Volume 180 — Pennsylvania State Reports

<p>Insurance — Agent—Cancelation of policy by agent after notice of receivership.</p> <p>Where an agent of an insurance company has notice that the company is going out of business because of insolvency, and that its affairs will be placed in the hands of a receiver, he cannot use moneys of the company in his hands to cancel policies, the holders of which have not given the notice in writing required by the policies; and if he so use the money of the company, he will be liable to account for it to the receivers subsequently appointed.</p>

<p>Appeal, No. 196, Oct. T., 1896, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., June Term, 1892, No. 568, on verdict for defendant.</p> <p>Ejectment for a lot of ground in the city of Pittsburg. Before Collier, J.</p> <p>At the trial it appeared that the land in question formerly belonged to John Keating, and after his death had, in partition proceedings, been awarded to his daughter Rebecca. .</p> <p>The defendant claimed as successor in title to Rebecca.</p> <p>The plaintiffs were the heirs at law of Rebecca. Both Rebecca and her husband were dead at the time suit was brought.</p> <p>The will of John Keating was as follows :</p> <p>“ And as to my worldly estate I dispose of the same as follows, that is to say: I bequeath to my beloved wife, Martha, the sum of Four hundred dollars a year during the term of her natural life, also the use of the mansion house in which we now live and the use of the household furniture during her natural life, which bequest it is my will shall be in lieu of dower. I bequeath to my granddaughter, Martha Ann, daughter of my son Joseph, the sum of One hundred dollars a year during the life of my wife, her grandmother. And I further bequeath to my said granddaughter the sum of Three hundred dollars when she arrives at the age of twenty-one years. I also bequeath to my daughter Martha the sum of twenty-five dollars to be paid to her in addition to the share of my estate which I hereinafter leave to her within one year after my decease. The farm of land which I purchased from William Irwin, situated in Kiskiminitas township, Armstrong county, Pennsylvania, I devise to my two sons, Joseph and John; to have and to hold the said farm of land to them by my said sons, Joseph and John, their heirs and assigns forever, as tenants in common and not as joint tenants. My other children to have no interest nor estate in said farm. All the rest and residue of my property, real, personal and mixed, in possession, reversion or remainder, I devise and bequeath of as follows, to wit: One-fourth part thereof I devise and bequeath to my son Joseph, his heirs and assigns forever. One-fourtli part thereof I devise and bequeath to my son John, Iris heirs and assigns forever. One-fourth part thereof I devise and bequeath to my daughter Rebecca (intermarried with Robert McAdams), and to her heirs and assigns forever. And the other one-fourth I devise and bequeath to my daughter Martha (inter-married with Robert Cunningham), her heirs and assigns forever. It is my will that the estate which I have bequeathed to my said daughters, Rebecca and Martha, shall not be liable to the debts, nor subject to the control of their respective husbands. It is further my will that if any of my said children shall die without leaving lawful children, the part devised to such child shall go to and be equally divided among my other children who shall then survive the child so dying without lawful children. And if any of my children die leaving children or a child, then such child or children shall be entitled to the same share of the estate of any of my children who shall die without leaving lawful issue that the parent of such child or children would have been entitled had such parent been alive at the time of the death of my said child so dying without issue. It is my will that the estate which I have herein devised to my said children shall be bound by and subject to the payment of my debts, funeral expenses and the legacies which I have hereby bequeathed, and that the same shall be paid in equal proportions by my said four children. It is my will that my daughter Rebecca and her family shall, if she desires it, have the privilege of living in that part of my mansion house which she now occupies without being liable to pay any rent for the same for three years after my death. After the decease of my said wife the household furniture to be equally divided among my said four children, share and share alike. Lastly, I do hereby nominate and appoint my sons Joseph and John, Graham and Robert Moore (superintendent of the city of Pittsburg waterworks), the executors of this my last will and testament. In testimony whereof I have hereunto subscribed my hand and placed my seal this ninth day of March, A. D., 1843.”</p> <p>The court gave binding instructions for the defendant.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was above instruction.</p> <p>No particular form of words is necessary to create a trust for the separate use of a married woman, the question in any given case being “ one of intention and not of technical expression: ” Hannes’s Est., 29 W. N. C. 414; Rigler v. Cloud, 14 Pa. 361; Yamall’s App., 70 Pa. 335; Quin’s Est., 144 Pa. 444; Steinmetz’s Est., 168 Pa. 171; MacConnell v. Lindsay, 131 Pa. 476.</p> <p>The general rule is that if on a fair construction of the whole will the intention of the testator is that the devise over is to take effect after an indefinite failure of issue, in that case the first estate is a fee tail. But where the limitation over is to take effect, not on an indefinite, but on a definite failure of issue, as a failure of children or a failure of issue within a given time, the limitation over shall not raise an estate tail in the first taker: Mitchell’s Real Estate & Conveyancing, 107; Johnson v. Currin, 10 Pa. 498; Middleswarth’s Adm’r v. Blackmore, 74 Pa. 414; Hill v. Hill, 74 Pa. 173; Bedford’s App., 40 Pa. 18; Cameron v. Coy, 165 Pa. 290.</p> <p>Rebecca McAdams having survived her father, took an absolute estate in fee simple, without any limitation over: Morrison v. Truby, 145 Pa. 540; Micldey’s App., 92 Pa. 514; King v. Frick, 135 Pa. 575; Fahrney v. Holsinger, 65 Pa. 388; Coles v. Ayres, 156 Pa. 200; Caldwell v. Skilton, 13 Pa. 152; Mitchell, Adm’r, v. Pittsburg, Fort Wayne & Chicago Ry. Co., 165 Pa. 645.</p> <p>The creation of a separate use is always a question of intention to be gathered from the will, the surrounding circumstances, and the condition of the estate and family, and the burden of proof is upon those claiming the creation of such separate use trust, to show it by language clearly indicating such intent: MacConnell v. Wright, 150 Pa. 275 ; MacConnell v. Lindsay, 131 Pa. 476 ; 2 Schouler on Domestic Relations, 189; 2 Perry on Trusts, sec. 647 ; Hill on Trustees, 611.</p> <p>If the intent is not clear, the courts will declare against it, although there are clauses showing a desire to exclude the husband from certain marital rights: Rank v. Rank, 120 Pa. 195 ; Ringe v. Kellner, 99 Pa. 463; Morrison v. Dollar Savings Bank, 36 Leg. Int. 215; Chrisman v. Wagoner, 9 Pa. 473; Todd’s App., 24 Pa. 431; 2 Williams on Executors, 1079; Carroll v. Burns, 108 Pa. 386.</p> <p>argued in their printed briefs:</p> <p>The devise to Rebecca McAdams was not a separate use trust, but a fee simple absolute, with unrestricted power of alienation: Rank v. Rank, 120 Pa. 195; MacConnell v. Lindsay, 131 Pa. 476 ; Ringe v. Kellner, 99 Pa. 464; Porter’s App., 94 Pa. 332; Chrisman v. Wagoner, 9 Pa. 473 ; Hays v. Leonard, 155 Pa. 478.</p>

<p>Appeal, No. 354, Jan. T., 1896, by plaintiff, from decree of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 436, dismissing petition for mandamus.</p> <p>Motion for reargument of case decided in 176 Pa. 586.</p> <p>The appellee in its petition for a reargument prayed for leave to amend the return of the city controller, so as to set forth as one of his reasons for refusing to countersign the warrant, the fact that he did make an investigation, and found that the relator was charging buyers of like quantities a lower price than that charged the board of public education. In support of the motion for leave to amend, the affidavit of John M. Walton, city controller, was filed.</p> <p>The court has power to permit of such an amendment: Shaffer v. Eichert, 132 Pa. 285; Thornton v. Britton, 144 Pa. 126; Clifford v. Prudential Ins. Co., 161 Pa. 257; Trainor v. Phila. & R. R. R., 137 Pa. 148; Kroegher v. McConway & Torley Co., 149 Pa. 444; Com. v. Press Co., 156 Pa. 516; Emerson v. Schoonmaker, 135 Pa. 437; Johnson v. Watson, 157 Pa. 454.</p> <p>A writ of mandamus will not issue for the collection of a debt, or as a substitute for an action of assumpsit: King v. Bristow, 6 Durn. & E. 168; Napier v. East India Co., 12 Eng. Law & Eq. 452; Com. v. Rosseter, 2 Binn. 360; Com. v. Commissioners of Allegheny Co., 16 S. & R. 317; Com. v. Mitchell, 2 P. & W. 518; Hester’s Case, 2 W. & S. 416; Drexel v. Man, 6 W. & S. 386; Heffner v. Com., 28 Pa. 112.</p> <p>A writ of mandamus will not issue where there is an adequate and specific remedy at law: Act of June 8, 1893, P. L. 345; Com. v. Thomas, 163 Pa. 446; Com. v. Controller, 7 Phila. 29; Dechert v. Com., 113 Pa. 229.</p> <p>The city controller of Philadelphia, in countersigning warrants, is a judicial officer, and the exercise of the discretionary powers vested in him will not be reviewed by the courts : Runkle v. Com., 97 Pa. 328; Com. v. George, 148 Pa. 463 ; Com. v. Jenks, 154 Pa. 368; Com. v. Mitchell, 89 Pa. 349; Findley v. Pittsburg, 82 Pa. 351; Douglass v. Com., 108 Pa. 559; Inter-State Vitrified Brick Co. v. City, 164 Pa. 477; American Paving Co. v. Wagner, 139 Pa. 623; Act of Feb. 2, 1854, P. L. 30; Act of April 21,1855, P. L. 269; Act of May 13, 1856, P. L. 572; Act of June 11,1879, P. L. 130; Johnson’s License, 156 Pa. 322; Gross’s License, 161 Pa. 344; Gemas’s License, 169 Pa. 43.</p> <p>As to the point made in the reargument, that the writ of mandamus will not issue for the collection of a debt, etc., that is not the present case: High on Extraordinary Remedies, (8d ed.) 1896, secs. 351, 356, 357; Com. v. Johnson, 2 Binn. 275; Williamsport v. Com., 90 Pa. 498; Ryan v. Hoffman, 26 Ohio, 109; Ahrens v. Fiedler. 43 N. J. (Law), 400; Freel v. City of Brooklyn, 148 N. Y. 165.</p>

<p>Evidence — Production of papers — Forgery—Discovery—Equity.</p> <p>Where there is an issue either direct or collateral on the forgery of papers, courts of either equity or law will compel their production for inspection in advance of trial.</p> <p>A party to an action at law may, before trial, maintain a bill for discovery of letters relied on by the other party to the suit and alleged to have been written by the plaintiff in the bill, but which said plaintiff alleges are forgeries.</p> <p>The production of private writings in which another person has an interest may be had by a bill of discovery in proper cases, or in trials at law by a writ of subpoena duces tecum. The courts of common law may also make an order for the inspection of writing in the possession of one party to a suit in favor of the other. Such order may also be obtained by the defendant on a special case such as if there is reason to suspect that the document is forged, and the defendant wishes that it may be seen by himself and his witnesses.</p> <p>If a party is entitled to the production of a deed or other document as being applicable to his case, his right to such discovery will not be affected by the circumstance that the same document is evidence for the other party’s case also.</p> <p>Letters — Property in letters — Writings.</p> <p>Letters written by one person to another are the latter’s property, and\ he has a right not only to have them produced for use in litigation, but \ delivered up to him as the true owner. /</p> <p>A writer of letters has a special property in them to prevent their pub- , lieation or communication to other persons for use for any illegal purpose j by the party wrongfully in possession of them.</p> <p>A bill in equity charged that the defendant surreptitiously and illegally took from the trunk of plaintiff’s son and from plaintiff’s own bureau cer- 1 tain letters written by plaintiff to her son, and by her son to her. Held, ' ' that the special right in the letters written by plaintiff was one that could only be adequately protected in equity, and that the court having jurisdic- / tion for discovery should go on and order all the letters to be restored. J</p>

Appeal, No. 316, Jan. T., 1896, by plaintiffs, from order of C. P. No. 1, Phila. Co., Dec. T. 1894, No. 554, malting absolute a rule to set aside service of process. Rui e to set aside service of process.

Appeal, No. 322, Jan. T., 1896, by plaintiff, from decree of C. P. No. 1, Pbila. Co., March Term, 1893, No. 910, dismissing bill in equity. Bill in equity to compel the assignment of a half interest in a patent.

Appeal, No. 391, Jan. Term, 1897, by defendant, from judgment of C. P. No. 4, Pbila. Co., Sept. Term, 1894, No. 728, on verdict for plaintiffs. Ejectment for a lot' of land, 610 South street, in the city of Philadelphia.

<p>Negligence — Railroads—Bicycles—“ Stop, look and listen ” — Grade crossings.</p> <p>A “bicycler’s stop” by circling on a bicycle is not a stop within the meaning of the rule which requires a person approaching a railroad at a public crossing to stop, look and listen before goin'g upon the tracks.</p> <p>A bicycler approached a railroad track at a public grade crossing, at a pointwhere there were four tracks, when a freight train was passing. He did not dismount, but circled on his wheel round and round at a distance of from five to ten yards from the track, and when the freight train had passed he started to cross without dismounting, and was struck and killed by a train coming in the opposite direction on another track. Before reaching a position of actual danger there was a space of seven feet from which an unobstructed view of the train could have been had. Held, that the death of the bicycler was caused by his contributory negligence and that his widow could not recover damages for his death.</p> <p>A bicycler must dismount when approaching a railroad crossing, or at least bring his wheel to such a stop,as will enable him to look up ami down the track and listen, in the manner required of a pedestrian.</p>

Appeal, No. 416, Jan. T., 1896, by defendant, from judgment of Super. Ct., Nov. T., 1895, No. 67, affirming judgment of Q. S. Phila. Co., Oct. T., 1895, No. 216. Indictment for keeping a lodging house without a license. The facts appear by the opinion of the Supreme Court. Error assigned was in affirming judgment of the court of quarteT sessions.

Appeal, No. 310, Jan. Term, 1896, by plaintiff,.from judgment of C. P. No. 3, Phila. Co., Sept. Term, 1895, No. 162, on verdict for plaintiff. Trespass for personal injuries. At the trial it appeared that the plaintiff was injured on May 30, 1895.

Appeal, No. 397, Jau. T., 1896, by Dreifus, Block & Co., from order of C. P. No. 3, Pbila. Co., Dec. T., 1894, No. 989, dismissing exception to auditor’s report. Exceptions to auditor’s report. The case was referred to Geo. De B. Myers, Esq., as auditor, who reported as follows: The facts of this case are as follows: The McCullough Iron Co., a corporation of the state of Delaware, was indebted to Dreifus, Block & Co., of the state of Pennsylvania, in the sum of $2,891.67.

<p>Appeal, No. 415, Jan. T., 1897, by J. H. Halsey & Smith, from decree of O. C. Phila. Co., April T., 1895, No. 129, dismissing exceptions to supplemental adjudication.</p> <p>Exceptions to supplemental adjudication.</p> <p>Furman Sheppard died November 3, 1893, leaving a will dated August 14, 1893, by which'he devised and bequeathed all his estate to his widow for life, and on her death gave two fifths of it to each of his two daughters, and one fifth to his son, Robert Sheppard, who had failed in business in 1884, and made an assignment for the benefit of creditors.</p> <p>Prior to 1884, Robert Sheppard was indebted to his father in the sum of about $20,000, for money loaned to the firm of Fenton & Co., of which Robert Sheppard was a member, but this indebtedness was, at the time of Furman Sheppard’s death, barred by the statute of limitations.</p> <p>J. H. Halsey & Smith obtained a judgment against Robert Sheppard, April 24, 1886, for the sum of $3,348.14, and a writ of attachment in execution was issued on this judgment November 16, 1893, and duly served on the executrix, attaching the interest of Robert Sheppard in the estate of Furman Sheppard, deceased. The judgment was revived November 23, 1894, for $4,787.73.</p> <p>Following the issuing and service of the attachment, Robert Sheppard, on November 24, 1893, executed a judgment note in favor of the executrix for the sum of $32,610.89, and judgment was entered upon this note on November 25, 1893.</p> <p>Penrose, J., filed a supplemental adjudication, as follows :</p> <p>Sur petition of Anna Laura Sheppard, executrix, for rehearing.</p> <p>By the adjudication filed May 13,1895, of the account of the petitioner, it was ordered that the balance in her hands as executrix, viz: $79,168.53 composed as therein indicated, should be paid and transferred to Mrs. Anna L. Sheppard in her own right as tenant for life under the provisions of the will of her husband, the testator, “ upon the entry of security for the protection of the interests taking effect at her death, including the interests of the attaching creditors of Robert Sheppard, according to the provisions of the act of assembly in such case provided.” Robert Sheppard, a son of the testator, being entitled, under the will at the termination of the life estate of his mother, to one fifth of the residuary estate.</p> <p>The adjudication mentions the fact that the share of Robert Sheppard has been attached; but not understanding that any question existed as between him and the estate of the testator involving the fact of his being entitled to any share, and the court being without jurisdiction as to matters affecting the question of indebtedness as between the attaching creditor and his debtor, Robert Sheppard, the auditing judge declined to hear proof of claims against him on the ground that the rights of attaching creditors would be determined in the court from which the attachment issued.</p> <p>The petition avers that Robert Sheppard is not entitled to have any share of the estate at the death of the tenant for life, for the reason that he is a debtor to such estate in a sum far in excess of what would otherwise be his share; and as the determination of this question affects the rights of the other children of the testator entitled, under his will, at the death of their mother, to distribution of the present balance, the confirmation of the adjudication was suspended and a rehearing granted.</p> <p>The rehearing was had March 9,1896, at which time Hector T. Fenton, Esq., David Mandel, Jr., Esq., and Hon. F. Carroll Brewster appeared for the petitioner; Edward P. Bliss, Esq., for J. H. Halsey et al., attaching creditors of Robert Sheppard; and F. A. Hartranft, for Haydon et al., also attaching creditors.</p> <p>The decedent died, as stated in the adjudication, November 8, 1893. Within two weeks thereafter, viz: November 16, 1893, an attachment was issued and served upon the account ant as garnishee, on a judgment of Halsey & Smith against Robert Sheppard, in common pleas court No. 3, of March term, 1886, No. 337, entered April 24, 1886, for want of an affidavit of defense for $3,248.14, since increased by judgment on scire facias to revive, issued November 16, 1898, to-$4,787.73, with interest from November 23, 1894.</p> <p>On the 25th of November, 1893, judgment was entered in common pleas court No. 2, of September term, 1893, No. 986, in favor of Anna L. Sheppard, executrix of Furman Sheppard, deceased, against Robert Sheppard, upon judgment note dated November 24, 1894, for $32,610.89, and upon this judgment payment of $4,458 was subsequently received from the sheriff, under an execution issued December 29, 1894, upon the judgment of Halsey & Smith against Robert Sheppard; the judgment of Mrs. Sheppard as executrix being the first lien upon the real estate sold.</p> <p>Subsequently, viz: November 15, 1894, another attachment was issued upon a judgment of A. & M. Haydon against Robert Sheppard in common pleas court No. 1, of June term, 1884, No. 175, for $2,974.67, which was duly served upon the accountant as garnishee.</p> <p>If the judgment of the executrix against Robert Sheppard be added to the balance in her hands of assets already collected, $79,168.53, it is obvious that the debtor, who already holds an amount (say $28,000) largely exceeding his share, one fifth of the entire estate, is not entitled to participate in the distribution of the balance as above, either now or at the death of the first taker. But it is contended on behalf of Halsey & Smith that the confession of judgment after the date of their attachment confers no right on the part of the executrix to use it for the purpose of excluding the debtor from the distribution, and thus defeating their attachment.</p> <p>It is by no means clear that the question of the validity of the judgment is an open one as between the attaching creditors and the estate of the testator. The record shows that under the levy upon the real estate of Robert Sheppard upon the execution issued by them on their judgment, the proceeds of sale were paid by the sheriff oil the judgment of the estate as first lien. This involved a determination by the proper authorities that as between the execution creditors and the judgment the latter was not only prior in lien, but, necessarily, that it was valid and unimpeachable. Treating it, however, as still open, the auditing judge is of the opinion that the validity of the judgment has been fully established. That there was an actual indebtedness — assuming that the admission of the debtor was not sufficient to establish it — was clearly shown. The firm of Avhich Robert Sheppard was a member made an assignment for the benefit of their creditors, and the account of their assignees ivas referred by the court of common pleas, No. 4, to an auditor Avhose report shows that the meeting before him was attended by counsel for Halsey & Smith and by Robert Sheppard; and •that among the claims presented and admitted to be correct were those of Halsey & Smith for $3,054.88, upon which a dividend of $187.81 was awarded, and Furman Sheppard (the testator) for $21,513.18, the dividend on which was $1,322. This report was filed December, 1886, and confirmed January 28, 1887.</p> <p>It is true as shown by the authorities referred to by Mr. Bliss in his very able brief on the subject, the allowance of a dividend by a decree of the common pleas upon the report of an auditor making distribution of an assigned estate does not arrest the running of the statute of limitations in favor of the creditor, for the reason that the proceeding is in rem merely; nor does the payment of the dividend by the assignee imply a new promise, since he is not the agent of the assignor for that purpose: Light’s Estate, 136 Pa. 211; but the assignee is the agent of the debtor for the purpose of ascertaining the validity of claims presented to Mm for payment, and Ms payment upon a claim duly proved or admitted before the auditor of Ms account, is a recognition which clearly establishes the bona fides of the claim —and especially so where the party now raising the question was before the auditor and made no suggestion to the contrary. But, it was contended by Mr. Bliss, the debt was barred by the statute of limitations at the time of the confession of judgment, and Halsey & Smith, by reason of their prior attachment had acquired a lien upon the share of their debtor in the estate which deprived him of the power to waive the statute even as against a claim the validity of which, with the legal and moral obligations thus implied, he himself fully recognized. It is not easy to see how the attachment could confer such a right. The attachment binds only the interest of the debtor in the estate of the testator, and the interest does not arise until it has been ascertained how much of the estate has already been received by him. The lien does not extend to the conscience of the debtor. If instead of obtaining the confession of judgment the executrix had brought suit for recovery of the debt, nothmg short of the pleading of the statute could have prevented an adverse judgment. It can scarcely be pretended that an attachment creditor of the defendant to the suit would have the right to intervene and make defense. The judgment so obtained could not be impeached collaterally except on the ground of fraud, and it is a maxim of the law that whatever a man may be compelled to do, he may do voluntarily, as in this case, he may confess judgment if judgment can be obtained against Mm by due process of law: Co. Litt. 171 a. That the omission to set up the statute as a defense is not a fraud of which third persons have a right to complain has been very frequently decided: Keen v. Cleelcner, 42 Pa. 529; Brown’s Appeal, 86 Pa. 524; Sanger v. Nightingale, 122 U. S. 176; Allen v. Smith, 129 U. S. 465; Bank v. Kimble, 76 Ind. 195. See also Kennedy v. Powell, 34 Kan. 22; Henderson v. Waid, 96 Pa. 460; Meckley’s Appeal, 102 Pa. 536. Nor is the failure to set up the statute as a defense to an honest claim available as a ground for contesting the validity of a judgment on the part of the persons having a lien on the fund, which, by reason of such judgment would yield them a smaller dividend. This was decided in Woods v. Irwin, 141 Pa. 278, which in principle, in the opinion of the auditing judge. rules the present case. There an executor of an insolvent estate confessed judgment for a bona fide debt, barred by the statute, and creditors sought on that ground to have the judgment opened and set aside, but the Supreme Court, overruling the court below, sustained its validity. Creditors, at the death of their debtor, acquire a lien upon his estate, and their rights by reason of this are no less sacred than the rights which are obtained by judicial proceeding; as was said by Judge Agnew in Nice’s Appeal, 54 Pa. 200, “ Death casts the estate into an unchangeable mould, the law then fixing its condition and prescribing its management and its distribution.” See also Kater v. Steinruck, 40 Pa. 501. The objection to the confession of judgment and the waiver of the statute in Wood v. Irwin had, therefore, quite as much force as it has when urged by a creditor who has attached the interest of his debtor in an estate to which the latter is indebted, and this being the case, it is unnecessary to refer in detail to numerous authorities, largely from other states, cited by Mr. Bliss, or to show how they are distinguishable.</p> <p>Being of the opinion that Robert Sheppard has no right to participate in the distribution of the balance awarded to Mrs. Sheppard at the termination of her estate, the award to her upon the entry of security for. the protection of future interests is amended by omitting therefrom any reference to the creditors of Robert Sheppard, who, under the views taken by the auditing judge, have no rights which entitle them to such protection.</p> <p>The order suspending the confirmation of the adjudication is rescinded, the right to file exceptions to such adjudication as now amended, being extended to the third Saturday after the filing of the order now made.</p> <p>The orphans’ court dismissed the exceptions to the adjudication and confirmed it.</p> <p>Errors assigned were in dismissing exceptions to supplemental adjudication.</p> <p>A legatee whose interest is attached by a creditor cannot avoid the attachment, and transfer or release his legacy, by reviving a debt which at the time of the attachment was barred: Roig v. Tim, 103 Pa. 117; Rushton v. Rowe, 64 Pa. 63; Neely v. Grantham, 58 Pa. 433; Strong v. Bass, 35 Pa. 334; Drake on Attachment, 6th ed. p. 672; Webster v. Adams, 58 Me. 317; Fessler v. Ellis, 40 Pa. 248; Bank v. Glue Co., 164 Pa. 1; Com. y. Steacy, 100 Pa. 613; Rogers v. Gilmore, 12 W. N. C. 420; Sturtevant v. Robinson, 18 Pickering (Mass.) 175; James v. Milne, 3 Penny. 394; Holt v. Libby, 80 Me. 329; 13 Am. & Eng. Ency. of Law, 710; Wood on Limitations, sec. 41; Shewen v. Venderhorst, 1 Russ. & Mylne, 347; Shewen v. Vanderhorst, 2 Russ. & Mylne, 75; Fuller v. Redman, 26 Beav. 614; Kittera’s Est., 17 Pa. 416; Gurcier’s Est., 28 Pa. 261; Yorks’s App., 110 Pa. 80; Boyer’s App., 23 W. N. C. 473; Woods v. Irwin, 141 Pa. 278; Chapin y. Freeland, 142 Mass. 383; Hill v. Hilliard, 103 N. C. 34; Hoch’s App., 21 Pa. 282; Fritz v. Thomas, 1 Whart. 66; Smith v. Pattie, 81 Va. 654; Keely v. Weir, 38 Fed. Rep. 291.</p> <p>In order to constitute an available set-off it is not enough to show that there is or was a debt. It must be a debt due and payable at the time of the attachment: Crall v. Ford, 28 W. N. C. 366; Taylor v. Gould, 57 Pa. 152; Hughes’s App., 57 Pa. 181; Reed v. Marshall, 90 Pa. 345; Chapman’s App., 122 Pa. 331; Light’s Est., 136 Pa. 211; Milne’s App., 99 Pa. 483; Buckius Est., 4 Dist. Rep. 775.</p> <p>cited, Woods v. Irwin, 141 Pa. 278; Milne’s App., 99 Pa. 483.</p>

<p>Appeal, No. 449, Jan. T., 1896, by defendant, from judgment of C. P. No. 4, Philadelphia County, June T., 1894, No. 1375, on verdict for plaintiff.</p> <p>Feigned issue to determine the ownership of a fund of $2,045.61, deposited in the Commonwealth Title, Insurance & Trust Company by agreement of all parties in interest.</p> <p>At the trial it appeared that on May 3,1893, Howard S. Eckels sold an undivided half interest in a drug store in German-town to Walter S. Froelich, and received the pay for it. He sold the remaining undivided half interest to Henry W. Wellensieck, but did not receive the pay for it, and by agreement it reverted to Eckels on May 3, 1894. May 4, 1894, Eckels sold and delivered this half interest to John Harlow, his father-in-law. In the following June, Charles A. Eckels, upon an execution against John Harlow, sold this half interest at sheriff’s sale as the property of said Harlow, and bought it at said sale. In August, 1894, George M. Smyser made affidavit that Howard S. Eckels was indebted to him in the sum of $2,000 upon two promissory notes, and that said Eckels was about to remove his property out of the jurisdiction of the court with intent to defraud his creditors; that he had property, rights in action, and evidences of debt which he fraudulently concealed; that he had assigned, disposed of and removed, and was about to assign, dispose of and remove such property, money, rights in action and evidences of debt, with intent to defraud his creditors. By virtue of this affidavit he obtained a writ of attachment under the act of March 17, 1869, and attached this one half interest in the store as the property of said Eckels, and named Charles A. Eckels as garnishee. Howard S. Eckels filed an affidavit denying these allegations, and obtained a rule to dissolve the attachment. Depositions were taken and the court discharged the rule and refused to dissolve the attachment. Judgment was then entered against the defendant on the claim. By agreement of all the interested parties this one half interest was sold to Walter S. Froelich, who already owned the other one half interest; and the proceeds' of sale, $2,045.61, were deposited with the Commonwealth Title, Insurance & Trust Company to abide the final determination of a feigned issue granted on the petition of Charles A. Eckels who claimed said fund as his sole property, and prayed that an issue might be granted between himself and the said George M. Smyser to test the ownership of said fund. Exceptions were filed by Smyser to the granting of the issue.</p> <p>At the trial of the issue Smyser objected to the admission of any evidence as to the title of Charles A. Eckels, claiming that the question of fraud in the transfer of the half interest in the drug store had been decided in favor of himself by the action of the court in continuing the attachment.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1) in awarding an interpleader on the petition of Charles A. Eckels after the question of fraud had been decided by the court in the attachment case to which he was a party; (2) in permitting a jury to pass upon the same evidence in support of the interpleader claim as had been held, in the attachment case, to make a fraudulent transaction between the same parties; (3) in not ordering the proceeds of said attached interest to be paid to the plaintiff in the attachment.</p> <p>This court.held in Walls v. Campbell, 125 Pa. 346, that if the court below refused to dissolve the attachment, the question of fraud having been passed upon by the court, could not again be raised in the case. If the court had dissolved the attachment, Smyser would have been thereafter concluded as to the question' of fraud, both as to the parties on the record and the sureties on the attachment bond: Hoge v. Norton, 22 Kan. 374. Where the parties in interest have once had all matters in regard to the validity of a transfer fully investigated in a court of competent jurisdiction, they are bound by the result: Baxter v. Myers, 85 Iowa, 328 ; Wharton on Evidence, sec. 763; Larum v. Wilmer, 35 Iowa, 244; Stoddard v. Thompson, 31 Iowa, 80; Peterson v. Lothrop, 34 Pa. 229.</p> <p>A judgment against a defendant who has a right of action over against a third party is conclusive upon the latter, provided he has notice and a full opportunity to defend: Washington Gas Light Co. v. District of Columbia, 161 U. S. 316.</p> <p>Where money is paid into court by a garnishee, and there are contesting claimants, the court will award a feigned issue to try the right: Hiller v. Good, 2 L. Bar. 129.</p> <p>Error will not lie to a feigned issue, directed to inform the conscience of the court: Neff v. Barr, 14 S. & R. 166; Baker v. Williamson, 2 Pa. 116; Brown v. Parkinson, 56 Pa. 336; Renninger v. Thompson, 6 S. & R. 1; Porter v. Lee, 16 Pa. 412; Ringwalt v. Ahl, 36 Pa. 386.</p> <p>The garnishee can raise the question of the ownership of the goods, and plead a prior assignment: Beards y. Hathaway, 5 Luz. L. Reg. 259.</p> <p>Where the court awards an issue, it should order who are to be the parties plaintiff and defendant, and what is the question of fact to be tried: Muhlenberg v. Brock, 25 Pa. 517.</p> <p>The rule to dissolve the attachment was a rule by the defendant in the attachment case, to which appellee was not, and as garnishee could not have been under the law, a party, and the finding of the court was not that the transaction was a fraud as between George M. Smyser and Charles A. Eckels, garnishee, but that on the evidence taken by Smyser, on the rule .to dissolve the attachment, the court simply decided that there was sufficient in the evidence to justify them in 'continuing the attachment against Howard S. Eckels.</p>

<p>Appeal, No. 472, Jan. T., 1896, by Charles J. Snyder et al., from decree of O. C. Phila. Co., sustaining exceptions to adjudication.</p> <p>Exceptions to adjudication of account of surviving executor.</p> <p>The facts appear by the opinion of Penrose, J., which was as follows:</p> <p>The testator gave the residue of his estate to his executors in trust, at -the death of his wife, to pay the income to his four children, Edmund, Charles, Catharine and Elizabeth, in equal shares, for their lives, respectively, providing as to the principal as follows, “ and upon the death of my above-named children, and as the same shall occur, then in trust to pay over, grant and convey unto the respective children of my above-named sons and daughters the principal or share of my estate, the income of which is devised for the benefit of their respective parents for life, in such manner as if such deceased sons and daughters had died seized thereof intestate.”</p> <p>The wife died in 1890 ; Leon Snyder, the only child of Edmund, who was living at the death of the testator, his grandfather, died in his minority, unmarried and without issue, in 1892, in the lifetime of his father and mother; and Edmund died in September, 1895, leaving a will by which he gave his entire residuary estate, real and. personal, to his wife, Mrs. Francis L. Snyder, the mother of Leon, and appointed her his executrix.</p> <p>The question presented by the exceptions is whether Leon Snyder had a vested interest in the fourth of the testator’s residuary estate held in trust for his father Edmund, for life, which passed at his death, though the particular estate had not then terminated, to his father and mother under the intestate laws; if he had not, then as he was Edmund’s only child, and the will contains no limitation over in default of persons capable of taking in remainder, there was, as the auditing judge had held an intestacy as to this share, relating back to the testator’s death, and increasing correspondingly, the shares given by the will to the widow-and children.</p> <p>It is said that while the will contains no words of express condition, and while it does not say that the grandchildren to whom the interests in remainder are given shall be living at the death of their parent, this result is a necessary inference from the provision for conveyance to them “ in such manner as if such deceased parent had died seized thereof intestate,” for how, it is argued, could a conveyance be made to persons not living, or a child dying in the lifetime of his parent take any part of his estate under the intestate laws ?</p> <p>But in searching for a meaning of words in a will we are not to adhere too closely to literal signification or lose sight of fundamental principles. The law leans in favor of vested rather than contingent interests, and resolves doubts in favor of vesting. The postponement of a gift until the expiration of a prior estate does not imply a condition that the legatee shall survive the first taker, or that his interest shall not vest in the meantime with a mere deferring of the right of possession; estates will be held to vest, subject to opening in order to let in others of the requisite class, as soon as there is one in being who can take; and once vested they will not be divested or defeated by any doubtful implication of condition — conditions wbicb defeat estates being looked upon with disfavor; when the meaning is not clear a construction as nearly conformed to the general rules of inheritance as possible will be adopted, and finally a construction which leads to an intestacy will never be adopted if, without perversion of the words of the will, it can be avoided.</p> <p>The question here is not affected by the direction for conveyance at the expiration of the life estate. In England this would simply continue the legal estate in the trustees until the conveyance was made; here, where equity is part of the common law, it has not even this effect, and the legal estate vests at once in the beneficiary: Renziehausen v. Keyser, 48 Pa. 851; Bacon’s Appeal, 57 Pa. 504. We need, therefore, only consider whether the apparently absolute gift to the grandchildren is made contingent upon survivorship because the conveyance is to be made to them “ in such manner as if the parent had died seized thereof intestate.” It may be conceded that these words can be understood as expressing, obscurely and in an unusual manner, the idea that the child must be alive at the parent’s death, though it could have been expressed much more easily by the familiar formula “ to such child or children of my said sons or daughters as may be living at the time of their respective deaths; ” but their natural meaning is that the children shall take in the proportions to which the intestate laws give them the estate of their parents; or they may have been intended to define the estate or quantity of interest, viz: an absolute interest, such as the intestate laws so give, and the testator, it will be observed, has used no other words of limitation. Understood in either of the senses last suggested, an intestacy, in an event obviously likely to have suggested itself to the mind of the testator, and which has actually occurred, is avoided, and no rule of construction or principle of law is strained or violated : understood in the sense which prevents vesting, grandchildren' of the first takers — children of children dying during the continuance of the prior estate — could have no share of the estate, since gifts to children do not include grandchildren: Hallowell v. Phipps, 2 Wharton, 376; Horwitz v. Norris, 49 Pa. 213, and hence there would have been an intestacy even if Leon Snyder had left children now living.</p> <p>We cannot, under the principles referred to, avoid the conclusion that the interest of Leon Snyder was vested, and that at his death it passed under the intestate laws, subject to the proviso as to blood of the first purchaser, to his father and mother, the share of the father being now vested in the mother as his sole legatee and devisee.</p> <p>It may be added that even if there had been an intestacy as to the fourth of the real estate, as Edmund would himself be entitled as one of the heirs: Deginther’s Appeal, 88 Pa. 337; Bell’s Appeal, 147 Pa. 389, although he was also. tenant for life, his interest in fee, with its income, would pass under his will to his devisee, and thus entitle her to share in the distribution of the balance shown by the trustees’ account.</p> <p>The exceptions are sustained and the distribution awarded by the adjudication corrected accordingly. Counsel will prepare the necessary decree.</p> <p>Errors assigned were in sustaining exceptions to adjudication.</p> <p>The act of May 6, 1844, does not extend to a bequest to a class : Gross’s Est., 10 Pa. 360.</p> <p>The time of distribution defines those who are to take. This being not at the date of the will, nor at the death of the testator, but at the death of the life tenant.</p> <p>From the terms of the will it appears that the testator’s children and grandchildren were the objects of his care and bounty, and only those can take who are in the designated class: Guenther’s App., 4 W. N. C. 41; Huss v. Stephens, 51 Pa. 282; Mergenthaler’s App., 15 W. N. C. 441.</p> <p>Lantz v. Trusler, 37 Pa. 482; Young v. Stoner, 37 Pa. 105; Chew’s App., 37 Pa. 23'; Minnig v. Batdorff, 5 Pa. 503 ; Williams’s App., 4 W. N. C. 189; Yarnall’s App., 70 Pa. 335; Womrath v. McCormick, 51 Pa. 504; Muhlenberg’s App., 103 Pa. 587; Richardson’s App., 19 W. N. C. 175; Fairfax’s App., 103 Pa. 166; McBride v. Smyth, 34 Pa. 245; Barclay v. Lewis, 67 Pa. 316; Anthracite Savings Bank, Trustee, v. Lees, 176 Pa. 402; Gross’s App., 10 Pa. 360 ; Huss v. Stephens, 51 Pa. 282.</p>

<p>Appeal, No. 473, Jan. Term, 1896, by Charles J. Snyder et al., from decree of O. C. Philadelphia County, sustaining exceptions to adjudications.</p> <p>Exceptions to adjudication of account of surviving trustee.</p>

<p>Appeal, No. 476, Jan. T., 1896, by plaintiff:, from judgment of C. P. No. 4, March T., 1895, No. 360, refusing to take off nonsuit.</p> <p>Trespass for personal injuries.</p> <p>At the trial it appeared that on March 20, 1893, between 9 and 10 o’clock in the evening, the plaintiff, a boy eleven years of age, was run over by one of defendant company’s omnibuses on Broad street below South street in the city of Philadelphia. Broad street is a wide asphalted street. The driver of the omnibus sat on a high seat with a dashboard. When the accident occurred the omnibus was on the west or left hand side of the street. Plaintiff described the accident as follows:</p> <p>“ I skated up Broad until I came to Locust and started down from Locust street until I came to Bainbridge, then started up again until I came to the north side of Kater, on the west side of Broad. I tripped on some dirt or something in the street, and in tripping I faced south. I began to stumble, and the horses were about eight or ten feet away from me. Q. You say this was in March, 1893, between nine and ten o’clock in the evening? A. Yes, sir. Q. The omnibus was .one of the large Broad street omnibuses, was it not ? A. Yes, sir. Q. When you slipped, which side of the street were you on ? A. The west side. Q. How near to the curbstone ? A. I was more to the curb — between the middle of the street and the curbstone ; I was more towards the gutter. Q. Do you mean the west side ? A. Yes, sir; the west side of the street. Q. Have you any idea about how many feet you were from the curbstone ? A. No, sir; I can’t tell you about that. Q. In stumbling you say you turned around? A. Yes, sir. Q. Did you go down on your hands? A. No, sir; my hands didn’t touch. ' I kept falling, tumbling. I was falling at the time when I turned around.”</p> <p>The Court: “You mean that you were trying to recover yourself? A. Yes, sir; trying to get on my feet.”</p> <p>By Mr. Prichard: “ Q. But your hands didn’t actually touch the ground? A. No, sir. Q. You were going forward all the time? A. Yes, sir; and the bus was coming on a slant. Q. What part of the bus or the horses did you first strike ? A. The swingletree. Q. On which side of the bus ? A. On the west side. Q. Toward the curbstone? A. Yes, sir; towards the west side of the street. Q. The bus was going up Broad street? A. Yes, sir. Q. Then you were being dragged backward. At that time were you in front of the front wheel? A. Yes, sir; I was in front of the front wheel. Q. Were you outside of it or inside of it? A. Inside of it. Q. The driver was up over your head, was he not? A. Yes, sir. In stumbling as I was right in, I knew I was going against the bus. Looking up, I saw the driver was looking towards the east side of the street, and then I fell right against the swingletree and missed.”</p> <p>The account given by the other'witness for the plaintiff was as follows:</p> <p>“ During that time there was a boy that came along. I halted to let the boy pass by. The boy just passed by me skating. I didn’t know who he was at the time. While he was passing by he slipped, and as he slipped I went to make a grab for him —started right towards him and I hallooed. He caught hold of the traces close by the swingletree — the swingletree and the trace together. The skates went from underneath him, and he goes underneath, and by that he catches hold of the cross bar, holding it. ... Q. How far after he got hold of the cross bar was he dragged? A. I should judge in the neighborhood of the bus and horses, if not a little farther. I didn’t measure. . . . Q. Which way was the driver looking? A. Looking towards South street, towards the clothing store — looking on the east side.”</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p> <p>The plaintiff in this suit being a boy a little over eleven years of age, all questions as to contributory negligence may be eliminated from the discussion, for it is well settled that a boy of that age cannot be charged with contributory negligence: Sandford v. Hestonville, etc., Ry., 158 Pa. 300; Kehler v. Schwenk, 144 Pa. 359; Barre v. Reading City Pass. Ry., 155 Pa. 173; Flanagan v. Ry. Co., 163 Pa. 102; Kaufhold v. Arnold, 163 Pa. 278.</p> <p>It was the duty of the driver to be looking ahead: Johnson v. Ry., 160 Pa. 647; Schnur v. Citizens’ Traction Co., 153 Pa. 29; Pass. Ry. v. Foxley, 107 Pa. 537; Ehrisman v. Harrisburg Ry. Co., 150 Pa. 180.</p> <p>More than ordinary care was required in this case: Robinson v. Cone, 22 Yt. 213; 1 Thompson on Negligence, 452; Daniels v. Clegg, 28 Mich. 41; Mallard v. Ninth Ave. R. Co., 7 N. Y. Sup. 666; Kerr v. Forgue, 54 111. 482; R. R. Co. v. Dewey, 26 IH. 255; O’Mara v. R. R. Co., 38 N. Y. 445; Sheridan v. R. R. Co., 36 N. Y. 39; Brennan v. Fair Haven R. R. Co., 45 Conn. 284; Shenner v. St. Ry. Co., 78 Wis. 382; Beven on Neg., 166; Whart. on Neg., 313, 389; Railroad Co. v. Spearen, 47 Pa. 300; Pittsburg Ry. Co. v. Caldwell, 74 Pa. 421; Philadelphia Ry. Co. v. Hassard, 75 Pa. 367; Sandford v. Ry. Co., 136 Pa. 84.</p> <p>The defendant’s driver was also violating the “ law of the road ” and should, therefore, have exercised more than ordinary care: Whart. on Neg., 820; Beven on Neg., 653; Cruden v. Fentham, 2 Esp. 685; Chaplin v. Hawes, 3 C. & P. 554; Grier v. Sampson, 27 Pa. 183; Beach v. Parmeter, 23 Pa. 196; EUiott on Roads and Streets, 620; Cooley on Torts, 666.</p> <p>cited, Chilton v. Traction Co., 152 Pa. 425; Flanagan v. People’s Pass. Ry., 163 Pa. 102.</p>

<p>Will — “ Right heirs" — Remainder.</p> <p>Testator bequeathed a sum of money in trust to pay the income to his wife for life, and then to his sisters or the survivor for life, “ and at the death of my said wife and sisters to pay over the same to my right heirs.” Held, that the words “right heirs” mean the heirs of the testator who were living at the date of his death. In such a case the words “ right heirs ” are words of purchase, and are as plain a descriplio personarum as though he had mentioned the parties by their individual names. They do not, however, include the testator’s widow.</p>

Appeal, No. 478, Jan. T., 1896, by Caroline G. Hunswortb, from decree of O. C. Phila. Co., Jan. T., 1895, No. 420, dismissing exceptions to adjudication. Exceptions to adjudication.

<p>Appeal, No. 110, July T., 1896, by Clement M. Hempliill and A. Julian Hemphill, from decree of O. C. Phila. Co., July T., 1896, No. 110, appointing trustee.</p> <p>Petition for the appointment of a trustee.</p> <p>From the record it appeared that testator died on April 1, 1874, leaving to survive him a widow and three sons. By his will he gave his widow all of his estate in trust for certain purposes. The material portion of the will as far as the present case is concerned is as follows:</p> <p>“ After the death of my said wife, Sarah Jane, I give and bequeath to my children above named, all of my personal property to be divided among them share and share alike. And my real estate I leave to them my said children, Clement M., William J., and Alexr. Julian, in trust, the net income of which shall belong to them share and share alike, and at their death I give, devise, and bequeath the same to their heirs, administrators, and assigns. In the event of any of my children dying without heirs, then his share shall be given to the survivor or survivors.”</p> <p>The widow of the decedent died without having married again on June 22,1896. The three sons are still living and are parties to this proceeding.</p> <p>The opinion of the orphans’ court by Ashman, J., was as follows:</p> <p>The petition for the appointment of a trustee assumes that there is an active and subsisting trust. The will gave to the widow “ in trust ” all of the estate, “ the net income ” of which was, with certain exceptions, to belong to her for life. At her death, which has occurred, the personal estate was given to the children absolutely, and the real estate to them, naming them, “ in trust, the net income of which shall belong to them, share and share alike, and at their death, I give, devise, and bequeath the same to their heirs, administrators, and assigns. In the event of any one of my children dying without heirs, then his share shall be given to the survivors or survivor.” An analysis of the.cases in Pennsylvania, which have settled the distinction between active and dry trusts, will show that, in the former class, the duty to be performed by the trustee must not only involve some positive action on his part, but an action attended with some discretion. The automatic function of merely receiving for the cestui que trust and immediately paying over to him the trust fund or its income will not make a trust active. The •cestui que trust could perform the act as well, and he has no protection in the superior judgment of the trustee, because the trustee is not empowered to exercise his judgment. The cases properly describe him as a mere conduit. But when the trustee is invested with a discretion however slight, he takes the place of the donor, and the trust committed to him is active. A trust for the protection of the beneficiary, who may be a spendthrift, or a married woman, or a party in remainder, stands, of course, on a different footing, and is equally valid, whether the duties of the trustee are active or passive. That this testator intended to create a trust in his real estate is clear, because he said that much when he devised it “in trust.” That he intended the trust to be active is equally clear, because he directed the trustee to pay over the “net income.” But the net income of real estate is only that portion which remains after the payment oi taxes, repairs, and commissions, and a large measure of discretion is incident to the payment of at least one of these charges. If the trustee should pay over the gross income to the cestui que trust, he would be liable for mismanagement.</p> <p>The trust is a continuing trust for another reason. The estate in the children was an equitable estate for life, and the estate in remainder to their heirs was a legal estate. The two estates being of different qualities could not coalesce, and the rule in Shelley’s Case did not therefore apply, and the trust was essential in order to protect the remaindermen: Little y. Wilcox, 119 Pa. 439.</p> <p>Among other authorities establishing these plain propositions, McIntosh’s Estate, 158 Pa. 528, decided that a devise to trustees with a direction to pay the rents, after deduction of taxes and repairs, to testator’s grandsons, was an active trust. In Kountzleman’s Estate, 21 W. N. 467, an active trust was implied from the direction to pay over the rents and profits. In Eley’s Appeal, 103 Pa. 300, the devise was in trust to pay the income for life to A., and on his death to convey the fee to the proper heirs of A., and it included a power of sale in the trustee. The trust was held to be active and continuing. See also Livezey’s Appeal, 106 Pa. 201.</p> <p>The prayer of the petition is granted, and counsel will submit a decree specifying the trustee for whom they ask the appointment.</p> <p>DECBEE.</p> <p>And now, to wit, November 7, 1896, on motion of Charles E. Pancoast, Esq., the prayer of the above petition is granted, and A. Julian Hemphill is hereby appointed trustee under the will of William K. Hemphill, deceased, in place of trustees therein named who have renounced as set forth in said petition.</p> <p>Error assigned among others was decree of the court, quoting it.</p> <p>No ease can be found in Pennsylvania in which the mere use of the words “ net income,” without more, has been held to create an active trust. If the decision of the orphans’ court is sustained, this case will go further than any reported case on the subject.</p> <p>Even if an active trust were created by the will, as the gift is of the net income to the heirs, a trust is created in the heirs of the body for an equitable estate in fee tail, which under the act of 1855 would be an equitable estate in fee, and the two equitable estates would coalesce, and there would be created an equitable estate in fee, which would violate the rule against perpetuities. The word “ same ” grammatically refers to the words “net income,” and not the word “share.” To avoid such a result the will should be construed — as it very properly may — to give the first takers a legal estate in fee simple.</p> <p>Heirs will be held equivalent to “heirs of the body,” if there is a limitation over in default of heirs to a person who may be, or to several persons, some of whom may be, collateral heir or heirs to the first taker, the limitation over to collateral heirs showing that by “ heirs ” the testator meant “ heirs of the body: ” Theobald on Wills, 207; Harris v. Davis, 1 Collyer, 416; Webb v. Hearing, 2 Cro. 415; Seely v. Seely, 44 Pa. 484.</p> <p>The trust for the life of the sons is active: Perry on Trusts, sec. 59; Forster v. Abraham, L. R. 17 Eq. 351; Stambaugh’s Est., 135 Pa. 585.</p> <p>The remainder over is of the legal estate: Bacon’s App., 57 Pa. 504; Livezey’s App., 106 Pa. 201.</p>

<p>Negligence — Damages—Bight of action — Widow—Death—Act of April 15, 1851, sec. 19.</p> <p>Under the Act of April 15,1851, sec. 19, P. L. 674, where a man marries after he is injured, and brings no suit for his injury in his lifetime, his widow may maintain an action to recover damages for his death against the person whose wrongful act caused his death.</p>

<p>Mortgage — Affidavit of defense — Scire facias.</p> <p>On a scire facias sur mortgage, it appeared that the mortgage was dated and recorded on August 18, 1894. The affidavit ol defense filed by terretenants who had been contractors and material men for the mortgagor in building the houses covered by the mortgage averred that on December 26, 1898, the mortgagor and the terre-tenants entered into an agreement by which the latter agreed to finish a large number of houses and take payment by conveyances of some of the houses to them; that the mortgagee had notice of this agreement; that he had been furnishing money to the mortgagor on the operation, and had agreed to continue to do so as shown by a letter annexed to the affidavit of defense. The letter showed that the mortgagee had agreed to furnish the money, and to release an existing mortgage on condition that all of the houses were finished in good and workmanlike manner within a certain period. The affidavit of defense did not aver that the conditions of the agreement or of the letter had been performed, or that the conveyances to the terre-tenants had been made in pursuance of the agreement. Held, that the affidavit of defense was insufficient.</p>

<p>Executors and administrators — Statute of limitations — Decedents' estates.</p> <p>While an executor is not bound to plead the statute of limitations against a just claim, if the executor is himself the claimant against the estate he must give due legal notice of his claim to the other persons interested in the estate and afford them an opportunity to be heard.</p> <p>Where an executor who is a creditor of the testator on promissory notes has done nothing to toll the statute of limitations within six years after the notes became due, he is not entitled to take credit in his account for the amount of the notes.</p>

<p>Affidavit of defense — Sale—Promissory notes.</p> <p>In an action upon promissory notes for over thirty thousand dollars given for furniture and carpets sold to the defendant, an affidavit of defense was filed averring that the goods were all to be first class, whereas there were various defects in them which were unknown to the defendant when he gave the notes, and also that the plaintiff had failed “ to deliver some of the articles of a very valuable character, which still remain undelivered to the extent of about, at least, one thousand dollars,” and that by reason thereof defendant was greatly injured. The affidavit did not otherwise describe the goods not delivered, nor state their value. Held, that the affidavit of defense was too vague and indefinite to carry the case to the jui'y.</p>

<p>Negligence — Street railways — Wagon on track — Bear end collision.</p> <p>In an action against a street railway company to recover damages for the death of plaintiff’s husband who was killed on defendant’s track while driving a wagon, the evidence for the plaintiff tended to show that the wagon was just about leaving the track when it was struck, while the motorman, who was called by defendant, testified that the wagon was driven upon the track just before it was struck. Held, that the case was for the jury.</p>

<p>Wills — Trusts and trustees — Life estate.</p> <p>Testator gave his residuary estate to trustees in trust to pay certain annuities to his wife and children, during their respective lives, and in case of the death of any of the annuitants, leaving issue, the annuity to pass to the children and issue of such deceased annuitant; and in case of their death without issue, the annuities were to be divided equally among the survivor or survivors of his four children; after the death of the last survivor of his wife and four children, the principal of his estate was to be divided among his grandchildren. The will further provided: “If any other children should be born to either of my children, then in such event, I direct that my trustees shall pay to such additional grandchildren, living at the time of distribution, to each the sum of ”'. . . . Subject to the payment of the foregoing, the will proceeds: “ If there be anything remaining of my estate after payment of all the annuities, bequests, devises and legacies and just claims against my estate as hereinbefore specified and directed to be paid, I give and bequeath the same to my own right heirs. .... If either of my said children should die without issue, or the issue of such child should fail during the continuance of this trust, which is to continue as long as my wife or either of my children shall remain in full life, the share which would have been of such child or its issue shall be divided equally among the survivors of my said four children and living issue of any deceased child, taking only by representation and never per capita.” As to the children the will contained a spendthrift trust clause. Held, (1) that the trust was an active one; (2) that the cestuis que trust did not take an estate tail or fee simple under the will; (8) that the cestuis que trust were not entitled to the corpus of the estate.</p>

<p>Appeal, No. 464, Jan. T., 1896, by tbe Pennsylvania Company for Insurance on Lives and Granting Annuities, executors and trustees of John Eisenbrey, Jr., deceased, from decree of O. C. Phila. Co., Jan. T., 1885, No. 325, sustaining exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of Hanna, P. J., which was as follows:</p> <p>The question raised by the exceptions is whether the share of Edwin T. Eisenbrey, a deceased son of testator, is to be charged with the amount of two bonds and mortgages executed by him to his father on April 10, 1872, for $27,800, and of his promissory note to his father, dated the same day, for $4,500. The mortgages were payable at the expiration of five and ten years, respectively, and the promissory note was payable two years after date. Testator died in September, 1872, prior to tbe maturity of' either of the bonds and mortgages or promissory note. After the death of his father Edwin T. Eisenbrey continued to pay interest upon his bonds and mortgages to the executors until April 1, 1898, and upon his promissory note until April 10, 1894. He died February 15, 1895, leaving unpaid his bonds and mortgages and promissory note.</p> <p>Testator executed his will on April 23,1872, and a codicil thereto July 9, 1872. By his will be bequeathed and devised all the residue of his estate to the accountant in trust for payment of annuities, and after payment of the same, to increase the residue “ for purposes of distribution, by the aggregate of all debts and advances, without interest, however, which must not be charged, which shall, at the time of my decease, be chargeable against my children, as well those hereafter made as those now existing, which I declare to be as follows: Edwin T. Eisenbrey has not been advanced.” He then enumerated advances made to four of his children and the indebtedness of one daughter, but made no reference whatever either to the bonds and mortgages or the promissory note of his son Edwin T. Eisenbrey held by him at the date of the execution of his will. As testator expressly declared he had not made any advances to his son, and did not recite in his will the bonds and mortgages and promissory note, it is safe to assume he did not include them as debts due by his son which were to be treated as advancements in the final distribution of his estate, as directed in the subsequent provisions of his will. Other reasons might be mentioned why these evidences of indebtedness were not in the mind of the testator. It is sufficient to say, however, that the facts and circumstances show that the bonds and mortgages and note were given as part, if not the whole, consideration for the conveyance by testator to his son of the real estate mortgaged, and were treated by him as part of the general assets of his estate. A very significant fact is, that after the death of testator the bonds and mortgages and note were not considered, either by the accountant or by the said Edwin T. Eisenbrey, as advancements or debts, to be treated as such. On the contrary, for more than twenty years they were held as investments of the estate. Edwin T. Eisenbrey paid interest upon both his mortgages and promissory note, and it was divided ■.as income of tbe estate among the cestuis que trust, including .himself.</p> <p>After careful consideration the auditing judge is satisfied that the former conclusion reached is erroneous, and the scheme of distribution should be corrected. The bonds and mortgage are therefore directed to be retained by the accountant, to be collected and accounted for hereafter in a further account as an asset of the estate, and so with the promissory note of Edwin T. Eisenbrey. This is also to be retained for collection out of the separate estate of said Edwin T. Eisenbrey, and in like manner to be hereafter accounted for. The exceptions are accordingly sustained. The schedule of distribution is directed to be modified in conformity with this opinion, and a final -decree is to be prepared by counsel.</p> <p>.Errors assigned were in sustaining exceptions to adjudication.</p>

Appeal, No. 202, Jan. T., 1896, by Annie W. Kratz, from decree of O. C. Pbila. Co., dismissing exceptions to adjudication. Exceptions to adjudication. From the record it appeared that decedent died on July 21r 1894, leaving two daughters, Mary C. Davis and Annie W. Kratz.

Appeal, No. 339, Jan. T., 1896, by Thomas E. Cahill, from decree of O. C. Phila. Co., April T., 1895, No. 55, refusing issue devisavit vel non. Appeal from register of wills. The facts appear by the opinion of.

Appeal, No. 461, Jan. T., 1896, by defendant, from judgment of C. P. No. 1, Pbila. Co., June Term, 1895, No. 453, on verdict for plaintiff. Trespass for personal injuries. At tbe trial it appeared that on March 9, 1895, plaintiff was injured by being thrown from his wagon on Third street near Thompson, in the city of Philadelphia.

Appeal, No. 363, Jan. T., 1896, by Holstein DeHaven, Guardian of Robert T. Potts, from decree of O. C. Phila. Co., Oct. T., 1891, No. 128, sustaining exceptions to adjudication. Exceptions to adjudication. From the record it appeared that on August 24, 1887, Abraham R. Cox executed his last will and testament, at which time he had living two children; a daughter, Caroline E., intermarried with E. Channing Potts, and a son, Abraham R. Cox.

Appeal, No. 440, Jan. T., 1896, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T , 1894, No. 238, on verdict for plaintiffs. Appeal from report of road jury. Before Pennyp acker, J. At the trial Thomas F. Wilkey was asked by his counsel: “ Tell me, if you please, in order to continue your farming what it is necessary for you to do after the street is cut through? ” Mr. Wayland, of counsel for defendant: I renew my objection.

<p>Assignment for creditors — Execution—Sheriff.</p> <p>There can be no valid, levy made on a writ of execution issued after the defendant in the execution has made an assignment for the benefit of creditors: Missimer v. Ebersole, 87 Pa. 109.</p> <p>Execution — Delay by sheriff — Loss of liens.</p> <p>An execution creditor who places his writ in the hands of the sheriff ■ with instructions to make the money upon it, and who does not countermand or modify his instructions, or in any way interfere with the execution of the writ, does not lose his lien by the delay of the sheriff in making the sale.</p> <p>Execution — Assignment for the benefit of creditors.</p> <p>Two executions were placed in the hands of the sheriff with directions to make the money upon them. The directions were subsequently repeated, but the sheriff delayed making the sale. In the mean time an attachment execution was issued against the debtor, who shortly afterwards made an assignment for the benefit of creditors. After the assignment judgment was entered in the attachment execution and a fi. fa. was issued on the judgment. The sheriff subsequently sold the property of the debtor. Held, (1) that the liens of the levies on the first -writs were not lost as against the defendant at whose instance the sale was postponed; (2) that as the third execution creditor did not dispute the validity of the assignment, he obtained by his levy no priority over general creditors and no standing to contest the prior levy; (8) that as no general creditors are claiming the fund on the ground that the levies were fraudulent as to them, the first and second execution creditors were entitled to the proceeds of the sale.</p>

<p>Attorneys at law — Powers of — Warrant of attorney — Practice, O. P.</p> <p>An attorney at law is an officer of the court in which he is admitted to-practice. His admission and license to practice raise a presumption prima facie, in favor of his right to appear for any person whom he undertakes to represent. When his authority to do so is questioned or denied the burden of overcoming this presumption in his favor rests on him who-questions or denies his authority, and such person must show by affidavit the existence of facts tending to overcome the presumption before the attorney can be called upon to file his warrant of attorney.</p> <p>Where an attorney, in accordance with a rule taken upon him, files a warrant of attorney sufficient in form and in manner of execution, the rule has been complied with, and it is functus officio. If the warrant is alleged to be defective, or forged, or in any manner insufficient to justify the court in treating it as authority for the appearance of the attorney, the defect should be pointed out by exceptions, and its sufficiency passed upon by the court. If the court holds the warrant sufficient the case proceeds. If it is held insufficient proceedings therein will be stayed or in a proper case the suit may be dismissed.</p> <p>An attorney at law regularly admitted to practice filed a bill in equity. A rule was subsequently taken upon him to file his warrant of attorney. No affidavit or statement of facts tending to throw doubt on his authority was filed, and no application whatever was made to the court. Subsequently the attorney filed a warrant of attorney in due form executed by the corporation purporting to be the plaintiff, under its seal. Subsequently the court, without any final disposition of the warrant of attorney, and without any suggestion on the record that it was not what it purported to be, granted a rule to show cause why the warrant should not be stricken off, and afterwards made the rule absolute. It appeared that there had been proceedings in the same court by which the organization of the corporation plaintiff had been found to be invalid, and that another company had the right to the name. Held, (1) 'that the proceedings in allowing the rule on the attorney to file his warrant, and in striking off the warrant, were irregular and improper; (2) that as the action of the court was based upon the previous findings in the other case as to the invalidity of the corporation, the irregularity did no harm; (3) that an appeal from the order striking off the warrant of attorney should be dismissed, because the irregularity did no injustice.</p>

<p>Appeal, No. 330, Jan. T., 1896, by-defendant, from decree of C. P. No. 2, Pbila. Co., Sept. T., 1893, No. 826, on bill in equity.</p> <p>Bill in equity for an account. Before Pennyp ACKER, J.</p> <p>Motion for leave to apply to tbe court below to have the evidence certified.</p> <p>The trial judge found certain facts and conclusions of law and recommended a decree for the plaintiff. Exceptions to the findings and to certain rulings on evidence were dismissed by the court. The evidence was not certified to by the stenographer or by the trial judge, and no bill of exceptions was taken. Defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to the report of the trial judge.</p> <p>The evidence is not before the court, equity rules adopted March 1, 1894: Connell v. O’Neil, 154 Pa. 582: Com. v., Arnold, 161 Pa. 820.</p>

<p>Appeal, No. 350, Jan. T., 1896, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 1093, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit on promissory notes.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for want of a sufficient affidavit of defense.</p> <p>Where an affidavit of defense clearly and specifically sets forth a verbal agreement which induced the execution of the promissory notes in suit, and that evidence is substantiated by deeds of trust upon which the notes are based, the affidavit is sufficient: Martin v. Fridenberg, 169 Pa. 447.</p> <p>Parol evidence is admissible to show a contemporaneous verbal agreement which induced the execution of a written agreement, though it may have the effect of varying or changing the terms of the contract: Greenawaltv. Kohne, 85 Pa. 369; Bown v. Morange, 108 Pa. 69.</p> <p>Helfenstein’s Est., 135 Pa. 293; Craft v. Webster, 4 Rawle, 242; McCausland v. Hickman, 3 W. N. C. 94; Phila. & Balt. Cent. R. R. v. Johnson, 54 Pa. 127.</p>

<p>Appeal, No. 403, Jan. T., 1896, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1893, No. 40, M. L. D., on a mechanic’s lien claim.</p> <p>Scire facias sur mechanic’s lien.</p> <p>The claim filed was as follows :</p> <p>Joseph S. Lovering Wharton and William S. Hallowed, trading as the Harrison Safety Boiler Works, manufacturers of steam boilers, hereby file their claim against the building hereinbefore mentioned commonly called the Lincoln Apartment House and ■the lot of ground appurtenant thereto, and set forth the same as follows:</p> <p>The names of the parties claimant are Joseph S. Lovering Wharton and William S. Hallowed, of the city of Philadelphia, trading as the Harrison Safety Boiler Works. The name of the owner or reputed owner of said building is the Real Estate Investment Company of Philadelphia. The name of the contractor is William J. Murphy.</p> <p>The amount claimed to be due is $1,065. This sum is due for the furnishing of the materials and the erection and putting in position of one seventy-horse power Wharton-Harrison boiler in the said building, with feed water heater, blow-off tank and Worthington duplex pumps, as set forth in the bid of particulars hereto annexed and made part of this claim. The said boder and fixtures enumerated in the said bill of particulars were a necessary and important part of the said building, and were furnished upon the credit of the same under and in pursuance of a contract or agreement by letter with the said William J. Murphy, a copy of which is hereto annexed, for the sum or price of $2,130, which was the just, fair and proper value of the said boiler, heater, pumps, etc. One thousand and sixty-five dollars have been paid on account, leaving still due to the said claimants the sum of $1,065, as above set forth.</p> <p>A statement and bill of particulars is annexed hereto, setting forth particularly the nature and hind of work done and materials furnished and the time when the same were done and furnished.</p> <p>The said building is an apartment house, designated and known as the “ Lincoln,” five stories high, built of brick and brownstone having a front or width of forty feet and a depth or length of seventy-nine feet four and one half inches, more or less, situate or built upon all that certain lot or piece of ground situate on the southwest corner of. Locust and Dean streets, in the Eighth ward of the city of Philadelphia, containing in front or breadth on the said Locust street forty feet, and extending southward in length or depth seventy-nine feet four and one half inches, be the same more or less, bounded on the north by the said Locust street, on the east by the said Dean street, and on the south and west by ground formerly of Thomas Shields, numbered 1222 and 1224 Locust street.</p> <p>“AGREEMENT, JUNE 22d, 1893.</p> <p>“Mr. W. J. Murphy, 723 Walnut St., Phila.</p> <p>“ Dear Sir: — In accordance with your conversation with Mr. Norris and Mr. Cochrane this morning we hand you herewith blue print showing proposed arrangement of a 70 H. P. Wharton-Harrison Safety Boiler, Cochrane Feed-Water Heater, Pumps- and Blow-off Tank for the Lincoln Apartments.</p> <p>“We hereby propose to furnish the material for this steam generating plant specified below for the sum of Two Thousand, One Hundred' and Thirty Dollars, ($2,130.00) net cash, payable one-half upon delivery of the material at the building, and the balance in full within thirty (30) days from completion of our work of setting. For this sum we propose to furnish, deliver, erect and set complete in brickwork with flue connection inte base of stack at the Lincoln Apartments, Locust & Dean Sts. Philadelphia, one 70 H. P. Wharton-Harrison Safety Boiler, constructed of six special slabs, and furnished complete with our regular cluster grate bars and bearers, all necessary wall castings, full iron front, and our standard valves, gauges and fittings throughout, our work on the boiler ending with the flanged or tapped outlets left in steam coupling, to which the contractors for the piping will make their steam connections; and with the feed valves and blow-off cock placed immediately outside of the front of the boiler, from which the contractors for the piping will make the water connections.</p> <p>“We also propose to furnish, deliver and set in position one No. 1 Style ‘ A ’ Cochrane Patent Feed-Water Heater and Purifier.</p> <p>“ One Cast-Iron Blow-off Tank, 3' 6" X 3' 6" X 8' long delivered and set in position below the floor line of boiler room, including excavating space for the tank.</p> <p>“Two 4i" X 2|" X 4" Worthington Duplex Pumps, brass fitted, and with metal valves for feeding hot water, delivered and set on suitable brick foundations.</p> <p>“ In order to have this material delivered and set by August 1st, which we understand it is your wish, it is necessary that we have your regular acceptance of this proposition at once so that the order can be placed upon our books, shop orders issued, and work proceeded with without delay.</p> <p>“ Awaiting your command, we remain,</p> <p>“ Yery truly yours,</p> <p>“Harrison Safety Boiler Works.</p> <p>“Wm. S. Halt,dwelt,.”</p> <p>“ Phila. June 27th, 1893.</p> <p>“ Harrison Safety Boiler Works.</p> <p>“ Gentlemen: — Your estimate of the 22nd for boilers, pumps, Feed-water Heater, Blow-off tank, etc. to be furnished and set in position for two thousand one hundred and thirty dollars for Lincoln Apartment House at 1222 & 24 Locust street is hereby accepted. The boiler to develope 70 H. P. all tobe set in position complete by August 1st, 1893.</p> <p>“Yours very truly,</p> <p>“Wm. J. Murphy.</p> <p>“ Per H.”</p> <p>BILL OF PARTICULARS.</p> <p>The Real Estate Investment Company of Philadelphia, owner or reputed owner, and William J. Murphy, contractor. July 27th, 1893.</p> <p> Dr. </p> <p>“ One seventy-horse power Wharton-Harrison safety boiler (composed of six special slabs), complete with usual gauges, valves, fittings, and grates ; delivered, erected, and set complete in brick work, with flue connections into base of stack, at the Lincoln Apartment House, 12-22 and 1224 Locust Street, Philadelphia. One No. 1 ‘ A ’ Cochrane feed-water heater and purifier, delivered and set. One cast-iron blow-off tank, 3 feet 6 inches by 3 feet 6 inches by 8 feet, delivered and set below the floor line of boiler room, including excavating space for same. Two 4^-inches by 2f inches by 4 inches Worthington duplex steam pumps, delivered, and set on suitable brick foundations, $2,130.00.”</p> <p>The material furnished consisted of the iron work and fittings above specified.</p> <p>The work done consisted in putting in position the above material and in fitting and erecting the same; the said work was begun on or about July 27, 1893, and was continued until completed.</p> <p>And the said claimants claim to have a lien on said building and the curtilage appurtenant thereto for the amount of their said claim, according to the acts of assembly in such cases made and provided.</p> <p>A rule was granted on defendant’s motion to strike off the lien, (1) because the claim did not show that the materials were furnished “ for or about the erection or construction of a new building; ” (2) because the claim was for a lumping charge, and did not specify the items of which it was made up.</p> <p>The court subsequently discharged the rule. [1]</p> <p>Defendant then demurred to the claim, assigning the same reasons which had been given for striking it off. The court entered judgment for the plaintiffs on the demurrer. [2]</p> <p>At the trial the court charged in part as follows :</p> <p>[If you come to the conclusion that from the evidence you are constrained to say that it is simply a repair of the old building, then your verdict should be for the defendant. You must take everything into consideration — the style, character, and purpose of the old and new building — and if you are satisfied from the evidence that it is really and substantially a new structure in style and everything connected with it, and that only certain portions of the old building were utilized because it became necessary to tear them down, then your verdict should be for the plaintiffs.] [5]</p> <p>I understand the amount is admitted, and if you are with the plaintiffs on the questions I have submitted to you, then the verdict should be for the amount of the claim, with interest from the time fixed.</p> <p>Defendant’s points and answers thereto, among others were as follows:</p> <p>1. The plaintiffs’ claim does not set forth whether the work and materials were furnished for the erection of a new building or for repairs of an old one; your verdict should therefore be for the defendant. Answer: Refused. [8]</p> <p>2. The claim filed shows that the work and materials were furnished under and in pursuance of a special agreement made with the contractor of the owner, and does not specify the items of plaintiffs’ claim for work and materials furnished. It contains a lumping charge. This does not satisfy the requirements of the statute, and is therefore fatally defective. Your verdict should therefore be for the defendant. Answer; Refused. [4]</p> <p>Verdict and judgment for plaintiffs for $1,233.21. Defendant appealed.</p> <p>Errors assigned were (1) discharging rule to strike off lien; (2) entering judgment for plaintiffs on the demurrer ; (3-5) above instructions, quoting them.</p> <p>—The claim was invalid because it does not show whether it is for the erection of a new building or for repairing or altering an old one: Barclay’s App., 13 Pa. 497.</p> <p>The claim shows only a lumping charge: Shields v. Garrett, 5 "W. N. O. 120; Fahnestock v. Speer, 92 Pa. 146; McFarland v. Schultz, 168 Pa. 634.</p> <p>The claim was sufficient to show the class: Knabb’s App., 10 Pa. 191; Johnson’s Mechanic’s Lien Law, p. 210; Kelly v. Brown, 20 Pa. 446; Taylor v. Wittkamp, 13 Phila. 31; Act of May 18, 1887, P. L. 118.</p> <p>The objection that this charge of a boiler with fittings at $2,130 is a lumping charge, and therefore bad, is not well taken: Fahnestock v. Speer, 92 Pa. 146; Shields v. Garrett, 5 W. N. C. 120; McFarland* v. Schultz, 168 Pa. 634; Lee v. Burke, 66 Pa. 336; Russell v. Bell, 44 Pa. 47; Gray v. Dick, 97 Pa. 142; Tack y. Brady, 2 W. N. O. 426; Pa. Gas Light Co. v. Gill, 28 W. N. C. 36.</p>

<p>Executors and administrators — Suit against foreign executor.</p> <p>In Pennsylvania a foreign executor within the jurisdiction of the Pennsylvania courts is liable to suit by a resident creditor of his decedent, and such suit will be sustained unless it would trench unduly on the jurisdiction of another court already attached, or would expose parties subject to such jurisdiction to inequitable burdens: Swearingen v. Pendleton, 4 S. & R. 389; Evans v. Tatem, 9 S. & R. 252; Bryan v. McGee, 2 Wash. C. C. 337 followed; Magraw v. Irwin, 87 Pa. 139 distinguished.</p>

<p>Appeal, No. 457, Jan. Term, 1896, by defendant, from judgment of C. P. No. 1, Phila. Co., June Term, 1895, No. 397, on verdict for plaintiff.</p> <p>Trespass for death of plaintiff’s husband. Before Biddle, J.</p> <p>Motion to quash appeal.</p> <p>The record showed that there was no bill of exceptions.</p> <p>Upon the last page as filed by the stenographer was the following certificate:</p> <p>“ I do hereby certify that the foregoing notes of testimony are a true transcript from my shorthand notes taken in the case.</p> <p>“ Samuel B. Collins,</p> <p>“Per E. S., Official Reporter C. P. No. 1.” .</p> <p>And under this certificate were written these words:</p> <p>“ Approved. Craig Biddle.”</p> <p>■cited on the motion to quash: Pool v. White, 171 Pa. 500; Com. v. Arnold, 151 Pa. 327; Hill v. Egan, 160 Pa. 119; Philadelphia v. Institute, 177 Pa. 37.</p>

<p>Equity — Practice, O. P. — Appeal—Making up record.</p> <p>Where a record has been made up and certified for appeal, it is improper practice to pin the decree of the court below to another paper in the case. If the record was made up before the decree was entered, the decree should be sent up by a special return sur diminution of record.</p> <p>Trusts and trustees — Accounts—Equity jurisdiction — Acts of April 25, 1850, April 22, 1856 and June 14, 1836.</p> <p>On a bill in equity, it appeared that the defendant who had the legal title to certain real and personal estate agreed to hold the property subject to certain interests of the plaintiff and others therein, and to account in the mode and upon the principles set out in the written agreement. This agreement was the foundation of the bill. The property in question was situated in McKean county, Pennsylvania. The bill averred that the defendant “ resides and is domiciled in the city of Philadelphia.” The defendant admitted in his answer the truth of this averment. Held, (1) that the defendant by the agreement constituted himself a trustee, and became liable to account in' any court having jurisdiction over him, not by virtue of any statute as to tenants in common, but by the general jurisdiction of chancery to compel performance of equitable duties or the enforcement of equitable rights wherever the party may be found, without reference to the locality of the land; (2) that as far as the jurisdiction of the court was concerned, the Acts of April 25, 1850, sec. 24, P. L. 573, April 22, 1856, P. L. 502, and June 14, 1836, sec. 15, P. L. 632, had no application.</p>

Petition for reargument. The case is reported in 176 Pa. 809.

Appeal, No. 306, Jan. T., 1896, by defendant, from judgment of C. P. Montgomery Co., March T., 1895, No. 97, on verdict for plaintiffs. Trespass for personal injuries. Before Weand, J. Mary B. Schively had also brought a separate suit against the defendant, and by consent of the parties the two suits were consolidated.

Appeal, No. 491, Jan. T., 1896, by defendants, from decree of C. P. Lebigb Co., Jan. T., 1896, No. 2, on bill in equity. Bill in equity for an injunction. Albright, P. J., filed tbe following opinion: 1.

Appeal, No. 555, Jau. T., 1896, by defendant, from judgment of C. P. Montgomery Co., June T., 1896, No. 86, on verdict for plaintiff. Trespass to recover damages for personal injuries. Before We and, J. At the trial it appeared that on August 14, 1895, the plaintiff went to defendant’s grist mill, and while lawfully on the premises, was injured by an explosion of the burr stones of the mill.

Appeal, No. 607, Jan. T., 1896, by defendant, from decree of C. P. Montgomery Co., Dee. T., 1893, No. 13, on libel, for divorce. Libel for divorce on ground of desertion. The libel, filed October 5, 1893, averred that the desertion took place on April 1, 1893, and still continues.

<p>Appeal, No. 91, Jan. T., 1897, by defendants, from decree of C. P. McKean Co., Oct. T., 1896, No. 6, on bill in equity.</p> <p>Bill in equity for the appointment of a master to conduct a stockholders’ meeting.</p> <p>Motion to quash appeal.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>—The decree was merely interlocutory and not appealable: Cake v. Cake, 106 Pa. 472; Davis v. Hood, 13 Pa. 171; Logan v. Penna. R. R., 132 Pa. 403; O’Hara v. Pa. R. R., 2 Grant Cases, 241; Grant v. Phoenix Ins. Co., 106 U. S, 429; Ins. Co. v. Adams, 9 Peters, 571; Young v. Smith, 15 Peters, 287; Ex parte S. & N. Ala. R. R., 95 U. S. 221; Green v. Eisk, 103 ü. S. 518.</p> <p>A decree to be final for the purposes of an appeal, must leave the case in such a condition that, if there be an affirmance here, the court below will have nothing to do but to execute the decree it has already entered: Dainese v. Kendall, 119 U. S. 53 ; Winthrop Iron Co. v. Meeker, 109 U. S. 180; Bostwick v. Brinkerhoff, 106 U. S. 3; Mills v. Hoag, 7 Paige, 18; St. Louis &c. R. R. v. Southern Express Co., 108 U. S. 24; Forgay v. Conrad, 6 Howard, 204; Johnson v. Everett, 9 Paige, 636.</p>

<p>Appeal, No. 315, Jan. T., 1896, by plaintiff, from judgment of C. P. No. 3, Pbila. Co., March. T., 1892, No. 902, refusing to take off nonsuit.</p> <p>Appeal from report of jury of view. Before Gordon, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Gordon, J., entered a nonsuit stating his reason therefor as follows:</p> <p>I have entered a nonsuit for the reasons you have heard me state. The city of Philadelphia had all these streets plotted upon its plans, from the year 1864, and this plaintiff was a tenant from year to year on this ground. An ordinance authorizing the opening of the streets passed in the year 1884, and the city of Philadelphia came into court and filed her bond, which she is required to do under the constitution, to secure parties injured by reason of her entry and opening of the streets. When that occurred the landlord’s title to the ground was divested; that is to say, the right of immediate entry existed in the city of Philadelphia, because she filed her bond, and hence, when the landlord leased or pretended to lease subsequently the beds of those streets to this plaintiff, he, as a matter of fact, gave him no title, or whatever title he gave him was charged with the same incumbrance that the landlord’s own title was. It was the right of the city immediately to enter, hence, if the tenant planted anything in the bed of the street, it was at his own risk. The city of Philadelphia was in a position at any moment to enter and take the land.</p> <p>Error assigned was in refusing to take off nonsuit.</p> <p>It is difficult to conceive how the damages to the leasehold interest of the plaintiff could have been arrived at, without an estimate at least of the crop-producing capacity of the land actually taken: Danville, Hazleton & Wilkesbarre R. R. v. Gearhart, 81* Pa. 260; Hill v. Trust Co., 108 Pa. 1; Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Yolkmar St., 124 Pa. 320; Whitaker v. Phoenixville Borough, 141 Pa. 327; Brower v. Phila., 142 Pa. 350; Ogden v. Phila. 143 Pa. 434; Gilmore v. R. R., 104 Pa. 275; Lafferty v. R. R., 124 Pa. 297; Justice v. Phila., 169 Pa. 503; Clark v. Phila., 171 Pa. 30.</p> <p>The plaintiff was entitled to just compensation for the fixtures and crops injured and destroyed by the city: Bush v. City of McKeesport, 166 Pa. 57; Act of March 22, 1813, P. L. 186; Act of February 2,1854, P. L. 21; Act of April 21, 1855, P. L. 264; Act of December 27, 1871 (Appendix, 1872, P. L. 1390) ; Act of May 16, 1891, P. L. 75; Art. IX., Sec. X. of the Constitution, 1790 ; Case of The Phila. & Trenton R. R., 6 Wharton, 25; O’Connor v. Pittsburg, 18 Pa. 187 ,• Pusey v. Allegheny, 98 Pa. 522; District of the City of Pittsburg, 2 W. & S. 320; Fur-man Street, 17 Wend. 649; Forbes Street, 70 Pa. 125; Seaman v. Hicks, 8 Paige, 660; Moale v. Baltimore, 5 Md. 314; State v. Seymour, 35 N. J. L. 47; State v. Carragan, 36 N. J. L. 52; Sedgeley Ave., 88 Pa. 509; Grugan v. Phila., 158 Pa. 337.</p> <p>—As to an owner’s title being divested by filing of a bond to secure damages there can be no question: Fries v. R. R., 85 Pa. 73; Hoffman v. R. R., 118 Pa. 512; McClinton v. R. R., 66 Pa. 404.</p> <p>In none of the cases cited by the counsel for the appellant did the question decided involve the filing of a bond prior to the execution of the lease. In Justice v. City, 169 Pa. 503, the bond was not filed until after the execution of the lease. In Lafferty v. R. R., 124 Pa. 297, no bond was filed and the decision hinged upon the mere location of the railroad. So too in Gilmore v. R. R., 105 Pa. 275.</p> <p>The entry of the city’s bond and the proceedings for the same were part of the record upon which the plaintiff’s appeal rested, which record was in the common pleas, that court being vested with exclusive jurisdiction by the entry of the appeal: Chestnut Street, 128 Pa. 214.</p>

<p>Judgment — Bes adjudicata — Orphans' court — Common pleas.</p> <p>Where a claim against the estate of a decedent has been put in judgment in the court of common pleas, payment of the claim cannot be resisted by the executors of the decedent at the audit of their account in the orphans’ court. A judgment may be corrected for mistake or impeached for fraud; but only in the court in which it was rendered, on a proper application, and not in a collateral proceeding.</p> <p>Judgment — Set-off—Bes adjudicata.</p> <p>After a claim has been put in judgment, set-off as against the claim so judicially determined is conclusively presumed to have been made, and the strife over it is at an end.</p>

Appeal, No. 501, Jan. T., 1896, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept T., 1891, No. 297, overruling exceptions to referee’s report. Assumpsit to recover #46,520.20 for natural gas. Exceptions to referee’s report.

<p>Appeal, No. 585, Jan. T., 1896, by plaintiff, from judgment of C. P. Montgomery Co., March T., 1896, No. 41, refusing to take off compulsory nonsuit.</p> <p>Trespass for the death of plaintiff’s husband. BeforeWEAND, J.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>The facts appear by the opinion of the court below, overruling the motion to take off the nonsuit which was as follows:</p> <p>The action was for damages in causing the death of plaintiff’s husband. At the conclusion of plaintiff’s testimony, the defendant’s counsel moved for a compulsory nonsuit which the court granted, because of the deceased’s contributory negligence. The accident occurred at the crossing of the Germantown turnpike road by the Trenton cut-off branch of the Pennsylvania Railroad in Plymouth township, Montgomery county. The crossing is almost at right angles, and the railroad tracks are straight for a considerable distance. Approaching the crossing from the north, the nearest track would be that used by west bound trains, and looking to the east, approaching trains could be seen for a mile. Looking to the west, the testimony of Alan Corson, a civil engineer, showed that if he “ stood a foot inside of the inside rail of the west going track, with a car a hundred feet away from the crossing on west bound track, his angle of vision would strike an object crossing on the east going track two hundred and ninety-two feet away from my point. . . . Assuming that a man is standing on the south rail of the west bound track looking to the west, the greatest distance at which he could see an approaching train from the west going east, would be about four hundred and thirty feet. Nineteen times out of twenty there would be no trouble in case a man sees the train four hundred and thirty feet off; if he is on the south track wanting to get across the east bound track to a place of safety before the approaching train would reach him, he has got about eight or ten feet to go, and the train has about four hundred and twenty; there might contingencies arise, of course, I do not know.”</p> <p>The decedent lived in the immediate neighborhood of the accident, and was familiar with the crossing. At the time of the accident he was in good health and wore glasses. He was farsighted in one eye, which was corrected by using glasses. The Norristown and Chestnut Hill electric railway occupies part of the hed of the public road, but at that time it did not extend across the tracks of the railroad company. Passengers alighted from the trolley cars on either side of the railroad tracks, and resumed the trolley cars on the opposite side. On the day of the accident, about 5:80 in the evening, Aug. 14, 1895, Mr. Hovenden, with a number of others, was on board a trolley car coming from the north. On reaching the end of the electric railway tracks they alighted and were warned by the conductor that a train was approaching. A freight train with a number of cars was coming from the east on the west bound (nearest) track. It made considerable noise, and the engine emitted considerable smoke, and the passing cars raised a dust. As the freight train cleared the crossing of the public road, Mr. Hovenden, with others who had been standing close to the track, started to cross. He had not yet reached the east bound track when he was struck on the side by the steam chest of an engine coming from the west on the east bound track. The engine was running at a high rate of speed, and the plaintiff’s witnesses all swear they heard no bell or whistle. It is also testified that their vision was obscured by the smoke and dust. William O’Brien, the motorman of the trolley car, a witness for plaintiff, testified: “ After the freight train had passed by a few feet beyond the crossing, the crowd slowly moved towards getting over, Mr. Hovenden being on the front seat of my car and another gentlemen; and a little girl was about four or five seats back, I judge, being a little quick, she stepped out quickly. She was on the front line. After the freight train got by, they moved across slowly. This engine came shooting out and caught Mr. Hovenden and the little girl. When Mr. Hovenden was struck, the freight train was about fifty feet away from the crossing, as near as I can tell by guess work; may be more than that. That afternoon the wind was calm and the air dusty and dry, and the fireman was firing up as they passed by. The smoke fell down. It was a black heavy smoke. It fell down toward the ground over the train. I could not say exactly what part of it struck Mr. Hovenden, because the crowd was in front of me. I judge from the way he was rolled and thrown that some part of the side of the engine struck him. He did not get in front of the engine because it threw him to the side of the west bound track. . . . After the train had passed, these people stood there a trifle, and then moved over toward going across the track to take the car on the other side. They stood there about as long as anybody would stand to see if there was a train coming the other way. I do not know how long it was from the time that Mr. Hovenden and the rest of these people started to go across the track until he was struck. May be two minutes, a minute or two minutes. I cannot tell. I am only guessing. I do not think it was as quick as five to ten seconds. It might have been a half minute.” Vincent McGrath testifies: “ The rear of the train going west had passed Mr. Hovenden three lengths of a car, when he started to cross the track. It was three lengths of a car away when he was struck. The west bound train had gone. He waited until the train had gone forty or fifty feet. It caught him immediately.” Joseph Richard testified: “As the train got past we looked leisurely and started across, and as we walked, the train coming this way, the engine and tender, I saw Mr. Hovenden throw up his hand. The engine ran fast. I fell back. The next thing I saw he was fast on the cow catcher of the engine. He was struck by a box, I think, that round concern on the side of the engine. He was not between the tracks when he was struck. He was just about stepping on the track. I judge on account of the smoke and dust he could not see it. I could not see it. I dare say the whole thing was over in a minute. I do not think it was less than a minute from the time we started across; the time Mr. Hovenden was one place and the engine another place. As soon as the freight train passed we three started over, etc. Just as Mr. Hovenden was stepping on the track he was struck.”</p> <p>We are of opinion that this evidence disclosed contributory negligence on the part of plaintiff’s husband in that he failed to stop, look and listen before attempting to cross. His clear duty Avas not only to wait for the departing train to clear the way, but to wait until he could see whether the other track was also clear. The very fact that the going west bound train obstructed his view of the east bound track should have compelled him to wait until his Anew was unobstructed. The rule which requires a traveler to stop, look and listen would amount to nothing if he could cross the track in rear of a moving object Avithout stopping or looking to see whether the other track was clear. It is also apparent from the testimony that the party attempted to cross without looking or listening. Mr. Hovenden was struck in a minute from the time he started to cross. He had not more than fifteen or eighteen feet to travel. This eould not take him more than fifteen seconds of time at an ordinary walk. The freight train had gone, say, sixty feet. Assuming that it traveled three times as fast as Mr. Hovenden walked, it took it twenty seconds to make the sixty feet. Mr. Hovenden, therefore, could not have waited five seconds, if he waited at all, and according to the testimony, if he stood off the track his view of an approaching train on the east bound track when he started to cross was then obstructed by the freight train. If, however, he had stood on the south rail of the west bound track and looked west he would have had a clear view for two hundred and ninety-two, if not four hundred and thirty feet. All the evidence shows that after starting he kept right on and ran against the engine. The manner in which he was struck also shows his negligence. He had not yet reached the track, and was just stepping for it, when the engine struck him. It is inconceivable that if he had looked at all before making the final step that he could not have seen the engine, for it must have been within a short distance of him. Much stress is laid upon the fact of the smoke and dust, but this to our minds is against the plaintiff. A thick cloud of smoke which prevents the view is as much an obstruction as any other object. If it was the duly of the traveler to wait until the passing train had cleared his view it was as much so to wait until the smoke and dust allowed him to see his way. The smoke left by the freight engine was part of it, and the traveler had no right to walk into it if it prevented him from seeing his way clear. The cases upon the subject are numerous. In Moore v. Phila., Wilmington & Baltimore R. R. Co., 108 Pa. 349, the plaintiff crossed the first track and waited between tracks for the train to pass. He was struck by an engine on the other track and was non-suited. In Marland v. Pittsburg & Lake Erie R. R. Co., 123 Pa. 487, Justice Gbéen says : “He attempted to cross the track immediately in front of the train which he could not possibly have looked for without seeing. . . . The attempt to cross the track in front of an approaching train so close that the plaintiff was instantly struck was an act of gross carelessness on his part, contributing directly to his injury and this precludes any recovery.” In Pa. R. R. Co. v. Mooney, 126 Pa. 244, Justice Gbben says : “ It was suggested in the argument of the case at bar that Mooney’s view of the approaching train might have been obscured by the smoke of another train which was'passing in the opposite direction, and which it was said by some of the witnesses hugged the track. But that theory is entirely dispelled by the affirmative testimony of Archer, the plaintiff’s chief witness, who testified that he saw the train strike Mooney, although he was a hundred to a hundred and fifty yards away. Moreover, the law requires listening as well as looking for a coming train, and obstruction of vision is no defense against a failure to listen.”</p> <p>As the witnesses in this case saw the accident, notwithstanding the smoke, it is difficult to see why they could not have seen the engine. In Kraus v. Penna. R. Co., 189 Pa. 272, it was said: “ Before crossing a railroad track one is bound not only to stop, look and listen, at a place where he can see if possible, but if familiar with the place and his view be obstructed by a passing train, he should remain until his view of the track is clear; otherwise, he is guilty of contributory negligence.” This language is especially applicable to the case in hand, for Mr. Hovenden was familiar with the place, and if his view was obstructed it was his duty to wait. Part of Judge Ewing’s decision which was affirmed by a per curiam opinion may well be cited here. He says: “ There is evidence that the locomotive of the freight train emitted a dark smoke, obscuring the view. With the freight train on the second track, his view of the third track was prevented except for the portion that the freight train had passed. The party had been standing before the freight train had passed, and the wife says they looked and listened. Had they waited until the freight train had sufficiently passed, there would have been no difficulty in seeing up to near Millvale station. If a man is bound to stop, look and listen before going on a railroad track, it is vain to say that he did so when it is evident that if he did look and listen he must have seen and heard the train. . . . He must seek a place to look where he can see, if that can be done, and if there be an obstruction to his view, which is rapidly passing away, he should wait its removal.” To the same effect is Myers v. Baltimore & Ohio R. R., 150 Pa. 386. In Holden v. Penna. R. R., 169 Pa. 1, the court says : “ Where a collision takes place at the moment when a person, either on foot or in a carriage, goes upon a railroad track, he cannot recover, no matter what his testimony may be as to stopping, looking and listening, because the fact of the immediate collision conclusively proves that he did not exercise his senses as to the approaching train.” We think the case of Hughes v. D. & H. Canal Co., 176 Pa. 254, rules the present contention and sustains our view. Mr. Justice Mitchell says: “ Jones says that when they reached the crossing they waited for a coal train on the north bound track to pass, and as soon as it got about twenty feet past they drove slowly on the track, looking and listening, and were almost immediately struck by a train on tbe other track, the engine, he says, ‘ was on our buggy without almost our knowing anything about it.’ It is plain that the accident arose from that fruitful source of danger, fixing attention so exclusively on one track as to divert it from necessary care in regard to the other. The questions of the proper place to stop, look and listen, and the action of the party in regard to it are usually for the jury, and have been so declared in a long line of cases cited by appellee of which perhaps the closest to the present is Whitman v. R. R., 156 Pa. 175. But there are exceptions where the inference from admitted facts is clear, and it becomes the duty of the court to declare the law as a result. The element which distinguishes this case from those relied upon by appellee is the temporary nature of the obstruction to the view. The deceased drove on the south bound track when the view of it was cut off by the rear end of the passing train on the other track, and was struck so immediately that it is beyond all possible doubt that the coming train which struck him could have been seen and the accident escaped had he waited but a single instant until the receding train on the north bound track had cleared the view. Under such circumstances it was held in Kraus v. R. R. Co., 139 Pa. 272, that a nonsuit was properly entered.”</p> <p>The case stands thus. The husband of plaintiff approached a railroad crossing and stopped to allow a receding train on a west bound track to pass. This train obscured his view of the other track for a considerable distance. Without waiting for the receding train to pass a sufficient distance to permit him to-see a coming train on the other track he started to cross, and before he put foot on the east bound track he was struck. Had he waited a few seconds he could have seen the train, or had he looked when on the west bound track he could have had a clear view for at least two hundred and ninety-two, if not four-hundred and thirty feet, and thus have seen the coming train ; or, had he looked before taking his last step he must have seen the engine for it was right upon him. We are, therefore, of opinion that the nonsuit was properly entered and, now, December 7, 1896, the motion to take off nonsuit is overruled.</p> <p>Error assigned was judgment refusing to take off compulsorynonsuit.</p> <p>Persons crossing at the point in question, to observe trains coming from the west, were obliged to go upon the tracks, and defendant, ex necessitate, put them in a place of danger. This brings the case within the principle of Penna. It. Co. v. Werner, 89 Pa. 59, and cognate cases, which this court has recognized: Penna. R. Co. v. Werner, 89 Pa. 59; Lake Shore R. Co. v. Frantz, 127 Pa. 297; McNeal v. Ry. Co., 131 Pa. 184; Ellis v. R. R. Co., 138 Pa. 522; Ely v. Ry. Co., 158 Pa. 233; Smith v. R. R. Co., 158 Pa. 82; Hoffineister v. R. R. Co., 160 Pa. 568; Link v. R. R. Co., 165 Pa. 75; Davidson v. Ry. Co., 171 Pa. 522; Gray v. R. R. Co., 172 Pa. 383; Philpott v. R. R. Co., 175 Pa. 570.</p> <p>The learned court below properly followed the cases of Moore v. Philadelphia, Wilmington & Baltimore R. R. Co., 108 Pa. 349; Marland v. Pittsburg & Lake Erie R. R. Co., 123 Pa. 487; Penna. R. Co. v. Mooney, 126 Pa. 244; Kraus v. Penna. R. Co., 139 Pa. 272; Holden v. Penna. R. Co., 169 Pa. 1; Hughes v. Delaware & Hudson Canal Co., 176 Pa. 254.</p>

Appeal, No. 8, Jan. T., 1897, by- Walter S. Cassel et al., from decree of O. C. Montgomery Co., dismissing petition for citation. Petition for citation.

<p>Appeal, No. 417, Jan. T., 1896, by defendant, from judgment of C. P. Chester Co., Oct. T., 1895, No. 56, on verdict for plaintiff.</p> <p>Assumpsit on a policy of fire insurance. Before Hemphill, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points and answers thereto were as follows :</p> <p>1. If the jury believe that the assured, prior to or at the time of the fire, kept, used, or allowed fireworks on the premises, this was contrary to the contract of insurance, and avoided the policy, and there can be no recovery thereon. Answer: This point we must disaffirm, as in our view the language used in the policy of insurance has no applicability to the facts as shown here, which was merely a temporary use, and not such as is contemplated by the language of the policy, in our judgment. [1]</p> <p>2. If the jury find from the evidence that the fire originated from the fireworks which the assured kept or allowed to be stored in the room where the fire started, he cannot recover in this action and your verdict must be for the defendant. Answer: That .point we also disaffirm. [2]</p> <p>3. Under all the evidence in the case the verdict of the jury must be for the defendant. Answer: We cannot so instruct you, gentlemen of the jury. As I have said, your verdict will be for what loss the plaintiff has sustained by reason of the fire of July 3, 1895. [3]</p> <p>Verdict and judgment for plaintiff for $1,093.87J. Defendant appealed.</p> <p>Errors assigned among others were (1-3) above instructions, quoting them.</p> <p>The presence of the fireworks in the house avoided the policy: Birmingham Fire Ins. Co. v. Kroegher, 83 Pa. 64; Lancaster Fire Ins. Co. v. Lenheim & Co., 89 Pa. 497; McClure v. Watertown Fire Ins. Co., 90 Pa. 277 ; Krug v. German Fire Ins. Co., 147 Pa. 272; Lancaster Silver Plate Co. v. National Fire Ins. Co., 170 Pa. 151; Lancaster Silver Plate Co. v. Manchester Fire Assurance Co., 170 Pa. 166.</p> <p>The condition of the policy has no application to this case, because the plaintiff neither “kept, used nor allowed” fireworks on his premises within the meaning of the condition: Mears v. Humboldt Ins. Co., 92 Pa. 15; Shaw v. Robberds, 6 Ad. & E. 75; Grant v. Howard Ins. Co., 5 Hill, 10 ; Yan Valkenburgh v. Ins. Co., 70 N. Y. 605; Franklin Ins. Co. v. Chicago Ice Co., 86 Md. 102; Moore v. Ins. Co., 29 Maine, 97; O’Niel v. Buffalo Fire Ins. Co., 3 Comstock, 122; Ins. Co. v. McLaughlin, 53 Pa. 485; Farmers’ & Mechanics’ Ins. Co. v. Simmons, 30 Pa. 299; Glen v. Lewis, 20 Eng. Law & Eq. Rep. 364; Bean v. Stupart, 1 Doug. 11; Dobson v. Sotheby, 1 Moody & Malk. 90; Baumgardner v. Ins. Co., 1 W. N. C. 119 ; Doud v. Citizens’ Ins. Co., 141 Pa. 47; Franklin Ins. Co. v. Kepler, 95 Pa. 492; Lebanon Ins. Co. y. Leathers, 20 W. N. C. 107; Ins. Co. v. Hannum, 1 Mon. 369.</p> <p>Further, the condition has no application in this case, because it appears only to be applicable to places of business and manufacturing establishments.</p> <p>The cases cited in the appellant’s argument are not in point. Birmingham Ins. Co. v. Kroegher, 83 Pa. 64, was a case of a country store, where a barrel of petroleum was kept for sale in violation of the condition in the policy against keeping or having it on the premises. Lancaster Fire Ins. Co. v. Lenheim & Co., 89 Pa. 497, was a like case of keeping of turpentine and benzine for sale in a country store. While McClure v. Water-town Fire Ins. Co., 90 Pa. 277, was the case of a vacated dwelling. All the other cases cited are against the appellant’s contention here.</p>

<p>Will — Issue devisavü vel non — Godieil.</p> <p>On an issue to determine the validity of a codicil to a will, the alleged signature of the testator was not attested by any subscribing witness. The evidence as to the genuineness of the signature was conflicting. Issues were also raised as to the testator’s testamentary capacity, and as to whether he had been subjected to undue influence. The court instructed the jury that if they found that the signature to the alleged codicil was not genuine, their verdict should be for the defendants in this issue, and it would not be necessary for them to consider and determine any of the other issues in the case. The jury found specifically that the testator did not execute the alleged codicil. There was evidence, though contradicted, to justify this finding. Held, that a judgment on the verdict should be sustained.</p>

Appeal, No. 510, Jan. T., 1896, by-plaintiff, from judgment of C. P. Delaware Co., Sept. T., .1894, No. 170, on verdict for defendant. Trespass for personal injuries. Before Clayton, P. J. At the trial it appeared that plaintiff was injured on October' 80, 1893, while working at a machine in the defendant’s barrel factory. Plaintiff was a Pole and could not speak English.

<p>Appeal, No. 19, Jan. T., 1897, by defendant, from judgment of C. P. Chester Co., Aug. T., 1896, No. 54, on case tried by the court without a jury.</p> <p>Amicable action of assumpsit to recover one year’s rent of a farm.</p> <p>The case was tried by Waddell, P. J., without a jury.</p> <p>The findings and opinion of the court were as follows:</p> <p>This was an amicable action in assumpsit instituted by the plaintiff to recover one year’s rent under a written lease, dated the 31st day of January, 1895. The lease was to continue for two years, and the tenancy was to commence April 1,1895. The property contained something over three hundred acres, and the rent was fixed at $900 per annum, payable quarterly. There were certain other covenants provided for by the lease, but which we do not understand enter into this controversy. At the time the lease was executed there were two large barns upon the property for the exclusive use of the tenant. One of these was totally destroyed by fire on the 28th or 29th day of March, 1895. The tenant took possession on the 1st of April, 1895, two or three days after the fire, and has continued in possession ever since. The landlord, Captain Wayne, proceeded soon after the tenant, Elbert W. Lapp, took possession, to erect temporary shedding to cover eight 'or ten head of horses, and to erect a new barn in the place of the one destroyed. This was completed the last of September or beginning of October, 1895, at a cost of #2,500. The barn burned was used for stabling horses and storing crops. The one left was used for stabling cows and storing crops. It was large enough to hold about thirty-nine cows, but not large enough to hold all the crops raised upon the property. The new barn erected was not as large as the one destroyed, and was not sufficiently advanced at harvest time to hold the crops. The tenant was compelled to stack a large part of his crops that season. He estimates his loss to be #1,700 or #1,800, because of being deprived of the use of the barn burned, and claims to set it off against the rent. The landlord denies all liability on this account, but admits an indebtedness of #216.45 for material furnished.</p> <p>The question presented for our consideration, under these stated facts, is how much rent is due the plaintiff. As we have found, one of the barns upon these premises was burned four days before the lessee was to take possession under his lease. This deprived him of the material use of a portion of the demised premises. The landlord could not deliver to him all he had covenanted to deliver. The tenant might have been entitled to consider the lease as a whole and might, possibly, have declined to take possession. But he took possession after the burning. Does this estop him from refusing to pay his rent ? This would be so, if he went into possession without anything being said on the subject of the fire. He would be presumed to have waived all loss that might follow the destruction of the use of the barn. But the landlord, by way of inducement, undertook, before the tenant took possession, to have a roof for his crops before harvest time. This conduct on the part of the landlord, we think, would prevent him invoking the doctrine of estoppel. He led the tenant to believe that the injury done to his tenancy by reason of the fire would be restored, and in compliance with this understanding the landlord proceeded in time to rebuild the barn.</p> <p>By reason of the fire and rebuilding the tenant was deprived of the full enjoyment of the property for a long period of time. Is the tenant entitled to a suspension of his rent under these circumstances? That is the question presented in the case, and is perhaps answered by Baron Gilbert in his Treatise on Rents., p. 145, as quoted by Justice Paxson in Hoevéler v. Fleming, 91 Pa. 324: “ A rent is something given by way of retribution to the lessor for the land demised by him to the tenant, and consequently the lessor’s title to the -rent is founded upon this, that the land demised is enjoyed by the tenant during the term included in the contract, for the tenant can make no return for the thing he has not. If, therefore, the tenant be deprived of the thing let, the obligation to pay rent ceases, because such obligation has its force only from the consideration, which was the enjbyment of the thing demised.”</p> <p>If this doctrine was applicable to the case being considered by Justice Paxson,- where the fire took place after the tenancy commenced, how much more applicable is it to the case being considered by us, where the fire took place after the lease was executed, but before the tenant took possession. It might be sufficient for us to hold that the tenant was entitled to an abatement of his rent because he “ can make no return for the thing he has not,” but in addition to this his landlord deprived him of the use -and enjoyment of a portion of the property for the purpose of rebuilding. The rebuilding deprived the tenant of much beneficial enjoyment of the premises while the work was going on. “ If the landlord took possession of the property for this purpose without the consent of the tenant it was an eviction of him; if with his assent it was a rescission of the lease ; and in either case the rent was suspended”: Magawv. Lambert, 3 Pa. 444; Hoeveler v. Fleming & Co., 91 Pa. 324; Heller v. Royal Insurance Co., 133 Pa. 152. [We do not' understand, however, that the defendant is entitled to measure his loss by an estimate in damages. No intentional wrong was done by the landlord. He took possession of the property with the consent of the tenant, to rebuild'the barn. • He thus rescinded the lease and suspended the rent. Under these circumstances the real loss is the value of the use of the part taken, in connection with that which remains, and it is measured by the difference in rental value: Irwin v. Nolde, 176 Pa. 594. The damage here was not to the tenant’s crops, but to his leasehold, and it should be measured by the diminution in rental.] [1] 176 Pa. 602.</p> <p>, Adopting this as the rule in estimating the defendant’s loss, we have the testimony of but one witness. He estimates the ■difference in rental value at $800. This in our opinion is the loss sustained by the defendant, and he is entitled to have that amount deducted from the rent sued for. The lease fixes the rent at $900 a year, payable quarterly. Nothing,has been paid. There was due the plaintiff, therefore, on the 1st of April, 1896, the sum of $900, less the loss sustained by the defendant, which we have estimated at $300, making the balance due $600. The interest upon this up to October 1, 1896, is $18.00, thus making the gross amount due plaintiff $618. He admits owing the ■defendant the sum of $216.45, for materials furnished. This was due and payable April 1,1896, and is entitled to bear interest from that date. That would amount to $6.48 on October 1, 1896, making $222.93, as the amount which the defendant is entitled to have deducted from the plaintiff’s claim. This will leave as due the plaintiff the sum of $395.07, for which amount the prothonotary will enter judgment in favor of the plaintiff, unless exceptions shall be filed to this decision within thirty ■days after notice given by the prothonotary as directed by the act of assembly of April 22, 1874, under which this cause was heard.</p> <p>Exceptions to the decision of the court were , overruled, and judgment was entered for plaintiff for $395.07. Defendant •appealed.</p> <p>Errors assigned were (1) portion of the opinion as above, quoting it; (2, 3) overruling exceptions to decision, quoting ■exceptions.</p> <p>The measure of ■damages is what defendant would have made had the farm barn remained intact, so that the measure of loss is to be found in what was loss to the tenant by reason of the absence of the barn. This is not speculative damage out of the failure of the contract: Hoy v. Gronoble, 34 Pa. 9; Pennypacker v. Jones, 106 Pa. 237.</p> <p>Had the fire occurred after April 1st, it would certainly have been no defense whatever to the payment of rent reserved: Dyer v. Wightman, 66 Pa. 427; Bussman v. Ganster, 72 Pa. 286.</p> <p>The principles upon which the tenant’s liability for rent depend, even after the destruction of the leased premises, would certainly apply whether the fire occurred a day before or a day after the commencement of the term. In no case is he deprived by the act or default of the landlord of what he agreed to pay for: Paine v. Meller, 6 Yes. Jr, 852; Taylor v. Caldwell, 113 Eng. Com. 824; Counter v. MacPherson, 5 Moore P. C. 83; Woodfall’s Landlord and Tenant, 110. If, however, it be claimed that the entry of the landlord to mate the repairs prevents the application of the foregoing rules, it is to be answered that this entry was, on defendant’s own theory, by mutual consent. Such entry does not necessarily constitute an eviction or even a rescission of the contract, “ but must depend to some extent upon the circumstances of each particular case : ” Hoeveler v. Fleming, 91 Pa. 325; Seabrook v. Moyer, 88 Pa. 417; Maberry v. Dudley, 11 W. N. C. 217 ; Magaw v. Lambert, 3 Pa. 445.</p> <p>If defendant be entitled to any abatement for rent under the circumstances except that allowed by his landlord, it would be indeed difficult to find a measure of damages more equitable and satisfactory than is established by Judge Fell, in Irwin v. Nolde, 176 Pa. 602, which was adopted by the court in this case.</p>

Appeal, No. 548, Jan. T., 1896, by plaintiff, from judgment of C. P. Lebanon Co., June T., 1895, No. 404, for defendants non obstante veredicto. Trespass to recover the value of certain fixtures. Before E. W. Biddle, P. J., of the ninth judicial district, specially presiding.

Appeal, No. 517, Jan. T., 1896, by plaintiffs, from decree of C. P. Schuylkill Co., May T., 1895, No. 1, dismissing bill in equity. Bill in equity to restrain interference with the possession of land. The case was referred to F. W. Bechtel, Esq., as examiner and master. The testimony in the case covered one thousand and sixty-nine printed pages. The master’s report-covered one hundred and sixty-eight pages.

Appeal, No. 302, Jan. Term, 1896, by defendants, from order of C. P. No. 3, Phila. Co„ June T., 1895, No. 236, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit for the amount of the proceeds of the sale of a membership in a stock exchange. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 356, Jan. T., 1896, by-defendant, from judgment of C. P. No. 3, Pbila. Co., Sept. T., 1890, No. 881, for plaintiff, on municipal lien.</p> <p>Scire facias sur municipal lien. Before Finletteb, J.</p> <p>At the trial the plaintiff offered in evidence ordinance of councils of Philadelphia, approved July 3, 1889, and called Isaac R. Martindale as a witness, who being affirmed said that he held the position of bill cleric in the bureau of highways; that he had in his possession a contract between the city of Philadelphia and Mr. Mack for paving Allen’s lane, and produced the same. The said paper contract was offered in evidence.</p> <p>Objected to, evidence admitted, exception and bill sealed for the defendant. [1]</p> <p>The material provisions of the ordinance of July 3, 1889, is stated in the opinion of the Supreme Court.</p> <p>Plaintiff offered in evidence the bill made out to Julia (Jorgas for the paving for 375.44 square yards, $755.28, dated August 26, 1890, certified by the assistant commissioner of highways of that district and by the chief of the bureau of highways as being correct.</p> <p>Objected to, evidence admitted, exception and bill sealed for the defendant. [2]</p> <p>Plaintiff offered in evidence lien filed in the case.</p> <p>Objected to, evidence admitted, exception and bill sealed for defendant. [3]</p> <p>Defendant called Josephus Yealde who said he was one of the assessors of the twenty-second ward during 1889, and was such until three years ago; that he had been assessor about twelve years, down to 1892. He knew the property of the defendant at Germantown road and Allen’s lane, as a store at the corner, fronting on Germantown road. He was then asked: “ Q. At how much was it assessed in 1889, if you know ? ”</p> <p>Objected to.</p> <p>The Court: You may show the condition or character at the time the contract was made, and from that on until the work was done.</p> <p>Mr. Hopple, of counsel for defendant: You sustain the objection to the offer to show what it was at the time the ordinance was passed ?</p> <p>The Court: Yes, sir.</p> <p>Mr. Hopple: I will ask the witness at what it was assessed in 1889.</p> <p>The Court: That would make no difference. You must confine your offer to the time when the contract was made.</p> <p>Exception, and bill sealed for the defendant. [4]</p> <p>The same witness was asked, “ Was there any change in the appearance of that property, and the locality or the condition of things between 1889 and 1892 ? ”</p> <p>Objected to, objection sustained and bill sealed for the defendant. [5]</p> <p>Mr. Hopple: I propose to ask this witness if he knows why the assessment was changed from what it was in 1889, to what it was in 1890.</p> <p>Objected to, objection sustained, exception and bill sealed for the defendant. [6]</p> <p>The defendant was sworn as a witness, and testified about her own and other property on Germantown avenue and along Allen’s lane, and that she farmed it — kept it for farming purposes —and that the adjoining and adjacent properties were used for trucking and farming purposes; and after being asked, but not permitted by the court to answer, what her property was assessed at in 1889, whether less than full city rates, proceeded thus: “ Q. Had you a photograph made of the property at the time of the paving? A. Yes, sir; I had. Q. You never signed a petition for the opening of a street? A. No, sir. Q. Or any agreement to pay for it? A. No, sir. Q. Were you ever asked to do so ? A. No, sir. Q. Is this property city property ? ” (Objected to; objection sustained.) “Q. Do you have city water in your house? A. No, sir. Q. What do you use? A. Pump water. Q. What do the rest of the houses along Allen’s lane use ? A. They all use pump water. Q. There is no city water used? A. No, sir. Q. Are there any other houses along there -which use city water ? A. I do not know. Q. Do the houses there have gas in them? A. No, sir. Q. Would you call that land city property, or not ? ” (Objected to; objection sustained.) “ Q. State the character of the land in general terms.”</p> <p>Objected to, objection sustained, exception and bill sealed for defendant. [7]</p> <p>Josephus Yeakle was recalled by the plaintiff, and testified on examination in chief as follows: “ Q. At the time the change in the assessment was made, and these properties assessed at full city rates, how far did the change extend ? ” (Objected to; testimony admitted; exception for defendant). “A. It reached the territory on Germantown avenue, about one mile, and from Germantown avenue back to Allen’s lane and the railroad, and about a mile and a half south.” After stating that the change in the assessment was all made at one time, and that he was familiar with the properties in the neighborhood in 1890, but that he could not say that he knew of property on Allen’s lane, or near it, being offered for sale, or the prices paid for any, and that he was the assessor of that district at that time (1890), and that in his opinion the property in this locality was best adapted in 1890 for residences, and not for farming purposes, and that he did not remember what the property along Allen’s lane was worth, in 1890, per foot front, the cross-examination of witness was as follows:</p> <p>By Mr. Hopple: “Q. You said a change took place, what territory did it cover? A. A change from suburban rates. Q. That was in 1890 ? A. Yes, sir. Q. Previous to that it had been assessed at less than full city rates? A. Yes, sir. Q. You simply raised the assessment on the main street, — How was Levering avenue; that was kept as rural ? A. I cannot remember that now. Q. Can you tell by your books ? A. 1889 is here, but 1890 is not. Q. You changed the assessment, and confined yourself to the property lying along the main street ? A. Yes, sir; and Allen’s lane. Q. What is your recollection as to Levering avenue, right below there ? A. I cannot remember it. Q. Did you take both sides of the Main street? A. Yes, sir. Q. What was the object of that — -to get around the ordinance of councils ? ”</p> <p>Objected to; objection sustained; exception and bill sealed for defendant. [8]</p> <p>Dr. Charles S; Turnbull was called as a witness for the plaintiff and testified that he lived on Allen’s lane in this strip which was paved by the city; had lived there nine years, owned the property, knew of purchases and sales or the asking prices of the property in that neighborhood. He was then asked: “Corn fining your answers to 1890, state what, in your opinion, the property was best adapted to ? ”</p> <p>Objected to, testimony admitted, exception for defendant. “ A. Resident neighborhood.”</p> <p>The witness was then asked: “ Q. What was property worth on Allen’s lane at that time ? ”</p> <p>Objected to, testimony admitted, exception for defendant.</p> <p>“ A. Anywhere from $5,000 an acre up, according to the improvement.” [9]</p> <p>Peter B. Hinkle was called as a witness for the plaintiff, and testified that he knew the locality in question, could not say that he knew the value of property in that locality because not much had been sold, did not know the price for any sold in that particular locality, knew of the sale to the deaf and dumb asylum, sixty-four acres, thinks Mr. Houston paid $90,000, sold it for $120,000, about $2,000 an acre. Witness’s business had been agent for H. H. Houston estate, and in addition to that he had some knowledge of real estate, both farm and other land. After which the witness was asked: “Could anyone afford to pay $2,000 an acre for farm land ? ”</p> <p>Objected to, testimony admitted, exception for defendant.</p> <p>“A. No, sir, I do not think any man could afford to do that.”</p> <p>[10]</p> <p>He further testified: “ Q. Do you know the price asked along that street ? ”</p> <p>Objected to, testimony admitted, exception for defendant.</p> <p>“A. No, sir, I do not know of any one who wants to sell at present. Q. State what, in your opinion, the property along Allen’s lane was best adapted for in 1890 ? ”</p> <p>Objected to, testimony admitted, exception and bill sealed for defendant.</p> <p>“ A. For nothing else than building lots if it was sold off, but none has been sold. McGowans have theirs up for sale but they cannot sell it.” [11]</p> <p>Hugh McLean, a witness for plaintiff, testified as follows: “ Q. Where do you live ? A. At the corner of Carpenter and Crease streets, Germantown. Q. How near the locality in question ? A. About one mile. Q. Are you familiar with this locality? A. Yes, sir. Q. And were you in 1890? A. Yes, sir, with a portion of it. Q. Have you kept yourself posted as to the sales, and have you asked the price of land in the neighborhood? A. Yes, sir. Q. In your opinion what was the property in Allen’s lane best adapted for in the year 1890 ? ”</p> <p>Objected to, testimony admitted, exception and bill sealed for defendant.</p> <p>“ A. For building purposes. Q. Was it adapted for farming purposes ? A. Some portions of Allen’s lane could be farmed, but it would not pay to do it.” [12]</p> <p>The court charged in part as follows :</p> <p>[In this case we have a farm of about one acre, on which the lady has a store, and does business, in addition to the farm, as a storekeeper; the store is on this very land, and her stable, which seems to be necessary to her store, is also on the land. In addition to that, although she claims this to be a farm, we have no evidence that she uses it as farmers use their land. There is no evidence of her plowing it, or harrowing, or sowing it with wheat or grain, and the truth of the matter simply is that the vacant land which is not occupied by her business she uses as a little garden, and raises ■ potatoes, corn and things of that kind. It is a garden and not a farm, and even if she went through the formality of using a plow and harrow, that would not make it a farm.] [13]</p> <p>[The question for the jury to determine in this case is this : Is this property as it is now, ripe for city improvements ; that is, is it ready to be used and occupied for the purpose of city homes or city places of business ? If it is so ripe, and ready for all those purposes, then the plaintiff ought to recover. If it is not in that condition, ready to be used for the purposes of city homes and business places, the verdict should be for the defendant.] [14]</p> <p>[What would this property sell for ? It fronts on one of our most public thoroughfares, built up, I presume, all the way up to Chestnut Hill.] [15]</p> <p>[Is this a city lot or is it a farm? You must settle the question as to whether the lot owned by this lady is a farm, or whether it should be classed as city property. If you regard it as farm land, your verdict should be for the defendant; if you regard it as a city lot, your verdict should be for the plaintiff.] [16]</p> <p>Defendant’s points and .answers thereto among others were as follows:</p> <p>1. To entitle the plaintiff to recover the expense of the paving in this case, it must have complied with all the conditions precedent, whether prescribed by the act of assembly or ordinance. Answer: Refused. [19]</p> <p>2. The ordinance of July 3, 1889, authorizing and directing the paving of Allen’s lane in front of the defendant’s property, expressly stated: “ Provided that the owners of any property on the line of said Allen’s lane, which may be assessed at less than full city rates, shall first enter into an agreement to pay for the paving in front of their respective properties.” The proviso or provision was a limitation of authority upon the director of the department of public works, amounting to a negation of all authority beyond its prescribed and clearly-defined limits, and there was no authority to do the work in question until the owners of the property on the line of Allen’s lane, which were assessed at time of the passage of the ordinance at less than full city rates, should first enter into an agreement to pay for the paving in front of their respective properties, and as the property of the defendant was at that time, and for that year, assessed at less than full city rates, and as the defendant never entered into an agreement to pay for the paving, your verdict should be for the defendant. Ansiver: Refused. [20]</p> <p>8. Under the pleadings in this case it is the duty of the plaintiff to show affirmatively that the paving ivas done pursuant to and under the authority of the ordinance of councils of July 3, 1889, and to do that it must show that the provision, as to an agreement to pay on the part of the owners of property assessed at less than full city rates at the time of the approval of the ordinance, was fully complied with, and the failure of the plaintiff to show such fact prevents a recovery by it, and the verdict should be for the defendant. Answer: Refused. [21]</p> <p>4. If the jury believe that the property of the defendant was assessed at less than full city rates at the time of the passage and approval of the ordinance of July 3, 1889, and that she never entered into an agreement to pay for the paving, authorized by said ordinance, then there can be no recovery against her or her property, and the verdict should be for the defendant. Answer: Refused. [22]</p> <p>5. If the jury believe the property of the defendant, for the year 1889, was assessed at less than full city rates, then the city of Philadelphia, by its ordinance of July 8,1889, declared that the property in question should not be subject to the tax sought to be imposed upon it by the lien, in tins case, unless the defendant should first enter into an agreement to pay for said paving, and if she did not enter into such an agreement and, at the time the work was done in the year 1890, there had been no change in the character of the land or the locality in which it was situated, requiring or justifying the assessment to be changed to full city rates, and the property in 1890, when the work was done, was the same as in 1889, when the ordinance was approved of, then they should find that the property was rural when the work was done, and the verdict should be for the defendant. Answer: Refused. [23]</p> <p>6. If the jury believe that the property in this case was assessed at less than full city rates on July 3,1889, and the assessment was increased for the year 1890, so that the proviso of the ordinance of July 3, 1889, relating to an agreement being first entered into by the property owners for paying for such paving, could not apply to the property in 1890; and that such increase or change was made by the board of revision of taxes, or taxing officers, for the purpose of contravening said ordinance of July 8, 1889, or rendering it inapplicable to the property in the year 1890, when said work was to be done and was done, then such > purpose and action were illegal and such efforts should fail, and the verdict should be for the defendant. Answer: Refused. [24]</p> <p>8. If the jury believe that Allen’s lane was not ripe for city improvements at the time said work was done, the verdict should be for the defendant. Answer: Refused. [25]</p> <p>9. The alleged contract between the city and the claimant, not having been entered into, that is signed and executed in the name of the city, by the department of public works as required by the ordinance of July 3,1889, there was no authority for the claim and to do said work under said ordinance, and the verdict should be for the defendant. Answer: Refused. [26]</p> <p>10. The ordinance of May 3,1855, set forth in the pleadings in this case, has not been repealed by the ordinance of December 30, 1886, and unless the jury believe that the requirements of the ordinance of May 3, 1855, have been complied with, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: Refused. [27]</p> <p>11. Under all the evidence in this case the verdict should be for the defendant. Answer: Refused. [28]</p> <p>Yerdict and judgment for plaintiff for $1,036.91. Defendant appealed.</p> <p>Errors assigned were (1-12) rulings on evidence, quoting the bills of exceptions; (13-16,19-28) above instructions, quoting them; (17) the charge was insufficient; (18) the charge' was- misleading, unfair and unjust.</p> <p>The defendant “ can be made subject to a legal obligation only where the power conferred on the municipal authorities has been legally exercised,” and “ jurisdiction over the defendant and her property could be obtained only by pursuing rules prescribed by law : ” Fell v. Phila., 81 Pa. 58.</p> <p>The contract in this case was not a lawful contract for the paving in question, and there can be no recovery by the plaintiff. That ease is governed by the following cases: Stetson v. Croskey, 52 Pa. 230; Young v. Edwards, 72 Pa. 257; Reilly v. Phila., 60 Pa. 467; Pittsburg v. Walter, 69 Pa. 365; Olds v. Erie City, 79 Pa. 380; City v. Lea, 5 Phila. R. 77; City v. Stewart, 1 W. N. C. 242; Erie City v. Brady, 127 Pa. 169; Erie City v. Moody, 176 Pa. 478.</p> <p>The assessment of the properly in the year 1889, was the material and important subject for inquiry in the case, and not what might have been the assessment in the year 1890, or any other year subsequent to 1889.</p> <p>The property in question was farm land: Seely v. Pittsburg, 82 Pa. 360; Phila. v. Sheridan, 148 Pa. 532; Washington Ave., 69 Pa. 352.</p> <p>The offer to prove how the property was assessed in 1889, was not relevant. The entire question is restricted to the time when the work was done: Keith v. Phila., 126 Pa. 575.</p>

<p>Appeal, No. 429, Jan. Term, 1896, by-plaintiffs, from judgment of C. P. No. 1, Phila. Co., Dec. Term, 1894, No. 964, for defendant on demurrer.</p> <p>Attachment under the act of March 17, 1869.</p> <p>The plaintiffs’ statement was as follows :</p> <p>Plaintiffs, the executors and trustees of the will of Charles Lafferty, deceased, seek to recover the sum of $10,700, with interest from June 1,1894. In the lifetime of the said Charles Lafferty, defendant was employed by him to collect the rents of his real estate and to forthwith pay over the money to him, and in consideration of his services defendant received a salary of $600 per annum, which was paid by said Charles Lafferty. Upon the decease of said Charles Lafferty and the grant of letters upon his estate by the register of wills of Philadelphia county to plaintiffs, they employed the said defendant to collect said rents from the real estate belonging to said estate, and forthwith deposit the same in the safe belonging to the estate in the office of the executors in the city of Philadelphia, where said money was to remain until deposited in the Fidelity Insurance, Trust and Safe Deposit Company to the credit of the estate of said Charles Lafferty, deceased. Defendant entered upon said employment, collected said rents, forthwith deposited the same in the safe of the estate in the office of the executors, and from time to time deposited said money in The Fidelity Insurance, Trust and Safe Deposit Company to the credit of said estate. On October 13,1888, the orphans’ court of Philadelphia county appointed defendant an executor and trustee, and defendant agreed, in addition to his duties as said executor and trustee, to continue to collect the rents from said real estate, deposit the same forthwith in the fireproof safe belonging to said estate in the office of the executors, such money to be from time to time deposited in The Fidelity Insurance, Trust and Safe Deposit Company to the credit of said estate, and in consideration thereof plaintiffs agreed to pay defendant said salary in addition to his share of commissions from said estate. Between November 1,1890, and June 1, 1894, at various times well known to the defendant, and which he refuses to disclose to plaintiffs, and which plaintiffs do not know, the said defendant having collected large sums of money from said rents and deposited said sums in the said fireproof safe, subsequently, without taking them out for deposit, took the same into his possession and converted to his own use, the sum, $10,700, so deposited in said fireproof. Defendant had no right to take said money from said safe. No part of said money was due to the said defendant upon any account whatsoever, and no part was used for any purpose of said estate or with the knowledge or consent of said plaintiffs. All of said money was taken from the fireproof and from the estate by said defendant and converted by him to his own use. No part of said'money has ever been paid by defendant to said estate, and all of said money is still due and owing to said estate by defendant, with interest as aforesaid.</p> <p>The defendant demurred to the statement for the following reasons:</p> <p>1. That the statement discloses that there are three executors and trustees of the last will and testament of Charles Lafferty, deceased, while the action is brought by only two of said executors ; and in the absence of any reason for so doing, all the executors should be parties plaintiff.</p> <p>2. That the statement discloses that the defendant is a co-executor and trustee with the plaintiffs, and that the real issue is a question of accounting between executors and trustees, for which there is no right of action in the court of common pleas.</p> <p>8. That the statement shows that the money sought to be recovered by this action arises from a question of accounting by executors to the estate for which they are executors and trustees, and that defendant is one of said executors and trustees; and it is therefore a subject of inquiry only by the orphans’ court of the county of Philadelphia, in which the court of common pleas has no jurisdiction.</p> <p>The court sustained the demurrer. Plaintiffs appealed.</p> <p>JSrror assigned was in sustaining the demurrer.</p> <p>The jurisdiction of the common pleas in this case may be rested on the act of March 17, 1869, which makes it the duty of the prothonotary to issue an attachment against any defendant or defendants upon the application of any plaintiff or plaintiffs upon proof by affidavit that defendant or defendants are justly indebted in a sum exceeding $100, the nature and amount being set forth, and that the defendant fraudulently contracted the debt or incurred the obligation. Act of March 17,1869, sec. 1, P. L. 8, Purd. Dig. 1, p. 68: Swartz v. Lawrence, 12 Phila. 181. There is nothing in the general language of the statute to exclude executors from its benefits: Mechanics’ Bank v. Miners’ Bank, 41 Leg. Int. 312; Moffatt v. Van Millingen, 2 Bos. and Pul. 124 n.</p> <p>In Pennsylvania the cases of Sergeant v. Ewing, 30 Pa. 75; Swain v. Ettling, 32 Pa. 486; Kimble v. Carothers, 81 Pa. 494; and Pringle v. Pringle, 130 Pa. 565, establish the principle that the test of jurisdiction is not the fact that the action is by an executor or against an executor, or even by one executor against another, but it is whether the legal right is enforceable by an action at law, and especially, no matter how the parties may be named in the pleadings, the real capacity in which the suit is brought.</p> <p>The orphans’ court has no jurisdiction to compel an account by one who, as the bailee or agent of trustees, obtained possession of property of the trust estate, and who, after the death of the trustee, remained in possession thereof without lawful authority. The proper remedy is for those entitled to the lawful possession to bring an action at law against bbe trustee de son tort, or by bill in equity, when an account is necessary: Delbert’s App., 83 Pa. 468; Robinson’s Est., 12 Phila. 170; McBride’s App., 72 Pa. 484; Ryan’s Est., 35 Leg. Int. 431; Ainey’s App., 2 Penny. 192.</p> <p>Suits by executors against each other to recover shares of commissions are maintainable in the court of common pleas: Shaw v. Betts, 4 Atl. Rep.'731; Woodward’s Est., 6 Kulp. 7.</p> <p>The attachment was void ab initio: Act of March 17,1869, P. L. 8. Act of March 29, 1832, P. L. 190; Act of June 16, 1836, P. L. 784; Shollenberger’s App., 21 Pa. 341; Act of May 1, 1861, P. L. 680; Coaks v. White, 11 W. N. C. 271.</p> <p>The service of the writ should be set aside because it was improperly made: Nebenzahl v. Saberlwitz, 1 Luz. Leg. Reg. 595; Cleland v. Cassell, 1 Lack. Jur. 261; Hayes v. Gillespie, 35 Pa. 155; Duffee v. Records, 12 W. N. C. 287.</p> <p>The statement disclosed no cause of action: Kimball v. Carothers, 81 Pa. 494; Pringle v. Pringle, 130 Pa. 565; Delbert’s App., 83 Pa. 468.</p>

<p>Appeal, No. 538, Jan. T., 1896, by defendant, from judgment of C. P. No. 2, Phila. Co., Decernber Term, 1894, No. 769, on verdict for plaintiff.</p> <p>Ejectment for premises 672 Union street in the city of Philar delphia. Before Pennypacker, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court refused defendant’s point which was as follows :</p> <p>The evidence shows that the consideration money for the conveyance to Walter R. Kern was furnished by Hall and Kern, and that the equitable title to possession immediately after the purchase was in them. This being so, the burden is upon the plaintiff to show a conveyance of such equity to him, and the evidence in this case is not sufficient for that purpose. Your verdict should, therefore, be for the defendant. [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1) in admitting parol testimony to prove a gift or conveyance of the equitable title to the premises in question from William H. Kern to Walter R. Kern; (2) above instruction, quoting it.</p> <p>The evidence was not sufficient to prove an executed gift: Ackerman v. Fisher, 57 Pa. 457; Moore v. Small, 19 Pa. 461; Christy v. Barnhart, 14 Pa. 260 ; Collins v. Collins, 2 Grant, 117; Edwards v. Morgan, 100 Pa. 380; Burgess v. Burgess, 109 Pa. 312 ; Robertson v. Robertson, 9 Watts, 32; Postlethwait v. Frease, 31 Pa. 472; Allison v. Burns, 107 Pa. 50; Grata v. Grata, 4 Rawle, 411; Goueher v. Martin, 9 Watts, 106; Meason v. Kaine, 63 Pa. 335; Peer v. Peer, 11 N. J. Eq. 432; Dana v. Dana, 154 Mass. 491.</p> <p>If a parent purchase land in the name of his son, it will, prima facie, be deemed an advancement, so as to rebut the presumption of a resulting trust in the parent: Phillips v. Gregg, 10 Watts, 158.</p>

<p>Appeal, No. 452, Jan. T., 1896, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1894, No. 329, on verdict for plaintiff.</p> <p>Trespass to recover damages for the negligence, of defendant, causing injury by mould and decay to plaintiff’s chickens and squabs stored in á cold storage warehouse. Before Wilson, J.</p> <p>At the trial the contract under which the goods were stored was shown by one of the receipts offered in evidence which was as follows:</p> <p>THE QUAKER CITY COLD STORAGE AND WAREHOUSE COMPANY.</p> <p>Delaware Avenue, Spruce and Water Streets.</p> <p> Warehouse Receipt. </p> <p>No. 2993. Philadelphia, Sept. 13th, 1893.</p> <p>Received by The Quaker City Cold Storage and Warehouse Company, from W. C. Leidy</p> <p>the merchandise described below, on monthly storage,- to be delivered only upon return of this receipt, properly endorsed.</p> <p>Room 4, Floor C.</p> <p>Book Page</p> <p>Marks, &c.</p> <p>Lot 14,533.</p> <p>Charges.</p> <p>Storage per month: -|c. per doz. 1st month. \a. per doz. each additional month.</p> <p>Insurance:</p> <p>$690 00.</p> <p>Description of merchandise:</p> <p>Twenty (20) Bxs. Dark Squabs, 1876 lbs.</p> <p>(344 Doz.)</p> <p>The Quaker City Cold Storage and Warehouse Company shall not be liable for any loss or injury resulting from fire, theft, decay, leakage, wastage, or any accident which may happen to the merchandise above mentioned while in their custody, or from any other cause than the gross negligence of the company or of their agents; nor for any loss from a failure to insure it, unless such insurance be specially directed in writing.</p> <p>(Sgd) L. H. Stephens, Jr.,</p> <p> Treasurer and Manager. </p> <p>H. HtTIilNGS,</p> <p> Register Clerk </p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>The defendant company had a storage house — a house where the temperature was artificially lowered to a point where it was supposed perishable articles could be kept, and people have been in the babit of sending perishable articles — vegetables, fruit, meat, poultry, and various articles of that kind — to such houses to be kept. It may be a revelation to some of you that such perishable articles are sent to be kept so long before they are put upon the market for sale, as you have learned in this case is sometimes done.</p> <p>Under tbe contract involved here, and in the very nature of the case, it cannot be reasonable that the defendant company shall be regarded, in the absence of an express and positive contract, as guarantors that the articles deposited with it shall come out perfectly sound. They do not guarantee against the operation of natural causes. [If either vegetables, or fruit, or meat, or poultry, put in such storage house, notwithstanding they are kept in a sufficiently cold atmosphere, decay, the storage company is not responsible for that. They expressly exclude that ground of liability in their contracts, just as they do leakage, by which I do not mean leakage from pipes, but from receptacles which are put there for storage, containing articles of whatever kind they may be.] [7]</p> <p>The plaintiff says that these various lots of merchandise which he had were deposited with the defendant in good order; that they were in condition suitable to be deposited in that waj-; and that, if kept in apartments in which the proper temperature was observed, they could have been brought out again after a lapse of time — such time as the plaintiff claims was the time here — in a good, sound condition, so that they could be put upon the market and sold at the prices which he has indicated.</p> <p>Now, you will observe that it is very important for you to conclude, in order that the plaintiff may establish that part of his case, that the goods were in such good order. I hardly need say to you, or I ought not to need say to you, that if the injury which subsequently accrued to the squabs and chickens in question here resulted from the condition in which they were when they were deposited, that the defendant company is not responsible here, and ought not to be held responsible.</p> <p>The substantial case of the plaintiff, as I understand it, is this: that in room 4, on floor C, of this warehouse, there was such want of attention on the part of the defendant, or the defendant’s employees, or in some way such want of care exercised with reference to the stock of the plaintiff which was deposited there, that that room was allowed to become damp. Upon that point you have heard a good deal of evidence, and I do not propose to refer to it at all minutely. You have heard evidence upon both sides — evidence which is well worthy of your careful thought and scrutiny. Witnesses have been called by the plaintiff, who say that they saw the dampness there — dampness on the floor — dampness in the trough, or in the troughs, and some indication on the pipes: — I have forgotten exactly how they described it — which would indicate the presence of moisture in the room. It seems to be conceded on both sides that no dampness should have been there; that if the proper temperature had been maintained dampness would not have been there. Even the defendant’s witnesses, as I understand them, concede that if there was dampness — I do not mean the most minute and infinitesimal quantity, for you could not probably get out of any room absolutely at all times all dampness — but if there was any dampness to the extent described by some of the witnesses here, it must have been because the temperature had not been maintained at such a point as the defendant claims it was. As I have said, there is evidence upon both sides of the question, and, as I have already-stated to you, it seems to me the plaintiff’s cause rests upon what you may determine upon that one point.</p> <p>If there was a failure on the part of the defendant to do that which it is admitted should have been done — to maintain the temperature in that room not above the freezing point, or not up to such a point as would have permitted moisture to, gather there, so that, in point of fact, moisture did gather which infected the packages, and caused mould and other injury to the stuff of the plaintiff that was there deposited — if that was the result of such inattention, or want of attention to a plain and obvious duty, then there was negligence on the part of the defendant, or one or more of the defendant’s employees, and to the extent that that negligence caused injury to the plaintiff’s goods, and only to that extent the defendant would be responsible.</p> <p>The fact that the plaintiff’s poultry and squabs were in bad condition at some time it seems to me is quite clear. I do not mean the whole of them, but part of them. There does not seem to be any reasonable ground for doubting that. But, as I have said to you more than once, and I want you to understand it thoroughly, the critical question is, Who was responsible for it ? Does it appear here affirmatively ? Do you see that in the evidence which leads you to believe that the defendant’s want of proper care in doing those things which were done in that line of business, with reference to the plaintiff’s relation to them under the contract which was made, caused this injury ? If so, it was negligence, and, as I have already said, the defendant is responsible. If you do not find such negligence — if you believe that the injury to the stock which the plaintiff deposited in this warehouse resulted from other causes — from natural causes — from its improper condition at the time it was deposited there, or if you are not able to account for it reasonably satisfactorily to yourself at all, then you would have no right to find a verdict in favor of the plaintiff.</p> <p>If, upon the whole case, you find negligence on the part of the defendant, the question would arise, how much the damage would be. [The plaintiff, in that event, would be entitled to recover just so much as he satisfies you he has suffered in consequence of that negligence.] [8]</p> <p>If he is not entitled to a verdict, in view of what I have already said to you, your verdict should simply be for the defendant.</p> <p>Defendant’s points and answers thereto among others were as follows:</p> <p>2. The warehouse receipt, which is the contract between the parties, stipulates that the defendant shall not be liable for any loss or injury resulting from decay; and the plaintiff having failed to show any gross negligence on the part of the defendant, the verdict of the jury must be for the defendant. Answer : That in effect asks me to charge your peremptorily as to what your verdict must be, and I must, therefore, decline it. [1]</p> <p>4. The defendant having shown that the temperature of the storage rooms was kept at a point at which the goods of the plaintiff should have remained in good condition, the damage to the goods cannot be charged to the defendant. Answer: That asks for a peremptory instruction, and I decline the point. [2]</p> <p>5. The plaintiff having failed to show that every one of the squabs and chickens stored by him with the defendant were examined at the time of placing them on storage, and that they were in a fit condition at that time to be kept in cold storage, he is not entitled to recover, and the verdict must be for the defendant. Answer: That I decline because it asks for a peremptory instruction. [3]</p> <p>8. The contracts of sale of the goods made by the plaintiff are not evidence of the market price of the squabs and chickens in question, unless it be shown that such price was the price of squabs and chickens which had been kept in cold storage for the length of time that the plaintiff’s squabs and chickens had been kept. Answer: I affirm that point; in other words, I am asked to charge you that the price to be taken as the market price is the market price for just such squabs or chickens. That is true. [4]</p> <p>9. The plaintiff is not entitled to recover any damages for losses sustained by him in the sale of any goods after the bringing of this suit. Answer: That is true. The ordinary rule is that damages to be recovered in any case must be. damages which had accrued prior to the bringing of the suit. The statement in this case claims that at the time suit was brought what was left of the stock of the plaintiff had been depreciated in value to a certain extent, and that it was only worth so much. If the damage which had accrued then was so much, and the plaintiff is entitled to recover, then he will be entitled to recover for that amount of damage, and the subsequent prices realized are only of importance in the case so far as they bear on the question as to what the market value of what was left of the stock was at that time. [5]</p> <p>10. There is no evidence in this case showing that the defendant did not exercise ordinary care of plaintiff’s goods. As a bailee for hire, the defendant is not responsible for any accidental damage which may have occurred which was not caused by the defendant’s negligence. Answer: This point asks for a peremptory instruction, and I must decline it. The last proposition that, as a bailee for hire, the defendant is not responsible for any accidental damage which may have occurred, which was not caused by the defendant’s negligence, is undoubtedly sound. [6]</p> <p>Verdict and judgment for plaintiff for S3,850. Defendant appealed.</p> <p>Errors assigned were (1-8) above instructions, quoting them; (9) in not directing a verdict for defendant; (10) in entering judgment for plaintiff.</p> <p>The evidence was insufficient to show any negligence in the defendant: Tower v. Grocers’ Supply & Storage Go., 159 Pa. 106; Aldrich v. Boston & Worcester R. R. Co., 100 Mass. 31; Edwards on Bailments, sec. 295; Story on Bailments, sec. 444; R. R. Co. v. McCool, 26 Ind. 140; Claflin v. Meyer, 75 N. Y. 260; Cass v. R. R., 14 Allen, 448; Williamson v. R. R. Co., 56 N. Y. Super. Ct. 508; Grier v. Niclrle, 1 American Law Reg. 119; Boswell v. Collins, 8 Atl. Rep. 845.</p>

<p>Master and servant — Assault and battery — Scope of employment — Street railway company.</p> <p>A motorman in the employ of a street railway company who leaves his car and commits an assault and battery upon one who is driving a team on the track of the company, is not acting within the scope of his employment, or by authority of its officers or agents, and the company is not liable in damages.</p>

Appeal, No. 411, Jan. T., 1896, by defendants, from decree of C. P. Berks Co., equity docket, 1896, No. 647, on bill in equity. Bill in equity to set aside a public sale of lands because of puffing at the sale. Before Eb.mentb.out, P. J. At the trial L. H. Ingram was examined as follows : By Mr. Meredith, of counsel for defendants: “ Q. You say you have been an auctioneer for seventeen years? A. Yes, sir.

<p>Appeal, No. 271, Jan. T., 1896, by plaintiff, from judgment of C. P. Berks Co., Feb. T., 1893, No. 11, for defendant, on trial by the court without a jury.</p> <p>Scire facias sur mortgage.</p> <p>By agreement of the parties the case was tried by the court without a jury. Ermentrout, P. J., filed the following opinion :</p> <p>FINDING OF FACTS.</p> <p>1. Susanna DeTurek, a maiden lady, advanced in years, is the holder of a mortgage for $1,000 on property of Allan J. Matz, the defendant, No. 929 Moss street, Reading, Pa. It is •dated April 2,1891, payable one year after date, with interest payable semiannually at the rate of five per cent per annum, with bond accompanying. It was signed, sealed and acknowledged by defendant, and recorded April 2, 1891, in mortgage book No. 104, p. 466, and October 1, 1891, payment of $25.00 semiannual interest was made thereon. Default was made in the payment of interest for thirty days after the next payment •of interest became due, whereby, by the stipulation of the mortgage, the whole debt became due and'payable, and the present suit by scire facias was instituted for its collection.</p> <p>2. Susanna DeTurek was not present when the mortgage was executed, nor when it was recorded. The plaintiff and defendant were strangers, neither knowing nor seeing the other during the entire transaction. She first knew of the existence of the mortgage and the recording of it April 6, 1891, when it was handed to her by William P. Bard, Esq., a member of the bar, now deceased.</p> <p>[3. The facts of its execution and delivery are these:</p> <p>The defendant negotiated with one Joshua Keely for the purchase of the house and lot described in the mortgage, for the sum of $1,700, payable by judgment to Keely for $550, and balance in cash, • Needing $1,000 to pay Keely to complete the purchase, he heard, through Keely, that Bard had a thousand dollars which he had to put out, and that probably he could get it. Subsequently Keely saw Bard, Bard promised to loan, and Keely made arrangements for a meeting at the office of Bard, who, in advance of the meeting, at Keely’s suggestion, drew up the deed for the premises, the mortgage in suit and the judgment bond to Keely. Matz, the defendant, and Keely met Thursday, April 2, 1891, at Bard’s office, the papers were acknowledged, and immediately thereafter Keely received his bond, delivered his deed, and William P. Bard took the deed and mortgage, went out of his office, and placed both deed and mortgage upon record. The deed was delivered without the $1,000 being paid, the agreement between Keely and Matz being that the money was to be paid over as soon as the papers were fixed. When Bard came back from the courthouse, he said he did not have money enough; Keely and Matz should come in on Saturday (April 4). Matz suggested that it would not be necessary for him (Matz) to come in, that he had some work to attend to at Pottstown; they could fix it up themselves; and it was then agreed between the parties that Matz could go to work at Pottstown, and that Keely should come for the money on Saturday, when Bard would have the full amount. There were present two ladies, unknown to Matz and Keely, who were paying out $850 to Mr. Bard at the time. Mr. Matz supposed at the time one of them was Miss DeTurck. It is admitted that he was mistaken, and that neither of these ladies was Miss DeTurck. Neither Mr. Keely nor Mr. Matz knew until the execution of the mortgage that Miss DeTurck was to be the mortgagee. After the execution of the papers, Matz asked to whom he was to pay the interest, and Bard replied, “ You pay that to me; I transact business for her.”] [1] .</p> <p>4. On Saturday, as agreed upon, Keely called for the money. Bard said it had not been sent up. He called from time to time for it, but did not receive it. Neither Matz nor Keely received at any time any money either from Bard or Miss DeTurck.</p> <p>5. On September 3,1891, Matz paid $25 interest by check to William P. Bard. He paid it to Bard because, upon the execution of the papers, he asked Bard to whom he was to pay the interest, and Bard replied, “ You pay it to me, I transact bus! ness for her.” He had no notice nor knowledge that Keely did not receive the money from Bard as promised, and paid the interest of $25 above mentioned to Bard as Miss DeTurek’s general attorney and general agent in ignorance of the fact. He did not learn the facts until after the death of William P. Bard, who died-, 1891, insolvent.</p> <p>[6. William P. Bard was the general attorney and general agent of Miss Susanna DeTurck for a period of twenty years up to the time of his death. He made her investments, handled and received principal and interest of all her moneys, with very rare exceptions; she being a woman of considerable means, the semiannual interest collected by him ranging from $1,200 to $2,000. He possessed her unlimited confidence, and when principal or interest came in, would receipt for and reinvest as his judgment saw fit without consulting her, and when she came to town would inform her of the fact, handing her papers, and she taking his word as to whether it was right or not. The moneys he handled, collected, and invested, he generally deposited in his own individual account, and was accustomed to make semiannual settlements with her, sometimes by his individual check or by money and checks. Of his practice of placing her moneys in his individual bank account she was at all times fully aware, receiving individual checks in settlement. For a period of at least four months before and after the giving of the mortgage, Miss DeTurck had not handed over to Bard any moneys whatever, but all the moneys coming into his hands during this period were the result of payments to or investments made by Bard as her general attorney and general agent. On April 1 and 2 he received at least $8,246.94, and various other payments between April 1 and 6, 1891. All received were placed, as was his custom, in his individual account. By her acts and conduct she held Bard out as worthy of trust and confidence and as having authority to transact her business relating to the investment of money, the receiving of securities, the making of all contracts and agreements in relation thereto and the collection thereof.] [2]</p> <p>[T. Bard conceived the idea of embezzling the funds so placed in his hands at least on or before said April 1, and on April 2 he was engaged in fraudulently using said funds for his benefit. As part of this fraudulent scheme he took the bond and mortgage and fraudulently did what is set forth in finding No. 8, and fraudulently made the representations to Matz and Keely therein set forth. He took said bond and mortgage with the intent then and there formed to use them in deceiving his principal and covering up his embezzlement. In furtherance of his scheme he, on April 6, drew up for his principal a statement purporting to set forth as debits the amounts of interest and principal received, amounting to $3,549.05, and as credits thereon, inter alia, the mortgage and bond of Matz of $1,000, delivering to her the bond and certificate of the recorder that the mortgage was recorded April 2, 1891. She paid no money therefor, but Bard turned over the papers to cover his previous embezzlement of the $1,000. The interest of $25 received by Bard as aforementioned, was never handed over to Miss DeTurck nor in any way accounted for.] [3]</p> <p>8. Both Matz and Miss DeTurck knew nothing of the fraud that had been practiced by Bard, and only learned of it after Bard’s death.</p> <p>CONCLUSIONS ON LAW.</p> <p>[1. Bard was, in law and in fact, the plaintiff’s general attorney and general agent during the entire transaction. He did not cease to be such attorney and agent until death, and at no time was he the agent of Matz.] [6]</p> <p>[2. The plaintiff is bound by the acts, declarations and representations of her agent, Bard, and they were done and made within the scope of his apparent authority.] [7]</p> <p>[3. Even if he exceeded his authority, she cannot avail herself of the benefit of his act, and at the same time repudiate his acts, declarations and representations.] [8]</p> <p>[4. The defendant is not estopped from alleging, in defense, a want of consideration for the mortgage in suit and the fraud of Bard.] [9]</p> <p>[5. In law and in fact, no consideration for the mortgage having passed to the defendant, the plaintiff cannot recover. I therefore find in favor of the defendant.] [10]</p> <p>In support of these conclusions I will now refer to the decisions which, in my judgment, control the case. In Loudon Savings Fund Society v. The Hagerstown Savings Bank, 36 Pa. 498, it is said, that, “ By a general agent, is understood not merely a person substituted, in place of another, for transacting all manner of business, but a person whom a man puts in his place to transact all his business of a particular kind, as to buy and sell certain kinds of wares, to negotiate certain contracts, and the like. An authority of this kind empowers the agent to bind his employer by all acts within the scope of his employment, and that power cannot be limited by any private order or restriction, not known to the party dealing with the agent.” In Brooke v. New York, Lake Erie and Western R. R. Co., 108 Pa. 529, it is held, that, “ As between principal and third parties, the true limit of the agent’s authority to bind the former is the apparent authority with which the agent is invested; but, as between the principal and the agent, the true limit is the express authority or instruction given to the agent. The principal is bound by all the acts of his agent within the scope of the authority which he held him out to the world to possess, notwithstanding the agent acted contrary to instructions. One who authorizes another to act for him in a certain class of contracts undertakes for the absence of fraud in the agent acting within the scope of his authority. The authority of an agent to act for and bind his principal will be implied from the accustomed performance by the agent of acts of the same general character for the principal with Iris knowledge and consent. These elementary principles are founded on the doctrine that where one of two persons must suffer by the act of a third person, he who has held that person out as worthy of trust and confidence, and as having authority in that matter, should be bound by it.” In Am. & Eng. Ency. of Law, “ Agency,” p. 410 and p. 425, the law of principal and agent is thus stated: “ A principal is liable to third parties for whatever the agent does or says; whatever contracts, representations, or admissions he makes, whatever negligence he is guilty of, and whatever fraud or wrong he commits ; provided the agent acts within the scope of his apparent authority, and provided a liability would attach to the principal if he was in the place of the agent. The right of the principal is affected and modified to the extent of his responsibility for the acts of his agent, as for declarations, misrepresentations, concealments, and fraud generally of the agent while acting within the scope of his authority.” It has also been held by numerous authorities that the principal is bound by the agent’s declarations made at the time, although he exceeded his authority, and the principal cannot avail himself of the benefits of his acts or the fruits of his fraud, and at the same time repudiate his authority or his fraud: Hughes v. First National Bank of Waynesburg, 110 Pa. 428; Keough v. Leslie, 92 Pa. 424; Riddle v. Hall, 99 Pa. 116; Penna. Nat. Gas Co. v. Cook, 128 Pa. 170; and when by false representations the agent induces another to enter into a contract with him, the principal cannot enforce the contract even though the agent had no authority to make the representation: Lycoming Fire Ins. Co. v. Wood-worth, 83 Pa. 223. It is contended by the plaintiff that Matz by his mortgage put into the fraudulent hand of Bard the means of perpetrating the fraud, and that, therefore, he should bear the loss, and in support of her position cites the case of Pepper v. Cairns, 133 Pa. 114, and West v. Jones, 1 Sim. (N. S.) 205, reported also in Law and Equity Reports, vol. 3, p. 225. But we do not think that the facts in either case warrant the application sought to be made. In Pepper v. Cairns, Sergeant, trustee of the Pepper estate, sought to enforce a mortgage against Cairns. It appears that Ruhl, a conveyancer, brought to Sergeant, trustee of the Pepper estate, a mortgage which Cairns had executed and placed in his hands for delivery, and Sergeant paid Ruhl the money upon receiving the mortgage from him. Ruhl was not the agent of Sergeant but of Cairns, and RuhPs possession of the mortgage for the purpose of delivery justified Sergeant in assuming he was authorized to receive the money upon it when he delivered it. The whole evidence showed that Ruhl received the money as agent for Cairns and in that capacity embezzled it. It was strenuously attempted to be shown that Ruhl was the general agent of Sergeant and had handled the money of several estates as such, but the proof of general agency was wanting. In the present case Bard was the general agent of Miss DeTurck and was in no sense Matz’s agent. In the case of West v. Jones, the principal placed money in the hands of one, Vaughan, in order that it might be lent to Jones on his executing a mortgage. Jones knew that the principal had placed the money in the hands of Vaughan for that purpose, and with this knowledge chose to execute a mortgage and placed it in the hands of Vaughan without receiving any money. He thereby enabled Vaughan to satisfy the principal that he, Vaughan, had done what the principal had trusted him to do, and it was held that by reason of Jones’s knowledge of all the facts, he must abide the consequences of his act, for he had placed in the fraudulent hand the means of perpetrating the fraud. The case was bottomed on the fact of the knowledge that Jones possessed of the transaction, and this is substantially set forth in the opinion. In the present case there was no such knowledge whatever on the part of Matz. On the contrary, Bard fraudulently said he did not have the money. The case of Sergeant v. Martin, 188 Pa. 122, does present points of similarity to the present case. There Ruhl, a conveyancer, applied on behalf of Martin to Sergeant for a loan upon a mortgage. He agreed to make the loan, and gave Ruhl a check for the money. Some sixteen days after Martin executed the mortgage to Sergeant, giving it to Ruhl, who placed it on record. He received no money on the mortgage. On the contrary, Ruhl embezzled the money. It was held it was clearly competent for the defendant to prove that he never in any manner received any consideration for the mortgage in controversy, and that he never received the check drawn by the plaintiffs in favor of Ruhl. It was left to the jury to find whether, in receiving the money, Ruhl was authorized to act as Martin’s agent, and plaintiff did not recover. It is contended that this case rules the present case in favor of the defendant, because whatever money was in Bard’s hands came there, not by virtue of the production of the mortgage in suit to Matz at the time or in return for that mortgage, but by virtue of his general authority to invest, collect and reinvest, before the execution of the mortgage.</p> <p>The case of Wall v. Cockerell, vol. 10, House of Lords Cases (star paging 229), is specially applicable to the facts of this case. It was there held (quoting from the syllabus), that, “ Where money is entrusted by A to his solicitor for investment, but without any particular investment being then in contemplation, and is allowed to remain in the hands of the solicitor, the amount becomes a debt due from the solicitor to A. If the solicitor afterwards misapplies the money, and, to cover his fraud, obtains from another client B, upon a false representation,, a transfer of B’s equitable interest under a previously executed mortgage, no money of A being then paid to B, the transfer thus obtained may, on B’s discovering the fraud, be set aside in equity, for no money of A having been received by B at the time the transfer was executed, no interest passed to A by its execution.” The syllabus is a correct statement of the legal principle therein decided. The principles are applicable to every feature of the present case.</p> <p>Errors assigned were (1-3, 6-10) findings of fact and conclusions of law as above, quoting them.</p> <p>In this case the plaintiff did not confer on Bard the general management of her estate. She kept her own securities and her own bank account and satisfied her own mortgages. She did entrust to him the collection of interest and investment of moneys which were in his hands or which she would place there for that purpose.</p> <p>When Matz entrusted Bard with the mortgage to deliver it to the plaintiff and to receive from her the mortgage money, he placed himself and intended to place himself in the exact position of the mortgagor in Pepper v. Cairns, 133 Pa. 114; see also Barnard’s App., 3 Atl. Rep. 764.</p> <p>The fact that Bard was the plaintiff’s agent for investing money in his hands, did not prevent him from becoming Matz’s agent in taking the mortgage to her and getting the money for Matz when he did not have the money in his hands : Pottsville Mut. Fire Ins. Co. v. Fromm, 100 Pa. 347 ; Wright’s App., 99 Pa. 426.</p> <p>Matz, by executing the mortgage and delivering it to Bard without receiving the money, obviously put it in the power of Bard to cheat his employer by representing to her that he had paid the money over to the party, when in fact he had not done so: West v. Jones, 1 Sim. N. S. 205; Independent Building & Loan Assn. v. Real Est. Title Co., 156 Pa. 181; Fisher v. Knox, 13 Pa. 622; Dewitt’s App., 76 Pa. 287; Gordon v. McCarty, 3 Wharton, 407; Buffington v. Bernard, 90 Pa. 63; Epley v. Witherow, 7 W. 163; 2 Herman on Estoppel, sec. 759; Chapman v. Chapman, 59 Pa. 214; Kerr on Fraud and Mistake, 136; Pickard v. Sears, 6 A. & E. 469; Carr v. L. & N. W. R. W. Co., 44 L. J. C. P. 109; Macfarlane v. Giannacopulo, 3 H. & N. 860.</p> <p>A consideration is sufficient if it arises from any act of the plaintiff from which the defendant or a stranger derives any benefit, if such act is performed by the plaintiff with the assent of the defendant, or by reason of any damage or any suspension of the plaintiff’s right at law or equity, or any possibility of loss occasioned to the plaintiff by the promise of another: Hind v. Holdship, 2 W. 104; Beers v. Robinson, 9 Pa. 229; Torrens v. Campbell, 74 Pa. 470; Sergeant v. Aberle, 134 Pa. 613.</p> <p>The plaintiff having employed a fraudulent agent, must suffer by such fraud rather than Matz: Brooke v. N. Y., Lake Erie & West. R. R., 108 Pa. 529; Loudon Savings Fund Society v. Hagerstown Savings Bank, 36 Pa. 498 ; Perry v. Holl, 2 De Hex, Fisher & Jones Rep. 38; Bispham’s Equity, sec. 217; B. & L. Assn. v. Real Est. Title Co., 156 Pa. 181.</p> <p>The case of Pepper v. Cairns, 133 Pa. 114, relied on by the' appellant, does not apply to the facts in this case.</p> <p>The case of Sergeant v. Martin, 133 Pa. 122, is, however, very analogous to the case at bar.</p> <p>The facts in the case of Wall v. Cockerell, 10 House of Lords, 229, are precisely those of this case.</p> <p>The findings of fact by the court below are conclusive, unless brought before this court by bills of exception to the admissibility of evidence: Com. v. Westinghouse Mfg. Co., 151 Pa. 265; Com. v. Hulings, 129 Pa. 317 ; Bradlee v. Whitney, 108 Pa. 362; Com. v. Lehigh Valley R. R., 104 Pa. 89; Brown v. Dempsey, 95 Pa. 243; Lee v. Keys, 88 Pa. 175; Jamison v. Collins, 83 Pa. 359.</p>

<p>Appeal, No. 597, Jan. T., 1896, by defendant, from judgment of C. P. Berks Co., May T., 1895, No. 87, on verdict for plaintiff.</p> <p>Trespass for death of plaintiff’s husband. Before Endlich, J.</p> <p>At the trial it appeared that on the evening of November 22, 1894, the deceased was killed at a bridge belonging to the defendant township. The bridge was about nineteen feet in width and twenty-six in length. It crossed a mill-race sixteen feet wide. From the top of the bridge to the bottom of the stream was about four feet six inches. On the night of the accident the deceased drove over the bridge at a trot, holding the reins in his right hand, and in his left, behind the dashboard, a lighted lantern. When the hind wheels of the wagon were about six feet beyond the bridge, the horse stopped, and the deceased extended his left hand with the lantern beyond the dashboard, flashing the light ahead, and immediately the horse backed upon and over the unguarded side of the bridge. There was evidence that the deceased knew the road and that he also knew that the horse had an aggravated propensity. to take fright.</p> <p>Defendant’s point and answer thereto were as follows:</p> <p>9. Under all the evidence the verdict must be for the defendant. Answer: Declined.</p> <p>Verdict and judgment for plaintiff for $8,833. Defendant appealed.</p> <p>Error assigned was above instruction, quoting it.</p> <p>When the facts are undisputed, and but one inference regarding the negligence of the deceased can be drawn from them, the question is one of law for the court: West Mahanoy Twp. v. Watson, 116 Pa. 344; Butler v. Gettysburg R. R., 126 Pa. 160; Wilson v. Penna. R. R., 177 Pa. 512; 4 Am. & Eng. Ency. of Law, 94; Reddington v. Phila. Traction Co., 132 Pa. 154.</p> <p>A person who knows of a dangerous defect in a street or bridge, and yet attempts to pass it, when on account of darkness he cannot see so as to avoid it, takes the risk upon himself: Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Penna. R. R. v. Beale, 73 Pa. 509. A person who knows the dangerous character of a bridge, and voluntarily goes upon it, when he could have avoided it by taking another road, is guilty of contributory negligence: Hill v. Tionesta Twp., 146 Pa. 11; Haven v. Pittsburg, etc., Bridge Co., 151 Pa. 620; Smith v. City of New Castle, 178 Pa. 298.</p> <p>cited, Pittston Borough v. Hart, 89 Pa. 389; Sturgis v. Kountz, 165 Pa. 358; Hey v. Phila., 81 Pa. 44; Alger v. City of Lowell, 3 Allen, 402; Norris v. Litchfield, 35 N. H. 271; City of Joliet v. Verley, 35 111. 58; Moulton v. Sanford, 51 Me. 134; Yoders v. Amwell Twp. 172 Pa. 447; Scott Twp. v. Montgomery, 95 Pa. 444; Phila. Trust Co. v. Phila. & Erie R. R., 160 Pa. 590; Bunting v. Hogsett, 139 Pa. 363.</p>

Appeal, No. 259, Jan. T., 1896, by defendants, from decree of C. P. No. 4, Phila. Co., March T., 1893, No. 1063, on hill in equity. Held: on account of the identity of interest of husband and wife, that when one of .them is incompetent to testify as a witness, the other is also incompetent: Bitner v. Boone, 128 Pa. 567.

<p>Appeal, No. 319, Jan. T., 1896, by plaintiffs, from judgment of C. P. No. 1, Pbila. Co., March T., 1895, No. 884, refusing to take off nonsuit.</p> <p>Trespass to recover damages for the death of plaintiffs’ child.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p> <p>There can be no question that the death of the child was caused by contact with the car, and, inasmuch as contributory negligence is not to be imputed to the child, there was a case for the jury on the question whether or not negligence was to be imputed to the defendant: Summers v. Brewing Co., 143 Pa. 114. We submit that the law is the same in the present case, where no evidence was presented of the conduct of the motorman. The rapid rate of speed justified the plaintiff’s claim that the case was for the jury: Phila. & Reading R. R. v. Long, 75 Pa. 257; Ellis v. R. R., 138 Pa. 506; Dunseath v. Pittsburg Traction Co., 161 Pa. 124; Lederman v. R. R. Co., 165 Pa. 118; Laquinta v. Citizens’Traction Co., 166 Pa. 63; Thatcher v. Traction Co., 166 Pa. 66; Woeckner v. Erie Electric Motor Co., 38 W. N. C. 549.</p> <p>cited on the question of the company’s negligence: Funk v. Electric Traction Co., 175 Pa. 559; G-oshorn v. Smith, 92 Pa. 435; R. R. v. Spearen, 47 Pa. 300; Fleishman v. R. R. Co., 174 Pa. 510; Flanagan v. Ry. Co., 163 Pa. 102; Hestonville etc. Ry. v. Connell, 88 Pa. 520.</p>

Appeal, No. 474, Jan. T., 1896, by defendant, from judgment of C. P. No. 3, Philadelphia County, June T., 1895, No. 977, on verdict for plaintiff. Trespass for death of plaintiff’s wife. B ef ore Finletter, P. J. At the trial it appeared according to plaintiff’s testimony that on January 2, 1895, plaintiff’s wife was injured by the sudden starting of a car as she was in the act of getting on the rear platform. On January 28,1895, she died from tetanus or lockjaw.

Appeal, No. 482, Jan. T., 1897, by defendant, from decree of C. P. No. 1, Phila. Co., Dec. T., 1894, No. 1005, dismissing exception to report of referee upon bill in equity. Bill in equity for an account and other relief. The facts appear by the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to referee’s report.

<p>negligence — Street railways — Spinal injury by jolt of car.</p> <p>In an action against a street railway company to recover damages for a spinal injury caused by a sudden movement of car, the case is for the jury where the plaintiff testifies that at the time of the accident she was a passenger on a trailer car which was attached to a cable car; that she stood in the passageway holding to an overhead strap; that the car moved roughly, and after she had ridden a few squares it seemed to leave the track and to be pulled back again by the forward car; that she was thrown violently forward and injured, and at the same time the other passengers were thrown first forward and then backward.</p> <p>The fact of a casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer. The accident, the injury and the circumstances under which it occurred are in some cases sufficient to raise a presumption of negligence, and thus cast upon the defendant the burden of establishing his freedom from fault.</p>

<p>Appeal, No. 75, Jan. T., 1896, by defendant, from order of C. P. No. 1, Pbila. Co., June T., 1895, No. 927, discharging rules to open judgment and set aside execution.</p> <p>Buies to open judgment and set aside execution.</p> <p>From the testimony taken in support of the rule it appeared that plaintiff had three sons who were in partnership with the ■defendant in the business of making bricks. On August 24, 1894, defendant gave to plaintiff a judgment note for $15,000, upon which judgment was entered on June 29, 1895. The defendant testified as to the circumstances under which the note was given as follows :</p> <p>“ Q. For what purpose did you give the judgment note of $15,000, entered in court' of common pleas, No. 1, June term, 1895, No. 927 ? A. For collateral for the repayment of $10,000 borrowed on mortgage from the United Fireman’s Fire Insurance Company, on $12,000 worth of ground rents, belonging to Thomas Gillespie, Sr., which he mortgaged for the above amount to be paid in three years. Also for the interest on the same to be paid by me, of five and four tenths per cent, payable semiannually on the twenty-fourth day of August and February of each year, which interest I paid. The other $5,000, Mr. Gillespie loaned to the company, and I assumed as part capital to the business. Q. With whom did you make this agreement and when? A. Thomas Gillespie, Sr. Before I had obtained the money, I had a verbal agreement with him to pay all the expenses in obtaining the mortgage, and pay up the interest on the mortgage, and the principal when due. Q. Was that agreement made before you signed the judgment note? A. That agreement was made before I signed the judgment note. Q. Did you pay the last interest on this mortgage due? A. Yes, sir; and on the $5,000 note also. Q. Then the interest is not due until next August? A. No, sir. Q. When is the principal due ? A. August 24,1897. Q. That was a verbal agreement, was it? A. Yes, sir. Q. Under what circumstances was this judgment note to be entered ? A. On default of the interest on the mortgage and principal not being paid. Q. Was that the only agreement made ? A. No, sir. Q. Was there any other agreement ? A. Yes, sir. Agreement made by James L. Gillespie, acting for his father, Thomas Gillespie, Sr.,, the day I gave the note and at the time, August 24, 1894. Q. (Paper handed witness.) What is that paper ? A. This is the paper which was drawn the day I signed the note, in our office in duplicate; it was drawn in accordance with our previous conversation, in consideration of this loan. I had two of these agreements drawn and signed the day I signed the note; one I sent down to Thomas Gillespie, Sr.’s house with the note by his son, James L. Gillespie, and asked him to have his father sign it and return it to me, when I would give him the copy or duplicate to take to his father. It was never returned.”</p> <p>Mr. Gimber, for the defendant, offered in evidence paper dated August 24, 1894, in reference to the $15,000 note which reads as follows:</p> <p>“ This is to certify that I agree to pay all the expenses and costs incurred in obtaining a mortgage of ten thousand dollars ($10,000), on ten ground rents on properties situated on the West side of Point Breeze avenue below Read street, 36th ward, city of Philadelphia, belonging to Mr. Thomas Gillespie, Sr., the same being mortgaged to the United Fireman’s Insurance Company for three years at annual interest of five and four tenths per cent., payable semi-annually on the twenty-fourth days of February and August of each year, until said mortgage is paid off and satisfied. Said principal and interest is to be paid by me, and for which I have given to Mr. Thomas Gillespie, Sr., a judgment note, dated August 24th, 1894, at one day, for fifteen thousand dollars ($15,000), which note is to be held as collateral for the payment of said mortgage of ten thousand dollars ($10,000) and also for the sum of five thousand dollars ($5,000) which amount the said Thomas Gillespie, Sr., has already put into the firm of Messrs. Webster, Gillespie & Co., as capital to my interest, all of which I am to return with interest, to the said Thomas Gillespie, Sr.</p> <p>“ In witness whereof I have hereunto set my hand and seal this twenty-fourth day of August, A. D. 1894.</p> <p>“ Witnesses : Henry C. Webster, [l. s.] ”</p> <p>“ James L. Gillespie,</p> <p>“ F. L. Gember.”</p> <p>■ Defendant further testified as follows :</p> <p>“ Q. Did you carry out your part of the agreement of August 24, 1894? A. Yes, sir. I paid the interest on the mortgage of $10,000, and on the $5,000.”</p> <p>The plaintiff admitted that the paper offered in evidence by defendant was received and retained by him, but denied that it was delivered when the judgment note was delivered, or that there was ever any conversation between the parties in relation to it.</p> <p>The court discharged the rules to open judgment and set aside the execution.</p> <p>Error assigned was order discharging rules.</p> <p>No paper-book or argument was offered by appellee.</p>

Appeal, No. 492, Jan. T., 1896, by plaintiff, from judgment of C. P. Lehigb Co., June T., 1895, No. 25, on verdict for defendants. Trespass by lessor to recover damages from lessees for injuries to buildings while in their possession under the lease.

Appeal, No. 17, Jan. T., 1897, by plaintiffs, from judgment of C. P. Montgomery Co., June T., 1894, No. 140, refusing to take off nonsuit. Trespass for deceit.

Appeal, No. 192, Jan. T., 1896, by plaintiff, from decree of C. P. Bucks County, Sept. T., 1888, No. 1, dismissing exceptions to auditor’s report. Exceptions to auditor’s report. A bill in equity was filed praying for an accounting between partners, and for partition of real estate, the title to which was held by them as tenants in common. The case was referred to a master who found that the defendant was indebted to the plaintiff in the sum of four thousand dollars.

Appeal, No. 584, Jan. T., 1896, by defendants, from judgment of C. P. Delaware Co., Dec. T., 1895, No. 149, on verdict for plaintiff. Assumpsit for ground rent. Before Biíégy, J., of tbe first judicial district, specially presiding. At tbe trial it appeared that William Easby, tbe plaintiff, for about thirty years prior to 1890, owned tbe property out of which tbe ground rent issued, and occupied it as a place of residence.

Appeal, No. 588, Jan. T., 1896, by-defendant, from decree of C. P. Delaware Co., March T., 1896, No. 5, on bill in equity. Bill in equity to regulate the crossing of a railroad by a street railway.

<p>Appeal, No. 589, Jan. T., 1896, by defendant, from decree of C. P. Delaware Co., June T., 1896, No. 5, on bill in equity.</p>

Appeal, No. 218, Jan. Term, 1896, by plaintiff, from judgment of C. P. Lackawanna Co., March, T. 1894, No. 532, refusing to take off nonsuit. Trespass for personal injuries. Before Archbald, P. J. At the trial it appeared that on November 12, 1892, plaintiff was injured while alighting from the rear platform of an electric street car in the city of Scranton.

<p>Negligence — Township—Bridges.</p> <p>Two townships in different counties separated by a stream which is the county line may build a bridge over the stream themselves, and when they divide the bridge at a fixed point, each may build and keep in repair so much of the structure as lies within the township, as any other township road or bridge is built or repaired. When this is done, each township will be liable for the negligence of its own authorities in the care of its own end of the bridge.</p> <p>Negligence — Bridges— Contributory negligence.</p> <p>Although a person may know that a township bridge is not in a safe condition, yet if he knows that the general public still continues to use the bridge, and he has no distinct notice that the bridge is unsafe, and he uses reasonable care and caution according to the circumstances in crossing the bridge, he cannot be charged with contributory negligence for injuries caused by the defective condition of the bridge.</p>

Appeal, No. 450, Jan. T., 1896, by defendant, from judgment of C: P. Lackawanna Co., Sept. T., 1894, No. 415, on verdict for plaintiff. Trespass to recover damages for personal injuries. Before Archbald, P. J. At the trial it appeared that on April 2, 1894, plaintiff was injured while riding as a passenger on one of defendant’s cars.

<p>Contract — Promissory notes — Affidavit of defense.</p> <p>In an action to recover a balance alleged to be due upon a building contract, an affidavit of defense which alleges that the defendant had given certain promissory notes to the plaintiff to apply on the contract, without any averment that the notes had been paid or that they had been accepted as payment on the contract is insufficient to prevent judgment.</p> <p>Contract — Building contract — Affidavit of defense.</p> <p>In an action to recover a balance alleged to be due on a building contract, the defendant in his affidavit of defense averred that by reason of plaintiff’s delay in completing the work he had been prevented from carrying out a conti'act with a corpox’ation in which he had stock, and that the stock of the corporation had depreciated in value to the amount of about $5.00 per share, and that the defendant held twenty-three hundred and thirty-six shares of the stock. The value of these shares before and after the day the mill was to be completed was not stated. Thex'e was no averment as to when the depreciation took place, in what manner the extent of the depreciation was ascertained, how long the depreciation continued, or what was the value of the stock when the action was brought. Held, that the affidavit of defense was insufficient to prevent judgment.</p>

Appeal, No. 82, Jan. T., 1897, by plaintiff A. B. Munn, from judgment of C. P. Lackawanna Co., Nov. T., 1894, No. 428, on verdict for defendant. Scire facias to revive judgment. Before Fewae.es, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 67, Jan. T., 1897, by defendants, from judgment of C. P. Lackawanna Co., Sept. T., 1896, No. 858, on case tried by the court without a jury. Held: at which Charles H. Sutton and Harry Fletcher were nominated for school directors, Sutton being nominated for what was designated as the short term, and Fletcher for the long term, without specifying the number of years in either case.

Appeal, No. 50, Jan. T., 1897, by plaintiffs, from decree of C. P. Lackawanna Co., Nov. T., 1896, No. 5, on.bill in equity. Bill in equity to compel a railroad company to put down a farm crossing according to contract. The material averments of the bill are set forth in the opinion of the Supreme Court. The defendant demurred to the bill.

Appeal, No. 102, Oct. T., 1896, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1894, No. 912, refusing to take off nonsuit. Trespass for death of plaintiff’s husband. Before Collier, J. At the trial it appeared that plaintiff’s husband was killed in June, 1894, by falling through the joists or girders of a building upon which he was employed as a workman by Richard S. Wright, a subcontractor under Rose and Fisher.

Appeal, No. 377, Jan. T., 1896, by the plaintiffs, from judgment of C. P. No. 4, Phila. Co., Dec. Term, 1893, No. 802, on verdict for defendants. Ejectment for a tract of land on Moyamensing road and Penn-rose Ferry road in the city of Philadelphia. Before Arnold, J. At the trial a verdict was taken for the defendants in the absence of the plaintiffs and their counsel. Subsequently plaintiffs moved in arrest of judgment, filing the following reasons: 1.

Appeal, No. 103, Oet. T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T.r 1894, No. 306, on verdict for plaintiff. Assumpsit on a contract.

Appeal, No. 243, Jan. T., 1896, by defendant, from order of C. P. No. 1, Pliila. Co., March T., 1895, No. 466, discharging rule to open judgment. Rule to open judgment. The facts appear by the opinion of tire Supreme Court.

<p>Negligence — Railroads—Grossing—“ Stop, look and listen ” — Province of court and jury — Evidence—Presumption.</p> <p>To bar a recovery in a case in which a person is injured or killed while crossing a railroad, it ipnst be clear and undisputed that if such person had' complied with the rule to stop, look and listen, he must have seen or heard the approaching train. If the evidence raises a doubt on these points it must be submitted to the jury.</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband at a grade crossing, it appeared that at the crossing in question there were four tracks, and that at the highway over the tracks there was a great amount of travel. There were no gates at the crossing and no electric bell. The deceased approached the crossing about sunset in September when rain was descending in torrents, and it was as dark as night. Three disinterested witnesses testified that the deceased stopped with his horses’ heads a few feet from the first track; that he then started across, and he was struck on the fourth track by a train which was going at the rate of fifty miles per hour. They further testified that no bell was rung or whistle blown, and that no train was visible because of the rain and darkness, and that there was no watchman at the crossing at the time of or immediately before the accident. The testimony for the plaintiff was contradicted in almost every material particular by the defendant’s witnesses. Held, that the case was for the jury. If the greater the speed of a train the greater is the degree of care required by the traveler in the performance of his duty to stop, look and listen, the greater also is the degree of care required by the railroad company in giving warning when approaching a road crossing at grade.</p> <p>The presumption that the trainmen performed their duty when a train approached a crossing may be rebutted by the testimony of a single witness for the plaintiff that no whistle was sounded or bell rung.</p>

Bill in equity No. 244, Miscellaneous Docket No. 1, to restrain the construction of waterworks by a borough. The case was referred to a referee from whose report the following appeared : The borough of Rochester was incorporated by special act of assembly, approved March 20,1849, and on September 7, 1871, accepted the provisions of the general borough act, approved April 3, 1851, P. L. 320.

Appeal, No. 530, Jan. T., 1896, by plaintiff,' from order of C. P. No. 1, Phila. Co., June T., 1894, No. 619, refusing to take off nonsuit. Trespass for personal injuries. Before Brbgy, J. The facts appear by the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 499, Jan. T., 1896, by Emily Howell Campbell et al., from decree of O. C. Phila. Co., April T., 1884, No. 528, overruling exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The material exceptions to the adjudication were overruled, Ashman, J., filing the following opinion:</p> <p>Robert Howell bequeathed to his executors “ such a sum of money as will yield a net yearly income of §2,500, in trust.... to pay over the whole of said net yearly income ” to his wife for life, and if she should die childless, then to pay §10,000 thereof to her appointees by will, and the residue to such of his nephews and nieces as should be living at her death. He left his residuary estate in trust for his grandchild for life. The widow died without issue, having first appointed the said sum of §10,000 to her executors. The question is as to the disposition of interest which has accumulated upon the trust fund. It was claimed respective!}' by the representatives of the widow; by the nephews and nieces, and by the residuary legatee.</p> <p>Of course, the only alternative to the proposition that the testator intended to give an annuity of §2,500 is that he intended the gift of a variable sum, which was to be determined by the executors. To be entirely safe, and without any fraud wliatever, they might have set apart an amount which, calculated at one per cent per annum, would realize §2,500, but which,, as a matter of fact, might easily earn five times as much. In that case, if the income was the measure of the gift to the widow and not simply the pledge for her annuity, she would be entitled to §12,500 instead of §2,500 per year. The testator might have said that the retained sum must yield at least §2,500 annually, and then his intention to give his wife any excess of income beyond that limit might be plausibly argued. But he did not so say; and when he directed his executors to pay over u the whole of said net yearly income,” he meant the net yearly income §2,500 of which he had just spoken.</p> <p>Was the surplus income an accumulation which came under the ban of the act of 1853 ? The evil which the statute sought to avoid was the capitalizing of income, an evil which existed in Carson’s Appeal, 99 Pa. 825, and Grim’s Appeal, 109 Pa. 391, where the donor, in one case, and the testator, in the other, distinctly directed the interest to be invested. But in this case no thought of an accumulation was in the mind of the testator, and it was equally foreign to the purpose of the executors. The latter set apart a fund of $41,729.25, which, at a lower rate than six per cent would not have yielded the annuity, and so close was their estimate that in forty years the net accumulations amounted only to $6,058.14, a yearly average of $121.16. Indeed, a deficit of $1,815.66 actually occurred. Unless the act is too rigid to bend, some play ought to be allowed to the discretion of the accountants, and a fraction of income might be retained, as a matter of prudence, to meet the contingencies of reinvestments and of temporary declines in values. These small savings, which are liable at any time to be absorbed in maintaining the fund, cannot with propriety be regarded as accumulations such as the act was intended to destroy. The case cannot be compared with McKee’s Appeal, 96 Pa. 277, because there the annuity was based upon a fund which was so inordinately large that its surplus income amounted in fifteen years to $100,000. The exact point, however, has been decided. In Eberly’s Appeal, 110 Pa. 95, the trust had run for fifteen years, and the accumulations were in excess of $5,000. Sterrett, J., said: “ If the estate is disposed of so or in such manner that accumulations clearly beyond what may be reasonably required to fully and effectually carry out the provisions of the trust must necessarily exist, it amounts to an implied direction to accumulate. But in determining whether the excess of income over and above disbursements and expenses at any given time is an accumulation within the meaning of the statute or not, regard must be had to the trust property and the duties imposed upon the trustees. . . . Care must be taken not to strip the trustee of a contingent fund, upon which he may be required to draw to meet the exigencies of the trust.” The force of this reasoning was exemplified in the case before us, when the court ordered $1,800 to be paid out of the surplus income to make good a deficit in- the revenues of previous years. We think that the accumulations were not within the prohibition of the act.</p> <p>To whom shall they be awarded ? If they are the subject of an intestacy, they belong to the next of kin; if they form part of the residue, they belong to the residuary legatee; if, again, they are accretions to the fund which was set apart for the annuity, they follow the ownership of the fund. We have little doubt that they fall into the residue. The residuary clause carried with it whatever had not been already given by the will; and this was true of the excess of income above $2,500 in any year. Respecting this, as the testator must have known that it would be likely to accrue, he could not have intended to die intestate.</p> <p>The legacy of $10,000 bears interest from the date of death of the widow, the donee of the power. It accrued under the will of the donor of the power, and he had died many years before. It is proper to say that the demand for interest was not made before the auditing judge.</p> <p>The exception on this point is sustained, and the remaining exceptions are dismissed.</p> <p>Errors assigned, were in overruling exceptions to adjudication.</p> <p>-There was no direction to accumulate in violation of the act of 1858: Eberly’s App., 110 Pa. 95; Hibb’s Est., 143 Pa. 217.</p> <p>The whole trust fund passed to the nephews and nieces.</p> <p>The right to the surplus income vested in the appellee, as it accrued, subject only to judicious protection of the widow’s right to her annuity: McKee’s App., 96 Pa. 284; Washington’s Est., 75 Pa. 102; Carson’s App., 99 Pa. 325; Grim’s App., 109 Pa. 391; Mellon’s Est., 16 Phila. 323.</p>

<p>Appeal, No. 324, Jan. T., 1896, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dec. T., 1893, No. 794, overruling exceptions to referee’s report.</p> <p>Bill in equity for subrogation.</p> <p>Exceptions to report of Charles Biddle Esq., referee.</p> <p>The referee’s findings of fact were as follows:</p> <p>Frances Dougherty, wife of Thomas Dougherty, on December 25, 1880, purchased the property No. 665 North Forty-first street, in the Twenty-fourth ward of the city of Philadelphia, and she created upon the property a purchase money mortgage of $1,600 to the Fire Association of Philadelphia. Being so seized of the said property, Frances Dougherty made her will and died, leaving to survive her Thomas Dougherty, her husband, and Susan, Fannie, Maggie and Annie Dougherty, minor children. By her will she provided as follows :</p> <p>“I, Frances Dougherty, wife of Thomas Dougherty, does hereby wish to will and transfer to my husband, Thomas Dougherty, for his benefit and his children, the property deeded in my name, situate No. 665 North Forty-first street, in the city of Philadelphia, Twenty-fourth ward.”</p> <p>Thomas Dougherty assumed that under this will he became the absolute owner of the house, and desiring to secure additional money for the purpose of his business, applied to the complainant, the Haverford Loan and Building Association of Philadelphia, for a loan of $2,200, offering to create a mortgage on the property as security. The building association, acting under the same mistaken idea, that the legal effect of the will was to give Thomas Dougherty a fee simple title, agreed to make him the loan and take his mortgage on the property for the amount. To carry out this agreement, Thomas Dougherty, on August 5, 1892, gave the building association his bond, and executed a mortgage to them, upon the house, for $2,200.</p> <p>It is shown by the testimony that Thomas Dougherty requested Mr. Stoever, counsel for the Haverford Loan and Building Association, to pay $1,637.50 of the money so loaned to him to the Fire Association of Philadelphia in settlement and satisfaction of the purchase money mortgage created upon the property by Frances Dougherty, (said amount being for the principal of the said mortgage, $1,600 and $37.50 for interest) ; that the payment was made by the building association, and satisfaction of the mortgage entered of record; that $33.50 of the $2,200 was paid for taxes upon the property, and $5.25 was paid for water rent; that an additional insurance upon the property was taken for which $20.25 more was paid; that $33.75 was paid to Mr. Stoever for his services, and the balance of the $2,200, being $467.40, was paid to Thomas Dougherty and by him used for the purpose of carrying on his own business. After the creation of this mortgage, Thomas Dougherty departed this life, leaving to survive him his four children.</p> <p>It is now admitted by counsel for the Haverford Loan and Building Association that Thomas Dougherty at the time he made this mortgage was not entitled to the entire ownership of the property; that he was, on the contrary, entitled only to a one fifth interest in the property; and held the legal title to the balance as trustee for his four minor children. In consequence of this, it is further admitted that the mortgage for $2,200, created by the said Thomas Dougherty upon the said premises, is not a legal mortgage or lien except as against his one fifth interest in the house. It is, however, claimed that the money loaned on this mortgage was for the benefit of the minors’ estate; that the mortgage was created by a man who held the legal title to the property, and that the mortgage therefore is an equitable lien or mortgage on the whole property for the full amount of money now due upon it, which is $2,230,70. For the purpose of enforcing this equitable right or lien, the present bill is filed, and the following prayers are made:</p> <p>“ 1. That the said respondent, the Fire Association of Philadelphia, be directed to cancel the satisfaction of the said mortgage of $1,600 without prejudice to the rights of intervening mortgagees and purchasers, and that the same shall be considered as subsisting for the benefit of the Haverford Loan and Building Association of Philadelphia, who paid the same, and that the said mortgage so satisfied shall be assigned by the said Fire Association of Philadelphia to the Haverford Loan and Building Association of Philadelphia.</p> <p>“2. Or that the said respondents, the said Susie, Fannie, Maggie and Annie Dougherty, the minor children of the said Frances Dougherty, deceased, the present owners of the premises, shall refund to the said complainant, the Haverford Loan and Building Association of Philadelphia, the amount paid upon the $1,600 mortgage aforesaid, including the interest and costs of satisfaction, and also the taxes, water rent and cash appropriated by tbe said Thomas Dougherty, in and about the business in which he was engaged for the benefit of himself and family.</p> <p>“ 8. That the said sum of $2,200 be a charge upon the said real estate above described until paid.</p> <p>“ 4. That your orator may have such other relief as the circumstances of the case may require.”</p> <p>The referee recommended that the bill should be dismissed.</p> <p>Exceptions to the referee’s report were overruled by the court, and a decree entered dismissing the bill.</p> <p>Error assigned among others was decree dismissing bill.</p> <p>A tenant in common who pays off an incumbrance is entitled to contribution from his cotenants: Titsworth v. Stout, 49 111. 78 ; Carter v. Penn, 99 111. 390; 'Dickinson v. Williams, 11 Cush. 258; Newhold v. Smart, 67 Ala. 326; Duke v. Reed, 64 Tex. 705; Oliver v. Montgomery, 42 Iowa, 36; Watkins v. Eaton, 30 Me. 529; 2 Jones on Liens, 1153 ; Calking v. Steinbaeh, 66 Col. 117.</p> <p>No paper-book or argument was offered for appellee.</p>

<p>Appeal, No. 556, Jan. T., 1896, by plaintiff, from decree of C. P. No. 2, Phila. County, March Term, 1888, No. 534, dismissing bill in equity.</p> <p>Bill in equity to compel the defendants to pay for losses occasioned by the alleged false representations of their agent.</p> <p>The facts sufficiently appear by the opinion of the Supreme Court.</p> <p>The case was referred to George Tucker Bispham, Esq., as master, who recommended that the bill should be dismissed, because the plaintiff was guilty of laches in instituting proceedings.</p> <p>Exceptions to the master’s report were overruled, and a decree was entered dismissing the bill.</p> <p>JError assigned among others was decree dismissing bill.</p> <p>The plaintiff was not guilty of laches: Ferris v. Henderson, 12 Pa. 53 ; Piatt v. Longworth, 27 Ohio, 160; Brogden v. Walker, 2 H. & J. 285; Foster v. Mansfield, 146 U. S. 97; Murray v. Palmer, 2 Sch. & Lef. 474: Erickson v. Quinn, 47 N. Y. 410; Campbell v. Boggs, 48 Pa. 524; Rhines v. Evans, 66 Pa. 195; 1 Bigelow on Fraud, 31; Rosenthal v. Walker, 111 U. S. 185; Way v. Cutting, 20 N. H. 192; Pierce v. Wilson, 34 Ala. 496.</p>

<p>Attorney and client — Evidence to establish relationship — •Same attorney representing adverse interests.</p> <p>The payment of a fee is the most usual and weighty item of evidence to establish the relationship of client and attorney, but it is by no means indispensable. The essential feature of the professional relation is the fact of the employment to do something in the client’s behalf. There must be an agreement, express or implied, for compensation,-but whether payment is made in part or in whole by retainer in advance is not material. Nor is it even indispensable that the compensation should be assumed by the client. Ordinarily it is so from the nature of the employment which in the vast majority of cases involves the guarding or enforcement of the client's interest against an adverse one, and is, therefore, exclusive. But oven adverse interests if to be amicably adjusted may be represented by the same counsel, though the cases in which this can be done are exceptional, and never entirely free from danger of conflicting duties. Per Mitchell, J.</p> <p>The mere fact that an attorney acts for a borrower and receives his compensation from him does not of itself prevent the relation of attorney and client between the attorney and the lender, if such is -the mutual understanding.</p> <p>It is proper to submit to the jury the question of the relationship of attorney and client between a mortgagee and the mortgagor’s attorney, where there is evidence that the attorney kept the mortgage and placed it on record, and that he agreed “ to search the title and the records in reference to liens.”</p> <p>Attorney and client — Attorney representing both mortgagor and mortgagee — Duties and liabilities of.</p> <p>Where an attorney at law representing the mortgagor undertakes at the request of the mortgagee to see that tl;e mortgage is a first lien, although the mortgagor is to pay the fees, he is bound to perform the duty with ordinary and reasonable skill and care in his profession, and on failure so to do he will be liable for negligence in that respect.</p> <p>Attorney and client — Breach of duty — Damages.</p> <p>Where an attorney for a mortgagee is negligent in his duty of examining the title to the land mortgaged, the mortgagee is entitled to bring suit at once without waiting for the mortgage to be sued out, and may recover the difference in value between the security he contracted for, and that which he actually received. The cause of action in such a case is the breach of duty, not the damages, which are only an incident.</p> <p>Attorney and client — Mortgage—Negligence—Damages.</p> <p>In an action against an attorney at law to recover damages for neglect of duty in examining title to land upon which plaintiff took a mortgage for one thousand dollars, the evidence showed that the defendant stated that the mortgage was a first lien, when in fact there were two prior liens aggregating one thousand dollars. The statement of claim averred that the property was “ not worth more than twelve hundred dollars.” A witness thought it would be “cheap at ten or twelve hundred dollars,” and the owner of the prior liens testified that the property “had rather increased during the last two years.” Held, that the evidence as to damages although meager was sufficient to go to the jury.</p> <p>Evidence — Attorney and client — Declarations—Mortgage.</p> <p>In an action against an attorney at law by a mortgagee to recover damages for loss occasioned by negligence in examining title, declarations of the mortgagor, in the absence of evidence of fraud or collusion between him and the attorney, are inadmissible.</p> <p>Principal and agent — Evidence—Declarations—Proof of agents.</p> <p>Although agency cannot be proved by declarations of the alleged agent yet he is a competent witness to prove it, and ids testimony cannot be restricted to the mere words used by the principal, but is admissible generally on the whole subject.</p>

Appeal, No. 596, Jan. T., 1896, by defendants, from decree of C. P. Montgomery Co., Dec T., 1895, No. 7, on bill in equity. Bill in equity for the specific performance of a contract, to remove cloud upon title and to prevent the fraudulent use of legal process. The following facts were found by Swartz, P. J. The plaintiffs filed their bill to compel the specific performance of a contract for the sale of certain real estate.

Appeal, No. 418, Jan. T., 1896, by defendant, from judgment of C. P. Chester Co., Oct. T., 1893, No. 43, on verdict for plaintiff. Trepass in the nature of deceit to recover damages for loss occasioned by the alleged false representations of the defendant as to a marble mill which he had sold to the plaintiff. Before Hemphill, J. . The facts appear in the charge of tbe court below which was in part as follows: .

Appeal, No. 40, Jan. T., 1897, by John JB. Robinson, from order of C. P. Chester Co., Oct. T., 1896, No. 69, discharging rule to strike off judgment and to set aside sheriff’s sale. Held: as required by law: Act of April 29,1874, P. L. 77; In re Lutheran Church, 15 W. N. C. 567; Freedley’s Corp. Law, 25; Act of June 17, 1887, sec. 1, P. L. 411; Anderson v. Storage Co., 26 W. N. C. 95.

<p>Election law — Ballot—Pasters attached to official ballot.</p> <p>A ballot cannot be counted for a candidate where the candidate’s name and title of office had not been printed upon the official ballot, but upon separate tickets or stickers which had been inserted and pasted upon the official ballot by the persons who voted for him.</p> <p>It is the duty of those specially charged with the preparation and distribution of the official ballot to see that the name or title of every office to be filled at a forthcoming election is distinctly designated thereon, as the election law specifically requires.</p> <p>The only prescribed mode of voting for persons whose names are not already on the ballot is by inserting their names in the blank spaces prepared therefor in the right hand column of the official ballot. It is the name only that is to be thus inserted, not the title of the office to be filled. The latter is already printed there, and constitutes part of the ballot prepared for the use of the voter.</p>

<p>Appeal, No. 541, Jan. T., 1896, by John J.-Cardin, from order of Q. S. Schuylkill Co., declaring election void.</p>

<p>Appeal, No. 542, Jan. T., 1896, by Philip E. Coyle, from order of Q. S. Schuylkill Co., declaring election void.</p>

<p>Appeal, No. 543, Jan. T., 1896, by Jonathan L. Jones, from order of Q. S. Schuylkill Co., declaring election void.</p>

<p>Equity■ — Preliminary injunction — Equity practice.</p> <p>The sole object of a preliminary injunction is to preserve the subject of the controversy in the condition in which it is until the merits can be heard. It cannot be used to take property out of the possession of one party and put it in the possession of another.</p> <p>The status quo which will be preserved by preliminary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy, and equity will not permit a wrongdoer to shelter himself behind a suddenly or secretly changed status, though he succeeded in making the change before the chancellor’s hand actually reached him.</p> <p>A bill in equity was filed by certain parties claiming the right of possession of a church. On a preliminary hearing, not conducted by the examination of witnesses under the new equity rule, and without evidence except a part of the bill sworn to as an injunction affidavit and a single other ex parte affidavit, and in the face of a responsive answer denying the facts set up in the bill, a mandatory injunction was issued, which prevented the clerical respondents from performing their functions in the church, commanded the lay respondents not to interfere in the management of the property, and practically reversed the whole status of the parties by dispossessing the respondents and putting the complainants in control. Held, that the preliminary injunction was improvidently granted.</p> <p>Equity — Jurisdiction—Ejectment bill — Ghurch law.</p> <p>A bill in equity filed by the members of a faction of a congregation of a church against another faction to recover possession of the church will be dismissed as an ejectment bill where the pleadings show that the former owner of the land granted it for use for public worship according to the uses and ceremonies of a particular denomination, and that he had subsequently re-entered as for condition broken, and had granted and conveyed the land to the respondents.</p>

<p>Corporations — Gas companies — Act ofApril- 29,1874 — Act of June 2,1887.</p> <p>A gas company incorporated prior to the adoption of the constitution of 1874, which has accepted the provisions of the Act of April 29, 1874, P. L. 73, is entitled to exclusive privileges within the district or locality covered by its charter, as provided by the Act of June 2, 1887, P. L. 312.</p> <p>Corporations — • Gas companies — Quo warranto — Act of June 24, 1895.</p> <p>A gas company incorporated prior to the adoption of the constitution of 1874, accepted in February, 1895, the provisions of the Act of April 29, 1874, P. L. 73. On May 8, 1895, another gas company was incorporated to supply gas to the locality described in the charter of the first company. Quo warranto proceedings were subsequently instituted against the second company, and the parties by written stipulation agreed that the decision should be upon the merits “ whether the defendant is entitled to exercise the franchise of furnishing gas for light only; . . . . this question to depend upon whether prior exclusive franchises vested in the ” first company. Held, (1) that the words “prior exclusive franchises” must refer in point of time to May 8, 1895, when the defendant’s charter was issued; (2) that the stipulation of the parties was not broad enough to raise the question of the constitutionality of the Act of June 24, 1895, P. L. 266, as the question of priority on May 8 could not be affected by an act not passed until June 24, and having no retroactive words.</p>

<p>Poor law — Husband and wife — Settlement—Order of removal.</p> <p>A liusband and wife having a settlement in S., removed to M., where the husband obtained temporary employment, but did not acquire a settlement, and subsequently the wife went to T., where she became ill and received relief. Held; that the overseers of T. were entitled to an order for the removal of the wife to the husband’s residence in M., but were not entitled to recover from the overseers of M. the money expended for the relief of the wife in T. Their remedy for that purpose was against S. the place of settlement.</p>

<p>Husband and wife — Married women — Fraud—Claim of title against husband's creditors — Ejectment.</p> <p>In an action of ejectment by a pui'chaser at sheriff’s sale, the wife of the defendant in the execution claimed that she had bought the property in controversy with money which she had borrowed from a relative. There was evidence that the husband had previously sold some real estate, and that some of the money which he had received for it had. been paid to the relative from whom the wife claimed that she had borrowed the money used by her in the purchase of the land in controversy. The court instructed the jury that the burden was upon her to show that the purchase was made with her own money, and that if she made the purchase with her own money exclusively she acquired thereby a title good against her husband and his creditors; that if her hands were clean, she was not responsible for her husband’s misdeeds, even though he may have sold his property for the purpose of hindering and delaying his creditors, but that if she connived or colluded with him in the purchase of the property by using any of the money which he received from his other land, the plaintiff was entitled to a verdict. Held, that a judgment and verdict for the wife should be sustained.</p>

<p>Jurisdiction, S. G. — Petition for reproduction of lost deed.</p> <p>Since the adoption of the constitution of 1871, the Supreme Court has no jurisdiction to entertain a petition for the reproduction of a lost deed and the recording of a copy thereof in the county where the land is situated.</p>

<p>Equity — Equity practice — Appeals—Interlocutory decree — Accounts—Decree refusing to open an account.</p> <p>A decree of a court of equity refusing to open an account settled to a certain date and ordering a further accounting from such date is not a final decree from which the plain tiff is entitled to an appeal.</p>

<p>Appeal, No. 55, Oct. T., 1897, by defendant, from judgment of O. and T., Jefferson Co., Dec. T.‘, 1896, No. 4, on indictment for murder.</p> <p>Indictment for murder. Before Reed, P. J.,</p> <p>The facts are' stated by Reed, P. J., on a motion for a new trial as follows:</p> <p>■ The testimony shows that Louis Scalzi, the deceased, and four others occupied one side of a double house, and the defendant, Joseph Aiello, and family, occupied the other side. The deceased, with others, had been invited to take his Christmas dinner with the defendant. He had been drinking during the forenoon, and was very quarrelsome. He had engaged in one or two fights, and the defendant had interfered to prevent his getting hurt. This friendly interference by the defendant seemed to anger him, and when the defendant told him to come to dinner, instead of doing so, he went up stairs and in a few minutes, re turned with a pair of large shears, and then made an assault upon the defendant, striking at him with the shears. The defendant declined to be drawn into a fight at that time, stating that he had a wife and children dependent upon him and could not afford to fight. The parties then separated. The defendant went to a little place called Shantytown, in the immediate vicinity, and Scalzi went to the water closet where he remained for about an hour. When he came out of the closet he went to the defendant’s house, and in going in he caught hold of the defendant’s little boy who was standing in the doorway and threw him aside, making him cry. Finding a man by the name of Mike Carino in there talking to the defendant's wife, he inquired for his hat and without further ceremony struck Carino on the head with a pick handle, and in this act very nearly struck Mrs. Aiello. He then went to Shantytown to find his hat, but returned in a few minutes without it and took a position alongside of the door leading into his own house. He stood there leaning against the side of the house with his legs crossed, and with one hand in his pocket and with the other hand extended, kept shaking it at those around him saying, more than one will have to cry for this, referring no doubt to his prior troubles. He had been standing there talking in this maudlin way for perhaps fifteen or twenty minutes when the defendant, after an absence of about an hour and a half, returned from Shantytown. There seems to be some conflict in the testimony at this point. Some of the witnesses apparently testifying that the defendant, on his return from Shantytown, came directly up to where Scalzi was standing, while others' testify that he went to his own house first. Upon the whole testimony we think it is clear that the defendant at least was told what Scalzi had done in his absence before he went to talk to him. The defendant, who, according to his own testimony, had just avoided coming in contact with Scalzi because he was angry, now sought him for a personal interview regarding his conduct during his absence from home. He alleges that his purpose was to pacify him, but from what followed, we cannot escape the conviction that his real object in approaching the deceased was the seeking of an opportunity for carrying into execution a formed design and purpose to kill him. The fact that the deceased, by his conduct in the forenoon, had interfered with the enjoyment of the dinner party planned for the day, and had made an assault upon the defendant with a pair of shears no doubt was rankling in the bosom of the defendant, and when he was told what the deceased had done in his absence, the homicidal purpose and the plan of executing it, as revealed in his subsequent conduct, were quickly formed. All this is indicated by the remarks he addressed to the deceased, and the readiness with which he produced the knife used in striking the fatal blows. The deceased was unarmed, and his position, leaning against the house with his legs crossed and one hand in his pocket, was not that of a combatant. Accepting the defendant’s version of the transaction, there was nothing in what the deceased said or did that afforded the slightest excuse or even pretense for the defendant making such a violent and deadly assault upon him. The defendant tells a very improbable story, and one that is in conflict with the testimony of the disinterested witnesses, when he testifies that the deceased with his right hand in his pocket caught him by the lapel of the coat with his left hand and pulled him inside the house, and then finding himself unable to get the hand of the deceased out of his pocket he took a knife from the dining table and began striking him with it. The defendant shows by his own testimony that he had the free use of both his hands, while both hands of the deceased were engaged, and there was nothing to interfere with defendant knocking the deceased down with his fist, and thereby freeing himself from his grasp. This would have been the natural as well as the probable act of any man placed in such a position, if his only object was to get away or to release himself from the grasp of his assailant. The commonwealth’s witnesses, however, present the. .transaction in a different light. From their testimony it appears that the defendant had the knife concealed somewhere about his person, and that he began to strike with it at the door, and when the deceased retreated into the room of his own house the defendant followed, and struck him with the knife. The witness, Angelo Brascal, testified that the defendant said: “ Don’t you want to quit and behave yourself,” and the deceased then threw up his hands, and the defendant said “ he would make him quit.” The testimony of this witness and that of his brother, Salvatore Brascal, indicate that the deceased threw up his hands as if to ward off a blow from the defendant, and we think it is a legitimate inference from the facts and circumstances in evidence that the defendant had the knife in his hand at that time, and that deceased saw it, which was the occasion of his throwing up his hands and backing into the room. Both these witnesses testify that the defendant struck the deceased with the knife at or about the time he threw up his hands. That he was struck when he was backing away from the defendant is shown by the testimony of Salvatore Brascal and Samuel Matthews. The injuries thus inflicted by the defendant proved speedily fatal, and his statement that “ he would make him quit” was verified. That the defendant was conscious of his guilt in this transaction is evidenced by his request made immediately after to Angelo Sonnata to look after and care for his children, and the fact that he then fled the country.</p> <p>The court charged in part as follows:</p> <p>[It would appear from the evidence in this case that the deceased had been quarreling and acting badly on the forenoon of the day on which he was killed, and perhaps up to an hour or.two before his death, and that he had made some threats as to what he was going to do or what was likely to happen, but, if he had quieted down and was not disturbing any one at the time the defendant approached him, and if he committed no overt act at that time to cause a man of ordinary courage and prudence to believe that he was in imminent danger of his life or great bodily harm, the defendant would not be excused on the ground of self defense for killing him. The prior quarrels and difficulties and the previous general bad conduct of the deceased, including any threats he may have made, are not important or material in determining the issue in this case except in so far as they may have inspired the defendant with fear or made him apprehensive that the deceased would do him some grievous injury, and was likely to prepare himself for that purpose.] [1] In this aspect, all that occurred that day as shown in the evidence is to be considered with what was said and done at and immediately before the defendant struck the fatal blow, as bearing upon the question of whether or not the defendant at that time had reasonable grounds for believing that he was in imminent danger from the deceased, and that the act in taking the life of the deceased was necessary to avoid death or great bodily harm which was apparently imminent.</p> <p>[If Louis Scalzi, the deceased, did not, at, or immediately before, the defendant struck him and inflicted the injuries causing his death, commit-some overt act, or make some demonstration indicative of an intention to take the life of the defendant or to do him some- grievous bodily harm, then what transpired or occurred previously would be of no consequence. It is only important and material, as we have already said, when considered in connection with what took place at the time of the killing.] [2] Therefore you will closely scrutinize and carefully consider the testimony, both on the part of the commonwealth and on the part of the defendant, as to what was said and done by the deceased at and immediately before the fatal conflict between him and the defendant, and whether the conduct and actions of the deceased, viewed in the light of what had been previously said and done that day, afforded the defendant reasonable grounds for believing that he was in imminent peril of life or great bodily harm, and that it was necessary for him to make use of a deadly weapon in the manner that he did to protect himself against such apparent imminent danger. If it does, then the act of the defendant would be excusable on the ground of self defense, otherwise it would not be excusable or justifiable.</p> <p>Defendant’s points and answers thereto were as follows:</p> <p>6. That if the defendant from his knowledge of the character of the deceased and of his reputation as being a dangerous man, and taking into consideration the disparity of size and physical strength between the deceased and the defendant, and if the defendant believed he was in great danger of bodily harm, and the deceased was malting an aggressive movement toward the defendant, he was justified in taking the life. of his assailant, and if the jury so find their verdict should be not guilty. Answer : This point as stated is refused. We do not recall any evidence that the deceased had the reputation of being a dangerous man; nor do we recall any evidence of such an aggressive movement by the deceased towards the defendant as would give a man of ordinary courage and prudence reasonable ground for believing that he was in imminent danger of life or great bodily harm. But this is a matter for the jury, and if you recall any such evidence given on the trial, or are satisfied from all the evidence in the case that the defendant had reasonable grounds for believing that his life was in peril or that he was in danger of great bodily harm from the deceased, and that his act in taking the life of the deceased was necessary to avert such peril or danger or that it appeared so to the defendant, then the defendant’s acts would be excusable under the law of self defense and a verdict of acquittal should follow. [3]</p> <p>7. That if the jury find from the evidence in this case that the defendant had previously and up to the time of slaying of the deceased, Louis Scalzi, defended the deceased and used all his best efforts to protect the deceased from quarreling, and was befriending Mm, and that after so befriending him, the deceased became angry at and made threats against the defendant, and entered defendant’s house, making an assault upon defendant’s wife and child, and struck Michael Carino, who was a guest of the defendant, on the head with a pick handle, and when the defendant went up to the deceased to ask him why he had attacked his wife and child and why he didn’t quit quarreling and behave himself, the deceased then made threats and became aggressive towards the defendant, and, after entering the house of the deceased, defendant was attacked by the deceased, and in passing a table he picked up a knife and struck the deceased, and that in striking with the knife he had reason to believe that Ms life was in danger, or that he was in great danger of bodily harm, then such strikmg would be justified and the verdict of the jury should be not guilty. Answer: This point as a whole is refused. The fact that the defendant may have befriended the deceased, or that the deceased had made an assault upon the defendant’s wife and child and had struck Mike Carino over the head with a pick handle, did not constitute the defendant the keeper or judge of the deceased, much less his executioner. We have said several times, and now repeat it, that if the defendant at the time he struck the fatal blow had reason to believe that his life was in danger or that the deceased was about to inflict upon him great bodily harm, then such striking would be justifiable and a verdict of acquittal should follow. [4]</p> <p>8. That if the jury find from the evidence that the defendant had acted as the friend of the deceased and had used his best efforts to prevent the deceased from quarreling, and that up to the time of the slaying, defendant had tried to reason with the deceased, then there is no such evidence of malice as would justify a verdict of murder in the first degree, and if the jury so find their verdict should be not guilty as to murder in the first degree. Answer: We cannot affirm this point. Whether the defendant was actuated by malice or not, is a question for the jury, and we leave it to you under the evidence. [5]</p> <p>Yerdict of guilty of murder of the first degree, upon which sentence was passed.</p> <p>JErrors assigned were (1-5) above instructions, quoting them; (6) that the charge was inadequate in that it did not instruct the jury upon every question of law legitimately raised by the evidence.</p> <p>When death ensues from the use of a deadly weapon, in a quarrel or affray, the jury must scan closely the conduct of both of the parties, their former relations and behavior, and the current of events; the character of the weapon, the manner of its use, and the circumstances attending it; and by a careful survey of the evidence must endeavor to arrive at the true motive and cause which prompted the fatal blow: Com. v. Drum, 58 Pa. 9.</p> <p>While it is not in all cases necessary to answer specifically every one of a series of points, it is necessary to instruct the jury upon the legal rule controlling the questions suggested by the points : Stewart v. Com., 29 Pa. 429; Huddleston v. West Bellevue Borough, 111 Pa. 110; Duncan v. Sherman, 121 Pa. 520 ; People’s Savings Bank v. Denig, 131 Pa. 241; Meyers v. Com., 83 Pa. 131.</p> <p>were not heard, but argued in their printed brief. — The bad character of the deceased for turbulence and violence is competent in favor of the accused only when the conduct of the deceased, at the time of the killing, was such as to create a reasonable apprehension of great bodily harm: Lang v. State, 84 Ala. 1; 5 Am. St. Rep. 324; Walker "v. State, 28 Tex. App., 503; Thomas v. People, 67 N. Y. 218; State v. Birdwell, 36 La. Ann. 859; People v. Stock, 1 Idaho, 218; Doyal v. State, 70 Ga. 134; Binfield v. State, 15 Neb. 484; State v. Ford, 37 La. Ann. 443; Grainger v. State, 5 Yerg. (Tenn.) 459 ; Copeland v. State, 7 Humph. 479; Rippy v. State, 2 Head, 219; Williams v. State, 3 Heisk. 393; State v. Hall, 9 Nev. 58; 6 Lawson’s Crim. Defenses, 22; Horbach v. State, 43 Tex. 242; 2 Bishop on Crim. Proc. sec. 619; State v. Thompson, 83 Mo. 257; Rauek v. State, 110 Ind. 384 ; Harrison v. State, 24 Ala. 67; State v. Sullivan, 51 Iowa, 142; State v. Jefferson, 43 La. Ann. 995; King v. State, 65 Miss. 576; 1 Russell on Crimes, *715; Com.v. Eckerd, 174 Pa. 137.</p> <p>There was no error in the charge : Meyers v. Com., 83 Pa. 131; Com.v. Boschino, 176 Pa. 115; McMeen v. Com., 114 Pa. 301; Abernethy v. Com., 101 Pa. 322; McClain v. Com., 110 Pa. 263 ; Lanahan v. Com., 84 Pa. 80; Cathcart v. Com., 37 Pa. 108 ; Com. v. Buccieri, 153 Pa. 541; Com. v. Breyessee, 160 Pa. 451.</p>

Appeal, No. 358, Jan. T., 1896, by defendants, from order of C. P. Lackawanna Co., Sept. T., 1895, No. 781, striking off appeal. Appeal from award of arbitrators. Before Edwards, J. The facts appear by the opinion of the Supreme Court. Errors assigned among others were (1) in- striking off the appeal; (4) in not striking off the award.

<p>Trusts and trustees — Parol trust — Evidence.</p> <p>To establish a trust by parol the evidence should be clear and convincing.</p> <p>- In a bill in equity plaintiff alleged that he entered into a parol agreement with the defendant for the purchase by them of land for their joint benefit; that the contraefc with the vendor was made in the name of the defendant, who agreed to convey to plaintiff a half interest in the land; that plaintiff paid to the defendant from time to time sums of money to be applied to the purchase; that in violation of the agreement the defendant refused to account for the money received from the sale of stone quarried on the land, and for the proceeds of the sale of the land. The prayer was that the defendant be decreed a trustee, and that he account. The answer filed denied every allegation of the bill, and the testimony of the witnesses was conflicting and irreconcilable. The acts of both plaintiff and defendant tended to indicate that the entire and absolute right of management, control and disposition of the property was in the defendant. There was evidence from which the inference could be-drawn that the payments made by plaintiff were connected with a partnership for quarrying stone, which admittedly existed for a few months between the parties. Held, 'that there was no error in dismissing the bill.</p>

<p>Negligence — Partners—Declaration—Evidence.</p> <p>In an action against three partners to recover damages for personal injuries caused by the alleged negligence of one of them, a declaration of one of the other partners to the effect that he had always been willing to pay plaintiff but that the other members of the firm did not agree with him is inadmissible; and the error in admitting it is not cured by limiting its effect to the party who made the statement.</p> <p>In an action against a partnership to recover damages for personal inju-' ries, the case is for the jury where the evidence tends to show that the direct cause of the accident was the slipping of a knot in one of the guy ropes which held a derrick in place, and that this knot had been negli-, gently tied by one of the defendants.</p>

Appeal, No. 94, Jan. T., 1897, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1894, No. 15, refusing to take off nonsuit. Trespass for death of plaintiff’s husband. Before Schuyler, P. J. At the trial it appeared that plaintiff’s husband, William Coll, was run over and killed by one of defendant’s cars on the night of March 12, 1893. The circumstances of the accident are stated in the opinion of the Supreme Court.

<p>Appeal, No. 183, Jan. T., 1896, by-plaintiffs, from decree of C. P. Lebanon Co., Equity Docket 1891, No. 9, on bill in equity.</p> <p>Petition for reargument. Before Ehrgood, P. J.</p> <p>The case was originally reported in 175 Pa. 188.</p> <p>cited, Bigler v. Penna. Canal Co., 177 Pa. 28; Heilman v. Lebanon & Annville St. Ry., 175 Pa. 188; Penna. R. Co. v. Montgomery County Pass. Ry., 167 Pa. 62; Wilhelm’s App., 79 Pa. 120; Penna. R. Co.’s App., 115 Pa. 529; Larimer St. Ry. Co. v. St. Ry. Co., 137 Pa. 533; Plymouth Twp. v. Railway, 168 Pa. 181; Pile v. Pedrick, 167 Pa. 296.</p>

<p>Decedents' estates — Administration account — Distribution.</p> <p>Au administration account in the orphans’ court cannot regularly be blended with a distribution account, and this is especially the case when the account is not only stated, but finally confirmed within one year after the death of the testator.</p> <p>Payments by way of distribution are not part of an administration account; and auditors appointed to settle an administration account have no authority to report distribution.</p> <p>Decedents' estates — Administration account — Schedule of distribution— Refunding bond — Act of February 24, 1834.</p> <p>When distribution has been made within a year from the death of the decedent, and before the settlement of the executor’s account, the confirmation of the administration account, with the schedule of distribution attached, must be presumed to have been made, so far as it affects the schedule, upon the presumption that the executors, having made distribution on their own authority, had protected themselves by taking refunding bonds as provided by the Act of February 24, 1834, P. L. 73.</p> <p>Decedents' estates — -Confirmation of executor's account.</p> <p>The confirmation of an executor’s account is a conclusive decree as to such matters only as are properly embraced within it. It is not conclusive as to matters not so embraced.</p> <p>Decedents' estates — Laches of creditors — Refunding bonds — Devastavit.</p> <p>The laches of creditors will not excuse the executor for not securing refunding bonds; but his failure to do so will amount to a devastavit and render him liable to creditors for the amount paid out by him.</p> <p>Decedents' estates — Distribution—Legatees—Liability of, to refund — Statute of limitations — Refunding bond.</p> <p>Where distribution has been made to legatees by an executor who has taken no refunding bonds, the obligation of the legatees to refund rests only upon a contract to be implied from the nature of the transaction, and the statute of limitations will apply to it as to all other simple contract obligations.</p> <p>A testator was surety upon the bond of the committee of a lunatic. Within three months after the probate of the will the executors of whom the committee was one distributed most of the estate, and before the expiration of the year filed an account annexed to which was a schedule of the distribution made by them. The account was confirmed a few days prior to the expiration of the year from the death of the testator. About nine years thereafter the committee absconded, having embezzled a portion of the lunatic’s estate. Held, (1) that the executors were liable for the loss; (2) that the court would make no order compelling the legatees to refund on a petition praying that the legatees should refund to the executors funds sufficient to enable the executors to pay the amount of the loss.</p>

Appeals, Nos. 430 and 431, Jan. T., 1896, by defendants, from decrees of Superior Court, affirming decrees of C. P. Lackawanna Co., Nov. T., 1894, Nos. 7 and 8, on bills in equity. Bill in equity for an injunction. The facts appear by the opinion of the Supreme Court. See also Traction Co. v. Canal Co., 1 Pa. Superior Ct. 409.

Appeal, No. 576, Jan. T., 1896, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1896, No. 300, on verdict for defendants. Issue devisavit vel non. Rachel Francis died in April, 1895, leaving an alleged will which was probated by the register of Lackawanna county and letters testamentary granted.

Appeal, No. 311, Jan. T., 1896, by Mary Dice, from decree of O. C. Franklin Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report. John Stewabt, P. J., filed the following opinion: The exceptions to this report raise but a single question— how much money did Frederick Dice, the intestate, whose estate is for distribution, receive from his wife, Mary Dice, who is here the claimant ?