Volume 18 — Pennsylvania Superior Court Reports

<p>Appeal, No. 50, April T., 1901, by plaintiff, from order of C. P. Lawrence Co., Dec. T., 1899, No. 1, striking off mechanic’s lien in case of Mercer Milling and Lumber Company, Limited, v. Mary R. Kreaps, Owner or Reputed Owner, and J. F. Fike, Contractor.</p> <p>Motion to strike off mechanic’s lien.</p> <p>The lien was as follows:</p> <p>The Mercer Milling and Lumber Company, Limited, above named plaintiff, hereby files its claim or statement of demand for work done and materials furnished for and about the erection and construction and upon the, credit of the building hereafter mentioned, and against the same and the ground covered by said building and so much other ground immediately adjacent thereto and belonging to said Mary R. Kreaps, defendant, as may be necessary for the ordinary and. useful purpose of the same, and sets forth as follows, to wit:</p> <p>1. The name of the party claimant is the Mercer Milling and Lumber Company, Limited. The name of the owner, or reputed owner of said building is Mary R. Kreaps. The name of the contractor is J. F. Fike.</p> <p>2. The amount claimed to be due is $280.73 for materials, viz: lumber, furnished and delivered within six months last passed, to wit: between October 10, 1898, and April 1, 1899 ; the following being a statement or bill of particulars setting forth specifically the kind of materials furnished, the items, dates and amounts thereof, and the price and value of the same.</p> <p>Oct. 10, 1898, 2 pec. 2x8x16 pine .85</p> <p>“ “ “ 130 pec. 2x8x16 hml’k 2816 ft.</p> <p>“ “ “ 56 “ 2X6X16 “ 896 “</p> <p>“ “ “ 34 “ 2X6X20 “ 680 “</p> <p>“ “ “ 295 “ 2X4X18 “ 3540 “</p> <p>“ “ “ 1922 ft. sheeting “ 1922 “</p> <p>mA@ 1100 $190.05</p> <p>“ “ “ 48 mock rafters 2x4x3 at 14c each 6.72</p> <p>“ “ “ 4 fall rafters 1-g-X 6 X 20 at 36c “ 1.44</p> <p>“ “ “ 25 sets door jams at 30c each 7.50</p> <p>“ 26 “ 1900 ft. Geo. pine flooring at 2c ft. . 38.00</p> <p>“ “ “ 1000 ft. hemlock flooring at . 17.00</p> <p>2600 ft. cove siding at 2c . 52.00</p> <p>5 b’ch cut shingles at 1.30 6.50</p> <p>209 ft. ceiling for cornish . 3.76</p> <p>450 ft. cornish lumber . 13.50</p> <p>27 steps ...... 2.88</p> <p>42 risers..... 2.52</p> <p>6 pec. 1x12x16 poplar, 96 ft. at 3c 2.88</p> <p>Amount carried forward, $345.60</p> <p>Amount brought forward, 1345.60</p> <p>20 ft. slate mould .... 3.15</p> <p>2 window frames at 1.50 . . . 3.00</p> <p>130 ft. 4 in. crown mould . . 3.10</p> <p>Nails......6.00</p> <p>2 face rafters l^X5x8 . . .30</p> <p>4 pec. 2x4x18 hemlock . . . .58</p> <p>$280.73</p> <p>The said materials were worth the prices mentioned in the foregoing statement, and were furnished and delivered to the said contractor for the said building and upon the credit thereof, and at the times and for the prices hereinbefore stated.</p> <p>3. The said building is located on a lot or piece of land situate in the Fifth ward, city of New Castle, Lawrence county, Pennsylvania, and bounded and described as follows:</p> <p>“ Bounded on the north by lot now or formerly of A. M. Hanna; on the east by an alley; on the south by lot of Hugh Clements; and on the west by Pennsylvania avenue and being 40 feet in front on Pennsylvania avenue and extending back about 140 feet to said alley.</p> <p>“ The said building is a two story frame building used for a dwelling house being about thirty-six feet front and about forty feet deep, with slate roof, tin spouting and containing ten rooms and bath room, and having a stone foundation and cellar; and said building was finished and completed on the second day of April, 1899.</p> <p>“ Mercer Milling and Lumber Co., Limited,</p> <p>By C. H. Akens, its Attorney.</p> <p>“ September 15, 1899.”</p> <p>Error assigned was order to strike off lien.</p>

Appeal, No. 60, April T., 1901, by Mary Ann Jones, from decree of O. C. Lawrence Co., March T., 1899, No. 25, dismissing exceptions to auditor’s report in the Estate of John Rigby, Deceased. Exceptions to auditor’s report. The auditor, Charles E. Mehard, Esq., found the facts to be as follows: John Rigby died July 1,1894. Letters testamentary were not taken out in his estate until September, 1894.

Appeal, No. 63, April T., 1901, by defendant, from judgment of C. P. Lawrence Co., June T., 1898, No. 83, on verdict for plaintiff in case of Thomas Matthews v. The Pittsburg & Lake Erie Railroad Company. Trespass to recover damages for the loss of a barn by fire alleged to have been caused by sparks from a locomotive. Before Miller, P. J., specially presiding. At the trial it appeared that on September 18, 1897, plaintiff’s barn with its contents was destroyed by fire.

Appeal, No. 122, April T., 1901, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1897, No. 33, on verdict for plaintiff, in case of Thomas J. Newton v. Pittsburg & Lake Erie Railroad Company. Trespass to recover damages for injury to plaintiff’s horse and wagon. Before Wallace, P. J. The facts are fully stated in the opinion of the Superior Court. The court submitted the ease to the jury. Verdict and judgment for plaintiff for $245.33. Defendant appealed.

Appeal, No. 137, April T., 1901, by plaintiffs, from order of C. P. Lawrence Co., Dec. T., 1897, No. 53, refusing to take off nonsuit in case of Arbuthnot, Stephenson & Company v. E. E. Smith and J. M. Smith. Replevin for goods said to have been obtained by false pretenses. Before Rayburn, specially presiding. The facts are stated in the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 62, April T., 1901, by defendant, from order of C. P. Erie Co., Feb. T., 1900, No. 128, making absolute a rule for judgment for want of a sufficient affidavit of defense in ease of American Watch Tool Company v. Reed Manufacturing Company. Rule for judgment for want of a sufficient affidavit of defense. From the record it appeared that the suit was brought to recover $375, being the price of certain punchers and dies for use on No. 3 Stiles & Parker press.

Appeal, No. 96, April T., 1901, by defendant, from decree of C. P. Erie Co., Sept. T., 1900, No. 15, on bill in equity in case of Erie County Milk Association v. E. C. Ripley. Bill in equity for an injunction.

<p>Appeal, No. 40, April T., 1901, by defendants, from decree of C. P. Crawford Co., May T., 1899, No. 3, on bill in equity in case of Alice A. Googe v. David B. Gaskill and William H. Gaskill.</p> <p>Bill in equity for the cancelation of the assignment of a mortgage.</p> <p>From the record it appeared that Alice A. Googe owned an interest in a mortgage given by one Susan Hamilton. On February 21, 1899, Alice A. Googe gave a power of attorney to Miles W. Tate, an attorney at law and notary public, which was as follows :</p> <p>“ Know all men by these presents that I, Alice A. Googe, of Meadville Pa., do hereby constitute and appoint Miles W. Tate, of the same place, my lawful attorney for me and in my name and stead to receive and receipt for all moneys belonging to me from any mortgages or judgments, and to enter satisfaction in the proper offices for me and in my name and stead when mortgages are paid, and to do all other things in the premises, as I might or could do if personally present.</p> <p>“ Witness my hand and seal this 19th day of February, A. D. 1889, at Meadville, Pa.</p> <p>“Alice A. Googe.” [Seal]</p> <p>The letter of attorney was duly recorded.</p> <p>Thomas, J. found the facts to be as follows:</p> <p>1. That on May 3,1889, Susan Hamilton, of Meadville, executed and delivered to Mrs. Elizabeth Tate and Alice H. Googe a judgment bond in the penal sum of $4,000 and a mortgage for $1,843, of which sum $843 was the interest of Mrs. Tate, and $1,000 was the sum due the complainant, Alice A. Googe, which said mortgage was recorded in mortgage book L, No. 2, p. 330, in the recorder’s office of Crawford county.</p> <p>2. That on August 31, 1895, the interest of Mrs. Elizabeth R. Tate in said mortgage was assigned of' record to David B. Gaskill. by Miles W. Tate, as executor of Elizabeth Tate, deceased ; and on the same date the interest of the complainant, Alice A. Googe, in said mortgage, was attempted to be assigned to the said David B. Gaskill, by a paper purporting to be signed and acknowledged by tbe complainant, Alice A. Googe, which said alleged assignment was duly recorded in the office of the recorder of deeds in the county of Crawford, in mortgage book Y, No. 2, p. 432, on August 31, 1895.</p> <p>3. That on December 24, 1897, said David B. Gaskill assigned upon the margin of the record the said mortgage to William H. Gaskill.</p> <p>4. That the complainant, Alice A. Googe, had no actual knowledge of the said purported assignments prior to February, 1899.</p> <p>5. That the real estate upon which said mortgage is a lien was on May 6,1897, conveyed by said Susan Hamilton to Isaac Monderau, who now holds the legal title thereto, subject to said mortgage.</p> <p>6. That the aforementioned alleged assignment from Alice A. Googe to David B. Gaskill, was not executed or delivered by her, or by any person having power of authority from her so to do.</p> <p>CONCLUSIONS OF LAW.</p> <p>The complainant, Alice A. Googe, is not bound by the alleged assignment, not made or authorized by her, nor has she had such knowledge or been guilty of such conduct as will estop her from asserting her rights in this proceeding.</p> <p>A decree was entered canceling the assignment.</p> <p>Error assigned was the decree of the court.</p>

<p>Mechanic's lien — Entire contract — Time of filing lien.</p> <p>Where there is an entire contract to furnish the cornice of a building and four bases and four gable ornaments at such time as the building should be ready for them,, and the cornice, bases and two of the ornaments are furnished in May and the other two ornaments in September, and there is no evidence as to when the building was ready for the ornaments, a mechanic’s lien filed in the following February will be good as to the material furnished in May.</p> <p>Contract — Entire contract.</p> <p>The entirety of a contract depends upon the intention of the parties.</p>

<p>Evidence — Parol evidence to explain written agreement.</p> <p>Parol evidence may be given to explain a written agreement so far as to give locality and identity to the subject-matter of it, and apply the contract to it.</p> <p>Where the subject-matter of contract is a ditch, and the parties differ as to which ditch was intended, parol evidence is admissible to show the ditch intended.</p> <p>Appeals — Assignments o† error.</p> <p>An assignment of error which embraces, four distinct portions of the charge of the court below relating to different questions, is in violation of Rules 14 and 15 of the Superior Court.</p>

<p>Appeal, No. 9, April T., 1901, by plaintiff, from judgment of C. P. Warren Co., March T., 1899, No. 35, on verdict for defendant in case of Mary Mulberry v. Ralph Carrier.</p> <p>Trespass for an alleged wrongful ejectment from real estate. Before Lindsey, P. J.</p> <p>At the trial it appeared that defendant, Ralph Carrier, purchased forty-seven acres of land at sheriff’s sale. The land was sold as the property of John Mulberry. Defendant instituted proceedings under the act of May 24, 1878 before a justice of the peace and a jury of six persons, and in these proceedings recovered judgment. Subsequently the sheriff executed a warrant of possession and ejected from the land John Mulberry and his sister Mary Mulberry. The latter subsequently brought this suit.</p> <p>Plaintiff presented the following points:</p> <p>1. The proceedings on the part of the defendant, Ralph Carrier, before the justice of the peace, N. E. Dewey, to recover possession from John Mulberry, of the premises upon which the trespasses complained of in this case were committed, were irregular, illegal and void, for the reason that the jury acting in the proceedings before said justice was composed of only six jurors and not of twelve jurors as required by law, and the warrant issued by said justice to the sheriff of the county was not made returnable within four days next after the issuing thereof, as required by law. Answer: This point is refused. [1]</p> <p>2. The justice of the peace, N. E. Dewey, and jury of six men summoned by the sheriff of the county, on his warrant, had no jurisdiction of the subject-matter, nor of the person of Mary Mulberry in the proceedings before them against John Mulberry offered in evidence; and the plaintiff, Mary Mulberry, is entitled to recover for all damages sustained by and injuries inflicted upon her under the warrant issued in said proceedings to the sheriff of the county to dispossess said J olm Mulberry; and the said Ralph Carrier is liable for all injuries to the said plaintiff and her property by all of the persons acting under and in execution of said warrant; and to the amount of actual damage so sustained by the plaintiff, the jury may add an additional sum not to exceed six per cent upon that amount from the time of the injury to the time of their verdict. Answer : This point is refused. [2]</p> <p>The court charged in part as follows:</p> <p>[There is no evidence here that would justify us in instructing you that both of these parties were in possession. The land was owned by J olm Mulberry, and the plaintiff does not claim that she was in possession with John Mulberry, but that she made an arrangement by which she was to run the property ; and she was either in possession or else John Mulberry was in possession. If there is any evidence that justifies you in finding that there was a joint possession, then it would be true that she would have to be notified and the proceedings would have to be against her also. You will look over all the testimony, but so far as I remember, I fail to remember any testimony that would show a joint possession of the premises. [5]</p> <p>[The mere fact that she was occupying the house with her brother would not entitle her to notice. If her brother had the actual possession of that property, farm and house — and it is the whole property that Mr. Carrier purchased — and if her brother had the actual possession of the whole property, it would not be necessary to notify her. If she was keeping house for her brother, of course there would be no other way but they would have to occupy the house together. But, if she was there as the housekeeper of her brother, it would not give her any possession such as would entitle her to notice. In order to entitle her to notice you must find that there was some time in which the possession of the property, was turned over by the brother to her, because the brother owned the property and it is not disputed but what he was in the actual possession of the property up to within eight or nine years ago. Now you must find that there was some time when the possession of the property was turned over from the brother to her, in order to entitle her to notice of these proceedings.] [6]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2-5, 6) above instructions, quoting them.</p>

Appeal, No. 49, April T., 1901, by defendant, from order of C. P. Warren County, June T., 1900, No. 10, making absolute rule for judgment for want of a sufficient affidavit of defense in case of C. Hershej Backenstoe, Receiver of the Susquehanna Mutual Fire Insurance Company, v. John O’Neil.

Appeal, No. 57, April T., 1901, by defendant, from judgment of C. P. Warren Co., Sept. T., 1899, No. 51, on verdict for plaintiffs, in case of W. P. Nutting and George F. Yates v. Charles A. Lynn. Trespass to recover damages for taking timber. Before Lindsey, P. J. At the trial it appeared that the subject in controversy was title to lot No. 217 in Deerfield township. The facts are stated in the opinion of the Superior Court.

<p>Appeal, No. 101, April T., 1901, by defendant, from order of C. P. Warren Co., Sept. T., 1900, No. 13, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of N. B. Brackenbridge, Assignee of A. H. McKelvy, v. Lewis Cummings, Terre-tenant.</p> <p>Scire facias sur mortgage.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Lewis Cummings filed an affidavit of defense in which he averred as follows:</p> <p>That he purchased the interest in said leasehold, described in the mortgage upon which the above writ of scire facias was issued, of the Warren Savings. Bank the then owner thereof by purchase by said bank for a valuable consideration from the grantees of the original lessees. That this deponent purchased said interest in said leasehold of said bank, March 17, 1898, paying therefor the sum of $305, and since that date has been in possession of said leasehold and expended large sums of money thereon developing and mining for oil of said leasehold.</p> <p>That the mortgage upon which this writ of scire facias was issued is dated May 6,1899, and recorded in said Warren county on May 22,1899. That said mortgage recites that it is “given to secure the payment of twenty-nine promissory notes of $200, each, and each bearing even date with said mortgage, and said notes payable as follows: “ $200, with interest at 7 per cent, in one month from date of said mortgage, and a like amount, with interest at 7 per cent, each and every month thereafter, until the whole twenty-nine notes are paid, as evidenced by the said twenty-nine promissory notes, payable at the Warren Savings Bank, Warren, Pa.</p> <p>And the said depondent further states, that at the date of his purchase of the said interest in said leasehold, to wit: March 17, 1898, the sum of $5,400 and interest thereon, was paid upon said notes, and receipted upon said mortgage, by A. H. McKelvy, the then owner of said mortgage, and which receipt is dated June 1, 1892, and which receipt is in full of twenty-seven of said notes and interest thereon secured by said mortgage. That the twenty-eighth note of the series matured and became due September 6, 1891, and the twenty-ninth note, the last note of the series, matured and became due October 6, 1891. So that at the date of the purchase by the deponent of said interest in said leasehold, the debt and notes for which said mortgage was given to secure was receipted and extinguished in full as appears by the recorded mortgage and receipts thereon. Said notes all being paid, or extinguished by the statute of limitations, and that at the date of his said purchase nothing whatever was due and owing upon said mortgage, and deponent saith that the mortgage upon which said scire facias is issued was before the date of the issuing of said writ, fully paid, satisfied and extinguished.</p> <p>A supplemental affidavit of defense was as follows:</p> <p>Lewis Cummings, being first duly sworn, says for further defense in this case, on March 17, 1898, he purchased for the sum of about $700 from the Warren Savings Bank et ah, the interest in this leasehold covered by the mortgage in suit. That of the twenty-nine notes which said mortgage was given to secure, twenty-seven were receipted on the mortgage at the time of said purchase by Lewis Cummings. That afterwards the twenty-eighth and twenty-ninth notes for the amount of which this action on the mortgage was brought, were taken up by the maker of said notes, Wilson Law, and one note was given for the amount now claimed by defendant to be due on the mortgage and for which this suit was brought. That the defendant, Lewis Cummings, is informed and believes that as regards his situation as the purchaser of said leasehold, and his character as a terretenant, said transaction was a novation of the debt secured by the mortgage, and for which his interest in said leasehold was not liable under the terms of said mortgage; which facts have all come to the knowledge of the deponent since filing his affidavit of defense in this case.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 120, April T., 1901, by defendant, from judgment of C. P. Armstrong Co., March T., 1898, No. 191, on verdict for plaintiff in case of E. E. Heilman v. M. A. McKinstry. Replevin for a piano. From the record it appeared that when the case was called on June 7, 1900, the plaintiff suffered a voluntary nonsuit. Subsequently the nonsuit was stricken off and the case reinstated.

Appeal, No. 89, April T., 1901, by defendant, from decree of C. P. Armstrong Co., March Term, 1901, No. 131, on bill in equity in case of School District of Free-port Borough v. Enterprise Natural Gas Company. Bill in equity for an injunction. Before Patton, P. J. The facts are stated at length in the opinion of the Superior Court.

<p>Practice, G. P. — Trial—Charge—Competency of witness.</p> <p>It is not reversible error for the trial judge in referring to an act of the defendant to remark that the reason for the act was not given in evidence because the defendant was not a competent witness.</p> <p>Decedent's estates — Evidence—Charge—Medical services.</p> <p>In an action by an administrator on a bond given for the maintenance of the decedent to recover for support and medical services rendered to decedent after she had left the defendant’s house, where it appears that the medical services were rendered by a son of the decedent, it is .not error for the court to say in its charge that the jury were not to conclude that the medical services were worth what the son testified they were worth simply because he said so, but that they were to fix what would be a reasonable compensation from all the evidence in the case. In such a case the alleged erroneous remark becomes of no practical importance whatever, if the jury returns a verdict for defendant on the ground that decedent was not justified in leaving defendant’s house.</p>

<p>Appeal, No. 78, April T., 1901, by defendant, from decree of C. P. Mercer Co., April T., 1899, No. 2, on bill in equity in case of Samuel Hosack, Executor of John Hosack, deceased, Jacob Shilling and W. W. Shilling, v. John T. Crill.</p> <p>Bill in equity to determine rights to certain coal.</p> <p>Miller, P. J., found the facts to be as follows:</p> <p>1. John Hosack, the decedent, and Hugh B. Wick entered into the following written agreement on August 26, 1863, and the said agreement was recorded in the recorder’s office of Mercer county, February 18, 1864, in article book C, page 123.</p> <p>“ Article of Agreement made and concluded this 26th day of August, 1863, between John Hosack, of the Township of Findley, County of Mercer, State of Pennsylvania, party of the first part, and Hugh B. Wick, town of Youngstown, County of Ma-honing and State of Ohio, party of the second part, as follows: the party of the first part for and in consideration of one dollar to him in hand paid as well as the agreements hereinafter mentioned does hereby bargain, sell and convey unto the party of the second part his heirs or assigns all the mineral coal and iron ore in, upon and under the tract of land in the Township of Findley in the County of Mercer in said State, bounded and described as follows: The first tract is bounded northerly by lands of James Alexander and others, easterly by lands of William Pardoe and Hugh Evans, southerly by lands of B. Sidley, westerly by lands of Jacob Vanatta, containing about 240 acres. Second tract is bounded northerly by lands of James Connelly’s heirs, easterly by lands of Lawrence Boyer, southerly by lands of James Johnson, westerly by lands of David Bastress, 131 acres of land; containing in the whole 381 acres of land; granting to the party of the second part or his heirs or assigns as well as his and their laborers and workmen the right to enter upon said lands at any time hereafter and search for coal and ore, and when found to remove the same from said lands, together with all the rights and privileges incident to mining and securing said coal and ore, including the right of egress and ingress and to dig, mine and explore and occupy with such buildings and constructions as may be necessary and useful for the full enjoyment of the advantages of said coal and ore, and with the refuse from said mines, and also the right to mine and remove the coal and ore of adjoining lands through, over or under said lands during the continuance of this agreement.</p> <p>“ And the party of the second part agrees by himself, his assigns and workmen to enter upon and make search for coal and ore upon the lands above described, and should he find coal and ore in said lands and adjoining lands of sufficient thickness, quantity and quality to justify him, the party of the second part to open and work said mines, then he or his representatives or assigns shall pay to the party of the first part, his heirs or assigns, within five years after the completion of a railroad on or near the above described premises, made in connection with any other leading railroad, by which said minerals can be taken to any large market, the sum of ten dollars a year during the continuance of this agreement; and the failure to make these advance payments yearly upon request or within one year after demand upon the party of the second part shall be deemed an abandonment of this agreement or lease, but not to the injury of the second party or his assigns. And the party of the second part shall have the right to abandon the said lands and mining at any time and remove all his buildings and fixtures from said land.</p> <p>“ It is further understood and agreed by the parties that if the party of the second part shall fail to construct or cause to be constructed the above contemplated railroad within fifteen years from the date of this contract, the party of the second part shall pay to the party of the first part the above named sum of ten dollars a year until the railroad is constructed and mining is commenced on said premises ; and the said party of the second part by himself and his assigns, and workmen agrees to pay to party of the first part, his legal representatives or assigns, the sum of five cents for each ton of 2240 pounds of screened coal mined and removed from said lands herein described, and the price or rent of the ore mined or removed from said lands for such gross ton of 2240 pounds shall be five cents for screened and cleaned; but it is understood and agreed that any advance payments of ten dollars as above mentioned to be paid yearly that shall be made to the party of the (second) party of the first part are to apply, on the payment of rent of coal first mined thereafter. The payment of rent on coal mined and removed shall be made yearly, and all payments required by this agreement shall be made and accepted in bankable funds of the State of Pennsylvania.</p> <p>“ It is mutually understood by the parties that the coal under any dwelling houses or other permanent buildings shall not be mined out and as little injury to the surface of said lands shall be done as possible in mining, removing and transportation of said coal and ore as herein contemplated.</p> <p>“ It is further understood and agreed by and between the parties to this contract that the party of the first part .agrees to grant and give to the party of the second part all the land necessary for the location, construction and occupancy of a public railroad as above contemplated.</p> <p>“ It is further agreed that the party of the first part may mine for his own use coal from said premises until the railroad is completed.</p> <p>“ It is also mutually understood that the stipulations herein contained shall apply to and bind the heirs, executors, administrators and assigns of the parties respectively.</p> <p>“ In witness whereof the parties hereunto set their hands and seals the day and year first above mentioned.</p> <p>“ All interlineations and erasures made before signing.</p> <p>“ John Hosack. [Seal]</p> <p>“ Hugh B. Wick. [Seal]</p> <p>“ Sealed and delivered in the presence of</p> <p>“ Jambs H. Wells,</p> <p>“ Jonathan Snyder,</p> <p>“ W. N. Pardoe.</p> <p>“ August 26, 1863, acknowledged. Recorded Article Book C, page 153, etc., on February 18,1864. ”</p> <p>2. John Hosack was on August 26,1863, and prior thereto, the owner of the premises mentioned in said agreement.</p> <p>3. John Hosack died on February 5, 1868.</p> <p>4. The search for coal and ore contemplated in said agreement was not made until sometime in the year 1868, and subsequent to the death of John Hosack.</p> <p>5. The railroad contemplated in the agreement was constructed as far as Pardoe in February, 1869, and the same crossed the premises mentioned in the agreement.</p> <p>6. Mining operations were commenced by Hugh B. Wick, or by those acting under him, in the immediate neighborhood of the premises mentioned in this lease during the month of June, 1869, but not before.</p> <p>7. John Hosack made his last will and testament bearing date January 29,1868, which was duly probated on February 13, 1868, before the register of wills of Mercer county.</p> <p>8. John Hosack by his last will devised to his daughter, Clarissa A. Hosack, afterwards intermarried with J. W. Barker, fifty acres of land mentioned in said agreement between John Hosack and Hugh B. Wick; said fifty acres being the same land from which the fund has accrued for coal mined thereunder, and for which fund this suit is brought.</p> <p>9. All the right, title, property and estate of Clarissa A. Ho-sack, afterwards Clarissa A. Barker, under the devise in her father’s will aforesaid to the said fifty acres of land became vested by sundry conveyances and assurances in law in John T. Crill, the defendant, on September 4, 1885, when he went into possession of said fifty acres of land and has since remained in possession thereof.</p> <p>10. The amount of coal mined and removed from under said fifty acres of land since mining was commenced by the Mercer Mining Company, and prior to August 1,1898, was 11,353.27 gross tons of screened coal, the royalty for which amounts to $472.66.</p> <p>11. The coal above mentioned was mined and removed by the Mercer Mining Company, a corporation duly established and existing under the laws of the commonwealth of Pennsylvania, under and by virtue of the rights and privileges acquired by them in their acquisition of the rights and privileges of the said Hugh B. Wick in said written agreement of August 26, 1863, with said John Hosack.</p> <p>12. That Jacob H. Shilling has deeds of assignment from Samuel Hosack and John Hosack, two sons of John Hosack, deceased, and Thomas Irwin and wife, the wife being a daughter of John Hosack, deceased, by which deeds and assignments they transfer to Jacob H. Shilling all their right, title, interest and claim of, in and to all the coal and iron ore on and under the two several pieces or parcels of land mentioned and described in said written agreement between John Hosack and Hugh B. Wick; and the said Jacob H. Shilling has also assigned prior to the bringing of this suit the undivided one-half interest so acquired by aforesaid deeds of assignment to W. W. Shilling.</p> <p>13. The parties to this suit each claiming the fund in question and each threatening to bring suit against the Mercer Mining Company for said fund, the mining company filed its bill for interpleader and this issue was accordingly framed to determine the rights of the respective parties to the money admitted by said mining company to be in its hands and control.</p> <p>14. The fund in dispute arises from the mining of coal from and under the said fifty acres of land by the Mercer Mining Company as aforesaid.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. That the coal contract between John Hosack and Hugh B. Wick of August 26,1863, effected a sale of the coal in place to the said Wick, his heirs and assigns.</p> <p>2. That after the execution of said contract by Hosack no interest in the minable coal remained in the grantor subject to be conveyed or devised by him as land.</p> <p>3. That the devise of fifty acres by John Hosack to his daughter Clarissa in the third paragraph of his will did not vest in her the underlying coal, nor any interest in the coal contract with Hugh B. Wick, nor any interest in the royalty contracted for in said contract.</p> <p>4. That the title to said fifty acres of land vested in said Clarissa by the devise aforesaid having by divers conveyances become vested in John T. Crill, the said Crill’s title rises no higher than its source and he has no larger estate in the land than said Clarissa had under said devise, and therefore by virtue of his deeds he obtained no estate in the minable coal, nor in the coal contract, nor in the royalty accruing therefrom.</p> <p>5. That the royalty stipulated for in said coal contract passed under the residuary clause of John Hosack’s will to his children share and share alike.</p> <p>6. That Jacob H. and W. W. Shilling holding assignments from the proper persons of three fifths of the royalty accrued and to accrue under said coal contract are entitled to have three fifths of the money in this case distributed to them, and the other two fifths to be distributed to Samuel Hosack, surviving executor of John Hosack, deceased, to be paid by him to the persons entitled thereto.</p> <p>Accordingly the court finds in favor of the plaintiffs, and assesses their damages at §572.66; and it is further ordered that the costs of this proceeding up to this date be paid by the plaintiffs according to their respective interests.</p> <p>OHDBRt</p> <p>And now June 26, 1900, the prothonotary is directed to enter judgment in favor of the plaintiffs, Samuel Hosack, executor of John Hosack, deceased, and Jacob H. Shilling, and W. W. Shilling, and against the defendant, the Mercer Mining Company, for the sum of §572.66, without costs.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 176, April T., 1901, by John C. Scott, from decree of O. C. Mercer Co., Oct. T., 1900, No. 12, overruling exceptions to auditor’s report in Estate of A. Henderson, deceased.</p> <p>Exceptions to auditor’s report.</p> <p>From the report of J. R. W. Baker, Esq., auditor, it appeared that John C. Scott claimed $488, for nursing the decedent for about thirty-two weeks prior to December 1, 1896. Scott hack been employed by decedent as a farm hand. The decedent died on January 27, 1897.</p> <p>The auditor found specifically the following fact:</p> <p>On December 1,1896, J. C. Scott quit, settled up at the said $15.00 per month, shook hands with the old gentleman and the family in general and made no claim for any extra compensation for nursing, now claimed for, and in reply to a question by A. Henderson: “Is everything settled up, or is everything satisfactory,” he assented, or said, “ Yes,” and never said a word about having an unpaid claim for nursing Mr. Henderson at that time, nor after, until some time after Mr. Henderson’s death, when he made a verbal claim to Jasper Henderson, one of the executors of the estate.</p> <p>Exceptions to the auditor’s report were overruled by the court in an opinion by Miller, P. J.</p> <p>Errors assigned were in overruling exceptions to auditor’s report.</p>

Appeal, No. 8, April T., 1901, by defendant, from judgment of C. P. Butler Co., Sept. T., 1899, No. 28, on verdict for plaintiff in case of H. L. Stepp v. James A. Croft. Trespass to recover damages for slander. Before Greer, P. J. At the trial it appeared that the plaintiff was a young physician, and the defendant a farmer.

Appeal, No. 23, April Term, 1901, by O. E. Aber, from order of C. P. Beaver Co., June Term, 1900, No. 66, refusing set-off in petition of O. E. Aber. Rule for setoff. Before Wilson, P. J. The facts are stated in tbe opinion of the Superior Court. Error assigned was the order discharging rule.

<p>Assignment — Attachment execution — Validity of assignment — Evidence.</p> <p>On a feigned issue to determine the validity of the assignment of certain shares of stock prior in date to an attachment, it is error for the court to refuse to permit the attaching creditors to show that in a prior attachment which had been dissolved by reason of the irregularity of the bond, the person claiming under the assignment liad caused his attorneys to enter an appearance for the defendant in the execution, the assignor, and claim for him the benefit of the exemption laws. The jury might draw an inference from such testimony that the assignment was not valid, and that .the defendant in the execution really owned the stock.</p>

<p>Appeal, No. 112, April T., 1901, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1899, No. 232, on verdict for plaintiff in case of Hugo Thuemler v. Hartford P. Brown.</p> <p>Assumpsit for breach of contract to sell land. Before Miller, P. J.</p> <p>At the trial it appeared that defendant on May 27, 1897, leased to plaintiff a tract of land in Rochester adjoining the tracks of the Pittsburg, Fort Wayne & Chicago Railroad Company for one year at the rental of 112.00 per month with the privilege to plaintiff to purchase the property for $3,700 on or before July 1,1899. The plaintiff went into possession and made improvements upon the land. On December 31,1898, plaintiff notified defendant that he would purchase the land. In .the mean time the defendant had conveyed to the railroad company a portion of the land by a deed reciting that the conveyance was subject to the rights of the lessee. He also took a bond to protect him from liability under his covenant to the lessee.</p> <p>The court under objection and exception excluded evidence offered by the defendant for the purpose of showing that the amount of the rental was fixed in contemplation of certain intended improvements to be put upon the property by the tenant. [6]</p> <p>The court admitted under objection and exception an offer to prove that the railroad company had given defendant a bond to secure him against liability under his contract with the company. [7]</p> <p>Defendant presented these points :</p> <p>1. Under all the evidence the verdict should be for the de-. fendant. Answer: Refused. [1]</p> <p>2. Under all the evidence the plaintiff is only entitled to recover nominal damages, if any at all. Answer: Refused, as explained in the general charge. [2]</p> <p>The court charged in part as follows :</p> <p>[You are therefore to determine from the evidence before you whether the damages Thuemler now claims in this suit were adjudicated and adjusted in the suit at No. 250 of December term, 1898, and heretofore tried before Judge Wilson. If they were, he cannot recover them again here; if they were not adjudicated then, that suit would not bar a recovery here, if otherwise he is entitled to recover damages.] [B]</p> <p>[If you find that these additions and improvements and expenses claimed to have been made by Thuemler were necessarily and properly incurred by him in his occupancy and use of the premises, and further that they were made and incurred on the faith of the contract to purchase the land, that Thuemler, in good faith, offered to purchase the premises mentioned in the article of agreement, and offered to pay and secure the consideration money in accordance with the terms of the agreement, and that Brown could not make the deed of conveyance in accordance with the contract in the agreement, for the reason that he had already conveyed a portion of the premises to the railroad company, we say to you that the plaintiff would be entitled to recover damages.] [4]</p> <p>[There is one item in this claim for removing machinery. If the defendant, Mr. Brown, was in default, and Mr. Thuemler had done all that he was required to do under the circumstances, and if under the instructions we have given you and under the evidence you find that he is entitled to damages, he would be entitled to reasonable damages in removing the machinery from that building. Whether he would be entitled to the amount that he claims here or not is a matter entirely for you. I don’t remember where he said he removed the materials to.] [5]</p> <p>Verdict and judgment for plaintiff for $800. Defendant appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them. (6, 7) Rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 150, April T., 1901, by plaintiff, from order of C. P. Beaver Co., Dee. T., 1900, No. 281, discharging rule for judgment for want of a sufficient affidavit of defense in case of Elmer W. Moore, Receiver of the Iron City Mutual Fire Insurance Company of Pittsburg, v. Philip Schafer.</p> <p>Assumpsit by the receiver of an insolvent mutual fire insurance company to recover assessments.</p> <p>The statement of claim set forth that the defendant’s policy had been canceled on October 19, 1897, but that the losses for which the assessments in suit had been made were all incurred prior to the cancelation of the policy.</p> <p>The defendant filed the following affidavit of defense :</p> <p>That he was not a member of the Iron City Mutual Fire Insurance Company during the period covered by the assessment in plaintiff’s statement, neither was he a member thereof for several years prior thereto; that, having learned that false and fraudulent statements had been made to him in order to induce him to take a policy in said company, he availed himself of the provision in said policy contained, and notified the company that he desired that the said policy should be canceled, and, in reply thereto, he was informed that his request would be complied with upon the payment of a certain assessment, which he then and there paid and received the company’s receipt therefor, and immediately returned to the said company the policy, which was by them accepted. All of which was several years prior to the time in which the plaintiff makes claim in his statement. That he never had any other policy in said company, other than the one which was canceled as aforesaid ; that he is not indebted to the said plaintiff in the sum of $492.98 or any other sum whatever.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Insurance — Procuring insurance — Contract—Damages—Negligence.</p> <p>A private individual or a partnership engaged in the business of procuring insurance for others is not an insurer. In the course of such a business, such individual or partnership is only bound to exercise diligence and good faith in the effort to procure insurance.</p> <p>In an action against a partnership engaged in the business of procuring insurance to recover damages for failure to insure certain household property, the case should not be submitted to the jury where the evidence shows that one of the defendants agreed on behalf of his firm to place insurance on plaintiff’s household goods, and received therefor the necessary premium; that on return to his office he discovered that the property was already covered by a policy on which a premium had not been paid ; that he immediately notified plaintiff of this fact, telling her that he would not take out a new policy, and that he had applied the money which he had received to the unpaid premium on the old policy; that thereafter plaintiff canceled the old policy with full knowledge that her effects were not insured, and that subsequently the property was destroyed by fire.</p> <p>Evidence — Letter—Mailing of letter — Presumption.</p> <p>When it is proved that a letter has been duly mailed and the person to whom it was addressed produces it at the trial in obedience to notice, he will, in the absence of evidence to the contrary, be presumed to have received it in the ordinary course of the transmission of the public mails.</p>

<p>Appeal, No. 4, March T., 1901, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1900, No. 281, on case stated in case of Mechanicsburg Borough v. John Koons.</p> <p>Case stated to determine the validity of an ordinance.</p> <p>The material portions of the case stated were as follows:</p> <p>The borough of Mechanicsburg, plaintiff, is a municipal corporation in the county of Cumberland, and is subject to the act of April 3, 1851.</p> <p>The defendant is the agent of the Grand Union Tea Company, a copartnership, having its chief place of business in the city of New York, and a branch store in the city of Harrisburg, Pa.</p> <p>The town council of the said borough of Mechanicsburg, on November 30, 1899, enacted the following ordinance:</p> <p>“ Ordinance, No. 130, relating to the canvassing from house to house, or on the streets, and selling, offering for sale, or soliciting orders for goods, wares, merchandise, etc., by samples or otherwise, and regulating the same.</p> <p>“Section 1. Be it enacted, etc. That from and after the passage of this ordinance every person canvassing from house to house, or on the public streets, in the borough of Mechanics-burg, Pa., for the purpose of selling, or soliciting orders for, by sample or otherwise, books, pictures, gentlemen’s shirts, furnishing goods, • or .clothing, teas, coffees, fruits, groceries to private houses by wholesale or retail, peddlers of fish, ware, and merchandise of any kind, and all transient dealers in furniture, wagons, carriages or sleighs, shall take out a license from the burgess, and pay the fees hereinafter required, before doing, or offering to do, any business as aforesaid in the borough;</p> <p>“ Provided, that the provisions of this ordinance shall not apply to persons selling by sample to manufacturers, or to licensed merchants, or to dealers residing or doing business in said borough, nor to persons selling their own farm produce.</p> <p>“ Sec. 2. The fees, for licenses under this ordinance, shall be as follows: For book or picture canvassers, one dollar ($1.00) per day; three dollars ($3.00) per week; eight dollars ($8.00) per month; twenty dollars ($20.00) for three months; sixty dollars ($60.00) per year.</p> <p>“ For agents selling, or canvassing, for gentlemen’s shirts, furnishing goods or clothing, by sample or otherwise, one dollar and fifty cents ($1.50) per day; four dollars ($4.00) per week; ten dollars ($10.00) per month; twenty-five dollars ($25.00) for.three months; seventy-five ($75.00) per year.</p> <p>“ For teas, coffees, groceries, fruits, wares and merchandise, by samples or otherwise, one dollar and fifty cents ($1.50) per day; four dollars ($4.00) per week; ten dollars ($10.00) per month; twenty-five dollars ($25.00) for three months; seventy-five ($75.00) per year.</p> <p>“ For fish peddlers, one dollar ($1.00) per day ; two dollars ($2.00) per week; four dollars ($4.00) per month; ten dollars ($10.00) for three months; twenty-five dollars ($25.00) per year.</p> <p>“ For furniture dealers and dealers in wagons, carriages and sleighs, one dollar and fifty cents ($1.50) per day; four dollars ($4.00) per week; ten dollars ($10.00) per month; twenty-five ($25.00) for three months; seventy-five dollars ($75.00) per year.</p> <p>“ And it is further provided, that no license shall be issued for a less period of time than one day.</p> <p>“ Sec. 8. If any person shall be guilty of violating any of the provisions of the foregoing ordinance, and shall be convicted for the same before the burgess, or any justice of the peace of this county, they shall be fined in any sum not less than five dollars ($5.00) nor more than ten dollars ($10.00) with all costs of suit, the same to be collected as similar debts are by law collected.</p> <p>“ Sec. 4. That all ordinances or parts of ordinances inconsistent herewith, except ordinance No. 31, passed March 8, 1875, be, and the same are hereby, repealed.</p> <p>“F. K. Ployer,</p> <p>“ President of Council.</p> <p>“ Attest:</p> <p>“ F. L. Coover, Secretary.</p> <p>“ Mechanicsburg, Pennsylvania, October 26, 1899.</p> <p>“ Approved by Council, November 30, 1899.”</p> <p>The defendant, as the agent of the Grand Union Tea Company, on January 10,1900, was canvassing from house to house in the borough of Mechanicsburg for the purpose of soliciting orders for tea, and in so doing exhibited samples of the tea offered for sale. After obtaining said orders it was the intention of the defendant to return the same to the Grand Union Tea Company’s branch store in the city of Harrisburg, the agent in charge of which was to complete the sale by delivering at some future time to the persons from whom orders were obtained, such quantities of tea as they had respectively ordered, through the defendant.</p> <p>The defendant had not, prior to the performance of the acts above set forth, obtained a license from the burgess of the aforesaid borough as required by the said ordinance, but had refused so to do.</p> <p>This action is brought for the recovery of the penalty of 15.00, for the violation of the said ordinance by the defendant for neglecting and refusing to take out a license as therein required.</p> <p>The court in an opinion by E. W. Biddle, P. J., entered judgment for defendant.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 20, March T., 1901, by defendant, from judgment of C. P. York Co., Oct. T., 1900, No. 25, on verdict for plaintiff in case of E. J. Sitler v. Spring Garden Mutual Fire Insurance Company of York County.</p> <p>Assumpsit on a policy of fire insurance. Before W. F. B. Stewart, J.</p> <p>At the trial it appeared that the plaintiff in his application for insurance had failed to disclose the fact that there were in existence four judgments against himself which were liens upon the property which he desired to have insured. The plaintiff claimed that the defendant had knowledge through its secretary, George W. Fry, of the existence of the judgments. It appeared that Fry was not only secretary of the insurance company, but also of the Spring Garden Building & Loan Association which owned three of the judgments. The court under objection and exception permitted Fry, when called as for cross-examination, to be examined as follows:</p> <p>“ Q. Did you know at that time that there was a judgment against the plaintiff for $500 in favor of the Spring Garden Building and Loan Association No. 1? A. Well, I knew that we had loaned some money to him, yes, sir, but whether I thought of it at that time, I don’t remember. Q. Did you know there was a judgment, No. Ill, January term, 1897, for $700? A. I don’t know that I thought of it at that time. Q. Then, Mr. Fry, you mean to say that at that time you knew it, but you can’t say whether or not you thought of it? A. Well, I know that we had made some loans to Mr. Sitler at different times, but whether or not I thought of it at the time this application came in, that I can’t say. Q. Did you know at the time the policy was issued, that there was a judgment against Sitler to the amount of $700 in favor of the same loan association? A. Well, I can’t remember all the loans, Mr. Black. I don’t know whether it was $700 or $600 or $500, unless I would look. Q. Do you remember that there was a judgment against him for $100 in favor of the same association of February 5, 1897? A. I can’t say that I knew it at that time, no, sir, at this particular time, when the application came in.</p> <p>Mr. Black: “ Q. Then, as I understand you, Mr. Fry, what you have testified goes to this extent in regard to this proposition ; in respect to these three loans of the building and loan association; that you had knowledge of those loans at the time this policy was issued, but you can’t say whether or not that knowledge was recalled to your mind at the time you accepted the policy ? A. I didn’t know that; if then at that time I knew that he had borrowed money from us, I didn’t know whether it was one, two, three or half a dozen times. Q. Did you know at that time — at the time the policy was issued — that there was a lien for the amount of $2,750 entered April 13,1898, against the plaintiff, and in favor of Kindig & Bros.? A. No,sir. Q. Did you know nothing of that lien? A. No, sir, not at that time. Q. When did you first know that lien ? A. About a year ago, I think; Mr. Sitler had made application for some money, and I looked him up, and I saw that lien of $2,700 and some dollars. Q. You looked him up and saw the lien in favor of his brother-in-law and also the lien in favor of the First National Bank ? A. If it was entered at that time, I did. Q. Can’t answer that question, Mr. Fry? A. I don’t know whether I did. Q. After you looked Mr. Sitler up, as you have just testified, and found that these liens existed against him, did the defendant company — ”</p> <p>The witness (interrupting) Mr. Black: “ I want to correct that; that was last January and not a year ago, was when I made the search. Q. Then do I understand you, Mr. Fry, to say that you found all the judgments which were entered against him at that time ? A. I think so, if I made a correct search. - Q. And this judgment in favor of the First National Bank was entered on May 20, 1899, and therefore you saw that? A. If it was entered, yes. Q. Now Mr. Fry, after you looked Mr. Sitler up, and found these liens entered against him, did the defendant company take any action looking to the cancellation or avoidance of his policy ? A. No, sir. Q. After that time the defendant company laid an assessment against his premium notes ? A. Yes, sir.”</p> <p>Mr. Wanner. ‘ Q. You have been asked about your knowledge of these liens against Mr. Sitler; the lien of the building association was originally entered according to the records March 19,1895. Can you tell us — can you say that you had any recollection at all of that loan at the time this application came into the company ? A. None whatever; if I had, I would have reported it to the board when the application was approved. Q. Can you say that you had any recollection at the time that you received that application and turned it over to the board, or at the time the policy was issued, of the other two liens of the building association against Mr. Sitler? A. No, I didn’t think of it at the time. Q. Had you at that time any knowledge at all about the Kindig judgment, at the time when the application was made? A. No, sir. Q. As I understand you, you found that out afterwards when you went to make a search? A. Yes, I found that out after this last January search. Q. You say you had no knowledge of the judgment of the First National Bank uuless you may have seen it when you made the search in January of this year? A. Not unless I saw it this last January. Q. Do you have any recollection now whether you did actually see it at that time or not ? A. I would not like to say for a certainty, no, sir. If I made a correct search I saw it. If I did not, I didn’t see it, that is all. Q. If you made a correct search and saw all the judgments, then you must have seen that; that is all you can say about it? A. Yes, sir. Q. State whether or not to your knowledge, any notice was given at any time to the insurance company of the existence of these liens against Mr. Sitler previous to this loss. A. No, sir” [13]</p> <p>The court refused to give binding instructions for defendant. [9]</p> <p>Verdict and judgment for plaintiff for $996.50. Defendant appealed.</p> <p>Errors assigned among others were (9) above instruction, quoting it. (13) Ruling on evidence, quoting the bill of exceptions.</p>

<p>Insurance — Fire insurance — Other insurance — Indorsement on policy— Notice — Waiver.</p> <p>Where other insurance is required to be indorsed upon the policy, and notice of such insurance is given to the insurer, or its authorized agent acting within the scope of his authority, and the contract is permitted without objection to stand uncanceled, although consent is not formally indorsed upon the policy, further compliance must be treated as waived.</p> <p>An assured who has covenanted that his contract shall be void in case of failure to give notice of other insurance, and has violated that covenant, is not entitled after a fire and a discovery that he had other insurance of which he had given no notice, to have his premium returned to him, nor can he allege that the company waived the condition of the policy as to other insurance, when, after the fire, it discovered the existence of other insurance, and did not return the premium.</p> <p>In an action upon a policy of fire insurance where the defense is the failure of the plaintiff to disclose in his application the existence of other insurance, the plaintiff cannot establish a waiver of the condition in the policy by proof that the agent of the company who took the application knew of the other insurance, without any offer to prove that the plaintiff himself had communicated to the agent the facts about the other insurance, or that the other insurance had in any way been referred to at the time the application was made out, or that the agent had acquired his knowledge of the other insurance through the transaction with the plaintiff.</p>

<p>Appeal, No. 37, April T., 1901, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1899, No. 303, on verdict for plaintiff in case of A. R. Braden v. J. W. Cook, A. Wayne Cook and Jacob H. Cook, partners as A. Cook •& Sons.</p> <p>Assumpsit to recover the value of three boats. Before Frazer, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court charged in part as follows :</p> <p>[Mr. Braden knew of the sale; there is no doubt about that. But did he know that these boats were levied on ? If, as Mr. Dewalt says, he was informed of the levy and was advised that he had better come there if he had any claim upon the boats and give notice on the day of the sale, it was his duty either to notify the sheriff before the sale, or to be present at the sale and notify bidders; and if he failed to do that, then by his own laches or negligence he cannot recover in this case, and your verdict must be for the defendants. But if he went there and was told that these boats were not levied upon, read the bill of sale and found that they were not on the bill of sale and acted upon that, he would be relieved from giving notice.] [2]</p> <p>Defendant’s points were among others as follows:</p> <p>4. Aside from the testimony of the vendees as to the acceptance of the property, acceptance may be inferred from acts of the buyer indicating ownership, as making use of the property, changing its condition, etc. In this case the fact that Blythe & Company put the boats in question upon the docks, had them repaired and paid for such repairs is strong evidence of their acceptance. Answer: The fourth point is refused and need not be read. [1]</p> <p>7. That under all the evidence the verdict must be for the defendants. Answer: That point is refused. It is for the jury to say whether or not the verdict shall be for the defendants under all the evidence. [3]</p>

<p>Appeal, No. 43, April T., 1901, by National Insurance Company, from decree of Q. S. Allegheny County, Sept. T., 1887, No. 7, dismissing petition in In re Public Road in Crescent Township.</p> <p>Petition for leave to file exceptions nunc pro tunc to report of reviewers.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing petition.</p>

<p>Appeal, No. 118, April T., 1901, by James A. Wilson, from decree of C. P. No. 2, Allegheny County, July T., 1900, No. 10, sustaining exceptions to auditor’s report in case of Gr. S. Keim, Agent, v. James McRoberts and Fidelity Title and Trust Company.</p> <p>Exceptions to report of M. C. Aclieson, Esq., auditor.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 58, April T., 1901, by plaintiff, from order of C. P. Fayette Co., March T., 1899, No. 291, making absolute a rule to open judgment in case of William Lockard v. Thomas J. Keyser.</p> <p>Rule to open judgment.</p> <p>The material portions of the petition for the rule were as follows:</p> <p>That at the time of the return of the writ issued in the above case, your petitioner was sick and unable to come from his home at Point Marion to Uniontown in said county; that shortly before the return day, he sent a letter to his attornejr, D. M. Hertzog, asking him to attend to the matter for your petitioner; that he is now informed by his said attorney, that because of his being engaged in other matters, he allowed the return day to pass without entering an appearance, and upon the second day after the return day thereof, to wit: February 23, 1899, the plaintiff by his attorney entered judgment against the petitioner for the sum of $830.65.</p> <p>Your petitioner further represents that he has a just and complete defense to the whole of plaintiff’s claims as follows :</p> <p>Your petitioner denies that he ever employed the said William Lockard in and about the management and control of his merchandising business for the period of twenty-one months and eighteen days from April 13, 1891, to February 1, 1893, as alleged in plaintiff’s statement, nor for any other period in such capacity. On the contrary, your petitioner admits that during the period mentioned in plaintiff’s statement, the said William Lockard and your petitioner were engaged in the merchandising business at Point Marion in said county, as partners, under the firm name, “ William Lockard & Company, ” that as such partners, they bought and sold goods, and that after the close of their said business, there has never been a full and complete settlement, but that if such settlement should be made, your petitioner believes that instead of his being indebted to the said Lockard, he, the said Lockard, would be indebted to your petitioner.</p> <p>Your petitioner further denies, that he ever paid said Lockard any sum either in goods or in cash, for any services as clerk in said business, but that the account referred to in plaintiff’s statement represents goods used by the said Lockard while he was engaged in the partnership aforesaid, and for which he should be charged on a final settlement of the said partnership affairs. Your petitioner further represents, that if the said Lockard received cash to the amount of $165, as alleged in his statement, the said cash must have been received by him from accounts due and owing by customers to the said partnership, and with which he should also be charged in said settlement.</p> <p>Your petitioner further represents that during a considerable portion of the time of which the said partnership was in existence, your petitioner was sick and unable to attend to the same, and the management thereof was left wholly in the hands of the said Lockard, and that the said Lockard, so mismanaged the said business as to incur a large indebtedness against the firm, which your petitioner has since been obliged to pay, and the losses sustained by your petitioner thereby, were largely in excess of all capital invested by said Lockard in the said concern.</p> <p>The defendant filed an answer which was in part as follows:</p> <p>The plaintiff denies that he from April 13, 1891, to Febru. ary 1, 1893, or at any other time, was engaged in the merchandising business at Point Marion or any other placeras a partner with Thomas J. Keyser, under the firm name of “ William Lockarel & Company, ” but admits that during the time he, the said William Lockard, was in the employ of the said Thomas J. Keyser, as clerk, to wit: from April 13,1891, to February 1,1893, that he did permit the said Thomas J. Keyser to use his name, in conducting his, the said defendant’s, merchandising business, and that the same was conducted under the name, “William Lockard & Company.”</p> <p>The court made absolute a rule to open judgment.</p> <p>jError assigned was the order of the court.</p>

<p>Mechanic's lien — Covenant against lien — Subcontractor.</p> <p>A covenant by a contractor in a building contract that he will not allow any mechanic’s lien, to be filed by a subcontractor, and that he will furnish a bond with surety to indemnify the owner against such liens, is not an absolute covenant that no subcontractor shall file a lien, but simply relates to the contractor’s own future course of dealing.</p> <p>In order to prevent a contractor or subcontractor from filing a lien there must be an express covenant against liens, or a covenant resulting as a necessary implication from the language employed; and the implied covenant, must so clearly appear that the mechanic or material-man can understand it without consulting a lawyer as to its legal effect.</p>

<p>Appeal, No. 141, April T., 1901, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1899, No. 193, on verdict for plaintiff in case of Charlotte S. King v. City of Allegheny.</p> <p>Appeal from jury of view. Before Frazer, J.</p> <p>At the trial it appeared that the city of Allegheny constructed a sewer off Perrysville avenue. Three days after the completion of the sewer Charlotte S. King, the owner of abutting property, had confirmed by the city councils a plan of lots made by her which showed a new street or roadway twenty-five feet wide, the outer line of which ran along and was identical with the inner line of Perrysville avenue. Mrs. King claimed that her property was not assessable for the sewer on Perrysville avenue inasmuch as it did not abut thereon.</p> <p>Defendant presented the following points:</p> <p>1. The property assessed, which fronts on a street marked Roadway in the city plan, is not liable to said assessment, as that street is upon a hill and lies between the property and Perrysville avenue. Answer: Refused at the time of thebeginning and completion of the sewer, the defendant’s property abutted on Perrysville avenue, the roadway not having been acknowledged by the city, until after the final completion of the sewer. [1]</p> <p>4. The properties will all be liable for sewers hereafter laid by the city upon the roadway, alleys or streets abutting and laid out as shown on city plan, Exhibit 8, or as other streets may be laid out to or along the property by the city. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $617.79. Defendant appealed.</p> <p>Errors assigned were (12) above instructions, quoting them.</p>

<p>Contracts — Sales—Sale by sample — Bricks.</p> <p>Wlien a purchaser defaults after a part of the goods had been delivered the vendor must prove Lis offer of performance of the contract according to its terms in order to sustain a claim for loss from the breach, but he is entitled to recover for the goods which had been accepted by the purchaser at the rate fixed by the contract without further proof than that the goods were tendered and accepted under the contract.</p> <p>After the actual reception of the goods and the lapse of a reasonable time to examine them and to ascertain their quality, the buyer will be deemed to have accepted them, unless he then promptly exercises his right to reject them.</p> <p>Where a person purchases bricks by sample, and receives and retains for several months two carloads without objection, and urges the delivery of a third carload, he cannot after the arrival of the third carload refuse to accept it, and refuse to pay for the other two carloads, because the color of the bricks, although uniform in the three shipments differed from the color of the sample exhibited at the time of the making of the contract.</p>

<p>Practice, O. P. — Pleading—Rule of court.</p> <p>Where a rule of court provides that “ material averments of fact” contained in a statement, “ not directly and specifically traversed and denied by the answer shall be taken as admitted,” an uncontradicted material averment is not only evidence, but is conclusive of the facts.</p> <p>Promissory notes — Bills of exchange — -Fraud.</p> <p>The purchaser of a draft is bound to look only to the terms of acceptance ; and when he has acted in good faith, he is not to be ¡u’ejudiced by the acts of the drawer.</p> <p>In an action by a bank against the acceptors of a draft, a letter from the acceptors to the bank directing that the bank should cash the drafts of the drawer on the defendants to such an amount as the latter should each week indicate to the bank by telegram or letter, is admissible to show that the bank had nothing to do with the consideration passing from the drawer to the defendants.</p> <p>Bill of exchange — Acceptance by telegram — Act of May 10,1881 , P. L. 17.</p> <p>A promise made through the medium of a telegram to pay a draft is the legal equivalent of an acceptance in writing required by the Act of May 10, 1881, P. L. 17.</p>

<p>Appeal, No. 80, April T., 1901, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1901, No. 145, on bill in equity in case of AnnaM. Richardson v. City of McKeesport.</p> <p>Bill in equity for an injunction.</p> <p>Shaeer, J., found the facts to be as follows:</p> <p>FINDINGS OF FACTS.</p> <p>1. Prior to the year 1873 there existed in the then borough of McKeesport a street called Huey street, of the width of' twenty feet. The commissioners appointed by virtue of an act of assembly approved May 24, 1873, P. L. of 1875, 379, fixed the width of said Pluey street at forty feet, the additional twenty feet being taken from the land on the west side of Huey street, as it was originally laid out.</p> <p>2. In 1882, or sometime prior thereto, the land on the west side of Huey street became the property of O. D. Delano, and in 1882 Delano laid out a plan of lots in which he shows Huey street of the width of forty feet, the westerly side being marked “ commissioners’ line of Huey street, ” and with a line drawn along the center of Huey street, joined by dotted lines to the line marked “ commissioners’ line, ” having the lots fronting on Huey street laid out to the commissioners’ line, only with distances corresponding. This plan was never recorded in the recorder’s office.</p> <p>3. In 1883, Delano built five houses on Huey street, among them being the house on the lot now of the plaintiff, and built a fence in front of the houses upon the commissioners’ line leaving the street of a width of forty feet.</p> <p>4. By deed dated January 4,1889, and duly recorded, O. D. Delano conveyed to the plaintiff lot No. 15 in said plan de-' scribed as fronting twenty feet on Huey street and extending back 124.73 to a twenty-foot alley, this distance from the alley being sufficient to carry the same to the middle line of Pluey street. The deed to her was made “ subject to the location of Huey street and the public rights upon and over said street.”</p> <p>5. There seems to have been, along the old line of Huey street, some posts, or other part of a fence, not removed; and these have remained from some time after 1883 up to the present, and during part of the time, from time to time, one or more boards were extended from the corner of plaintiff’s lot on Jerome street to this old fence line; but otherwise the street has been open to public travel, as it was opened by Delano, since 1883, and the twenty feet next to the lots as laid out has been, during that time, used by foot passengers. A part of said twenty feet added to the street by the commissioners’ line in front of the lots of the Delano plan, 100 feet northwardly from the plaintiff’s lot, has been for a long time covered by a wooden walk throughout its whole extent.</p> <p>CONCLUSIONS OB’ LAW.</p> <p>We are of opinion that under the facts of this case Delano must be deemed to have dedicated to the public use the twenty-foot strip added to Huey street by the commissioners’ report, and that the same has been accepted by user of the public; and that the conveyance by Delano, many years after the dedication so made by him, cannot affect the rights of the public.</p> <p>The bill should, therefore, be dismissed, with costs to be paid by the plaintiff.</p> <p>Errors assigned were the fourth finding of act, the conclusion of law, and the decree dismissing the bill.</p>

<p>Appeal, No. 131, April T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1900, on verdict for plaintiff, in case of William Dunlay and Ida Dunlay, his Wife, v. The United Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before MoClung, J.</p> <p>At the trial it appeared that on July 19, 1899, Ida Dunlay was injured by a stampede on one of defendants’ electric cars, resulting from the explosion of the controller of the car. The circumstances of the accident are stated at length in the opinion of the Superior Court.</p> <p>. The rule of the company referred to in the opinion was as follows:</p> <p>“ In case of car bucking, the first duty of motorman will be to ascertain which motor is causing the trouble. This can be ascertained by cutting out one motor at a time, and trying car for a short distance. If after this trial the trouble still remains, stop car and have the car following push disabled car to the shed.”</p> <p>The court charged in part as follows :</p> <p>[This rule that has been invoked here does not seem, under the evidence in this ease, to have been enacted for the safety of the passengers from any direct injury by an explosion of this sort, and the rule probably has not much effect excepting insofar as it confirms the assertion of the motorman that this bucking or thumping indicates a danger of some occurrence of this sort, some explosion or flash in the controller.] [1]</p> <p>[Now, you will recollect that the plaintiff’s witnesses say that there was this grinding and thumping noise which is called bucking, and I believe the motorman himself says that that indicates that there is likely to be an explosion in the controller.] [2]</p> <p>1. That under all the evidence in the case, the verdict must be for the defendant. Answer : Refused. [8]</p> <p>4. Even if the jury believe that the motorman jumped back into the car to avoid the flame, as there is no evidence that he pushed Mrs. Ida Dunlay off the car or touched her, there could be no recovery in this case. Answer: This is refused. Even if he did not push her off, if he, by his action, created a panic, and that panic was such that this was a natural and proximate result of it, then the company might still be liable. [4]</p> <p>Verdict and judgment for plaintiff for $3,600. Défendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

Appeal, No. 165, April T., 1901, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1900, No. 168, on verdict for defendant in case of F. T. Jackson and W. J. Fulton, trading as Jackson & Fulton, v. United Traction Company. Trespass to recover for the loss of a horse and damages to a wagon. Before Brown, J. The facts are stated in the opinion of the Superior Court. The court gave binding instructions for defendant. Verdict and judgment for defendant.

<p>Appeal, No. 164, April T., 1901, by defendant, from decree of C. P. No 2, Allegheny Co., Oct. T., 1900, No. 671, on bill in equity in case of J. B. Corey v. The Borough of Edgewood.</p> <p>Bill in equity for an injunction.</p> <p>Schafer, J., found the facts to be as follows:</p> <p>The bill is for an injunction to restrain further interference by defendant with railroad tracks which were in the possession and use of the plaintiff across a street of defendant borough, and to require the defendant to restore such parts of plaintiff’s tracks as it has already torn up.</p> <p>FINDINGS OF FACT.</p> <p>1. For some years before 1882 the firms of Shoenberger & Company, Dickson, Stewart & Company and C. H. Armstrong were owners of coal mines in Wilkins and Sterrett townships, in Allegheny county, called the Hampton coal mines, in the following proportions: Shoenberger & Company, twenty-three sixty-thirds; Dickson, Stewart & Company, twenty-three sixty-thirds; C. H. Armstrong, seventeen sixty-thirds.</p> <p>2. These parties procured a charter for a railroad company called the Edgewood Railroad Company and laid out and constructed on the ground a railroad from the Pennsylvania Railroad to the Hampton coal mines, a distance of less than a mile, over and across the lands of the Western Pennsylvania Institution for the Deaf and' Dumb, and of others. The Edgewood Railroad Company, by proceedings which were reported in the Edgewood Railroad Company’s Appeal, 79 Pa. 257, was enjoined from maintaining or operating the road over the lands of the deaf and dumb institution, as being trespassers thereon.</p> <p>8. After beginning a proceeding under the lateral railroad law, afterwards declared invalid by the Supreme Court in the case of the Pittsburg National Bank of Commerce v. Shoenberger et al., 111 Pa. 95, and while that proceeding was pending, the above named persons and firms purchased the lands of the deaf and dumb institution, over which the track was laid in September, 1882, taking the deed for the same in the name of John Z. Speer. This purchase was made by Mr. Speer under the -direction of the owners of the coal mines, in writing, dated November 9, 1881, whereby he was authorized to make the best arrangement possible, in his judgment, with the owners for a permanent right of way for the Edgewood Railroad Company.</p> <p>4. In the year 1888 proceedings were begun, for the incorporation of the borough of Edgewood, the place in question being within the limits of the borough, and in November, 1888, a decree of incorporation was entered, which was confirmed by the Supreme Court in In the Matter of the Incorporation of the Borough of Edgewood, 130 Pa. 348, and the decree was thereupon recorded in the recorder’s office. The petition for the incorporation of the borough has not been recorded.</p> <p>5. On July 10,1890, John Z. Speer, by direction of his cestuis que trustent, conveyed the land so held by him to one John McIntosh, the deed containing the following reservation and exception: “Reserving therefrom and thereout the right-of-way of the railroad now upon said land, twenty-eight (28) feet wide, with a double track through, over and upon said land, as said railroad is now located upon said land, so that said right-of-way shall be reserved to the said John Z. Speer, his heirs and assigns, forever. ” Which exception refers to the right-of-way and railroad track in question in this case.</p> <p>6. There is in fact a street, laid out and open of the width of fifty feet, called Walnut street, which crosses the right of way in question at the point where the railroad track was torn up, which is about 150 feet from the Pennsylvania Railroad, but it does not definitely appear when or how such street was laid out. It did not exist at the time of. Speer’s conveyance to McIntosh.</p> <p>7. On October 17,1899, the “ Hampton coal mines ” being the persons and firms above named, as partners or cotenants, assigned in writing (Exhibit No. 3) to J. B. Corey, the plaintiff, for the consideration of $3,100, all the rails, ties, etc., constituting the coal railroad from the Hampton coal mines, and the locomotives, cars and other items of personal property enumerated, and their interests in certain leaseholds.</p> <p>8. On October 27, 1899, in consideration of the above purchase of $1.00, Shoenberger & Company, and Dickson, Stewart & Company, by writing, Exhibit No. 2, granted to the plaintiff all their interests in the right of way reserved in the deed of Speer to McIntosh, above mentioned.</p> <p>9. From the Pennsylvania Railroad to a street called Coal street, a distance of 852 feet, the railroad tracks continued upon the ground and were used up until the time of the grievance complained of. Beyond Coal street the whole of the road to the Hampton coal mines, a distance of over half a mile, was torn up and abandoned, and largely occupied by the adjoining owners of property, and crossed by various streets of the borough of Wilkinsburg at different grades.</p> <p>10. The land sold by Speer to McIntosh, upon which the reservation of the railroad was made, does not extend to the Pennsylvania Railroad, and the railroad is laid between the Pennsylvania Railroad and the land in question upon lands now owned by Elliot Ramsey and others, upon a lease made January 31,1887, between the then owners of the land and Shoenberger & Company, and the other owners of the railroad, “ for the term-of fifteen years from the date hereof, or until said coal be all mined and exhausted; provided the same be done within the said period of fifteen years, which is the utmost duration of this lease.”</p> <p>11. The use by the plaintiff of that part of the track, or switch, lying beyond Walnut street from the Pennsylvania railroad was principally that of letting it out to a lumber merchant and a few others for the removal of cars loaded with lumher and other merchandise to point or at near Coal street, and the income derived by him from this source was about $30.00 per month. No locomotive was used on the railroad track, but the cars were moved by horses.</p> <p>12. On October 27,1899, the council of the borough of Edge-wood passed an ordinance, which was afterwards approved by the burgess, authorizing the grading, paving and curbing of Walnut street. This ordinance was duly advertised, and was entered at length in the minute book of the council of the borough of Edgewood, but was not copied into an ordinance book and there certified to by the burgess. Under this ordinance the street was graded, the grade at the right of way in question being raised about three feet above the former level. The street was paved at that grade, and it was in the process of raising the grade and paving the street that the railroad track, where it crossed the street, was torn up. The difference of grade between the railroad track as now laid at each side of the street, and the street itself is about three feet.</p> <p>The court entered the following decree :</p> <p>And now, April 4, 1901, this cause came on to be heard at this term and case argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz:</p> <p>1. That the defendant be enjoined and restrained from interfering with the said railroad siding and the tracks thereof, and from obstructing the plaintiff’s right of way, and that the plaintiff shall be permitted to reconstruct the same over and across the said Walnut street in said borough at the present grade of the said Walnut street, without prejudice to the right of the plaintiff to make application to the court hereafter for the reconstruction of the said siding at that point at a lower grade than the present grade of said Walnut street.</p> <p>2. That the damages of the plaintiff arising from the defendant’s acts herein complained of are not adjudicated, and this decree is without prejudice to the said plaintiff’s right to recover them in any appropriate proceeding.</p> <p>3. That defendant pay the costs.</p> <p>Error assigned among others was the de ree of the court.</p>

Appeal, No. 173, April T., 1901, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1900, No. 671, on bill in equity in case of J. B. Corey v. Borough of Edgewood. Bill in equity for an injunction. The facts appear in the report of Corey v. Edgewood Borough (No. 1), ante, p. 216. Errors assigned among others were (11) in not allowing plaintiff to reconstruct the siding at the former grade.

<p>Appeal, No. 171, April T., 1901, by plaintiff, from judgment óf C. P. No. 1, Allegheny Co., June T., 1900, No. 275, on verdict for defendant in case of Sarah E. Rhodes v. S. O. Rhodes.</p> <p>Assumpsit to recover money entrusted to another for safe keeping. Before Brown, J.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant, on the ground that plaintiff was barred by the proceedings in the orphans’ court.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeals — Assignments of error — Exception to admission of evidence.</p> <p>The Superior Court will not consider an assignment of error to the admission of evidence, where no exception to the admission of the evidence appears upon the record.</p> <p>Waters — Diversion ofzvaters — Loss of profits.</p> <p>Loss of profits in a business cannot be considered in a suit to recover damages for injuries sustained by reason of the diversion of water from its natural course so as to obstruct a street.</p> <p>In an action to recover damages for injuries sustained by the diversion of water, the court charged “ the inconvenience of the dampness may possibly have had some effect upon his (plaintiff’s) business. If so it would be an element of damage.” There was no evidence whatever that the plaintiff lost patronage, or sustained any loss in his business by reason of the dampness of his premises. Meld, that the instruction was reversible error.</p> <p>Railroads — Liability for defective sewer.</p> <p>Where a railroad company takes possession of a railroad built by another company, and there is under the railroad a defective sewer, the company will be responsible for the defective sewer after it takes possession.</p>

Appeal, No. 21, April T., 1901, by Burgess and Town Council of Kittanning Borough, from order of C. P. Armstrong Co., March T., 1899, No. 51, sustaining exr ceptions to report of viewers in the matter of Queen Street. Exceptions to report of viewers.

Appeal, No. 38, May T., 1901, by plaintiff, from judgment of C. P. Butler Co., May T., 1901, No. 96, on verdict for defendant in case of Samuel Beam v. Edward Gardner. Ejectment for 175 acres of land in Washington township. Before Greer, J. At the trial it appeared that plaintiff claimed title as purchaser in partition proceedings. The land belonged to the heirs of James Gardner, who did not accept the allotments.

<p>Appeal, No. 147, April T., 1901, by Joseph Arthurs, from order of C. P. Lawrence Co., March T., 1899, No. 12, refusing decree to open dissolution in In re Application of New Castle Wire Nail Company.</p> <p>Petition to open decree of dissolution.</p> <p>The petition was as follows:</p> <p>The petition of Joseph Arthurs respectfully represents:</p> <p>That the New Castle Wire Nail Company did on February 17, 1899, present its application to your honorable court for a decree of dissolution of said corporation; that on February 20, 1899, the following decree of dissolution was made:</p> <p>“ And now, this 20th day of February, A. D. 1899, the petition of the New Castle Wire Nail Company for a decree of dissolution of the said corporation and the approval of the accounts of the-directors thereof having been duly-presented, arid proof having been made that notice of such application has been'given by publication according to law, and it appearing by the ptoper certificates of the Auditor General, State 'Treasurer, and Attorney General, filed, that all taxes due the Commonwealth of Pennsylvania have been paid, and it further appearing that the prayer of the said petition may be granted without prejudice to the public welfare of the' interests of the incorporators, it is on motion of D. B. & L. T. Kurtz, Esqs., for petitioners, ordered and decreed that the accounts of the-directors of the said corporation, filed "with the petition aforesaid, be and the same are approved and confirmed, and that the said corporation be and the same is hereby dissolved, and all and singular its powers, franchises and privileges, be and the same are hereby extinguished and determined. Provided, that this decree shall not go into effect until a certified copy thereof be filed and recorded in the office of the Secretary of the Commonwealth.</p> <p>“ By the Court,</p> <p>“W. D. Wallace, P. J.”</p> <p>That on the same day of the .filing of said decree a statement was filed, signed: “ New Castle Wire Nail Company, Edward King, Vice President,” as follows: “ Thé New Castle Wire Nail Company has no debts. There is due the New Castle Wire Nail Company on one account sixteen hundred and seventy-eight dollars and eighty-three cents ($1,678.88).” . .•</p> <p>Your petitioner further represents: That on October 00,1895, he brought a suit in action of trespass for damages for personal injuries to your petitioner, against the New Castle Wire Nail Company, in the court of common pleas of Lawrerice county, at No. 38, December term, 1895 ; that a summons was regularly issued and served on the New Castle Wire Nail Company; that said suit was regularly at issue.</p> <p>Statement of plaintiff’s claim filed, appearance of the defendant by attorney and plea of not guilty entered by attorneys for defendant in said suit. That on October 18,1897, said case was put on the trial list for this trial at'November court, 1897, and continued. • .</p> <p>That your petitioner is a resident of Beaver county, Pennsylvania ; that he had no knowledge whatsoever, of the. said-application for dissolution of said corporation; that his said suit was pending in your said court at the time of said application ; that the statement in writing filed in your said court on the date of making said decree, that said corporation had no debts, was not true in fact, as it well knew of your petitioner’s .claim; that said application for dissolution was without express notice to your petitioner, and without .calling the court’s attention to said pending suit, was a fraud on your petitioner and misled the court into making said decree; that the business of said corporation was not closed and settled at the time of its said application for dissolution, and that the alleged settlement of its accounts was without the knowledge of your petitioner, and does not settle all its debts and liabilities.</p> <p>Wherefore, he prays that said decree of dissolution may be opened, set aside and reversed, and that your peititioner may be permitted to file exceptions and objections to such decree being made, and he will ever pray, etc.</p> <p>The answer averred, inter alia, that at the time the petition for dissolution was presented, and the decree made, the attorney of record for Joseph Arthurs was in court, and made no objection to the granting of said decree.</p> <p>The court discharged the rule to show cause.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 94, April T., 1901, by defendant, from judgment of'C. P. Fayette Co., Sept. T., 1898, No. .242,'on verdict for plaintiff, in case of Adley C.'McCune v. Noah Scott. Assumpsit for a breach of general warranty.

<p>Appeal, No. 106, April T., 1901, by defendant from judgment of C. P. Erie Co., Feb. T., 1899, No. 31, on trial by the court without a jury in case of City of Corry v. Corry Chair Company.</p> <p>Scire facias sur municipal lien for a sewer.</p> <p>The title of the ordinance under which the sewer was authorized was as follows:</p> <p>“ Ordinance No. 380.</p> <p>“Authorizing the construction of a sewer on East Washington street and certain portions of Maple avenue, Park street and Wright street, and providing for the payment of the cost of the same.”</p> <p>The testimony showed that the ordinance was not based upon any petition of property owners, nor were notices of its passage posted.</p> <p>Walling, P. J., found other facts to be as follows:</p> <p>3. That above ordinance was passed at an adjourned meeting of council of said city held on August 22, 1894, at which a majority, but not all of the members of the city council were present, at which meeting five ordinances, for the construction of different sewers, including the above ordinance, were read on first reading; and then upon motion the rules were suspended and the ordinance adopted finally, by the unanimous vote of the council. The official record of said meeting, so far as relates to the matter in controversy, being as follows:</p> <p>“Wednesday, August 22, 1894: Adjourned meeting. In the absence of the mayor, the clerk called the meeting to order. Present at roll call, Messrs. Braken, Edwards, Farnham, Halter, Keleher, Kenley, Laurie, Murray, McKenzie and Mortz. On motion Mr. Braken was made chairman. Five ordinances providing for the construction of the South Center street, Park Place street, East Washington street, Main and Concord streets, and North Center street systems of lateral sewers, were read on first reading. Upon motion the rules were suspended and the ordinances adopted finally, by the unanimous vote of the council.”</p> <p>Afterwards, on September 3,1894, a resolution was passed by council, directing the ordinance committee to draft an ordinance repealing all lateral sewer ordinances and laws ; but so far as appears no such ordinance was ever drawn or presented to council, and no further action was taken thereon.</p> <p>4. Pursuant to said ordinance, approved August 30, 1894, the city authorities advertised for bids for the construction of said sewer, and as the bid submitted by Jones & Sullivan appeared to be the lowest, that bid was accepted by the city, but no contract was executed, and some time thereafter said Jones &• Sullivan declined to enter into contract in accordance with said bid and were released from the same by the city, and thereafter the city, without asking for new bids, awarded the contract to the Barlow Hardware Company for the construction of said sewer.</p> <p>Of the original bids the Barlow Hardware Company appear to have been the lowest, after the bid of J'ones & Sullivan had been withdrawn. The said Barlow Hardware Company entered into contract with the city for the construction of said sewer, and proceeded to complete the same, which sewer, so built, was afterwards accepted by the city of Corry.</p> <p>5. That said sewer was not petitioned for by a majority of the property owners, and no hand bills were posted in conspicuous places along the line of the proposed improvement, as required by the 10th section of Act of May 16,1891, P. L. 79.</p> <p>6. That at No. 102 of November term, 1894 of this court, said city petitioned for the appointment of viewers to assess benefits, etc., on account of said sewer. This court then appointed three viewers, who proceeded to the discharge of their duties, and filed a report in court on January 14,1895, to which exceptions were filed by above defendant and others, and on June 1,1895, said report was referred back to the viewers, with the opinion of this court, giving instructions as to proper procedure, etc.</p> <p>The viewers proceeded to the further discharge of their duties, of which defendant had due and timely notice according to law, and the viewers also prepared a new and detailed report, in which they assessed benefits against numerous properties on account of said sewer, including a benefit assessment of $584.45 against the defendant. And in the schedule of said report the property of above defendant, abutting 742 feet on the south side of said Washington street, was duly described. The proceedings of the viewers fully appear in said second report.</p> <p>After said report and schedule were prepared the viewers gave due notice, by publication and also personally on the property owners, including the said Cony Chair Company, fixing a time when said viewers would hold a meeting in the council room of the city of Corry, “ when and where they would exhibit said schedule and hear exception thereto, together with such evidence as any person interested might see fit to offer, ” etc., but no exceptions were filed with the viewers, and over thirty days after said meeting, to wit: on October 28, 1895, the report of said viewers, to which was attached the schedule, notices, etc., was presented in open court and directed to be filed and confirmed nisi. And on December 17,1895, on motion of the city solicitor, no exception having been filed, the said report and assessment of the viewers was confirmed finally by this court.</p> <p>. 7. In copying the above quoted ordinance into the original ordinance book a small part of said ordinance was accidentally omitted, but the entire ordinance appears afterwards to have been correctly copied into the new ordinance book, and the part omitted refers to a sewer upon another street, and so far as appears has no bearing upon the question at issue.</p> <p>8. The municipal lien upon which above sci. fa. was issued was duly filed in this court on May 27,1896, and within six months of the time of final confirmation.</p> <p>9. The sewer in controversy in this case was constructed and proceedings had, under the said act of assembly, approved May 16, 1891, P. L. 69, entitled “An act creating and regulating municipal liens and proceedings thereon.”</p> <p>The court entered judgment for the plaintiff for 1584.45. Defendant appealed.</p> <p>Error assigned among others was in entering judgment for plaintiff.</p>

<p>Set-off — Partnership—Actions.</p> <p>Two or more sued jointly may set off a debt due to one of them, and a defendant sued individually may with the consent of his copartners set off a debt due to the partnership, and a defendant sued individually may set off a debt due to him as sole surviving partner.</p> <p>It is no objection to the set-off of a debt that the defendant had commenced an action for the recovery of that debt before the plaintiff’s action was brought.</p> <p>Where the surviving partner of a firm composed of two persons engages one of their customers who was indebted to them, to work for a new firm composed of the surviving partner, the widow and sole heir of the deceased partner, the new firm may set off the employee’s debt to the old firm against his claim against the new firm.</p>

<p>Appeal, No. 98, April T., 1901, by plaintiff, from judgment of C. P. Warren Co., Dec. T., 1898, No. 57, on verdict for defendants in case of W. C. Norris v. Phcebe A. Dalrymple and A. S. Dalrymple.</p> <p>Ejectment for a strip of land two and seven tenths feet wide in the borough of Warren.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Under objection and exception A. S. Dalrymple was permitted to testify as to the boundary line pointed out to him by Stephen Carver. [1]</p> <p>Plaintiff’s points were as follows :</p> <p>3. If Carver and Dalrymple in locating the division line between them at the time Dalrymple purchased from Carver, by mutual mistake took a line two and seven tenths feet east of the east line of lots Nos. 104 and 105 as the true east line of the land so purchased, when in fact the true east line of said lots, and the true east line of the land so purchased was not as located by them, but was two and seven tenths feet further west, then such mistake in locating the division line was not binding upon the parties, but is subject to correction in accordance with the actual true location of the eastern boundary of the land described in the deeds given in evidence. Answer: We answer this by saying that if Carver at the time he sold the land to A. S. Dalrymple, and made a deed to him, went upon the ground, and pointed out the southeast corner of lot No. 105 on the ground to him, thus locating the boundaries named in his deed, he and his grantees are bound by it, and that location is binding upon the parties to this suit. [3]</p> <p>4. The plaintiff being the owner of the land purchased from Carver by A. S. Dalrymple, is entitled to all the land called for in said deed, unless the defendant establishes, by clear, precise and indubitable proof, that through fraud or mistake, more land was called for in said deed than was intended. Answer : This is affirmed, but we call your attention to the claims of the respective parties. If the line is located where Mr. Dalrymple testifies that Mr. Carver located it, and pointed it out to him, then the plaintiff in this case gets all the land he is entitled to, namely sixty feet, fronting on Fifth street. The only difference is that his eastern line is two and seven tenths feet farther east than is shown on the map, and that he now claims. [4]</p> <p>5. If the jury find that there was no fraud or mistake in the quantity of land called for in the Carver deed, but only a mistake as to the location of the same on the ground, then in such case the true location would govern, and the plaintiff is entitled to recover the land in dispute provided it is included in the land called for in said deed. Answer: We answer this in the affirmative, if Mr. Carver did make a mistake. But we say to you, as we have said in the general charge, that if he pointed out tó his grantee that line on the ground, and that line was pointed out to Dalrymple on the ground, he thus located the line of his deed, and he is bound by it, and all those claiming under him. [5]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions. (3-5) Above instructions, quoting them.</p>

<p>Appeal, No. 138, April T., 1901, by Wilkins Township School District, from order of Q. S. Allegheny County, March T., 1899, No. 1, dismissing petition for an allowance for real estate in the matter of the adjustment of indebtedness between the school district of the township of Wilkins and the school district of the borough of Turtle Creek.</p> <p>Petition for an order directing the school district of the borough of Turtle Creek to make compensation for a schoolhouse situated in territory annexed to the borough, but formerly attached to the school district of W ilkins township.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Mechanic's lien — New building — Alteration and repair — Province of court and jury — Expert testimony.</p> <p>On a scire facias sur mechanic’s lien where the question at issue, is whether a structure is a new building, or an alteration of an old one, expert testimony is admissible to establish whether any part of the work or material is old or new, but where there is no dispute as to what is old or new, the question being one of law, the opinions of contractors are not competent to be considered in determining the question of the character of the operation as a whole.</p> <p>Change in the exterior of the building is an important element in determining newness of structure, but it is the change which indicates and results from newness of structure in the main mass of the building. The question is not to be determined from mere surface indications. The court must consider not only the changed appearance but the cause of it.</p> <p>©n a scire facias sur mechanic’s lien filed by a material man against a structure claimed to be a new structure, it appeared that the building operation in question involved changes in an old two-story frame dwelling house. A new roof having a greater pitch than the old was put on : new weather boarding was nailed on over the old upon the entire building ; the old window frames and sash were taken out and new put in the same places ; a bay window was built, projecting from one of the rooms on the first floor, and a small china closet projecting three feet from the dining room on the other side of the house ; a new front door was put on in place of the old, and a small vestibule was built projecting from it ; an old porch was torn away at the front of the house and a larger one built in its place ; these were the only changes in the exterior walls of the house, and the foundation lines remained unchanged. In the interior, some earth was excavated within the lines of the foundation walls and the cellar thus enlarged ; the attic under the new steep roof was divided into two rooms and a bathroom; the position of one partition on the first floor was changed so as to transform a narrow hall into a reception hall, the space being taken from one of the rooms, and a new staircase was built in the reception hall ; hard wood floors were laid down over the old floors in all of the rooms of the first story, except the kitchen ; and one chimney was torn down and rebuilt. Held, that the case was one of alteration and repair, and not of a new structure.</p>

<p>Appeal, No. 160, April T., 1901, by Margaret Harrison, from decree of O. C. Mercer Co., Oct. T., 1898, No. 18, removing executor of the Estate of Bridget E. Marley.</p> <p>Petition by executor for his own removal.</p> <p>Miller, P. J., filed the following opinion:</p> <p>On January 7, 1901, the petition of Rev. B. Donahoe, as executor of Bridget E. Marley, deceased, was presented, setting forth, inter alia, that since filing his account as executor he has made certain disbursements of interest and costs, leaving a balance in his hands and due the estate, of $2,260.16; that Margaret Harrison, a sister of decedent, and to whom the interest on the funds of the estate are payable during her lifetime, claims that Saint Michael’s Church, of Greenville, owes the estate of Bridget E. Marley, deceased, the sum of $1,000 ; that to test this question it would be necessary that a suit be entered against St. Michael’s Church; that the said petitioner, since he qualified as executor, has removed from Mercer county to Venango county, and cannot give that attention to said estate that it requires, and he therefore asks the court to discharge him from his trust.</p> <p>On this petition a rule to show cause why Rev. B. Donahue should not be discharged from his trust was granted, returnable on the third Monday of January, 1901.</p> <p>On January 21, 1901, Margaret Harrison filed an answer to the petition of Rev. B. Donahoe, averring, inter alia, as follows :</p> <p>1. That there was a certain note belonging to said decedent in her lifetime in the sum of $1,000, and that she had reason to believe that the said note was the individual note of the said Rev. B. Donahoe; that she was informed that the same was signed by him, and that although it was his duty to include the same in his appraisement, as part of said estate and to charge himself therewith as executor, he had wholly neglected and refused to do so.</p> <p>2. That failing to account for the said $1,000, he is personally responsible to the said Margaret Harrison for her interest in said fund.</p> <p>3. That the petitioner does not charge himself with all the interest he should account for.</p> <p>4. That he does not charge himself with the said $1,000.</p> <p>5. That the item of $200 that the petitioner claims for expenses, and the item of $100 for counsel fees, are excessive and should be reduced.</p> <p>The issue raised in the answer by the first, second, third and fourth objections have already been adjudicated by this court in a proceeding at No. 51, January term, 1899, orphans’ court, so far as they relate to the accountant, Rev. B. Donahoe. The record and papers, including the report of S. R. Mason, Esq., auditor, at the said number and term; were offered in evidence in this proceeding.</p> <p>In the proceeding at No. 51, January term, 1899, Margaret Harrison presented her petition, inter alia, alleging:</p> <p>“ That there is also a fund of $1,000 and interest belonging to the said estate, being a note from Rev. B. Donahoe, which is not included in said account or inventory,” and praying the court to order Rev. B. Donahoe to pay to her the income on said $1,000.</p> <p>Mr. Mason, the auditor, took testimony on said petition and rule, and on November 20, 1900, filed his report in court, which was confirmed absolutely on December 1, 1900. In the report of the auditor, on the question of the $1,000 note, he found («) that a loan of $1,000 was made by Mrs. Marley in her lifetime to St. Michael’s Church, and a note taken therefor from the church, payable to Mrs. Marley; (5) that when the last instalment of interest was paid to Mrs. Marley by Rev. B. Donahoe, which was shortly before the death of Mrs. Marley, she told Rev. B. Donahoe that the note would never appear against the church; (c) that there was no evidence to show that the said note ever came into the hands of Rev. B. Donahoe since the death of Mrs. Marley.</p> <p>So far as Rev. B. Donahoe is personally concerned, this is an adjudication of the question.</p> <p>To collect this note it will be necessary to institute a suit against St. Michael’s Church. Rev. B. Donahoe, as executor, or personally, has done nothing to invalidate the collection of this claim. Under the facts as found by the auditor, the church cannot avail itself of the bar of the statute of limitations, even if it desired to do so. Rev. B. Donahoe has removed from the county. It would be expensive and inconvenient for him to give this suit the attention it should have. He has accounted for all the moneys of the estate in his hands. During the argument of the case we suggested that suit should be instituted against the church to determine its liability for the interest to Mrs. Harrison. The suit has, since the argument, been brought in the court of common pleas of Mercer county.</p> <p>So long as Mrs. Harrison lives there must be a trustee to invest and care for the funds of the estate and pay over the interest to her. It is to the interests of the estate that a trustee be appointed, if possible, who resides in Mercer county, and we are, therefore, of the opinion that the petition of Rev. B. Donahoe should be granted and that he should be discharged from the trust.</p> <p>The objection that his fees and the fees of the attorney are excessive, is without merit. The evidence clearly shows that Mrs. Harrison had put Rev. B. Donahoe to unnecessary expense. In the hearings before the auditor, Mr. Mason, some five or six continuances were obtained by Mrs. Harrison, or her attorney, at all of which Rev. B. Donahoe was present at considerable expense. In all there were nine hearings of a case at which there should not have been more than two. It was stated on the argument, and not denied by Mrs. Harrison, or her attorney, that when her interest fell due she would neither accept a check nor personally come after the money, compelling Rev. B. Donahoe to either take or send her the money in specie. This estate has been before the court several times at the instigation of Mrs. Harrison and, as it seems to the court, one purpose of it on the part of Mrs. Harrison was to annoy and vex Rev. B. Donahoe. So far as the court can observe from the hearings of the case, as well as from the evidence, Rev. B. Donahoe has acted in a spirit of fairness and integrity to all the parties involved.</p> <p>And now, Feburary 11, 1901, the rule to show cause why Rev. B. Donahoe, executor of Bridget Marley, deceased, should not be discharged from his trust, came on to be heard and was argued by counsel, and after and upon full consideration, and for the reasons set out at length in an opinion this day filed, the account of the executor, Rev. B. Donahoe, of his management of said estate since his former account, is confirmed; and said executor having, in accordance with the direction of the court, commenced an action of assumpsit in the court of common pleas of Mercer county in favor of the estate of Bridget Marley and against St. Michaels Church of Greenville, the said executor is discharged from his trust and from further liability on account thereof on his paying over to his successor, when appointed, the funds of the estate in his hands, $2,260.16. And John Savage is hereby appointed trustee to take charge of the funds of the said estate upon his filing bond, to be approved by the court, in the sum of $4,000.</p> <p>Error assigned was the decree of the court.</p>

<p>Oil and gas leases — Draining land — Duty to sink wells.</p> <p>It is an implied condition of every lease of land for the production of oil therefrom that when the existence of oil in paying quantities is made apparent, the lessee shall put down so many wells as may be reasonably necessary to secure the oil for the common advantage of both lessor and lessee ; but he is not bound to put down more wells than are reasonably necessary to obtain the oil of his lessor, nor to put down wells that will not be able to produce oil sufficient to justify the expenditure.</p> <p>Where a lessee drills one well on the leased premises, which yields from one to two and one half barrels per day, and he drills wells on various adjoining leaseholds which he owns, none of which, however, are good producing wells, and there is no evidence to show that he acted in bad faith in drilling these wells, or in failing to drill other wells on the lessor’s premises, he is not liable to account to the lessor for royalties on oil produced from wells on the adjoining leaseholds.</p>

<p>Appeal, No. 139, April T., 1901, by plaintiff, from judgment of C. P. Lawrence Co., March T., 1901, No. 109, on verdict for defendant on case stated in suit of County of Lawrence v. City of New Castle.</p> <p>Case stated to determine the liability for the support of children confined in the Morganza Reform School.</p> <p>The case stated was as follows :</p> <p>1. The defendant, the city of New Castle, is a municipal corporation, a city of the third class, and constitutes a poor district. That the legislature of the state of Pennsylvania duly passed an act entitled as follows : “ An act relative to the expense of maintaining children committed to the House of Refuge of Western Pennsylvania from the county of Lawrence. Section 1. Be it enacted, etc. That hereafter, in all cases where any child shall be committed to said House of Refuge from the county of Lawrence, whose parent or parents are of sufficient ability to pay the expense of keeping such child therein, such parent shall be liable by action of debt or assumpsit, to reimburse said county any expense said county shall have paid therefor; and in case the parent or parents of such child shall not be of sufficient ability to pay said expense, than the poor district within which said child has a last legal settlement, and in case such child has no legal settlement in said county, then the poor district in which said child was resident immediately before such commission, shall be liable by action of debt or assumpsit, to said county, for the amount paid by said county by reason thereof.”</p> <p>2. There has been sent and committed from the county of Lawrence to the said House of Refuge, now know as “ Morganza Reform School,” previous to April 28,1899, certain persons, the expenses for which the said county claims to be reimbursed by the city of New Castle; and it is agreed that the following persons were committed from the said county to the said reform school, and that they were maintained there for the respective number of days, and to the amount set respectively opposite the name of each person, to-wit:</p> <p>Wm. Custer, 538 days, cost of maintenance, $160.87</p> <p>Walter Dukes, 801 “ “ “ 283.37</p> <p>Ella Douglass, 272 “ “ “ 75.32</p> <p>Amount carried forward, $519.56</p> <p>Amount brought forward, $519.56</p> <p>Leonora Carson, 1024 days, cost of maintenance, 814.94</p> <p>Carry Flowers, 533 “ “ “ 137.57</p> <p>Roy Hunt, 590 “ “ “ 170.74</p> <p>Total, $1178.83</p> <p>And it is further agreed that the parents of the above named children are not of sufficient ability to pay the expenses.</p> <p>It is further agreed that the county of Lawrence has other claims against the said city for the keeping of persons committed to said reform school, which are not brought into this suit, but the same are excepted out of this cause without prejudice to the right of the county to bring suit for the same, in case this suit is decided in favor of the plaintiff.</p> <p>3. It is further agreed that the legislature of Pennsylvania, by an act approved April 28, 1899, being act No. 102, in the P. L. of 1899, page 127, duly passed the following act: “Be it enacted, etc. That so much. of section one of an act entitled ‘ An act relative to the expense of maintaining children committed to the House of Refuge of Western Pennsylvania from the countyof Lawrence,’ approved the seventeenth day of April Anno Domini, one thousand eight hundred and sixty-nine,” (being the latter part of said section,) which is as follows : “ And in case the parent or parents of such child shall not be of sufficient ability to pay said expense, then the poor district in which said child had a last legal settlement, and in case said child has no legal settlement in said county, then the poor district in which such child was resident immediately before such commission, shall be liable by action of debt or assumpsit to said county for the amount paid by said county by reason thereof be and the same is hereby repealed,” all of which will fully appear by reference to act No. 102, P. L. 1899, page 127, which is made part hereof.</p> <p>4. It is agreed that the city of New Castle would be liable for the aforesaid claim, had not the act No. 102, P. L. 1899, page 127, been passed; but it is contended by the city that since the passage of the latter act repealing the aforesaid portion of the act of 1869, the city is not liable for any maintenance, or for any moneys laid out by the county of Lawrence prior to the approval of the act of April 28, 1899, and that an action does not accrue to the plaintiff for the moneys mentioned in this case, and that the city is not liable therefor.</p> <p>5. Upon these facts the case is submitted to the court, and if the court be of the opinion that the city is liable for these moneys since the passage of the act No. 102, P. L. 1899, page 127, then judgment to be enteredfor the plaintiff for the amount of $1,178.88, with costs of suit, otherwise judgment to be entered for the defendant with costs of suit, each party reserving the right to any exceptions and the right of appeal to the Superior or Supreme Court as in other cases, and in the same manner as if this case had been tried by a jury.</p> <p>The court in an opinion by Wallace, P. J., entered judgment for defendant.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Building and loan associations — Expiration of charter — Corporations— Mortgage.</p> <p>Where the charter of a building and loan association has expired by-limitation, and no attempt is made to renew or extend the charter in the manner provided by the Act of April 29, 1874, sec. 40, P. L. 73, but a new corporation is formed with precisely the same name as the old corporation, the new corporation cannot sue on a mortgage given to the old corporation, by one who did not become a member of the new corporation, and this is the case, although the new corporation has the physical possession of the mortgage and other papers of the old corporation and occupies the same office.</p>

<p>Appeal, No. 45, Jan. T., 1901, by plaintiff from order of Q. S. Luzerne Co., June T., 1900, No. 312£, quashing indictment in case of Commonwealth v. M. H. Howells.</p> <p>Indictment for forging labels and wrappers.</p> <p>The indictment was as follows:</p> <p>“ The grand inquest of the commonwealth of Pennsylvania, inquiring for the county of Luzerne, upon their respective oaths and affirmations, do present that M. H. Howells, yoeman, late of said county, on February 26, in the year of our Lord A. D. 1900, at the county aforesaid, and within the jurisdiction of this court unlawfully did have in his possession certain printed labels and wrappers, a more particular description whereof is to the jurors unknown, usually affixed by the Peruna Drug Manufacturing Company, a corporation incorporated under the laws of the state of Ohio, to and used on the wares and merchandise to wit: patent medicines manufactured and sold by the company aforesaid, with intent to use the aforesaid labels and wrappers for the purpose of aiding and assisting him, the said Howells in vending the said goods, wares and merchandise in imitation of and intended to resemble and to be sold for the goods, wares and merchandise of the company aforesaid, contrary to the form of the act of the general assembly in such cases made and provided, and against the peace and dignity of the commonwealth of Pennsylvania. '</p> <p>“ And the grand inquest aforesaid, inquiring as aforesaid upon their respective oaths and affirmations, do further present that the said M. H. Howells, on the day and year aforesaid, at the county aforesaid and within the jurisdiction of this court, unlawfully did have in his possession a certain representation, similitude, copy and imitation of the private stamp, wrapper and label usually affixed by the drug company aforesaid to and used on the goods, wares and merchandise manufactured and sold by the company aforesaid, with intent to use the said stamp, labels and wrappers for the purpose of aiding and assisting him, the said Howells in vending in ways to the jurors unknown, goods, wares and merchandise in imitation of and intended to resemble and to be sold for the goods, wares and merchandise of the aforesaid Peruna Drug Manufacturing Company, contrary to the form of the act of general assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.”</p> <p>The defendant moved to quash the indictment for the following reasons:</p> <p>As to the first count.</p> <p>1. It does not charge an offense.</p> <p>This count does not assert that defendant used or intended to use the “ printed labels and wrappers ” in vending “ any goods, wares and merchandise in imitation of or intended to resemble and to be sold for the goods, wares and merchandise ” of the Peruna Drug Manufacturing Company, but asserts that these labels and wrappers were used to aid in selling the Peruna Drug Company’s own goods, wares and merchandise.</p> <p>The word “ said ” as used must refer to the only goods, wares and merchandise previously mentioned, namely those of said drug company.</p> <p>2. The goods, wares and merchandise must be definitely described and set forth.</p> <p>As to the second count.</p> <p>1. In order to come within the law; the indictment mnst allege that the “ representation, similitude, copy and imitation of the private stamp, wrapper, copy and label usually affixed by the said drug company to and used by such manufacturer on or in the sale of any goods, wares and merchandise.</p> <p>It alleges that these labels were used on goods, wares and merchandise manufactured and sold by the company.</p> <p>2. The goods, wares and merchandise must be specifically set forth. The indictment is therefore wholly bad for uncertainty.</p> <p>The court quashed the indictment.</p> <p>Error assigned was the order to quash the indictment.</p>

<p>Assignment for creditors — Sale—Bivesting of liens.</p> <p>Where real estate subject to the lien of two judgments and a mortgage, prior in date to a lien created by deed, is sold by an assignee for creditors under an order of court which sets out the judgments and the mortgage as the liens to be divested, and notice is given at the sale that the land will be sold subject to the lien created by deed, but free and discharged from all other liens, the two judgments and the mortgage will be divested, and the owners of the judgments and mortgage will be entitled to participate in the proceeds of the sale.</p>

<p>Appeal, No. 55, April T., 1901, by W. E. Menoher et al., from decree of O. C. Westmoreland Co., Feb. T., 1900, No. 1, refusing letters of administration d. b. n. c. t. a. in the estate of James Menoher, deceased.</p> <p>Appeal from register of wills, refusing to grant letters of administration d. b. n. c. t. a.</p> <p>Error assigned was the decree of the court dismissing appeal from register of wills.</p>

Appeal, No. 136, April T., 1901, by Rochester & Pittsburg Coal & Iron Company, from judgment of C. P. Jefferson Co., Nov. T., 1899, No. 97, on verdict for plaintiff in case of Theophilus Pantall v. Rochester & Pitts-burg Coal & Iron Company. Trespass to recover damages for subsidence of surface caused by alleged improper mining. Before Reed, P. J. The facts appear in the points reserved quoted in the opinion of the Superior Court. Verdict and judgment for plaintiff for $675.

Appeal, No. 34, April T., 1901, by Mary Weigel,'from order of C. P. No. 1; Allegheny Co., June T., 1900, No. 528, discharging Louis Doescher under the insolvency laws in the Petition of Louis Doescher. Petition for discharge under the insolvency laws.

Appeal, No. 87, April T., 1901, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1900, No. 22, refusing mandamus in case of Commonwealth ex rel. D. P. Smith v. B. A. Hitchens. Petition for mandamus. Error assigned was order refusing mandamus.

Appeal, No. 143, April T., 1901, by defendant, from order of C. P. Lawrence Co., June T., 1899, No. 77, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of City of New Castle v, John Rearic. Scire facias sur municipal lien. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 2, Oct. T., 1901, by plaintiff, from judgment of O. P. No. 1, Phila. Co., March T., 1900, No. 1299, on verdict for defendant in case of Jesse Gilbert and Albert E. Miller, Copartners, trading as Gilbert & Miller, v. Herman Price. Appeal from judgment of justice of the peace. Before Brégy, J. The facts appear by the opinion of the Superior Court. The court gave binding instructions for defendant. Verdict and judgment for defendant.

Appeal, No. 47, Oct. T., 1901, by defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1900, No. 913, discharging rule to open judgment in case of Patrick Duffy v. Samuel Kaufman and Julia Kaufman. Rule to open judgment. Error assigned was the order of the court.

Appeal, No. 89, Oct. T., 1901, by plaintiff, from decree of O. P. No. 1, Phila. Co., Dec T., 1900, No. 684, dismissing bill in equity, in case of William J. Gilmore v. The Times Publishing Company. Bill in equity for an injunction to enjoin the continuance of windows and openings in a wall. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing bill.

<p>Executors and administrators — Payment of award — Set-off.</p> <p>On a petition for an order to compel an administrator to pay the amount of an award, an answer is insufficient which avers that since the date of the award the administrator had paid to petitioner directly and on her account and at her request certain sums of money amounting in the aggregate to more than the amount of the award, without any averment that the petitioner had agreed that the money thus paid should be a payment and satisfaction of the award.</p>

Appeal, No. 275, Oct. T., 1901, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1900, No. 243, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Robert Tarlo v. Harry C. Schwerdfeger. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 96, Oct. T., 1901, by plaintiff, from judgmentof C. P. No. 4, Pbila. Co., June T., 1900, No. 557, on verdict for defendant in case of Robert Scott v. Charles T. Massey and David P. Meyerson. Replevin for a boiler. At the trial it appeared that on January 6,1900, Robert Scott sold and delivered to Charles T. Massey by parol sale a water heating boiler for a hotel.

Appeal, No. 5, March T., 1902, by •Lehmaster Warehouse Company, from decree of O. C. Franklin Co., dismissing exceptions to auditor’s report in Estate of Henry Scott, deceased. Exceptions to auditor’s report. From the record it appeared that Susan Scott was the widow and sole executrix of her husband, Henry Scott, appointed appraisers for her exemption. The appraisers, by their appraisement, set aside to the widow personal property to the amount of 166.10.

<p>Mechanic's lien — Contract—Question for court — Evidence.</p> <p>On the trial of a scire facias sur mechanic’s lien where the lien filed alleges an oral contract to furnish the labor and materials for a house at the current and market rates, binding instructions for the defendant will be sustained where it appears that the plaintiff admitted that at one time there had been a contract between him and defendant to build the house for a sum stated, and the evidence in the case and the inferences fairly to be drawn from the plaintiff’s own testimony show that the original contract to build the house for a sum stated had not been abrogated by the parties.</p> <p>In such a case where the defendant puts in a negative plea and by his affidavit of defense which is filed as special matter, and by his additional pleas alleges the special contract which is denied by the plaintiff in his replication, the plea of tender and the payment of money into court by the defendant does not admit the plaintiff’s cause of action, but can only be regarded as an admission of an amount due under the special contract, and for extras.</p>

<p>Equity — Specific performance — Appeals—Injunction—Damages.</p> <p>Where a bill in equity is filed to enjoin the defendant from engaging in a business in violation of a contract, and before an appeal from an order refusing a preliminary injunction is brought to a hearing, the limit of time specified in the defendant’s contract, within which he was not to engage in the business has expired, the appellate court must dismiss the appeal, and can make no decree against the defendant for the payment of money damages.</p>

Appeal, No. 139, Oct. T., 1901, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1900, No. 845, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Mary J. Bateman v. The Grand Fraternity. Assumpsit for death benefits.

<p>Appeal, No. 14, Oct. T., 1901, by defendant, from judgment of O. P. No. 1, Phila. Co., June T., 1896, No. 168, M. L. D., on verdict for plaintiff in case of Philadelphia to use of John Donnelly and Frederick T. Buckius trading as John Donnelly & Company, v. Estate of Margaret A. Peters, Deceased.</p> <p>Scire facias sur municipal lien.</p> <p>The verdict of the jury was for the plaintiffs by direction of the court, reserving the following point:</p> <p>Does the deed of dedication, as recited in the conveyance of Peters to Barber, taken in conjunction with all the evidence, estop the defendants from asserting that the portion of the bed of Dyre street, which defendant’s witnesses testify they occupied and used to the exclusion of the public, was not a public highway, or, in other words, was there such evidence that Dyre street was a public highway as precluded the defendants from denying this fact ?</p> <p>The court entered judgment for plaintiff on the verdict. Defendant appealed.</p> <p>Error assigned was in entering judgment on the verdict.</p>

Appeal, No. 62, Oct. T., 1901, by defendant, from judgment of C. P. No. 1, Pliila. Co., June T., 1900, No. 1167, on verdict for plaintiff in ease of J. Alfred Bartram v. William H. Hering.' Assumpsit for breach of contract. Before Biddle, P. J. At the trial it appeared that on July 27, 1900, defendant leased a cottage at Atlantic City to the plaintiff for the months of August and September for a rental of $200.

Appeal, No. 130, April T., 1901, by plaintiff, from judgment of C. P. Venango Co., Aug. T., 1900, No. 9, on verdict for plaintiff non obstante veredicto. Assumpsit to recover assessments for paving under the Act of May 18, 1871, P. L. 896. Before Criswell, P. J. The jury returned the following verdict: And now, December 11, 1900, this cause came on to be heard, whereupon called and came W. F. Kelléy, R. S. Hazlett, Hugh Gallagher, Peter Berry, John Deegan, Wm.

<p>Appeal, No. 196, Oct. T., 1901, by Hugh Brown, from order of Q. S. March T., 1901, No. 399, refusing to grant a liquor license in the case of Hugh Brown’s Application for a Retail Liquor License.</p> <p>Application of Hugh Brown for a renewal of his retail liquor license at 803 Walnut street, Philadelphia, for the year beginning June 1, 1901.</p> <p>It was stated in the paper-book of the appellant that the license had been transferred to Hugh Brown eight weeks before the hearing, and that Brown had paid the former owner $6,400 for the license. A remonstrance was filed against William E. Poulson and averred that Poulson occupied the premises 803 Walnut streetas a liquor saloon and that the place adjoined a theater, although separated by a passageway.</p> <p>The record showed that on March 4, 1901, at the beginning of the session of the license court a general order was announced which was in part as follows :</p> <p>“ Any person holding a license granted last year, or since transferred to him or her, against whom no specific remonstrance has been filed, will be presumed to be entitled to a renewal of such license. . . . All remonstrances against the granting of licenses shall be in writing, stating specifically the grounds of such remonstrances, and shall be verified by affidavit.”</p> <p>The final order of the court was made on July 19,1901, and was as follows:</p> <p>And now, to wit: July 19, 1901, the order of the court refusing a license is hereby amended so as to be read as follows:</p> <p>While there is nothing in the testimony to indicate that the applicant is not a suitable person to whom at a proper location to grant a license, the license at the place for which application is made and in view of the evidence with respect to it, is refused.</p> <p>jError assigned was the order of the court.</p>

Appeal, No. 193, Oct. T., 1901, by John Chambers, from order of Q. S. Phila. Co., March T. .1901, No. 598, refusing to grant a liquor license, in In re John Chambers’s Aplication for a Renewal of his Retail Liquor License. Application for a renewal of a retail liquor license.

<p>Sewers — Cost—Ordinance—City of .Philadelphia — Acts of March 27, 1865, P. L. 791, and March 30, 1866, P. L. 354.</p> <p>In an action by the city of Philadelphia to recover sewer assessments an affidavit of defense that the contractor had been paid by the defendant the sum which he agreed to accept for the work done by him, is insufficient, inasmuch as the actual cost of the improvement may include items besides the amount paid the contractor.</p> <p>It seems that under the special laws applicable to Philadelphia, where an ordinance has fixed the rate of assessment for a sewer, an owner of property abutting on the sewer cannot allege as a defense to an action to recover an assessment, that the assessments exceed in the aggregate the cost of the improvement.</p>

<p>Beneficial associations — Beneficiary—Mother or wife.</p> <p>Where a by-law of a beneficial association provides that a single man without family may name his mother as beneficiary, and the by-laws also provide a manner in which the beneficiary may be changed, if the member so desires, and a member when single and without a family designates his mother as beneficiary, and subsequently marries, and thereafter dies without changing the name of the beneficiary, the mother and not the wife is entitled to the death benefits.</p>

Appeal, No. 198, Oct. T., 1901, by defendant, from order of O. P. No. 1, Pbila. Co., March T., 1901, No. 2699, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Chippewa Lumber and Boom Company v. C. B. Howard Company. Assumpsit for goods sold and delivered.

Appeal, No. 32, Oct. T., 1901, by defendant, from order of Q. S. Potter Co., March Term, 1900, No. 37, certifying settlement of an insane pauper in the case of Poor District of Galeton v. Poor District of Stewardson. Rule to show cause why the poor district of Stewardson should not be certified as the legal settlement of Andrew Benson, a pauper lunatic in the insane asylum at Warren, Pa. The court in an opinion by Olmsted J., made the rule absolute.

Appeal, No. 132, Oct. T., 1901, by defendant, Robert Johnson, from C. P. Blair Co., Nos. 128, 129, 130, 131 and 131, Oct. T., 1898, in cases of Philip Kimmel et al. v. Robert Johnson et al. Motion to quash appeal. The following reasons, among others, were filed for quashing the appeal. 7. This appeal is taken by Robert Johnson, the defendant, in five separate and distinct issues, wherein five separate and distinct parties are plaintiffs.

<p>Criminal law — Larceny—Evidence—Case for jury.</p> <p>On the trial of three persons jointly indicted for larceny the evidence to sustain a verdict of guilty as to one of the prisoners, is sufficient, which is in effect that the prisoner was recognized as having been in the store of the prosecutors at or about the time of the alleged larceny, and a receipt for an express package was found in a traveling bag in her room in a hotel in another city at the time of her arrest, and that the package for which the receipt was given on being returned from the place to which it had been sentwas found to contain the alleged stolen goods. The evidence as to the other two defendants is however not sufficient to support a conviction, where they are not shown to have been in' the place where the crime was committed at or about the time of its occurrence, and they are not connected by the testimony in anyway with the shipping of the express package, nor is any knowledge of the possession of the receipt of the express company for the same by the third prisoner brought home to them, or either of them, in any way. • The fact that the two were seen in company with the other prisoner both before and after the larceny, is, although suspicious, not of itself sufficient to warrant the submission of the question of their guilt to the jury.</p> <p>Criminal law — Reasonable doubt — Definition.</p> <p>Reasonable doubt in a criminal case is that state of the case which, after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the charge.</p> <p>On the subject of reasonable doubt it is error to charge the jury that “ it must be a doubt so solemn and substantial as to produce to the jury a code of reasoning so clear as to preclude the possibility of a doubt as to the verdict to be given.”</p>

<p>Banks and banking — Checks—Payment.</p> <p>In an action by a national bank against the assignees for creditors of a trust company to recover the amount of certain checks, it appeared that on a certain day the plaintiff bank presented to the trust company, which was on that day under no suspicion of insolvency, certain checks drawn on the company. Instead of requiring payment in cash the checks were surrendered, and “in payment thereof,” the check of the trust company upon another national bank, which had funds to meet it, was accepted by the plaintiff. This check was not presented to the other national bank until the following day, and after the trust company had assigned for the benefit of creditors. The check was refused payment. It did not appear that there was any custom that checks presented for payment by a bank on behalf of its depositors were payable by check of the trust company. Held (1) that the drawers of the checks on the trust company were entitled to have them charged to their accounts and canceled as paid; (2) that the trust company became bound so to treat the checks; (3) that the plaintiff bank became the direct creditor of the trust company to the amount of, and by virtue of, the check accepted; (4) that the plaintiff bank by accepting the check of the trust company fixed its liability to its depositors for the amounts of the check surrendered to the same extent as if it had received cash for them; (5) that the plaintiff bank was not entitled to recover from the assignees for creditors of the trust company.</p>

Appeal, No. 250, Oct. T., 1900, by Janet B. Kinsey, from decree of O. O. Phila. Co., April T., 1900, No. 459, dismissing exceptions to adjudication in the Estate of Mary A. Jeffries, deceased. Exceptions to adjudication. From the record it appeared that testatrix executed two papers both of which were testamentary in character and both of which were probated.

<p>Contract — Option—Sale of stock of a corporation — Interest.</p> <p>In an action to recover the value of forty shares of stock of a corporation, it appeared that the plaintiff by an agreement in writing granted to defendants the right to purchase the stock at any time after the date of the agreement until a date mentioned for a price mentioned. The plaintiff further agreed to irrevocably assign and transfer the stock to the defendants ‘ ‘ so that they could vote said stock, and exercise full dominion and ownership over the same.” Defendants agreed to pay interest on the value of the stock until the expiration of the option. It was also provided that if the defendants should decline to purchase the stock on the date mentioned, they should “ assign forty shares of capital stock to said party of the first part, and all liability to purchase same or otherwise shall cease and end.” The stock was transferred to the defendants on the day that the agreement was executed, and they acquired full dominion over it. The defendants never retransferred to plaintiff any stock. Held, that defendants were liable for the purchase price of the shares as fixed in the agreement with interest from the date of the transfer.</p>

Appeal, No. 92, Oct. T., 1901, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 1023, on case stated in suit of William Dorsh & Sons’ Shoe Mfg. Co. v. Henry C. Lea. Case stated in replevin. The material portions of the case stated were as follows: This suit is an action of replevin for goods distrained by the defendant for rent in arrear, and claimed by the corporation plaintiff as its property.

Appeal, No. 124, Oct. T., 1901, by defendant, from order of C. P. No. 2, Phila. Held: and confess judgment thereupon against us, our and each of our heirs, executors or administrators, for the sum of two hundred dollars lawful money of the United States of America, debt, besides cost of suit, by non sum informatus, nihil dicit, or otherwise, as to you shall seem meet; and for your, or any of your so doing this shall…

<p>Appeal, No. 159, Oct. T., 1901, by defendant, from judgment of C. P. No. 8, Phila. Co., March T., 1899, No. 172, on verdict for plaintiff in case of John McCann v. John McCrea.</p> <p>Assumpsit on a contract in writing. Before McCarthy, J.</p> <p>From the record it appeared that on June 2, 1897, the plaintiff and defendant entered into a written contract whereby the former agreed with the latter to provide the material and do the work necessary for the slate roofing of nineteen houses being erected by the defendant on North 63d street, West Philadelphia, for $175 per house, payment thereof to be made as follows: Eighty per centum thereof as the work progressed and the remaining twenty per centum thereof when the houses were accepted by the trust company which was advancing to the said John McCrea the money necessary to build said houses, as finished and completed, and of said twenty per centum $500 was to be paid by a second mortgage on one of said houses having a lot thereto of forty feet by 150 feet. Said mortgage to bear interest at the rate of six per centum, per annum, and tbe house on which it was to be secured to be clear of incumbrance except a first mortgage of $5,500 thereon.</p> <p>John McCann was asked this question:</p> <p>“ Q. At the time that you signed the agreement what conversation had you with Mr. McCrea respecting the kind of mortgage you were to receive ? ”</p> <p>Objected to.</p> <p>Mr. Potter: I propose to show by this witness that Mr. Mc-Crea identified that mortgage as his mortgage, and that he said that he would give that mortgage, and that it was to be his bond and mortgage. This is to show just whose mortgage it was that the plaintiff was to receive. My offer is to prove a contemporaneous agreement made at the time of the making of the written agreement on June 2, 1897, on the faith of which tibia written agreement was signed by which it was agreed that • it was to be the defendant’s bond and mortgage that was to be given to the plaintiff.</p> <p>Objection overruled. Exception for defendant. [1]</p> <p>“ A. I was to receive a $500 mortgage-”</p> <p>The Court: “ Q. We only want to know whose mortgage you were to receive. The agreement itself specifies that it was to be a second mortgage on a particular property in a certain sum.”</p> <p>Mr. Potter: I had better frame that question anew, because I did ask what kind of a mortgage it was to be. “ Q. At the time that you made the agreement and before the signing of the agreement what conversation, if any, did you have with Mr. McCrea respecting whose bond and mortgage this was to be that was mentioned in the. agreement? A. He. told me it was his own mortgage he was to give me. Q. Where was this conversation had ? A. In his office which is attached to his house at Chestnut Hill. There was no one at the office at the time only himself and myself, and he called his daughter in to witness the agreement. Q. And you signed the agreement?</p> <p>A. I signed the agreement and his daughter Letitia witnessed it. He called her from another room.”</p> <p>Plaintiff presented this point:</p> <p>2. If when the defendant delivered the second mortgage to the plaintiff on or about June 28, 1898, the property was subject to the lien of a mechanic’s claim the plaintiff was not obliged to accept the mortgage and had a right to return it and was' entitled to payment in cash for the amount which the mortgage represented. Answer: I affirm that point. [2]</p> <p>6. That the property on which the mortgage in question was secured having sold for $50.00 at sheriff's sale in February 1899, on foreclosure proceedings brought on the first mortgage, this price is the best evidence of the market value of the property and of the value of the second mortgage thereon. Answer: Refused. [8]</p> <p>8. That under all the evidence in the case, the plaintiff is not entitled to recover and the verdict must be for the defendant. Answer: Refused.</p> <p>Verdict for plaintiff for $608.32, upon which judgment was entered for $593.75.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions. (2-4) Above instructions, quoting them.</p>

<p>Appeal, No. 166, Sept. T., 1900, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1900, No. 166, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Joseph Gangloff and Catherine E., his Wife, v. Theophilus W. Smaltz and Laura A., his Wife.</p> <p>Scire facias sur mortgage.</p> <p>The facts sufficiently appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 148, Oct. T., 1901, by William E. Smith, administrator of Noah Snyder, deceased, from decree of O. C. Northumberland Co., on bill of review in the Estate of Noah Snyder, Deceased.</p> <p>Petition for bill of review.</p> <p>The facts sufficiently appear by the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 148, Oct. T., 1901, by William E. Smith, administrator of Noah Snyder, deceased, from decree of O. O. Northumberland Co., on bill of review in the Estate of Noah Snyder, Deceased.</p>

<p>Divorce — Collusion—Husband and wife.</p> <p>Marriage is a civil contract. But it is more. It is an institution of the state. As a contract it may not be canceled or rescinded save for grave reasons and by means of the intervention of the courts. If it appear that the application for its annulment is simply that the parties may be freed and separated from each other, or that the libel is not founded upon motives of sincerity and truth, but demanded for light reason, or in a manner smacking of collusion, the decree must be invariably refused.</p> <p>A divorce is properly refused a libellant where she testifies that after separation and before bringing suit she met her husband on the street and told him that she was going to get a divorce for nonsupport and abuse, that he agreed thereto and to make no defense.</p>

<p>Divorce — Subpcena—Libel—Husband and, wife — Collusion.</p> <p>A subpoena in divorce should be granted, where the libellant avers in her libel that she “ now is and for one whole year last past has been a citizen and resident of the state of Pennsylvania,” and that on a certain date, while the parties were domiciled in the state of New York, respondent wilfully and maliciosuly deserted the libellant, and persisted in such desertion for the term of two years last past, and “ that she expects to be able to have the subpoena issued in this case served upon the respondent within the commonwealth of Pennsylvania and the jurisdiction of this honorable court, and this without collusion.”</p>

<p>Appeal, No. 166, April T., 1901, by defendants, from judgment of C. P. No. 1, Allegheny Co., June T., 1898, No. 290, on verdict for plaintiff in case of David P. Mc-Cune v. Cyrus B. Hatch and Bessie F. Hatch, his Wife, Owners or Reputed Owners, and E. PI. Leasure, Contractor.</p> <p>Scire facias sur mechanic’s lien. Before Collieb, J.</p> <p>At the trial it appeared that the defense was that the lien was invalid as being for a lumping sum by a subcontractor. The plaintiff claimed, however, that the named contractor was merely an agent of the owner, and that the owner was as matter of fact the contractor.</p> <p>The court charged in part as follows:</p> <p>[The defendant in these cases, from the evidence, is entitled to your verdict; that is, he is entitled to have a verdict in his favor unless the plaintiff has established, what he has tried to establish, through his learned counsel in his argument to you. That is, that while these papers on their face apparently show that Mr. McCune was a subcontractor, and did not file a proper lien — which, if he was a subcontractor, it is very clear that he did not, and the law would not give him a right to recover— yet the allegation in these cases is that he was not a subcontractor. That, although the appearances are that he was, yet in fact he was really a contractor. That Mr. McCune was the real contractor in the case, and that Mr. Leasure was the mere agent for Hatch in acting in all these matters. That is the point I want to get your attention upon. Whether it is material or not will be determined hereafter, before the full bench, if you decide it was.</p> <p>All the evidence has been directed to that point. It is alleged that Mr. Hatch was the man that was really acting all the time; that Mr. McCune was the real contractor and not Leasure. It is alleged that the acts of Hatch show that, from the beginning to the end of it, and to the very completion of it. If that was the case, the lien having been filed against both of them, and alleging that he was a contractor, the papers give rise to a condition of things that allows you to determine that question. That is the only question in the case that we submit to you, because, if Mr. McCune was a subcontractor — no matter whether you think it wrong that he should lose his money — he cannot help himself, because he did not choose to file a lien, although he was told to go and file a lien and get the amount. Still he was bound to file the right kind of a lien, and put his items in. The law does not give it to him, except on his taking the precautions to do what the law says, to file his items.</p> <p>But, notwithstanding the way these things appear, if he was the real contractor, and Mr. Hatch so recognized him, and recognized that Leasure under all these facts was merely his agent, then Mr. McCune would be entitled to his money. You will weigh the evidence, gentlemen, carefully. You have heard it ably discussed by the distinguished gentlemen who appear for the defendant, as well as the distinguished gentlemen who represent the plaintiff. Weigh the facts carefully, irrespective of anybody, and determine whether it is true, whether really, in fact, Mr. McCune was the contractor, aud this man Leasure a mere agent, a conduit party to put it through.</p> <p>Gentlemen, if you find that to be the fact, as alleged by the plaintiff, then Mr. McCune would be entitled to the amount he claims. The amounts are not disputed; they are agreed upon by both sides. You will have them before you, so you will have no difficulty about that. The work was all done to the satisfaction of everybody, and the only question is the question of whether he would be entitled to the lien or not in this case.] [7]</p> <p>Verdict and judgment for plaintiff for $1,085.32. Defendant appealed.</p> <p>Error assigned amongst others was above instruction, quoting it.</p>

<p>Appeal, No. 163, Oct. T., 1901, by defendants, from judgment of C. P. No. 4, Pbila. Co., Dec. T., 1900, No. 161, on verdict for plaintiff in case of Frederika Polenske v. Lit Brothers, a Corporation.</p> <p>Trespass for personal injuries. Before Willson, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for 1700. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Appeal, No. 83, Oct. T., 1901, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 3, M. L. D., on verdict for defendants in case of Jobn Kolb v. The Reformed Episcopal Church of the Reconciliation of Philadelphia, Owner or Reputed Owner, Thomas Rice and Joseph K. Church, Copartners, trading as Thomas Rice & Company, Contractors.</p> <p>Scire facias snr mechanic’s lien.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Error assigned was above instructions.</p>

<p>Equity — Jurisdiction—Specific performance — Equitable status.</p> <p>A bill in equity against a corporation to compel the specific performance of a contract under which the corporation had agreed to issue bonds for scrip, cannot be maintained where it appears that the mortgage securing the bonds had been foreclosed, that the plaintiffs participated in the foreclosure proceedings by petition for leave to intervene, were cognizant of the amount of the bonds included in the decree, permitted the property covered by the decree upon the mortgage to be sold, and before distribution filed the bill.</p> <p>In such a case the plaintiffs are not. entitled to relief in equity, first, because the specific act sought to be compelled was not within the power of the defendant company, and second, because the plaintiffs were litigants in the forum which determined the amount secured by the mortgage in foreclosure, and by that forum their right to participation in the proceeds of the sale should be determined.</p>

Appeal, No. 205, Oct. T., 1901, by defendants, from judgment of C. P. No. 2, Phila. Co., March Term, 1901, No. 2834, on verdict for plaintiff in case of James Tilli v. James N. Vandegrift and Joseph A. Vandegrift, Co-partners, late trading with Jacobs as Vandegrift & Jacobs. Assumpsit on a promissory note.

<p>Contract — Set-off— Unliquidated damages.</p> <p>A defendant in any action founded upon a contract may set off unliquidated damages arising ex contractu from any bargain whenever they are capable of liquidation by any known legal standard.</p> <p>Contract — Set-off—Mental suffering — Physical injury — Steamship companies.</p> <p>In an action by'a steamship company to recover passage money, an affidavit of defense is sufficient which avers that the defendant contracted for a particular stateroom, but that the company refused to permit her to occupy it; that the stateroom for which she contracted was a comfortable one, but that she was compelled to occupy a room at the stern of the vessel near the machinery; that the said room was most uncomfortable; that the motion there was very great, and the rattle of the machinery there was such as to prevent her from sleeping; that in consequence of the discomforts of the room and the disturbance occasioned by the movement and noise of the machinery, defendant was able to sleep but very little during the entire voyage, and in consequence suffered nervous sickness, causing her much pain and suffering, which continued during the entire voyage, and after her arrival in this country.</p> <p>Damages — Mental suffering — Bodily pain — Physical injury — Negligence.</p> <p>Mental suffering as distinct from bodily pain can be considered in an action for damages for injury to the person when such suffering is attendant upon and results from a physical injury.</p>

<p>Appeal, No. 17, Oct. T., 1901, by defendant, from judgment of O. P.No. 2, Phila. Co., Dec. T., 1898, No. 965, M. L. D., on verdict for plaintiff in case of Stephen J. Hothersall and John H. Cloak, trading as Hothersall & Cloak, v. Anna E. Rust, Owner, Appellant, and Alfred J. Rust, Contractor.</p> <p>Scire facias sur mechanic’s lien. Before Wiltbank, J.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiffs for $531.23. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Equity — Equity practice — Equity rules.</p> <p>The trial of cases in equity is regulated by rules promulgated by the Supreme Court, which have the force of a statute. They cannot be suspended by the Superior Court, nor by the court of common pleas, nor can these courts adopt others inconsistent therewith.</p> <p>Equity — Equity practice — Exceptions—Premature appeal.</p> <p>Where the opinion of the trial judge in an equity suit, together with the decree framed by him and his answers to requests for findings of fact and law, have been filed, and a party to the suit has excepted to the rulings and the decree, the party excepting cannot take an appeal until his exceptions have been passed upon by the court. The decree in such a case is a decree nisi, and not a final decree from which an appeal will lie.</p>

Appeal, No. 18, March T., 1902, by plaintiff, from decree of C. P. Cumberland Co., on bill in equity in case of Cumberland County v. Thomas E. Vale, Chief Burgess. Bill in equity for an injunction. Before John Stewart, P. J., specially presiding.

Appeal, No. 178, Oct. T., 1901, by Milton Yohn and William Yohn, from decree of O. C. Lancaster Co., Jan. T., 1900, No. 258, dismissing exceptions to auditor’s report in the Estate of Israel Kern, Deceased. Exceptions to report of John W. Appel, Esq., auditor. The facts are stated in the opinion of the Superior Court.

Appeal, No. 242, Oct. T., 1901, by defendant, from order of C. P. Berks Co., Oct. T., 1901, No. 88, on habeas corpus proceedings in the case of Commonwealth ex rel. William G-ottschall v. William W. Newcomet, Warden of the Berks County Jail. Petition for writ of habeas corpus.

<p>Will — Life tenant — Alloioance out of principal — Jurisdiction—Decedents' estates. '</p> <p>Where a life tenant setting up a certain construction of a will petitions the court for an allowance out of the principal, and all of the parties in interest, except one, give their consent without specifying the amount to be appropriated, the court can enter no decree against the nonconsenting party in interest, and as to the other parties, in the absence of any provision of the will on the subject, properly construed, it has no jurisdiction to investigate and determine what portion of the principal should be paid to the life tenant.</p>

Appeal, No. 253, Oct. T., 1901, by-plaintiff, from decree of O. P. Chester Co., Equity Docket 383, 1901, on bill in equity in case of Coatesville & Downingtown Street Railway Company v. Uwchlan Street Railway Company. Bill in equity for an injunction. Motion to continue preliminary injunction. The court below filed the following opinion: The question presented upon hearing of above case is whether the preliminary injunction heretofore granted should be continued.

Appeal, No. 235, Oct. T., 1901, by defendant, from judgment of Q. S. Schuylkill Co., Sept. T., 1901, No. 596, on verdict of guilty in case of Commonwealth v. Margaret Fitzpatrick. Indictment for adultery. Before Shay, J. At the trial the prisoner’s husband, who was in court as a witness on her behalf, was called by the prosecution to the witness stand, and the commonwealth offered to prove by him the fact of marriage between himself and the prisoner. Objected to by defendant.

<p>Will — Distribution—“ Brothers and sisters" — “ Share and share alike."</p> <p>Testator by his will provided for his wife, made a number of provisions for his collateral relatives, ordered a sale of residuary real and personal property, and directed “the money arising therefrom to be distributed amongst my brothers and sisters, share and share alike, according to the intestate laws.” Testator left to survive him brothers and sisters and nephews and nieces, children of deceased brothers and of a deceased sister. Held, that the surviving brothers and sisters took to the exclusion of nephews and nieces, children of the deceased brothers and sisters.</p>

<p>Appeals — Extradition—Jurisdiction.</p> <p>On an appeal from an order of extradition, the jurisdiction of the appellate court is confined to an examination of the regularity and legality of the proceedings brought up by the certiorari and cannot be extended to an examination of the evidence adduced at the hearing, or to the rulings of the judge upon questions of evidence.</p>

Appeal, No. 154, Oct. T., 1899, by City Trust Safe Deposit and Surety Co., from order of Q. S. Philadelphia Co., confirming order of confirmation in In re Widening of Letitia Street. The parties filed an agreement in the Superior Court as to the question involved. The question stated is quoted in the opinion of the Superior Court.

by plaintiffs, from order of C. P. Blair Co., Jan T., 1901, No. 16, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Philip Arnold, Joseph A. Louchheim and Gustav Daniel, trading as Arnold, Louchheim & Company, v. Samuel I. Stoner. Assumpsit to pay the debt of another.

<p>Bailroads — Acquisition of title to right of way.</p> <p>Where a railroad company takes a deed lor its right of way from a person who is a mere intruder as to a part of the land described in the deed, the mere entry and occupancy of the land by the company does not invest it with title to an easement over the portion of the land as to which the grantor was a mere intruder. As to such portion of the land, the company is bound to make compensation to the real owner, and if it fails to do so it may be dispossessed by an action of ejectment.</p> <p>A railroad company which takes a deed of land for its right of way from a mere trespasser, cannot tack its possession of an easement thus acquired to the trespasser’s previous possession in order to make title under the statute.</p>

<p>Appeal, No. 133, April T., 1901, by defendants, from order of C. P. Warren Co., Sept. T., 1900, No' 15, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit on a contract.</p> <p>Plaintiff’s statement was as follows:</p> <p>This suit is brought to recover the sum of $900, $875 of which is the amount due plaintiff from defendants for his services as an architect in making and furnishing plans, specifications and estimates for a certain building to said defendants, at their request, on or about July 1, 1899, and $25.00 of which is the amount due plaintiff from defendants for an extra set of said plans and specifications furnished to said defendants at their request, with interest from December 1, 1899, as set forth in a statement of account, a true and correct copy of which is annexed to this statement and made part hereof.</p> <p>The defendants requested the plaintiff to submit to them plans and specifications for a building of the estimated cost of $25,000, and in accordance with said request the said plans and specifications were made and delivered to the said defendants by the plaintiff and were accepted and approved by them and were also approved by the state board of charities.</p> <p>It was understood and agreed between the plaintiff and de-fendants at the time of his being requested by them to submit plans and specifications as aforesaid, that his compensation for the same, if they were accepted, was to be three and one half per cent on the estimated cost of $25,000, and the said charge of three and a half per cent upon the estimated cost of $25,000 is the reasonable and proper value of said services, and at the usual and customary rate of compensation for such services as were rendered by plaintiff to defendants and was known to the defendants to be the usual and customary rate for such services when they requested plaintiff to submit plans and specifications, and when they accepted the said plans and specifications.</p> <p>The affidavit of defense was as follows:</p> <p>S. W. Waters being duly sworn according to law deposes and says, that he is one of the above named defendants; that he is advised that the plaintiffs’ statement as filed does not call for or require from the defendants any affidavit of defense, and that the plaintiff is not entitled to have an affidavit of defense filed thereto; nevertheless, he is informed, believes, and expects to be able to prove upon the trial of the cause, as follows: The defendants deny the agreement to be as stated by the plaintiff. The commonwealth of Pennsylvania made an appropriation of the sum of $25,000 for the erection of a certain building.</p> <p>The plaintiff, Marston was requested to prepare plans and specifications for the erection of a building in accordance with the appropriation which could be erected and completed for the sum of $22,000, in accordance with the appropriation made by the act of assembly. Nevertheless, it was found the plans and specifications submitted by said plaintiff Marston, required the expenditure of a considerably larger sum of money than the $25,000, for the erection and construction of said building, and it was found when bids were submitted for the erection of the building that no bidders could be obtained to erect and complete the said building for the sum of $25,000, and that said building could not be erected and completed according to the said plans and specifications of said plaintiff Marston, for the said sum of $25,000. There are other matters of defense which deponent is advised that it is not necessary now to particularly specify, and further deponent saith not.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Mines and mining — Certified fire boss — Mine foreman — Act of May 15, 1893, P. L. 52, art. 5, seo. 2.</p> <p>Under the Act of May 15,1893, P. L. 52, sec. 2, art. 5, the superintendent of a mine cannot delegate his statutory duties to the mine foreman, but must consult with him and join in the appointment of a competent person— a certified fire boss — who shall make the examination of the mine.</p> <p>In an action to recover damages for the death of a boy sixteen years old, caused by the explosion of gas in a mine, the case is for the jury and a verdict and judgment for plaintiff will be sustained where the evidence tended to show the presence of explosive gas in the mine in dangerous quantities ior at least four days prior to the accident; that this gas had accumulated in a room within about thirty feet of the entry where the deceased was killed, and where naked or open lights were used by the miners without objection by the superintendent; and that a person who was not a certified fire boss, had been employed as fire boss by the mine foreman with the knowledge of the superintendent.</p>

<p>Appeal, No. 10, April T., 1901, by plaintiff, from déeree of C. P. Washington Co., No. 1045, in equity, dismissing bill in equity in case of the Trustees of Washington Female Seminary v. Burgesses and Inhabitants of the Borough of Washington.</p> <p>Bill in equity for an injunction to restrain the enforcement of a borough ordinance. Before Taylor, J.</p> <p>The court dismissed the bill.</p> <p>Error assigned was decree dismissing bill.</p>

<p>Appeal, No. 187, Oct. T., 1901, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1899, No. 1092, on verdict for defendant, in case of Richard J. Holleran v. Life Assurance Company of America.</p> <p>Assumpsit on a policy of life insurance.</p> <p>At the trial plaintiff offered in evidence the policy in suit to which was attached what purported to be a copy of the application. The offer was not restricted to any part of the paper. Defendant subsequently made the following offer:</p> <p>Counsel for defendant offers in evidence proofs of death heretofore offered by counsel for plaintiff, for the purposes of the plaintiff’s case, in order that the same may be before the court as an admission binding upon the plaintiff.</p> <p>Objected to. Objection overruled. Exception for plaintiff. [1]</p> <p>The policy and the application attached thereto were both dated December 1, 1897. The deceased died on February 8, 1899. The only defense raised was a breach of warranty as to the correctness of answers as to health in the application. The defendant called Dr. Lawrence F. Flick, who testified that the deceased had consulted him on September 22, 1897, and that he found her suffering with tuberculosis. In rebuttal the plaintiff called Dr. Z. M. K. Fulton, medical examiner of defendant, who testified that he had examined deceased about the time of her application and that he did not find her suffering from any disease of the lungs or other organs. Members of the family of the deceased testified to her apparent good health until a short time before she died. The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (4) in giving binding instructions for defendant.</p>

<p>Appeal, No. 263, Oct. T., 1900, by plaintiffs, from order of C. P. No. 4, Phila. Co., Dec. T., 1898, No. 391, M. L. D., striking off mechanic’s lien in case of William R. Chapman, John B. Chapman and William R. Chapman., Jr., Copartners, trading as William R. Chapman & Sons, v. Samuel Faith and John Long, Copartners, trading as S. Faith & Company, Owners or Reputed Owners, and George W. Stewart, Contractors.</p> <p>Demurrer to claim for mechanic’s lien.</p> <p>From the record it appeared that George W. Stewart had entered into a contract with S. Faith & Company for the erection and construction of a factory and warehouse. The plaintiffs were subcontractors for the brick and terra cotta work. The contractor failed to pay the plaintiffs the whole of their bill, and the latter filed a lien against the building. The material portions of the claim are as follows:</p> <p>The said George W. Stewart requested the said William R. Chapman & Sons to furnish all the brick and terra cotta work and to do all the bricklaying and terra cotta work in and about the erection and construction of the said- factory in accordance with plans and specifications in the possession of Hales & Ballinger, who were the architects and agents for the said S. Faith & Company, the owners or reputed owners of the said factory, warehouse and lot of ground, employed by the said S. Faith & Company to supervise the work of the contractor and subcontractors for the erection of the said factory and warehouse, and to approve the estimates and contracts made by the said contractor and subcontractors. The said William R. Chapman & Sons at the request of the said George W. Stewart, examined the said plans and specifications, and thereupon proposed to the said George W. Stewart to do all the brick and terra cotta work and to provide all the materials therefor necessary to fully complete the said factory and warehouse in accordance with the said plans and specifications, for the sum of $3,495. The said George W. Stewart thereupon accepted the said proposition of the said William R. Chapman & Sons in writing, a copy of which acceptance is hereto annexed, dated November 23, 1897, marked Exhibit “A,” and is hereby made a part of this claim. The said S. Faith & Company were fully cognizant of the offer thus made by William R. Chapman & Sons before it was accepted by George W. Stewart, and they approved of the said offer and the acceptance of .the same. The said William R. Chapman & Sons thereupon furnished all the brick and terra cotta and did all the necessary work and labor in and- about the laying of the said brick and terra cotta necessary to fully complete the factory and warehouse above mentioned. In furnishing said materials and doing said work, they provided and furnished 15,000 Pompeian bricks, 15,000 stretchers, and 170,000 hard bricks'. They also furnished all the terra cotta in accordance with the plans and specifications above mentioned and now on the said factory and warehouse. They also furnished flue lining and other materials such as lime, sand, mortar, etc., necessary to lay the said brick and terra cotta work; and they also furnished the necessary bricklayers and laborers required to lay the said brick and terra cotta work; the time required in the laying of the said brick and terra cotta work being 1,470 hours. Plans and specifications hereinabove referred to are in possession of the said S. Faith & Company, and claimants have not a copy of the same. The proposition or offer made by claimants to do the said work and furnish the said materials for the sum of $3,495 is also in possession of the said S. Faith & Company or of the said George W. Stewart, the contractor, and claimants have not a copy of it. Claimants aver that they furnished all the materials and did all the work in accordance with the said. plans and specifications, and in all other respects complied with the acceptance of their proposition as set forth in the written acceptance of George W. Stewart, hereto annexed, and in addition to so doing they performed certain extra work, approved by Hales & Ballenger, the architects, in the laying of brick and terra cotta, amounting to $7.25. The claimants have received from the said George W. Stewart, on account of the sum due to them as aforesaid, the sum of $2, 600, leaving a balance of $902.25 still due to them, for which this claim is filed.</p> <p>The said bricks, terra cotta, mortar and other materials were furnished by the claimants and the said work, to wit: bricklaying and terra cotta laying was done by the claimants continuously within six months last past, to wit: between December 15, 1897, and June 15, 1898, both inclusive, and the said materials were furnished and the work and labor done in and about the erection and construction of said factory and warehouse and on the credit of the same at the special instance and request of the said George W. Stewart, he being the contractor for the erection and construction of said factory and warehouse, and the said S. Faith & Company being the owners or reputed owners of the same. And the said Wm. R. Chapman & Sons claim to hate a lien against the premises hereinabove described for the said sum of #902.25 from the commencement of said building known as a factory and warehouse, according to the act of assembly in such cases made and provided.</p> <p>The owners filed a demurrer to the claim as follows:</p> <p>1. That the said claim is defective on its face and does not entitle the plaintiffs to maintain the same as a lien against defendants’ property.</p> <p>2. The said claim is defective, in that it does not set forth in detail, either in the body thereof or by an attached itemized bill of particulars, the nature and kind of work done, the kind and amount of material furnished, the time when the same was done or furnished, and the cost of each item of material supplied, and of each item of work done.</p> <p>3. It is further defective in this, that it does not set forth specially the amount due respectively for work done and materials furnished, but only gives the balance of an aggregate sum therefor which the plaintiffs claim to be due to them, and gives the defendants, as the owners of the said building, no information by the claim filed as to the particulars thereof, so that they may make the necessary inquiries to satisfy themselves of its justice as a lien on their property.</p> <p>4. It fails to give the items of payments making the credit which plaintiffs allow on the lien of #2,600. Plaintiffs content themselves with merely giving a general credit for the said sum as moneys received by them, leaving the balance due of #902.25, for which they file their lien.</p> <p>The court without filing an opinion sustained the demurrer and struck off the lien.</p> <p>Errors assigned were (1) in' sustaining the demurrer; (2) in striking off the lien.</p>

<p>Appeal, No. 12, Oct. T., 1900, by Violet A. I. Huston, from decree of O. C. Phila. Co., Oct. T,, 1898, No. 173, dismissing exceptions to adjudication in the Estate of Philippa Harrison, Deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 272, Oct. T., 1900, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1898, No. 144, on verdict for plaintiff in case of Samuel C. Woolman v. John Hancock Ice Company.</p> <p>Assumpsit for price of stone. Before Willson, J.</p> <p>At the trial it appeared that plaintiff claimed to recover $900 for breach of a contract to purchase 200 carloads of stone, which the defendant had refused to accept. The evidence as to the existence of the contract was conflicting. There was evidence offered by the defendant, but contradicted by the plaintiff, to the effect that the purpose for which the stone had been ordered had been abandoned because of plaintiff’s failure to begin delivery in time.</p> <p>The court charged in part as follows:</p> <p>[As I understand, it is claimed on the part of the plaintiff that this contract was made between the plaintiff and Mr. Hancock, as representing the John Hancock Ice Company, some time in the early part of 1897, and that it was a contract which was made by word of mouth, but that it was a definite bargain, in which all the terms were fixed, and by which the parties became bound to each other. There is no doubt that if there was such a bargain made and finally concluded between the parties and not reopened subsequently, it was just as good as any contract; that is, that it was not necessary it should be put in writing. ... If you come to the conclusion that plaintiff has established an oral contract, you will have to take up one or two other points.] [2]</p> <p>[If the plaintiff entered into a contract with the defendant company through its president, whereby it was agreed between them that the plaintiff should furnish a certain quantity of stone to the defendant at or about a given time for a certain price, deliverable in a certain way, as is alleged here, and he went on and got in readiness to do that and was ready to do it and failed to make the delivery of the stone because he was notified by the defendant company, through its president, before the time of delivery, that the delivery was not wanted, the stone would not be received, then the plaintiff has a right to a verdict for the amount which he lost in the matter. That loss would be arrived at by taking the contract price, throwing off what it would cost for the plaintiff to deliver the stone, and, also, what the value of the stone was which he said he had quarried, or what the cost of quarrying it would have been, although I believe there is no evidence upon that point, and upon the figure which should remain, plus interest, if you think that interest should be allowed, the plaintiff would be entitled to a verdict if he has made out his case on all points.] [3]</p> <p>Verdict and judgment for plaintiff for $580. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant. (2, 3) Above instructions, quoting them.</p>

<p>Insurance — Life insurance — Application attached to policy — Act of May 11, 1.881, P. L. 20.</p> <p>In an action upon a policy of life insurance where it appears that the paper in the suit is a single sheet printed in three divisions, the first headed “A. Application to the Metropolitan Life Insurance Company,” the second, “B. Statements made to the Medical Examiner,” the third,“C. Medical examination and report,” and immediately opposite the last mentioned caption are the words in parenthesis, “ No part of the declaration of the applicant,” and it appeal’s that part A contained a warranty as to the answers and statements contained in parts A and B, and it also appears that part A was signed by the applicant, but that part C was not signed by the applicant, and was dated two days after A and B were signed, part C is not part of the “ application as signed by the applicant,” within the meaning of the Act of May 11, 1881, P. L. 20.</p> <p>Insurance — Life insurance — Evidence—Expert.</p> <p>Where in an action upon a policy of life insurance, a physician is called as an expert to testify as to the nature of the disease of which the insured died, and as to which it is alleged the insured made false representations, the witness may be permitted, at the request of either party to the issue, to testify whether the disease is easy or difficult to diagnose.</p> <p>Insurance — Life insurance — Evidence—Testimony of neighbor as to health.</p> <p>In an action on a life policy where the insured is alleged to have made false representations as to health, a near neighbor and friend of the insured may be permitted to testify that the appearance and conduct of the insured were those of a sound healthy man, but the jury should be cautioned as to the weight to be given such testimony.</p> <p>Practice, C. P. — Evidence—Absent witness — Continuance.</p> <p>Where on a motion for a continuance on account of the absence of a material witness for the defendant, an affidavit is presented stating what the witness would testify to if present, and the plaintiff admits that he would ' so testify, and thé motion to continue is refused, and at the trial the affidavit is offered in evidence by the defendant, the plaintiff may in rebuttal prove contradictory statements made by the absent witness.</p> <p>Insurance — Life insurance — “ Good health."</p> <p>The term “ good health” when used in a policy of life insurance means that the applicant has no grave, important and serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the system. A mere temporary indisposition which does not tend to weaken or undermine the constitution at the time of taking membership does not render the policy void.</p> <p>In an action upon a policy of life insurance where the defendant alleges misrepresentations as to health, it is not error for the court to refuse a point as follows: “If you find that at the time of the delivery of the policy in suit the defendant was suffering from disease of the heart, then he was not at that time in sound health, as required by the provisions of the policy, and the verdict will be for the defendant.” Such a point could not be affirmed without explanation of the meaning of the terms.</p> <p>Insurance — Life insurance — Proofs of death — Admissions.</p> <p>Statements in the proofs of death while admissible in evidence as declarations against interest, do not estop the claimant.</p> <p>Insurance — Life insurance — Statements as to health — Question for jury.</p> <p>In an action on a policy of life insurance it appeared that the answers and statements contained in the written application were made warranties and a part of the contract. The proofs of death stated that four years before the date of his death the insured had had a mild attack of angina pectoris which was cured at that time. The insured died of angina pectoris about three years after the date of the policy. There was no reference to angina pectoris in the application. Experts for the company testified that angina pectoris is a recurrent disease, and is incurable, and that a person having had an attack of it could not afterwards be in sound health. The medical examiner for the company testified that at the date of the application the insured was “in good sound health” and that he found the heart apparently sound, and in normal condition. There was testimony as to the possibility of false angina pectoris being mistaken for the true disease, and that the disease was difficult to diagnose. Held, that the question whether the insured was in sound health at the date of the policy was for the jury.</p>

<p>Appeal, No. 22, Oct. T., 1901, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1897, No. 742, on verdict for plaintiff in case of Ferdinand Rondinel, Guardian of Joseph Rizzo, Cornelius Rizzo, Annita Rizzo and Stella Rizzo, Minors, v. Metropolitan Life Insurance Company.</p> <p>Assumpsit on a policy of life insurance on the life of Francis Rizzo for the benefit of certain of his children. Before Penny-packer, J.</p> <p>The facts were the same as in Baldi v. Metropolitan Life Insurance Company, ante, p. 599.</p> <p>The defendant presented these points:</p> <p>10. As it appears under the undisputed testimony of the case that Dr. Rizzo had heen attacked by angina pectoris prior to the date of the application for this policy, and it likewise appears that when there is angina pectoris there is a permanent diseased condition of the heart which would render the health unsound, I instruct that Dr. Rizzo was not in sound health, as required by the first condition of the policy, and your verdict must be for the defendant. Ansiuer: Refused. [11]</p> <p>12. In considering this case you will start with the fact that Dr. Rizzo did have air attack of angina pectoris in 1893 or 1894, as stated in the proofs of death, so that you have only to consider whether that attack did show that his heart was diseased, and that this diseased condition continued until the time this policy was issued. If you do find in this way that the heart was diseased at the time this policy issued, and this condition of his heart might shorten his life, even though he looked as though he were in sound health, he was not really in sound health, and your verdict will be for the defendant. Answer : Refused. [12]</p> <p>Verdict and judgment for plaintiff for f 1,190. Defendant appealed.</p> <p>Errors assigned among others were (11,12) above instructions, quoting them.</p>

Appeal, No. 64, Oct. T., 1901, by defendant, from judgment of C. P. No. 2, Pbila. Co., March. T., 1898, No. 64, on verdict for plaintiff in case of E. Boyd Weitzel v. The Traders’ National Bank of Scranton. Assumpsit on a bank to recover the amount of a special deposit. Before Penny?acker, P. J. The court charged as follows: I am asked by counsel upon both sides in this case to give you binding instructions, and I have concluded to do it.

<p>Negligence — Municipalities—Care of property — School building.</p> <p>Municipal corporations are liable for the improper management and use of their property to the same extent and in the same manner as private corporations and natural persons.</p> <p>A city is liable for injuries to a school boy, suffered by reason of negligence in the maintenance of a dangerous board walk running from a main school building to an annex on property owned by the city and devoted to the use of a public school.</p>

<p>Appeal, No. 11, Oct. T., 1901, by defendants, from judgment of C. P. No. 4, Phila. Co., June T., 1900, No. 687, on verdict for plaintiff in case of Edward Winnemore v. City of Philadelphia, Trustee of the Estate of Stephen Girard, Deceased.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial it appeared that on March 22,1900, plaintiff was injured through the negligence of an operator of an elevator in the Stephen Girard Building in the city of Philadelphia. It appeared that the defendant held the legal title to, owned, and managed the building in question, pursuant to authority derived from the will of Stephen Girard, deceased, and that the net income of said building is devoted to the support of Girard College, an institution founded and maintained by direction of said will.</p> <p>Defendant moved for a nonsuit, on the ground that plaintiff’s evidence showing that the alleged negligent act was that of the trustee of a public charity, the rule of respondeat superior did not apply, and no verdict could be sustained.</p> <p>The trial judge refused the motion for a nonsuit, and allowed the case to go to the jury upon the following reserved point:</p> <p>Whether there is any evidence on which the plaintiff can recover due to the fact that the negligence, if any,- was the negligence of an employee of the city of Philadelphia, as trustee under the will of Stephen Girard.</p> <p>Defendant’s point requesting binding instructions for the defendant was refused.</p> <p>A verdict was rendered in favor of the plaintiff for $1,000, whereupon defendant moved for judgment non obstante veredicto, and also for a new trial, which were both refused, judgment being entered for the plaintiff on the verdict.</p> <p>Defendant appealed.</p> <p>Error assigned amongst others was in entering judgment on the verdict.</p>

Appeal, No. 64, Oct. T., 1901, by defendant, from order of C. P. No. B, Phila. Co., June T., 1900, No. 689, discharging rule to open judgment in case of Caroline Whitecar v. The Supreme Castle Knights of Golden Eagle. Rule to open judgment. Defendant filed the following answer to the rule to open judgment.

<p>Taxation — Liability for taxes— Trustees.</p> <p>A trustee who accepts an absolute conveyance of the land, registers and records his deed, and under some secret trust assumes the performance of active duties cannot escape liability for taxes to another who has paid them by the mere assertion that he is a dry trustee.</p> <p>When a responsible trust company, for its own profit, holds itself out to the world as the absolute owner of laud, by accepting and registering and recording a deed, all parties who deal with the title have the right to assume that the registered and recorded owner is liable for the taxes, unless they have notice to the contrary.</p> <p>In an action to recover taxes where the defendant does not in the affidavit of defense, deny that the taxes had been properly assessed against him, and that at the time they were assessed the title as registered and recorded showed the defendant to be the owner of an absolute estate in fee simple in the land upon which the taxes had accrued, an averment in the affidavit of defense that the defendant was a mere dry trustee, without any statement as to the nature of the trust, is insufficient to prevent judgment.</p>

Appeal, No. 117, Oct. T., 1901, by defendant, from order of C. P. No. 1, Pliila. Co., March T., 1876, No. 57, M. L. D., making absolute rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia, to use of Emmanuel Peters v. John Q. Adams, Owner, etc. Scire facias to revive a judgment on a municipal lien.

Appeal, No. 119, Oct. T., 1901, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1900, No. 909, on case stated in case of James W. Marshall v. The Pilots’ Association for the Bay and River Delaware. Case stated to determine the validity of an amended by-law of the Pilots’ Association.