be immaterial, that the Mutual Life Insurance Company of New York about that time paid a policy for $10,000, issued by it on Mr. Schoneman’s life upon the same facts proved before your auditor and which were entirely familiar to the Mutual Benefit Company and its counsel. By agreement copies of the affidavits of Simon H. Stern, Rosa B. Schoneman, James Thompson, and Raphael Buchman, which were made some time in the year 1882, but are not dated or signed, were read in evidence before your auditor, and are attached hereto as exhibit X.</p> <p>It did not appear before your auditor on exactly what date Mr. Schoneman’s name was stricken from the roll of membership, but from some correspondence submitted it appears to have been on or about May 1,1883, and from this statement of the case it therefore appears that the question to be determined is whether, upon the evidence presented, Mr. R. A. Schoneman was alive on May 1,1883. If so, he was clearly in default, and his name properly stricken from the roll of membership, and therefore no claim can be made against the company on account of his death; but if, on the other hand, he was dead at that time, then the right of his beneficiary had already matured, and the company had no right to strike him from the list of its members.</p> <p>The point involved, although a curious one, is by no means novel, but has been frequently adjudicated.</p> <p>The presumption of law is in favor of the continuance of life once shown to exist, but again, this presumption under certain circumstances yields to another, and the rule may be fairly stated to be that where a person leaves his usual home and place of residence for temporary purposes and has not been seen, heard of, or known to be living for the term of seven years thereafter, the presumption is that he is not alive. This presumption arises from unexplained absence in connection with the surrounding circumstances, such as the failure of his family and friends to hear from him when his absence is under such circumstances as that it would be naturally expected they should hear from him, and in such case the presumption of death arises without other proof than the mere fact of absence unexplained and inexplicable; but in such case the presumption of death does not arise until the expiration of seven years, which period has been adopted by the American courts in conformity to the rule adopted by the English courts in analogy to the statutes of 1 Jac. 1, and 19 Car. 2, as to bigamy and leases. This presumption is conceded to be of necessity arbitrary, but it is too well settled to need justification or further discussion.</p> <p>On the other hand it also seems to be well settled that without direct proof the death of a particular person may be inferred and found from an unexplained absence accompanied by evidence that when last seen and heard from such person was in, or going to, a place of peril, as, for instance, in a ship which has been lost, or a place where there has been unusual destruction of life by natural or artificial causes, and in such case the death may be inferred in a period short of the expiration of the seven years.</p> <p>For instance, where one Davie had been last heard from in November, 1851, in company with a number of persons who had undertaken a journey over land across the Indian country to California, and some of the party returned and reported that they had been fighting with the Indians and that they had concluded to give up the enterprise, but that the others, with whom Davie remained, had resolved to fight their way across. None of the party was ever heard of afterwards, and after the expiration of seven years the Supreme Court of the United States held that under such evidence it was not bound to accept as absolutely controlling the legal presumption in respect to the seven years, but should determine the case upon the hypothesis that Davie had died in or about November, 1851: Davie v. Briggs, 97 U. S. 628-686; see also Watson v. King, 1 Starkie,. 121.</p> <p>And this rule has been applied by some respectable American courts, even where there was not only no direct evidence of death, but no fact from which it could be presumed other than the unexplained absence itself.</p> <p>Thus in an action on a policy of life insurance brought (apparently) in 1868, where the only evidence was that the insured had been last seen at the corner of Lake and Clark stréets, in the city of Chicago, on September 25, 1866, and thereafter all trace of him had been lost, accompanied by evidence of want of motive to abandon his family and hide himself, it was held in effect that these facts and circumstances showing want of motive were such facts and circumstances relating to the character, habits, condition, attachments, prosperity, and objects in life which ordinarily control the conduct of men and are the motives of their action as are competent evidence from which may be inferred the death of one absent and unheard from, irrespective of the duration of such absence: Tisdale v. Conn. Mut. Ins. Co., 26 Iowa, 170.</p> <p>And to the same effect see Cox v. Ellsworth (Sup. Ct. of Neb.), 26 N. W. Rep. 460, where the death of a person was permitted to be inferred after five years’ unexplained absence.</p> <p>These last cases may perhaps be considered as an extension*' of the rule adopted by the English courts, which is that although a person who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death; therefore if any one has to establish the precise time during those seven years at which such person died, he must do so by evidence, and can neither rely on the one hand on the presumption of death, nor on the other hand on the presumption of the continuance of life; that the presumption of law relates only to the fact of the death, and that the time of death, whenever it is material, must be the subject of distinct proof: Taylor on Evidence, section 157 ; Nepean v. Knight, 2 M. & W. 894; Re Phene’s Trusts, L. R. 5 Ch. App. 139.</p> <p>The claimant contends that under this rule, and especially as applied in Tisdale v. Insurance Co., 26 Iowa, 170, and Cox v. Ellsworth, 26 N. W. Rep. 160, above cited, the death of Mr. Sehoneman can and should be inferred to have occurred on or about the date of his disappearance, and that in the absence of all motive for absenting himself from his family and his friends. it can and should be inferred that he died from some unknown cause prior to the 12th day of October, 1881, at which date he should have returned to his home, according to his announced intention when last seen or heard from.</p> <p>Without discussing the probabilities in this particular case, your auditor is unable to adopt this view. Obviously, the presumption of the death of a particular person within any time short of that fixed as the period at the expiration of which the presumption of death arises is mere guesswork, unless some circumstances other than the unexplained absence are shown, and while it may be said on the one hand that where a man leaves wife, family, and friends, business and property, without any known reason, it is so likely that he has died as to justify the finding of his death as a fact, yet on the other hand the same circumstances would equally preclude any idea of suicide, and it is at least equally improbable that he should have died suddenly from accident or disease, or been kidnapped and murdered without leaving some trace behind as that he should have voluntarily gone away; and this is especially so where, as in the case under consideration, the insured was last seen in a perfectly safe part of a city like New York and about to undertake a journey to a city like Boston, and where no accident could have occurred on any of the means of conveyance he intended to use without the knowledge of many persons.</p> <p>Accordingly the American rule seems to be that the presumption of life continues until the presumption of death arises; that where there is no evidence at all upon the subject except only the unexplained absence, and so that the question must be determined upon the presumption of law alone, the person whose life is involved must be presumed to have lived until the expiration of the seven years from the time he was last seen or heard from, and then is presumed to have died.</p> <p>“ But the law as declared in England is different from the law which obtains in this country, so far as it relates to the presumption of the continuance of life. Here, as in England, the law presumes that a person who has not been heard of for seven years is dead; but here the law, differing in this respect from the law of England, presumes that a party once shown to be alive continues to live until his death is proven or the rule of law applies by which death is presumed to have occurred — that is, at the end of seven years. And the presumption of life is received in the absence of any countervailing testimony as conclusive of the fact, establishing it for the purpose of determining the rights of the parties as fully as the most positive proof.” Per Field, J., Montgomery v. Bevans, 1 Sawy. 666.</p> <p>And this is the rule in Pennsylvania:</p> <p>“ The presumption of death as a limitation of the presumption of life must be taken to run exclusively from the termination of the prescribed period; so that the person must be taken to have then been dead and not before. Indeed that is a necessary conclusion from viewing it, not merely as a limitation but as a countervailing presumption, which, as it does not supplant its predecessor before the end of the period, assumes no more than that the individual and the period expired together; and the predecessor being still in force to rule the case in respect to the time covered by it, is sufficient to maintain an inference of intermediate existence throughout. Thus the presumption of life continues till it is displaced by a more potent one, which, however, has no retroactive force; and indeed it would be of little use if it had, for to leave the time of the death still uncertain would leave a perplexity which it was its purpose to remove.”</p> <p>The court then cites and dissents from the rule of decision in Knight v. Nepean, 2 M. & "W. 894, above cited, and points' out that in many of those cases in which the fact of death has been found to have occurred before the expiration of the period which gives rise to the presumption of law, there were circumstances which brought the individual whose life was in question “ in contact with a specific peril as a circumstance to quicken the operation of time,” and therefore holds that the direction that there was evidence from which the jury might infer the death to have been at a time short of the period of legal presumption was erroneous. Per Gibson, J., Burr v. Sim, 4 Whart. 150.</p> <p>Your auditor therefore finds that Mrs. Rosa B. Schoneman has no right to recover against the Mutual Benefit Company, and no claim against the fund to be distributed.</p> <p>The court dismissed exceptions to the auditor’s report.</p> <p>Error assigned was dismissing exceptions to the auditor’s report.</p>

Appeal, No. 210, July T.,. 1895, by defendant, from judgment of C. P. Lehigh Co., Nov. T., 1894, No. 82, on verdict for plaintiff. Assumpsit to recover the value of four hundred shares of stock. Before Albright, P. J. At the trial it appeared that on August 25, 1894, defendant directed plaintiff, a stock broker, to buy for him one hundred shares of stock of the Distillers & Cattle Feeder Company or Trust.

Appeal, No. 94, Oct. T., 1895, by defendants, from order of O. P. No. 1, Allegheny Co., Dec. T., 1894, No. 911, striking off appeal. Rule to strike off appeal from justice of the peace.

Appeal, No. 131, Oct. T., 1895, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1895, No. 270, refusing mandamus. Petition for mandamus to compel the allowance of an appeal.

<p>Appeal, No. 116, Oct. T., 1895, by-defendant, from order of C. P. No. 1, Allegheny Co., March T., 1895, No. 479, refusing to allow an appeal from a summary conviction.</p> <p>Petition for an allowance of an appeal from a summary conviction.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order refusing appeal.</p>

<p>Promissory notes — Sale—Collection of notes — Dm diligence.</p> <p>Where the seller of promissory notes agrees as a part of the contract bf sale to use all due diligence to collect them, and to pay the proceeds of the same to the purchasers when collected, he is bound to the observance of the utmost good faith and the exercise of all due diligence in the performance of the duty which the contract imposes.</p> <p>The seller of promissory notes agreed with the purchaser to use all due diligence in collecting them. The seller had an additional claim against the maker of the notes. Subsequently to the sale he signed a composition agreement with other creditors of the maker by which the creditors were to accept fifty per cent of their claim in settlement. The seller lumped his own claim with the notes, but had a secret agreement with the debtor by which his own was to be paid in full. The purchaser of the notes, without knowledge of this secret agreement, acquiesced in the settlement, and was paid fifty per cent of the notes. It also appeared by some evidence that the maker of the notes had real estate out of which the notes, in the exercise of due diligence, could have been collected. In an action by the purchaser of the notes against the seller to recover the unpaid portion of the notes, Held, (1) that the secret agreement of the seller with the maker was a fraud upon the purchaser.; (2) that the purchaser under the circumstances did not waive his right to due diligence on the part of the seller, by accepting fifty per cent of the amount of the notes; (3) that the evidence as to whether the notes could have been collected from the real estate was for the jury; (4) that the fact that the seller’s individual claim against the maker was for goods sold before the notes in question were given to a partner for his interest on retiring from partnership with the maker, was not a defense to the suit; (5) that a judgment on a verdict for plaintiff should be affirmed.</p>

Appeal, No. 250, Oct. T., 1895, by defendant, from judgment of C. P. No. 1, Allegheny Co., March Term, 1894, No. 720, on verdict for plaintiff. Gbeen and Williams, JJ., dissent. Trespass for personal injuries. Before Slagle, J. At the trial it appeared that on October 10, 1893, plaintiff, a boy six years old, was injured by defendant’s ice wagon in front of Ketterer’s butcher shop on Centre avenue, Pittsburg.

Appeal, No. 109, Jan. T., 1895, by defendant, from judgment of O. P. No. 3, Philadelphia Co., July T., 1891, No. 658, on verdict for plaintiff. Sterrett, C. J., dissents. Amicable action of ejectment for a triangular piece of land at the end of the South street bridge in the city of Philadelphia. Before Finletter, P. J. The facts appear by the opinion of the Supreme Court. The land claimed appears by the dotted lines in the following diagram.

Appeal, No. 324, Jan. T., 1895, by plaintiffs, from judgment of C. P. No. 2, Philadelphia County, March T., 1892, No. 796, on verdict for defendant. Assumpsit for goods sold and delivered. Before Jenkins, J. The plaintiffs in their statement claimed to recover $5,424.14, being the value of five thousand pounds of worsted yarn alleged to have been sold and delivered to the defendant.

Appeal No. 477, January T., 1895, by defendant, from judgment of C. P. No. 4, Phila. County, Sept. T., 1894, No. 639, on verdict for plaintiff. Assumpsit against a common carrier for injury caused to horses while under transportation. Before Arnold, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 125, July T., 1895, by plaintiff, from order of O. P. No. 4, Pbila. Co., March T., 1895, No. 720, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit by the indorsee against the indorser on a promis ■ sory note. Plaintiff’s statement was as follows: The above action is brought to recover the amount of a certain promissory note for the sum of $1,500 with interest thereon from the 15th day of March, 1895.

Appeal, No. 470, Jan. Term, 1895, by defendant, from order of C. P. No. 4, Phila. Comity, March Term, 1895, No. 378, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit by the indorsee against the indorser on a promissory note. In this case the note was for $1,000, and had on its face similar alterations to those in note in Citizens National Bank of Baltimore v. Williams (No. 1), supra.

Appeal, No. 40, July T., 1895, by plaintiff, from judgment of G. P. No. 3, Phila. Co., Sept. T., 1893, No. 129, on certificate for defendant. Sterrett, C. J., dissents. Assumpsit to recover money alleged to bave been loaned by plaintiff to defendant. At tbe trial defendant claimed that the money paid to him had been on account of wages which he was to receive at the rate of $12.00 a week, and that the plaintiff was indebted to him for a portion of the wages unpaid.

Appeal, No. 149, July T., 1895, by plaintiff, from decree of C. P. No. 4, Phila. Co., Sept. T., 1892, No. 528, dismissing bill in equity. BiH in equity for the specific performance of a contract to sell real estate. The case was referred to D. W. Amram, Esq., as referee. The facts appear by the opinion of the Supreme Court. Error assigned was decree dismissing bill.

Appeal, No. 146, July T., 1895, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., June T., 1894, No. 975, entering nonsuit. Trespass to recover damages for personal injuries to a child seven years old. Before Wilson, J. The facts appear by the opinion of the Supreme Court. The court below entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was in refusing to take off nonsuit.

Appeal, No. 122, July T., 1895, by defendants, from judgment of C. P. No. 3, Phila. Co., March T., 1894, No. 690, on verdict for plaintiff. At the trial it appeared that on February 9,1892, and shortly thereafter the defendants bjr several contracts agreed to purchase from plaintiff 2450 gross of fruit jars. The defendants accepted and paid for 800 gross but refused to accept any more, claiming that they were not according to contract.

<p>Appeal, No. 91, Jan. T., 1895, by plaintiff, from decree of C. P. No. 3, Pbila. Co., Sept. T., 1892, No. 397, sustaining demurrer to bill in equity.</p> <p>Bill in equity to declare a trust for and subrogation.</p> <p>Tbe facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in sustaining demurrer, and in dismissing bid.</p>

<p>Mechanic's lien — Subcontractors—Contract.</p> <p>A mechanic’s lien must be founded on contract, and no one has the power so to contract as to give the right of lien except the owner and the contractor under him. One who furnishes material to a subcontractor has no right of lien.</p> <p>The power of a contractor to bind a building for materials furnished is not limited by the fact that the contract is not for the whole building.</p> <p>While a lien cannot be maintained for materials which do not constitute a part of a contract for the construction or erection of the building or a primary division of it, yet where the owner makes contracts for different parts of the work, those furnishing materials are entitled to a lien as fully as if there had been but one contractor for the whole building.</p> <p>Mechanic's lien — Plumbing—Acts of June 15, 1836, and April 14, 1855.</p> <p>Plumbing is recognized by the legislation in relation to mechanics’ liens as a part of the work of erection and construction of buildings. It is not a luxury or convenience only, but an essential part of modern city dwellings. The act of June 16 1836, P. L. 696, confers the right of lien upon plumbers and its provisions are extended by the act of April 14, 1855, P. L. 303, to gas fitting.</p> <p>An owner of land constructed a number of houses on his property. He did the work of erection himself, but contracted with a plumber to furnish stationary wash-stands, water-closets, bath-tubs, pipes for gas, water and underground drainage. Plaintiffs sold to the plumber, on the credit of the houses, plumbing materials amounting to a considerable sum. Held, that plaintiffs were entitled to file a mechanic’s lien for the materials furnished.</p>

<p>Deceit — Fraud—Sale of stock — Evidence.</p> <p>In an action for deceit, it appeared that defendant was the owner of the controlling interest in the stock of a corporation. He sold over six hundred shares of the stock at $100 a share, and agreed with the purchaser to purchase for him the other shares at as low a figure as possible. Defendant sent a person to notify plaintiff who was the owner of stock that he, defendant, had sold his interest in the company. Plaintiff immediately called upon defendant who told him he got $80.00 for his stock, and went with him to the office of the purchaser who offered plaintiff $80.00 for his stock, which was accepted. Defendant admitted that he told plaintiff that he got $80.00 for his stock, but denied that he told him he got only $80.00 for it.</p> <p>The court instructed the jury in effect that if they found for the plaintiff they could not assess damages for a greater sum than the difference between the price he obtained for his stock, and the actual value of it. The court also charged “ it is for you to say, if you should find that the defendant did deceive the plaintiff willfully by a false statement, what damage he suffered. In other words, if he had not been deceived by the false statement by the defendant, how much more could he have realized on his stock.” Held, that the instruction was correct, that the case was for the jury, and that a verdict and judgment for plaintiff should not be disturbed.</p> <p>In an action to recover damages for a loss occasioned by a false representation of the defendant which induced the plaintiff to sell his stock in a corporation at less than its mai'ket value, the plaintiff may properly be asked what it was that induced him to sell his stock at the price which he did.</p>

<p>Appeal, No. 187, July T., 1895, by plaintiff, from decree of C. P. No. 1, Pbila. Co., Dec. T., 1891, No. 534, sustaining demurrer to bill in equity.</p> <p>Bill in equity for the reformation of a written lease.</p> <p>The facts appear by tbe opinion of the Supreme Court.</p> <p>Error assigned was in sustaining demurrer to bill.</p>

<p>Bailroads — Corporations—Service of summons — Trespass—Practice G. P. —Act of March 22, 1817.</p> <p>An action to recover damages from a railroad company for personal injuries, must be brought in the county where the corporate property is in whole or in part situated.</p> <p>The act of March 22, 1817, P. L. 129, which provides that suits may be brought “ against corporations by their corporate names before any court or magistrate of competent jurisdiction by summons,” etc., does not change the common law rule by which process cannot be served out of the district where the artificial body exists.</p> <p>Defendant, a railroad company, was sued in Philadelphia for negligence resulting in injuries to plaintiff. Service was had upon the treasurer while he was temporarily in Philadelphia. All of the company’s line and works were in Lycoming and Sullivan counties. Its principal office was in Lycoming county, and it had no agent, office or property in Philadelphia county. Held, that the summons should be set aside.</p> <p>Acts of June 13, 1836, sec. 42, P. L. 568; March 21, 1842, P. L. 145, and March 17, 1856, P. L. 388, considered.</p>

<p>Bailment — Lien for work on goods — Locadio operis — Contract.</p> <p>In order to charge a chattel with the lien which a workman or artisan obtains by his labor and skill in increasing the value of personal property placed in his possession to be improved, the labor must have been done at the request of the owner, or under circumstances from which his assent can be reasonably implied; it does not extend to one not in privity with the owner.</p> <p>II. received from plaintiffs cloth to be made into coats, and without the knowledge of plaintiffs delivered some of it to defendant to do the required work, agreeing to pay defendant forty per cent more for making the coats than he was to receive from plaintiffs. Held, that defendant had no lien on the coats as against plaintiffs for the work which he had done.</p>

Appeal, No. 202, July T., 1895, by defendants, from judgment of C. P. No. 1, Pbila. Co., Pee. T., 1892, No. 829, on verdict for plaintiff. Trespass for an alleged wrongful taking of color books. Before Biddle, J. The facts appear by tbe charge of the court and by the opinion of the Supreme Court. At the trial the court admitted under objection and exception the following letter: “ Philadelphia, Sept. 26, 1892. “Messes.

<p>Decedents' estates — Orphans' court sale — Estoppel.</p> <p>While the orphans’ court has no jurisdiction to authorize an administrator to sell a decedent’s real estate at private sale for the payment of debts; yet where it has been so sold and -the guardian of the decedent’s son is cited to appear and make any objection that he might have to the sale, and the proceeds of the sale are applied to the payment of decedent’s debts, thereby relieving land in another county descending to the son, the son cannot after the expiration of eight years, in an action of ejectment, recover the land sold by the administrator. See act of June 12, 1893, P. L. 461.</p>

Appeal, No. 168, Jan. T., 1896, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1895, No. 2, on verdict of guilty of murder of the first degree. DEAN, J., dissents. Indictment for murder. Before Woodward, J. At tbe trial it appeared that on July 6, 1895, Frederick T. Bittenbender was shot by Abram I. Eckerd on Main street in the borough of Nanticoke.

Appeal, No. 248, Jan. T., 1895, by-defendant, from judgment of C. P. Chester Co., Oct. T., 1894, No. 9, on verdict for plaintiff. Foreign attachment in assumpsit upon a promissory note for $500. Before Waddell, P. J. At the trial it appeared that in February, 1893, defendant bought of the plaintiff a steam traction engine, hay press and thresher for $1,200. He paid a part of the purchase money, and gave his note for the balance.

Appeal, No. 270, Jan. T., 1895, by plaintiffs, from judgment of C. P. Delaware Co., Dec T., 1892, No. 82, on verdict for defendant. Ejectment for a lot of ground on the northeast comer of Edgmont avenue and Eleventh street in the city of Chester. At the trial it appeared that on November 19, 1851, John Larkin conveyed a tract of land of which the lot in controversy was a part to Joseph Burk and William Logan.

Appeal, No. 450, Jan. T., 1895, by ■plaintiff, from order of C. P. Delaware Co., March T., 1894, No. 18, overruling exceptions to auditor’s report distributing proceeds of sheriff’s sale of defendant’s property. Exceptions to auditor’s report. The auditor, Hiram Hathaway, Jr., reported as follows: First. The amount to be distributed among the contesting parties is $1,847.80.

Appeal, No. 378, Jan. T., 1895, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1893, No. 7, on verdict for defendant. Trespass for damages caused by fire. Before Hemphill, J. At the trial plaintiff claimed that the loss was occasioned by a fire originating on the right of way of the railroad company and spreading to plaintiff’s land, burning grass, vegetation and a large quantity of manure.

Appeal, No. 94, July T., 1895, by defendant, from judgment of C. P. Chester Co., April T., 1894, No. 48, on verdict for plaintiff. Assumpsit for wages. Before Waddell, P. J. Defendant claimed that he had paid plaintiff’s claim by a check for $68.90, which stated on its face that it was “in full of all demands.” All the facts necessary to an understanding of the case will be found in the judge’s charge and in the Per Curiam.

<p>Appeal No. 484, Jan. T., 1896, by Otto Walther et al., from order of Q. S. Delaware Co., dismissing exceptions to master’s report.</p> <p>Petition for annexation of territory to the city of Chester-. Before Clayton, J.</p> <p>From the record it appeared that the draft accompanying the petition was indescriptive of the land proposed to be annexed. The case was referred to J. N. Shanafelt, Esq., as master, who filed a report recommending a decree in accordance with the prayer of the petition. The master’s report was confirmed. Before the final decree was entered the record was amended by filing an accurate description of the land.</p> <p>Objection was made that some of the persons who signed the petition were not taxables; upon this subject the master found as follows:</p> <p>Who are the taxables ? Who pay taxes in this part of the township ? We have:</p> <p>1st. Those who pay or should pay taxes on land and reside in the section.</p> <p>2d. Those who pay or should pay a school tax not owning land.</p> <p>3d. Those who pay or should pay a county tax not owning land and reside in the section.</p> <p>4th. Those who pay or should pay a state tax whether landowners or not, who reside in the section.</p> <p>The fact that these petitioners lived at the time they signed this petition in this section of the township, and were all of age and voters, most of them being on the registry list, made them taxable inhabitants; whether they paid taxes or not made no difference, as they were subject to and liable for a tax. To say that they are not is to say that a real estate owner who does not pay his taxes on his land is not a taxable inhabitant. The collector could by not collecting the taxes make every citizen in the township a noninhabitant, a power too extensive to be thought of.</p> <p>The petition was signed by eighteen persons. Of these we find on the assessment made in the fall of 1893: Joseph H. Waddell, T. K. Gartside, Thomas Lambert, William Weaver, N. J. Robinson, Joseph P. Moore, John Burk, Lewis J. Moore, David Moore, Jokn Moore, Lewis Thomas, Patrick Green and John Watterson; in number, thirteen. All of these were proved to have lived in that section in March, 1893.</p> <p>The following four- persons, while not shown in assessment, were proved to be living there in March of 1893, as follows:</p> <p>Henry Cheeseman. John Flower testified that he was a resident, and he himself testified the same.</p> <p>James J. Moore. Was of age; had voted. John Flower testified he was a resident there; subpoena was served on him.</p> <p>H. H. Hoskins. Subpoena was served on him; his name is on the registry list and S. J. Cochran testified he was a resident.</p> <p>George Sharron. His name is on the registry list, and J. Harvey testified he was a resident there.</p> <p>This makes seventeen persons proved to have lived in the section who signed petitions in regard to whom there can be no doubt as to their right to be termed “taxable inhabitants.” The remaining person, J. C. Madden, there is some doubt about. The best evidence produced to prove him a resident is that of Job Wheaton. Wheaton served a subpoena on him at 1101 Kerlin street, and Malden told lfim he lived there and had signed the petition. Tins, with Ms name on the petition, without the exceptant provmg he was not a resident, must be taken as proof that he was such and he should be counted. This makes eighteen persons signing. This number is tMee fifths of tMrty, and it must be shown that there were tMrty-one “ taxable inhabitants” in the section in March, 1893, to defeat the petition.</p> <p>In addition to the above eighteen the exceptants have proved the following residents: James Clayton, John M. Clayton, Thomas Emory, Henry Simpers, Isaac Cooper, Thomas Clayton, J. N. SMelds, Stephen Cheeseman, or CMlsman, and D. or T. Christy, or nine in all, maldng twenty-seven residents.</p> <p>Mr. J. Harvey testified that Wm. Hannum, whom they attempt to prove a resident, lived at Maddux, out of the section.</p> <p>David CMisman, whom they prove as on the registry list, with Stephen Cheeseman, Ms son, must be the same as A. Cheeseman, as it was shown they lived in the Pennell house. Cheeseman said he had lived there two years and David Harvey said there were two Cheesemans. Now only one Cheese-man appears m tMs case, and the only testimony as to any Chrismans was that of the registry book. Neither Harvey nor Flower speak of them, while every one knew the Cheesemans. And it is not likely that both families lived in the Pennell house at the same time..</p> <p>Your master would therefore recommend that a decree be entered by tbe said court annexing tbe said part of Chester township to the city of Chester as set out in the petition hereto annexed and the accompanying plan.</p> <p>JErrors assigned were decree in dismissing exceptions to the master’s report, and decree permitting amendment.</p>

Appeal, No. 131, Jan. T., 1896, by plaintiff, from judgment of C. P. Delaware Co., March T., 1893, No. 97, for defendant, non obstante veredicto. Trespass for death of plaintiff’s husband. The facts appear by the opinion of the Supreme Court. Verdict for plaintiff for $1,200. The court subsequently entered judgment for defendant, non obstante veredicto. Error assigned, was in entering judgment for defendant.

Appeal, No. 217, July T., 1895, by Thomas H. Lloyd, from decree of O. C. Chester County, charging legacy upon real estate. Petition of John Mills to charge legacy on land.

<p>Will — Married women — Witnesses—Constitutional law — Act of June 3, 1887 — Probate.</p> <p>The act of June 3, 1887, P. L. 332, giving to a married woman the power to dispose of her property by will “ in writing signed by her or manifested by her mark or cross made by her at the end thereof in the same manner as if she were unmarried,” is not defective in title and is constitutional.</p> <p>Where a will is written in three chapters or sections on three different pieces of paper, each being signed by the testator, and all the sections being necessary to a complete testamentary disposition of the property, the three papers taken together constitute the will.</p>

<p>Appeal, No. 179, Jan. T., 1896, by plaintiff, from judgment of C. P. Chester Co., Jan. T., 1893 No. 76, on verdict for defendant.</p> <p>Scire facias sur mechanic’s lien. Before Waddell, P. J.</p> <p>At the trial it appeared that in 1892 Davis Pennock entered into a contract in writing with Timothy S. Brick, to build several houses for Mr. Brick for the sum of $6,100. Pennock failed in September, 1892, and Iris property was bought in at sheriff’s sale by Joseph N. Marshall, the plaintiff, who was a large creditor of Pennock. The houses were under roof, the floors laid and the lathing work done at the time of Pennock’s failure. Defendant claimed that plaintiff undertook to finish the buildings under the Pennock contract for what he could make out of it. The plaintiff claimed that he had a direct contract with the defendant to finish the buildings, and that he had paid either to Pennock or, with the plaintiff’s assent, to mechanics and material men, an amount in excess of the contract price. The lien was filed for $935.15. The court charged in part as follows:</p> <p>[Thus you will see Mr. Pennock was unable to perform the contract, which he made with the various parties, and among the rest, Mr. Brick. A portion of the work which he was called upon to perform under the contract with Brick had been performed. You will remember that the houses were all roofed in; that they had gone so far as to have the floors laid in them and the lath put upon them ready for the plaster, and in that condition they were left by Mr. Pennock. The mechanics who were at work upon the building under the direction of Mr. Pennock were stopped in their work by Mr. Pennock, and after being idle for a few days, according to the testimony of the defendant’s witnesses, they were instructed to go on, and they did go on, and the buildings were completed. Now after this sale by tbe sheriff, and the purchase by Mr. Marshall, he seems to have conducted the old shop of Mr. Pennock — and this material for which this suit was brought was furnished after that period of time. The defendant alleges, in connection with these facts, that after, or about the time, this work was stopped by Mr. Marshall he agreed to take the contract of Mr. Pennock and finish these buildings for the contract price entered into by him, to wit, $6,100; and that this material thus furnished and this work thus done was necessary to be furnished and done under Pennock’s contract. If that is so, then you will see that Mr. Marshall is not entitled to recover, but if no such agreement was made between him and Mr. Brick, then, as I have said to you, he would be entitled to recover, and the burden of satisfying you that such a contract was made devolves upon the defendant. The plaintiff, then you will see in the first instance, has made out his case; he has shown you that he did this work; performed this labor at a price which is satisfactory, and therefore in the absence of anything else in the case he would be entitled to recover.</p> <p>But the defendant says there is something else in the case; there is a reason why he should not recover, and they have attempted to satisfy you of that reason. If they have done so, then of course the plaintiff cannot recover and your verdict will be for the defendant. Now, was such an agreement made between Mr. Marshall and Mr. Brick.] [1]</p> <p>[Now that, briefly, gentlemen, is the testimony, as I have it, that is offered by the defendant to satisfy you that Mr. Marshall took this contract of Pennock and undertook to finish these house's for the price Pennock was to receive, less what might have been paid on account of the contract to the mechanics, who had done the work up to that period, of time. Does it satisfy you that that was the agreement between these parties ? If it does, then, as I have said to you, Mr. Marshall cannot recover for work and labor that he did on these houses, under the contract that he thus assumed. All he could get out of it was what Mr. Pennock could get out of it, and he cannot charge for material and work that went into the houses by reason of the contract as distinct items.] [2]</p> <p>Plaintiff’s points were as follows:</p> <p>1, The contract set up by the defendant, between himself and the plaintiff, whereby the plaintiff assumed the contract of Davis Pennock, is within the statute of frauds, and not being in writing is not a valid contract, that can be enforced against the plaintiff. Armver : As the case appears to my mind, and as I have already said, I do not see that the statute of frauds has any application, and therefore must refuse to affirm that point. [3]</p> <p>2. If the plaintiff furnished the material claimed in this suit toward the construction of defendant’s buildings, with the knowledge and consent of the defendant, the plaintiff is entitled to recover for the material so furnished. Answer: That will depend upon what the contract between them was, gentlemen, and in the broad language of the point I must refuse to affirm</p> <p>3. Upon all the evidence in the case, the verdict should be for the plaintiff. Answer: I cannot say that. I think there is enough evidence here to leave the question for your consideration. I cannot say to you, as a legal proposition, that either the plaintiff or defendant is entitled to recover. That depends upon the facts, which I have endeavored to call to your attention, but I must leave it for your consideration and you must determine, not I, whether the plaintiff is entitled to recover, or the defendant is entitled to a verdict, and this will depend upon what you shall determine was the agreement between the parties. [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

Appeal, No. 7, July T., 1895, by Hestou Walton, from decree of O. C. Bucks Co., dismissing exceptions to auditor’s report on the account of T. Howard Atkinson, trustee. Exceptions to report of auditor. The facts appear by the opinion of the Supreme Court. Errors assigned were in overruling exceptions to auditor’s report.

Appeal, No. 102, Jan. T., 1896, by plaintiffs, from order of C. P. Chester Co., Aug, Term, 1891, No. 62, allowing withdrawal of petition in condemnation proceedings. Petition to withdraw petition in condemnation proceedings.

Appeal, No. 96, Jan. Term, 1896, by The borough of Landsdowne, one of the defendants, from decree of C. P. Delaware Co., Sept. T. 1893, No. 9, on bill in equity. Bill in equity to accomplish a separation and apportionment of the debt of the township of Upper Darby between the said township and the borough of Lansdowne.

<p>Criminal law — Murder—Evidence—Competency of witness — Husband and wife.</p> <p>On the trial of an indictment for murder, after evidence had been taken tending to show that the defendant was a married man, a witness purporting by name to be an unmarried woman was sworn and testified to facts tending to incriminate the defendant. No objection was made at that time to her competency. At a later stage of the trial she was recalled and testified that she had been married by a clergyman to the defendant, and that she had subsequently lived with him as his wife, supposing that she occupied that position towards him. She also testified to certain admissions of the defendant to the effect that he was a married man when he went through the ceremony of marriage with her. Held, (1) that as the witness was apparently competent, the burden of establishing her incompetency by proof of a lawful marriage between the defendant and the witness was upon the defendant; (2) that the trial judge committed no error of which the prisoner could complain in submitting the question of the legality of the marriage to the jury, and instructing them that if they found it to be legal they should reject the testimony of the witness altogether; (3) that upon the uncontradicted evidence the trial judge would have been justified in treating this question of competency as a question of law, and overruling the objection to the testimony of the witness.</p> <p>Criminal law — Murder—Opening address of district attorney.</p> <p>In a proper case it is the duty of the court to supervise the addresses of counsel so far as may be necessary to protect prisoners and parties litigant from injurious misrepresentations and unfair attack, and to prevent the jury from being misled; but it must be left to the sound discretion of the trial judge as to when this power should be- exercised, and he should not hesitate to act where the fair administration of justice requires him to do so.</p> <p>In opening the trial of an indictment for murder, the district attorney referred to certain facts which he proposed to prove to establish the commonwealth’s theory of the motive of the crime. No objection was made at the time. The court refused upon the trial to admit evidence relating to the independent facts referred to in the opening. The prisoner then, which was several days after the opening had been made, requested an exception to the address of the district attorney. The court refused to allow the exception. Held, (1) that the refusal of the court to permit the exception was not error; (2) that if any statement made by the district attorney had been deemed objectionable, the attention of the court should have been called to it at the time when it was made, and when its correction was possible; (3) that the allowance of the exception asked would require the trial judge to anticipate the course of the trial, and decide upon the admissibility of evidence in advance of its being offered; (4) that the action of the court in rejecting a part of the ease of the commonwealth as stated in the opening did not have a retroactive effect upon the opening address.</p> <p>Criminal law — Murder—Evidence.</p> <p>/ On the trial of an indictment for murder the evidence showed that the deceased, a married man with children, was insured for a large amount of money. The prisoner who had a great influence over the wife of the deceased told her of a scheme for procuring the life insurance by notifying the insurance company of her husband’s death, and passing a dead body off upon the insurance company as that of her husband. The deceased and the prisoner went to a distant city where the deceased was poisoned by chloroform. The prisoner informed the wife that her husband was still living. The oldest child was taken by the prisoner to the city where the deceased died, in order to identify him for the purpose of procuring the insurance money. This child and two others were not permitted to see their mother again. The prisoner then pretended to aid the wife in search of her husband. Journeys were organized under the direction of the prisoner in which the three children were moved in one group, the wife and her other children in a second group, and the prisoner and his alleged wife in the third group. These groups went from place to place, often near to each other, sometimes housed at the same time in the same city, but always without meeting, until one by one the three children disappeared, and their dead bodies were afterwards discovered. The theory of the commonwealth was that the three children had been killed to prevent them from telling their mother that tljeir father was really dead, and thus rousing her suspicions of murder. j/'Eeld, that the evidence of the wife as to her wanderings and the identification of the remains of her children was admissible, as it was for the jury to say from it whether the persistent concealment of the husband’s death from his wife, and the prisoner’s representations to her that the insurance money had been obtained by fraud, were not induced by his desire to escape litigation over the money which he had received and appropriated, and to avoid the suspicion of murder being started against him in her mind.</p> <p>Criminal law — Murder— Chloroform poisoning.</p> <p>On the trial of an indictment for murder the prisoner did not deny that the death was caused by chloroform poisoning, but claimed that it was due to a slow process of self administration by means of a tube. An ounce and a half of chloroform was found in the stomach of the deceased. The medical experts gave two reasons why chloroform could not have been self administered in the manner alleged by the prisoner; first the intoxicating quality of the drug would cause such semi conscious or purely involuntary motion of the muscles and changes in the position of head and body, as would break the connection between the bottle and the mouth by means of the alleged tube; and secondly the evidence showed that the chloroform had not affected the lining of the' stomach; in other words, that it had been introduced into the stomach after death. Held, that it was not error for the court to charge that the doctors testified that the poison could not have been self-administered.</p> <p>In the above case the court was requested in substance to charge that if the jury should believe the deceased died from chloroform poisoning, and that it was possible for him to have administered it to himself, and that this theory was as consistent with the facts in the case as that it was administered with criminal intent by the prisoner, then the verdict should be not guilty. The court answered “ if you believe the deceased did it himself, why of course the prisoner is not guilty.” Held, that this answer, taken in connection with the general instruction that the burden of proving the guilt of the prisoner beyond a reasonable doubt remained upon the commonwealth from the beginning to the end of the trial, fully guarded the rights of the prisoner, even if it be conceded that a categorical affirmance of the point would have been in better form.</p> <p>Criminal law — Murder—Instruction as to reasonable doubt — Charge of court.</p> <p>On the trial of an indictment for murder the court charged “ In all criminal cases, it is essential that the defendant shall be convicted by evidence which persuades the jury of the guilt of the prisoner beyond a reasonable doubt. By a reasonable doubt I do not mean an obstinacy or resolution not to consider the evidence carefully. But it is that condition of the mind in which hesitancy arises after having given the evidence a fair consideration, and you find yourself unable to come to a conclusion as to the guilt of the prisoner. If after considering the testimony you are unable to come to the conclusion that he is guilty — there is a doubt about it — and you hesitate — or, in other words, if you are not fairly satisfied by the evidence of his guilt — he is entitled to the benefit of the doubt, mid should be acquitted for that reason.” Held, that the instruction as to reasonable doubt was sufficient and proper.</p>

<p>Railroads — Grossing of one railroad by another — Equity.</p> <p>On a bill in equity filed by one railroad company against another to secure a crossing, it appeared that the plaintiff proposed to cross by-means of a bridge with sufficient span and headway to cause no interference with the defendants’ tracks. The plaintiff’s chief engineer testified that at the point selected for crossing the least injury would be done to the defendants’ property; and the defendants’ chief engineer testified that the point selected was as good as any that could be found in that vicinity, and that a bridge with a clear span of sixty feet and a height of twenty-two feet would not be an obstruction, and would give sufficient room for four tracks. This was the only testimony on the subject. The court decreed that the crossing be made by a bridge constructed on a plan suggested by the chief engineer of the defendants. Held, that the decree was proper.</p> <p>Equity — Equity practice — Equity rules — Notice.</p> <p>The mere fact that the words “ and answer ” are omitted from the notice indorsed on a typewritten bill in equity, is not ground for dismissing the bill, where it appears that the notice otherwise complied with the new equity rules in form and substance; that the omission was inadvertently made; that it was harmless in effect, and that before hearing it was corrected in the printed copy of the bill served.</p>

<p>Street Railways— Turnpike Companies — Damages.</p> <p>Under the act of May 14, 1889, P. L. 217, a turnpike company whose road has been occupied by the tracks of a street railway is entitled to recover from the street railway company compensation for the use and occupation of its road, and such compensation includes all injury done to the property which is the immediate and direct consequence of the occupation' and use. The damage is not measured by the additional cost of maintenance of the roadway only, but by the depreciation in value of the property as a whole resulting from the occupation and use, and caused by the presence of the tracks and cars. If these are such a menace to travel as to cause those who would otherwise have driven on the road to abandon its use in whole or in part, they directly affect its earning capacity, diminish its revenues and depreciate its value as a property, and the turnpike company may be permitted to show the decrease in revenues and depreciation in the market value of its capital stock as evidence of the damage sustained.</p> <p>In estimating the damages there should be excluded from the computation any loss of revenue from tolls occasioned by the fact that new and improved facilities for travel are furnished and that persons, who would otherwise drive over the turnpike, ride in the cars to and from points on the railway. There should also be excluded as an element of damages the loss of tolls caused by the diversion of travel from the turnpike by reason of the increased danger on a city street with which it oonnected and with which it formed a continuous route for travel.</p>

<p>Appeal, No. 423, Jau. T., 1895, by defendant, from decree of C. P. Delaware Co., March T., 1895, No. 5, on bill in equity.</p> <p>Bill in equity to restrain interference with a proposed grade crossing.</p> <p>The complainant averred that it was authorized to construct a line of street railway on Welsh street in the city of Chester, and to cross the tracts of the defendant’s railroad. The bill prayed (1) that an injunction be issued, preliminary until hearing and perpetual thereafter, restraining the said defendant, its officers, employees and agents from resisting the construction or interfering with the maintenance of the said street railway or trolley wire on Welsh street, crossing its said trades as aforesaid; (2) that the court provide by its decree for the manner of construction of the crossing of the said railway over the said railroad, and for its future maintenance, under the provisions of the second section of the act of June 19,1871, P. L. 1360, entitled, “An act relating to legal proceedings by or against corporations,” and (3) such other and further relief as may be meet in the premises.</p> <p>The defendant filed an answer averring that the proposed crossing by the plaintiff company was not demanded by any requirement of public convenience, but was simply to enable the plaintiff to more conveniently operate its lines; that such crossing would be dangerous to persons and property, and denied that the plaintiff was clothed with full legal power and authority to construct and maintain its railway and trolley wires over the tracks of the defendant at grade, and averred that the resistance of the defendant to such construction was legal.</p> <p>The court entered the following decree:</p> <p>And now, to wit, February 16, 1895, the above cause came on to be heard, and after hearing it is ordered, adjudged and decreed:</p> <p>1. That the plaintiffs, or either of them shall have the right to proceed to construct and maintain a single track of railway at grade over the tracks of the defendant, where the same cross Welsh street, in the city of Chester, in said county, and shall have the right to string their wires over said crossing at an elevation of at least twenty-two feet above the top of the rails of the defendant’s road.</p> <p>2. The crossing frogs shall be procured by the plaintiffs, subject to the approval of the defendant, and shall be set by the defendant.</p> <p>3. When any car propelled by electricity shall approach the tracks of the defendant’s road, it shall be stopped at least twenty feet from the safety gates, whether the said gates are-up or down, and the conductor shall proceed upon the railroad track and ascertain by looking up and down said road whether any car, engine or other vehicle is approaching. If the track is free from danger, he may give the signal to cross, otherwise,, said electric car shall not attempt to cross said track.</p> <p>4. The cost of said crossing frogs, setting of same, main. tenance thereof, and the cost of any change of construction in the form of the safety gates, are reserved until final decree as to which of the parties shall pay the same, or in what proportion the same shall be borne, and either party has leave to move to amend, modify, alter or change this decree as necessity for public safety may demand, or as new inventions for the prevention of accident may be adopted.</p> <p>5. Let injunction issue as prayed for in the bill upon filing a bond by the plaintiffs in the sum of $5,000, and with the Delaware County Trust, Safe Deposit & Title Insurance Co. as security, which is hereby approved.*</p> <p>Error assigned was above decree, quoting it.</p>

<p>Appeal, No. 157, July T., 1895, by defendant, from order of C. P. Delaware Co., Sept. T., 1894, No. 170, discharging rule to strike off appeal from award of arbitrators.</p> <p>Rule to strike off appeal taken by plaintiff from the award of arbitrators. The court discharged the rule.</p> <p>.'Error assigned was order discharging rule.</p>

<p>Appeal, No. 132, Jan. T., 1896, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1893, No. 68, on verdict for plaintiff.</p> <p>Appeal from the award of viewers.</p> <p>At the trial it appeared that J. Newton Walker, the plaintiff, was the owner of a tract of farm land in the borough of Marcus Hook, Delaware county, Pa., containing about seventy-four acres. The South Chester Railroad Company was located across this farm some time during the year 1892, and the land taken by the railroad company was condemned on November 1, 1892. The said railroad was constructed between November 1, 1892, and January 1,1898. At the time of the location and construction of the railroad there were no streets plotted or laid out across the land. Some time in January, 1893, after the construction of the road, the borough of Marcus Hook caused a survey to be made by. Walter Wood, a surveyor, and the said Wood made a plan of said borough, showing streets through the farm of J. Newton Walker, as shown on the plan. The plan was offered in evidence hy the plaintiff, and admitted under objection and exception. (7, 8)</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned among others were (7, 8) admission in evidence of borough plan.</p>

<p>Appeal, No. 133, Jan. T., 1896, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1893, No. 45, on verdict for plaintiff.</p> <p>Appeal from award of viewers. Before Clayton, P. J.</p> <p>At the trial it appeared that in 1893, the defendant constructed a line of railroad through a farm of one hundred and twenty-one acres in Delaware county, owned by the plaintiff. The witnesses for the plaintiff fixed the damages at figures varying from $9,000 to $13,000, while the evidence for the defendant tended to show that the farm had increased in value by reason of the construction of the railroad through it.</p> <p>George Ashbridge, a witness for plaintiff, testified that the value of the property before the taking by the railroad was $33,275 and after the taking it was $22,686; that the elements of damage were three and sixty-four one hundreths acres of land taken by the railroad company at $275 an acre and a depreciation of the entire tract of $75.00 an acre, a total of $8,750. Under objection and exception he was permitted to testify that in addition to the above there was a destruction of a right of way which he valued at $1,000. [1]</p> <p>The witness further testified that he had been employed by the Girard Trust Co., by the estate of Eli K. Price, by the Pennsylvania Hospital, by the Phila. Trust Co., by the Real Estate Trust Co., by the United Security Co., and many individuals besides, to estimate the values of property and their depreciation under similar circumstances; that he had examined the property in question shortly after the railroad work began and that he had seen it again afterwards and that the result of his examination enabled him to state its value before tbe taking and its depreciation afterward; that he did not know of any land being sold in that neigbborbood. He was then permitted under objection and exception to give bis valuation of tbe land before and after tbe taking by tbe railroad company. [6]</p> <p>Tbe testimony of William Bradley a witness for plaintiff was also objected to because be was incompetent.</p> <p>Tbe Court: I am inclined to tbink tbe witness is competent to testify. You may examine bim. He says be is in tbe real estate business. He says that bas been bis occupation for ten years. He also testifies that be is familiar witb tbe values of tbe ground around here, and bas known of one sale, and bas visited tbe land as a real estate agent to see what it was bought and sold for. I tbink he can testify. Exceptions and bill sealed. [7]</p> <p>Charles B. Sprogle, a witness called by tbe plaintiff as an expert, testified that he bad no special knowledge of tbe property until after the railroad was constructed; that he then went and examined it, and made inquiry as to sales in tbe neigbborbood, and that what be found out about tbe sales was ascertained within two or three weeks of tbe trial.</p> <p>His testimony then proceeded:</p> <p>Tbe Court: Q. You have been on tbe land, have you? A. Yes, sir, and examined it.</p> <p>Mr. Pinkerton, for defendant: Q. When did you go on this land for tbe purpose of examining it ? A. In -the latter part of last December. Q. But you never have been on it at any other time? A. No, sir.</p> <p>Objected to because tbe witness bas not shown himself to be sufficiently acquainted witb properties in tbe neighborhood.</p> <p>Tbe Court: I think be can testify as far as his testimony goes, and will give you an exception. Bill sealed. [8]</p> <p>William Strutbers, tbe plaintiff, was recalled to testify to tbe right of way.</p> <p>Mr. Pinkerton: I object to this.</p> <p>Tbe Court: I will give you an exception.</p> <p>Tbe Court: I wish you would tell me one thing, Mr. Strutbers. As I understand it you did not claim any right of way over this man’s land ? A. Judge, I bad been using that for five years after I bought tbe property. I used that right of way continually during all that time. Q. But when you bought the property was it a part of your bargain that you had the right to go over this land? A. Yes, sir, it was understood when I bought it that I had the right of way.</p> <p>The Court: Then I will let it go to the jury. Bill sealed. [9]</p> <p>The court charged in part as follows :</p> <p>[What other damages are there ? It is said that they interfered with the right of way, and that he has lost the right of way over that road to go to mill, church and market. So far as that right of way is concerned, I instruct you that the evidence is very shadowy. There is barely enough evidence upon that point for the court to permit it to go to the jury.] [2] *********</p> <p>[An old deed has been produced showing that there was a right of way appurtenant to the old sawmill which belonged to a man named Barnes. The right of way appurtenant to a sawmill does not mean that it belongs to the whole one hundred and twenty-one acres. So far as the deed is concerned, it does not make out the title. The deed was subject to a lien of six pounds a year if the owner demanded it. It was a right, therefore, that could be determined or paid for by an annual payment. It was a right appurtenant to a sawmill and not to the one hundred and twenty-one acres. Yet, the plaintiff says that when he bought the land it was understood between him and the seller that he had the right of way over it, but he does not say that he went to see the owner of servient tenant. This right of way depended upon the demand of the servient tenant. The owner of the dominant tenant said you have the right of way. It was his duty to have then gone to the man whose land he was going over and ask if that was so. He should have told him that he had a right of way over his land, and if he admitted it, it would then have been established.] [B]</p> <p>[Still there is some evidence that there was a right of way there by immemorial usage, and if you come to the conclusion that there was a right of way then you may consider its value. The evidence is that it was abandoned. If you come to the conclusion that there was an element of damage there you can allow it.] [4]</p> <p>[Then you had the testimony of Mr. Ashbridge, who says , that the land was worth $150 an acre, and has depreciated until its value is only $75.00 an acre, and the value of the old right of way that has been destroyed is fixed at $1,000. A verdict of $1,000 for the destruction of that right of way would not be sustained by the court under the evidence.] [5]</p> <p>Verdict and judgment for plaintiff for $5,500. Defendant appealed.</p> <p>Errors assigned were (1, 6-9) rulings on evidence, quoting the bill of exceptions; (2-5) above instructions, quoting them.</p>

<p>Assignment of personal property for payment of debt — Assignment for creditors — Attachment execution.</p> <p>A rolling mill company, three days before it made an assignment for creditors, transferred to a bank to which it was indebted a large quantity of scrap iron to secure the payment of its indebtedness. The iron was piled upon the premises of the rolling mill company, each variety of the scrap being piled separately. At the time of the transfer, the cashier of the bank went with the officers of the company to each pile of the iron, and not long thereafter caused a large placard to be placed on each pile, announcing to the public “ This property belongs to the Quaker City National Bank.” The cashier also employed a watchman to take charge of the iron for the bank. Two months afterwards the assignee for creditors of the rolling mill company sold the iron with the consent of the bank under an agreement that the right to the proceeds should be determined by the court. Subsequently a creditor of the rolling mill company attached the proceeds in the hands of the assignee. Held, (1) that the title of the bank as between it and the rolling mill company was good at the time of the assignment; (2) that the proceeds of the sale stood as security in the place of the scrap iron, and belonged to the bank.</p>

Appeal, No. 152, Jan. T., 1896, by Benjamin C. Potts, from order.of C. P. Delaware Co., Sept. T., 1898, No. 11, dismissing exceptions to auditor’s report. Exceptions to auditor’s report distributing fund raised by receiver’s sale of the property of Rose Yalley Mills, a corporation. W. Roger Fronenfield, the auditor, found the facts to be as follows: The attorney for Wm.

<p>Appeal, No. 115, July T., 1895, by defendants, from judgment of C. P. Schuylkill Co., July T., 1893, No. 89, on verdict for plaintiff.</p> <p>Trespass to recover damages for an alleged illegal sale of plaintiff’s goods.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The defendants presented the following points:</p> <p>2. If the jury find that the ownership of these articles of properiy was transferred to F. H. Clemens by his father for wages or other considerations, and that the father continued to hold possession of them, it is such a transaction as would be a fraud upon creditors, and the verdict must be for defendant. Answer: Refused. [1]</p> <p>3. If the jury find that the plaintiff acquired the ownership of these articles of property from his father, and that he permitted them to remain in his father’s store, it is such concurrent possession as renders the transaction fraudulent per se and the plaintiff cannot recover. Answer: Refused. [2]</p> <p>4. If the ownership of these articles of property had been acquired by the plaintiff and he permitted them to remain in his father’s harness store without anything to indicate ownership in the plaintiff, it would be a fraud upon the creditors of his father and he cannot recover in this suit. Answer: Refused. [8]</p> <p>5. If any part of the claim made to property by the plaintiff is tainted by fraud or collusion, such fraud operates upon the whole of the transaction and there can be no recovery by the plaintiff. Answer: Refused. [4]</p> <p>6. If the plaintiff did not assume the control of the goods so as reasonably to indicate to all concerned the change of ownership, it is a fraud in law and there can be no recovery. Answer : I do not know that there is any evidence on which that is relevant. Refused. [5]</p> <p>Verdict and judgment for plaintiff for $30.00. Defendants appealed.</p> <p>Errors assigned were, (1-5) above instructions, quoting them.</p>

Appeal, No. 255, Oct. T., 1895, by plaintiff, from decree of C. P. No. 8, Allegheny Co., Feb. T., 1894, No. 227, on bill in equity. Bill in equity for dissolution of partnership, for the appointment of a receiver, for an injunction, and for an account. The case was referred to Thomas Patterson, Esq., as master, who reported the facts to be as follows : In 1869 Wm. Clark, the husband of Mrs. Jane Clark and father of E. L. Clark, was a member of a partnership known as Wm.

Appeal, No. 479, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 4, Philadelphia County, Dee. T., 1893, No. 4, on verdict for defendant. Trespass for malicious prosecution. Held: “ That an action for malicious prosecution can be maintained only where the plaintiff can make it appear, first, that the defendant in his attempted prosecution had no probable cause upon which to found it; and, second, that he was actuated by malice.

Appeal, No. 168, July T., 1895, by plaintiff, from order of C. P. Montgomery Co., March T., 1894, No. 4, overruling exceptions to award of arbitrators and entering judgment for defendant. Assumpsit on a contract in writing-. Exceptions to award of arbitrators.

<p>Appeal, No. 313, January T., 1895, by plaintiffs, from order of C. P. Montgomery Co., Dec. T., 1894, No. 102, striking off judgment.</p> <p>Rule to show cause why judgment should not be opened. Before Swartz, P. J.</p> <p>The court made an order striking off the judgment from the record.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order striking off judgment.</p>

Appeal, No. 453, Jan. T., 1895, by-defendant, from judgment of C. P. Schuylkill Co., July T., 1895, No. 453, on -verdict for plaintiff. Trespass for personal injuries. Before Weldman, J. At the trial it appeared that plaintiff was injured about midnight on November 12, 1890, by falling into a mine breach or hole in a road.

<p>Execution— Sheriff — Sale of leasehold — Negligence.</p> <p>A sheriff who sells a colliery leasehold together with the machinery in place, and upon failure of the purchaser to pay his bid allows the return day of the writ to pass by without putting the property up for resale, is liable to another execution creditor who is injured by his neglect, and he is not relieved by the fact that such execution creditor consented after the return day to the purchaser remaining in possession for a certain limited period for the purpose of obtaining the money with which to pay the sheriff.</p> <p>Execution — Sheriff—Return—Act of Ajiril 20, 1846.</p> <p>A sheriff after selling a colliery leasehold together with the machinery in place accepted the purchaser’s receipt for the balance due, and made a return as is prescribed by the act of April 20, 1846, P. L. 411, in cases of sales of real estate to lien creditors. Exception was made to the return, and an auditor was appointed who reported that the sheriff had no right to take the purchaser’s receipt inasmuch as the property sold was not real estate, and therefore not within the provisions of the act of April 20,1846. No exception was taken by tire sheriff to the auditor’s report, and no appeal was taken by him from the order confirming it. Subsequently suit was brought against the sheriff by an execution creditor who was injured by his action in taking the purchaser’s receipt. Held, (1) that the sheriff was a party to the proceedings before the auditor; (2) that the matter decided by the auditor was res judicata; (3) that a judgment against the sheriff in the action for damages should be sustained.</p>

<p>Practice, O. G. — Petition and answer — Replication—Irrelevant matter.</p> <p>A petition for the removal of a trustee averred that the trustee in his second and final account filed expressed his desire to be discharged. The petition prayed the court to enter a decree discharging him at his own request. The trustee filed an answer averring that while he formerly desired to be discharged he had since been advised and believed that it was to the best interest of the estate that he should continue as executor and trustee. A replication was thereupon filed denying that it was to the best interest of the estate that the trustee should continue to act, and averring actual or prospective insolvency of the trustee, and also mismanagement. Held, (1) that this was bad practice; that instead of filing a replication averring new matter, the petitioners should have asked leave to amend their petition by inserting therein other grounds for the trustee’s discharge; (2) that the trustee, by acquiescing in the proceeding and by taking testimony upon the consideration of which the court discharged him, could not after entry of the final decree against him take advantage of the irregularity in the proceedings; (8) that merely verbal objections to the irregularity without any objection filed of record would be of no avail to help him after final decree.</p>

<p>Street railways — Preliminary injunction — Doubtful claim — Equity.</p> <p>A preliminary injunction restraining a- street railway company from building its road upon land claimed by the complainant will be dissolved where there is grave doubt whether the line of the proposed road is on complainant’s land.</p>

<p>Principal and agent — Declarations of agent — Evidence.</p> <p>Declarations and admissions of an agent made after a transaction is fully completed and ended are not admissible.</p> <p>Negligence — Declarations of agent — Evidence.</p> <p>In an action to recover damages for personal injuries it appeared that, plaintiff was injured by the breaking of an iron hanger used for holding up shafting in defendant’s mill. The court admitted declarations of the superintendent of the mill made away from the mill several days after the occurrence, to the effect that the hanger had been condemned, and should not have been put up. The court charged that if what the superintendent had said in relation to the hanger was true, the plaintiff might recover. Held, that the admission in evidence of the declarations of the superintendent and the instructions of the court relating thereto were error.</p> <p>Negligence — Fellow servant — Gharge of court.</p> <p>Plaintiff was injured by the breaking of an iron hanger in a mill. There was some testimony tending to show that the hanger was broken in consequence of either the plaintiff or a fellow servant carelessly and improperly tightening the set-screws. Defendant requested the court to charge that if the hanger was strong enough and would not have been broken if plaintiff or the other workman had adjusted the set-screws in a careful and skillful manner, the verdict should be for the defendant. The court answered “ That is also affirmed upon the point of the plaintiff being guilty of contributory negligence, if he did not skillfully and properly, with ordinary care put up the machinery. He was not bound to take extraordinary care.” Held, that the answer was erroneous inasmuch as it ignored the effect that may have resulted from the possible negligence of the fellow servant.</p>

<p>Will — Undue influence — Lunacy.</p> <p>Testator, who had been declared a lunatic, claimed to be sane, and employed an attorney at law to procure an order superseding lunacy proceedings. Pending the litigation, the attorney, a comparative stranger to the testator, without consultation with or having present any of testator’s friends or relatives, privately prepared and had executed by testator two wills, in both of which the attorney was named as one of the legatees and sole executor, and both of which were witnessed by him. When testator stated to the attorney as a reason for making him a legatee that he wished' to provide compensation for his contemplated services in the lunacy proceedings, the attorney did not inform the testator that, if successful, his property, ample wherewith to remunerate the attorney, would be restored to him, and if unsuccessful, that a fee would be allowed by the court out of testator’s estate. He also neglected to inform testator that the amount of the legacy was out of all proportion to the services he would be called upon to render. Held, that the legal presumption of undue influence arising from the condition of the testator and the confidential relations of the parties must be removed by evidence on the part of those asserting the validity of the will.</p> <p>Will — Testamentary capacity — Lunacy—Lucid interval.</p> <p>When a person is shown to have executed an alleged will after he had been legally declared a lunatic, the burden of proof is upon the proponents of the will, who must show that it was executed in a lucid interval, aud when the testator had understanding and capacity to execute the will.</p> <p>In a contest over the validity of a will, the testimony showed that the testator was over eighty years of age when the alleged will was executed; that his sister, several of his brothel’s and an aunt were insane, and that he himself had been found a lunatic five years before he executed the paper in question; that his habits were filthy and he was incapable of taking proper care of his person; that he did not know who were his relatives or next of kin; that he had no clear conception of his property or of its value; that he was under the delusion that his farm contained a large-deposit of coal of great value; that he was easily influenced, especially by any one who favored the restoration of his property to his control, and that he believed his committee, who was not his next of kin, and against whom he at times exhibited feelings of hostility would secure a portion of his estate unless he made a will. Held, that the evidence was insufficient to justify the court in allowing an issue devisavit vel non.</p>

<p>Appeal, No. 394, Jan. T., 1896, by defendants, from judgment of C. P. Wayne Co., March T., 1894, No. 202, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Purdy, P. J.</p> <p>Plaintiff in his statement averred that he was injured on November 20,1883, while employed by the defendant as a slate picker, and placed at work in a small space either between a canvas screen and a revolving wheel, or by the side of the canvas screen and close to the wheel by its side or in front of the said wheel; with averment that “ said injuries were occasioned through the fault and negligence of the said defendant in placing the plaintiff in so hazardous a position, and in not cautioning him or explaining to him the dangers attending his labors, and in not placing fenders or some protection between plaintiff’s position while at duty and the said wheel, and in not otherwise attending to the safety of the plaintiff while in the performance of his said duties.”</p> <p>At the trial it appeared that at the time of the accident plaintiff was about ten years old. He was placed by tbe foreman of the defendants at a revolving canvas screen to pick coal, but was not given any special instruction. The canvas screen was used as a carrier on which coal was carried from a point below a dock diagonally up through an open space in the dock floor to a point above, where it emptied into a feeder from whence it passed to boats below. Plaintiff occupied a position between the canvas screen from which he was to pick the slate, and a sheave wheel revolving parallel with the revolving screen. It was the plaintiff’s duty to sit on a bench by the side of the canvas screen facing down the carrier, and as the coal came up to pick out from it the pieces of slate and refuse and throw them into a box at his side. The distance of the sheave wheel from the canvas screen was variously stated at from one and one half feet to two feet. In the immediate vicinity other screens and wheels were revolving, cars were being run and dumped, and an elevator was hoisting coal. Plaintiff had been employed at this screen for about a day, when in making a turn his arm was caught by the spokes of the sheave wheel, and he was carried around the wheel, and severely injured.</p> <p>Defendants’ point among others was as follows:</p> <p>4. Under all the evidence in this case the verdict of the jury must be for the defendant. Answer: That is refused.</p> <p>Verdict add judgment for plaintiff for $2,000. Defendants appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

Appeal, No. 124, July T., 1895, by Dunmore Borough, from judgment of G. P. Lackawanna Go., Nov. T., 1891, No. 481, on verdict for plaintiff. Trespass for injuries to plaintiff’s land. Before Edwards, J. At the trial it appeared that on November 11, 1874, an ordinance was passed by the council of the borough of Dunmore providing for grading and laying sidewalks. A similar ordinance was passed in July, 1889.

<p>Negligence — Street railways — Passenger—Getting on front platform.</p> <p>Where a child between seven and eight years of age attempts to get upon the front platform of a street car when the car has stopped to let off a passenger, but neglects in any way to announce his intention to become a passenger, or to signal to the driver or conductor who did not see him, and he is injured by the starting of the car in its ordinary course, there can be no recovery of damages from the railway company: Pitcher v. People’s Ry. Co., 154 Pa. 560, followed.</p> <p>In such a ease it is immaterial that the conductor could have seen the boy if he had looked; and it is also immaterial that the car was without a fender.</p>

Appeal, No. 10, Jan. T., 1896, by James Nichols, from decree of O. C. Lackawanna Co., dismissing petition for appeal from register of wills. Petition for an appeal from register of wills.

Appeal, No. 154, Jan. T., 1896, by defendant, from judgment of C. P. Lackawanna Co., January Term, 1895, in favor of plaintiff, on case stated. Case stated to determine whether a judgment note was barred by the statute of limitations. The facts appear by the opinion of the court, Edwards, J., which was as follows: The facts of this case are few and simple.

Appeal, No. 159, Jan. T., 1896, by plaintiff, from decree of C. P. Wyoming Co., in equity, book 8, page 22, dissolving a preliminary injunction. Motion to continue preliminary injunction.

<p>Negligence — Railroads—Stop, look and listen — Grade crossing.</p> <p>In an action to recover damages for the death of a person killed at a grade crossing it appeared that no person saw the accident; that the body of the deceased was found upon the pilot of an engine near the crossing, and that a buggy in which the deceased started from his home was found broken to pieces near the crossing. The evidence showed that when the deceased was within from thirty to forty feet of the railroad he could have seen along the track at least a quarter and perhaps half a mile in the direction from which the engine came which struck him. Held, that a nonsuit was properly granted, inasmuch as the deceased would have seen the approaching train if he had stopped and looked.</p>

<p>Appeal, No. 1, Oct. T., 1895, by plaintiffs, from judgment of C. P. Butler Co., Dec. T., 1895, No. 20, on case stated.</p> <p>Case stated to determine the ownership of royalties under an •oil lease. Before Gbeeb, P. J.</p> <p>Case stated was as follows:</p> <p>And now, 3d day of September, 1895, it is hereby agreed by •and between the parties to the above suit that the following case be stated for the opinion of the court in the nature of a special verdict:</p> <p>1. The plaintiffs, Isaac E. Blakley and Louisa Blakley, are the life tenants of a certain plantation or farm, situated in the township of Adams, county of Butler and state of Pennsylvania, and their children, all of whom are minors, are the remainder-men of the said plantation in fee under and by particular covenants contained in a certain deed from one Andrew Blakley, dated the 26th day of November, 1890. The defendant is a trustee, appointed by the court of common pleas of Butler county, to receive certain oil royalties, hereinafter more particularly referred to, invest the same and pay over to Isaac E. Blakley and Louisa Blakley, during life and the life of the survivor, the interest annually arising upon the said fund, and at the death of both, the principal sum to the children of the said Isaac E. Blakley and Louisa Blaldey, the remainder-men in fee as aforesaid, the said Isaac E. and Louisa Blakley, trustees named in the deed by Andrew Blakley, having refused to give bond, claiming the right to the oil in the premises under the facts of the case as life tenants.</p> <p>2. That some time prior to the 10th day of August, 1894, petroleum oil was discovered to exist under lands about and around the said plantation, being the lands of others than the plaintiffs and the said remainder-men, and the owners of such other lands thereupon began to obtain proper wells to be put down upon their said several lands to obtain the oil thereunder at such places and situations with reference to the said plantation that all the oil existing under the said plantation would be drained through the said wells of such other owners, so that the oil lying under the said plantation would thereby become dissipated and lost to the said premises, both to the plaintiffs and the said remainder-men, and that there is no known mechanical means to prevent the same.</p> <p>3. That under said state of facts, and with knowledge of the same, the said Isaac E. Blaldey and Louisa Blakley did, on the 10th day of August, 1894, lease and let unto one N. B. Duncan, his heirs or assigns, a certain portion of the said plantation to drill for oil, which lease is in the ordinary, accustomed and general form in the neighborhood and the oil regions of Pennsylvania.</p> <p>4. That at the date of the making of the said lease, the said Isaac E. Blakley was forty-three years old and the said Louisa Blakley thirty-seven years old, both in good health, with expectancies of life, bjr the Carlisle tables of mortality, of 25-j-jj-g- and years respectively. That at the dates of the said deed and lease, the said plaintiffs had born to them children as follows: Henry A., Amelia M., Walter G., Gertrude A., Sarah L., Charles J. and John B. Blakley, all of whom, with one or two exceptions, were and are residing with their parents on the said plantation.</p> <p>5. That under the said lease a well has been drilled upon the said premises and the same has been for some time past, and is now, producing some sixty barrels of oil per day, and the oil therefrom is being conducted into lines of the Producers’ Pipe Line Company and the National Transit Pipe Line Company, which is ready to make settlement for the said oil, and pay the royalties therefor,'being the one-eighth of the said oil, to the person or persons entitled to receive the same in law.</p> <p>6. That the plaintiffs herein claim the said royalty as their own individual property as life tenants of the said premises, free and discharged of any trust or confidence whatsoever, and the defendant likewise claims the same as his property for the purpose of his said trust and appointment.</p> <p>Now, if the court be of opinion that the said royalties are the property of the plaintiffs according to their claim, then judgment to be entered in their favor for the sum of $1.00, but if not, then judgment to be entered for the defendant. And it is further agreed that either party shall have the right to take an appeal or other proper proceedings to review alleged error in the court below. It is further agreed that the amount in controversy in this case exceeds $1,000.</p> <p>The court entered. judgment in favor of the defendant on the case stated.</p> <p>.Error assigned was entry of judgment as above.</p>

<p>Corporations — Receiver—Distribution of estate.</p> <p>Where a corporation in the hands of a receiver is insolvent without possibility of rehabilitation, and there is nothing to do but to convert its assets and distribute them equitably, the bondholders of the corporation, although their bonds are not due, are entitled to participate with the general creditors in the distribution of the fund raised by the sale of material which the receiver has manufactured from raw product belonging to the corporation, and in the fund raised by the sale of the real estate of the corporation.</p> <p>Corporation — Receiver— Taxes.</p> <p>Where a corporation engaged in the iron business is hopelessly insolvent, and in the hands of a receiver, taxes which have accrued during the time that the receiver was manufacturing raw product into finished material in order to facilitate the sale of the company’s property, should be paid in full.</p>

<p>Supreme Court — Jurisdiction—Act of June 24,1895, sec. 7.</p> <p>Under the act of June 24, 1895, sec. 7, P. L. 215, relating to appeals to the Superior Court from the court of quarter sessions, an appeal from a conviction for unlawful hawking and peddling- lies to the Superior Court and not to the Supreme Court, although the case may involve the construction and application of the constitution of the state.</p> <p>In such a case the only way in which the Supreme Court can properly acquire jurisdiction of the constitutional question is by appeal from the judgment of the Superior Court under clause “Third ” of the act June 24, 1895.</p>

Appeal, No. 138, Jan. T., 1895, by L. H. Kinney, from order of C. P. Berks Co., Equity Docket 1891, No. 545, dismissing exceptions to master’s report. Bill in equity alleging insolvency of defendant and praying for the appointment of a receiver.

<p>Appeal No. 157, Jan. T., 1896, by defendants, from judgment of Q. S. Lycoming County, December Term, 1894, No. , on verdict of guilty.</p>

<p>Corporation — Defacto officer — Promissory notes.</p> <p>Promissory notes signed by de facto officers of a corporation are binding upon the corporation.</p> <p>In an action against a corporation, upon promissory notes appearing upon their faces to be the individual notes of the persons signing them, where the plaintiff’s statement alleges that the money for which the notes were given was lent to the corporation, and the pei'sons signing were trustees of the defendant, and were duly authorized to execute and deliver the notes in question, the suit can be maintained against the corporation if the allegations be proved; and an averment in an affidavit of defense that the notes in suit appear to be upon their faces the individual notes of the makers thereof, and that the corporation cannot be held upon them, is not a denial of the averments of the statement, and is insufficient to prevent judgment.</p> <p>Affidavit of defense — Practice, C. P. — Examination of boohs.</p> <p>An allegation in an affidavit of defense that the defendant had been refused permission to examine certain books for the purpose of ascertaining the merits of plaintiff’s claim is unavailing to prevent judgment. In such a case the proper course for the defendant is to show his inability to make an affidavit of defense without such inspection, and to ask for a suspension of the rule for judgment until an opportunity properly to inform himself is afforded.</p>

<p>Appeal, No. 31, Jan. T., 1896, by plaintiff, from decree of C. P. Berks Co., Equity Docket, 1892, No. 551, dismissing bill in equity.</p> <p>Bill in equity to set aside tbe sale of real estate and compel the performance of an agreement between plaintiff and defendants.</p> <p>There were about thirty defendants.</p> <p>The case was referred to Henry C. G. Reher, as master, who reported as follows:</p> <p>1. That the Blandón Iron and Steel Company at Blandón, Berks county, Pa., was insolvent, and on the 9th of October, 1891, made an assignment for the benefit of creditors to Charles B. Froment. That, at the time of the assignment of the Blandón Iron and Steel Company, the plaintiff was the president thereof, and that he was the holder of five hundred and thirty-five shares of stock of a total of one thousand shares;</p> <p>2. That the creditors of the said company, including the plaintiff, the aggregate of whose claims amounts to upwards of seventy-five per centum of the whole of the indebtedness, entered into an agreement in writing on the 13th of November, 1891, providing, among other things, for the acquisition of all the real estate, property and assets of the said Blandón Iron and Steel Company, the reorganization of the old company, or the creation of a new corporation, the transfer of the real estate, property and assets aforesaid to such reorganized company or new corporation, the transfer of all the claims of the parties to the said agreement, including the right to receive any dividend out of the assigned estate by a committee, such dividend to be used in the payment of any property purchased by the committee, the issuance of stock of the reorganized or new corporation to the said creditors at par for the amount of their claims respectively, and the payment of all expenses and costs of the reorganized company by the levying of an assessment pro rata on the parties to the said agreement. That it was provided in said agreement that George B. Lessig, Jerome L. Boyer, and George F. Baer should be a committee with full power to act for and in behalf of all parties in effecting the said reorganization, and that the said agreement should become binding upon all the parties thereto when 75 per cent in amount of the creditors of the said Blandón Iron and Steel Company should have signed the same; that the aggregate of claims held by the parties who signed the said agreement was $40,049.60, an amount largely in excess of 75 per cent of the aggregate indebtedness of the said corporation;</p> <p>3. That the real estate and rolling mill of the said company was bound by the following incumbrances, viz: (a) A dower of $278.63; (6) A mortgage of G. A. Nicoll’s estate for $5,000; (c) A mortgage of George Harrison in trust for the First National Bank of Reading, Pa., the balance due thereon being $3,600; (d) A mortgage of $50,000 given to secure coupon bonds of the said Blandón Iron and Steel Company, of which bonds but $24,000 had been negotiated, and upon all of which incumbrances some interest had accrued;</p> <p>4. That, at the time of the said agreement for the benefit of creditors, the said company was indebted to Frank L. Froment in the sum of $13,676.79, for which claim the said plaintiff held as collateral security $14,000 of the $24,000 coupon bonds secured by a $50,000 mortgage on said property, the balance of $10,000 being held by the Union Bank of Reading, Pa., as collateral security for promissory notes of the company amounting to $5,000, upon which notes the plaintiff was an indorser;</p> <p>5. That the said Frank L. Froment signed the said agreement of creditors, and thereby elected and determined to stand with the unsecured creditors in the agreement to the extent of his claim without the bonds, in order to secure the benefits and advantages that would accrue to him by the performance of said agreement. That all the creditors so signing, as aforesaid, thereby agreed to place themselves on the basis of the agreement, and that since its execution they stand upon a common equality;</p> <p>6. That on the 6th of February, 1892, the sheriff of Berks county, pursuant to a writ of levari facias issued upon a judgment which had been obtained in a proceeding of scire facias upon the judgment of George Harrison in trust for the First National Bank of Reading, Pa., exposed the rolling mill and real estate of the said company at public sale; that the plaintiff refrained from bidding upon the said property, which was then sold by the sheriff to George B. Lessig, Jerome L. Boyer, and George F. Baer, the committee of creditors aforesaid, fox the sum of $4,000, subject to a dower and the mortgage of the G. A. Nicolls’s estate;</p> <p>7. That the said committee also purchased at the assignee’s sale of the personal property of the said Blandón Iron and Steel Company, ore, iron, and other materials amounting to $8,502.85, to be used by the new company in the operation of the said mill;</p> <p>8. That upon the passage and adoption of the resolution of instructions by the creditors, February 17, 1892, the committee were no longer authorized or required to proceed to organize a new corporation, or to reorganize the old corporation and to issue to the creditors who had signed the said agreement including the plaintiff’s shares of stock at par for the amount of their several claims, levying an assessment upon the said creditors pro rata for all expenses incurred thereby;</p> <p>9. That the said committee, in pursuance of the resolution of instructions passed by the creditors at a meeting held February 17, 1892, were lawfully empowered and authorized to enter into an agreement with the National Union Bank of Reading, Pa., so as to prevent the necessity of having the sheriff’s sale of said property set aside, and prevent the costs and delays incidental thereto, and provide for the relief of the said committee from the responsibility which they had incurred in behalf of the said creditors;</p> <p>10. That the said committee, in pursuance of the resolution of instructions passed by the creditors at a meeting held February 17,1892, were lawfully empowered and authorized to advertise the said property to be sold at public sale, and did sell the same on the 28d of April, 1892, to the said Charles H. Schaeffer for the sum of $14,975;</p> <p>11. That the amount of money, $20,000, required by the committee for their reimbursement for expenses incurred, and for liens assumed in the purchase of the real estate, would not have been much, if any, in excess of the amount required for said purposes;</p> <p>12. That the sale of the real estate made by the committee on the 23d of April, 1892, to Charles H. Schaeffer in obedience to the instructions of the creditors contained in a resolution passed February 17,1892, notwithstanding the objection to said sale by the plaintiff, was a legal and a valid sale.</p> <p>CONCLUSION ON LAW.</p> <p>Under the facts as found by the master, it is clear that the plaintiff in this case is not in a position to demand that the committee execute the original agreement of the creditors, because, in the first place, when he received notice of the meeting of the 17th of February, 1892, he should have appeared at that meeting. and insisted upon the execution of the original agreement. Instead of doing so, he sent his brother there, who informed the committee that the plaintiff could not fulfill his share of that contract, and later sent a letter inserting objections to the plan of the committee and proposing a futile scheme of his own. Under the circumstances it seems plain that he must be held to have assented to what the committee did, and is estopped, therefore, from insisting on the performance of that original contract.</p> <p>But, further, if Mr. Froment was not estopped, could he have insisted that the. committee should, go forward with the reorgan- ■ ization when all the creditors but himself had refused to have anything further to do with that reorganization, and when these creditors in the convention duly called, had instructed the committee to do something else ? Could Mr. Froment insist that the agents of these creditors — the committee — must go on, incur liabilities, begin suits against their own principals and compel these principals to do that which the principals had unanimously resolved should not be done ? Before such a thing could be ■asked of the committee, it would be necessary for the plaintiff to tender to the committee a performance of not only his own part of the contract, but he must also tender a performance for all the others. He cannot expect the committee to bear the burden for all the creditors at the behest of one creditor.</p> <p>The master, therefore, suggests that the following decree be entered:</p> <p>That the bill in equity filed in the above case as in the court of common pleas of Berks coünty, sitting in equity, as of No. 551 equity docket, 1892, be dismissed, as to each and every and all of the defendants in the said suit named, with costs to be paid by the plaintiff.</p> <p>Endlich, J., filed the following opinion on exceptions:</p> <p>■ It is a settled principle of chancery jurisdiction that a decree is not of right, but of grace, in the sense explained in Evans v. Reading Chem. Fert. Co., 160 Pa. 209. The question, therefore, whether the plaintiff’s prayers are to be granted or not, is not answered by the mere establishment of an original right on his part, as against the other creditors of the Blandón Iron and Steel Company, to performance of the agreement of November 18, 1891, nor by that of a relation of cestui que trust and trustee as between him and the committee appointed by the creditors to carry out its provisions. Conceding his position upon each of these points, it still remains to be considered, whether, under all the circumstances admitted by the pleadings and shown by the proofs, the result he contends for is consonant with equity and fair dealing. That result, it must not be forgotten, would involve the setting aside of what was desired by the majority'and acquiesced in by nearly all of the creditors, presumably acting upon an adequate understanding of their own interests, -in favor of one of them confessedly both unwilling and unable to comply with his part of the joint undertaking. It would involve the imposition upon gratuitous mandatories of the burden of continuing the pledge of their individual.responsibility for considerable sums of money taken up by them for the benefit of others, and of engaging, at their own expense in the first instance and possibly at their own ultimate risk, in costly and extensive litigation in order to compel performance of that undertaking by each of the parties to it. And it would involve all this under a condition of affairs excluding the possibility of replacing the parties in the same situation in which they originally were. The demand for a decree having such an effect ought to be supported by powerful and undisputable equities. Are they apparent in this record?</p> <p>When the creditors of the Blandón Iron and Steel Company, including this plaintiff, signed the agreement of November 13, 1891, they gave to the committee appointed therein “ full power to act for and on behalf of all ” of them in bringing about a new organization or a reorganization of the old company. For the purpose of carrying out the agreement, each of the parties thereto constituted the committee his “ attorney in fact, with full power to do any and every act which it may be deemed expedient to do in order to carry out the object contemplated ” thereby. Part of this object was to raise by a new mortgage, or by the issue of bonds under an existing one, “ the working capital which the committee may decide necessary.” When, however, the committee, after having expended a considerable amount of its own money and incurred individual responsibility for still more, declared the necessity of raising by mortgage $20,000 to pay off existing incumbrances, to indemnify themselves and to obtain a couple of thousand dollars working capital, and, pointing out the impracticability of finding outside investors willing to take the bonds to be secured by said mortgage, suggested the apportionment of them among the creditors at the rate of 50 per cent of their claims — it turned out that the grant of plenary power to it by the agreement was a promise made in the night, and that the majority, including the plaintiff, was unwilling to abide by it. In a word, the plan of action determined upon by the committee, the authorized agent of the creditors, and according to the agreement of November 13,1891, conclusive upon them, was rejected by the principals, who had given it power to act for them. In that action of the creditors the plaintiff participated; and since it involved a departure from the agreement, it necessarily implied a submission on the part of those opposing the recommendation of the committee to such substitute for the original agreement as should thereafter be determined upon. This substitute was provided in the resolution of February 17, 1892, directing the committee to dispose of the properly on the best terms available so as not to entail personal loss upon them. The committee had received its original mandate from the creditors’ meeting; it might lawfully accept, so far as itself was concerned, a modification of it from the same authority. It does not lie in the mouth of one who refused to stand by the compact as originally made, and who, by such refusal, aided in bringing about its modification, subsequently to insist upon its literal performance. The fact that its execution was, to him, the consideration upon which he surrendered what may or may not have been an advantageous position has nothing to do with this question. He was one of those who made it impossible to carry out its stipulations. In the face of that impossibility, it is idle to say that the committee ought nevertheless to have carried it out. The law exacts no impossible or unreasonable things : Keeley v. Shanley, 140 Pa. 213; nor will courts presume to ■ understand the interests of contracting parties better than they themselves understand them: Phillips v. Blatchford, 137 Mass. 510. The refusal of the creditors, including the plaintiff, to carry out their agreement of November 13, 1891, upon the lines laid down by the committee appointed to determine upon such, shows that the carrying out of it was not conducive to their interests. The resolution of February 17, 1892, is strong evidence to indicate that, in the opinion of those who passed it, there was no other practicable method of accomplishing the original purpose of that agreement. In the absence of proof of fraud on part of the committee, or of the existence of some feasible way of effecting the object of the agreement of November 13, 1891, without imposing upon the committee burdens and responsibilities not contemplated by the same, those elements become conclusive to establish the impracticability of literal or even approximate performance. It is doubtless true that the offer of the property to the plaintiff at the figure requisite to lift its incumbrances and reimburse the committee was neither the one nor the other. But it was, under the circumstances, at least all the plaintiff was entitled to, and the nearest possible approach to putting him into the position he occupied in the beginning. That he was not in a situation to accept it is his misfortune, not the fault of these defendants. There is nothing in the evidence to make it reasonable to infer that there would have been any difficulty in the way of giving plaintiff a good title. Of course, his liability to pay would have depended upon its procurement. I am at a loss, therefore, to understand by what theory of equity the relief here sought could be justified.</p> <p>The exceptions to the master’s report will be dismissed and the report confirmed.</p> <p>The court entered the following decree:</p> <p>And now, to wit, June 1, 1894, this cause came on to be heard at this term and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed, as follows, viz: That the plaintiff’s bill be dismissed and that the plaintiff pay the costs.</p> <p>Error assigned among others was decree dismissing the bill.</p>

<p>Appeal, No. 213, Jan. T., 1896, by defendant, from judgment of the Superior Court of Pennsylvania, No. 29, Nov. T., 1896, reversing the judgment of C. P. Berks Co., Feb. T., 1893, No. 56.</p> <p>Appeal from the Superior Court.</p> <p>The facts appear by the report of Shelly v. Dampman, 1 Super. Ct. 115.</p> <p>Error assigned was in overruling motion to quash the appeal.</p>

Appeal, No. 211, Jan. T., 1896, by defendant, from judgment of C. P. Berks Co., Aug. T., 1894, No. 68, on verdict for plaintiff. Assumpsit on a promissory note against an accommodation indorser. The facts appear by the opinion of the court below. At the trial the court gave binding instructions for plaintiff. ■ Verdict and judgment for plaintiff for $1,058.53. The court refused a new trial, Eementeout, P. J., filing the following opinion.

Appeal, No. 128, Jan. T., 1896, by plaintiff, from judgment of C. P. Berics Co., Aug. T., 1892, No. 65, on verdict for defendant. Trespass for personal injuries to a child six years of age,. Before Ebmenteout, P. J. At the trial it appeared that about eight o’clock on the evening of June 22,1892, the plaintiff, at that time about six years •of age, was struck and injured by one of defendant’s electric cars.

Appeal, No. 255, Jan. T., 1896, by defendants, from order of C. P. Berks Co., Nov. T., 1895, No. 64, refusing to dissolve an attachment under the act of 1869. Motion to quash appeal. From the record it appeared that plaintiffs issued an attachment under the act of March 17, 1869, on the ground that defendants had fraudulently contracted their indebtedness and were about to assign and dispose of their property with intent to defraud their creditors.

<p>Corporation — Dissolution—Contract—Parties—Stockholder.</p> <p>A corporation owning real estate and having cash in bank was about to dissolve and distribute the cash among its stockholders. It had no debts, except certain bonds secured by mortgage upon its land. The bondholders, after proceedings to prevent such distribution, consented to the sale of the land, and it was sold to B., subject to the mortgage. B. agreed with the corporation to purchase and cancel the bonds and satisfy the mortgage before the time of settlement. Prior to this he had secured an agreement from the bondholders to sell him their bonds at seventy-five per cent of their face value. In order to procure the deed before the performance of the condition to purchase the bonds he agreed in writing, in consideration of the present delivery of the deed, “ to indemnify and save harmless said company, and each and every of the stockholders thereof .... of and from all claims and demands by the holders of said bonds and mortgage; ” and further, that the lien of the mortgage and claims on the bonds should be restricted to the land, “ and that the money now in the treasury of said company, or which may hereafter be in the treasury, shall not be made subject to, or liable for any claim on the part of said bondholders.” B. failed to keep this- agreement; the mortgage was foreclosed, and the money in bank was attached, and lost to the stockholders. Held, (1) that the agreement with B. was intended for the protection of the individual interest of the stockholders; (2) that it was proper to bring an action against B. for the loss of the money in bank, in the name of the corporation, to the use of the individual stockholders; (3) that a judgment in such an action was for the benefit of the individual stockholders, and neither the receiver of the corporation, nor the bondholders were entitled to share in it.</p>

<p>Appeal, No. 59, July T., 1895, by defendant, from judgment of C. P. No. 4, Philadelphia County, March T., 1894, No. 861, on verdict for plaintiff.</p> <p>Assumpsit to recover profits made from a sale of real estate. Before Arnold, J.</p> <p>■ At the trial it appeared that on April 25, 1891, plaintiff borrowed $1,200 from defendant and assigned to him a bond and mortgage for $2,500 as collateral security for the loan. On October 21, 1891, the loan being then within a few days of falling due, and the mortgagor having defaulted in the payment of the interest on the mortgage, plaintiff requested defendant as the holder to sue it out. Defendant informed him that he would do so, but that, if this resulted in a sale of the mortgaged property under ■ the foreclosure proceedings he would not agree to bid the property up beyond an amount sufficient to protect his loan. Defendant accordingly brought suit on the mortgage and obtained judgment for the amount of his debt, with interest and an attorney’s commission, as provided for in the mortgage, of five per cent, the attorney’s commission amounting to $129.73, and the property was advertised to be sold by the sheriff on January 4, 1892. A day or two prior to the sale the defendant again notified the plaintiff in writing that he would not bid the property up for any more than to protect the loan, together with costs and counsel fee, and that if he (the plaintiff) desired to bid on the property for anything above that amount, it would be necessary for him to be on hand. To this he got a reply from the plaintiff’s attorney and agent, Mr. Rambo, that his client would not make a bid at the sheriff’s sale, because it would require a bid making the price of the property at least $5,000. This was because of an existing first mortgage of $3,500, as well as the unpaid taxes and other claims then against the property. In the meantime, and before the sheriff’s sale, the six months having expired, and defendant’s loan being due, the defendant entered up judgment on the note in the court of common pleas, No. 3, in the sum of $1,274.91, being the amount of the debt, with interest and the attorney’s commission of five per cent for collection. When the sheriff’s sale took place the defendant bid the property up to $1,700, at which price it was knocked down to him. He subsequently received from the sheriff, or, rather, had credited on his judgment, the sum of $1,249.50, being all that was realized by the sale after deducting the expenses of the sale and the taxes and municipal claims paid by the sheriff.</p> <p>Defendant, subsequently, through the agency of the firm of B. F. Teller & Brother, of which he was a member, resold the property at a profit.</p> <p>The .court charged in part as follows:</p> <p>It is always very unsafe for a pledgee to buy at his own sale. He cannot do it unless he has an agreement authorizing him to do so, but even then he must pursue the powers given to him strictly. [This was not a sale of a collateral at all; it was simply a change of the thing given as security, that is, the land was substituted for the mortgage. Therefore, the land, even after the foreclosure of the mortgage, remained as a pledge for the debt due by the plaintiff.] [1] The collateral itself had never been foreclosed. The pledge had not been sold to pay that debt. [Therefore, the land remained in the hands of Mr. Teller as a security for as much as Mr. Plucker owed him, and after that had been collected by a sale of the land, the balance realized from the sale belonged to Mr. Plucker, and Mr. Teller is his trustee for it.] [2] Brown v. Tyler, 8 Gray’s Reports, 135 ; Matter of Gilbert, 104 New York Court of Appeals, 209.</p> <p>[If Mr. Teller had said, “I will bid the property up to cover my debt,” and had bid it that far and then stopped instead of buying the property, he could not have been blamed because the properly was sold below its value. He could not have been charged with sacrificing it. When he bid it in and got a deed for it he did something more than protect himself; he became a purchaser of the property pledged and holds it for the plaintiff in place of the mortgage assigned to him. There was a change in the thing pledged, but no determination of the existence of the pledge.] [3]</p> <p>Under those circumstances, I shall have to direct a verdict for the plaintiff for the amount due, after allowing proper credits. I will proceed to state the account.</p> <p>It is agreed that Mr. Teller sold the property to Mr. Heller and received from it with return of taxes and other items $2,647 61 He paid out undisputed items amounting to ... 542 33</p> <p>Leaving a balance of.......$2,105 28</p> <p>[I disallow the commission of $65.00 claimed by Mr. Teller’s firm. He is not entitled to any commission for selling the property.] [6] I disallow the claim of $129.73, which he claims, and will ■ allow him a proper sum hereafter. The credits to which he is entitled, in my judgment, are:—</p> <p>Balance brought forward...... $2,105 28</p> <p>Note of the plaintiff......$1,200 00</p> <p>With interest from October 25, 1891, to February 23, 1892 ....... 24 00</p> <p>I allow him two per cent commission on that amount, although I think it is very generous, as no proceedings were taken except to enter judgment on the note..... 24 00</p> <p>Court costs on that judgment .... 4 37</p> <p>Commission on $1,700 which passed through the sheriff’s hands...... 85 00</p> <p>1,337 37</p> <p>Which leaves a balance of 767 91</p> <p>With interest from October 25, 1891, to February 23, 1892 ....... 126 70</p> <p>Balance due..... $894 61</p> <p>[Gentlemen of the jury, you will render a verdict in favor of the plaintiff for $894.61.] [4, 5]</p> <p>Verdict and judgment for plaintiff for $894.61. Defendant appealed.</p> <p>Errors assigned, were -(1-6) above instructions, quoting them.</p>

<p>Appeals — Interlocutory order for account — Act of June 24, 1895 — Practice, 8. C.</p> <p>Under the act of June 24,1895, P. L. 243, which allows an appeal from an order to account, an appeal will lie from a decree directing the plaintiff in a bill of equity to account, although he has not prayed for an account from the defendants. The defendants in the bill by their demand upon the plaintiff for an account, which he denied their right to have, are virtually the plaintiffs in the issue thus made up, and the plaintiff in the bill is the defendant in this issue.</p> <p>Contract — Partnership—Account.</p> <p>Three brothers, as partners, made an arrangement with a railroad company to haul the company’s cars in a certain street in a city. The railroad company had a right to terminate the arrangement at any time. The evidence tended to show that the company was dissatisfied with the way in which the work was being done. It notified the brothers to withdraw their teams from the street. Subsequently the company made a new agreement with one of the brothers to do the hauling. Held, that the brother who obtained the new contract was not liable to account to his brothers for profits made by him under the new agreement.</p> <p>Equity — Costs—Master's fee.</p> <p>It seems that the Supreme Court will not reverse a decree reducing the compensation of a master unless the decree is palpably unjust and a clear abuse of the sound discretion which the court below has in such matters.</p>

<p>Practice, C. P. — Statement—Pleading—Act of May 26, 1887.</p> <p>To entitle a plaintiff to judgment for want of a sufficient affidavit of defense, his statement under the act of May 25,1887, P. L. 158, must set forth, in clear and concise terms, a good cause of action, by which is meant such averments of fact as would, if not controverted, entitle him to a verdict for the amount of his claim.</p> <p>Promissory notes — Practice—Statement—Pleading.</p> <p>Since the passage of the act of May 25, 1887, plaintiff’s statement in an action upon a promissory note against an indorser, must contain averments of presentation, demand and notice of nonpayment in order to entitle him to judgment for want of an affidavit of defense. The averment that “ said note was duly protested for nonpayment, the costs of protest being $1.64.” is not the legal equivalent of a sufficient averment of presentation and demand at maturity and notice of nonpayment.</p> <p>Contract — Parties—Consideration.</p> <p>The total or partial want or failure of consideration, or the illegality of consideration, may be insisted upon as a defense or a bar between any of the immediate or original parties to a contract.</p> <p>Promissory notes — Accommodation note — Consideration.</p> <p>An accommodation bill or note is one to which the accommodating parly has put his name, without consideration, for the purpose of accommodating some other party who is to use it and is expected to pay it. Between the accommodating and the accommodated parties the consideration may be shown to be wanting, but when the instrument has passed into the hands of a third party, for value, in the usual course of business, it cannot be done.</p> <p>In an action against an indorser upon a promissory note an affidavit of defense is sufficient which avers that defendant indorsed the note at plaintiff’s request, without any consideration, and solely for plaintiff’s accommodation, so that he might more readily use it in his bank.</p>

Appeal, No. 55, Jan. T., 1896, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1895, No. 281, making absolute a rule for judgment for want of a sufficient affidavit of defense. Dean, J., dissents.

<p>Appeal, No. 116, Jan. T., 1896, by plaintiff, from judgment of C. P. Montgomery Co., June T., 1894, No. 158, on verdictfor defendant.</p> <p>Assumpsit on a policy of fire insurance. Before Swártz, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p>

<p>Appeal, No. 214, July T., 1895, by Frances S. Dorian, from decree of O. C. Chester Co., overruling exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in overruling exceptions to auditor’s report.</p>

<p>Appeal, No. 105, Jan. T., 1896, by defendant, from order of C. P. Chester Co., Aug. T., 1895, No. 45, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Scire facias sur mortgage. Before Hemphill, J.</p> <p>The defendant filed an affidavit of defense which was as follows :</p> <p>Henry J. Crump, the defendant above named, being duly affirmed, says that in the above entitled action a writ of sci. fa. on mortgage was served on him whilst returning from the annual encampment of the National Guard of Pennsylvania, in uniform of the National Guard and in command of Company D, Third Regiment of said National Guard; and that he is informed and believes that he was at the time exempt from the service of such writ, and that, therefore, he is not called upon to defend said writ, because, as above stated, at the time of this service he was returning as a soldier and in command of a company from the annual encampment of the National Guard of Pennsylvania.</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>

<p>• Negligence — Injury by fall of electric light pole — Evidence—Question for jury. ■</p> <p>In an action to recover damages for personal injuries to a child eleven years old, caused by the fall of an electric light pole, the case is for the jury where the evidence showed that the pole was thirty-five feet in length, and from twelve to fifteen inches in diameter; that its weight was from twelve to fifteen hundred pounds; that the evidence for the plaintiff showed that there were but three men employed in lowering the pole, while the evidence for defendant showed that there were eight engaged in the work; that the pole was crooked, and that this increased the danger in lowering it; that the pole turned while the men were in the act of lowering it, which was one of the causes of their failure to retain control of it; that there were other and safer methods of taking down poles than the one employed, but that they were not usually resorted to in taking down small poles; that the defendant claimed that the falling of the pole was attributable solely to the nature of the ground in which it was set.</p> <p>Practice, C. P. — Charge of court — Assignments of error.</p> <p>The general effect of the charge of the court rather than a casual expression in it must govern the interpretation or construction of it.</p> <p>In an action to recover damages for personal injuries where the court has charged that the damages' should be limited to compensation for the pain suffered, it is not error for the court to say “thereis no rule of law or morals, nothing but your common sense to guide you; and all that the court can do is to admonish the jury to be fair and just as between the parties, and to admonish them that extravagance either in giving too much or giving too little will not be tolerated by the court.”</p>

<p>Equity — Jurisdiction—Specific performance.</p> <p>A contract to cut and deliver bark to the owners of a tannery from trees in proximity to the tannery may be specifically enforced by a court of equity, when it appears that the supply of bark in the vicinity is limited, and loss of the bark specified in the contract would cause irreparable loss to the tannery.</p> <p>Equity — Service of process — Act of April 6, 1859, sec. 1, P. L. 387.</p> <p>Where a court of equity has jurisdiction of the subject-matter of a contract, but some of the defendants, nonresidents of the county, have not been regularly served with process, on account of the order of court not following the requirements of the act of April 6, 1859, the defect in the order may be corrected after a preliminary injunction has been granted and continued, and an answer filed.</p> <p>Equity — Preliminary injunction — Specific performance.</p> <p>On a bill for the specific performance of a contract to sell bark to the owners of a tannery, the bill charged that the defendants had refused to cany out the contract. The' court granted a preliminary injunction to restrain the defendants from selling and delivering bark to other parties, and this injunction was subsequently continued. After the date of the order continuing the injunction, a third party who claimed that the defendants had sold the bark to him, intervened in the case. Held, that the decree continuing the injunction should be affirmed.'</p>

<p>Landlord and tenant — Covenant in lease — Repairs—Damages.</p> <p>In an action for the breach of a covenant in a lease, evidence of the value of the lease is not admissible, because such value is not the measure of the damages for the breach of a particular covenant in it.</p> <p>A tenant after having been in possession of certain premises for seven years signed a new lease by which he agreed “ to keep the fences in proper repair, the material for which to be furnished by the lessor.” The landlord did not furnish any material, and the tenant did not repair the fences. Held, (1) that the covenant to keep the fences in repair was absolute and not qualified by the words “the material for which to be furnished by the lessor; ” (2) that the tenant was at liberty, and it was his duty, to use such suitable material as was on the premises to repair the fences, and if the landlord failed to furnish material when requested he could purchase it, and deduct the price from his rent; (8) that the tenant was not entitled directly or indirectly to any abatement from the rent, based on the nonperformance of his own covenant.</p>

<p>Appeal, No. 19, Jan. T., 1896, by plaintiffs, from judgment of C. P. Chester Co., Jan. T., 1893, No. 71, on verdict for defendant.</p> <p>Assumpsit for breach of contract. Before Hemphill, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>The first point submitted by the defendant is as follows :</p> <p>[There was no contract between the parties to this suit, obliging the defendant to furnish the plaintiff one hundred sets of wheels per month for the succeeding year, as set out in his statement filed. After listening to argument upon this point as submitted by the defendant, I have taken occasion, in the short space of time I had, to look up the question here involved, the main question, the question of the contract, and have, I confess, with some hesitation and doubt, reached a conclusion.</p> <p>The language of the contract, as set forth in the letter, which, being in writing, is before the court, is singular. It is not the language of a contract. It is an offer of an order on one part and an acceptance on the other. The first offer was that they should enter an order for three thousand sets of wheels during the year 1891. That was declined by Mr. Pierson in his letter of December 20, and in it he makes a counter offer. His offer is, “ I could not at most, undertake over 100 sets per month without shutting out my old customers, which I would not wish to do, and judging from your first letter I did not anticipate you' wanted so many as you name in your letter.” Then he makes this offer, “ If it aat.11 be any advantage to you to get the wheels in lots about as above mentioned, 100 sets per month, I Avill do my best to serve you.”</p> <p>I interpret that as being a conditional offer, that he will accept the order for one hundred sets per month, and -will serve the plaintiffs, or fill that order to the best of his ability. It was that offer which Mr. Ames afteiwards accepted in his letter of January 2, in which he says, “ Replying to your kind favor of the 80th ult., which reached us to-day, will say that you may enter our order for the 100 sets per month, as your letter indicates,” that is, subject to serving them to the best of his ability.</p> <p>I look on that as a condition accompanying the offer, and consequently not an absolute contract to furnish on his part, or on the other side to receive or take one hundred sets of wheels per month, and therefore not binding on either.</p> <p>• Under those circumstances I must affirm the defendant’s first point, which takes the case from the jury.] [1]</p> <p>Gentlemen of the Jury: As you have heard, [this has resolved itself into a question of law on the interpretation of a written contract, which is a matter for the court. I have interpreted it in such a way as to relieve you from further consideration of the case, merely directing you to find a verdict for the defendant for $138.22.] [2]</p> <p>Verdict and judgment for defendant for $138.22. Plaintiffs appealed.</p> <p>Errors assigned among others were (1, 2) above instructions, quoting them.</p>

<p>Statute of frauds — Promise to pay the debt of another — Act of April 26, 1855.</p> <p>The act of April 26,1855, P. L. 308, which directs that “ no action shall be brought whereby to charge .... the defendant upon any special promise to answer for the debt or default of another unless the agreement .... shall be in writing,” was meant to relieve an alleged guarantor or surety; not to relieve one who had a personal beneficial interest in the assumption.</p> <p>As a general rule, when the leading object of the promise or agreement is to become guarantor or surety to the promisee for a debt for which a third party is and continues to be primarily liable, the agreement, whether made before or after or at the time of the promise of the principal, is within the statute, and not binding unless evidenced by writing. On the other hand, when the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, his promise is not within the statute.</p> <p>Plaintiff held a judgment note against P. for $1,000 with power of attorney to confess judgment. Defendant entered a judgment against P. for $5,000, issued execution and levied on all the real and personal property of P. The amount actually due and payable by P. to defendant was $200. Defendant, knowing of the existence of plaintiff’s judgment note, sent for her and said “ I will stand by thee, and see thee is paid every cent, if thee says nothing and does nothing.” Plaintiff did not enter her judgment, and at the sheriff’s sale defendant bought in the property, and was credited with the amount of his own judgment. Held, that the undertaking of defendant was not to pay P.’s debt, but his own, and that the plaintiff was entitled to recover from him the full amount of her judgment note.</p>

Appeal, No. 118, Jan. T., 1896, by defendant, from judgment of C. P. Scbuylkill Co., Nov. T., 1895, No. 114, on verdict for plaintiff. Feigned issue to determine the ownership of eighty-two steel rails attached as the property of the Inter-County Street Railway Company.

<p>Insurance — Life insurance — Insurable interest — Assignment of policy —Contract.</p> <p>Two policies of insurance, one for'$1,000 and the other for $2,000 were made payable to B., the son of the assured. B. assigned both policies to L., under an agreement that at maturity of the policies $500 of the amount realized from the smaller, and $1,000 of the amount realized from the larger policy should be paid to B., and that in the event of the failure of L. to pay all charges and assessments as they became due, the assignment should become void, and that all benefits to arise from the policies should revert to the assignor. Subsequently B. assigned his right to the money to be received by him under these assignments-together with his remaining interests in the policies to K. L. paid assessments amounting to $2,813.40, and the total amount due on both policies at the death of the insured was $2,774.50. Neither of the assignees, at the time of the assignments to them, had any insurable interest in the life of the insured. The amount of $2,774.50 was paid into court by the insurance company, and an issue framed between the assignees of the policies to determine their rights to the fund. L. was allowed to withdraw $1,274.50, being the amount in excess of $1,500 reserved in the assignment by B. Held, (1) that L. was not entitled to anything in excess of the amount which he had been allowed to withdraw from court; (2) that by his agreement he limited the amount which he was to receive to the balance remaining after the payment of the $1,500; (3) that aside from the assignment L.’s right to receive anything was-based upon the equity that he should have restored to him what he paid to keep the policies alive, and that this equity did not arise from the fact of payment alone, but from the fact that payment was made in discharge of a duty or obligation under his agreement; (4) that he could not, to free himself from his agreement, assert that it was against public policy and seek in his own interest to have the agreement set aside in order that he might take advantage of an equitable doctrine which would give him more; (6) that he had already received what he had agreed to take, and whoever might be entitled to it, he had no further claim upon the fund in court.</p>

Appeal, No. 216, Jan. T., 1896, by Edwin F. Torrey, executor, and Kate S. T. Barckley, executrix, of Henry M. Seely, deceased, who was executor of Frederick M. Crane, deceased, from decree of O. C. Wayne Co., No. 402, Docket I, sustaining exceptions to an executor’s account. Exceptions to executor’s account. The parties agreed upon the following statement of facts.

Appeal, No. 90, July T., 1895, by Jeremiah Gelwicks, guardian of Carrie May Snider, from decree of O. C. Franklin Co., overruling exceptions to auditor’s report. Exceptions to auditor’s report. The facts appear by the opinion of the Supreme Court. Brrors assigned were in overruling exceptions to auditor’s report.

Appeal No. 70, Jan. T., 1896, by defendant, from orders of ,C. P. Northampton Co., June T., 1893, No. 10, refusing to dissolve an attachment under the act of 1869, and entering judgment for want of a sufficient affidavit of defense. Attachment under the act of March 17, 1869, P. L. 8. Rule to dissolve attachment. Rule for judgment for want of a sufficient affidavit of defense.

<p>Practice, O. 0. — Restatement of account.</p> <p>The orphans’ court may permit an administratrix to restate an account where it is shown to the court that the account as originally filed blended the proceeds of the real and personal estate of the decedent, and did not include certain noninventoried items which the administratrix had collected.</p> <p>Practice, 8. 0. — Auditor—Finding of fact.</p> <p>Where an administratrix states an account of the proceeds of sale of real estate, and the whole fund is awarded to a judgment creditor, the validity and priority of whose lien has not been denied, the Supreme Court will not disturb the award because the auditor did not make a distinct finding that the judgment was first in point of lien.</p>

Appeal, No. 201, Jan. T., 1896, by defendants, from order of C. P. Clinton Co., Sept. T., 1895, No. 88, striking off appeal in forma pauperis from award of arbitrators. Motion to strike off appeal from award of arbitrators. The facts appear by the opinion of Mayer, P. J., which was as follows: The plaintiffs instituted an action of ejectment, and issued a rule to arbitrate, and obtained an award against the defendants for the land described in the writ.

<p>Insurance — Life insurance — Insurable interest — Person in loco parentis.</p> <p>A young woman who is befriended through motives of benevolence and kindness by an elderly man, who sends her to school, and pays her expenses, and subsequently sends her to a commercial college to learn stenography and typewriting, where she remains until his death, has an insurable interest in the life of her benefactor.</p>

<p>Appeal, No. 401, Jan., T., 1895, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 64, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit for goods sold and delivered.</p> <p>From the record it appeared that the action was instituted by attachment under act of .March 17,1869, P. L. 8, on November 15, 1898, to recover the price for which merchandise had been sold by the plaintiffs to the defendant. On November 16, 1893, a rule to dissolve the attachment was allowed. On December 22, 1893, a statement of claim was filed, which was replied to by affidavit of defense on December 30, 1893. On January 5,1894, the defendant was ruled to plead, and on January 16, 1894, a plea was filed. On February 12, 1895, the rule to discharge the attachment was discharged. On February 13, 1895, after the case was at issue, a rule for judgment for want of sufficient affidavit of defense was allowed. The affidavit of defense substantially denies the right of the plaintiffs to maintain the present suit because none of the items of claim was due at the time this suit was brought, the term of sixty days credit not having expired.</p> <p>Upon the argument of the rule for judgment for want of sufficient affidavit, it was contended and argued that the effect of sustaining the attachment and discharging the rule to dissolve the attachment, was to make the debt immediately due, despite the fact that the affidavit of defense alleged that it was not due.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was above order.</p>

Appeal, No. 399, Jan. T., 1895, by tire Free Library'of Philadelphia, from decree of O. C. Phila. County, July T., 1894, No. 193, overruling exceptions to adjudication. Exceptions to adjudication. The facts appear by the opinion of the Supreme Court. The auditing judge, Ferguson, J., held that the legatees took the legacies free and clear of any condition whatever.