Volume 177 — Pennsylvania State Reports

<p>Appeal, No. 170, Jan. T., 1896, by defendant, from judgment of C. P. Mifflin Co., Nov. T., 1894, No. 129, on verdict for plaintiff.</p> <p>Sterrett, C. J., dissents.</p> <p>Trespass for personal injuries. Before Williamson, P. J.</p> <p>At the trial it appeared that plaintiff was injured on September 20, 1898, while a passenger on the first section of the Pacific Express on the Pennsylvania railroad in traveling from Harrisburg to his home at Lewistown. ^</p> <p>When the plaintiff was on the stand the following offer was made:</p> <p>Mr. Woods: We offer to prove by the witness and by other testimony that Dr. Morton was sent there by the Penna. R. R. Company to make an examination of Mr. Goodhart; that he was brought there by Dr. Mahon, their physician, in pursuance of their request for Mr. Goodhart to go to Philadelphia to submit to this examination. We propose to prove just what took place in the room at the time the examination was made and the results of it; just what Dr. Morton did. This for the purpose of proving the extent of the injury to the plaintiff, also to show his desire to comply with the requests of the defendant in order to get such relief as they and their experts could give him.</p> <p>Mr. Elder: It is objected that what took place at this examination was not part of the res gestee, that the results of the examination can be proved by the physicians, and that it is not alleged by the plaintiff that as a result of that examination his injuries were rendered more severe. What occurred at that examination at that time is not part of the happening of the accident, throws no light on how the injuries were incurred; what occurred at that examination can throw no light upon the extent of the injuries; it is not evidence, as counsel offer to show the extent of the injuries; it is evidence of outside matters which have no bearing on this case and the points at issue in it are irrelevant, immaterial and incompetent.</p> <p>By the Court: Mr. Goodhart, if he knows it, is permitted to show that Dr. Morton came there as the physician of the def ndant; but as to the result of the examination and what was said and done there there may be a time when that evidence can be offered, but it must be offered after the examination of Dr. Morton. You can show’what he did, but not give his opinion. The objection is overruled, the evidence admitted, and a bill sealed for defendant.</p> <p>Mr. Woods: Go on and state what happened. What Dr. Morton did, not what he said. A. Dr. Morton took a chair and called for some writing paper, which Dr. Mahon procured by ringing the bell and calling for it. He then began to ask me questions, and some of the questions I thought had nothing to do with my injuries. I waited awhile but finally, as he continued the questions, I told him that I came there for a medical examination and not for a legal one, and if-he persisted in asking such questions as those I insisted upon having my attorney present. He immediately stopped and commanded me to take off my clothes. I told him that this was something I could not do and had not been able to do since my injuries. He said, “Well, try it.” I told him, “Doctor, I can’t do it.” He says, “ You have not tried.” I says, “ I can’t, Doctor.” At that point Dr. Mahon stepped up and assisted me in taking off iny clothes. The room at that time was in a very cold and chilly condition; if I mistake not the gentleman had his overcoat on. Dr. Mahon had I know. I was then placed in the middle of the room standing. He began to examine me; asked me questions about my injuries. This occupied some time. When he turned me around, I noticed another gentleman in the room who had come in unbidden and without any permission on my part, I assure you. I was not introduced to the gentleman, did not know who he was, nor anything about it. But I soon found out from the conversation that he was Dr. or Professor Forbes. This examination went on for some time. The cane with which I supported myself was taken out of my hand and thrown on the floor. Dr. Morton then asked me to stoop down and pick it up. I told him that I could not do it. “ Well, try.” I told him that there was no use in trying, that I had not been able to stoop down and pick up anything since my injury. Then they proceeded to test or try me with a galvanic battery, electricity. I objected to this on account of my nervous condition. But after the assurance on their part that the battery was very lightly charged, and to assure me of this fact they placed it in my hands and upon my shoulders, I then consented; and this battery was used not only from my feet up to my knees but from my toes to the roots of my hair, over the sore spot on my back and every place else where they could apply it. In the work of this examination my clothes were lying on the floor, my pantaloons had been jerked out of the way by Dr. Morton, and the contents of my pockets were strewn over the floor. I pleaded, as I would plead for my life, that I be allowed to put my pantaloons on. I was standing there trembling like a leaf, every nerve in my body was unstrung. He said, “Well, go on and put them on.” I told him that I could not do it. Dr. Mahon went to pick up my pantaloons and put them on. He said, “ Let him do it himself.” I could not do it. . . . The gentlemen after making this examination all left the room, allowing me to stand in the middle of the floor with nothing on but a thin undershirt and a pair of stockings, which Dr. Mahon had put on me when I asked to have my pantaloons put on. I want to state here that all this time I was standing. I was not sitting down at all during the whole examination. After they had left I went to the bed. It was lying on the floor where I could not reach it. I crawled to the bed as best I could, and laid down in the bed with nothing to cover my person but a thin quilt. In that condition my wife found me a half hour afterwards. [1]</p> <p>Plaintiff further testified:</p> <p>Q. What were your expenses at the hospital? A. At the hospital my expenses were $109.17. Expenses about the house, extra hire and help, were $85.00. I charge twenty-three weeks nursing by my wife, at $10.00 a week, making $280. I charge fifty-four weeks nursing and care, at $6.00 a week, making $324. Bill of examination of Dr. Wood, $25.00; Dr. Harshbergers bill of $118 ; Dr. Hamilton, $10.00; bill for medicine of $48.02.</p> <p>Mr. Elder: We object to the admission of the two items there of $230 and $324 for the reason that nursing expenses are such as the plaintiff has either paid or incurred a legal liability for, and in this case he has done neither, and they are consequently inadmissible.</p> <p>By the Court: The objection is overruled and this testimony so far as it goes to establish that is admitted. Bill sealed for defendant. [3]</p> <p>Mr. Woods: We offer to prove by this witness that bis training was that of a business man and merchant. That he was a clerk in Blyniyer’s store for a number of years, and afterwards went into business for himself and continued as a merchant up until a short time before this accident happened, and what he was able to earn in his business as a merchant while he was in good health.</p> <p>Mr. Elder: We object that the plaintiff does not offer to prove what the plaintiff was earning at the time of the happening of this accident, but only refers to a period some time before the accident; that what he was earning at the time of the injury, and not what he was earning at some prior time, is competent in this case.</p> <p>By the Court: The objection is overruled, the evidence admitted and a bill sealed for defendant. We think that his earning capacity is a question for the jury to take into consideration in establishing what he has lost by the accident.</p> <p>Mr. Woods: Go on and state when you entered BlymyeFs store as a clerk? A. I think it wa in 1862 or 1863. Q. How long were you there? A. Six years. I began clerking for Blymyer at $5.00 a month. Q. After you left Blymyer’s what did you do ? A. Entered into a partnership with James Ritz Burns and John H. Houtz, in the mercantile business, and established what is now known as the “Iron Front Store.” Q. How long did that firm last? A. Until 1875. Q. Then what? A. Then Houtz and I took charge of the business. Q. From the time that you and Mr. Houtz took charge of the business, state whether or not you made a success of it? A. Yes, sir, we made a success of it; we did not make so much of a success previous to that. Q. What was your average earnings during that time ? A. I think I may safely say that my average earnings during that time was $2,500 a year, or thereabouts. [4]</p> <p>James Macklin sworn for plaintiff.</p> <p>Mr. Woods: We offer to prove by this and other witnesses that Mr. Goodhart was an experienced business man and merchant, and what his earning power as such was; this for the purpose of showing what his earning power as a business man and merchant was.</p> <p>Mr. Elder: It is objected that what was the earning capacity of the plaintiff is not susceptible of proof by experts, that the witness upon the stand has not shown any knowledge of Mr. Goodhart’s business, the profits and losses sustained and the income, from which to enable him to speak; that the admission of testimony of this character would substitute the opinion of the witness for a fact. That what his earning capacity was is susceptible of exact proof in dollars and cents by the books of the concern, that it is not the best evidence; that it is irrelevant and immaterial and incompetent.</p> <p>By the Court: The witness having testified that he has known him as a business man for twenty years, the evidence is admitted and a bill sealed for defendant.</p> <p>Mr. Woods: Will you go on and state what in your judgment Mr. Goodhart’s earning power as a business man and merchant would be worth annually ? A. In my judgment not less than $2,5.00. [5]</p> <p>Q. Do you know how much stock was in the “ Iron Front Store ” during any of these twenty years ? A. No, sir. Q. Do you know what the profits amounted to in any one of those twenty years ? A. No, sir. Q. Do you know the amount paid to clerks and for insurance and other incidental expenses of the store during that time ? A. No, sir. Q. Then you have no exact knowledge of the amount of money earned in any one year of the twenty that you speak of by the firm of which Mr. Goodhart was a member? A. No, sir. Q. Then how do you pretend to give the earning capacity of one of the partners of that concern without that knowledge ? A. I base my knowledge upon my intercourse with Mr. Goodhart as a business man. I know him to be a successful business man. I have had intercourse with him frequently as a business man, and I base my opinion as to his earning capacity upon my knowledge of him as a business man and his reputation ever since in Lewistown as a business man. Q. Then it is not based upon any figures at all? A. No, sir. Q. It is simply an abstract opinion? A. I don’t know whether you would call it an abstract opinion or not. Q. Do you know of his filling any $2,500 positions ? A. No, sir, but I know of his ability to fill $2,500 positions. Q. Are not there plenty of men capable of filling $2,500 positions that never get into them ? A. That may be. Q. Is not what a man actually receives the measure of his ability ? A. It may be. And yet if a man has the business ability to earn $2,500, which I believe Mr. Goodhart to have, I believe that that should be the measure of his earning capacity. Q. Although he may five all his life without earning that amount of money? A. I do not believe that he did live all his life or would have lived all his life without earning that amount of money. Q. Do yon believe that be earned-$84,000 during his business at the “Iron Front Store” ? A. I do not know.</p> <p>Mr. Elder: We move to strike out the testimony of the witness. There is only one theory upon which it would be admissible, and that would be upon the theory that the witness possessed sufficient knowledge of the business and of the matter upon which he spoke. An experthnachinist, if he had no knowledge of the machinery of which he spoke, would not be allowed to testify as an expert. A doctor would not be allowed to testify about a man whose symptoms he knew nothing of. This is a fact, dollars and cents, it is not an opinion.</p> <p>By the Court: The motion is overruled, the evidence is admitted and a bill sealed for the defendant. [6]</p> <p>John C. Axe, called by plaintiff, testified:</p> <p>Q. What was Mr. Goodhart’s earning capacity in your opinion?</p> <p>Mr. Elder: I will make the objection that the witness has testified that he knows nothing about the profits of the business in which Mr. Goodhart was engaged, and secondly he. has no sufficient knowledge or experience from which to say what his actual earning capacity was, and as still another objection that Mr. Goodhart was not engaged in the business of which the witness was asked to speak at the time of the happening of the accident, but was working upon a salary.</p> <p>By the Court: Objection overruled, evidence admitted and a bill sealed for defendant.</p> <p>A. I should think about $2,000 a year. [7]</p> <p>James C. Hazlett was asked this question:</p> <p>Q. State what in your opinion is Mr. Goodhart’s earning capacity or was his earning power as a merchant and business man.</p> <p>Mr. Elder: We make the same objection.</p> <p>By the Court: The evidence is admitted and a bill sealed for defendant.</p> <p>A. I would think about $2,000 or $2,500. [8]</p> <p>A. C. Mayes, was asked this question:</p> <p>Q. Do you know anything about their profits ? A. I used to know from what they would tell me in winding up the year several times what they said they made. I saw the sheets once or twice.</p> <p>Mr. Elder: We object.</p> <p>By tbe Court: He can testify as to what he saw on the sheets but not what they told him. Objection overruled and bill sealed for defendant.</p> <p>A. I helped to take stock twice in that store.</p> <p>Mr. Woods: The years that you helped to take stock in that store what did the result show was their profits for the year ? A. I helped to take stock right after Burns’ death, and if my recollection is not at fault, the profits at that time showed a gain of over $7,000. Q. When did you take the other account of stock ? A. Several years after. Q. What did it show up then? A. They showed up a little over $5,000. [9]</p> <p>Q. From your knowledge of Mr. Goodhart and the business that he was engaged in, please state what his earning capacity was as a merchant and business man ?</p> <p>Mr. Elder: We make the same objection.</p> <p>By the Court: Objection overruled, evidence admitted and a bill sealed for the defendant.</p> <p>A. That would be a pretty hard question for me to answer. I think Mr. Goodhart’s earning capacity would be equal to mine at any time. Q. What is yours ? A. That would be a couple of thousand dollars or more. Q. Two thousand dollars and more ? A. Yes, sir. [10]</p> <p>Albert Spanogle was asked this question:</p> <p>Q. In your judgment what was Mr. Goodhart’s earning capacity as a business man ?</p> <p>Mr. Elder: Same objection.</p> <p>Objection overruled and bill sealed for defendant.</p> <p>A. From $2,000 to $2,500 a year. [11]</p> <p>The court charged in part as follows :</p> <p>[It seems to the court, and we do not understand that it is denied by the defendant, that since the accident he has been totally disabled and utterly unable to do anything.] [12]</p> <p>[The plaintiff also called Dr. H. C. Wood, of the city of Philadelphia, who is an eminent specialist on nervous diseases, whose high reputation is well known. Dr. Wood testifies to you that he first saw "the plaintiff November 2, 1893, and that he then made a very careful examination of him and prescribed a mode of treatment for him; that he again examined him in April, 1895, and again during this court, and he gives you the result of his examinations, and tells you that it is his opinion that he has a chronic spinal disease that cannot be cured; and that therefore his injury is permanent.</p> <p>Dr. Hamilton, a Harrisburg physician, was also called, who tells you that he has been practicing since 1871, and has had under his charge at least three patients with somewhat similar injuries. And he, after examination, agrees with Dr. Wood that the injury is permanent and incurable. Dr. Clarkson and Dr. Harshberger, who is and has been his family physician for years, are both called, and they agree with Dr. Wood. On the other hand the defendant calls Dr. Thomas G. Morton, an eminent surgeon, but who tells you he does not profess to be a specialist on nervous diseases. Dr. Morton tells you he examined the plaintiff November 3, 1893, and that as the result of that examination he does not believe that Mr. Goodhart has any chronic spinal disease such as described by Dr. Wood, but that his trouble is traumatic hysteria, his principal trouble being hysterical, and that it is not permanent and can be cured, and that he believes the plaintiff will finally recover. The defendant also calls Dr. Judson Daland, another Philadelphia physician, who testifies to you that he examined the plaintiff in April, 1895, together with Dr. Forbes, Dr. Walker and Dr. Harshberger, and that he agrees with Dr. Morton that his disease is of a hysterical nature and not permanent. Dr. Forbes, another eminent Philadelphia - surgeon, but who tells you he is not a specialist on nervous diseases, is also called and he agrees with Dr. Morton. Dr. Walker, a young Philadelphia physician, is called, who also agrees with Dr. Morton.] [13]</p> <p>[Plaintiff also claims for the services of his wife for nursing him previous to April court, twenty-three weeks, at $10.00 per week, $230; fifty-four weeks, at $6.00 per week, $324; and since April court, fifteen weeks, at $10.00 per week, $150; fifteen weeks, at $6.00 per week, $90.00, making in all for nursing since the accident to the present time the sum of $794. This part of his bill the defendant disputes. He claims it is too high. You heard from the plaintiff and his wife what this nursing was. You also heard what Dr. Wood said on this subject. The defendant has failed to offer any evidence on this subject; and you will give him what is right in the matter. It is a question entirely for you, what you think should be right for these services per week. If you are not satisfied with this bill as he makes it, it is a question for you to find what it would be worth.] [15]</p> <p>Plaintiff’s third point and answer were as follows : \</p> <p>3. If the jury find for the plaintiff he is entitled to recover such an amount as will compensate him for his pain and suffering, for any amount of money that he has expended by reason of the injury, for any loss of wages that he has been deprived of or has been unable to earn by reason of the accident, and, if you believe it is a permanent injury, for loss of earning power for the balance of the time that the injury will prevent his working, Answer: This point is affirmed. [16]</p> <p>Defendant’s fourth point and answer were as follows:</p> <p>4. That at the time of the happening of the accident to plaintiff he was engaged as superintendent and manager for a company at a salary of $960 per year, and that is the proper measure of his earning capacity at that time when he was injured. Answer: This point is refused. This is important evidence to be considered in making up your verdict, but it is to be taken in connection with the other testimony in the cause in making up your verdict in determining plaintiff’s earning capacity. [17]</p> <p>Verdict and judgment for plaintiff for $28,076. Defendant appealed.</p> <p>Errors assigned were (1-11) rulings on evidence, quoting the bill of exceptions; (12, 13, 15, 16, 17) above instructions, quoting them; (14) the court failed to so instruct the jury as to enable them to fairly and intelligently weigh and consider the testimony as to the earning capacity of the plaintiff, and to determine the loss from that source; (18) the charge as a whole was not a fair and adequate presentation of the case.</p>

<p>Appeal, No. 338, Jan. T., 1896, by Darwin C. Smith, from decree of O. C. Juniata Co., confirming sale of real estate.</p> <p>Petition for sale of decedent’s real estate. Before Bailey, P. J., of the 20th judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree of the orphans’ court.</p>

<p>Equity — Injunction—Deed—Building restriction.</p> <p>Where under a building restriction in a deed a lot enjoys the privilege •of light and air from a second lot, and the owner of the first lot erects a solid division wall cutting himself off from light and air, and maintains such a wall for a long period of years, he cannot enjoin the owner of the second lot from erecting a building to the height of such wall.</p> <p>Where under a building restriction in a deed the middle one of three lots in a row owes a servitude of light and air to each of the adjoining lots, the owner of neither of the adjoining lots can by his independent act or deed relinquish the subserviency of the middle lot so as to affect the other.</p> <p>The middle one of three lots in a row owed a servitude of light and -air to the adjoining lots under a restriction in a deed which prevented the owner of the middle lot from building higher than ten feet from the ground. The owner of one of the adjoining lots built a solid division wall higher than ten feet from the ground. The owner of the other adjoining lot built a similar wall higher than ten feet from the ground, but less in height than the other wall. Both walls were maintained for many years. Held, that the court would not enjoin the owner of the middle lot from building to a height equal to the height of the lower of the two ■division walls.</p>

Appeal, No. 214, Jan. T., 1896, by plaintiff, from decree of C. P. Pbila. Co., Sept. T., 1895, No. 796, on bill in equity. Petition on the part of appellees for reargument. The facts appear in Allen v. Hamilton, 175 Pa. 389.

<p>Appeal, No. 15, May T., 1896, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket No. 99, on bill in equity.</p> <p>Bill in equity for an injunction to restrain the taking of land.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing bill.</p>

Appeal, No. 437, Jan. T., 1895, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1891, No. 841, on verdict for plaintiff. Assumpsit to recover amount of principal and interest of railroad bonds. Before Biddle, P. J. The facts appear by the opinion of the Supreme Court, and by the former report of this case in 160 Pa. 590.

Appeal, No. 485, Jan. T., 1895, by defendant, from judgment of C. P. No. 1, Pbila. Co., June Term, 1894, No. 313, on verdict for plaintiff. Trespass for personal injuries. Before Brégy, J. At' the trial it appeared that on September 12, 1892, plaintiff was injured while working in the defendant’s sugar refinery. The circumstances of the accident are stated in the opinion of the Supreme Court.

<p>Deeds — Building restriction — Bath house.</p> <p>An owner of two adjoining lots executed a deed for one of the lots, and the grantee in the deed covenanted for himself, his heirs and assigns not at any time or times thereafter to “ erect or put up or cause or suffer to be erected or put up any building or part of a building or other obstruction except a bath house and privy and walls or fences not exceeding eight feet in height from the level of the ground,” on the lot further south than fifty-nine feet from the original line of a street mentioned. Many years afterwards the grantee’s successor in title began to construct a bath house jutting out from the rear wall of his house at or near the level of the second story, and extending up over his own lot more than nine feet above said level. This structure, nearly nine feet deep, six feet wide, and over nine feet high was more than eight feet above the level of the ground, and more than fifty-nine feet from the original south line of Walnut street. The owner claimed that this structure was notwithin the inhibition of the building restriction above quoted, because “a bath house” was one of the structures exoepted from its operation, and the qualifying words “not exceeding eight feet in height,” etc., applied only to the inclosing “walls or fences,” and not to either of the other structures — “ bath house and privy” — specified in the same exception. Held, that the owner of the adjoining lot was entitled to an injunction, inasmuch as the purpose of the parties to the original deed was to create an easement of light and air in favor of his lot.</p>

<p>Landlord and tenant — Eviction.</p> <p>While an eviction was originally a dispossession of the tenant by some act of his landlord, or by failure of tho latter’s title, it has come in later years to include any wrongful act of the landlord either of commission or omission which may result in an interference with the tenant’s possession in whole or in part.</p> <p>Landlord and tenant — Covenants for quiet enjoyment — Eviction—Rent.</p> <p>The rent is suspended by an eviction because it is plainly unjust that the landlord be permitted to collect it while by his own act he deprives his tenant of the possession which is the consideration for it. But the landlord is not responsible for the acts of others lawfully done on their own premises. He is liable only for his own acts and for such acts of others as it was his duty to protect his tenant from.</p> <p>The covenant for quiet possession relates only to acts of the lessor and those acting under him, or of the holder of a better title, and do not extend to the ill natured conduct of other persons by which the value or comfort of the leasehold may be diminished.</p> <p>Landlord and tenant — Lease of blank wall — Eviction—Rent—Acts of strangers.</p> <p>Plaintiffs were the tenants of a two story building on the east side of Ninth street above Chestnut street in the city of Philadelphia. On several of the lots between their premises and Chestnut street were erected one story buildings, so that the south wall of their building could be seen from Chestnut street which is one of the most frequented streets of the city. Plaintiffs leased the blank surface of this wall to an advertising company which threw advertisements on the wall by means of astereopticon. Subsequently the tenant of the adjoining one story building towards Chestnut street erected upon the roof of his building a frame to suppoi't a screen on which views could be displayed. The frame and screen almost entirely interfered with the view of plaintiffs’ wall. This wall however, was a party wall, and the right of the plaintiffs did not extend beyond its center. Neither the owner nor the tenant of the adjoining building objected to or denied the validity of plaintiffs’ lease. Held, (1) that the action of the tenant of the adjoining premises being that of a stranger did not constitute an eviction; (2) that plaintiffs’ lessee assumed the risk of the actions of the owners and tenants of the property between plaintiffs’ premises and Chestnut street; (8) that there was no failure of consideration, as the right to use the wall had not been denied, but only reduced in value; (4) that if the depreciation was not chargeable to plaintiffs, it was the misfortune of the lessee to have had its possession made useless by the intervention of parties with whom it had no contract, and against whose conduct it had no covenant; (5) that it was error to give binding instructions for the lessee in a suit for the rent.</p>

<p>Appeal, No. 243, Oct. T., 1895, by plaintiff, from decree of C. P. No. 1, Allegheny Co., June T., 1894, No. 179, on bill in equity.</p> <p>Bill in equity to enforce the revocation of a voluntary deed of trust. Before Slagle, J.</p> <p>The facts appear by the following opinion of the court below:</p> <p>The bill in this case was filed for the purpose of enforcing a revocation of a voluntary deed of trust made by plaintiff to William H. Black, who, under authority contained in the deed, subsequently appointed Thomas H. Lane as trustee in his stead, who is still acting as trustee. The bill sets forth that plaintiff is the son of James Lawrence Neal and Margaret Neal, both of whom died when he was a child of tender years. That his mother was a daughter of George Black, from whom he inherited a large estate. That Thomas H. Lane was appointed his guardian and acted as such until plaintiff came of age on the 26th day of September, 1889. That on the 19th day of October, 1889, plaintiff executed a paper by which he conveyed to William H. Black all his estate in trust, and subsequently, on December 20, 1889, the said Black appointed Thomas H. Lane as trustee in his stead.</p> <p>The deed is an absolute conveyance of all plaintiff’s property to William H. Black, his heirs and assigns, and gives to him the absolute and unqualified power to take charge of the same, to sell at public or private sale, to invest and reinvest, etc., at the will of the trustee, and to appoint a trustee in his stead.</p> <p>It is further provided that, “ Out of the net income of said trust estate, which shall not be subject to my control or engagements, to pay from time to time such sums as he, said trustee, shall deem proper for the liberal and comfortable support and maintenance of myself and any family and establishment I may acquire or have, or should support, for which sums my receipts shall be vouchers; to reinvest and accumulate the remaindér,' if any, of such net income during my life, and at my death to convey and assign the whole of said estate, with all its accumulations, as I by my last will or writing, in the nature of such last will may direct and appoint, and in default of such will or testamentary writing, to such persons as would inherit my estate under the intestate laws of the State of Pennsylvania in such shares and interests as by such law directed.”</p> <p>The trustee is authorized to retain $500 annually out of the income as compensation. The conveyance is made irrevocable.</p> <p>The bill further alleges as follows:</p> <p>“ 5. Your orator further avers that at the time of executing said paper, exhibit ‘A,’ and for a long time prior thereto, he lived at the house of his grandmother, Mrs. Jane Black, and said paper was prepared at the instance of William H. Black, who is his uncle, and who lived at the same home of said Mrs. Jane B. Black, until a few months before the preparation of said paper, and continued to visit at said home frequently. Your orator, had no knowledge in relation to said paper or the contents thereof until the same was presented to him by said' William H. Black for signature on October 19, 1889; that he executed said paper solely at the solicitation and upon the advice of said William H. Black, and at the time he was entirely inexperienced in business, unacquainted with the extent and value of his estate or its conditions, the information in relation thereto being in possession of said Lane and Black, and they having concealed the same from him, and, in executing said paper, he acted on the suggestion and advice of said Black without any independent advice and under an entire misapprehension as to the terms and legal effect thereof.</p> <p>“6. That said William H. Black and Thomas H. Lane, although requested, have neglected and refused to render an account of said trust.</p> <p>“ 7. That on February 22, 1894, he executed a revocation of said trust,” etc.</p> <p>The defendants in their answer admit all the allegations of the bill except those contained in the fifth paragraph, which they deny, and set forth at length the circumstances under which the deed of October 19, 1889, was made, and allege that it was made with full information as to his estate and knowledge of its purposes, and that he was satisfied with it until after he was secretly married in September, 1893. That they refused to give a statement of his property because they believed that persons other than plaintiff were endeavoring to obtain control of his property. They deny that the revocation was of any effect because the deed is in terms irrevocable, and to revoke the same would work great injury to the plaintiff.</p> <p>It will be observed that it is not disputed that George B. Neal, at the time of the execution of the deed in question, was competent to make a contract. The plaintiff does not allege that he was incompetent, and in fact claims that he is now fully capable of managing his own affairs, and does not show such marked improvement in his condition as to justify an allegation that he was not then legally competent. Of course the plaintiff’s case depends upon his capacity at that time to make a valid contract. There is no evidence in the case to show want of legal capacity at that time.</p> <p>Plaintiff’s bill is based upon circumstances attending the execution of the paper, and the character of the instrument itself. Though no request was make by plaintiff for specific findings of fact or of law, the grounds of the application are very clearly set out in the exhaustive and able argument presented by counsel in propositions as follows :</p> <p>“ 1. There being no power of revocation in this deed, and it having been prepared and the signature thereto procured by persons who stood in a confidential relation to Neal, the burden of proof rests on defendants.</p> <p>“ 2. This burden can only be met by clear and decisive proof.</p> <p>“ 3. This burden is upon defendants to show by such clear and decisive proof these things : («) that Neal had a true and full knowledge of Ms estate, its extent and value, and of the income therefrom; (5) that he had independent advice m regard to the act which he was performing; (\e) that the terms and provisions of the deed were proper and reasonable ; (\d) that he had a full, clear and intelligent understanding of the act he was engaged in and of the effect and consequences of thé deed which he was executing.”</p> <p>The defense is, that Neal was informed of the amount and character of his estate; that the control of his estate was put into the hands of a trustee at his own request, and he was fully informed as to the contents and purposes of the deed, and it was made irrevocable at his request; and further, that though then and now competent to make a valid contract, he is of weak intellect, — without qualifications for the transaction of busmess and incapable of acquiring such qualifications as would make it safe to Mtrust him with control of his estate.</p> <p>The main question in dispute is as to the mental capacity and business ability of George B. Neal, and should be first considered, as it has a bearmg upon the other questions of fact and law.</p> <p>The testimony of George B. Neal, and Ms manner upon the stand, would indicate that he is not a man of full mental vigor or average intelligence, though his testimony was to some extent affected by his defective hearing.</p> <p>He could not tell when his father, mother and grandfather died. These events happened before he knew anything; but an ordinary person would have MqMred and remembered such important matters. Pie says he did not know he had a guardian or had any property until about two weeks before he came of age. There are not many young men of that age, with a fortune of $100,000, who would have been ignorant of that fact or who would not have inquired as to the matter. When he undertook to give the amount of moneys paid to him by Mr. Lane in 1893 he became thoroughly confused and could give no intelligible answer.</p> <p>Dr. Willard was his attending physician from infancy until he was sixteen or seventeen years old. He testified that in infancy George was affected by marasmus, and his development was very slow. He advised his grandmother that he did not think it was proper for him to arrive at the age of twenty-one, unless some disposition was made of his affairs or some one was appointed to look after him. He also was of the opinion that the best thing that could have been done to develop his mental condition was to keep him at home under a tutor or governess; that there was no use sending him to school because he could not take an education.</p> <p>Dr. Fleming had attended him at times for four or five years. He says : “ He had no capacity for understanding what I was talking about; in mental condition he was a child simply — his mental development was incomplete. He could read and had a personal identity; he was neat and cleanly in his person, that showed that his moral condition was good, but the intelligence was defective and his judgment faulty.” He gave it as his opinion that Neal did not have mental capacity for dealing with a considerable estate.</p> <p>Miss Benson was emploj^ed as teacher for eleven years and remained with him until his marriage in 1893. She traveled with him extensively, — -to Chicago, Denver, and a long trip in Europe. She says: “ His mental development was weak; his memory was very good, but he hadn’t any reasoning power whatever, and is of a dependent nature — is easily persuaded or influenced by others, expecially by any one to whom he may take a fancy. He was not capable of taking care of his property or of himself, either.”</p> <p>M. L. Durst was employed as teacher about 1883. He says : “Well, George couldn’t learn a rule so that he could use it three or four days later. He could go through the examples or exercises under the rules; he could learn to go through those exercises, and to me it seemed very well, and I thought he was learning those rules so he could retain them, and for two months I supposed he was making very good progress, but at that time I began to make some reviews with him and had occasion to use the rules that he had been drilled in and found that he couldn’t use them. At end of year do not think any progress was made. He was very well in history, — seemed rather broad and well-informed in many things; was fairly good in geography, was fairly good in spelling and was fairly good in writing.”</p> <p>Samuel Rea, an uncle by marriage, knew George from childhood : saw him frequently at Mrs. Black’s and at his own home; took George to Europe in 1892. He says of him: “ He was very backward as a boy and seemed incapable of taking an education, such as the average boy is able to take. He has a good disposition, exceedingly kind-hearted, very easily influenced by those whom he cares for, but is totally unable to do any business. In my judgment he is totally unfit to take care of his estate. If a thing is explained to him he seems to understand it thoroughly, but it is liable to get away from him.”</p> <p>These witnesses have no connection with this case. William H. Black, Thomas H. Lane and W. A. Lewis express similar opinions.</p> <p>On part of plaintiff a number of witnesses were called to testify to the capacity and ability of George Neal.</p> <p>Rev. Dr. Fulton had known him for some time. During last summer and the previous summer had correspondence with him; and in January of 1894 taught him for twenty or twenty-five days. He details the course of study and says that he made a very marked improvement, and adds : “ With the right kind of education I am satisfied that he would continue to improve; and while I make that statement there are several things to be taken into consideration.” He was asked this question : “ Assuming that this young man’s estate, as it exists at present, to be invested in securities, — Pennsylvania Railroad stock, and the remainder in school, city and county bonds, etc., — I wish you would state what your judgment is as to his ability to take care of that property invested in that way.” To which he answered: “I think he could do it.” On cross-examination he said that he had not tested George as to his studies after the lessons ceased. That he did not think George had an ordinarily developed mind, and explained: “ In the first place George is one of those men in whom the sutures of the brain become hardened early. In the second place, I think his education has not been sufficient or of the kind to develop the mind of any boy.” He further said : “ I think he could transact ordinary business.’ He was asked the question: “ Suppose he was given his estate to-day of $200,000, invested in stocks and bonds, do you think he could be trusted to convey that property and reinvest it safely?” To which he answered: “No, I don’t. I think he can manage that as at present invested. . . . He could take care of it with such advice from counsel or business men that he could secure, but I don’t think without that he could manage any business complications.”</p> <p>R. G. Gamble, an uncle of Neal’s wife. He knew George about eight years. In answer to the same question put to Dr. Fulton, says: “Well, I believe George could take care of money, and I believe he knows when he sees a good investment. I think in time George could be educated, with a little assistance, to manage it himself. Of course, it is very hard for a man that has never had any experience in business of any kind to manage or transact business, — buy or sell safely.” He was asked: “ Q. Do you think George could be safely trusted to invest $15,000 to $20,000? A. I don’t know about that; that would be hard to tell. Q. You don’t think he could at present? A. Not without assistance; and I don’t think any person could.” He advised George to revoke the deed of trust, and gives a statement of the circumstances: “ I told him it would have to be fixed in some shape, — either he would have to take care of it himself or have it fixed so he couldn’t lose it, and nobody could beat him out of it.”</p> <p>William B. Neal, an uncle, says: “I consider that George s very careful and cautious in any undertaking, but owing to his bad education he would not be able to take care of his affairs without further education and advice. Had him in office from the time he was seventeen or eighteen years old until after he came of age.”</p> <p>W. B. Moyle knew him about eight years; says: “ He is very cautious in money matters.” In answer to question put to Dr. Fulton, says : “Well invested in first class securities, I suppose, I think, I know he would be capable of taking care of it.” And again, “Well, I don’t think George would be able, perhaps, to increase it to any great extent, but as invested now he would be able to take care of it.”</p> <p>Reese Neal, an uncle, says: “ He visited our house a great deal, and went with us to Michigan once for two weeks; bought his own ticket and looked after his own finances. Always considered him very careful.”</p> <p>In answer to the question: “ If his estate, consisting as it now does, of Pennsylvania Kailroad stock and municipal and state bonds, was put into his possession, do you think he would be able to manage that property? A. Yes, sir; I think he could.” In cross-examination, he said: “By managing, I mean that if he had that estate left to him and if he struck some matter that he didn’t understand he would have sense enough to go and see where it was wrong, if he thought it was wrong. . . . I think he is fully developed mentally. I think he is a little slow in some things, but I think that is partly on account of his hearing. He is a little slow in learning. Q. You think it would be safe to give him $200,000 and let him go out and take care of himself ? A. Yes; because he would take advice where he didn’t understand.”</p> <p>Dr. Samuel Ayers, an expert physician, made an examination of Neal for the purpose of testifying in this case. He had ten or twelve interviews with him, says that “ he is possessed of a very fair degree of mental capacity, a little under the average in some respects and average in others. In the mathematical faculty he is defective. In some of his faculties, his observation for instance, he was very good. . . . His judgment was apparently good in various matters, perhaps defective in some directions. His attention was close and acute, his speech was clear and coherent in all matters; special senses all normal except hearing; handwriting particularly good, and composition good; expression of face natural and normal; caution and care normal. ... As to mathematics he is decidedly under the average, in almost every direction you take him. His reasoning powers are quite good. . . . Has difficulty in making change. ... I think there has been some defect in his development — this marasmus — probably stopped the organic growth in the brain; it was an interruption in the early years, undoubtedly, but he seems to have overcome it in later years largely, particularly during his married life. I have no doubt that he has developed in many of 'his faculties much more readily than before.”</p> <p>Being asked: “ Take George in the condition in which you found him and give him the possession and control of, say $50,000, do you think that would be a safe thing to do ? ” He answered, “ Well, yes; I will answer you by yes ; that it would be comparatively safe. Q. Do you thinlc for George’s own sake, supposing he was some relation of yours; say he was the only son of some lost sister of yours, would you put him in possession of §200,000 worth of property to handle and dispose of? A. No, I don’t believe I would. Q. Why wouldn’t you do it, doctor? A. Well, I would not do it for this reason: I think probably he could not manage safely such a large sum without he had some experience, and without some assistance, too. He might get along with it, probably, with some losses, but I believe he is capable of profiting by experience of that kind, because he is capable of development. Q. If invested as it is said to be invested now, in Pennsylvania Railroad stock and municipal and county bonds, would he be able to take care of it? A. I think he would, from what I have seen of him.”</p> <p>Mrs. Neal finds nothing wrong. “It is just the way they kept him.”</p> <p>A fair conclusion from all this testimony is that though George B. Neal, the plaintiff, is able to understand an ordinary proposition when presented, and competent to make a contract, his intellectual powers are by nature weak and have not been fully developed. None of the witnesses for plaintiff state unqualifiedly his ability to take charge of and safely manage his estate. They differ from the witnesses on part of the defendants as to the amount of his mental power and the chances for improvement. They all agree at present that he would require assistance. George himself says that he thinks he is able to take care of his estate, but is not capable of doing business; thinks he has improved a little in the last year or two, and says : “ I attribute that to, since my marriage, that I have learned a little more; have got out among people; by getting out more with people, business men especially, but I will learn a great deal more.”</p> <p>The criticism made by plaintiff’s witnesses as to the education of Neal does not seem to be well founded. There is no evidence that his grandmother and uncles, with whom he lived, were not anxious to do everything best calculated to develop his powers. Those with whom he passed his daily life would be better able to judge as to what was best than those who met him casually. He was sent to school, provided with teachers, given very considerable opportunity for travel, and his uncle William B. Neal, says that for several years he was taken into Ins office with a view of his learning something of business.</p> <p>Dr. Willard, who attended him from infancy, and Dr. Fleming who attended him when grown, would be able to form a more reliable judgment as to his capacity than a physician called in to make an examination.</p> <p>The next question of dispute is as to the making of the deed of trust, and the circumstances attending it.</p> <p>Defendants claim that as the allegations of the bill are denied, they should have been supported by the testimony of two witnesses, and standing on the testimony of Neal alone, all questions thus raised should be resolved against the plaintiff. The plaintiff contends that the relation of the parties casts the burden upon defendants. The testimony having been produced, we think it should be considered and determined upon its weight.</p> <p>Tins question may be considered under plaintiff’s third proposition, to wit: that it must appear («) that Neal had a true and full knowledge of his estate, its extent and value, and of the income therefrom; (V) that he had a full, clear and intelligent understanding of the act he was engaged in, and of the effect and consequences of the deed he was executing; (e) that he had independent advice in regard to the act which he was performing. These propositions may be more strongly stated than the law of the case justifies, but they suggest the questions of fact in dispute.</p> <p>George Neal’s account of the transaction is that the deed was signed in his grandmother’s house. Fie says: “ I was sitting in the back parlor reading a book, and William Black and grandmother came to the door; I first noticed them standing in the. door, and I just glanced up and didn’t pay no more attention to them, and my grandmother came into the room and spoke to me and said that, ‘ Will, would like to see me,’ so I laid down my book and went out and followed him across the hall into the sitting room, and he asked me, he would like me to sign this paper, so he held the paper out — the deed of trust — and he read it over to me but didn’t explain any of the parts of it. Then he said: ‘ Do you want to manage this estate yourself or do you want somebody appointed to manage it for you?’ Well, I thought over it a minute or two and mentioned Mr. Lane. He said: ‘You would rather have Mr. Lane, repeated? ’ I said: ‘ Yes, sir;’ and he said: ‘ Well, sign this.’ I signed the paper and he didn’t say anything for a while, and I said, ‘Will, can I look at the papers ? ’ and he said, ‘ Certainly,’ and I looked over it; just glanced down each page and turned it over, but I couldn’t understand anything about it. I never saw such a paper as that before. Then I folded it up again and handed it over to him. He says : ‘ Do you understand it? ’ I says, ‘Yes; ’ but I meant that I had appointed Mr. Lane, and that was all there was of it. Then he asked — There is some other part of it I can’t quite remember; but he showed me a paper of some kind that he called a statement. He held it in his hand, but I could not tell you what was on it. I only heard only a short time before that Mr. Lane was my guardian. Only after I signed this deed of trust, I asked Will, ‘ How much am I -worth, Will ? ’ And he said, ‘ Something qver $150,000.’ ” On cross-examination, he said that before this he knew that he had some property, but did not know how much or who had charge of it; that a couple of weeks before he heard an aunt say that Mr. Lane was his guardian. “I didn’t think any more of it.” He had no recollection of signing any paper in connection with Mr. Lane’s account. The only paper he recollected was the deed of trust; says he acknowledged the deed of trust at the office of W. A. Lewis, but says : “ He didn’t tell me anything about the deed of trust; ” and denies that he had any talk with Mr. Lewis as to the terms of the deed, or the account of Mr. Lane. “He read it over to me but that’s all. William H. Black read over something but I don’t know what was on it.”</p> <p>William H. Black says that Dr. Willard had advised that some arrangement should be made for the care of Neal’s estate when he came of age. That when George was about to come of age he obtained a statement showing accurately the condition of George’s property up to that time; that he gave the statement to him and asked Mm whether he thought that he was capable of managmg his property. He replied in a very pathetic way that he didn’t feel himself competent to take charge. He then expressed a desire that Mr. Lane should continue the management of his property. He professed that he understood the situation, and at his suggestion I undertook to become trustee in the interim until Mr. Lane had filed his account as guardian and been discharged. I showed it (the statement) to him, particularly the part showing the aggregate of his property. This was the rest of a family consultation.” Afterwards saw W. A. Lewis, Esq., and after a number of consultations with him the deed of trust was prepared. Mr. Lewis was not Black’s attorney, but had represented George Neal’s estate. The deed was signed at Lewis’s office; Mr. Lewis went over it with Neal and discussed it with him. The clause making it irrevocable was inserted at Neal’s request.</p> <p>As to Ms understanding of the statement and deed of trust, he says: “ He had mind enough to understand the total amount and different items composing his estate, but would not know the difference between a bond and a promissory note. He understood the terms of the deed of trust, whether he understood the full import I do not know.”</p> <p>W. A. Lewis says he was attorney for Neal’s estate and for his guardian. He did not see Neal in reference to this matter until the time of executing the deed, but states at length his conference with William H. Black and his instructions to him; and states the interview when the deed was signed as follows:</p> <p>“ I asked Neal whether he understood what his estate consisted of, and whether or not he wanted me to go over the account of Mr Lane with Mm and explain it to him. He said no, that his uncle, William H. Black, had gone over it with him and he understood it pretty well, or as well as he hoped to; that he didn’t understand figures or money matters very well, and he didn’t want to have anything to do with it, he would only get twisted up, and he wanted me to have Ms uncle appointed trustee first, so that Mr. Lane could file his account; then when Mr. Lane would get through with his account, and it would be passed by the court, then Mr. Black would appoint Mr. Lane trustee in Ms stead. I then asked him whether or not he wanted this deed of trust to be revocable at any time, and advised Mm that he ought to state in the deed of trust whether he wanted it revocable or irrevocable; that it might be drawn to be revocable after ten years or after he would become fifty, if he thought he would improve; but he said he didn’t expect to, that he had been training with teachers and traveling, and the only thing he could learn was a little history, and for me to put in a clause so that it couldn’t be coaxed away at any time; that is the word he used. Then I added the clause in his presence in the office. I wrote these words: ‘ And I hereby make this conveyance irrevocable.’ This deed of trust was not out of my office after it was written, until Mr. Neal had been there and talked it over with me and executed it. I read it over and explained it to him. I think we were pretty near all the afternoon over it — an hour or an hour and a half anyway. There was nothing in this paper he did not understand. He was brought to my office for that purpose. Otherwise I could have sent this paper to be signed by him at his grandmother’s. It was explained in all its details, and I thought he well understood it. He afterwards joined with his uncles in having Mr. Lane discharged. That is the paper they sent to grandmother Black’s home.”</p> <p>He says the clause in relation to income was inserted after the paper had been drawn and after discussion with Neal, which he details.</p> <p>“ As the paper was originally drawn, I think it was to draw all the income if he wanted it. And he thought that was giving him too much range and it might not be best to have it in that shape.”</p> <p>Samuel Rea says : “ I remember one occasion, we were at the Savoy Hotel, I think, in London. He detailed to me the transfer of his estate and how well satisfied he was that Mr. Lane or his uncles should have charge of it; that he didn’t feel tbat he could take care of it or understand it.”</p> <p>Miss Benson says : “ About the time he was twenty-one he came to me and told me that they had told him all about bis affairs and asked him if he wanted to take charge of his money or have some one else do it, and he said, O no, he wanted somebody else to do it, and they asked him who, and he said Mr. Lane and his uncle Will. Then it seems that he had some papers at home that he wanted to bring up to me to read; he read them over he said and could tell me where his money was and how it was arranged ; what railroad stock he had and different things about it. He tried to explain to me, but I can’t tell you anything he said because I didn’t care. I remember he spoke about railroad stocks. I think he told me the amount of the whole; it was something over $150,000.”</p> <p>In view of this testimony there is no room to doubt that the plaintiff was fully and fairly informed of the condition of his estate and the terms and conditions of the deed of trust. Whether he fully comprehended them in all the details is not so certain. He was able to understand in a general way the condition of his estate — the purpose to be accomplished and the mode of effecting it. This is all that should be required. If it were necessary that a person creating such a trust should fully appreciate all the technical intricacies of the transaction he would not need a trustee, and one who did would not be able to protect himself against his own weakness and incapacity. It is sufficient that he be not deceived, or misled by fear or favor.</p> <p>In this case there is no allegation of any attempt to deceive Neal or mislead him in anyway, except such as may be implied from the statement that he was ignorant of the condition of his estate. “ The information in relation thereto being in the possession of said Lane and said Black, and they having concealed the same from him.”</p> <p>This statement is not fully sustained even by Neal’s own testimony. He admits that Black told him that his estate amounted to over $150,000, and showed him a statement of it, which he read to him. He is not sustained by any other witness. Black says he obtained a statement from Mr. Lane which he showed to Neal and explained to him. Lewis says he offered to go over the accounts of Lane with Neal and explain them to him but he said that it was not necessary as his uncle William had done so. And he told Miss Benson that he understood all about his estate, and offered to show of what it consisted.</p> <p>We are therefore of the opinion that there is no reason for setting aside this deed because of ignorance or concealment.</p> <p>But it is claimed that Neal did not have proper counsel and advice, and that the deed should be revoked, if for no other reason, because Neal acted “ without any independent advice.”</p> <p>Some of the eases say that this of itself is sufficient ground for setting aside a voluntary deed. Whatis independent advice ? We think an examination of the cases will show that the word is used as a synonym of “ impartial.” One of the definitions of the word is “ Not subject to bias or influence.” It certainly does not mean that when a person has the advice of one or more impartial friends he must seek or the friend must suggest application to another. Nor do we think, when the friend is a near relative who is familiar with the condition of the party as to mental capacity and estate, that it is necessary to call in a stranger to make his advice valid.</p> <p>Neal says he acted solely on the advice of William H. Black. If so, why was he not an independent and competent adviser ? It is true that he was made trustee with an annual salary of $500. But this was a temporary arrangement, to continue until Mr. Lane, the selected trustee, could be properly appointed. Otherwise Black had no personal interest in the deed. All the estate was left to the absolute, final control of Neal. The only interest he could have in the estate would be in case of intestacy. But this he had under the law and not through the deed. He did not act solely upon his own judgment, but upon the advice of Dr. Willard and after consultation with other members of the family. In seeking legal advice he did not go to his own attorney, but to Mr. Lewis, who had acted for Neal in appointment of his guardian, and says that he represented Neal’s estate, though he acted as attorney for his guardian. Mr. Lane says he knew nothing of the deed until after it was executed.</p> <p>When a young man, soon after coming of age, makes a voluntary deed giving away his estate, or relinquishing a right in favor of another, and especially if he be of weak mind and inexperienced, the transaction should be carefully considered in view of all the circumstances.</p> <p>But in this case we find no evidence that Black and Lewis did not act fairly and honestly for what they regarded the best interest of Neal, and we do not think there was anything in their relations to him or his estate to make them incompetent advisers.</p> <p>But it is further claimed that the deed is improvident and the revocation should therefore be sustained.</p> <p>When a deed is voluntarily executed by a person, it is doubtful whether he can revoke it merely because it is improvident. But as in this case the deed confers no vested right in any third person, but is solely for the protection of the grantor, a court should inquire whether the provisions are inconsistent with such purpose.</p> <p>Under the circumstances of this case we regard the general purpose of the deed as eminently wise and proper. Neal was a young man possessed of a large estate. He was of weak intellect, but with sufficient ability to recognize his incapacity. He was inexperienced in business, and whether it was because of improper education, as alleged by his witness, or inability to take a proper education, as said by those more intimately associated with him, the fact remained, and even he himself did not expect improvement. It was certainly wise in him to put it into the hands of some one able and willing to take care of it, and upon terms which would prevent waste by mismanagement and so that it might not be “ coaxed ” from him. The trustee selected was a well known business man of unquestioned integrity, a friend of his grandfather, who had shown his ability by increasing his estate while guardian, from about $97,000 to about $165,000. Unless something'in the special provisions is found to be unreasonable, the deed could not be held to be improvident. We will, therefore, examine the matters suggested by counsel in their order as stated:</p> <p>1. “It strips Neal of all his property without any valid reason therefor.” This is not in accordance with the fact. The deed does not give away any part of his estate, except $500 a year as compensation to the trustee for management. It does give to the trustee the power to control it, for the very good reason that he did not feel able to safely manage it himself.</p> <p>2. “ It contains no power of revocation.” This is a fact; but it does not of itself render the deed improvident. It was inserted upon full consideration and at his request, as stated by Mr. Lewis. To have made the deed revocable would have •defeated the purpose for which it was made.</p> <p>3. “ Because it leaves him at the discretion of the trustee as to what portion of the income he shall receive from his own property.” This provision was made after full discussion, and practically at Neal’s suggestion. The income was large and he felt that it might be wasted and preferred that it, like the rest •of his estate, should be protected by the judgment of his trustee. No difficulty has so far arisen. Neal has had all he asked and presumably all he needed. If the trustee should unreasonably withhold the income, he is under control of the court and may be compelled to do his duty.</p> <p>4. “ Because it makes no provision for future contingencies or emérgencies.” The income of the estate was probably deemed sufficient to provide for all contingencies. It is ample for the liberal support of a family and the accumulations would probably be sufficient to meet any unusual demands. If not, the entire estate is within the control of the court.</p> <p>5. “ Because it gives unsafe and unwise power to the trustee.” If a man retains control of his properly he has unlimited power over it. If he deems it wise to commit it to another, a proper management of it requires that he should confer extensive powers.</p> <p>The specifications under this head are:</p> <p>([a) “ That the trustee is not required to give security.” We think an examination of the case will show that it is an exceptional case where a trustee created by a voluntary deed is required to give security. There is no reason why he should be when he is selected by the grantor and he alone is interested in the estate. Presumably he is selected because of his ability and integrity and for the convenience of the grantor, and it. would be unreasonable for the grantor to ask a third person to stand good for the default of his own agent. See Bigler v. Cloud, 14 Pa. 364.</p> <p>(5) The objection that “ William H. Black has the power to name a new trustee without security ” has more force. But this alone ought not to strike down the deed. It may seem unwise to give the power to name a new trustee to Black. Neal doubtless thought that if the occasion arose Black would act only for his (Neal’s) good, and that his acquaintance with the business world would enable him to make a better selection. He would not be likely to act without consultation with Neal, and if' he undertook improperly to act contrary to Neal’s wishes, he could be restrained.</p> <p>(e) “ The trustee has unlimited power as to conversion of property and investments.” We do not think it an unwise thing to authorize the trustee to make investments outside of those expressly designated by law. So far the investments of the trustee are largely those made by Mr. Black, from whom the estate came. But, as before remarked, a wide discretion must be confided in a trustee in such a case.</p> <p>(á) “ The trustee is not required to account to anybody.” Neal'can require an account at anytime, and, if refused, the trustee can be compelled to make it. It is alleged that an account has been frequently demanded and refused. It was demanded several times within a few days, about the time the bill was filed in this case. Lane told Neal that he would make it out, but that it would require some time. Lewis offered to go with him and go over the books. A statement was made and handed to Mr. Black, who concluded that at that time it ought not to be furnished.</p> <p>The legislature has conferred upon the courts very extensive powers over trustees and trust estates. It is therefore unnecessary to reserve in the deed creating such a trust rights to the cestui que trust which he may exercise under the supervision of the court: And it would be unwise and improvident to do so when the trust is created to protect him against his own weakness.</p> <p>The foregoing has been written in consideration of the facts of the case, and though some of the principles of law, as we understand them, have been stated, we have not referred to the case by which we believe they are established. Those will now be considered.</p> <p>At the first blush it would seem that one who was compos mentis and sui juris, who has made a voluntary deed for his own benefit, and by it granted no vested right to another, should have the power to control his own affairs and revoke the trust whenever he felt disposed to do so. This does not- appear to be the law. When such a trust is created the party constitutes himself a ward of the court and cannot revoke his act except subject to the approval of a court having jurisdiction of such subjects. This is apparent from the many cases in which the courts have been asked to ratify such revocations and the many cases in which they have refused to do so.</p> <p>Among the first cases upon this subject in Pennsylvania is Reese v. Ruth, 13 S. & R. 434. The deed was substantially in the terms of the deed in this case. It was an action of assumpsit brought before the extensive equity powers now conferred upon our courts by the act of 1836. The court held that the action would lie, but that the jury should have been instructed “ that the plaintiff had no right to avoid her deed unless fraudulently obtained, and they might at the same time have directed them that she was entitled to what was necessary for present maintenance under the restriction which I have mentioned.”</p> <p>One of the cases upon the subject: Reidy v. Small, 154 Pa. 505, is almost identical with the present case, except as to the age of the parties, — Reidy being seventy-three years old and Neal twenty-one. Justice Dean, in reversing the decree of the court below, says: “We think the execution of this deed, under all circumstances, was a wise act on part of the plaintiff. Both he and the trustees have access to the court who will see to it that the trust is faithfully executed. There is no reason why it should be revoked, while there are many why it should be sustained.” The facts of that case and the reasoning from them, as stated by Justice Dean, would aptly apply to this case by substituting “natural incapacity,” for “drunkenness and fear of insanity.” It meets nearly every question raised in this case. He very clearly shows that the fact that the deeds contained no clause of revocation did not affect its validity, because such a clause would have defeated the object of the trust. See to same effect Ashhurst’s Appeal, 77 Pa. 464, and Ash’s Appeal, 80 Pa. 500.</p> <p>The other reported cases differ from this in the fact that the deeds in dispute gave vested or contingent rights to third parties, but they seem to have been disposed of upon the same principles as the cases cited. In Greenfield’s Estate, 14 Pa. 489, the case seems to have been ruled largely upon Reese v. Ruth, supra. The court says: “ Settlements like that before us, reserving a present interest in the creator of them and carrying a future benefit or bounty to other designated parties, are very usual. If fairly made and carried into effect, uninfluenced by fraud or circumvention, they cannot be subsequently impeached, as is shown among other determinations by our own case of Reese v. Ruth, 13 S. & R. 434.” And Judge Gibson refers to the fact that one of her purposes was to protect herself against the importunities of some of her friends : page 495.</p> <p>In Nace v. Boyer, 30 Pa. 99, it was said that, “nothing but fraud or palpable mistake is ground for rescinding an executed contract. . . . But the mere fact that a person is of weak understanding, whether produced by old age, accident or disease, if there be no fraud or surprise, is not an adequate cause of relief. . . . and the mere fact that a contract is improvident is no ground for setting it aside.” Page 110.</p> <p>“ Advice or even persuasion to make a deed or bill in a particular way is not fraudulent. There must be something more, something which amounts to imposition or circumvention.” Page 113. The opinion of Judge Symser considers all these questions very fully and clearly. In this case the court refused to revoke the deed though it was subsequently declared to be testamentary and, therefore, revocable: Frederick’s Appeal, 52 Pa. 338.</p> <p>In Ritter’s Appeal, 59 Pa. 9, Ritter being addicted to drink, made a deed of real estate, in trust to pay debts, 160.00 per annum to Ritter and balance to his wife. The court says: “ This deed is neither testamentary nor revocable, and it is clearly the interest of all parties that it should be sustained. It was made by the plaintiff with full knowledge of his own weakness, and we cannot doubt he was the best judge of himself.” Page 13.</p> <p>In Fellow’s Appeal, 93 Pa. 470, it was said: “The title of a trustee under a deed of trust is complete and irrevocable by the settlor, although the transaction be purely voluntary.”</p> <p>Merriman v. Munson, 134 Pa. 114, was a spendthrift trust. The court below said: “The proof by these witnesses, as against the plaintiff’s own testimony alone, shows that the power of revocation was purposely and knowingly surrendered by the plaintiff in order to guard against his own inability to control and administer his property.” Page 127. And the Supreme Court says: “ To have inserted a clause of revocation in such a trust would have been an act of extreme folly as it would have rendered it of no value for the protection of his estate.” Page 131. See, also, Simon v. Simon, 163 Pa. 292.</p> <p>None of the cases in which such deeds have been declared void will be found to be inconsistent with the principles upon which the foregoing cases were decided. They will be found to be ineffective as deeds, because not in accordance with some rule of law, or be voidable because they grant estates and were procured by undue influence, mistake or fraud. In Turner v. Scott, 51 Pa. 126, and Frederick’s Appeal, 52 Pa. 338, the deeds were held to be testamentary and therefore revocable.</p> <p>In Russell’s Appeal, 75 Pa. 279, a lady in contemplation of marriage executed a deed of settlement in which, she provided for payment of the income of her estate to herself for life, and after her death to her children, if any, and if not, to her brother and sisters. There was no power of revocation. Her husband died leaving her childless. She had been advised that she could dispose of her property by will, though there was no such provision in the deed. The deed was made in view of marriage and no other purpose appeared. The court held that there was a mistake of fact and not merely one of law, against which equity could grant relief as against mere volunteers. The court says: “ It may be admitted that the mere omission of counsel to advise the insertion of a power to revoke will not alone be ground in equity to set aside a voluntary conveyance. But the absence of such a power, and the failure of counsel to advise upon it, are circumstances of weight when joined to other circumstances tending to show that the act was not done with a deliberate will. The court, however, says: “ There may be reasons for continuing the disability intended by the grantor or settlor which would influence the chancellor to maintain it, as where a settlement is made for self-protection against improvidence, or the urgent importunities of others, which the circumstances show it is difficult for the grantor or settlor to resist.” Page 289.</p> <p>Darlington’s Appeal, 86 Pa. 512, was a case in which a married woman made a voluntary conveyance of all her estate to her husband, and the controversy was between her own child and the children of her husband by a former marriage. It was held that the confidential relation between the husband and wife required affirmative and positive proof that it was her voluntary act and not induced by undue influences.</p> <p>In Pick’s Appeal, 105 Pa. 528, it was held that the evidence “ tends strongly to show that Mrs. Pettier signed the deed of trust in ignorance of its legal effect; that she had no intention of depriving herself of all control of her property in the future and that her brother, in whom she confided, misled and deceived her. If Mrs. Peiffer signed the deed under the representation that it could be revoked, then a fraud was practiced upon her, if under the advice that she could not insert a power of revocation, she was wrongly advised. She acted under a mistake, partly of law and partly of fact; she was misled by those.whose duty it was to inform her. ... Not only was the deed irrevocable in its terms, but it was improvident.” But the court further says: “ It would be unwise in us to hold that a person may not make an irrevocable gift, nor would the authorities sustain it. There may be instances in which it is to the highest interest of a man to place his estate beyond his control irrevocably. He may do so to protect himself against his own infirmities. The intent to make the gift irrevocable should be clear.” The court thus recognizes the principle of Reese v. Ruth and Reidy v. Small.</p> <p>In Miskey’s Appeal, 107 Pa. 611, it appeared that Jacob A. Miskey had made a deed by which he conveyed his entire estate, about $70,000, to his father, reserving for himself the income during his life, making no provision for his wife and but a slight provision for his son; that Miskey was a drunkard, and largely under the influence of his father, and the deed was prepared by his father’s attorney; there was no power of revocation and no testimony in the case showing that this fact was known to him, or was in any maimer explained to him; that it did not appear that the deed was read over or explained to him at or before its execution, etc.</p> <p>.The court held the principles recognized in all the cases, “that whenever one person obtains by voluntary donation a large pecuniary benefit from another, the burden of proving that the transaction is righteous falls on the person taking the benefit. But this proof is given if it be shown that the donor knew and understood what it was that he was doing.” Especially is this the case where the donee stands in a confidential relation to the donor. And that where there is no power of revocation in such a deed, and no reason appears why it should be irrevocable, it is a fact with other circumstances tending to show that it was not executed with proper advice and understanding. Justice Gbeen very fully cites and considers the authorities upon these questions, and concludes that in no case was there so strong a combination against the validity of the instrument in question as found in that case.</p> <p>These cases establish the principles upon which this case should be determined, and it therefore appears to be unnecessary to refer to the many cases decided in the courts of England and of other states, especially as most of them are considered in one or more of the cases above cited, and some of them are inconsistent with the cases decided by our own courts.</p> <p>Counsel for defendants have requested the court to find the following facts:</p> <p>First. That when the trust deed was executed George B. Neal was not, nor is he now, able to manage and control his property, and the purpose of it was to.protect his estate and prevent the same from being squandered or wrested from him by designing persons. This is found to be true as stated.</p> <p>Second. That it was prepared in pursuance of advice of Neal’s physician and after a family consultation and with the advice and approval of his grandmother, with whom he had lived and who had raised him from infancy. This is found to be true except that Dr. Willard, who so advised, was not at that time his physician, but had been from infancy until he was sixteen or seventeen years old.</p> <p>Third. That all George B. Neal’s estate covered by the trust deed came from his grandfather, George Black. This is found to be true.</p> <p>Fourth. That George B. Neal, prior to its preparation, realized that he was not able to manage his estate and requested that the management and control of the same should be put in the hands of his uncle, William H. Black, who should appoint Thomas H. Lane the trustee when his account as guardian should be confirmed, and that this was done as agreed upon. This is found to be true.</p> <p>Fifth. When the trust deed was executed Neal knew of what his estate consisted and the amount of the same, and said deed was executed by him after the fullest explanations of it, without any solicitation from any one, and with a full knowledge of its provisions, and after he had changed it in two important particulars. This is found to be substantially true. We would strike out the word “ fullest ” and insert' “ very careful.” “ Full knowledge of its provisions ” is perhaps too strong an expression. He appears to have had full information of its provisions and we believe an understanding of its general purpose and effect. The testimony does not show any solicitation, though he acted on the advice of William H. Black and Mr. Lewis.</p> <p>Sixth. There was no fraud or deceit or misrepresentation on the part of any one connected with the preparation or execution of said deed, and the deed itself preserved the estate for Neal’s own use, and subject to his disposition by will. There was no attempt to control it except for Neal’s own good. This is found to be true.</p> <p>Seventh. Neal’s marriage was secret and unknown to his family. He remained satisfied with the trust deed for over five years, and was induced to begin proceedings for its revocation after his marriage on the advice of one Gamble, an uncle by marriage. The best interest of Neal would be subserved by upholding the deed, and the attempted reservation would put his property in the peril it was the purpose of the trust deed to avoid. This is found to be true. But the last sentence is a matter of opinion and not of fact.</p> <p>Upon full consideration of all the evidence in the case we find as matters of fact:</p> <p>That the plaintiff, George B. Neal, arrived at the age of twenty-one years on the 26th day of September, 1889. On the 19th day of October, 1889, he executed the deed of trust in dispute. In pursuance of authority contained in said deed William H. Black appointed Thomas H. Lane as trustee in his stead and conveyed the property to him, who from that time to the present has performed the duties of the trust; that George B. Neal was satisfied with this arrangement until about the 24th day of February, 1894, when he executed a deed revoking the trust made October 19, 1889. That Thomas H. Lane refused to recognize the validity of this revocation, and this bill was filed to enforce the same. George B. Neal, at the time the deed of trust was executed, October 19, 1889, though of weak understanding, and by reason thereof wholly inexperienced in business, and of less than ordinary intelligence, was competent to make a valid deed and capable of understanding the general purpose of such a transaction and means by which it was to be effected. That Mr. Lane was selected by him to be' the trustee, and he was informed why it was necessary or advisable to appoint Mr. Black in the first instance.</p> <p>Before the deed was executed a statement of his properly was made out by his guardian and submitted to him by William H. Black, who informed him of its contents, at least to the extent of the estate. Black consulted with W. A. Lewis, a reputable and competent attorney, and-when the deed was prepared, Neal, with Black, visited Mr. Lewis, who carefully explained the matter to Neal, and after discussion with him the clause in relation to the disposition of the income and making the trust irrevocable was inserted in accordance with Neal’s conclusion as to what was best. Lane had no knowledge of the deed until after its execution. Neal had no advice or counsel from any one other than Willian H. Black and W. A. Lewis. William H. Black is the uncle of George B. Neal and they lived in the house of Mrs. Black together until a few months before the execution of the deed. Black acted upon the advice of Dr. Willard and after consultation with his mother and other members of the family as to the object of the transaction, but it does not appear that he consulted any other person than Mr. Lewis as to the mode of effecting it. He, however, took no interest under the deed and was therefore wholly disinterested. Lewis was not Black’s attorney but had acted for Neal in having Lane appointed guardian. Neither Black nor Lewis had any interest to serve other than that of Neal’s, and, so far as appears from the character of the men, we are satisfied that they acted and advised Neal solely for what they regarded his best interest. They were independent and unprejudiced advisers. Thomas H. Lane, the trustee, was a proper selection. He has shown his faithfulness and ability by the successful management of this estate as guardian.</p> <p>In view of the control of the courts over the trustee and the estate the deed is in no respect improvident, and considering the incapacity and inexperience of Neal, the amount of his estate and the large income derived from it, it seems to have been eminently wise and prudent. There does not appear to have been any marked improvement in his condition as to mental power or business capacity in the six years which Lave elapsed since the execution of the deed, so that the same conditions which made its execution advisable still exist as reasons against its revocation, and that it is not for the interest of plaintiff that it should be revoked.</p> <p>As matter of law we find that the plaintiff has not the power arbitrarily to revoke a deed voluntarily made: that such revocation is subject to the judgment of the court, and should not be ratified unless it appear that the best interests of the plaintiff so require.</p> <p>Under the facts and law of this case we are of opinion that the deed of October 19,1889, should not be revoked and that plaintiff’s bill should be dismissed at his costs. A decree will be drawn accordingly.</p> <p>We feel disposed to add as an apology for this lengthy opinion the words of Justice Green in Miskey’s Appeal, 107 Pa. 682: “ It has seemed to us appropriate to dwell with rather more than usual fullness upon our view of the case because of the unusual character of the questions involved and the relief invoked, the very large amount at stake and the earnestness, zeal and ability with which the argument was conducted by the learned counsel on both sides.” And besides, we do not have the benefit of a master’s report, and though we are satisfied that the new rules in equity will greatly facilitate business and be of advantage to parties, counsel and the courts, it necessitates a fuller reference to testimony and of the cases bearing upon questions of law, than was necessary in passing upon exceptions to a master’s report.</p> <p>Error assigned among others was decree dismissing bill.</p>

<p>Appeal, No. 137, Jan. T., 1896, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1895, No. 12, overruling demurrer in quo warranto proceedings.</p> <p>Quo warranto to determine defendant’s right to the office of councilman in the city of Philadelphia.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment of ouster.</p>

<p>Appeal, No. 315, Jan. T., 1894, by defendant, from judgment of C. P. Montgomery Co., June T., 1893, No. 7, on verdict for plaintiff.</p> <p>Trespass for damages for laying a second track of a lateral railroad. Before Swartz, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial' the defendant presented, among others, the following points:</p> <p>1. The uneontradicted testimony being that Robert T. Potts, by deed dated April 8, 1849 (which deed is prior to plaintiff’s title), granted to Griffith Jones and Thomas I. Potts the property known as the Furnace property, together with, inter alia, “ a right of way ” from the said lot “ to the back road ” (now called Flint Hill road) “ on a downward course so as to make the easiest and best slope to raise the hill,” said “ right of way to be thirty feet in width ” and which said right of way is Centre street, so called, he was precluded from granting to the land bounding said right of way any rights therein whatever. The plaintiff is not entitled to recover and the verdict must be for the defendant. Answer: This is a request to instruct you to find for the defendant. I cannot so instruct you. I may add that the uncontradicted testimony does not show that the right of way spoken of is Centre street. The point is refused. [1]</p> <p>2. When Robert T. Potts, the original grantor conveyed to plaintiff’s predecessor in title the lot of land situated on the southeast side of the thirty feet wide street, called Centre street, it was simply descriptive of the land and not in itself a dedication of the street to public use. At most it was an implied covenant that Robert T. Potts would lay out a street for the accommodation of his grantee. Answer: This is true, but the conveyance to the side of Centre street is evidence to be considered by the jury in connection with the other facts and circumstances of the case, in determining whether Centre street is a public street by dedication. [2]</p> <p>3. The said Robert T. Potts having conveyed to plaintiff’s predecessor in the title a lot of land situated on the southeast side of what was called in the conveyance Centre street made no dedication of the street to the public; he only covenanted with his grantee that there was or should be such street; and if he has failed to make such street, the defendant cannot be held liable for the breach of such covenant by the said Potts, and the verdict must be for the defendant.</p> <p>4. Robert T. Potts having sold and granted to Griffith Jones and Thomas I. Potts in 1849 the said right of way from the Furnace property to the Flint Hill road was estopped from granting a street on the same ground used for said right of way, and the verdict must be for the defendant.</p> <p>5. There being no evidence showing an abandonment of the said right of way granted to said Jones and Potts, the plaintiff can acquire no prescriptive right therein by user, and the verdict must be for the defendant. Answer: These points are each refused. They request an instruction to find for the defendant. I cannot so instruct you. [3]</p> <p>6. The testimony being that Centre street is not a township road; has never been kept in repair for travel by the supervisors of the township; has never been accepted as a public road by the township; and the testimony also being that the street was used by the plaintiff for ingress and egress to his property only, then if any way is shown, it is only his own private right of way for the disturbance of which the defendant is not liable in this action, and the verdict must be for the defendant. Answer: This is refused, but it is true, as I have already instructed you, that your verdict must be for the defendant if you find the plaintiff has shown no more than a private right of way. [4]</p> <p>7. The public cannot acquire an easement by prescription. A prescription supposes a grant, and in the case of the public there can be no grantee. The doctrine is inapplicable to the public. Answer: This point is not material to issue, because the plaintiff does not claim that Centre street is a public street by prescription. The plaintiff claims that the deed to the side of the street, with the other evidence in the case, shows a dedication to public use by the owner of the ground occupied by Centre street. If, however, the defendant by this point requests us to charge that a public street may not be established by adverse user, we cannot affirm the proposition. [5]</p> <p>10. Under all the evidence the verdict must be for the defendant. Answer: This is refused. I cannot so instruct you. [6]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

<p>Appeal, No. 136, Jan. T., 1896, by defendants, from judgment of C. P. Montgomery Co., June T., 1894, No. 157, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Weand, J.</p> <p>At the trial it appeared that on April 21, 1894, the plaintiff was struck by a piece of steel thrown out by a blast from an establishment where the defendants were breaking up steel ingots by dynamite. Prior to the accident the plaintiff had one arm, and in consequence of the accident he lost the other. The evidence for the plaintiff tended to show that the defendants who were father and son entered into a contract with the Mid-vale Steel Works by which they undertook to break up steel ingots. To carry out the contract a limestone quarry in Plymouth township was leased, and a structure placed thereon for breaking up the steel. At the time of the accident plaintiff was employed in an adjoining quarry used by the supervisors of the township. George Hagey, one of the defendants, claimed that he had no interest in the contract, and that he simply advanced the money to the other defendant, his son Samuel, to carry it out.</p> <p>When the plaintiff was on the stand he was asked this question :</p> <p>Q. During that time was there much steel thrown out and around on the highway and the quarry in which you worked up to the time you were injured ?</p> <p>Objected to as immaterial and incompetent. Objection overruled. Defendants except. Bill sealed.</p> <p>A. They blasted every day. When they blasted there was pieces of steel all around there; every day small pieces came around over into the quarry everywhere, and dropped alongside of our boiler-house; a great many pieces flew over to Graver’s. ... I couldn’t say how often I saw steel flying into the road, or in the quarry, but .1 saw pieces fly in the quarry when we were running. They were bigger than a walnut with the hull on it. [1]</p> <p>Lewis K. Graver, a witness for plaintiff, testified that he lived there when the blasting was going on, and he was asked:</p> <p>Q. When the blasts were put off before the accident, and down to the time of the accident, what was the result ?</p> <p>Objected to. Objection overruled. Bill sealed.</p> <p>A. Very often the steel would fly outside of their inclosure, and go sometimes a great distance. We could only tell about the steel flying when the pieces lit upon the ground. . . . There were pieces went clean over my house. I could hear them. They would sound a noise similar to a bullet, and the only time I really saw a piece fall, that landed on a stone wall in front of my house, running along the road. That was the only time 1 saw a piece with my own eyes, with the exception of one that dropped down on the railroad, right close to the works. [1]</p> <p>Joseph Lovett, a witness for plaintiff, testified: During the time of its operation, before this injury to Baker, I used to take a walk around to this blasting place every day. I saw how the house was constructed in which they carried it on. They had cut a lot of trees out of the woods somewhere, and fetched them there, and made a kind of log shanty and then they laid logs across of the same description. The logs were naturally crooked and they would lay there, and there might be a hole there that you might jump through. I went down through it myself. They would fix it all over, and then the very first blow that would come would make it loose again, and they wouldn’t stop to fix it. [1]</p> <p>Counsel for defendants objected to all specific acts of negligence antecedent to the accident.</p> <p>The court admitted evidence of the manner in which the business was carried on by tbe defendants at and immediately preceding tbe day of tbe accident, and overruled tbe objection.</p> <p>Defendants excepted. Bill sealed.</p> <p>Witness continued under this ruling.</p> <p>You could hear pieces whizzing through there, and go “ whiz.” There were times that I saw pieces that were large enough to see. Small pieces you couldn’t see. There was one piece that dropped right in where we were crushing stone. ... It dropped right down past George Corson’s, right into the quarry, and I picked it up. ... I heard several pieces drop. There is one piece that I went over and got off Graver’s shed. [1]</p> <p>The testimony of William Spielhofer, John Shallow, Matt Fogarty, Edward Hunter and Ellwood Livezey, witnesses for the plaintiff, was of similar character, and was admitted after objection thereto by defendants, on the same ground, and exception granted to defendants. [1]</p> <p>Dr. C. H. Mann, a witness for plaintiff, after having described the character of plaintiff’s injuries and his present condition, and stated that he would be a helpless cripple for life, testified, as follows :</p> <p>Q. Is there any attention required relative to his arm outside of what the physician gives him ? A. Yes, sir; the arm requires to be cleansed every day; itrequires to be bound up and cleansed or else it becomes very pernicious. Q. What sort of a person would it require, therefore, as an attendant to perform such duties ?</p> <p>Objected to on the ground that plaintiff’s statement does not set forth or contain any averment of the necessity of such services and attendant, or any claim for the cost and expense thereof.</p> <p>The court admitted the evidence, reserving the right to strike it out, upon further consideration. Defendants excepted. Bill sealed.</p> <p>A. It would require some one with judgment in those matters. By that I mean not just any child to do it; it would have to be somebody with experience. I have been a physician for twenty years, and I have had occasion to employ nurses and attendants for sick and helpless people, and am acquainted with the market prices in this locality for services rendered by such persons. In my judgment, the services that would be requisite to give the proper attention to the physical wants and this lame arm of this man would require a dollar a day, or at the rate of $7.00 a week. [2]</p> <p>Alexander Petry, superintendent of the Midvale Steel Works, testified as follows:</p> <p>McNally is in charge of our open hearth. He is in the employment of the company, and was employed and directed by me as superintendent to go out and secure some one to take the contract for' breaking up this steel. It was in consequence of that direction that he returned and reported to me what I was about to detail — part of it. This was the interview between me and George and Samuel that the letter refers to. (The letter of the witness dated January 25, 1894, in relation to the interview and the contract.) ... It was in consequence of the report that McNally made to me that I designated George Hagey to take this contract. McNally was acting in the interest of the company at this time, and for this special purpose at. that time, and any report that he made to me would be accepted by me as my guide for my conduct in making a contract subsequently.</p> <p>Defendant proposed to ask the witness what that information which he derived from McNally was.</p> <p>Plaintiff objected on the ground that it was inquiring as to conversations between third parties in the absence of plaintiff.</p> <p>Defendants, in reply, contended that it was part of the res gestas of the contract, and therefore admissible.</p> <p>Objection sustained. Defendants except. Bill sealed. [3]</p> <p>George J. Humbert, a witness for plaintiff, testified: In April, 1894,1 was general manager of the Norristown Steel Company. Its operations are manufacturing steel castings of all descriptions. I wrote a letter to George Hagey as superintendent of the steel company.</p> <p>Counsel for plaintiff called for the production of the letter referred to.</p> <p>Counsel for defendants replied that they did not know whether they had such a letter or not, but if they had it they would produce it.</p> <p>Q. You wrote a letter to George Hagey? A. Yes, sir. (Letter dated April 12, 1894, shown witness.) I received this in reply.</p> <p>Counsel for plaintiff offered in evidence the letter referred to, with the envelope, marked respectively “ C ” and “ D,” to show who was carrying on the business there at that time.</p> <p>The letter is as follows:</p> <p>“ Wayne Junction, April 12,1894.</p> <p>“ Norristown Steel Co.</p> <p>“ Gents — Your letter received in reference to breaking steel scrap. In reply we say we are prepared to break any amount of scrap that you may have in pieces not to exceed twenty-inches square. We have a derrick and machinery to hoist pieces containing fifteen tons. We have a large contract with the Midvale Steel Company, and are giving entire satisfaction to them, and having facilities for doing a large business, we will contract with you to break your scrap at six dollars a ton, you paying freight both ways.</p> <p>“Yours respectfully,</p> <p>“ George Hagey.</p> <p>“Wayne Junction, Germantown, or Plymouth Meeting, Montgomery County, Pa.</p> <p>“ P. S. — Our plant is at Tyrol Station, on Plymouth branch of P. & R. Railroad, three miles east of Conshohocken.”</p> <p>The envelope is headed as follows:</p> <p>“ George Hagey,</p> <p>“ Lime and Coal, etc.’</p> <p>Addressed:</p> <p>“Norristown Steel Co.,</p> <p>“Norristown, Montgomery Co.”</p> <p>Defendants objected. Objection overruled. Bill sealed. [4]</p> <p>Q. You say the letter to which this is a reply you sent to George Hagey? A. Yes, sir, and he received it, unquestionably, from the reply. This is in reply to the letter I wrote him with reference to breaking steel scrap for us. There must be a copy of that letter somewhere. The books were all turned over to the American Steel Casting Company, and I do not know what has become of those.</p> <p>Counsel for defendants made an additional objection to tbe introduction of this letter on the ground that the whole correspondence should be exhibited, and also that this letter, as had been expressly testified, was written by Samuel Hagey.</p> <p>Objection overruled. Defendants except. Bill sealed. [4]</p> <p>The court charged in part as follows :</p> <p>[You have heard from the various witnesses in this case what was done as a matter of protection. On the part of the plaintiff it has been testified that these logs were so placed on the top of this plant as to leave openings between the logs sufficiently large to allow pieces of steel to escape. This has been testified to you by a number of persons, and you will, therefore, have no difficulty in deciding upon the question as to whether that was negligence or not, if you believe that statement to be true, because if they did thus construct their plant so that openings were left, through which flying missiles could come, it would of itself establish that they had not taken that due precaution which the law requires. On the part of the defendants it has been testified that there were two or three layers of these logs, and that they had used all reasonable precautions to protect the public. But I instruct you as a matter of law that no matter what precaution they took, if, notwithstanding these precautions, these missiles did fly from that place and did cause this injury, then in law they would be liable in this action. So far as that branch of the case therefore is concerned I apprehend you will have no difficulty in arriving at a conclusion.] [5] . . . .</p> <p>[He (plaintiff) is entitled to any expenses that he has incurred or that are likely to be incurred as a natural result of this injury. . . . He is not only entitled to what took place in the past, but he is entitled, under the law, to what will compensate him for all the expenses which may be reasonable and necessary as a consequence of this injury. You can look into the future and make an estimate of what would be his probable expenses if you believe that as a natural result of this injury he will hereafter always require medical attendance and nursing, and whatever may be a fair compensation upon that score you will be entitled to give him.] [6]</p> <p>Defendant’s points and answers were as follows:</p> <p>1. As the present action is brought against the defendants as joint trespassers, and the statement of plaintiff’s claim alleges that on the 21st day of April, 1894, they were engaged in blasting with dynamite large masses of steel, which blasting was done negligently and wrongfully and carelessly, so that in consequence thereof plaintiff was hurt and injured in the manner described, the burden of proof is on him to show these alleged facts affirmatively by positive evidence that the defendants were on that day jointly engaged in such blasting, and that the work was done in the negligent and careless manner complained of, and that plaintiff was injured in consequence thereof, or the verdict must be for the defendants. And if the evidence shows that only one of them was so engaged in blasting on that day, and in such negligent and careless manner, the verdict can only be rendered against that one, as the actual wrongdoer, and must be in favor of the other defendant. Answer: In order to recover in this case, the plaintiff must convince the jury by the weight of the testimony that his injuries were the result of the negligence of the defendants, or one of them, or because of the negligence of the servants of the defendants, or one of them, in the operation of blasting steel, causing the accident. If both defendants were interested in the operation, in the sense that they were joint owners thereof, or that it was carried on for their joint benefit, then they would both be liable for any acts or negligence contributing thereto, and neither would be excused from the fact that he was not present on the day of the accident. If the jury find that either defendant was not interested in the operation of blasting in the sense that he was not an owner, or that it was not carried on for his benefit on the day of the accident, then the verdict should be in favor of such defendant. If George Hagey merely loaned money to Samuel that fact alone would not make him liable in this action. But if he was interested in the operation, the mere fact that he was not present on that particular day would not excuse him.] [7]</p> <p>2. Under the pleadings and evidence in this case, if the jury believe that the work of blasting steel was done negligently and carelessly, and that the plaintiff was injured in consequence thereof, the verdict can only be rendered against the defendant who the evidence shows was, at the time of the happening of such injuries, present and engaged in said work, and must be in favor of the other defendant. -Answer: I cannot affirm this point. As I have already stated to you, the mere fact that one of the defendants was not present would not excuse him if the jury find that he was interested in this operation in the manner that I have detailed. [8]</p> <p>Verdict for plaintiff for $15,000. Judgment for plaintiff for $10,000, remittitur having been filed. Defendants appealed.</p> <p>Errors assigned were, (1-4) rulings on evidence, quoting the bills of exceptions; (5-8) above instructions, quoting them; (9) because the learned judge erred in not charging the jury that if they believed the testimony of Alexander Petry, Peter McNally, Henry Preedly, John J. Corson and J. C. Goade, in reference to the contract with the Midvale Steel Co., the leasing of the property for the construction of the plant and the purchase of materials for the carrying on of the blasting operations and of defendants themselves, that George Hagey had no interest whatever therein, it would be their duty to find a verdict in his favor; (10) because the learned judge' erred in not charging the jury that there was not any evidence in the cause to show joint ownership of, or joint interest in, or joint management or conduct by defendants in the business of steel blasting carried on at that plant; (11) because the evidence in the cause does not justify, and is not sufficient to sustain the verdict rendered by the jury.</p>

<p>Appeal, No. 151, Jan. T., 1896, by plaintiff, from decree of C. P. Cumberland Co., Feb. T., 1895, No. 1, dismissing bill in equity.</p> <p>Bill in equity for an injunction to restrain a street railway company from building an overhead crossing over a railroad. Before Biddle, P. J.</p> <p>For a full statement of facts, and in order to avoid repetition, the finding of facts and of law by the court below in Cumberland Valley R. R. v. Harrisburg etc. Ry., 177 Pa. 155 (next succeeding case) are given entire in this case, as follows:</p> <p>1. The plaintiff owns and operates a railroad extending from Harrisburg in Pennsylvania to the Potomac river in Maryland. The road runs westwardly from Harrisburg to the village of Bridgeport in East Pennsboro township in Cumberland county, upon a bridge across the Susquehanna river, and upon the viaduct in said township the track is carried upon girders, twelve feet or more above the ground, supported on stone piers.</p> <p>2. When the road was originally built there were six open spans between the piers, but many years ago the two western spans were filled up and have since been a solid embankment. The present four open spans range in length from thirty-two to forty feet and there is an old retaining wall on the south side of the two which are nearest the bridge. There is also a retaining wall on the north side of the easternmost span. These walls held an earth embankment on which horses, cattle, wagons, etc., entered the bridge in the early days when it was a “ double decker.” In the year 1850 this kind of travel on the bridge was discontinued.</p> <p>3. The plaintiff was incorporated and built a bridge, with an' abutment and viaduct in East Pennsboro township at their present location, prior to the year 1839, the entry on the land being presumably under a parol license from the owners. Valentine Hummel and M. Lebkicker, as tenants in common, held at that time the fee to the land over which the road ran from the west bank of the river for a distance of half a mile, and on April 27, 1839, in consideration of $2,250 then paid to them, they released to plaintiff “ all damages occasioned by the construction or use of the said road and the bridge over the Susquehanna, so far as the same runs through their land on the west side of the Susquehanna ” etc.</p> <p>4. The bridge has since been rebuilt and the piers reconstructed, but they occupy the same ground upon which they were placed at the time the road was built.</p> <p>[The singular defendant is used by the court to designate the Harrisburg & Mechanicsburg Railway Co.]</p> <p>5. Prior to the time the bill was filed, the defendant surveyed the route for its railway under the span next to the easternmost one of the plaintiff’s viaduct, and had laid a few rails near to the same with the intention of building its line as thus laid out. It would not have been possible to so construct the railway, without tearing away and removing a part of the retaining wall which stands on the south side of the span, and which at that place is about five feet in height.</p> <p>6. Shortly before the trial, the route of the railway was changed to run under the westernmost span of the viaduct, on the bed of an old turnpike, now abandoned.</p> <p>7. The defendant was chartered on May 17, 1892, under the provisions of the street railway act of May 14, 1889, to construct a line from Market square in Harrisburg to the borough of Mechanicsburg in Cumberland county, a distance of about nine miles. The line was subsequently extended and amended to run also to the borough of New Cumberland, about two miles down the river from the People’s bridge, and to the village of West Fairview, about two miles up the river from that point.</p> <p>8. On October 11, 1895, a resolution was adopted both by the directors and the stockholders of the defendant company to abandon all of the line except that portion which was in the city of Harrisburg, upon the People’s bridge, in the borough of New Cumberland, and in certain designated parts of the townships of East Pennsboro and Lower Allen. Prior to this time it was designed to run in other portions of said two townships, also in the townships of Upper Allen and Hampden, and in the boroughs of Shiremanstown, Camp Hill and Mechanicsburg. The consent of the authorities of Mechanicsburg had been given to construct the line in that borough, but the right to do so expired. The consent of the authorities of the borough of Shiremanstown and the townships of Hampden and Upper Allen was never obtained.</p> <p>9. A copy of the resolutions of abandonment, with paper attached showing the consent thereto of the local authorities of the townships of East Pennsboro and Lower Allen and of the borough of New Cumberland, was filed in the office of the secretary of the commonwealth on October 21, 1895. Certified copies of resolutions adopted by the respective councils of the city of Harrisburg and the borough of Camp Hill, giving similar consent, were filed in the said office on October 21,1895.</p> <p>10. So far as the evidence has disclosed, the building of defendant’s railway and the running of cars thereon will not injure or affect the operation of plaintiff’s railroad, or inflict upon plaintiff any actual damage. There will be no increase of danger from accident or other cause.</p> <p>11. The line is located upon public highways except that, for several hundred yards, it runs on private lands, with the consent of the owners. Part of this distance is alongside of a turnpike, and by using the private lands good crossings are obtained, not at grade, of the plaintiff’s road and of the Northern Central Railway.</p> <p>12. The consent of the abutting landowners on the roads over which the line is built, or now authorized to be built, has been obtained.</p> <p>18. That portion of the line which extends from Market square, in Harrisburg, to the village of West Fairview, a distance of three miles, was constructed and in operation in February, 1895, about six months before the amended bill was filed.</p> <p>14. The Cumberland Yalley Traction Company is not a party in interest.</p> <p>FINDINGS OF LAW.</p> <p>1. Plaintiff has an easement upon the surface of the ground over and along which the viaduct is erected, with a prima facie right to place piers or an embankment thereon if’ necessary or desirable for the proper operation of its road, but this right must be exercised with a due consideration for such conflicting rights as may exist in the commonwealth or its grantee or the public.</p> <p>2. The fact that defendant’s railway runs for a distance on private lands is not a violation of its franchises but is in strict accordance with them.</p> <p>8. The proceedings to abandon certain portions of the line were regular and were effective to accomplish the result which was desired. It was not necessary to obtain the consent to the abandonment of the authorities of the boroughs of Mechanics-burg and Shiremanstown, or of the townships of Hampden and Upper Allen.</p> <p>4. The plaintiff has no standing to question the validity of defendant’s franchises.</p> <p>5. The defendant has a right to build its road across the easement of plaintiff at the place intended.</p> <p>OPINION OP THE COURT.</p> <p>In addition to above findings of fact and of law we will say generally of the case in hand as follows : A street railway company, incorporated under the act of May 14, 1889, is not invested by its charter alone with authority to build an intended road, but it must likewise have the consent of the local authorities of each of the districts through which the line will pass. When such consent has been given the construction may lawfully proceed, and any person who will be injured by the building of the railway on a country highway over his land may protect himself by an injunction until his damages have been paid or secured. As the occupancy by á street railway of a country road imposes an additional servitude upon the land the abutting owner is an interested party and has a right to damages : Penna. R. R. v. Montgomery Co. Pass. Ry., 167 Pa. 62.</p> <p>What is the status of the plaintiff in this case ? At the time the bill was filed, and until recently, the defendant’s line was projected to run through the old retaining wall on the south side of the plaintiff’s viaduct, and rails were laid to a near-by point. This wall belongs to plaintiff and the defendant had no authority to remove or break into it until damages were arranged according to law. At the trial defendant filed an amended answer and put in evidence certified copies of records showing an abandonment of portions of its line and a change in the route at the place in dispute, and further proved that the place of crossing the plaintiff’s right of way by the line as amended is through the westernmost span of the viaduct on the bed of the old New Cumberland turnpike. This span has been open for travel since the railroad was built nearly sixty years ago, and there is no evidence tending to show that it will ever be necessary or desirable for the proper prosecution of plaintiff’s business to close it. Defendant clearly has a right to construct its line across the plaintiff’s easement at this point, and as the proposed crossing is not at grade, no special order on the subject is necessary at this time. The franchises of a corporation may be taken in whole or in part, or even destroyed, in the exercise of the right of eminent domain by the commonwealth: Article 16, section 3, of the constitution; In re Towanda Bridge Company, 91 Pa. 216; In re Twenty-second street, 102 Pa. 108.</p> <p>In considering the right of one company to condemn and use the property of another company, it makes no difference which is the elder. If the elder one has exercised its power to condemn property for a right of way, and has constructed and is operating its road, that does not withdraw its right of way from the liability to be condemned for a crossing, to be enjoyed in common with a junior company. The right to cross is equal, and does not arise out of purchase. When the younger corporation has acquired its right of property in common with the elder in a crossing, they become joint and equal owners, bound by mutual obligations to each other and to the public to so use this common right as to do no unnecessary harm to each other or to the public: 1 Wood’s Railway Law, p. 680. The defendant having obtained from the commonwealth and the local authorities the right to build its road along the route selected, such right cannot be questioned by the plaintiff.</p> <p>The act of May 14,1889, expressly gives to companies incorporated thereunder authority to cross any railroad at grade, from which the authority to cross above or beneath the same is readily inferable, and as said above, the right of defendant to construct its line, upon the route selected, cannot be called in question by the plaintiff : Market Co. v. Railroad Co., 142 Pa. 580; Junction P. Ry. v. Williamsport P. Ry., 154 Pa. 116.</p> <p>The position is taken that defendant was without authority to change the place of crossing from the line indicated by the rails which were laid near the viaduct, it being claimed that the laying of these rails was the adoption of a location from which there could be no recession. We know of no doctrine to support this proposition. It is true the law is settled, that as soon as a steam railroad is located, the right of an injured landowner to sue for damages is complete, and he may recover damages not only for the location but for the subsequent construction: Wadhams v. Railroad Co., 42 Pa. 303 ; Beale v. Railroad Co., 86 Pa. 509. It does not follow from this, however, that the route of a small portion of the line may not be changed before actual construction, if deemed expedient, but the rule merely signifies that the owner of the land traversed by the first location may recover full damages, even if the road is not built on his property. The alignment of a railroad on a street may be changed, after construction and operation, against the protest of an abutting owner : Snyder v. Railroad Co., 55 Pa. 340. This matter has no real bearing on the case in hand, for the defendant’s route has been changed and amended by resolutions filed in the proper office, to correspond with the line which it is proposed to build.</p> <p>Having found as a fact that the crossing of plaintiff’s easement by the electric railway under the amended charter will not inflict upon plaintiff any actual damage, the injunction will be refused without any additional order, except as to costs. The costs will be imposed upon defendant, because the injunction would have been granted, and would have been continued in force, against the construction of the railway on the line intended when the bill was filed, until first the necessary consent of local authorities had been obtained, and second, until there had been an adjudication of the questions involved in the breaking through and removing the old retaining wall on the south side of the viaduct. The plaintiff, however, is not entitled to damages merely because its easement is crossed, nor can it require the filing of a bond by defendant: Railway Co. v. Railway Co., 10 Pa. C. C. R. 401, and 149 Pa. 1; see also Railroad Co. v. Railway Co., 11 Pa. C. C. R. 165. The plaintiff’s case, at best, is now one of damnum absque injuria.</p> <p>The court below filed the following opinion in this case:</p> <p>There is no evidence whatsoever to implicate the Cumberland Valley Traction Company in any of the matters complained of in the bill. The Harrisburg & Mechanicsburg Electric Railway Company proposes to carry its line across the railroad of the plaintiff on an overhead bridge, having a span of one hundred feet, and a clear elevation' of twenty-two feet. At the place of crossing, the plaintiff has a right of way, sixty feet in width, and a strip of land immediately adjoining, twenty feet wide, which was acquired by deed. No actual damage will be done to plaintiff by the construction of the electric line as projected, and there will be no interference with the operation of the railroad. The deed to plaintiff for the twenty feet wide strip of land expresses that it is granted for railroad purposes, and the fact that the acquisition of the strip was by a conveyance and not by condemnation proceedings, is of no moment in this case. We have this day filed findings of fact and of law and an opinion in the case of the Cumberland Valley Railroad Company against the two defendants herein, entered to No. 7, November T., 1894, in equity, in which we dispose of the material points which are involved in this action, and in accordance with what is there said the bill will be dismissed.</p> <p>It must be dismissed, also, for another reason, viz: prior to the institution of this suit, there was no attempt made by either of the defendants to cross the road of the plaintiff, nor had plaintiff any reason to apprehend that such an attempt was imminent.</p> <p>And now, November 7, 1895, an injunction is refused and the bill is dismissed at plaintiff’s costs.</p> <p>Error assigned was decree dismissing bill.</p>

<p>Street railways — Railroads—Grossings—Act of May 14, 1889.</p> <p>Under the act of May 14, 1889, P. L. 211, a street railway company has no right to construct, maintain and operate its road across the lines of a steam railroad company without the consent and against the protest of the latter at a point where its roadway is not crossed by a public highway; and it is immaterial whether the proposed crossing is overhead or underground.</p>

<p>Covenants — Dependent covenants.</p> <p>The dependency or independency of covenants is to be determined not alone from any particular words or phrases, but also from the nature of the transaction and object of the parties as evidenced by their contract.</p> <p>Lease — Dependent covenants.</p> <p>Where covenants in a lease are dependent, the subsequent independent action of either "party cannot in the least degree change the right under the contract of the nonassenting party.</p> <p>Assignment for the benefit of creditors— Creditors — Security— When rights are fixed.</p> <p>The rights of creditors as distributees of an estate assigned for the benefit of creditors are fixed as of the date of the assignment. Each creditor by the assignment becomes the owner in equity of such part of the assigned property as the debt then due him bears to the aggregate of the debts. The day of the assignment and not the day of distribution, fixes the right.</p> <p>A special security, covenant or remedy existing for enforcing payment of the debt is not necessarily affected by an assignment for the benefit of creditors.</p> <p> Assignee for creditors. </p> <p>A voluntary assignee is the mere representative of the debtor, enjoying his rights only and no others, and is bound where he would be bound.</p> <p>Lease — Mining lease — Dependent covenants — Assignment for creditors.</p> <p>The lessors in a mining lease reserved the right to declare the lease forfeited upon default of the lessees to comply with their covenants, and to secure possession after such forfeiture; reserving the right to enter judgment in ejectment. They also reserved the right to take the improvements erected by the lessees at an appraisement. After the lease had been running for a considerable period the lessees came to be in default and made an assignment for the benefit of creditors, whereupon the lessors declared a forfeiture, and entered into possession of the land by means of a writ of habere facias possessionem. Soon after taking possession the lessors had an appraisement of the improvements made, and elected to take them at the valuation, and so notified the lessees. At the time the forfeiture was declared the lessees owed the lessors by reason of the default in their covenants, an amount in excess of the appraised value of the improvements. Held, (1) that the lessors’ rights were secured by conditions which, if broken before the assignment, determined their right to the remedy stipulated in the lease; (2) that the lessors had the right to appropriate in payment of the improvements the amount which was due to them by the lessees by reason of the breach of the covenants of the lease; (3) that the assignee for the benefit of creditors of the lessees had no right to compel the lessors to pay to him the appraised value of the improvements.</p>

<p>Appeal, No. 107, Jan. T., 1896, by plaintiff, from order of C. P. Wyoming Co., Jan. T., 1894, No. 18, sustaining exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report distributing funds raised by assignee’s sale of real estate.</p> <p>The case was referred to William M. Post, Esq., who reported the facts to be as follows:</p> <p>A. P. Miller and Mrs. A. M. Mack (wife of H. A. Mack) entered into copartnership under the title or firm name of The Tunkhannock Manufacturing Company, for the purpose of erecting a factory building and prosecuting the business of manufacturing “spools.”</p> <p>To this end they purchased a tract of land, comprising about three acres, situate in the borough of Tunkhannock, being the same property from the sale of which the real estate fund for distribution is derived.</p> <p>On the 9th day of March, 1893, the title to the said land was conveyed by deed to the said A. P. Miller and A. M. Mack individually — or as tenants in common — and not as partners. On the next day, March 10, 1893, the work of erecting a factory building was commenced upon the ground. In the prosecution of this enterprise a large indebtedness was incurred by the said parties, both separately and jointly, as individuals as well as in the name of the “ Tunkhannock Manufacturing Company.”</p> <p>On the 13th day of June, 1893 (when the building was nearly completed and being furnished with steam power and machinery requisite for the operation of the factory), the said A. P. Miller and A. M. Mack gave a mortgage upon the premises to Peter A. Miller (father of A. P. Miller), for the sum of $4,000. The next lien is a judgment in favor of Peter A. Miller for $465 against A. P. Miller, A. M. Mack and H. A. Mack, entered November 1, 1893. Same day judgment (Peter A. Miller against A. P. Miller) for the sum of $2,500 was entered. Other judgments were entered later, — some were entered after the assignment, which, of course, are only evidences of indebtedness and not liens upon the spool factory.</p> <p>The Tunkhannock Manufacturing Company failed in business, and on the 22d day of November, 1893, the said A. P. Miller and A. M. Mack made a general assignment of their individual, as well as partnership property, for the benefit of their creditors to C. O. Dersheimer.</p> <p>There were no mechanics’ hens on record at this time bnt shortly afterwards a large number of claims were filed against the factory building. In none of them was the date of the commencement of work on the building stated, but nearly ah of the items, shown by the bills of particulars, antedated the mortgage. (It may be well to explain that most of these hens are on record in three forms or separate entries. In ah of these forms the name of A. P. Miller and A. M. Mack are given as owners, but, as a precaution against misnomer, a different name is used as contractors in each of the forms.) Sci. fas. were issued on ah these mechanics’ hens, but no judgments have been taken and the suits are still pending. These claims were all filed within six months after their last items are made up in the form prescribed by law, and are admitted by all parties to be good and vahd hens as against the defendants therein and the property for the amounts claimed by them. (Except a small deduction agreed upon, and that costs should only be taxed on one “ form ” in each hen.)</p> <p>A full abstract of the records of the deeds, mortgage, judgments and mechanics’ hens hereinbefore referred to, was made up, admitted to be correct, and received as evidence by the agreement of ah parties. This abstract is hereto attached (or filed herewith) and reference is made to it, if more particularity is desired in relation to matters shown therein.</p> <p>- It was also admitted that the judgments recited in said abstract were ah correct and that the amounts were due upon them as shown by the record. It was further agreed in reference to the mechanics’ hens that the assignee might at once pay eighty per cent of the principal due upon each of them. The assignee has made such payments and presented to the auditor receipts for the same, which are hereunto attached.</p> <p>The spool factory was sold by the assignee under an order of court and the sale was confirmed finally on the 9th day of May, 1894.</p> <p>CONCLUSIONS ON LAW.</p> <p>1. That the hen of the mortgage of Peter A. Miller, assigned to and now owned by Wm. N. Reynolds, was divested by the assignee’s sale of the mortgaged premises and is entitled to participate in the distribution of this fund.</p> <p>2. That the mechanics’ liens, claiming to be paid out of the fund, are legal and valid, relate back to the commencement of the building (which has been fully proved by parol evidence to have been before the entry of the mortgage) and have, therefore, priority of lien over the mortgage as well as over all the judgments presented to the auditor.</p> <p>3. That the fund arising from the sale of real estate should be awarded first to the mechanics’ liens, next to the mortgage, and lastly to the judgments.</p> <p>The court in an opinion by Dunham, P. J., sustained exceptions to the auditor’s report, held that the mortgage was not divested by the assignee’s sale and distributed the fund first to the mechanics’ liens and then to the judgments.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>

Appeal, No. 440, Jan. T., 1896, by defendants, from judgment of C. P. Lackawanna Co., Jan. T., 1892, No. 422, on verdict for plaintiff. Assumpsit to recover commissions omsales. Before Lynch, J., of tbe eleventh judicial district, specially presiding. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 50, Jan. T., 1896, by defendants, from judgment of C. P. Lackawanna Co., Jan. T., 1893, No. 82, on verdict for plaintiff.</p> <p>Trespass for death, of husband. Before Edwards, J.</p> <p>At the trial it appeared that on October 18, 1892, Hngh Roberts, plaintiff’s husband, while driving a wagon and two horse team over the Carbon street crossing of defendants’ railroad in Scranton, was killed by a passenger train coming from the south. A colored man named Johnson who was driving a wagon near the deceased at the time of the accident testified that the deceased stopped about thirty feet from the crossing. Johnson’s testimony was contradicted and his reputation for truth partially impeached. There was some testimony of Roberts’ admission before his death that he had not stopped before driving upon the track. At a point thirty feet from the crossing a view could be had along the railroad track about sixty-eight feet from the crossing. At thirteen feet from the crossing the view along the track was six hundred and sixty-five feet, but at this point the safety gates, if lowered, would have come upon the driver, or between the horses and the driver. The evidence for the plaintiff tended to show that the train was run at a high rate of speed.</p> <p>The court charged in part as follows :</p> <p>First of all, did Roberts stop, look and listen on that day? When death occurs from an accident, the presumption of law is that the decedent performed his duty of stopping, looking and listening, bnt this presumption is slight and can be easily rebutted. But the plaintiff in this case does not depend upon this presumption alone. You are to consider all the testimony on this point. You heard the testimony of Mrs. Coar, and of the colored man, Mr. Johnson. Mr. Johnson says that Roberts stopped about a minute at a distance of about thirty feet from the track. You also heard the testimony of Dr. Lowry and Mr. Crippen as to Roberts’ declarations in the hospital on the afternoon of the 18th. The reliability of this testimony, and the credibility of the witnesses, are matters for your consideration. You have a right to take into consideration the physical and mental condition of Roberts after the accident, and while in the hospital, as well as the credibility of Johnson as a witness. Witnesses on the stand have said that Johnson’s reputation for truth and veracity is bad. Some of the witnesses refer to a period ten years ago, when he lived in PeckviUe, and others to a more recent period. The purpose of this testimony is to affect his credibility as a witness. You are to determine what effect it has upon his testimony. [Several witnesses say that they did not see another wagon at the scene and at the time of the accident, but Mr. Gordon says he saw Johnson there at the scene, although he did not notice the wagon.] [8] In weighing this testimony you should take a reasonable view of all the events connected with the accident, the excitement incident thereto, the ability of the several witnesses to observe the surroundings, the accuracy of their recollection, and their credibility as witnesses.</p> <p>If you should come to the conclusion that Roberts did not stop to look and listen that day, then that would be the end of the case, and your verdict should be for the defendants. But if you should come to the conclusion that he did stop as the law requires, then the next question is, did he stop in the proper place under all the circumstances.</p> <p>If a traveler on the highway in approaching a crossing, either on foot or in a wagon, stops where it will do him no good, and will not enable him to protect himself against an approaching train, he does not stop in the right place. There is considerable testimony on this branch of the case. Several measurements have been made so as to determine the line of vision up the track in a northerly direction from several points on Carbon street. These measurements are not exactly the same. The two surveyors, Mr. Bartl and Mr. Mason, differ to some extent. The view up the track has been given you from the distance of thirteen, twenty, thirty, forty and fifty feet from points on Carbon street. I need not repeat the figures to you, but I say to you that a traveler is not required to get into a place of danger in order to perform his duty. [If Roberts had stopped thirteen feet from the track, according to the testimony of Mr. Mason, the gates, if lowered, would have come either on the driver or between the horses and the driver. Of course I refer to the east rail of the northbound track. The law does not require this, but the traveler must stop at the best place for his own protection under all the circumstances.] [9]</p> <p>Did Roberts stop at the proper place? It is for you to decide from the evidence as to the place where he stopped, whether it was twenty feet or thirty feet or forty feet or fifty feet, and in deciding this you have a right to consider all the surrounding circumstances, as they have been disclosed to you in the testimony of the witnesses, and as they are indicated in the maps and photographs received in evidence. [You are to-consider the nature of the crossing, the obstructions in the shape of buildings to the line of vision, the speed at which the train approached the crossing, the fact that the gates were up, the conduct of Roberts and the character of his team, in deciding whether or not the decedent stopped at the proper place.] [10]</p> <p>Defendants’ points and answers were, among others, as follows :</p> <p>5. If by reason of buildings or other obstructions the track cannot be seen, before entering upon it, then the law requires-the person to go before his team, under ordinary circumstances,, to see whether the track is clear or not. Answer: That is true in some cases, but it is for you, gentlemen of the jury, to ascertain whether the decedent in this case could not have a proper view of the track without getting out of the wagon. With this explanation the point is affirmed. [1]</p> <p>7. That it being in evidence on the part of the plaintiff and undisputed, that when Hugh Roberts, the decedent, came within thirteen feet of the north bound track of the railroad he could see up the railroad a distance of about seven hundred feet in the direction in which the train which struck his wagon was coming, it was his duty to have there stopped, looked and listened, as he was driving at a slow rate, his team was a very quiet team and not afraid of cars at all, and at that point he would be twenty-seven feet from the center of the track on which he was struck, and it being also in evidence on the part of the plaintiff that the train was not coming at a rate of speed exceeding fifteen miles an hour, the train at that rate would necessarily be within the line of his vision and in plain sight before he attempted to cross their track, and as he failed to do this at the only place where stopping and looking and listening would be of any assistance to him he was guilty of contributory negligence in driving directly upon the track in plain view of the approaching train which met him as he reached the south bound track. Answer: As to the place where Roberts should have stopped, the character of the team he was driving, the rate of speed at which the train was running, the point at which the train would reach the line of decedent’s vision, and as to whether he was guilty of contributory negligence — these are all questions which I have submitted to you, gentlemen of the jury. It being a matter for the jury I refuse to affirm this point. [2]</p> <p>8. That the fact that the train causing the acoident was in plain sight of Hugh Roberts during the time he was passing over a distance of twenty-seven feet before he reached the south bound track, conclusively rebuts the presumption that he fulfilled the requirements of the law of stopping, looking and listening at the only place where he could get a view of the track and where stopping, looking and listening would be effective. Answer: This point is refused. It is a question for the jury. [8]</p> <p>9. That where a witness is called to testify to a material fact and the character for truth of such witness is successfully impeached, the jury would not be warranted in considering the testimony of such a witness, unless he was corroborated as to such material fact. Answer: This point is correct, but is not applicable, except where the character of the witness is successfully impeached; but the credibility of the witness is still for the jury. [4]</p> <p>10. That it being undisputed under the evidence that Hugh Roberts, the decedent, from a point twenty-seven feet from the center of the track, where he was struck, could have seen up the track in the direction of the approaching train for a distance of six or seven hundred feet, and drove slowly upon the south bound track, where he met the locomotive, which was in plain view during his passing over all this distance, he was guilty of contributory negligence, and the plaintiff cannot recover. Answer : I refuse to affirm this point. [5]</p> <p>11. That upon the whole evidence in this case the plaintiff is not entitled to recover. Answer: This point is refused. [6]</p> <p>The plaintiff presented, among others, this point:</p> <p>2. Safety gates which should be closed in case of danger, if standing open, are an invitation to the traveler on the highway to cross, and while this fact does not relieve him from the duty of exercising care, it is a fact for the consideration of the jury in determining whether he exercised care according to the circumstances. Answer: I affirm this point. [7]</p> <p>Verdict and judgment for plaintiff for $8,302.88. Defendants appealed.</p> <p>Errors assigned, among others, were (1-10) above instructions, quoting them.</p>

<p>Wills — Construction of — Trusts—Fee simple estate.</p> <p>Testator by his will directed as follows: “All the rest, residue and rer mainder of both my real and personal estate I give, devise and bequeath to my son H., to my daughter M., to my daughter E. and my son Matthew to be equally divided between them on the following conditions: The share going to my son H. and my daughters M. and E. shall be held each of them in trust for their children, and the share going to my son Matthew shall be held in trust by my son H. My son H. shall pay to my son Matthew the income from his share in quarterly payments each and every year during his natural life, and my son H. may in his discretion, in case my said son Matthew shall reform and abstain from the use of intoxicating drinks for two years, pay to him, my said son Matthew, from three thousand to five thousand dollars to enable him to engage in business.” By a codicil testator further directed as follows: “I desire to have it known and understood by all interested in my last will and testament, and I so will, that it is my intention that my children surviving me, to whom I have left property in trust for their children, shall have the free use and benefit during their lives of the income of such trust, without the necessity of accounting to their children for such income, and that they shall have power to sell and reinvest the principal at their discretion, in such manner as shall, in their judgment, best preserve the principal sum for their heirs. Nothing herein, however, is to affect the original provisions of my will concerning my youngest son, Matthew.” Held, that the will created an active trust for Matthew’s protection and benefit, limited in duration to the period of his natural life, without stripping him of authority to dispose of the corpus, by will or otherwise, to take effect at his death.</p> <p>A will must be so construed as to avoid partial intestacy unless the contrary is unavoidable.</p>

<p>Appeal, No. 116, July T., 1895, by plaintiff, from judgment of C. P. Berks Co., Feb. T., 1892, No. 51,- on verdict for defendants.</p> <p>Assumpsit upon a promissory note. Before Endlich, J.</p> <p>At the trial it appeared that the note sued upon was as follows :</p> <p>“ $8000. Reading, Pa., October 1,1890.</p> <p>“ One year after date we promise to pay to the order of Annetta K. Lerch, Three Thousand Dollars at lawful interest, without defalcation. Value received.</p> <p>“ American Plumbago Mining Co.,</p> <p>“ William P. Bard, Manager.”</p> <p>The evidence tended to show that William P. Bard was defendants’ manager with power to borrow money and sign promissory notes. Plaintiff gave to Bard $8,000 for investment. Subsequently Bard disappeared. The plaintiff went to his office and found a large envelope marked in Bard’s handwriting with her name, containing a bond and mortgage of Rehr & Fricker for $5,000, and the note in suit for $3,000. The court admitted evidence, under objection and exception, that William P. Bard had acted as plaintiff’s attorney upon the adjudication of her husband’s estate in the orphans’ court. (4) Other facts appear by the opinion of the Supreme Court. A former appeal is reported in 162 Pa. 307.</p> <p>The court charged as follows :</p> <p>By articles of agreement dated May 24, 1888, the defendants formed a copartnership, as the “ American Plumbago Mining Co.” They constituted one William P. Bard their manager. This William P. Bard was also a practicing attorney in Reading. He kept two accounts at the Farmers’ Bank, one as manager of the American Plumbago Mining Co., and the other as attorney. On October 4, 1890, the executor of the plaintiff’s deceased husband, by direction of the plaintiff, handed to William P. Bard two checks drawn to the order of the plaintiff, one for $5,000 and one for $3,000. Both of these checks were subsequently indorsed by the plaintiff and returned to Bard’s hands, the money to be invested by him for her. He invested $5,000 in certain securities which have been described to you in evidence, and which remained in his hands as plaintiff’s attorney. He also informed the plaintiff that he had invested the balance of -18,000, and subsequently paid to her quarterly the interest on the same.</p> <p>On November 4,1891, Bard disappeared, and some days later his body was found in the Schuylkill river. Subsequently to his disappearance, there was found in the vault of his office, in pigeon hole “ L,” a large envelope indorsed in Bard’s handwriting with the name of the plaintiff, containing, besides the securities in which the -15,000 I have already referred to were invested and some other papers belonging to her, the note in suit in this case. The defendants declining to pay the note, you are now called upon to declare whether they are liable to pay it or not.</p> <p>The evidence adduced in this trial has been explained and discussed to you by counsel in all its bearings, and I shall not attempt to rehearse it to you. It is your duty to remember it, and, upon every question that you will have to decide, to bear in mind the whole of it and to come to your conclusions in the light of the whole of it and according to the fair preponderance of it on the one side or the other. I shall confine myself to stating to you the legal rules which it is your duty to apply in your investigation. The first question that arises is, had Bard the power to make and deliver this note so as to bind the defendants to its payment ? “ One who employs an attorney to invest money is bound by the knowledge and acts of the attorney and therefore if the jury find that William P. Bard received this moneyas the plaintiff’s attorney to invest for her, then the plaintiff is bound by all the knowledge which William P. Bard had of his power or want of power to borrow money for the partnership and by his good or bad faith in the transaction.”</p> <p>The provision in the defendants’ articles of copartnership is as follows : “It is hereby further understood and agreed that no debts shall be contracted in the name of the American Plumago Mining Company unless the written consent of all the parties hereto be first had and obtained.</p> <p>“ It is hereby further understood and agreed that William P. Bard, of the city of Reading aforesaid, shall be the manager of said copartnership or company, and shall have the general management of the said business, and he shall be authorized to sign all notes, cheeks, drafts, and other obligations, and to execute all papers uuder seal or otherwise, necessary for conducting said business and for the purpose of carrying out the provisions of this agreement.”</p> <p>You must, however, consider this provision in connection with the evidence as to the practice of the parties under it. Courts will in general accept that construction of a contract which the parties to it themselves pnt upon it. The plaintiff contends, under the evidence upon this subject, that Bard had unlimited and general power to give notes in the partnership name, to borrow money on account of the partnership and to give notes in its name binding it for the repayment of such money. The defendants contend that while he had the right to order supplies and the like and in payment give notes of the company for their price, when it came to the question of borrowing money the consent of all the partners was required in order to enable him to do so. Now, gentlemen, you will remember what the evidence upon this point is and you will determine what it proves.</p> <p>“ The jury may find from the written agreement of copartnership together with the parties’ course of dealing thereunder, that it was the intent of the parties to invest William P. Bard, their manager, with power at his discretion to borrow money for the copartnership and to give the copartnership note therefor.” But, “ If the jury find that it was not the intent of the defendants to invest William P. Bard, their manager, with power at his discretion to borrow money for the partnership without consulting the defendants, and that this note was made without the knowledge or consent of the defendants, then the verdict must be for the defendants.” And, “Even though William P. Bard had originally possessed authority to borrow money for the partnership, without consulting the partners, yet if the jury believe that in the summer of 1890 George W. Bard, one of the partners, informed William P. Bard that he was not willing to be under any liability any longer for money borrowed for the firm and took up all the outstanding loans, then the defendants would not be liable for money borrowed afterwards from the plaintiff through William P. Bard as her attorney, without the knowledge of George W. Bard and in violation of his instructions.” So the question comes down, gentlemen, to this: Whether yon believe under the evidence that at the time of this transaction Bard had or had not the power to bind the «defendants by this note. If he didn’t, then that is an end of the case, and yonr verdict must be for the defendants. If, however, you conclude that William P. Bard had the power to bind •defendants by this note, then there will be a further question to be answered in the affirmative before the plaintiff can recover, viz, Was the note honestly delivered to her?</p> <p>“You understand, gentlemen, that a note is not binding until •or unless it is delivered. So long as a note remains in your hand undelivered it does not bind you. Delivery, however, need not be, in this case, an actual handing over of the note to the plaintiff. A delivery to her attorney, if proved, would be •sufficient. But, as you remember, William P. Bard was her attorney, and at the same time the manager of the defendants’ firm. Now, he might, in his capacity as manager of the defendants’ firm, deliver the note of the firm to himself in his capacity as •attorney for the plaintiff. Did he do so ? That is the question. You have heard where the note was found. There is probably no doubt upon this point that Bard put it -where it was found, but was his putting it there a delivery of the note ? That question becomes essentially a question of intent. What did Bard mean by putting the note where it was found ? Did he mean that by putting it there it should become the plaintiff’s property, and be a binding obligation in her hands against the defendants ? That, gentlemen, is the next question which you will have to determine.</p> <p>If the jury believe that William P. Bard signed the note in question, placed it among the plaintiff’s papers in an envelope indorsed with the plaintiff’s name, told her that he held the paper for her, and that she could come and get it when she pleased, and if they believe that it was the intention of William P. Bard that the said note should be regarded as having passed from his hands and into the custody of the plaintiff, it will be the duty of the jury to regard the note as having been duly delivered to the plaintiff with the same force and effect as if it had been physically placed in her hands.” But you must judge of what William P. Bard intended by what he did, and by all of what he did. You must, therefore, extend your view, gentlemen, to the whole evidence as to what Bard did in the course and as part of this transaction. “ If the jury believe that William P. Bard did not regard this note as delivered to the plaintiff when he placed it in his vault, but intended that it should be regarded as delivered to the plaintiff only after he should place the $3,000 in the treasury of the company, and that he never did place the $3,000 in the treasury of the company, then the transaction was incomplete and the jury must find for the defendants.”</p> <p>But there must have been not only a delivery, but there must have been an honest delivery; there must have been an honest intention on Bard’s part to apply the plaintiff’s money to the purposes of the defendants’ firm, and to give to plaintiff the obligation of the defendants’ firm, for it. The defendants’ manager and the plaintiff’s attorney were one and the same person. If he meant when he got the plaintiff’s money to cheat her, then he never meant to make the defendants liable for it. If at that time he meant to cheat the defendants, then, since the plaintiff is affected by the fraud of her agent, she cannot recover against them. In other words: As William P. Bard was the agent for both parties, if he acted in bad faith in the transaction toward either party, the plaintiff cannot recover. If the jury believe that William P. Bard did not make and deliver this note to the plaintiff in good faith, and that the note does not evidence a real loan of the plaintiff’s money made in good faith to the defendants for their use, the jury must find a verdict for the defendants.</p> <p>Now, gentlemen, what was the state of his mind upon this question at the time the note was put into plaintiff’s envelope and when, her money was received by him? That question again, gentlemen, you must decide in the light of all the evidence in the case that bears upon it and in the light of all Bard’s actions in connection with this transaction. To be sure, if the jury believe that William P. Bard in good faith borrowed the said sum of $3,000 for the defendants’ copartnership, that he signed the note in suit therefor, and placed the same in the plaintiff’s envelope which was indorsed with her name, and which contained her papers, that it was his intent that the note should be considered delivered to the plaintiff, and if they believe that under the terms of the agreement and the parties’ course of dealing thereunder, William P. Bard was empowered at his discretion to borrow money for the firm, and give the ■firm’s notes therefor, the verdict should be for the plaintiff, notwithstanding the defendants’ manager after getting the money may have misappropriated it. And if the jury believe that William P. Bard executed the note in question and on the 4th day of October, 1890, or at the time when he received the plaintiff’s money, placed the said note in the plaintiff’s envelope with her other papers, the presumption, is that he did so honestly and this presumption must stand until it is rebutted by testimony.</p> <p>But, gentlemen, if, in your opinion, the fair preponderance of the evidence in this case leads you to believe that Bard’s intention, at the time I have indicated, was dishonest, the presumption of honesty is- overcome.</p> <p>You understand, gentlemen, I am not stating these things to be facts; I am simply saying it is your right and duty to consider the evidence as to these matters as bearing upon the question of honesty of delivery and loan in this ease.</p> <p>Now, gentlemen, that is all I have to say to you. You will take this case and decide it as in right and justice belongs, with fairness towards both parties, without irrelevant sympathy for either. You are here, gentlemen, to administer justice, not benefits or charity.</p> <p>Defendant’s points and answers were among others as follows :</p> <p>6. In determining whether or not William P. Bard intended to borrow the plaintiff’s money in good faith for the defendants and whether he regarded the note as delivered to the plaintiff, the jury may consider the evidence, (1) that during the previous summer, George W. Bard had taken up all the outstanding loans of the partnership, and was not consulted as to the borrowing of any more for the partnership; (2) that William P. Bard made no entry of this loan in the note book of the defendants and did not draw the note on the blank form in the note book following the last note which he had drawn prior to October 1, 1890, but used a blank form apparently taken from the back of the book; (8) that William P. Bard did not inform the plaintiff that he was lending her money to the defendants, but informed her that he was lending it on a mortgage on a house in Fourth street; (4) that William P. Bard did not deposit the money in the defendants’ bank account, but deposited it in his attorney’s account, where he kept the moneys of his clients for investment and his own moneys, and subsequently used it for other purposes than the purposes of the firm; (5) that William P. Bard did not pay the plaintiff her interest from the funds of the firm but by cash and check drawn on his attorney account; (6) that when pressed by the plaintiff in November, 1891, for her papers, William P. Bard from time to time postponed his engagements to deliver her papers to her, and finally disappeared on the last day appointed for the purpose without doing •so and was not seen afterwards until his body was found in the 'Schuylkill river. Answer: Affirmed. [1, 2]</p> <p>3. Even though William P. Bard had originally possessed authority to borrow money for the partnership, without consulting the partners, yet if the jury believe that in the summer of 1890 George W. Bard, one of the partners, informed William P. Bard that he was not willing to be under any liability any longer for money borrowed for the firm and took up all the outstanding loans, then the defendants would not be liable for money borrowed afterwards from the plaintiff through William P. Bard as her attorney, without the knowledge of George W. Bard and in violation of his instructions. Answer: Affirmed. [3]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (l-3)above instructions, quoting them; (4) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 231, July T., 1895,, by defendant, from decree of C. P. Berks Co., Jan. T., 1895, No. 21, granting petition for sequestration of life estate.</p> <p>Petition by plaintiffs for tbe sequestration of the life estate-of tbe defendant under bis wife Christina Snyder to satisfy judgment in this suit.</p> <p>In addition to tbe portions of Christina Snyder’s will and codicil quoted in tbe opinion of tbe Supreme Court, tbe follow ing clause sets forth tbe gift to tbe husband:</p> <p>“ Fourth. I give, devise and bequeath unto my beloved husband, Daniel K. Snyder, the interest and income and the rents, issues and profits of the rest and residue of my estate, real, personal and mixed, to have, collect, use and enjoy the same for and during the term of his natural life, and free and discharged from and so as not to be in any way liable' for bis debts, now contracted or which he may hereafter contract, and from all judicial process to levy upon and attach the same for the payment thereof, and I do further direct that the said Daniel K. Snyder may take possession of the property hereby bequeathed and devised to him without being required to give security for its safe keeping, and shall also have the right in the exercise of his enjoyment of the real estate hereby devised to him, to lease the same for the purpose of the ore, sand, stone, &e., as he may see proper. And in case any of the securities should be paid off, or it should become proper to change any of them, I do hereby authorize the said Daniel K. Snyder to collect the same, but to re-invest the proceeds thereof in other safe securities, with the assent of the executors hereinafter named.”</p> <p>The court in an opinion by Endlich, J., granted the petition for the appointment of a sequestrator.</p> <p>Error assigned was above order.</p>

<p>Negligence — Proximate and remote cause.</p> <p>To sustain an action for damages for an injury caused by the alleged negligence of another, the injury must be the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer, and likely to flow from his act.</p> <p>Negligence — Township bridge — Proximate and remote cause — Frightened horse.</p> <p>The mere fact that a horse that has passed safely over and a very few feet beyond a dangerous and negligently guarded township bridge, backs on and off it without fault of the driver, does not of itself warrant the court in declaring as matter of law that the negligence of the township was the remote cause of the injury, as the negligence may have been the proximate cause.</p> <p>In view of the fact that' the ordinary horse will at times take fright, and that his movements when frightened are wholly unreasonable and unforeseeable, it is for the jury to determine what provision shall reasonably be made for the safety of travelers on a bridge. The size of the stream bridged, the elevation above the water, the width of the bridge and the surroundings where located are all to be considered in determining whether theré was negligence, and whether the consequences of a horse becoming frightened and backing off the bridge might and ought to have been foreseen.</p> <p>Highways — Duties of township — Untrained or vicious animals.</p> <p>It is the duty of a township to provide a reasonably safe highway for ordinary travel by the ordinary horse, but there is no duty on the township to provide for travel by exceptionally vicious, untrained or unmanageable animals.</p> <p>Negligence — Contributory negligence — Bridge — Proximate and remote cause — Propensity of horse to take fright — Question for jury.</p> <p>In an action against a township for the death of plaintiff’s husband it appeared that on the night of the accident the deceased drove over a township bridge at a trot, holding the reins in his right hand and a lighted lantern in his left hand slightly above the dasher. When the hind wheels of his wagon were about six feet beyond the bridge he extended his left hand with the lantern over the side of the wagon and immediately the horse stopped and backed upon and over the unguarded side of the bridge. The bridge was nineteen feet wide, twenty-six feet long and four feet six inches above the water. It was unprovided with guard rails. There was evidence that the horse had an aggravated propensity to take fright, and that this was known to the deceased. Held, that the case was for the jury.</p>

<p>Appeal, No. 237, Oct. T., 1895, by defendants, from judgment of O. P. Clarion Co., Nov. T., 1894, No. 308, on verdict for plaintiffs.</p> <p>Issue to determine whether or not a will had been revoked by the testator. Before Clabk, P. J.</p> <p>At the trial it appeared that the issue was framed as follows:</p> <p>The plaintiffs’ averment, viz: “ That the last will and testament of Lot Gardner, deceased, executed by him on the 6th day of November, 1889, was not canceled or destroyed by him animo revocandi ” shall stand as a declaration, and the averment of the defendants, to wit: “ That the said will was canceled or destroyed by said Lot Gardner animo revocandi,” shall stand as a plea, and the case shall be tried on said declaration and plea without other pleadings.</p> <p>The facts appear by the charge of the court which was as follows:</p> <p>We have to begin with the fact that the last will and testament of the testator was made and duly executed by him on the 6th day of November, 1889; that Lot Gardner died on the morning of the 20th day of November, 1889, about fourteen days after the making of the will; that the said will cannot be found and that it has been lost, concealed, canceled or destroyed. The making and execution of the will has been adjudicated by the orphans’ court; the loss, concealment, cancellation, or destruction of the will is an admitted fact by the declaration and plea; therefore the principal facts in dispute are whether the will was canceled or destroyed by the testator animo revoeandi, that is that Lot Gardner canceled or destroyed the will with the intent to revoke it, or whether the will was concealed or destroyed by some person or persons other than the testator, Lot Gardner.</p> <p>[It is a well settled principle of law that where a will is made and the testator retains the custody of it or had ready access to it, the presumption arises if the will cannot be found after his death that he destroyed it with the intention of revoking it. In such a case the presumption is a natural one, or, in other words, it is a presumption of law; where a will is retained in the possession of the testator and after his death it cannot be found, the law presumes, in the absence of proof to the contrary, that it was done by the testator himself and with intent to revoke it. Foster’s Appeal, 87 Pa. 67, fully sustains our view of the law under the latter state of facts. To the same effect is Stewart’s Estate, 149 Pa. 111.</p> <p>But all presumptions of this kind may be rebutted by proof of the actual facts. The burden is on the plaintiffs in this case to overcome the presumption of revocation which arises out of the fact that the will of the testator could not be found at or after his death, and in order to rebut and overcome such presumption of revocation it is incumbent upon them to produce sufficient evidence to satisfy you that the will of the testator was not canceled or destroyed by him animo revoeandi; that is, that term means, gentlemen, with intent to revoke it; or that the will was destroyed or concealed by some other one than the testator.] [9] [This makes not only the testator’s character, condition, acts, and declarations, but tbe conduct and interest of those who were around him from and after the date of the making of his will legitimate subjects of inquiry. Each of these lines of proof is important in strengthening the other and both together seem necessary to constitute full proof: Youndt v. Youndt, 8 Grant, 140.</p> <p>The contention of plaintiffs is that the concealment or destruction of this will was done or procured by the fraud of some third person. Fraud must be affirmatively shown, it will not be presumed; it is one thing to charge a'fraud and another thing to prove it to the satisfaction of a jury. Though fraud is not to be presumed it may be inferred from facts clearly proved leading to that conclusion, but it is rarely capable of proof in a direct way; it is the chain of less direct circumstances all pointing the same way, until there seems no other reasonable mode of reconciling them, that must usually be depended on in reaching a conclusion: Eichenlaub v. Hall, 163 Pa. 201.</p> <p>As bearing upon the issue of revocation or no revocation evidence is admissible as to the firm and positive character and tenacity of purpose of the testator, the deliberation with which the will was made, the short period of time between the making of the will and the time when the key of the trunk passed out of his possession, his physical weakness in that short interval, his expressions of purpose after the will was made consistent with its provisions and inconsistent with an intention to die intestate, his repeatedly expressed wish that Summerville, who had drawn his will, would come and make changes in it or complete it, or make changes in his business or complete his unfinished business, — you will recollect, there is some difference between the witnesses as to what those words were, — together with the fact that he had a large sum undisposed of by the will;' the absence of any evidence of any change in the circumstances of any' of his relatives after the will was made, making it probable that he would so radically change his mind’as to destroy his will, together with the acts or suspicious conduct of those who surrounded him and whose interests would be subserved by intestacy; and as to such evidence it is your duty to carefully examine it and give it a fair and reasonable construction or inference in rebutting the presumption of revocation arising from nonproduction of the will.] [6] [But the defendants contend that they have offered sufficient evidence to overcome all of the evidence of plaintiffs going to rebut the presumption of revocation of the will, and further allege they have offered direct and positive evidence of those who surrounded the testator from the time the will was made on up to his death and who remained there after his death, who all deny having seen the will or that they destroyed it; ] [8] so that it will be necessary for you to consider the evidence on both sides of this case.</p> <p>Understand, gentlemen of the jury, that from the very pleadings in this case the presumption of law is that this will was destroyed with the intent to revoke it. As we said to you before, this presumption is a natural one and it remains until it is dispelled by proof to the contrary; and when we say “ by proof to the contrary,” we mean that you shall take into consideration all of the evidence, not only that offered on part of the plaintiffs but that offered on part of the defendants, bearing upon the same subject-matter.</p> <p>We have referred to the circumstantial evidence. Circumstances to which we referred and of which evidence has been offered, may be sufficient for you to infer that the testator did not destroy this will. If anybody other than Lot Gardner destroyed this will, gentlemen, unless they destroyed it by his directions (and we do not know of any evidence of that character), why of course it would not revoke it. The last will and testament of a man is a sacred instrument; every man has a right to make his will to suit himself, and if he executes it in a legal form and manner, it has a right to stand, no court, no jury has a right to make a new will for him; but you will understand, gentlemen, that you are not to make a new will in this case; the will has been adjudicated, but you are to decide whether this will shall stand or fall, because if it was destroyed animo revocandi, that ends the will, that is if it was destroyed, we say, by the testator; if it was destroyed by some other person, through trick or fraud, the will should stand and it would not be a revocation of it, it would not be a destruction by the testator.</p> <p>Now how is this, gentlemen ? [You have heard the evidence upon the part of the plaintiffs; it is too voluminous for us to go over; you have heard the evidence of ’Squire Summerville as to the making of this -will; the counsel for defendants called your attention to the purpose of the cross-examination of the ’squire to affect his credibility; you will recollect his testimony and that of the other witnesses bearing upon the character of the testator; some of them say he was a firm resolute man, that it was not easy to change his mind; you will also recollect the reasons given by Lot Gardner, as testified to by Summerville, as to why he was making his will in the manner he did, — why he cut off certain of his relatives, — the number of schedules that had been made, and increasing the amount to some of them and others not increasing the amount as stated in the first schedule. Then the testimony in relation to how much he would dispose of, $18,000, by the will, and that the remainder of his money or bank accounts, notes, etc., whatever it might be, being the difference between $18,000 and $27,400, as they had counted up at that time, he would dispose of personally, himself. You will recollect as to what Summerville testifies, that Mr. Gardner would get to talking about some of those poor relatives and then he would say, “Well, it will not do, I can’t give them all, it will not do.” After making out several schedules, we do not remember whether four or five, or perhaps it was six, Summerville testified to, we believe that was the way, why they got a schedule made out; and you will remember how that schedule, upwards of a month after the death of Lot Gardner, was discovered, what was communicated and when it was communicated to a party by the name of Craig.] [7]</p> <p>Now, gentlemen, you have the theory of the plaintiffs in this case and the theory of the defendants; you have heard the counsel sum up on both sides and they have gone over the evidence pretty fully; you are the judges of this evidence, it is for you; but undoubtedly there are contradictory statements and it is for you to reconcile those statements. No witness has been directly impeached that we recollect of; the credibility of the witnesses is entirely for you and you will consider the interest or want of interest of the different parties in this case, their manner of testifying on the witness stand, their candor or want of it. As we stated to you before, you will have to reconcile these contradictions and you must be reasonable in coming to a conclusion as to -whether a witness is testifying to the truth or not; you must take the whole of his testimony; it is not fair to single out a part of a sentence or a clause and to say that he has been successfully contradicted when if you would take the whole of his testimony it would really tell a very different story. Gentlemen, you take this case, consider all of the evidence carefully and if you are satisfied that there is a preponderance of the evidence in favor of the plaintiffs, your verdict should be, “We find for the plaintiffs; ” if you are satisfied that the preponderance of the evidence is for the defendants, your verdict should be, “We find for the defendants.”</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>Errors assigned, among others, were (6-9) above instructions, quoting them.</p>

<p>Equity — Injunction to restrain commission of crime.</p> <p>A bill in equity having for its sole purpose an injunction against crime or misdemeanor does not lie; but equity will interfere if the alleged criminal acts go further and operate to the destruction, or diminution of value, of property.</p> <p>Clubs — Member of club — Equity—Corporation—Injunction.</p> <p>A member of an incorporated club has a standing in equity for an injunction to restrain the club from carrying out its declared purpose of committing an act.which, if found to be criminal, will imperil the charter of the club.</p> <p>Liquor laws — Act of May 13, 1887 — Strict construction.</p> <p>The act of May 13, 1887, P. L. 108, entitled “An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors or any admixture thereof,” being penal in character, must be strictly construed, and cannot be extended beyond its letter.</p> <p>Incorporated clubs — Sale of liquor incidental — Act of May 13, 1887.</p> <p>If an incorporated club is organized and conducted in good faith with a limited and selected membership really owning its property in common, and formed for social, literary or other purposes to which the furnishing of liquors to its members would be merely incidental, the furnishing of liquors to members is not a sale within the liquor license act of May 13, 1887.</p> <p>Clubs — Organized to supply drinks — Buying tickets or chips — Legislative intent — Act of May 13, 1887.</p> <p>If the object of an organized club is merely to provide members with a convenient method of obtaining a drink whenever they desire, or if the form of membership is no more than a pretense so that any person without discrimination can procure liquor by signing his name in a book, or buying a ticket or a chip, thus enabling the buyer to conduct an illicit traffic, such an organization falls within the terms of the liquor license act.</p> <p>In view of the fact that at the time the liquor license act was passed it was known to every one that for a long period of years clubs had openly and notoriously furnished liquor to their members, the implication is that if the legislature had intended to prohibit the practice, it would have done so in express terms in the act of May 13, 1887.</p> <p>Incorporated clubs for social enjoyment — Purchase of liquor by stewards for distribution among members who pay for it — Act of May 13, 1887— Equity — Injunction.</p> <p>The declared purpose of an incorporated club was the social enjoyment of its members by friendly intercourse. It owned a well appointed club house valued with the grounds at over $20,000. The membership was limited to one hundred residents of the city in which the club house was situated, or resident not exceeding one mile beyond, and all members were required to be over twenty-one years of age. The governing committee of the club passed this resolution: “ That the steward be directed to purchase a stock of spirituous and malt liquors, etc., and furnish the same to the members of this club, and receive pay therefor from them only, and turn over the moneys so received to the treasurer of said club, which money shall be again used to replenish the liquors, etc., so furnished to its members, and in the purchasing of eatables, cigars, etc., and also for the defraying of the expenses connected therewith.” One of the members filed a bill in equity to restrain the steward from carrying out the resolution. It was admitted in the- bill that the club received no profit on the liguors furnished. Held, (1) that the complainant in the bill had a standing in equity; (2) that the furnishing of liquor by the club to its members was not in violation of the act of May 18,1887; (8) that the bill should be dismissed.</p> <p>The fact that the result of permitting clubs to furnish liquor to their members would be to deprive licensed hotels of patronage to which they are impliedly entitled by payment of heavy license fees, is a subject for the consideration of the legislature, and not of the courts.</p>

<p>Appeal, No. 321, Jan. T., 1895, by plaintiff, from judgment of C. P. Lycoming Co., March T.r 1894, No. 536, onverdictfor defendant.</p> <p>Appeal from alderman.</p> <p>Assumpsit to recover money alleged to have been usuriously retained. Before Metzger, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 398, Jan. T., 1895, by defendant, from judgment of C. P. Lycoming Co., June T., 1894, No. 400, on verdict for plaintiff. Assumpsit on a policy of fire insurance.

Appeal, No. 195, Jan. T., 1896, by-plaintiff, from judgment of C. P. Lycoming Co., Sept. T., 1894, No. 333, on verdict for defendants. Ejectment for a lot of ground in Montoursville. Before Metzger, P. J. At the trial it appeared that Elizabeth Horlacher owned the land in dispute, and had mortgaged it to raise $800 which she loaned to her son John H. Horlacher, taking from him his note for $800.

<p>Railroads — Eminent domain — Damages—Taking personal property— Profits of business — Constitutional law — Evidence.</p> <p>The constitution of 1871 made no change in the character of the property for which damages could be recovered when taken for public use. It merely enlarged the right of recovery from taking, to injury or taking. There can be no recovery for an actual or supposed loss of profits in a business carried on upon the premises, nor for taking personal property, unless it is taken as material used in construction. A common law action will lie for any trespass to personal property by taking or injuring it, but no damages can be recovered for it in condemnation proceedings.</p> <p>In condemnation proceedings instituted by a railroad company, the pleadings were framed so as to raise an issue only as to the value of the land taken. It appeared that no personal property was taken, and that the owner had ample time to remove his goods. The owner offered to show that he was carrying on the business of tailoring on the premises, that he had a large amount of merchandise purchased for his trade at this place, that by reason of the location of the railroad on his premises he could no longer carry on his trade there. He also offered to show the difference between the market value of his merchandise and fabrics in the store and their actual value if removed to some other place and applied to the same or some other use. Held, that there was no error in rejecting these offers of evidence; the removal of personal property cannot be considered as an item of damages in the taking of real estate.</p> <p>Eminent domain — Land damages — Interest.</p> <p>In condemnation proceedings it is not error for the court to charge the jury: “ You are not entitled to give interest upon the damages, but you will remember that this property is taken as of May 14, 1891, and in estimating the amount of your verdict, if you find that there has been additional damage because of the lapse of time, you will add it to the amount of your verdict; but this is entirely a question for you.” Klages v. R. R.. 160 Pa. 886, followed.</p> <p>Eminent domain — Damages—Evidence as to sale of other properties in the neighborhood.</p> <p>The market value as a measure of damages for land taken or injured by a railroad company cannot be ascertained by evidence of particular sales of other properties alleged to be situated similarly to the one in question, as such evidence would introduce collateral issues. Such evidence may, however, be brought out by the eross-examin ation of witnesses.</p>

<p>Landlord and tenant — Insurance—Agreement to rebuild — Eviction—Rescission of lease.</p> <p>Where the tenant of a building destroyed by fire agrees that his landlord may enter and rebuild and that such rebuilding shall not constitute an eviction or rescission of the lease, such agreement is neither an eviction nor a rescission of the lease, and it will not, in the absence of fraud, relieve an insurance company which has undertaken to indemnify the tenant for any loss by reason of the payment of rent while the premises are untenantable: Heller v. Royal Ins. Co., 151 Pa. 101, followed.</p> <p>In such a case money collected by the landlord from an insurance company which liad insured him against the loss of rent, and applied by the landlord to the rent in relief of the tenant, will not affect the tenant’s contract right against the insurance company which had undertaken to indemnify him for loss by reason of the payment of rent while the premises were untenantable.</p>

<p>Appeal, No. 32, Jan. T., 1896, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1889, No. 33, reducing the amount of award of referee.</p> <p>Exceptions to report of referee.</p> <p>The suit was to recover $21,911.23 for coal sold defendants from March, 1883, to April, 1884, with interest, and $3,500, the amount of a promissory note of the Glendower Iron Works Company given in 1888, and indorsed by defendants. The case was referred to Mayer Sulzberger, Esq., as referee, under the act of June 16, 1836, P. L. 717, who awarded judgment against the defendants in the sum of $18,106.26.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in reducing amount of award and not confirming report of referee.</p>

<p>Appeal, No. 196, July T., 1895, by defendants, from judgment of C. P. No. 4, Phila. Co., March T., 1889, No. 82, on referee’s report.</p> <p>Exceptions to referee’s report.</p> <p>The case was referred to Mayor Sulzberger, Esq., who reported as follows:</p> <p>In this case the plaintiff instituted an action of assumpsit against the defendants, and, by the statement filed, claimed to be the holder of a promissory note for $5,000 made by Creveling, Miles & Co., Limited, A. Creveling, chairman, George W. Miles, manager, dated Danville, Pa., February 25, 1885, payable three months after its date to the order of A. H. Reynolds, stating that as collateral therefor there had been deposited six bonds of $1,000 each, Nos. 4 to 9 inclusive, and one of $500, Creveling, Miles & Co., Limited, with power of sale.</p> <p>The note was indorsed by A. H. Reynolds, and credits were indorsed upon it to the amount of $1,180 as of the following dates : November 14, 1885, $230; August 17,1886, $100; October 30, 1886, $100; December 2,1886, $100; April 19,1887, $650.</p> <p>The amount the plaintiff sought to recover was the balance due, $3,820, with interest.</p> <p>The defendant, Henry Levis, filed an affidavit of defense, wherein he set out in substance that the defendants were not general partners; that on March 29, 1880, they had formed a partnership limited association under the statutes; had capitalized the same at $99,000, $75,000 of which capital was subscribed in real estate as set forth in the certificate of incorporation, which was duly recorded at Philadelphia in Partnership Limited Book No. 1, page 350, etc., and he further averred that he had fully complied with the requirements of said act of assembly of Pennsylvania and its supplements and that said partnership limited association was dissolved by operation of law prior to the bringing of the suit. He further averred that the note in question was not given in due course of business of Creveling, Miles & Co., Limited, and was in excess of the amount authorized by law; that it is illegal and void and was not in the form required by law and was given without his knowledge or •consent, in fraud of his right, of which the plaintiff had due notice; and that if A. Creveling did make such note it was not by virtue of his position as chairman, of which the plaintiff had due notice. As an additional averment he set forth that he believed and expected to prove that the note was given to the plaintiff by collusion of its officers with A. Creveling and A. H. Reynolds in fraud of the defendant’s rights and in fraud of the rights of Creveling, Miles & Co., Limited, and was without •consideration.</p> <p>Two main questions are to be considered: First, are the defendants liable as general partners ? Second, if they are, what amounts are the plaintiffs respectively entitled to recover? Are the defendants liable as general partners ? On March 29, 1880, the defendants associated themselves together to form a partnership limited, under the act of June, 1874, and its supplements. The articles were written, acknowledged and recorded, and if the parties thereto did in all respects conform to' the law they are entitled to protection against general liability. By the terms of those articles, a copy of which is hereto appended, marked “ Exhibit S,” the amount of the capital of the partnership association was stated at $99,000, consisting, first, ■of certain real estate described in the schedule annexed to the •articles at a valuation of $75,000, fixed upon it and approved by all the members subscribing to the capital of said association, of which Alfred Creveling is said to have contributed $25,000, George W. Miles $25,000 and Henry Levis $25,000. The capital consisted further, according to the articles, of the sum of $24,000 in cash, of which Alfred Creveling had subscribed $8,000, George W. Miles had subscribed $8,000 and Henry Levis had subscribed $8,000, fifty percentum of which cash subscription “shall be paid to the treasurer of the said association on or before the first day of June, 1880, and the balance at such times and in such installments as may be called for by the managers of said partnership association limited.” The schedule annexed to these articles of association is as follows:</p> <p>“ Being a description of the real estate mentioned and referred to and forming a part of the foregoing certificate and statement of Creveling, Miles & Co., Limited, contributed to the capital stock thereof at a valuation of $75,000, in equal portions, by tbe members thereof, to wit: All that certain tract of land and the furnace thereon erected, situate in Point Township, Northumberland County, State of Pennsylvania, containing one hundred and fifty-four acres and one hundred and forty-two perches, strict measure.</p> <p>“We, the undersigned, do hereby certify and declare that the foregoing schedule is a true and correct description of the real estate contributed by us to the association of Creveling, Miles & Co., Limited, at a valuation of $75,000, approved by us, who are all the members subscribing to the capital of said association.</p> <p>“ Witness our hands this twenty-ninth day of March, in the year of our Lord 1880.</p> <p>(Signed) “Alfred Creveling,</p> <p>’ “ Henry Levis,</p> <p>“ George W. Miles.”</p> <p>As to tins item of real estate contributed in equal proportions by the members of the firm and agreed upon by them to be appraised at $75,000, the circumstances were as follows:</p> <p>About four or five months prior to the formation of the partnership limited, Creveling, Miles and Levis became general partners under the name of Creveling, Miles & Co. What .amount, if any, they contributed to the formation of the general partnership does not appear. At all events, they started it by purchasing from Isaac Watermann the Chulaski Furnace for $20,000, which they paid 'for by a purchase money mortgage to be paid off in quarterly installments of $1,250. This conveyance was made on October 11,1879, and the business began. It was •continued as a general partnership until March 29,1880, when, by the articles, it was transformed into a partnership limited. The exact state of the accounts on March 29 does not appear, 'but there is an account of March 81, only two days thereafter, which for all practical purposes may be taken to have been the true state of affairs on March 29. From this account it appears that the firm was then indebted in the sum of $23,930.07, and that the value of its assets was $45,750.95, leaving a book value •of $21,820.88 as the excess of assets over liabilities. In making up this statement the Chulaski Furnace property was carried at $20,366.25, and the balance due on the mortgage therefor was stated at $18,750. The chief item of the net assets was a charge against the Glendower IronWorks of $15,469.42. This concern was a corporation composed of the same parties who-took and handled all the product of the firm. Whether the claim against the Glendower Iron Works was based upon a full settlement of accounts between the parties to that date is not clear. The Glendower Iron Works’ account as of the same date, on its own books, made the claim $14,831.91, and from the testimony in the case the relations between the two concerns appear to have been so intimate that there is room for the thought that their accounts may not at all times have been perfectly clear and exact. This, in view of the fact that the members of the partnership association were also members of the corporation would not be surprising. When the partnership association was organized no change was made in the running of the business, and the old books of the general partnership were used as theretofore. An examination of the ledger of the firm shows the following curious facts: Neither of the partners received any credit for capital put into the partnership, and the presumption is that they invested none. Greveling’s account has as its first entry a charge to it of cash withdrawn on June 30,1880, of $20.00, and as its first credit it has four items dated December 31,1880, nine months after the formation of the partnership limited, “by furnace property and furnace account,” $42,217.99. This is carried down on January 1, 1881, as a balance to the credit of A. Creveling of $42,197.99. On February 28, 1881, he is charged with profit and loss of $531.33, and on December 31, 1881, there are two series of entries, one a debit series and the other a credit series, in which, on the debit side, Creveling has charged back to him the $42,217.99 which were credited to him at the beginning of the year, and has credited back to him the $531.33 which were charged to him on February 28, 1881; so that on December 31, 1881, all the entries up to that time made canceled each other, and his account stood as if it had been left blank. Thereupon, on the same day, a new start is made by crediting him on December 31, 1881, furnace account, $25,000; and a charge is made of capital stock, $33,000, leaving due by him on January 1, 1882, $8,000, being the amount of cash capital to be contributed.</p> <p>The accounts of George W. Miles and Henry Levis present substantially tbe same state of facts, except that after January, 1882, there are additional entries in the account of Henry Levis. These were all made on July 17, 1885. On that date Henry Levis was credited with cash, $8,831.33, and was charged with interest, $1,231.33, leaving a balance due by him of $400.</p> <p>Two other noteworthy items appear in the profit and loss account; one on February 28, 1881, shows a division of $15,000 among the partners, $5,000 to each; and another division on July 30, 1881, of $6,250, presumably $2,083.33 to each.</p> <p>In considering whether, under these circumstances, the defendants have brought themselves within the protection of the act, it must not be forgotten that at the common law persons who procure goods on credit, or incur other obligations, are bound to pay for them out of any estate they have or may acquire.</p> <p>The limitation of this liability to a special fund is a privilege that may lawfully be obtained by virtue of the formation of a corporation, a special partnership or a partnership limited. The price demanded by the law for the acquisition of tins privilege is, however, a strict compliance with the requisitions of the acts of assembly: Maloney v. Bruce, 94 Pa. 252.</p> <p>In the case before us such a strict compliance is denied in the following respects: (1) It is contended that this was a mere continuation of a prior general partnership; (2) that the certificate is not in proper form; (3) that the property is misdescribed therein; (4) that the property is not stated to be subject to a mortgage; (5) that the valuation of the real estate was so grossly excessive as to be fraudulent; (6) that the cash was never paid in; (7) that there was no subscription list book.</p> <p>As to the first contention the referee finds as a fact that the business of the partnership limited was a mere continuation of that of the prior general partnership; but while this is so, it does not appear to him that that fact alone has any legal significance. A general partnership may by complying with the proper forms convert itself into a partnership limited. The mere fact that the books of the old firm continued to be used would not seem to be fatal, since there is no provision in the act requiring the use of new books; nor, indeed, is the use of any book whatever specifically commanded, except the subscription list book. The use of the old books, at all events, seems due merely to incompetency or injudicious economy, and not to any design to evade the statute or commit fraud.</p> <p>The second point, that the certificate is not in proper form, is more important. By the act of 1874 it is not necessary for a valid organization that the entire subscribed capital should be paid into the treasury before an association can begin business, but the statement must show when, and in what amounts, the subscriptions are to be paid; and the subscription list book is evidently provided in order that it may thereafter show the payment, or the failure to pay the installments falling due after the recording of the statement. The purpose of the act is that the capital shall alone be liable for the debts of the association, whence the importance of precisely stating in the articles what it is, and when and how it is to be contributed. Unfortunately for the defendants in this case, their statement that the remainder of the capital stock of the partnership association, amounting to $24,000, fifty per centum of which should be paid on or before June 1, 1880, and the balance at such times and in such installments as might be called for by the managers of the association, does not answer the requirements of the statute. The statute does not allow the capital to be payable upon a mere contingency, least of all on a contingency which cannot happen except at the will of the partners. The articles of association, as was remarked by Mr. Justice Williams in Hill v. Stetler, 127 Pa. 161, are not in the form of a contract between the partners, but of a certificate for the information of the public. If at the time of the making of the articles the members had agreed when the last fifty per cent should be paid, it was their duty to impart this information to the public. If, on the other hand, they had not agreed, then there was no time fixed for the payment of that balance, and the failure to fix such a time was a fatal defect which rendered the articles ineffective to create a partnership limited under the act. This rule will seem harsh and technical only to him who loses sight of the basis of the act of 1874, namely, the capital must be contributed for the protection of the creditors. By this contribution assets are received upon which the business may be conducted. If, however, for the actual contribution of the assets at the formation of the partnership or at a specified time thereafter, the partners substitute an indefinite undertaking to pay when they will, the business is hampered, its chances of success reduced and a vague promise is made to do duty for the substantial capital contemplated by the statute. How this will work the case in hand illustrates. Two of the three partners are confessed^ insolvent, and a call now made would be practically fruitless.</p> <p>As to the third and fourth points : The referee is of opinion that it was the duty of the defendants to describe exactly the property contributed to the firm. The contributed property was in effect an equity of redemption in the Chulaski Furnace property, which might have been set forth and described in any one of several forms. The mere description of the real estate was accurate enough if the statement had also been made that it was subject to a purchase money mortgage of $20,000, of which $1,250 had been paid. The failure to do this leaves even the valuation doubtful, for it may be thought on the one hand that the whole property is worth $75,000, considered clear of incumbrances; or, on the other hand, that the equity of redemption is worth $75,000. If the valuation of the whole property were $75,000, the effect of it in this case would be to render the whole statement false, because as the $75,000 would be subject to a deduction of $18,750, it would follow that the net value of the property as put in the firm was but $56,250 ; and as the additional capital subscribed was but $24,000, the whole capital would be $80,250, instead of $99,000, as set forth by the articles. Such vagueness and inaccuracy violate the purpose of the act, and the referee is of the opinion that in this respect also the certificate is ineffective to create a valid partnership limited under it. Indeed, it may well be doubted whether mortgaged property can be made part of the capital contributed to such an association. There is no power conferred to appiaise the balance of value after the payment of any indebtedness upon the property contributed, and it is with wise intent that the legislature has omitted to confer such power. The debt is a fixed quantity. Opinions of value are shifting, and there is every motive in the associates to enhance their standing in the community and their power to gain credit by placing the valuation of the property contributed as high as possible. In a case like that before us, where the property contributed is owned equally by all the contributors, there is no loss or injury to any of them by appraising the property at many times its value. If the stab-ate be interpreted to mean that mortgaged property can be so contributed, then property mortgaged to its full value may be made to appear as valuable capital by simply doubling or trebling the valuation, and deducting from the same the amount of the fixed quantity, to wit, the debt. Thus worthless assets may be made to figure as an imposing capital, and that without any conscious fraud on the part of the associates, but merely by their natural action under the stimulus of hope and ambition. To impute to the legislature so unwise an intention without plain and specific words constraining us, would be contrary to the plainest principles of interpretation.</p> <p>As to the fifth point: The lack of certainty in the valuation renders it difficult to discuss this point. In order to be able to say that a valuation is grossly excessive we must first know what such valuation is ; but, as has been shown, there is a doubt left on this subject. The object of the law is, that where the capital of a partnership is contributed in assets other than money, a true valuation of such assets should be made. It is inconceivable that any law should contemplate an appraisement or any other proceeding not true. Where the truth, however, is not ascertainable by a fixed rule or standard and must remain a matter of opinion, it is always an embarrassing question to determine whether the opinion is given honestly and carefully, or dishonestly and negligently. The law having thrown upon the partners the duty of making the appraisement, the presumption is that they made it without fraud, and if any is alleged it must be proved. The evidence in this case does not satisfy the referee that there was any fraud in the appraisement. The statute appears to have been drawn with the thought that the conflicting interests of the partners would induce such a careful supervision of the price at which goods are put in by the several partners that the appraisement by the partners would be a sufficient protection to the public. The legislative mind does not seem to have considered that a contingency could happen such as has actually happened in this case, namely, that the partners being tenants in common of one piece of property, and being equal partners in the new concern, could without danger to their several interests appraise the property so held at many times its real value. There would seem to be room for an amendment to the statute providing for the ascertainment of the value of such assets by appraisers appointed by the courts.</p> <p>As to the sixth point, that the cash was never paid in, the referee does not see that this in any manner affects the legality of the formation of the partnership.</p> <p>As to the seventh point, that there was no subscription list book: This is a matter of very grave importance. The statute itself is imperative that such a subscription list book shall be kept and shall be open to the inspection of creditors and members of the association at all reasonable times. The obvious reason for this enactment is, that where a portion of the capital remains unpaid at the time of the formation of the partnership limited, persons interested have a right to know how much is unpaid, and when the time for the payment thereof has arrived. Defaults in such payment can thus become known and their effects warded off or minimized by prompt action or refusal to give further credit. If such a book ever existed the fact would naturally be capable of proof, but the evidence in this case is entirely too vague and insufficient to warrant the conclusion that there was such a book. The rule attempted to be set up by the defendant, namely, that it is the duly of a creditor to prove affirmatively that the book did not exist, seems to be unwarranted. The defendants are not in this respect charged with fraud. The question is : Have they complied with the statute ? As they are unable to show the book or to declare with any degree of positiveness that it ever existed, the referee finds that the partnership limited kept no subscription list book as required by the act of assembly. Under ah the circumstances it appears to the referee that the defendant Levis is not justified in the contention that it is a hardship as to him specially so to rule as to charge him with liability. He was or ought to have been aware of everything that was done or omitted to be done. He was a member of the firm of Creveling, Miles & Co. before the partnership limited was formed; he assisted in the formation of the partnership limited and became and remained a member of it; and though perhaps only a nominal shareholder in the Glen-dower Iron Works, he was its treasurer. The peculiar nature of the business could not have been unknown to him. Starting apparently without capital about October, 1879, Creveling, Miles & Co., on March 29, 1880, without the investment of another dollar (excepting only the profits, earned during these few months), became a partnership limited with a capital of $99,000, of which only $24,000 remained to be paid up, one half on June 1, 1880, and the other half at the call of the managers. No payment was made on June 1, 1880, and no call was ever made, but each partner drew out of this business, apparently as profits on February 28, 1881, 15,000, and on July 30, 1881, $2,083.33, an aggregate of $21,250. From the best evidence accessible the concern practically ceased business some time in 1884, and on July 17, 1885, the board held a meeting in Philadelphia at Mr. Levis’ office, at which, according to the testimony, Mr. Levis produced money to the amount of $8,831.33, and handed it over to the treasurer of the concern, who at the same meeting handed it back to him. The result of this transaction is thus noted in Henry Levis’ account on the books of Creveling, Miles & Co. He is credited with $8,831.33, and is debited with interest on his unpaid installment of $8,000, $1,231.33, in all, $9,231.33 leaving a balance of unpaid capital due by him of $400. The cash $8,831.33 is disposed of on the books by two entries:</p> <p>Bills payable.......$8,373 50</p> <p>Interest ...... 421 29</p> <p>$8,794 79</p> <p>The disposition of the small balance of $36.54 is unexplained. The item of bills payable thus paid to Henry Levis was an overdue note of the partnership negotiated by Henry Levis & Co. in April, 1884.</p> <p>From all the circumstances the referee is bound to believe and to find that on July 17, 1885, the firm of Creveling, Miles & Co., Limited, was insolvent, and that its overdue promissory note was in effect on that day contributed by Henry Levis for the purpose of payment on account of his overdue installment with interest. This act, however sincerely meant, cannot be allowed to have the contemplated effect. The installments were not in any event payable in promissory notes, and no arrangements could be made between the partners by which the liability to contribute capital could be extinguished by mere bookkeeping or by passing bank notes backwards and forwards.</p> <p>For the reasons above stated, under the head of second, third, fourth and seventh points, the referee is of opinion and finds that the defendants are answerable to the plaintiff as general partners.</p> <p>As to the amount which the plaintiff is entitled to recover, the referee finds that</p> <p>The amount of the note sued on was . . . $5,000 00</p> <p>Total credits....... 1,180 00</p> <p>Balance......$3,820 00</p> <p>Interest from May 25th, 1885, to January 2d, 1895, on principal as reduced from time to time. . 2,588 67</p> <p>$6,408 67</p> <p>The referee therefore gives judgment as of this date, January 2,1895, in favor of the plaintiff and against the defendants for the sum of $6,408.67.</p> <p>Errors assigned were in dismissing exceptions to referee’s report.</p>

<p>Appeal, No.197, July T., 1895, by defendants, from judgment of C. P. No. 4, Phila. Co., March T., 1889, No. 83, on referee’s report.</p> <p>Exceptions to referee’s report.</p>

<p>Appeal, No. 222, July T., 1895, by plaintiff, from judgment of C. P. No. 2, Phila. Co., December Term, 1892, No. 537, on verdict for defendant.</p> <p>Assumpsit to recover purchase money of real estate. Before Pennypacker, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the court excluded under objection and exception evidence to the effect that the defendant knew that Hilles street which was then unopened was on the city plan, and that the houses on the property were within the limits of the street and had been built after the street had been laid out. [1, 2]</p> <p>The court charged in part as follows:</p> <p>[I instruct you that this street upon the city plan was an incumbrance upon this property, and, therefore, Benjamin Taylor was not required to carry out the agreement. The act of assembly provides that where a street is upon the plan, if houses are erected afterwards upon the line of the street, there can be no recovery for damages against the city for the erection of those houses. So that would be a serious disadvantage to the owner of the property. He does not get what he undertook to purchase, a property clear of incumbrance, since there was an incumbrance or something which would prevent him from building upon a certain portion of the lot. For these reasons I instruct, you that this did constitute an incumbrance, and therefore the plaintiff in this case was not in a position to carry out the agreement which had been entered into of conveying the property clear of incumbrance.] [3] I hope I make it plain to you.</p> <p>Benjamin Taylor had paid upon that contract $50.00; that, he is entitled to recover. [In this case you will find for the defendant, with a certificate of $50.00 in favor of the defendant.] [4]</p> <p>Yerdict and certificate for defendant for $50.00. Judgment, was entered on the verdict. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3, 4) above instructions, quoting them.</p>

<p>Appeal, No. 221, July T., 1895, by defendant, from judgment of C. P. No. 2, Fhila. Co., June T., 1892, No. 676, on verdict for defendant.</p>

<p>Railroads — Municipal lien — Municipal improvements — Sewers—Act of April 21, 1858.</p> <p>Under the act oí April 21, 1858, P. L. 885, which provides that: “ The offices, depots, car-houses and other real property of railroad corporations situated in said city of Philadelphia, the superstructure of the road and water stations only excepted, are and hereafter shall be subject to taxation by ordinances for city purposes,” it is held (1) that by the word “ superstructure ” is meant the roadbed with whatever had been constructed upon it; (2) that the words “subject to taxation by ordinances for city purposes,” means not only taxation for ordinary revenue, but also assessments for municipal improvements.</p> <p>A municipal claim for a sewer was filed against land owned by a railroad company in Philadelphia, extending for fifteen hundred feet along a street, and running back from the street for a considerable distance to the Delaware river. The land was covered throughout with a great number of diverging railroad tracks, and was used as a terminus for exporting coal and iron ore. The railroad company was authorized to appropriate for roadbed a strip of land sixty-six feet wide, and it could also appropriate land for sidings and turn-outs for the speedy and safe passage of its cars. The main line of the railroad extended through the land against which the lien was filed. Held, (1) that a lien would lie against the land for a sewer; (2) that the fact that the court could not say how much of the land was roadbed would not prevent the entry of judgment on the lien, as a sale of the land would pass to the purchaser nothing the lien did not bind. '</p> <p>Railroads — Transfer of franchise.</p> <p>The franchises and corporate rights of a railroad company and the means vested in it which are necessary to the existence and maintenance of the object for which it was created are incapable of being granted away, and transferred by any act of the company itself, or by any adverse process against it.</p>

Appeal, No. 224, July T., 1895, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1895, No. 138, M. L. D., making absolute rule for judgment for want of a sufficient affidavit of defense. Mitchell, J., dissents.

<p>Appeals, Nos. 64 and 65, Jan. T., 1896, by plaintiffs, from judgments of C. P. No. 3, Phila. Co., Dec. T., 1893, Nos. 1094 and 1095, on verdicts for defendant.</p> <p>Appeals from awards of road juries. Before Gordon, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

<p>Appeals, Nos. 66 and 67, Jan. T., 1896, by plaintiff, from judgments of C. P. No. 3, Phila. Co., Dec. T., 1893, Nos. 1098 and 1099, on verdicts for defendant.</p>

<p>Negligence — Remote and proximate cause.</p> <p>In order to warrant a finding that negligence, or an act not amounting to wanton wrong, is a proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.</p> <p>If the original act was wrongful, and would, naturally according to the ordinary course of events, prove injurious to some others, and result, and does actually result, in injury, through intervention of other causes not wrongful, the injury shall be referred to the wrongful cause, passing-through those which were innocent.</p> <p>Negligence — Railroads—Remote and proximate cause — Passenger on platform hit by flying body.</p> <p>In an action against a railroad company to recover damages for personal injuries, it appeared that the plaintiff bought his ticket, and took his stand upon a station platform of the defendant about 6 o’clock in the evening of a day late in October. While waiting for his train plaintiff stood at the eastern end of the north platform with his back against the wall at the corner. To the east of the station a street crossed the railroad at grade at such distance that persons on the platform could see objects at the crossing. For at least one hundred and fifty yards to the eastward of the crossing the railroad was straight, and then it curved to the right. About 6 o’clock, an express train coming from the eastward upon the north track passed the station, and the plaintiff, while standing in the position described, was struck upon the leg and injured by what proved to be the dead body of a woman. The headlight of the approaching locomotive disclosed to one of the witnesses who stood on the platform two women going from the south to the north side of the tracks in front of the train at the street crossing. One succeeded in getting across in safety, and the other was struck just about as she reached the north rail. There was nothing in the evidence to show how the woman came to be upon the track. There was evidence that no bell was rung or whistle blown upon the train which struck the woman before it came to the crossing, and some evidence that it was running at the rate of from fifty to sixty miles an hour. Plaintiff testified that he heard the express train coming, although he heard no whistle or bell; and all his witnesses had notice of it, some by hearing the rumbling, others by seeing the headlight. Held, that plaintiff was not entitled to recover because (a) the defendant’s negligence was not the proximate cause of the injury; (6) the injury was due to the negligence of the deceased woman.</p>

<p>Appeal, No. 199, Jan. T., 1896, by defendants, from order of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 359, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit on a promissory note.</p> <p>The plaintiff’s statement of claim was as follows:</p> <p>The plaintiff claims of the defendants the sum of $2,500, and the sum of $2.08, the cost of protest, together with interest, on said sums from January 8, 1894, which is justly due and payable to the plaintiff by the defendants upon the cause of action whereof the following is a statement.</p> <p>For several years before the giving of the note upon which this suit is brought, the defendants, Harry P. Crowell and Charles Class, as copartners, carried on the cold storage and general storage and warehouse business at their warehouse, 50 and 52 North Delaware avenue, Philadelphia, and traded as the Crowell & Class Cold Storage Company.</p> <p>In April, 1892, the defendants, Harry P. Crowell, Charles Class, Job R. Gibb, Charles H. Newell and Amos H. Evans, presented to the governor of Pennsylvania a certificate of incorporation signed by them, asking for a charter for the Crowell & Class Cold Storage Company for the purpose of furnishing cold and general storage for produce, meats, fruits, and other articles of food and perishable merchandise, and the conducting of a general storage and warehouse business, the business to be transacted at Philadelphia. The defendants, Harry P. Crowell and Charles Class, by said certificate, each subscribed for sis hundred and forty-seven shares of stock of the proposed corporation, and the defendants, Job R. Gibb, Charles H. Newell and Amos H. Evans, each subscribed for two shares of stock. The said business continued to be conducted at the defendants’ warehouse, the said 50 and 52 North Delaware avenue, Philadelphia, from September 5, 1893, to January 8, 1894, and before and after those dates under the said firm name of the Crowell & Class Cold Storage Company. The said' certificate of incorporation was not recorded in the office for the recording of deeds, etc., in and for the city and county of Philadelphia until November 14, 1893. On September 5, 1893, the defendants, at Philadelphia, before the recording of the said certificate of incorporation in the recorder’s office at Philadelphia, gave their promissory note, whereof the following is a copy:</p> <p>“ $2,500. Philadelphia, Sept. 5th, 1893.</p> <p>“ Four months after date we promise to pay to the order of ourselves — twenty-five hundred dollars at our warehouse 50-52 N. Déla. ave. without defalcation value received.</p> <p>(Signed) “ The Crowell & Class Cold Storage Co.</p> <p>“ By Charles H. Newell, Treas.</p> <p>(Indorsed)—</p> <p>“ The Crowell & Class Cold Storage Co.</p> <p>“By Charles H. Newell, Treas.” and the defendants then and there indorsed the said note, and then and there caused the said note to be delivered to the plaintiff, and the plaintiff discounted the said note for value before maturity, and before the recording of the said certificate of incorporation in the recorder’s office at Philadelphia, and the plaintiff became and was the holder of said note for value before maturity, and before the recording of the said certificate of incorporation in the recorder’s office at Philadelphia, without knowledge or notice of any of the facts herein averred in reference to the presentation to the governor of Pennsylvania of the said certificate for a proposed incorporation, and without knowledge or notice of any attempt or intention upon the part of the defendants to form themselves into a corporation.</p> <p>On November 14, 1893, after the defendants had made the said promissory note, and after they had indorsed it and caused it to be delivered to the plaintiff, and after the plaintiff had discounted said note for value without notice, the defendants had the said certificate of incorporation recorded, or caused or permitted it to be recorded in the office for the recording of deeds, etc., in and for the city and county of Philadelphia, in charter book No. 19, page 314.</p> <p>When the said note became due, to wit, on January 8,1894, it was duly presented for payment at the defendants’ warehouse, 50 and 52 North Delaware avenue, Philadelphia, and payment of the same duly demanded of a proper person according to the tenor of said note, and payment was refused, of all of which the defendants, on January 8, 1894, had due notice, and the note was duly protested on January 8,1894, for nonpayment. And the defendants thereupon became liable to pay to the plaintiff the said sums of money with interest as aforesaid, but the defendants have failed to pay said sums or any part thereof.</p> <p>The affidavit of defense was as follows:</p> <p>Harry F. Crowell and Charles Class, two of the defendants, being duly sworn, say that they have a just and legal defense to the whole of the plaintiff’s claim, as set forth in the statement filed as follows:</p> <p>They did not, at the time of the giving, or of the receiving, of the said note in suit, transact business as the Crowell & Glass Cold Storage Company, either alone or in connection with the other defendants; the said note was not given by or for them, or with, their concurrence, or in any business with which they were then connected; nor did they receive the consideration thereof. They were not copartners with the other defendants.</p> <p>Prior to April, 1892, these two defendants did transact business together, but not in connection with the other defendants, and not under the name of Crowell & Class Cold Storage Company, but under the firm name of Crowell & Class. In the early part of 1892, they agreed with certain persons to sell to them their business, and with a view to the said sale, and at the instance of the purchasers, they applied for a charter as a corporation under the corporation act of 1874 and its supplements. The certificate was duly approved according to said act, and was duly enrolled on April 25, 1892, in the secretary’s office in Harrisburg, in charter book No. 86, page 170, and letters patent were issued by the governor incorporating the said company.</p> <p>A meeting of the board of directors was held on February 14, 1893, at which arrangements were made to complete the sale of the business to the said purchasers; and at said meeting, these deponents having resigned their offices which they had previously held, their successors were duly elected; and on the 15th day of the same month — February, 1893 — all their shares in the capital stock of the said company were duly assigned on the books of the company to the purchasers, and from thenceforth neither of these deponents has ever had any interest in the said company, or the capital stock thereof, or in its business, assets or profits. Circulars were issued and sent to all persons dealing with the concern, stating that these deponents had no further connection with said business. All of this occurred long before the giving of the promissory note now sued on. Wherefore deponents say that even if said corporation were incomplete, and if plaintiff had no knowledge or notice thereof, and if it dealt with the company as a private partnership, then they, the said deponents, had no connection therewith, and their credit was not in anywise pledged to plaintiff, and said plaintiff did not deal with them or either of them, or on their credit. Wherefore they are not liable to plaintiff for the amount of said note.</p> <p>And deponents further say that said note appears on its face to be the note of a company which executes the same by and through its treasurer, and they therefore say that it is not true, as alleged, that said plaintiff had no knowledge or notice of any attempt or intention on the part of the persons interested in said company to form themselves into a corporation; and deponents are advised that plaintiff, having dealt with said makers of the note on the basis of a corporation, cannot now set up the alleged informality in failing to record the certificate as set forth, notwithstanding the issue of said letters patent. These deponents, not being connected with the defendant company, have no knowledge respecting the giving of the said note or the circumstances under which it was given to plaintiff; and for all that appears it was received by plaintiff directly from the officers of the company. All of which these deponents expect to be able to prove on the trial of the said case.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Krror assigned was above order.</p>

<p>Vendor and vendee — Mistake—Equity—Rescission of contract.</p> <p>On a bill in equity for the rescission of a contract for the sale of land, the master and the court below on sufficient evidence found as a fact that the plaintiff had agreed orally to sell to H., one of the defendants, a lot of ground with streets laid down upon a plan, excepting from the same four lots already sold which had acquired easements on the streets. A clerk by direction of the plaintiff gave a receipt to H. for the portion of the purchase money paid, in which receipt the land was described in such a way as to include all of the land on the plan, without reference to the streets or the lots sold. Some months after the date of the receipt and, as plaintiff alleged, as soon as he discovered the mistake, he notified H., and subsequently tendered him a deed drawn in accordance with the oral contract, found by the master to be the real contract between the parties. The deed was refused. Subsequently H. conveyed his interest in the contract to R., the other defendant. Plaintiff informed R. that he elected to rescind the contract of sale, and tendered to R. the portion of the purchase money paid. Held, that plaintiff was entitled to a decree rescinding the contract.</p>

<p>Appeal, No. 98, Jan. T., 1896, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1894, No. 210, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Beddle, J.</p> <p>Errors assigned were, (1) trying tbe above case in tbe'absence of tbe counsel for defendant; (2) trying tbe case in tbe absence of defendant’s counsel after tbe court bad received both verbal and written notice of counsel’s engagement in tbe Supreme Court, and after tbe refusal of the Supreme Court to continue tbe argument; (8) continuing to try said ease after be bad received written notice of tbe order of tbe Supreme Court, said notice having been received by him before said case was finished.</p>

<p>Lunacy — Notice of proceedings — Gonflict of laws.</p> <p>If lunacy proceedings in another slate are without notice to the alleged lunatic, and are wholly ex parte, the decree in them will not be conclusive on any court in this state, as there can be no jurisdiction of the lunatic’s person without personal notice to him or to some one who represents him as an adverse party to the proceedings.</p> <p>The courts of this state have power to interfere in aid of a person alleged to be improperly confined in a lunatic asylum, although the judicial proceedings resulting in the confinement were had in another state.</p> <p> Habeas corpus. </p> <p>The writ of habeas corpus is a writ of right intended to protect individuals against illegal confinement at the time it issues without regard to the legality of the confinement at its beginning.</p> <p>Lunacy — Act of June 13, 1836 — Practice.</p> <p>Proceedings under the act of June 13, 1836, P. L. 592, are not the proper proceedings to ascertain whether a person who has been judicially declared a lunatic has recovered his sanity.</p>

Appeal, No. 143, Jan. T., 1896, by plaintiff, from decree of C. P. No. 1, Phila. Co., June T., 1888, No. 296, dismissing bill in equity. Bill in equity for an account. Tbe case was referred to D. Webster Dougherty, Esq., as master.

<p>Lunacy — Appointment of receiver pendente lite — Discretion of court —Review.</p> <p>The main purpose of a commission tie lunático inquirendo is to determine in the first place whether the subject of the inquiry is a lunatic or not, and, if he is found to be a lunatic, then to provide for the sale guarding of both his person and his property. Pending the inquiry, it sometimes becomes necessary to make temporary provision for the custody and safekeeping of one or both. The appointment of such temporary custodian or receiver pendente lite to prevent mismanagement or waste of the alleged lunatic’s property, etc., rests in the sound discretion of the court in which the inquiry is pending; and it requires a clear case of abuse of that discretion to justify the interposition of an appellate court.</p> <p>Appeals — Jurisdiction of Supreme and Superior Gourt — Limit as to amount — Evidence—Practice, G. P.</p> <p>Where there is nothing on the record to showwhether the value of “ the property really in controversy ” is greater or less that $1,000, evidence should be presented to the lower court so that a proper certificate may be made to determine the jurisdiction of the appellate court.</p>

<p>Railroads — Corporations—Stock subscription — Parol agreement — Evidence.</p> <p>A person who subscribes to the stock of a corporation cannot successfully defend against a suit on the subscription by averring that a parol agreement made at the time of the subscription was violated by the company, where the parol agreement is supported only by his own testimony, and is contradicted by the written agreement of subscription and by the testimony of the agent of the company.</p> <p>Corporations — Stock subscription — Principal and agent.</p> <p>Upon a written contract of subscription to the stock of a corporation, it is not competent to defeat the written contract by setting up an agreement made in parol with the agent who procures the subscription.</p> <p>Corporations — Stock subscriptions — Contracts with corporations and other subscribers.</p> <p>A subscription to the stock of a corporation is not only an undertaking with the corporation, but with all other subscribers.</p>

<p>Street railways — Paving streets — Repairs of streets — Act of April 6,1859.</p> <p>The act of April 6, 1859, P. L. 389, incorporating the Hestonville, Mantua & Fairmount Passenger Railroad Company provides that “ The city councils may from time to time, by ordinance, establish such regulations in regard to said railway as may be required, for paving, repaving, grading, culverting of, and laying gas and water pipes in and along said streets, and to prevent obstruction thereon.” Held, that this provision of the act does not mean that the railroad company may be required to pave, to repave, to repair or grade, or lay water or gas pipes along all the streets it traverses with its railway, but that it shall not obstruct the city in the prosecution of municipal improvements-upon the city streets.</p> <p>Where a street railway company is required by its charter to keep the streets in “ perpetual good repair” at its own expense, it must keep in repair the pavement, whatever its style may be, which the city has placed, or has caused to be placed, upon the particular street upon which repairs are necessary; but it is under no obligation to replace a pavement with a new, and improved and more expensive style of pavement whenever the city shall so direct.</p>

<p>Appeal, No. 150, July T., 1895, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1893, No. 73, non obstante veredicto.</p>

<p>Appeal, No. 152, July T., 1895, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1893, No. 67, refusing to take off nonsuit.</p> <p>Assumpsit to recover costs of repaving streets. Before Thayer, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Street railways — Duty to repair streets — Municipal control — Act of February 10, 1869.</p> <p>The act of February 10, 1869, P. L. 130, incorporating the Empire Passenger Railway Co., provides as follows : “ The said company is hereby authorized and empowered to construct and lay the said railway without obtaining the consent of the city councils of the city of Philadelphia; but whenever the said railway shall be laid and used by running passenger ears thereon, the said company shall be subject to the ordinances of the city of Philadelphia regulating the running of passenger railway cars.” Held, (1) that the company was not liable under the city ordinances requiring street railway companies to pave streets; (2) that the ordinances referred to by the act were such as merely regulated the running of cars by prescribing the frequency with which cars should be run, the rate of speed, the protection of the public at crossings, and similar subjects.</p>

Appeal, No. 151, July T., 1895, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1898, No. 68, for defendant non obstante veredicto. The same point was reserved as in the next preceding case.

Appeal, No. 262, Jan. T., 1895, by plaintiff, from decree of C. P. Luzerne Co., June T., 1889, No. 4, on bill in equity. Williams and Green, JJ., dissent. Bill in equity for an injunction to restrain a forfeiture of 'a coal lease. The facts appear by the opinion of the Supreme Court. Error assigned was decree dismissing bill.

Appeal, No. 48, July T., 1895, by plaintiff, from judgment of C. P. Columbia Co., Feb. T., 1885, No. 25, on verdict for defendants. Ejectment for a tract of land. Before Metzger, P. J., of the 29th judicial district, specially presiding.

<p>Appeal, No. 63, July T., 1895, by plaintiff, from order of C. P. Luzerne Co., Deo. T., 1893, No. 53, overruling exceptions to referee’s report.</p> <p>Assumpsit to determine amount of royalties due under a coal lease.</p> <p>Before L. H. Bennett, Esq., referee.</p> <p>It appeared at the trial before the referee that on April 2, 1888, the plaintiff executed and delivered to James N. and Nicholas E. Rice a certain indenture of coal lease of all the merchantable coal upon and under a tract of land therein described, with the right to mine, remove and dispose of the same for their own use, benefit and advantage, for and during such period of time as shall be necessary to mine and remove all said merchantable coal that can be mined and removed by prudent and skillful mining, the lessees agreeing “for all coal mined, taken out and disposed of above the size of pea coal, twenty-five cents per ton shall be paid when such coal sells at an average of two dollars per ton or less at the breaker, and when the said coal shall sell at the breaker for more than two dollars per ton, then the amount of royalty shall, for such time, be twenty per cent on the 'amount it shall sell for in excess of two dollars per ton, in addition to the said sum of twenty-five cents per ton. . . . And the said lessees shall furnish the said lessor every three months with a full and true statement of the amount of coal and the various kinds thereof sold and shipped from said premises during the preceding quarter-year, and of the average market price of all the various kinds and sizes of coal during said quarter. . . Payment shall be made for one half of twenty-five thousand tons on the first of October, 1888, and thereafter quarter-yearly, commencing on the said first day of October, 1888, at the end of each quarter from that date, for the full amount mined and taken out, but in no case is less than the minimum amount hereinafter named and provided for payment to be made each year, whether mined and taken out or not, except as hereinafter provided. The prices on the foregoing article fixed and agreed to be paid for said coal of the various sizes shall be based and paid upon a general monthly average of the said prices of said coal. . . . Not less than one hundred thousand tons andas much more as shall be mined from the said lands shall be paid for by the said lessees during each and every year of the continuance of this lease.”</p> <p>On March 7, 1892, the defendant contracted to sell to the Philadelphia & Reading Coal and Iron Company, in railroad cars at defendant’s breaker all of the coal mined, prepared and shipped by it from that date, and all the coal was so sold up to March 31, 1893.</p> <p>It appeared from the evidence that the average price per ton which the defendant received from the Philadelphia & Reading Coal and Iron Company for the year ending March 31, 1893i for breaker coal or coal about the size of pea coal, was $2.39586 or $0.39586 in excess of $2.00 per ton. The evidence showed that the defendant paid the plaintiff $25,000 for the 'year, and this suit was brought to recover twenty per cent upon the excess over $2.00 per ton on one hundred thousand tons, to wit: $7,917.20. The defendant controverted this claim by showing a contract of January 15, 1889, in which he had agreed to consign the entire coal product of this colliery to Williams and Peters, for sale by them, and to pay as a commission upon such sales 15 cents per ton for sizes above pea coal; and it appeared that the defendant in this contract had shipped this coal to said Williams and Peters and that they had sold it on said commissions until March, 1892. Defendant showed a further contract with Williams and Peters in which the latter had agreed to a suspension of the contract of January 15, 1889, and that the defendant might sell his own coal direct to the Philadelphia & Reading Coal and. Iron Company, and the defendant in consideration thereof agreed to pay said Williams and Peters a uniform commission of 8 cents per ton on coal of all sizes thus sold, and that Williams and Peters ceased selling coal, but received from the defendant during the year ending March 31, 1893, said sum of 8 cents for each ton of coal sold by defendant to the Philadelphia & Reading Coal and Iron Company.</p> <p>The referee’s conclusions of law were as follows :</p> <p>1. That the terms used in the first article of the lease in question, “ and when the said coal shall sell at the breaker at more than two dollars per ton,” taken in connection with the several covenants and provisions of that document, by legal intendment means, when the net price which the lessees receive for their coal (after deducting from the nominal price, as well commissions and expenses paid third persons in effecting sales, as freights and other charges) exceeds $2.00 per ton.</p> <p>2. That in view of the original contract between the defendant and Williams & Peters, the further contract between them, and the facts and circumstances already set forth, — iir ascertaining whether the defendant in this case (under the written contract of March 7, 1892, between it and the Philadelphia & Reading Coal and Iron Company), during the year ending March 31, 1893, sold its coal at the breaker at more than $2.00 per ton, and if so for how much more, — there should be deducted from the average prices paid by the purchaser company, as set forth in the schedule under the fifth finding of fact, the sum of 8 cents per ton for each ton thus sold as the cost of selling the same to the purchaser company, and this deduction being made, the average price for which the defendant sold its coal, above the size of pea coal, at the breaker, was two dollars thirty-one cents and five hundred and eighty-six thousandths of a cent ($2.31586).</p> <p>3. That twenty per cent on the average amount more than $2.00 per ton for which the defendant thus sold its prepared coal at the breaker, is six cents and three thousand one hundred and seventy-two ten thousandths of a cent ($0.063172), which added to twenty-five cents per ton makes the maximum royalty payable under the lease of thirty-one cents and three thousand one hundred and seventy-two ten thousandths of a cent ($0.313172).</p> <p>4. That the defendant is liable to the plaintiff in this action for the royalty on one hundred thousand tons of coal of the size above pea coal at the maximum price per ton of</p> <p>10.313172, amounting to.....$31,317 20</p> <p>Less amount already paid on account . . 25,000 00</p> <p>Balance......$ 6,317 20</p> <p>Plus interest from April 1, 1893, to Feb. 1, 1894, 315 86</p> <p>Total......$ 6,633 06</p> <p>5. That judgment should be entered for the plaintiff for $6,633.06.</p> <p>Exceptions to the referee’s report were overruled in an opinion by Woodward, J., and judgment was entered in accordance with the recommendation of the referee.</p> <p>JErrors assigned were in overruling exceptions to referee’s report.</p>

Appeal, No. 385, Jan. T., 1895, by defendants, from decree of C. P. Luzerne Co., May T., 1893, No. 2, on bill in equity. Mitchell, Dean and Fell, JJ., dissent. Bill in equity to restrain an alleged fraudulent infringement of a trade-marlc. Tire case was referred to L. PI.

<p>Appeal, No. 487, Jan. T., 1895, by defendants, from judgment of C. P. Clearfield Co., September Term, 1898, No. 175, on verdict for plaintiff.</p> <p>Ejectment for a lot of land in Curwensville borough. Before Gordon, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for the plaintiff.</p> <p>Error assigned was above instruction.</p>

Appeal, No. 105, July T., 1895, by James S. Smith, from decree of O. C. Clearfield Co., dismissing exception to auditor’s report. Mitchell, J., dissents. Exception to auditor’s report. The case was referred to Oscar Mitchell, Esq., as auditor. The facts appear by the opinion of the Supreme Court. Error assigned was in dismissing exception to auditor’s report.

<p>Appeal, No. 109, July T., 1895, by Lizzie F. Wieand et al., from decree of O. C. Centre Co., No. 2091, overruling exceptions to auditor’s report.</p> <p>Exceptions to report of auditor, John Kline, Esq.</p> <p>The facts appear .by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to auditor’s report.</p>

<p>Railroads — Railroad connection — Act of April 4, 1868.</p> <p>The act of April 4,1868, P. L. 62, which permits a railroad company to connect its railroad with roads of a similar character, contemplates a mechanical connection with a road of similar gauge, so as to permit the running of cars from one road to the other.</p> <p>Railroads — Railroad connections — Act of April 4, 1868 — Province—Jury of view.</p> <p>Under the act of April 4,1868, the jury of view appointed to fix the terms upon which two railroads may be connected with qach other have authority only to pass upon matters relating to the physical connection of the two roads, such as the point at which one of the roads must be broken, what switches and sidings shall be constructed by the road seeking the connection, what watchmen or other employees shall be appointed to guard against danger, and which roads shall appoint and pay them. The jury has nothing to do with carrying out the purposes of the connection, and it is beyond its power to order one company to transfer to the other, whether with or without compensation, its lands, right of way, station, yards, water, joint control of part of its road, or other valuable property or franchises.</p> <p>Itailroads — Eminent domain — Prior grant.</p> <p>Every grant by the sovereign is upon the implied condition that it is not to be exercised to the injury of an older one.</p>

<p>Appeal, No. 23, Jan. T., 1896, by J. Henry Meyer, administrator, from decree of O. C. Centre Co., No. 5525, sustaining exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The case was referred to Jolxn Kline, Esq., as auditor, the substance of whose report is stated in the opinion of the Supreme Court, except that the auditor in addition found that the administrator in bidding-had acted, as he supposed, for the best interests of the estate.</p> <p>Exceptions to the auditor’s report were sustained in an opinion by Abchbald, P. J., of the 45th judicial district, specially presiding.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>

Appeal, No. 43, Jan. T., 1896, by defendants, from decree of C. P. Centre Co., Jan. T., 1893, No. 154, on bill in equity. Bill in equity to set aside an alleged fraudulent conveyance. Held: cannot be maintained: Girard National Bank’s Appeal, 13 W. N. C. 101. But the case with which we have to deal is not an ordinary one; the debtor is dead and the case is complicated by all which that circumstance entails.

<p>Church law — Power of the courts.</p> <p>The power of the courts to adjudicate disputes between warring church parties is limited to an examination of the rules of the church organization only for the purpose of ascertaining the church law, and if that be not in conflict with the law of the land, all they can do is to protect the rights of parties under the law which they have made for themselves.</p> <p>church laxo — Majorities.</p> <p>A majority of a church organization may direct and control church matters consistently with the particular and general laws of the organization or denomination to which it belongs, but not in violation of them.</p> <p>Church law — Equity—Congregational government.</p> <p>Plaintiffs and defendants in a bill in equity were members of a congregation of a religious denomination known as “Disciples of Christ,” in which denomination every congregation is practically independent. The defendants were officers of the church, and their term, of office was indefinite. Against the protest of the defendants, delegates and ministers from other congregations met with members of the congregation outside the church, and by a vote deposed the defendants, and elected in their places the plaintiffs. Held, (1) that the plaintiffs were wrongly elected officers, and that they had no right to the control or possession of the church property ; (2) other congregations of the denomination may advise, but there is no superior tribunal of appeal.</p>

<p>Appeal, No. 115, Jan. T., 1896, by-defendant, John Hurd, from order of Q. S. Blair Co., June T., 1895, No. 77, refusing to quash an indictment.</p> <p>Indictment against county commissioners for being concerned in public contracts.</p> <p>The defendants moved to quash the indictment for the following reasons:</p> <p>1. The indictment does not charge that the county of Blair or the board of county commissioners, made any contract or authorized the construction of any public work, improvement or repairs of the courthouse. The 48d section of the act of the 15th of April, 1834, under which this bill is framed, forbids county commissioners to be interested in public work undertaken by the county in its corporate capacity, and in the absence of an averment that the county, or its representatives acting officially as required by the 19th section of the same act, had made such a contract or -undertaking, there could be no violation of the act by the defendants, and no conviction.</p> <p>2. As there is pending an appeal from the findings of the county auditors to the court of common pleas of Blair county, which, when tried, will determine whether the commissioners have properly accounted for all the public moneys which they may have disbursed, there can be no trial of defendants in a criminal court for an alleged misappropriation of those moneys, until the tribunal in which the jurisdiction of the question was first obtained has first passed upon that question, and entered upon its record a final adjudication.</p> <p>3. The indictment is not based upon an accusation made before a committing magistrate, grounded upon probable cause, and supported by oath or affirmation. Under certain exceptions, which are not found in this case, without such formal accusation, a citizen cannot be held to answer under the constitution and laws of Pennsylvania. Whilst a grand jury may make a presentment, such presentment must be made by them from their own knowledge and observation. The presentment in this case having been made after the court had called the attention of the grand jury to certain matters in controversy in a settlement of the accounts of the defendants with the county auditors, no authority was thereby given to the jury to make such presentment, because the court had no power to call their attention to the investigation of such offenses as are alleged.</p> <p>The offenses charged are not of that nature which allow of this extraordinary intervention of the court, and an investigation and presentment of the grand jury.</p> <p>Bell, P. J., filed the following opinion:</p> <p>In a report of the county auditors filed in the court of common pleas it was charged that at least one of the commissioners of Blair county had been concerned in public contracts. Deeming this charge, if true, to be of such a nature as to warrant investigation by the grand jury, this court called the attention of that body to the subject at June sessions and directed them to investigate the matter. The grand jury made return in the form of a presentment against defendants, whereupon the district attorney was directed to prepare and submit an indictment whicli was returned a true bill.</p> <p>One of the main reasons urged for quashing the indictment is that the action so taken was in violation of the constitutional bill of rights, inasmuch as a prosecutor is wanting, and by the method pursued, defendants were denied a preliminary hearing, and were not proceeded against according to due process of law.</p> <p>It seems to be a significant circumstance — as showing the intent of the framers of the constitution — that persons charged .with misdemeanor in office — and the offense charged in the present indictment is misdemeanor in office — by the language of section 10 of the bill of rights, are deprived of certain rights accorded to other accused persons. “No person shall for any indictable offense be proceeded, against criminally by information except for oppression or misdemeanor in office.” Criminal proceedings by information were odious to our forefathers and were oppressive to the citizens; but the framers of the constitution seemed to recognize the fact that the nature of the crime of “ misdemeanor in office ” was such as to warrant the allowance of an information. Possibly the motive actuating them in such allowance was twofold; first, that the offense concerned and affected the public at large; second, the offense might be of such a character as to affect no individual as an individual, hence it was unlikely that any single individual would be at the trouble of bringing a prosecution. But it is unnecessary to pursue this inquiry based oh the same exception further, or to attempt to sustain the indictment now in question by attributing any force to the language quoted, as the present case seems to fall within the first exception stated by Judge King in case of Lloyd & Carpenter, 3 Clark, 188. After laying down the general rule that an alleged offender should be proceeded against by affidavit before a committing magistrate, preliminary hearing and binding over to court, Judge King proceeds to state the exception to said general rule: “ The first of these is where criminal courts of their own motion may call the attention of grand juries to, and direct the investigation of matters of, general public import which from their nature and operation on the entire community justify such intervention. In such cases the court may properly, in aid of the inquiries directed by them, summon, swear and send before the grand jury such witnesses as they may deem necessary to a full investigation of the evils intimated, in order to enable the grand jury to present the offense and the offenders.” It is true that Judge King instances the case of a great riot, but his reasoning is equally applicable to any case where the public, as a public, in contradistinction from individuals who can do their own prosecuting, is concerned, and this court deemed the present case one “ of general public import ” justifying investigation by the grand jury. A precedent for the course pursued in the present case is found in Commonwealth v. Taylor, 2 Dist. Rep. 743. In this case, as in the present, there was a report of county auditors charging frauds and peculations committed. Judge Gkeen directed the district attorney to submit an indictment to the grand jury and refused to quash the same. It is true that in the present case instead of commencing proceedings by directing the district attorney to submit an indictment, the grand jury were directed to investigate, and an indictment was only ordered to be submitted after the said grand jury had reported that there was evidence to support the charge adduced before them. But if the court had a right to order the submission by the district attorney of an indictment, why should the defendants complain that such right was not exercised until the grand jury had investigated the matter and made a presentment ? Or how could the defendants be prejudiced by the action of the court in directing an investigation before any indictment was submitted or any steps prejudicial to the defendants taken ? The further objection urged, that the indictment is indorsed as founded “ upon presentment of the grand jury,” and such presentment can only be made on the knowledge of the grand jurors, is without merit. The term “ presentment ” has come to mean a report of the grand jury of an offense, whether founded on their own knowledge • or on testimony heard by them. It has been so used in this court hi a number of instances, principally in reports of offenses against the liquor laws. It was so used by Judge Kins in the portions of his opinion before quoted. In Wharton’s Criminal Pleading and Practice, 9th ed. sec. 86, it is said: “ A presentment, properly speaking, is an accusation made ex mero motu by a grand jury of an offense, upon their own observation and knowledge or upon evidence before them, and without any bill of indictment laid before them at the suit of the government. . . . Upon a presentment the proper officer of the court must frame an indictment before the party accused can be put to answer to it.”</p> <p>The indictment is framed under the act of 15th of April, 1834, section 43 [Pur. Dig. ed. of 1894, page 449] which provides that: “ If any county commissioner shall be concerned in any contract, or shall be directly or individually interested in the construction of any public work, or any improvement, made or undertaken under the authority of the commissioners of the said county, the same shall be deemed a misdemeanor in office, and such commissioner shall be fined in a sum not exceeding five hundred dollars, and shall be adjudged by the court to be removed from office.”</p> <p>We are asked, to quash the indictment because it avers that the public contracts in question were made not under the au thority of the commissioners as a board, but under the authority of the two defendants acting as county commissioners. The authorities cited by the very able counsel of defendants do undoubtedly establish the rule that to bind the county the contracts should be made by the board of commissioners, not by two of the commissioners; but suppose two of the commissioners do undertake to make a contract, and draw orders on the treasury for the money to pay for the same, and do corruptly and fraudulently receive part of said money, are they to be allowed to take advantage of their own wrong, and allege that the contract they made was illegal and therefore was no contract ? The act of assembly in question does not say by authority of the board of commissioners; there is no language employed limiting the operation of the law to cases of contracts legally binding the county. The contract averred might have been voidable in the sense that it would have been declared void on application of an aggrieved taxpayer, but, if it was carried into execution, as averred, and was consummated by the payment of the consideration, it was at least a de facto contract. And if a de facto commissioner would be liable to the penalties of the act, by analogy its penalties would also be applicable to the case of a de facto contract. And in Wharton’s Criminal Law, section 1572, it is said: “ It follows from this that an officer de facto cannot set up want of title to an indictment for misconduct.”</p> <p>We are asked to quash the indictment or to continue the trial, because of the pending of an appeal by the said defendants from the report of the county auditors surcharging them with the amount averred in the indictment to have been fraudulently obtained by them. Indictments for perjuiy are not to be tried until the civil suit, out of which they arise, is disposed of: Commonwealth v. Dickerson, 3 Clark, 265. But in general a criminal suit and a civil suit arising from the same source may be carried on simultaneously. “Neither will affect the other:” Bishop’s Criminal Law, section 264. “ There is no compulsion to try the civil suit first. It is entirely within the discretion of the court.” Opinion of Mitchell, J., in Commonwealth v. Dickerson, 7 W. N. C. 433. To allow indictments for perjury, growing out of affidavits made or testimony given, in the course of civil proceeding, to be tried before the disposal of said civil proceeding, might lead to numerous cross suits for perjury which would be oppressive to court and suitors alike, and might tend to intimidate both parties and witnesses, as is rvell explained by Parsons, J., in his opinion in Commonwealth v. Dickerson, supra, but “ the reason ceasing the rule ceases,” and we see no good reason why a prosecution for misdemeanor in office should be held in abeyance pending an appeal by the defendants in a civil court from a surcharge for the amount alleged to be appropriated. The measure of proof beyond a reasonable doubt is higher in a criminal than in a civil proceeding, and it is scarcely conceivable that a defendant would be convicted in a criminal court and afterwards obtain a verdict in his favor in the civil court. Moreover, delay in a proceeding, where the chief penalty is removal from office, it seems to us should be avoided as far as possible, consistent with the rights of the accused, because such delay might render the law nugatory, by reason of the expiration of the term of office pending such delay.</p> <p>We have endeavored to carefully consider all that has been urged on behalf of the defendants, but after such consideration we fail to see any sufficient reason for either quashing the indictment in this case or continuing the cause. It is therefore ordered and decreed that the motion to quash Indictment No. 77, June sessions, 1895, be overruled, and that said cause be called for trial on Monday morning, October 14, 1895, at 9 o’clock.</p> <p>At the trial the jury returned a verdict of guilty.</p> <p>The defendants moved for a new trial filing the following reason:</p> <p>The conduct of Samuel Saylor [as shown by annexed affidavits], who as a juror before the evidence was all in, before the argument of counsel upon the evidence had been made, and before the court submitted the case to the jury, went into a public place, and to a large number of citizens announced what the court and jury would do, namely, convict and punish the defendant, is of such scandalous character, and manifests such evidence of prejudgment and disregard of a public duty, that a court of justice sitting in the trial of a most important issue, will give it no sanction, by overruling it, and will not allow a verdict rendered by such a juror to stand. *</p> <p>Bell, P. J., filed the following opinion.</p> <p>The defendant, John Hurd, was given ample time to prepare for trial; he was most ably and zealously defended by distinguished counsel. This court endeavored to afford him a fair and impartial trial; while the evidence was conflicting, the evidence of the commonwealth, if believed, was sufficient to warrant his conviction; when evidence is conflicting it is the especial province of the jury to determine whom they will believe; this jury believed the evidence of the commonwealth.</p> <p>It is deemed unnecessary to add anything to the foregoing brief epitome of the reasons moving this court in overruling the motion for a new trial for reasons independent of the alleged misconduct of juror Saylor. The actions of jurors should be jealously scrutinized by courts; care should be taken that a fair and impartial trial by competent jurors should be afforded a defendant, and misconduct on the part of jurors, showing a prejudgment of the case, or tending to bring scandal on the administration of justice, should operate to compel the granting of a new trial. If this court were satisfied that juror Saylor did, as alleged on the part of defendant, during the progress of the trial, and after he had been sworn as a juror, at the Williamsburg station, declare that “ they,” meaning the jury, “ would hold Hurd,” or if, on that occasion, without exhibiting any bias, said juror did make a loud speech to the crowd of bystanders about the trial in progress, a new trial would unhesitatingly be granted. If there were no evidence before the court but the ex parte affidavits filed by defendant when the motion for a new trial was entertained, the allegation of the defendant might be sustained. But a careful consideration of the evidence taken under cross-examination, before an examiner, satisfies us that Saylor did not say that they, the jury, would hold Hurd,. or that they, the jury, would fine Hurd, but that he merely informed a questioner, Mr. Boyd, what would be the penalty in case of a conviction, and in addition he may have recounted some of the evidence offered in the case. George W. Boyd testifies that all that Saylor said was simply a statement of the penalty in case of conviction, and that this statement was elicited by a question of Mr. Boyd. Frank Royer corroborates Boyd, and, in my view of the evidence, J. D. Allender does not contradict Boyd, but Mr. Allender only heard Saylor’s answer and not Boyd’s question. The remark attributed to Saylor by B. F. Cooper, that “ Hurd would be held,” does not necessarily imply a statement by Saylor that the jury would convict Hurd, but is rather to be interpreted as meaning that Hurd was still on trial as, in the same connection, Mr. Cooper implies to Saylor the remark, “ they could not hold Funic,” and the fact was that prior to the time of the alleged conversation the court had stated that as to Funk there could be no conviction, so that in point of fact this trial was over so far as Funk was concerned. The further remarks, imputed by Cooper to Saylor, it seems to me, at most were but a recital of some of the testimony pro and con. The testimony taken before the examiner, wholly fails to substantiate the claim of defendant that Saylor made a speech to the crowd, or talked loudly about the trial. Even Mr. Cooper, whose statement in his ex-parte affidavit was somewhat emphatic on tins last mentioned point, in Ms testimony before the examiner fails to substantiate his affidavit in tMs matter, and no one of the witnesses speaks of any loud talking on the part of Saylor, and he could not have talked loudly or very long, as a number of witnesses who were there heard nothing of what he said. Doubtless it would have been much better if Mr. Saylor had refrained from saying anything; his proper course would have been to have replied to Mr. Boyd, “I am a juror and it is improper for me to talk about the case; ” but the weight of the evidence fails to satisfy me that he made any remark indicating bias, or that his remarks were of such a character as to bring scandal on the administration of justice. What he said partakes more of the character of gossip than prejudice, and I fail to see how the defendant was injured, or the administration of justice greatly scandalized, by what occurred at the Williams-burg station that morning. The law on this subject is thus stated in Thompson & Merriam on Juries, section 365 .... “We shall now consider the effect of communications made by jurors to persons not of the panel. It may be stated as a general rule, that such communications afford no ground for a new trial unless they are of such a character as clearly to show a disregard on the part of the juror of what belongs to Ms position, or an unfitness to discharge the trust reposed in Mm.” Again in section 348, same work, “ Whether a communication, then, will afford ground for a new trial, must depend upon its harmful tendency; all this is to be determined according to the circumstances of each case, having reference to'the nature of the communication, the person making it, the time when, the place where, it was made, and other surroundings.”</p> <p>The charges made on behalf of defendant of misconduct on the part of a juror were deemed by this court Avorthy of the most searching scrutiny, and the closest attention, but as before indicated, the Aveight of the testimony discloses a case of casual statement, shoAving a tendency to gossip rather than a prejudice against the defendant. Such tendency to gossip is to be reprehended, and jurors should remember that “silence is golden,” but at the same time I fail to see how the defendant Avas injured, or why a neAv trial should be granted on this ground.</p> <p>In this connection a remark in Wharton on Criminal Pleading and Practice, section 837, may he cited, although possibly not wholly applicable. “ On the other hand if casual remarks' as to the case, made in the presence of a juror, not in any way influencing him, should require a new trial, no case will be decided at all.”</p> <p>November 29, 1895, motion for a new trial overruled, and it is ordered that John Hurd, defendant, appear for sentence on Monday, December 2, 1895, at 9 A. M.</p> <p>The court sentenced the defendant to pay a fine of $50.00, and to be removed from his office of county commissioner.</p> <p>Errors assigned were in overruling motion to quash indictment, and in refusing to grant a neAv trial.</p>

<p>Appeal, No. 173, Jan. T., 1896, by defendant, from judgment of C. P. Huntingdon Co., May T., 1894, No. 11, for plaintiff on trial by court -without a jury.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>The case was tried by the court without a jury under the provision of the act of April 22,1874. Love, P. J., of the 49th judicial district, specially presiding, filed the following opinion :</p> <p>FINDINGS OF FACT.</p> <p>1. D. Caldwell, the decedent, in his lifetime bought the property upon which the insurance was placed, at sheriff’s sale, December 17, 1884. D. Caldwell, George A. Port, D. Blair, Frank Hefright and James It. Carmon were at the time of the sale creditors of George B. Wharton. The said creditors agreed among themselves that said D. Caldwell should bid in the property and take the legal title in trust for himself and other creditors above named. Subsequently some of the parties transferred their respective interests to others so that when the insurance was effected, which is the subject of this controversy, George A. Port’s interest in the premises was thirty-three sixty-ninths of the whole, J. R. Carmon’s interest, fourteen sixty-ninths of the whole, and D. Caldwell’s interest twenty sixty-ninths of the whole.</p> <p>2. D. Caldwell held at the time the policy was placed the legal title in trust for the joint use of himself and George A. Port and J. R. Carmon, in proportion to their respective interests to make sale or dispose of the same and account and pay to each their pro rata share of the net proceeds.</p> <p>3. The first policy placed in this defendant company was dated January 5,1891, for one year, and renewed from year to year, and was issued in the name of David Caldwell alone, who held the legal title. At the same time policies were taken out in other companies upon the same property, all through the same agent representing all of them.</p> <p>4. From the time of the purchase by David Caldwell, he took charge of the property, looked after it, leased it, paid taxes and insurance thereon up until the time of his decease.</p> <p>5. The creditors in purchasing the property did so for the purpose of saving their claims against George B. Wharton, and with a view to have Mr. Caldwell resell the property, and not with a view of operating it.</p> <p>6. David Caldwell died April 7,1893, and letters of administration were duly issued to I. C. Caldwell upon his estate by the register of Huntingdon county.</p> <p>7. The property was a boot and shoe manufactory, situated on the west side of Penn street, between Fifteenth and Sixteenth streets, in Huntingdon, and was destroyed by fire on the night of April 11, 1893.</p> <p>8. Proofs of loss were duly made out by I. C. Caldwell, administrator of D. Caldwell, setting forth that the property insured belonged exclusively to D. Caldwell’s estate, and that no other person or persons had any interest therein. The said administrator had no knowledge at the time of the interest of George A. Port and J. 11. Cannon in the property, there being nothing in the deed showing any trust, and no declaration of trust recorded, but on learning of their respective interests, concedes that they are entitled to their pro rata share of the insurance, and this suit is maintained for their benefit, as well as of the estate of D. Caldwell.</p> <p>9. The insurance was placed by W. H. D’Armitt, as agent of the defendant company, as well as that of the American Insurance Company, and the Queen Insurance Company. He testified that when he first placed the policies in January, 1891, that he asked I). Caldwell who the title was in, and that he replied, “the title is in me.” On cross-examination, he said he asked the question because he had information of mixed ownership. He also testified that he wrote the policy in the name of D. Caldwell, individually, because he said “the title is in me, I hold the deed,” and that in subsequent renewals of the policy nothing was said as to the title at all. The statements of Mr. D’Armitt are not modified or contradicted, and could not he, as they were made by the decedent, whose mouth is since closed by death.</p> <p>10. The policy in suit was issued by defendant company January 5, 1893, for one year in the sum to two thousand (2,000) dollars, of which sum $920 was on the building, $280 on the engine and connections, and $800 on fixed and movable mar chinery.</p> <p>The total loss suffered as fixed by appraisers was as follows:</p> <p>Building $1,957 86</p> <p>Machinery, etc.......1,346 50</p> <p>Total......$3,304 36</p> <p>The pro rata share claimed under the policy in suit is as follows: On the building is $783.61, and on the machinery, etc., $538.60, making $1,321.76, with interest from August 10,1893.</p> <p>11. The policy contains the following clause: “ This entire policy unless otherwise provided by agreement, indorsed hereon, or added hereto, shall be void if the interest of the insured be not truly stated herein .... or if the interest of the insured be otherwise than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.” The defendant denies liability solely upon the ground of the alleged breach of the above stated provision of the policy by tire insured.</p> <p>CONCLUSIONS OK LAW.</p> <p>We are asked to hold as a matter of law upon the foregoing facts that there had been such a violation or breach of the provisions of the policy as set forth in the eleventh paragraph of our findings of fact that the plaintiff cannot recover.</p> <p>The question then is: Do the facts as above set forth constitute such a violation of the provisions of the policy as to work a forfeiture thereof and defeat the plaintiff’s right to recover thereon? It is conceded that D. Caldwell at the time the policy was issued, and at the time of the fire, had an insurable interest in the property insured. At the time the policy was issued, D. Caldwell, so far as the legal title showed of record, was the absolute owner thereof. The deed to him contained no condition of trust, nor was there any'declaration of trust in relation thereto upon record. So that the trust under which the legal title was held was a secret trust so far as the public was concerned. The declaration of trust executed by D. Caldwell, George A. Port and Joseph It. Cannon, January 7, 1885, defines the nature of the trust, as follows: “ The said Caldwell agrees to hold the title to the said property, purchased as aforesaid, for the joint use of himself and such of us as have contributed to the payment of the purchase-money aforesaid and when said property aforesaid is sold or disposed of by him he will distribute and pay to each contributor, as aforesaid, his pro rata share of the net proceeds thereof.” The condition of the trust, as above stated, left the property in the hands of the trustee, with power to sell and dispose of the same and account for the proceeds to his cestuis que trust. It then can hardly be said that a tenancy in common existed under its terms. It is not necessary to cite the very numerous decisions of our own courts and those of other states construing what amounts to “ unconditional and sole ownership ” as contained in the policy. It has been held that a vendee under articles having paid part of the purchase money, the vendor still holding the legal title, is such owner, and that such ownership by the insured is not a violation of such a clause in the policy. It has also been ruled that if the insured after taking out a policy with a clause such as contained in this policy, sell the property insured, under an executory contract, and retain the legal title until purchase money be paid, and loss occur before purchase money be paid or deed executed, is not a violation of the condition: Walter v. Sun Fire Office, 165 Pa. 381; Burson v. Fire Association, 136 Pa. 267; Penna. Fire Insurance Company v. Dougherty, 102 Pa. 568; Imperial Fire Insurance Co. v. Henry Dunham, 117 Pa. 460; Chandler v. The Commerce Fire Insurance Company of New York, 88 Pa. 223.</p> <p>We think in view of the character of the trust, which in our opinion is of such a nature as does not create a tenancy in common, that it is doubtful whether the cestui que trust could sustain proceedings in partition under its provisions, that the title and ownership of the insured does not violate the provisions of the policy. And we are inclined to think that under the express term of the trust, had D. Caldwell been negligent in not looking after and keeping the propferty insured and loss had occurred, he might have been called upon to make good the loss to his cestuis que trust, as he could be called upon to account to them.</p> <p>There is no question that a trustee may insure in his own name property in -which he has an insurable interest for himself and the benefit of his cestui que trust, and recover upon the policy the whole insurance, .and pay over the proportion to his cestuis que trust, to which he is entitled.</p> <p>The insurance in this case was to cover the entire interest in the property. The premiums in full were duly paid for the insurance of the whole. When the policies were first taken out in 1891, W. H. D’Armitt testifies that he asked the insured in whom the title was, and the insured replied that, “ the title is in me, I hold the deed.” He did not inquire as to the character of the ownership. He further testifies that he asked the question as to whom the title was in, because he had information as to mixed ownership. He does not state what information he had or from whom he received it. He says further, that when Mr. Caldwell told him that the title was in him; that he held the deed, that he (D’Armitt) took it for granted that Caldwell had bought the others out; by fuller inquiry he would no doubt have learned, if he did not know, the real character of the ownership. It seems to us that according to Mr. D’Armitt’s own testimony he had such information that practically amounted to knowledge of the interests of the other parties therein. The answer of Mr. Caldwell that the title was in him, that he held the deed, would seem to import that. If so, then may it not be fair to presume that the insurance was placed with such information as to ownership as was tantamount to knowledge thereof. And if so, then the company would be liable.</p> <p>When the present policy in suit was written there was no question or inquiry as to the title or ownership, and no change in the nature or character thereof had been made. There is no allegation of fraud, or that untruthful answers were given as to title, or that there was any increase of risk. We are therefore of the opinion that under all the facts in the case the plaintiff is entitled to recover, and therefore direct judgment to be entered in favor of the plaintiff for the sum of fourteen hundred and sixty-seven dollars and fifteen cents ($1,467.15), being the amount of the pro rata fixed by the adjustment of loss, to wit: The sum of $1,321.76, with interest from August 10,1893, to this date, July 9, 1895, unless exceptions be filed according to law.</p> <p>Upon exception the court filed an opinion which is in part as follows:</p> <p>The first exception is that we failed to find sufficiently as a fact “ that J. R. Carmon, Geo. A. Port, David Blair and Frank Hefright, each contributed his proportion to the purchase money of the property claimed to be covered by the policy,” etc. While in our findings of fact we did not state specifically that the said parties had contributed their respective shares of the purchase money, yet it was so treated in our disposition of the case, and we now do find as a fact that the said J. R. Carmon, Geo. A. Port, David Blair and Frank Hefright each paid his proportion of the purchase money paid for the property covered by the policy as per agreement of June 27,1885, offered in evidence, and that D. Caldwell at the time of placing the policy which is in suit was the owner of the interest of Frank Hefright, it having been transferred to him sometime prior thereto.</p> <p>We find as a fact that the title to the premises in question remained in D. Caldwell up to the time of his decease, April 6, 1893, and in his estate under the terms of the agreement of trust dated June 27, 1885, for himself or his estate, and J. R. Carmon and George A. Port, until after the fire, and that subsequent to the fire, to wit: June 30, 1893, the said premises were conveyed by the estate of David Caldwell, Geo. A. Port and wife and J. R. Carmon and wife to J. R. Kendig, the cestuis que trust thus joining in the deed. . . .</p> <p>The evidence of Mr. D’Armitt the agent of the defendant company, who placed the policy in suit, shows that, when he placed the first policy in January, 1891, upon the property in question, he asked Mr. D. Caldwell, “ Who is the title in? ” Mr. D. Caldwell said “ The title is in me, I hold the deed.” He also testifies that the reason he asked the question was that he had information of a mixed ownership.</p> <p>In this case the agent of the company evidently had knowledge of the ownership of the property in question about the time of the fire, or shortly after, which occurred April 11,1893, and on May 18,1893, had an award of appraisers chosen by the company and the assured, adjusting the loss. It might be a question whether the company knowing the nature of the ownership of the property and going on to appraise the loss and adjust the same under the terms of the policy providing for the appraisement thereof, and putting the assured to the expense of such appointment, could not be held to have waived the condition of sole and unconditional ownership.</p> <p>Our attention has been especially called to the cases of Diffenbaugh’s Appeal, 150 Pa. 270, and that of Schroedel v. Humbolt Fire Ins. Co., 158 Pa. 459. In the case of Diffenbaugh’s Appeal, the husband took out a policy in his own name on his wife’s property. She had the title and insurable interest. The husband had no insurable interest whatever, and it was held that the condition of the policy making it void if the interest of the insured be not truly stated therein was violated and a suit on the policy by the wife could not be maintained. In the case of Schroedel v. Ins. Co., there the title was in the name of John and Bertha Schroedel and the policy was issued in the name of John Schroedel alone. Had the title in that case been wholly in John Schroedel, and he had held one half in trust for his wife, by a declaration of trust made to her, and he had power to sell and dispose of the property and account to her for one half of the proceeds, then the case would have been similar to the one trying. We do not however think the principle described in those cases controls the one at bar.</p> <p>And now, December 81, 1895, we therefore, except wherein we have stated our additional findings of fact, overrule the other exceptions and direct judgment to be entered in favor of the plaintiff for the sum of $1,467.15, in accordance with our findings July 9, 1895.</p> <p>Error assigned was entry of judgment for plaintiff.</p> <p>The rule applicable where there is no trust relation does not apply where there is such relation. The insured may be the sole and absolute owner in equity, if he does not hold in trust for any one and is entitled at any time to a conveyance; a naked legal title in another is not sufficient to defeat recovery; Lebanon Co. v. Erb, 112 Pa. 149; Drysdale’s App., 15 Pa. 457.</p> <p>It is the right of the insurers to know whom they are insuring: Dieffenbaugh v. Ins. Co., 150 Pa. 270.</p> <p>It is not a presumption of law that the principal knows what the agent knows unless the agent acquired the knowledge in the exercise of his powers as agent: Hood v. Fahnestock, 8 Watts, 489; Houseman v. Building Assn., 81 Pa. 256; Bracken v. Miller, 4 W. & S. 102; Martin v. Jackson, 27 Pa. 504; Weed v. Ins. Co., 116 N Y. 106.</p> <p>Waiver is essentially a matter of intention, and cannot arise out of acts done in ignorance of material facts, and its proof is inadequate unless it is shown that the insurer knew of the right of forfeiture at the time of doing the act: Freedman v. Fire Assn., 168 Pa. 249.</p> <p>We need hardly say that if the policy is void as to the real estate, it is void in toto: Fire Assn. v. Williamson, 26 Pa. 196; Gottsman v. Ins. Co., 56 Pa. 210.</p>

<p>Negligence — Evidence—Province of court and jury.</p> <p>Negligence is the absence of care according to the circumstances, and is always a question for the jury when there is a reasonable doubt as to the facts or as to the inferences to be drawn from them. When the facts are either admitted or established by undisputed evidence, it is the duty of the court to declaro the law applicable to them; but when material facts are disputed, or inferences of fact are to be drawn from the testimony, it is the exclusive province of the jury to determine what they are.</p> <p>Negligence — Railroads—Gontributory negligence — Master and servant— Riding in dangerous place — Province of court and jury.</p> <p>In an action to recover damages for the death of plaintiff’s husband, a brakeman, employed by the defendant railroad company, the case is for the jury where the evidence for the plaintiff tends to show that the deceased was killed by the derailing of a train which was running on a defective roadbed, and the evidence for the defendant shows that before the accident the deceased was not in his proper place, but was sitting on a brake wheel, a place of danger; but it is not clear that at the time of the accident he was sitting in this dangerous position.</p>

Appeal, No. 117, July T., 1895, by plaintiffs, from judgment of C. P. Crawford Co., May T., 1891, No. 47, for defendant non obstante veredicto. Ejectment for a tract of land in Rockdale township. Before Noves, P. J., of the 37th judicial district, specially presiding.

<p>Appeals, Nos. 79, 80, 81 and 82, Jan. T., 1896, by defendants, from decree of C. P. Cumberland Co., May T., 1893, No. 1, on bill in equity.</p> <p>Bill in equity to specifically enforce a contract.</p> <p>Biddle, P. J., filed an opinion of which the following is a copy except that some matters immaterial to the decision are omitted.</p> <p>2. The contract, duly executed and delivered by the parties is set forth in the plaintiff’s bill, viz :</p> <p>“ This agreement, made this thirtieth day of September, 1882, between the Pennsylvania Railroad Company, of the first part, the Cumberland Valley Railroad Company, of the second part, the South Mountain Railway and Mining Company, of the third part, and the Gettysburg and Harrisburg Railroad Company, of the fourth part;</p> <p>“ Whereas, the party of the first part owns a line of road from Philadelphia to Pittsburg, and the party of the second part a line extending from Harrisburg, on said Pennsylvania Railroad, down the Cumberland Valley;</p> <p>“ And whereas, the party of the third part owns and controls a line of railroad extending from South Mountain Junction, a point on the said Cumberland Valley Railroad near Carlisle, Pennsylvania, to Pine Grove, Pennsylvania, and the party of the fourth part desires to secure the construction of an extension to said road from a point at or near Hunter’s Run to the town of Gettysburg, in the State of Pennsylvania, a distance of about twenty-one miles;</p> <p>“ And whereas, for the purpose of procuring a portion of the means necessary to construct and equip said extension, the said Gettysburg and Harrisburg Railroad Company, in pursuance of the power and authority in it duly vested, has resolved to issue and offer for sale its bonds to the amount of two hundred and fifty thousand dollars, bearing date the second day of October, 1882, and payable'thirty years from date, bearing interest at six per centum per annum, payable semi-annually, and secured by a first mortgage upon its railway property and franchises, and the parties of the first and second parts are willing to aid the negotiation of the said bonds in the manner hereinafter set forth.</p> <p>“ Now, therefore this agreement witnesseth:—</p> <p>“ First. That in consideration of the covenants to be performed by the other parties hereto, the Pennsylvania Railroad Company hereby agrees that during each year before the maturity of the said bonds, unless the said bonds should be sooner purchased or the application of the fund herein provided cease under the provisions of this contract, and then only until the happening of either of such events, it will set apart, furnishing to the trustee of the mortgage of the fourth part hereto an account thereof, fifteen per centum of the gross sums due or accruing to it upon all freight and passenger traffic to or from all points on said Gettysburg and Harrisburg Railroad and Philadelphia and Pittsburg, or any point upon its main line between the same.</p> <p>“ Second. In consideration of the like covenants, the Cumberland Valley Railroad Company hereby agrees that during each year before the maturity of said bonds it will also in like manner set apart (as particularly mentioned in the preceding clause), furnishing to the trustee above mentioned an account thereof, fifteen per centum of the gross sums due or accruing to the said company upon all freight and passenger traffic to or from any point upon said Gettysburg and Harrisburg Railroad and State Line, or any point on its main line between those termini.</p> <p>“ Third. It is hereby covenanted that the said sum of fifteen per centum so to be contributed as aforesaid shall be applied annually to the purchase of the bonds aforesaid at their lowest market value, not exceeding par and interest for and on account respectively of the parties contributing the money therefor, the said trustee to give twenty days’ public notice, by three insertions in one newspaper in the city of Philadelphia, that it will receive proposals from the holders for the sale of said bonds. All bonds so purchased out of the said fund shall be delivered by the trustee to the parties hereto of the first and second parts respectively, supplying the funds for that purpose, in proportion to the amount supplied by each, who shall be subrogated to the rights of the original holders, and the same shall bear interest in their hands and be held by them with the same rights as pertained or pertain to the bonds outstanding in the hands of other holders.</p> <p>“ Should the said fund not be required in any other year for the purchase of bonds as aforesaid by reason of there being no offers of bonds to the trustee aforesaid, the said fund shall to that extent lapse for such year and become the absolute property of the company agreeing to contribute the same. It being understood, however, that any memorandum which may be placed upon said bonds to show that they are entitled to the benefit of purchase by the fund hereinbefore referred to, shall be so placed on said bonds that it can be detached, and shall be detached by said trustee when they are so purchased and canceled, and said bonds shall not again be entitled to the benefit of the said fund.</p> <p>“ It is further understood and agreed, that in the event of the foreclosure of the mortgage securing the said bonds or the consummation of legal or equitable proceedings under which said Gettysburg and Harrisburg Railroad should be sold, or its ownership changed, the provisions of this contract in regard to the setting aside and application of the said fund for the purchase of said bonds, shall, at the option respectively of the parties of the first and second parts, thereupon cease and determine.</p> <p>“ Fourth. It is hereby covenanted and agreed by the parties hereto, that they will promote and facilitate the interchange of cars and business between their respective roads — that they will issue coupon tickets for passengers and through bills of lading for freight interchanged between the said lines, and that the earnings from joint business exchanged with the Gettysburg and Harrisburg Railroad, shall be apportioned to and between the parties hereto on such a mileage basis as shall be agreed upon between the parties hereto.</p> <p>“Fifth. The parties of the third and fourth parts hereby respectively covenant and agree that they will, so far as they lawfully can, send to destination all traffic controlled by them, via the lines of the parties of the first and second parts hereto.</p> <p>“ Sixth. It.being the intent of the parties hereto that their lines shall be worked as far as possible in harmony with each other, the Pennsylvania Railroad and the Cumberland Valley Railroad Companies hereby agree that they will, so far as they can consistently with their obligations to other parties, make such arrangements as will promote the development of and interchange of traffic with the other parties hereto, and that they will receive at all points controlled by them, and promptly transport the traffic originating on or to be delivered to the Gettysburg and Harrisburg Railroad and passing over their lines to or towards its destination at as favorable rates as they accord to any competing line or other parties upon like traffic.</p> <p>“ And the said South Mountain Railway and Mining Company and the Gettysburg and Harrisburg Railroad Company agree that they will receive and transport promptly over their lines' and upon as favorable terms as they give to any other parties, all traffic tendered to them by the Pennsylvania Railroad Company, or the Cumberland Valley Railroad Company or lines controlled by them and destined to points upon their said lines.</p> <p>“ Seventh. All settlements of accounts between the parties hereto under this agreement, and payments of money relating thereto, shall be made monthly, except as hereinbefore provided.</p> <p>“ Eighth. Nothing in this contract shall be so construed as to give the use of the roads and facilities of the first and second parts hereto to any party whose interests may be at variance with or unfriendly to the said parties, nor shall the same be used hereunder to divert from the parties of the first and second parts traffic properly tributary to the lines controlled by them.</p> <p>“ In case of any difference or dispute arising out of the transactions under this agreement, the same shall be submitted to arbitration. Within thirty days after notice shall have been given by either of the parties hereto to the others, there shall be chosen one arbitrator by the parties of the first and second parts, and one by the parties of the third and fourth parts, and these two shall select a third like disinterested and competent party. The three arbitrators so chosen shall examine into the cause of dispute or difference, and the decision of a majority of them shall be final and binding between the parties hereto upon the matter in question. In case either of the said parties shall fail to appoint a referee within the thirty days aforesaid, then and in that event the referee appointed by the party not in default shall appoint a referee for the defaulting party, and the said two referees so appointed shall select a third, and the three so chosen shall hear and decide such differences, their decision, or that of a majority of them, to be final and conclusive between the parties hereto.”</p> <p>3. The party of the fourth part, the Gettysburg & Harrisburg Railroad Company, in pursuance of that agreement, on the 2d day of October, 1882, executed a mortgage to the Commonwealth Guarantee Trust & Safe Deposit Company, of Harrisburg, Pennsylvania, recorded in recorder’s office, Cumberland county, Pennsylvania, Mortgage book Q, page 517, securing the payment of $250,000 of bonds in denominations of $1,000 and $500 respectively, and payable on the 1st of October, 1912, with coupons thereto attached, with interest at the rate of six per cent per annum, payable semiannually. The ' trustee in said mortgage, in pursuance of the agreement of September 30,1882, attached to each of the bonds issued under that mortgage, a memorandum of the said contract of September 30, 1882, containing tbe things to be done by the Pennsylvania Railroad and the Cumberland Yalley Railroad under said agreement, and the said memorandum was so attached that it could be detached therefrom by said trustee, as provided for in said agreement. Under the said agreement and the memorandum thereof attached to the bonds, secured by said mortgage, the negotiation of said bonds was greatly assisted, and it added to the value of the said bonds so that the same were never sold under par and interest; and the said railroad was completed and put in operation and open for traffic April 21,1884.</p> <p>4. Under the said contract of the 30th of September, 1882, the Pennsylvania Railroad Company and the Cumberland Yalley Railroad Company, parties of the first and second parts respectively, made returns to the Commonwealth Guarantee Trust & Safe Deposit Company, trustee in the said mortgage of the Gettysburg & Harrisburg railroad of October 2, 1882, annually, of their gross earnings respectively from freight and passenger traffic to and from the said Gettysburg & Harrisburg Railroad over and from the lines of the said railroad companies, and they have made those returns down to and including the 30th of September, 1894; and each year they have each paid over to the said trust company fifteen per cent of said gross earnings, and the said trust company, in pursuance of the provisions of the said agreement, has each year advertised for bonds secured by the said mortgage to be purchased by it for the said railroad companies out of the said fifteen per cent of the gross earnings so returned and paid as aforesaid. And the said trustee purchased for the Pennsylvania Railroad Company in the year 1885, $4,000 of said bonds; in the year 1886, $2,500 of said bonds; in the year 1887, $2,000 of said bonds; in the year of 1888, $4,000 of said bonds; in the year 1889, $4,000 of said bonds; in the year 1890, $2,500 of said bonds, aggregating $19,000. And for the Cumberland Yalley Railroad Company, the said trust company purchased in the year 1885, $3,500 of said bonds; in the year 1886, $2,500 of said bonds; in the year 1887, $3,000 of said bonds; in the year 1888, $3,500 of said bonds; in the year 1889, $2,500 of said bonds; in the year 1890, $3,000 of said bonds; aggregating $18,000, for which par and accrued interest was paid by said trust company. For the years 1891, 1892, 1893 and 1894, no bonds were offered to the said trust company under its advertisement therefor, and the fifteen per cent paid in each of those years by each of the said railroad corporations to the said trust company was returned to the railroad companies in accordance with the provisions of the contract of September 30, 1882. At the time of the purchase by the said trust company of the bonds for the said railroad companies, a memorandum containing an abstract of the provisions of the contract of September 30, 1882, attached to said bonds, was detached by the said trust company so that the said bonds could not be purchased or turned in a second time under the fifteen per cent of the gross earnings set apart by the said railroad corporation and paid over to the said trust company.</p> <p>5. The undertaking by the Pennsylvania Railroad Company and the Cumberland Valley Railroad Company to make returns of the amount of their gross earnings on freight and passenger traffic to and from the Gettysburg & Harrisburg Railroad Company in setting apart the fifteen per cent thereof for the purchase of the bonds of the said railroad company secured by the said mortgage, and the memorandum of the provision of the contract of September 30, 1882, attached by the trust company to each of said bonds issued under said mortgage, was a valuable consideration passing from the said railroad corporations to the Gettysburg & Harrisburg Railroad Company and to the holders of the bonds under its mortgage, and the said consideration is a continuing one until the maturity of the bonds secured by said mortgage, unless the said bonds should be sooner purchased or the application of the said fund cease under the provisions of said contract, and then only until the happening of either of said events.</p> <p>6. The Pennsylvania Railroad Company, the Cumberland Valley Railroad Company, the South Mountain Railway & Mining Company, and the Gettysburg & Harrisburg Railroad Company, each complied with the terms and conditions of the contract of September 30,1882, from the time of the completion and putting in operation of the Gettysburg & Harrisburg Railroad down to June 14, 1891, and since that time the Pennsylvania Railroad Company and the Cumberland Valley Railroad Company have been ready and willing to continue to comply with the terms and conditions thereof.</p> <p>7. On May 21,1891, the Philadelphia & Reading Railroad Company, by A. A. McLeod, its president, entered into a contract with J. C. Fuller and John M. Butler for the purchase of a controlling interest in the capital stock of the Gettysburg & Harrisburg Railroad, and of the entire capital stock of the South Mountain Railway & Mining Company, and at the time of the execution of that contract of purchase,' A. A. McLeod, president of the Philadelphia & Reading Railroad Company; and J. C. Fuller, president of the Hunter’s Run & Slate Belt Railroad Company, had notice and full knowledge of the provisions of the contract of September BO, 1882, and in that contract of purchase, the Philadelphia & Reading Railroad Company covenanted to guarantee the bonds of the Gettysburg & Harrisburg Railroad Company, secured by the said mortgage to the Commonwealth Guarantee Trust & Safe Deposit Company, to guarantee the payment of certain bonds issued by the South Mountain Railway & Mining Company, and certain other bonds specified in the said contract of purchase; and also covenanted to join in a lease and traffic contract between the South Mountain Railway & Mining Company and Hunter’s Run & Slate Belt Railroad Company, by which that portion of the railroad of the South Mountain Railway & Mining Company, extending from Hunter’s Run to Pine Grove, about eight miles, should be leased to said Hunter’s Run & Slate Belt Railroad for a period of nine hundred and ninety-nine years, and that there should be a traffic contract between the Hunter’s Run & Slate Belt Railroad and the leased portion of the railroad of the South Mountain Railway & Mining Company and the Philadelphia & Reading Railroad Company. The said Philadelphia & Reading Railroad .Company also, by the said contract of purchase, covenanted for the merger and consolidation of that portion of the South Mountain Railway & Mining Company’s Railroad running from Carlisle to Hunter’s Run and the Gettysburg & Harrisburg Railroad, running from Hunter’s Run to Gettysburg, into one corporation, and that after such merger and consolidation, there should be placed upon the said railway a mortgage in the sum of $565,000 securing bonds specified therein; the payment of which was also to be guaranteed by the Philadelphia & Reading Railroad Company; and $185,000 of those bonds so guaranteed, were to be delivered to the said J. C. Fuller and John M. Butler in full payment for inter alia a controlling interest in the capital stock of the Gettysburg & Harrisburg Railroad Company, and of all the capital stock of the South Mountain Railway & Mining Company, and they were so delivered to them on November 4, 1891, and receipted for on the said contract of purchase. The remainder of the bonds secured by said mortgage, the Philadelphia & Reading Railroad Company covenanted to set apart for the payment of the then existing liens upon the Gettysburg & Harrisburg Railroad and the South Mountain Railway & Mining Company, and agreed that the Hunter’s Run & Slate Belt Railroad Company should be indemnified by it against every claim or incumbrance arising under the existing mortgage and stock upon that part of the road south of Hunter’s Run. On October 14,1891, the board of directors of the Philadelphia & Reading Railroad Company authorized the guarantee by that company of the bonds set forth in the contract of purchase of May 21, 1891.</p> <p>8. In pursuance of the provisions of the contract of purchase of May 21, 1891, on July 13, 1891, the Hunter’s Run & Slate Belt Railroad Company, the South Mountain Railway & Mining Company and the Philadelphia & Reading Railroad Company entered into a lease and traffic contract by which the South Mountain Railway & Mining Company leased to the Hunter’s Run & Slate Belt Railroad Company that portion of its railroad extending from Hunter’s Run to Pine Grove for a period of nine hundred and ninty-nine years. The Philadelphia & Reading Railroad Company covenanted that during the continuance of that lease, it would not construct, cause to be constructed, or be a party to the construction of any line of railroad between Hunter’s Run & Pine Grove, and to indemnify and save harmless the Hunter’s Run & Slate Belt Railroad Compairy against every claim or incumbrance against the leased line arising under the existing mortgage and bond of the South Mountain Railway & Mining Company, the stock of said company, and against every other lien or incumbrance hereafter at any time to be created by the South Mountain Railway & Mining Company or its successors; and the said Hunter’s Run & Slate Belt Railroad Company covenanted, during the continuance of said contract, to send to destination all traffic of every kind and nature so far as it lawfully could by way of the lines of the South Mountain Railway & Mining Company, and its connections, and the lines of the consolidated company in which the said South Mountain Railway & Mining Company may be merged, and of the lines owned, controlled and operated by the Philadelphia & Reading Railroad Company; and the board of directors of the Philadelphia & Reading Railroad Company on September 9, 1891, approved the execution of the said traffic contract and lease.</p> <p>9. On July 16, 1891, the Gettysburg & Harrisburg Railroad Company and the South Mountain Railway & Mining Company executed an agreement of merger and consolidation between that portion of the South Mountain Railway & Mining Company, extending from Carlisle to Hunter’s Run, and the Gettysburg & Harrisburg Railroad Company, extending from Hunter’s Run to Gettysburg, into one corporation, under the name of the Gettysburg & Harrisburg Railway Company, which agreement of consolidation and merger was authorized and approved and directed by the stockholders of the said respective corporations and their boards of directors.</p> <p>10. On May 22, 1891, the day succeeding the execution of the contract of purchase and sale of the stock of the Gettysburg & Harrisburg Railroad Company and the South Mountain Railway & Mining Company, the respective boards of directors of said corporations met in the city of Philadelphia, and the several members thereof, in turn, resigned, and the vacancies created by their resignations were filled, .... by officers and employees of the Philadelphia & Reading Railroad Company, and they have been officers and directors of the Gettysburg & Harrisburg Railway Company from the time of the agreement of merger and consolidation down to the present time, and are so to-day.</p> <p>11. Prior to June 14, 1891, the trains of the Pennsylvania Railroad Company and the Cumberland Valley Railroad Company, the railroad of the South Mountain Railway & Mining Company, and the Gettysburg & Harrisburg Railroad Company were so run that close connections of certain passenger and freight trains were made between the said railroads so that they were operated practically as one line of railroad, and in harmony with each other; and under the provisions of the contract of September 80, 1882, the Pennsylvania Railroad Company, the Cumberland Valley Railroad Company, the South Mountain Railway & Mining Company, and the Gettysburg & Harrisburg Railroad Company agreed upon a mileage basis for the division of freight and passenger earnings which was apparently satisfactory to the several corporations, and through bills of lading and through coupon tickets were issued by the respective companies, and the railroads were all operated practically as part of the same railway system. On June 14, 1891, by the order of I. A. Sweigard, general superintendent or general manager of the Philadelphia & Reading Railroad Company, without conference with the Cumberland Valley Railroad Company or the Pennsylvania Railroad Company, or either of them, the running of trains on the Gettysburg & Plarrisburg Railroad and the railroad of the South Mountain Railway & Mining Company was so changed that all connections theretofore existing between them and the lines of the Cumberland Valley Railroad and the Pennsylvania Railroad were broken, and so continued.</p> <p>12. On July 1, 1891, by the order of B. H. Bail, general freight agent of the Philadelphia & Reading Railroad Company, the through billing of freight from and to points on the Gettysburg & Plarrisburg Railway to and from points on the Pennsylvania Railroad and the Cumberland Valley Railroad was broken, and re-billing was required at Gettysburg Junction, where the Gettysburg & Harrisburg Railway joined the Cumberland Railroad, and subsequently to that time, the Philadelphia & Reading Railroad Company removed from the ticket offices on the line of the Gettysburg & Harrisburg Railway Company their coupon tickets theretofore used between the line of that railroad and the Cumberland Valley and Pennsylvania Railroads and substituted therefor other tickets. For points on the Pennsylvania Railroad two tickets were issued, one being a ticket to Plarrisburg, and the other, called a “ feeder,” from Harrisburg to the point of destination, whilst for points on the Philadelphia & Reading Railroad a single “ local ” ticket has been in use. On the 18th day of April, 1892, the general passenger agent of the Philadelphia & Reading RaiLroad Company refused to fix rates for excursion trains during the coming season, which should be received from the Cumberland Valley Railroad, to be run to and from Gettysburg on the line of the Gettysburg & Plarrisburg ■Railway, preferring to receive and take them from Harrisburg .over lines controlled by the Philadelphia & Reading Railroad.</p> <p>The authorities of the Philadelphia & Reading Railroad Company charged in all cases, including excursions, after July 1, 1891, local rates for each passenger to and from points on line of the Gettysburg & Harrisburg Railway to points on the lines of the Pennsylvania Railroad and the Cumberland Valley Railroad. It adopted, without conference with the Pennsylvania Railroad Company, fixed charges per ton, called “ arbitrarles,” on all merchandise routed to and from points on the line of the Gettysburg & Harrisburg Railway to points on the lines of the Pennsylvania Railroad, also a fixed sum on each ton of anthracite and bituminous coal, colie, and upon all live stock, and has since maintained and collected said fixed charges (see discussion of “mileage basis,” post p. 539).</p> <p>From and after said rates were fixed the business, passenger and freight, interchanged between the Pennsylvania Railroad Company and the Gettysburg & Harrisburg Railway Company .... and of the Cumberland Valley Railroad Company from the interchange of freight and passenger traffic to and from the Gettysburg & Harrisburg Railway Company [largely] decreased. . . . The business of the Gettysburg & Harrisburg Railway Company during these years was increasedandnot decreased, and the agents at stations on the line of the Gettysburg & Harrisburg Railway sent to destination all freight and passenger traffic via the lines of the Philadelphia & Reading Railroad Company whenever such traffic was not otherwise controlled or differently directed.</p> <p>' The said Gettysburg & Harrisburg Railroad, merged into the Gettysburg & Harrisburg Railway, has failed to issue coupon tickets for passengers from Gettysburg and other ticket stations on its line via the Cumberland Valley & Pennsylvania Railroad to stations on the line of the Pennsylvania Railroad, and in a number of instances the agents at the ticket stations have refused to sell tickets to Harrisburg via the Cumberland Valley Railroad. It has failed* and refused to issue through bills of lading for freight to be shipped from freight stations on its line to destinations via the lines of the Cumberland Valley and Pennsylvania Railroads, or either of them. It has failed to send to destination all such traffic via the Philadelphia, Harrisburg & Pittsburg Railroad; or the Philadelphia & Reading Railroad, or both. It has failed to furnish some of the agents on its lines with rates on freight to be shipped from points on its road to destination via the Cumberland Valley and Pennsylvania Railroads, or either of them, but has furnished the same agent with rates for freight via the Philadelphia, Harrisburg & Pittsburg Railroad and the Philadelphia & Reading Railroad. It has not run its passenger trains so as to afford the passenger trains of the Cumberland Valley Railroad close and convenient connections at Gettysburg Junction, which is the point of intersection of the two roads, although the said trains did formerly have such connection, but since June 14, 1891, the passenger trains of the Gettysburg & Harrisburg Railway Company have been run to conform to the time of, and closely connect with, the passenger trains of the Philadelphia, Harrisburg & Pittsburg Railroad Company and the Philadelphia & Reading Railroad Company.</p> <p>13. The Philadelphia & Reading Railroad Company, in relation to the Gettysburg & Harrisburg Railway Company, simply owns a controlling interest in the capital-stock of that company. The Gettysburg & Harrisburg Railway Company is a separate and distinct corporation from the Philadelphia & Reading Railroad Company, and has its own board of directors. It is not under lease to the Philadelphia & Reading Railroad Company and has no operating contract with said company.</p> <p>14. Prior to the making of the contract of September 30,1882, the Pennsylvania Railroad Company controlled a line of road extending from Philadelphia to Hanover, a distance of one hundred and eighteen miles. The Hanover Junction, Hanover & Gettysbury Railroad controlled the line of railroad extending from Hanover to Gettysburg, a distance of sixteen miles, which on November 1, 1886, was merged into and became a part of the Western Maryland Railroad. From 1876 tire Pennsylvania Railroad had an arrangement for the interchange of freight and passenger traffic to and from Gettysburg with the Hanover Junction, Hanover & Gettysburg Railroad down to November 1, 1886, and thereafter with the Western Maryland Railroad.</p> <p>15. The application of the Pennsylvania Railroad Company to the Western Maryland Railroad Company for rates on anthracite coal to Gettysburg, Pa., via Hanover, Penn., was made about four weeks after the fixing of an arbitrary rate on such coal of 75 cents per ton from Gettysburg Junction to Gettysburg when routed via the Cumberland Valley Railroad.</p> <p>16. Neither the Philadelphia & Reading Railroad Company nor the Hunter’s Run & Slate Belt Railroad Company was a party to the agreement of September 80,1882, or bound by its provisions. . . .</p> <p>18. Immediately after the acquisition of the stock of the Gettysburg & Harrisburg Railroad Company by the Philadelphia & Reading Railroad Company, the latter, with the consent of the former, went into possession of its railroad, and upon the merger of the Gettysburg & Harrisburg Railroad Company and the South Mountain Railway & Mining Company, taking effect July 30, 1891, the Philadelphia & Reading Railroad Company went into a complete and exclusive possession of the whole line of railroad between Gettysburg Junction near Carlisle, and Gettysburg, and thereafter until February 20, 1893, ran and operated the said railroad, under an arrangement by which the said Philadelphia & Reading Railroad Company received all the income thereof, made all disbursements on account thereof, and accounted to the Gettysburg & Harrisburg Railway Company for the net balance, if any. After June 14, 1891, neither the said Gettysburg & Harrisburg Railroad Company, nor aftei July 30, 1891, the consolidated company, the Gettysburg & Harrisburg Railway Company, had any operating officials, anc did not continue in the possession and use of the said railroad or any part thereof.</p> <p>19. From and after February 20, 1893, the receivers of the Philadelphia & Reading Railroad Company have been in possession of the railway between Gettysburg Junction and Gettysburg, and have operated the same under the order of the circuit court of the United States for the eastern district of Pennsylvania, made upon said 20th day of February, 1893, in the case of Platt v. The Philadelphia & Reading Railroad Company et al., and they are now in possession of and are operating the same as one of the railroads “ owned, leased or operated by the said Philadelphia & Reading Railroad Company.” . . .</p> <p>20. On July 13, 1891, the South Mountain Railway & Mining Company leased to the Hunter’s Run & Slate Belt Railroad Company all that part of the railroad of the former extending from Hunter’s Run to Pine Grove Furnace, and thereupon the latter company entered into possession of the said railroad, and from that time to the present has operated tíre same as the lessee thereof.</p> <p>21. After the contract of September 30, 1882, and until the' Philadelphia & Reading Railroad Company went into possession of the Gettysburg & Harrisburg Railway, the parties to the said agreement had not, by any other agreement between them, permanently fixed the mileage basis upon which it was provided that the earnings from joint business should be apportioned between them. Whatever division of joint earnings existed between said parties previous to 1891 had been made by operating officers only.</p> <p>22. The line of the railroad between Shippensburg and Harrisburg, which is that of the Philadelphia, Harrisburg & Pitts-burg Railroad Company, is leased to and operated by the Philadelphia & Reading Railroad Company. It crosses the Gettysburg & Harrisburg Railway at Carlisle Junction about six miles south of Carlisle, and is a shorter route from CarlisleJunction to Harrisburg than that via Gettysburg Junction and the Cumberland Valley Railroad.</p> <p>23. The said Philadelphia, Harrisburg & Pittsburg Railroad affords to all persons shipping or receiving goods from or at any-point on the Gettysburg & Harrisburg Railway south of CarlisleJunction, and from or at any point on the railroad operated by the Hunter’s Run & Slate Belt Railroad Company between Hunter’s Run and Pine Grove Furnace, a shorter line' of transportation than that via Gettysburg Junction and the Cumberland Valley Railroad.</p> <p>24. That the Philadelphia, Harrisburg & Pittsburg is a competitive railroad with the Cumberland Valley Railroad; that it was opened to the public after the agreement of September 30, 1882, namely, in May, 1891; that it was thereupon leased to' the Philadelphia & Reading Railroad Company, and that said' latter company, irrespective of its operation of the Gettysburg & Harrisburg Railway, invaded the territory theretofore exclusively covered as to outlet by the Cumberland Valley Railrdad, and solicited and secured by its agent, Dubbs, part of the traffic of said.territory via the Philadelphia, Harrisburg & Pitts-burg and Philadelphia & Reading Railroads. . . .</p> <p>26. After the opening of the Philadelphia, Harrisburg & Pittsburg Railroad and the operation of the Gettysburg & Har risburg Railway by the Philadelphia & Reading Railroad Company, some of the shippers upon the lines of the Gettysburg & Harrisburg Railway, and upon the railroad between Hunter’s Run and Pine Grove, routed the goods shipped by them, and in case of goods shipped to them, directed their consignors to ship such goods, via the Philadelphia, Harrisburg & Pittsburg Railroad and the lines of the Philadelphia & Reading Railroad Company.</p> <p>27. The evidence does not show that all of the loss of freight traffic to the Cumberland Valley Railroad and the Pennsylvania Railroad, from the Gettysburg & Harrisburg railroad, via Gettysburg Junction, is due to any breach of the agreement of September 30, 1882, but it shows that part of such loss has been caused by the lawful diversion of said business, by the Philadelphia, Harrisburg & Pittsburg and Philadelphia & Reading Railroads, competitors with the said Cumberland Valley and Pennsylvania Railroads.</p> <p>28. From the time the Philadelphia & Reading Railroad Company operated the Gettysburg & Harrisburg Railway, there were not any agents of the Gettysburg & Harrisburg Railway Company.</p> <p>29. The evidence does not show that the Hunter’s Run & Slate Belt Railroad Company has, from the time of the making of the lease of July 13, 1891, to the present time, sent to destination by way of the Philadelphia, Harrisburg & Pittsburg and the Philadelphia & Reading Railroads, or lines owned, controlled and operated by the latter, any traffic controlled by the Hunter’s Run & Slate Belt Railroad Company, originating on the railroad between Hunter’s Run and Pine Grove Furnace, which might have been lawfully sent via the Cumberland Valley and the Pennsylvania Railroads.</p> <p>30. The evidence does not show that the Hunter’s Run & Slate Belt Railroad Company from the time of the making of the lease of July 13,1891, refused or failed to observe and perform, as to the railroad between Hunter’s Run and Pine Grove, any of the covenants of the agreement of September 30, 1882, which were made by the South Mountain Railway & Mining Company. *</p> <p>31. The Pennsylvania Railroad Company, in 1891, made an árrangement with the Western Maryland Railroad Company for the interchange of passenger business to and from Gettysburg via Lancaster, York and Hanover, and thereafter acted under the said agreement — the said agreement being that the Pennsylvania Railroad Company should run through cars and a solid passenger train to and from Gettysburg, so as to make close connection with the main line of the Pennsylvania Railroad at Lancaster.</p> <p>32. That neither the said Cumberland Yalley Railroad Company nor the Pennsylvania Railroad Company did at any time demand arbitration for any alleged breach of the agreement of September 30, 1882, in accordance with the provisions thereof.</p> <p>FINDINGS OF LAW.</p> <p>We affirm the following legal propositions submitted by plaintiffs:</p> <p>1. The agreement dated September 30,1882, set forth in full in plaintiffs’ bill, is and was a valid contract upon valuable consideration, binding upon all the parties thereto.</p> <p>2. Said agreement was not revocable upon notice, or at the will of either party, but continued until rescinded by consent or determined by its terms.</p> <p>3. The plaintiffs have no adequate remedy at law for breach of said agreement. The only adequate remedy is in equity, by specific performance and injunction.</p> <p>4. That the directors of the Gettysburg & Harrisburg Railway Company suffered their road to be controlled and managed by the Philadelphia & Reading Railroad Company in the manner shown by the evidence, was a justification and excuse to the Pennsylvania Railroad Company in mailing the arrangement it did with the Western Maryland Railroad Company, in reference to passenger and freight traffic.</p> <p>5. There is nothing to prevent a decree of specific performance against the Gettysburg & Harrisburg Railway Company by reason of the control and management of said road by the Philadelphia & Reading Railroad Company.</p> <p>We affirm the following legal propositions submitted by defendants :</p> <p>6. The bill does not disclose or show any ground for equitable relief against the Philadelphia & Reading Railroad Company, by reason of its ownership of the majority of the stock of the Gettysburg & Harrisburg Railway Company.</p> <p>7. The Philadelphia & Reading Railroad Company did not become bound to observe the contract of September 30, 1882, by reason of the payment of the advertising bills of the Commonwealth Guarantee Trust & Safe Deposit Company of Harrisburg, or by reason of the letters of Mr. McLeod of May 27 and June 18, 1891.</p> <p>8. The provision at the end of the fourth paragraph for an' apportionment of the earnings from joint business, “ on such a mileage basis as shall be agreed upon between the parties hereto,” did not commit the parties in the absence of a subsequent agreement upon that subject, or, in case of an agreement or a practice fixing a mileage basis for the time being, to a continuance thereof beyond the will of the parties.</p> <p>9. A shipper of goods, which to reach destination has to pass over one or more other connecting lines, may “ route ” the same by any line he pleases, and the shipping road is bound to observe his directions.</p> <p>10. Traffic which is “routed” by a shipper in a particular way, for instance, merchandise shipped from Gettysburg and other points on the Gettysburg & Harrisburg railway to Harrisburg, or from Pine Grove and other points on the railroad between that point and Hunter’s Run, via Carlisle Junction and the Philadelphia, Harrisburg & Pittsburg Railroad, is not traffic controlled by the Gettysburg & Harrisburg Railway Company and the Hunter’s Run & Slate Belt Railroad Company within the terms of the fifth paragraph of the contract of 1882.</p> <p>DISCUSSION BY THE COUNT.</p> <p>The bill in this case was filed on the 4th day of March, A. D.' 1893, against the three railroad companies which are named as defendants. On March 15, 1893, upon motion of counsel for plaintiffs, the circuit court of the United States, in and for the eastern district of Pennsylvania, made an order granting leave to make the receivers of the Philadelphia & Reading Railroad Company parties defendant in the case, and on May 9, 1893, an amendment to the bill was allowed by this court by adding thereto as parties defendant Edward M. Paxson, Elisha P. Wilbur and Joseph S. Harris, the receivers aforesaid. All of the defendants were duly served with, process and have appeared and made answer to the complaint. An examination of the agreement of September 30, 1882, shows that, in letter as well as in spirit, the covenants therein are jointly made by the parties of the first and second parts and jointly by'the parties of the third and fourth parts and there is, therefore, no technical objection to the maintenance of the action in its present form. . . .</p> <p>The contract of September 30,1882, is a conscionable one, with mutual covenants, and it in no wise infringes upon the rights of the public. Its whole purpose was to increase the business of the contracting parties in a perfectly legitimate manner. A railroad company has an undoubted right to enter into a just and fair arrangement with a corporation or association of men, whereby its business will be increased, although the effect of the arrangement may be to take business from others. The right of connecting railroad corporations to make contracts for through rates is incident to their powers unless prohibited by their charters : Munhall v. Railroad Co., 92 Pa. 150. In Tonawanda R. R. Co. v. N. Y., L. E. & W. R. R. Co., 42 Hun, 496, a traffic agreement between two railroad companies, by which each covenanted that it would use its influence to promote the interests and business of the other, so far as it could do so with a proper regard for its own interests, was held to be valid. It was there further held that the parties having entered upon and enjoyed the benefits of the contract for a long period of time, it was too late for one of them to assert that the contract was void because it had no power to secure its performance in the manner stipulated in the instrument; neither party could assert such a defense after entering upon and enjoying the benefits of the contract. A court will not refuse to enforce specific performance of a contract between railroad companies because it involves acts of a continuou.s and perhaps complicated character extending over a long period of years. In Union P. R. R. Co. v. Chicago, R. I. & P. R. Co., 51 Am. & Eng. Railroad Cases, p. 162, the following language is used: “ The next objection made to this decree is that this contract is not one of which specific performance can be enforced in equity; that the acts to be performed under it are so numerous and complicated, and their performance is to extend through so long a term of years, that it would be impracticable for any court to supervise and enforce such performance. The question here presented is no longer open for consideration in the federal courts. It is settled adversely to the appellants by the decision in Joy v. City of St. Louis, 138 U. S. 1.” ... It is a settled rule in equity that the specific performance of a contract -will not be decreed, unless its terms are clear and capable of ascertainment from the instrument itself; so courts of equity will not ordinarily entertain bills for the specific execution of contracts with variations or additions, or new terms to be made or introduced into them by parol: Hammer v. McEldowney, 46 Pa. 334. The proposition is conceded by all parties concerned that where goods have to pass over two or more connecting lines in order to reach their destination, the shipper may designate the route and the shipping road must observe his directions. In the matter of jurisdiction, it is not material to this case that there was no demand for arbitration, under the ninth article of this agreement, before suit brought. The provision in regard to arbitration which is there contained is not adequate to oust the jurisdiction of the courts: Commercial Union Assurance Co. v. Hocking, 115 Pa. 407.</p> <p>MILEAGE BASIS.</p> <p>We are asked by the plaintiffs to decree that the Gettysburg & Harrisburg Railway Company shall apportion upon a mileage basis the earnings arising from joint business exchanged by it with the lines of plaintiffs, and to adjudge the twenty mile block system to be a proper basis for apportionment. Upon the subject of the division of earnings, the only provision in the agreement is that “ the earnings from joint business exchanged with the Gettysburg & Harrisburg Railroad, shall be apportioned to and between the parties hereto on such a mileage basis as shall be agreed upon between the parties hereto.”</p> <p>It will be noticed that this applies only to business exchanged with the party of the fourth part and not to business interchanged among the other three parties, and that it does not fix a definite mileage basis. Prior to July 1, 1891, the earnings arising from joint business were divided on a twenty mile block basis. The testimony in the case is to the effect that this division was inequitable to the Gettysburg & Harrisburg Railroad Company and that said company could not continue to exist under such an arrangement. On June 4, 1891, at a meeting between the representative freight agents of the Cumberland Yalley Railroad Company and the Philadelphia & Reading Railroad Company, a memorandum was made of a proposed division of the earnings from freight traffic exchanged between the former company and the Gettysburg & Harrisburg Railroad Company, on a fifty mile block basis, which proposed division was subsequently declared by the general freight agent of the former company to be satisfactory, and it only went into effect on July 1,1891. The same through rates were continued in force as previously, the only change being in the method of apportionment between the two companies. An arrangement by which “ arbitrarles ” were charged on business exchanged between the line of the Gettysburg & Harrisburg Railroad Company and on the line of the Pennsylvania Railroad Company also went into effect on the same date. These arbitrarles, which were ostensibly “ figured on a basis of fifty miles for all points on the Gettysburg & Harrisburg Railroad,” in reality constituted charges on the basis of blocks of one hundred miles, and they were intended to give the average charges upon that block system. The division between the Gettysburg & Harrisburg Railway Company and the Philadelphia & Reading Railroad Company was upon the same mileage block basis. Special arbitrarles for anthracite coal, etc., were also fixed. The above mentioned rates have continued in force ever since. . . . After a careful consideration of all the facts of the ease, we are satisfied that the court would not be justified in adjudging the twenty mile block system to be a proper basis for the apportionment of joint earnings, and further, that, there is not anything in the bill taken in connection with the evidence which would warrant a decree of any kind in relation to a mileage basis.</p> <p>THE PHILADELPHIA & READING RAILROAD COMPANY.</p> <p>It was urged on the argument that the bill should be dismissed as to the Philadelphia & Reading Railroad Company for the reason that it does not show any lawful ground for the relief which is prayed for against that company. The fact that, with knowledge of the agreement of September 30, 1882, it secured the ownership of the majority of the shares of the capital stock of the South Mountain Railway & Mining Company and of the Gettysburg & Harrisburg Railroad Company, and thereby procured the election of boards of directors of both companies favorable to itself, with the intent of securing the business of said companies, clearly does not in itself afford sufficient basis for the injunction asked for. By the terms of the act of April 23, 1861 (Purd. Dig. p. 1810, pl. 156) it was lawful for the Philadelphia & Reading Railroad Company to purchase and hold the stock of the above mentioned companies, and after it had acquired a majority of the stock it had the same rights in relation thereto that any other purchaser would have had. A shareholder has a right, at a meeting of shareholders, to vote upon a measure, even though he has a personal interest therein separate from that possessed by others. In such a meeting each shareholder represents himself and his interests solely, and he in no sense acts as a trustee or representative of others. The law of self interest has at such times very great and proper sway and a shareholder commits no wrong when he votes his stock in favor of a resolution to purchase property from himself: Gamble v. Q. C. W. Co. et al., 123 N. Y. 91. In N. W. Trans. Co. v. Beatty, L. R. 12 App. Cas. 589, one of the directors of a company, who owned a majority of the capital stock therein, contracted to sell to the company a vessel which he owned, and it was held that at a meeting of the stockholders he had a right to vote his stock in favor of ratifying the contract and concluding the purchase.</p> <p>An investigation into personal interests of the numerous shareholders voting at a general meeting would obviously be very difficult, if not impossible, and great uncertainty would result if the validity of acts of the majority were made to depend upon such an investigation. It has, therefore, been held, for reasons of convenience amounting to a practical necessity, that shareholders in a corporation are not disqualified from voting at a general meeting of the company by reason of their individual interests in the result of the vote: Morawetz on Priv. Corp.,Sec. 477.</p> <p>When the proposed action of the majority stockholders, or of a board of directors representing them, is fraudulent or unduly oppressive to tbe minority holders, the latter may maintain an action to enjoin the contemplated step; but we know of no principle which would sustain the position that a majority stockholder can he held responsible to one not a stockholder, because lie lias voted his stock in favor of propositions which are unfavorable to the outsider’s interests. But the plaintiffs further state in their bill that the Philadelphia & Reading Railroad Company since it obtained control, in May, 1891, of the lines of the South Mountain Railway & Mining Company and the Gettysburg & Harrisburg Railroad Company, has operated said roads as part of the Philadelphia & Reading system, in such manner as to promote the interchange of business with itself, to the exclusion as far as possible of the plaintiffs’ roads and other lines. It is further stated that since the acquisition of control as aforesaid by the Philadelphia & Reading Railroad Company and by reason thereof, the above mentioned parties of the third and fourth parts to the agreement of September 30, 1882, and the company into which they were consolidated in July, 1891, have not kept the covenants and stipulations of the said agreement, although requested to do so. Our 18th finding of fact'sots forth in a general way the facts in relation to the operation of the merged lines by the Philadelphia & Reading Railroad Company as follows :</p> <p>“ Immediately after the acquisition of the stock of the Gettysburg & Harrisburg Railroad Company by the Philadelphia & Reading Railroad Company, the latter with the consent of the former, went into possession of its railroad, and upon the merger of the Gettysburg & Harrisburg Railroad Company and the South Mountain Railway & Mining Company, taking effect July 30, 1891, the Philadelphia & Reading Railroad Company went into complete and exclusive possession of the whole line of railroad between Gettysburg Junction, near Carlisle, and Gettysburg, and thereafter until February 20, 1893, ran and operated the said railroad, under an arrangement by which the said Philadelphia & Reading Railroad Company received all the income thereof, made all disbursements on account thereof, and accounted to the Gettysburg & Harrisburg Railway Company for the net balance, if any.</p> <p>“After June 14,1891, neither the said Gettysburg & Harrisburg Railroad Company, nor after July 30, 1891, the consolidated company, the Gettysburg & Harrisburg Railway Company, had any operating officials, and did not continue in the possession and use of the said railroad or any part thereof.” The said Gettysburg & Harrisburg Railway Company was not, at the date the bill was filed, March 4,1893, in the possession of the railroad between Gettysburg Junction and Gettysburg, and is not now in possession thereof.</p> <p>There is no prayer in the bill against the Philadelphia & Reading Railroad Company for specific performance, but the only prayer in relation to that company (except prayer 2 which is refused, because immaterial), is that numbered 5 for an injunction to restrain it “from exerting or using the control, obtained by stock ownership, in the said Gettysburg & Harrisburg Railway Company in any wise to the detriment of the' rights of the plaintiffs under the said contract of September 30th, 1882.” Would the court be justified in granting the injunction prayed for? Under the principles of law above referred to we are of the opinion that the Philadelphia & Reading Railroad Company has a right to use its control obtained by stock ownership in the Gettysburg & Harrisburg Railway Company, in any way that it deems best, so long as the minority stockholders are content, and that the injunction asked for in prayer 5 should not be granted. Any remedy, therefore, which may be granted to the plaintiffs against the Philadelphia & Reading Railroad Company can be allowed only under, and by virtue of, the prayer for general relief. We are also of opinion that the fact that the Philadelphia & Reading Railroad Company has taken actual possession of the lines of the consolidated companies, and conducted their operations exclusively through its own officials, cannot properly be considered to be the result of a control obtained by stock ownership, although without such ownership it ■would doubtless not have been able to take possession. Therefore if the prayer in the bill were for an injunction restraining the Philadelphia & Reading Railroad Company from holding possession of and operating the Gettysburg & Harrisburg Railway, to the detriment of the rights of the plaintiffs under the contract of September 30, 1882, it would correctly state the only relief against the first named company which under any circumstances the bill would justify; and would present to the court the real problem which is entirely irrespective of stock ownership.</p> <p>The question then arises whether the court under the prayer for general relief should consider the subject as if the last mentioned special prayer had actually been made, and grant relief in accordance therewith, if a proper case has been shown both by the bill and proofs to sustain it. In regard to whether the bill has shown a sufficient case, it will be noticed that whilst it does not contain an express averment that the Philadelphia & Reading Railroad Company has taken possession of the lines of the Gettysburg & Harrisburg Railway Company, yet it does contain the averment that the lines of the latter company “ have been operated ” by the former, as part of the Philadelphia & Reading system.</p> <p>This expression is a general one, and is entirely consistent with the facts which appear in the eighteenth finding, and its signification is sufficiently broad to warrant the implication that it was intended to cover all of said facts as well as any others of a similar character which might appear in detail in evidence. A general charge or statement of the matter of fact is sufficient, and it is not necessary to charge minutely all the circumstances which may conduce to prove the general charge; for these circumstances are properly matters of evidence which need not be charged to let them in as proofs : Story’s Eq. Pl. sec. 28.</p> <p>The rules of practice on the subject of special relief are thus stated: The usual course is for the plaintiff to make a special prayer for the particular relief to which he thinks himself entitled, and then to conclude with a prayer for general relief at the discretion of the court. The latter can never be properly and safely omitted; because if the plaintiff should mistake the relief, to which he is entitled in his special prayer, the court may yet afford him the relief, to which he has a right, under the prayer for general relief, provided it is such relief as is agreeable to the case made by the bill: Story’s Eq. Pl. sec. 40; Slennner’s Appeal, 58 Pa. 155. Although the special relief asked may not be allowed, yet the court will, if possible, grant such relief as the allegations will support, in order to meet the demands of justice between the parties; so where a bill asking for an assignment of a mortgage was not allowed, yet the court, upon certain averments in the bill, sustained it as a bill to redeem; 6 Am. & Eng. Ency. of Law, p. 764. It is well settled, as a general principle, that where a court of equity has obtained jurisdiction for one purpose it may retain it generally for relief: Allison and Evans’ Appeal, 77 Pa. 221. We are satisfied that, in the present action, although the prayer for special relief by injunction is defective, suitable relief may be granted under tbe general prayer, in accordance with tbe equities of tbe case, both against the Philadelphia & Reading Railroad Company and its receivers, notwithstanding there was no special prayer against the latter. It seemed to be conceded at the argument, though not distinctly admitted, that the fact that the receivers had been made parties defendant by leave of the court which appointed them, made them amenable to the decree of this court in all respects as fully as the other parties. If the practice in the United States courts should prove to be otherwise, the plaintiff should apply to the court which appointed the receivers for leave to have the subjoined decree against them carried into effect.</p> <p>We have found as a fact that the contract of May 21, 1891, was executed by A. A. McLeod, president of the Philadelphia & Reading Railroad Company, with notice and full knowledge of the provisions of the agreement of September 30, 1882. This was notice to the company which he represented, upon the familiar doctrine that a principal is charged with notice of every fact coming to the knowledge of his agent, which is connected with the business in which the agent is employed. It was he who negotiated for the purchase of a controlling interest in the capital stock of the parties of the third and fourth parts to the agreement of September 20,1882, and it was he who affixed the name of the Philadelphia & Reading Railroad Company to the contract of purchase. Notice to him of any fact relating to the business which was being transacted was clearly notice to the company of which he was both president and agent. We determine in a later part of this opinion that a lessee of a portion of the road of the South Mountain Railway & Mining Company, with notice of the agreement of September 30, 1882, is bound to observe the terms thereof. A fortiori, the Philadelphia & Reading Railroad Company is bound to observe its terms.</p> <p>THE HUNTEB’s BUN & SLATE BELT BAILBOAD COMPANY.</p> <p>The position is taken on behalf of the Hunter’s Run & Slate Belt Railroad Company that there is no obligation on its part to observe the terms and provisions of the agreement of September 30,1882. Said company is the lessee of that portion of the line of the South Mountain Railway & Mining Company which extends from Hunter’s Run to Pine Grove, a distance of about eight miles. J. C. Fuller, the president of the lessee corporation, testified that prior to and at the time of the execution of the contract of May 21, 1891, for the sale of stock, both he and the said corporation had notice of the agreement of September 30, 1882. Under these circumstances the lessee became bound to carry out the terms of said agreement so far as they appertained to the portion of the road leased. The law upon this subject seems now to be settled. In Joy v. St. Louis, 138 U. S. 1, it was held that the covenants in a tripartite agreement between the commissioners of a park and two railroad companies, as to the use by other railroad companies of a right of way which was granted to the contracting companies through the park, were binding upon subsequent purchasers from one of the railroad companies, with notice. A large number of cases in support of the proposition are cited in the opinion of the court on page 34. Valid contracts made by a corporation survive even its dissolution by voluntary surrender or sale of its franchises: Railroad Co. v. Howard, 7 Wall. 392.</p> <p>The general rule is thus stated in 19 Am. & Eng. Ency. of Law, 897 : upon the execution of the lease, the lessee becomes bound by all the prohibitions and limitations contained in the charter of the lessor and assumes its rights, franchises and obligations.</p> <p>The evidence in the case has failed to show any violation by the Hunter’s Run & Slate Belt Railroad Company as to the leased road between Hunter’s Run and Pine Grove, of the covenants of the agreement of September 30, 1882, and for that reason the prayer for an injunction against it is refused. Yet as said company, by the contract of July 20, 1891, has covenanted for the period of nine hundred and ninety-nine years to send to destination, so far as it lawfully may, all traffic of every kind, by way of the lines of the consolidated company, and of the lines owned and controlled or operated by the Philadelphia & Reading Railroad Company, it is proper that there should be a decree against it for specific performance as to business interchanged between the roads of plaintiffs and the eight miles of leased road.</p> <p>Section 7 of prayer 3 of the bill is for a decree that the Gettysburg & Harrisburg Railway Company shall run its passenger trains so as to afford the passenger trains of the Cumberland Valley Railroad Company close and convenient connections at Gettysburg Junction, the point of intersection. There is no provision in the agreement of September 30, 1882, that its passenger trains shall he so run, and the decree ashed for would have no better basis than an implication from the general covenants in said agreement in relation to promoting and facilitating the interchange of cars and business between the respective roads of the parties thereto. With how many passenger trains of the Cumberland Valley Railroad Company should close connections be made, and with which particular trains ? The court has no light upon this subject, either in the agreement, the bill, or the evidence. The decree, if granted, would offend against the rule that a contract to be specifically enforced must be certain and definite in its terms, and against another rule, which is a deduction from the above, that equity may enforce agreements hut may not make them. The decree is therefore refused. *</p> <p>Section 8 of prayer 3 is for a decree that the Gettysburg & Harrisburg Railway Company shall operate its road exclusively in connection with the roads of plaintiffs, except as to shipments specifically routed or destined to points not reasonably accessible by said lines. We do not find any covenant in the agreement of September 30, 1882, which either expressly or by implication binds the parties of the third and fourth parts to so operate their roads, and the decree asked for is therefore refused. Section 9 of prayer 3 is also refused, for the reason that there is no evidence of the solicitation and exertion therein referred to. In accordance with the views hereinbefore expressed, we enter the appended decree.</p> <p>DECREE.</p> <p>And now June 26, 1895, the court does order and decree that the Gettysburg & Harrisburg Railway Company shall observe and perform those covenants in the agreement between the Pennsylvania Railroad Company, the Cumberland Valley Railroad Company, the South Mountain Railway & Mining Company and the Gettysburg & Harrisburg Railroad Company, dated September 30, 1882, arid recited in paragraph 2 of the bill, wbicb are to be performed by tbe third and fourth parties thereto, especially in the following matters, as to the performance of which we adjudge that breaches have been shown.</p> <p>Wherefore it is ordered and decreed that the Gettysburg & Harrisburg Railway Company shall do and perform as follows:</p> <p>First. It shall issue coupon tickets to passengers who shall travel from its line via the Cumberland Yalley Railroad and the Pennsylvania Railroad, or either of them.</p> <p>Second. It shall issue through bills of lading for freight which is shipped from its line via the Cumberland Yalley Railroad and the Pennsylvania Railroad, or either of them.</p> <p>Third. It shall send to destination all traffic controlled by it, via the Cumberland Yalley Railroad and the Pennsylvania Railroad, except traffic destined to points not reasonably accessible by those lines.</p> <p>Fourth. It shall receive and transport over its line, upon as favorable terms as it gives to any other railroad, all traffic interchanged by it with the Pennsylvania Railroad Company and the Cumberland Yalley Railroad Company, or either of them.</p> <p>Fifth. It shall furnish its agents with rates on freight via the Cumberland Yalley Railroad and the Pennsylvania Railroad, and shall not charge local rates to Carlisle on shipments routed via the Cumberland Yalley Railroad so long as such rates are not charged to all other lines.</p> <p>Sixth. The court does further adjudge and decree that the Hunter’s Run & Slate Belt Railroad Company henceforth treat clause 5 (which is recited in the bill) of the lease and traffic contract of July 18, 1891, as inoperative, null and void in so far as it conflicts with the rights of the plaintiffs, under the agreement of September 30,1882, and that it specifically perform the covenants of said agreement which are to be performed by the party of the third part thereto, as to business interchanged between the roads of plaintiffs and the leased road extending from Hunter’s Run to Pine Grove.</p> <p>Seventh. The Philadelphia & Reading Railroad Company and Edward M. Paxson, Elisha P. Wilbur and Joseph S. Harris, receivers of said railroad company, their directors, officers and agents, are hereby perpetually restrained and enjoined from holding possession of and operating the road of the Gettysburg & Harrisburg Railway Company in any wise to the detriment of the rights of the plaintiffs under the said agreement of September 30, 1882.</p> <p>Eighth. It is ordered that the costs in this action be paid equally by the Gettysburg & Harrisburg Railway Company and the Philadelphia & Reading Railroad Company, or the receivers thereof.</p> <p>Errors assigned were in overruling exceptions to the report of the trial judge.</p>

<p>Appeal, No. 91, Jan. T., 1896, by plaintiffs, from decree of C. P. Cumberland Co., May T., 1893, No. 1, on bill in equity.</p> <p>Bill in equity to specifically enforce a traffic contract.</p> <p>The facts appear by tbe case of tbe Cumberland Valley Railroad v. Gettysburg, etc. Railway, Appellants, supra, 519.</p> <p>Error assigned was the insufficiency of the decree.</p>

<p>Insurance — Fire insurance — Estoppel—Assignment for creditors — Insurable interest.</p> <p>An assignee for creditors of a person having property insured went to the agent of the insurance company shortly after the assignment and informed him of the assignment and proposed to have a transfer made. The agent assured him that it was not necessary, and therefore it was not done. The assignee subsequently paid an assessment demanded by the company. The assignee then sold the property, but before a deed was made to the purchaser, a fire occurred causing a loss. Held, that the insurance company was estopped from asserting the want of a transfer as a defense to its liability.</p>

<p>Appeal, No. 282, Jan. T., 1896, by-defendants, from judgment of C. P. Cumberland Co., Feb. T., 1894, No. 172, on verdict for plaintiff.</p> <p>Ejectment for a lot of land in New Cumberland. Before Stewart, P. J., of the 39th judicial district, specially presiding.</p> <p>At the trial it appeared that both parties derived title through Milton K. Brubaker. On January 4, 1888, Brubaker and wife conveyed the property to their daughter, Minnie M. Albright, wife of J. R. Albright, the consideration named being $6,500. On March 24, 1888, Minnie and J. R. Albright conveyed the land to Susan Brubaker, one of the defendants.</p> <p>The plaintiff contended that, notwithstanding the fact that in the deed from Milton K. Brubaker Mrs. Minnie M. Albright is named as the grantee, the property was her husband’s, and as such liable to seizure for his debts. At the suit of a creditor of the husband, a judgment was obtained March 2, 1888, the land levied upon as the property of the husband, and sold by the sheriff February 8,1889, to S. M. Leidich, who obtained the sheriff’s deed February 18, 1889. Leidich in turn conveyed to Catharine A. Fleming, who devised the premises to Annie K. Fleming, who, by deed dated December 19,1892, conveyed the same to W. D. Jack, the plaintiff. This debt of J. R. Albright was in existence at the time of the conveyance to his wife.</p> <p>Defendants offered deed of Minnie M. Albright and her husband, John R. Albright, to Susan Brubaker, dated March 24, 1888.</p> <p>It was objected to (1) because no title has been shown in Mrs. Minnie M. Albright; (2) the deed was not recorded until the year 1892, long after the sheriff’s sale.</p> <p>By the Court: Without a purpose to connect it with other evidence to be offered it would be irrelevant and immaterial. The objections are sustained, evidence excluded, bill sealed. [5]</p> <p>Defendants proposed to prove by J. R. Albright, that in the summer of 1886 he and Miss Minnie M. Brubaker both resided in the lower end of Cumberland county, she being a single young lady and he being a single man; that he began paying attentions to this young lady during that summer at her father’s house a number of times ; that the parents objecting, the daughter, Miss Brubaker, was sent to attend school at the Female College at Annville, Pa.; that Mr. Albright pursued his courtship by meeting her down at the college and at Lebanon; that the courtship lasted during that fall and up until the 14th of January, 1887, and on that day he had a conversation with her, on the subject of marrying him, for about three hours; that he offered her all the inducements he could, among others a little farm which he had in East Pennsboro township: that she declined the little farm and all the inducements he held out to her, and as he was about to leave he said to her, “ Now, Minnie, I will tell you what I will do. I will give you $5,000 in money if you will marry me, and it is now or never. Make up your mind and let me know; ” that she then or immediately subsequent to that said to him, “ If you will do that. I will marry you.” He then arranged to meet her on the 20th of January, 1887, when they went to Camden and were married in consequence of this agreement of his to pay her this money; that he subsequently paid her moneys amounting to over $5,000, at first in small sums, she importuning him from time to time to pay her the $5,000; that he tried to get her to take the little farm, as he had tried to do before marriagethat she refused, and that then he sold the little farm in September, 1887, and in December, 1887, gave her $1,500 in cash, and on the 4th of January, 1888, he and his wife and Mr. Brubaker and Mrs. Brubaker came to Carlisle to their counsel, Judge Herman, and there he furnished her $3,000 more in cash, which, with the $1,500, was paid as part of the purchase money of the property now in dispute, and that $2,000 of the purchase money being unpaid, was reserved and fixed as a lien on the property. That at the time he made this engagement he owned two farms, a large one and small one; that he sold those farms, and they were more than sufficient to pay every dollar of debt he owed; that he did not then believe that he had a creditor in the world; that he denied owing the note, and denies now that he ever owed a dollar on the note of Annie Fleming; that judgment was obtained on that note in his absence, and when he was sick, and that there was no consideration for it; that he sold these farms in the fall of 1887, and upon the payment of the purchase money satisfied every debt and lien against him in the world; this for the purpose of showing a valid consideration for the conveyance, and rebutting all presumptions of fraud.</p> <p>It was objected to, that Catharine Fleming, the devisor of Annie Fleming, who is the grantor of Mr. Jack, the plaintiff in this case, being dead, he is incompetent as a witness.</p> <p>By the Court: The competency of this witness does not alone depend on whether he is or is not a party to the contract or thing in action. It is enough to know that his wife is claiming adversely to a party on the record whose title is derived through a deceased grantor. She herself would be incompetent to testify. It follows that he is incompetent. The objection is sustained, the evidence is excluded, bill sealed. [6]</p> <p>The court charged in part as follows:</p> <p>[When the conveyance was made to Minnie M. Albright by Brubaker, who was admittedly the owner of the premises, the grantee in the deed was a married woman, the wife of J. R. Albright. The consideration in the deed was $6,500. In the absence of all evidence to the contrary the law presumes that this consideration money was derived from the husband. The plaintiff may securely rest on this presumption until it is overcome by evidence going to show that the money was the wife’s. In the present case the plaintiff has gone further, and has offered evidence that shows that at this very time the husband was insolvent, and that such application of his money to the purchase of property in the name of his wife would, if allowed to remain for her benefit, be a fraud upon his creditors.</p> <p>Apart from this consideration, however, the mere fact that the grantee, Mrs. Albright, was a married woman at the time of the conveyance to her, is sufficient for the purposes of the plaintiff. When the plaintiff showed this, the law cast upon those claiming title through the wife, the defendants here, the burden of showing that the property was purchased with her own means.] [4] This burden they have failed to meet. No evidence whatever has been offered to overcome the presumption that it was the husband’s money that purchased the property, and so I instruct you to find a verdict for the plaintiff for the land described in the writ.</p> <p>Defendants’ point and answer, among others, were</p> <p>1. The evidence in the case shows that the purchase of the property in dispute was made by Mrs. Albright on the 4th of January, 1888, for $6,500, $4,500 of which was paid and $2,000 of which was reserved and secured by a lien fixed in the title, and there being no evidence that this was not her money, or that there was any fraud in the transaction, since the act of 1887, it does not devolve upon her to show where she obtained the money, and the verdict should be for the defendants. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1, 3) directing verdict for plaintiff instead of for defendants; (2, 4) above instructions, quoting them; (5, 6) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 299, Jan. T., 1896, by plaintiff, from judgment of C. P. Cumberland Co., non obstante veredicto.</p> <p>Assumpsit on a contract in writing. Before Biddle, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[In ease you find in favor of the plaintiff, the verdict should be in dollars and cents for the value of seventy-seven and a half acres at $5.00 per acre, which is the price Mr. Lehman paid for the land, namely: for three hundred and eighty-seven dollars and fifty cents ($387.50), with interest from October 31, 1894, which is the date on which suit was brought and demand thereby first made.] [2]</p> <p>The judge reserved the following question:</p> <p>Is the agreement of April 3, 1882, an entire and nondivisible one, in the sense that no recovery can be had thereon by the plaintiff, unless he proves that it has been legally decided that the title to all the land conveyed by Mrs. Given to Paxton and by Paxton to the plaintiff is ‘ invalid, and that all of said land has been recovered by persons having a superior and better title to the same.</p> <p>V.erdict for plaintiff for $417.40, subject to a question of law reserved. The court subsequently entered judgment for defendant non obstante veredicto.</p> <p>Errors assigned, among others, were (2) above instruction, quoting it; (3) entering judgment for plaintiff non obstante veredicto.</p>

<p>Street railways — Constitutional law — Act of May 14, 1889 — Eminent domain — Damages—Injunction.</p> <p>The act of May 14, 1889, P. L. 211, entitled “ An act to provide for the incorporation and government of street railway companies in this commonwealth,” is in its general purpose and character within the constitutional powers of the legislature, but section 17, in so far as it undertakes to confer upon a street railway company the absolute right to lay its tracks upon a turnpike without payment or security for the payment of just compensation to the turnpike company, violates section 8 of article XV. of the constitution of Pennsylvania, which directs that corporations “ shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.”</p> <p>A turnpike company obtained an injunction to restrain a street railway company from laying tracks across its turnpike. The street railway company procured the appointment of viewers under the provisions cf sec. 17 of the act of May 14,1889. The viewers made an award, their report was confirmed, and the damages as found by them were paid into court. No security was entered for the payment of any other damages. The court then dissolved the injunction. The turnpike company appealed from the decree dissolving the injunction. Held., (1) that the decree of the lower court was erroneous, as no security had been entered for the payment of a just compensation as it might be finally ascertained upon the disposition of the appeal; (2) that the act of May 14. 1889, sec. 17, in So far as it failed to provide for proper security, was unconstitutional; (3) that the Supreme Court would not direct the injunction to be restored if the railway company should, within ten days after notice, give security to be approved by the court below for the payment of such sum as might be found due upon the disposition of the appeal.</p>

<p>Set-off- — Promissory notes — Certificate of stock — Conditional assignment.</p> <p>A person holding a chose in action assigned to him conditionally cannot set it off against a debt due by himself.</p> <p>Where a defendant in a suit obtains possession of a demand from a third person upon the understanding that it shall not be his property, or that he shall be liable to the owner only in the event of his being able to set it off in his suit, it cannot be so employed by the defendant.</p> <p>S. was indebted to an insolvent bank on promissory notes. H. was the owner of two certificates of deposit issued by the bank. After the insolvency of the bank S. obtained from H. the certificates of deposit under an agreement by which he was to use them, if he could, in paying his notes either in full or in part. S. was to pay II. only the amount of the credit he obtained on his notes by reason of his use of the certificates. There was no sale or assignment of the certificate to S. Held, that S. had no right to use the certificates as a set-off against his notes.</p>

Appeal, No. 56, July T., 1895, by W. H. Horton, administrator of Hezekiah Horton, from decree of C. P. Elk Co., Sept. T., 1893, No. 3, on bill in equity. Exceptions to report of E. P. Geary, Esq., master, distributing the funds of the insolvent bank. Exceptions to report of master.

<p>Appeal, No. 293, Jan. T., 1896, by W. H. Horton, Administrator of Plezekiah Horton, deceased, from decree of C. P. Elk Co., Sept. T., 1893, No. 3, on bill in equity.</p>

<p>Banks and banking — Promissory notes — Discount—Deceivers.</p> <p>Where a bank discounts notes, and subsequently has the same notes discounted by another bank, the indorsement oí the first bank is a mere contingent liability which can never become absolute if the notes are paid at maturity by the makers, and the second bank has no right to include such notes with other unpaid notes, and claim from the receivers of the first bank a dividend upon the whole amount. The second bank, however, is entitled to a dividend upon rediscounted notes falling due after the receivers were appointed, which were either not paid at all, or only partially paid.</p>

Appeal, No. 140, Jan. T., 1896, by defendant, from order of C. P. Warren Co., Dec. T-, 1894, No. 41, making absolute a rule for judgment for want of a suffificient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before Notes, P. J. Reference is made to the case of Blood v. Crew Levick Co., 171 Pa. 328, for certain facts.

<p>Appeal, No. 278, Jan. T., 1896, by defendant, from judgment of C. P. Warren Co., March T., 1895, No. 6, on verdict for plaintiff.</p> <p>Trespass for libel. Before Noyes, P. J.</p> <p>At the trial it appeared that A. D. Wood was a manager of the Producers’ Oil Company, Limited, a company engaged in the business of transporting oil by pipe line. On April 11,1894, the defendant’s paper, the Oil City Derrick, published the following article:</p> <p>“ A PROMISING SCHEME.”</p> <p>“A. D. Wood, the variously notorious young Napoleon of politics and pipe lines, will assembly his small brood at Warren this morning, and together vote on the proposition to turn over the Producers’ Oil Company’s real pipe line to the refiners and exporters doing business as the fake United States Pipe Line, a concern that exists on paper and subsists on wind. Mr. Wood has accomplished some surprising things in his day. Without a following in politics, he has set up a political boss ; without brains or capital or credit, he has appeared at the head of a gigantic business enterprise requiring liberal bank balances and a large mental endowment. He never yet has succeeded in anything he has undertaken involving the peace and prosperity of the community, for the excellent reason that he is invariably associated with movements that ought not to succeed. We dare say that his scheme to steal a pipe line from the poor producers in order to give it to the opulent refiners and arrogant exporters masquerading as the United States Pipe Line, will fail, as it properly should. It would seem that there is no limit to the greed of this fiend in corporate form, the insatiate monster called United States Pipe Line. Up in McKean county it has Billee Burdick, the boy statesman, running for assembly, and if he is elected the refiners and exporters’ pipe line will have a personal representative in the legislature. This is a good place to say much and saw Wood. Saw his official head off.”</p> <p>A. D. Wood resided in the borough of Warren, county of Warren, Pennsylvania, and some time in the month, of Maj^, 1894, he made a complaint charging the defendant with criminal libel, and caused a warrant to be issued for his arrest, which was served in Oil City, Venango county, Pennsylvania. Defendant gave bail for his appearance at June term, 1894, in the court of quarter sessions of Warren county. ' An indictment was found against him in the court of quarter sessions of Warren county, and the case was tried at the term commencing the first Monday of December, 1894, and resulted in a verdict of acquittal on the evening of December 6,1894, just before court adjourned. On the morning of the 7th, Mr. Boyle entered the courthouse, and while waiting for court to convene in order that he might be discharged, he was called into the rear room and taken into custody by the sheriff on the capias issued in this case. Application was immediately made to the court to set aside the service of said capias on the ground of privilege, and a rule to show canse was granted, which rule was after-wards discharged by the court. [1]</p> <p>The court charged in part as follows:</p> <p>There is evidence tending to show that he (the defendant) is the editor and publisher of a newspaper called the Oil City Derrick, in which the article appeared; that copies of that paper were received regularly in Warren; that one of the copies which is alleged to have been sent out from the office at Oil City to the agent in Warren, and by him delivered to the subscribers, is presented to you. If you find that this paper is one of the edition published in Oil City, and was so delivered and published by the defendant, then he has published the article within this county.</p> <p>[The next question is whether or not the article is libelous in character. And this presents the first question of law. It is for the court to read the article and to say whether its terms, on its face, come within the definition of a libel. And I am bound by my duty to say to you, gentlemen, that this article is libelous ; that it has a tendency to defame the character and to lower the reputation of the person about whom it is written; it has the tendency described in the definition which I have read and also the definition of our act of assembly, and hence it is a libel on its face, and the publisher of the article is liable to the person about whom it is written or published in damages, unless it is privileged — published on a privileged occasion — and he has shown the absence of malice, or the want of malice appears in the evidence.] [2]</p> <p>[The declaration, which I understand is mislaid and not here, contains certain parenthetical clauses in the quotation of the article, referring it to the plaintiff, and tending to define the article and give its clear meaning. Those are for you. It is for you to say whether A. D. Wood is the party about whom it is written. His name is used here — Is this the same person about whom it is written ? If you find thac he is, and this article was published in this county concerning Mr. Wood, then I saj/ to you it is a libel, and the plaintiff is entitled to recover some damages, unless something appears in the way of defense.] [3] And as to this the first question is whether or not the article was privileged. You will perhaps require some explanation about that.</p> <p>The press is free in this county, so is speech. It is perfectly free for any person to write or speak anything that he sees proper. There is no power in the government to restrain him from so doing, but he does it, under the constitution, subject to his responsibility. It does not relieve him if he publishes a libel, from any sort of responsibility for what he does. There are occasions when it is justifiable and proper for a man to make statements, either verbally, or in writing, or by printing, concerning another, which may tend to blacken his character or to defame him. As an example of that, I may call attention to the ease of a person who is a candidate for a public office of trust. . . .</p> <p>Now the rule which.I have spoken of concerning public officers applies to persons acting in a public character or relation. Sometimes an individual not a candidate for office may occupy such a position respecting the public that his conduct and his intentions and character generally become legitimate subjects of public information. . . . But although a person may be á candidate for office, or be occupying a public station, an officer of a corporation, or anything of that sort, and in that character subject to public criticism, he is not so subject to it in his private character or respecting private matters about which the public have no interest.</p> <p>In this case, gentlemen, there has been some evidence given tending to show that the Producers’ Oil Company, which is referred to in the article, was a limited partnership, so called — a joint stock company; that it had a pipe line for the transportation of oil; that it was taking oil from its stockholders and some other people, under some arrangement with them; that Mr. Wood was an officer of that company; that there had been a resolution passed by the managers, of whom Mr. Wood was one, to transfer some of its property, or looking to the transfer of some of its property, to the United States Pipe Line; that that transfer had been enjoined by the court of common pleas of Allegheny county, on the ground that the consent of all the stockholders was necessary; or at least that it would be illegal without such consent, or the consent of a majority of the stockholders, and that this was known to Mr. Boyle. And the attempt is made to justify this publication as privileged, under this evidence.</p> <p>[I feel bound by my duty to say to you that no occasion or privilege for the publication of such an article as this is disclosed in the evidence. Whether the Producers’ Oil Company, or the Producers & Refiners’ Pipe Line were actually common carriers or not; whether, in other words, they were offering to do anything for the public generally, or were merely receiving oil for certain persons with whom they chose to deal; in either case, there is no such occasion of privilege as would justify the publication of an article such as this one which has been read in your hearing. The criticism is not an attack upon Mr. Wood in his character as an officer dealing with the public. It relates to the transaction of business affecting only the stockholders of the company, and in which the public had no concern at all. And the tone of the article is such that it goes outside of any privilege which might be claimed in such a suit as this.</p> <p>Gentlemen, it follows from tins construction that if you find that the article was published by the defendant, you must find for the plaintiff some damages. If you find it was not so published, then you must find for the defendant.] [4] . . .</p> <p>[Some evidence was given on the part of the plaintiff of statements made by Mr. Boyle concerning the reason for this publication — not of this particular publication, but of other publications in the same direction. Also some evidence of a connection between Mr. Boyle and a company called the Derrick Publishing Company, and the connection of that company with certain other institutions, which are alleged to be rivals to the one with which Mr. Wood was concerned. This is all for you, gentlemen, as bearing all together upon the motive in the mind of Mr. Boyle; and the question whether or not he was actuated by actual ill-will and malice, and by that I mean any ill-will against Mr. Wood, personally; whether it was for mercenary purposes, a desire for gain, or done to gratify somebody else. This is a matter which you will consider in determining the damages.] [5] . . .</p> <p>On the part of the defendant I am requested to instruct you hi the first and third points concerning the character of the article published. They are both answered in the negative; because I have felt it my duty to say to you as a matter of law that this article is libelous. [6]</p> <p>1. Unless the jury believe that the publication charged in the plaintiff’s statement of claim is of a character such as to blacken the reputation of the prosecutor and thereby expose him to public hatred, contempt or ridicule, it is not defamatory and their verdict should be for the defendant.</p> <p>3. That in. determining whether or not an article is defamatory, the words are to be taken in the sense in which they are used and understood by the mass of the people in the locality where the article is published, together with the circumstances surrounding the writer and publisher at the time, taken in connection with the subjecfimatter of the publication and the circumstances surrounding it at the time.</p> <p>4. When a private corporation or private company devotes its property or business to a use in which the public have an interest, they, in effect, grant to the public an interest in such use and must to that extent submit to be controlled by the public for the common good, and the acts of its officers, as such officers, are matter proper for public investigation and information. Answer: I answer that by saying that I am not called upon to give an opinion as to all the matters stated in the point. But the acts of the officers of public companies, as well as individuals occupying aity public station, in the course of their relations with the public, are proper for public investigation and information. [7]</p> <p>5. If the jury believe that the Producers’ Oil Company, Limited, was engaged in receiving, transporting and storing oil in its tanks and through its lines from all oil producers and charging a remuneration therefor, then said company was engaged in a public employment or devoting its property and business to a use in which the public had an interest, and the acts of A. D. Wood, one of the company’s officers, was, as such officer, the subject of public investigation and information. Answer: The evidence does not justify me in charging you as requested in that point. [8]</p> <p>9. The plaintiff having introduced no evidence of actual damage, the jury, if it finds for the plaintiff, must give him only nominal damages, unless it finds that there was actual malice or negligence on the part of the defendant. Answer: I answer that in the negative, as it is put. You may give the plaintiff damages, substantial damages, although no actual damages have been shown — no actual estimate of the amount given to you,— the article being libelous, if you find it was published as I have stated, and provided that you find from all the evidence in the case that there was an injury to his reputation which justifies-it. You may take all the evidence in determining the amount, and if you find the case is such that the publication of this article has not injured anybody at all; if something were published of a libelous character, just over the line, but about a person of no character, who could not be injured in that way, had a bad reputation, you might possibly give nominal damages • — meaning by that very small damages, so small as to really make it contemptuous. Nominal damages, I understand in that sense in this point; and if that is what is meant, I say to you that you are not limited by the fact that the plaintiff has not given you any proof of actual injury, to such damages as that. But you ought not to add any damages by way of punishment, unless from the evidence you are satisfied there was actual malice, actual ill-will, or such gross negligence as amounts to the same thing. Now that you may find, if it exists, and you are satisfied from the article itself, its character and the circumstances surrounding it, — from all the evidence in the case. Or you may find it to be entirely absent, and as you find so you will find in your verdict. [9]</p> <p>[To sum it all up (I have endeavored to make this case clear to you), I say to you as matter of law, that if the defendant published this article in the county of Warren — that is, if he caused it to be published here, distributed here in his paper, it is in fact libelous, and the law presumes it to be malicious, and there must be some verdict in favor of the plaintiff; the amount of the damages depends on the circumstances which I have gone over — if you find those facts.] [10]</p> <p>Verdict for plaintiff for $1,000.</p> <p>The verdict was rendered on October 16, 1895. Before the judgment was entered the plaintiff died, and on December 80, 1895, his death was suggested of record. A rule was then taken to show cause why the judgment should not be arrested. This rule was discharged, and on February 8 judgment was entered by order of the court nunc pro tunc as of the first Monday of December, 1895. [11] Defendant appealed.</p> <p>Errors assigned were (1) refusal to set aside service of the capias ; (2-10) above instructions, quoting them; (11) refusal to arrest the judgment.</p>

<p>Appeal, No. 141, Jan. T., 1896, by defendant, from order of C. P. Warren Co., Sept. T., 1894, No. 45, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 347, Jan. T., 1896, by plaintiff, from judgment of C. P. Warren Co., March T., 1881, No. 258, for defendant, on trial by court without a jury. Issue to determine the validity of a judgment, before the court without a jury. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 30, Jan. T., 1896, by Thomas L. Kane and Evan O’N. Kane, from decree of G. P. McKean Co., Feb. T., 1895, No. 326, appointing trustees.</p> <p>Petition for appointment of trustees.</p> <p>Tbe facts sufficiently appear by the opinion of the Supreme Court.</p> <p>Tbe court, Morrison, J., entered the following decree:</p> <p>“And now, September 9, 1895, upon consideration, after hearing suggestions from the counsel for tire respective parties, the court appoints W. B. Smith and Milton Craven, of the borough of Kane, trustees, to fill the vacancies caused by the death of William Biddle and Thomas L. Kane.”</p> <p>Error assigned was (4) entering above decree.</p>

<p>Bill in equity, No. 235, Miscellaneous Docket, No. 1, against a municipal corporation.</p> <p>Bill in equity, filed in the Supreme Court by citizens and taxpayers of a municipal corporation against said corporation, its mayor and councilmen, to restrain the construction of waterworks.</p> <p>The facts appear by the opinion of the court.</p>