Volume 179 — Pennsylvania State Reports

<p>Appeal, No. 236, Oct. T., 1895, by defendants, from judgment of C. P. Venango Co., April T., 1892, No. 68, on verdict for plaintiff.</p> <p>Transcript of proceedings before a justice of the peace for the possession of a tract of land purchased by plaintiff at sheriff’s sale, and declaration in ejectment under the act of June 16, 1836. Before Taylor, P. J.</p> <p>The facts appear by the charge of the court and the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>Daniel Lutz, one of the defendants in this action, had a deed upon record for about one hundred acres of land in Clinton township, in this county. Judgment was obtained against him, the land was levied upon as his property and sold on August 31, 1891, by the sheriff to the plaintiff, George Beringer, for the consideration of $2,175. The defendants, being in possession of the land, the proceedings were instituted under our act of assembly, allowing that to be done before a justice of the peace, in order to recover possession of land that had been purchased at a sheriff’s sale. The magistrate then certified into the court of common pleas, to be tried here, as to whether the purchaser at the sheriff’s sale was the owner of the land and entitled to the possession. That is the issue that you are trying here. At the sheriff’s sale a notice was read in the hearing of bidders, notifying -them that the defendant, Henrietta Lutz, was the owner of sixteen twenty-thirds of the land; that she had paid the purchase money for that land, and that any party purchasing would purchase with notice of her claim upon that land. This was notice to the bidders of her equitable title in the land,- and afterwards if she could sustain that claim to it, she would be entitled to a verdict; it depending entirely upon the trial of this issue whether she could sustain what she notified the purchaser there.</p> <p>Gentlemen, in this case the deed for the land was made by James Porter to Daniel Lutz, the husband of Henrietta Lutz, the other defendant. The actual payment of the purchase money all through was made by Mr. Lutz. The deed from Porter to Lutz in connection with the judgment against Lutz, the- execution thereon, the sheriff’s sale and deed to the plaintiff, made a prima- facie case which, in the absence of rebutting evidence of such character as we will instruct you hereafter, would be sufficient to warrant a verdict for the plaintiff.</p> <p>The theory of Mrs. Lutz, and what she asks you to find is, that notwithstanding the deed was in the name of her husband, she was in fact the owner of sixteen twenty-thirds of the land; that the purchase money that was paid for this tract of land was derived from the sale of a small tract of land situated in'Lawrence county, containing about nineteen acres in all, thirteen of which she Said belonged to her, and the balance to her husband, and that she acquired title to that by devise. She asks you to find here that the title in that land became vested in her, although the legal title was in Daniel Lutz, her husband; that it was an advancement to her, intended to be an advancement towards her share in her father’s estate, and that the value of such advancement was to be §400, for which a note was given at that time; that at the time the title vested in her, it was agreed and was the intention that Lutz should hold a legal title to this part in trust for her, and that the §400, mentioned as the purchase money, should be an advancement upon her share in her father’s estate, to be charged up and deducted from her share upon the distribution of the estate after the death of the father and mother, and that it was so charged and deducted; that the money arising from this sale, all that receipted for by Lutz, to the amount of §1,400, belonged to her, and was paid to her shortly after the same was received by her husband; that she kept it separate and apart from any money of her husband’s; that at the time of the purchase from Porter she paid the first §100, and afterwards paid at different times of her own money §1,900 more. That is the theory of the defendants, and what they ask you to find.</p> <p>The plaintiff asks you to find that the oral evidence given in court, by which this trust in favor of Mrs. Lutz is sought to be sustained, is inconsistent with the acts of the parties, that it is in flat contradiction of the deeds, the receipts and all of the written evidence, except perhaps the distribution account which was given here, and papers belonging to her share in the estate of her father.</p> <p>[When a father advances money to his son or daughter, and takes a bond or note for its payment, the law presumes such transaction a debt and not an advancement. So too if interest is charged, the law presumes that it is a debt, and was a loan instead of an advancement. These are legal presumptions arising from the facts of the papers which have been given in evidence. . The papers show for themselves, but the legal presumptions arise upon this.] [13] [The presumption of law is that the property belongs to the husband and not to the wife, and the evidence to establish in her a separate estate in this land by gift or advancement from her father must be clear and satisfactory, and sufficient to repel all adverse presumptions. Contracts, notes, deeds, or other articles made at the time are the best evidence, not only as regards the ownership of title to land, but also as to who paid the purchase money.] [14]</p> <p>Upon the part of the defendant, the will of the father is given in evidence, showing that there was due to her, or that she did receive in all the sum of $2,634. That is the whole share of her estate.</p> <p>I might say to you that the notes we have spoken of, and all these papers, were in favor of the title of this land being in Lutz, so also yere the assessments. They are simply items of evidence, but' they are items which go to show title here. For instance, it is shown the whole number of acres was assessed to Daniel Lutz. After they Came to this county and purchased the land down here, the deed for that was taken in Daniel Lutz’s name, the land was assessed to him, and he paid the taxes. Those are items which go to point as to who was the owner of the land.</p> <p>Mrs. Lutz was called and she tells you, among other matter’s, of the alleged advancement of the thirteen acres in Lawrence county, and the sale of it, and the $1,400 she realized, and how she kept it separate and apart; and with that, and with the money obtained from her father’s estate, she tells you how she paid for this land, as she alleges, with her own money. Mr. Francis says that $100 was given to Lutz to vest in real estate, and the agreement was she was to have an interest in the farm according to the interest ;she put in. He tells you where she put the $1,400, and afterwards of her sending over to the executors to get the money.</p> <p>Mr. Pyle, one of the executors, says that in March, 1884, he gave Lutz $550, and he took at that time, I think, Lutz, and his wife’s note. Afterwards he gave him $520, and his note was given for that. The second note, was signed by Lutz alone. He says, too, these were taken out of her share in the estate. Also that the deceased had made advancements to his other children, in the same manner perhaps as he had to Mrs. Lutz.</p> <p>Mr. Dindinger says that he wrote a will for Mr. Pyle, and that he spoke of advancements to different children. Mrs. Lutz was one of them; that there was an advancement to Mrs. Lutz, and that it should be taken out of her share. Then we have a disclaimer of Daniel Lutz for all the land except what he held in trust for Henrietta Lutz. This is nearly all the testimony, gentlemen. There is a little more, but the whole testimony is about summed up in what we have indicated.</p> <p>An advancement is a pure and irrevocable gift made by a parent to a child, in anticipation of such child’s share in the parent’s estate, and -if such a gift is made, with the intention that it shall be an advancement, the title to the money or property vests in the child. If the intention existed at that time, and other matters, such as the. payment of money, etc., as hereafter cited, existed, and the facts are proved by such evidence, as we will say to you in a moment, that would vest a good title in Mrs. Lutz, and the creditors could not take it for an execution against Lutz for any debt of his.</p> <p>The plaintiff here holds under the legal title, and the strong presumption is that the actual ownership of the land is in conformity with the legal title, and this presumption cannot be overthrown except by clear, full and satisfactory evidence. The evidence to overthrow these solemn deeds, made under men’s hands and seals years ago, must be full, clear, unequivocal and satisfactory. [A resulting trust may be established or may be, fastened upon a legal title by the payment of the purchase money at the time of the purchase, with the clear understanding that a trust shall exist], [11] [but when parties voluntarily or otherwise place their rights to property, or allow it to be done by another, in such a position that they can only establish that by an attack, upon the written legal title, through the instrumentality of merely oral evidence, they cannot complain if they are held to that uniform measure of proof which will prevent frauds and perjuries, and secure double protection against the effects of frauds and perjuries to men who have purchased upon the faith of legal titles.] [12] Here the purchaser was a purchaser at the sheriff’s sale, and he purchased with notice, and .is not what is called in law an innocent purchaser.</p> <p>Plaintiff’s points and answers thereto among others were as follows: .</p> <p>1. After Caleb Pyle had passed the title to the thirteen acres of land in Lawrence county, by his deed to Daniel Lutz, in 1865, he could not several years thereafter, advance the same land to his daughter Henrietta, and thereby impress a trust therein in her favor. Such a trust could only be raised at the time the title passed to Daniel Lutz, her husband. Answer: Affirmed. [1]</p> <p>2. If Daniel Lutz, the husband, gave his note to Caleb Pyle in consideration for said thirteen acres of land, at the time the deed was made to him in 1865, payment of that note by Henrietta Lutz out of her share of her father’s estate a number of years thereafter, would not raise a trust in the land in her favor. Answer: Affirmed. [2]</p> <p>8. A trust in the land in controversy in this county could only be raised in favor of Henrietta Lutz by payment of the purchase money when the title passed and the deed was made from James Porter to Daniel Lutz. If Daniel Lutz, the husband, paid the #1,100, paid at that time, any payment she might subsequently make would not raise a trust in her favor. Answer : Affirmed. [3]</p> <p>4. When property is claimed, as in this case, by a married woman, against the creditors of her husband, the presumption is strong that the husband paid for it, and .that the property was his own, and the burden is upon her to prove by clear, explicit, unequivocal and satisfactory evidence that the purchase money was hers. Answer: Affirmed. [4]</p> <p>5. When, as in the case at bar, eleven years after land had-been purchased in the name of a husband, and after the interest of the husband in such land has been divested by a sheriff’s sale, the husband and wife, in the interest of the wife, attempt to hold and retain possession of such land as against the purchaser at the sheriff’s sale, and in order to do so attempt by their own parol evidence to overthrow a written agreement for the purchase of land made thirty-four years ago in the name of the husband, which agreement was consummated twenty-nine years ago by a deed to the husband, long after the death of the grantor of the last mentioned land and after the death of others having knowledge of the contemporary facts, and when neither the husband nor wife can remember by whom the deed or agreement was prepared, the testimony of such husband and wife, not only on account of their interest in the suit, but on account of the impossibility of the human mind to retain accurately a recollection of events transpiring so long since, should be most carefully scanned by the jury, and are entitled only to the most guarded credence, while all presumptions of law arising from the written evidence of the transaction should be given full weight by the jury. Answer: Affirmed. [5]</p> <p>6. The fact that Caleb Pyle took first a written agreement and afterwards a note from Daniel Lutz, which in terms covered the price of the land in Lawrence county conveyed to him, raises in law a presumption against an advancement to Henrietta Lutz. Answer: Affirmed. [6]</p> <p>8. If, as claimed by defendants, Caleb Pyle, deceased, by his will intended to direct that the note of Daniel Lutz should be taken from the share of Henrietta Lutz, then such will raises a presumption against a gift or advancement to Henrietta Lutz. Answer: Affirmed. [7]</p> <p>9. The executors of the last will of Caleb Pyle, deceased, were not required by its terms to deduct from the share of Henrietta Lutz the note of Daniel Lutz for $420 given by him, as claimed by plaintiff, in payment of the land in Lawrence county, and such deduction, if permitted by Henrietta, was a voluntary payment of her husband’s debt by her. Answer: That is so if you find that was his debt. They were not bound to do it, but if it was upon an agreement made long ago that it should be done, the executors might do it. [8]</p> <p>Defendants’ points and answers thereto were, among others, as follows:</p> <p>9. The fact that the husband gave-his note for the money, at the time it was advanced, would not convert his situation of trustee into that of a mere debtor. Answer: That is affirmed. That alone would not, but the giving of a note raises a presumption that the transaction- was a loan and not a gift or advancement. [9]</p> <p>13. If the jury further find that the debt on which the plaintiff claims title did not exist until over two years after that time, then the defendant, Mrs. Lutz, is entitled to a verdict for so much of the land as the amount of this money that she paid on the land bears to the whole purchase money. Answer: That is affirmed if the jury further find that the money was hers in her own right, either advanced to her or derived from her separate estate. [10]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1-14) above instructions, quoting them.</p>

<p>Appeal, No. 454, Jan. T., 1896, by Cornelius Smith, from order of C. P. Lackawanna Co., May T., 1896, No. 18, making absolute a rule to disbar Cornelius Smith, an attorney at law.</p> <p>Rule to disbar an attorney. Before Edwards, J.</p> <p>The rule was as follows:</p> <p>Lackawanna County, ss:</p> <p>It appearing that Cornelius Smith, Esq., a member of the bar of Lackawanna county, being the defendant in a certain action pending in the court of common pleas of said county, at the suit of I. H. Burns, to No. 781 September term, 1895, wherein a rule was pending before Hon. F. W. Gunster and Hon. H. M. Edwards, judges of this court, to strike off an appeal from an award of arbitrators taken by the said Cornelius Smith, wrote and sent the following letters :</p> <p>“Scranton, Pa., Dec. 31, 1895.</p> <p>“ Hon. F. W. Gunster :</p> <p>“Dear Sir: — I confess I was puzzled when Your Honor told me you had not handed down the opinion in the rule to show cause why the appeal should not be stricken off. A respectable member of the bar informed me that on last Monday Your Honor handed down an opinion discharging the rule, and upon a statement being made by Mr. Burns and Mr. Kasson, Your Honor took back the opinion for further consideration. But as you say otherwise, I suppose I have been misinformed.</p> <p>“ Yours truly,</p> <p>“ C. Smith.”</p> <p>“ Scranton, Pa., March 13, 1896.</p> <p>“ Hon. F. W. Gunster :</p> <p>“ Dear Sir: — Being your friend from the very first day of my introduction to you, it would seem that I might at least claim fair treatment at yonr hands. More than this I do not want, nor have I ever from any man claimed more. It being stated to me that in open Court you announced your opinion in the case of Burns v: Smith, et al., discharging the rule to show cause why the appeal should not be stricken off, and at the request of Mr. Kasson and Burns in my absence you took the opinion back; upon further inquiry this statement was confirmed by other gentlemen who were then present in court. Now, if you once had the case, and once decided it, it does not seem to me to be either just or fair for you to turn the case over to another Judge.</p> <p>“ Respectfully yours,</p> <p>“C. Smith.”</p> <p>And the statements in the said letters with regard to the alleged disposition of the said rule by the said judges being untrue, and the said Cornelius Smith having been so informed by Judge Gunstbe, prior to the writing of the last of the said letters, a rule is now entered upon the said Cornelius Smith to show cause why he should not be removed from his office of attorney of this court, and his name stricken from the rolls thereof, on the ground:</p> <p>1. That the said letters reflect upon the official honesty and integrity of Hon. F. W. Gunster, one of the judges of this court.</p> <p>2. That they tend to influence and prejudice the disposition of the said rule pending in the hands of the said judges.</p> <p>3. That the action of the said Cornelius Smith was in violartion of his duty and oath as an attorney of this court, and in contempt and derogation of the administration of justice therein, and attempted interference therewith.</p> <p>This rule to be entered and served with a copy of these charges forthwith upon the said Cornelius Smith, with the requirement that he make formal answer thereto on or before Monday, March 30 inst., at 2 o’clock, A. M., at which time the said rule is made. returnable.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in making absolute the rule to disbar.</p>

<p>School laws — Removal of school directors — Acts of June 6, 1893, and May 8, 1854 — Revision of director's discretion by the court.</p> <p>By the act of June 6, 1893, P. L. 330, relating to the removal of school directors who have failed to provide proper accommodations for school children, the legislature intended to confer a certain power of supervision of (lie discretion of school boards on the state courts, which, under the act of May 8, 1851, P. L. 617, the courts did not have.</p> <p>School laws — Act of June 6, 1S98 — Findings of fact by inspector.</p> <p>The intent of the act of June 6, 1893, is to confer on the courts of common pleas a power, through the appointment of an inspector, to ascertain the facts and determine whether the directors have exercised a sound discretion in providing suitable accommodations for all the school children of the district; but the findings of fact by such inspector are not conclusive on the court of common pleas.</p> <p>School laws — Act of June 6, 1893 — Review by Supreme Court.</p> <p>Not decided whether under the act of June 6, 1893, any power of review of the decree of the court of commoh pleas is given to the Supreme Court. It seems that such power is doubtful, except in a case of manifest abuse of discretion by the common pleas.</p>

Appeal, No. 30, Oct. T., 1896, by defendant, from judgment of C. P. Westmoreland Co., Aug. T., 1893, No. 1092, on verdict for plaintiff. Green and Williams, JJ., dissent. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. Defendant’s points and answers thereto among others were as follows: 4.

Appeal, No. 130, Oct. T., 1896, by T. Pantall, guardian, from decree of O. C. Jefferson Co., Dec. T., 1890, No. 3, overruling exceptions to auditor’s report. Exceptions to auditor’s report.

<p>Appeal, No. 131, Oct. T., 1896, by T. Pantall, guardian, from decree of O. C. Jefferson Co., Dec. T., 1890, No. 3, overruling exceptions to auditor’s report.</p>

<p>Appeal, No. 133, October Term, 1896, by plaintiffs, from judgment of O. P. Venango County, April T., 1895, No. 197, on verdict for defendant.</p> <p>Issue to determine the validity of a judgment. Before Criswell, 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>[It appears from the evidence, however, and is not questioned by either party, that there were only fifteen wells shown to the defendant, and if you find that there were more than that number of wells drilled upon the property, and that the plaintiffs failed to show those wells to the defendant because of the fact they did not know of them, then another question will arise; that is, whether there was mutual mistake here of such a material character as to make it inequitable to enforce the terms of this contract against the defendant. If you find that those eight other wells were drilled upon the property, that that fact is material, and that the defendant would not have entered into this contract if he had known of those eight other wells being drilled, and known of the character of the wells, why then he may be entitled to relief. That is, if you find those facts, then you may properly conclude that the defendant had a right not to enter into the contract, not on the ground of fraudulent representations, but on the ground of mutual mistake as to a material fact.] [11]</p> <p>Plaintiffs’ points and answers thereto among others were as follows:</p> <p>6. The defendant, Waits, is not entitled to rescind the contract in question upon the ground of any alleged misrepresentations relative to the number of old holes drilled upon the premises, nor as to the alleged representation that there never had been a dry hole drilled upon the property, and this for the reason that the burden of proof being upon him, and his testimony in these matters being squarely contradicted by the plaintiffs, and Waits not being corroborated by any evidence outside of himself, he has failed to make out a preponderance of proof. Answer: Refused. [1]</p> <p>29. Fraud is not presumed, but must be clearly proven. Where Waits affirms or alleges fraud and he is squarely contradicted by the plaintiffs, and they all appear to be equally interested, and the plaintiffs appear to be fully as credible as Waits, the alleged fraud or misrepresentation is not proved in law. Answer: Fraud must be proved as facts generally are known by a preponderance of the evidence or by inference from facts clearly established. Where Waits affirms a fact on one side and Braunschweiger and Manning deny the facts, and all of these persons are deemed equally credible, and there are no corroborating facts or circumstances sustaining Waits, then Waits’ contention must fail. As thus modified this point is affirmed. [5]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned among others were (1, 5,11) above instructions, quoting them.</p>

<p>Insurance — Mutual insurance — Assessments—Notice.</p> <p>Where the charter of a mutual insurance company provides that if an assessment remains unpaid for a specified time “ after notice thereof,” the policy shall be forfeited, a forfeiture cannot be declared for nonpayment of an assessment where no notice of the assessment was given to the insured. In such a case where the insured, in suing upon his policy, declares that he was ready and willing to pay any claim due by him to the company, it is just and equitable that the assessments against him remaining unpaid should be deducted from the amount to which he is entitled under the policy.</p>

Appeal, No. 33, Oct. T., 1896, by school directors of Kittanning township, from order of C. P. Armstrong Co., Sept. T., 1895, No. 202, removing school directors of Kittanning township. Rule on school directors to show cause why they should not be removed, issued on petition of inhabitants. Before Rayburn, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was order making absolute rule for the removal of school directors.

<p>Judgment — Foreign judgment — Exemplification of record under act of congress.</p> <p>In a suit upon a foreign judgment where the record of the suit is properly certified as provided by the act of congress, the defendant cannot be heard to allege that the exemplification of the record did not contain a full and an entire copy of the proceedings.</p> <p>In a suit upon a foreign judgment it is not necessary that a note which was the foundation of the suit in the court in which the judgment was obtained, should be incorporated in plaintiff’s statement of claim in the suit in this state.</p> <p>Foreign attachment — Quashing writ — Review.</p> <p>The refusal of the court to quash a writ of foreign attachment is not reviewable by the Supreme Court.</p> <p>Foreign attachment — Plaintiff's statement — Affidavit of defense.</p> <p>In foreign attachment it is not required that plaintiff’s statement should set out all the jurisdictional facts. This may be required in an affidavit to show cause of action, but the absence of such facts from the statement is not alone sufficient to prevent judgment for want of a sufficient affidavit of defense, in which the existence of such facts is not denied. •</p>

Appeal, No. 88, Oct. T., 1896, by defendant, from decree of C. P. Armstrong Co., March T., 1892, No. 290, on bill in equity. Bill in equity for an injunction. The master, Ross Reynolds, Esq., found the facts to be as follows: 1. The Poterie Gas Company is a corporation formed under the provisions of the act of May 29, 1885, and was duly chartered on December 5, 1890.

Appeal, No. 85, Oct. T., 1896, by plaintiff, from decree of C. P. Mercer Co., June T., 1886, No. 3, on bill in equity. Bill in equity for an account. The facts sufficiently appear by the opinion of the Supreme Court. Error assigned was in dismissing bill.

<p>Will — Construction of will — Devise.</p> <p>In case of doubt the construction of a will should be in favor of the first rather than of the second taker; of an absolute or vested estate rather than of a defeasible or contingent one; of a general or primary intent rather than of a particular or secondary one; and where a devisee is subjected to a charge or burden which it is unreasonable to think would have been imposed unless the estate given was intended to be a fee simple, doubts should be resolved in favor of the devisee.</p> <p>Testator directed as follows: “Iwill and bequeath to my son R. and my daughter C. the homestead farm .... with all the farming utensils, stock, horses .... And if my daughter C. dies unmarried her brother R. shall have what remains of .her share of my property, and if she marries, then her brother R. shall pay her one thousand dollars as her share of my said estate.” The will imposed charges on the daughter’s share amounting to more than the value of a life estate in one half of the farm. It appeared that C. had always lived with testator, and for ten years had had sole charge of his house. Held, that testator gave C. a vested estate unlimited in point of duration, and that the provisions following this gift were meant to become operative only in the event of her death in his lifetime.</p>

Appeal, No. 59, Oct. T., 1896, by defendants, from judgment of C. P. Armstrong Co., Sept, T., 1898, No. 93, on verdict'for plaintiff. Scire facias to revive judgment.

<p>Appeal, No. 93, Oct. T., 1896, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1896, No. 21, on verdict for plaintiffs.</p> <p>Ejectment for land in West Salem township. Before Miller, P. J.</p> <p>The facts appear by the charge of the court which was as follows:</p> <p>The controversy in this case is over a tract of land situated in West Salem township, Mercer county, containing fifty-two acres and thirty-two perches, or thereabouts. From the evidence it appears that one Thomas Campbell, on the 25th of November, 1843, made and delivered to John Reagle a deed for a tract of land, containing in its boundaries the land in dispute, wldch deed was recorded on June 24, 1844, in the proper office in Mercer county. The evidence shows that soon after the making of this deed John Reagle went into the possession of the land and remained in the occupancy of it until some time in 1882; that while in the occupancy of said land, to wit, on the 14th of May, 1858, he made and executed a deed to Catherine Reagle, his wife, for the land in dispute. This deed was put upon record in the proper office in Mercer county, the 24th of December, 1858. After the date of this deed John Reagle and Catherine Reagle continued to live together as husband and wife and in the occupancy and possession of the land in controversy up until the 16th day of September, 1880, when Mrs. Reagle died. John Reagle continued in the possession, of said land after her death, up until some time in 1882, when it seems that the defendant went into possession, or took possession of it in some manner. On the 21st day of October, 1894, John Reagle died intestate and left to survive him eight children. Seven of these eight children are the plaintiffs in this suit, and the defendant, Henry Reagle, is the eighth child; he being in'the possession of this land and claiming to own it as his own. The other seven children, who are the plaintiffs in this- suit, brought their action of ejectment on the 28th day of September, 1895, to recover the undivided seven eighths of the land. It is contended by the defendant that the deed of John Reagle to Catherine Reagle, being made direct from the husband to the wife, passed no title to her, and that it is incumbent upon her to show that she paid the consideration mentioned in the deed from money belonging to her own separate estate. If this were a controversy between the creditors of John Reagle and Catherine Reagle, or the heirs of Catherine Reagle, that would be true. Then it would be incumbent upon Catherine Reagle, or those claiming under her, to show that she had paid a valuable consideration for the land. But this is a controversy between the children or heirs of John Reagle and Catherine Reagle, and, as between them, we hold that it is not necessary for Catherine Reagle to show affirmatively that she paid any consideration for the land whatever. John Reagle, under the law, could make a deed for this land direct to his wife without any consideration at all. And as to the consideration mentioned in the deed, the $800, the fact that he acknowledged the receipt of that amount in the deed, and the fact that he receipted by his own hand for the amount in the deed, is prima facie evidence of the fact that she paid, for it. But it is immaterial whether she paid for it or not. He had a right to make a gift to her not only of the land, but of the consideration money, and when he conveyed the land to her, and mentioned the amount of $300 as the consideration, the deed would be good if she paid him nothing. If that fact was proved it would avail nothing; because, not being in debt, and there being no evidence that this deed was made to cheat, defraud, hinder or delay any of his creditors, he had a right to make a gift to her of the purchase money, and therefore in any aspect of the case the deed from John Reagle to Catherine Reagle would be good in law. So then this case stands before you, from the deed that was offered in evidence by the plaintiffs of May 14, 1858 from John Reagle to Catherine Reagle, as placing the title to the land in controversy in Catherine Reagle. It was contended by the defendant that in as much as she never took any actual possession of the land, or exercised any acts of ownership over it, or publicly proclaimed and announced that the land was her own, and that more than thirty years having elapsed since the year 1858, when her right of entry accrued, and before this suit was brought, that therefore the plaintiffs cannot recover. But she was the wife of John Reagle, she was living with her husband upon the land at the time the deed was made. She took all the possession of the land she could take; she put her deed upon record, which was notice to all persons. If John Reagle was in court asking to have this deed declared void because it was made by him direct to the wife, and without any consideration, this court would not aid him. It is well settled law that a deed from husband to wife must be taken most strongly against the husband. It is a principle of law, always applied, that a deed made by one to another must be taken most strongly against the grantor. So that I say to you this deed was good, and passed a good title to Catherine Reagle, and she, having put her deed upon record and remained in possession of the land up until the date of her death, and having died intestate, the land passed to her heirs. So the husband would be entitled to the title by curtesy which gave him absolute ownership and control of the land during his lifetime, and up until the 21st of October, 1894, when he died. He had the right to the use and occupancy of that land against the children of himself and Catherine Reagle, and no suit could have been instituted by any one of tbe children, or all of them, to recover possession of this land until after his death. On his death, the fee having vested in his children on the 16th of September, 1880, her heirs were entitled to this land. Henry Reagle, the defendant, is in possession of the whole of it, and claims the whole of it; the other seven children assert that, as the children and heirs of Catherine Reagle, they are entitled to seven eighths of it.</p> <p>There being no dispute but that plaintiffs are the seven children of Catherine Reagle, I say to you, that under the deed of John Reagle to Catherine Reagle, heretofore referred to, she having died intestate, and her husband having died the 21st of October, 1894, and this suit not having been brought until September 28, 1895, nearly a year after his death, that the plaintiffs are entitled to recover seven eighths of this land. [You will therefore, under the instructions of the court, render a verdict for the plaintiffs for seven eighths of the land in dispute.] [6]</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Error assigned among others was binding instructions for plaintiff.</p>

<p>Appeal, No. 110, Oct. T., 1896, by defendants, from orders of O. P. Lawrence Co., Dec. T., 1894, No. 54, upon various interlocutory motions.</p> <p>Trespass for libel.</p> <p>From the record it appeared that the suit was begun on October 25,1894. The plaintiff in the suit is the president judge of Lawrence county. On May 1, 1896, he certified of record that he was disqualified to hear the case and referred it to Judge Miller of the 35th district. On May 25,1896, a petition for "change of venue was presented by defendants to Judge Wallace, who directed it to be presented to Judge Miller. {1) It was presented to Judge Miller, who overruled it. (2) On the same day defendants filed a plea to the jurisdiction of the court, alleging that Judge Miller was disqualified by reason of a certain letter which he had written, which was quoted in the plea. The court, through Judge Miller, overruled the plea. (3) On the same day the defendants moved challenging the array of jurors, on the ground that Judge Wallace had participated in drawing the jurors. Judge Miller overruled the motion. (4) At 3:20 p. m. on the same day a writ of certiorari was issued from the Supreme Court, without any allocatur. At 3:40 p. M. upon the same day the defendants filed the following plea: “ Now, May 26, 1896, before jury is sworn, defendants, by tbeir attorneys, plead specially to tbe jurisdiction of this court to proceed in the trial of this cause, and in support thereof show that a writ of certiorari has been issued by the Supreme Court and filed in this case, removing the record in this case out of this court to the Supreme Court.” The plea was overruled. (5)</p> <p>-Errors assigned were, (1-5) above orders, quoting them.</p>

Appeal, No. 117, Oct. T., 1896, by defendants, from judgment of C. P., Lawrence County, Dec. Term, 1894, No. 54, on verdict for plaintiff. Trespass for libel. It appeared from the record tbat suit was begun on October 25, 1894. Subsequently tbe plaintiff was elected president judge of Lawrence county. April 27, 1896, the case was on trial list.

Appeal, No. 5, Oct. T., 1896, by-defendants, from judgment of C. P. Mercer Co., Sept. T., 1893, No. 91, on verdict for plaintiff. Ejectment for a tract of land in West Middlesex borough. At the trial it appeared that John S. Newkirk and Mary Newkirk, his wife, had owned and were in possession of this property as tenants in common for a number of years prior to March 28, 1882, and on said date a deed purports to have been made by them to one Ruth Lineberger.

<p>Appeal, No. 166, Oct. Term 1896, by plaintiffs from judgment of O. P. Somerset County, Sept. Term 1894, No. 205, on verdict for defendant.</p> <p>Ejectment for a tract of land in Allegheny township. Before Longenecker, P. J.</p> <p>At the trial it appeared that the plaintiffs claimed as heirs at law of John Geiger. The defendant claimed title under the following instrument in writing:</p> <p>This article of agreement, made and entered into this 15th day of December, A. D. 1888, by and between John Geiger, of Allegheny township, Somerset county, Pa., of the one part, and Thomas A. Menges, of Summit township, same county and state, of the other part, to wit:</p> <p>“ Part First. The said John Geiger doth hereby covenant and agree to let unto the said Thomas A. Menges all that farm or tract of land which he now occupies, situated in the township of Allegheny, county of Somerset and State of Penna., adjoining lands of Sturtz Bros., Jacob Troutman, U. Poorbaugh and others, containing about 200 acres, on the following conditions : The said John Geiger agrees to furnish one-half of all grain used and needed for seeding, and one-half of all farming implements to be used in cultivating said farm, and the use of one horse and feed for same, and to allow and grant unto the said Thomas A. Menges to receive one-half of all the proceeds raised on said farm; also to pay one-half of all taxes to be levied and assessed on the farm from year to year, and the said Thomas A. Menges is to find one-half of all in comparison as above mentioned, and to pay the other half of all taxes, also to perform all the work necessary to be done and connected with and about the farm, and to keep all fences on the premises in good repair, and everything generally on the premises in good condition; also reserves the right of cutting any timber except such as shall or may be needed in and about the premises, fencing, fuel, etc. This agreement to take effect April 1, 1889, for a term as set forth in Part Second of this agreement. In consideration whereof the said Thomas A. Menges doth hereby promise and agree with the said John Geiger to comply with each and every act and condition as above mentioned.</p> <p>“ Part Second. The said John Geiger (and Elizabeth his wife) doth hereby further agree to and with the said Thomas A. Menges that if the said Thomas A. Menges shall and will from time to time strictly comply with the conditions of the agreements as above stipulated, and in addition, at the request of the (said) John Geiger and Elizabeth his (wife), do such work as shall be necessary to be done for them, such as furnishing fuel and providing for provisions and nurses and care for them in case of sickness, (then) I (the said John Geiger and wife do) hereby grant to him (the said Thomas A. Menges) one day after my and my wife’s death the farm or tract of land as described in Part First of this agreement, his heirs and assigns forever, and free of all encumbrances.</p> <p>“In witness whereof we have hereunto set our hands and seal, this 15th day of December, A. D. 1888.</p> <p>“ J. Geiger, [l. s.]</p> <p>“ Elizabeth Geiger, [l. s.]</p> <p>“ Thomas A. Menges, [l. s.]</p> <p>“Signed, sealed and delivered in the presence of us.</p> <p>“ H. E. Miller,</p> <p>“John H. Miller,</p> <p>“ Jacob Emerick.”</p> <p>The evidence showed that defendant had gone into possession of the land within three months from the date of the agreement, had performed the conditions of the agreement, made valuable improvements upon the land, and continued in possession until the death of Mrs. Geiger, who survived her husband.</p> <p>The defendant offered in evidence the agreement.</p> <p>Plaintiffs objected to it for the following reasons: First, it has been shown by the scrivener and one of the attesting witnesses that at the time of the alleged execution of the agreement it was not completed; that the signature of Elizabeth Geiger, wife of John Geiger, was to be obtained to the instrument; that that was not done during the lifetime of John Geiger, and therefore the instrument was never perfected and the agreement was incomplete, and not a consummated contract. Second, the agreement is not a conveyance of the land in dispute, and therefore no title passed to the defendant thereby. Third, that by the terms of the agreement John Geiger and his wife were only to execute a conveyance upon certain conditions depending entirely upon the volition of Geiger and his wife, and as their volition was not exercised in the lifetime of John Geiger the agreement is of no force or effect so far as concerns conveying title to the land in dispute. Fourth, the agreement is irrelevant and immaterial. Fifth, at most the agreement evinces a purpose or promise on the part of John Geiger and wife to make testar mentary disposition of the real estate referred to in favor of the defendant upon conditions satisfactory to the said Geiger and wife, and the purpose not having been carried into effect by Geiger in his lifetime, the paper is wholly inoperative as a conveyance of real estate, and therefore inadmissible in this case.</p> <p>The Court: We will admit the paper, and note an exception to the plaintiff. [1]</p> <p>When Carrie Beck, a witness for the defendant was on the stand, defendant made the following offer:</p> <p>Mr. Hay: We now propose to prove- by this witness that Mr. Menges moved there in the spring of 1889 and commenced to farm this tract of land on shares, he to furnish one half of the farming implements and one half of the seed and pay one half of the taxes and that he repair one half of the fences. That he furnished fuel for them, that he went to mill, and did whatever was necessary to bring produce to the house for the old folies. That he cared for them when he and his wife were side and performed all the covenants and agreements that he was to perform under this agreement. That in the first year, in 1889, Mr. Menges made improvements in the house during the lifetime of John Geiger and built a spring house; and that in the lifetime of Mrs. Geiger he made further improvements on the farm. That on the day the agreement was made Mr. Geiger said he and Menges were going to Johnsburg to make an agreement, and stated in substance the provisions of the agreement, and that if he (Menges) would do well or perform what he was to do he would have the property at luis wife’s death.</p> <p>Mr. Ruppel: That is objected to for the following reasons : First, the, declarations of Geiger made prior to the execution of the agreement are inadmissible because (a) a title to real estate cannot be affected by parol, and (5) all declarations or agreements in parol are merged in the written agreement. Second, the possession taken by Menges and the work done by him, as alleged in the offer, were done by him as a tenant under the portion of the agreement which is a lease of the premises, and cannot affect the title to the land. Third, the testimony is irrelevant and immaterial.</p> <p>The Court: We admit the testimony indicated by the offer, except the declarations of John Geiger; the contract made by the parties and offered in evidence must speak for itself as to its terms and the understanding of the parties thereto. Exception. [2]</p> <p>Plaintiffs offered to prove that in the present year he (Menges) has taken off several hundred dollars’ worth of bark and timber.</p> <p>The Court: We exclude the testimony; we do not think it is admissible to affect the title to the parties. [3]</p> <p>The plaintiffs’ point was as follows:</p> <p>Under all the evidence in the case, the verdict must be for the plaintiffs for the land in dispute.</p> <p>The court directed a verdict for plaintiffs, reserving the plaintiffs’point.' The defendant excepted. Subsequently the court entered judgment for defendant non obstante veredicto. Plaintiffs appealed.</p> <p>Errors assigned were, (1-3) rulings on evidence, quoting the bills of exceptions; (4) entry of judgment non obstante veredicto.</p>

<p>Appeal, No. 116, Oct. T., 1896, by defendants, from judgment of C. P. Somerset County, May T., 1895, No. 2, on verdict for plaintiffs.</p> <p>Assumpsit on a policy of life insurance.</p> <p>The facts appear by the charge of the court and the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>On the 10th day of August, 1877, James Corcoran took an insurance policy in the defendant company on his life for 14,000, payable in the event of his death to his wife, Frances Corcoran, for her sole use, if living, and if not living, to their children or the guardian of the children for their use. The premiums were paid by James Corcoran. On the 18th of October, 1890, the policy was assigned by Corcoran and his wife to Wm. H. Dill, for the nominal sum of SI .00 expressed in the assignment, but the plaintiff contends that the real consideration was a debt owing by Corcoran to Dill, which was represented by a note in the plaintiff’s bank, and the predecessors of that note. On the part of the' defendant it is contended that it was not a debt of Corcoran, but of the Presque Isle Lumber Company, and that Corcoran was merely an indorser. This, gentlemen, is a question of fact which you will determine from the evidence.</p> <p>If Dill was a creditor of Corcoran when the assignment was made, as .the plaintiff claims, his title to the policy was good. If the assignment was without consideration, no title passed. If Dill acquired an interest by the assignment to him, he could assign it to another, and he did assign it to S. B. Philson in March, 1892. It is not denied that Philson obtained it on an ample consideration, and he had a perfect right to be made whole on the insurance, unless he made a mistake in taking the steps to secure himself.</p> <p>When he received the policy he advised the company at its office in'New York by a letter in evidence, dated March 29,1892, and made some inquiries as to the steps necessary to secure himself as the assignee of the policy. The letter reads as follows:</p> <p>“ Meyersdale, Somerset County, Pa., March 29,1892.</p> <p>“ Sec’y of the Mutual Life Ins. Co., New York.</p> <p>“Dear Sir: — On October 13, 1890, policy No. 185,117 in your 'company was assigned by Frances Corcoran and James Corcoran to Wm. H. Dill; of this assignment no doubt you have a record. On March 10,1892, Mr. Dill assigned the same to me. Shall I forward the policy for your acceptance of the same, or will the assignment be sufficient if it is presented for acceptance?' Your reply in the enclosed envelope will greatly oblige. Very respectfully yours,</p> <p>“ S. B. Phtlson, Cashier.”</p> <p>On the 2d day of April, 1892, the company, by its corresponding secretary, replied as follows :</p> <p>“Your favor of the 29th ult. received, and we beg to state that we have no record of the transfers of policy 185,117 — Corcoran, as mentioned in your letter. If we are furnished with duplicates or certified copies of the transfers (by a Notary) we will file them as notices of claim, as the children have a contingent interest in the policy. Please communicate with the company through our General Agent, Wm. II. Lambert, Philadelphia, Pa. Yours Truly,</p> <p>“ H. E. Duncan, Jr., Corresponding Secretary.”</p> <p>In pursuance of this correspondence, the plaintiff says, he sent the policy to his brother in law, H. F. Gardill, in Philadelphia, for presentation at the Philadelphia office of the company, and you have the testimony of Gardill as to his submitting the policy, with the assignments, at said office, to one of the clerical force, in the absence of Mr. Lambert.</p> <p>The policy provides in the fifth clause, on its face, that “ the contract between the parties hereto is completely set forth in this policy and application therefor, taken together, and none of its terms can be modified, nor any forfeiture under it waived, except by an agreement in writing signed by the President or Secretary of the company, whose authority for this purpose will not be delegated.” On the back of the policy, under the word “ Assignments,” it is provided: “ This company will not take notice of any assignment of this policy, until a duplicate or certified copy thereof shall be delivered to the company at its principal office; and under no circumstances will the company assume any responsibility for the validity of such assignment. If any claim bei made under an assignment, proof of interest to the extent of the claim will be required.”</p> <p>The defendant, the insurance company, now contends that there can be no recovery in this case because these provisions, which we have read, were not strictly complied with. It is conceded on part of the plaintiff that they were not strictly complied with, but he contends that such compliance with the terms of the policy was waived by the properly constituted representatives of the company. . . .</p> <p>[You will first inquire from the evidence in the case whether the terms which we have read were intended to be departed from, to be dispensed with, to be set aside; and whether instead of reporting at the New York office, the principal office of the company, the plaintiff was directed to apply to the office in Philadelphia; whether he was turned over from the principal office in New York to the office in Philadelphia. If he was, then it is not necessary that he should report to the New York office; it was not necessary then that he should file his papers in the principal office at New York, if the officers of the company in New York meant by their correspondence, and by any other evidence you have in the case, to turn the plaintiff over to the Philadelphia office.] [1]</p> <p>[There is still another branch of this evidence which is relied on to make out a waiver, and that refers to what took place in Philadelphia. Having been referred to the Philadelphia office, the plaintiff did not file a certified copy of the assignment, nor a duplicate thereof; but he produces a witness who says he went into the office with the original policy, having upon it the original assignments, and presented it to the clerical force of that office. The fact that Mr. Lambert was not himself seen cannot defeat the waiver, if the person who represented him in the office did what was tantamount to a waiver. Mr. Gar-dill says that he handed the policy to one of the persons engaged in the office, one of the clerks, and states that after some exam ination of it and reference to one of the books, in which he thinks some writing was done by the clerk, the policy was returned to him. It does not appear that he was told that anything more was required. He was not informed that he must produce a duplicate or certified copy, but he says the policy was returned to him, and he took it and returned it to Mr. Philson. If that was meant to dispense with the necessity of producing a duplicate or certified copy, then there can be no complaint interposed now to defeat this action that such a copy •was not furnished, because it would amount to a waiver.] [2]</p> <p>Plaintiff’s points and answers thereto were as follows :</p> <p>1. If the jury believe that shortly after the assignment of the policy by Wm. H. Dill to S. B. Philson, and in the lifetime of James Corcoran, the said S. B. Philson notified the defendant company of the assignment of Frances Corcoran and James Corcoran, dated October 13, 1890, to Wm. H. Dill, and of the assignment by W. H. Dill to said S. B. Philson, dated March 10, 1892, with the inquiry if he should forward the policy for the acceptance of the company, or if the assignments would be sufficient if presented for acceptance, with request for reply; and that H. E. Duncan, Jr., corresponding secretary of defendant company, in writing directed said Philson to communicate with the company through the company’s general agent, Wm. H. Lambert, of Philadelphia, Pa., and that said Philson promptly thereafter, in April, 1892, caused the original policy, with the original assignments attached thereto, to be exhibited at the office of said general agent, Wm. H. Lambert, at Philadelphia, Pa., during business hours, to one of the clerks of said Lambert in charge of the business of said general agent — the said Lambert then being temporarily absent from the office — and that said clerk examined said policy and assignments, and after examination carried the said policy and assignments to a book or record in said office and examined and compared the policy, assignments and such book or record, and wrote or feigned to write in or upon said book, and afterwards returned the policy and assignments to the person who at said Philson’s direction had presented them; and that said Philson subsequently, and in the lifetime of said James Corcoran, had correspondence with the defendant company at New York, stating to the company in said correspondence that he held the policy as collateral security, and asking if the company would purohase it if he acquired an assignment of it for its cash value — an absolute assignment; and correspondence also with said ¥m. H. Lambert, general agent, also in the lifetime of James Corcoran, inquiring if all payments had been made on said policy, and if it was good for $4,000 in the event of the death of James Corcoran, then the jury may infer that the company waived the requirements referred to in the policy that the company will not take notice of any assignment of the policy until a duplicate or certified copy thereof shall be delivered to the company at its principal office. Answer: If you find the facts as given in the point, and that the company by directing the plaintiff to communicate through Mr. Lambert intended to waive presentation of the papers at the principal office in New York, and also that when the policy and the assignments were presented at the office of Mr. Lambert, the latter by his agent waived a formal compliance with the conditions on the back of the policy relative to assignments, requiring a duplicate or certified copy thereof to be delivered to the company, the law of the point is correct. I leave it to you to ascertain from all the evidence bearing upon it whether such waiver was intended. [3]</p> <p>2. As the evidence in the case shows that the defendant company paid the amount of the policy to Frances Corcoran without a surrender of the policy, and without due proof of the loss or destruction of said policy, the presumption was that the policy was outstanding in the hands of S. B. Philson, of which the evidence shows the company had knowledge by letter and otherwise, the company cannot set up the payment of the policy to Frances Corcoran as a defense to this action. Answer : If the facts are as stated, the mere ground of payment to Mrs. Corcoran cannot avail to defeat the plaintiff’s action. [4]</p> <p>Defendant’s points and answers thereto among others were as follows:</p> <p>7. That if the jury find from the evidence that the policy in suit contains a provision or condition or agreement “ that the contract between the parties hereto is completely set forth in this policy and the application therefor, taken together, and none of its terms can be modified, nor any forfeiture under it waived, except by an agreement in writing signed by the president or secretary of the company, whose authority for this purpose will not be delegated; ” and also provides that the provisions on the back of the policy are made a part thereof, and that the provision on the back provides that “ this company will not take notice of any assignment of this policy until a duplicate or certified copy thereof shall be delivered to the company at its principal office; ” and also find that neither the president nor the secretary waived in writing the provision requiring a duplicate or certified copy of the assignment'-to be delivered to the principal office in New York, and that they did not delegate their authority, and that no duplicate or certified copy was delivered to the company at its principal office in New York, then there can be no recovery. Answer: That is affirmed, with the modification that a waiver may be established by parol and must not necessarily be in writing. [8]</p> <p>8. That if the jury find that the policy put in evidence by the plaintiff provides that “ the contract between the parties hereto is completely set forth in this policy and the application therefor, taken together, and none of its terms can be modified, nor any forfeiture under it waived, except by an agreement in writing signed by the president or secretary of the company, whose authority for tins purpose will not be delegated; ” and that the provisions on the back of the policy are hereby referred to as part of this contract “as if they were recited at length, namely, “ that this company will not take notice of any assignment of this policy until a duplicate or certified copy thereof shall be delivered to the company at its principal office; ” and also find that the principal office is in the city of New York, and that the plaintiffs, W. H. Dill and S. B. Philson, both failed to deliver to the defendant company, at its principal office in New York, a duplicate or certified copy of the assignment of the policy, as required by the terms of the policy; and that the defendant company paid the full amount due and payable on the policy to Frances Corcoran, .the beneficiary named in the policy, then there can be no recovery, and the verdict should be for the defendant. Answer: That is affirmed, unless you shall find from the evidence that strict compliance with the conditions mentioned was waived by the company. [9]</p> <p>10. That the exhibition of the policy, with what purports to be assignments thereof attached, to a clerk or bookkeeper in the Philadelphia office of the Mutual Life Insurance Company of New York, which is in charge of W. H. Lambert, the general agent for the state of Pennsylvania, was not a delivery of a duplicate or certified copy thereof to the defendant company at its principal office, nor at the Philadelphia office, and such an exhibit at the company’s office in Philadelphia was not a compliance with the terms of the contract, and did not constitute notice to the company; and without a delivery of a duplicate or certified copy to the principal office in New York, there can be no recovery. Answer: This point is refused. Whether such exhibition of the policy constituted sufficient notice to the company depended upon the fact whether more formal notice, or a rigid compliance with the terms of the contract was waived. [10]</p> <p>11. That if the jury find that the principal office of the defendant company is in New York, and that the Philadelphia office of the company is an agency office, with W. H. Lambert in charge as the chief officer, and as agent for the state of Pennsylvania, and that all the clerks, bookkeepers, cashiers and employees in said office are subordinated under him, then nothing said or done by the general agent for Pennsylvania, W. H. Lambert, or any of his subordinates or employees, as proved in tbis case by the evidence, can waive or excuse the nondelivery of a duplicate or certified copy of the assignments at the principal office in New York. Answer: This is refused. The company in New York might act through Mr. Lambert, and he through his properly constituted agents or clerks; it might be impossible for a person having business with either office to see the official head and confer with him. [11]</p> <p>12. That if the jury find from the evidence that the policy on which suit is brought was issued on the 10th day of August, A. D. 1877, upon the life of James Corcoran, for the benefit of his wife, Frances Corcoran, but'in the event of James Corcoran surviving the wife, then for the benefit of their children: and also find that at the time of the execution of the alleged assignment they had three children living, then the children had a vested interest in the policy at the time of its delivery, and no subsequent act of assembly could divest their interest, and no valid assignments could be made of the policy unless the children consented and joined in the assignment; and if they further find that the children did not consent and join in the execution and delivery of the alleged assignment, the verdict must be for the defendant. Answer: That point is refused. [12]</p> <p>13. That the letter of the corresponding secretary to S. B. Philson, of the date of April 2, 1892, offered in evidence by the plaintiff, was not an agreement in writing signed by either the president or the secretary, modifying or waiving any of the terms, provisions or requirements of the contract, and was no direction to S. B. Philson to exhibit the policy with assignments attached to W. H. Lambert or the Philadelphia office. Answer: I cannot affirm this point. The letter of Philson was to the New York office of the company, and the reply of the corresponding secretary must be taken to speak for the company and not for himself. [13]</p> <p>15. That on the pleadings and all the evidence in the case, the verdict must be for the defendant. Answer: That point is refused. [14]</p> <p>Verdict and judgment for plaintiff for $3,137.69. Defendant appealed.</p> <p>Errors assigned among others, were, (1-4, .8-14) above instructions, quoting them.</p>

Appeal, No. 174, Oct. T., 1896, by plaintiffs, from decree of O. P. Lawrence Co., on bill in equity. Bill in equity for an account. Before Miller, P. J., of the 35th judicial district, specially presiding, and Wallace, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was decree dismissing bill.

<p>Heirs — Agreement as to property — Interest on recognizance for owelty.</p> <p>The heirs of a deoedent, in partition proceedings, dealing with their own property, may make any agreement with regard to the property that they may desire, and it is competent for them to agree that interest shall not be charged upon a recognizance for owelty.</p> <p>Default in payment — Interest.</p> <p>Interest as such is recoverable only where there is a failure to pay a liquidated sum due at a fixed day, and the debtor is in absolute default. It cannot therefore be recovered in actions of tort, or in actions of any kind where the damages are not in their nature capable of exact computation, both as to time and amount. In such cases the party chargeable cannot pay or make tender until both the time and the amount have been ascertained, and his default is not therefore of the absolute nature which necessarily involves interest for delay.</p> <p>Partition — Agreement among heirs — Uecognizance for owelty — Interest— Act of May 8, 1876.</p> <p>In partition proceedings five of the heirs of the decedent took land at the appraised value, and entered into recognizances, the conditions of which were that each recognizor “shall pay to the other heirs of said deceased such sum or sums of money as may be due and owing by myself upon the real estate of said deceased so taken by myself, to the other heirs of said deceased, or any or either of them, upon the settlement of said estate according to law.” The other two heirs who were financially involved declined to take lands at the appraised value for the reason that they could better effect a settlement with their creditors while their shares were unapportioned. It was the belief of all parties at the time that the lands untaken were of sufficient value to make up the shares of the non-accepting heirs, and that upon a final settlement there would be nothing to pay upon any of the recognizances. No reference was made in the recognizances to interest, and the recognizances themselves were not drawn according to the usual form, and the terms of payment were not fixed by the court. The estate was not finally settled for many years, and in the meantime the land greatly depreciated in value. Held, (1) that on the face of the writings no claim for interest on the recognizances could be sustained ; (2) that the act of May 8, 1876, sec. 1, P. L. 140, relating to interest upon owelty defines the duty of the court when the proceedings are adverse and in due course of law, and as the court was not called upon to fix the terms of payment in this case, the act was inapplicable; (8) that as the parties had the right to fix the terms of the bonds among themselves, out of court, and as there was no omission of interest through fraud, accident or mistake, the court must assume that the recognizances contained all that was stipulated for, and embodied the whole agreement of the parties.</p>

Appeal, No. 169, Oct. T., 1896, by Mary E. Meyers et al., from decree of O. C. Somerset Co., dismissing exceptions to auditor’s report. Exceptions to report of J. L. Pugh, Esq., auditor. The facts appear by the material portion of the opinion of Longenecker, P. J., which is as follows : The only other items of charge relate to the two notes alleged to have been held by the decedent against his two sons, Cyras Meyers for $500 or $600 and Dennis Meyers for $1,000.

Appeal, No. 49, Oct. T., 1896, by defendant, from judgment of C. P. Washington Co., Feb. T., 1895, No. 158, on case tried by the court without a jury. Assumpsit on an oil and gas lease submitted to the court on the law and the facts under the act of 1874.

<p>Appeal, No. 72, Oct. T., 1896, by defendants, from judgment of C. P. Washington Co., Aug. T., 1895, No. 98, on verdict for plaintiff.</p> <p>Assumpsit upon a promissory note. Before Taylor, J.</p> <p>At the trial it appeared that the note sued upon was for $640, and was dated July 26, 1875. The maker of the note, S. S. Danley, died in 1891, leaving two sons, H. P. Danley and John S. Danley, his executors. On July 1, 1895, this suit was brought. Plaintiff offered in evidence the note, the execution of which was not denied, and rested. The note had a number of credits indorsed on the back of it. The plaintiff was called as if for cross-examination, and was asked concerning the credits on the note; whether she had not received money from her husband to be applied as a credit on the note, and whether such money had not come from S. S. Danley, all of which she denied. She then testified on examination by her own counsel that she had loaned her father-in-law $640, and took from him the note in suit; that the credits on the back of the note were not in her handwriting; that she was not present when any of them were made; that they were in the handwriting of her husband who kept possession of the note, and that she did not get possession of it for years — not till after the maker’s death, when she secretly abstracted it from among his papers when his desk was unlocked, which action on her part caused dissatisfaction between her husband and herself, and that she brought the note to Washington and employed her present counsel to collect it. Plaintiff was further examined by her cormsel as follows :</p> <p>“ Q. Who brought this note to me ? A. I did. Q. Who was with you when you brought it ? A. My husband. Q. Did you hear him have any conversation with me about the note ? A. Yes, sir. Q. What, if anything, did I ask him about these credits on the bank? ”</p> <p>Objected to as incompetent and irrelevant, for the reason she cannot testify in this action to any declarations made by her husband. Objection overruled, exception for defendant and bill sealed.</p> <p>Plaintiff then testified in chief as follows :</p> <p>“ Q. What, if anything, did I ask him about these credits on the back of the note, as to who made these indorsements on the back of the note, and what did he tell me about it ? A. He told voir that he got the money. Q. And made the indorsements ? A. Yes, sir. Q. Do you recollect of me asking him anything about whether you had got any of this money?</p> <p>A. Yes sir. Q. What did he say? A. He said I never got any.” [1]</p> <p>Verdict and judgment for plaintiff for $1,215.60. Defendants appealed.</p> <p>Error assigned was (1) ruling on evidence, quoting the bill of exceptions.</p>

<p>Lease — Oil and gas lease — Clause of forfeiture.</p> <p>The clause of forfeiture or termination of the estate usually incorporated in oil and gas leases in this state is for the benefit of the lessor, and as against him no act of the lessee can work a forfeiture without his concurrence.</p> <p>Parties who lease or buy oil or gas lands, with a term apparently outstanding, without inquiry of the lessee, and without the exercise of the lessor’s power to forfeit, take the risk of the fact of abandonment of the first lease as the facts may be found by the jury.</p> <p>Defendant leased oil and gas lands from the owner. He had notice of the fact that there was an outstanding lease of ten years to plaintiffs, only three years of which had expired. The grantor of the lessor of defendant refused in his deed to assert a forfeiture of the first lease. Defendant made no inquiry of the plaintiffs as to whether their lease had been terminated. Held, (1) that the defendant had sufficient notice to put upon him the duty of inquiry; (2) that it was a question for the jury to determine whether there had been an abandonment of the first lease.</p> <p>Evidence — Testimony as to parly's intention.</p> <p>While in the case of a contract one party may not testify to an intent not disclosed at the time, in other cases, as where the character of the transaction depends on the intent of the party, it is competent for him to testify what his intention was.</p> <p>In an action of ejectment to recover oil and gas lands where the plaintiffs claim under a lease from the owner, and the defendant claims under a later lease from a grantee of the same owner, it is competent for the plaintiffs to testify that in removing certain materials from the land, they had no intention to abandon the lease.</p>

Appeal, No. 2, Oet. T., 1896, by defendant, from judgment of C. P. Butler Co., Dec. T., 1895, No. 82, on verdict for plaintiff. Trespass for the death of plaintiff’s wife and son. At the trial it appeared that on, February 1, 1894, plaintiff’s wife, Malinda Cookson, and her son, Walter, were .lulled by one of defendant’s trains at a grade crossing in Evans City. The accident occurred about nine or ten o’clock in the morning.

<p>Bridge — County bridges — Townships—Acts of June 13, 1836 and April 13, 1843 — Duty to repair.</p> <p>Under the acts of June 13, 1836, section 35, P. L. 560, and April 13, 1843, P. L. 221, it is the duty of the county, and not of the township, to repair a county bridge and maintain it in safe condition; and this duty includes not only the repair of the bridge, but of the approaches and wing walls leading thereto: Gates v. Pennsylvania R. R., 150 Pa. 50, distinguished.</p> <p>The fact that the supervisors of a township have repaired the approaches and wing walls of a county bridge will not relieve the county of the consequences resulting from the dangerous condition of the approaches and wing walls, or impose liability upon the township for such consequences.</p>

Appeal, No. 153, Oct. T., 1896, by defendant, from judgment of C. P. Indiana Co., March T., 1894, No. 323, on verdict for plaintiff. Issue to determine the validity of .a judgment. Before Habby White, P. J. At the trial the plaintiff having called C. O. Wachob as a witness, the defendant undertook to impeach him by proof of his general reputation for truth and veracity.

<p>Appeal, No. 147, Oct. T., 1896, by M. H. Stevenson, from decree of O. C. Washington Co., Feb. T., 1893, No. 1, refusing to rescind confirmation of sale of real estate.</p> <p>Petition to set aside confirmation of sale of real estate.</p> <p>From the record it appeared that M. H. Stevenson bought certain of the shares of the devisees of Stephen Smith, deceased. In order to relieve the land of the lien of debts he paid some of the decedent’s debts. On May 8, 1895, the executor, George M. Tenan, assigned to M. H. Stevenson certain accounts owing to the estate. Subsequently the executor applied for leave to sell a farm known as the home farm for the payment of debts. On July 30, 1895, the executor and Stevenson entered into the following agreement:</p> <p>“And now, July 30,1895, it is agreed by the undersigned as follows : That if, at the sale of the Home Farm, on August 9th next, the said Stevenson shall become ■ the purchaser of the whole or a part of said farm, the amount of the above accounts by me assigned to said Stevenson May 8, ’95, as well as the aects. against said estate heretofore paid by said Stevenson, shall be deducted from the amount of the purchase money, and that, upon said Stevenson’s receipting the said accts. and assigning them over to said Tenan, along with the vouchers, etc., and the payment in cash or mt’g of the balance of the purchase money (if any remains due), that thereupon the said Stevenson shall be entitled to a deed.”</p> <p>On May 15, 1895, the following agreement in writing was executed.</p> <p>Exhibit D.</p> <p>“ Memorandum as to manner in which the following judgment, mortgage and real estate sale is to be amicably settled' and adjusted.</p> <p>( Stephen Smith 1 Date, 18 Oct. ’76 Mtg. < to > Mortg. Book 7</p> <p>( Mut. Life Ins. Co. ) page 122.</p> <p>Robert Scott to Geo. M. Tenan, Dr.</p> <p>By 73 acres land at #45 per acre . Cr.</p> <p>By £ of Mtg. June 23, ’94 .</p> <p>By int. to April 1,1895 (9 mo. 9 da.) By accrued int. paid June 23, ’94 ,</p> <p>By MeElroy judg. No. 164 )</p> <p>Feb. Term, 1892, )</p> <p>Balance due by Scott .</p> <p>#3,306</p> <p>#1,706</p> <p>79.05</p> <p>57.50</p> <p>817.50 #2,654.05 # 645.95</p> <p>Amt. pd. June 23, ’94, by J. B. Tenan</p> <p>and G. M. Tenan for £ Mtg. . . . 1,700.00</p> <p>Int. to May 9th, 1895 .... 90.10</p> <p>Accrued interest paid June 23, ’94 . 57.50</p> <p>By money in hands of G. M. Tenan to apply to this J- Mtg. $1,800</p> <p>Less amount due by Scott 645.95- — $1,154.05</p> <p>Balance due on entire Mtg. with int. from May 9, ’85 $ 693.55</p> <p>And now, May 15, 1895, it is agreed by and between the undersigned that the above matters in dispute be settled and adjusted according to the calculation above made, and that upon the payment or legal tender of the above balance by M. H. Stevenson or his attorney at Washington, Pa., all above securities shall be deemed satisfied and shall be so marked of record in the proper offices.</p> <p>If it shall appear that there has been any mistake made in the calculation of interest, the amount thereof shall be added to or deducted from above balance of $693.55.</p> <p>Witness the hands and seals of the above parties in interest the day and year aforesaid. [May 15th, 1895.]</p> <p>Geo. M. Tenan, Executor of Stephen Smith, [Seal] Attest:</p> <p>Geo. M. Tenan & J. B. Tenan, partners, [Seal]</p> <p>M. H. Stevenson, [Seal]</p> <p>I hereby warrant that the amounts paid by Robert Scott and by myself and J. B. Tenan for the mortgage above mentioned are correct and true, and also that the amount to be credited by me on the \ int. of myself and said J. B. Tenan is $1,154.05 as above computed.</p> <p>Geo. M. Tenan, [Seal] ”</p> <p>The sale of the real estate was made to Stevenson, and duly confirmed. Subsequently the executor petitioned for a citation to show cause why confirmation should not be set aside, alleging that Stevenson had failed to pay the purchase money in compliance with the terms of the sale. McIlvaine, P. J., filed the following opinion:</p> <p>Under an order of sale issued out of this court, Geo. M. Tenan, executor of the will of Stephen Smith, deceased, sold to M. H. Stevenson, Esq., the respondent, a tract of' land in Hanover township, for the sum of $5,401.16. The order of sale was granted for the reason that the personal estate of the decedent was insufficient to pay his debts, and was returnable to the August term, 1895. On August 19,1895, the sale was reported to the court, and on September 17, 1895, was duly confirmed. The terms of the sale were: “ one third of the purchase money to be paid on the confirmation of the sale by the court; and the balance of the purchase money to be paid in two equal annual instalments thereafter, with interest on each instalment from confirmation of sale.” On January 6, 1896, the executor presented his petition, setting forth that the purchaser, M. H. Stevenson, had failed to comply with the terms of sale, in that he refused to pay the one third of the purchase money that by the terms of sale was due and payable on the day of the confirmation of the sale, to wit, September 17,1895.</p> <p>The sole prayer of the petition is that a “ citation issue commanding the said M. H. Stevenson to show cause why the confirmation of the sale should not be lifted and the real estate ordered resold at his expense.” An answer was filed in which it is claimed that the first instalment of the purchase money, and more, has been virtually paid to the executor, and that security has been offered for what remains unpaid of the second and third payments. To this answer a replication was filed and testimony taken by an examiner appointed by the court.</p> <p>Where a purchaser at an orphans’ court sale, duly confirmed, fails to comply with the conditions of sale, there are three remedies that can be resorted to by the person appointed to execute the order of the court; (1) an action at law in the common pleas for the purchase money; (2) a proceeding in the orphans’ court for specific performance by the purchaser, and (3) a proceeding in the orphans’ court to set aside the confirmation of the sale of the property. The last of these remedies has been resorted to in this case.</p> <p>As all orphans’ court sales of real estate to pay the debts of a decedent are, in a sense, made by the court, and as confirmation is always made on the implied condition that the purchase money will be paid according to the terms of sale, a decree of confirmation. can be set aside or lifted, notwithstanding the term at which the decree was made, as in this case, has passed. But as this remedy may necessitate not only a resale of the property, but a suit at law to recover the deficiency, if it sells for a less price at the second sale, it is a question whether it should be resorted to if either of the other remedies can be made efficacious. If the sale is a good one, and part of the purchase money has been paid, specific performance is the most desirable remedy. The facts as they appear from the pleadings and testimony convince us that the interests of all parties can be better subserved in this case by a decree of specific performance than by a decree lifting the confirmation of the sale already made, and ordering a resale of the property at the expense of the respondent. The executor has had difficulty in finding a purchaser, the order of sale originally granted having been renewed three times; the price obtained at the sale which was finally made and confirmed is an adequate one, and better, perhaps, than could be obtained at a resale; the respondent is in possession, and does not question the regularity of the sale, but in his answer prays that the executor may be required to execute and deliver to him a deed for the land sold to him, and $1,212.81 of the purchase money has been, in effect, paid to the executor. Under these facts we do not think that the confirmation of tins sale should be lifted and the expense of a resale incurred. But this proceeding, although to set aside the confirmation of the sale reported, can be made, —by amending or adding a second prayer to the petition, — a proceeding “ for specific performance of that sale.” Indeed, the court having obtained jurisdiction of the subject-matter, all the necessary parties can treat the prayer of the petition as amended, as the respondent substantially prays for specific performance, and make any decree in the premises required by the law and equities of the case: Postlethwaite’s Appeal, 68 Pa. 480.</p> <p>A number of things referred to in the testimony submitted and set out in the respondent’s answer cannot be considered in this proceeding. If, as alleged, the executor has mismanaged the estate, if he has rented real estate of the testator without authority of law, if he has failed to perforin his contract to settle this estate out of court, and in a way not pointed out by the law, to the damage of the respondent, he has his remedy, but we do not see how the court, in this proceeding, can take cognizance of these things.</p> <p>The original purpose of the various contracts entered into by the executor and respondent, and made part of the answer, was to have the estate settled at less expense than would be incurred by following the course prescribed by the act of assembly; and where all parties are sui juris, and can agree, and all join, there is no legal objection to pursuing this course, but these short cuts to save expense not infrequently prove more expensive than to follow the procedure established by law. If the plan of settlement goes through, or is consummated, it is all right, as no one has a standing to object, but if the plan falls to pieces before the consummation of the desired end, then there is trouble. And if the court is appealed to, it is better for it to go back to the regular mode of closing up the estate than to try to enforce agreements that were made to save expense. The order of sale issued by the court to the executor, under the rules of court, provided for a sale on the usual terms; the sale was made on these terms, was so reported and confirmed. If the respondent had come into court any time before August 9,1895, the date of the sale, and tendered sufficient money to pay the debts, or showed that they had been paid by him, we might have revoked the order to sell, or allowed a private sale to him on special terms, such as set out in exhibit “ D,” but this was not done. Or, if after the public sale was made, the return of sale had set out this collateral agreement of July 30, 1895, the court might have moulded a decree of confirmation accordingly. But all that we can now do in this proceeding is to see that the respondent is credited with the actual payments of money that went to pay debts that the purchase money would have been applied to if it had been paid. This amount we find to be $1,212.81. In our opinion the testimony shows it was the intention of all parties interested to sell this land discharged of the lien of the mortgage owned by Robert Scott and J. B. Tenan, and, as we understand, this is not disputed by the executor or the holders of the mortgage. They simply deny that the mortgage was to be satisfied until fully paid. How much is due upon it to be paid out of the purchase money of this sale can be ascertained by an auditor if the amount is disputed.</p> <p>If the parties cannot, after what the court has said, settle this dispute between themselves amicably, we hold that the proper way to close up the settlement of this estate is as foRows: (1) The respondent to pay the balance of the first instalment of purchase money, after deducting $1,212.81, and give bond and mortgage to secure the payment of the 2d and 8d instalments; (2) the executor to settle Iris account as soon as this money is received, and the respondent to file exceptions thereto if not satisfactory; (3) the appointment of an auditor to pass upon exceptions filed, to ascertain creditors and the amount of their claims and to make distribution; (4) so much of the instalments of the purchase money secured by the bond and mortgage as will go to the respondent as a creditor and distributee not to be collected in money, but to be paid or satisfied by the respondent’s receipt.</p> <p>And now, July 28, 1896, the citation to show cause why the confirmation of real estate to respondent, M. H. Stevenson, hereinbefore made, should not be lifted and the property resold, is dismissed; and upon the pleadings and testimony submitted, —the court having complete jurisdiction of the subject-matter and all the parties in interest, — it is ordered, adjudged and decreed as follows, to wit: (1) that the respondent, M. H. Stevenson, have credit upon the first instalment of the purchase money due under the terms of sale as confirmed, for the sum of $802.96 paid to the executor in cash, and for the sum of $409.85 paid to W. S. Lee, J. B. Tenan, B. F. McClure & Co., Drs. G. S. Graham and Buzzard and O. P. Shield, creditors of the Stephen Smith estate; (2) that the respondent, M. H. Stevenson, pay to the petitioner, Geo. M. Tenan, executor, the balance of said first instalment, to wit: $587.55, with interest from September 17, 1895, and give bond and mortgage to secure the payment of the 2d and 3d instalments of the purchase money; (3) that Geo. M. Tenan, executor, upon payment of the balance of the first instalment of purchase money, and the delivery to him of a bond and mortgage to secure the 2d and 3d instalments, execute and deliver to M. H. Stevenson a deed for the property sold to him; (4) that the said Geo. M. Tenan exhibit and file in the register’s office his account to the next term, to the end that an auditor may be appointed to ascertain creditors and the claims against said estate.of Stephen Smith, and make distribution ; (5) that the collection of the 2d and 3d instalment of the purchase money, so far as the amount if collected would go to the respondent, M. H. Stevenson, as a creditor or distributee of said estate, is restrained, his claim as creditor and distributee to be allowed when ascertained by the auditor as a credit on said 2d and 3d instalment of purchase money; (6) the costs of this proceeding- to be paid out of the funds of the estate by the petitioner.</p> <p>Error assigned among others was decree of the court.</p>

<p>Negligence — Contributory negligence — Sudden danger — Boads. ■</p> <p>A person who is suddenly placed in a position of danger by the negli gent act of another is not responsible for an error of judgment committed in an attempt to extricate himself whereby he incurred another danger, without negligence of his own.</p> <p>In an action against a township to recover damages for personal injuries by falling over an embankment on the side of an unguarded public road, it appeared that at the point where the accident occurred the road was only ten feet wide. On the upper side was a steep, inaccessible bank, and on the lower side a steep declivity down a bank fourteen feet on its slope, and ten to twelve feet in perpendicular depth. At the foot of the bank was a sunken space or gutter two and one half feet in width, and immediately beyond, the bed of a railroad track, the nearest rail being about four feet from the foot of the bank. The road inclined upwards toward the brow or knoll a short distance, beyond which the plaintiff said he could not see the road. According to plaintiff’s own testimony, when he reached this point in the road he saw a train approaching him about six hundred and eighty feet distant. The train was running at the rate of fifteen miles an hour, and it would have reached his position in about thirty-five seconds from the time he first saw it. Plaintiffs horse took fright, and plaintiff was carried over and down the embankment and injured. Plaintiff testified that under the circumstances he thought at the time that it was best for him to stay in his buggy and try to control his horse, keep him in motion, and gain a better position, if there was such, on the other side of the knoll. Held, (1) that the question whether the plaintiff exercised the care and caution that a reasonably prudent and cautious man would have done under the circumstances was for the jury; 12) that a verdict and judgment for plaintiff should be sustained.</p>

Appeal, No. 152, Oct. T., 1896, by defendant, from judgment of C. P. Venango Co., on verdict for plaintiff. Trespass for personal injuries. Before Criswell, P. J. Tbe case was previously reported in 171 Pa. 522. The facts appear by the opinion of the Supreme court. Defendant’s eighth point and answer thereto were as follows: 8. That under all the evidence the verdict must be for the defendant. Answer: Refused. [6] Verdict and judgment for plaintiff for $1,443.00.

<p>Appeal, No. 182, Oct. T., 1896, by defendant, from decree of C. P. Butler Co., on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The case was previously reported in 172 Pa. 489.</p> <p>From the record it appeared that on March 9, 1896, the Butler Water Company which had been previously enjoined from collecting water rents, presented its petition to the court, setting forth that it had obtained a new supply of water at a large expense, and praying permission to charge water rents in accordance with a schedule presented to the court. At the hearing upon this petition the company presented certain requests to the court, two of which and the answers thereto are as follows:</p> <p>2. The schedule of new rates proposed by the water company and submitted to the court is reasonably just and fair, taking into consideration the investment of the company, its necessary expenditures, and a reasonable sinking fund to be accumulated for payment of its debt or repair of its plant. Answer: That the schedule of rates made by the court is reasonably just and equitable, taking into consideration the actual investment of the company, its necessary expenditure and other circumstances proper for consideration surrounding the case, and the rates and charges as fixed in said schedule are fair and reasonable compensation for the water so furnished, and render it possible for the defendant company to furnish water without loss, or so low as to amount to a practical confiscation of the property invested in the business.</p> <p>4. The Butler Water Company is a corporation for profit and, as such, is entitled to charge such rates for water as will pay expenses, accumulate a sufficient fund to maintain the plant in good condition, and pay a reasonable profit upon the money expended. So long as the rates charged, or proposed to be charged, do not exceed this, they are not extortionate or unjust, and are not within the control of the court. Answer: I cannot find conclusions of law as requested by the defendant company, and hold that the charges must be determined with reference to the expenditure in obtaining the supply and providing for the accumulation of a sufficient sinking fund to maintain the piano in good condition and pay a reasonable profit upon the money expended, and so long as the rates so charged do not exceed this, they are not excessive or unjust, and are not within the control of the court. We have no authority for such a ruling, and it would be unjust to the consumer, who would have to pay full cost of the water, provide a shaking fund, secure a reasonable profit upon the investment, and have no voice in the man-' agement of the business of the company. The act of assembly in this regard can bear no such construction. It is true this is an important element ha the case, but not the ’‘controlling one. Other interests and surroundings must be carefully considered. The court in its judgment and discretion must have reference both to the expense necessary to furnish water and to what is a fair and reasonable compensation therefor, so as to render it possible to furnish water without loss, or so low as to amount to a practical confiscation of the property invested in the business.</p> <p>Greer, P. J., filed the following opinion:</p> <p>The plaintiffs in their bill allege in paragraph 7 that the said Butler Water Company did not furnish a sufficient supply of pure water for the use of the plaintiffs, citizens of the said borough, but on the contrary the supply of water as furnished by the said Butler Water Company had been insufficient, impure, filthy, and absolutely unfit for use for domestic and other purposes, and in paragraph 10, that the schedule of rates and charges of water rents assessed, charged and collected by the said Butler Water Company for the water furnished by it to the plaintiffs and the citizens of said borough who use the water so furnished, had been excessive, unfair, unjust, extortionate, oppressive, lacked uniformity, and were unequal, and made several prayers, two of which are as follows: (a) To hear, inquire and determine as to the impurity and deficiency of the water supply as furnished the plaintiffs and citizens of the said borough by the said company, and (á) to decree that the charges of the said water company assessed and charged to each of the said plaintiffs shall be decreased as to the said court may seem just and equitable.</p> <p>After the greater part of the testimony had been taken before the judge the parties entered into an agreement in writing, filed in the case, by which the court was asked to hold its decision as to rates and charges until after a decision was had upon the question of the sufficiency of supply and purity of the water. This question having been decided by the court below and affirmed by the Supreme Court, the defendant company came in on March 9, 1896, representing that the water supply at that time was reasonably pure and sufficient in quantity to supply its patrons, and that the said company had remedied the defects complained of in the plaintiffs’ bill, and asked that evidence be heard, and that the court fix the rates to be charged and collected by the defendant company, whereupon the court fixed March 26 as the time for further hearing upon the question of the present supply and condition of the water, and of rates and charges, at which time some additional testimony was taken, and the parties fully heard upon all the questions open for decision. The defendant company in its testimony shows that in the fall of 1895 it went up the Connoquenessing creek from thirty-three to thirty-five thousand feet to Boydstown, and built an impounding dam, and laid a terra cotta water line from that point to its receiving well at Butler, at a cost of about $37,647; that their impounding dam covers in the neighborhood of forty-nine acres of land, and will contain over one hundred million gallons of water; that the watershed from which the water is received is generally from wood and grass land, and is likely to be pure and wholesome; that from every indication, and from an estimate of the rainfall, and extent of the watershed, and quality and character of the ground, the water obtained and impounded in this dam will be adequate to supply the citizens of Butler, and be reasonably pure and wholesome. The defendant company also called a number of witnesses, amongst whom were three physicians, who'testified as to the present condition of the water. Dr. Graham says he has been using it about a month: “ It is fairly good for domestic use ¿ it is a little hard for washing purposes, but there is nothing in it to be injurious to persons drinking it; there may be a little salt water in it.” The doctor says on cross-examination that his family also used rain water for domestic use during the last month. Dr. Hoover says he has been using the water for part of a montn, two, three or four weeks, and that it is is reasonably pure and wholesome, and fit for domestic use; that it is hard, and that he has seen it discolored in the last month. Dr. Pil-Igw says, “ I think it is reasonably pure and fit for domestic use; I think it is good; I have been drinking it right along.” He has not noticed any particular hardness lately. Porter W. Lowry says his family has been using the water for about a month, exclusively since the first of March, and that it is all right for domestic purposes, except that the folks at home complain that it is too hard to wash clothes with it, but are using it for laundry purposes. “ I suppose the way it is this morning it would not do for washing clothes, would not be sufficiently clear to wash clothes.” C. N. Boyd, a druggist, says he has been using it for about six weeks for domestic purposes at his home, and at his store for various purposes, except chemical purposes, for which he uses distilled water; he uses it in his soda fountain, and says it is fairly satisfactory, but does not use it for laundry purposes; has found no injurious effects, and has heard no complaints about its hardness. J. L. Purvis has been using it for domestic purposes, and supposes his family is using it for laundry purposes; he considers it good; draws it from the spigot; uses it to wash with. “ I noticed last night for a minute or two that there was a little discoloration.” He is familiar with the improvements, and has no doubt as to the ample supply 'at all seasons of the year, and has no doubt of the capacity, permanency and success of the improvements lately made. •</p> <p>This proof, though not very positive, is not denied by the plaintiffs, and the court is justified in finding as a fact that the quantity of water now being furnished by the defendant company, and that which has been furnished since March 1, 1896, is adequate to supply the wants of its consumers, and the water is ordinarily and reasonably pure, and is fit to be used .for domestic and other purposes.</p> <p>The next question for consideration is the one as to rates and charges. The latter part of clause 7, in thirty-fourth section of the act of April 29, 1874, gives the court of common pleas jurisdiction and power upon a bill or petition of any citizen using water of any water company to hear, inquire and determine as to the charges for water so furnished, and to decree that the bill be dismissed or the charges decreased as to the said court may seem just and equitable.</p> <p>This act — and I know of no other act of assembly regulating this question — gives no rule to govern the court in determining what are just and equitable rates. Neither have I found or been referred to a decision of the Supreme Court or any other court in the commonwealth furnishing a precedent to follow; therefore the duty of the court is a hard one. In localities where water is convenient, abundant and reasonably pure, as at Chicago, Cleveland and other cities upon lakes, and where very large amounts are daily used, it can be furnished at rates very much lower than where it is scarce, and where impounding dams must be built, and the water stored and conveyed through long lines of pipe, as must necessarily be done in many country districts; so that it would not be fair and just to have a uniform rate throughout the United States or throughout the state. Neither can the rates be established and fixed from the cost of the water plant, and the expense of running the same, as that would indirectly make the consumers insurers to stockholders in water companies that their investments are profitable.</p> <p>Justice Williams, in his opinion in the case of Com. v. Russell, said: “ The interests of the water company, and those of the public, though not identical, are clearly related. The furnishing of water to the public is like the furnishing of light and heat for domestic purposes, a ‘ public use.’ ” It receives its charter and power from the commonwealth, with its right of eminent domain, and with its exclusive right to furnish water to the consumers, upon the principle that the people have rights which must be respected. If it was the duty of the court to look after and protect the interest of the water company only, its labors in this matter would be but one of calculation; obtain the cost of the plant, the yearly expenses of running it, an estimate of the numbers of consumers and amount of water used annually, fix a rate of charges which would be sufficient- to pay the expense, and a fair, reasonable, profitable dividend to the stockholders. In this way the people would pay for the repairs and betterments of their works, interest on their money, and a profit on their investment, also pay for their mistakes, blunders and losses. This would indeed make the water business a sure, safe and profitable one, and one in which almost every person would be willing to invest money. It would be as safe as government bonds, and pay better than banking, and the company which would be first to get into a town would be pretty sure to remain there; but in justice and equity to the people tins rule cannot be established, and we must look for another.</p> <p>The defendant company has submitted a schedule of -new rates, and asks the court to find as a fact that it is reasonable, just and fair, taking into consideration the investment of the company, its necessary expenditures and a reasonable sinking fund to be accumulated -for payment of its debts or repair of its plant, and asks this finding on the ground that the amount of money originally invested in the works is $125,301.08, and the late improvements cost $40,000, making a total investment of $165,301.08. That the annual expense of operating, taking the average of the last four years, is $5,466.04, which added to interest on $170,000, money for sinking fund to pay debts and expense, runs their estimated annual current expenses up to $21,180.04. I have not been fully satisfied that this last estimate is correct, and will not take time to examine or explain. Under authority of our equity rules, I called iu the aid of an accountant, John Findley, an expert bookkeeper, who has made a careful examination of the books and papers of the defendant company, and has made a statement which has been filed in the case, showing 1,992 shares of stock issued, amounting to $99,600; 980 of these were for original cost of the plant, $49,000; 316 shares were sold and put into the plant, $15,800; 696 shares were divided among the stockholders pro rata, amounting to $34,800; dividends paid in stock, $37,400; dividends paid in cash, $41,066. Mr. Findley says : “ Counting the time from November, 1883, two years before there were any dividends paid, and estimating the actual capital paid in by the stockholders, the amount of cash dividends paid would be at the rate of seven per cent on the capital invested for the whole time. If to the cash dividends we add the stock dividends, it will make the rate peícent on the investment about twelve and four fifths per cent. From November, 1889, to November, 1894, the last five years that cash dividends were paid, the rate on the actual investment is eight and one fourth per cent. If to cash dividends we add the stock dividends paid during the same period, it makes the rate 19 per cent on the investment.” The dividends were paid semi-annually, and half the dividend at each payment. Of this $99,600 stock, $37,410.61 was stock dividends, making the actual investment by the stockholders $62,189.39, and the actual receipts, after deducting $40,993.40 of expenses, are $78,632.56, so that on an investment of $62,189.39 by stockholders they have from November, 1883, to November, 1894, about eleven years, over $41,000 in cash, and new stock amounting to $34,800, making in the eleven years over one hundred and twenty-two per cent profit on the original investment or eleven per cent per annum. Much the largest profits were made in the last five years, during which time I have no doubt they would reach the estimate fixed by Mr. Findley.</p> <p>The first part of the seventh clause of the thirty-fourth section of the act of 1834 provides that at any time after twenty years from the introduction of water into any town, it may become the owner of the works and property of the company by paying the cost of erecting and maintaining the same, with interest thereon at the rate of ten per cent, per annum deducting from the interest all dividends theretofore paid. This of course does not control tlie court in fixing the rates in this case, but it is a pretty good indication that the lawmakers, at the time this act was passed, though the ten per cent a fair profit to the water company, when it was getting the return of the full amount of the investment.</p> <p>Mr. Meredith, the superintendent, sworn on part of the defendant company, says the daily consumption of water at Butler is from one million to one million five hundred thousand gallons. This in a year will amount to from three hundred and sixty-five millions to five hundred and forty-seven millions gallons. Let us be liberal with the estimate and allow for waste and bills not collected, and presume the company would be paid for two hundred million gallons in a year, at thirty cents per thousand gallons, and we have the company receiving $>60,000 a year. I am unable to reconcile this statement with the receipts of the company for the last few years as shown by its testimony, but considering this statement as correct, also considering the receipts during the five years immediately before the commencement of this proceeding, and taking into consideration the amount of money invested originally in the works, etc., and since in improvements, betterments and repairs, and the annual cost of running the plant, and also considering the size, importance and future of Butler and the number of water consumers that may be reasonably expected if the charges for water are put at reasonable rates, and I am firmly of the opinion that the schedule submitted by the defendant company is too high, and refuse the second finding of fact as requested by the defendant company.</p> <p>A new schedule is made fixing the rates for the plaintiffs in this case at what I deem just and equitable, and in making it no change is made upon the schedule submitted by the defendant company, except for domestic rates and meter rates. Should any consumer in the other classes feel that his rates are excessive he can easy remedy the evil by using a meter and paying for what he uses, But this rule fm? many reasons will not always apply to use for domestic purposes, therefore the change is made in this particular. Should the water company feel that these rates are too low it has the right to put on a meter and sell by it; the rates as fixed to apply to consumers, plaintiffs in this case, furnishing their own meter. Where the water company furnishes meters to patrons using ten thousand gallons or less per quarter then the rates shall be thirty-five cents per thousand gallons until the difference between thirty and thirty-five cents per thousand gallohs amounts to the price of the meter and cost of placing it, when it shall become the property of the consumer, and the rates thereafter be thirty cents per thousand gallons. The water company may furnish meters for any of its consumers who do not have them of their own, and who refuse to put them on within thirty days after notice.</p> <p>From the testimony submitted in this case I make the following</p> <p>FINDING OF FACTS.</p> <p>1. The quantity of water now being furnished by the defendant company, and that has been furnished since March 1,1896. is adequate to supply the wants of its consumers, and the water is ordinarily and reasonably pure and fit to be used for domestic and other purposes.</p> <p>2. The schedule of rates made by the court is reasonably just and equitable, talcing into consideration the actual investment of the company, its necessary expenditure and other circumstances proper for consideration surrounding the case; and the rates and charges as fixed in said schedule are fair and reasonable compensation for the water so furnished, and render it possible for the defendant company to furnish water without loss, or so low as to amount to a practical confiscation of the property invested in the business.</p> <p>From a careful consideration of this case I have reached the following ,</p> <p>CONCLUSIONS OF LAW.</p> <p>1. The court having found, as requested in the first paragraph of the defendant company for finding of facts, that the quantity of water now being furnished by the defendant company is sufficient, and is ordinarily and reasonably pure and fit, for use, the order heretofore made enjoining the defendant company from the collection of rates must be rescinded, and the defendant company be allowed to charge for the water furnished since March 1, 1896, at such rates as are just and equitable.</p> <p>2. The rate for water charged by other water companies, or water tax levied by municipalities, do not furnish a precedent to govern this court as to proper charges to be made by the defendant company. Other rates or taxes may be too high or too low. The charge in any particular ease must be governed by the particular facts in question especially controlling it.</p> <p>8. It being found as a fact that the water furnished by the defendant company is adequate and reasonably pure, the power of the court ends with fixing the rates for water as it is furnished. The water company may for itself select the source of supply, and determine the system of collection and distribution, the mode of storage, and control generally the business details, and the rates must be determined with reference to the justice and equity of the case.</p> <p>I cannot find conclusions of law as requested by the able solicitors of the defendant company, and hold that the charges must be determined with reference to the expenditure in obtaining the supply and providing for the accumulation of a sufficient sinking fund to maintain the plant in good condition, and pay a reasonable profit upon the money expended, and so long as the rates so charged do not exceed this, they are not excessive or unjust, and are not within the control of the court. We have no authority for such a ruling, and it would be unjust to the consumer who would have to pay full cost of the water, provide a sinking fund, secure a reasonable profit upon the investment, and have no voice in the management of the business of the company. The act of assembly in this regard can bear no such construction. It is true this is an important element in the case, but not the controlling one. Other interests and surroundings must be carefully considered. The court in its judgment and discretion must have reference both to the expense necessary to furnish water, and to what is a fair andi reasonable compensation therefor, so as to render it possible to. furnish water without loss, or so low as to amount to a practical confiscation of the property invested in the business. It seems fairest to fix a rate for the water by quantity, and ascertain this quantity by meter, so that the consumer may use as. much as he desires and pay for the amount so used.</p> <p>Estimating that 200,000,000 gallons are sold yearly (and this is much lower than the amount fixed by the testimony of the defendant company), one half of which at the lowest rate, ten cents per thousand gallons, and the other half at twenty cents per thousand gallons, the company would have an annual income of $80,000, which, would undoubtedly be a fair and reasonable compensation to it.</p> <p>Some evidence has been offered to show charges for water at other places by meter, and I have taken the pains to receive some information outside the testimony from public records elsewhere, from which I find the rate per thousand gallons as follows.</p> <p>Etna, Pa. From 8 to 30 cents</p> <p>Greensburg, Pa. . . From 8 to 25 cents</p> <p>Philadelphia, Pa. From 4</p> <p>Brooklyn, N. Y. . From 7i to Ilf cents</p> <p>St. Louis, Mo. From 10 to 30 cents</p> <p>Richmond, Ya. . . From 7|tol5 cents</p> <p>Charleston, S. C. . From 20</p> <p>Birmingham, Ala. . From 8 to 30 cents</p> <p>Williamsport, Pa. From 5 to 10 cents</p> <p>McKeesport, Pa. . From 4i¡- to 30 cents</p> <p>Oil City, Pa. . From 6 to 25 cents</p> <p>Washington, D. C. . From 3</p> <p>New York cents per hundred cubic feet</p> <p>Chicago, 111. . 8 to cents per hundred cubic feet</p> <p>Some few other places have rates higher than these, but not many.</p> <p>These charges generally are very much lower than those fixed for the Butler company, but do not have a controlling influence in establishing its rates. Nevertheless they may rightfully be considered as an important element in settling the question.</p> <p>The defendant company has not shown such facts and circumstances as would justify a court in fixing the rates and charges as suggested in its schedule submitted, nor to show why its rates should be so much in excess of the rates charged at the different places above mentioned.</p> <p>The watershed of the streams supplying the defendant company with water covers over 18,000 acres of land, and the estimated yearly waterfall at the rate of 36 inches will produce over 19,500,000,000 gallons, or over 53,000,000 gallons daily, and supply 10,000 people with over 5,300 gallons each per day. The water supply of the Connoquenessing and its tributaries, with a rainfall of 32 inches per year, will furnish a sufficient supply of water for ten times the population of Butler.</p> <p>With this abundant water supply, with the knowledge of the investment and past receipts and expenditures of the company, with the information of the charges of other cities and towns, with the prospect of the future growth of the town of Butler, and with the testimony of the defendant company, I feel confident that the court in justice and equity should not hesitate to decrease the present schedule of charges, as submitted by the company defendant, and fix the rates as in the schedule hereto attached and made part of this decision.</p> <p>Therefore the court having found as a fact that the quantity of water now being furnished by the defendant company is sufficient to supply the wants and requirements of the patrons of the company and citizens of Butler, is ordinarily and reasonably pure and fit for use, the order heretofore made enjoining the defendant company from the collection of rates is rescinded, and the defendant company is allowed to charge for water furnished since March 1,1896, and hereafter furnish according to the rates as established in the attached schedule. Also that the defendant company pay the costs in this case, including a fee of $35.00 to John Findley, accountant.</p> <p>The court entered the following decree:</p> <p>1. The quantity of the water now being furnished by the defendant company to its patrons, the plaintiffs in this case, is sufficient and is ordinarily and reasonably pure and fit for use.</p> <p>2. The order heretofore made on September 14, 1895, in this case, that “ from February 1,1895, until pure (reasonably pure) water in sufficient quantity is furnished by the Butler Water Company to its patrons, no rates or charges shall be made or collected from consumers,” except for certain purposes therein stated, is hereby rescinded, and the defendant company is permitted and allowed from March 1,1896, and hereafter, to charge the plaintiffs at the rates hereinafter fixed by the court.</p> <p>3. The water rates of the defendant company from March 1, 1896, to be charged to and collected from the plaintiffs for water furnished by the defendant company to the plaintiffs shall be as follows, viz:</p> <p>DOMESTIC BATES EOB EACH YEAB.</p> <p>A minimum rate of $4 will be charged for each family in dwellings. Additional charge for each furnished room, above one, without spigot therein........$ 1 00</p> <p>For each slop sink using hot and cold water or both—</p> <p>Self-closing spigot..... 8 00</p> <p>Common spigot . . . . . . 3 50</p> <p>Bath tub — Self-closing spigot ... 2 50</p> <p>Common spigot i . . . . 3 00</p> <p>Wash basins, each — Self-closing spigot . . 2 00</p> <p>Common spigot . . . . 2 50</p> <p>Water closets, each..... 3 00</p> <p>Wash pavement, street sprinkler and lawn sprinkler, up to 60 feet front, minimum . . 5 00</p> <p>Over 60 feet front, 4 cents per lineal foot .</p> <p>Stationary wash tub..... 1 50</p> <p>Second tub.......1 25</p> <p>Third tub or more, each .... 1 00</p> <p>All additional fixtures for use of water, special rates.</p> <p>STORES, OEEICES, ETC.</p> <p>Wash stands, each......$ 5 00</p> <p>Water closets, each...... 6 00.</p> <p>Uses of water in store rooms or office . . 5 00</p> <p>Sleeping rooms, each......5 00</p> <p>Barber shops, each chair .... 4 00</p> <p>Wash basins, each......5 00</p> <p>Public bath, each tub.....12 00</p> <p>Drug stores.......10 00</p> <p>Soda fountain......15 00</p> <p>Bakeries . . . . . . . . 15 00</p> <p>Meat and fish markets ..... 12 00</p> <p>Restaurants, in addition to house rates . 15 00</p> <p>Photograph galleries.....15 00</p> <p>Billiard rooms.......10 00</p> <p>Water closets in billard rooms . . . 10 00</p> <p>Urinals in billiard rooms . . . . . 5 00</p> <p>Wash stands in billiard rooms ... 5 00</p> <p>STABLES — LIVERY, HOTEL AND BOARDING STABLES.</p> <p>Minimum . .....$50 00</p> <p>Each stall above five ..... 3 00</p> <p>Each wheeled vehicle above five ... 2 00</p> <p>Private stables, each stall .... 2 00</p> <p>Each wheeled vehicle..... 2 00</p> <p>HOTELS AND BOARDING HOUSES.</p> <p>Rooms, house rates.....</p> <p>Water closets, self-closing, each $8 00</p> <p>Urinals, self-closing, each .... 8 00</p> <p>Urinals, not self-closing, each . 10 00</p> <p>Bath tubs, private rates ....</p> <p>Wash basins, each..... 6 00</p> <p>Bars with water fixtures .... 30 00</p> <p>Bars without water fixtures .... 15 00</p> <p>Hotel kitchens, hot and cold water attachments 15 00</p> <p>FOUNTAINS.</p> <p>Flowing not to exceed ten hours per day $10 00</p> <p>steam: engines.</p> <p>Per horse power, ten hours per day 2 00</p> <p>SCHOOLS.</p> <p>Public and private for average number of scholars in attendance, 5 cents each.</p> <p>Wash basins, water closets and any additional use of water, special rates.</p> <p>MOTORS.</p> <p>Publishing one weekly newspaper and job work $80 00</p> <p>Daily edition, additional .... 50 00</p> <p>For ice cream freezers..... 40 00</p> <p>For fans in hotels, restaurants, etc., each . 40 00</p> <p>For meat markets...... 35 00</p> <p>For organs....... 20 00</p> <p>PUBLIC BUILDINGS.</p> <p>Special rates for building purposes,</p> <p>For brick per M..... 12 cts.</p> <p>For stone per perch.....08 cts.</p> <p>Plastering per 100 yards .... 75 cts.</p> <p>METER RATES.</p> <p>Yearly minimum rate.....$ 9 00</p> <p>Rate per 1,000 gallons per quarter, first 10,000 gallons or less '..... 30 cts.</p> <p>Amount exceeding 10,000 gallons and under 50.000 gallons ...... 25 cts.</p> <p>Amount exceeding 50,000 gallons and under 250.000 gallons..... 18 cts.</p> <p>Amount exceeding 250,000 gallons and under 500.000 gallons......12 cts.</p> <p>Amount exceeding’500,000 gallons and upwards 10 cts.</p> <p>When the water is properly filtered the charges may be increased 20 per cent. [8]</p> <p>IY. The costs in the case including a fee of $35.00 to John Bindley, accountant shall be paid by the defendant company. [5]</p> <p>¡Errors assigned were (1, 2) answers to requests as above, quoting them; (3) paragraph three of the decree; (4) paragraph four of the decree.</p>

<p>Appeal, No. 188, Oct. T., 1896, by T. F. Birch and J. W. Rowland, guardians, from decree of O. C. Washington Co., Feb. T., 1895, No. 50, overruling exceptions to auditor’s report.</p> <p>Exceptions to report of A. M. Todd, Esq., auditor. Before Taylor, J.</p> <p>The auditor found the facts to be as follows:</p> <p>The account of the executor shows a balance due him of $1,269.25, and by note “ A ” appended thereto he acknowledges to have in his hands the sum of $5,234 as the net proceeds of a compromise of two suits brought against the P., C., C. & St. L. Railway Company for the purpose of recovering damages on account of the injury sustained by this decedent and her subsequent death at the hands of said company. The exceptions related entirely to the question as to whether or not the executor should have charged himself with this amount, it being agreed at the hearing before the auditor that any exception looking to a surcharge of a larger amount than this net balance of $5,234 would be waived by the exceptants, and the question for the determination of the auditor reduced to the refusal of the exceptions or sustaining them simply as to a surcharge to that extent.</p> <p>Mary V. Taylor, the decedent, was injured upon the road of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company on June 29, 1892. On August 25, 1892, she brought an action of trespass against said company to recover compensation for the injuries alleged to have been sustained by her on account of said accident. She died March 29, 1893, leaving surviving her three minor children, to wit: Mary Y. Taylor, George A. Taylor and Edith O. Taylor. By her last will and testament T. F. Birch, Esq., the accountant, and J. W. Rowland were appointed the executors of her estate, and these same gentlemen were also appointed by this court as the guardians of the above-named children. After her death the above-named executors had the same suggested upon the record, and themselves substituted as plaintiffs in the action brought by her; and on February 3, 1894, Birch and Rowland, as guardians of the above-named minor children, brought a second action of trespass against the said railway company to recover damages on account of the death of Mrs. Taylor. The action brought by Mrs. Taylor was to No. 58 of November term, 1892; and the action subsequently brought by the guardians of her minor children was to No. 196, February term, 1894. After the substitution of the executors as plaintiffs in the suit brought by Mrs. Taylor, an amended statement was filed by them which alleged that her death was caused by and the result of the injuries she received on the said 29th day of June, 1892. To this statement a demurrer was filed by the defendant company upon the ground that the right of action did not survive the plaintiff. ■ The court of common pleas of Washington county sustained the demurrer so filed, and an appeal was taken by the plaintiffs to the Supreme Court of the state, which reversed the court below, and held that “ The right of action for death given by section 19, of the act of April 15,1851, as amended by section 1 of the act of April 26, 1855, is conditioned upon the concurring facts, that the injured party’s death was occasioned by said violence or negligence, and that no suit for damages was brought by him. The first section of the act of 1855 was not intended to dispense with either of said conditions. It merely designates the persons who, in connection with the widow, and in lieu of the personal representatives, shall thereafter be entitled to exercise the statutory right of action, and recover damages for the death. In other respects, there does not appear to be any express or implied repeal or modification of the 18th and 19th sections of the act of 1851.”</p> <p>The question raised before the Supreme Court in the above case, which is reported in 165 Pa. 889, was, whether this suit brought by Mrs. Taylor during her lifetime abated at her death, or was continued for the benefit of her estate ; and whether the railway company was liable in that action under the provisions of the act of April 15, 1851, and also liable in the subsequent action brought by the guardians under the provisions of section 19 of said act, and the act of April 26, 1855. In the opinion of the auditor the conclusion reached by the Supreme Court is that the company continued liable under the original suit brought by Mrs. Taylor during her lifetime, and that the suit brought by the guardians of her minor children after her death was improvidently brought, and no recovery could be had thereon.</p> <p>After the rendition of the decision in the above case a compromise was reached between Birch and Rowland, as executors of Mary Y. Taylor, deceased, and as guardians of her minor children, by which the defendant company paid to them the sum of $7,500 in full satisfaction of all claims for damages on account of her injury and death, and it is the balance of this sum, after the deduction of attorney’s fees, costs and expenses, which the accountant says is in his hands, and which he says he is advised “should be retained by T. F. Birch and J. W. Rowland as guardians of Mary V., George A. and Olive E. Taylor, minor children of the decedent.”</p> <p>The auditor is of the opinion that the decision of the Supreme Court not only reinstated the original suit brought by Mary V. Taylor during her lifetime, but in effect nullified the second action brought by Birch and Rowland as the guardians of her minor children, and that the entire sum paid by the railway company hi compromise and settlement of these suits in reality passed into the hands of Birch and Rowland as executors, and formed part of her estate in their hands liable to all the claims • of creditors thereon. He has, therefore, sustained the exceptions and surcharged the accountant with the sum of 15,234.</p> <p>Exceptions to auditor’s report were overruled. The guardians appealed.</p> <p>.Errors assigned were in overruling exceptions to auditor’s report.</p>

Appeal, No. 188, Oct. T., 1896, by defendant, J. M. Hine, from order of C. P. Indiana Co., March Term, 1894, No. 323, overruling motion to open judgment. Motion to open judgment. Before Harry White, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was order overruling motion to open judgment.

<p>Appeal, No. 178, Oct. T., 1896, by plaintiff, from judgment of C. P. Butler Co., Sept. T., 1882, No. 26, on verdict for plaintiff.</p> <p>Ejectment for a tract of land in Fairview township. Before Hazen, P. J.</p> <p>At the trial it appeared that Alexander Armstrong formerly claimed title to the whole of the farm in dispute. He obtained his title to the land by a deed from John M. Christy and Sarah A. Christy, his wife, and Maria L. Christy, dated March 27, 1865, and duly recorded in Butler county on March 1, 1867. John M. Christy owned the southern half of the farm and Maria L. Christy, his mother, owned the northern half of the farm at the time they made the deed to Armstrong. María L. Christy had a husband, Andrew J. Christy, living at the time, who did not join in the deed. Alexander Armstrong, therefore, obtained a good title to onty the southern half of the farm. John M. Thompson, afterwards, on March 1,1870, obtained a deed from Alexander Armstrong for the whole farm, eighty acres, which was duly recorded in Butler county, on July 8,1870. An execution was issued on a judgment owned by Samuel L. Riddle, the plaintiff in this case, against John M. Thompson, and the whole interest of Thompson in the land was sold to him, at December term, 1881. On the trial of the case the defendant set up the defense that the deed from Alexander Armstrong to Thompson was a mortgage in effect, and the consideration of the deed was attacked. The defendant set up the further defense that he was the owner of the northern half of the farm by virtue of a deed from Maria L. Christy and Andrew J. Christy, her husband, dated December 14, 1881, and recorded in Butler county on November 16,1881, and that he was in actual possession of the northern half of said farm in good faith under that title. John M. Thompson had also obtained a deed from Maria L. Christy and Andrew J. Christy, her husband, dated April 26, 1870, but this deed had not been recorded at the time the defendant got his title from Maria L. Christy and her husband, and was not recorded until July 24, 1882, some eight months after the interest of Thompson in the farm was sold, and some eight months after John M. Armstrong had placed his deed on record.</p> <p>The court charged in part as follows :</p> <p>[Gentlemen, in passing upon the question of fact, if you should find as a fact from the weight of the evidence that John M. Thompson took a conveyance of this land bona fide from Alexander Armstrong, and did not hold it as a mortgage or security for money, then, so far as there was at that time a legal title, good title, in Alexander Strong, it passed to Thompson. If you find from the weight of the evidence that it was not a bona fide conveyance, but only a security for the money , then having found in either event we think it would abbreviate somewhat your labor. If you find it as a security, as claimed by the defendant, and that alone, then we think that your verdict reasonably would be for the defendant.] [11]</p> <p>[As to the deed from A. J. Christy and Maria L. Christy, his wife, that was unrecorded until after the second conveyance, if you find as a fact that the party who took the second conveyance either had knowledge, or was in position reasonably to know of the circumstances and facts, and took with knowledge, then we think there is no question that that deed vested the whole title in Thompson.] [12]</p> <p>Verdict and judgment for plaintiff for the southern part of the land, and verdict and judgment for defendant for the northern part. Plaintiff appealed.</p> <p>Errors assigned among others were (11, 12) above instructions, quoting them.</p>

<p>Appeal, No. 22, Oct. T., 1896, by-defendant, from judgment of O. P. No. 1, Allegheny Co., March T., 1894, No. 6, on verdict for plaintiff.</p> <p>Assumpsit to recover a balance alleged to be due on stock transaction. Before Stowe, P. J.</p> <p>At the trial it appeared that there were two men named E. B. Thompson, father and son ; that the father is the plaintiff in this case; that in 1889 an account was opened with the defendant, a broker, by the purchase of thirty shares of Central Traction Company’s stock at thirty dollars per share. The receipt given was to E. B. Thompson, Sr., but the order was given by E. B. Thompson, Jr., his son. Other purchases were subsequently made, and the other receipts were given to “ E. B. Thompson.” In 1892, E. B. Thompson, Jr., began transactions in wheat with the defendant, and all the papers and correspondence in relation to the wheat-transaction were in the name of “E. B. Thompson, Jr.” On January 18, 1892, E. B. Thompson, the son, drew a draft upon Sproul & Lawrence for two hundred and fifty dollars ; and upon January 25, he got from them one hundred dollars, for which he gave his receipt; and upon February 10, he got seventy-five dollars, for which he gave his receipt, using these moneys for his own private purposes. On February 1, there was transferred to the wheat account five hundred dollars which stood in the Central Traction Company account, and on March 1 of the same year another five hundred dollars was transferred, to the wheat account from the Central Traction Company account. Both father and son testified that the transactions in Traction stock were for the father.</p> <p>Defendant’s points and answers tbereto'were as follows:</p> <p>1. That under all the evidence in the case, the verdict must be for the defendant. Answer: In other words, that the verdict should be for the defendant. That is refused. It depends upon what we have already said with reference to the notice; the knowledge of the defendant as to the ownership of this money, and of the party for whose benefit this stock transaction was carried on. [1]</p> <p>2. That if the jury believe that the Central Traction stock account was for E. B. Thompson, Sr., and the defendant knew it, and that E. B. Thompson, Jr., was the authorized agent, then all credits must be allowed for moneys appropriated by E. B. Thompson, Jr. Answer: That is refused. It is altogether too broad. If the defendant knew, as this point assumes, that the stock was purchased for the plaintiff by the son, the mere fact that the latter was the authorized agent to purchase stock for his father would not excuse the defendant in allowing him (the son) to withdraw the money directed to be used for the purchase of stock, for any other purpose, without the father’s consent. [2]</p> <p>3. If the jury believe that the two accounts were for the benefit of the same person, then, under the testimony in this case, the verdict must be for the defendant. Answer: That is affirmed. If you believe this transaction from first to last was for the benefit of the son, although the father might have furnished him the money, yet, if it was actually for the benefit of the son; if the evidence indicates that, then of course the plaintiff is not entitled to recover here, because he has no interest in the transaction; it would be the son’s transaction, and whatever claims the son might have cannot be settled in this case. Therefore, your verdict would have to be for the defendant in that case. [3]</p> <p>Yerdict and judgment for plaintiff for §3,112.23. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 6, Oct. Term, 1896, by defendant, from judgment of C. P. No. 8, Allegheny Co., Feb. Term, 1894, on verdict for plaintiff.</p> <p>Trespass for libel. Before Kennedy, J.</p> <p>At the trial it appeared that the libelous publications complained of appeared in the Pittsburg Post on October 10 and 11, .1893.</p> <p>The first article, which was published, Oct. 10,1893, has these headlines in large letters: “ Gone to her- drummer. A missing-hotel maid being pursued by an irate parent.” And the article reads thus: “ About three months ago Miss Mollie O’Toole, a pretty young woman about twenty years of age, applied for work in a prominent hotel of this city. She was from McKeesport. Being of good appearance and having good manners, she was made parlor maid, which is a very desirable place for women in hotel work, but two days ago she disappeared, and is said to have gone to Philadelphia to meet a chewing gum agent whom she met at the hotel. The chewing gum gentleman made his appearance at the house about a month ago, and he and the girl got noticeably thick. He staid about one and a-half weeks, after which Miss O’Toole, a girl friend noticed, got despondent. Her sudden leave to join her drummer friend explains this, but their life will not be one of a rosy path, if her father, who is said to have gone to Philadelphia with a gun to hunt for them, finds them. Miss O’Toole is said to have been engaged to a young man in McKeesport when she left there.”</p> <p>This was followed the next day, October 11, with another article, which reads thus, without any head lines: “ The advantage which the chewing gum agent has over other traveling men in gaining the good will of the dear girls has again been demonstrated in this city. A chewing gum man from Philadelphia put up at one of our hotels and Mollie O’Toole at once lost her heart. He wooed her with gum of the most succulent sort, and every time Mollie worked her jaws, she felt her love for the sweet man growing. When he voluntarily presented her with a whole box of gum, it was too much, and she hesitated no longer. Her father is now following her and her gum man into the wild, wicked east.”</p> <p>The plaintiff having testified that after her return from her trip East, some three weeks after the publication, she went to the office of the Post Printing & Publishing Company and there saw a Mr. Barr, she then continued as follows:</p> <p>“ Q. What did you say to him? A. Well, I asked him what authority had he to publish that lie in the paper.”</p> <p>To which defendant objected as follows:</p> <p>We object to this. This is a suit against a corporation, and declarations after the fact are hardly competent. We object to any statements of agents or employees of the corporation sued, some weeks after the fact, and not as part of the res gestee.</p> <p>Objection overruled. Exception and bill sealed.</p> <p>Thereupon the witness testified as follows:</p> <p>“ Q. What did Mr. Barr say to you, and what was done at that interview? A. Well, he said he supposed they just did it for a mere joke, and I asked him if he would contradict it in the paper, and he said, no he wouldn’t do that if I intended to bring suit against him. I told Mm I was not guilty of that, and he would have to account for it. I says, ‘ I’ll show that it is not so.’ He said, ‘We won’t retract if you intend to bring suit against us.’ [1]</p> <p>“ Q. Did the publications which have been read to the jury in your hearing have any effect upon your reputation in Mc-Keesport or in other places where you have lived, and if so, what are they?”</p> <p>Objected to. That is a question for the jury and not for the witness.</p> <p>By the Court: “ Q. Did it have any effect at all? A. Yes, sir. Q. Then what was the effect? A. People had a bad opinion of me that read it m the papers. [2] Q. Did you have conversation with any of your friends in relation to these articles ? A. Yes, sir. Q. Did you talk to any people hr McKeesport or Pittsburg, or did any person talk to you about it ? ”</p> <p>Objected to as irrelevant and immaterial. If important the persons themselves are the best witnesses.</p> <p>Objection overruled. Exception and bill sealed.</p> <p>“ A. Do you mean the articles in the papers ? Q. Yes, the articles in the papers. A. Yes, sir. Q. Who? A. I talked to May McDermott, Mrs. McGinley and my sister, Annie O’Toole and Mrs. Corsey. [3] Q. State in what way this article had a bad effect upon you ? ”</p> <p>To which defendant objected as incompetent.</p> <p>Objection overruled. Exception and bill sealed.</p> <p>“ A. In several ways, not one alone. Q. State in what way? A. It injured my character and prevented me from getting employment from people that would have employed me if that hadn’t been in the paper, and it injured me in the society I associate with, and school companions didn’t think as much of me afterwards.” [4]</p> <p>Eliza Mulligan, a witness called on behalf of the plaintiff, being upon the stand testified as follows :</p> <p>a.Q. Did you see these articles regarding Miss O’Toole in the Post? A. Yes, sir. Q. When? A. Well, I couldn’t tell exactly. Q. About the time of their publication? A. Yes, sir. Q. State if you read them. A. Yes, sir. Q. Do you know of others reading them? A. Yes, sir. Q. And commenting upon them? A. Yes, sir. Q. Favorably or unfavorably to Miss O’Toole ? ”</p> <p>To which defendant objected as incompetent.</p> <p>Objection overruled. Exception and bill sealed.</p> <p>“ A. Unfavorably. Q. Did persons talk to you in relation to it? A. Yes, sir. Q. Do you know the fact that persons declined to speak to Miss O’Toole because of the publication of these articles? A. Yes, sir.” [5]</p> <p>A. J. Barr and F. X. Barr who were connected with the newspaper testified that they had offered to publish a retraction which plaintiff declined to accept. This was denied by the plaintiff. No request was made by the defendant to the court for instruction as to this disputed fact.</p> <p>Verdict and judgment for plaintiff for $1,600. Defendant appealed.</p> <p>Errors assigned were (1-5) rulings on evidence, quoting the, bill of exceptions; (6) in not charging the jury as to the effect of the offers of retraction tendered to plaintiff before suit brought, and by her declined, as testified to by defendant’s witnesses, A. J. Barr and F. X. Barr.</p>

Appeal, No. 177, Oct. T., 1895, by defendants from decree of C. P. No. 8, Allegheny Co., Aug. T., 1892, No. 181, on bill in equity. Bill in equity for the cancelation of a mortgage.

<p>Appeal, No. 9, Oct. T., 1896, by defendant, from decree of O. P. No. 3, Allegheny Co., Aug. T., 1893, No. 315, on bill in equity.</p> <p>Bill in equity for the cancelation of an assignment of mortgages.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree in favor of plaintiff.</p>

<p>Appeal, No. 81, Oct. T., 1896, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1894, No. 357, on verdict for plaintiff.</p> <p>Assumpsit for rent. Before Porter, J.</p> <p>Tbe facts appear by the opinion of tbe Supreme Court.</p> <p>Verdict and judgment for plaintiff for $7,068. Defendant appealed.</p> <p>Errors assigned were (1) portion of charge quoted in tbe opinion of tbe Supreme Court; (2, 3) refusal of defendant’s points, quoted in tbe opinion of tbe Supreme Court.</p>

<p>Contract — Building contract — Affidavit of defense.</p> <p>In an action to recover the final payment alleged to be due upon a building contract, it appeared that the building was to be finished to the satisfaction of the owners and their architect, and that the plaintiffs were to so complete and deliver the building that the owner would not be liable beyond a sum specified. A per diem penalty was provided for delay. The plaintiffs’ claim in the suit was under the contract for the whole contract price, and for extra work besides. The statement of claim admitted that a very important part of the work done by the plaintiffs was rejected by the architect, and was done by other parties; but asserted that this was due to a mistake oí the architect. The statement also made claim for extra work in contravention of the express terms of the contract. The statement admitted that there was a considerable delay in finishing the building, but alleged that this delay was owing to the defendant’s conduct. An affidavit oí defense was filed averring that the building had not been finished to the satisfaction of the architect and owner; that liens had been filed against it; that a heavy penalty had accrued against plaintiffs by reason of delay, and that only a certain sum specified which was much less than the amount claimed by plaintiffs was due for extra work. Held, that as it appears by plaintiffs’ statement that they did not perform all of the work, and did not finish it “to the satisfaction of the owners and architect,” and that there are active elements of dispute between the parties, the affidavit, while not very specific, was sufficient to prevent judgment.</p>

Appeal, No. 24, Oct. T., 1896, by defendant, from order of C. P. No. 3, Allegheny Co., Nov. T., 1896, No. 262, making absolute a rule for judgment for want of a sufficient affidavit of defense. Scire facias sur mortgage.

<p>Appeal, No. 54, Oct. T-, 1896, by-Peter Schiehl, from decree of O. C. Allegheny Co., May T., 1895, No. 6, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication. Before Over, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 46, Oct. T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 95, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Ewing, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial James Stratton was asked this question:</p> <p>“Q. State whether, in view of the examination that you made of the bridge on the day after the accident and since that time before the guard rails were put up, as you say, in view of your knowledge of the locality in the last forty years, whether, in your opinion, the bridge was dangerous or otherwise.”</p> <p>By the Court: Since ruling on the objection to a similar question asked Mr. Corry, court has been shown the case of McNerney v. The City of Reading, 150 Pa. 611. The ruling in that case seems to cover the question, and although it is in my judgment directly in the teeth of the principles laid down for the government of the court admitting the opinion of witnesses in other cases, nevertheless it rules this case, and in this case the witness has shown much more to entitle him to give an opinion than in the other. The objection is overruled and bill sealed for defendant.</p> <p>And the ruling in relation to the exclusion of the question to Mr. Corry is withdrawn, and the exception in that case is overruled, and the plaintiff will be allowed to ask the question.</p> <p>Objection and bill sealed for defendant.</p> <p>Captain Corry having been recalled, testified:</p> <p>“ Q. Captain, having stated that you made an examination of the bridge the next morning after the accident, that you have seen it different times since then, state, in your judgment,</p> <p>’ as to whether that bridge, at the time of the accident, was or was not a safe place for persons passing over it. A. I would not regard that as a safe bridge at night in the absence of hand rails.” [1]</p> <p>The court submitted the question of plaintiff’s contributory negligence to the jury.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2) in submitting the question of plaintiff’s contributory negligence to the jury.</p>

Appeal, No. 60, Oct. T., 1896, by-defendant, Allegheny Traction Co., from judgment of C. P., No. 8, Allegheny Co., Feb. T., 1895, on verdict for plaintiff. Trespass for personal injuries. Before McClung, J. At the trial it appeared that plaintiff was injured on the evening of September 8, 1893, while riding as a passenger in a car of the Allegheny Traction Company in Pittsburg.

Appeal, No. 62, Oct. T., 1896, by defendant, Pittsburg & Birmingham Traction Company, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1895, on verdict for plaintiff. Trespass for personal injuries. The facts appear by the preceding case.

<p>Negligence — Release of damages.</p> <p>Whore a woman, for a valuable consideration, executes to a railroad company a release of damages for personal injuries, after discussing its terms, and after having had an opportunity to consult her friends, and without fraud upon the part of the company, and where it appears that she is a woman of intelligence and fair education, she will be concluded by it, although her injuries turn out to be of amore serious character than she supposed them to be at the time she signed the release.</p>

<p>Negligence — Electric railway — Crowded car — Biding on platform — Measure of care.</p> <p>The use of electricity as a motive power by passenger railway companies has created new conditions from which new duties arise. The greater speed at which cars are moved increases the danger to passengers and to persons on the streets, and of these dangers all persons must take notice. When there is an invitation or permission to passengers to ride on the rear platform it is the duty of the company to observe a higher degree of care in the running of the oars at points where there is danger that they may be thrown off, and there should be a corresponding increase of care and vigilance upon the part of a passenger who voluntarily assumes such a position of danger.</p> <p>In an action by a passenger against a street railway company to recover damages for personal injuries, it appeared that the plaintiff got on a crowded car of the defendant late at night. There was no room inside the car, and he stood with a number of other passengers on the rear platform. At first he stood between the controller and the brake, facing forward, with his back against the railing of the platform, a comparatively safe position. He was subsequently requested by the conductor to change his position, and he attempted to enter the car, but was unable to do so. He then took a position which the conductor told him to take at the outer edge of the platform near the step, where he stood with his back to the car, holding with his right hand to the iron railing behind him. While standing in this position the electric current was turned off, causing the lights to be extinguished, and the car was allowed to run at a rate of fif* teen or twenty miles an hour down a grade in which there was a sharp curve. When the car struck the curve plaintiff’s hold of the railing was broken, and he was thrown off. Plaintiff was familiar with the locality, and knew of the curve. It appeared that it was the custom of the company to carry passengers on the platform of its cars. Held, that the question of the plaintiff’s contributory negligence, and the defendant’s negligence was for the jury.</p>

<p>Evidence — Parol evidence — Contract.</p> <p>In the absence of fraud, accident or mistake, a written contract which purports to contain the whole agreement of the parties cannot be changed or modified by parol evidence, and in no event can it be done by the testimony of one witness, if such testimony is contradicted by that of another witness.</p> <p>In an action upon a contract of hiring, plaintiff alleged that the contract was partly in writing by a letter, and partly in parol. The contract 'was complete without the parol part, and did not show that the hiring was for a year, but plaintiff alleged that the acceptance of the terms contained a parol stipulation to that effect. The defendant alleged that the acceptance was unconditional, and denied that there was any agreement to hire the plaintiff for a year. Held, that the testimony was insufficient to change or modify the contract as set out in the letter.</p>

Appeal, No. 66, Oct. T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., January Term, 1891, No. 756, on verdict for plaintiff. Assumpsit on a contract to build an electric road.

<p>Insurance — Life insurance — Representations as to health — Affidavit ojdefense.</p> <p>In an action upon a policy of life insurance where the affidavit of defense sets forth that the insured made false representations as to his health in his application, and as to whether his relatives had been afflicted with consumption, and the testimony of the defendant tends to sustain the allegations of the affidavit, a point offered by the defendant embracing the allegations of the affidavit and asking for binding instructions, if the jury believe that the allegations have been sustained, should be affirmed.</p> <p>Life ihsurance — Applications—Warranty as to truth of facts set forth in the application — Contract.</p> <p>• ‘Where a policy of insurance contains a warranty of the truth of certain' facts, the validity of the policy depends on the truth of the' warrantee In such case the engagement of the policy holder is absolute that the facts shall be as they are stated when his rights under the policy attach.</p> <p>Where an applicant for insurance warrants the truth of facts stated in his application, a statement that he had been attended by a certain physician “ one year ago,” will vitiate the policy, if it appears that he had been attended by that physician six times within the preceding year.</p> <p>Insurance — Practice, O. P__Amendment.</p> <p>In an action upon a policy of life insurance it is proper to allow an amendment after the testimony is closed, so as to make the pleadings conform to the proof, where the application is in the interest of justice.</p> <p>Insurance — Life insurance — Proof of loss as evidence of cause of death.</p> <p>In an action upon a policy of life insurance a proof of loss setting forth the cause of death of the insured, signed by the plaintiff with her mark, properly witnessed and acknowledged before a magistrate, and referred to by plaintiff in conversations with an officer of the defendant company without denial of its authenticity, is evidence for defendant to show the cause of death, without specific proof of its actual execution by the plaintiff, and its rejection when offered for that purpose is error.</p>

<p>Mines and mining — Oil and gas — Minerals.</p> <p>Petroleum oil and natural gas are minerals.</p> <p>Life estate — Remainders—Oil and gas lease — Mines and mining.</p> <p>Where no oil or gas operations have been' commenced on land before an estate for life has accrued, the tenant for life has no. right to. operate for oil or gas himself, and cannot give such a right to any person by lease.</p> <p>A life tenant of oil and gas lands which had never been operated for oil or gas executed a lease for oil and gas purposes exclusively. .The lessees did not operate the land, or perform any of the covenants of the 'lease, and refused to pay the rent stipulated. Held, that the lessor could not enforce the lease. '.)••■</p>

<p>Appeal, No. 75, Oct. T., 1896, by defendants, from order of C. P. No. 2, Allegheny Co., April T., 1895, No. 2, discharging a rule to show cause why a sum in bank should not be paid to the contractor.</p> <p>Rule to show cause why the sum of $1,172.72 in the Bank of Secured Savings should not be paid to H. J. Smith. Before White, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule.</p>

<p>Appeal, No. 89, Oct. T., 1896, by Dwelling House Insurance Company, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1894, No. 627, on verdict for plaintiff.</p> <p>Execution attachment by a judgment creditor of John D. McKee, to recover from the Dwelling House Insurance Company the amount due said McKee on a policy of fire insurance. Before McClung, J. ' ■</p> <p>The garnishee denied liability under the policy of insurance because the insured was not the sole and unconditional owner of the property as required by the policy, and the issue was between it and the plaintiff who was a judgment creditor of the insured. The latter died pending the suit, without leaving any issue, and under thirty years of age; the significance of which, with other facts, will appear from the opinion of the Supreme Court. The defendant also denied liability in this suit because the insured had refused to submit the matters to arbitration under the terms of the policy which provided that in case the parties could not agree upon the loss, appraisers should be chosen ■ to adjust it. The court submitted the case to the jury on the question whether the value of the house at the time of the fire was equal to the amount of the policy, and what that value was. The court instructed the jury that, under the will of David McKee, John McKee took an estate in fee. The court also instructed the jury that the' refusal to arbitrate did not constitute a sufficient defense to the action.</p> <p>Verdict and judgment for plaintiff for $3,195. Defendant appealed.</p> <p>Error assigned among others was entry of judgment on the verdict.</p>

Appeal, No. 104, Oct. T., 1896, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., December term, 1895, No. 320, on verdict for defendants. Issue devisavit vel non. Before Collier, J. The facts appear by the opinion of the Supreme Court. Plaintiff’s points and answers thereto among others were as follows: 3.

<p>Criminal law — Alteration of lease — Forgery — Malicious prosecution-— Probable cause.</p> <p>Forgery is the fraudulent making or alteration of a writing to the prejudice of the right of another, and it is not committed where A signs a lease to B and sends it by his agent to get B’s signature, and B makes alteration in it before he signs it and returns it to the landlord’s agent. Even if the alterations be made to mislead A’s agent, it will not afford A who refuses to agree to the changes and insists on the original form of lease, probable cause to prosecute B for forgery.</p>

<p>Appeal, No. 87, Oct. T., 1896, by J. A. Wakefield, from order of C. P. No. 1, Allegheny Co., March T., 1896, No. 343, making absolute a rule upon him to record an assignment, and file an inventory.</p> <p>Rule upon J. A. Wakefield to record a paper alleged to be an assignment for the benefit of creditors, and to file an inventory and enter bond.</p> <p>From the record it appeared that on June 11, 1895, F. H. Trembly & Co., who were insolvent, executed under seal the following paper:</p> <p>“Know all men by these presents that we, F. H. Trembly & Co. of the city of Pittsburg, Allegheny county, Pa., in consideration of our indebtedness due and owing to W. G. Watson & Co. and Pack, Gray & Co. of the amount of $6,000, six thousand dollars, have bargained, sold, assigned, transferred and set over unto J. A. Wakefield, trustee for W. G. Watson & Co. and Pack, Gray & Co. of the same place all the contracts, debts, and book accounts as evidenced by the schedule hereto annexed and made part of this bill of sale now due and owing to us by the therein mentioned parties, said indebtedness being for goods and merchandise sold and delivered to said parties at their instance and request, together with all our right, title, interest and claim in of and to the said contracts, debts and any and every part thereof to the only proper use and behoof of the said J. A. Wakefield, trustee, his executors, administrators and assigns, hereby covenanting that the said amounts are justly due and owing without any counterclaim or set-off whatsoever.”</p> <p>On the same day a judgment was confessed by Trembly & Co. to Wakefield, as trustee for the same parties, for the sum of $6,000, heing the same indebtedness. Upon this judgment an execution was issued, and the personal property of the firm was sold, nearly all of which was purchased by Wakefield. This writ being subsequent to two other executions, no part of the proceeds was distributed to Wakefield.</p> <p>At the time of these transactions Wakefield was attorney for Watson & Co. and Pack, Gray & Co. It does not appear whether thejr authorized the assignment, or had knowledge of it, or whether the arrangement was made by and between Trembly & Co. and Wakefield, as attorney.</p> <p>The court held that the paper was a voluntary assignment for the benefit of creditors within the meaning of the act of April 17, 1843, and made the rule absolute.</p> <p>Error assigned was above order.</p>

Appeal, No. 81, Oct. T., 1896, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1894, No. 777, on verdict for plaintiff. Assumpsit against a surety in a building contract. Before McClung, J. This action was originally brought by Peter Slicker against Wm. G. Conard and Lambert Schuchert; but before trial the record was amended by striking out the name of Wm. G. Conard, as one of the defendants. It appeared at the trial that on July 1,1893, Wm.

<p>Appeal, No. 82, Oct. T., 1896, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T\, 1895, No. 107, sustaining exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report. Before Kennedy, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>

<p>Appeal, No. 83, Oct. T., 1896, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1895, No. 108, sustaining exceptions to auditor’s report.</p>

Appeal, No. 107, Oct. T., 1896, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1895, No. 298, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit against an indorser upon a promissory note. The facts appear by the opinion of the Supreme Court. Error assigned was order making absolute a rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 119, Oct. T., 1896, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1893, No. 147, on verdict for plaintiff for less than the amount claimed. Assumpsit to recover a tax on alleged dividend. Before White, J. At the trial it appeared that the defendant was chartered by the special act of April 12, 1859, under which it was required to pay a tax upon declared dividends to the city of Allegheny.

<p>Corporations — Street railways — Dividend—Increase of stock.</p> <p>A nominal or arithmetical increase of shares, without transferring to the stockholders anything out of the treasury or property of the corporation, and which is not a cover for distribution of accumulated profits, is not a dividend.</p> <p>■ Three street railway companies agreed to consolidate. The first company’s stock was worth per share five times as much as that of the second company, and ten times as much as that of the third company. To obtain a convenient divisor of the consolidated stock, the first company increased its shares, and the new stock was issued in proportion of ten shares for each one of the first company', two for each one of the second company, and one for each of the third company, thus preserving the proportionate value of each to the other. Held, that the issue of the increased stock to the stockholders of the first company was not a dividend within the meaning of a law which required the company to pay a tax to a city on dividends declared.</p>

Appeal, No. 115, Oct. T., 1896, by garnishee, from order of C. P. No. 2, Allegheny Co., Oct. T., 1895, No. 569, entering judgment against him. Attachment execution. Rule for judgment against garnishee on answers to interrogatories. The plaintiffs having obtained judgment against the firm of Morris Bros. & Gray issued execution upon their judgment in September, 1895, and summoned Samuel Lockhart as garnishee.

<p>Contract — Building contract — Architect—Charge of the court — Question j or jury.</p> <p>Where A gave a general contract to do certain work and afterwards knew that B, a stranger to the contract, was doing part of the work which A’s architect testified was done under a contract made by him with B by authority from A, and A denied having given such authority, and alleged that he thought B was doing the work under the general contractors, it is proper for the court to charge that i£ the architect was authorized to make the contract with B for and on behalf of A, or if A subsequently ratified the act of the architect, A would be liable; or if the contract was not expressly ratified and A, knowing that his architect had assumed to act for him, stood by and permitted B to do the work and expend money upon it, he would be estopped from denying the contract.</p>

<p>Negligence — Master and servant — Bisks of employment — Injury to servant — Suitable appliances — Explosion of natural gas.</p> <p>Where it is the duty of a field superintendent of a natural gas company to supervise the testing of wells, he cannot recover from the company for injuries caused by the explosion of a valve on a fitting which he himself selected from the company’s stock and adjusted for the test.</p> <p>In an action by a field superintendent of a natural gas company to recover damages for personal injuries caused by an explosion óf gas, it appeared that one of the duties of the plaintiff was to shut in and test gas wells. The company provided a stock of suitable fittings from which the plaintiff could select such as were needed in any given case. Before the well which exploded was tested plaintiff, without conference with or advice from any officer of the company, selected an eight inch valve, and caused it to be placed in the well. Among the stock of valves was a ten inch valve which plaintiff could have selected. After the valve had been putin place, the president of the company in answer to a question of plaintiff stated that these valves were supposed to be good for over a thousand pounds. The explosion occurred at a pressure of from six hundred and fifty to seven hundred and twenty pounds. Two out of three valves subsequently tested withstood a pressure of one thousand pounds, and the third of nearly one thousand pounds. Held, (1) that the evidence was insufficient to show that the company was guilty of negligence; (2) that the danger involved was one of the risks of plaintiff’s employment; (3) that the opinion expressed by the president was immaterial; (4) that whether the explosion was caused by the lightness of the fitting, or by such a concealed defect in the valve as reasonable care could not detect, the defendant was not liable; (5) that a verdict and judgment for plaintiff could not be sustained.</p>

<p>Appeal, No. 126, Oct. T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T. 1895, No. 1065, on verdict for plaintiff.</p> <p>Assumpsit on a contract for nursing. Before White, J.</p> <p>The terms of the contract are stated in the opinion of the Supreme Court.</p> <p>The defendant offered to show by his own testimony and that of other witnesses what the average market rates for table board were in the neighborhood in which the plaintiff and Dr. Reimer resided during the time for which plaintiff seeks to recover in this action, and also to prove what was a fair rental value for the house in which the parties lived, so far as the same was occupied by the plaintiff; this for the purpose of aiding the jury in determining what the real arrangement between the plaintiff and Dr. Reimer was.</p> <p>Objected to as incompetent, for the reason that this is a suit brought on an express contract, and the question of boarding is not in issue.</p> <p>By the Court: The plaintiff seeks to recover on a contract made, and not a quantum meruit, and the question will be on the contract, and I cannot see that this testimony bears at all on the contract; therefore the objection is sustained. Exception and bill sealed. [2]</p> <p>Defendant offered to show by himself and other witnesses what the average market rates for table board were in the neighborhood in which the plaintiff and Dr. Reimer resided, during the time for which plaintiff seeks to recover in this action, and also to prove what was a fair rental value for the house in which the parties lived, so far as the same was occupied by the plaintiff ; this offer being renewed for the purpose of showing, in connection with the evidence already in, the amount paid by Dr. Reimer on account of all the services rendered by the plaintiff, including boarding and attendance.</p> <p>Objected to by plaintiff as incompetent, for the reason that this is a suit brought on an express contract, and the question of boarding is not in issue.</p> <p>By the Court: And for the same reason objection sustained; to wit: the reason given by the court, as set out in the second assignment of error, as follows: The plaintiff seeks to recover on a contract made, and not a quantum meruit, and the question will be on the contract, and I cannot see that this testimony bears at all on the contract; therefore the objection is sustained. Exception and bill sealed. [3]</p> <p>Defendant’s point and answer thereto among others were as follows :</p> <p>7. Under all the evidence in the case, the plaintiff is not entitled to recover. Answer: Refused. (6)</p> <p>Verdict and judgment for plaintiff for $1,700. Defendant appealed.</p> <p>Errors assigned among others were (2, 3) rulings on evidence, quoting the bill of exceptions; (6) above instruction, quoting it.</p>

Appeal, No. 125, Oct. T., 1896, by the German Protestant Orphans’ Home from decree of O. C. Allegheny Co., Not. T., 1895, No. 37, on exception’s to distribution. Exceptions to distribution. Oyer, J., filed the following opinion: The German Protestant Orphans’ Home Society of Allegheny county has presented a claim against this estate on a promissory note of which the following is a copy: “ $1,000.

<p>Appeal, No. 128, Oct. T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1895, No. 33, on verdict for plaintiff.</p> <p>Assumpsit upon a parol contract to clean out an oil well. Before White, J.</p> <p>Morris Einstein was originally joined as a co-defendant, but the record was amended by striking out his name before trial.</p> <p>At the trial it appeared that on September 30, 1890, plaintiff entered into a written contract with John Sattler and Morris Einstein as follows:</p> <p>“ Articles of agreement made and entered into this 30th day of September, 1890, between Mr. John Sattler and M. Einstein, of the first part, and Mr. Taylor, of Petrolia, of the second part. The party of the second part agrees to complete a well on Opperman farm, Ohio township, to the depth of two thousand feet, and if oil or gas is found in paying quantities in the one hundred feet, the parties of the second part are willing to cease, at the option of the parties of the first part. Parties of the second part will furnish all tools necessary to drill said well except boiler and engine and pipes to connect with steam and pipes for water well adjoining the derrick.</p> <p>“ The party of the second part agrees to drill said well for $1,333.33. The party of the first part agrees to pay party of the second part $200 when the casing is in the well, and balance when the well is completed. The party of the second part agrees to start with due diligence. John Sattler, W. S. Taylor.”</p> <p>The evidence tended to show that subsequently plaintiff and Sattler alone entered into a parol agreement under which plaintiff cleaned out the well so that the drilling could be commenced.</p> <p>Plaintiff’s counsel offered in evidence the written agreement, Exhibit No. 1, “not as documentary testimony, but simply in connection with the testimony.”</p> <p>Defendant’s counsel objected because “ the written agreement has been abandoned, and the action is now on a verbal contract.”</p> <p>By the Court: The agreement is not the basis of this action as it is now presented before the court, but the verbal agreement alleged by the plaintiff to have been made with Sattler was in consequence of this written agreement, and so far as it bears upon the verbal arrangement between the plaintiff and Sattler it is competent evidence, and for that purpose, and that alone, it is admitted in evidence. To which the defendant excepts, and at his instance bill was sealed. [1]</p> <p>The court charged in part as follows :</p> <p>[But the plaintiff does not rely on that written contract. It is put in evidence simply by way of explaining his testimony, as to what was said as to depth of the well and its condition. He relies upon a verbal arrangement with the defendant, after he had commenced work on the well.</p> <p>Now, there has been a great deal of testimony here, gentlemen, that does not throw much light on this case, and there was a great deal of contradiction in the testimony, on immaterial matters, and there is some contradiction on material matters ; but what is the real issue in this case ? It is whether the plaintiff did the work claimed for in this case, under a verbal contract with the defendant. He claims here some $2,300, nearly double his contract — for what ? For trying to clean out that well. He says when he went there to work he found it plugged up, or, at least, caved in, about six hundred feet down. He went to the defendant, told him about it, and that he would need some tools to take out the tubing, and on two or three other occasions went to him and told about their troubles and difficulties. What agreement was there, now, between these parties ? That is the question, gentlemen — the main question —in this case. What was the agreement ?</p> <p>Now, the substance of the plaintiff’s testimony is this: That when he spoke to the defendant about the condition of the well —and he said he told him he could not go on under that contract — the defendant said to him: “ Go on, and I will do what is right, and you shan’t lose.” I think that is the substance of his testimony, but, gentlemen, you will not take it from me; take your own recollection of what the testimony was. Now, what did that mean ? If the defendant did say that to him, what did he mean by that, and what was the understanding between the parties ? Was it that the plaintiff could go to any expense he pleased, and continue to work at that well for six months, and that the defendant would pay for all his expenses and all his men, and all his own labor? Was that what was meant by that ? Or was it that, when he said he would have to have some tools, to take out the tubing, the defendant agreed to pay for that? Under the statement of the plaintiff, he expected to have a well clear, down one thousand four hundred and fifty feet; but this obstruction there would have to be removed, and he would have to have special tools for it, because, he said, he had no tools there for it. Now what did the defendant mean by saying: “ I will do what is right; you shan’t lose ? ” Was it: “ Get what tools may be necessary to draw the tubing, and I will pay for that; ” or was it to give him unlimited time to go on and work six months there ? And did the defendant expect to be bound to pay for all his expenses and all his men and time, and his own labor for that time ? What was really the understanding between the plaintiff and defendant in this conversation ?</p> <p>There is some evidence that, at different times, the plaintiff said they were getting along very well. According to his own testimony, they were never getting along well at all. Never from the start did they get along well; it got worse and worse all the time.</p> <p>They commenced some time in the early part of October, and continued on until the latter part of March, 1891, between five and six months working at that well.</p> <p>Well now, gentlemen, bearing on that question as to what was the understanding between the parties, what occurred at Mr. Wallace’s office has a very material bearing on this case. There is contradiction between the plaintiff and the defendant and Wallace as to some things that occurred there at the office, but in some things there is no contradiction. The plaintiff then said that he would give up this contract, or abandon it, and I believe that that is not contradicted — that that expression was used, or testimony to that effect. The plaintiff admits that at that conversation the defendant claimed and wanted all the tools that were there at the well, and threatened him, if he did not give them, that he would send the sheriff on him. According to the defendant’s testimony, if you believe it, he had already paid some $600 or so to the plaintiff, in money and for tools that he had got, and had that claim, and contended for damages because he had not completed his contract.</p> <p>Now, what is the position of the plaintiff there? And that is about the 1st of April, 1891, just the time that he quit working there. Does the plaintiff there, at that time, say to Mr. Sattler: “ Why, you owe me $2,000 or so for work at that well. I want my pay,” —anything of that kind said ? Does the plaintiff here say that, at that time, he demanded any money from the defendant ? If he did not, at that time, claim anything due to him, it has a very important bearing upon this case, as to whether there was such a contract as he says now there was, in September, 1890.</p> <p>Another fact may bear on this controversy. It seems that a day or two after that interview at Wallace’s office, Sattler brought suit against him for these tools there at the well, claiming — well, lie didn’t bring the suit for the tools, but brought a suit claiming that the plaintiff owed him, and attached all of these tools and things there, to secure his claim. It seems that after a couple of trials, perhaps, in the other courts, the plaintiff got a verdict against Sattler for taking those tools, or for something of that kind. That suit, as the counsel for the defendant say, has never yet been finally determined; but the verdict of the jury was in favor of Taylor, the plaintiff, in that controversy. Even then no suit is brought by Taylor against Sattler. This suit that we are trying was brought in January of 1894, some two years and nine months after he had quit working at the well, and after this suit or litigation in reference to the other matters.</p> <p>I say these are facts, gentlemen, for you to consider in connection with the testimony now. Suppose the defendant did say: “ Go on and you shan’t lose; I will do what is right.” Suppose he did? What was the understanding between the parties about that? Was it to say to the plaintiff: “Go on under your contract, and if you are at any additional or extra expense in trying to get at this, why I will pay that.” Was it to go on any length of time he pleased, at any expense he pleased and “ I will pay you for all your expense and all your men, and this at the rate of $4.00 a day all the time you are there ? ”</p> <p>Of course, gentlemen, you will bear in mind that the defendant practically denies that he made any such arrangement whatever.</p> <p>If you find, gentlemen, that there was an arrangement — a verbal arrangement — -between the plaintiff and defendant in reference t-o cleaning out this well, Avhat was it, and to what extent did it go; and how much, if anything, is due to the plaintiff in consequence of it, bearing in mind what is said by the defendant — that he has already paid, as he said, between $600 and $700 in consequence — $700, I believe, in money to the plaintiff, and the balance of it in tools that he paid for for the plaintiff ? I do not know Avhether it is controverted that that amount of money was paid.] [2]</p> <p>Defendant’s points and answers thereto were as follows :</p> <p>1. That as the evidence shows that plaintiff and L. N. SaAvyer were partners in the contract sued upon, the plaintiff cannot recover in this action. Answer: Refused. [3]</p> <p>2. That as the plaintiff in this case attempts to vary a written contract, or substitute a verbal one for a written, the proof must be clear, conclusive and positive. Answer: Refused. [4]</p> <p>3. That in any event the plaintiff cannot recover for the wages of his partner, L. N. Sawyer, and that item of plaintiff’s claim should be stricken out. Answer: Refused. [5]</p> <p>Verdict and judgment for plaintiff for $1,268. John Sattler appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-5) above instructions, quoting them.</p>

Appeal, No. 121, Oct. T., 1896, by plaintiffs, from order of C. P. No. 1, Allegheny Co., March. T., 1896, No. 720, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. The affidavit averred as follows: First.

Appeal, No. 122, Oct. T., 1896, by plaintiff, from order of C. P. No. 1, Allegheny County, June T., 1896, No. 301, making absolute a rule to open judgment. Rule to open judgment. Tlie defendant in his petition for the rule to open judgment averred as follows: First.

<p>Appeal, No. 129, Oct. T., 1896, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 511, on verdict for plaintiffs.</p> <p>Scire facias sur mortgage. Before White, J.</p> <p>At the trial when Mrs. Emilie Jaster was on the stand, defendants offered to prove by her that Mr. William Ackman, husband of Mrs. Ackman, conducted the negotiations for the sale, and was acting as the agent of his wife in making the sale; and that the sale was made by him for bis wife; to be followed by testimony of the various representations made by said William Ackman, with intent to defraud and deceive, and that the defendants were deceived thereby.</p> <p>By the Court: You must go further. You ought to state what the representations were, and for what purpose they were made.</p> <p>By defendant’s counsel: It is proposed to follow the foregoing with testimony that William Ackman told the defendants, whilst acting as the agent and on behalf of his wife, that the coal contained in the coal bank, which was then not opened to inspection, was the best quality of Pittsburg coal, and that all the residents of Shousetown and the surrounding neighborhood purchased their entire supply of coal from this coal bank, and that the coal he had sold in previous years, and that the defendant could sell, would amount to $400 or $500 during each winter, which representations the defendants believed to be true, but which were as a fact entirely false.</p> <p>Objected to as incompetent and irrelevant for the reason that no representations made by Mr. Ackman would affect the right of his wife, Mary Ackman, to recover in this case, unless they were shown to have been made with her express authority, or to have been made in her presence and not objected to by her, and for the additional reason that said representations, if made, would not constitute a defense in this action even if acquiesced in by Mrs. Mary Ackman herself, unless it be shown that those representations were relied upon exclusively by the defendants in making the purchase, and that they were deterred by those representations from ■ making inquiry into the facts either concerning the farm or the coal underlying it.</p> <p>By the Court: I will have to sustain the objection to this because your offer is not full enough. To which defendants except and bill sealed. [1]</p> <p>The court charged in part as follows :</p> <p>[Under the evidence in this case, gentlemen, I feel it my duty to instruct you that your verdict ought to be for the plaintiffs for the whole amount claimed in this case, $2,250, with the interest and costs. The counsel for plaintiffs presented certain points, but I need not answer them after my instructions to you.] [2]</p> <p>Verdict and judgment for plaintiffs for $2,775.93. Defendants appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2) above instruction, quoting it.</p>

<p>Appeal, No. 146, Oct. T., 1896, by plaintiff, from decree of the Superior Court, April T., 1896, No. 49, affirming the decree of C. P. No. 2, Allegheny Co., Oct T., 1890, No. 356, on bill in equity.</p> <p>Appeal from the Superior Court. 1 Pa. Superior Ct., 587.</p> <p>Bill in equity for an injunction and for damages.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in affirming the decree of the court of common pleas, and in overruling appellant’s assignments of error to the court of common pleas.</p>

<p>Appeal, No. 105, Oct. T., 1896, by plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1893, No. 93, on bill in equity.</p> <p>Bill in equity for an account.</p> <p>The material portions of the master’s report appear by the opinion of the Supreme Court.</p> <p>Plaintiff filed the following exceptions to the report.</p> <p>1. In not finding that the McGowan farm, including about sixty-six acres, embraced forty and one fourth acres of coal, of which defendants have practically mined all, for while six acres remain unmined, it is useless to any one but defendants, is valuable to them, can be removed by them, and was left in place to keep open' a way for them to other coal in which plaintiff has no interest.</p> <p>2.. In that while finding the lump produced to-be one hundred and five thousand bushels per acre it omits to find that the quantity mined was thirty-four and one fourth acres, aggregating a total lump produced of three million five hundred and ninety-six thousand two hundred and fifty bushels, of the average value of 4.33 e. per bushel, and a slack product of forty-five thousand bushels per acre, aggregating á total of one million five hundred and forty-one thousand two hundred and fifty bushels, of an average value of 1.44 c. per bushel.</p> <p>3. In not finding that defendants, under protest, account for three million bushels of lump coal and admit they sold it for $129,442.50. That they claimed credit as against that sum foiv $134,492.25 as the cost of placing the coal at the tipple. That they admit that the latter sum includes also the cost of getting to the tipple all the slack, and that the profit of mining according to that method of bookkeeping is derived chiefly from the slack. But they have persistently refused to account for the proceeds of said slack. .</p> <p>4. In not finding defendants admit sale .of lump only of 30 acres at 100,000 bushels per acre at 4.31475 c.......$129,442.50</p> <p>That there should be added the lump of 4} acres at same price . . . . . . 18,337.08</p> <p>Also 5,000 bushels of -lump per acre for 34f acres, equal to 171,250 bushels, at same price . . ' 7,389.00</p> <p>Also hank leave for 6 acres unmined at 105,000 bushels per acre at 50c. per 100 bushels . 3,150.00</p> <p>Also 45,000 bushels slack per acre for 34£ acres, equal to 1,541,250 bushels, at 1.44 c. per bushel 22,194.00</p> <p>Total :.....$180,513.18</p> <p>Contra.</p> <p>Defendants claim credit without furnishing items, as follows, viz. :</p> <p>Placing whole product, lump and slack,</p> <p>at tipple ..... $134,492,25</p> <p>Taxes paid (no items) . . 685.20</p> <p>Trestle, etc., (no items) . . . 2,560.63</p> <p>For $10,900, paid for their title, and $1,117.19 damages recovered against them for injury to surface, both inadmissible on any theory $137,738.08</p> <p>Leaving a balance in defendants’ hands, if they are allowed to recoup, of. $ 42,775.10</p> <p>6. In finding forty cents per ,one hundred bushels as the leasing value of said coal — the average of plaintiff’s testimony is fifty cents per one hundred bushels, defendants adduced no evidence on that point. The value of coal depends less on the improvements than the value of the improvements on the coal.</p> <p>7. In finding the average of the McGqwan coal per acre to be 1300, from 1884 to 1894. The average of plaintiff’s testimony was $325 per acre, with cash payment and annual instalments, all secured, to be paid before the coal was taken out. Defendants’ testimony as to the value was irrelevant as relating to coal remote from the McGowan coal.</p> <p>8. In not finding that defendants have deforced plaintiff of her dower by detention of her share of the proceeds of said coal, claiming exclusive perception and ownership thereof, denying her right, and pleading adverse possession perfected by the statute. Deforcement is simply the withholding of the dower by the heir or alienee.</p> <p>9. In not finding that on the theory that plaintiff is not dowress, but is tenant in common, the facts mentioned in the preceding paragraph constitute an ouster or disseizin and trespass.</p> <p>10. In not finding that the statute of Merton applies to give plaintiff damages for the deforcement, and the statute of Gloucester to give her costs. The statute of Merton extends to proceedings in equity.</p> <p>11. In not finding that defendants, as alienees of the heirs, are not entitled to recoup the cost of any improvements made by them before assignment of plaintiff’s dower. Everything added by the money, labor or skill of defendants is an improvement within the meaning of the discussion.</p> <p>12. In not finding that plaintiff is tenant in dower, and as such not tenant in common with defendants as remaindermen; and even if she were cotenant with them they would be entitled to credit for expenses incurred on the common property only while acting in amity and good faith and within their legal right; such credit is never due to a trespasser. Said defendants having denied plaintiff’s right and detained her share after demand by suit, pleading adverse possession perfected by the statute, are self-declared and self convicted trespassers.</p> <p>18. In not finding that whether plaintiff is regarded as dowress as in Paul’s Exr. v. Paul, 36 Pa. 282, or under the act of April 25, 1850, as tenant in common, defendants are regarded as her bailiffs, or trustees, bound to account in good faith and pay over her share, and liable in damages or interest for any unjust detention of the same.</p> <p>14. In not finding that even were defendants tenants in common with plaintiff, as they could not lease plaintiff’s share to strangers without her consent, so they could not lease it to themselves; nor could any other lease to them without her express authority. And that her consent will not be implied for the benefit of avowed trespassers.</p> <p>14£. In finding that bank leave or the leasing value is the basis on which defendants should be held to account for the reasons mentioned in the preceding exception.</p> <p>15. In that the basis of the account recommended by the report is founded on a theory which disregards the law of dower, and the established facts of the case, viz: the marriage, the seizin and death of the husband, the deforcement or disseizin of the widow and denial of her rights, the exclusive perception of the profits and refusal to allow her to participate, the plea of adverse possession perfected by the statute, and that as a matter of fact and law that plea is grounded in trespass.</p> <p>16. In the rejection of the basis of account claimed by plaintiff, viz: the value at the tipple of all the products of the mine, both lump and slack, the latter including nut and dust, without deduction of the cost of placing them there.</p> <p>17. If right in rejecting plaintiff’s basis of account, the report errs in rejecting defendants’ basis of account, viz : value at the tipple, less the cost of placing there. . . .</p> <p>18. The report further errs in finding that the act of April 25, 1850, P. L. 573, relating to accounts between tenants in common of mines, applies to this case. . . .</p> <p>19. The report further errs in not finding that defendants having charged against the sum accounted for as the proceeds of the lump coal the cost of getting the slack to the tipple, were bound to account for the proceeds of the slack to entitle themselves to the credit claimed of 1134,492.25.</p> <p>20. The report further errs in denying that plaintiff has dower, and that her "interest in the estate of her deceased husband is properly called dower.</p> <p>The court overruled the exceptions and confirmed the report.</p> <p>Error assigned was in confirming report.</p>

<p>Appeal, No. 106, Oct. Term, 1896, by defendants, from decree of C. P. No. 1, Allegheny Co., March Term, 1898, No. 93, on bill in equity.</p>

<p>Appeal, No. 150, Oct. Term, 1896, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. Term, 1895, No. 17, on verdict for plaintiff.</p> <p>Trespass for death of plaintiff’s husband. Before McClung, J.</p> <p>At the trial it appeared that on September 20,1894, a policeman, Peter Dillon, plaintiff’s husband, was killed at the corner of Ohio and East streets in the city of Allegheny, by coming in contact with a broken uninsulated telephone wire. The evidence for plaintiff tended to show that the defendant company suffered the uninsulated wire to remain on its poles for many years, and that on the day of the accident the wire broke and fell over a heavily charged wire. The deceased, in the discharge of his duty, and while attempting to remove the wire, was killed. The plaintiff’s theory was that the deceased while attempting to remove the wire with due care with his mace came in contact with it with his body, and convulsively grasped the wire as he fell. He was found after his death grasping the wire-in one of his hands.</p> <p>Defendant’s points and answers thereto were as follows:</p> <p>1. There is not sufficient proof that the injuries sustained by Peter Dillon were caused by the negligence of the defendant, the Allegheny County Light Company, and the verdict must be for the defendant. Answer: Refused. [1]</p> <p>2. Under the uncontradicted facts it appears that Peter Dillon was guilty of negligence, which contributed to the injuries complained of in this action, and the plaintiff cannot recover. Answer: Refused. [2]</p> <p>8. Under all the evidence plaintiff cannot recover, and the verdict must be for the defendant. Answer: Refused. [3]</p> <p>Verdict for plaintiff for $5,000. Defendant appealed.</p> <p>The court overruled a motion for a new trial in the following opinion.</p> <p>The jury have found upon sufficient evidence that the defendant permitted a dead and useless wire to remain upon its poles, on a street crowded with charged wires, many of them having such current passing through them that the slightest touch meant death. It knew, as its own witnesses testify, that any wire upon these poles was liable to break and carry the deadly current to the ground by falling across a live wire, especially if the wire was a naked one, as this wire admittedly was. This dead, useless and uninsulated wire did break, fell across a charged wire, carried down the current, and the death of the plaintiff’s husband was the result. We certainly cannot disturb the verdict because of the finding of the jury on the question of defendant’s negligence.</p> <p>The only question which we are called upon to consider is that of the alleged contributory negligence of the man who was killed.</p> <p>He knew that the wire was conducting a dangerous current of electricity. If he had no duty imposed upon him with respect to it, he had sufficient notice to make it negligence for him to interfere with it.</p> <p>He was, however, a policeman on duty at the time and upon the street on which the wire fell. It hung from a pole, the end resting on the ground near the foot crossing, and at intervals emitting sparks. It was a rainy night, and any contact with the wire meant injury — even the touch of the frame of an umbrella of one passing, to the wire would, doubtless, have caused the instant death of him who carried it. Will the law say to the policeman on duty under such circumstances that his sole or primary duty is to look out for his own safety ? If it will not, then this question was one for the jury. It was told that if he voluntarily took the wire in his hand there could be no recovery. The testimony showed that he undertook to remove it with his mace, a method which, under ordinary circumstances, would have been perfectly safe. In some unexplained way he came into more dangerous contact with the wire.</p> <p>Test the case by changing the position of the parties. Suppose, in pushing aside this wire with his mace, Dillon had brought it in contact with and thus injured some one who was passing by, and had been sued, would any court have the hardihood to say, under the circumstances, as matter of law, that be was guilty of negligence ? Doubtless, by standing on the sewer drop, especially on this wet night, he increased his danger. But a negligent company cannot, for the purpose of escaping liability for its acts, set up a duty on the part of policemen to be expert electricians, and we must, in discussing this question, assume the negligence of defendant company.</p> <p>Look at the matter as we will, we must either say to all policemen that, in such cases, they must put their own safety before that of the citizens whom it is their business to protect, or submit the question of negligence as one of fact, to be determined by the jury.</p> <p>. If there was error committed in the charge in tins case it was in favor of defendant. We are by no means certain that the maintaining on a street like this of naked wires, which might be insulated, is not negligence, or at least evidence oE negligence.</p> <p>■ Even if a wire has no current of its own it will, when broken, if uninsulated, much more readily lead off a dangerous current from another wire. Where the necessary dangers are so great the unnecessary ones should all be eliminated.</p> <p>The motion for a new trial must be refused.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Negligence — Street railway — Contributory negligence.</p> <p>■ lu an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff, a girl about nineteen years of age, on the day of the accident, was riding in an open one-horse spring wagon on a street on which the defendant operated a double track line of electric cars. Her elder sister was with her and was driving the wagon. As they approached a side street on the west bound track, they were warned by the bell on one of tlie defendant’s west bound cars following on the same track behind them, to turn out. Plaintiff testified that they could not go forward on the track because of an open manhole immediately in front of them, nor could they turn off to the right because that side of the street was blocked with wagons; that they were therefore compelled to turn out to the left upon the east bound track, and as they did so they saw an east bound car approaching them at a point west of the side street; that the motorman in charge of the car did not ring his bell, apply the brake, or give her sister any time to cross the track, and the car struck the wagon, causing the injury complained of. Plaintiff was in the main corroborated by her sister and by another witness who saw the accident. The testimony of some of defendant’s witnesses was to a contrary effect. Held, (1) That the question for the jury was not whether the motorman stopped his oar at the time of the accident, but whether he was negligent in not stopping it before the collision with the wagon occurred; (2) that the questions of the defendant’s negligence and the plaintiff’s contributory negligence were for the jury; (3) that a verdict and judgment for plaintiff should be sustained.</p>

Appeal, No. 144, Oct. T., 1896, by city of Pittsburg, .from order of C. P. No. 1, Allegheny Co., June T., 1895, No. 440, dismissing exceptions to report of viewers. Exceptions to report of viewers to assess damages and benefits for constructing a sewer along the line of Beechwood avenue and private property belonging to C. Straley’s heirs, John Leech, Alexander King’s heirs and the estate of William Carr, deceased, appellee.

Appeal, No. 139, Oct. T., 1896, by the City of Pittsburg, from order of C. P. No. 1, Allegheny Co., June T., 1896, No. 94, sustaining an appeal from award of viewers. Appeal from award of viewers to assess damages and benents for constructing a sewer on the line of Beechwood avenue and private property of W. A. Hoeveler, et al. The facts appear by the opinion of the Supreme Court. Error assigned was in not striking from the record the appeal of W. A. Hoeveler et ah

<p>Appeals, Nos. 140,142 and 143, Oct. T., 1896, by the city of Pittsburg, from order of C. P. No. 1, Allegheny Co., June T., 1895, No. 440, sustaining appeal from award of viewers.</p>

Appeal, No. 127, Oct. T., 1896, by defendant, from judgment of O. P. No. 2, Allegheny Co., July Term, 1895, No. 124, on verdict for plaintiff. Assumpsit to recover back purchase money of real estate. Before White, J. At the trial it appeared that plaintiff on May 4,1893, entered into a contract of writing with Mrs. Modzynski to buy the-latter’s land in Germany.

<p>Sheriff's interpleader — Evidence—Province of court and, jury.</p> <p>On the trial of a sheriff’s interpleader to determine the title of certain machinery, it appeared that A had bought tjie machinery and used it to erect a manufacturing plant upon land leased from D. Subsequently D executed a mortgage upon the land, and upon foreclosure proceedings, the plaintiffs in the interpleader bought the premises. A continued in possession and continued to operate the manufacturing plant, paying rent for the premises after the sheriff’s sale to the plaintiffs who knew that lie was the owner of the machinery. A still owed for the machinery, and judgment having been obtained against him, levy was made upon the machinery, whereupon the plaintiffs claimed to be the owners of it and this issue was framed in which the execution creditors of A were made defendants. Held, (1) that the burden of proof was on the claimants; (2) that as the testimony was insufficient to go to the jury it was proper to give binding instructions in favor of the defendant in the interpleader.</p> <p>Practice, S. G. — Assignments of error not according to rule.</p> <p>An assignment of error in the following form “ The court erred in its opinion on rule for new trial and its findings of facts in the opinion for the same reasons that it erred in the verdict directed in this case ” is not according to rute in that it fails to call attention to any specific error.</p>

<p>Judgment — Evidence—Failure of consideration — Partnership.</p> <p>H. and D. were partners in a manufacturing establishment, owning the machinery in a building which they rented from D.’s wife. They dissolved partnership, H. buying out D.’s interest, giving him therefor a judgment note. On the same dayH. took a renewal lease from D.’s wife. Subsequently D. and his wife executed a mortgage of the real estate, which was subsequently foreclosed and the property sold. On an issue to determine the validity of the judgment entered upon the judgment note which H. had given D., it was proper to exclude evidence of the mortgage and its foreclosure for the purpose of showing that D.’s share of the fixtures had been conveyed away by the foreclosure proceedings, and that therefore there had been a failure of consideration for the judgment note.</p>

<p>Negligence — Explosion of gas — Contributory negligence — Natural gas company.</p> <p>In an action against a natural gas company to recover damages for personal injuries suffered by an explosion in a building, it appeared that the building was not supplied with either natural or artificial gas, or with pipes for conducting the same. The defendant had two lines of pipe laid in the street in front of the building, the larger of which was used for general distribution, and the smaller for premises near the. exploded building. The smaller pipe was within a few feet of the cellar wall of the building. Some months prior to the accident a sewer pipe was laid from the rear of the building through the cellar and out beneath the smaller gas pipe into a main sewer. The soil in the neighborhood was largely sand and gravel. The evidence showed that for a couple of weeks prior to the accident escaping gas had been detected in the immediate vicinity. The explosion occurred immediately after a trapdoor leading into the cellar of the building was opened; and soon afterwards, when the gas pipe immediately in front of the premises was uncovered, an old rusty break therein was discovered. The evidence as to whether the company had been notified of the escaping gas was conflicting. Held, (1) that the case was for the jury ; (2) that a judgment and verdict for plaintiff should be sustained.</p>

<p>Appeal, No. 175, Oct. T., 1896, by deféndant, from order of C. P. No. 2, Allegheny Co., July T., 1896, No. 831, discharging rule to open judgment.</p> <p>Rule to open judgment. Before White, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Appeal, No. 176, Oct. T., 1896, by plaintiffs, from order of C. P. No. 1, Allegheny Co., Sept. T., 1895, No. 912, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was discharging above rule.</p>

Appeal, No. 179, Oct. T., 1896, by defendant, from judgment of G. P., No. 1, Allegheny Co., March T., 1895, No. 450, on verdict for plaintiff. Trespass for personal injuries. Before Collier, J. At the trial it appeared that plaintiff, a woman sixty years of age, was injured by a collision with one of defendant’s electric cars on August 20, 1894, at about half past seven in the evening.

Appeal, No. 181, Oct. T., 1896, by-defendant, from decree of C. P. No. 1, Allegheny Co., June. T., 1896, No. 92, on bill in equity. Bill in equity for an account. The facts appear by the opinion of Slagle, J. which was as follows: BINDING OE EACTS. This bill was filed by plaintiffs, praying that the defendant be declared to be a trustee of a certain fund received by her, and directed to file an account of the money so received.

<p>Appeal, No. 160, Oct. T., 1896, by William E. Howley, defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1895, No. 37, on verdict for plaintiff.</p> <p>Trespass for malicious prosecution. Before White, J.</p> <p>The facts appear .by the opinion of the Supreme Court.</p> <p>At the trial when John E. Kramer, the officer who arrested plaintiff, was on the stand, he testified as follows :</p> <p>“ A. I went there and made an examination of the house, and was led to believe it was opened from the inside. That is from what Howley told me; then I asked to see the girl and I had a talk with the girl, and she told me when she went up stairs that night she was positive that the side door was bolted. Q. That is the door leading up from the cellar? A. Yes, sir.”</p> <p>Objected to.</p> <p>By the Court: Is the object of this to cast suspicion on her ?</p> <p>By Mr. Patterson of counsel for defendant: No, the object of this is to show that the officer here now on the witness stand made the arrest, and that he made it because he had reasonable grounds to believe the report.</p> <p>By the Court: He had no reasonable ground to make an wholly illegal arrest.</p> <p>By Mr. Patterson : I offer this testimony for the purpose of showing that the arrest of the plaintiff was made by the witness upon the stand, and I offer to show the facts which were developed by his investigation at the house, together with the declaration of the plaintiff, for the purpose of showing he made that arrest because he had reasonable ground to believe that the plaintiff was guilty of either having committed or taken part in the committing of an offense.</p> <p>Objected to.</p> <p>By the Court: This is wholly incompetent. An officer may arrest a party on view without a warrant, but he never has any right to arrest a party on suspicion, unless there is an information and warrant. No officer has a right to arrest a party on suspicion, unless it is followed up by a prosecution and conviction, and where there is no prosecution afterwards, the arrest is wholly illegal. Officers arresting parties on suspicion, arrest them at their peril, and if the party arrested is innocent, they are liable for damages for the arrest.</p> <p>Objection sustained. Exception. [9]</p> <p>The court charged in part as follows:</p> <p>[Now, gentlemen, there is no controversy here but what this arrest and imprisonment was wholly illegal. Police officers have no right to arrest any one on mere suspicion. They have a right, under the act of assembly, and the ordinance of the city, to arrest on view; that is, when they see a party committing a crime they can arrest him without a warrant, but they have no right to arrest any person without a warrant merely on suspicion. They cannot arrest on suspicion a suspicious character, without making inquiries of the person, because the ordinance and the act both say they can “ arrest suspicious persons who cannot give a reasonable account of themselves.” If they arrest a man merely on suspicion, he must be taken at once before a magistrate; he is entitled to a hearing instantly without being locked up at all. He is to be taken before a magistrate, and if they have any evidence that would justify an information then an information on oath ought to be made and a warrant issued, and on that warrant the party may then be put in prison. But they have no right to arrest a party on suspicion, to lock him up at once, and keep him there several days without a hearing, or without an information. I am aware, gentlemen, that police officers often do arrest suspicious persons, and very frequently it turns out that the party was guilty of some crime. Where this is an arrest without a warrant on suspicion merely, and it is followed up by a prosecution and conviction of the crime, that will excuse or justify the illegal arrest. But it is necessary to follow it up and get a conviction in order to justify an illegal arrest. I repeat that these officers, or any person making complaint to an officer, who becomes a party to the arrest, must see' that the accused is taken at once before a magistrate without being locked up at all, and has a hearing, and if there is evidence that will justify an information, then information must be made and a warrant issued, and the party held on that warrant. Without that the whole proceeding is illegal.] [2] .[Now, gentlemen, I have tried a good manjr cases of illegal arrest and illegal imprisonment, but I never knew of as gross a case as this. I said, during the trial, several times, when testimony was being offered that looked like a justification of this arrest, that there could be no justification of it, and, if there was any evidence offered for the purpose of justifying this arrest, it might be considered by the jury as an aggravation of damages. Some evidence that would justify the arrest possibly might be produced by way of mitigating damages, but, gentlemen, taking all the testimony we have in this case, there was nothing that would justify a warrant or an information against this girl for that burglary. There was nothing but the baldest kind of suspicion against her. Not a particle of evidence that would have justified Howley, or any other person, in making an information against her for this burglary, and nobody ever did make such an information.] [3]</p> <p>Now the question is, who is responsible for the outrage committed upon this girl ? According to her testimony, and that is undisputed, she is a colored girl of very good character. She has sustained a good and irreproachable character all her life, with not a breath of suspicion against her. Yet she is arrested without information or warrant, and locked up in a cell for eight clays and seven nights without a hearing. Kept among the roughs and miserable vagabonds that are kept in these station houses, and then let out without any attempt to atone for the outrage committed upon her. Who is responsible' for it? Every person who was a party to it is responsible. There is, no doubt at all that Kramer, the officer that was taken to the house by Mr. Howley, might also have been prosecuted and have been made a party. But the question is, is Mr. Howley responsible; is Mr. Whitehouse responsible, both or either? [It is not necessary that Mr. Howley should have directed the constable to have arrested her. If he was there when the constable manifested his intention to arrest her and take her to the lockup, and he sanctioned it by his acquiescence without saying a word, he is responsible. She was his hired girl, living there in the house. It was his duty, if he knew that the constable was going to arrest her for burglarizing his house on facts he had given to the constable, it was his duty to speak out; it was his duty to say: “ No, I know there is no information made against her.” There has been no attempt to make an information against her, and if he stands by and sees his own hired girl arrested on a charge of burglarizing his house and stealing his silver plate, and he said nothing, but runs into another house as soon as the constable undertakes to take her away — if that is what he did, and for that purpose, it will not do for him to say he was not there when the constable arrested her. If he was there during the conversation' with her, and told the constable facts which led the constable to believe that he suspected her of the burglary, and he knew that the constable intended to arrest her for that without a warrant, and he acquiesced in it in that way, sanctioning and consenting to it, he becomes a party to the illegal arrest.] [4]</p> <p>[But, gentlemen, suppose that he knew nothing about the arrest; suppose he did not know anything about it at the time she was taken from the house. If he afterwards became a party to her illegal imprisonment he would be responsible. You recollect the testimony, and I may say that while the plaintiff says he was there at the time she was arrested and told to get her things, he denies it, and says he was not there at the time of the arrest and did not direct the constable to arrest her. You will take all the testimony and not merely one side. But suppose he knew nothing about the arrest at the time the constable took her from the house, if he afterwards became a party to confining her or keeping her in the lockup, he becomes responsible for the illegal imprisonment. You have the testimony of Mrs. Briggs, a white lady, who brought this colored girl from Ohio, and with whom she lived a short time, and the next morning when the papers of the city announced the burglary and the arrest of this girl, Mr. Howley came to see her and inquired about her. Why did he go there if he had nothing to do with this arrest? He went there and inquired about this girl, and Mrs. Briggs says that she told him that the girl was a very respectable girl, and had never been guilty of anything; that she was honest. She says that he replied: “We will keep her there until she confesses.” He denies that, but that is her testimony. Which will you believe ? The colored man testified that he went there with Mr. Howley to try to extort a confession from this girl. She had told them on Monday morning when the constable accused her of it, that she had nothing to do with it and didn’t know anything about it. If she was kept there in that cell for eight days and seven nights for the purpose of extorting something from her after her repeated denials, it was an aggravation of the most serious character in this case.] [5]</p> <p>Mr. Whitehouse testified that he had charge of that station. He testified that he knew when she came there, and that he knew there was no information against her. If he, having charge of that station, kept the girl there for eight days, he becomes a party to her imprisonment; when he had the power to let her go, and kept her there for that length of time, he became a party to the illegal imprisonment of that girl.</p> <p>These station houses have no right to receive persons there unless there is an information alleged against them and a warrant issued, or unless the officer says that he arrested the person on view. And, if arrested on view, the person is entitled to an immediate hearing, and not to be kept there seven days • and nights. According to his testimony Mr. Whitehouse knew there was no warrant against her, and knew she was kept there without any legal authority whatever. Now, it may be, gentlemen, as I said, that very frequently rough characters, thieves, or persons prowling about, or that lower class of society may be- arrested and put in these lockups over night, but even such persons are entitled to a hearing, and not to be kept in the lockup without a hearing or without any information made against them. [I do not suppose that Mr. Whitehouse was influenced by any unkind feeling towards this girl. I have no doubt he thought that Mr. Howley was the party who had caused her to be brought theré, and he thought that, simply as an officer in charge, there would be no particular responsibility on him, and I presume that if there is a verdict against these two parties, Mr. Howley is the one that will have to foot the verdict, although one would be legally responsible as much as the other.] [6]</p> <p>Now, gentlemen, if Mr. Howley and Mr. Whitehouse, or either of them, are legally responsible for this illegal imprisonment, what are the damages ? It is not only for the confinement during those days and nights, but the jury may take into account the circumstances, the place where she was confined, the surroundings, so far as they became a mortification of her feelings, and the mortification and annoyance to her, as well as if they will have any influence or effect on her future life. [The damages would be, first, by way of compensation, and that rests largely in the discretion of the jury. Compensation for the mortification, for the exposure before the public, for the injury to her character and reputation by being charged with an offense of that kind, and any expense that she may have been at in consequence of this. Of course publishing the matter in the newspapers, and a matter as notorious as this was, the girl charged with being a party to the burglary of a house, unless she could be vindicated in some way, would be almost damning character for all time to come. A-servant girl, who depends upon her labor for her support, if she is charged with a burglary of a serious character, or with being a party to a burglary, where could she get employment again; in what family could she get employment ? The injury to her reputation and character is an element to be considered by the jury in the way of compensation merely. But in certain cases juries may go beyond compensation. They may give a verdict by way of punishing the wrong-doers. What are called punitive or vindictive damages, and where there has been a gross outrage upon the rights of an individual committed either in a malicious spirit or in an utterly reckless spirit, the jury may go beyond compensation, and may give vindictive damages, wbat is called punitive damages.</p> <p>Now, gentlemen, if you believe that Mr. Howley was a party to her being arrested and kept there in prison eight days and seven nights, without an information being made against her, and without her having an opportunity for a hearing, and he kept her there for the purpose of trying to extort from her a confession of her guilt, after her repeated declarations at first that she knew nothing about it, it would be a case for exemplary damages, something by way of punishing him for the wrong committed, as well as compensation for her.] [7]</p> <p>Verdict for plaintiff against William E. Howley and Henry J. Whitebouse for $8,250, on which judgment was entered against Howley for $8,000, plaintiff remitting all above that amount, and new trial granted as to Whitehouse. Howley, defendant, appealed.</p> <p>Errors assigned were (1) answer to defendant’s point; the point and answer being quoted in the opinion of the Supreme Court; (2-7) above instructions, quoting them; (8) that the charge was unduly favorable to plaintiff; (9) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 180, Oct. T., 1896, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1896, M. L. D., discharging rule to show cause why municipal lien should not be stricken from the record.</p> <p>Rule to show cause why municipal lien should not be stricken off.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule to strike off municipal liens.</p>

Appeal, No. 185, Oct. T., 1896, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1893, No. 424, entering nonsuit. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. PJrror assigned was entry for nonsuit.

<p>Gift—Confidential relation — Trust—Evidence.</p> <p>On a bill in equity to compel the reassignment and delivery- of personal ■property, it appeared that the plaintiff, who was an elderly, illiterate man, unable to read or write English, or to speak it perfectly, had assigned and delivered all of his personal property, which constituted his whole estate, to the defendant, an intimate acquaintance, whose advice the old man was in the habit of seeking, and with whom he was accustomed to leave his papers and property. The court below found that the transaction was not a gift, but a “ transfer to the defendant in trust and confidence to keep for the plaintiff, subject to his demands.” The plaintiff testified to this effect, and his testimony was corroborated by that of another witness who stated that the defendant told him he only took care of the money, and that he exhibited a little book in which he kept the account “ so that lie could show it to the old man again.” Held, (1) that the burden of proof was on the defendant to sustain the assignment as a gift; (2) that evidence of the penurious and miserly habits of the old. man was admissible on the question whether or not the transfer was a gift; (3) that a decree in favor of the plaintiff on the ground that it was a transfer “ to the defendant in trust and confidence to keep for the plaintiff subject to his demands,” was based upon sufficient evidence, and should be sustained.</p>

Appeal, No. 192, Oct. T., 1896, by defendant, from order of C. P. No. 1, Allegheny Co., June T., 1896, No. 181, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit on a bond. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 186, Oct. T., 1896, by-Wilson O. Packer, one of the plaintiffs, from judgment of C. P. No. 8, Allegheny Co., Feb. T., 1896, No. 638, on verdict for defendants. ■ Issue devisavit vel non to determine the validity of a will, in which the devisees under the will were the plaintiffs, and the heirs at law of the testatrix were defendants.

<p>Street railways — Line through several municipalities — Consent of all local authorities.</p> <p>• A corporation authorized to build a street railway through several municipalities has no right to enter upon the construction of its railway in any one municipality until it has obtained the necessary local consent of all of them.</p> <p>Street railways — Equity—Scope of decree.</p> <p>Where a plaintiff files a bill to restrain the construction of a street railway through a particular street and upon a bridge in a designated borough, and the court enjoins the construction of the railway on the street and bridge designated, and refuses to enjoin its construction at other points not the subject of any particular averment or prayer for ruling, the plaintiff has no cause to complain that the decree is too limited in its scope, and in such a case, if other trespasses should be committed or threatened by the street railway company, appropriate application may be made to the - court for such other relief as may be needed.</p>

<p>Appeal, No. 198, Oct. T., 1896, by John W. Chalfant and James J. Donnell, from decree of. O. C. Allegheny Co., March T., 1887, No. 219, overruling demurrer to petition.</p> <p>Petition to set aside deed.</p> <p>The petition of Charles E. Speer, trustee under the last will and testament of William K. Nimick, deceased, set forth that on March 16,1887, he had presented a former petition, the substance of which was as follows : that he was one of the trustees under the will of William K. Nimick, deceased; his cotrustees being Alexander Nimick and James M. Bailey; that among the assets of the estate was an interest of William K. Nimick in the firm of Phillips, Nimick & Company of the nominal value of $70,510, but, at that date, of no actual value,; that the firm of Phillips, Nimick & Company had been formed in 1873, and was composed in 1887 of Alexander Nimick and James M. Bailey, with the interest of the estate of William K. Nimick remaining therein; that owing to the depression in business since 1873, the property of the firm in 1887 was not of greater value than the obligations against it, and if forced to sale would not sell for enough to pay the debts ; that amongst the property of the firm was certain real estate which William Phillips et al., by deed dated September 12, 1873, recorded in deed book' 325, page 98, conveyed to William K. Nimick, the same being situated in the thirty-third ward of Pittsburg, and having thereon the Sligo Mills; that it was for the interest and advantage of those interested in said firm property that the interest of William K. Nimick, deceased, in the same should be sold in settlement of the said partnership, and that Alexander Nimick and James M. Bailey, the two surviving partners were willing to ■adjust and settle the affairs of said partnership by the purchase of said interest at the nominal sum of $1.00 and the assumption of the debts of said firm; that by the prayer of said petition the court had been asked “ to order and direct that the petitioner make a private sale of the interest of Wm. K. Nimick in the firm of' Phillips, Nimick & Company, including his interest in the real estate above described,' to said Alexander Nimick and James M. Bailey, for the consideration of one dollar and their agreement to pay the indebtedness of said firm and indemnify said estate from all liability for the same, and that upon payment of said sum and execution of such agreement, your petitioner be authorized to execute and deliver to said Alexander Nimick and James M. Bailey a good and sufficient bill of sale, deed of conveyance and other assurances which may be necessary and proper to convey and assign unto the said Alexander Nimick and James M. Bailey the interest of Wm. K. Nimick in said firm, including the real estate hereinbefore mentioned, and thereby to adjust and settle the partnership business so far as William K. Nimick’s estate is interested therein: ” that all persons in interest having been duly notified, and having consented thereto, the court, 021 March 21, 1887, decreed that the interest of William K. Nimick, deceased, in the property and firm of Phillips, Nimick & Company, should be sold to the said Ja2nes M. Bailey a2id Alexander Nimick for the sum of $1.00, and the assumption by said Bailey and Ni2nick as surviving partners of the firm of Phillips, Nimick & Compa2iy of the debts of the said firm, then amounting to about $800,000.</p> <p>The petition further set forth that the petitioner had recently learned that it is now claimed that the deed executed by the said petitioner in carrying out the order of the court conveyed to Alexander Nimick and James M. Bailey an estate in fee simple in the real estate which theretofore had stood in the name of William K. Nimick in trust for the partnership of Phillips, Nimick & Compa2iy, and that under a2id by virtue of said deed said real estate is now held by the said James M. Bailey and Alexander Nimick as tenants in commo2i, a2id is primarily applicable to the individual debts of the said cotenants instead of the partnership debts of Phillips, Nimick & Company; that said real estate comprised a large part of the assets of Phillips, Nimick & Company and is worth over $60’0,000; that subsequent to the making of said deed to Nimick and Bailey by petitioner, the said Alexander Nimick, as a member of the firm of Nimick & Company made a2i agreeme2it with John W. Chalfant, James J. Donnell and Alexander Nimick, trustees for the creditors of the firm of Nimick & Company, and of the members thereof, for the payment of the debts of Nimick & Company, and of the me2nbers of said firm, which agreement is dated October 6, 1891, and is recorded in deed book; vol. 773, page 1; that the said last named trustees claim one half of the real estate hereinbefore mentioned, alleging that under the former proceedings of the court and the deed of said petitioner, Alexander Nimick and James M. Bailey hold as tenants in common and not as partners ; that Alexander Nimick is now insolvent, and that if said contention be correct, one half of said real estate may be taken to pay his individual debts; that it was a mutual mistake on the part of said petitioner, James M. Bailey and Alexander Nimick in having said deed prepared-in such form as to leave any uncertainty in the plain intent of all the parties.</p> <p>The prayer of petitioner was that the court direct and authorize the petitioner to correct the evident error and mistake which crept into the deed made by the petitioner to the said James M. Bailey and the said Alexander Nimick so that it should appear plain from the face thereof that all that the petitioner conveyed to said Bailey and Nimick was the undivided interest of the said William K. Nimick in .the firm of Phillips, Nimick & Company, and that the real estate of said firm of Phillips, Nimick & Company thereafter was held as partnership and personal property of the firm of Phillips, Nimick & Company, and not by the said James M. Bailey and Alexander Nimick as tenants in common; and that your honors will grant such other and further relief as to equity and justice may pertain.</p> <p>An amendment of the petition allowed January 18, 1896, contained the following additional averments :</p> <p>1. That ever since the purchase in 1873, Phillips, Nimick & Company have been in possession and use of- the real estate described in the deed from said petitioner to Nimick & Bailey, and the same has always 'been and is necessary for the partnership purposes of said firm.</p> <p>2. That Alexander Nimick, one of the trustees of Nimick and Company, and one of the individual members of that firm, is the same Alexander Nimick who was and is a member of the firm of Phillips, Nimick & Company, and who filed an answer to the former petition in this case ; and that the claim now made that said real estate is held by Nimick and Bailey -as tenants in common is made by Chalfant and Donnell, two of the trustees of Nimick & Company, and not by Alexander Nimick.</p> <p>3. That by reason of the facts in the original petition, and apparent of record in this case, the trustees of Nimick & Company had notice prior to the making of the deed to them dated October 6,1891, that the real estate conveyed to Bailey and Nimick was partnership property of Phillips, Nimick & Company.</p> <p>Petitioner added to his petition copies of the deed from himself to Nimick and Bailey, dated April 25, 1887, and of the deed from Alexander Nimick et al. to Chalfant, Donnell and Nimick, dated October 6, 1891.</p> <p>A demurrer was filed to the petition averring : (1) this honorable court is without jurisdiction to hear and determine the questions raised by said petition, or to afford relief as therein prayed for; (2) the said petitioner has no standing in this court to maintain his said petition; (3) the said petition does not set forth or aver any such mistake as entitles the petitioner to the relief prayed for, or to any relief; (4) any decree granting the relief prayed for would affect and impair the rights of third parties, to wit, creditors, based upon the title to the property in said petition mentioned as the same appears of record, the said creditors, under the averments of said petition and the instruments therein referred to, being purchasers for value, and there being no allegation that they had notice of the alleged mistake; (5) said petitioner, if ever entitled to the relief prayed for, has lost said right by delay; (6) said petitioner does not set forth any sufficient ground entitling the petitioner to the relief prayed for, or to any relief.</p> <p>Hawkins, P. J., filed the following opinion:</p> <p>It may be conceded that the present proceeding does not fall within the purview of the act of 1840 ; for it is not a bill of review for the correction of “ errors in account ” made by any trustee. But outside of this act the orphans’ court has that discretionary power which belongs to every court of justice, and is essential to the performance of duty, to correct its own errors injurious to any of the parties, where it can be done without prejudice to intervening rights : Young’s App., 99 Pa. 74. “ A</p> <p>sense of fair dealing and justice,” said Mr. Justice Gordon in Milne’s App., 99 Pa. 483, “ would be authority enough, in the absence of any other, for so holding.”</p> <p>The right to relief here turns upon the effect which must be given the proceedings out of which the trustees’ conveyance •grew; if title was thereby vested in Alexander Nimick and James M. Bailey, individually, it must be denied; if not, it must be granted; for the conveyance would then in form be prejudicial to petitioner’s interest. The solution of this question is jurisdictional. This court has power to divest title to land standing in the name of any decedent by (1) sale for the purpose of distribution under its direction amongst creditors, next of kin or legatees ; or (2) in the execution of trusts in the •modes prescribed by law. It is very plain that the proceedings here cannot be classified under the first head. It was not even in form a sale. No price was fixed; no purchase money was paid or secured, as required by the act of March 22,1859, sec. 1, P. L. 207, Purd. 1629. The agreed “ consideration ” cannot be regarded as furnishing a substantial basis, for its payment was but an existing obligation, official and personal, cognizable in another court. It was no more than the expression of duty which was implied in the character of liquidating partners. The assumption of an intended sale would have raised a necessary implication of distribution under the direction of this court; but there was no creditor seeking and no contemplated distribution here ; and this court cannot be supposed to have intended an illegal delegation of its judicial functions.</p> <p>But in addition to and underlying these formal defects, there are meritorious reasons which conclusively show that there was neither power nor intention to authorize a sale. The declared purpose of the proceeding was “to adjust and settle” firm affairs, which necessarily implied settlement in the mode prescribed by law. The conveyance was a mere incident. W. K. Nimick admittedly had no land to sell. He was a mere trustee, and might have been compelled to transfer the legal title which he held to the surviving partners. What he might have been compelled, he would have been authorized, to do. The ground of jurisdiction in either court could be no other than the administration of a trust, and the result of its exercise the same. “ All roads lead to Home.” The land being admittedly firm assets necessary for the payment of firm debts, it became the trustee’s duty to convey, and the surviving partners to receive it for the purpose of liquidation; and it would have been a fraud on the equities of the partners to pervert it to any other use. Its character was so fixed as to be beyond the power of parties or court to change it.</p> <p>It seems plain, therefore, that the jurisdiction of this court to make the order of conveyance can be sustained only upon the theory of - the execution of a trust; and that, consequently, the title thereunder vested in Alexander Nimick and James M. Bailey, not 'individually, but as surviving partners of the firm of Phillips, Nimick & Co., for the purpose of liquidation. The decree, expressly declaring a purpose “to adjust and settle” the firm affairs, followed by direction that conveyance be made to “Alexander Nimick and James M. Bailey, the surviving partners,” plainly shows the character in which they were intended to take. The inducement was the execution of the trust, and the expression of other “ considerations ” could not change its nature, but was simply collateral. Logically, the conveyance'to them should have conformed to this purpose, but “ it must be construed with and its mistakes corrected by the record upon which it depends for its validity,” in accordance with the well' settled rule: McGhee v. Hoyt, 106 Pa. 516; Johnson’s App., 114 Pa. 132.</p> <p>This court-' has no jurisdiction of the question of laches suggested as affecting the claim to relief. The settlement of firm affairs belongs to another court; and admittedly has not been made. So long as the purpose of the conveyance remains unsatisfied the title must be treated here as rightfully in the liquidating partners: Poster’s App., 74 Pa. 391; George’s App., 2 Jones, 260.</p> <p>The voluntary assignees of Alexander Nimick have no equity to object to the relief asked. Standing in the channel of title, the record of this court was notice to them that the property conveyed by the trustee under the will of W. K. Nimick^ deceased, was assets belonging to the firm of Phillips, Nimick & Co. necessary to the settlement of firm affairs, primarily liable for its debts and the adjustment of the equities of the parties, and consequently held in trust. Their interest was therefore secondary; and while the correction of the mistake inadvertently made by the trustee could do them no harm, refusal might prejudice the right of petitioner. The controversy which has arisen here is of itself sufficient evidence of injury to petitioners. ' The assignment passed to the assignees only such property as the assignor had right to convey. No claim was made here that this particular property was even specified; and there is nothing to show that the individual creditors of Alexander Nimick granted an extension of time for the payment of his debts upon its credit as part consideration. “ Every man is bound,” said Chief Justice Tilghman, in Messinger v. Kintner, 4 Binn. 104, “ to take notice of the record, which is the foundation of his title. If they looked into the title at all, the decree of the orphans’ court stared them in the face at the first step, and seeing the decree they must take notice at their peril of the proceedings on which it was founded.” The land proposed to be conveyed here having been stampéd of record with the character of trust assets must remain trust assets until the purpose of the trust shall have been accomplished; ■ and those who claim through it must regard its sanctity. The cases of Gunnison v. Loan Co., 157 Pa. 303, and others of that class, invoked by respondents, in which it was held that land whose title stands in the name of individual members of a firm must be treated as individual assets, although bought with firm assets for firm purposes, are clearly distinguishable from the present by the fact that the record gave no notice of a trust. These respondents claiming through the record of this court, and therefore, with record notice of the trust under which the land was held, are limited in interest to the residue which shall remain after that trust has been satisfied.</p> <p>The petitioner’s equity to relief on the record as it stands being then clear, the demurrer must be overruled. Counsel for respondents ask leave to answer over, with a view to averments of fact outside the record; but as the decision of this court is based solely on the record, those averments become immaterial, and.-any answer here unnecessary. The decree on the demurrer will therefore be final.</p> <p>And now, to wit, February 10, 1896, this matter came on to be heard upon petition and demurrer, and was argued by. coqnsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed:</p> <p>1. That said demurrer be and is hereby overruled, and</p> <p>2. It appearing that the granting clause of the conveyance recited in said proceedings was not made in conformity with the order .of this court, that said conveyance be vacated and set aside and a new conveyance nunc pro tunc, as of April 25,1887, be made for the purpose of correcting said mistake, by said Charles E. Speer, trustee, under the will of William K. Nimick, deceased, and J. H. White, guardian of Elizabeth N. Bonham, to Alexander Nimick and James M.'Bailey, as surviving partners of the firm of Phillips, Nimick & Co.</p> <p>It is further ordered that the costs of this proceeding be paid by the estate of William K. Nimick, deceased.</p> <p>Error assigned was decree of the court.</p>

Appeal, No. 193, Oct. Term, 1896, by Hattie E. Flannery, from decree of O. C. Allegheny Co., Sept. Term, 1896, No. 260, distributing fund. Exceptions to decree of distribution. Over, J. filed the following opinion: John Rogers died testate June 12, 1894.

<p>Appeal, No. 194, Oct. T., 1896, by Sarah E. Jackson, from decree of O. C. Allegheny Co., Sept. Term, 1896, No. 260, distributing fund.</p> <p>The facts appear by the next preceding case, page 602.</p>

<p>Appeal, No. 195, Oct. T., 1896, by David Gilmore, from decree of O. C. Allegheny Co., April, T., 1896, No. 1, on exceptions to account of executors.</p> <p>Exceptions to account of executors.</p> <p>Mrs. Amanda W. Foster, by her will gave to her husband, “Dr. W. S. Foster, his successors and assigns, all of my estate, real and personal, .... in trust as follows: With full power and discretion in said trustee and his successors, to mortgage, lease, sell, convey, assign, transfer, hold, manage or invest and reinvest the same until my.youngest child arrives at twenty-one years of age, and to distribute the income or principal, or both, among my three children, John. Watt Foster, Halsey Wright Foster and Bayard Dashiell Foster and their heirs, at such times, in such manner, and in such shares, equal or unequal, as he or his successor in his sole direction may deem proper and just.”</p> <p>One of the beneficiaries having died} an attaching creditor of Dr. Foster seeks to sequester his interest in the trust estate. The youngest child is about fourteen years of age, and the oldest past twenty-one.</p> <p>Hawkins, P. J., filed the following opinion:</p> <p>While it may be conceded that the death of one of the intended beneficiaries under this will made Dr. Foster a party interested in the trust estate as next of kin, his interest is manifestly not such as can be made presently available in attachment by his creditors; for it cannot be taken without prejudice to his children’s rights : Drake on Attachment, 245. The trust estate is of such a character as to be incapable of present division. It consists of the household furniture which was in use during Mrs. Foster’s lifetime, and has been continued since in the same character. While there was no formal appointment by the donee, there was its equivalent in the permissive use which the trustee allowed his children. Dr. Foster testified that this continued use was in accordance with testatrix’s wish. It was at least a natural use, for it was part of the equipment, and necessary to the enjoyment of the children’s home. Its appointment to that use was made when all three children were living, and Dr. Foster’s good faith could not have been questioned. No change has since been made, and Dr. Foster can receive no increased benefit so long as this continues. The furniture, as a whole, is not less necessary to the surviving children. Their father is admittedly insolvent; and certainly as between him and them, he could not deprive them of what was necessary to their home comfort; for they were made the primary objects of bounty with his express consent; and what he could not, his creditors ought not to be permitted to do. The household furniture so far as appears is an entirety which cannot be broken without a breach of trust: Slemmons’ Est., 178 Pa. 156.</p> <p>It has been seen that Dr. Foster has taken no positive action in the exercise of his discretion since his son’s death with respect to the use of the furniture. The apportionment of the principal will not become imperative until the majority of his youngest son, six years hence; and as it has not been made to appear that there is any contemplated action in the meantime to the prejudice of exceptant there is no present occasion for interference by this court. If occasion should in the meantime require, the question may arise whether or not the surviving beneficiaries have a right, assuming that Dr. Foster is incompetent, to the appointment of a trustee competent to act on the principle that a trust shall not fail for want of a trustee. The fact that, in the event of Dr. Foster’s death, the will expressly provides his “ successor in the line of the trust shall have all of the power and discretion ” which had been given him, necessarily implied that the exercise of these powers was intended to be made incidental to, and limited only by the duration of the trust. The trust having been created for the benefit of all the children, each was' interested in its continued existence; and it is not apparent why the death of one should prejudice the others, especially in view of the evident purpose to prefer them to Dr. Foster. As the father was, in contemplation of law, primarily liable for the training and maintenance of the children, the natural presumption is that the discretion given was subsidiary, and intended to be governed by the need of each of them.</p> <p>DECREE.</p> <p>And, now, to wit June 15,1896, this matter came on for hearing and distribution, at this term, upon exceptions thereto, and testimony taken, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the exceptions be dismissed without prejudice to raise questions upon the termination of trust created by will of decedent, and that the fund in hands of accountant, viz: $1,024.02, be paid in accordance with the following schedule of distribution, unless an appeal be taken herefrom within twenty days.</p> <p>Balance as per account:</p> <p>Household goods valued at ... $1,000 00</p> <p>Cash........ 24 02</p> <p>$1,024 02</p> <p>7 00 Deduct clerk’s costs</p> <p>Balance for distribution $1,017 02</p> <p>To Dr. S. W. Foster, trustee in trust as per item first oí will of deceased, said balance, viz:</p> <p>Household goods...... 11,000 00</p> <p>Cash....... . 17 02</p> <p>$1,017 02</p> <p>Bond in the sum of $2,000 to be given to be approved by court.</p> <p>Error assigned was decree of the court, quoting it.</p>

<p>Appeal, No. 50, Oct. Term, 1896, by plaintiff, from order of C. P. No. 1, Allegheny County, June Term, 1891, No. 550, entering nonsuit.</p> <p>Sterrett, C. J., McCollum and Mitchell, JJ, .dissent.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Collier, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it refused to take off.</p> <p>Mrror assigned was in not taking off nonsuit.</p>

<p>Appeal, No. 3, Oct. T., 1896, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1894, No. 674, on verdict for plaintiff.</p> <p>Ejectment for a tract of land in Pointview borough. Before Slagle, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial William Shrader was called as a witness for plaintiff and examined as follows :</p> <p>“ Q. Are you the same William Shrader who purchased the land in dispute in this case at sheriff’s sale in 1884, as the property of Frederick Rhodes ? A. Yes, sir. Q. Were you present at the other ejectment for this land, between John Shrader and Benjamin Coursin? A. Yes, sir.”</p> <p>Defendant thereupon objected as follows:</p> <p>The testimony of this witness is objected to as being incompetent, for the reason that his answers disclose that he is the source of title adverse to the title of the defendant, and the plaintiff has proved that Benjamin Coursin, the source of the defendant’s title, is dead. Therefore, the witness is interested in the matter in controversy as between his title and Benjamin Coursin’s title,' which controversy is the issue in this case, and Benjamin Coursin being dead, this witness cannot testify. And further, because the witness, at No. 477, June term, 1887, being the scire facias upon Benjamin Coursin’s mortgage, through which the defendant claims title, asked leave of court to be made a party-defendant in that action, and thereupon moved to open and strike from the record the judgment which Coursin had procured upon his mortgage against Frederick Rhodes, and being a party to that action or controversy opposed to Benjamin Coursin, and being a party interested, his testimony is incompetent.</p> <p>By the Court: The objection is overruled and bill sealed for defendant. [2]</p> <p>The witness testified as to the genuineness of the signature of Benjamin Coursin to the receipts in evidence, as stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1) ruling of evidence, quoting the bill of exception; (2) portion of charge quoted in the opinion of the Supreme Court.</p>

Appeal, No. 34, Oct. T., 1896, by Maria F. Smith, from order of C. P. No. 3, Allegheny Co., Feb. T., 1895, No. 532, dismissing exceptions to report of viewers. Exceptions to report of viewers. From the record it appeared that on January 16, 1895, the city of Pittsburg presented a petition for the appointment of viewers for the assessment of damages and benefits for the paving, laying and curbing of a sidewalk on Wightman street.

<p>Road law — Paving sidewalk — Acts of May 16, 1891, April 18, 1857 and April 1, 1868.</p> <p>Under the remedial Act of May 16, 1891, P. L. 71, assessments may bo made for paving a sidewalk, although the property owner has been given no notice to do the work as provided by the Acts of April 18, 1857, P. L. 240, and April 1, 1868, sec. 17, P. L. 569.</p> <p>Road law — Irregularity in contract — Waiver.</p> <p>Where an irregular municipal contract is one which the city cor Id have authorized, the city may waive the irregularity.</p> <p>Road law — Regrading—Cost.</p> <p>Where a regrading of a street is necessary to prepare the surface for a pavement duly authorized by the municipality, and no part of the cost of regrading is included in the benefits assessed, the property owners have no standing in a proceeding to assess benefits to object to the regrading.</p> <p>Road law — Pavement—Cost—Evidence.</p> <p>Testimony as to the cost of the work must be directed to show the price at which it could have been done at the time the pavement was laid, and not the price charged at different times in other cities.</p> <p>Road law — Conclusiveness of viewers' findings of fact.</p> <p>The finding of road viewers on questions of fact, approved by the court below after a thorough examination, will not be disturbed by the Supreme Court, except for clear error.</p>

Appeal, No. 32, Oct. T., 1896, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1895, No. 828, on demtirrer. Assumpsit to recover from the controller of Allegheny county §1,290.32, alleged to have been paid to him by mistake in excess of his salary as fixed by law.

<p>Appeal, No. 75, Oct. T., 1896, by defendant, from judgment of C. P. No. 3, Allegheny Co., August Term, 1894, No. T59, on verdict for plaintiff.</p> <p>Assumpsit on book account. Before Kennedv, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $10,047.09. Defendant appealed.</p> <p>Error assigned was above instruction.</p>

Appeal, No. 111, Oct. T., 1896, by Alexander H. Miller, from decree of O. C. Allegheny Co., June T., 1892, No. 202, dismissing petition for an appeal from register of wills. Mitchell and Fell, JJ., dissent. Petition for an appeal from register of wills admitting will to probate. Before Oyer, J. Tbe facts appear by the opinion of the Supreme Court. Error assigned was in dismissing the appeal.