Volume 176 — Pennsylvania State Reports

Appeal, No. 198, Jan. T., 1896, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1892, No. 131, on verdict for defendant. Held: was obliged to become the purchaser of the real estate, paying therefor the sum of $201.56, being the amount of costs on the Finn judgment, but, not having any money in his hands belonging to the estate, with which to make the payment, he borrowed the sum of $201.56 from Pardon T. Barber, one of the heirs, and gave him a receipt or…

<p>Appeal, No. 207, Jan. T., 1896, by defendant, from judgment of C. P. Berks Co., June T., 1894, No. 12, on verdict for plaintiff.</p> <p>Scire facias sur mechanic’s lien. Before Ekmentbout, P. J.</p> <p>At the trial it appeared that plaintiff contracted with defendant to build for him a four story store building, and to complete the building by December 1, 1892. The building was not completed until March 15, 1894. Plaintiff claimed that fifty-three days of the delay was caused by the defendant giving an oral order to change a girder in the building. The contract contained among others the following provisions :</p> <p>“ Orders which do not affect the cost of the work may be given by word of mouth, but no order for any change which increases or diminishes the cost of the work or affects the time of completion shall be valid unless given in writing.”</p> <p>“ If the said party of the second part shall fail to complete the said work, including all variations, should such be made at or before the time agreed on with such extension, if any, in the case of extra work, as may have been made, then and in that case the said party of the second part shall forfeit and pay to the said party of the first part the sum of ten dollars ($10.00) for each and every day that the said work shall remain unfinished after the time agreed upon for their completion, unless such delay could not with reasonable diligence and prudence have been avoided or foreseen by the party of the second part, the sum so forfeited to be retained as liquidated and ascertained damages out of any money that may then be due or owing, or may hereafter become due or owing -to the said party of the second part on account of their work and materials under this contract.”</p> <p>The court charged in part as follows:</p> <p>In the agreement it is provided that “if the party of the second part,” that is, Focht, “ shall fail to complete the said work,” etc., “ at or before the time agreed on with such extension if any in the case of extra work as may have been made, then and in that case the said party of the second part shall forfeit and pay to the said party of the first part the sum of $10 for each and every day that the said work shall remain unfinished after the time agreed upon for their completion,” — (that is, he must pay $10.00 for each and every day,) — “unless the delay could not with reasonable diligence and prudence have been avoided or foreseen by the party of the second part.” If that could not, with reasonable diligence and prudence, have been avoided or foreseen, then even though a delay did occur, the plaintiff would not be liable for these damages. Therefore the jury will ascertain, first, was there a delay, and, if so, how many days, and, second, has the plaintiff shown to your satisfaction that the delay could not, with reasonable diligence and prudence, have been avoided or foreseen by him. If the evidence shows that the delay could not, with reasonable diligence and prudence, have been avoided or foreseen, then the delay amounts to nothing, the plaintiff is not responsible for it and no damages can be assessed. But, unless that is shown, then you will consider the number of days delay at $10.00 a day and make an allowance.</p> <p>[Now, the delay being admitted, what is the contention of the plaintiff? His first contention is that on the 20th of July, 1893, there was a change in the girder. If the jury find from this evidence that Mr. Rosenbaum instructed Mr. Smith, the architect who drew up his plans, to have that girder changed, and if, as detailed in evidence here, it be true that this old girder, or, rather, the original girder which was to have gone in, was finished by July 20, 1893, and that, as the result of the request of Mr. Rosenbaum to change it, a new girder was not procured by him or under his instructions until September 13, 1893, the jury will consider what effect those fifty-three days which it required to change the girder may have had upon this work, and if that operated as a delay, then the plaintiff will have to show that that delay could not, with reasonable diligence and prudence, have been avoided or foreseen by him. The parties having contracted for the kind of girder set forth in the specifications, if it was the defendant’s fault or request that the girder should be changed, and thereby the work was delayed, it could not have been avoided or foreseen by the contractor that the defendant would request to have the girder changed, and he cannot be held responsible for whatever delay in the completion of the contract such change caused.] [2]</p> <p>We come next to the question of the detailed drawings. Under this contract Mr. Smith was employed by the defendant to furnish the specifications, and, whilst this contract is silent, it will be for the jury to find whether Mr. Rosenbaum undertook to furnish these detailed drawings. There is evidence to the effect that, whenever these detailed plans were required, Mr. Rosenbaum would go to the architect and they would be furnished by him. It is alleged by Mr. Eben, one of the workmen, that he was delayed some three weeks, or rather that he delayed the carpenters three weeks in the construction of this building because he had not these detailed plans, that he saw Mr. Rosenbaum, saw the different parties, and could not get them in time. Now, gentlemen, could Mr. Focht have foreseen that these "detailed plans would not be produced in time to enable his workmen fco go on with their work, or not? If thé delay resulted from the nonproduction of these detailed plans in these several instances testified to by Mr. Eben, and if that delay could not, with reasonable diligence and prudence, have been avoided or foreseen by the parties, that delay being to the extent of three weeks’ time, Mr. Focht would be excused from that delay.</p> <p>Defendant’s point was among others as follows :</p> <p>3. The change of the girder in the building, although a variation from the original specifications, did not, under the provisions of the agreement, relieve the plaintiff of the damages sustained by reason of the noncompletion of the building specified in the agreement. Answer: That point I will negative: I cannot affirm that proposition of the defendant. [1]</p> <p>Verdict and judgment for plaintiff for $2,535.12. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.'</p>

<p>Trusts and trustees — Lunacy—Interlocutory order.</p> <p>A fund belonging to a distributee was awarded by the orphans’ court to a trustee to hold until appropriate proceedings could be taken to secure the distributee’s interest. This award was based on a finding by the court that the distributee by reason of mental imbecility was incapable of managing her estate. The weak-minded distributee executed a deed appointing a trust company trustee of her estate. The decree of the orphans’ court was affirmed by the Supreme Court. Subsequently a petition was filed purporting to be the petition of the distributee praying that the fund should be awarded to the trust company appointed under the deed of trust. Citations were issued to the distributee’s sisters who were her next of kin. The sisters appeared and filed answers averring that the distributee did not comprehend the provisions of the deed of trust, nor desire that the fund should be awarded to the trust company named therein. The case was heard on bill and answer, and the court dismissed the petition. Held, (1) that the action of the lower court was without error; (2) that the fund should remain in the hands of the trustee to which it had been awarded under the decree of the orphans’ court, until proceedings should be had either under the act of June 13,1836, P. L. 589, or the act of June 25, 1895, P. L. 300, for an adjudication as to her competency to manage her own estate.</p>

<p>Res judicata — Record—Justice of the peace — Evidence.</p> <p>In :m action to recover tbe price oi flagstones sold and delivered by plaintiff to defendant, defendant claimed that plaintiff’s claim had been adjudicated in a prior suit before a justice of the peace. The record of the prior suit showed that the claim in this suit was one of the items claimed in that. The evidence showed that it was the only disputed claim on the trial of the first suit. The plaintiff then claimed that he sold the flagstones to the defendant, and the defendant claimed that he bought them from another person. Held, (1) that inasmuch as plaintiff had submitted his claim to the adjudication of the justice of the peace in the first suit, it was res judicata; (2) that the fact that the magistrate misapprehended the effect of the judgment he entered in the first suit furnished no warrant for a judgment for the plaintiff in the second suit.</p>

<p>Evidence — Question for jury — Parol evidence. Where a ease depends on oral testimony, such testimony must be submitted to the jury.</p> <p>Evidence — Deed— Condition —Ejectment.</p> <p>In an action of ejectment, where the plaintiff relies upon the breach of a condition alleged to have been contained in a lost deed, and offers the testimony of two witnesses as to the terms of the condition, the case is for the jury, although the defendant offers no testimony to contradict the testimon}' offered by the plaintiff as to the contents of the lost deed.</p>

<p>Judgments — Opening judgments — Discretion of court. ■</p> <p>The action of the common pleas in opening a judgment will not be reversed, except for manifest error.</p> <p>Judgment — Opening judgment. — Building contract.</p> <p>On a rule to open a judgment the defendant claimed that the note upon which judgment was entered was made to raise money to carry on a building operation in which he and the plaintiff were jointly interested; that it was agreed between them that upon the completion of the operation the defendant was to convey to the plaintiff sixteen of the houses, and was to receive from him the said note and other obligations which he had given ; that he had offered to convey and had tendered a deed on the condition agreed upon, and that the tender had been refused by the plaintiff. Plaintiff claimed that certain debts against the houses were to be paid by defendant before he was entitled to have the notes delivered back. The evidence on this question was conflicting. The defendant afterwards conveyed the houses to a third party. Held, (1) that an issue was properly awarded to determine the validity of the judgment; (2) that the fact that the defendant conveyed the houses to a third party and thus put it out of his power to comply with the terms of the written agreement did not make him unconditionally liable on the judgment, inasmuch as his conveyance of the houses in discharge of claims was in the interest and for the relief of both parties.</p>

Appeal, No. 12, Jan. T., 1896, by plaintiff, from judgment of C. P. No. 2, Pbila. Co., Sept. T., 1893, No. 189, on verdict for plaintiff for less than claim. Assumpsit for breach of contract. Plaintiff entered into an agreement with John J. Cassidy to do the carpenter work on fifty-six houses which Cassidy afterwards transferred to defendant. Plaintiff and defendant modified the Cassidy agreement and plaintiff finished the work for the defendant.

Appeal, No. 177, Jan. T., 1896, by-defendant, from judgment of C. P. No. 1, Phila. ,Co., Dec. T., 1892, No. 684, on verdict for plaintiff. Trespass for personal injuries. Before Brégx, J. Tbe facts appear by tbe opinion of tbe Supreme Court.

<p>Appeal, No. 22, July T., 1894, by Joseph D. Scott, from order of C. P. Huntingdon Co., directing resale of land.</p> <p>Rule upon purchaser at assignee’s sale to show cause why resale should not be ordered.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The receipts referred to in the opinion as attached to the depositions, are as follows :</p> <p>$- April 28, 1891.</p> <p>Received from Mrs. Susan J. Scott Forty Dollars being the per cent, of sale of house sold her this day for $40.00.</p> <p>Isaac Taylor,</p> <p>No.- Assignee of John W. Scott.</p> <p>$110. Oct. 12th, 1891.</p> <p>Received from J. D. Scott One Hundred and ten dollars for money paid on property which I sold to him.</p> <p>No.- Isaac Taylor, Assignee.</p> <p>The property was bid off by Susan J. Scott, but the sale was confirmed by Susan’s consent to Joseph D. Scott.</p> <p>Error assigned was in making absolute a rule for resale.</p>

<p>Appeal, No. 229, July T., 1895, by J. H. Curtis and E. H. Flick, two of the defendants, from decree of C. P. Blair Co., No. 239, in equity for the appointment of a receiver.</p> <p>Bill in equity for the appointment of a receiver and for an injunction.</p> <p>On motion for the continuance of a preliminary injunction, and rule for the appointment of a receiver* Bell, P. J., found the facts to be as follows :</p> <p>On July 12, 1895, Fox & Curtis, wholesale shoe dealers of Altoona, were insolvent. On that day Curtis, one of the partners, confessed judgment as follows: To Curtis, Jones & Co., $4,500; to S. M. Meredith, trustee for L. Candee & Co., $5,000. Executions on said judgments were on same day placed in hands of the sheriff and by virtue of said executions the personal estate (and it seems there is no real estate assets) has since-been sold, realizing some $4,600.</p> <p>On July 13,1895, at 9:25 A. M., Curtis likewise executed an assignment in writing of “ all the unpaid book accounts and outstanding claims due ” the firm “ scheduled and hereto attached as well as for all sales made from June 1st up to date as shown by the books of the said Fox & Curtis.” It is admitted by counsel for defendants that said assignment included all the accounts due Fox & Curtis. Plaintiff alleges that said accounts so assigned aggregate $25,000; this is not-denied by defendants, but they allege that only some $5,000 are collectible, while plaintiff alleges that from $10,000 to $12,000 are collectible by the use of proper care and tact. Said assignment by Curtis, one of the said partners, was to E. H. Flick, Esq., in trust for the plaintiff in said hereinbefore stated judgments.</p> <p>Fox, the other party, also made an assignment of these same book accounts to J. H. Fiske, in trust -for creditors of the firm; just what creditors does not appear; inferentially it would seem from the pleadings, for all the creditors. Defendants, allege, and. in the present state of the pleadings and proof we would find their allegations to be correct, that the assignment by Curtis antedated the assignment by Fox.</p> <p>The court continued the perliminary injunction, and appointed a receiver. J. A. Curtis and E. H. Flick, trustee, appealed.</p> <p>Error assigned was decree continuing injunction and appointing a receiver.</p>

<p>[Marked to be reported.]</p> <p>Sheriff — Boarding vagrants — Ghange of compensation — Public officer.</p> <p>Where the compensation to the sheriff for boarding vagrants has been fixed by an order of court, and boarding has been furnished under the order, the court cannot make a subsequent order increasing the compensation so as to cover the boarding furnished during the continuance of the previous order.</p> <p>County auditors, Findings of — Compensation of public officers.</p> <p>A finding by county auditors that a sum due to a public officer is a certain amount if a particular order of court is valid, and that it is a less amount if the order is invalid, is not such a settlement of the account of a public officer, which, unappealed from, has the force of a conclusive decree for the payment of the larger amount.</p>

<p>Appeal, No. 179, July T., 1896, by defendant, from judgment of C. P. Cumberland Co., May T., 1895, No. 234, on verdict for plaintiff.</p> <p>Ejectment for a lot on East Main street in the borough of Mechanicsburg. Before Biddle, J.</p> <p>At the trial it appeared that the plaintiff claimed title under a deed of assignment for the benefit of creditors executed by Lafayette Woods. Defendant is the wife of Lafayette Woods, and she claimed that $1,500 of the purchase money of the property was her money, and to that extent there was a resulting trust in her favor in the lot which stood in her husband’s name. The entire purchase money was $2,000.</p> <p>The court charged as follows:</p> <p>This is an action of ejectment brought by W. Penn Lloyd, assignee for the benefit of creditors of Lafayette Woods, now deceased, against Elizabeth Woods, widow of said decedent, for a house and lot in the borough of Mechanicsburg. The legal title- to the property is now in the plaintiff by virtue of a deed from Henry Wolf and wife to Lafayette Woods, dated April 7, 1876, and a deed of assignment by Lafayette Woods and wife to the plaintiff, dated August 1, 1894. The consideration paid for the property by Mr. Woods, as mentioned in the deed, was $2,000. [The defendant has undertaken to show, and probably has shown to your satisfaction, that $1,500 of said purchase money was furnished by her, and she contends that by reason thereof a resulting trust arose in her favor for an undivided three fourths interest in the premises described in the deed. This position we cannot sustain, for she has not shown that there was any fraud practiced by her husband in getting her money and using it to help pay for the property, or that there was accident, mistake, concealment or breach of good faith on the part of her husband or of any one else in putting the title in her husband’s name. The evidence in the case, therefore, would not justify a verdict in her favor for the premises in dispute or for any interest therein, and we direct you to render a verdict in favor of the plaintiff.] [11]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned, among others, was above instruction, quoting it.</p>

<p>Statutes — Repeal of statutes — General ancl special laws.</p> <p>A general law will not operate to repeal a previous local act without some words indicative of such an intention ; but when it is the duty of the legislature to change an existing system because of some constitutional provision on the subject, and a law is passed for this purpose introducing a new system which is general in its terms and evidently intended to provide a uniform system for all subjects to which it relates, no repealing words are necessary.</p> <p>School laws — Statutes—Acts of February 12, 1869, and April 20, 1874.</p> <p>The sixty-sixth section of the act of February 12, 1869, P. L. ISO, entitied “ An act consolidating the wards of the city of Pittsburg for educational purposes,” limiting the indebtedness of the sub-school districts of Pittsburg was repealed by the act of April 20,1874, P. L. 65.</p> <p>Hutchinson’s Appeal, 4 Pennypacker, 84, is overruled so far as it relates to this question.</p>

Appeal, No. 42, July T., 1895, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket No. 3, p. 87, sitting in equity. Bill in equity for the cancellation of a deed, of trust.

<p>Appeal, No. 382, Jan. T., 1896, by defendants, from decree of C. P. Lancaster Co., Equity Docket, No. 3, p. 139, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The case was heard on bill, answer and proof, and Brubaker, J., filed the following opinion:</p> <p>This suit is brought by the plaintiffs, who are citizens, property holders and taxpayers, against the borough of Ephrata, the defendant, for the purpose of restraining its officers and agents from issuing and selling municipal bonds in the name of the said corporation, to be used in construction of certain water works by the borough, in pursuance of a special election held on July 9, 1895, and certain late borough ordinances.</p> <p>The case was heard at the March term of our equity court, at which time the testimony, filed of record, was taken and the matter fully argued by counsel.</p> <p>The following are the findings of fact, as we gather them from the testimony submitted.</p> <p>FINDINGS OF FACT.</p> <p>1st. That plaintiffs are owners of real and personal estate in the said borough of Ephrata, and all, except the said William Z. Sener, are residents thereof.</p> <p>2d. That on June 3, 1895, the town council of the said borough of Ephrata passed the following ordinance, to wit:</p> <p>AN ORDINANCE.</p> <p>An ordinance for the purpose of obtaining the assent of the electors of the borough of Ephrata to increase the indebtedness of said borough in the sum of thirty thousand dollars ($30,000), or as much thereof as is required for procuring or erecting a water plant for said borough.</p> <p>Be it ordained and enacted by the town council of the borough of Ephrata that a proposition be submitted to the qualified voters of said borough at a public meeting to be held therein for their assent or rejection of a proposed increase of the indebtedness of said borough to an amount greater than two and less than seven per centum of the last preceding assessed valuation of its taxable property; that said election be held at the public house of L. E. Royer, in the said borough, on Tuesday, July 9, A. D. 1895, between the hours of seven A. M. and seven p. M., and that the burgess give notice thereof during at least thirty da}^ by weekly advertisement in the newspapers of said borough; the amount of the proposed increased indebtedness to be $30,000, to be raised by bonds bearing four per cent, interest, maturing in not less than five nor more than thirty years, and the said moneys thus raised, or so much thereof as may be required, to be used for the purpose of procuring or erecting water works for said borough of such capacity as may be required to supply pure water for extinguishment of fire, and the protection of the borough and the property of its citizens and other public purposes, and of supplying its citizens with pure spring water for private and domestic uses.</p> <p>Enacted into an ordinance at a stated meeting of the borough council of the borough of Ephrata, county of Lancaster, state of Pennsylvania, held the third day of June, A. D. 1895.</p> <p>Geo. E. Mohler, Chairman.</p> <p>Attest: II. F. Hermes, Clerk.</p> <p>Approved this third 3rd day of June, A. D. 1895.</p> <p>W. K. Moiiler, Burgess.</p> <p>3d. That at a special election held in pursuance of the aforesaid ordinance on July 9, 1895, at the public house of L. E. Koyer, in said borough, qualified electors of said borough voted in favor of said increase of debt by a vote of two hundred and seventy-three in favor of and a vote of one hundred twenty-three against said increase of indebtedness.</p> <p>4th. That on September' 9, 1895, the town council of said borough of Ephrata passed the following ordinance, to wit:</p> <p>AN ORDINANCE</p> <p>Authorizing the burgess to advertise for and issue the loan of $30,000 for the purpose of paying for the erection of water works for the borough of Ephrata, Pa.</p> <p>Be it ordained and enacted by the town council of the borough of Ephrata, Pa., and it is hereby ordained by authority of the same:</p> <p>Section 1. That the burgess of said borough be and is hereby authorized to issue coupon bonds of the borough of Ephrata in such forms as are now prescribed by law to an amount not exceeding thirty thousand dollars ($30,000), said bonds to be in denominations of five hundred dollars ($500) each, redeemable in lawful money of the United States at the pleasure of the said borough after five years, and within.thirty years after their date, and bear interest at the rate of four per cent, per annum payable semi-annually at the office of the. treasurer of said borough, free of state tax.</p> <p>Sec. 2. That the burgess is hereby empowered, authorized and instructed to advertise for proposals for the said bonds, and to sell the same to the highest bidder thereof; Provided, said bid be not less than their par value, and apply the proceeds thereof to the payment of the debt incurred by the erection of the borough’s water works.</p> <p>Sec. 3. An annual tax of two mills on all subjects of taxation is hereby levied to pay the principal and interest of the above within thirty years, collectible and payable as other-borough taxes.</p> <p>Enacted into ordinance this ninth day of September, 1895.</p> <p>George E. Mohler, Chairman.</p> <p>Attest: H. F. Hermes, Clerk.</p> <p>Signed and approved this 9th day of September, A. D. 1895.</p> <p>W. K. Mohler, Burgess.</p> <p>5. That on September 12,1895, and on other days subsequent thereto, William K. Mohler, burgess aforesaid, advertised for sealed proposals for bids for the purchase of the whole or any part of the said $30,000 water bonds of the borough of Ephrata, in denominations of $500 each, as follows, to wit :</p> <p>NOTICE TO BOND BUYERS.</p> <p>Sealed proposals, indorsed “ Bids for Bonds,” will be received by the undersigned burgess of the borough of Ephrata until 7 o’clock p. M., Saturday, October 5, 1895, for the purchase of the whole or any part of the thirty thousand dollars ($30,000) water bonds of the borough of Ephrata, in denominations of five hundred dollars ($500) each, interest at the rate of four (4) per cent., payable semi-annually at the office of the borough treasurer, bonds bearing date November 1, 1895, and maturing in not less than five nor more than thirty years.</p> <p>These bonds are being issued for the purpose of erecting water works for the borough of Ephrata as decided by the voters of said borough at a special election held Tuesday, July 9, 1895, resulting in a vote of 273 in favor of and 123 against the increased indebtedness, said election having been held according to an act of assembly dated April 20, 1874.</p> <p>All bids must be accompanied by a certified check payable to the order of the undersigned, in the sum of two per cent, of the amount of said bid, which check.will be forfeited in case of a failure to complete contract. In case of bids being rejected, the checks will be returned at once after the bonds have been placed. The authorities reserve the* right to reject any and all bids. W. K. Mohler, Burgess.</p> <p>September 10, 1895.</p> <p>Attest: H. F. Hermes, Clerk.</p> <p>6. That in pursuance of said ordinances and notice above referred to, the said burgess of the borough of Ephrata proposes to issue coupon bonds to the amount of $80,000, as aforesaid, after the contract for the works is awarded to the contractor.</p> <p>7. That the amount of the taxable property of said borough of Ephrata, according to the last assessment, is $794,337 ; and the amount of the indebtedness of the said borough on January 1, 1894, was $15,500. The percentage of the proposed increase of indebtedness of $30,000 is about 3 and § per centum of said valuation.</p> <p>8. That the ordinance of September 9, 1895, providing for said issue of bonds to the amount of $30,000, assesses and levies an annual tax of only two mills upon the assessed valuation of the property of said borough, which tax if all were collected will, upon the valuation of the property of the said borough, amounting to $794,337, produce only the sum of $1,588.67, which will not in thirty years or less pay the interest on said bonds amounting to $1,200 per annum, and the principal thereof amounting to $30,000. That at a meeting of the councils of the said borough of Ephrata, on the 9th day of October, 1895, the following action was taken:</p> <p>. Section 3, of the former ordinance, was so amended as to read:</p> <p>“An annual tax of two and one-half mills on all subjects of taxation is hereby levied to pay the principal and interest of the said.loan of $30,000 within thirty years, collectible and payable, as other borough taxes.”</p> <p>That the said amendment to- said ordinance was approved by the burgess of said borough on October 10, 1895; that said annual tax of two and one-half mills would be sufficient to pay the interest on said proposed municipal bonds and the principal thereof within thirty years.</p> <p>9. That neither the principal officer or officers nor any officer or officers ©f the borough of Ephrata have filed in the office of the clerk of quarter sessions of Lancaster county any statement showing the actual indebtedness of the borough of Ephrata, the amount of the last preceding assessed valuation of taxable property therein, the amount of debts to be incurred, the form, number and date of maturity of the obligations to be issued therefor, the amount of annual tax levied and assessed to pay said indebtedness, to which there has been appended any oath or affirmar tion of the truth of the facts therein stated.</p> <p>10. That the proposed increase of indebtedness of the borough of Ephrata will exceed three per centum; that the ordinance as amended on October 9, 1895, levies a tax sufficient to pay the principal and interest of the debt within thirty years.</p> <p>CONCLUSIONS OK LAW.</p> <p>The main question submitted to us in this contention is the interpretation of the act of assembly of the 18th of April, 1895 (P. L. 86). The plaintiffs contend that the municipality by this act is permitted to increase its indebtedness to an amount not exceeding two per centum at any one time, and as the borough has proposed to increase it more than three per centum, such action is illegal, and without authority of law. The defendant, on the other hand, contends that the law permits the indebtedness of any borough to be increased to an amount exceeding two per centum, and not exceeding seven per centum, with the assent of the electors : that the act of 1895 does not change the law as it stood in this respect; that it intends only to relieve and abolish the eight per centum restriction under the act of 1874 (P. L. 65), and, therefore, seeks to amend section 4 of the act of 1874 for that purpose, leaving the act of 1891 (P. L. 252) in full force.</p> <p>Section 4 of the act of assembly of April 20, 1874, as amended by section 1 of the act of the 18th of April, 1895, reads as follows:</p> <p>44 Whenever, by the returns of such election, it shall appear that there is a majority voting for 4 no increase of debt,’ such increase shall not be made. Nor shall any other election upon the same subject be held in that municipality for one year from the date of such preceding election. If the return of such election shall show a majority voting that4 debt may be increased,’ the corporate authorities of the municipality may increase the same to the amount named and specified in the notice given for the holding of such election for increasing indebtedness, to an amount not exceeding two per centum, including the sworn statement to be filed in the office of the court of quarter sessions of the proper county; and they shall, before issuing any obligation therefor, assess and levy an annual tax, the collection whereof shall commence the first year after the said increase, which tax shall be equal to and sufficient for and applied exclusively to the payment of the interest and the principal of such debt within a period not exceeding thirty years from the date of such increase; and the moneys arising from such tax shall be applied, at such periods as the municipality may stipulate in such obligations, to the redemption at par, of the said outstanding obligations according to their terms.”</p> <p>Section 2. All acts and parts of acts inconsistent herewith be and the same are hereby repealed.</p> <p>It seems to us that the obvious intention of the act of 1895, as we read it, was to regulate the mode of increasing indebtedness as well as to relieve from and abolish the eight per centum restriction. It will be observed that it is a supplemental act to the act of 1874 with a distinct repealing clause, repealing all acts or parts of acts inconsistent therewith. The following words contained in section 4 of the act of 1874, and also in the act of 1891, commencing on the eighteenth line of section 4 of the former act, as cited for amendment, were altogether left out of the act of 1895 : “ In the manner and subject to all the requirements provided by the second section of this act.”</p> <p>The clause, as it stands in the former act, is as follows:</p> <p>“ If the return of such election shall show a majority voting that ‘ debt may be increased,’ the corporate authorities of the municipality may increase the same to the amount named and specified in the notice given by them for the holding of such election, in the manner and subject to all the requirements provided by the second section of this act for increasing indebtedness to an amount not exceeding two per centum, including the sworn statement to be filed,” etc.</p> <p>The clause as it reads in the act of 1895 is as follows:</p> <p>“ If the return of such election shall show a majority voting that ‘ debt may be increased,’ the corporate authorities of the municipality may increase the same to the amount named and specified in the notice given for the holding of such election for increasing indebtedness, to an amount not exceeding two per centum, including the sworn statement to be filed,” etc.</p> <p>The language of this act of assembly appears clear and intelligible. We cannot see that it needs any other interpretation than what the language plainly imports. We can see no ambiguity in it. It plainly indicates when and to what amount the debt may be increased, as it expressly says, to an amount not exceeding two per centum with the assent of the electors. The act does not pretend to limit the borrowing capacity of municipalities to two per centum, and, therefore, is not in direct conflict with article 9, section 8, of the constitution, which fixes the limit at seven per centum. It simply means, therefore, in our opinion, that a municipality can only increase its indebtedness at any one time, at any one election, to an amount not over two per centum, by a vote of the people. We are unable to see that any other construction of the law could be put upon this act, without ignoring the plain intention of the legislature.</p> <p>Nor are we permitted to assume in our interpretation of this act of assembly, as contended by the learned counsel for the defendant, that the draughtsman, in his attempt to repeat the entire section proposed for amendment, accidentally dropped the two lines commencing with the eighteenth line of section 4 of the act of 1874. This would be a violent presumption; for statutes cannot be construed in that way. On the contrary, in our opinion, the presumption would be that the legislature purposely intended to leave the matter out; and, perhaps, they did so wisely, having in view the purpose of checking municipal extravagance and expenditures, which have grown to enormous limits.</p> <p>If we are correct in our view of the law, the proposed increase of indebtedness and issue of bonds for f30,000 is illegal ; because the increase, of indebtedness, as is admitted by the defendant, will exceed three per centum. A.s we have said before, the act of 1895 was intended to repeal, as it says in section 2, all acts or parts of acts inconsistent therewith.</p> <p>We feel disposed to give the borough defendant the benefit of all other defenses, and confine our decision simply to the interpretation of the act o‘f 1895. We, therefore, treat the amended ordinance as regular, and permit the defendant to file the sworn statement required by the acts of 1874 and 1895, in ca§e the appellate court should not meet our view in the interpretation of the act of 1895. In pursuance of this opinion we have handed down a decree, making the injunction in this case perpetual, which we order to be filed with this opinion.</p> <p>Now, April 23,1896, this cause came on to be heard and was. argued by counsel at the March term, 1896, equity court, and thereupon it is ordered, adjudged and decreed as follows, viz :</p> <p>That the corporation of the borough of Ephrata, William K. Mohler, burgess, and George F. Groff, Jacob Spangler, J. B. Eshleman, George E. Mohler, John F. Mentzer, and David B. Lefever, town council of the said borough of Ephrata, and its corporate officers and agents, be and are hereby enjoined and perpetually restrained from making, signing, sealing, issuing or selling bonds or instruments of writing of any nature whatsoever, for or on behalf of or in the name of said borough of Ephrata, for the purpose of procuring or erecting water works for said borough, and from pledging the credit of said borough in any manner for the purposes aforesaid, and from issuing any bonds or evidences of indebtedness whatever in the name of the borough of Ephrata for said purpose, or any other purpose, in persuance of the special election held on July 9,1895, and under the ordinances of the said borough of Ephrata of June 3,1895, September 9, 1895, and October 9,1895, and if any bonds have been issued under said election and ordinances they be surrendered, delivered up and canceled, in accordance with the prayer of plaintiff’s bill.</p> <p>And it is further ordered that the said defendants pay the costs of these proceedings.</p> <p>Error assigned was above decree.</p>

Appeal, No. 264, Jan. T., 1896, by Robert J. Houston, assignee, from order of C. P. Lancaster Co., Trust Book 14, page 222, confirming report of auditor. Exceptions to report of auditor.

Appeal, No. 128, July T., 1895, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1892, No. 29, on verdict for plaintiff. Scire facias to revive judgment. Before Bbubajkeb, J. From the record it appeared that on November 28, 1868, a judgment was entered in the'court of common pleas of Lancaster county at the suit of Jungerich & Smith v. Edwin F. Shoenberger in open court for the plaintiff and against the defendant, for want of an appearance for $6,848.57.

Appeal, No. 375, Jan. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., Sept.T., 1894, No. 25, refusing to take off nonsuit. Trespass for personal injuries. Before Livingston, P. J. The facts appear by the opinion of the Supreme Court. Error assigned, among others, was refusal to take off nonsuit.

<p>Appeal, No. 374, Jan. T., 1896, by Rebecca Lau, from decree of O. C. York Co., dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, E. W. Spangler, reported as follows :</p> <p>Israel Lau, the decedent, died on the 12th day of September, 1891, and seized of personal estate and three farms. By his will dated June 30, 1885, he bequeathed and devised all his estate to his wife Rebecca Lau during her life or widowhood. Failing to obtain counsel, and laboring under a misapprehension of her rights and responsibilities, she conducted the farms as her own, obtaining the proceeds therefrom and paying thereout the running expenses, and devoting the balance to the reduction of her husband’s debts. This led to difficulties, and when her account was filed the exceptions thereto were partially sustained, and she was surcharged $752.31, making the corrected balance $4,193.94.</p> <p>Mrs. Rebecca Lau, the wife of the decedent, presented a claim of $3,250 for money advanced to her husband and for which she claims allowance with interest from the date of receipt to this time $3,563 — total $6,813. The evidence adduced, as to the principal, fulfilled the requirements of the law — Young’s Est., 65 Pa. 101; Wormley’s Est., 137 Pa. 101 — and shows that her husband received from her the above amount, in various sums and at various times; and that he applied it to the purchase of the Rupert farm and the building of a barn on another farm. The farm he purchased from Jonas Rupert, April 3, 1878, for the sum of #2,200. This farm was sold by the executrix to a Mr. Baker for the sum of #1,657.</p> <p>This sum of #1,657 it is contended by Mrs. Lau’s counsel must be appropriated exclusively to the payment of Mrs. Lau’s demand in virtue of a resulting trust in said farm, and her right to claim the proceeds of its sale.</p> <p>The testimony unquestionably shows that it was Mrs. Lau’s money that paid for this Rupert farm. Her husband repeatedly stated to his neighbors, in her absence, that he was buying the farm for her, that the farm was hers, that he invested her money in it, that she owned the place, that he had nothing to do with the farm, and that the farm was not his.</p> <p>There is no evidence showing, or tending to show, that the deed for the farm was to be made to her, or that she ever demanded in her husband’s lifetime a deed for the same, — no evidence whatever of a fraud committed upon her. Even after his death, in her petition to court for a sale of the real estate of her deceased husband, including this farm, she set forth among the debts of the testator her own claim for this money loaned or advanced to him. No assertion of a resulting trust is shown to have been advanced until the present distribution. Every presumption of fact is in favor of her knowledge that the deed for this farm was made to her husband, and that she knew that she occupied the relation simply of a creditor.</p> <p>The cases cited in favor of the contention of a resulting trust were Miller v. Baker, 166 Pa. 414; Light v. Zeller, 144 Pa. 570, 582. In the last case the title was to be in the wife, and the extreme doctrines there enunciated have been modified in subsequent cases. In Miller v. Baker the facts developed were quite different from those now under consideration. Justice McCollum on p. 420 says : “We think it is clearly sufficient to warrant a finding that the farm was purchased for the wife and with her money- upon an understanding between her and her husband that she should receive the title to it, and, further, that the deeds were made to him without her knowledge, and by mistake.” In Crawford v. Thompson, 142 Pa. 551, it was held that to establish a resulting trust in the wife the proof must show that the placing of the title in her husband was in “violation of an agreement that the deed was to be made to her.” In Young’s Appeal, 153 Pa. 353, the Supreme Court held that where the wife allows the title to remain in her husband until after he contracts a debt, she will be estopped as against that creditor from denying the title to her husband'.</p> <p>The auditor rejected the wife’s claim to a resulting trust.</p> <p>Exceptions to the auditor’s report were dismissed in an opinion by Bittenger, P. J.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Criminal law — Murder—Evidence.</p> <p>On an indictment for murder the evidence showed that the deceased was shot through the heart by a bullet. Three witnesses for the commonwealth testified that they were at or very near the scene of the alleged murder at the time it was committed, and that they saw and recognized the prisoner as the person who fired the fatal shot. One of the witnesses testified that immediately after the shooting he saw the prisoner running away. There was also testimony that shortly before the deceased was shot an altercation occurred between the prisoner and the deceased, that after the altercation the parties separated, and that the prisoner preceded the deceased on his way home and laid in wait for him. The evidence on behalf of the prisoner tended to show that at the time the fatal shot was fired he was not at the place where the shooting was done, but was then at his own house some distance away. Held, that a verdict of murder in tiie first degree should be sustained.</p> <p>Criminal law — Practice, O. & T.</p> <p>The court cannot be convicted of error in not giving instructions that were not requested by the party.</p> <p>Criminal law — Flight or concealment.</p> <p>On the trial of an indictment for murder, where it appeared that when defendant saw he was accused of having committed the crime he fled and concealed himself, which he explained at the trial was done to escape personal injury at the hands of the accusers, and at the urgent request of his wife and friends, it is not error to charge that, “When a crime has been committed, and the person accused thereof knows he is accused, and then flees or conceals himself, such conduct is evidence of consciousness of guilt, and in connection with other proof may be the basis from which guilt may be inferred.”</p>

<p>Appeal, No. 126, July T., 1895, by defendant, from order of Q. S. Susquehanna Co., April T.,1893, No. 85, ordering removal of pauper.</p> <p>Petition for removal of pauper.</p> <p>The facts appear by the opinion of Searle, P. J., which was as follows:</p> <p>Lorena Conklin became a charge upon the poor district of the borough of Forest City, by virtue of an order of relief having been taken out in due form of law, and delivered to the overseers of the poor of said district.</p> <p>The overseers of the poor of the district of Forest City obtained the order of two justices of the peace of the county removing said pauper to the defendant district, from which order of removal this appeal was taken. The appeal was ordered to be heard upon depositions.</p> <p>The depositions establish the following facts:</p> <p>William Conklin was the father of Lorena Conklin, the pauper. He formerly resided, with his wife and family, including this pauper, in Damascus, Wayne county, the defendant district. Some time in 1869 or 1870 he removed with his family, including this pauper, to the state of New York, and resided some ten years at Big Island, Sullivan Co., N. Y., and gained a legal settlement at that place.</p> <p>In December, 1884, he moved back to Damascus, Wayne Co., Pa., into defendant district, into a house owned by T. & P. 0’B.ielly where he resided until his death in 1890. His wife survived him, and resided in the same place until her death in 1892.</p> <p>This pauper, Lorena Conklin, is a deaf mute, and has been since infancy. In June, 1893, she was thirty-two' years old.</p> <p>While William Conklin resided in the state of New York, and during the minority of said Lorena, he sent her to a school for deaf mutes, in said state, where she remained until after she arrived at the age of twenty-one years, except as she came home during vacation.</p> <p>After her father, William Conklin, removed to Damascus, Wayne county (in the defendant district), in December, 1885, Lorena came to her father’s and remained with her father and mother until her mother’s death in October, 1892. In November, 1892, she moved to Forest City. The order of relief was taken out December 13,1892, and the order of removal December 14, 1892.</p> <p>It is claimed by the plaintiff that after William Conklin returned to defendant district in 1884, he obtained a legal settlement therein by virtue of a leasing of the house in which he resided, and paying rent therefor, and that he had a legal settlement there at the time of his death, in 1890.</p> <p>Also, that when Lorena came home in December, 1885, to her father’s residence in defendant district, she hired out to her father to work for her board and clothes, and continued to work for him under this contract until his death in 1890.</p> <p>It is claimed by defendant that William Conklin did not obtain a legal settlement in this district after he returned there in 1884, and that there was no such contract of hiring between Conklin and Ms daughter Lorena as gave her a settlement in this district; that the pauper, by reason of her Mfirmity of mind, was incapable of making such a contract, and by reason of her general infirmities and weakness was incapable of doing the work necessary to earn her living or care for herself.</p> <p>At the time Lorena returned to her father’s, in Damascus, in December, 1885, she was pregnant, and was delivered of a bastard child in May, 1886. There is no evidence that Lorena was ever married, and it appears that this bastard child is still living.</p> <p>There was no evidence taken by plaintiff to show a legal settlement of William Conklin hr defendant district, and the evidence taken by defendant, from which it is sought to establish such settlement, is insufficient. There is evidence of the residence in a house of sufficient rental value and for sufficient length of time, but no legal evidence of a rental of the house. The only evidence upon that question being declarations of the parties.</p> <p>The pauper testified that during the time she lived with her father in defendant district, from 1885 until his death, in 1890, she was at work for her board and clothes.</p> <p>Her sister, Mrs. Caroline Hulse, testified that when Lorena came home in 1885:</p> <p>“ Father told her, if she would stay home and do the work for them, he would take care of her, give her her board and clothes as long as he lived;” and upon cross-examination testified: “At the time Lorena came home from New York and father agreed to give her her board and clothes if she would stay home and take care of them as long as they lived, Lorena wanted to go out to work, but father and mother would have to hire some one if she did, and they would rather hire her than to get any one else.”</p> <p>It is undisputed that Lorena did remain at home and worked for her father and mother until they both died; the father in 1890, and the mother in 1892.</p> <p>There is some evidence given on the part of the plaintiff of the capacity of Lorena to earn wages, — one witness testifying that she gave her $1.00 for a week’s work; and, on the part of the defendant, of her incapacity to earn, the incapacity being based principally upon her infirmity of speech and hearing. The defendant also gave considerable evidence of declarations of Lorena’s father as to her capacity and infirmity, and what he intended to do.</p> <p>Defendant also gave in evidence declarations of Mrs. Caroline Hulse, which were not in accord with her entire testimony in this case.</p> <p>The fact that she is ,a deaf mute does not in itself render hex incapable of either earning a living or making a contract and enforcing it. There are many deaf mutes who not only earn a living but acquire property, and I do not think there is such evidence of incapacity of mind of the pauper Lorena Conklin as to incapacitate her from making a contract, or of weakness of body as to incapacitate her from fulfilling such a contract as it is claimed she made.</p> <p>There is direct evidence that she, in December, 1885, when she returned from school to her father’s in defendant district, did agree with her father to work for him for her board and clothes ; and the evidence is undisputed that she did work for him and received her board and clothes from that time until his death in 1890, with the exception of visits she made to her sister and others.</p> <p>I therefore find as a fact, from the evidence, that Lorena Conklin hired as a servant to her father, William Conklin, within the poor district of Damascus, in December, 1885, for her board and clothes, and continued in such service during one whole year.</p> <p>A contract of hiring to labor for board and clothes is a hiring within the act of June. 13, 1836, provision 5, section 9: Lewis-town Overseers v. Granville, 5 Pa'. 283 ; Briar Greek Township v. Mt. Pleasant, 8 Watts, 431; Huntington v. Fainnount, 2 Kulp, 441.</p> <p>At the time of this hiring Lorena was a single woman, but was pregnant, as was known to her father, and during the service gave birth to a bastard child.</p> <p>The language of the act of assembly is “ A legal settlement may be gained in any district .... by any unmarried person, not having a child, who shall be lawfully bound as a servant, within such district, and shall continue in such service during one whole year.”</p> <p>In Buffalo Township v. Lewisburg Borough, 1 C. C. R. page 121, Judge Buche®, in an elaborate opinion, held that the word child, in this section of the act, meant a legitimate child only. In this opinion the learned judge reviews all the cases bearing upon the question, and his conclusions are entirely satisfactory, and we follow them in this case.</p> <p>At the time of the birth of this bastard child Lorena had a legal settlement in New York. She did not acquire one in Damascus until the expiration of the year of service under the contract of hiring.</p> <p>The plaintiff has requested us to find certain facts, specifically as follows:</p> <p>1. That Lorena Tompkins and Lorena Conklin are one and the same person. Answer : Affirmed. [1]</p> <p>5. That Lorena Conklin had a settlement for poor purposes in Damascus at the time of her father’s death in 1890. Answer: Affirmed. [2]</p> <p>7. That the place of the legal settlement of Lorena Conklin, at the time of her removal from Forest City, was in Damascus. Answer: Affirmed. [3]</p> <p>8. That there was an agreement between William Conklin and Lorena Conklin that Lorena should take care of Mr. and Mrs. Conklin for her board and clothes ; that in pursuance of said agreement Lorena did stay at home and take care of them continuously for at least one whole- year-between 1888 and 1890. Answer: Affirmed. [4]</p> <p>The plaintiff has also requested the- court'to find the following conclusions of law:</p> <p>4. That the expression “ not having a child,” in the 5th section or clause of the 9th section of act of June 13, 1336, Purdon’s Digest, 1155, providing that a settlement may be gained in any district “ by any unmarried person not having a child, who shall be lawfully bound or hired as a servant within such district during one whole year ” means not having a legitimate child. Answer: Affirmed. [5]</p> <p>5. That an unmarried female with bastard child may gain a settlement by hiring and service one whole year. -Answer : Affirmed. [6]</p> <p>The court confirmed the order of removal.</p> <p>Errors assigned were (1-6) answers to requests for findings as above; (13) confirming order of removal.</p>

Appeal, No. 83, July T., 1895, from, decree of O. C. Northumberland Co., Feb. T., 1892, No. 49, dismissing exceptions to report of auditor. Exceptions to report of auditor. The auditor, George B. Reimensnyder, Esq., reported as follows : Your auditor finds the following facts from the evidence produced' before Mm: First.

Appeal, No. 138, Jan. T., 1896, by defendant, from judgment of C. P. Warren Co., June T., 1895, No. 29, on verdict for plaintiff. Trespass to recover damages for injury by the breaking down of a bridge. Before Noyes, P. J. Verdict for plaintiff for 12,600.

<p>Appeal, No. 134, Jan. T., 1896, by Lancaster Trust Co., trustee, from decree of O. C., Lancaster County, June T., 1890, confirming absolutely the auditor’s report.</p> <p>Exceptions to auditor’s account.</p> <p>The auditor, A. F. Hostetter, found the facts substantially as follows: Harriet Old, testatrix, by will proved March 12, 1870, bequeathed one half of the residue of her estate to Newton Lightner in trust for the benefit of James M. Hopkins “ during Ms life, and at his death to be equally divided among the widow and cMldren or their heirs.”</p> <p>Before this residuary bequest she had given and bequeathed $3,000 M trust for the benefit of William Hopkins during his lifetime; at Ms death, one half of said amount, $1,500, also, “ to be continued in trust for the benefit of James M. Hopkins during his life, and at his death to be equally divided among his widow and children surviving him or their heirs; ” $3,000, in trust, in like manner for Elizabeth O. Alexander “ during her life, and at her death the principal to be divided equally among the children of herself and her husband, or their heirs; ” and $1,000 in like trust “for the benefit of James M. Hopldns during Ms life, and at Iris death to be paid to his daughter, Harriet Old Hopkins.”</p> <p>Subsequent to the death of William HopMns, Lightner, the trustee, by leave of the orphans’ court of Lancaster county, invested all these funds, amounting to nearly $10,000 m a judgment loan to James M. Hopkins (the life tenant), which was entered in the common pleas of Lancaster county. The judgment became a lien on about 1000 acres of land on which there were already tMee judgments, one to Lightner, himself,' as guardian, and aggregating $9,400. The first and third judgments were held by Jacob Thome, a brother-in-law of Hopkins, said Hopkins being also a brother-in-law of Lightner, the trustee. The widow, the adult children and two minor children joined in the petition to the orphans’ court, asking permission to make the investment. The third minor, the youngest of all, did not join. There was no evidence that the minors after arriving at age ever assented to or dissented from the loan, although they lived with their father on the premises and were conversant with the facts of the case. The trustee held this trust for nineteen years, during which time the judgments ahead of the trust judgment were regularly revived, and greatly increased in amount by accumulations of interest. The lands, which had been chiefly valuable because of furnace property, subsequently depreciated in value until after the death of the trustee, when his administrator issued execution upon the judgment; the liens ahead of it at that time aggregating about $35,000. The property was not worth more than $25,000 and the land was bought in by the holder of the first judgment for $8,000. The whole of the trust fund was, therefore, lost for the wife and children of Mr. Hopkins. The successor of Newton Lightner, the trustee, sought to charge his estate with the loss by reason of negligence and lack of authority to make the investment; on. the grounds, first, they were not invested by order of the orphans’ court; second, if so invested the order was improvidently made; third, that if invested by order of the orphans’ court it was at a time when property was of much greater value and the prior liens much less, and that the trustee was guilty of negligence in not collecting the judgment, through which neglect the trust estate has been put to a loss for which the individual estate of the deceased trustee is liable. As to the first point, the auditor found that the moneys were invested under the order of the orphans’ court. As to the second point he found specifically as follows:</p> <p>“ The auditor is of the opinion that the order of court was not improvidently made; that it was made upon a full and fair disclosure of all the material facts in the case to the court, and not only with the knowledge, but also at the request, of all the persons interested in the estate who were of lawful age.</p> <p>“ The court having had jurisdiction to make the order, and having, upon a full view and consideration of the facts, directed the investment, the trustee is fully protected against all the natural consequences of the original investment, both as to those who were and as to those who were not at the time of proper age to consent: Act of March 29, 1832, sec. 14, P. L. 193; Twadell’s App., 5 Pa. 15; Ilunsen’s App., 43 Pa. 431.</p> <p>“We are not, therefore, called upon to pass on the propriety of the original investment. Had Mr. Lightner invested tins trust fund upon his own responsibility, and without an order of court, in a judgment subsequent to other liens, and it had then been lost, as it has 'in this case, this question would be before us, and the burden of showing the propriety of the investment would then be upon the accountant.”</p> <p>As to the third point the auditor ruled as follows :</p> <p>But having been made under the direction of the orphans’ court we must start in the present inquiry by asssuming it to have been a proper one. And we must further assume that in the absence of subsequent negligence on his part, the protection of the order of court extends to the trustee against liability for all such dangers and contingencies as might reasonably be involved in a loan of this character made on a fourth judgment.</p> <p>The danger that Mr. Hopkins might not keep down the interest on prior liens, and the contingency of a depreciation in the value of the lands, were both possibilities of this kind. And it must be presumed for the purposes of this investigation that they were fully considered both by those of Mr. Hopkins’ children who joined in the petition, and by the court when the investment was ordered to be made. No negligence can hence be inferred against the trustee simply from the fact that both of these conditions actually did arise to confront him during his trusteeship.</p> <p>The real question to be passed upon in this contention is, how did Mr. Lightner act with reference to the trust estate in his hands, subsequent to the original investment, in view of the conditions as they really came to exist ? This is the vital issue raised by the exceptions.</p> <p>The entire trust fund of $10,000, in which the moneys involved in the present controversy are included, has been swept away by the sheriff’s sale of the real estate to Mr. Thome, and the loss must fall either upon Mr. Hopkins and his children, the beneficiaries of this fund under the will, or be made up to the new trustee for their benefit out of the individual estate of the deceased trustee.</p> <p>Upon which of them it is to fall depends upon the answer given to the mixed question of law and fact raised by the aliegation of the exceptions, that Mr. Lightner failed in his conduct to come up to the measure of duty required of him by the law as trustee, and that the loss is owing to his negligence. If this claim be sustained, the loss must be made up by his estate: Lechler’s App., 21 W. N. C. 505. If not, it must be borne by Mr. Hopkins and his children. *</p> <p>It is claimed on behalf of the exceptant that the present contention is ruled in its favor by the decision in Lightner’s Appeal, 156 Pa. 368, and 150 Pa. 529, which grew out of this same trust in Mr. Lightner’s hands. As to $3,000 of the trust fund (being the portion which is not included in the account now under review), Mrs. E. O. Alexander, and not Mr. Hopkins, was by the will given the annual interest.</p> <p>The whole controversy in Lightner’s Appeal was over the liability of Mr. Lightner’s estate for that portion of this interest which Mrs. Alexander had not received. The auditor surcharged Mr. Lightner’s estate, and the Supreme Court affirmed him. This was on the ground that Mr. Lightner had practically abandoned his trust as to this interest, making no effort whatever to collect it, and so was grossly negligent.</p> <p>This had reference, however, only to the interest. And it will be observed that the auditor distinctly declines to pass on the question of Mr. Lightner’s liability for the corpus of the fund, as not being before him.</p> <p>The question in the present proceeding is entirely different from that in Mr. Lightner’s appeal. There the duty of the trustee was the collection year by year of interest, and payment to the beneficiary. Here he had no duty of collection as to the yearly interest, the fund being invested by order of court in the hands of the person entitled to the interest. His duty here was to preserve and protect the corpus of the fund. This decision in Lightner’s Appeal, therefore, does not rule this case.</p> <p>The principles of law relating to the duties and liabilities of trustees are well settled in Pennsylvania: Calhoun’s Estate, 6 Watts, 188; Chambersburg Assn. Appeal, 76 Pa. 203; Cridland’s Estate, 132 Pa. 479.</p> <p>* * * ******</p> <p>The chief difficulty in passing on questions of negligence is not, however, in ascertaining the principles of law governing them, but in the application of these to the particular facts of each case. This is especially true in a case like the present, where the evidence as to the material points is very meager and leaves so much to be desired in enabling one to form a fair judgment. The peril into which this trust fund fell grew out of two facts, viz: The failure of Mr. Hopkins to keep down interest on the prior liens, and the depreciation of the lands.</p> <p>As to the interest there is no competent evidence before the auditor that Mr. Lightner had any information on this subject other than what he must be presumed to have gained from observing the accumulation of these liens at their successive revivals. So far as this record shows, Hopkins paid him the interest promptly on the prior lien which he himself held up to 1885, four years before his death. On Mr. Thome’s judgment for $5,200, the first revival in 1874 includes no interest. The revival in 1879 does include interest; so this would seem to be the first notice to Mr. Lightner on that judgment. On Mr. Thome’s judgment for $10,000, the first revival in 1874 contained notice that the interest was not being paid, and that in 1879 includes interest from 1871. In 1879, therefore, Mr. Lightner must have known that Mr. Hopkins was not keeping up the interest on these liens, and that they had increased by from $6,000 to $8,000. What special duty, if any, this knowledge laid upon Mr. Lightner depends largely upon the then value of the lands, and upon what Lightner knew, or was bound to know, of their depreciation if there had at that time been any. This is true, not only at that particular time, but as to knowledge of this character which he obtained at any time.</p> <p>On the whole subject of the value from time to time, during the continuance of the trust, of these lands, and of the time and ratio of depreciation, the evidence is meager and unsatisfactory. There is no direct proof of their actual value at the time the original investment was made, nor at any other time except since the death of the trustee. We are practically left only with the assessment books as our guide.</p> <p>In Lightner’s Appeal, 156 Pa. 368, the auditor found as a fact that they were worth when the money was invested about $70,000, but there is no such evidence before us. Hopkins himself, in his letter asking for the loan, seems to value them at no less than $50.00 per acre, which would be a minimum of about $50,000. Whatever they were worth, it seems to be conceded that their value was considerably more at that time than the whole debt, which, including the trust judgment, was about $80,000.</p> <p>The only other direct evidence as to value relates to the period since the death of Mr. Lightner — to about the time when the lands were sold by the sheriff. They were sold for $8,000, but owing to the peculiar circumstances of the situation, this can manifestly not be regarded as their actual value. But the testimony of the witnesses produced by the exceptant, ranging in estimates from $22,000 to $32,000, shows that in 1893, four years after the death of Mr. Lightner, the lands had much depreciated from their value in 1870, and that the margin of security for the trust judgment had then been wiped out. This testimony, however, gives us little or no aid in fixing their value at the time of Mr. Lightner’s death nor at any period during the trust; the witnesses testify in a general way that there was a gradual depreciation in farm lands in Mr. Hopkins’ neighborhood for about ten years prior to 1893, or about five years prior to Mr. Lightner’s death, and that these lands had thus depreciated; but there is no evidence showing the extent to which this depreciation had gone at any particular period or at the trustee’s death.</p> <p>As to values between 1870 and 1893, and as to the rate of depreciation from the time it began, there is no evidence before us except the record of the yearly assessments of the lands for taxes.</p> <p>At the time the investment was made they were assessed at $18,307. In 1879, when the revival of Mr. Thome’s $10,000 judgment disclosed interest on it from 1871, the assessment stood at $27,665. This was an increase in the valuation of the lands of more than the growth of the prior liens, and would have indicated that notwithstanding the accumulation of interest on these, the trust judgment had still as large a margin of security as when entered.</p> <p>When the two Thome judgments came to be revived again in 1883, the $5,200 judgment was revived without interest and the other at $15,000, thus showing that all the overdue interest on first and part of the latter had been paid off. This had been done by applying the proceeds of a sale by Mr. Hopkins of one hundred and thirty-five acres, in the year 1883, at $50.00 per acre. The Thome judgments had thus been brought down several thousand dollars lower than they stood at the former revival in 1879, while the assessment of the lands, even after the sale, continued at $27,665 until 1885, when it was reduced to $25,065. And while it is true that these reductions were made entirely by proceeds of land sold, the fact of a sale of such a tract of land without buildings at $50.00 per acre, and another smaller sale at the same price in 1885, would naturally be calculated to establish Mr. Lightner’s confidence, by seemingly fixing such a value for what remained as would still leave a margin for the trust moneys.</p> <p>When we come to the Thome revivals of 1888, his judgment had increased to such an extent as to add $10,000 to the principal of the prior liens, thus making them about $30,000, instead of $20,000 when the trust moneys were invested. The assessment at this time was $24,865, or about $15,000 less than the total debt, including the trust moneys. But in 1870, when the order of court was made, the assessment had been $12,000 less than the lien debts. And, therefore, judging alone from the valuations of the assessors, the depreciation in the margin of the security of the trust judgment would have seemed only about $3,000, notwithstanding the great increase in the prior liens. Substantially the same condition existed at Mr. Lightner’s death a year later.</p> <p>It is indeed altogether probable, in the light of the evidence of a gradual depreciation in farm lands in that section for about ten years prior to 1893, that these lands had depreciated more at Mr. Lightner’s death than the assessments would indicate. But there is no actual proof of this, nor of the extent to which the depreciation had gone.</p> <p>We may even think that Mr. Lightner, as a man of affairs, and as a careful trustee, must have known that they had thus depreciated, but we could not safely find such as the fact in the absence of evidence. It is to be remembered that we are looking back in this investigation from a standpoint at which we know that these lands had finally depreciated to such an extent that the whole trust fund is lost. But we cannot fairly infer negligence from the simple fact of the loss: Jack’s Estate, 94 Pa. 371.</p> <p>Unfortunately Mr. Lightner is dead, and, therefore, not in position to show what his judgment was as to the value of these lands from time to time after the depreciation set in, or of the relative security of his investment; nor, on the other hand, what efforts he may have made to inform himself so as to arrive at a prudent and intelligent judgment on the subject. It would have been proper, and in fact his duty, to examine and consider, among other things, the assessments in judging of the value of the lands, and we have already seen that, in so far as he may have relied upon these, they would have shown very little depreciation in his margin, even in the face of the earlier liens. There is indirectly some affirmative evidence that he was vigilant and inquiring on this subject furnished by the letters of W. W. Hopldns, one of the heirs interested in the trust. These letters, moreover, show that if Mr. Lightner still considered the trust secure he was not alone; for Mr. Hopkins, with the highest personal concern in the subject, himself a man of large experience, and presumably having heard these lands much discussed as private secretary to Mr. Thome, the holder of the earlier liens, as late as 1888 values these lands to Mr. Lightner at $55,000.</p> <p>In the language of Justice Clabk : “ It is a fact known to all, that there is no article of commerce which admits of as varied and uncertain judgment, as to value, even among the well informed, as real estate. There are so many elements or factors entering into a proper estimate, matters present and prospective, that a correct judgment is with difficulty formed.” Fahnestock’s Appeal, 104 Pa. 46.</p> <p>There is no evidence of bad faith on the part of Mr. Lightner, nor that he neglected to use proper means of getting reliable information on which to judge. And in the absence of such evidence the law presumes that he acted in good faith and with proper care, and, even though he may in fact have been in error in his judgment, he will not be held liable : Willis on Trustees, p. 168; Hinkle’s Estate, 20 W. N. C. 351. In this respect the present case differs from that of Lechler’s Appeal, 21 W. N. C. 505. There the trustee was held liable, because the evidence showed affirmatively that he had made no effort to inform himself.</p> <p>But even assuming that Mr. Lightner knew and believed that these lands were depreciating, there are some additional circumstances which, must be considered in judging how he should have acted in view of it.</p> <p>“ In determining whether a trustee should be held liable for an unexpected loss resulting from an extraordinary shrinkage of values, especially of real estate, in that neighborhood, all the facts and circumstances should be taken into consideration Jack’s Appeal, 94 Pa. 371.</p> <p>In the first place we must consider the character of the trust as it stood in Mr. Lightner’s hands. It was invested in the lands of the person who had the life interest, and the only persons interested in the remainder were his own wife and children. The trustee was the brother-in-law and uncle, and naturally would be reluctant to sell away from the family their homestead unless the wisdom and necessity of doing so were very apparent, especially in view of the fact that he would be doing it to save a fund in which they had exactly the same interest as they had in the land itself.</p> <p>The family estate in winch the court had ordered the money was a very large tract of land, too large to be saleable to good advantage as a whole. The prior liens held by others were of such size that no forced sale in parts could have been accomplished except by consent of the holder of these.</p> <p>Manifestly it was to the interest of this whole family that, so long as the investment was not absolutely in peril, this large body of land should not be pushed to a forced sale. Such a sale, unless the trustee stood ready to protect the lands by purchase, would in all probability simply have resulted, as it actually did when it was finally made, in transferring the title to a stranger, and thus end disastrously for all parties in interest.</p> <p>There is no evidence that they could ever, after the depreciation set in, have been sold as a whole, for enough to cover the liens, to any one but Mr. Thome or the trustee himself; and the inherent probabilities are against any such view. It is a • plain business proposition that the only practicable way of getting the full value of the lands, which was all the more important if the margin was doubtful, was to sell in smaller tracts. This the evidence shows Mr. Plopkins and his family were trying their best to do during the later years of the trust, with the knowledge, and presumably with the counsel, of Mr. Lightner.</p> <p>It must also be remembered that Mr. Lightner was a trustee for Mr. Hopkins as well as for his children. Presumably so long as the investment was safe beyond question these moneys were worth more to Mr. Hopkins and his family in their own lands than elsewhere. And when it became doubtful, if it did, Mr. Lightner may have properly considered that, with Mr. Hopkins and his family trying to sell the lands privately and meanwhile enjoying the whole income thereof, their interests all around were being better served than by forcing them to sale, unless it was clear that enough could be realized to pay the liens.</p> <p>The situation was, moreover, further complicated by the great disadvantage at which the trustee would be in any forced sale, by reason of the large prior liens.</p> <p>He could only have purchased the lands by raising this large sum of money, which is practically equivalent to saying that he could not purchase at all; and that in consequence the lands would go to forced sale without protection, and almost inevitably fall into the hands of Mr. Thome. He was under no legal obligation to use his own funds to do this, if he had sufficient funds, and there is no evidence that the parties in interest ever offered him the funds to protect the lands. This practical disadvantage, it is true, was one of the necessary incidents of an investment made on a lien subsequent to such other large judgments. But it must be presumed to have been considered by the court when it made the order, and is, therefore, within the scope of its protection. But while it is an element of danger for whose existence the trustee is not to be held liable, he was nevertheless bound to recognize it as a fact in deciding upon what would be prudent and proper for him to do.</p> <p>It' is easy to decide that Mr. Lightner was bound to know that the prior liens were accumulating, and to consider this as an element of danger. It would also be easy to suppose that he probably knew that there was some depreciation going on in the real estate during the last few years of his life. But considering all the circumstances of the case, and the difficulties of his position, we think it would not be safe to affirm that it was so clearly the proper thing for him to force these lands upon the market at sheriff’s sale as to have made it gross negligence for him not to have done so. We think, on the contrary, that it is doubtful whether such a course would have resulted in any good for the parties in interest; and, as the sequel has shown, would probably only have resulted in ruin and disaster both for Mr. Hopkins and his children, and in passing the title to Mr. Thome. As it was, Mr. Hopkins and such of his family who have lived with him have at least all these years continued to enjoy their home and the entire income of the lands.</p> <p>The fact that these moneys were invested not in the land of strangers to the trust, but in family lands, in which the owners of the trust fund had, as the matter stood, the same interest as they had in the trust itself, is a circumstance which we cannot overlook. While this would not excuse Mr. Lightner from performing his duties as trustee, it would be a proper element for him to consider in judging of his duty.</p> <p>The same may also be said of the joinder of those who were of age in making the original investment, and the constant subsequent approbation of the entire family in its continuance, and in the conduct of the trustee with reference to it. Although they were all of age for the last fourteen years of Mr. Lightner’s life, and, so far as the testimony shows, in family relations with their father, and at least in as good position as the trustee to know his property, not one of them ever expressed a doubt to Mr. Lightner, nor a desire that he should force the land to sale. It would, of course, be easy to give too much weight to this fact, as Mr. Lightner was the person on whom the final responsibility for action rested, and not they. But it may at least be accepted and considered as some evidence going to show that they did not, while Mr. Lightner lived, look upon his management as grossly negligent. And, if so, it should now, in an effort in their behalf to hold his estate liable on this ground, after he is dead and unable to speak for himself, be given in a court of equity its proper weight.</p> <p>“ It is not too much to say that the family approbation of the appellant’s course may legitimately weigh in a question of negligence : ” Judge Gibson in Jones’ App., 8 W. & S. 143.</p> <p>As to W. W. Hopkins, the eldest son, we have his letters in evidence showing his positive approval of Mr. Lightner’s course, and advising him to a continuance in it, and it is hard to see how in any view of this case recovery could be had for his share.</p> <p>In conclusion of the whole inquiry it may be remarked that it is a very hard case however decided, and one by no means free from doubt. The amount in controversy is large, and the loss, therefore, onerous to whichever party must bear it. But we are asked to do that which courts of equity are always loth to do, and which they never will do except in a clear case.</p> <p>“It is the hardest demand that can be made in equity to compel trustees to make up a deficiency not owing to their willful default: ” 'Johnson’s Appeal, 12 S. & B. 317; Eyster’s Appeal, 16 Pa. 372.</p> <p>A court of equity always treats trustees acting in good faith with a great deal of tenderness: Calhoun’s Estate, 6 Watts, 185. And they will not surcharge a trustee for a loss arising from a mere error of judgment when not guilty of willful neglect or default: Patterson’s App., 104 Pa. 369.</p> <p>The auditor has endeavored to give the facts in this case the patient and careful consideration which its importance demands. He finds no evidence of bad faith, and while not prepared to say that the trustee’s conduct is in all respects free from errors of judgment, he is of the opinion that the evidence is not such as to warrant him in finding that Mr. Lightner was guilty either of willful default or gross negligence, and that the loss must hence fall upon the beneficiaries of the fmid. The exceptions on this point are, therefore, all dismissed. And from this decision it follows that the payment of the costs of this audit must be charged on the exceptant.</p> <p>The exception relative to commissions falls with this decision and need not be farther considered.</p> <p>Error assigned, among others, dismissing exceptions to the auditor’s report and confirming the same.</p>

<p>Assignment for creditors — Sale by assignee — Summary possession.</p> <p>The act of February 17, 1876, P. L. 4, provides a more expeditious method than formerly existed for putting a purchaser of real estate at a valid assignee’s sale into the possession held by the assignor at the time of the assignment. It is not intended as a substitute for an action of ejectment. It gives the court no power to determine the validity of an adverse title to the lancf; but as against the assignor and those holding under him it enables the court to give effect to the deed of assignment by requiring the assignor or any person representing him to surrender the possession to the purchaser at the assignee’s sale.</p>

<p>Practice, O. & T. — Motion to quash indictment — Laches.</p> <p>It is not error for the court to refuse to quash an indictment when the motion which related to defects in the form of the writ of venire was not made promptly, but was delayed until the second term, and until after defendant had obtained a continuance of his case upon application. .</p> <p>Criminal law — Challenge for cause — Practice, O. & T.</p> <p>It is not error for the court to overrule challenges for cause which rest on the fact that the jurors described in the venire were misdescribed as to occupation, it sufficiently appearing that the persons called were the persons whose names had been drawn from the wheel, which is the important question on which such challenges depend.</p> <p>Criminal laxo — Improper remarks by counsel — Practice, O. & T.</p> <p>Addresses to the jury in criminal cases are under the supervision of the trial judge. If counsel indulge in a line of remark that is unfair toward the prisoner or that is calculated unduly or in an improper manner to excite the jury against him, it is the duty of the defendant’s counsel to call the attention of the court to it at the time and to ask the protection to which defendant is entitled. It is only an abuse of discretion that can be made a subject of appeal; and when it does not appear that the attention of the court was called to the alleged objectionable remarks they will not be considered upon exceptions subsequently taken.</p>

Petition for writ of restitution. Oct. T., 1894, No. 238. From the record it appeared that M. H. Stevenson, the petitioner, on November 26, 1892, purchased a one half interest in real estate in Pittsburg from Harry R. Peck. On the same day a judgment against the land was satisfied of record by White-sell & Sons, the legal plaintiffs in the judgment and attorneys of record for the use of Frederick Maul.

<p>Practice, O. P. — Power and discretion of court — Pules of court — ■Laches— Nonsuit.</p> <p>Where a summons was issued in 1879 and no other step taken until 1894, when plaintiffs filed a statement and affidavit of claim which showed that the cause of action had originated in 1873, and the defendant thereupon obtained a rule to show cause why the statement and affidavit should not be stricken off and judgment of non pros entered because of the delay of plaintiffs in proceeding with their cause, the nonsuit was properly entered; and, further, the judgment was within the power and discretion of the court below, and it will not be reviewed.</p>

<p>Appeal, No. 219, Oct. T., 1895, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1892, No. 683, on verdict for plaintiff.</p> <p>Trespass for malpractice as a surgeon. Before Porter, J.</p> <p>This was an action for malpractice brought by a free patient at the Homeopathic Hospital in the city of Pittsburg, against one of the .surgical staff of that hospital, who happened be on duty at the time at which plaintiff was in the hospital.</p> <p>Plaintiff lived at Bedford, in this state, and was a laborer, but at the time of his injury was working in the city of Pitts-burg as a carpenter at wages of $2.75 per day. On the 5th of December, 1890, he fell from the platform at the top of the first story of a frame house on which he was working and was taken into an adjoining house and shortly afterwards removed to the Homeopathic Hospital where he remained until the 18th of December, when he left the hospital, going to Wilkinsburg, where he remained until the 23d, when he went to Bedford, arriving there the night of the 23d.</p> <p>The next morning a physician was called, who declared that plaintiff had a complete oblique fracture of both bones of the left leg an inch or so above the ankle. The injuiy occurred in December, 1890, and suit was brought on the 22d of April, 1892. There was no allegation of negligence until a short time before suit was brought. The case was tried three times ; the first trial resulted in a verdict for plaintiff of $5,512.50, which the court set aside; on the second trial the jury disagreed ; on the third trial the verdict was for $12,000, although the plaintiff’s claim in his statement was for but $10,000. The court refused to order a new trial but required the plaintiff to abate all in excess of $4,000 which he did, and this appeal was then taken.</p> <p>The facts and; a synopsis of the material portions of the testimony will appear in the opinion of the Supreme Court.</p> <p>The court charged the jury in part as follows :</p> <p>There are certain facts in this case that are not in dispute, and it possibly would be well to review them briefly in order that you may understand the questions upon which you will have to pass under the evidence in the case. It may be taken as agreed upon all around that on the 5th day of December, 1890, this plaintiff, Richards, fell or was thrown by the falling of a scaffold a distance of some eight or ten feet to the ground and was picked up injured and carried into a house in the neighborhood; that there Dr. McClelland examined him, passed an opinion upon his injuries and sent him to the Homeopathic Hospital: that that hospital is an institution maintained partly by state appropriations and partly by voluntary contributions ; that there is connected witli that hospital a resident surgeon who devotes his entire time to the hospital, and that under the system of management there adopted, a surgeon in chief, or physician having charge, controls or directs the medical department of the hospital during the time for which he, under the arrangement effected by the physicians who have agreed to contribute their time there, is to so have charge. These surgeons in chief give their time and skill without compensation, and they rotate in the discharge of the duties of physician in chief, or surgeon in chief. The plaintiff was taken to this hospital at a time when the defendant was discharging the duties of surgeon in charge, or in chief, was received in the hospital, and the defendant examined him the same afternoon, the 5th of December, and continued to examine him and visit him from time to time, assuming the general direction and examination of his case. The plaintiff remained there rrntil the 18th of December, 1890. The defendant last saw him and prescribed for him, or examined him with a view to his condition, on the 17th of December. On the 18th of December the plaintiff left the hospital, went to Wilkinsburg and there remained until the 28d of December, when he took a train, went to Huntingdon, from Huntingdon to Bedford, and on the 24th of December called in a physician. During the time intervening from the leaving of the hospital until his arrival in Bedford he was without medical attendance. These are the facts concerning which there is no dispute.</p> <p>It is alleged on the part of the plaintiff that his leg was fractured through both bones, the lower section of the leg; that he was not treated by this defendant with that ordinary shill of the profession prevailing in this community, and that the defendant did not give to the treatment of his case that reasonable care under the circumstances which it required; that as a consequence of this negligence he suffered unnecessary and unusual pain, incurred expense, was for a long time ill, and that as the consequence of the negligence of the defendant the leg which was injured has been permanently disabled, that the anide joint is stiff and that Iris earning power is thereby impaired.</p> <p>On the part of the defendant it is contended that there was no fracture of the bones of the leg, that it was a sprain ; that he gave to him all the care which the injury required, and that he brought to the treatment of this case the ordinary skill of the profession, and gave to it that reasonable care which the circumstances required ; that further, even if there had been a fracture, the negligence of the plaintiff in leaving the hospital against the advice of the physician, and when a man of reasonable prudence ought to have known that it would be injurious, contributed to produce this injury, if injury there was, and that so he is estopped from asserting that the injuries from which he now suffers, the disability which is now alleged to have resulted from this wound, was occasioned, even if contributed to by the negligence of the defendant, — was occasioned at least in part by the negligence and misconduct of the plaintiff himself. . . .</p> <p>Gentlemen, when the defendant undertook the treatment of this injury he did not become an insurer and guarantee a recovery or a cure. The obligation which this state of affairs put upon him was that he should exercise the ordinary skill of the profession in treating the injury, not the highest skill of which men of genius in the profession are capable, but simply the ordinary skill of the community, the ordinary skill of physicians at the time and place, and that he would give to the treatment of this injury reasonable care and attention; and this being the duty that was put upon him, the exercise of ordinary skill and care under the circumstances, he would only be liable in case lie failed in the discharge of that duty, and such a failure would be what in law is called negligence. The burden is upon the plaintiff to satisfy you of the existence of such negligence, that is, in this case, the burden is upon him to show you by the evidence that the defendant did not in the treatment of this injury give him the benefit of ordinary skill and care, and that as a consequence he was injured. And in presenting this to you, he must be able to present a case free from contributory negligence upon his own part. Such a case being presented to you, then the defendant may answer it by denial of the facts alleged by the plaintiff, by showing that such an injury did not exist or that he gave it the reasonable and ordinary care of the profession under the circumstances, or he may defeat a recovery by showing, if it has not already appeared in evidence, that the negligence of the plaintiff has contributed to the injury. He may by affirmative evidence satisfy you of the existence of that contributory negligence upon the part of the plaintiff, which, when it does contribute to produce injuries, defeats a recovery, because in such cases you cannot discriminate, — if the negligence of both parties has contributed, you cannot discriminate and say how much was the result of negligence upon the part of one, and how much was the result of the negligence upon the part of the other. Now, in this case you had, when this man came to the hospital, an injured man coming under the care of a physician. Upon one hand, then, the duty was the exercise of ordinary skill and care. The duty upon the other hand was obedience of all reasonable instructions of the physician. While it is the duty of the physician under such circumstances to exercise skill and care, it is the duty of the patient to obey.</p> <p>The first point, gentlemen, upon which you will have to scan this evidence is as to the nature and extent of the injury that existed. You must, in passing upon that question, consider all the evidence in the case, beginning with the evidence of the man who saw him when he fell upon the ground, Mr. Williams, I think; the evidence of Dr. McClelland, who saw him at the time, made an examination of him and gave an opinion then and there of the nature and extent of the injuries, and including the testimony of those at the hospital and of all who saw him afterwards, and the testimony of the physicians who have been called upon the respective sides as to what is their professional opinion touching the nature of the injury to that limb at the time. The burden is upon the plaintiff to satisfy you that the bones were fractured. It is upon that theory that he seeks to recover. No evidence has been offered, I believe, with a view to charging this defendant with negligence in the treatment of the limb if it was only a sprain. All the evidence offered is upon the assertion and in the support of it, that the limb was fractured. If, therefore, it was not fractured, that is an end of the case, and your verdict must be for the defendant.</p> <p>You will, then, consider all the evidence bearing upon the point, the evidence of those who saw the limb and the evidence of these expert witnesses called by the plaintiff and by the defendant, and who, because of their special study of such matters, their long active participation in their calling, which familiarizes them with the appearances produced by certain injuries, and their special fitness, are permitted to testify as experts in such cases. Considering all this evidence, you must determine the question upon the weight of the evidence, the burden being upon the plaintiff to satisf3 3ou that the bones of the leg were fractured. If he has so satisfied you, you proceed to inquire further. If he has not so satisfied you, you stop there and render a verdict in favor of the defendant. If the bones of the leg were fractured, then, while this man, the plaintiff, was in the hospital, did this defendant exercise the ordinary skill of his profession and give to the treatment of this injury reasonable and ordinary care ? The burden is upon the plaintiff to satisfy you of the absence of that. In other words, he must establish negligence affirmatively. You consider all the evidence and make up your minds upon that point. [If he has satisfied you by the weight of the evidence that this defendant was guilty of negligence in the treatment of the injury while he was in the hospital, then for the results following such negligence or for the results caused by such negligence, the defendant would be answerable in damages, unless from all the evidence in the case you are satisfied by the weight of the evidence that this plaintiff was guilty of negligence which contributed to produce the injury.] [9] You will, therefore, consider all the evidence in determining whether or not in the first place this physician, the defendant, was negligent in the treatment of this man during his stay in the hospital. If he was, then did tins man while in the hospital suffer unusual pain, suffer pain that he would not have suffered if the wound had been properly treated, suffer pain or injury as the result of this negligence ? If he did, then for such pain and suffering he would be entitled to recover, and for such injury as was caused by that negligence alone he would be entitled to recover. If you find, upon consideration of all the evidence, that the weight of this evidence is not with the plaintiff upon this matter, if he has not satisfied you by the weight of the evidence that the defendant was negligent in the treatment of the case, then that is the end of the case, and your verdict must be in favor of the defendant. [But, if he has satisfied you, then, unless upon all the evidence it appears that the negligence of the plaintiff contributed to produce the injury, the plaintiff is entitled to recover damages for the pain and suffering and for any other injury resulting from the negligence of the defendant, and for no other cause.] [10] This brings you, then, to the time when this plaintiff left the hospital. The last interview with the defendant was upon the 17th of December ; and, gentlemen, you have to determine upon all the evidence in the case the circumstances surrounding that leaving and what led up to it, bearing in mind in this, as in other tilings affirmatively necessary to this case, that the burden is upon the plaintiff to satisfy you that the doctor was negligent in discharging him from the hospital. [The plaintiff says that upon the 17th of December the doctor told him that he was cured, that he could go home, and that as a consequence he went home.] [11] That at that time the doctor signed what he calls a card, signing it there in his presence, and the card has been produced. This card you have examined. It is rather a history of the case, seemingly, and of the man’s past life, than a record of prescription given him at the time, or orders made for his treatment. Upon the face of this card it seems the date of discharge, as indicated by the figures, was written by Dr. Marshall, and is fixed as the 18th day of December, 1890. If Dr. Willard signed the card at that time, on the 17th of December, it could only be evidence for what was upon it at the time he signed it, and anything that any person else wrote upon it afterwards without his direction and concurrence would be no evidence against him. [If, then, he did sign this card on the 17th of December, and tlie words or figures indicating that the man was discharged on the 18th of December, 1890, were not there at that time, then those figures afterwards added without his knowledge, unless you find that they were added with his knowledge, could have no bearing upon this case.] [12] The card may possibly have been a mere history of the case, intended for statistical information connected with the hospital, rather than a place for the entry of orders for the guidance of subordinates in the hospital. The plaintiff says that after this conversation on the 18th he left the hospital. Now, there is no doubt that upon this 18th of December he went to Wilkinsburg and remained there for several days without medica] attendance. You will bear in mind, gentlemen, this fact, because such action might or might not be negligent in the plaintiff, in one light of the evidence, and the reverse in the other, as to what occurred at the time this defendant left the hospital. [If the doctor told him that he was cured and he could go home and he was misled by that and thought he was cured and went home and suffered an injury as a consequence, then, if you find that the doctor was not exercising ordinary skill and care in thus sending the man home and so was guilty of negligence, he would be answerable in damages for the consequences.] [18] If the plaintiff was misled by that direction of the doctor and went home, his mere going would not be contributory negligence unless he went under circumstances such as would visit upon Mm knowledge of the fact that it was not safe for him to go. If, under such circumstances, even, the doctor told Mm he could go, when he knew that it was not safe for Mm to go, but concluded he would take the chances, or if he went under such circumstances as ought to have indicated to a man of reasonable prudence that it was unsafe for Mm to go and that he would endanger Ms condition if he went, then the plaintiff would be guilty of contributory negligence. If he, knowing that, or under circumstances such as ought to have caused Mm to know that it was dangerous for him to go, took the chances, then the chances were Ms own. But, if relying upon the advice of Ms physician, he went under such circumstances, believing that, as he had the advice of his physician, it was not an improper thing for him to do, went to WilMnsburg and remained there, not knowing that his leg was fractured, not believing that it required attention, and continuing in that condition down until the time he went to Bed-ford, nothing having occurred and nothing existing which ought to have indicated to a reasonable man that his leg required attention and that he was endangering it by traveling in that way, then he would not be guilty of contributory negligence simply in going out and going upon Ins journey.</p> <p>The defendant says that he did not tell him he was cured, that he signed this card sometime afterwards, that he did not consent to his going out. Dr. Marshall has testified as to his recollection of what occurred at the time of this last interview and denies having heard some of the expressions that this plaintiff has attributed to the defendant as to his condition. But, gentlemen, you must pass upon those questions under all the evidence. [The nurse has testified as to what the doctor said, and it is for you to say whether or not — that is, you are to judge of the meaning of the words which she used in testifying, and you are to take your recollection of what she said with regard to whether or not she communicated this statement of the doctor to the plaintiff. If she did communicate it to the plaintiff, and he went out afterwards, that would be an end to all claim for damages resulting from his going out and from his subsequent improper treatment. If you find that the nurse went to the doctor and he told her to tell the plaintiff that if he went out he went at his own risk, and she did tell him so and he went out, then he went at his own risk,] [14] because he was disobeying in such a case the instructions of his doctor; and if, after that, he suffered unnecessary pain because of his lack of treatment, if after that time from traveling, it had resulted in permanent injury to his limb, that was one of the risks that lie took and he could not recover from this defendant for it. You will observe, then, gentlemen, that after the primary question which you have to determine, whether or not the leg was broken, and the question whether or not, if it was broken, this defendant treated it with ordinary skill and care, the next important question you come to is what occurred at the time this man left the hospital and immediately leading up to his leaving the hospital. If the man left the hospital upon the directions of his doctor, being told that he was cured, or practically so, and that he could go home, and suffered an injury in consequence of so leaving, suffered an injury due to the negligence of the doctor in not exercising ordinary skill and care, then lie could recover for that injury, unless you find that the circumstances were such that as a reasonable person he knew or ought to have known that he was endangering Ids condition; and then his right to recover would be defeated upon the ground of contributory negligence. In the absence of contributory negligence, he would be entitled to recover damages for the injury he suffered. If, on the other hand, the man left the hospital in the teeth of the advice of his physician, and because he did so, suffered an injury, it would be simply a gross injustice and hardship to hold a physician connected with an institution charitable in its nature in this way for the consequences of the misconduct of the patient; and the plaintiff if he did go out under such circumstances could not recover for what resulted from his going out and from the subsequent travel and neglect. If the plaintiff was neither told by the doctor to go or stay, but left of his own accord, is another view; because you must find under all the evidence in the case what did happen. If without asking the doctor, -without his consent, he left, then the doctor would not be responsible for the consequences of his leaving, and if his present condition is owing to taking the journey unauthorized by his physician, he could nut recover damages for anything that resulted from his leaving the hospital. [And in either of these cases — in the case he went out in the teeth of the advice of his physician, or if he went out without the consent of his physician, without saying anything to his physician about it, if he simply left without the knowledge of the doctor, his right to recover would be limited, in case you find that the limb was fractured and that the doctor was guilty of negligence — lfis right to recover damages would be limited to such damages as he suffered before leaving the hospital, if you find that what he did in leaving the hospital contributed to produce the injury.] [15] Now, you have three views of the case upon the question of the manner of his leaving the hospital, and you have to make up your minds, from all the evidence in the case what that manner was — whether he left by the direction of Ms physician, or against the advice of his physician, or without his physician knowing anything about it. [There is another view, possibly, under the evidence, which it might be well to consider. In case this man told his doctor that he was going to leave and the doctor neither consented nor objected; in such a case, if the man said to the doctor that he intended to leave the hospital the next day, then the doctor would have upon him the duty of giving him such advice and directions and care in view of that fact as a man of ordinary skill in the profession exercising reasonable care ought to give under the circumstances; and if such a physician would have advised him of the danger of going out, then it was the duty of this defendant to advise him of that danger.] [16] If such care and skill required that this limb should have a splint upon it when the man went out, then if the doctor failed to take that precaution, or to give directions to have it taken, he would be guilty of negligence and would be answerable for the consequences, unless the evidence in the case, from its weight, satisfied you that the plaintiff in that matter was guilty of contributory negligence. In such a case, if the doctor neither consented nor refused to permit him to go, but simply received notice from him that he was going, and then, without objecting or consenting, permitted him to go under such circumstances as would amount to negligence in the treatment of it, yet if at that time the plaintiff knew that his going was a dangerous thing, that it would be likely to result in injury to him, or if a man of reasonable prudence ought to have known that it would result in injury to him, and notwithstanding that knowledge, or knowledge of the facts which ought to have indicated to him that this state of affairs existed, he went, he would be guilty of contributory negligence and could not recover. If the plaintiff was simply dissatisfied with his treatment and thought'he was getting worse, and believed that Iris leg was in a bad condition, and determined that he would go out whether the doctor said so or not, and told the doctor that he was going, then primarily if the doctor knew that he was going, he could have objected, told him he mustn’t go; and if he went he would be liable for the consequences of his own going, that is, he could not recover from the doctor. If the doctor neither consented nor refused, but let the man go, if he knew he was going, it was his duty either to warn him not to go or to take the usual and ordinary precautions preparatory to his going, and a failure upon that would be negligence on his part; but if the man knew that he was getting worse all the time, that his leg was in. bad condition, that he wasn’t cured; then, if that state of facts indicated to him that the going out was a dangerous or unsafe thing to do, then that would be negligence on his part and he could not recover. [The connection of the physician with this case ended on the 17th of December. His liability is fixed against him, or in his favor, by what occurred down to that time.] [17] He gave no advice afterwards. Subsequent events simply become evidence because they may throw some light upon what had occurred before, and indicate the real nature and extent of the injury. If you find all these questions in favor of the plaintiff upon the weight of the evidence, find that lie was treated negligently, discharged negligently, and do not find that his own negligence contributed to produce these subsequent injuries, then for the consequences of such negligence which a man of reasonable foresight under the circumstances ought to have anticipated, the defendant would be liable in damages. In other words, if you find that the leg was fractured, that the defendant treated it negligently, that he discharged the man from the hospital, or permitted him to go out under circumstances which would render him liable for negligence, and the man went out and suffered injury, then the defendant would be liable for all such consequences of his negligence as a reasonable man under the circumstances would have been expected to foresee and guard against. If some unusual circumstances intervened, if the man was badly treated afterwards, or if because of some latent quality in his system which reasonable care in the physician could not have foreseen and guarded against, an injury which to the ordinary man would have been slight, proved more serious to him, then for such unusual and extraordinary consequences, a physician Avoulcl not be liable, even although he had been negligent in the treatment of the case. A man is not expected to foresee results that are out of the ordinary and are unusual, and, therefore, is not to be charged with such results.</p> <p>If you find for the plaintiff upon all of these questions of fact, then for such unnecessary pain and suffering, for loss of time and for such consequences to the general condition of the man as reasonable skill ought to have foreseen was likely to result from this course of treatment, and for the diminished earning power resulting from such consequences, this plaintiff would be entitled to recover damages.</p> <p>You will give the case, gentlemen, your careful consideration, starting out with the determination to do what is right and just, and not be swayed by prejudice or sympathy. On the one hand you have a man who has been unfortunate. On the other hand you have a physician occupying a position of responsibility in an institution which is one among a class essential to the prevention of great suffering among those who are most likely to suffer, in the administration of which men of skill voluntarily contribute their time and their talent. It is important to this plaintiff who has suffered, if he has cause to legally recover, that your verdict should be just to him; and it is important on the other hand that the defendant should not because of his mere connection with a work of charity be mulcted in damages, unless you are satisfied by the weight of the evidence that he failed to bring to the treatment of tins case the ordinary skill of his profession in examining the man and determining the character of the injury and subsequently treating him, or that he failed in giving him reasonable care under the circumstances.</p> <p>You must, therefore, be satisfied by the weight of the evidence that the bones of the man’s leg were fractured, that the defendant failed to exercise reasonable skill and care in discovering the nature of and treating the injury, that the plaintiff suffered damage as a consequence which is reasonably attributable to this negligence. [And in case you find all of those things, if under the evidence you find that this plaintiff was himself guilty of negligence which contributed to produce his suffering and his present condition, then from the moment that that negligence of the plaintiff contributed to his-pain and contributed to the production of the injuries which have incapacitated him in a measure, from the moment that these two chains-of causation become mixed and mingled, for such pain as his-negligence contributed to, for such incapacity as his negligence in any way contributed to, there can be no recovery against tins-defendant.] [18] For such elements of damage as you hold this defendant, if you hold him for any, you must find them to be the result of his negligence; and for any incapacity that under the evidence you find has been contributed to by the negligence of the plaintiff, there can be no recovery in this action.</p> <p>Plaintiff’s points and answers were as follows :</p> <p>8. That the Homeopathic Hospital is not answerable in damages for the negligent act of defendant, it being an institution supported by funds donated by the state and individuals, which funds are not to be used for the purpose of paying damages for the torts of its officers. Answer: This point is affirmed. [7]</p> <p>5. That if the jury believe the plaintiff was deceived, misinformed or wrongfully advised by the defendant as to the nature and extent of the injury from which the plaintiff was suffering, and that the plaintiff did not know the nature and extent of such injury, then plaintiff is not to be held guilty of contributory negligence unless he knew or had reason to know that travel and absence of medical treatment would endanger his condition, and the burden of proof of contributory negligence rests upon the defendant. Answer: This point is affirmed. [8]</p> <p>Defendant’s points and answers were as follows:</p> <p>1. Under the pleadings and evidence the verdict should be for the defendant. Answer: This is refused. There are certain questions of fact upon which the jury must pass. [1]</p> <p>2. If the jury find that the negligence of the plaintiff contributed in any degree to produce the injuries of which he complains, then the verdict should be for defendant. Answer: This point is affirmed as to all injuries and suffering to the production of which the negligence of the plaintiff contributed in any degree. [2]</p> <p>3. Under the evidence, the plaintiff in remaining at Wilkins-burg for five or six days without medical treatment and in making his subsequent journey to Bedford was guilty of contributory negligence. Answer: This point is. refused. It involves a question of fact which is for the jury. [3]</p> <p>4. The mere fact that the defendant did not discover the fracture, if one existed, and therefore failed to treat the plaintiff in the manner in which Dr. Enfield says should have been done is no evidence of negligence. Answer: This mere fact as stated is not sufficient evidence of negligence. But any evidence going to establish said fact is to be considered by the jury in connection with all the evidence in the case in determining whether or not the defendant used ordinary skill and care to ascertain the character of the injury. [4]</p> <p>5. Under the statement and evidence the plaintiff is not entitled to recover for any injuries caused by putting on the bight bandage at the time he left the hospital. Answer: This point is refused. If the defendant ordered the bandage to tie put on in the manner in which it was and the plaintiff was injured thereby, then it is for the jury to determine under the evidence whether the defendant failed to exercise ordinary skill and care in so ordering the bandage. [5]</p> <p>6. The evidence of Miss Blosser, not denied, is that in answer to an inquiry from the plaintiff as to his leaving, Dr. Willard said when leaving the ward that if plaintiff left the hospital he did so on his own responsibility, which message was communicated by her to plaintiff at that time, and the plaintiff having left after receiving this notice, and further, the testimony showing that his condition on arriving at Bedford and subsequent thereto was attributable to his journey and the want of medical attendance, the plaintiff cannot recover in this action. Answer: This point is refused. The facts and circumstances connected with the plaintiff’s leaving the hospital are to be found by the jury under all the evidence in the case. [6]</p> <p>Errors assigned were, (1-18) above instructions; (19) the entire charge as an inadequate presentation of the case to the jury; (20-23) rulings on testimony, — see opinion of the Supreme Court.</p>

<p>Appeals, No. 172, Jan T., 1896, by defendants, from order of C. P. Luzerne Co., Oct. T., 1896, No. 16, refusing injunction.</p> <p>Bill for injunction. Before Lynch, J.</p> <p>The bill set forth that the plaintiff is the controller of Luzerne county under act approved June 27, 1895, that the defendants are commissioners of said county, and are violating said act by drawing warrants on the county treasurer for debts not audited and approved by said controller, etc., and prayed an injunction: (a) To restrain the defendants from drawing warrants on the county treasurer for debts, etc.; (¿) to compel transference to the custody of the controller of all bonds, etc.; (c) to compel defendants to supply the controller with rooms for an office; (d) to compel the defendants to meet with the controller for the purpose of fixing salaries, etc. The answer averred that the said act was unconstitutional on four grounds, viz(1) That the act is special, applying only to two counties ; (2) that the act abolishes a constitutional office, viz, auditors, during term of present incumbents; (3) that the duties of auditors are transferred to controller by reference to 'act of 1834 without re-enactment at length; (4) that the act contains two subjects, viz, creation of controller and abolition of auditors. It appeared that the plaintiff, the controller of Luzerne county, had been appointed by the governor and subsequently elected by the people, and duly qualified as such under the act of June 27, 1895, P. L. 403, an act alleged to have been passed to meet the objections raised against the act of June 8, 1893, P. L. 393, pronounced unconstitutional in Com. v. Samuels, 163 Pa. 283.</p> <p>The court below refused the injunction, holding that the 1st and 16th sections of the act of 1895 were unconstitutional.</p> <p>Errors assigned were, (1) holding act of 1895, creating office of controller, to be unconstitutional; (2) in refusing injunction as prayed.</p>

<p>Appeal, No. 94, Jan. T., 1896, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1898, No. 83, on verdict for plaintiffs.</p> <p>Appeal from award of jury of view, assessing damages for taking water from stream. Before Clayton, P. J.</p> <p>On the trial the defendant offered to prove by Howard W. Widener, a manufacturer engaged in business in Chester for a number of years, and conversant with the manufacturing business and acquainted with the values of mill properties on Crum creek, who has known the property in question for ten or fifteen years and knows its value, what in his judgment is the difference in value of the property by reason of the condemnation as gathered from what it will cost to reproduce the power lost by this abstraction of water.</p> <p>The Court: Supplemented by steam.</p> <p>Mr. Broomall, for defendant: By steam, and there are no elements that enter into the difference of value in lfis judgment other than the cost of producing the depleted power by steam at that point.</p> <p>The Court: I will permit you to prove what it will cost to supplement it by steam, but he cannot give the value before and after. Exception. Bill sealed for defendant. [4]</p> <p>Offers by defendant of the testimony of William C. Gray and Samuel Greenwood sufficiently appear in the opinion of the Supreme Court.</p> <p>The court charged the jury, among other tilings, as follows:</p> <p>Now it may be that there are other uses to which the water can be applied. There ought not to be any guessing about it, but if there are such uses, the plaintiffs ought to have compensation for them. But as' I say we are not to guess at that, it is for them to show you what they are. You are not to guess, you are not to speculate as to what can be done with this water, but they would have the right to any reasonable use to which it can be applied. [For instance,' if they had seen proper to erect waterworks there and sell water by distributing it among their neighbors, they had the right to do it, and then it would be a wrong to take it away from them.] [9] While it flowed through their property they had the same right to pump it up and distribute it among their neighbors as the Springfield Water Company has. Why? Because there are no riparian owners below them, and if there are, they are the only ones that can complain. If there were none they could take the water and distribute it without complaint. I don’t know whether there are or not. . . .</p> <p>[The verdict ought not to be less than the highest amount that the defendants have expressed themselves as willing to pay; what that is you get from the witnesses. I don’t exactly remember what it was, but I think the highest amount fixed by the defendant’s witnesses was something over $2,000. The verdict ought not to be less than that. It ought, not to be much more, than the lowest estimate put upon it by the plaintiffs’ witnesses.] [11]</p> <p>Verdict and judgment for plaintiff, for $8,625.</p> <p>Errors assigned,-among others, were (2, B, 4, 7) rulings on testimony; (9,11) charge of the court, quoting the bill of exception and instructions.</p>

<p>Evidence — Competency of witness — Weight of testimony for jury.</p> <p>In an action to ascertain the actual depreciation in the value of property caused by the taking of water under the right of eminent domain, where the examination of a witness shows that he has some knowledge' of the value of property in the neighborhood of that in question, he is entitled to testify; the value of his testimony being for the jury.</p> <p>Eminent domain — -Water—Storage thereof — Measure of damage.</p> <p>Where damages are being assessed against a water company for water taken out of a stream under the right of eminent domain, and the proper exercise of the franchise of the company required the storing of the water during the day and its use during the night, and such storing is injurious to the plaintiff’s property, the jury may consider the manner of the taking of the water, not as a separate item to be estimated by itself, but as an element of damage in determining the actual difference in the value of the property caused by the appropriation of the water.</p>

<p>Expert witnesses — Competency thereof.</p> <p>A witness who had been in the manufacturing business and knew the property in question, had experience in examination of manufacturing plants to determine their values, a general knowledge of the value of land in the vicinity, and who thought himself competent to testify as to the value of water powers, is qualified to testify, although he knew of no sales of such properties in the neighborhood for many years.</p> <p>A real estate agent acquainted with the values of property in the vicinity, who had made an examination of the property in question, and who based his value on the general condition of things, although he knew of the sale of but a single property within ten years, is a competent witness as to the value of the property.</p> <p>A manufacturer of experience who knew the rental value of water power although he had known of but a single sale is competent.</p> <p>An experienced real estate agent who had examined mill properties on the creek in question, and was acquainted with their valuation about as any real estate man would be, and had liad mill properties for sale, is competent to testify.</p> <p>Charge of court — Unnecessary remarks.</p> <p>The Supreme Court will not reverse for statements or explanations in the charge of the court that were not necessary, and which it might have been in better form to omit, but which did not seem to have misled the jury, or to have been injurious to the plaintiff’s case.</p>

<p>[Marked to be reported.]</p> <p>Ejectment — A Averse possession — Instruction for jury.</p> <p>Where in an action of ejectment the defendant claims title by adverse possession, the whole matter is exclusively for the jury under instructions from the court as to what constitutes such adverse possession.</p> <p>Evidence — Adverse possession — Ejectment.</p> <p>Where the testimony disclosing continuous notorious adverse occupation of the laud in question by the defendants and those under whom they claimed, for purposes of residence and for domestic uses, for a period of nearly forty years, was voluminous, precise, definite and positive, such evidence not only warrants the submission of the case to the jury but justifies a verdict for defendant.</p> <p>Ejectment — Adverse possession — Permissive occupancy.</p> <p>Where a deed is taken for land which is part of a larger tract belonging to the vendor, it does not follow that the vendee cannot acquire by adverse possession land outside of his deed, which was a part of the tract from which his purchase was made.</p> <p>Ejectment — Evidence—Permissive occupation.</p> <p>Defendant having purchased a portion of a larger tract claimed title by adverse possession of adjoining lands of which the paper title, originally in defendant’s vendor, had been conveyed to the plaintiff. For the purpose of showing that the defendant’s occupancy of the disputed land was permissive and subservient to vendor’s title, plaintiff offered to prove that there was a memorandum on vendor’s sales book defining the limits of the land admittedly sold vendee; this followed the account in vendor’s ledger. Held, (1) that the offer was jrroperly rejected by the court below; (2) that even if admitted the evidence would not have justified the inference that the land in dispute was occupied by defendant in subserviency to vendor’s title.</p>

Appeal, No. 4, Jan. T., 1896, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1891, No. 763, on verdict for plaintiff. Trespass for killing plaintiff’s husband. Before Simon-TON, P. J., of the 12th judicial district, specially presiding: Hughes v. Delaware & Hudson Canal Co., 4 District Reps. 574.

Appeal, No. 13, Jan. T., 1896, by defendant, from judgment of C. P. Lackawanna Co., Nov. T.,, 1893, No. 52, on verdict for plaintiff. Assumpsit on a promissory note. Before Gunster, A. L. J. The facts appear by the charge of the court below and by the opinion of the Supreme Court.

<p>Appeal, No. 190, Jan. T., 1896, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1894, No. 37, on verdict for defendant.</p> <p>Trespass for injuries arising from fright of a horse. Before Lvnch, A. L. J.</p> <p>At the trial it appeared that the People’s Street Railway of Luzerne county was incorporated by act of assembly March 23, 1865. Under this charter the company soon after built a line of street railway from Scranton to Dunmore, and upon Blakely street, in the borough of Dunmore, where this accident occurred. From the time of its construction down to 1888, about twenty-two years, the line was operated with horses as the motive power. In 1888 the motive power was changed, and the trolley system adopted. Poles and wires were erected on Blakely street, among others, but without the municipal consent of the borough of Dunmore. In 1892 the People’s Company leased the line to the Scranton Traction Company;</p> <p>Plaintiff offered to show by the borough records that the Scranton Traction Company did not obtain permission from the Dunmore authorities to continue the use of the poles and wires which the People’s Company had erected and had been using without permission. This offer was overruled and bill sealed for plaintiff. [1]</p> <p>On the 30th of March, 1893, the employees of the Scranton Traction Company were at work on Blakely street in the borough of Dunmore, repairing the trolley wire over their railway track. They commenced at seven o’clock in the morning, a considerable distance below the intersection of Blakely and Drinker streets, and were working up toward Drinker street. To reach the trolley wire, about eighteen feet above the track, they were using an appliance consisting of a combination of ladders, braces and iron rods, and a platform at the top from fourteen to sixteen feet high. This appliance was not in use by the company before this morning, and was different from those before in use. Those previously used being an appliance on a wagon, drawn by horses.</p> <p>The plaintiff carried on the business of a butcher. On the morning in question he started with Ms team from Ms shop to deliver meat to his customers. There was evidence that his horses were accustomed to the cars and also to the appliances before used to reach and repair the trolley wire. There was also evidence that they had run away once or twice. As Potter turned the corner from Drinker into Blakely street defendant’s appliance was standing on the track between the rails on Blakely street at a distance from Drinker street, variously estimated by the witnesses, of from 30 to 80 feet. One of defendant’s employees was on the platform at the top of the ladders and hammering on the hangers of the trolley. Another employee was on the ladder near the ground. As the team approached tMs appliance they frightened and the pole of the wagon struck against a pole planted on the curb line. Potter was thrown violently to the ground and sustained very severe and permanent injuries.</p> <p>The court charged the jury in part as follows:</p> <p>Perhaps, gentlemen, the best way of getting at the true issue in the case is to state what is not in dispute. Therefore, permit me to call your attention to what is not in dispute, so far as the jury will pass upon the questions at issue. By the act of the 23d of March, 1865, the People’s Street Railway Company of Luzerne county was incorporated. Under the provisions of that act the company had a right to lay out and construct a railway, with one or more tracks, with turnouts and sidings, from or near Scranton to Providence, Hyde Park and Dunmore; to connect with any other railroad now constructed or that may hereafter be constructed, and to carry passengers and freight along such routes and streets as may be used by said railway. They were to commence the railway at any time within three years from the passage of the act, and the completion of one mile thereof is to perpetuate all the rights granted.</p> <p>It also provides in the sixth section, that the company incorporated shall be subject to all the provisions and entitled to all the privileges of the act of 19th of February, 1849, so far as they are not altered and supplied by this act.</p> <p>Gentlemen, under the provisions of that act, the People’s Street Railway Company built the line in question many years ago, and operated it as a horse car line until 1888, when it was reconstructed and made an electric railway. The necessary poles and wires and other appliances required to operate a road of that character were then constructed in the borough of Dun-more. In 1892 the road thus reconstructed and equipped was leased to the present defendant, who has operated it since.</p> <p>It is agreed that the present defendant is incorporated under the act of 22d of March, 1887, which provides for the incorporation and regulation of motor power companies, for operating passenger railways by cable, electrical, or other means. The first section provides, that corporations may be formed, in the manner hereinafter mentioned, by the voluntary association of five or more persons, for the construction and operation of motors and cables, or other machinery for supplying motor power to passenger railways, and the necessary apparatus for applying the same; provided that no company which may hereafter be incorporated under this act shall enter upon any street for the purpose of constructing thereon or therein any such motors, cables, or other appliances, until after the consent to such entry of the councils of the borough, town or city in which said street may be located shall have been obtained. Then, when so formed, the corporation shall have power to lease the property and franchises of passenger railway companies, which they may desire to operate, and to operate said railways.</p> <p>Counsel for the plaintiff have, in substance, asked the court to say that the maintenance of poles and wires, used in the operation of this railway, on Blakely street, in the borough of Dunmore, was, at the time in question, a nuisance, and, therefore, the question of the company’s negligence in this case did not arise. I decline to so say to you, and, in brief, for these, among other reasons: The company organized in 1865 or 1866 was operated as a horse car road until 1888 without, so far as it appears in this case, objection by any one. The electric appliances were erected on Blakely street and operated by the company until 1892. In 1892 the defendant company leased that line as it then was; it did not construct it, it did not erect it, it simply took it as it was, and at the time in question was repairing it. Therefore, if under other circumstances, the company might possibly be said to maintain a nuisance, they could not in this proceeding, and [I therefore say to you, that the company had the right, at the time in question, to occupy Blakely street, with its railroad, its cars, its poles, and its wires. That question, therefore, is not in the case for you to dispose of.] [2]</p> <p>"What are the questions upon which you are to pass, and what is the law governing those questions ? In substance the plaintiff’s declaration sets out, that the company was, at the time Mr. Potter was hurt, operating an electric railway in the borough of Dunmore; that the company negligently and carelessly set up the ladder in question; that it was an unusual, uncommon and extraordinary appliance, and that he, without fault on his own part, was hurt by reason of the appliance being in the street.</p> <p>The plaintiff charges the defendant with negligence in maintaining this apparatus or appliance in Blakely street. The mere fact that an accident occurred by which Mr. Potter was hurt proves nothing, except that he was hurt. It does not prove negligence upon the part of the company. He asserts that they were negligent in the management and use of this appliance, and, therefore, he must prove that assertion by the fair weight or preponderance of the evidence.</p> <p>First, what was the appliance or apparatus ? It is not necessary for me to go over the evidence with reference to it; you have seen a part of it, and have seen the model, and you have heard the witnesses, many of them experienced, intelligent men. The Street Railway Company had the right, and I may say it was the Street Railway Company’s duty, having laid its tracks, and operating the road under its charter, to occupy Blakely street with its cars, its poles, its wires, and with the proper sort of an appliance for the repair of those wires. They had not a paramount right, an exclusive right to the use of the street, but they had an equal right with other travelers upon the highway; they had an equal right with Mr. Potter upon the street, no greater and no less. They had the right, while their cars were passing upon the track, to use this appliance, if it were an usual and ordinary one, upon the track for a reasonable time for the purpose of allowing them to repair the overhead hanger or wire. [Their right for a reasonable time, with a proper appliance, was paramount and greater than the right ■of Mr. Potter;] [3] in other words, it was not only their right, but their duty to keep their trolley in good order.</p> <p>What is the negligence complained of ? That the company erected, at a distance of about seventy or eighty feet on Blakely street from the corner of Drinker, within the track, as I think all the witnesses, except Mr. Boyle, testified, a ladder; that it was an unusual appliance, was of extraordinary character, well calculated or tended to frighten docile, well-broken, gentle horses; that on the morning in question it, and the men upon it, did frighten his gentle, well-broken team, and that by reason of that fright he was injured. It is not denied that this appliance was located there, and in fact there is very little dispute as to where it was erected; that it was in the middle of the railway track is substantially agreed upon; its height, shape, size, color, what the man on top of it or near the top was doing, what the men at the bottom were doing. All these, I say, are substantially agreed upon, so that you will probably have very little difficulty in passing upon those questions. The company had the right, at that time and place, to erect and keep there for a reasonable time, while they were repairing the overhead trolley, a proper appliance or apparatus, such an one as would not naturally tend to frighten well-broken and docile horses. . . .</p> <p>Gentlemen, if you shall ascertain from the fair weight of the credible evidence that this apparatus, this ladder, and the men upon it at work there, was not of unusual and extraordinary character, and that it did not naturally tend to frighten well-broken and docile horses, even though it frightened some, that would end this case, and you should return a verdict for the-defendant.</p> <p>Yerdict and judgment for defendant.</p> <p>Errors assigned, among others, were (1) ruling on testimony, quoting the bill of exceptions; (2, 3) portions of charge specified above, quoting them.</p>

<p>Insurance — ■ Warranty — Materiality thereof.</p> <p>In an application for life insurance the insured stated that he had always been temperate; that he had consulted a physician within about a year for light influenza. Pie died four months after the policy was issued, and his administrator, in the proofs of death, showed by the affidavit of the same physician that, during five years preceding the applicant’s death, he had attended him for vomiting and nausea caused by overdrinking; and it was the uncontradicted evidence of the said physician that he had attended the applicant within four months prior to the application and prescribed for vomiting aud nausea induced by drunkenness. Held, that the undisputed facts showed such breach of a material warranty as to require the court to direct a verdict for the defendant.</p>

<p>Mines and mining — Minimum royalty — General rule.</p> <p>The ordinary provision contained in mining leases where a certain minimum amount is agreed upon to be taken out each year and if it is not taken out the lessee agrees to pay the royalty notwithstanding, is based upon the theory that the ore or coal is in place and can be taken out if proper efforts are made, and is intended as an incentive to compliance with the duty of adequate performance and of prompt payment.</p> <p>Mines and mining — Ore lease of undeveloped lands.</p> <p>Where undeveloped lands were leased for the purpose of digging for and mining ore, and the lease provided that the lessee should have the right to dig for, mine and take away the ore for a period of fifteen years, and to pay 60 cents per ton for every ton of ore sold from the premises during the term, to be paid monthly, but the amount to be paid to be not less than $-100 in any one year, it was held, (1) that the parties contracted with reference to the iron ore which was supposed to exist, and did exist, on the lands demised; (2) that there was no agreement to pay a fixed absolute sum for the ore in place; (3) that the lessee was bound to use all proper efforts to find ore, mine and take it away, and that he was obliged to pay only for such ore as was mined or could be mined, and, if the ore gave out before the termination of the lease, the obligation to pay royalty ceased : Muhlenberg v. Henning etal., 116 Pa. 138 ; Kemble Coal &Iron Co. v. Scott, 15 W. N. C. 220; McCahan v. Wharton, 121 Pa. 424, followed. Timlin v. Brown et al., 158 Pa. 606, distinguished.</p>

<p>Vendor and vendee — Contracts executory — 8ale uncompleted.</p> <p>An agreement for the sale of all the lumber in eleven piles on the in'operty of a third person, not for a gross price, but at a price per thousand feet, “ shipping count F. O. B. cars, Williamsport, to be loaded, inspected and measured as ordered by the purchasers by” a person agreed upon, same to be paid for within thirty days after dates of bills dated on day of loading; all lumber in yard June 1, 1894, not loaded on cars before that date to be inspected and measured by another person agreed upon and the same to be paid for in cash on that date at a less rate per thousand, was held to be an executory and not an executed contract of sale, and it was further held that the loss of said lumber by flood, prior to June 1st, fell upon the vendor.</p> <p> Qond/Wion precedent. </p> <p>The title of the vendees rested on delivery f. o. b. cars to them at Williamsport, and they were not liable for any lumber which was not inspected and actually delivered to them.</p> <p>Words and phrases — “ Inspected.”</p> <p>Where the parties have by their dealings construed the term “inspected ” to mean the sorting of good lumber from “ culls ” it is not error ' for the trial court to refuse to submit its interpretation to the jury.</p>

<p>Vendor and vendee — Ghange of possession — Fraud upon creditors.</p> <p>Certain dredges and scows used in the work of removing islands in a river were sold while so employed, the vendor retiring and the vendee coming in and taking possession. Held, that the possession of the vendee was good as against attaching creditors of the vendor; such possession being as sufficient as if the vendee had removed the property to a new place.</p> <p>Collateral security — Lien for debt — Parties—Purchasers and creditors.</p> <p>Where the vendees of personal property are in possession, but the legal title of the property is in a trustee as security to the vendor for the payment of the purchase money, such legal title cannot prevail against a bona fide purchaser for value without notice, or against creditors having a lien by levy or attachment acquired while the properly was in possession of the debtor vendees, but is good against all others.</p> <p>Tortious possession — Debtor and creditor — Lien of levy.</p> <p>Where a bona fide vendee of personal property for a valuable consideration takes possession under his purchase, and subsequently the vendors, forcibly and without right, repossess themselves of said property, such tortious possession does not make said property subject to levy by the creditors of said vendors.</p>

Appeal, No. 215, July T., 1895, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1893, No. 341, on verdict for plaintiff. Trespass to recover damages for death of plaintiff’s husband. Before Pennypackeb, J. It appeared on the trial that the defendant on August 20, 1888, leased a four story building Nos. 515, 517, Commerce street, Phila., for the term of five years for the purpose of a paper warehouse.

<p>Appeal, No. 12, July T., 1895, by George E. Bryant, Henry L. Bryant, Abbey E. Taylor, William E. Bryant, Jennie Bryant White, Charles E. Bryant, Frederick W. Bryant, Carrie D. Matson, Frank E. Bryant, Anna Bryant, Hiram E. Bryant and Adeline F. Bussinger, claimants to the estate of Charles Bryant, deceased, from decree O. C. Phila. Co., July T., 1894, No. 182, awarding estate to Ann Chance and others, English claimants.</p> <p>The facts sufficiently appear by the adjudication of the court below, Ashman, J., which is in part as follows:</p> <p>Charles Bryant died at the age of seventy years, on July 26, 1893, at the Delaware House, a hotel at the corner of Second and Pine streets, where he had lived for nine years. Dating as far back as 1846, his home appears to have been in Philadelphia. He was married here on June 7, 1853, and his place of residence from that time until his death was distinctly shown to have been within the city limits. He had followed the sea from an early age, and had risen from the grade of an ordinary seaman to that of captain and owner of a brig. In 1870 he appears to have abandoned the sea. In that year he opened a grocery store at Third and Carpenter streets, and he retired from business a few years afterwards, with an estate, part of which probably came to him from his wife, which at his death was valued at about $45,000. He was at all times reticent as to matters relating to his personal history; his brother-in-law declaring that in an intercourse of forty years he had never known the decedent to' allude to his parents or other kindred. He had no correspondence and no communication with any who claimed to be of his blood, and he left no writing of any kind except a United States certificate as sailing master, to be noticed hereafter, which could furnish the slighest clue to his origin. He died suddenly of apoplexy. Letters of administration on his estate were issued to James T. Thompson, the proprietor of the hotel, and a creditor to a small amount of the decedent, and that gentleman immediately notified the commonwealth’s officers that an escheat had occurred. Yarious inquiries were set on foot and notices were published, and the details of the case gained considerable notoriety through the newspapers here and elsewhere. The result was that at the audit of the administrator’s account, in addition to the commonwealth, five different sets of claimants appeared, each of which set up title to the estate, as the sole surviving next of kin of the intestate. These sets or classes of claimants hailed respectively from Maine, Massachusetts, New York and Illinois, and the members of one of them jointly from Nova Scotia and England. Their narratives, dissimilar in everything else, had this feature in common —that the relative, whom they described as identical with the decedent, had disappeared from their midst more than a generation ago, had sent them no message, oral or written, and, except in two instances, had never again been seen by them or their witnesses. One means of identity, however, was left open. Among the few personal effects of the decedent were a daguerreotype and a photograph which were evidently of old date, and portrayed him at what seemed to be the age of thirty years or thereabouts. These pictures were recognized in the most positive terms by the representatives of each set of claimants as the undoubted likeness of their individual decedent. It is easy te see that this diversity of belief as to the original of the portrait took away from the individual opinions every vestige of value which they might otherwise possess as a matter of evidence. Admitting, what it requires a large gift of credulity to admit, that five persons of the same age and name, but wholly unrelated to each other, disappeared at the same time from five different places and were thereafter lost to all former acquaintances, and that these five persons so closely resembled each other that a single portrait would serve for the entire group, the difficulty would still remain of assigning, out of so many originals, his own proper'personality to this decedent of adaptable likeness, who is proved to have been an exact copy of them all. The embarrassment is not helped by another circumstance: The Massachusetts claimants produced a photograph of the relative whose identity with the decedent they sought to establish, and they contended that this picture was a counterpart of those which were admittedly portraits of the decedent; but the remaining claimants were unanimous in denying that any similarity whatever existed. It was forcibly said by Paxson, C. J., in a case where testimony of a like character had been submitted : “ Granting the likeness, it may be the result of the merest chance. We all know that striking likenesses often occur between persons who are not of the same blood; so strong that in many instances the one is mistaken for the other.” Sheehan’s Estate, 27 W. N. C. 534. To accept it, even if uncontradicted, as conclusive, would be to build the decision upon what is, in the most literal sense, a shadow.</p> <p>Another feature which the several claimants had in common was that each of the absent relatives had disappeared without any assignable cause for his leaving. One of them had vanished in infancy, but in the case of each of the others, his home intercourse had been pleasant and his final departure had been in the course of his ordinary calling; yet he had never thereafter addressed a line to his former associates, and had dropped out of their lives as completely as he would have done if he had removed to one of the fixed stars. If the narratives told by the witnesses are reliable, and in the main they may be true, the decedent must be regarded as the type of quite a number of Charles Bryants, each of whom is possibly living a dual life, and, without having developed any preparatory wickedness, has cast off the ties which were generally held to be sacred.</p> <p>The Massachusetts claimants were nephews and nieces and remoter collateral kindred of one Charles Bryant, who was born July 25,1822, in the town of North Bridgewater, now Brockton, in that state. He was a sailor, and in 1848 left in a coasting vessel on his last known voyage. He never returned, and the rumor was that he died that year in New Orleans. In 1848 a letter was received by one of the family announcing the sailor’s death either on the trip or in a southern city, and about the same time a box purporting to contain his clothing also arrived. No further tidings ever came to hand, and the death had been universally accepted as a fact for more than forty years, and until intelligence of the death of the present decedent. The latter fact was communicated to the claimants by an agent who was sent by the administrator on an errand of inquiry to Brocton. A certificate had been found in a trunk belonging to the decedent, under the hand and seal of the collector of the port of Philadelphia, dated May 2, 1856, which set out that Charles Bryant, an American seaman, aged thirty-three years, five feet eight and one half inches in height, of light complexion, brown hair and gray eyes, with a scar on the left hand, and born in North Bridgewater, Massachusetts, had produced satisfactory proof that he was an American citizen. The anomaly may just here be noted, that although this paper accurately described him in other particulars, it failed in this : that the decedent unquestionably had black hair and eyes, and a dark complexion, and was never known to have had a mark upon either hand. The claimants were able to identify the features of Charles Bryant, of Bridgewater, in the likenesses which were shown them of the decedent; and their description of the former person correspond in a general way with that of the decedent himself, except as to the eyes, hair and complexion, in which their original answered to the recital in the certificate. The evidence upon this point was either traditional or hearsay, because none who appeared at the hearing had ever seen their kinsman. The coincidences which obtained in this case, striking as they were in respect of name, age and place of origin, cannot, however, be accepted as decisive. We have already seen that they were not aided by the alleged resemblance of the picture of the missing man to the portraits of the decedent, for the reason that a likeness, equally strong, was claimed with as great positiveness for three other men who had disappeared. The fact also that the certificate named North Bridgewater as the place of decedent’s birth, must be taken in connection with the decedent’s own statement which will be presently alluded to, that he came from Massachusetts. To preserve the verisimilitude, he would, assuming that the certificate in question was really used by him as his own, be very apt to select for his putative birthplace the town of North Bridgewater, a place which was prolific of Bryants, as the slightest inspection of Kingman’s history of the locality will demonstrate. Against these coincidences must be placed the well founded tradition, which the receipt of the letter and box raised into something more than a rumor, of the death of Charles Bryant of Bridgewater, in 1848, at New Orleans. Here, again, a most important incident comes into play. The claimants, it would seem, had never thought it worth while to verify the truth of the report of their kinsman’s death by personal inquiry at the place where it was supposed to have happened. The agent employed by the accountant, however, himself visited New Orleans for that purpose, and as the result of his investigation he produced at the hearing a transcript, duly authenticated, from the records of the board of health of New Orleans, reciting that “ C. Bryant, a seaman, a native of Massachusetts, aged 26 years, died on the first day of May, 1848, at the Franklin Infirmary,” in that city. This proof tallied so nicely with that which was furnished by the memorials of the death which had come at the same time and from the same place, that no after-coincidences, no matter how plausible, could sweep it aside; and, the auditing judge thinks, it effectually disposed of the claim. . . .</p> <p>The English claimants were brought to light through a clue which had been furnished by the decedent himself. In 1888 a will was prepared for him by the agent who attended to his real estate interests, by which he left one third of his property to the children of a deceased stepson, and the balance to charities. A few months before his death he declared that he had destroyed this will, and the agent then sought to impress upon him the duty of providing for his own kindred, and interrogated him very seriously as to his family connections. He parried these inquiries by saying that he had no knowledge that a single relative survived, and that he had no desire to search for those who, if they were found, would care only for his money. He was finally induced to say he was born in the district of Poplar, in London, of Irish parents; that his father was a ropemaker; that he himself when a boy had come over to this country as a sailor; that he left four brothers and four sisters behind him, of whom one sister, he remembered, had been very hind to him. He gave the names of these persons, and he also declared that the child of a brother or sister lived somewhere in Nova Scotia. He admitted that be had always concealed the place of his birth, and had avowed himself a native of Massachusetts. Beyond these meager details he either could not or would not go. After bis death, the agent inserted a notice in a newspaper published in Halifax, N. S., calling in general terms for information as to any surviving tin of the decedent. As a result of that notice he received a letter from a person signing himself Charles Bryant, who alleged that he was a son of Cornelius Bryant, a brother, and who gave the address of his sister in Chatham, England. This lady was visited by the agent in person, and the story which she told corresponded in every detail with that which had come from the lips of the decedent and the nephew in Plalifax. These particulars embraced the nativity and names of his parents; the trade of his father; the names of the various members of the family, and the date and manner of the decedent’s abrupt departure from home. It was ascertained that the informant, Mary Ann Fariess, was the sole survivor of the brothers and sisters, and that most of the children, to the number of twenty-two, of those who had died were still living in London. These were in turn seen by the agent, and they severally corroborated the statements of the sister. The sister and a niece, daughter of James, a deceased brother, appeared at the audit, and testified among other matters that the deceased was born in 1819, and was baptized at King’s X Chapel, London, 1819 or 1820, and had run away at sixteen years of age, and shipped on the ship Thames, and that no -further tidings of his whereabouts had ever been received. This testimony can afford to stand without comment. It is the highest class of evidence which is known to the law; it was furnished by different parties, widely separated from each other, and between whom no possibility of collusion could exist; it bore out exactly the statements of the decedent, and it tallied with all the known incidents of his life. To the mind of the auditing judge it is so entirely convincing that he has contented himself with giving it' only in outline; especially as a sense of justice to rival claimants, whose demands were pressed under an honest belief that they were genuine, required that some space should be given to the discussion of their merits. It was urged against the claim that it rested, like its immediate predecessor, upon the testimony of a single witness, a proposition which the auditing judge concedes. He also admits as conceivable that .a person who had secured from a claimant representing himself to be the heir of a decedent the names and degrees of relationship of those who would be entitled, if they were the rightful heirs, might be base enough to pretend that he had received those details from the decedent in his lifetime. In that way he would apparently give to a title which was wholly fictitious the direct sanction of the decedent. But that no such fraud was perpetrated here is self evident. If the agent who finally brought the English claimants into the case was'not told by the decedent that probably a relative was still alive in Nova Scotia, why did he advertise in the Halifax papers? The decedent had certainly told others that he was born in Massachusetts, and the administrator promptly and properly sent a messenger to that state, in quest of living kindred. The advertisement in question was inserted almost immediately after the death, before the circumstance of the case had. gained publicity, and before any claimant had had time to apply. The auditing judge thinks the claim was effectually proved, and he so decrees accordingly.</p> <p>A word remains to be said respecting the United States certificate in the name of Charles Bryant. Beyond the circumstance that it was produced from among the effects of the decedent, nothing was known as to its use by Mm, or whether he used it at all. In the very material pornts by which it was meant to identify the bearer, the color of the hair and eyes and complexion, it was certainly at fault. Its description was of a man of brown hair, gray eyes and a light complexion, while the decedent was almost unanimously accredited with black hair and eyes, and a dark complexion. The witnesses on behalf of the Bridgewater, Mass., claimants picture their decedent as possessing, in 1848, the characteristics of color set out in the certificate, and in so doing they described another person than the present decedent. According to the testimony of some of the witnesses for Mrs. Dean, it is a custom among seafaring men to give to custom house officials false answers to name and nationality, where some temporary or local advantage can be secured by perjury. If the decedent did this, and thereby obtained a certificate that he was an American citizen, born in Massachusetts (the fact being otherwise) it is, nevertheless, difficult to see how he could have misled the official in a matter so open to the senses as the color of his hair and the tint of his complexion. If we wander into conjecture we may guess that the official was color blind. The paper, at best, must play a very subordinate part as evidence. Its chief interest is that it assigns North Bridgewater as the decedent’s birthplace. But he named other places as well. He said to one witness that he came from Maine, to another that he came originally in a man-of-war to' Boston, and two witnesses, one of whom was his stepson, believed him to be an Englishman or an Irishman.</p> <p>A claim on behalf of Henry H. Colclaser for $300, and another by George Lodge for $963, were presented. Both were of the same character, and were based upon services of the claimants, in looking up the relatives of the decedent. The services required a high order of intelligence, and they involved considerable travel, and a large expenditure of money, and they undoubtedly resulted in securing the evidence upon which a distribution of the estate can be decreed. The claims are allowed.</p> <p>The appellants are known as the Massachusetts claimants.</p> <p>The exceptions to the findings and conclusions of the auditing judge were dismissed by the court in banc: Hanna, P. J., 4 Dist. Rep. 192.</p> <p>Errors assigned were, (10) awarding to English claimants; (9) refusal to award to appellants; (8) award to George Lodge.</p>

<p>Ground rent — Presumption of extinguishment — Act of April 27, 1855, see. 7.</p> <p>A declaration or acknowledgment of the existence of a ground rent made by the covenantor to a former owner of the ground rent after title had passed out of the former would not prevent or delay an extinguishment of it under the act.of April 27, 1855, P. L. 369. The provision in that act in relation to such declaration or acknowledgment requires that it shall be made by the owner of the premises out of which the ground rent was reserved.</p> <p>Evidence — Ground rent — Collateral security.</p> <p>The testimony of a single witness, uncorroborated, that a conveyance of a ground rent absolute on its face was intended merely as collateral security is insufficient to convert the ground rent deed into a mere security for a debt or loan; and a party claiming to be owner of ground rent under such evidence is not such a person as may receive an acknowledgment of the existence thereof.</p>

Appeal, No. 146, Jan. T., 1896, by defendant, from judgment of C. P. No. 3, Phila. Co, June T., 1895, No. 911, on verdict for plaintiff. Trespass for damage for personal injuries to the plaintiff, a child two years old, who was injured May 31, 1895, by being driven over by a street car on Somerset street, near Thompson, in the city of Philadelphia.

Appeal No. 53, Jan. T., 1896, by Rebecca E. Peters, terre tenant, from order of C. P. No. 3, Pliila. Co., March T., 1892, No. 404, dismissing rule to open judgment. Petition and rule to open judgment against terre tenant. The facts sufficiently appear from the opinion of the Supreme Court.

Appeal, No. 162, Jan. T., 1896, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., June T., 1894, No. 686, of nonsuit. ■Assumpsit for goods sold to the Philadelphia Optical & Watch Co., Ltd., upon written guaranty. Before Sulzberger, J. The plaintiff offered in evidence the following agreement: We hereby agree to extend The Philadelphia Optical & Watch Co., Limited, a line of credit not to exceed Forty-Thousand Dollars ($40,000.00), upon condition that Jos.

<p>Negligence — Contributory negligence — Charge of court — Inadequate instruction.</p> <p>In an action of trespass for personal injuries occasioned by being struck by a street ear, plaintiff testified that at a crossing he attempted to cross a street on which there were two street car tracks upon which cai-s ran in opposite directions; that before he stepped upon the track he stopped, looked and listened; that he crossed the west bound track, heard a noise behind him and, as he turned to ascertain the cause, was struck by a car running thereon; that the cars were going at a furious rate of speed without sounding a gong. He was contradicted as to speed and signals by a number of witnesses and corroborated by none. The court instructed the jury that “plaintiff says ho stopped, looked and listened, a precaution which a man is bound to exercise before crossing a crowded thoroughfare ; and after he does that, he does his whole duty and that is all he can be expected to do.” Held, (1) that the attention of the jury, in submitting to them the question of defendant’s negligence and plaintiff’s contributory negligence, should have been particularly directed to the evidence upon which this question was to be determined by them; (2) that the instruction of the court was inadequate and misleading; (3) that the fact that he looked and listened before crossing the street, did not excuse his want of ordinary care while crossing it.</p>

Appeal, No. 203, Jan. T., 1896, by Henry S. Grove, assignee for the benefit of creditors of Wood, Brown- & Go., from decree of G. P. No. 4, Phila. Co., March T., 1894, No. 294, dismissing exceptions to the report of the auditor distributing the balance appearing in the hands of the assignee of Haines & Co. Exceptions to auditor’s report.

<p>Wills — Advancements—Interest thereon.</p> <p>Advancements do not of themselves bear interest. If interest is to be charged on them it can only be done by force of an intent of the testator to that effect, and that intent must be clearly expressed in the will. Such intent will not be imputed without express words when the result would be burdensome, unequal and extremely unjust.</p> <p> Will construed. </p> <p>A testator provided that the principal of all sums received from him by his daughter should be treated as advances on account of her interest in his estate, and be treated and considered as brought into hotch pot with, or added to, the capital or principal of his estate in the hands of trustees for the benefit of his other children and their issue, “so as to reduce the share of my said daughter or her issue in said rents and income of my estate so devised in trust by an amount equal to the interest at six per cent of said sum so advanced.” Specific annuities for others were provided for, and it happened that the income was not sufficient to pay the other annuities and to pay to each of the children as much as the interest at six per cent on the advances made to the daughter. Held, that the contingency contemplated by the testator had not arrived, and that when the other children had received in cash income the amount of the advances to the daughter, the income thereafter received should be divided equally between them all until the time for final distribution of the principal arrived.</p>

<p>Attorney in fact — Powers of- — Gannot use property of principal except in his business.</p> <p>An attorney in fact can lawfully use the property of his principal only in the business of the principal. The use of such property for the payment of the debt of any other person than the principal is not authorized by the power.</p> <p>Where one accepts from an attorney in fact property which he knows to be that of the principal, transferred by virtue of the power of attorney after the death of the principal, in payment of debts owing by others than the principal, he cannot retain the property against the representatives of the principal.</p> <p>Attorney in fact — Revocation by death.</p> <p>Death works a revocation of a simple power of attorney, and vests the title of the decedent in his executor or administrator.</p>

<p>Appeal, No. 231, Jan. T., 1896, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1895, No. 599, on verdict for plaintiffs.</p> <p>Trespass by parents for death of child caused by negligence of defendant. Before Pennyp acker, J.</p> <p>The facts sufficiently appear by the opinion of the Supreme Court.</p> <p>The defendant presented a point: (3) Under all the evidence in this case the verdict must be for the defendant. Refused.</p> <p>Verdict for plaintiffs for $2,500, reduced to $1,500, and judgment thereon.</p> <p>Error assigned was refusal of above point.</p>

<p>Assignment for benefit of creditors — Compensation to assignee.</p> <p>The circumstances that will justify an allowance of commissions to an assignee in excess of 5 per cent must be such as show an unusual amount of labor. Extraordinary labor is the basis on which a claim for extraordinary compensation must rest.</p> <p>Allowance of fee paid for suretyship.</p> <p>Where it was apparently contemplated on the acceptance of the trust that an assignee for the benefit of creditors should be allowed to charge the price paid by him to a trust company for becoming his surety, he will be entitled to credit for the same in his account, and an expression of his opinion or belief that the expense of settling the estate would not exceed 5 per cent should not deprive him thereof.</p>

<p>Findings of auditor — When not reversed.</p> <p>In a claim chiefly for domestic services against a decedent’s estate, where an auditor for distribution has found, on personal view and hearing of witnesses, that there was a contract to pay for the same, and the court below has approved the finding, the Supreme Court will not review that finding although the proof of the contract may not bo clear, and although the court would have been as well satisfied if the auditor had put the services in the class of those rendered voluntarily and without even implied contract basis, though with a hope or expectation of reward or gratuity.</p> <p>Decedents estate — Claim for domestic services — Presumption of payment at stated periods — Evidence.</p> <p>Domestic services are presumed to be paid for at stated periods according to the custom of the time and neighborhood, but this presumption may be rebutted by evidence of those familiar with the financial affairs of the decedent who are able to say that the claim had not been paid.</p> <p>Limitations — Declarations to remove bar of statute.</p> <p>Declarations of a decedent which do not identify the debt or fix the amount will not escape the bar of the statute of limitations, even although they amount to expressions of grateful intention to pay a definite sum.</p>

Appeal, No. 241, Jan. T., 1896, by defendant, from decree of C. P. Luzerne Co., No. 2, Feb. T., 1886, in equity, granting injunction in favor of the plaintiff, the Commonwealth of Pennsylvania. Bill in equity for an injunction. This bill was before the Supreme Court on an appeal by the commonwealth and is reported in 148 Pa. 621.

Appeal, No. 290, Jan. T., 1896, by defendants, from judgment of C. P. Luzerne Co., No. 267, Feb. T., 1896, in favor of plaintiffs for want of a sufficient affidavit of defense. Assumpsit for purchase money of real estate.

<p>Appeal, No. 318, Jan. T., 1896, by plaintiffs, from judgment of C. P. Luzerne Co., No. 1453, Oct. T., 1895, striking off judgment entered against Pelagia Neidzielska, the defendant.</p> <p>Rule to show cause why tbe judgment entered should not be stricken from the record. Before Lynch, J.</p> <p>The facts sufficiently appear in the opinion of the Supreme Court.</p> <p>Error assigned was making absolute the rule to show cause why the judgment in the case should not be stricken from the record as void.</p>

Appeal, No. 7., Jan. T., 1896, by Hart, Lee & Strome, from order of C. P. Luzerne Co., Oct. T., 1892, No. 680, discharging rule'to set aside sheriff’s sale. Rule to set aside sheriff’s sale. From the record it appeared that the following judgments were of record against Henry Banta: Patrick Tigue — No. 680, Oct. T., 1892. Date of judgment, 30th Aug., 1892. Debt, interest and cost......$1,221.78 C. R. Green — No. 162, June T., 1893. Date of judgment 25th May, 1893.

Appeal, No. 8, Jan. T., 1896, by defendants, Francis M. Christy and Mary A. J. Christy, executors, from decree of C. P. Blair Co., No.. 109, in equity. Bill in equity for an account. The case was tried before Lyons, P. J., of the forty-first judicial district, specially presiding, who filed the following opinion by which the facts appear : The complainant’s bill was filed May 3, 1884.

<p>Equity — Rescission of contract — Fraud.</p> <p>The grounds on which equity interferes for rescission of contract are distinctly marked, and every case proper for this branch of its jurisdiction is reducible to a particular head. They are principally fraud, mistake, turpitude of consideration, and circumstances entitling to relief on the principle of quia timet.</p> <p>Equity — Mutual mistake — •Rescission of contract — Water companies.</p> <p>A contract between a borough and a water company provided that water for the borough supply should be drawn only from certain designated land. It subsequently turned out that there was not sufficient water on the land designated to supply the borough. Held, that the failure of the water company to furnish the borough a sufficient supply of water, arising as it did from a mutual mistake of the parties, was not sufficient to justify a court of equity in canceling the contract.</p> <p>Water companies — Act of April 29, 1874 — Parties.</p> <p>The act of April 29, 1874, P. L. 94, by which the courts of common pleas are authorized on bill filed by any citizen using the water, alleging impurity or deficiency, to compel a water company to correct the evils complained of, applies to water companies which have made contracts to supply municipalities with water, and under the act a municipality has the same right as a citizen to file a bill in equity to compel a water company to correct abuses.</p>

Appeal, No. 129, Jan. T., 1896, by plaintiff, from judgment of C. P. Clearfield Co., Sept T., 1893, No. 386, on verdict for defendant. Assumpsit to recover water rent. At the trial it appeared that on August 10, 1889, the plaintiff entered into a contract with the defendant “ to furnish an adequate supply of pure, wholesome water to the Borough of DuBois and its inhabitants.

Appeal, No. 120, Jan. T., 1896, by plaintiff, from judgment of C. P. Huntingdon Co., May T., 1895, No. 31, refusing to take off nonsuit. Trespass for personal injuries to plaintiff’s daughter. Before Love, P. J., of the 49th judicial district, specially presiding. The facts appear by the opinion of the Supreme Court. The court below entered a compulsory nonsuit, which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 74, July T., 1895, by defendant, from judgment of C. P. Crawford Co., May T., 1894, No. 125, on verdict for plaintiff.</p> <p>Trespass to recover damages for death of plaintiff’s husband,</p> <p>At the trial it appeared that on September 27,1893, plaintiff’s husband was hilled at Hydetown while driving a wagon loaded with machinery from a car in the defendant company’s yard. The description of the yard is contained in the opinion of the Supreme Court.</p> <p>The plaintiff’s point and answer were among others as follows:</p> <p>1. It was the duty of the defendant to provide a reasonably safe passageway to the place of its delivering freight for the use of the patrons of the road, and a breach of this duty is negligence on the part of the defendant. Answer: This point is affirmed. You have already been instructed that the duty resting upon the defendant is to provide a reasonably safe way of approach to freight cars in the freight yard, where it is customary for the defendant to deliver freight to those who had freight consigned to them at this station; and for the use of those who were bringing freight there to be transported. This, as you have already been instructed is a road to be reasonably safe in view of the kind of business to be carried on over’ it. The defendant was not bound to build such a road as would be required in a city or place that is usually traveled by all sorts of vehicles by day and by night. [1]</p> <p>Defendant’s points and answers were among others as follows :</p> <p>2. There is no evidence that the defendant built or maintained the sidewalk on Diamond street where plaintiff’s husband lost his life, or came under any obligation to the public or to the plaintiff’s husband to keep and maintain the same in any other condition than it was kept and maintained; and lacking this evidence, plaintiff cannot recover, and the verdict must be for the defendant. Answer: This point is refused. One controversy in this case relates to the condition of the wagon way, and that might be in bad condition by reason of the presence of the sidewalk at the particular place, or by reason of the fact that the track on the side of the sidewalk next to the freight car was not maintained as would be required if ordinary care had been exercised.</p> <p>3. There is no evidence that the defendant receiver ever undertook or was placed under any obligation to keep or maintain the exit from the sidewalk on to his ground, or from his ground on to the sidewalk in any other condition than it was so maintained, and’ the defendant is not guilty of negligence so as to render him liable in damages in this case. Answer: This point is refused. We have submitted to you in the general charge, for your determination, the question whether the defendant was guilty of negligence under the circumstances. [3]</p> <p>Verdict and judgment for plaintiff for $4,000. Defendant appealed.</p> <p>Errors assigned among others were (1-3) above instructions, quoting them.</p>

<p>Negligence — Street railways — Infant—Electric car.</p> <p>A little girl three years and ten months of age was injured by an electric car while attempting to cross a street on which the car was running. The street was one hundred feet wide with a roadway sixty-four feet wide. The car tracks were twenty-five feet from the curb, and the street was at the time clear of obstructions. The plaintiff crossed the street diagonally from the curb to the tracks, in the direction in which the car was running. She was seen by the motorman when she started to cross, and when the car was one hundred feet from the point where she reached the tracks. The electric euirent had been turned off and the car was running slowly on a slightly declining grade. The testimony on behalf of the plaintiff tended to show that she had not changed her course or stopped from the time she left the curb until she was struck by the car, and that no effort was made by the motorman to stop the car until she was within a few feet of the tracks. The testimony for the defendant tendedlo show that the girl when within five or six feet of the tracks and eight or ten feet from the car, turned towards the sidewalk; that the motorman had brought the ear nearly to a full stop, and then, assuming that there was no danger of an accident, released the brakes, and as the ear moved forward the plaintiff suddenly turned and ran in front of it. The motorman testified that when the plaintiff started back he took it for granted that she was going back, and started his car. At the time of the accident plaintiff was running in front of her brother, a boy ten years of age, looking back over her shoulder towards him, and away from the direction in which the car was coming. Seld, that the question whether the motorman took too much for granted and acted imprudently was for the jury.</p>

<p>Negligence — Master and servant — Tools and material — Fellow servant.</p> <p>The duly of an employer is to provide a safe place in which his employees may work, suitable tools and machinery to use while at work, reasonably competent fellow servants with whom to work, and such instruction to the young and inexperienced as may be necessary to warn them against the peculiar dangers incident to the kind of work in which they are to be engaged. He must also furnish them with suitable materials for use; but he is not liable to them for injuries due to their ineompotency or carelessness, or to the negligence or malice of their coemployees.</p> <p>The duty of an employee is to use his senses in all that relates to his employment, to exercise attention and care in the selection of materials from the mass provided for the general use, and in the manner of their general use, and to provide with reasonable- diligence for the safety of himself and his coemployees in his management of his own share of the work to be done.</p> <p>Master and servant — Fellow servant — Rigger and workman.</p> <p>A rigger in a works of a manufacturer of machinery whose duty it is to keep and maintain a suitable supply of ropes from which the workmen may select suitable and safe ropes for hoisting various pieces of machinery, is a vice principal, and not a fellow servant of the workmen.</p> <p>Negligence — Fellow servants — Defective ropes.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, it appeared that the plaintiff was injured by the breaking of a defective rope used in hoisting a piece of machinery. The ropes were in charge of the rigger, whose duty it was to keep on hand a supply of ropes, some of which should be at all times suitable for use. It was not, however, the duty of the rigger to select the rope to be used on each occasion when a rope was wanted. The rope in use at the time of the accident had not been selected by the rigger, but by one of the plaintiff’s fellow workmen. Held, (1) that to entitle the plaintiff to recover he was bound to show that there was no better rope in the stock on hand from -which the workmen had a right to select, than the one which was actually selected; (2) that the failure of the rope selected was not due to the manner in which it was put upon the shaft, but to the insufficiency of the rope itself to answer the purposes for which it was offered to the workmen; (3) that the defendant was bound to show no more than that a sufficient number of ropes was provided for the use of the workmen, and that some of them, accessible at all times, were of sufficient strength for the support of a weight, such as was handled at the time the accident occurred; (4) that if a poor rope was used when a good one was within reach, it was negligence, and whether chargeable to the plaintiff or to a coemployee it relieved the defendant from all liability for the injury sustained.</p> <p>In an action by an employee against his employer to recover damages for personal injuries suffered by reason of a defective rope used in hoisting heavy machinery, it appeared that the workmen in the defendant’s establishment had a right to select ropes from certain stocks of rope supplied by the defendant. One of the workmen testified that he was allowed to take whatever ropes or slings he wanted. He was then asked “Was it the same with the other workmen as to their right to get slings as you did ? ” He replied, “ Yes, sir, they were,” and then added, “ the foreman told me so.” The whole answer was objected to, and the evidence was excluded. Held, to be error, inasmuch as the witness had a right to state what he knew of his own knowledge of the usage of the shop.</p>

<p>Contract — Evidence—Trust and trustees — Booh of accounts.</p> <p>A firm consisting of three partners was engaged in manufacturing pig iron. The furnace plant was owned by the firm; the ore was obtained from a bank owned by one of the partners. The firm became embarrassed, and to insure the continuous operation of the furnace it was agreed that Q., a son of one of the partners, should take the lease of the furnace and conduct the business in his name for the benefit of the firm. The stock on hand was transferred to him, and the ore tract was conveyed to him. An agreement was entered into by the members of the firm for the purpose of indemnifying Q. against any liabilities he might incur on their account. Shortly after this arrangement was entered into, one of the creditors of the firm becoming urgent, a deed of trust for the ore tract was executed to secure the debt. Q. joined in the deed of trust. Seven years after-wards the ore tract was sold to pay the debt. The business was conducted in Q.’s name for about three years. Seven years after the sale of the ore tract and one year after the death of the last survivor of the firm, Q. for the first time claimed that he had paid $8,000 for the ore tract, and brought suit against the estate of the partner who had owned it to recover this amount. At the trial his ledger was offered and received in evidence to prove the payment of the purchase money for the ore tract of the firm. The defendant claimed that the ore tract had been conveyed to Q., with the property of the firm, to enable the business to be conducted in Q.’s name for purpose of liquidation. Held, (1) that the admission of the ledger in evidence was error; (2) that the question in the case was whether Q. had paid for the ore tract, and whether it was his property; (3) that the agreement of indemnity against liabilities in connection with the evidence of the time of its preparation and delivery is strongly corroborative of the defendant’s position; (4) that it was error for the court to so instruct the jury as to leave upon their minds the impression thatit wasnecessary for the defendant in order to justify a verdict in his favor to establish a parol trust as to the ore tract by evidence that was precise, full, clear and satisfactory, and , that he had failed to furnish such evidence.</p>

<p>Appeal, No. 288, Jan. T„ 1896, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1891, No. 245, on verdict for defendant.</p> <p>Scire facias sur municipal lien. Before Gunnison, P. J.</p> <p>Tbe facts appear by tbe opinion of tbe Supreme Court.</p> <p>Plaintiff’s points, and answers were among others, as follows:</p> <p>2. That if tbe pavement in this case substantially complies witb tbe terms of tbe contract, and was so far perfected as to answer its intended purpose, and was taken possession of by tbe city, the plaintiff is entitled to recover. Answer: That would be so, and that point would have to be affirmed, if there had been a valid contract entered into in this case. The verdict would have to be for the plaintiff subject to whatever credits or deductions the jury might think was proper on account of any defect in its construction; but the fact that there was no valid contract entered into, no contract offered in evidence authorizing the construction of the pavement, as I have explained to you, for that reason this point must be refused. Not because of the manner in which the pavement itself was constructed, but by reason of the -fact that the contract was not so-far executed as to make it take effect as a contract. [1]</p> <p>3. That under all the evidence in the case the verdict should be for the plaintiff. Answer: That point is refused. [2] Defendant’s point and answer were as follows:</p> <p>That the alleged contract under which this pavement was laid, not having been certified by the city controller as required by law, was void, and the plaintiff is not entitled to recover, and their verdict must be for defendant. Answer: Affirmed. [3] Verdict and judgment for defendant. Plaintiff appealed.</p> <p>JSrrors assigned were (1-3) above instructions, quoting them.</p>

Appeal, No. 212, Jan. T., 1896, by defendants, from judgment of C. P. Cumberland Co., on verdict for plaintiff. Trespass for death of plaintiff’s husband. At the trial it appeared that on February 17, 1895, at about nine o’clock in the evening, Robert S. Boyd, plaintiff’s husband, a brakeman in the employ of the defendants, was killed at Leesburg station.

<p>Petition for mandamus. Miscellaneous Docket No. 1, No. 245.</p> <p>Petition for mandamus.</p> <p>The material portion of the pleadings appear by the opinion of the Supreme Court.</p>

<p>Judgment — Satisfaction of judgment — Payment—Act of March 14, 1876.</p> <p>Where a person has a judgment entered upon a bond and warrant of attorney, both regular on their face, the court of common pleas has no jurisdiction to make a summary order of satisfaction, except under the act of March 14, 1876, P. L. 7, which is confined to clear cases of actual payment.</p> <p>Want of consideration is not a defense to a bond executed and delivered. Failure of consideration, however, is a ground of defense, because it raises an equity for relief which will be enforced in Pennsylvania even by courts of law.</p> <p>A judgment entered upon a bond and warrant of attorney was paid, except as to two items. As to the first of these items it appeared that defendant sold to plaintiff a one eighth interest in certain oil lands, but before the deed was made he sold his whole interest in the land to another party at an advanced price. On plaintiff making complaint defendant promised to pay her one eighth of the advance he had realized, and this was liquidated by the parties at $1,250. As to tlie second item it appeared that defendant not having money enough to carry out a purchase of land agreed with plaintiff that if she would buy in his place, he would take the property off her hands, and treat the money advanced as a loan to him. The plaintiff bought the land and subsequently having demanded a fulfillment (if the promise, a computation was made of what plaintiff had paid for the land, and what she had received as royalty from it, and the difference as liquidated by the parties-was apart of the judgment confessed. The evidence showed that the bond was given after an adjustment of accounts, and that it was really an account stated. The court below ordered an entry of satisfaction upon the judgment on the ground that the two items above referred to were within the statute of frauds. Held, (1) that the statute of frauds had no application to the case; (2) that as the judgment was not on the original promises, but upon the written undertaking to pay, it was error for the court to direct a satisfaction of the judgment.</p>

Appeal, No. 25, Oct. T.,_1896, by defendant, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1896, No. 188,'on bill in equity. Mitchell, J., dissents. Bill in equity to compel defendant to put down oil wells. White, J., filed the following opinion: 1. The plaintiff-made a lease to the defendant, dated June 16, 1894, for a term of two jmars, for oil and gas purposes, of a triangular piece of ground, containing between seven and eight acres, in Penn township, this county.

<p>Banks and banking — Depositor—Promissory notes — Payment.</p> <p>While a bank which is a holder of a promissory note and has on deposit at the time of maturity to the credit of any party liable to it on the note a sum sufficient to pay it, and not previously appropriated by the depositor to be held for a different purpose, may apply the deposit to the payment of the note, yet it is not in general bound to do so. The cases where the right becomes a duty on the part of the bank rest on the special equity of the party, usually the indorser, to have the payment enforced against the depositor as the one primarily liable. In these cases the deposit must be sufficient at the time of maturity of the note, it must not have been previously appropriated to any other use, and it must be to the credit of the party primarily liable.</p> <p>A promissory note made by B. to the order of K. was indorsed by K. and by P. and W. for K.’s accommodation. K. procured the note to be discounted by a bank. The note was not paid at maturity and the bank brought suit against P. P. offered evidence to show that six days after the maturity of the note and at other times thereafter the bank had a balance to the credit of K. sufficiently large to pay the note. He also offered to prove that P. was an accommodation indorser and that the bank knew this fact. Held, that the evidence was incompetent and irrelevant.</p> <p>Promissory notes — Giving judgment — Discharge of indorser.</p> <p>The giving of a judgment or other security by the maker or a prior indorser does not discharge a subsequent indorser.</p> <p>Promissory notes — Indemnity—Evidence—Estoppel.</p> <p>A promissory note was made by B. for the accommodation of K., and payable to him. K. indorsed the note first and P. and W. indorsed it for K.’s accommodation. In a suit against P. upon the note by the bank which had discounted it P. offered to show that he had been indemnified against his liability on the note by a judgment against K„ and that he had satisfied that judgment by the procurement of the bank, whereby he not only lost his security for indemnity, but the bank advanced its own judgment against K. to the position of a prior lien. Held, that the offer was competent inasmuch as it was to prove facts which tended to raise an estoppel against the bank in favor of P.</p> <p>Promissory notes — Evidence.</p> <p>In an action upon a promissory note the defendant claimed that the plaintiff had procured him to satisfy a judgment which he held against a prior indorser as security against his liability on the note. He offered a certificate of lien against the prior indorser to be followed by proof as to the facts alleged as a defense. The offer was objected to as a whole and rejected as a whole. Held, to be error, inasmuch as the offer was a general one to prove relevant facts, and should have been admitted, and objections to the mode of proof considered thereafter.</p>

<p>Appeal, No. 344, Jan. T., 1896, by defendants, from judgment of C. P. McKean Co., Feb. T., 1894, No. 353, on verdict for plaintiff.</p> <p>Scire facias sur mortgage. Before Morrison, J.</p> <p>At the trial it appeared that on June 1, 1888, defendants purchased from plaintiff an interest in oil land. Defendants gave fifteen notes for $500 dollars each, payable at intervals of three months from the date of the purchase. Defendants paid the first nine notes, but defaulted on the tenth note, and when suit was brought under mortgage defended on the ground of false representations made by the plaintiff as to the producing capacity of the land.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>At the trial the following agreement was submitted:</p> <p>It is agreed that the statements hereto attached are correct statements from the books of the National Transit Company, United Pipe Line Division, of. all the oil run into the lines of said company from the property described in the writ of scire facias in the above case to the credit of R. J. Straight, between the 1st day of June, 1886, and the 1st day of June, 1888, and that the quantity so run to his credit is seven eighths of all the oil run from said property into said lines between the said dates, and of all the oil from the same property run to the credit of Noah Wilson between June 1,1888, and March 10,1894, and that the quantity so run is one third of seven eighths of the whole quantity run into said lines from said property between said dates.</p> <p>And it is further agreed, that these statements shall be received in evidence on the trial of the above cause with the same force and effect as if the books of said company were themselves produced in evidence and duly proved.</p> <p>In pursuance of this agreement, defendant’s counsel offered to prove, by the pipe line statements mentioned in the agreement the quantity of oil run to the credit of R. J. Straight between the 1st day of June, 1886, and the 1st day of June, 1888, and that the quantity so run to his credit was seven eighths of all the oil run from the property described in the mortgage in suit; also the quantity of oil run from the same property in the same pipe line company to the credit of Noah Wilson between June 1, 1888, and March 10,1894, and that the quantity so run was one third of seven eighths of the whole quantity run into said pipe line from said property between said dates; the purpose of the offer being to show that the alleged statements made by R. J. Straight, that the property in question was producing thirteen and three fourths barrels either on November 1, 1887, at the time of the shut down movement, or on June 1, 1888, at the time of the purchase of the property by the defendants, were not true, but that on the contrary the property in question at those times was producing a very much less quantity and that the production of Mr. Straight from the wells on the property in question was much less than thirteen and three fourths barrels, to wit: About eight and one half or nine barrels.</p> <p>Plaintiff’s counsel objected to the offer as incompetent and irrelevant, not being the best evidence, and there being no evidence of any representations as to the production of the wells on the part of the plaintiff either on June 1, 1888, or on November 1, 1887.</p> <p>The Court: Isn’t there some evidence that Mr. Straight said that at the time of the shut down they were doing thirteen and three fourths barrels. I think this offer now is incompetent as the case stands on the defendant’s own showing. We sustain the objection and exclude the offer as a whole. Exceptions sealed for the defendants. [1]</p> <p>The court directed a verdict for plaintiff. Defendants appealed.</p> <p>JSrrors assigned among others were, (1) rulings on evidence, quoting the bill of exceptions; (6) in directing a verdict for plaintiff.</p>

<p>Appeal, No. 165, Jan. T., 1896, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1893, No. 353, on verdict for plaintiff.</p> <p>Assumpsit on a policy of fire insurance. Before Ewing, J.</p> <p>The facts appear by the opinion of the Supreme Court, and by the charge of the court below, which was as follows :</p> <p>This is an action brought by Dr. J. H. Davidson against the Guardian Insurance Company for the purpose of recovering the amount of insurance taken out in that company by him, and represented by the two policies which have been given in evidence before you. The amount specified in each is $1,250.</p> <p>It seems that Dr. Davidson had some property in Perryopolis in this county — a large building there, partly frame and partly brick — upon which this insurance was placed, and from 1889 up until and including the year 1892 had taken that insurance from an agent at West Newton, Mr. Shaner, who has testified before you here. One of the policies was taken out and is dated in July, 1891, and the term covered thereby runs from noon of the 1st day of August of that year until noon of the 1st day of August, 1894. The other policy was taken out in July or August of 1892, and runs for a period of one year.</p> <p>In March, 1893, it seems that this property ivas destroyed by fire on the 28th day. It has been stated here by the witnesses that it was valued at from 15,000 to $6,000, even by the adjuster of the defendant company, sent there to see about this loss, while the total amount of insurance covered by both policies was but, $2,500, and the property was a complete loss. That is, there was no salvage ; everything in and about the property and embraced within the insurance was totally destroyed.</p> <p>Immediately after the fire, it is undisputed that Dr. Davidson wrote both of the agents through whom he obtained the insurance, and also to the company issuing the insurance, and that the day following the fire, the agent, Mr. Shaner, visited him there, made some inspection of the premises, had some conversation about the fire — about the amount of the loss and the amount of insurance — and went away, and subsequently made an arrangement, of which he notified Dr. Davidson, to have an adjuster of the company to come out and adjust the loss. The adjuster of the company notified Dr. Davidson what day he would be there, and met him and went over the premises; and it has not been disputed in the testimony here that the property was totally destroyed, nor has there been any testimony offered here to show that the value of that property was not greater than the total amount of insurance claimed in this case.</p> <p>[Now as to proof of loss : These policies of insurance, as well as perhaps all policies of similar insurance, provide that the insured, in case the property insured is destroyed in any of the manners provided for in the policy, shall make out what is called a “ Proof of Loss,” in conformity with the requirements of the company, and send it to the company within a specified time. This, it is claimed by the plaintiff in this case, was waived by the defendant company, when its officers, the agent and adjuster were present there and saw the condition of affairs, and consequently, it being, admittedly, a total loss, no proof of loss under that clause of the policy was necessary.</p> <p>In regard to the waiver, it seems that the arrangement about that that was made with the adjuster was that he was to prepare the proof of loss and send it to Mr. Davidson for his signature —and possibly his affidavit — as required by the policy, and their to be by him forwarded to the company. But that at the same time he stated that there was no dispute about the matter; that the loss was total, and that the value of the property, as I have stated, was in excess of the amount of insurance. So that the plaintiff testifies — and the witness who was there at the time the adjuster was present and heard part of the conversation so testifies — that the contract on the part of the adjuster, and his declaration at that time, was to the effect that the company would pay the insurance; that there was no question about the amount of the loss or anything of that kind.</p> <p>But further than that, being a case of total loss, our courts have decided in accordance with the decision of the Supreme Court which binds us, that in case of total loss, and no doubt about the amount of the insurance being less than that of the value of the property destroyed, a proof of loss is unnecessary, as being a vain tiling, the object of a proof of loss being to advise a company of the extent and value of the property destroyed, in order that if the property destroyed does not amount in value to the amount of the insurance, they will not be required to pay more than the total actual amount of the loss. So that, so far as that question is concerned, we instruct you that there is no difficulty here in regard to that. The act of the agent of the company— authorized officer — for the purpose of making adjustments of this kind, at the time, and the conduct of the company, as well as the undisputed value of the property being in excess of the amount of the insurance, would warrant a recovery so far as the question of the proof of loss is concerned, if you find that these undisputed facts are facts in the case, and the defense has offered no testimony to disprove them.] [5]</p> <p>[Now as to the one policy, the testimony, and the letters and "declarations of the officers of the company to the effect that no question was raised in regard to that policy being in effect at the time of the loss, and to being in its terms and conditions a policy in force at that time and valid to recover this insurance,— if you find from the testimony that there was a destruction of this property covered by that policy of insurance, to an amount, in value, in excess of the amount of insurance in that policy, and if the property was a total loss so as to obviate the necessity of the furnishing, by the insured, of a proof of loss required by the policy of the company, or if the conduct of the company was such as to waive the proof of loss, then the plaintiff would be entitled to recover the amount of that policy — the one year policy; and really, the serious question and contention in this case is in regard to the other policy — the one, which on its face, covers the term of three years.] [6]</p> <p>[Now that policy, as I have stated, was issued in July, 1891, and ran from the 1st day of August, 1891, to the 1st day of August, 1894, according to what was written on the face of the policy, and the date specified on its back. The plaintiff here says that that policy was issued to him by the agent of this company, Mr. Shaner, pursuant to a practice that he had of providing him with insurance from time to time as prior insurance would expire, and that he accepted it for what, on its face, it purported to be — a policy of insurance for three years — paying the premium demanded of him when the agent called on him for that purpose, subsequently, on that policy, and didn’t know that there was any question about the policy running for the term stated in it; accepted it in good faith as a policy for three years, and acted upon it as such; that prior to the time and up to the time of the death of Mr. Rankin, a prior insurance agent who did business for the defendant in this case, he says that he had carried upon this property an insurance of $2,500; that at the time of the death of Mr. Rankin he received policies, when the policies then in force expired, from two sources — one from the agent, Mr. Shaner, and the other from another agent named Campbell, and that this, I believe, was in 1889, and for a year or two at least held both policies, each, as I understood him for the same amount— $1,250 — on this property. But in the subsequent year he returned the Campbell policy and retained only the Shaner policy for $1,250, and that during the year 1890, and up until 1892 when this one-year policy in suit here was taken out, had but $1,250 insurance on this building. But he says that after the three year policy was issued, and during the first year, he made application to Mr. Shaner for additional insurance on this property — spoke to him, I believe he says once or twice, possibly twice, about it, and told him he wanted him to give him another policy of insurance for the same amount; that after having spoken to him first about it, not receiving it, when he saw him again he spoke to him a second time and reminded him that he hadn’t sent it; and that it -was not a policy taken out in renewal of this three year policy or any other policy, but as additional insurance upon this property, to create an insurance of $2,500 upon it, and that no question was ever raised to him, and he never heard anything about any difficulty about the policy, until after his loss had occurred. And upon that testimony, going to substantiate, as he alleges, his view of the case, he asks the jury to find that he is entitled to recover the insurance upon that policy as a valid policy in force at the time of the destruction of his property, for the amount specified in the policy.] [7]</p> <p>Now, on the part of the defendant an entirely different position is taken. They allege, first, that that policy shows upon its face some alteration or erasures, particularly in regard to the year when it would expire, and call attention to the appearance of the figures where 1894 is written upon the face or inside of the policy, and also where the same thing is written on the outside or back of the policy. They don’t say that that alteration was made by the plaintiff in this case, and indeed, Mr. Shaner, the agent, .doesn’t say that he didn’t make it if such an alteration was made, but says he has no recollection of it, and doesn’t know how it came there, or the circumstances under which it may have gotten in that condition, and won’t deny that the policy was in that shape when he sent it to Dr. Davidson.</p> <p>In reply to that, the plaintiff says that the same facts are apparent on the other policy; that it appears that there was an erasure in that policy, and that therefore there is nothing to be shown by that, and that Dr. Davidson testifies that the policy is in the same shape it was when he received it, particularly as to the date on the back; and further, that on the face of the policy, the term for which it is to run is written out in words as well as the dates given when it begins and when it expires, so that the three years written in words would indicate that if there was a change made in the figures it was done to conform to the period covered by the policy, and not done by any one in an effort to deceive or defraud the company by a change in the term for which it was to run. But, beyond that, they say the practice of the agent had been, about the time a policy would expire, to send a policy in renewal without any particular consultation with, or -word from the insured party, or application on his part; that he had been insuring Dr. Davidson from 1889 up to this period, and that each year had granted him but a policy for one year on that property, and that the policies were all for the same amount — $1,250—and the premium all the same amount — one and a quarter per cent on the insurance provided for, and that that amounted to' $15.63; and that in July, 1891, as his policy which he had had the previous year would expire on the 1st of August, he made out and sent him this policy, intending it to be a policy covering the same property, for the same period — one year — and for. the same amount, and for the same premium; that he did so make out this policy, which seems now to be for three years, bub that if he did it, it was a mistake on his part in making it for that period; that it was intended simply for one year as a renewal of the old policy, and that he didn’t know any better — knew nothing to the contrary until after this loss occurred and it was presented as one of the papers insuring the. property destroyed; that when he sent it, he wrote to him that he had sent it in renewal of the policy that was to expire; that he afterwards met him in his office and was paid the premium — $15.63—and receipted on the back of the policy for it. And he denies that then or at any other time Dr. Davidson ever made any application to him for additional insurance upon that property, and says, on the contrary, nothing was said by him about any additional insurance, and that in the following July when he supposed this policy was about to expire as the former policies had done in a period of one year, he made out and sent him this very policy as a renewal for this three year policy, to run from August, 1892, to August, 1893; that the amount of the premium paid him was but the one year amount, and that Dr. Davidson, they argue, did know that it was intended but as a policy for one year; that he only paid the same amount of premium on it that he had paid before for policies running one year and covering the same amount of insurance, and that he received it in accordance with the custom between them in regard to the insurance upon that property. At the time these premiums were paid, it seems that both of these policies were together in Dr. Davidson’s office and there before them, and neither of them seems to have said anything, or had their attention called to the fact that on the back of it, it was marked to expire in 1894 instead of 1892.</p> <p>Now, upon this testimony, the defendant asks you to find that that policy was really but for one year; that it was done that way in accordance with instructions between Dr. Davidson and the insurance agent through whom he did' business ; that that has been their custom since 1889, that he received it that way and paid the premium demanded for but one year on that amount of insurance on that property, and that he noticed the dates on it and never said anything about it and never made any request to the company for any additional insurance, and accepted the subsequent policy for the period of one year as a renewal of that policy, and that, therefore, he has no right to claim here before you that that policy covered a longer period of insurance than one year, and, therefore, had expired at the time of the loss, and he is not entitled to recover any of the insurance represented thereby in this action. Now that is a fact that you will have to determine from the testimony. [If the jury find that that is a mistake there, that there had been — and it is not denied by Mr. Davidson — no application for insurance for any longer period than the one year which he had been receiving — that this was a mistake upon the part of the agent of the company, known as such upon the part of Dr. Davidson, or that as an ordinarily careful, prudent business man he should have known it from the circumstances attending the business dealings he had had with this party — the custom in regard to the renewal of the insurance, the amount of the insurance, the amount of premium he had paid covering this policy, and all that, and he accepted it without saying a word to them, noticing that it covered a period of three years, he would not be entitled to recover on this policy. Because, if he noticed that that was a mistake, it was his duty to advise the company of that fact and have it changed, either by changing it to one year for which it was intended, or by paying for the full term of three years, whatever the premium for that period would be.] [8] [On the other hand, if it was actually a mistake on the part of the agent, and Dr. Davidson didn’t know it was a mistake and accepted it in good faith as a policy for three years, and paid the premium demanded of him, and should not, as an ordinarily careful, prudent business man have known better in regard to it, and would suffer loss in consequence of the seeking to have additional insurance placed on his property, and getting, as he claimed here, that policy for one year in addition, and the loss occurred without any neglect on his part, why he would be entitled to recover. That is, where it is the mistake of the company and not of the party, the company will have to stand the loss. If it is a mistake, and Dr. Davidson knew that, why he has no right to claim here at all. Or, if it was a mistake and he didn’t know about it, but should have known about it as an ordinarily prudent and careful man, he has no right to recover. But, if it was a mistake and he didn’t know it and should not have known it, he wouldn’t be bound by it, but the party who made the mistake in the first instance, the party who is the culpable one of the two, would have to bear the brunt of it, and that is the company.] [9]</p> <p>Defendant’s points with the answers were as follows:</p> <p>1. The defendant requests the court to charge the jury that under all the evidence the plaintiff is not entitled to recover. Answer: Refused. [1]</p> <p>2. If the jury find from the testimony that the premium of 115.63 paid by the plaintiff to the defendant company for policy 1852295, only covered one year from the date thereof, there can be no recovery on said policy. Answer: Refused. [2]</p> <p>3. If the jury find from the testimony that the plaintiff knew, or should by proper care have known, that the policy No. 1852295 was intended to cover but one year, then there can be no recovery on said policy. Answer: If the jury find from all the evidence in the case that the plaintiff knew, or as an ordinarily careful and prudent business man should have known, that the term specified in said policy was a mistake, and that it was intended for but the term of one year, and that lie was not misled by the term mentioned in said policy to his injury without any fault on his part, then there can be no recovery on said policy. [8]</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Errors assigned were (1-3, 5-9) above instructions, quoting them.</p>

Appeal, No. 5, Jan. T., 1896, by plaintiff, from order of C. P. Fayette Co., March Term, 1894, No. 27, overruling exception to auditor’s report. Exceptions to auditor’s report. The auditor D. M. Hertzog, Esq., reported: 1.

Appeal, No. 57, July T., 1895, by plaintiffs, from judgment of C. P. Bedford Co., Nov. T., 1898, No. 221, on verdict for defendants. Ejectment for two sevenths of a tract of land in West Providence township. Before Gobdon, P. J., of the 46th judicial district, specially presiding.

<p>Contract — Railroads—Boroughs—Bridges.</p> <p>Where a railroad company agrees with a borough to build an overhead bridge as a part of a public highway, the title of the bridge vests in the borough, although in the contract it was alternative to the borough that it should in consideration of the erection of the bridge cause a certain grade crossing to be vacated, or, failing to do so, should pay the railroad the cost of the bridge.</p> <p>Streets — Dedication—Evidence.</p> <p>On a bill in equity by a railroad company to restrain a street railway company from laying its tracks on a street where the railroad company had laid its tracks, the plaintiff claimed that the street was not a public highway. The evidence showed that the street had been notoriously and publicly used by the public for five or six years; that the owners in fee of the land had graded the street and agreed to dedicate it to the public; that the railroad company had recognized it as a street, and that the borough had spent hvrge sums of money upon it. Eeld, that the evidence was sufficient to sustain a finding of the court that the street was a public highway.</p> <p>Street railways — Location—Act of May 14, 1889.</p> <p>It seems that street railway companies incorporated under the act of May 14, 1889, P. L. 211, may build their roads elsewhere than upon streets properly and strictly so called.</p> <p>Street railways — Additional servitude.</p> <p>The laying of railway tracks on a suburban road is an additional servitude which cannot be imposed upon the owner of the fee against his will by the mere consent of the township authorities.</p> <p>Street railways — Consent of all local municipalities.</p> <p>The franchise of a street railway passing through several localities is an entirety, and the necessary local or municipal consent for the whole route must be obtained before it has aright to build any part.</p> <p>Street railways — Railroad companies — Equity—Injunction—Special injuries.</p> <p>Where the charter of a street railway company incorporated under the act of May 14, 1889, covers the route upon which the railway is built, and the company has secured the consent of the local authorities, of all the owners of property along the roads occupied, and of those through whose property its line passes, a railroad company cannot question the prima facie right of the street railway company to operate its road, unless it shows some interest in, or damage to, itself different from that of the general public.</p> <p>The eighteenth section of the act of May 14, 1889, gives in express terms the right to street railway companies to cross railroads at grade, and a fortiori the right to cross overhead.</p> <p>Railroad companies — Abutting landowner.</p> <p>In respect to a mere crossing, a railroad company is not an abutting landowner to a passenger railway.</p> <p>Street railway's — Location—Divergence from route — Act of May 14,1889.</p> <p>Under the act of May 14, 1889, a street railway company may diverge from its chartered route for a short distance to avoid grade-crossings, or for any other reason amounting to necessity or great ¡Dublic convenience. The occasion for such divergence and its extent are questions of location, and the decision of them primarily is within the discretion of the railway company. If the variance from the charter route is greater than is necessary, or the charter route itself is open to objection, the commonwealth alone can be heard to make it in the interest of. the general public.</p> <p>Railroads — Street railways — Equity—Act of June 19, 1871.</p> <p>The fact that a railroad company is injured by a diminution of its passenger traffic by the construction of a street railway company does not give the railroad company any right to equitable relief against the passenger railway company under the act of June 19, 1871, P. L. 1861. The act applies to direct interference with rights, not consequential injury to interests, and the inquiry under it is limited in suits by private parties to the question of the charter-right to do the act complained of.</p> <p>Railroads — Street railways — Overhead bridge.</p> <p>Where a street railway company lays its tracks upon a bridge belonging to a borough and crossing a railroad, the railroad company has a right to enjoin the street railway company from operating its line until the bridge is strengthened sufficiently to safely bear the weight of street cars.</p>

<p>Appeal, No. 180, July T., 1895, by defendant, from judgment of C. P. Elk Co., May T., 1895, No. 77, on verdict for plaintiff.</p> <p>Assumpsit on a policy of fire insurance. Before Mayer, P. J.</p> <p>The material provisions of the policy sued on are quoted in defendant’s points.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The defendant’s points and answers were as follows :</p> <p>1. The assured not having furnished the statement or proofs of loss to the company defendant, nor rendered a particular statement of the same, signed and sworn to by him, within sixty days from the date of the fire, as required by the said policy, he cannot recover, and the verdict must be in favor of the defendant. Answer: As the loss in this case was a total destruction of the building, we are of opinion the notice given to the company was sufficient. [1]</p> <p>2. The policy in suit having been made and accepted on the following express stipulation and condition, forming a part of the consideration thereof, to wit: “If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, .... and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property; anda copy of all the descriptions and schedules in all policies; any changes in the title, use, occnpation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of fire; and shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged: ” And it being further expressly stipulated by said policy that “ the loss shall not become payable until sixty days after the notice .... and satisfactory proof of the loss herein required have been received by this company.” And the undisputed evidence showing that the plaintiff rendered no such statement to the defendant company within sixty days after the fire, he being expressly notified and required so to do by the company, the plaintiff has no right or cause of action under said policy and cannot recover. Answer: Refused. [2]</p> <p>3. The policy sued on having been made and accepted on the following express stipulation and condition, forming a part of the consideration thereof, to wit: “If fire occur, the assured shall give immediate notice of any loss thereby in writing to this company .... and within sixty days after the fire .... shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify; ” and such certificate, by the express provisions of the policy, being made a condition precedent to liability for or payment of any loss under said policy; and the undisputed evidence showing that the plaintiff, although required, never furnished any magistrate’s certificate as aforesaid, the plaintiff has no right or cause of action under said policy and cannot recover. Answer: Refused. [3]</p> <p>4. The policy sued on having been made and accepted on the following express stipulation and condition, forming a part of the consideration thereof, to wit: “ This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be estimated according to such actual cash value, etc.; said ascertainment or estimate shall be made by the assured and this company, or, if they differ, then by appraisers as hereinafter provided; ” and, “ in the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraisers respectively selected by them and shall bear equally the expenses of the appraisal and umpire : ” Such specific method, provided by the policy for determining the amount of loss, is exclusive; and the policy further providing that the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proofs of loss have been received by this company, including an award by appraisers when appraisal has been required; and further providing that no suit or action upon this policy shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements; and the undisputed evidence showing that the amount of loss under said policy has never been ascertained and determined, either by agreement of the parties, nor by appraisers as provided by said policy, the plaintiff by the express terms of said policy has no right or cause of action in this case and cannot recover. Ansiver: Refused. [4]</p> <p>5. The policy providing for the payment by the company of only such amount of loss as shall be ascertained and determined by agreement of the parties, or, in event of their disagreement, then by an appraisal; and, further, that said loss shall not become payable and no suit or action on said policy shall be sustainable until, inter alia, the amount of said loss has been ascertained and determined as above; such ascertainment of loss by agreement or appraisal became and was a condition precedent to payment or suit; and the proof showing no such ascertainment of amount of loss either by agreement or appraisement, no right of action has accrued to the plaintiff under said policy, and he cannot recover. Answer: Refused. [5]</p> <p>6. The policy providing that the company shall pay only such amount of loss as shall be ascertained and determined either by agreement of the parties, or, in event of their disagreement, then by an appraisal had in the manner provided by the policy; and the policy further providing that the loss shall not be due or payable until sixty days after, inter alia, such ascertainment by agreement or appraisal; this action cannot be sustained by plaintiff, it being premature — he having no right of action at the time suit was brought, sixty days not having elapsed after ascertainment of amount of loss. Answer: Refused.- [6]</p> <p>The court charged as follows:</p> <p>We will instruct the jury to find a verdict for the plaintiff, and seal a bill for the defendant. Take the verdict. [10]</p> <p>Verdict and judgment for plaintiff for $614.40. Defendant appealed.</p> <p>Errors assigned, among others, were (1-6, 10) above instructions, quoting them.</p>

<p>Municipalities — Controllers—Discretion—Review by courts.</p> <p>The duties of a controller of a city are partly ministerial and partly discretionary, Com. v. George, 148 Pa. 463; and while the courts will not review the discretion of the controller exercised in a proper case, yet he is not above the law, and his discretion is not arbitrary, but legal. When therefore he is called upon by the courts, the facts must be made to appear sufficiently to show that they bring the case within his discretion, and that his discretion was exercised in obedience to law. On this subject the courts are the final authority, and their jurisdiction cannot be ousted by simply putting forth the assertion of discretionary power without showing that the matter was properly within such discretion.</p> <p>Municipalities — Controllers—Mandamus—Demurrer—Contract.</p> <p>On a mandamus against a controller of a city to compel him to sign a warrant for the payment of money under a municipal contract, an answer was filed by the controller denying that any contract had been entered into between the city and the relator as required by article 14 of the act of June 1, 1885. Held, (1) that, if this meant that the contract '.hough entered into was not in accordance with the requirements of artie ie 14, it should have gone a step further and stated specifically the defects relied upon; (2) that this reason was demurrable for want of precision.</p> <p>On a mandamus to compel a controller of a city of the first class to sign a warrant for the payment of money for dictionaries, the controller answered that he found after investigation that the binding of the dictionaries was so unsuitable for a book of its size as to render it unserviceable for the public use. Held, (1) that this reason was entirely outside of the province of the controller; (2) that the discretionary powers of the controller did not extend to the revision of lawful contracts made by other departments within their proper sphere.</p> <p>On a mandamus to compel a controller of a city of the first class to sign a warrant for the payment of money for dictionaries contracted for by the board of education, the controller answered that the relator was allowing a very large commission to the agent who secured the contract, and that he was informed by some of the members of the board of education that if they had known that fact they would not have agreed to purchase the books. Held, that the answer was insufficient.</p> <p>Mandamus — Act of June 8, 1893.</p> <p>The act of June 8, 1893, P. L. 345, was not meant nor is it to be construed to substitute mandamus for the writ of summons and the ordinary proceedings and trial.</p> <p>Practice, G. P.- — Mandamus—Controllers.</p> <p>The court of common pleas will entertain jurisdiction over a petition for a mandamus to compel a city controller to sign a warrant for the payment of money under a municipal contract where the department which made the contract does not object to the payment, and the only contest comes from the controller whose grounds of objection as set out in his answer show that none of them was founded on matters within his discretion.</p>

<p>Appeal, No. 154, July T., 1895, by defendants, from judgment of C. P. Lancaster Co., June T., 1880, No. 24, on verdict for plaintiff.</p> <p>Trespass for interfering with, plaintiff’s leasehold.</p> <p>The facts appear by the charge of the court below, which was as follows:</p> <p>This is a suit in trespass brought by Martin D. Irwin, the plaintiff, who, it appears, was the tenant of a certain fifty acre farm belonging to the Seventh Day Baptists of Ephrata, located in Ephrata township, in this county.</p> <p>It appears that on the 25th day of February, 1878, Adam F. Madlem and J. J. B. Zerfass, who were the trustees of this incorporation or association, leased these premises in writing to Martin D. Irwin, the plaintiff, for the term of one year, from April 1,1878, to April 1,1879, upon the following terms, among others: “ The said Martin Irwin, Jr., is to farm upon the usual terms of one-half of all grain that said farm produces, and shall furnish one-half of all seeds necessary, and put out in good season and proper condition, and deliver Society’s grain half to mill.” ....</p> <p>Mr. Irwin farmed this farm for one year; at the end of the year he held over, or leased the farm for another year, which brings us to April 1, 1880. On December 17,1879’, the same trustees, Adam F. Madlem and J. J. R. Zerfass, entered upon a contract for a continuation of the lease, which was signed by them as well as by Irwin. The following is the continuation of the lease:</p> <p>“Ephrata, Dec. 17,1879.</p> <p>“ The parties to the within agreement have agreed to continue the lease for one year longer on the same terms. Irwin is to have one acre of tobacco in exchange corn.”</p> <p>[Now it is undisputed that on May 10, 1880, following, the defendant in this suit, Lorenz Nolde, entered upon one of the fields — I think it was the five acre field — and dispossessed Mr. Irwin from that field. On May 24th he was dispossessed by the same party from the field containing seven acres. The first field had been planted in com when he was dispossessed; part of the seven acres had been planted, and part of it was not planted here. The seven acre field had been plowed, a part of it, or nearly all of it — say one half of it — and one acre manured. That was the situation at the time Nolde entered upon these premises and dispossessed Irwin of the two fields he had leased from the Seventh Day Baptists of Ephrata.] [1]</p> <p>It appears that this corn on the five acre field was raised to maturity, and was harvested and kept by Mr. Nolde, who represented that he was acting as the legal trustee of this church or association. It appears also further that the seven acre field was planted with com, and was raised, harvested and gathered in by Nolde, as the trustee of this church.</p> <p>Now it becomes my duty to instruct you as a matter of law, if Mr. Nolde was a trespasser at the times he entered upon these premises, on the 10th day of May and on the 24th day of May, 1880, and continued on holding possession of the premises, and raising and gathering the crops, he would be a trespasser continuously up to the time the crops were harvested.</p> <p>[We shall also say to you as a matter of law, that the plaintiff, Irwin, was the tenant for the year 1880 under a writing given by A. F. Madlem and J. J. R. Zerfass, as trustees of this association, and, therefore, neither Mr. Nolde nor anybody else had a right to dispossess him. He had possession of the premises under this written lease from the association.] [2]</p> <p>[We shall also say to you and hold here that, if he was dispossessed, — and there seems to be no question as to the dispossession as to these two fields, — he would be entitled to the actual damages sustained by him by reason of such dispossession, and that the measure of damages would be the value of the crops raised upon those two fields during the time of the dispossession, that is, from the time they were planted — no matter by whom they were planted — up to the time they were harvested. [3]</p> <p>[We shall also say to you as a matter of law, that as to the one acre of tobacco, which he was entitled to have, and which was plowed and manured and ready to be planted, that the tenant would be entitled to the rental value of that acre, the value for that year, whatever that has been shown to have been worth. He would not be entitled to any speculative damages for it, but he would be entitled to the rental value of that one acre, whatever that would be.] [4]</p> <p>[It is not necessary for me to say anything more in my general charge to you with reference to any other matters, except with reference to the testimony that has been offered here to show that there had been a settlement of this suit by the parties. There has been some testimony offered here, produced before you, from which the counsel for the defendants would have you infer that there was a settlement of this case. You heard what that conversation was between Mr. Nolde and Mr. Irwin. It seems at the time the conversation was had the criminal court was in session here; that two cases had been returned by the grand jury, one for assault and battery and one for forcible entry and detainer. They were criminal suits, and had nothing whatever to do with this civil suit. The parties had met, it seems, with the counsel. Samuel II. Reynolds was one of the counsel in this case at that time, and the witnesses were also present at that criminal trial and heard a conversation between Mr. Nolde and Mr. Irwin, in which one of them said: “ All these cases are now settled, and you can go home.” Now did Mr. Nolde and Mr. Irwin mean that the settlement included this civil case ? He did not say so. “ All these cases are now settled, and you can go home.” Could you put any other construction upon it than that he meant all these criminal cases, because they only were under consideration at that time ? You can infer that he meant cases outside of those cases that were then going on. It is my duty to leave this matter to you as a question of fact; but I have a right to give you my opinion. . My opinion is, that it had nothing to do with this civil case. But you can have a different opinion upon it, if you think so. I shall leave it as a question of fact for you. If you think at the time these criminal cases were being tried and the witnesses were sent home, that the expression made there by Mr. Nolde in the hearing of Mr. 'Irwin, “ Now, all these cases are .settled,” and Mr. Irwin said, “ Yes, but not to my liking,” was meant by both Irwin and Nolde to apply to his case, there, can be no recovery here; but if it applied to the criminal cases only, it had nothing to do with this case, if it did not refer to this case. If it did refer to this case as a settlement, it is singular that the learned counsel did not go to the prothonotary’s office, pay the costs and release it. That was the usual way of doing the business.</p> <p>It is true as a general proposition that where a party becomes a trespasser upon the land of a tenant, he will be liable for the whole damage sustained, that is, for all the crops taken, the crops that would be turned over to the landlord as well as to the tenant. But this case is different from ordinary cases. This man Nolde claimed himself to be a trustee, and there was a dispute about the trusteeship for a number of years, and, therefore, Mr. Nolde may have thought he was doing right when he entered upon this field and ousted this tenant; and, therefore, in this case it would not be right for you to give more damages tbq.u one half of the value of the crops. It is presumed that the crops that were taken off by Mr. Nolde were turned over to the society by him as a de facto trustee, and, therefore, if you find Mr. Nolde was a trespasser, then you would be warranted in giving the plaintiff a verdict for the full amount of one half of the value of the crops, and you have the right to take into consideration and add the interest on that amount from the time the crops were harvested, as part of the damages; but you must put that in your verdict as a whole, as a lump sum, and say, we find for the plaintiff so much — whatever it would be.] [5]</p> <p>The learned counsel for the plaintiff claim that he would be entitled to exemplary damages in this case, or vindictive or punitive damages; that is, damages to punish the defendants for going on the premises and throwing the plaintiff out. That would be the rule where the person doing it is a stranger; but there is a claim here that Nolde thought he was a trustee, as was shown by the litigation that was carried on and continued here for a number of years. Therefore, we will say to you you have no right to give any vindictive, exemplary or punitive damages in this case, that you are confined to the actual loss, which is the value of the crops that were taken away, thus preventing him from harvesting and selling them.</p> <p>Defendant’s points and answers were as follows:</p> <p>2. The jury must confine their inquiry to actual losses at the time the alleged trespasses took place, to wit: May 10 and 24, 1880. They cannot take into account the condition or value of the crop raised by Moses Miller in the fall of 1880 when it was matured. Answer: That point we refuse; because if a trespasser comes upon your land and raises any crop upon it, you are entitled to the benefit of that crop. That is common sense. Whatever that crop is, you are entitled to it. If Mr. Nolde was a trespasser, and did take possession of this five acre field, and planted, raised and cultivated corn in it, and planted corn in the other, the seven acre field, and harvested it, Mr. Irwin is entitled to it. [13]</p> <p>4. The way to ascertain the damages, provided the plaintiff is entitled to any, so far as the crop of corn on the five acre field is concerned, is the value of the crop at the time the alleged trespass took place; that is, what the crop of corn would have sold for at a fair public sale May 10 or May 24,1880. Answer: That point we refuse; because, if the defendant was a trespasser, and held on to the premises, harvested and gathered the crops, the tenant would be entitled to their value as damages during that time. [14]</p> <p>5. The jury is further instructed that the way to ascertain the damages, if ally, touching the seven acre field, is the rental value for the year, to wit, from May 10 or May 24,1880, or when the alleged trespass took place, including a fair compensation for so much of the field as he had plowed. Answer: That point we refuse. We have already told you what the proper measure of damages would be. [15]</p> <p>6. If the plaintiff, Irwin, failed to carry out any of the material conditions of the lease, to which he had agreed by the terms of the letting, the defendant is not only entitled to a fair deduction for what he had suffered by reason thereof, but Nolde, as de facto trustee, acting for himself and his associates, had the right to consider the lease at an end and dispossess the plaintiff, using no more force than what was required to accomplish that end. Ansioer: That point we refuse. [16]</p> <p>9. If Nolde and his cotrustees, Madlem and Spangler, were the de facto trustees of the “ Seventh Day Baptists of Ephrata,” they had the right to the letting of the farm in question, and as such, were not bound to recognize the alleged reletting by Zerfass and A. F. Madlem, and if the de facto trustees served a notice to quit on Irwin, and Irwin held over, then he became a tenant at will or sufferance, and the de facto trustees, Nolde, Spangler and William Madlem, could eject Irwin, using no more service than was necessary for that purpose. Answer: That point is refused, because the society had continued this lease for one year longer in writing, and Irwin was holding tins property as the tenant for that year. [17]</p> <p>Yerdict and judgment for plaintiff for $525. Defendants appealed.</p> <p>Errors assigned among others were (1-5, 13-17) above instructions, quoting them.</p>

Appeal, No. 25, Jan. T., 1896, by plaintiff, from judgment of C. P., Lancaster Co., Dec. T., 1892, No. 84, on verdict for defendant. Trespass for alleged wrongful eviction.

Appeal, No. 272, Jan. T., 1896, by plamtiff, from judgment of C. P. Lancaster Co., Sept. T., 1893, No. 19, ,on verdict for defendants. Assumpsit to recover money alleged to be due on stock subscription.

<p>[Marked to be reported.]</p> <p>Assignment — Equitable assignment — Notice—Prothonotary—-Sheriff.</p> <p>An assignment by a prothonotary of the fees of his office is not binding upon the sheriff who, in ignorance of the assignment and by the direction of the prothonotary, has paid over fees belonging to the prothonotary to other parties.</p> <p>A paper which purports to be an agreement on the part of J. that his income as prothonotary should be paid over to A. and that he, J., would keep a strict account of the daily income of the .office and would deposit the same in bank to his own credit as prothonotary and pay it over to A. “ from time to time as he may require it,” does not bear the character of an absolute assignment of the income, at least so far as third persons are concerned. The literal meaning of this paper is that J. should himself collect the income, deposit it in bank to his own credit and then pay it over himself to A.</p>

<p>Appeal, No. 252, Jan. T., 1896, by defendant, from judgment of C. P. Lancaster Co., Sept. T., 1892, No. 73, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Brubaker, J.</p> <p>At the trial it appeared that on July 4, 1892, plaintiff was injured by the breaking of a wire cable used by the defendant company on a steep incline.</p> <p>The facts of the case are stated in the opinion of the Supreme Court.</p> <p>At the trial Henry Hall, a witness for the defendant, testified:</p> <p>Q. You were a good man and skillful ? A. I was considered so. Q. Did you do your work properly?</p> <p>Objected to by the plaintiff’s counsel. Objection sustained. Bill sealed. [1]</p> <p>Edwin Westenberger, a witness for plaintiff, testified:</p> <p>Q. Do you know A. E. Rohrer? A. Yes, sir. Q. Was he or not at that time a director of tins company? A. Yes, sir. Q. Did you or not communicate to him the fact that there were worn places in the cable ?</p> <p>Objected to by the defendant’s counsel. Objection overruled. Bill sealed.</p> <p>A. Yes, sir. [2]</p> <p>Cross-examined, he testified:</p> <p>Q. Did you see it done ? A. No, sir. Q. Were you there when it was done? A. No, sir. Q. Was it well done?</p> <p>Objected to by the plaintiff’s counsel. Objection sustained. Bill sealed. [3]</p> <p>Allen A. Herr, called for the plaintiff, was asked whether in company with Michael Reilly, a director of this road, he went to Sutton’s place to negotiate for the purchase of a portion of it, and while there in conversation Michael Reilly admitted that; this lull was dangerous, and that the operation of cars on it in the manner they were operated was dangerous.</p> <p>Objected to by the defendant’s counsel. Objection overruled. Bill sealed. [4]</p> <p>Plaintiff was asked this question:</p> <p>Q. Tins business that you were engaged in was a dangerous business, wasn’t it ?</p> <p>Objected to by the plaintiff’s counsel. Objection sustained. Bill sealed. [5]</p> <p>The court charged in part as follows :</p> <p>[Corporations or persons undertaking to manage works adjoining a highway, as in this case, it can scarcely be doubted, are bound not to interfere with the safety of persons using the highway; and in repairing or erecting premises, or in using or running machinery, where it is lawful to encroach on the highway, as it was in this case, during the progress of the work or use, such encroachment must be made with ordinary care, and any danger that might happen must be guarded against.] [7]</p> <p>[The plaintiff claims that the weakness of the cable, by reason of its worn condition and its repair or splicing together on the morning of the accident, or the weakness of the loop made by the defendant or its agents, was the cause of its tearing apart and striking and injuring the plaintiff, which condition was known or ought to have been seen by the company, and that the accident was liable to flow from it. If this be true, if it has been proved to your satisfaction from the evidence submitted to you in this case, then your verdict should be in favor of the plaintiff.] [8]</p> <p>There is no claim here that there was any gross negligence on the part of the company, because no one connected with this company — the directors are all our citizens —would have deliberately allowed any defect in this cable to occur. [And therefore there can be no gross negligence. There may be, however, a breach of duty on their part, and if you find there was such a breach of duty, then they are liable to the plaintiff in this case.] [9] As I said before, the company is bound to guard only against every source of danger that they can foresee. They are not bound to do that which is impossible. They are not bound to see that which is invisible, but they are bound to take every precaution which is necessary for the running of their street railway in order to avoid accidents.</p> <p>It is therefore, gentlemen, entirely for you to decide under all the evidence submitted to you in this case whether there has been a breach of duty on the part of the company. If you believe from the evidence that the servants of the company performed their duty on this occasion, as might be reasonably required of them under the circumstances, that is, without any greater want of care on the part of the defendant or its servants than was reasonably to be expected from persons of ordinary care and prudence in the situation in which the defendant found itself at the time of the accident, then the defendant would be entitled to your verdict.</p> <p>[If, on the contrary, you should believe from the evidence that the street railway company defendant did not guard against the source of danger, that the danger could have been foreseen, whatever was the cause of the accident, in the use of this cable device, as explained to you, then the plaintiff is entitled to your verdict, if his own negligence did not contribute in any manner whatever or in the slightest degree to the injury.] [10] If his own negligence contributed in the slightest degree to the injury, he is not entitled to a verdict in this case. This is the first question for you to decide, whether the plaintiff has been guilty of contributory negligence, as I have explained to you in this case. If you find that he has been guilty of negligence, then you need go no farther. If you find that the defendant has been guilty of a breach of duty (such a breach of duty as I have explained to you constitutes negligence) then the question of damages comes before you for your consideration. Upon that point the law is that the plaintiff can only recover such damages as naturally flow from and are the immediate result of the act complained of. [Much must be left to your sound discretion when you come to pass upon the evidence and consider what amount of damages the plaintiff ought to have, in case you find the defendant guilty of negligence. Our Supreme Court have said: “ Any rule that judicial research and experience may suggest must necessarily be more or less vague and leave much to the sound discretion of the jury.” ] [11]</p> <p>Defendant’s point and answer were as follows:</p> <p>5. If the jury believe from the evidence that the defendant had no cause or reason to expect such an injury as that which occurred to the plaintiff on July 4, 1892, and as the use of the cable and road was lawful, the verdict must be for the defendant. Answer: That point we affirm. The question of negligence of the defendant or its employees, however, is for you to ascertain from all the evidence under the instructions I have already given you, and if you find the accident was not caused by the negligence of the defendant or its employees, then you should find for the defendant. [6]</p> <p>Verdict and judgment for plaintiff for #15,541. Defendant appealed.</p> <p>Errors assigned were, (1-5) rulings on evidence, quoting the bills of exceptions; (6-11) above instructions, quoting them.</p>

Appeal, No. 380, Jan. T., 1896, by defendant, from judgment of C. P. York Co., Aug. T., 1882, No. 67, on verdict for plaintiff. Assumpsit to recover damages for an alleged breach of contract on a policy of fire insurance. Before Brubaker, J., of the 2d judicial district, specially presiding.

Appeal, No. 373, Jan. T., 1896, by plaintiff, from judgment of C. P. York Co., Aug. T., 1895, No. 50, for defendant non obstante veredicto. Assumpsit on a policy of fire insurance. Before McPherson, J., of the 12th judicial district specially presiding. The facts appear by the opinion of the Supreme Court.