Volume 175 — Pennsylvania State Reports

Appeal, No. 329, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1894, No. 536, refusing to take off nonsuit. Trespass for personal injuries. Before Arnold, J. At the trial it appeared that plaintiff was injured after dark on October 31,1893, while approaching with a companion named O’Neill, Wissonoming station, on the New York branch of defendant’s railroad.

Appeal, No. 189, July T., 1895, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1894, No. 964, discharging rule to dissolve attachment. Rule to dissolve attachment.

Appeal No. 8, July T., 1895, by defendant, from judgment of C. P. No. 4, Philadelphia Co., June T., 1893, No. 383, on verdict for plaintiffs. Assumpsit for goods sold and delivered. Before Willson, J. This was an action of assumpsit to recover §658.87 for furniture alleged to have been sold to Michael B. Andress, Horace G. Craven and Charles C. Haines as members of an unincorporated association, for the furnishing of a club house known as Gordon Heights Inn.

<p>Appeal, No. 449, Jan. T., 1895, by defendants, from decree of C. P. No. 8, Phila. Co., March T., 1893, No. 642, on bill in equity.</p> <p>Bill in equity for the construction of a deed of trust.</p> <p>From the bill and answer it appeared that on April 10,1877, Elisha Lewis, Jr., executed a voluntary deed of trust to the Fidelity Insurance, Trust and Safe Deposit Company, of “ all the personal property and estate whatsoever and wheresoever ” to which he was entitled under the will of his father, Elisha Lewis, Sr. His elder brother, A. Nelson Lewis, was made the principal beneficiary in case of a failure of children. No provision was made therein for any second wife. There was no clause of revocation.</p> <p>A schedule was attached to said deed of trust, headed “ Schedule of the property and estate assigned, transferred and set over unto the Fidelity Insurance, Trust and Safe Deposit Company upon the uses and trusts mentioned and set forth in the foregoing indenture.” This included cash, shares of stock and bonds. No mention was made of the annuity or rent charge given to him by the will, which is the subject of the present controversy.</p> <p>Lewis’ first wife died. He married again. In October, 1890, he made a second deed of trust to the same trust company, by which he conveyed to it, in trust, all his interest in certain warehouses and lots of ground in the city of Baltimore, state of Maryland, and in and to any sums, principal or income, which might arise thereout. By this deed a spendthrift trust was created for himself during his life. Upon his decease the income was to be paid to his second wife during her widowhood. There was a remainder over of a certain sum to his counsel, in compensation of services which had been rendered to him, and to certain nieces of his wife, or to his children.</p> <p>By the will of Elisha Lewis, Sr., the warehouses in the city of Baltimore were devised to Albert Nelson Lewis, in fee, subject to the payment to Elisha Lewis, “ his heirs and assigns,” of the sum of $1,000 per annum, in equal quarterly installments of $250 each so long as the warehouses should not rent for less than $6,000 per annum. This annuity, in case the rental fell to less than the designated sum, was to be reduced to $900 per annum. This annuity, and those given to the other children, were declared “ to be a lien and charge upon the said warehouses.”</p> <p>On the 18th day of September, 1878, A. Nelson Lewis, finding that the rental had fallen to a sum considerably less than $6,000 per annum, filed his petition in the circuit court of Baltimore, making Elisha Lewis and his then wife, and the three other annuitants named in said will, Mary Lewis, William Melville Lewis and Augustus Jarrett Lewis (now called Jarrett Thomas Lewis) respondents. By said petition he demanded a decree of construction of his father’s will, and that his right, and those of the annuitants, should be ascertained and defined.</p> <p>January 27, the Baltimore court decreed that no personal liability for the payment of the annuities attached upon Albert Nelson Lewis beyond the value of the property devised to him and the income and rent to be derived therefrom. It was decreed that by said will there was vested a fee simple in said premises in said Albert Nelson Lewis, “subject to a charge and lien thereon in favor of said annuitants to secure to them the payment of their said annuities,” and that the annuitants were entitled to have the rents and profits applied to the payment of their said annuities as in the decree specifically set forth. It was ordered that said Albert Nelson Lewis should account and pay, in each year, out of the gross rental of the premises, after paying taxes and public charges and assessments and necessary expenses of maintenance, to each of the annuitants, the sum of $1,000 per annum if the said rents should suffice to pay the same, and if the same should be insufficient, that then the net balance of the rents should be equally and ratably divided in fee simple among the annuitants. It was decreed “that the interest of each annuitant in said property, and the right of each to receive his or her annuity from the same as above de- " creed, do and shall constitute a lien and charge upon the said property and upon the income thereof, which right, lien and charge upon said property is hereby decreed to be the absolute property of each annuitant descendible to his or her heirs at law as real estate.”</p> <p>It was further decreed that Albert Nelson Lewis should not receive for his own use any part or portion of said rents or income “ during any year of its rental, unless and until there shall have been paid from said rents and income the current annuities for- that year.” It was further ordered “ that in the event of the sale of said property, the proceeds of the same shall first be applied to the payment of each annuitant, his or her heirs and assigns, of a sum of money sufficient to produce, at six per cent interest, an income of $1,000 per annum, if said proceeds shall be sufficient; and if insufficient, then that said proceeds shall be first applied to pay to each annuitant, his or her heirs or assigns, a sum of money sufficient, at six per cent,. to produce au income of $900 per annum, and after fully paying and satisfying said annuitants, their heirs and assigns, as above decreed, the residue of said proceeds, if any, shall be the property of said Albert Nelson Lewis, his heirs or assigns, owners of said property.”</p> <p>After said decree Albert Nelson Lewis continued to pay to the annuitants so much money, not exceeding the sums named in the will, as were realized out of the rents of the warehouses. The latter were subsequently sold, and some $9,000 were realized as the share of the proceeds payable to Elisha Lewis, Jr. This fund was paid to the Fidelity Insurance, Trust and Safe Deposit Company, and the present bill was filed for the purpose of determining whether it held the same under the first or under the second deed of trust.</p> <p>The court entered a decree that the proceeds of the sale of the Baltimore property should be retained and accounted for by the trustees in accordance with the provisions of the deed of trust of October 18, 1890.</p> <p>Error assigned was above decree.</p>

Appeal, No. 219, July T., 1895, by the Women’s Christian Association of Philadelphia, from decree of O. C. Phila. Co., April T., 1895, No. 116, sustaining exceptions to adjudication. Held: being given to seven grandchildren, there named, in equal shares, and at the death of the survivor of the daughters and daughter-in-law, the principal to be divided among these seven grandchildren equally, subject to the annuities to the son, the other daughter-in-law and her daughter.

Appeal, No. 16, Jan. T., 1896, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1895, No. 714, dismissing bill in equity. Bill in equity for an injunction to restrain the construction of a passenger railway on Fairmount Park.

Appeal, No. 41, Jan. T., 1896, by Charles B. Felton, from order of C. P. No. 1, Philadelphia Co., March T., 1895, No. 718, discharging rule to set aside sheriff’s sale. Rule to set aside sheriff’s sale. Before Brégy, J. From the record it appeared that the property in question, fourteen acres of land, was sold on June 3, 1895, by the sheriff to William M. Frost for the price of $4,500.

<p>Appeal, No. 69, Jan. T., 1896, by • plaintiffs, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1892, No. 89, on verdict for defendants.</p> <p>Replevin for cotton goods. Before Willson, J.</p> <p>Firth v. Hamill, 167 Pa. 388.</p> <p>At the trial it appeared that plaintiffs and defendants were both creditors of the firm of Albert Crenshaw & Co., manufacturers of cotton goods, who failed in the fall of 1892. At the time of their failure a large amount of their goods in course of finishing were in possession of the defendants at their works in Philadelphia, known as the Providence Dye Works. The firm of Crenshaw & Co. assigned to the plaintiffs all their right in these goods. The plaintiffs tendered to the defendants the amount due for the finishing; of the goods in question and demanded their delivery. This was refused, and the plaintiffs then took possession of the goods by replevin, the defendants claiming the right to the goods under the general lien for the balance of their general account, as well as under a specific lien for the work done on the goods in question. The dyeing orders sent by Crenshaw & Company’s customers on blanks furnished by the dyers contained the following notice:</p> <p>“Notice. — All goods received only upon condition that they are subject to a general lien, not only for the dyeing and furnishing thereof, but also for the balance of any former account due.”</p> <p>The court charged in part as follows :</p> <p>[There is another question which, with the view I take of the case, I feel bound to present to you. I have already said in substance that if the course of dealing between these parties was exhibited, as is claimed by the defendants, by numerous papers, detailing in a clear and distinct form a notice which the defendants relied upon, if you believe there was such a practice, you might infer that the defendants were right in their claim, that part of the case standing hy itself. Yet it appears that the case is to be modified somewhat, if you believe there was a distinct arrangement between the defendants and Crenshaw & Co. whereby their dealings were transacted on a different basis, and as I look at the case now, it seems to me, if the arrangement under which the defendant firm undertook to dye the finished goods for Crenshaw & Co. was an arrangement of credit, whereby they undertook to give them a specific credit and deliver their goods to them, and allow them thirty or sixiy days or any other time, then they gave up their right of lien under ordinary circumstances. That is, if they agreed to do this work and deliver the articles on which they had done it to Crenshaw & Co., under an arrangement that they would wait thirty or sixty days or any other given time before they were paid, they gave up the right of possession, and having given up that right, they gave up the right of lien.</p> <p>But in order to make that part of the case, if you believe that was so, operative, you should find in the evidence that which will justify you in believing that was a definite arrangement which was made between the parties; not that it was a mere talk about accommodation, not a conversation which took place some time or other when the firm of Crenshaw & Co. wanted a little more accommodation or a little more time and the defendants were willing to give it, but you must find that was the bargain between the two concerns, under which the defendants agreed to do certain work and Crenshaw & Co. agreed as to payment.</p> <p>I do not consider that the defendants lost any right of lien which they had by simply accommodating the firm of Crenshaw & Co.; they did not lose their right of lien by occasionally or frequently or habitually allowing Crenshaw & Co. to take away goods and pay for them after thirty or sixty or ninety days if the course of business was, as it seems to me to be the’ case, that there was a constant shifting, new goods coming in to take the place of those which were taken away. It is only on the basis of your seeing in the evidence that which leads you to believe that the defendants entered into a definite agreement with the firm of Crenshaw & Co. that they would do the work for them on credit, and that that continued down to the time when the firm of Crenshaw & Co. failed.</p> <p>Perhaps the evidence on that point is not as satisfactory or as clear, definite, and emphatic as it ought to be; yet as I look at the case, with the view I take of the law, it seems to me I am bound to leave that question to you.] [1]</p> <p>It was alleged by appellants that this error was that, in so charging, the court submitted to the jury as a disputed question of fact whether the dealings between Crenshaw & Co. and the defendants had been on a general agreement for credit, when by the testimony that fact was established and there was no testimony to justify an inference to the contrary.</p> <p>Plaintiffs’ point was as follows :</p> <p>6. Under all the facts of the case the verdict must be for the plaintiffs. Answer: This point I refuse. [2]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

Appeal, No. 54, Jan. T., 1896, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1898, No. 155, on verdict for defendant. Interpleader to determine the ownership of a beneficial fund. Before Sultzberger, J. On June 29, 1882, Albert De Grote became a member of the Yardley Lodge of the Ancient Order of United Workmen, and designated as beneficiary “ Mary Jane De Grote bearing relationship to myself of wife.” De Grote never changed this designation.

Appeal, No. 42, Jan. T., 1896, by-plaintiff, from order of C. P. No. 4, Phila. Co., Sept. T., 1894, No. 800, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit to recover the difference between defendants’ bids at a first and second sheriff’s sale. Before Arnold, J. Defendants filed the following affidavit of defense.

Appeal, No. 40, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 2, Philadelphia County, Sept. T., 1898, No. 596, on verdict for defendant. Assumpsit to recover the purchase price of an interest in an oyster boat and oyster beds in Delaware bay. Before Penny-packer, J. The facts appear by the opinion of the Supreme Court. The court charged the jury to find for the defendant. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was above instruction.

Appeal, No. 230, July T., 1895, by Mary T. Walter, from decree of O. C. Phila. Co., directing sale of real estate. Petition for the sale of real estate. The petition averred that the personal property of the decedent was not sufficient to pay his debts.

<p>Foreign corporation — Stockholder—Liability of Pennsylvania stockholder *n ^~amaS C°rPoraiion‘</p> <p>In an action in this state by a foreign creditor of a foreign corpora-ti°n against a stockholder, a citizen of Pennsylvania to recover liabili-</p> <p>ties imposed on stockholders by the law of the state where the company was incorporated, an affidavit of defense is sufficient which avers that suit had already been brought and judgment obtained against the defendant in the state where the company was incorporated on his liability as a stockholder, and that execution had been levied on his real estate there.</p> <p>The liability imposed by the laws of Kansas upon stockholders of corporations for an additional amount, equal to the stock owned by them, is contractual in character, and may be enforced outside of the limits of the state of Kansas.</p> <p>Foreign corporation — Foreign creditor — Resident stockholder — Receiver.</p> <p>A single foreign creditor of an insolvent Western Farm Mortgage Trust Company of the state of Kansas, cannot sue one of its stockholders, a citizen of Pennsylvania, in Pennsylvania, in an action of assumpsit, upon the liabilities imposed by the laws of Kansas upon the stockholders to pay the debts of a corporation to an amount equal to the stock owned by them, if it appears that a receiver has been appointed by a court having jurisdiction ■over the corporation. Such liability is an asset for the payment of the ■creditors of the corporation and the receiver alone has the right to sue for its collection.</p> <p>Corporation — Creditor—Receiver.</p> <p>A receiver represents not only the corporation but all its creditors, and as to the latter it is his duty to secure all the assets available for their payment. For this purpose he succeeds to their rights, and has all the powers ■to enforce such rights that the creditors before his appointment had in their own behalf, even though such powers be beyond those which he has as the representative of the corporation alone. As each creditor may sue, the right is equal in all, and common to all, and hence the receiver who represents all alike is the proper party to assert the common right and pursue the common remedy for the common benefit. Per Mitchell, J.</p> <p>If any creditor, or class of creditors have special claims against special liabilities, that does not deprive the receiver of the right or relieve him from the duty to gather them all into his hands for proper distribution. In this manner the rights of all will be protected and justice be done in a single proceeding in which every one will get what is his due, no one will be called upon to pay more than his fair proportion, and the expense, delay, inconvenience and inevitable occasional injustice of separate actions by different creditors against different stockholders with their attendant legion of resulting actions for contribution will be avoided. Per Mitchell, J.</p>

<p>Trade-mark — Falling off of business — Evidence—Question for jury.</p> <p>In an action to recover damages for an alleged wrongful use of a trademark, the plaintiff may give evidence of the falling off of his custom concurrently with defendants’ beginning to use the trade-mark; the inference that the falling off of custom was due to the defendants’ use of the trademark is for the jury.</p> <p>Trade-m ark — Label— Custom.</p> <p>No custom of other people even in the same trade can excuse one man for taking another’s property without his consent.</p> <p>In an action to recover damages for the infringement of an alleged trademark, “Burgess,” as applied to an atomizer, it appeared that defendants not only used the name “Burgess,” but also the exact pictorial representation of the article. Defendants claimed that they supposed the name was a merely descriptive one. which any one might use, and that there was a custom of the trade for dealers to “borrow” each other’s cuts for advertising purposes. Held, (1) that though the defendants may have acted ignorantly and innocently, their acts were susceptible of a different interpretation, and it was for the jury to say wh&t was their true intention ; (2) that the trial judge could not have, instructed the jury that such a custom, if proved, would be a defense.</p> <p>Trade-mark — Name—Invention.</p> <p>When an inventor and manufacturer of a new instrument puts his own or a partner’s name to it, the presumption is that he does so to indicate its origin and maker, and intends the name as a trade-mark.</p> <p>In an action to recover damages for the infringement of an alleged trade-mark, it appeared that the plaintiff with the aid of a physician invented an atomizer, lie did not patent it, but he adopted and attached the name of his partner, Burgess, to distinguish his make of atomizer, and also invented and used a certain pictorial representation of it for the same purpose. Defendants used the same name and the same pictorial representation for their atomizer. It appeared that other parties also used the name, Burgess, and the same picture for their atomizers. The evidence showed that it was a rule of professional ethics among surgeons and physicians not to take a patent or adopt a trade-mark for an invention or improvement in a surgical instrument. Held, (1) that as plaintiff was not a physician, but an inventor and instrument maker, there was no ground for defendants to assume that the name, Burgess, was merely descriptive of the article, and free for all to use; (2) that the fact that other parties used the name and the picture as public property did not justify the defendants in so using them.</p> <p>In an action to recover damages for the alleged wrongful use of a name adopted by the plaintiff as a trade-mark, it is proper for the court to refuse to charge that if defendants did not so use the names as to deceive the public, the plaintiff could not recover. In such a case it is not necessary that the public should be actually deceived in order to afford a right of action. All that is required is that the infringement should have a tendency to deceive. The gist of the action is the intent to get an unfair benefit from another’s trade; actual deception of the public is only material to the question of damages.</p>

Appeal, No. 120, July T., 1895, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1894, No. 1613, on verdict for defendant. Appeal by the city of Philadelphia from an award of a road jury in favor of Thomas R. Patton. Before Gordon, J. At the trial it appeared that plaintiff owned property at Tioga ,and Emerald streets in the city of Philadelphia.

<p>Appeal, No. 162, July T., 1895, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1893, No. 172, M. L. D., on verdict for plaintiff.</p> <p>Scire facias sur municipal hen for paving.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court directed a verdict for plaintiff reserving the following question:</p> <p>Whether under the several acts of assembly and city ordinances offered in evidence, the defendant is liable.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in'entering judgment for plaintiff on point reserved.</p>

<p>Contract — Foreign attachment — Corporation—Equity—Insolvency. Certain parties, called for convenience the subscribers, advanced money to a land company on condition that the money should be expended by the company in payment for and improvement of a tract of land already purchased for the company, and that the entire proceeds of sale of lots should be paid over to a certain trust company to repay the subscribers, and in the meantime, to secure the latter, the entire capital stock of the Land Company was to be deposited with the trust company. The contract was carried out, and the proceeds of the sale of parts of the land was paid to the trust company for the subscribers; but before actual distribution to the latter, the money was attached by the plaintiff as the money of the Land Company. Apart from the plaintiff’s judgment there was nothing to show that the Land Company was insolvent. It was not shown that the subscribers were the promoters, officers or stockholders of the Land Company. Held, (1) that the effect of the payment to the trust company as agent for the subscribers was the same as if the money had been paid to the subscribers themselves; (2) that even if the Land Company were insolvent and the parties had so acted as to make the agreements fraudulent as to creditors, the remedy was by bill in equity, and not by the collateral proceeding of attachment; (3) that the plaintiff had no standing in the attachment proceedings to claim the money.</p>

<p>Municipalities — Contract, lighting streets for five years — Contract for cities of the third class — Act of May 23, 1889.</p> <p>Under the act of May 23, 1889, article 5, section 3, clause 41, P. L. 277, authorizing cities of the third class “ to provide for and regulate the lighting of streets with gas or electric lights or light by other means,” a city of the third class has a right to enter into a contract for lighting its streets for a term of five years, and there is nothing in article 9, section 5, or in article 6, section 10, or in article 4, section 6, of the same act, which imposes any limitation upon the power of the city to enter into such a contract.</p> <p>The provision in article 9, section 5, of the act of May 23, 1889, P. L. 277, requiring the controller to certify upon a contract which involves an appropriation of money, the estimated amount of expenditure thereunder for the ensuing fiscal year, does not interfere with the right of the municipality to make a contract for lighting streets for a term of years.</p> <p>If a contract involves an appropriation of money it is the duty of the controller to certify upon it the estimated amount of the expenditure thereunder chargeable against the item of appropriation on which it is founded. He does not make or supervise the estimate but he is required to certify it on the contract. If the contract is to furnish light or water for a term of years to be paid for monthly, quarterly or annually, he should certify upon it the estimated amount of expenditure thereunder for the ensuing fiscal year. In other words, it is his duty to certify upon it the estimate made by the proper department in accordance with the fact. Pek McCollum, J.</p>

Appeal, No. 253, Jan. T., 1896, by plaintiff, from judgment of C. P. Berks Co., Oct. T., 1895, No. 63, on verdict for defendant. Case stated to determine the liability of defendant under a contract for electric lighting.

<p>Trusts and trustees — Mortgage—Payment.</p> <p>A trustee under a spendthrift trust invested a portion of the trust funds in a mortgage upon real estate owned by the cestui que trust. The cestui que trust, who was a woman, subsequently made an assignment for the benefit of creditors. It appeared that the income of the trust estate was paid to the cestui que trust with the interest money charged against her; that of this and of the nonpayment of interest by the assignee she had full knowledge; that she was not ignorant of business matters and had had large experience as to banking and commercial transactions; that she scrutinized the accounts of her trustee and knew every item charged against her, and that she acquiesced in the interest being charged against her in the trustee’s account. Held, that the trustee could not claim any interest on the mortgage out of the cestui que trust’s assigned estate.</p>

Appeal, No. 89, Jan. T., 1896, by Marie S. Martin, from decree of O. C. Phila. Co., overruling exceptions to adjudication. Exceptions to adjudication. The facts appear by the adjudication of Penrose, J., which was as follows : The decedent died June 27, 1883.

Appeal, No. 100, Jan. T., 1896, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1893, No. 572, on verdict for plaintiff. Trespass for personal injuries. Before Brégy, J. At the trial it appeared that about 8 P. M. on January 16, 1893, plaintiff fell upon some ice and snow which, had accumulated on the sidewalk in front of the premises 1210 Walnut street in the city of Philadelphia.

Appeal, No. 167, Jan. T., 1896, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1894, No. 751, on verdict for plaintiff. Appeal from report of jury of view.

<p>Appeal, No. 142, Jan. T., 1896, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1894, No. 830, refusing to take off nonsuit.</p> <p>Trespass for death of plaintiff’s husband. Before Biddle, J.</p> <p>At the trial it appeared that in April, 1894, Philip M. Mann was the only passenger upon one of the defendant’s horse cars, which was being driven west on Master street; one man being both driver and conductor. Without any invitation upon the part of' the driver the deceased went upon the front platform and took the driver’s seat, a high stool, narrow at the base, without arms or other protection. When the car turned the switch at Seventh and Master streets, the deceased was thrown from the stool and killed. At the conclusion of the plaintiff’s case the defendant moved for a nonsuit.</p> <p>Judge Biddle : “ What excuse is there for any man on boarding an empty car to take the driver’s seat and run the risk of that position ? The idea of a man of sixty years subjecting himself to that risk is, in my mind, absurd; and therefore I will grant a nonsuit.”</p> <p>* The court subsequently refused to take off the nonsuit.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal. No. 124, Jan. T., 1896, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., Jan. T., 1896, No. 124, on verdict for defendant. Appeal from the report of road jury. At the trial it appeared that plaintiffs’ testator in 1876 bought certain land bounded by the south side of Allegheny avenue in the city of Philadelphia.

<p>Appeal, No. 185, Jan. T., 1896, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1895, No. 943, on verdict for plaintiff.</p> <p>Mitchell, J., dissents.</p> <p>Trespass for personal injuries. Before Willson, J.</p> <p>At the trial it appeared that plaintiff was injured on January 9,1895, while driving a wagon on Lancaster avenue in Philadelphia. The defendant company operated a double track railway on Lancaster avenue. Shortly before the accident there had been a severe snow storm, and the snow was piled in banks between the sidewalks and the tracks. Plaintiff was driving his wagon on the west-bound track when he heard a car approaching from behind; he turned into the east-bound track, and after the car had passed he drove on for twenty or twenty-five feet when he turned back towards the west-bound track, but before he could reach the track his wagon was struck by a car on the east-bound track. There was evidence that this car was run at a very high rate of speed. There was also evidence that a butcher’s wagon was being driven immediately behind the west-bound car, and that it was the presence of this wagon which prevented plaintiff from turning sooner into the westbound track. The accident occurred to the east of Thirty--seventh street. It appeared that there is steep descent from Thirty-eighth street to the point where plaintiff was struck.</p> <p>Defendant’s points were among others as follows :</p> <p>1. If the jury believe from the evidence that the injury complained of was caused by the fact that just as the plaintiff was about to return to the west-bound track a butcher cart or wagon drove up suddenly behind the west-bound car, thereby either negligently or maliciously preventing plaintiff from driving into the west-bound track and compelling him to turn suddenly from the west-bound track to the east-bound track, and that immediately as he so turned the east-bound car ran into his wagon, and that had it not been for the intervention of the said wagon plaintiff would have gotten clear of the east-bound track in time to have avoided the collision, the said wagon being an intervening cause of the injury for which the defendant company was not responsible, the verdict must be for the defendant, even though the jury may also believe that the said defendant’s trolley car was running at a high and reckless rate of speed. Answer: Refused. [1]</p> <p>2. As the uncontradicted testimony shows that the accident which caused the injury complained of arose from the intervention of an independent cause, for whose action the defendant company is not responsible, the verdict must be for the defendant. Answer: Refused. [2]</p> <p>3. The evidence shows that the plaintiff was guilty of negligence which contributed to produce the injury complained of, and therefore he cannot recover. Answer: Refused. [3]</p> <p>4. Under all the evidence the verdict must be for the defendant. Answer: Refused. [4]</p> <p>The court charged in part as follows :</p> <p>[Now, some of the witnesses called for the defendant say that he was prevented from getting back by reason of a butcher wagon driven upon that west-bound track, and that the driver of the butcher wagon shouted to him, or warned him, not to come on the track at that moment. Perhaps, if he had, he would have had an equally severe collision. They say that after he drew back upon the east-bound track, and not long after, for it could not have been long, he was struck by a car which was coming east upon Lancaster avenue. Now, that is just the point of time and space to which you are to direct your attention. Was that car which was coming east managed in such a way — so carelessly and so negligently, with regard to the position that the plaintiff was in — that the fault must be said to have been the fault of the motorman of that car, and his fault alone ? If so, the plaintiff is entitled to recover j if not, he is not entitled to recover. You ought to look at that question with absolute candor and try to settle it properly.] [5]</p> <p>Verdict and judgment for plaintiff for $1,250. Defendant appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

<p>Negligence — Street railways — Electric car — Collision of wagon.</p> <p>In an action against a street railway company to recover damages for personal injuries, it appeared that one of defendant’s electric cars struck a carriage immediately behind a wagon driven by the plaintiff, and forced the carriage against the plaintiff’s wagon with such force as to cause the plaintiff to be thrown to the ground and injured. The court charged in effect that the plaintiff could not recover if the accident was due solely to the neglect of the driver of the carriage; that if both the driver of the carriage and tbe motorman were jointly negligent, plaintiff could recover. Held, that the instruction was not erroneous.</p> <p>Negligence — Damages—Charge of court.</p> <p>In an action to recover damages for personal injuries the court charged as follows: The plaintiff’s injury was a serious one. I think the evidence is that it is a permanent injury, but you are the judges of the weight of the evidence as well as of the credibility of the witnesses. It seems to me by the weight of the testimony that his injury is a permanent one. But while it may be a permanent injury, it is clear that it does not amount to a total disability of the plaintiff; it is not a total disability from which he suffers, but a partial one. No one would undertake to say that because he has a lame ankle he could not work for a living. There may be some things which he could not do, and the fact of his lameness may be a very serious drawback to him in whatever he would do. It is the case, therefore, of a partial but permanent disability1-, and you are to assess the damages, if you find for the plaintiff, on that basis. You are not to find damages which would represent a total destruction of the plaintiff’s ability, but for a partial injury to his ability, and you are to judge of that as reasonable men, doing nothing in anger or from prejudice, but awarding what you think simply a fair, just, and full compensation for the actual inconvenience, pain, injury, loss, and suffering which the plaintiff has undergone. Held, that the instruction was without error.</p>

<p>Corporations — Life estate — Remainder man — Principal and income.</p> <p>The property of a corporation, after payment of liabilities, belongs to the existing stockholders, who, therefore, are entitled to any and all enhancements of its original value; and such enhancements belong not to the tenant for life, but to the remainder man.</p> <p>The right to subscribe for new shares at par upon an increase of the capital stock, which is an incident of the ownership of the stock, does not belong, as a privilege, to the life tenant, but such an increment must be treated as capital, and be added to the trust fund for the benefit of the remainder man. This is equally the rule whether the trustee subscribes for the new stock for the benefit of the trust or sells the right to subscribe for a valuable consideration; in either event the increase goes to the corpus.</p> <p>Where a corporation sells a part of its franchise and property and distributes the proceeds of the same as a dividend among its stockholders, such dividend, as between a life tenant and remainder man, is capital and not income.</p> <p>Where a right is given to the stockholders of one corporation to purchase the stock of another corporation, the price brought by the sale of the subscription right is a profit incidental to the ownership of the stock of the first corporation, and is income and not principal.</p>

Appeal, No. 397, Jan. T., 1895, by George Ernest Rowson, from decree of O. C. Phila. County, April T., 1894, No. 26, refusing an issue devisavit vel non. Appeal from register of wills admitting will to probate.

<p>Superior Court — Supreme Court — Appeals—Practice—Suspension of attorney at law.</p> <p>Under the act of June 24, 1895, see. 7, P. L. 212, relating to appeals from the court of oyer and terminer, an appeal from an order of the court of oyer and terminer suspending an attorney at law lies to the Superior Court and not to the Supreme Court.</p>

<p>Appeals, No. 170, July T., 1895, by Jolm B. Stetson, and No. 188, July T., 1895, by Robert C. Thomas, from order of C. P. No. 4, Phila. Co., June T., 1891, No. 684, dismissing exceptions to report of referee.</p> <p>Assumpsit on a promissory note.</p> <p>The case was referred to Charles Biddle, Esq., as referee, who after finding the facts as stated in the opinion of the Supreme Court recommended that judgment should be entered against the defendants for the amount of the note. The court dismissed exceptions to the referee’s report, and entered judgment against the defendants.</p> <p>JSrror assigned by each appellant was dismissing exceptions to referee’s report.</p>

Appeal, No. 70, July T., 1895, by defendants, from judgment of C. P. Lackawanna County, Maroli T., 1894, No. 423, on verdict for plaintiffs. Ejectment for coal under a tract of land in Scott township. Before Gunster, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 167, July T., 1895, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1893, No. 100, on verdict for plaintiff. Appeal from report of road jury. Before Mayer, P. L, of the £5th judicial district, specially presiding. The facts appear by the opinion of the Supreme Court.

Appeal, No. 287, Jan. T., 1895, by defendants, from judgment of C. P. Montour Co., Sept. T., 1892, No. 16, for plaintiff, by the court without a jury. Ejectment for a narrow triangle of land in Lewis township. Before Ikelek, P. J. The facts appear by the opinion of the Supreme Court. The case was tried without a jury and judgment was entered for plaintiff. Error assigned, among others, was in entering judgment for plaintiff.

Appeal, No. 182, Jan. T., 1896, by plaintiff, from decree of C. P. Lebanon Co., No. 7, Equity Docket of 1891, on bill in equity. Bill in equity for damages and for injunction. This case, with Henry S. Heiknan et al. against the same defendant, No. 9 Equity Docket of 1891, infra, 200, was referred to Chas.

Appeal, No. 108, Jan. T., 1896, by plaintiffs, from order of C. P. No. 3, Pbila. Co., March T., 1895, No. 497, entering judgment for plaintiffs, with imposed condition. Assumpsit for work and labor done. Rule for judgment for want of a sufficient affidavit of defense. The facts appear by the opinion of the Supreme Court. The court made the order recited at length in the opinion of the Supreme Court. JSrror assigned was above oraer.

<p>Appeal, No. 183, Jan. T., 1896, by plaintiffs, from decree of C. P. Lebanon Co., No. 9, Equity Docket of 1891, on bill in equity.</p>

Appeal, No. 155, Jan. T., 1896, by defendants, from order of C. P. No. 3, Phila. Co., Sept. T., 1895, No. 694, making absolute a rule for judgment for want of a sufficient affidavit of defense. Scire facias sur mortgage. The defendants filed the following affidavit of defense.

Appeal, No. 233, Jan. T., 1896, by plaintiff, from decree of C. P. No. 4, Phila. Co., March T., 1895, No. 1824, dismissing bill in equity. Bill in equity for a receiver, etc. From the record it appeared that the Brines-Chase Company was organized in 1893 under the general corporation laws of the state of New Jersey, namely, an act of assembly entitled “An act concerning corporations,” and approved April 7, 1875, and the several supplements and amendments thereto.

Appeal, No. 160, Jan. T., 1896, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1895, No. 121, overruling exceptions to referee’s report. Amicable action of assumpsit to secure tbe construction of a contract. The case was referred to Hon. Mayer Sulzberger as referee, under the act of May 14, 1874, P. L. 166.

<p>Appeal, No. 227, Jau. T., 1896, by-plaintiff, from judgment of C. P. No. 3, Pbila. Co., March T.,. 1894, No. 25, on verdict for plaintiff for less than it claimed.</p> <p>Foreign attachment. Before Finletter, P. J.</p> <p>From the record it appeared that the attachment issued on January 8, 1894. Judgment was obtained against the defendant for $6,868.40, and interrogatories served on the garnishee,, who by his answer admitted that prior to July 8, 1892, he had sundry transactions with the defendant under which moneys became due and payable to the defendant for the mileage earnings of railroad cars, but that on July 25, 1893, the defendant transferred to the Railroad Equipment Company all its right to-these mileage earnings. The garnishee therefore averred that he had no moneys in Ms hands due to the defendant on account of mileage earnings. The notice of the assignment was served upon the garmshee on July 28,1893. A copy of the assignment was attached to the answers filed showing the consideration for the transfer to be the sum of $10.00, for which the Iron Car Equipment Company assigned to the Railroad Equipment Company all moneys then due or hereafter to become due from mileage earnings of cars leased by the defendants to the garnishees. The garnishee filed a plea of nulla bona and the case came to> trial. At the trial it appeared that the garnishee owed the defendant $441.33 on material account not covered by the assignment. The court directed a verdict for plaintiff for $441.33.</p> <p>Verdict and judgment for plaintiff for $441.33. Plaintiff appealed.</p> <p>Error assigned was above instruction.</p>

Appeal, No. 236, Jan. T., 1896, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1893, No. 554, on verdict for defendants. Trespass to recover damages for personal injuries. Before Thayer, P. J. At the trial it appeared that in November, 1892, plaintiff was employed by defendants to run and keep clean a machine for punching keys. Plaintiff was at the time fifteen years and four months old. The machine at which he worked had two cog wheels and a pulley.

<p>Appeal, No. 64, July T., 1896, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1892, No. 3, dismissing bill in equity.</p> <p>Bill in equity praying for an account of property, a decree that it be delivered to plaintiff, and that an injunction be granted restraining its transfer.</p> <p>The plaintiff, under the name of Tbe National Grand Lodge of the Junior American Protestant Association of the United States, was organized in 1864 as an unincorporated beneficial association. The individual defendants were members of a subordinate lodge known as The Good Samaritan Lodge No. 27, of the Junior American Protestant Association, which subordinate lodge is also a defendant.</p> <p>During the year 1890, the constitution and by-laws of the plaintiff, as they then existed, were amended and the name changed to that of the plaintiff, and it was provided that the change take effect on the 1st day of January, 1891. The committee on reorganization had embodied in its report a recommendation that a charter be procured, and at the time of tin-vote taken on the adoption of the amended constitution and by-laws a resolution was passed authorizing the officers to obtain a charter. The charter was procured, and the plaintiff thereafter conducted its business, other than lodge and beneficial, as a corporate body. The lodge and beneficial affairs were managed by the same officers and under the same rules as they were before incorporation.</p> <p>. Article XVIII. of the constitution read as follows :</p> <p>“ Any alteration or amendment of this constitution or rules of order must be offered in writing at a stated meeting, and, if seconded by three representatives, shall be entered upon the minutes. Notice of the proposed alteration or amendment shall be sent by the National Grand Secretary to the subordinate lodges, informing them that the same shall be taken up for consideration at the next session of the Grand Lodge, and if two-thirds of the representatives present vote in favor of it, it shall become part of this constitution.”</p> <p>The defendants and certain other lodges refused allegiance to the Grand Lodge after the amendment of the constitution and change of name. Before that time there were 32 subordinate lodges with the total membership of 3116, — 18 of the lodges with a membership of 2136 composed the active membership of the plaintiff in 1891.</p> <p>Notices were given the defendants and other seceding lodges to comply with the laws of the association or to surrender the property acquired as a subordinate lodge of the plaiiyfciff. They refused to renew their allegiance with the plaintiff or to surrender the property acquired as a subordinate lodge thereof.</p> <p>The bill in this case was then filed, praying for an account and a decree that the property be transferred to the plaintiff.</p> <p>The case was referred to Henry A. Fuller, Esq., as examiner and master.</p> <p>The defendants based their defense upon two grounds: first, that the amendment of the constitution and change of name had never been legally effected; and second, that they had surrendered the property for which an account was asked.</p> <p>The master found that the adoption of the amended constitution and change of name had been legally consummated and that the defendants had not surrendered the property.</p> <p>He found in favor of the plaintiff upon all the issues raised by the bill and answer; but held that the charter obtained was -an amendment to the constitution and. by-laws, and was not -adopted in accordance with article XVIII. of the constitution.</p> <p>He decided that the proposition to incorporate and the matters incident thereto should have been introduced at one meet■ing, and, after notice, should have been acted upon at another meeting, in accordance with this article of the constitution; therefore the charter was not binding upon the defendants and the plaintiff had no legal standing to maintain this action, and recommended that the bill be dismissed.</p> <p>The following is the oxdy portion of the master’s voluminous .report which was excepted to:</p> <p>Is plaintiff’s charter binding upon defendants ?</p> <p>This question has a very serious aspect., The proposition to procure a charter was not made until the meeting in October, 1890, when it was adopted. And the charter itself con•tains important innovations which were never proposed at any meeting. Was that an infringement of article XVIII? In •others words, does that charter amount to an alteration or amendment of the constitution ? If it does, then certainly it is not binding upon the defendants, and the plaintiff has no standing in this case. Now the answer to this question seems to me very plain. The transition from an unincorporated association without a fixed place for the transaction of business, and without a board of directors, to a corporation with a fixed place and a board of five directors, was unquestionably an alteration of the constitution. It is argued that the designation of place and •of hoard might be invalid without invalidating the entire charter or defeating the right of the plaintiff corporation to maintain this suit. But without such designation no charter would have been granted. The designation of some place for the transaction of business and of some board of directors was a</p> <p>condition precedent to incorporation, hence vital to the very existence of the plaintiff. And even if this were otherwise, there still remains the fact of incorporation, which of itself certainly is a material alteration. Before it can be binding, the-proposition to incorporate and the matters requisite to procure-a charter should be introduced at one meeting and put to vote at another meeting, as prescribed in the constitution. This plaintiff is a distinct entity in law from the unincorporated association to which defendants owed allegiance. Its corporate existence has never received their assent, nor was it brought about in a-manner to be binding without their assent. By necessary inference this plaintiff has no legal standing to maintain this bill. I am therefore of opinion, and so report, that the same be dismissed at the cost of the plaintiff. [1]</p> <p>Exceptions to the master’s report were dismissed by the-court.</p> <p>Errors assigned were (1) above portion of the report excepted to, quoting it; (2) finding that plaintiff has no legal standing to-maintain this bill; (3) decree dismissing bill.</p>

<p>Appeal, No. 303, Jan. T., 1896, by-plaintiffs, from order of C. P. Columbia Co., Sept. T., 1895,. No. 4, dismissing bill in equity. ‘</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of the court by Metzger, P. J.?. of the 29th judicial district, specially presiding, which was as-follows:</p> <p>The bill in this case substantially alleges: 1st. That by virtue of the act of 27th of April, 1869, P. L. 1228, an election was held on the 19th of February, 1895, to elect one person director of the poor in pursuance of the authority of said act. 2d. That the township of Conyngham for election purposes is divided into five election districts: west north Conyngham, southwest Conyngham, east north Conyngham, southeast Conyngham, and west Conyngham, and that elections were held on the day aforesaid for poor director in each of said districts. 3d. That the poor directors for the said poor district for the year commencing the second Monday in April, 1892, were George Shaum, elected for three years, whose term of -office expired on the second Monday of April, 1895, and to whose place a successor was to be elected; and John W. Goldsworthy who was elected in 1893 for three years; and B. J. Doyle for three years in 1894. 4th. That the board of directors for the year 1894-1895 was Golds-worthy, president; Doyle, secretary; Martin Mohan, clerk; Andrew J. Lenahan, collector and treasurer; Frank Brennan, steward; and Mrs. Frank Brennan, matron. 5th. That on February 19, 1895, Peter Lenahan was elected poor director for said district (here the bill states the number of votes cast for him in each district, making the total cast for him of two hundred and ninety-six votes, and that Patrick J. Gain had a total of two hundred and seventy-one votes). 6th. That the triplicate return sheet filed shows the state of facts above set forth, and the prothonotary entered at large that Peter Lenahan was duly elected; that the triplicate return sheet for west Conynghan had written therein forty-seven votes for Peter Lenahan-and thirty-eight votes for Patrick J. Cain; that the figures opposite the name of Lenahan are in different colored ink in a defaced, erased space set out for figures, and do not correspond with the written numbers, but the figures 31 are therein placed; and the figures opposite the name of Patrick J. Cain are in a different colored ink in a defaced, erased space, set out for figures, and do not correspond with the written numbers, but the figures 49 are therein placed. 7th. That at a meeting of the return judges, three of the five, on February 25,1895, namely Patrick Gillespie, Patrick Flynn and William Goodman signed a certificate of election, as appears further on in the bill, for Patrick J. Cain, and that this certificate was signed by William Goodman through duress and through fear of bodily harm. 8th. Thirty-seven citizens on March 9, 1895, instituted a contest, contesting the election of Patrick J. Cain. 9th. That on the 6th day of April, 1895, Peter Lenahan received a certificate from the majority of said judges, certifying that the returns had been tampered with in Midvalley and that from the writings on the tally list of votes of the election held February 19, 1895, Peter Lenahan had for the office of director of the poor aforesaid a majority of the votes and was duty elected. One of the three judges signing this certificate was William Goodman, who certifies also that he signed Cain’s certificate erroneously, and therefore joins in the certificate to Lenahan. 10th. That the prima facie evidence of the election of Lenahan is the election returns and evidence in the office of the clerk of the court of quarter sessions. 11th. That on the second Monday of April, 1895, the old board consisting of Golds-worthy, Doyle and Shaum, met, and Peter Lenahan appeared with his certificate, having filed his oath of office March 30,1895, and the president decided that Lenahan’s certificate should be read. Doyle refused and recognized Cain and withdrew from the meeting, leaving the books, papers and seal with Golds-worthy. 12th. That Goldsworthy and Lenahan organized a new board for 1895 and elected. Mohan, clerk, Goldsworthy, chairman, and Brennan and wife, steward and stewardess, and A. J. Lenahan, treasurer and tax collector. That said organization is in possession of the books, papers and seal of the corporation. 13th. That complainants are advised that Doyle and Cain have made an attempt to organize a board and appoint C. G. Murphy, treasurer and collector, and have placed a duplicate in his hands and that Frank Brennan, the steward, is in possession of property and is acting under instructions from said Doyle and Cain. 14th. That a commissioner was appointed to take testimony in an election contest instituted in behalf of Peter Lenahan, and that Martin Axman appeared and testified that Lenahan had received forty-seven votes in west Conyngham, and Cain thirty-eight, and that he wrote in the numbers opposite the said names in the triplicate return sheet. 14-J. That forty men appeared before the commissioner and testified that they had voted for Lenahan. 15th. That the conduct of Frank Brennan in ignoring the regularly organized board and in making requisition for the poor district without proper authority will do harm to the district and those giving it credit. 16th. That C. G. Murphy is attempting to collect taxes for the said poor district, and by so doing is hampering the officers of the said poor district. 17th. That Bernard J. Doyle and Patrick J. Cain are disposing of and trading horses and cows, and issuing orders on account of debts contracted by them to the damage and injury of the taxpayers. 18th. That the conduct of the said Bernard J. Doyle in selling and disposing and trading of property of the poor district, issuing orders, etc., and of the said C. G. Murphy in attempting to collect taxes for said poor district are doing great harm and irreparable injury to the poor district, for which there is no adequate remedy at law.</p> <p>Thereupon praying for equitable relief as follows : That the said B. J. Doyle be restrained, etc., from recognizing and countenancing the said Cain as director of the poor for Conyngham township and the borough of Centraba poor district, and from selling or attempting to sell any of the property of the said poor district, issuing any orders, etc., as against the said poor district, by and with the assistance of the said Patrick J. Cain. 2d. That the said C. G. Murphy be restrained etc., from attempting to collect any taxes or moneys due, owing or to become due the said poor district. 3d. That Frank Brennan, the steward, his agents and employees be restrained, etc., from recognizing Bernard J. Doyle and Patrick J. Cain as the constituted authority of the poor district of Conyngham township and the borough of Centraba. And, lastly, for such other and further relief as to equity may belong and this court may deem meet.</p> <p>'Considerable testimony has been taken in this case in support of the complainants’ bill, principally all of which was received under objections of counsel for respondents. As we now view this case we think the greater part of the testimony, in fact, all the testimony which tended to show who was elected poor director, is irrelevant except so far as the certificates of election are concerned. We feel satisfied that in this proceeding we cannot determine winch of these officers was duly elected. The complainants’ bill admits that a certificate of election signed by a majority of the judges of election was duly issued to Patrick J. Cain. The certificate seems to be regular upon its face, and issued at the proper time in pursuance of the act of assembly requiring election boards to issue such certificates. We think this certificate was competent evidence, but we think that no-evidence in this proceeding could be admitted to invalidate this certificate. The evidence also of the certificate subsequently issued to Lenahan was properly received. We also think that the evidence of what took place at the meeting of the board at the house of Goldsworthy on the second Monday of April, 1895, when there was an attempt to organize, is proper evidence. Therefore, the evidence as to what occurred there will be considered.</p> <p>From the bill and evidence in this case we find, therefore, that Patrick J. Cain received a certificate of election as provided by the act of assembly, and that Peter Lenahan’s certificate was not issued and received by him until about six weeks after the certificate had been issued and served on said Cain, and not until after William Goodman had ceased to be a judge of election. We also find that both Cain and Lenahan were present at the meeting on the second Monday of April, 1895, and presented their certificates of election to the members of the old board; that there were but two members of the old board in office, namely: John W. Goldsworthy and B. J. Doyle, the former being the president of the old board and the latter the secretary; that Goldsworthy refused to recognize the certificate of election of Patrick J. Cain, and Doyle refused to recognize-the certificate of election of Peter Lenahan; that thereupon Goldsworthy and Peter Lenahan organized a board, and B. J. Doyle and Patrick J. Cain also organized a board of directors; that the board organized by Goldsworthy elected Goldsworthy, chairman; Martin Mohan, clerk, and Frank Brennan and his wife, steward and stewardess; and A. J. Lenahan, treasurer and tax collector for the ensuing year. That the board organized by Bernard J. Doyle elected C. G. Murphy, treasurer and tax collector; William Garvin, clerk; and Frank Brennan and his wife, steward and stewardess. The books, papers and the-seal of the poor district were left in the possession of John W. Goldsworthy and Peter Lenahan, while the property of the district seems to be in the possession of the board organized by Doyle and Cain, who have made a disposition of some of the property; but, from the evidence, it does not seem that this was done to the detriment of the poor district. The treasurer and tax collector has also collected a small amount of taxes, and has attempted to collect more, but on account of the taxpayers being notified by the collector of the other board not to pay, he has been unable to make any further collections.</p> <p>The first question that it seems to us should be disposed of, is whether the court has jurisdiction to grant the relief prayed for under the facts as stated in the bill and the evidence to which we have referred. It is contended on the part of complainants that this proceeding can be sustained under the rulings in the cases of Ewing v. Thompson, 43 Pa. 372, and Kerr v. Trego, 47 Pa. 292. We have carefully examined these authorities, and we cannot agree with the position taken by complainants’ counsel that they sustain the position taken by complainants in this ease. In neither of these cases has the court undertaken to determine who was legally elected, nor was it claimed that in these proceedings the certificate of election could be invalidated or ignored. Quite the contrary was determined. In the case of Ewing v. Thompson, the court held that when the executive had commissioned a person elected according to the forms of law, his duty was performed, and a right was vested in the person commissioned which nothing but a judicial decision could take away or authorize the executive to recall. This case is cited in the 6th Am. & Eng. Ency. of Law, p. 376, for the purpose of establishing that when a certificate of election has been issued the power of the board is to be considered at an end, and that a certificate would be irrevocable except by regular contest, and that a subsequent election or commission would have no validity. Applying this principle to the facts in this case, it follows that the judges of elec-, tion had no power to issue a certificate to Peter J. Lenahan after having previously issued a certificate of election to Patrick J. Cain.</p> <p>In the case of Kerr v. Trego, supra, on page 296, Chief Justice Lowbxe, in delivering the opinion of the court, says : “ In all cases of this kind, at least in all bodies that are under law, the law is that where there has been an authorized election for the office in controversy, the certificate of election which is sanctioned by law or usage is the prima facie written title to the office and can be set aside only by a contest in the forms prescribed by law. This is not now disputed. No doubt this gives great power to dishonest election officers. We know no ¡remedy for this but by the choice of honest men. When party fealty is a higher qualification than honesty or competency we must expect fraud and force to rule and a man must be an Ajax or Ulysses to be qualified for office.” It is true the court held in that case that the members of the council of Philadelphia, known as the Kerr body, had legitimately organized, and that the other body, known as the Trego body, had no regular ■organization, and it was held that an injunction would lie at the instance of the regularly organized body to restrain the one not so organized. The facts there were wholly different from the facts in controversy in this case. There was no dispute that the Kerr body had a large majority of the old members whose-term had not yet expired, and the clerk and assistant clerk were still in office, and that they had a quorum, and that all the proceedings of organization were regular. Certainly it would not be contended for a moment that a minority could prevent the organization of the majority, or that the minority body could usurp the powers of the majority, and that the majority would be helpless and unable to invoke the aid of a pourt of equity to restrain a minority under such circumstances. Now it was there alleged on the part of the defense that the Kerr body was about to receive members who had not been elected, and that therefore they intended to use their power fraudulently, but the court held that they knew of no cure for this, and therefore refused in that proceeding to consider that matter.</p> <p>In the case at bar we cannot see how it can be pretended that there was anj' regular organization of the Goldsworthy board, # unless a body consisting of three members can be organized by one in opposition to the other members of the board. Here werev two members only of the old board in existence. Two parties present certificates of election to the position of third member of the board, the one issued in due form at the proper time, and the other indisputably issued sometime thereafter, and therefore without authority; one member of the board recognizes the one with the later certificate and with him effects an ■organization, notwithstanding the objection of his colleague and the party presenting the regular certificate, of election. It is absurd to call tins a regular and legal organization of the poor directors of the district. We do not say that the other organization is legal and regular, but whether it is so or not, it is acting as the de facto board, and its action cannot be restrained at the instance of another body whose organization is equally defective. It is necessary in a case of this kind that somebody should take charge of the poor while the contest is pending, and this is another reason why the respondents should not be restrained unless they are doing something that is manifestly wrong and prejudicial to the interests of the public or of the poor district.</p> <p>We cannot help feeling that this proceeding, if sustained, would accomplish by a short cut what the contest that has already been inaugurated, contesting the election of Patrick J. Cain, is intended to effectuate. The fact that Patrick J. Cain is not made a party in this proceeding seems to imply that the complainants themselves felt that his title to the office would first have to be determined by proceedings at law before a court of equity would have jurisdiction in the premises. If he cannot be restrained, then why should Doyle be restrained from recognizing him as a poor director?</p> <p>The only reason that can be given is the allegation that though Cain’s title to office cannot be controverted in this proceeding, yet under the bill and the evidence in the case he was manifestly exercising the office without any right thereto, and was an usurper and therefore Doyle, by recognizing him, was wrongfully exercising the duties of his office. Were it conceded that such was the fact, have we jurisdiction to restrain him by injunction ? It seems to us that we have not, for the very reason that the wrong complained of involves the inquiry into the legality of the election of Patrick J. Cain, and we would be obliged, before we could convict him of any wrong in that respect, to determine that Patrick J. Cain was not duly elected and that Peter Lenahan was properly elected. This we clearly cannot do, as we understand the authorities. It is not disputed that Doyle is a legal incumbent of the office of poor director, and there is therefore, for any abuse of his office, a clear and adequate remedy at law. The act of assembly which creates the poor district and the office in controversy, and which is found in pamphlet laws of 1869, page 1228, in section 8, provides : “ That the oourt of quarter sessions shall have power to remove any director for gross neglect of duty or other misconduct as director, upon the petition of thirty or more of the freeholders of said township or borough upon hearing of the complaint contained in said petition after a reasonable notice to the director complained of.” Here is a plain remedy given by the act of assembly, which ought to be pursued if Mr. Doyle is guilty of abusing his office by doing something that he ought not to do. His acting in connection with Patrick J. Cain and recognizing him as a poor director is an unlawful exercise of his office, if Cain is a mere usurper, and therefore would not only be covered by the provision of the act of 1869 referred to, but there would also be a remedy by writ of quo warranto. “ The words of the quo warranto act are broad enough to include the power of inquiry into the abuse ■of a township office by a legal incumbent — it is an unlawful exercise of the office: ” Commonwealth v. McWilliams, 1 Jones, 61. These remedies at law are in our judgment sufficient to reach the case in controversy, if Doyle can be adjudged guilty of any wrong in' recognizing Patrick J. Cain as a poor director and acting in conjunction with him.</p> <p>As to the prayer in the bill to restrain C. G. Murphy from attempting to collect any taxes or moneys due, owing or to become due the said poor district, we think we are clearly without jurisdiction to grant the relief prayed for. The only remedy that we know of in such case is to try his title to the office by writ of quo warranto. Before a court of equity can take jurisdiction in a case of this kind it seems to us clearly necessary that the right or title of the party to the office should first be settled by proceedings at law.</p> <p>In the case of the appeal of Gilroy and others, 100 Pa. 5, a bill was filed in which it was alleged that complainants were duly elected school directors of the borough of Archbald; that they had met and organized; had all the books and papers of the board; had levied a school tax, issued a duplicate, placed the same in the hands of the collector; employed teachers, and ■directed the schools to be opened. It was further averred that Richard Gilroy and others had contrary to law declared themselves school directors of said borough and organized themselves ; that they had taken possession of the school buildings, levied the school tax and threatened to collect said tax and to keep possession of the school buildings. The bill further averred that the complainants were without adequate remedy at law and prayed for a preliminary injunction to restrain the defendants, ■etc., from exercising the office or performing the duties of school directors, etc. The court below issued and continued a preliminary injunction. On appeal the decree of the court below was reversed. Justice Green, delivering the opinion of the court, on page 7, says: “ The practical controversy is over the title of the office of school director of the borough of Archbald. The bill alleges the title of the plaintiff and denies the title to the defendant, and prays for an injunction to restrain the latter from exercising the office or performing the duties of school director in said borough. In Hagner v. Heyberger, 7 W. & S. 104, it was held that an injunction will not be granted to restrain an individual from exercising the office of school director who has accepted the office of commissioner of an incorporated district. The question of his right to exercise the duties of his office must be tried by proceedings on a writ of quo warranto, which affords an ample legal remedy.” “ There is,” says the learned court in that case, “an adequate and exclusive remedy at law in such case by a writ of quo warranto.” The same principle was held in the case of Updegraff v. Crans, 47 Pa. 103, where a bill was filed to restrain certain officers of the borough of Williamsport, whose alleged appointment by the town council was illegal; and the court held in that case that “ the remedy is at law by quo warranto and to be invoked after entering into or exercise of authority under their appointment.”</p> <p>It is not necessary, we think, to multiply authorities to show that there is no remedy in equity in this case, but that there is an adequate remedy at law, which must first be invoked. As is well said by the court in Hagner v. Heyberger, supra, “Equity. has no jurisdiction with regard to the election or amotion of corporators; nor in case of a public officer de facto of a municipal character .... when there is a plain legal remedy provided by act of assembly of nearly contemporary date, by means of the writ of quo warranto, which can probe the disease and eradicate it whilst the most an injunction could do is to film it over. In addition to this the difficulty meets us that it would be determining conditionally the rights of a person who claims the office by color of title and exercises it de facto, which it has frequently been decided caxrnot be done. To bring this case to a fair trial you must proceed directly and frame the issue so as to try it; and in that trial of that right by quo warranto the law secures to the defendant the privilege of a trial by jury in relation to the contested facts which would be taken away by the proceeding by injunction.”</p> <p>As to Frank Brennan, we are asked to restrain him, his agents and' employees, from recognizing Bernard J. Doyle and Patrick J. Cain as the constituted authority of the poor district of Conyngham township. In other words it is asking us to restrain him from recognizing the board by which he was elected, and therefore to decide which of these parties is the legal board. We have shown sufficiently that we cannot determine this question, in view of the fact that we cannot determine in this proceeding which of the contestants, Patrick J. Cain or Peter Lenahan, -was duly elected.</p> <p>After carefully considering this case, we think that under the law we cannot restrain the respondents, as prayed for until after the title to the offices in controversy shall be settled by proper proceedings at law. If the respondents should undertake wrongfully to dispose of any property of the poor district, or do any act inconsistent with their duties as poor directors, they may in such case be restrained, but as nothing as yet has been done by them to justify our interference, we refuse to continue the preliminary injunction heretofore granted.</p> <p>Therefore, now, to wit, September 19, 1895, after due consideration the plaintiff’s bill and preliminary injunction granted thereon are dismissed at costs of complainants.</p> <p>Error assigned was decree; (1) dismissing preliminary injunction; (2) dismissing bill in equity.</p>

Appeal, No. 287, Jan. T., 1896, by . Annie B. D. Reynolds, from decree of O. C. Luzerne Co., No. 62, of 1895, distributing fund raised by sale of testator’s real estate. Rule to show cause why the fund arising from the sale of real estate of Sheldon Reynolds, deceased, and now in court, should not be paid to Annie B. D. Reynolds, Ms widow.

Appeal, No. 314, Jan. T., 1896, by plaintiff, from decree of C. P. Luzerne County, March Term, 1896, No. 4, dismissing bill in equity. Held: that the certificate of the commissioners appointed under the act of 1799 was conclusive upon the commonwealth as to the assignment of the property and settlement previous to the decree of Trenton.

Appeal, No. 80, July T., 1895, by defendant, from judgment of C. P. No. 4, Philadelphia County, June T., 1892, No. 421, on verdict for plaintiff. Assumpsit on promissory notes. Before Willson, J. At the trial it appeared that in 1887 the plaintiff advanced money to the defendant to purchase a large number of shares of the stock of the plaintiff.

Appeal, No. 127, Jan. T., 1896, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1892, No. 722, on verdict for plaintiff. Assumpsit on a contract. Before McPherson, J., of the 12th judicial district, specially presiding.

<p>Appeal, No. 103, Jau. T., 1896, by tlie city of Philadelphia, from decree of O. C. Phila. Co., dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to adjudication.</p>

<p>Appeal, No. 61, Jan. T., 1896, by D. S. Warner, one of the defendants, from judgment of C. P. Bradford Co., Dec. T., 1894, No. 15, on verdict for plaintiff.</p> <p>Ejectment for a tract of land in Windham township. Before Dunham, P. J.</p> <p>At the trial, it appeared that in 1888 S. N. Bronson, William Cook, Benjamin Coykendall and S. H. Warner held judgments against William Harrington. Cook issued execution and levied upon the land in controversy. Just before the sale Bronson bought the judgments of Cook and Coykendall at a large discount. Bronson bought the property at the sale. Subsequently Warner issued execution, and levied upon the same property, and at the sheriff’s sale following the levy bought the property and obtained possession of it. Defendants’ points were as follows:</p> <p>1. If the jury believe that there was an agreement between Bronson, Coykendall and Cook on the day of the sheriff’s sale of the land in question whereby they, said Bronson, Coykendall and Cook, were not to bid against each other, but that the lands should be bid off by said Bronson for a nominal sum and that said Bronson was to pay said Cook and Coykendall their respective claims, in consideration thereof, and that said agreement or arrangement was carried out between the said parties without the knowledge or consent of the defendant Warner or his assignor, the agreement was a fraud upon the said Warner, and the sale made in pursuance of said arrangement was void as to Warner and his assignor. Answer: That we affirm, providing you find that the agreement was made for the corrupt purpose of defrauding the creditors of William Harrington or defrauding William Harrington. [1]</p> <p>2. If the jury believe that Warner or his assignor was a judgment creditor with a lien upon the said land sold in 1888, at the time of said sale, and that any part of the land sold at that time was subsequently during the lien of said judgment levied upon by said Warner and sold at sheriff’s sale, upon execution upon said judgment, the purchaser thereof obtained a good title, and D. S. Warner, being the judgment creditor and purchaser of the land sold in 1894, obtained a good title thereto as against said S. N. Bronson and his assignee, and their verdict should be for the defendant Warner for the land purchased by him in the said sheriff’s sale upon his judgment. Answer: This we leave to you as a question of fact, and say to you that if you find the fraud existed, as we have heretofore said, in that case you should find in favor of the defendant D. S. Warner for the piece of land purchased by him at sheriff’s sale. Otherwise, if you find that there was not a fraud perpetrated at the sheriff’s sale between Coykendall, Cook and Bronson for the purpose of defrauding the creditors of William Harrington or of defrauding William Harrington, you should find for the plaintiff. [2]</p> <p>3. Under all the evidence in this case the verdict of the jury should be in favor of the defendant Warner for the land in suit. Answer: This we decline. We leave that to you. [3]</p> <p>4. If the jury believe from all the evidence in the case that Harrington and Bronson had an agreement whereby Harrington was to purchase or redeem the land after the sheriff’s sale in 1888, and that Harrington has made payments on said land, and that the same has been paid for, either in money or property, the verdict should be for the defendants. Answer: This we decline. [4]</p> <p>5. If the jury believe such agreement was made and that the land has not been paid for in full, the verdict should be for the plaintiff for the land not included in the Warner sale of 1894, to be set aside, however, on the payment by Harrington to Bronson or his assignee of the amount unpaid within a time fixed by the jury, which is to be a reasonable time. Answer: That we decline. [5]</p> <p>The court charged in part as follows :</p> <p>[There must be satisfactory evidence from which the jury are satisfied that there was a corrupt design and agreement to hinder, delay and defraud the creditors of William Harrington, or to defraud William Harrington. But in case you find that Cook, Coykendall and Bronson entered into an agreement or arrangement whereby Cook and Coykendall were not to bid upon the property, to defraud Harrington or any of Iris creditors, then you will consider the evidence offered by the defendants as to the one tract of land above referred to — that is, tract No. 2 — showing that it had subsequently been levied upon by the sheriff and regularly sold and deed duly acknowledged to D. S. Warner. And if you find the sale to Bronson void for the reasons above mentioned — that is, void on account of fraud, you will find in that case in favor of the defendant, D. S. Warner, as to such piece of land, piece No. 2. But in case you do not find that such agreement was made at the sheriff’s sale for the purpose of defrauding William Harrington or for the purpose of defrauding his creditors, then you will find in favor of the plaintiff for all the land described in the writ.] [6]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them..</p>

<p>Evidence — Witness—Declarations.</p> <p>The declarations of a competent witness who is present in court are inadmissible when not part of the res gestas.</p> <p>The declarations of a party must be proved by one who heard them. It will not do to show by A that B told him that he heard C make a certain statement, if it is C who is to be affected by the testimony.</p> <p>Evidence — Partnership books — Promissory note.</p> <p>On an issue to determine the validity of a judgment entered upon a judgment note for $1,500, where the maker of the note testifies that he gave it for a debt of a firm to which he belonged, it is proper for the purpose of contradicting the witness, and as bearing upon his credibility and the bona tides of the indebtedness, to admit in evidence the partnership books, in support of an offer to show that the debt due by the partnership to the payee of the note was only $30.00.</p>

<p>Mortgage — Corporation mortgage — Recital—Liability of trustee of a corporation mortgage.</p> <p>No action will lie against a trustee of a mortgage of a corporation for a loss occasioned to a bondholder under the mortgage by reason of the fact that the mortgage was not a first mortgage, where there is no statement in the bond that the mortgage was a first mortgage, and the only matter contained in the mortgage on the subject is the recital of a resolution passed at a meeting of the stockholders of the corporation that the mortgage should be a first mortgage.</p>

<p>Appeal, No. 202, Jan. T., 1896, by plaintiffs, from decree’ of C. P. No. 2, Pliila. Co., Sept. T., 1895, No. 551, refusing injunction.</p> <p>Bill in equity for an injunction, to restrain the erection of a building on an alleged servient lot.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court refused an injunction.</p> <p>Error assigned was decree refusing injunction.</p>

Appeal, No. 214, Jan. T., 1896, by plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1895, No. 796, refusing injunction. Bill in equity for an injunction to restrain the erection of a building. The facts appear by the report of Landell v. Hamilton, supra, •327, and by the opinion of the Supreme Court. Mrror assigned was in refusing injunction.

<p>Appeal, No. 26, Jan. T., 1896, by plaintiff, from decree of G. P. Chester Co., in equity, refusing an injunction.</p> <p>Bill in equity to restrain the construction of public water Avorks in the borough of DoAvningtoAvn.</p> <p>A demurrer was filed to the bill for the reason that the exclusive authority claimed by the complainant was not exclusive as against the borough.</p> <p>The facts alleged in the bill sufficiently appear from the opinion of the Supreme Court.</p> <p>The court in an opinion by Waddell, P. J., Hemphill, J.,. dissenting, sustained the demurrer and dismissed the bill.</p> <p>Error assigned was decree of the court.</p>

<p>Appeal, No. 393, Jan. T., 1896, by plaintiffs, from judgment of C. P. Lycoming Co., March T., 1894, No. 347, refusing to take off nonsuit.</p> <p>Assumpsit on a policy of fire insurance. Before Metzger, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 394, Jan. T., 1895, by plaintiffs, from judgment of C. P. Lycoming Go., March T., 1894, No. 349, refusing to take off nonsuit.</p>

<p>Appeal, No. 48, Jan. T., 1896, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1892, No. 633, on verdict for plaintiff.</p> <p>Assumpsit on a policy of fire insurance. Before Peck, P. J.</p> <p>The facts appear by the opinion of the Supreme Court, and from the part of the charge of the court below, which is as follows :</p> <p>If you believe that Louis Freedman made known to Mr. Sturdevant the truth, that R. Freedman, the plaintiff in this case, was a married woman, and by accident or clerical error or some mistake this policy has been written as it is, then we think that the plaintiff would be entitled to recover, because no fraud has been practiced upon them. The original policies were solicited by Mr. Sturdevant himself, and we think that he was not the agent of the assured, so that if afterward he made any representations which were not true and which he had no right to make from information which he had received from the plaintiff or her authorized agent, then we say that the company would not be bound by any such statements made. Because, in obtaining this insurance, we think that under the weight of authority he was the agent of the company and not the agent of Mrs. R. Freednan. If you believe under the instructions which we have given to you that R. Freedman’s agent correctly represented to Mr. Sturdevant her condtion, and made known to him that she was a married woman and all the necessary facts to enable him or the company to have issued a policy which was correct, then you may take into consideration whether or not this was an honest loss. And if it was an honest loss, you may go a step farther and determine whether or not she has suffered the amount of loss which she claims. [If, on the other hand, you believe that Mr. Sturdevant tells the matter as it is, then you may advance to another stage in the proceedngs, although you believe under our instructions that this policy as originally issued, was not binding upon the company, owing to the false statements which were made by Louis Freedman, and determine whether or not the company have, by any act of theirs, ratified this policy, or done such acts as would estop the company from denying that the policy was a good and valid policy.] [7]</p> <p>On this branch of the case the plaintiff relies upon the evidence, first, of the husband, Bernard Freedman, who testifies that in April, 1892, Mr. Little, who was the special agent of this company, came to his store together with a man by the name of Walker; that they came to the store and inquired if Mrs. Freedman was at home, and that he said to them that she was, and that they then inquired if they had the boolrs and papers ready for examination. I think in connection with this Mr. Freedman had been notified that these men would come and examine the papers and books, but I am not quite positive whether this evidence was in this case or another — but at any rate they came to the store, according to his statement, and made the requests which we have stated to you. That he told them that the papers were not at the store but that they were over at the house, and that he would go over and get them. That he did go and get them and brought them back to the store, and that they inquired where they should go to examine the papers. That he said he was willing to go anywhere, and they suggested to go to Mr. Tidd’s office, an insurance agent at Athens. That they went over there, and that the insurance agents asked him certain questions about Mrs. Freedman, where she had got the goods, and other matters pertaining to this loss, and then made him a ¡certain offer of settlement of the case. That this offer was declined and he returned to the store, and in fifteen or twenty minutes after he returned to the store they came back to the store, and inquired whether he had made known their offer to Mrs. Freedman and what she said about it, and that he replied that he had not done it, but it was no use, she would not accept, and that they then told him to go on and makeproofs of loss. They also rely upon the letter, dated June 3, which required him to go to Laceyville and obtain an affidavit, from the nearest magistrate, of the loss, setting forth certain things as required by the terms of this policy. It seems from the evidence that he did go there, and took an attorney with him, for the purpose of obtaining the proofs which the company required, but you will remember in this letter there was this proviso put in, or this qualification, “ The Providence Washington Insurance Company does not waive any of its rights and conditions under the policy.” That is, that they did not waive any of their rights or conditions under the policy. That is, if the policy required anything, that that must be complied with notwithstanding this demand, and that this demand was no waiver of any conditions in the policy. [Now, if that policy was void on account of fraud and the defendant had a right to claim it so, then they had no right whatever to compel the plaintiff to produce proofs of loss or anything else,] [8] because if the policy was void on their part it was equally void as far as the defendant was concerned. If the company was not bound, neither was the plaintiff. There must have been a mutuality in this contract or else it was no contract at all. That is one of the grounds upon which the company might legally refuse to pay this policy, because there was not a. mutuality between the parties. They had agreed to insure, according to their theory, a man, and this plaintiff was trying to enforce this policy in favor of a woman, and they did not both agree to the same thing, according to their theory. So if the policy was void on the part of the company they could not enforce anything of this kind against the plaintiff. If it was void as to one it was void as to both, unless they chose to ratify it. But in pursuance of this notice he did go to Laceyville with his attorney, and procured the papers that were required. The company shortly afterward, through Mr. Little, their special agent, demanded that he should procure certain duplicate statements, and that there may be no misunderstanding about it we will read this letter, “ Exhibit R,” as it appears. “ The Providence Washington Insurance Company. J. W. Little, Special Agent. G-lenside, Pa., June 14th, 1892. R. Freedman, Athens, Pa. Madam: I have the magistrate’s certificate lately sent by yourself. Regarding the various articles claimed by yourself as having suffered loss thereon by fire, you are hereby asked to procure and have for examination, bills or duplicates thereof, showing dates, place of purchase and prices paid for the articles ' above named. It will be necessary for you to do this before the company can recognize the papers furnished them as a proper proof of loss in that regard, under conditions of their policy No. 918 issued at the Wilkes-Barre, Pa., agency and held by yourself. Truly Yours, (signed) J. W. Little, Sp. A. Prov. Wash. Ins. Co.</p> <p>In connection with this letter that has been called to your attention, considerable time has been spent in giving evidence as to when the duplicate bills were obtained, and it is for you to determine, under all the light that you have when the duplicates were obtained. Were they obtained on the 12th of April, when Mr. Little was on there for the purpose of examining the papers ? If he had all the duplicate bills and all the accounts on that occasion, would he or would he not be likely to have written this letter demanding that she should obtain them ? It is for you to determine under the evidence whether or not he did. The plaintiff claims that after that request she did go on and procure, at considerable expense and cost, these duplicate bills. [Now, in order to estop the company they must have known the facts. They must have known that this was a married woman and they must have been acquainted with all the facts, in order for them to estop themselves. If they did know the facts and required this plaintiff to do what she would not otherwise have done — required her to go to an expense which she would not otherwise have incurred — -if they did, knowing the facts, require this, then they are estopped from denying that they were bound by this insurance.] [9]</p> <p>Defendant’s points were among others as follows:</p> <p>1. The plaintiff, being a married woman when the policy in suit was issued, in order to recover thereon must give such evidence in regard to how the policy came to be issued to a male as would warrant a chancellor in reforming the same before she can recover upon the policy. Answer : We affirm this, unless you are satisfied that the truth was made known to the agent who took this policy. Their we say that she cannot recover unless the company has since waived this forfeiture by its conduct. [1]</p> <p>2. No sufficient evidence has been given to warrant a reform of the policy as specified in the first point. Answer: We deny this point, or we leave to you as a matter of fact whether or not .Louis Freedman, William Freedman, and the other witnesses that have been called to corroborate them, tell the truth, or whether Mr. Sturdevant tells the truth. [2]</p> <p>5. There was no sufficient evidence to submit to the jury to find that the defendant company has waived its right to defend the action on the policy on the ground that it was procured by means of the false representations of the plaintiff’s agent. Answer: We refuse so to charge you, but we submit to you the evidence of what the agents of this defendant knew; whether they did know all the facts and whether they required the plaintiff to go to trouble and expense which she would not have gone to and incurred had she known that the defendant was refusing to pay this policy on the ground that it had been procured by fraud. [8]</p> <p>6. There is no sufficient evidence to submit to the jury that the company has estopped itself from defending the action on the policy on the ground that it was procured by means of the false representations of the plaintiff’s agent. Answer: We decline to so instruct you, but we leave, as we before stated, that question for you to determine. [4]</p> <p>7. S. A. Sturdevant in procuring the policy in suit from the Wilkes-Barre agency of the defendant was the agent of the plaintiff under the evidence in the case, and it appearing that Sturdevant when he procured it represented that the insured was a male, the company by the policy did not insure the plaintiff. Answer : We decline so to instruct you. [5]</p> <p>Yerdict and judgment for plaintiff for $2,383.66. Defendant appealed.</p> <p>Prrors assigned were (1-5, 7-9) above instructions, quoting them.</p>

<p>Public officers— County commissioners — Compensation.</p> <p>It is the duty of county commissioners to keep their office open and to be in attendance whenever it is necessary, and the necessity is not to be determined alone by the hours of actual labor or the amount of work done.</p> <p>The convenience of the public who have business with the office is to be considered, and the commissioners should be in attendance whenever their presence is required by the reasonable demands of public business. The duties of the commissioners cannot be delegated to their clerk.</p> <p>The conduct and discretion of county commissioners as to attendance at their office are subject to review on an appeal from the audit of their accounts, and where there is any evidence of an abuse for the purpose of unfairly increasing the emoluments of their office, the question is for the jury; but to carry the question to the jury there must be some basis for a finding more substantial than a mere conjecture whether as public officers they could have done their work in a less number of days.</p> <p>On an appeal from the audit of the accounts of a county commissioner it appeared that he was in actual attendance at his office on each day for which a charge had been allowed; that there was a meeting of the board which he attended each day; that on all but nine days business requiring the action of the board was transacted; that the work of the commissioners for the year had been largely increased by disastrous floods; and that the account of the appellee verified by his oath had been submitted to the county auditors, and by them audited, adjusted and settled. There was no evidence to show that the commissioners’ attendance for any day for which a recovery was had was not necessary. Held, that there was no case for the jury.</p> <p>County commissioners — Emoluments—Acts of May 7,1889, and May 13, 1889.</p> <p>The act of May 7, 1889, P. L. 109, fixes the compensation of county commissioners at $3.50 per day, and provides: “That the pay allowed by this act shall be in lieu of all other compensation and charges for the individual services and expenses of said commissioners.” The act of May 13, 1889, P. L. 200, allows county commissioners “their traveling expenses necessarily incurred in the discharge of their official duties.” Held, (1) that the second act did not repeal any part of the first, but supplied something, i. e., the right to traveling expenses, for which the first act had not provided; (2) that the presumption against the intention to repeal was strengthened by the fact that both acts were under consideration by the legislature at the same time.</p> <p>The traveling expenses necessarily incurred by a county commissioner in the discharge of official duties do not include the expenses which he incurs each day in going from his home to his office and returning. These come under the head of individual expenses, the collection of which from the county is forbidden by the act of May 7, 1889, P. L. 109.</p>

<p>Sheriff — Fees—Ghargefor removal of prisoners.</p> <p>A sheriff’s charge for removal of prisoners should be strictly confined to expenses reasonably necessary; but the Supreme Court will not reverse where the sheriff was allowed a sum which appears to be liberal, and where it does not affirmatively appear from the testimony that it includes any material item which would not come under the head of necessary and proper expenses incurred by the sheriff in the discharge of his duties.</p> <p>Sheriff — Fees—Summ.oning jurors — Acts of March 12, 1866, and April 2, 1868.</p> <p>The local act of March 12, 1866, P. L. 187, relating to sheriff’s fees in Lycoming- county is repealed by the general act of April 2, 1868, P. L. 11, inasmuch as the act by its terms is applicable “ throughout this commonwealth,” and Lycoming county is not one of the six counties expressly excepted from the operation of the act.</p>

<p>Insurance — Fire insurance — Agent—Declarations—Evidence.</p> <p>In an action upon a compromise agreement entered into after a fire between the insured and B., the alleged agent of an insurance company, plaintiffs testified that B. represented himself as the adjuster of the company ; that after making a full examination of the circumstances of the fire and the extent of the loss he proposed a compromise, which was accepted by plaintiffs; that the secretary of the company had afterwards stated that B; was an adjuster for the company, that what he had done was right, and that payment would be made as agreed upon by him. Held, that although B.’s declarations alone were insufficient to establish his agency, it could be inferred from his acts and their recognition by the company, and proved by the declarations and admissions of the officers of the company.</p>

Appeal, No. 237, Jan. T., 1896, by defendants, from decree of C. P. No. 4, Phila. Co., Dec. T., 1894, No. 272, on bill in equity. Bill in equity for the specific performance of a sale of land.

Appeal, No. 300, Jan. T., 1896, by plaintiff, from order of C. P. Luzerne Co., March T., 1895, No. Ill, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit on the bond of a supervisor. The plaintiff’s statement averred that the sum claimed in the suit, $3,802.85, had been found due by William Carter as supervisor to plaintiff on an appeal from the report of the township auditors.

Appeal, No. 82, July T., 1895, by N. L. Hoover, one of the defendants, from order of C. P. Clear-field Co., March T., 1876, No. 612, discharging rule to open judgment. Rule to open judgment.

Appeal No. 127, July T., 1895, by Godfrey Fisher, from decree of O. C. Centre Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report.

<p>Appeal, No. 21, Jan. T., 1896, by plaintiffs, from judgment of C. P. Centre Co., Nov. T., 1893, No. 258, on verdict for defendant.</p> <p>Assumpsit upon promissory notes. Before Akchbald, P. J., of tbe 45tk judicial district, specially presiding.</p> <p>Tbe facts appear by the charge of the court which was as follows:</p> <p>This action is brought by several parties composing the Centre County Banting Company,, against J. P. Gephart, as indorser, on a note of the Bellefonte Iron & Nail Company, which was drawn for $6,200, payable in one month, dated November 6, 1891, and indorsed by Mr. Gephart. This note is now produced here in the hands of the plaintiffs, the bank, and if there were nothing more in the case, this mere circumstance would entitle the plaintiffs to a verdict at your hands for the full amount of the note, with interest from the time it became due. The evi dence, however, shows that this note is simply the last renewal of quite a number of notes, the first being given sometime in April, 1890, for $3,500. This was a short time note of ten days, I believe, and was renewed at the end of that period, and again renewed the 19th of June, of the same year. Another note of $2,700 additional was given on the latter date, so the bant at that time, June 19, 1890, held the two — one for $3,500 and the other for $2,700.</p> <p>These again were renewed from time to time as they became due, and in April, 1891, the year subsequently, the time was extended on each of them, as I understand it, to thirty (30) days. Then they were continued in that form until in September they were consolidated and made one note for $6,200. On this there were two renewals, one the 1st of October, for thirty (30) days, and again, the one in suit, on the 6th of November, for the same amount. On each of these notes, beginning with the very first, Mr. Gephart, the defendant here, was an indorser for the accommodation of the Iron & Nail Company.</p> <p>The contention on the part of Mr. Gepkart is, that the note in ■suit, and as I understand it, each of these notes, to which I have referred, was given for a single and specific purpose, and that was to protect or collaterally secure, or as some of the witnesses have said, to put in bankable shape certain transactions between the bank and the Iron & Nail Company, with regard to advances on the accounts of customers of the latter, so that the bank might be properly secured.</p> <p>These transactions, as I understand the explanation given about them, were about like this : The exact transaction with regard to what are spoken of as iron certificates, is not very •clearly given by the testimony. But with regard to the drafts .spoken of, Mr. Munson says that as they shipped nails to different parties, their customers, he would draw or make drafts for the amount of the bills upon these customers. Of course the bills were not immediately due, and as he said he had no right to draw on them and ask them to pay immediately, but for the purpose of securing advances from the bank he made these drafts •upon his customers immediately, and then deposited the draft in the bank and secured advances upon these drafts, representing the actual transactions and actual sale of what the iron -company was producing. And then, subsequently, when the -customers of the Iron & Nail Company paid their bills and remitted for their account, this would be turned over to the bank in payment for the drafts that had been left with the bank, but not forwarded. [The contention on the part of the defendant is that this note, and the notes, as I have said, on which this was a renewal, were for the purpose of protecting these drafts, .and as collateral security to them and to the iron certificates, which have been spoken of but not fully explained.] [1]</p> <p>[Perhaps it would not be out of course to take the suggestion -of counsel, made in your hearing, with regard to these iron certificates. Because, as I understand it, they amounted to about the same thing as the transactions with the drafts; that is, they were certificates of iron, in the hands of customers of the iron •company representing in that way indebtedness of property of the iron company so certifying. They are spoken of as iron •certificates, whatever that may mean, and were deposited with the bank, and the bank made deposits upon them; and subse■quently when the indebtedness or accounts or whatever it was these iron certificates represented were paid, as Mr. Munson says, they were lifted. I understand by that, that the moneys-advanced upon these certificates were paid or made good to the-bank. Now, the claim on the part of the defendant here is that these notes were merely given as collateral security, that is as-security to or collateral aside from the actual drafts, and the original certificates deposited and the money advanced upon them.</p> <p>Some of the witnesses, as I have said, speak of this as putting the matter in bankable shape so that the bank would not have simply the representation of indebtedness, but would have-apparently a note with the proper indorser upon it to whom they could look in case of the failure of the iron certificates to-be made good.] [2]</p> <p>The bank, however, in opposition to this, claims that the notes-of which I have spoken were given for money actually advanced, at that time.</p> <p>This is not sustained by any positive testimony except that, of Mr. Shugert. While Mr. Kurtz does indeed say that the-first note of $3,500 was for the pay roll of the company, yet, this assertion, as I recall it, was shown to have been made, not. upon any actual knowledge, but from information gathered from the books of the bank or from others. But we have a-positive statement on the part of Mr. Shugert, cashier, who-seems -to have had more directly the transaction with Mr. Mun-son representing the iron company, that there were advances made both at the time the $3,500 note was made, and again when-, the $2,7 00 additional note was given. He says, specifically, that, when these notes were given Mr. Munson was allowed to check against his account for that much more. That is to say, as I understand it, the account of the Iron & Nail Company with-the bank was treated as being just so much more than that, so-much more than it had been before the note was given, and the iron company was allowed to draw from their account just as though this had actually been credited, although it was not really credited upon their account at the time.</p> <p>Mr. Shugert further says that in view of this which was really an advance of money (if that was the transaction), the account bore interest, and interest was charged upon the account, from that time. He says that these notes were given at short time at the suggestion of Mr. Munson, so that they could be-taken np at- the first opportunity in relief of Mr. Gephart, the 'indorser.</p> <p>Mr. Munson, however, swears positively to a definite arrangement, that the notes in question were merely to be held as -security for the money advanced, and tins particular note, he says, was held and to be held as collateral secrrrity for five (5) •drafts ; one of Wilcox & Brother for $400, and another of Buckingham, Clark & Jackson for $2,000; and three (8) others •on C. E. Pope & Company; two for $1,500 and one for $1,200. He must have been a little mistaken with regard to this because ■some of these drafts antedate the note, some of them being drawn on October 2, whereas the note bears date November 6. [But if we regard this note simply as a renewal of •one which preceded it of a like amount dated 1st of October, •or about that time, his statement can be reconciled with the other facts.] [3] The total of these drafts, you will see, -amounted to $6,600. I do not understand it to be disputed that all the drafts which are thus spoken of by Mr. Munson were subsequently paid. He says with regard, for instance, to the Wilcox & Brother draft of $400, that remittance was re•ceived for that of $416 and some cents; also that the Buckingham, Clark & Jackson draft of $2,000 was paid, and that one of the Pope & Company drafts of $1,500 was forwarded to New Haven, Conn., and there lifted, which means, as I understand it, paid by the parties on whom it was drawn. He also produces the other two drafts of Pope & Company of $1,200 and $1,500, with receipts of payment upon them, and if that testimony be believed, and, as I understand, there is no testimony to contradict it, it would show a payment of all of the drafts for which Mr. Munson says the note in suit was simply held.</p> <p>Now, it is for you to say what really was the contention 'between these parties. What is the truth here ? Is it as contended for by the bank or as testified to by Mr. Munson ? The plaintiffs argue that the defendant’s claim that this was for a -specific purpose as collateral security to these drafts, which have been paid, has been refuted by several circumstances; for instance, by the long series of renewals beginning away -back in April, 1890, beginning at a less amount and continued •along; also by the circumstances that after the two notes had •sprung into existence they were both continued right along for an unvarying amount, not shifting as the amount of the drafts may have shifted for the iron certificates, but carried along at $3,500 and $2,700, respectively, and finally combined into the amount of the two, $6,200; and also to sustain that position you have the positive testimony of Mr. Shugert that the iron company received at the time what was equivalent to a credit on account for the actual amount of the notes or for the proceeds of them. But on the other hand the defendant argues that his theory of the case is sustained by the fact that the notes were carried along without any actual discount, the bank simply holding them without more, and that they were never actually carried into the account until after the failure of the iron company in November, 1891, not being charged as a discount on the books of the bank or the pass book of the Iron & Nail Company, until the 21st of November, 1891. It is also argued for the plaintiffs that there is a discrepancy in the amount of the drafts and the amount of the note, the draft being $6,600, while the note is $6,200.</p> <p>[I also noted a matter that has not been adverted to by counsel in the argument which came out in response to a question put by myself to Mr. Shugert. He says that “ at the time the notes were drawn, they ” — meaning the Iron & Nail Company —“ had the advantage of them in their account, and we continued to recognize them as collateral to their account.”</p> <p>Again, in another place, a little further on, he says : “ The notes were held as collateral for their payment.”</p> <p>I do not know exactly what is meant by this, but I just call it to your attention for this fact. This statement may have a possible bearing on the case as the notes are apparently recognized by Mr. Shugert, in his statement, as collateral to something. It is true he says they were collateral to the accounts, but still the notes, and this note which is the culmination of them all, by this statement, stand in the light of being collateral to something. That would rather repel the idea of a discount on the notes at the time or before an advance of money was made upon them.] [4]</p> <p>Looking over all the testimony, gentlemen, and not simply that to which I have called your attention, if there are other points in the testimony that I have not referred to, for I do not mean to withdraw any of them from your consideration, what is the truth here ? How is the case determined in your minds ? If this note, or those of which it is the renewal, was held as collateral merely by the bank, collateral to the drafts mentioned by Mr. Munson, and those drafts have been paid, of which there seems to be little doubt, the bank could not divert the note to another purpose and place it to the general account of the Iron & Nad Company. If there was an understanding between Mr. Munson and the officers of the bank with regard to these notes, and the note which is the final renewal of them all, such as I have explained, the bank could not violate that understanding. They could not change the condition on which they held it, and the indorser, Mr. Gephart, would have a right to enforce that condition.</p> <p>The Iron & Nail Company would have a right to enforce that condition, and because of that right in the Iron & Nail Company Mr. Gephart would have the same. [But if, according to the testimony of Mr. Shugert, money was actually advanced upon the original notes of $3,500 and $2,700, then this note which stands in the place of those would be responsible for these advances, and the bank could hold the indorser upon it for the amount of these advances, which would be the consideration for the notes being given. The whole disposition of this case lies according as you find that fact. Was the note collateral to drafts which have been paid ? If it was, then the note is no longer an obligation, it has served its purpose and the defendant is entitled to your verdict. Upon the other hand, if the notes were given and the money actually advanced upon them by the bank at the time, and advanced directly in consideration of the obligation of these notes to the bank, then they could insist now, at the end of the transaction, upon the amounts which they so advanced coming back to them through this suit out of this note. That is the question that you have to dispose of.] [5]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them; (6) that the charge to the jury, as a whole, failed to adequately and impartially state the plaintiffs’ view of the inferences deducible from the evidence; and that the charge, as a whole, had a tendency to mislead the jury.</p>

Appeal, No. 248, Jan. T., 1896, by defendant, from judgment of C. P. Centre Co., April T., 1894, No. 38, on verdict for plaintiff. Assumpsit on a policy of fire insurance.

<p>Mamed woman — Mortgage—Security for husband's debt.</p> <p>A married woman may execute a mortgage of her real estate to secure a debt of her husband.</p> <p>Fraudulent representations — Mortgage—Scire facias — Married woman. On a scire facias sur mortgage where one of the defendants, a married woman, testifies that she was induced to sign the mortgage by fraudulent representations made to her by a person who declared himself to be the agent of the mortgagee, and there is no other testimony in the case to show that such person was the agent of the mortgagee, or to connect the mortgagee in any way with the fraud, it is proper to direct the jury to find a verdict for the plaintiff.</p>

<p>Appeals — Practice, S. 0. — Joint appeals.</p> <p>It is irregular for the receiver of a corporation and several of its general •creditors to join in a single appeal from the decree disposing of the fund raised by a sheriff’s sale of the corporate property. Separate and independent claimants upon a fund cannot prosecute a joint appeal from a ■decree distributing the same.</p> <p>Supreme Gourt — Jurisdiction—Amount in controversy.</p> <p>The Supreme Court has jurisdiction over an appeal from a decree distributing a fund raised by a sheriff’s sale where the entire fund for distribution amounted to $1,123.74 without any deduction for costs or expenses, and the whole of the fund is claimed by a receiver.</p> <p>Gorporation — Insolvency—Distribution of proceeds of sheriff's sale of corporate property. (!</p> <p>The proceeds of the judicial sale of the property of a private corporation is governed by the same rules of distribution that apply to such a-, sale of the property of an individual.</p> <p>Assignor and assignee of proceeds of judgment — Nonsuit by assignor.</p> <p>Plaintiff assigned the proceeds of his judgment against an insolvent corporation to a bank, and the judgment was subsequently opened on petition of creditors to determine whether it was fraudulent as to them,, when plaintiff took a nonsuit. It was held that the bank, not being a party to the issue, could not be prejudiced in its rights by the acts of the-plaintiff, but is entitled to the proceeds of the judgment.</p>

<p>Appeal, No. 258, Oct. T., 1895, by William Yost, from decree of O. C. Allegheny Co., June T., 1895, No. 50, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The auditing judge, Over, J., found the facts to be as follows :</p> <p>The fund for distribution arises from the sale of real estate of the decedent under order of this court for payment of his debts. It was subject to a mortgage dated June 1,1894, given to Wm. Yost, Esq., to secure the payment of $4,302.49.</p> <p>The administrator agreed with the purchaser that all liens should be divested by the sale. As it was doubtful whether the sale divested the lien of the Yost mortgage, the purchaser refused to pay the purchase money until it was satisfied on the record. The administrator being informed that there was a defense to the mortgage declined to pay it, and Yost finally satisfied it, upon the agreement that $5,000 of the purchase money should be paid into court to which the lien of his mortgage should attach, he to prosecute his claim upon the mortgage in this court as if a scire facias had been issued thereon. The money so paid into court is the fund for distribution.</p> <p>The material facts connected with the execution of this mortgage are as follows: J. P. Dahlem, the decedent, on the 2d of January, 1894, made an assignment for the benefit of his creditors to his nephew, John A. Long. He subsequently applied to J. B. Corey of the Corey Coal Co., one of his creditors, to procure a loan for him by mortgage on his real estate to raise money to pay his creditors, so that he could have his property reconveyed to him. On the 16th of April, 1894, he, Long and Corey entered into a written agreement which provided (inter alia) that a composition should be made with Dahlem’s creditors and their consent obtained to the reconveyance of his estate; that after such reconveyance Dahlem should execute a mortgage to such person as Corey should designate in a sum sufficient to discharge his floating indebtedness, estimated at $4,000; that Corey should be authorized to disburse the proceeds of the mortgage in payment of the debts and return any overplus to' Dahlem; that the expenses of negotiating this loan and examining the title should be $150; that Corey should receive for his services any rebate or discount allowed by the creditors, and that his claim (Corey Coal Company) should be paid in full.</p> <p>Corey aided in procuring the assent of the creditors reported by Dahlem and Long; there were, however, other creditors, and upon the 31st of May, 1894, after public notice, the common pleas court discharged the assignee and ordered a reconveyance of the assigned estate to Dahlem.</p> <p>On June 1,1894, a mortgage and bond was prepared by Wm. Yost, Esq., a son-in-law of Corey, who had agreed to advance the money, the sum of $4,302.49, being the amount of the reported debts of Dahlem, with the addition of $150 expenses provided in agreement, and $25.00, Yost’s fees, for procuring the discharge of the assignee.</p> <p>This bond and mortgage was taken to Dahlem’s house, where he was lying very ill with typhoid fever, and executed by him, making his mark in the presence of his physician, Long, his nephew, an alderman, Corey and some others, Mr. Yost not being present. The alderman filled out and signed a certificate of acknowledgment for husband and wife, certifying that it was taken on the 1st of June, 1894, and on the other side of the paper certified in a single acknowledgment that it was taken on the day of June, 1894; red lines were drawn over the double acknowledgment, and the mortgage and single acknowledgment, leaving the day of the month blank, were recorded on June 1, 1894.</p> <p>On June 2, 1894, Yost signed checks payable to the order of all the creditors reported by Dahlem and Long (except the Corey Coal Company and Boyd & Son) for the amounts they agreed to accept, aggregating $1,918.17, leaving in his hands, after deducting his fees of $175, $2,209.32 due on the loan. These checks were delivered to Corey’s clerk on the 2d and 3d of June, 1894, and checks amounting to $635.59 were paid by the bank prior to Dahlem’s death on the 4th of June. On the 4th of August, 1894, Yost gave Corey a check for $1,107.71, the amount of the Corey Coal Company’s claim, and Boyd & Son’s claim assigned to Corey for 50 per cent of its face. This left in his hands $1,101.61, being the amount of rebate allowed by Dahlem’s creditors which Corey was to receive for his services under the agreement with Dahlem. Corey presented Yost with $500 of this amount and received a check for the balance.</p> <p>CONCLUSIONS OK LAW.</p> <p>It is objected to the claim upon this mortgage, (1) that the .acknowledgment recorded with it is defective in omitting the day; (2) that Dahlem was mentally incompetent to execute it; (3) that in no event can there be a recovery for more than was advanced upon it prior to Dahlem’s death.</p> <p>If the mortgage was not properly acknowledged, the record is a nullity, and the mortgagee would have no hen upon the fund, other than that of a general creditor: Myers v. Boyd, 96 Pa. 427.</p> <p>Whilst the first certificate is in the form required for the acknowledgment of a married woman, it contained all the requisites of a single acknowledgment, and had it been recorded with the mortgage, there could be no question as to the validity of the record. The certificate which was recorded, however, omits the day of the month. The mortgage was dated, executed and recorded on June 1,1894. The presumption is that the officer taking the acknowledgment performed his duty, and he will not be supposed, without proof, to have taken it before the mortgage was executed: Cover v. Manaway, 115 Pa. 345. Applying this presumption in this case, an examination of the record shows that the acknowledgment must have been taken on the 1st of June, 1894, and if the certificate be defective in omitting the day, the defect seems to be cured by the record. There does not appear to be any case in this state in point; but in Maryland, where the statute is substantially like ours, it was held in Kelly v. Rosenstock, 45 Md. 389, a case directly in point, that “ where the deed or mortgage is dated and recorded on the same day, and the date of acknowledgment is blank, no date is necessary in the acknowledgment, because the facts preclude any possibility of a different date.” See also Carpenter v. Dexter, 8 Wallace, U. S. 526.</p> <p>There is a line of cases also which hold that a substantial compliance with the statute is sufficient: Ross’s App., 106 Pa. 82; Hornbeck v. B. & L. Ass’n, 88 Pa. 64; Luffborough v. Parker, 12 S. & R. 48; Watson v. Bailey, 1 Burney, 479, 480.</p> <p>The question is a close one, but we are of the opinion that the certificate of acknowledgment, taken with the record of the mortgage, shows a substantial compliance with the statute and that the record is valid.</p> <p>The evidence shows that Dahlem was very weak, both physically and mentally, when the mortgage was executed, and was incompetent to have transacted the business connected with the mortgage, if it had originated on that day. But it is probable that as the agreement in regard to it had been made when he was entirely competent, that he was sufficiently conscious of the transaction to make its execution valid. And whilst there are very grave doubts as to Ms mental competency at the time of its execution, as the legal presumption is he was competent, the auditing judge so finds. But even if he were incompetent, the mortgagee can recover the amount actually paid to Dahlem’s creditors before Iris death. The amount was advanced by Yost in good faith, without knowledge of the mortgagor’s incompetency, and the weight of authorities seem to be that a mortgagee under such circumstances can recover on a mortgage given by a lunatic: Beals v. See, 10 Pa. 56; Kneedler’s App., 92 Pa. 428 ; Wirebach v. First National Bank, 97 Pa. 543.</p> <p>The next question is, Can Yost recover the full amount of the mortgage? No money was paid when it was executed, and it was in effect a mortgage to secure future advancements. There was no privity of contract between Yost and Dahlem’s creditors, and he was not bound to pay any money to them. By the terms of agreement of April 16,1894, and the order executed contemporaneously with the mortgage, Yost was to pay the proceeds to Corey as Dahlem’s agent. He did deliver to Corey, prior to Dahlem’s death, checks payable to the order of his creditors amounting to $1,918.17, although only $635.59 of these checks were paid by the bank prior to Dahlem’s death. The possession of them by Corey as agent was equivalent to Dahlem’s possession, and constituted a valid payment by Yost on account of the mortgage loan. But there remained in Yost’s hands after Dahlem’s death, after deducting Ms fees, $2,209.32 of the money he agreed to loan. This was not paid to Corey until two months after DaMem’s death, of which Yost had personal knowledge; unless then Corey’s agency was coupled with such an interest as would make it irrevocable by the death of his principal this was not a good payment. Was the agency coupled with such an interest? Mechem on Agencies, 242, quoting Chief Justice Marshall, says : “What is meant by the expression of a power coupled with an interest, is it an interest in the subject on which the power is to be exercised, or is it an interest in that wMch is produced by the exercise of the power ? We hold it to be clear that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself; in other words, the power must be engrafted on an estate in the thing.”</p> <p>A power to collect money, etc., for the principal, the attorney to receive as compensation one half of the net proceeds, is not a power coupled with an interest, and is revocable: Hartley’s Appeai, 53 Pa. 213.</p> <p>An interest in the proceeds to arise as compensation for executing the power will not make it irrevocable: Blackstone v. Buttermore, 53 Pa. 266.</p> <p>A power of attorney not containing words of conveyance or assignment, but simply authority to sell and convey, being given as collateral security for the payment of certain notes and authorizing the sale of the property, — in case of default, and reimbursement of the attorney, power revoked by the death of the principal: Hunt v. Rousmanier, 8 Wheat. 174.</p> <p>As the only interest Corey had was for his compensation, it follows that the agency was revoked by Dahlem’s death, and that the payment' to Corey on August 4, 1894, of the balance due Yost on the mortgage loan, was unauthorized. He can therefore only recover $2,093.17, the amount paid, including his fees, prior to Dahlem’s death.</p> <p>The city of Pittsburg has presented a claim for taxes upon the real estate sold for the years 1894 and 1895, which lien was divested by the sale, but it is alleged that the purchasers agreed to pay the taxes for 1895, and that they should not be allowed out of the fund. If such was the agreement, as it does not appear the city was a party to it, it would not be bound by it; and as the taxes are a lien upon the fund, they must be paid out of it.</p> <p>This account was filed in less than a year after the decedent’s death, and as the statutes contemplate that general creditors shall have a year in which to present their claims, they were not heard at the audit, but as the claims now adjudicated are prior liens upon the fund, distribution will be made to them and the balance of the fund in court will be distributed to the1 administrator, to be embraced in its next account; upon the audit of which, Mr. Yost can be subrogated to the rights of the creditors paid by him after Dahlem’s death, and participate in the distribution with the general creditors.</p> <p>Under the agreement with Mr. Yost when he satisfied his •mortgage, interest was to be paid bim on the amount found to be due on the mortgage up to the time of final decree and payment; this was incorporated in the decree for the payment of the money into court. Interest on his claim will not therefore be computed in the decree, but can be at the time of payment.</p> <p>Error assigned was in overruling exceptions to adjudication.</p>

<p>Mortgage — Menial capacity of mortgagor — Evidence.</p> <p>A mortgagor was in a weak state both bodily and mentally at the time of the execution of a mortgage. The evidence tended strongly to show that he understood what he was doing at the time he signed the mortgage. Two of the witnesses who testified against his competency signed the.mortgage as subscribing witnesses. The orphans’ court found as a fact that the mortgagor was competent to execute the mortgage. Held, that the finding of the orphans’ court should be sustained.</p> <p>Mortgage — Defective certificate of acknowledgment — Date in certificate of acknowledgment.</p> <p>An omission of the date in the certificate of acknowledgment of a mortgage will not invalidate the lien of the mortgage, if the date of the acknowledgment appears from an inspection of the whole instrument.</p> <p>A-certificate of acknowledgment of a mortgage failed to state the date of the acknowledgment. The mortgage was dated, executed and recorded on the same day. Held, that it would be presumed that the mortgage was acknowledged on the same day.</p>

Appeal, No. 171, July T., 1895, by defendant, from judgment of C. P. No. 4, March T., 1894, No. 112, M.- L. D., on verdict for plaintiffs. Scire facias sur mechanics’ lien. Before Thayer, P. J. Motion to non pros. The facts appear by the opinion of the Supreme Court.- Frrors assigned were rulings on evidence, and answers to defendant’s points.

<p>Practice, 8. C. — Exceptions—Allowance of exceptions nunc pro tunc.</p> <p>After an appeal to the Supreme Court has been quashed because no exceptions had been taken, the court below may subsequently, with the consent of both parties, allow the exceptions and direct the charge to be filed of record, and in such a case the Supreme Court reinstated the appeal and considered the case as if the exceptions and the charge had been taken and filed at the trial.</p> <p>Judgments— Opening judgments — Evidence.</p> <p>A bank held nine promissory notes of defendant aggregating over $50,000. His account had also been overdrawn to the extent of over $50,000. Subsequently the defendant gave to the bank ten judgment notes for $5,000 each, which were duly entered up. Defendant claimed that the judgment notes had been given in full settlement of all his indebtedness including both the promissory notes and the over draft. On a rule to open the judgments the court directed the issue to be made by the plea of payment, and the evidence to be confined to that matter. Held, (1) that the burden of proof was on the defendant, not only under the pleadings, but also because the execution of the notes was admitted; (2) that certain deposit slips which defendant claimed were not credited to him were admissible in evidence with the explanation of the plaintiff that they were accidentally misdated, and were duly credited in the account at their proper dates.</p> <p>Practice, O. P. — Charge of court — Comments by judge.</p> <p>When the testimony is out of the ordinary juror’s experience and the action involves loose and irregular banking transactions extending over a number of years and running into large figures, the judge is justified in commenting on the evidence with more than usual particularity and in assisting the jury, by pointing out clearly the bearing of the various items of evidence, and he may even allow his opinions to be seen without tres, passing on the jury’s province to decide the facts for themselves.</p> <p>Interest — Time—Computation of time — Custom—Banks.</p> <p>Where it is a custom among bankers to depart from the ordinary method of computing interest, and for the sake of convenience to compute it at thirty days to the month, and twelve months to the year, it is not error in a case involving transactions with a banker, in the absence of any evidence to show that either mode of computation was specifically agreed upon by the parties, for the judge to assume thsft the mode usual with bankers was to be pursued, although it was not the ordinary legal rule.</p>

<p>Equity — Master's findings of fact — Review.</p> <p>The Supreme Court will not reverse a master’s finding of facts based upon sufficient evidence and sustained by the court below, to the effect that an assignment of an insurance policy was executed by the assignor, shortly after she had been taken from an insane asylum by her husband, and at atime when she was not restored to the possession of her mental powers, and was incapable of transacting business, and was acting under the undue influence of her husband.</p>

<p>Appeal, No. 110, Jan. T., 1896, by plaintiff, from judgment of C. P. Montour Co., Sept. T., 1891, No. 101, entering nonsuit.</p> <p>Trespass for injuries to land.</p> <p>Plaintiff’s statement of claim was as follows:</p> <p>The plaintiff, W. H. J. Blizzard, claims of the defendant, a municipal corporation duly incorporated and existing under the laws of the state of Pennsylvania, the damages hereinafter demanded, upon the following statement; the plaintiff, to wit, on the 30th day of May, 1889, and for a long time prior thereto, and from thence hitherto, was and still is the owner and occupier of certain town lots of land situate in the borough of Danville aforesaid upon which are erected two dwelling houses, a workshop, a barn and stables, through which lots of land a rivulet or small natural stream of water flows and discharges into a stream called Sechler’s Run, and winch said rivulet prior to the commission of the grievance hereinafter mentioned flowed through plaintiff’s land and into the said “ Sechler’s Run ” without detriment or injury to the land or buildings of the said plaintiff, and of right ought to have so run and continued to flow.</p> <p>Nevertheless, the said defendant, not regarding its duty in this behalf, wantonly and negligently planned, erected and constructed certain sewers, and- changed certain ancient water courses, so that the whole of the surface water from what is known as Yorks hill and Bloom street is collected in an increased and unusual quantity and discharged into the said rivulet above the plaintiff’s premises; that tbe water so collected and discharged by reason of the conduct and acts of the said defendant has been diverted from its natural flow and ancient courses into the said rivulet, and by reason of the said drains and sewers of the defendant the flow of water into the said rivulet has been increased far beyond its natural capacity, and is precipitated Upon the land of the plaintiff in an increased and unnatural volume; so that on the said the 30th day of May, 1889, and at divers times during the years following, to wit in the years 1890 and 1891, up to the time of the bringing of this suit, and at divers times since the bringing of suit, at various times during the said years, and in times of ordinary rains as well as of extraordinary showers, for which prior to the commission of the said grievance the said rivulet was of sufficient capacity to carry away the usual flow of waters, an increased, unnatural and unusual body of water was collected by means of said sewers, and discharged in, upon and over the premises of the said plaintiff, and the said stream caused to overflow its banks, and the waters so collected were discharged with such force and in such volume that the banks of the said creek were swept and torn, and the foundations of the plaintiff’s barn and stable has been torn out and destroyed several times, and the soap factory and shop wholly injured and destroyed, and plaintiff’s well filled up and injured, and the cellar of plaintiff’s dwelling filled with water, and his house rendered uninhabitable, and the land of plaintiff so injured and destroyed as to he rendered valueless, and plaintiff’s fences and bridges swept away, to the great damage of the plaintiff. And plaintiff further avers that by reason of the said increased flow of water as aforesaid, the usual outlet of the said stream is insufficient to carry off the said water in times of ordinary rains, and the waters so discharged into said stream are obstructed and impeded, and made to back up and overflow the premises of plaintiff and render them valueless and uninhabitable, to the great damage of the plaintiff as hereafter stated. And plaintiff further avers that the said defendant has caused to be collected and discharged into the said stream the contents of private cesspools and privies and stables, and the filth of the upper part of Bloom street and Yorks hill, which filth so collected and discharged in times of ordinary rain, and at all other times, is precipitated upon the lands and property of the plaintiff, causing noxious odors and poisonous vapors, and rendering the premises of the plaintiff uninhabitable, by reason of the pollution of the air; that the odors and vapors and noxious gases so generated pollute the air in, upon and about the plaintiff’s premises, and destroy the comfort of plaintiff’s home, and impair the health of himself and family, causing sickness and discomfort of his said family, and the plaintiff has heen and still is greatly annoyed and incommoded in the use, possession and enjoyment of his said property, and is by the commission of the grievances aforesaid hy the defendant as aforesaid otherwise greatly injured and damnified, to wit, at the county aforesaid, to the damage of the plaintiff $5,000, and therefore he brings suit.</p> <p>Evidence was offered at the trial which tended to support the averments of the statement.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Appeal, No. 265, Jan. T., 1896, by plaintiff, from decree of O. C. Northampton Co., dismissing petition to sell real estate.</p> <p>Petition to sell real estate.</p> <p>The petition of Julius B. Luckenbach represented:</p> <p>1. That in pursuance of a written contract made between your petitioner and his mother, Maria Luckenbach, he cared for, kept and maintained her during the whole period of her lifetime which covered her widowhood, to wit: From the death ■of her husband, George Luckenbach, November 4, 1878, to her death October 4,1892, making thirteen years and eleven months, ■at rate of $4.50 per week, which contract is set forth hereinafter.</p> <p>2. That said Maria Luckenbach, having died as aforesaid, .and her son, Edwin B. Luckenbach, having administered upon her estate, your petitioner began an action against said administrator for the recovery of compensation for the maintenance .and support of his mother, to wit: No. 82, December term, 1892, in the court of common pleas of Northampton county, and on May 18, 1893, recovered a verdict against said administrator for $3,358.75 and costs of suits.</p> <p>3. That your petitioner is informed and believes that said Maria Luckenbach left no assets, except some little furniture not exceeding in value $50.00, and that there is no property •coming'to said administrator, and belonging to said decedent in her own right, of which the said sum of $3,358.75 and costs, •or any part thereof, can be paid.</p> <p>4. That there are, however, assets of the estate of George Luckenbach, husband of said Maria Luckenbach, out of which the said judgment and costs can be either partly or wholly paid, and out of which equitably the said judgment and costs should be paid, so far as said assets will reach, under the following •circumstances.</p> <p>According to the will of said George Luckenbach, duly probated in the register’s office in this county (a copy of which is hereto annexed), said testator gave the dwelling house in which testator lived on Market street, Bethlehem, to his wife for life, with the following proviso: “But if it should prove at any time during her life that she should find it necessary, or more convenient, to'make sale thereof for her maintenance and well-keeping, in such case my executor shall have full power to make sale of the above-named dwelling house, and to give legal deed and title thereto, and the proceeds of such sale shall be safely invested and loaned out on bond and mortgage, and the interest accruing therefrom, and the capital, if necessary, to be employed! and used for the benefit, maintenance, and comfort of my wife,, during her life,” etc.</p> <p>Said testator further provided for the conversion into money of two frame dwelling houses owned by him, and appropriated the interest thereof to said support and maintenance, if found necessary, and, finally, after giving a small legacy to his granddaughter, directed that “all and whatsoever is left and remaining, after the decease of my beloved wife shall be equally divided share and share alike, between my three children Edwin R.,. Julius B., and Maria, my daughter,” etc.</p> <p>That said Maria Luckenbach having no estate of her own, and being in duty bound to provide a fund out of which the-compensation provided for in the contract of January 28,1888,. for maintenance and support, then accrued and still accruing,, could be paid your petitioner, on November 28, 1891, availed! herself of the privilege conferred on her in said first above recited, clause of her husband’s will, and duly executed and had served on J. Samuel Krause, executor of said will, a paper in which she declared that she found it necessary and more convenient to make sale of the dwelling house on Market street, in which she lived, and desired and directed him to make sale thereof for her maintenance and well-keeping, a copy whereof is hereto» annexed.</p> <p>5. That on the receipt of said declaration of Maria Luckenbach, the said executor gave due notice of the sale of said property, to be held at the “ Sun Hotel,” Bethlehem, on January 9,. 1892, said notice being given by advertisement in the newspapers and by handbills, a copy of which is hereto annexed.. The said premises were then and are now worth nearly, if not quite, the full amount of the judgment recovered by your petitioner for maintenance as above recited, and are situated in a portion of the town where land is readily disposed of.</p> <p>6. That shortly before the day of sale, Edwin R. Luckenbach (tbe present administrator of Maria Luckenbach), and his sister Maria, designing to thwart the efforts of their mother to pay the above honest and meritorious claim of her son, and to prevent your petitioner’s getting the compensation agreed on for supporting her, began a litigation in your honorable court, to-restrain said executor from selling said house and lot, Market street, as directed by their mother, Maria Luckenbach, and while said litigation was pending, and before its determination by decree, said Maria Luckenbach died on October 4, 1892, as above stated.</p> <p>7. That your petitioner was not a party to said proceeding or litigation, and he is advised that the same has no binding effect on him whatever, that his rights in the matter are the same as if the said litigation had never been begun, and that he is entitled to have the directions of his mother to sell said property, for her maintenance and well-keeping, carried out and proceeded. with by the executor, as of the time when these directions were so as aforesaid irregularly interrupted, to wit in the month of January, 1892, when his mother was alive, and with the same force and effect as if no such interruption had been made.</p> <p>8. That the estate of George Luckenbach remains unsettled and the premises so ordered by Maria Luckenbach to be sold for her maintenance and well-keeping, remain unsold as part assets of said estate, and your petitioner is informed and believes that said executor is willing to sell them for the purpose indicated by said Maria Luckenbach, and to pay over the proceeds to the administrator of Maria Luckenbach, in liquidation of said judgment, as far as they may reach.</p> <p>9. Your petitioner therefore prays that a rule may be entered on all parties in. interest, to show cause why a decree should not be made directing said executor to make sale of the house and lot, Market street, Bethlehem, Pa., described in said will of George Luckenbach, and said order of Maria Luckenbach, according to the provisions of said will, and that J. Samuel Krause, executor of George Luckenbach, pay out of the proceeds of such sale to Edwin B. Luckenbach, administrator of Maria Luckenbach, as may be necessary and sufficient to satisfy the debt, Interest and costs of the judgment of Julius B. Luckenbach in the court of common pleas of Northampton county, No. 32, December term, 1892, or if not enough be realized to satisfy the whole of said judgment, then to pay over the proceeds as far as they may reach.</p> <p>The answer set forth that this matter was adjudicated in the case of Luckenbach’s Appeal, 170 Pa. 586; that there was a revocation of the order to sell, and that, in the former case, all the parties were brought in. It also set forth, at length, the opinion of the Supreme Court in the above case, and the former petition. The facts appear by the report of that case.</p> <p>The court in an opinion by Schuyeer, P. J., dismissed the petition.</p> <p>Mrror assigned was decree dismissing petition.</p>

Appeal, No. 196, Jan. T., 1896, by-defendants, from decree of C. P. Delaware Co., on bill in equity. Bill in equity for an account and for an injunction. From the record it appeared that Edgar N. Black, the owner of different tracts of land in Philadelphia and Delaware counties mortgaged them in portions at various times, beginning in 1862, to Richard C. McMurtrie and John Bohlen, both of Philadelphia, individually and as trustees.

<p>Appeal, No. 389, Jan. T., 1895, by plaintiff, from order of C. P. Bradford Co., Sept. T., 1892, No. 753, sustaining exceptions to award of arbitrators.</p> <p>Assumpsit to recover penalty for taking a greater rate of interest than that allowed under sections 5197 and 5198 of the revised statutes of the United States.</p> <p>The case by agreement was referred to three arbitrators under the act of June 16, 1836.</p> <p>The arbitrators reported as follows :</p> <p>I. That an assignee for the benefit of creditors is a legal representative, in contemplation of section 5198 revised statutes of the United States, and that the suit is properly brought.</p> <p>IT. That the pajment of the discount in currency or the reserving the discount in money is equally a payment, in violation of section 5198 revised statutes of the United States.</p> <p>III. That the amount of interest, at the rate of 7 per cent or over,</p> <p>paid on the notes made by E. N. Frost & Son, and indorsed by E. M. Frost, as presented by plaintiff, for.two years prior to September 3, 1892, was . . . . $355 07</p> <p>IV. Same on notes given by E. N. Frost & Son, and indorsed by Athens Furniture Co., Fitch & Co.,</p> <p>and E. Mills, was......221 82</p> <p>V. That the amount of interest charged generally at 7 per cent on notes made by Frost & Son, and not</p> <p>paid at maturity, was . . . . . . 1 21 ■</p> <p>$578 10 _2</p> <p>$1,156 20</p> <p>They awarded $1,156.20 against the defendant in favor of the plaintiff.</p> <p>Exceptions to the award of the arbitrators were sustained by the court in an opinion by Peck, P. J.</p> <p>Error assigned was in setting aside the award of arbitrators.</p>

<p>Deed — Condition—Building restriction — Fire escape.</p> <p>The right of the sovereign power to direct that which is for the welfare-of the general public cannot be abridged by contract stipulations between-individuals; nor can a party to a contract be mulcted into a penalty because-of obedience to the’ mandate of the commonwealth.</p> <p>The erection of a fire escape in compliance with an act of assembly is not a violation of a condition in a deed restraining the construction of an addition to a building beyond a certain height.</p> <p>Deed — Condition—Forfeiture.</p> <p>No court, either of equity or law, will declare an estate forfeited unless-compelled to do so by rigid and unbending rules; and certainly, never, where the complaining party has a remedy in an action for damages, and! has stood by for years without asserting by action his intention to insist on a forfeiture.</p> <p>In 1825 -a lot in the city of Philadelphia was conveyed, conditioned that all of the buildings thereon erected should be torn down within a year, and that thereafter no building or structure should be erected on said lot exceeding nine feet in height, except a building on the front of the lot not exceeding sixty feet in depth. In course of time buildings were erected upon the-lot in violation of the condition. In 1881 a bill in equity was filed by the successors of the original grantor to compel the removal of the buildings erected in violation of the condition. It appearing that the buildings had been erected and maintained for more than twenty-one years before the suit in equity was instituted, the court dismissed the bill on the ground that the plaintiff was guilty of gross laches in enforcing his right. In 1893 the plaintiffs brought an ejectment to enforce a forfeiture of the-estate because of violation of the condition. Held, that plaintiff was not entitled to recover.</p>

<p>Municipal lien — Paving—Railroad—Affidavit of defense.</p> <p>An affidavit of defense to a municipal lien for paving is sufficient to prevent judgment, which avers that the land against which the lien was filed was all used and occupied for railroad purposes, and that it constituted the roadbed and necessary right of way of the railroad; and which describes minutely the various tracks located on the land, with their uses and purposes.</p>

Appeal, No. 285, Jan. T., 1896, by-defendants, from decree of C. P. of Erie Co., May T., 1895, No. 5, on bill in equity. Bill in equity to restrain the performance of a municipal contract. The facts appear by the opinion of the court by Gunnison, P. J., which was as follows: 1. The plaintiffs are citizens and taxpayers of the city of Corry. 2.

Appeal No. 286, Jan. T., 1896, by plaintiffs, from judgment of C. P. Cumberland Co., Sept. T., 1895, on verdict for defendant. Trespass for alleged injuries to land. At the trial it appeared that the Cumberland Valley Railroad was located in 1836.

<p>Appeal, No. 331, Jan. T., 1896, by plaintiff, from decree of C. P. Crawford Co., May T., 1895, No. 2, dismissing bill in equity.</p> <p>■ Bill in equity to declare a trust, and for an account.</p> <p>The facts appear by the opinion of Henderson, P. J., which was as follows :</p> <p>FINDINGS OF FACT.</p> <p>On, and for a considerable time prior to January 28, 1895, W. D. Rider, E. Y. Breck and J. H. Martin, the plaintiff, were the owners of a piece of real estate at Cambridgeboro in this county, having thereon a large hotel known as the Riverside hotel; together with the furniture and fixtures, etc., therein, and the barns, bottling works, bath houses, electric light house, laundry, etc., appurtenant thereto; which property is particularly described in the first paragraph of the plaintiff’s bill. W. D. Rider owned the undivided one half of this property, and E. Y. Breck and J. H. Martin each the undivided one fourth. The property was used and managed by the owners as partners, under the firm name of Rider, Martin & Breck ; Rider having a half interest in the firm and Martin and Breck each a one fourth interest.</p> <p>Prior to January 28, 1895, the court of common pleas of this county decreed a sale of the property of said firm, described in the first paragraph of plaintiff’s bill; and the same was advertised for sale by the master under said order, and the time for the sale fixed for January 29, 1895.</p> <p>William Baird, the defendant, having seen the adverfcisment of the master’s sale in a paper at Pittsburg, went to Cambridgeboro about January 20, 1895, and examined the property with reference to a purchase of it; at which time he discussed the subject of purchase of the property with the plaintiff, and had under consideration the project of buying the property and forming a partnership with plaintiff for the management of the hotel business, after the sale.</p> <p>The defendant returned to Cambridgeboro on January 28, 1895, for the purpose of attending the master’s sale of the property advertised to be held the day following. The subject of the purchase of the property by the defendant, and the formation of a partnership by the plaintiff and defendant thereafter, was again considered, and the conclusion reached that if the defendant should purchase the property at. the master’s sale, the plaintiff and defendant would form a partnership by articles of agreement in writing, for the conduct of the business of the hotel and sanitarium.</p> <p>The partnership was not then formed, nor were the details of an agreement of partnership assented to, the arrangement being that the details of the contract of partnership and the written evidence thereof should be completed after the purchase by the defendant. It was also agreed between the parties that if the defendant should purchase the property, he would sell to the plaintiff an undivided one fourth thereof at the same price which he might pay therefor at the sale; and in pursuance of that agreement the defendant gave to the plaintiff a paper in the form following:</p> <p>“ Cambridgeboro, Pa., Jan’y 28,1895.</p> <p>“I hereby agree to pay the sum of seventy thousand dollars or less for the Riverside Hotel property, to be purchased either at public or private sale, under the conditions set forth in the decree as advertised by the master appointed by the court. I further agree that should I become the purchaser, to sell or transfer to J. H. Martin, now owner of one-fourth interest of said property, a quarter upon the same basis as price paid, and same terms of payment.</p> <p>“Witness: Wiletam Baerd.</p> <p>“ W. E. Kemberling.”</p> <p>After the delivery of the foregoing paper and later in the same day the defendant concluded to purchase the property at a private sale from the owners, if practicable, and stated to the plaintiff that he intended to see Rider and Breck to ascertain whether they would sell, and at what price. The plaintiff objected to such action, but the defendant nevertheless entered into negotiations with Rider and Breck, the result of which was that they offered to sell their respective interests in the property at the rate of $75,000 for the whole. The defendant informed the plaintiff of this fact, and asked him whether he was willing to sell at the same rate ; the plaintiff stated that he was, whereupon the article of agreement, a copy of which is attached to defendant’s answer and marked exhibit “ A,” was entered into between W. D. Rider, E. Y. Breck and J. H. Martin of the first part, and William Baird of the second part, by the terms of which first parties agreed to sell to the second party all the real estate used by them, in the conduct of the business of the Hotel Riverside, and all the personal property owned by the firm of Rider, Martin & Breck, except cash on hand and book accounts; and to deliver to the second party good and sufficient conveyances therefor on or before February 5, 1895. In consideration for which second party agreed to pay first parties $75,000, in proportion to their respective interests in said property, and according to the terms particularly set forth in the said agreement. No other consideration was agreed upon nor offered by the defendant to the plaintiff as an inducement to execute the article of agreement last referred to than that which is stated in the agreement.</p> <p>Just after the execution and delivery of this agreement the plaintiff asked the defendant whether he was still' willing to go into partnership with him; he stated that he was, and by agreement of the parties the memorandum signed by William Baird, above recited, relating to the purchase of the property in the master’s sale for $70,000 was altered by inserting the word “more” instead of the word “less,” so as to read:</p> <p>“ Camcbridgbboeo, Pa., January 28, 1895.</p> <p>“ I hereby agree to pay the sum of seventy thousand dollars or more for the Riverside Hotel property, to be purchased either at public or private sale, under the conditions set forth in the decree as advertised by the master appointed by the court. I further agree that should I become the purchaser to sell or transfer to J. H. Martin, now owner of a one-fourth interest in said property, a quarter upon the same basis as price paid and same terms of payment.”</p> <p>It was supposed by the parties that by such alteration the memorandum would be sufficient to evidence the agreement made after the execution of the articles of agreement for the sale of the property to Baird, and for the sale by the latter to Martin of an undivided one fourth of the property in view of the contemplated partnership.</p> <p>The weight of the evidence shows — and I so find — that the property was bought by the defendant with the understanding that the title to the whole should be conveyed to him, and that no conveyance should be made to the plaintiff until the partnership had been formed by articles of agreement in writing signed by the parties.</p> <p>On the 29th day of January the defendant gave the plaintiff his promissory note for §500, payable in ten days, on account of plaintiff’s share of the first payment under the articles of agreement for the sale of the property to the defendant. It was understood by the parties that when a partnership was formed, as above recited, and a quarter interest in the property conveyed to the plaintiff by the defendant, this note should be surrendered to the defendant. On the 5th day of February, 1895, W. D. Rider, J. H. Martin and E. Y. Breck each delivered to the defendant a separate deed of general warranty for his interest in the property described in the articles of agreement above referred to.</p> <p>The evidence does not show that the defendant acquired title to the property under the articles of agreement executed by Rider, Martin & Breck, or under the deed delivered by the plaintiff to the defendant on February 5,1895, by means of any fraud, artifice, deceit, or misrepresentation.</p> <p>At the date of the delivery of the deed from the plaintiff to the defendant no money was paid. The weight of the evidence shows, and I so find, that a bond and mortgage were prepared for delivery to Martin to secure the balance of the purchase money.</p> <p>The bond and mortgage were, however, not delivered to. the plaintiff, in view of the intention to form a partnership and convey one fourth of the property to the plaintiff.</p> <p>Between the 29th of January and the 5th of February, the plaintiff and defendant went to Cleveland with reference to the interest of the contemplated partnership and the prosecution of the business thereunder, and there arranged to have policies of insurance to a large amount, then on the property, transferred in consequence of the sale. A statement was made to the insurance agent having charge of the business that a partnership was in contemplation between plaintiff and defendant; and it was decided by the insurance agent that the policies ought to be transferred to William Baird and J. H. Martin, doing business as William Baird & Co., as their interests might appear. A consultation was also had with different persons in Cleveland with reference to the employment of a purveyor for the hotel.</p> <p>On the date of the delivery of the deeds to the defendant the policies of insurance were transferred, as arranged for at Cleveland.</p> <p>On the day of the delivery of the deeds of the propertjr to the defendant, and after their delivery, it was arranged that a deed should he prepared from the defendant to the plaintiff for one undivided fourth of the property that day conveyed to the defendant.</p> <p>The plaintiff’s interest in the real estate conveyed to defendant was covered in part by mortgages, which the defendant assumed to pay, as will appear by reference to the articles of agreement. After the delivery of the deed by the plaintiff to the defendant the plaintiff made a payment on one of the mortgages against the interest in the property which he had conveyed to the defendant, with the knowledge of defendant, in anticipation that a conveyance would be made by the defendant and the partnership formed in accordance with the negotiation of the parties.</p> <p>From the 5th of February the business was conducted under the partnership name of “ William Baird & Company.” Books were opened in that name; the letter heads and envelopes were stamped with that name; and an entry was made in the journal of William Baird & Co.:</p> <p>Real estate ..... $53,000</p> <p>Furniture and fixtures . . . 12,000</p> <p>Bottles,...... 1,500</p> <p>Carriage and road stock, . . . 3,000</p> <p>Provisions, ..... 1,000</p> <p>Bedding and linen, .... 2,900</p> <p>Drying room and machinery, . . 464</p> <p>Tools and chattels, .... 100</p> <p>Fuel,...... 136</p> <p>To William Baird, f ... $56,250</p> <p>To J. H. Martin, | . ... 18,750</p> <p>Total, .... $75,000</p> <p>Investment of William Baird & Co. on commencing hotel business in Hotel Riverside, Cambridgeboro, February 5, 1895.</p> <p>Interest in partnership and profits to be had as follows:</p> <p>William Baird, three fourths, . . . $56,250</p> <p>J. H. Martin, one fourth .... 18,750</p> <p>The entries were so made and the business so conducted in anticipation of the formation of the partnership herein above referred to, and the conveyance to plaintiff of the undivided one fourth of the property.</p> <p>At different times after February 5, 1895, plaintiff and defendant endeavored to agree upon and reduce to writing the terms of the partnership, and a memorandum was prepared by the parties and sent to an attorney in Pittsburg to be reduced to proper legal form. The form of agreement prepared by the attorney will appear by reference to exhibit “ M ” of the evidence. The plaintiff was not satisfied with one or two provisions of the contract, and the paper was not, therefore, signed.</p> <p>The plaintiff was at this time, and had been since the 5th of February, 1895, in charge of the baths and medical business of the establishment. On February 8, a power of attorney was executed by the plaintiff, with the knowledge of the defendant, authorizing W. E. Kimberling to sign checks and transact other business for William Baird & Co.</p> <p>March 21, 1895, the parties having failed to agree upon the terms of partnership, the defendant ejected the plaintiff from</p> <p>$75,000 the property and has since prevented him from having access thereto.</p> <p>CONCLUSIONS OB’ LAW.</p> <p>The plaintiff brings this bill.</p> <p>1st. To enforce a trust as to the undivided one fourth of certain real and personal property, the legal title to which is in the defendant; and</p> <p>2d. To secure an account of' the partnership alleged to have existed between the plaintiff and the defendant, to which the plaintiff contributed capital to the extent of the said trust interest.</p> <p>The defendant holds the legal title by direct conveyance from the plaintiff. This conveyance was executed in pursuance of the article of agreement of January 28, 1895.</p> <p>The trust is alleged to exist by reason (a) of the contract in writing entered into on the 28th day of January, 1895, as set forth in paragraph 3 of the plaintiff’s bill.</p> <p>(5) By reason of the fact that the defendant deceitfully persuaded and induced the plaintiff to execute the article of agreement between W. D. Rider and E. Y. Bréele and the plaintiff, of the first part, and the defendant, of the second part, dated January 28, 1895; and the deed from the plaintiff to the defendant, dated February 5,1895, by means of defendant’s promises, falsely and fraudulently made, devising, intending and designing thereby to cheat and defraud the plaintiff out of the just title to the property described.</p> <p>The first question for consideration is : Does the memorandum -of January 28, 1895, establish a trust in the defendant?</p> <p>The act of April 22, 1856, declares that “ All declarations or creations of trusts or confidences of any tenements, lands, or hereditaments, and all grants and assignments thereof, shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void.”</p> <p>It was said of the act of 1856, in Barnet v. Dougherty, 8 Casey, 372: “The plain meaning of the enactment is, that a trust in land can now be proved in no other way than by writing-”</p> <p>This, of course, had reference to express trusts, and not to those arising by implication or construction of law. And in' determining the question the only evidence to which resort may be had is the writing itself.</p> <p>In Dyer’s Appeal, 107 Pa. 446, it was said by Mr. Justice P anson : “We regard the true intent and meaning of the act of 1856 to be that, when a trust is set up, the written evidence thereof, signed by the party holding the legal title should contain within itself all that is necessary to enable a chancellor to' declare the trust, and to make a decree in favor of the beneficiary, and that oral evidence cannot be introduced to supply any missing links in the chain of testimony.”</p> <p>In Seichrist’s Appeal, 66 Pa. 241, the court said: “ Undoubtedly the act of 1856 cuts up by the root all parol trusts by bargain or contract. It is intended to prevent frauds in relation to the title to real estate by requiring the evidence of it to be’ witnessed by a writing.”</p> <p>If, then, the plaintiff contends for an express trust, and relies, as is apparent, upon the memorandum of January 28,1895, it must appear within the limits of that paper that a trust is-created.</p> <p>That it has no such effect seems obvious. It was not signed by the party holding the title thereof. Upon its face is a conditional promise to sell to the plaintiff an undivided interest in land of which the- defendant had not then the title. It has not,, unaided by parol evidence, any features of an agreement or declaration of trust, and such evidence, as we have seen, is inadmissible.</p> <p>It was well said by Mr. Justice PANSON in Dyer’s Appeal, supra: “ There never was a time when it was more the duty of the courts to sustain that act (1856) in all its integrity, than it is now. The law of evidence as it exists in this state affords great facilities for attempts to set up parol trusts, and the facilities furnish the temptation. The act of 1856 is the only obstacle in the way, and if that act should be undermined by judicial construction the result could not fail to be disastrous.”</p> <p>The plaintiff’s second allegation is that a resulting trust arose by reason of the fraudulent conduct of the defendant.</p> <p>In order to sustain this contention the fact must be established by evidence which is clear, explicit and unequivocal.</p> <p>“ The evidence to establish a resulting trust, especially one arising ex maleficio, which is an imputation of fraud, should be ■clear, explicit, and unequivocal: ” Kistler’s Appeal, 73 Pa. 393; Kimmel v. Smith, 117 Pa. 183.</p> <p>Applying this rule to the evidence in the case, were any such facts developed as would impel a chancellor to decree a trust •ex maleficio ? The fraud necessary to produce such a result must have been fraud in the acquisition of the title, or a fraudulent use of the title.</p> <p>The article of agreement between Rider, Martin & Breck, of the first part, and William Baird, of the second part, and the deed of Martin to Baird, were regularly executed in due form for a valuable consideration recited therein, and are presumed to have the force and validity which their form implies. The general principle is that the act of signing, sealing and delivering is the consummation of a deed, and the burden is on the grantor to show by clear and indubitable evidence that the appearance and the truth were not consistent.</p> <p>The evidence wholly fails to show that any fraud was perpetrated or intended by the defendant in the acquisition of the title. The property was advertised to be sold at public sale. The defendant proposed to become the purchaser.</p> <p>It does not appear that any other person was able or willing to bid at the master’s sale, or that the plaintiff was induced to forego or release any interest which he had therein, or opportunity growing out of the master’s sale. No complaint is made that the property was not sold for an adequate price; and the fact that the owners of the three fourths of the property were willing to sell voluntarily at the price obtained raises a fair presumption that it was a satisfactory price. The evidence contains no suggestion that there was any necessity or inducement for deception on the part of the defendant.</p> <p>The article of agreement for the sale of the property to the defendant and the conveyance by the plaintiff to the defendant in pursuance thereof, strongly support the allegations of the defendant as contained in the evidence, that it was understood between him and the plaintiff that the whole title should be conveyed to liim, and after such conveyance controlled by him, and that any arrangement of partnership was to be definitely agreed upon thereafter. No sufficient explanation is given by the plaintiff why he sold by article of agreement and conveyed by deed an undivided one fourth of the'property to the defendant, if there was a parol agreement at the time under which he was to retain his interest in the property. The weight of evidence is with the defendant in support of his allegation that the purchase by Mm under the articles of agreement was without other conditions than contained in the agreement; and that neither at the execution of the articles of agreement, nor of the deed, was there any fraudulent practice on his part.</p> <p>The delivery of the deed was the perfection of the articles of agreement, and it vested absolute title in the defendant. That it was in contemplation by the plaintiff and defendant to form a partnership in the event of a purchase by the defendant at the master’s sale is not doubted. That the plaintiff parted with Ms title to the property on the inducement and consideration of such a contract is not established by the evidence.</p> <p>The parties mtended to enter into a partnership m conducting the business of a hotel, but this intention was independent of the sale of the property by the master or by the owners. Whatever agreement or understanding existed with reference to the partnership, the evidence warrants the conclusion that no partnership was actually formed. The parties, assumMg that they would have no difficultj7' m arranging the terms of an agreement of partnership, commenced business in anticipation of that result; but the parties having failed to agree upon the terms of partnership, no fraud is imputable to the defendant by reason of that fact; nor wouM a refusal to perform such contract be such a fraud upon the plaintiff by the defendant as to make him a trustee ex maleficio. Unless there is in the transaction more than is implied from a mere violation of a parol agreement, equity will not decree a purchaser to be a trustee : Kisler v. Busier, 2 Watts, 327; Robertson v. Robertson, 9 Watts, 42; Kistler’s Appeal, 73 Pa. 398.</p> <p>It must appear that the defendant acquired the title upon the inducement and consideration of an agreement, and that without such agreement plaintiff would not- have parted with his title. The evidence does not warrant the conclusion asked by the plaintiff.</p> <p>It may well be doubted whether it is admissible for the plaintiff to establish a trust by parol on the allegations of the bill, if they were satisfactorily proved. It was expressly decided in Porter v. Mayfield, 21 Pa. 263, that:</p> <p>“Evidence, that at the time of the conveyance the vendee agreed to hold the title in trust for the vendor, is a flat contradiction of the written instruments executed by the parties as the bond and the evidence of their relation, and would make them void from their very inception. Oral testimony can have no such power. As between vendor and vendee such testimony cannot be heard to change a title absolute on its face into a trust.”</p> <p>While the force of this decision is somewhat shaken in Lingenfelter v. Ritchey, 58 Pa. 485, it is cited as authority by Mr. Justice Green in Barry v. Hill et ah, 166 Pa. 844, in which last case it was held that a conveyance from the grantor to the grantee without consideration upon a certain agreement to hold for the benefit of the grantor would not raise a trust ex maleficio, even if there had been a breach of the parol agreement. It is not necessary, however, to base a conclusion on this proposition, as the case is determined on the other facts established by the evidence.</p> <p>The plaintiff’s demand for an account is based upon the allegation of an existing partnership. The allegation of partnership, however, is based upon the assumption of a title in trust by the defendant for the plaintiff. The evidence not being sufficient to support a decree of trust, the allegation of partnership necessarily fails. The bill charges that an agreement of partnership was formed at the time when the memorandum of January 28, 1895, was executed by the defendant, and that it was a part of the agreement under which the resulting trust is alleged.</p> <p>It seems clear, however, from all of the evidence, that the agreement between the plaintiff and the defendant with reference to the partnership was, that a partnership should be formed in the future. That it was not so formed at the time when the plaintiff and defendant went to Cleveland after the 28th of January, is evident from the plaintiff’s testimony. In the negotiation in reference to the transfer of the policies of insurance it clearly appears that the parties had in mind not an existing partnership, but a “proposed” partnership, and this tentative condition of things existed up to the period when the parties finally disagreed with reference to the articles of partnership. The entries of the bookkeeper in the books of the hotel, the dating of the letter heads, the transfer of the policies of insuranee, and the other acts referred to in the evidence, indicating a recognition of the partnership, are not inconsistent with this view of the case. The parties intended to form a partnership, and these acts were performed in view of an apparently confident expectation of each of the parties that there would be no difficulty in arranging the details of a contract of partnership. Having failed so to do, however, no partnership existed, and the plaintiff is not therefore entitled to an account.</p> <p>The defendant tendered to the plaintiff the amount due under the terms of the articles of agreement, including the amount which the plaintiff had paid to apply on one of the mortgages which was an incumbrance upon the property at the time defendant purchased it. The balance of the purchase money is applicable upon these mortgages in accordance with the provisions of the articles of agreement. The plaintiff has, therefore, suffered no prejudice, and is entitled to and can at any time receive the amount due him from the property. There does not therefore appear to be any such equity in the case presented by the plaintiff as warrants the relief sought in the prayer of the plaintiff’s bill. It is therefore dismissed at the cost of the plaintiff.</p> <p>Error assigned was decree dismissing bill.</p>

<p>Appeal, No. 345, Jan. T., 1895,. by plaintiff, from order of C. P. Lycoming Co., June T., 1893, No. 390, permitting condemnation proceedings to be discontinued.</p> <p>Petition to discontinue condemnation proceedings. Before Wickham, P. J., of the 36th judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order permitting the railroad company to discontinue the proceedings.</p>

<p>Appeal, No. 109, Jan. T., 1896, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1894, No. 1085, refusing to take off nonsuit.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 145, Jan. T., 1896, by The Philadelphia Traction Company, one of the defendants, from judgment of C. P. No. 8, Phila. Co., Jan. T., 1896, No. 145, on verdict for plaintiff.- ■ Trespass for personal injuries. Before Finlettek, P. J. At the trial it appeared that on October 21, 1891, plaintiff was driving a large barrel wagon on the tracks of the street railway company. The street was paved between the rails, but outside of the rails was an ordinary dirt road.

<p>Appeal, No. 161, Jan. T., 1896, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1893, No. 380, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Sulzberger, J.</p> <p>At the trial it appeared that on December 2, 1893, plaintiff’s husband, Sidney John Philpott, was killed at the crossing of Oottman street, or Township Line road, and the defendant’s railroad, near Tacony. At the place of the accident there were four tracks, the two innermost being used for freight, and the outside ones for passenger trains. The deceased and a man named Kerr approached the crossing when a freight train consisting of about sixty freight cars was coming from the north on the third track. They cleared the third track, and when the deceased was upon the fourth track he was struck by a light engine coming from the north, and instantly killed. The track for a mile to the north of the crossing was almost straight. The speed of the freight train seems to have been about fifteen miles an hour, and that of the light engine from forty to sixty miles. There was conflicting evidence as to the distance of the freight train from the crossing at the time the deceased and his companion started to cross the track, the distance varying in the evidence from one hundred feet to two hundred yards. The evidence was also conflicting as to whether or not the light engine upon the fourth track had sounded its whistle or rung its bell. The evidence for the plaintiff tended to show that the deceased stopped, looked and listened at a place a few feet from the first track. The deceased was forty years of age, and a file cutter by trade. The accident occurred about 2:30 p. M.</p> <p>Defendant’s points were among others as follows:</p> <p>1. The evidence shows that the deceased attempted to cross the railroad in front of a long train of cars whose approach on track No. 3 was plainly visible, and which train, although moving slowly, was nearing the crossing when the deceased started to go over. It was the duty of the deceased, under such circumstances, to wait until the train on No. 3 track passed by. Its approach necessarily hid a portion of track No. 4, and the noise made by it was calculated to drown the noise of any locomotive or train approaching on said track No. 4 and to prevent signals of such train from being heard. To cross the tracks under such circumstances was negligence on the part of the deceased. Answer : The facts as arrayed here are for the consideration of the jury. They are very forcibly arrayed, and they ought to have great weight in your minds, but nevertheless I will not say to you as a matter of law under the circumstances of this case that the decedent was bound to wait until the train on No. 3 track, which has been called the freight train, had passed by. Nor will I say to you as a positive matter of law that crossing the track by the decedent under the circumstances was negligent, but I say to you that, bearing in mind the circumstances stated in the point, and giving them all the effect possible, it is for you to determine whether under those circumstances an ordinarily prudent man ought to have gone across. If he ought not to have gone across on consideration of these circumstances narrated in this point, and the circumstances in the case generally, then your verdict must be for the defendant. If you think, however, that an ordinarily prudent man ought to have gone across, then your verdict may be for the plaintiff. [2]</p> <p>2. If the jury believe that the deceased, by waiting until the train on No. 3 track had got over the crossing, could have commanded a better view of track No. 4, and could have had a better opportunity of hearing the approach of a locomotive or train on the track last mentioned than he could have commanded or had while the train on track No. 3 was drawing near, then they must find for the defendant; because it is the duty of a person who is about to cross a railroad when an uninterrupted view of the track is wholly or partially prevented by the existence of an obstruction which is being removed, to wait until that obstruction is removed and the view thus becomes uninterrupted; and if the facts are found as stated in the first portion of this point, then the deceased did not perform his duty, and he was guilty of such contributory negligence as will preclude a recovery by the plaintiff. Answer: I again say to you that these considerations of fact, if you should find them so, are all of the very greatest importance in determining the responsibility of the decedent at that time and place, but I will not charge you as a matter of law that the thing is concluded. It is for you to determine under all the facts whether, by admitting the facts as narrated in the point, the decedent was justified at that time and place and under those circumstances, as an ordinarily prudent man, in going across. If he was, the plaintiff is entitled to a verdict. If he was not, the defendant is entitled to a verdict. [3]</p> <p>3. It appears from the record that the plaintiff, Mary Buck, married after the bringing of this suit, and that her second husband is still alive. The jury are entitled to take this circumstance into consideration by way of diminution of any damage which the plaintiff may have sustained by the death of her husband, Sydney John Philpott. Answer: The third point submitted by the defendant I decline. [4]</p> <p>4. Under all the evidence in the case the verdict must be for the defendant. Answer : I also decline the fourth point submitted by the defendant. [5]</p> <p>Verdict and judgment for the plaintiff for $7,000. Defendant appealed.</p> <p>Errors assigned, among others, were (2-5), above instructions, quoting them.</p>

<p>Appeal, No. 292, Jan. T., 1896, by plaintiff from judgment of C. P. Cumberland Co., Sept. T., 1895, No. 351, on verdict for defendant.</p> <p>Assumpsit on subscription to tbe stock of a corporation. Before Biddle, P. J.</p> <p>The material facts will be found in tbe charge of tbe court.</p> <p>At tbe trial it appeared that tbe stock wbicb had been issued to defendant and not paid for bad been, immediately upon the issuing of tbe certificate, assigned to Smith, Tate & Co., tbe contractors, who constructed tbe water plant for tbe corporation, and that they took it as part compensation for their work, in accordance with tbe terms of their contract with tbe corporation. Tbe plaintiff offered, under objection and exceptions, evidence tending to show that tbe water works built by tbe contractors were defective. Tbe court rejected tbe several offers and sealed bills for plaintiff (1-3).</p> <p>Tbe court charged as follows :</p> <p>A number of pomts have been presented to the court, both by tbe plaintiff and defendant, and after a very careful consideration of tbe whole case, we have come to tbe conclusion that the last point of tbe defendant must be affirmed, and therefore it is unnecessary for us to specifically refer to tbe other points. That wbicb we affirm is as follows: “ On tbe whole evidence, the verdict should be for tbe defendant.”</p> <p>On May 9,1892, tbe Hummel heirs, of whom tbe defendant was one, being desirous to organize a company for tbe purpose of supplying tbe inhabitants of Riverton and vicinity with water, entered into a written article of agreement with Smith, Tate & Company for tbe purpose of effecting that object. Tbe Hummel heirs agreed’therein that they would proceed immediately to procure a charter for a company, to be known as the Riverton Water Company, with other stipulations, and Smith, Tate & Company covenanted to construct the plant as specified in' the agreement for a consideration of $40,000, to be paid as follows: $5,000 to be paid within two days after the agreement was signed; $5,000 when the work was completed, and the reservoir pumped full of water, and the remaining $30,000 to be paid in stock when the work should be completed. Articles of association for the incorporation of the Riverton Water Company were signed and acknowledged on May 9, 1892, and a charter was granted to the said company on June 2 following. That the articles of association were acknowledged before the recorder of Dauphin county, and not entered of record in this county until October 31, 1893, we do not regard as material in this issue.</p> <p>The capital stock of the company was fixed at $40,000, divided into eight hundred shares at a par value of $50.00 each. The subscribers to the stock and the number of shares subscribed for by them respectively was as follows :</p> <p>R. H. Hummel, the defendant in this case, 395 shares.</p> <p>Valentine Hummel, 394 shares.</p> <p>John A. Herman, 5 shares.</p> <p>Paul A. Kunkle, 5 shares.</p> <p>William M. Hain, 1 share.</p> <p>On January 7, 1893, at a meeting of the stockholders, a motion was adopted authorizing the company to deliver to Smith, Tate & Company, contractors, $5,000 of the stock of the company, in addition to the $30,000 of the stock which was agreed to be delivered by the contract of May 9, 1892, in payment for the erection of the water works, so that they should receive $35,000 in stock, instead of $30,000 in stock on account of the $40,000 consideration mentioned in said contract. Accordingly on January 12, 1893, a written agreement, which is in evidence, embracing the terms of said motion, was duly executen by the Hummel estate and the Riverton Water Company, of the first part, and Smith, Tate & Company, of the second part. Two days later, the agreement was ratified at a meeting of the stockholders, and copied in full upon the minutes. Three hundred and ninety-five shares of stock were issued in the name of R. H. Hummel, the defendant, being the number subscribed for by him, and on January 19 one hundred and fifty of said shares were delivered to him as his own property. Certificates for the remaining two hundred and forty-five shares were, on that date, handed to him by the secretary, and he at once assigned the same by indorsement to Smith, Tate & Company, and handed them to the secretary, who immediately delivered them to Smith, Tate & Company, in part payment by the River-ton Water Company of the consideration for the construction of the water works, as specified in the agreement of January 12. Of the one hundred and fifty shares received and retained by the defendant, one hundred shares had been paid for by the Hummel hems in cash to the treasurer of the company, and the other fifty shares were retained by him under a supposed agreement with Smith, Tate & Company, but he subsequently paid that firm for the same, after a verdict in their favor, and this stock was credited to the water company on the contract.</p> <p>No fraud on the part of the defendant is shown or indicated, except in relation to the fifty shares retained from the contracts, which he subsequently paid for as aforesaid, and we know of no rule of law upon which he can be held liable to the Riverton Water Company, under the evidence adduced, or proposed to be adduced, in the case.</p> <p>The contract with Smith, Tate & Company may have been a disadvantageous one to the Riverton Water Company, but the stockholders were all satisfied with it at the time, and both authorized it and ratified it, and the company is not now in a position to complain of their action.</p>

Appeal, No. 136, Juty T., 1895, by defendant, from order of C. P. Warren Co., March T., 1896, No. 42, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit upon indorsement of promissory note and acceptances of drafts. Before Noyes, P. J. Rule for judgment for want of sufficient affidavit of defense.

<p>Appeal, No. 348, Jan. T., 1896, by plaintiffs, from judgment of C. P. Potter Co., Sept. T., 1893, No. 242, on case tried before the court without a jury.</p> <p>Replevin to recover 1,300,000 feet of hemlock saw-logs.</p> <p>The case was tried before Olmsted, P. J., without a jury.</p> <p>The opinion of the court was as follows:</p> <p>FINDINGS OF FACT.</p> <p>1. I find as a fact in the case that on the 12th day of September, A. D. 1892, a contract was entered into in writing between H. A. Kent (one of the defendants), of the first part and Strong, Deemer & Co. (plaintiffs) of the second part, by the terms of which the party of the first part agreed to sell to the party of the second part about 3,500,000 feet of merchantable hemlock saw logs to be cut from timber that Kent had purchased of the Westfield Tanning Company. The logs to be banked securely on the bank of the creek during the winter and put afloat in the spring of 1893, in time for the first drive; the said Strong, Deemer & Co. agreeing to pay the said Kent at the rate of $4.65 per thousand feet, board measure, for all said logs so stocked and delivered.</p> <p>2. I find as a matter of fact that the payments were to be made as follows: Tbe party of the second part to advance from time to time as the logs were being cut and skidded and stocked on the bank the sum of $1.50 per M. when the logs were cut and skidded and $1.50 per M. when the logs were hauled and put on the landing, and the balance, $1.65 per M., was to be settled for by Strong, Deemer & Co., by giving the said Kent their note for four months, when all the logs were put afloat as per contract.</p> <p>8. I find as a matter of fact that on the 16th day of September, A. D. 1892, Strong, Deemer & Co. gave to Kent to apply on the above contract their two notes of $1,000 each, payable four months after date at the bank of Cochran, Payne & McCormick at Williamsport, Pa.</p> <p>4. I find as a matter of fact that these notes were paid at maturity and that no other payments were made upon the contract.</p> <p>5. I find further, as a matter of fact, that on the 1st day of December, A. D. 1892, the above described contract was assigned by Kent to P. C. Dinniny, one of the defendants, and that on the 23d day of December, 1892, an agreement was entered into between F. C. Dinniny and Strong, Deeme.1 & Co., to which a copy of the contract of September 12, 1892, was attached and the assignment by Kent to Dinniny was agreed to, and the said Dinniny agreed with Strong, Deemer & Co. to carry out the contract of September 12, 1892, with the modification that where the original contract provided for the delivery of 3,500,000 feet of logs the contract should be for whatever timber there was upon the land described in the contract of September 12, 1892, supposed then to be less than 3,500,000.</p> <p>In this supplemental contract F. C. Dinniny admitted the payment of $2,000, as described above. Said contract of December 28, 1892, was signed by Strong, Deemer & Co. and F. C. Dinniny.</p> <p>6. I find as a matter of fact that F. C. Dinniny, or those working under him, cut, skidded and placed upon the bank of the stream during the winter of 1892-3 about 1,400,000 feet of logs, which logs were scaled and marked as required by the contract, but did not put them afloat by breaking the landing and rolling them into the stream.</p> <p>7. I find as a matter of fact that the parties disagreed as to the time of the payments to be made by Strong, Deemer & Co. .and that the defendants refused to allow the plaintiffs to take possession of the logs, Dinniny claiming that the logs were yet his and in his possession, and the plaintiffs, claiming and demanding possession, sent their employees some time in the spring of 1893 to put the logs into the stream for floating to Williams-port, and that they were prevented from rolling them in by force ■and threats from Kent, one of the defendants.</p> <p>8.1 find as a matter of fact that the plaintiffs on the 18th day -of August, 1893, issued their writ of replevin in this case and that the logs were replevied by the sheriff, and possession of the ■same delivered to the plaintiffs’ agent, W. F. Hamilton, on the 28th day of the same month.</p> <p>9. I find as a matter of fact that all the merchantable hemlock timber upon the land described in the contract was not cut and placed upon the bank of the stream by the defendants.</p> <p>10. I do not find as a matter of fact, notwithstanding the ■construction of the parties during the winter of 1892-3, that there is any ambiguity in the contract of September 12, 1892, that affects in any way the determination of the case as it now .stands.</p> <p>11. I find as a matter of fact that whatever the construction of the contract should be in reference to advances during the cutting and skidding of the logs, when cut and skidded the defendants could demand the sum of $1.50 per M. and could demand $1.50 per M. when drawn from the skids and placed upon the bank, but the defendants could not legally demand the sum of $1.65 per M. until they had rolled the logs into the stream and put them afloat.</p> <p>12. I find that by the terms of the contract when the logs were placed upon the bank there was due the defendants from the plaintiffs about the sum of $2,200 over and above a credit of $2,000 paid in notes provided for in the contract.</p> <p>FINDINGS OF LAW.</p> <p>1. I find that the contract of September 12,1892, and its supplements of December 28, 1892, were executory contracts.</p> <p>2. I find as a matter of law and of fact that the logs on the day they were replevied by the plaintiffs from the defendants were yet in the legal possession of the defendants.</p> <p>3. I find as a matter of law that at the time of the issuing of the replevin the plaintiffs had no right to seize the possession of' the logs or by force or otherwise to take them into their possession without the consent of the defendants.</p> <p>4. I find as a matter of law that the plaintiffs by having the-logs measured and marked with their mark during the winter of 1892-3, while yet in the woods upon the skids or on the landing, did not oust the possession of the' defendants, nor, under the terms of the contract, reduce them to their possession and control.</p> <p>5. I find as a matter of law that, while at the time of the issuing of the writ of replevin, the plaintiffs may have; had a qualified property in the logs, that, as they were not entitled to the possession, this action of replevin cannot be sustained, and that judgment should be entered pro retorno habendo in favor of the defendants.</p> <p>AKGUJMENT.</p> <p>That the contract in this case was executory is too evident for argument. The case of Pritchett and Another v. Jones, 4 Rawle, 259, is strikingly like the one under consideration and the opinion of Judge Gibson in the case settled the distinction between an executoiy and an executed contract. Its correctness-has not been shaken or questioned. I quote from the opinion t “ The distinction between a sale which transfers the ownership- and an agreement to sell and deliver at a day certain, which gives but an action for the breach of it, is a broad one distinctly understood and practically observed in the current transactions of business. . . . Every agreement for a subsequent delivery is essentially executory. . . . The parties dealt expressly with reference to the price which the leather would fetch when fit for the market; and having treated in reference to a future condition of the article, a future price and a future delivery, the contract was necessarily executory as every sale of an unfinished article must be when not sold and delivered as such. Unquestionably, the property is an article made to order, passes but by the delivery of it, because, at the time of the order, which is the date of the contract, there was no property in anything to pass ;■ and it will scarcely be pretended that the accidental existence of a part of the work at the time, would give the customer a specific right to the whole.”</p> <p>See also Anderson’s Law Dictionary, page 248 ; Anderson v. Reed, 106 N. Y. 833 ; Winslow v. Leonard, 24 Pa. 14; Story on •Contracts, 53-55; 2 Blackstone’s Commentaries, 443. At the date of the contract the timber was in the woods, the contract provided jnst what was to be done by Kent, step by step; first, it was to be cut and skidded, and for cutting and skidding $1.50 per M. was to be paid; then the logs were to be “ banked securely from any floods on the bank of the creek during the winter,” when $1.50 per M. was to be paid. Then they were to be “ put afloat (by Kent) in the spring in time for the first spring drives,” and when all the logs were put afloat the plaintiffs were to give Kent their note at 4 months for $1.65 per M., making the sum of $4.65 per M. the whole contract price.</p> <p>By what possible construction of this contract can we come to the conclusion that the parties to it contemplated that the plaintiffs had the right to the possession of the logs until they were rolled into the stream by Kent for transportation by plaintiffs to Williamsport, where plaintiffs’ mills were located? Kent had the right under the contract to demand and receive a sum amounting in the aggregate to $3.00 per M. when he had the logs placed upon the bank, and simultaneous with his rolling them into the stream to demand the plaintiffs’ note at four months for the balance then due. I can see nothing in the course of dealing between the parties or in their conduct in relation to the whole transaction that indicated that the contract received any other construction than the construction logically to be drawn from its plain letter.</p> <p>I find no decided case that justifies a vendee under an executory contract in seizing the property (in the absence of any fraud) at any stage of the process of manufacture when it may please him to do so. If the plaintiffs could seize the logs when on the bank and oust the defendants of their possession, why could they not have seized them when on the skidds in the woods or at any time when it pleased them to do so? Such a construction would place the vendor entirely at the mercy of the vendee. The vendee might discover that the timber and the placing it upon the skidds were worth much more than the $1.50 per M., which he agreed to pay at the time, and the banking and putting afloat were worth much less than he had agreed to pay, and so end the contract on the skidds by taking possession of the logs at that stage, and turn the vendor over to a possible remedy by an action for damages, which might be fruitless.</p> <p>It is contended with much ability by the learned counsel for the plaintiffs that the scaling and marking of the logs in controversy in the winter and spring of 1893 passed the possession or the right to the possession immediately to the plaintiffs. We cannot concur with the counsel in this construction, The contract is silent as to where or when the logs are to be scaled.</p> <p>It provided that they are “ to be well stamped at both ends with a stamping hammer to be furnished by the party of the second part (D. M. R.) and in conclusion of this contract it is agreed that the party of the second part are to furnish a competent scaler to scale the logs and to pay him for his services and the parly of the first part are to board him while scaling the same.” The custom of lumbermen is to scale the logs either upon the skiddways or on the bank and to place upon the logs a mark that is registered by the boom company at Williamsport. The measuring and marking must be done before the logs are placed in the stream as it cannot be done after-wards, and an unmarked log in a floating stream is a lost log. In view of these facts, why are we to conclude that the possession of logs becomes vested in the owner of the mark as soon as applied? The plaintiffs are lumbermen at Williamsport, where the logs were to be taken out of the stream for sawing. Their mark is their means of identifying their logs at that point. It was expected, of course, when the logs were stamped that they would subsequently be delivered to the plaintiffs in the stream as the contract required, but, if for any reason they were not, as between the vendor and vendee, the vendee acquires no new or additional interest in the property not given him by his contract. The evidence seems to show that the first scaling and marking commenced in December, 1892, and ended in March, 1893. It was undoubtedly done from time to time during the winter as the cutting and skidding and banking progressed.</p> <p>Replevin cannot be maintained without showing either a general or special property in the plaintiff together with tbe right of immediate possession: R. R. Company v. Elisey, 85 Pa. 283.</p> <p>The plea of property imposes upon the plaintiff the necessity of establishing his title and the right of exclusive possession. Mathies v. Sellers, 86 Pa. 486.</p> <p>The distinction between a sale which transfers the ownership and an agreement to sell and deliver at a day certain, which gives but an action for the breach of it, is a broad one. Every agreement for a subsequent delivery is essentially executory. See opinion of Gibson in Pritchett v. Jones supra; Hutchison v. Hunter, supra; Davis v. Miller, 12 Southern Rep. 27; Whitney v. Hah, 47 N. W. Rep. 27.</p> <p>We are of the opinion that the contract in this case was executory and that the plaintiffs at the time of the service of the writ of replevin in tins case had not a clear right to the possession of the property and that they cannot therefore recover in the case. In this view of the case it is not important just how many logs the defendants placed upon the landing nor what they were worth per thousand feet, nor whether the defendants had cut and banked all the timber upon the lot nor just what the state of the accounts was between the parties, at the impetration of the plaintiffs’ writ.</p> <p>All these questions may come before the court in the litigation hereafter.</p> <p>The parties to this contention are intelligent and responsible men. It seems passing strange that they should persist in this litigation, when it is so entirely apparent that each can get by an adjustment of it just what he is entitled to under the contract, without loss to either. No rights of third parties intervene ; this contract is an existing and a solid one. A half hour’s investigation of the evidence of the witnesses who measured the logs will determine every disputed question of fact in the case, and yet the field for litigation, which the parties seem determined to explore, is a broad one; and while it may be an interesting one yet its final result will tend little towards an adjustment of the actual equities of the parties.</p> <p>Error assigned was in entering judgment for defendants.</p>

Appeal, No. 209, Jan. T., 1896, by plaintiff:, from order of C. P. Union Co., Sept. T., 1894, No. 62, distributing proceeds of sheriffs sale of real estate. Exceptions to auditor’s report distributing proceeds of sheriff’s sale of real estate. The case was referred to D. W. Cox, Esq., as auditor.

Appeal, No. 361, Jan. T., 1896, by plaintiffs, and No. 367, by defendants, from judgment of C. P. Payette Co., September Term, 1894, No. 654, for defendants non obstante veredicto. Held: under the authority of Carter v. Strapham, Cowp. 201, that it might be made good by delivery of the same deed after the death of the husband. (See also Conklin v. Bush, 8 Pa. middle of page 517.) In Share v. Anderson, 7 S. &.

Appeal No. 362, Jan. T., 1896, by plaintiffs, from judgment of C. P. Fayette Co., June T., 1894, No. 61, in case stated. Error assigned was entering judgment for defendants on case stated.

Appeal, No. 393, Jan. T., 1894, by-William C. Stoever, from decree of C. P. No. 3, Pbila. Co., Dee. T., 1890, No. 353, on bill in equity. Bill in equity to enforce a stock subscription. The case was referred to George de B. Myers, Esq., as master, from whose report the facts appear as stated in the opinion of the Supreme Court.

<p>Appeal, No. 394, Jan. T., 1894, by Martin H. Stutzbach, from decree of C. P. No. 3, Phila. Co., Dec. T., 1890, No. 353, on bill in equity.</p>

<p>Appeal, No. 403, Jan. T., 1895, by-defendant, from judgment of C. P. No. 4, Phila. Co., June Term, 1892, No. 859, on verdict for plaintiff.</p> <p>Trespass to recover special damages caused bjr the obstruction of a highway. Before Willson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The plaintiff1 offered to prove that at the time that this fence was put up he was carrying on the business of a contractor in that part of the city of Philadelphia, and in consequence hauled a great number of loads of dirt from the west side of the railroad to the east side of the railroad, in pursuance .of his lawful calling ; and that after the fence was put up that traffic was virtually destroyed, and in consequence of that he lost a large sum of money, which he will be able to show by the evidence.</p> <p>Objected to, because that is not the subject of compensation in this proceeding, and is irrelevant. Objection overruled. Exception for defendant. [1]</p> <p>The court charged in part as follows :</p> <p>[I say to you without qualification that I see nothing in the evidence here which justified the defendant company in erecting the fence across the Tacony road, as you heard it was erected.] [2]</p> <p>Defendant’s points were as follows:</p> <p>1. That the defendant had the right to raise its roadbed to conform to the revision of grades authorized by the ordinance of March 21, 1887, and is not hable for any damage incident thereto. Answer: I refuse the point as not applicable to the case as it stands before me upon the evidence. [3]</p> <p>2. That the alleged injury arising from a change of grade at Princeton and Cottman streets obliged the plaintiff, if there be any damage, to have recourse to the-city for compensation. Answer: I refuse the point as not applicable to the case as it stands before me upon the evidence. [4]</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-4) above instructions, quoting them.</p>

Appeal, No. 354, Jan. T., 1895, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1894, No. 887, on verdict for plaintiff. Feigned issue to determine the ownership of a policy of life insurance. Before Archbald, P. J. At the trial it appeared that on January 22,1877, the assured, Frank McDonnell, executed an assignment of a policy of life insurance for $2,000 to Thomas McHale.