Volume 181 — Pennsylvania State Reports

<p>Appeal, No. 595, Jan. T., 1896, by George F. Heller et al., from decree of O. C. Monroe Co., dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The material portions of the will are as follows :</p> <p>Second. I give and devise the house and lot where I now reside and the household furniture therein to Arminda Treible, Avho now lives with me, for and during such part of her natural life as she remain unmarried; and upon her death or marriage, I direct the same to be sold by my executors hereafter named and the proceeds thereof to be distributed as is provided hereafter in regard to my residuary estate. I hereby give my executors full power, authority and direction to sell the said house and lot on her death or marriage without any liability on the part of the purchaser to see to the application of the purchase money.</p> <p>“ Third. I also direct that fifty-six shares of the stock of the First National Bank of Easton and fifty shares of the stock of the Northampton County Bank be held in trust for the said Arminda Treible so that she receive all the income or dividends arising or accruing therefrom, immediately from and after my death, so long as she remain unmarried and if at any time or times she needs any part of the principal of the stock she is at liberty to receive it for her support and maintenance. If any part of said stock is remaining at her death or marriage it shall be distributed as is hereinafter provided in relation to my residuary estate.</p> <p>“ Fourth. I direct that the lot on the other side of the road opposite my house and lot shall be considered and treated as part of my house and lot and be held and enjoyed by the said Arminda Treible in the same manner as is provided for in item second and shall not be. sold or conveyed to any other person until her death or marriage.</p> <p>“ Seventh. All the rest residue and remainder of my estate, real and personal, shall be divided as is provided and set forth in the intestate laws of the commonwealth of Pennsylvania. But I declare that it is my will and intention in the second and third items of this my Will that Arminda Treible shall have the use and enjoyment of my Shawnee house and lot and everything therein contained for and during all the time of her life she remain unmarried, and if she deems it necessary, may at any time or times use part or all of the principal of the bank stock for her support or maintenance.”</p> <p>The testator was a childless widower at the time of his death. None of his brothers or sisters survived him, and but one of them left issue surviving. He had a considerable estate, all of which was disposed of by the will. The legatee, Arminda Treible, lived in his family for a long while previous to his death as hired help, and down to the time of his death.</p> <p>The auditor, Joseph H. Shull, Esq., held that Arminda Treible was entitled to the bank stock absolutely.</p> <p>Exceptions to the auditor’s report were dismissed in an opinion by Craig, P. J.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>[Marked to be reported.]</p> <p>Contract- — Evidence—-Parol evidence.</p> <p>Where acoutracfcin writing shows upon its face that it was not tho whole contract between the parties, and does not purport to be a complete agreement, parol evidence is admissible to show what was the whole contract and the contract then becomes all parol.</p> <p>Contract — Pension money — Legality of contract.</p> <p>A contract by a son for the care, protection and maintenance of his father during the remainder of the latter’s life, and burial after his death, in consideration of certain pension money which the son had collected for his father; is not illegal.</p> <p>A gift by a father to a son of pension money which the son had collected for the father is not illegal under the prohibitory provision of the pension law, where there is no agreement for compensation on the part of the son for his services in obtaining the pension, nor proof of any demand or claim of any kind for any compensation whatever.</p> <p>• Evidence — Competency of witness — Death.</p> <p>A son claiming against his father’s estate is incompetent to testify to an agreement between himself and father relating to the fund in controversy.</p>

Appeal, No. 100, T., 1897, by defendant, from judgment of O. & T. Luzerne Co., April T., 1896, No. 133, on verdict of guilty of murder in tlie first decree. Indictment for murder. Before Bennett, J. Verdict of murder in the first degree.

<p>Appeal, No. 432, Jan. T., 1896, by defendant, from decree of C. P., No. 4, Phila. Co., June T., 1893, No. 772, on bill in equity.</p> <p>Bill in equity to compel a corporation to issue certificates of stock in place of others which it had wrongfully canceled, relying upon forged powers of attorney.</p> <p>The case was referred to Jolm A. Clark, Esq., as master, who reported in favor of the plaintiff.</p> <p>Exceptions to the master’s report were overruled in an opinion by Thayer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to the master’s report.</p>

<p>Appeal, No. 437, Jan. T., 1896, by defendant, from decree of C. P. No. 4, Phila. Co., June T., 1893, No. 770, on bill in equity.</p>

<p>Negligence — Street railways — Collision between wagon and trolley car.</p> <p>In an action against a street railway company to recover damages for personal injuries suffered in a collision between a car and a wagon in which the plaintiff was riding, it is proper to direct a verdict for defendant where the evidence shows that the car was moving at a moderate rate of speed, and there was no negligence in its management, and that the wagon in which the plaintiff was riding was negligently turned to cross the track when the car was but a very short distance away, and the moment it was discovered everything possible was done to stop the car.</p>

<p>Appeal, No. 9, Jan. T., 1897, by . defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1895, No. 60, on verdict for plaintiff.</p> <p>Assumpsit to recover salary as president of a corporation. Before Flnletteb, P. J.</p> <p>At the trial it appeared that on March 16,1893, the directors of the Lincoln Park & Steamboat Consolidated Company passed the following resolution:</p> <p>“ It was moved by Mr. Benton, seconded by Mr. Klemmer, that the salary of the President of this Company be fixed at $5,500 per year, salary to date from January 1, 1891.”</p> <p>The plaintiff who was president of the company claimed to recover salary from March 16, 1893.</p> <p>The material facts appear from the following part of the charge of the court:</p> <p>[It is the duty of this, and of every board of managers, to see that they have faithful officers — it being their duty to take charge of the business of the company; it devolved upon every one of the directors to know exactly the details of its business, and they are bound, individually and collectively, for all that appears in the books, and for all that appears in the minutes of the board, which is the history of the details of the business.] [2] No director can be permitted to say that he does not recollect that anything in which he took part, did or did not occur. He is presumed to know and to have faithfully performed his •duties, and if he does not, then he is not permitted to say, either in defense of his own conduct or in opposition to the rights of 'other people, that he has neglected his duty. The law presumes that he knows all that he ought .to know, and that he has acted accordingly. Whilst it may be a very great hardship, in all cases, to expect the individual members of a board of directors, having very extensive ramifications of business, to know all the details of the business, yet they have no right to complain of such a hardship, because the moment a director finds that, for 'any reason, he cannot perform all of his duty, it is his duty to the stockholders, for whom he is trustee, to resign the office which he cannot honestly, faithfully and efficiently fill. While we may consider a little laxness, so far as the large business of .the corporation is concerned, certainly, no individual member of a board of directors has a right to complain and say that he does not recollect the business which he himself performed. [It is presumed that the board of directors shall have thorough, complete and full knowledge of all the business which they themselves have transacted, and, therefore, it is that the minutes of a hoard of directors which, after all, is simply the history and account of what they themselves have done, are conclusive against everybody connected with the corporation — conclusive against the stockholders as owners of the corporation, and conclusive against the board in its individual or collective capacity.] [3] We all know exactly how the minutes of any board of directors are kept. They are noted by the proper officer as they occur. If any business is to be performed, a motion or resolution is offered and acted upon by the board. If a majority of the board or a majority of the number sufficient to do business adopt it, then the motion or resolution is passed, and the secretary carefully prepares the minutes, and at the next meeting of - the board reads them, and if any mistake has been made, if there be any objection because of any error in the account of the report of the business, it is the duty of the board and its individual members to have that, at the very time, corrected, and if that is not done it stands then as the act of the corporation, confirmed by the board itself.</p> <p>[In this case the minutes of the board of directors have been produced, and they have been read to you. I have only to say that every word of those minutes is binding upon the defendant, and it is also binding upon the plaintiff in this case, so far as he was acting as the president of this company.] [4] [As I understand it, the president of this company, from its organization, for two years, acted without any fixed salary. Unless there was an agreement on his part with them, an implied or positive agreement, that he should not receive a salary, he would be entitled to a reasonable compensation for his services during the two years in which he acted without any fixed salary. It may not be said here or anywhere that a man shall give his time and ability and act as the manager of a corporation, and yet, because no salary was fixed, he should not receive any salary.] [1] However, that is not the question in this case. It appears that at the expiration of two years, owing to a certain difficulty which the company had in borrowing money, it was necessary that $11,000 should be raised outside of the regular business of the corporation. In other words, it was considered to be illegal for the corporation to pay $11,000 as commission upon the loan of $110,000. So that there was this necessity— the company had either to make up the $11,000 individual^, or forego the advantage of having the $90,000 or $100,000 coming to them under this loan. Therefore it was a matter of interest that this board and its president should in some way overcome the difficulty which might perhaps prevent the performance of the general business of the company, and it might have been ruinous to the company.</p> <p>At that time, as I understand it, the president suggested that the only way they could legally arrive at a solution of the difficulty was that they should fix his salary — it had not been fixed previously — but if it was fixed at $5,500 a year, to date from the commencement of his term of office, and if he appropriated that $11,000 to the payment of the commission, the company would derive the advantage from the loan. There is no doubt that that was agreed to at that time; there is no doubt that the salary was fixed to run during a certain time, and it was fixed specifically and definitely; and there is no doubt that the money was appropriated to a proper purpose. From the general tenor of the minutes of the board, and from the resolutions passed from time to time, the plaintiff in this case might have set up a claim for the entire four years’ service, but he himself has said that he did not intend that he should be benefited except in the way suggested, and therefore his own testimony precludes him from any attempt to collect the salary for the first two years, or from claiming any compensation for that time. He himself fixed it at $5,500 per year, which is $2,750 per year for the four years. As I understand it, he now claims to be entitled to receive $5,500 per year for the third and fourth years only. This does not appear to be an extravagant claim for the presidency of such a company, exercising and performing the duties he has described.</p> <p>[What is the defense in this case ? It is that the salary was to apply only to the first two years. Don’t y'ou see how easy it would have been for the board of directors to have said that the $5,500 per year shall be for the first and second years, and there it would have stopped. If the contention of the defendants, in any sense, is correct, there would be no controversy, and the plaintiff in this case would either have acted as president thereafter, or would have resigned. I say, how easy that could have been done; and the inference may be drawn from the fact that the board did not put that in its resolution because no such thing was contemplated, but the board at that time contemplated compensating him for his four years’ services, which would be $11,000 for four years.] [5] In addition to that is the fact that it appears that at the beginning of the third year of the fixed salary, under which he might have claimed the entire four years, except for his explanation, one or two of the directors — one of whom did not seem to pay much attention to his duty — and who were the custodians and trustees of the property of the stockholders, say that they understood that the money was not to be paid to him. But before you can deprive a man of his legal rights, there should at least be evidence that it was the intention of the president and the board of directors, at the time the action was taken, that he should not receive a salary. Now, how does that appear from the minutes? They were read to you. The plaintiff’s salary is spoken of as a fixed sum in a number of cases, recognized by the board in its resolution and in their conversation — recognized in every way. [Therefore you have, in addition to the presumption of law, that the minutes are truthful, and ought to be binding upon everybody, but a vague and uncertain impression of two or three of the directors, who say that they thought that this applied to the first two years only.] [6] [If they have satisfied you that it did only apply to the first two years, then your verdict should be for the defendants. But when you consider the nature of his duties, and the time and attention he gave to them, and the manner in which these resolutions were passed from, time to time, the jury ought to be controlled by the resolution of the board of directors, rather than by the vague and uncertain recollection of one or two or three directors.] [7]</p> <p>It appears that at a certain time, the plaintiff was willing to compromise with the defendant for $4,750; and if they had complied with that — if they had given him an acknowledgment of the indebtedness, and said that they would pay him that amount of money, then, the plaintiff would have no right to bring suit for more than $4,750, because the right is given to all persons to settle their matters of salary in their own special way; and if the plaintiff at any time was willing to take $4,750, and they were willing to give it to him, and acted upon that and authorized it, then, it was their duty to comply with that compromise. If they did not perform their part of the compromise, then they have no right to say that his claim must now be fixed at that amount, because he at one time offered to take it. [That would not prevent him recovering the entire amount of his salary at the rate of $5,500 a year, for the time he agreed to serve, and did serve as president of the corporation.] [8]</p> <p>Yerdict and judgment for plaintiff for $9,168.50. Defendant appealed.</p> <p>Errors assigned were (1-8) above instructions, quoting them; (9) that the charge as a whole was inadequate and misleading.</p>

<p>Appeal, No. 43, Jan. T., 1897, by plaintiff, from order of C. P. No. 3, June T., 1896, No. 959, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit to recover “ accumulated insurance.”</p> <p>Plaintiff claimed $5,000 on a policy in force at the date of the death of Ralph C. Smith, to wit: February 20,1896 ; also the additional sum of $658.95 with interest thereon from June 12, 1896, which amount plaintiff’s decedent, in his lifetime, deposited and allowed to remain.with defendant to be applied to the payment of such annual premiums on the aforesaid policy as might become due and payable from year to year, during his lifetime. In consideration whereof premium receipts for the full payments which (but for the prior death of said Ralph C. Smith) would have become due for the years ending respectively February 10, 1898, and February 10, 1899, each for the sum of $324.30, and a receipt for the sum of $10.35, on account of the premium for the year ending February 10, 1900,-were executed and delivered by defendant, to the said Ralph C. Smith, marked “B,” “ C ” and “D.”</p> <p>Plaintiff avers that by the death of said Ralph C. Smith, on February 20,1896, the aforesaid policy of insurance determined and became immediately payable, and no further premiums were thereafter collectible thereon. Nevertheless, defendant has retained and still does retain the said sum of $658.95 deposited with it, by the said Ralph C. Smith as aforesaid.</p> <p>The affidavit of defense was as follows;</p> <p>Ralph C. Smith on February 10, 1876, took out a policy in the company defendant, No. 113,293, in the sum of $5,000 on the renewable term plan, the terms being ten years each. At the expiration of the first term, in February, 1886, he took a second renewable term policy, numbered 152,009. The only provision in that policy looking towards a cash payment was the seventh clause, which provided that if default should be made in the payment of any premium during the running of the policy the holder should be entitled to receive in cash two-thirds of the accumulations of reserve and surplus. He did not default on the payments, but in 1896, instead of taking out a third term policy, he decided to surrender the policy then held and to take one of another kind, to wit: the ordinary terminal endowment plan, which was issued February 10, 1896, and which is the policy sued out in this case.</p> <p>The question of the payment of the first premium arose when this new policy was issued, and a special agreement was made with the insured to the effect that, in consideration of his taking new insurance and applying the surrender value of the old policy towards payment of the premium on the new, the full cash accumulation, which was $983.25, should be allowed to him instead of the two thirds accumulation, the only cash payment contemplated by the policy then just expiring. Mr. Smith agreed to this proposition and signed a receipt which reads as follows:</p> <p>“ Dated, Philadelphia, Feb. 1,1896.</p> <p>“I hereby certify that renewable term policy No. 152009 issued by the iEtna Life Insurance Company, on my life, has not been assigned or transferred to any person or party: and in consideration of an allowance of nine hundred and eighty-three 25-100 dollars cash, to be applied in part payment of new insurance now to be taken on the same life, I hereby acknowledge payment and satisfaction in full of said policy, No. 152009 and surrender the same to said Company to be cancelled.</p> <p>“ Witness:</p> <p>“ I. J. Taylor. Ralph C. Smith. (Seal) ”</p> <p>This payment which he receipted for was made up of the $324.30 which is recited in the policy itself; $324.30 which is recited in exhibit “ B ” of plaintiff’s statement; ■ $324.30 recited in exhibit “C” of plaintiff’s statement and $10.35 recited in exhibit “D” of the said statement. Had he accepted the cash surrender value of two thirds, he would have been paid $655.50 in cash, but he expressly stipulated that he would waive the cash payment and allow $983.25, the full 'accumulation, to be applied in the way of premium on the new policy, and only in this way, no portion of it to be paid in cash under any circumstances. The insured had at this time the option to take two-thirds of the accumulations in cash or to use the total accumulations for new insurance, none of the money to be returned to him. The insured exercised the option and chose to take the entire accumulation and apply the same to the payment of premium. This made a contract between the company and himself and limited any recovery on the new policy to the amount of the said policy.</p> <p>When the death of the insured occurred and proofs of loss were furnished, the company promptly offered to pay the claimant the full sum of $5,000 named in the said policy, which he refused to accept, claiming that it was entitled not only to the sum insured but to the payments which were made in advance by the applications of the surrender value of $983.25 above named. The company has been ready, is now ready and tenders itself ready to pay the snm of $5,000, in full of all claims and demands in connection with this insurance, or tenders to pay the said sum into court in full discharge of its obligation under the said policy, but it submits that it is not liable for $5,658.95, the sum sued for by the plaintiff, and the amount claimed in its statement of claim as filed, nor is the company liable for $5,000 as a sum separate and apart from the said sum of $658,95 so that $5,000 should be spoken of as admitted to be due. The company either owes $5,000 or $5,658.95, as one sum.</p> <p>The court discharged a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was above order.</p>

Appeal, No. 68, Jan. T., 1897, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1892, No. 843, dismissing exceptions to referee’s report. Assumpsit on promissory notes.

Appeal, No. 27, Jan. T., 1897, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1896, No. 692, on verdict for plaintiff. Assumpsit to recover the value of corporation stock alleged to have been owned by the plaintiff. Before McMichael, J. The facts appear by the charge of the court which was as follows: This is an action brought by Ella M. Wilson against Wilson-Rogers, a corporation.

<p>Appeal, No. 60, Jan. T., 1897, by plaintiffs, from order of C. P. No. 2, Phila. Co., Sept. T., 1890, No. 460, refusing to take off nonsuit.</p> <p>Trespass for deceit. Before PennypackeE, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 609, Jan. T., 1896, by plaintiff, from order óf C. P. No. 1, Phila. Co., Dec. T., 1898, No. 1331, refusing to take off nonsuit.</p> <p>Trespass for personal injuries.' Before Biddle, P. J.</p> <p>At the trial it appeared that on January 3,1894, the plaintiff was injured hy the explosion of a gasoline lamp which liad been used for the purpose of lighting the outside of the restaurant, but on the day of the accident was hanging in a closet inside the restaurant on a nail from which it fell. The gasoline ran out on the floor and was ignited by a lighted match which one of the defendant’s servants had thrown on the floor without noticing the escaped gasoline. Another of defendant’s servants. Clegett, discovered the fire and taking up the lamp, attempted to cany it to the door, and while doing so his clothes caught fire, which caused either the lamp to explode or the flame to flare out, and the plaintiff, a customer in the restaurant, was burned and severely injured.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 16, Jan. T., 1897, by defendant, from judgment of C. P. Phila. Co., March T., 1893, No. 704, on verdict for plaintiff. Assumpsit on a promissory note. The defendant pleaded the statute of limitations. Before Wilson, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 59, Jan. T., 1897, by defendant, Cornelia Y. Tobler, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1894, No. 826, on verdict for plaintiff. Assumpsit on a promissory note. Before McMichael, J. The material part of the testimony appears from tbe charge of the court below. The facts appear by the opinion of the Supreme Court.

Appeal, No. 581, Jan. T., 1896, by Benjamin E. Walker, from decree of. O. C. Phila. Co., Oct. T., 1895, No. 334, dismissing exceptions to adjudication. Exceptions to adjudication.

<p>Appeal, No. 123, Oct. T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1893, No. 623, on verdict for plaintiffs.</p> <p>Ejectment for two lots of land, on the west side of Buena Vista street. Before Magee, J.</p> <p>At the trial the plaintiffs offered and rested on a deed from William Robinson, Jr., to Jonah R. Hasson and William Duff, dated May 10, 1856; a conveyance from Jonah R. Hasson and wife for one half thereof, dated December 14, 1892, and a quit claim deed from the alleged heirs of William Duff, for the other one half interest, dated January 7, 1893.</p> <p>The defendant offered evidence to show that one Edward McQuaide was assessed with and paid the taxes for the lots in dispute from 1860 to 1866, with proof of his uninterrupted possession from 1857 until 1866, at which time the title of Mc-Quaide was sold at sheriff’s sale and conveyed by the sheriff to Greenwald & Kahn, by' deéd dated Januaiy 25, 1866; that Greenwald & Kahn remained in actual possession, paying the taxes and all municipal assessments thereon until 1874, when the -firm was dissolved and Kahn took, by deed in severalty, these lots; that the lots have constantly remained in the possession of Kahn or his vendees until the present time; and that from 1860, beyond which the records of the city of Allegheny were missing, the taxes and municipal assessments had been constantly paid by Edward McQuaide and the successors in the title under Edward McQuaide, including the defendant, until the time of this ejectment was brought, and that at no time had Hasson & Duff or James B. Hasson occupied or entered into possession of the property, or that they or either of them ever paid or were assessed for taxes or for any of the municipal improvements. The defendant also offered in evidence the purchase money bond of Hasson & Duff to William Robinson, together with proof that that purchase money bond had been paid by Edward McQuaide.</p> <p>By way of rebuttal the plaintiffs offered testimony taken under objection, tending to show that in the early 60’s the lots in question were known as “ Hasson & Duff’s lots,” that they were never known by any other name, and that they had been occupied by Hasson & Duff with cattle on several occasions, and that in July, 1892, persons claiming an option under the plaintiffs, repaired the fence around the lots.</p> <p>Defendant’s points and answers thereto among others were as follows.:</p> <p>3. That if tbe jury find that as early as 1860, Edward Mc-Quaide was in possession of the two lots of ground in dispute, claiming to own the same, and was assessed and paid taxes thereon from 1860 to 1866, and that said lots were generally known or reputed in the community to belong to him, the same Edward McQuaide, and by him were used for drove yard purposes during that period, and that subsequently, to wit: January 25,1866, Greenwald and Kahn purchased said lots at sheriff’s sale, for the sum of 12,050, and thereupon entered upon and took possession of said property, and held the same by virtue of said sheriff’s deed, and that they and those claiming under them from that time down until the institution of this suit have held peaceable, continued, adverse and exclusive possession of said lots; that they were assessed and paid taxes and street improvements thereon, and that they exercised such other and further acts of ownership as the character of the lots warranted; then, after twenty-one years of such possession and exercise of ownership, to wit: after 1881, the law will presume the execution and delivery of the deed to Edward McQuaide, for the property, from the last preceding grantee, and supply its omission: Warner v. Henby, 48 Pa. 187. Answer: lam not willing to say that you can supply that omission without proof of the deed’s execution and loss; but the facts stated in the point have all been suggested as proper for your consideration, to determine the other question, viz, whether or not there has been adverse possession of these lots for the requisite period of time, to give title by the statute of limitations, and I say in answer to this point, “ This point is refused.” And it is on the ground of the last clause that I refuse it.</p> <p>By Mr. Langfitt: Without refusing the facts ?</p> <p>By the Court: No, I do not refuse the facts, but the conclusion that it proves the deed, which I say has not been proved from the testimony, in my judgment. [3]</p> <p>6. That no entry upon the property in dispute by the plaintiff or those under whom he claims, during the period in which property was in the actual possession of defendant or those under whom he claims, would arrest the running of the statute of limitations where such entry was not followed, within one year, by suit for possession: Act of April 13, 1859. Answer : This point is affirmed — that is to say, if they have acquired twenty-one years adverse possession at any time prior to 1898 it would be a bar to recovery. [9]</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Errors assigned among others were (3, 9) above instructions, quoting them.</p>

<p>Appeal, No. 512, Jan. T., 1896, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1894, No. 25, on verdict for plaintiff.</p> <p>Issue between plaintiff and garnishees on foreign attachment to determine whether an admitted indebtedness by the garnishees was owing to the defendant or to another corporation. Before Finletter, P. J.</p> <p>The following contract was put in evidence by plaintiff:</p> <p>“Philadelphia and Reading Railroad Co., 227 S. Fourth St. “ September 4th, 1890.</p> <p>“ L. G. Matthews, Esq., Manager, Iron Car Equipment Co., “41 Wall street, New York:</p> <p>“ Following up our conversation of this date, I have to say that I do not see how our company can afford to buy your cars now in our service at any price that would seem to be adequate to the obligations which I understand rest against them. Nor do I see that our company could afford to make a permanent long time contract for the leasing of the cars except upon substantially this basis : We to pay for their use the current rate of mileage (the present rate being f of a cent per mile) prevailing between railroad companies on cars interchanged upon the mileage actually made in the service; when cars are destroyed by us or upon our connecting roads, you are to accept settlement ILr the same under the Master Car Builders’ rules.</p> <p>“ If such an agreement would be satisfactory to you and your principals, it is my opinion that it would be taken under thoughtful consideration by our president. In the meantime it is my understanding that we have agreed that the cars shall remain in our service, we to pay | of a cent a mile for actual mileage, giving you our guarantee of a minimum mileage of 7000 miles per car per annum, the arrangement to be terminable by either party on 60 days’ notice in writing, and to go into effect immediately, we to make payment upon this basis monthly to Messrs. Post, Martin & Company, No. 45 Wall street.</p> <p>“ Kindly confirm this understanding by letter over your own signature, if you are in authority, or over the signature of the gentleman who is in authority, your President, I suppose.</p> <p>“ Yours very truly,</p> <p>“ (Signed) J. D. Campbell, Counsel.</p> <p>“Approved, “(Signed) A. A. McLeod, President.</p> <p>“ Submitted to the President and Directors of the Iron Car Equipment Company, to Post, Martin & Company, and the Central Trust Company, of New York, on the 4th day of September, 1890, and approved by all the parties in interest.</p> <p>“ The Iron Car Equipment Company, “ By (Signed) A. N. Martin, President.</p> <p>Central Trust Co., of New York, “ (Signed) Post, Martin & Co.,</p> <p>“ By (Signed) E. C. Spalding, “ Edward Kent, Agents.”</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff for $156, and disallowed the balance of its claim: Verdict and judgment for plaintiff for $156. Plaintiff appealed.</p> <p>Error assigned was above instruction.</p>

<p>Appeal, No. 48, Jan. T., 1897, by plaintiff, from judgment of Superior Court, Nov. T., 1896, No. 124, reversing judgment of Q. S., Phila. Co., on verdict of guilty.</p> <p>Indictment for engaging in business of druggist without being registered. The case was reported in 8 Pa. Superior Ct. 264, where the facts are stated.</p> <p>Error assigned was in reversing the judgment of the court of quarter sessions.</p>

<p>Appeal, No. 55, Oct. T., 1896, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1892, No. 450, on verdict for plaintiffs.</p> <p>Trespass for injury to land caused by the construction of a street railway upon a public road. Before Stowe, P. J.</p> <p>The court charged in part as follows :</p> <p>The first question is, what was the damage done ? And we will consider in this connection that the Supreme Court have said that notwithstanding the track goes there without the consent of the property holder — and I presume the same rule would apply to the borough authorities — if the property owner stood by and did not take advantage of his knowledge at the time, saw the company expending money inlaying down tracks and building their road, he cannot then turn around without having taken steps at the right time, and compel the railway company to destroy their road and lose their investment. That being the case, this road is there in such a way that it cannot be removed. Neither the property owners nor the authorities of O’Hara township could compel this company to remove the road, and therefore it becomes a permanent fixture. For that reason I have held that the amount of damages the plaintiffs are entitled to recover is the substantial damage done by the construction of this road, which means, of course, the laying of it down upon the road and raising the road sufficient to put the track upon it. According to the engineer and another party who put it down, that was between eleven and twelve inches, say twelve inches. So far as the evidence of the other parties is concerned, that they thought it was two and a half or three feet, it is mere guess work. You might as well undertake to set up the evidence of a person who would undertake to guess the height of that window above the floor against somebody who measured by a foot rule or tape line. No two persons would guess within a foot of the exact height; but if it is measured in a proper way and by a proper instrument, that is the height and it cannot be anything else. So, upon this question the jury, it seems to me — of course it is a matter for you — ought to take (if these gentlemen are not discredited) their statement as to the amount of ground that was put upon this road. One of them said they dug down three inches for their subgrade to place their ties upon the road, and threw it up to such a height that it was just the same height as the rest — we will call it a foot, in round numbers — above the surface of the old road. [Assuming that to be correct, because you are the judges of this matter, the question is, how much damage did that do the plaintiffs ? One way to get at the real question is to determine how much this property will sell for, how much it is worth with this road there constructed as it was, less, if anything, than it was before the road was built. In arriving at that matter you have no right to take into consideration the general benefit of laying down this street railway. It is the actual benefit, if any, to this particular piece of property which is a matter for your consideration. The fact that they have a better road, if it would enhance the value of this property, is for your consideration; and also every other matter incident to the construction of this road as now constructed as compared with what was the condition ■ and value of the property previous to its being put there. That brings you down simply to the question of how much the plaintiff has lost. We have got to calculate these things in dollars and cents. Somebody may put near my property a mill that I would not like to have there at all — perhaps I move away by reason of its being there. Yet if that mill will make my property sell for more than it would have sold for if it was not there I am not injured, in a legal point of view. I may be annoyed, I may be put in such position that possibly I would not care to live there ; but that is not what we are to consider in cases of this kind.] [4] Cases in court are to be governed by the actual money loss, if any, and determined by the rules in relation to those matters.</p> <p>There are two ways of getting at the loss. One is to restore this property to the condition it was in before, supposing there was an injury done — and apparently there would be if this road was raised — and it was convenient and proper to bring the ground up to the level of the road as it now stands, and it was about on that level before. [To bring it up to a level it would have to be filled in. That would involve expense to bring it up to its former condition. Apparently whatever that would cost would be the amount of damage done. And yet that amounts to nothing if, as the property stands and without that being done, it is worth more in the market than if the road had not been fixed as it is. Quite a number of witnesses in their judgment think the property is worth more with the road in the condition it is now' than it would have been if the road had not been raised. Whatever their opinion is worth is for you to consider. Others think differently.] [5] When you come to assume as a starting point that the property has been damaged, it is your duty to look at the claim put in by the plaintiffs that this road has not been of any benefit to the property at all.</p> <p>In the first place, you start with the fact that the ground is a foot or more — a foot, if you take the engineer’s estimate— above what the old grade was, and a foot brings you to the top of the rail. Of course, the road on either side ought not to be, and would not properly be any higher; but call it a foot. Then the plaintiff would be entitled to recover just as much as would be required to make this property as valuable as it was before. According to the testimony the foundation of the house — or the wood work, it being a frame house upon a stone wall — is a foot above the top of the rail. Now, could that property be filled in, starting at the porch, which would give sufficient grade and fall for the water to run towards the street, so as to be just as valuable as it was before ? If so, that is all the plaintiffs are entitled to recover — all the expense incident to that.</p> <p>The engineer referred to by counsel for defendant based his estimate of 1,600 yards of earth upon the assumption that this was to be raised two and a half feet, and that that is to be the basis in arriving at the damages sustained. That is not to be considered at all if you believe the property is worth more as it now stands than it would have been worth if the road had not been raised to put it in the condition it is in'now. But assuming there is no benefit in that, assuming that the plaintiffs are to recover the actual damage sustained, how much is it ? The jury have got to determine that matter. The property should be put practically, and in a pecuniary point of view, in the same relative position, so far as value is concerned, as it was before. Could that be done without raising this whole lot, the one hundred and fifty feet, two and a half feet or three feet? If it could, then the plaintiffs are entitled to recover simply what it would take to bring it back to the value that it had before the improvement was made and the work was done.</p> <p>Now we come to the plaintiffs’ testimony. Suppose the house had to be moved. Martha J. Thompson claims damages for an old boardwalk that floated away in 1891 and fell to pieces. She wants you to give her the value of a new boardwalk. That is not the standard of damages. The standard of damages in that case is just what it would take to put the old boardwalk back as it then was, if it floated out of the place and if tbe defendant was responsible for that. When she comes to raise the house, if the house is to be raised, she is not entitled to a new house. The house is partially rotted. She said the sills were all rotted away. You cannot give her a new house for an old one. She would be entitled to whatever was absolutely necessary to raise the house. If she made any new additions to it the law does not give her new for the old. It simply gives her what it would take to raise the house as it stood. And so with the stable and everything else connected with it. So far as the plumbing is concerned, suppose the house was to be raised two feet, the plumbing is all in the house. Wherever connections are broken they would have to be connected, and whatever addition there would be she would be entitled to that. She is not entitled to have her house replumbed.,</p> <p>[We come back to just where we started; is this property worth' as much since this work has been done ? If it is, then the plaintiffs are entitled to recover only nominal damages, six cents. Mrs. Thompson’s legal rights have been trespassed upon, but she has suffered no actual injury. And she is entitled to only nominal damages. If the property is worth less than it was before, and would sell for less, then the difference she is entitled to in her verdict. You will get at that either one way or another. As I have suggested, the whole thing comes back to this one question, Is this property in value worth more or less than it would have been if this work had not been done ? If worth more, she is entitled to at least nominal damages. If less, she is entitled to the difference between what it is worth now and what it would have been worth if the work had not been done.] [6]</p> <p>Yerdict and judgment for plaintiffs for $1,200. Defendant appealed.</p> <p>Errors assigned were (4-7) above instructions, quoting them.</p>

<p>Appeal, No. 346, Jan. T., 1896, by defendant, from judgment of C. P. No. 3, Phila. Co., March Term, 1892, No. 810, on' verdict for plaintiff.</p> <p>Assumpsit on an instrument in writing. Before Reed, J. See Fullam v. Rose, 160 Pa. 47.</p> <p>Plaintiff’s counsel offered in evidence the following paper, upon which the suit was brought:</p> <p>“ Know all men by these presents, that I, Anna Maria Rose, wife of Michael Rose, do hereby acknowledge that I have in my hands the sum of $1,000, belonging to my brother, Luke Otis, he having deposited the same with me for safe keeping, which moneys are payable to him or his heirs or assigns on- demand at any time.</p> <p>“Witnéss my hand and seal this twenty-third day of June, A. D. 1886.</p> <p>“Anna Maria x Rose. [l. s.]</p> <p>“Michael Rose.</p> <p>“ Witness present:</p> <p>“ A. James, Jr.”</p> <p>The material portions of defendant’s testimony appear from the charge of the court below.</p> <p>Plaintiff’s counsel, in rebuttal, made the following offer:</p> <p>I also offer in evidence a check dated September 15,1887, on the Southwark National Bank, signed hy Luke Otis, the signature to which the witness Rose identified as being that of Luke-Otis. I propose to contradict Michael Rose when he said he wrote out this slip, by showing that it was written by Luke Otis, and that that handwriting is alike. Objection by Mr. Page. Overruled. Exception for defendant. [1]</p> <p>The court charged as follows :</p> <p>[This suit is brought by the executor of a dead man’s estate, upon a certain paper which was found among the belongings of that decedent.] [3] Where the paper came from you do not know. It comes from what is known in law as the proper possessor. That is to say, executor of the one to whom at one time the document belonged; and he being dead, it is in the possession of the man who is entitled to have it. At any rate,' it is in the possession of the man who is given title, if the claim is still unpaid. Of course, we do not lmow the history of that paper from the time it was first delivered until now, when it is made the basis of a suit. That paper constitutes a valid claim against this defendant, because the defendant, in that paper, acknowledges herself to be the depositary, or a holder, for the benefit of Luke Otis, her brother, whose executor is now suing on this paper, of a certain sum of money. If there is no explanation or defense that claim is as good today as it was when it was first created. The defense, however, in this case is that of payment. It is admitted that she did, in the summer of 1886, some time in the latter part of the month of June, I think, receive that sum of money from the decedent, Luke Otis, whose executor is the plaintiff in this suit; and there is evidence to show that that money was intended to enable her to spend it upon a house in Sea Isle city, down on the coast of New Jersey, to enable her to carry through that undertaking. Now, the allegation is that in the following January, on the 10th, 1887, this money was repaid by the defendant in this case to her brother, and, either through error or mistake, she did not become possessed of the document which would show that she had paid back the' money. It is alleged, however, that a receipt was given, which receipt has been lost by the defendant.</p> <p>[Now, the plaintiff’s case consists of the paper, and the fact that he has the paper, and that is a good case, so far as it goes, because there is no doubt that there is a liability under that paper. In addition to that certain corroborative evidence, which is based upon the assumed good character of Luke Otis, the deceased, and that he would not have retained possession of that paper, still less would he have said that he had destroyed it when in point of fact he had not destroyed it, although he should, if he had been paid the money, have delivered it up. In other words, the plaintiff’s case is, in the first place, you have the paper, and second, you have a course of conduct credited Luke Otis, which is not consistent with good faith and honesty on his part, and not such as you would suppose a brother and honest man, living on good terms with his sister, would have conducted himself.] [4] -Now, as against that we have a number of witnesses. We have, in the first place, Mr. James, the conveyancer, who testified yesterday on the stand that he met Luke Otis on the street — a person with whom he was in the habit of doing business — and Otis told him that the matter had been fixed, and Mr. James asked Mr. Otis if he would not give him an opportunity of investing that $1,000, and Otis said he would come around to his place and see about it, but lie never did, and not long after that he died. Mr. James was recalled to the stand today, and testified that his recollection more fully is, that Otis did not simply use the word “ fixed,” that useful Americanism that covers every active verb in the language, and will express all a man’s idea, nearly, but he said he used a good English expression, not that the matter was fixed, but that she had paid him. Mr. James says he recollects it, for the reason that he felt an interest in attending to this man’s business, and wanted to invest the money for him, either in a mortgage or something of that kind, and he looked upon Mr. Otis as being possessed of this $1,000, and as a possible customer, and he wanted him to come down and see him. In addition to that we have various witnesses. Michael Rose, the husband of the defendant, August Gauvry, Mary Busch, Mary Gauvry, James Hyland, Daniel Desmond and August Busch. Mr. Rose says, in the first place, that he made this deposit slip for the deposit of this money by Luke Otis, and that this slip is in his handwriting, and not in that of Luke Otis. The witness Hyland says that he had been in the habit at times of making deposit slips for Luke Otis, but this particular deposit slip he said was not made by him. Rose said he remembered the fact that he made this deposit that day, and that he was the man who wrote out the slip for the deposit, and he states that the money that he deposited was the money that he received from his sister, Mrs. Rose, in settlement of this debt which sprung out of the Sea Isle city matter. Then we have Mr. Busch, the tavern-keeper, and his wife. They stated that Mrs. Rose and her brother came in accompanied by a young man named McCambridge, who, it is agreed by counsel, is dead, and they stated that the money had been paid, and in addition to the $1,000 something was said about the payment of $25.00 interest. Then a man named Daniel Desmond says that Otis told him that the money had been paid, and that the claim against his sister was settled. And Hyland testifies the same way. I am going over this testimony very briefly, but, I feel, as fully as necessary. Then we have the testimony of Mr. Gauvry, who was a relative of these people, and he says he remembers sending a postal card to Mr. Otis, saying that his sister wanted to see him on important business, and he came down the next day, and she paid him this money, and that there was a little friendly discussion between brother and sister as to the payment of interest, the sister insisting that he should have $25.00 for the loan, which would be interest at the rate of five per centum on $1,000 for six months, which he was rather unwilling to accept until she thrust it in his pocket, and in doing so tore the edge of his overcoat pocket. In addition to that we have the evidence of Mr. Martin, who testified this morning that that day sometime between twelve and two o’clock, Mrs. Rose came to his place and got $845, which he gave her in bills of various denominations, he being the person who gathered in her rents for her. So, if the testimony of these witnesses is true, if they have not combined, on the theory of the plaintiff here, from the fact that Mr. Otis, from some source or other, which is not explained, put $1,050 in bank that day, and this fact came to the knowledge of his sister and his friends, and, based on that, drew this story. I say if you believe the testimony of the witnesses for the defendant is true, then, of course, the money was paid and your verdict should be for the defendant. Of course, what I have said as to the basis of the theory of the plaintiff here is a matter for argument, and you must determine the question yourselves. We have a number of witnesses, and their testimony is about the same, beyond some contradiction or discrepancy between the testimony they previously gave when it was tried before, and the testimony they gave at this trial. You have heard just what they were and you have heard counsel on both sides speak of them. It is argued bjr plaintiff’s counsel that their memory is not to be trusted, and counsel for the defendant said they are simply imperfections of an honest memory; that people do not, after a long lapse of time, when they go to recite a thing again, state upon the second occasion just what they did the first time; and it is for you to say which of those two theories you will adopt. Either of them is applicable to this case.</p> <p>Now, we come to one more point in the plaintiff’s case, and that is the position which was taken by Luke Otis in his lifetime in regard to delivering this paper when it should have been delivered to the defendant, Mrs. Rose; that is, if the money was paid. If you view the testimony from that point it would appear that Otis not only seemed disposed to wrong the defendant in this case by keeping from her papers to which she was entitled, and which might hereafter be a source of trouble to her, but that he went out and told a number of people, if he did so, that he had been paid this money, at the same time knowing it had been paid, and that he had this paper in his possession which he could at some future time claim the money for. Now, if we had an exact idea of what took place at this meeting, if it did take place, between Otis and the others, if we knew that he had deliberately deceived the defendant in this case, we might then very well argue that it was unlikely that a man who would do a thing like that would imperil himself by going outside and telling people that it had been paid if it had not been paid. On the other hand, if he remembered just what this paper was and where it was, and attached no importance to it, and said it had been destroyed and it had not, we cannot quite suppose that he did that for some future evil purpose; but the question is, does what we hear on this stand after thé lapse of a very considerable length of time put us exactly where we would have been had we been present at that interview? In other words, the manner, emphasis and general conduct of the man when he said he destroyed it, if he did say so. If, for example, he had the paper and did not want the trouble of looking it up, and turned it off by saying, “ Oh, I don’t know where it is; I tore it up,” or “ I can’t find it,” in an indifferent way, we might conclude from that that he did not want to take the trouble of looking it up, and did not attach any importance to it. If, on the other hand, he gave her his solemn assurance,, knowing the importance of the paper, that he had destroyed it, because he didn’t wish such paper to be in existence, and in point of fact he had not, we may assume that he intended to tell what was not true and what he knew was not true. We do not know from the testimony of the witnesses just what took place at that interview any more than one or two of the witnesses have said, that Otis said he had destroyed the receipt. Now, whether that was a careful, deliberate statement made by a man knowing the importance of what he was saying, or whether he said it in a careless way, it is an entirely different thing, and it is for'you to say which of these you will assume, Of course, it is impossible, in my judgment, and I think it will be in yours, to suppose that these witnesses are all mistaken innocently as to what Otis told them. These witnesses are either telling the truth, or some of them, probably a majority of them, are deliberately perjuring themselves. [In other words, if from some possible source we could discover that the payment had not been made, and Otis never made any such assertion, then I am very much afraid that if not all, at least a very considerable part of these people must have been saying what they knew was not so, because, while one person may very likely be wrong, it is not, to my mind, conceivable that they all should be.] [5] In other words, one man is likely to make a mistake, but that half a dozen people should all make a mistake in the same way seems to me very improbable, and I believe • you will think so, too. The question is, whether the witnesses are telling the truth. We have the best authority that he had that amount of money in his possession that day, because he made a deposit of it, as shown by the books of the bank. The plaintiff’s counsel argue that the deposit is the fact on which the rest of the story is built, and it is a foundation, and not a corroboration of the defendant’s case. He argues that that is so because it must otherwise be imputed to Luke Otis that he intentionally suppressed this paper in order to make some future use of it in a way that he honestly had no right to use it. As far as that being the case is concerned depends a good deal upon what is said at that interview, and how he said it. On the other hand, of course, it is your duty to reconcile all the testimony in this ■ case that can be reconciled, and when you have tried to do that, and so far as you have succeeded, you have disposed of that much of the case, so much as you cannot reconcile, then of course, you must decide which you will believe; but I must again call your attention to the fact that there is no living witness on the plaintiff’s side of the. case. The dead man, of course, cannot speak, and the defendant herself, for the same reason that the plaintiff cannot speak, is prohibited from testifying. We have this paper, as far as the original liability is concerned, and that is all we have except what we may infer from the statements given to us by the defendant’s witnesses, to whom Otis is alleged to have told about the possession of this paper and his destruction of it.</p> <p>Counsel for the plaintiff has pointed out to you several discrepancies in the testimony of some of the witnesses as compared with the testimony given at a previous trial. That is a matter for you to reconcile if you can. You have heard read to you what the witnesses testified to at the previous trial, and you have heard their testimony while on the stand in this case, and I leave that matter with you. It is not a case of witness against witness, as there are no witnesses on the plaintiff’s side. The transcript from the bank shows that he made a deposit on a certain date, and an officer of the bank, Mr. Crawford, when asked about what time of the day the deposit was made, says it was somewhere between twelve and three o’clock. He says that the writing on the slip looks like Mr. Otis’ writing. [The plaintiff, in order to show that Mr. Rose’s recollection in this case is not to be relied on, when he said he wrote out the deposit slip, has produced a check which we may assume was signed by Luke Otis, in order to show his handwriting, and has argued to you that the handwriting on the check and that on the deposit slip are one and the same. Mr. Crawford, however, has said the writing looks like some writing he has of Mr. Otis’, but the plaintiff puts in this check of Mr. Otis, and it is for you to make a comparison of those signatures.] [2] I, myself, am not an expert on handwriting, but I do not see much resemblance. It is, however, for'you to determine that question. If you disbelieve the defendant’s case — there is no doubt that Mr. Fullam is the executor of Luke Otis — and if he is entitled to anything he is entitled to the amount claimed. If you find for the plaintiff you will find a verdict for Mr. Fullam. If you find a verdict for the defendant, of course that ends the case.</p> <p>The plaintiff’s counsel will hand you a statement of their claim, but of course that does not amount to anything as a matter of proof. It is simply a calculation to save you the trouble of going into figures.</p> <p>[It is argued by counsel that this claim was not counted among the assets of the decedent. I think counsel for plaintiff has accounted for that when he said that it was a disputed matter, and therefore it was not counted among the assets.] [6]</p> <p>Verdict and judgment for plaintiff for $1,205. Defendant appealed.</p> <p>Hrrors assigned were .(1) rulings on evidence, quoting the bill of exceptions; (2-6) above instructions, quoting them.</p>

<p>Appeal, No. 554, Jan. T., 1896, by plaintiffs, from decree of C. P. No. 4, Phila. Co., March T., 1895, No. 691, on bill in equity.</p> <p>Bill in equity to restrain the obstructions of a right of way.</p> <p>The case was referred to Hampton L. Carson, Esq., who reported the facts to be as follows :</p> <p>The defendant, Charles Paist, in October, 1889, became the owner of a lot of ground at Devon, Chester county, Penna., with a frontage of four hundred and eighteen and three tenths feet on Waterloo avenue, and with a depth to the eastward of two hundred and twenty-five feet, subject to the condition that the improvements to be erected thereon should consist of two substantial, brick, stone or frame dwelling-houses, and no more. By a subsequent purchase he acquired a lot immediately to the eastward with a frontage of four hundred and eighteen and three tenths feet, and a depth of ninety feet, subject to the condition that within two years thereafter he should erect one dwelling-house thereon at a cost not less than f4,000. By subsequent deeds this condition was released as to the last-named lot. He thus became the owner of a lot four hundred and eighteen and three tenths feet by three hundred and fifteen feet, subject to the condition of improving the frontage on Waterloo avenue.</p> <p>Whatever the original intentions of the defendant may have been as to the laying out of the ground in four lots in the spring of 1890, he laid out his ground in three parts, two being lots with a frontage of one hundred and seventjr-five feet on Waterloo avenue, with an even depth of three hundred and fifteen feet to the eastward, and the third being an intervening strip or lot of about sixty-nine feet in frontage on Waterloo avenue, with a depth of three hundred and fifteen feet. This last lot was laid out as a boulevard, with three beds of shrubbery in the middle, with driveways or roadways on both sides, each of about fifteen feet in width, opening into Waterloo avenue, composed of broken stone or macadam, with a top dressing of screenings. At the time these lots were laid out Mr. Paist, after appropriating one hundred and seventy-five feet in frontage to each lot (carved out of the original four hundred and eighteen and three tenths feet), called the intervening ground a “boulevard,” and stated substantially, that value would be attached to the adjoining land because of the improvement. At this time the main boulevard leading from the hotel to the railroad station, immediately to the east of defendant’s ground, liad not been opened, but there was a board walk leading in the same direction, separated by a small strip of grass from the defendant’s ground, to which he was anxious to obtain access. After the purchase by the plaintiffs, the main boulevard was opened ,\ the grass strip was removed, and the stone surface of the driveways on both sides of the flower beds as laid out on the defendant’s lands became united wi,th the stone surface of the main boulevard, thus making physically a continuous driveway or road between the lots of the plaintiffs over the ground of the defendant from Waterloo avenue into the main boulevard. The plaintiff, Clad, bought his lot on September 25, 1890, for the sum of $3,000. The plaintiff, Walton, bought her lot on May 22,1891, for $3,500.' Prior to both of these purchases the defendant, in conversation with the plaintiffs, distinctly referred to the existing condition of the ground. He said that the method of laying it out had been suggested by what he had seen in the city of St.. Paul; that the lots were really corner lots; that he intended to dedicate the intervening piece of ground (already in the physical condition for a road, and plainly visible as such) to public use for the benefit of the people of Devon; that it. would remain open forever. In the case of Mr. Clad, in answer to the specific question, “Is this going to be a boulevard?” Mr. Paist replied, “I am going to dedicate that boulevard for the public use of Devon, it will stay there forever; ” and in the ease of Mrs. Walton, he referred to the proposed opening of the main boulevard (a fact not long afterwards accomplished), and informed her that she would have three fronts. The purchases of the plaintiffs were made on the faith of the existing condition of the ground, and the positive assurances of the defendant of its permanency. The defendant has repeatedly declared to persons residing at Devon, other than the plaintiffs themselves, that he intended to dedicate the boulevard to public use; that it would remain open forever; that he would make a deed to a tree. This, or similar statements, were made to George H. Earle, Jr., Henry C. Davis and F. E. Hastings. The deeds to the plaintiffs contain no express reference to the intervening boulevard as a boundary. The word “ lane ” occurs in the deed to Mr. Clad. The word “ lane ” is erased from the deed of Mrs. Walton, and the erasure is noted by the notary before whom Mr. and Mrs..Paist acknowledged the deed. The deed was prepared for the grantee with the word “ lane ” written therein, and was handed by Mr. Walton to Mr. Paist at Devon, who took it to Norristown for acknowledgment by himself and wife. The erasure was made in the meantime, without the knowledge of the grantee. The notary noted it at the time of execution, neither the grantee nor her husband being present. The deed was then returned, and the fact of the erasure was not known to the plaintiff Walton nor to her husband, until the hearing of the case before the referee.</p> <p>The plaintiffs, soon after their respective purchases, erected expensive dwelling-houses upon their lands. Mr. Clad established a roadway on his own land leading directly to the boulevard, through an entrance eight feet four inches in width, through which vehicles of all kinds can pass.</p> <p>At the time of Mr. Clad’s purchase, the boulevard was in use by both persons and carriages as a highway, and this public use has been since then continuously enjoyed in an open and notorious manner. Mr. Warren, Mr. Earle, Mr. Terry, tradespeople, guests at the hotel at Devon, those living about the country, maids with children, as well as the plaintiffs, have used the boulevard both as a roadway and footwalk. Temporary obstructions of a slight character were erected on several occasions by the defendant. These were placed there at a time when the frost was coming out of the ground for the protection of the roadbed from heavy vehicles. They extended over but a portion of the driveway, were easily removed, were afterwards removed, and did not close the highway to public travel, nor did they actually diminish the travel, nor signify in a positive manner to the public that the boulevard was closed.</p> <p>Prior to the filing of the bill, the defendant threatened to build a schoolhouse upon one end of the boulevard, which would materially affect its use as a highway, and would permanently injure the plaintiffs. He has since abandoned this intention, but still insists upon his right to build on one end of the boulevard while admitting his legal inability to do so on the other, because of restrictions in the line of his title. The answer avers the right, and asserts an actual exercise of it.</p> <p>The referee recommended a decree in favor of the plaintiffs. On exceptions filed he reported in part as follows:</p> <p>As to the seventeenth exception: In support of this, a new objection was taken by the counsel for the defendant — one which they had not raised or pressed before the referee at any prior stage of the proceedings. They urged that as the right of way from the obstruction of which it was sought to restrain the defendant lies in Montgomery county, a court of equity in Philadelphia county has no jurisdiction of the controversy. The case of Morris v. Remington, 1 Parsons, 887, was cited. That was a case where a bill was filed in Philadelphia county, praying for an injunction against a defendant for a nuisance affecting the plaintiff’s land in Montgomery county, by the diversion of a watercourse, which consisted of a natural stream running through the farms of both plaintiff and defendant, both of whom resided in Montgomery county. Although the use of the water was regulated by contract entered into between prior owners of the lands affected, and process had been served upon the defendant in Philadelphia, yet Judge King refused to entertain jurisdiction because the locus in quo was not within the jurisdiction of his court. His opinion contains a complete discussion of the subject, to which nothing can be added, and the conclusion reached is based upon the principle that the court must be capable of administering in a given case the relief sought. No court will direct that to be done which it cannot enforce, because it is in danger of finding its dignity compromised. A writ of assistance could not be sent into another county to prostrate an alleged nuisance, if on entertaining the bill it should be adjudged to be such. Nor could an issue be awarded into the county where the nuisance exists, in order to inform the court of the damages the plaintiff has sustained by its perpetration and continuance.</p> <p>This reasoning covers the present controversy. The referee conceives himself to be bound by the authority of this decision. The right of way dedicated by the defendant to public use, and lying between the lands of the plaintiffs, is shown by the bill and the proofs, to be in Chester county. The plaintiffs reside in that county, while the defendant resides in Montgomery county. It is true that the objection was not taken in the answer. The parties proceeded to hearing upon proofs. But under the authority of Wiser’s Appeal, 9 W. N. C. 508, and Maguire’s Appeal, 102 Pa. 120, the objection to jurisdiction, if there be a palpable and absolute want of equitable jurisdiction, may be taken after filing an answer and proceeding to proof. This view is not affected by Adams’s Appeal, 113 Pa. 449, There the court, while not permitting an objection to jurisdiction to prevail in a doubtful case, after the parties had voluntarily proceeded to a hearing upon the merits, conceded it to be true that manifest want of jurisdiction might be taken advantage of at any stage of the cause. The referee, while relying upon that case in his report, did so in its application to another phase of the matter. As the objection now taken presents the controversy in another light, and is radical, it must be sustained.</p> <p>The plaintiffs’ bill should be dismissed, but not at their cost. In view of the circumstances, the referee deems it. equitable that each party should bear his own costs, and divide those of the proceedings before the referee.</p> <p>On exceptions to the supplemental report the court below decided that it had jurisdiction, but dismissed the bill on the ground that the plaintiff had not offered sufficient proof to overcome the denials of the answer.</p>

<p>Will — Construction of— Use of word ‘ ‘ or Spinster or unmarried nieces.</p> <p>Testator gave his residuary estate to his “ spinster or unmanied nieces, ” six of whom had never been married, two of whom had been married and were widows, and all of whom were actually unmarried at the time of his death. Held, that the word “ or ” was used conjunctively, and both nieces and widows were entitled to share in the residuary estate.</p>

<p>Appeal, No. 602, Jan. T., 1896, by-defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1893, No. 382, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Pennypacker, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points and answers thereto among others were as follows:</p> <p>4. If the plaintiff stepped upon the track and was immediately struck by a moving car that came from the direction in which he says he looked, it is conclusive evidence that he did not effectually look; he is therefore guilty of contributory negligence and cannot recover in this case. Answer: I decline that point.</p> <p>5. As the plaintiff testified in this case, that the last time that he looked eastward for the approaching car was when he was on the south side of the east bound track, a distance of some twelve feet from the west bound track upon which he was struck, he was guilty of contributory negligence as a matter of law, and therefore cannot recover in this case. Answer: I decline that point. [2]</p> <p>6. Under all the evidence in this case the verdict must be for the defendant. Answer: I decline that point. [1]</p> <p>Verdict and judgment for plaintiff for $10,000. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.-</p>

Appeal, No. 121, Jan. T., 1897, by-defendant, from decree of C. P. Luzerne Co., Jan. T., 1897, No. 2, on bill in equity. Bill in equity for an injunction to restrain the opening of a street in the borough of Dorranceton. From the record it appeared that the ordinance for the opening of the street had been adopted and enacted in accordance with the provisions of the general borough law of April 3,1851, and not of the act of May 22,1895. ¡Error assigned was decree of the court.

Appeal, No. 133, Jan. T., 1897, by defendants, from decree of C. P. Luzerne Co., Oct. T., 1896, No. 11, on bill in equity. Bill in equity to restrain the defendants from acting as school directors. Error assigned was above order of the court.

Appeal, No. 63, Oct. T., 1897, by defendant, from judgment of O. & T. Lawrence Co., on verdict of guilty of murder. Indictment for murder. Before WALLACE, P. J. At the trial defendant objected to the administration of the oath by Joseph Cuneo to James Carinne and other witnesses called for and on behalf of the commonwealth, for the following reasons: 1. That said Cuneo is not an officer of said court authorized by law to administer oaths to witnesses in said cause. 2.

<p>Appeal, No. 496, Jan. T., 1896, by plaintiffs, from decree of C. P. Blair Co., No. 257, Docket “ A ” in equity.</p> <p>Bill in equity for an injunction, and for the appointment of a receiver.</p> <p>The facts appear by the opinion- of Barker, P. J., of the 47th judicial district, specially presiding, which was as follows:</p> <p>The plaintiffs in this suit own a majority of the shares of stock of the Bellwood Water Company, amounting to some $21,000, and on the 23d of May, 1896, they filed a bill of complaint in their own behalf and on behalf of any such other stockholders as might see fit to join in the same. In said bill they allege that the consideration for the stock held by them in said company was the conveyance to said company of a tract of land, partly in Blair and partly in Cambria county, known as the M. Dull tract, containing four hundred. and thirty-three acres, with certain water rights and privileges, and that on said tract are located the dams and reservoirs of the Bellwood Water Company from which water is supplied by means of water main pipes and connections to the Northwestern Railroad Company and a large number of individual consumers. The bill further recites that judgments have been obtained in the courts of Blair county for upwards of $12,000 in favor of the defendants named in the bill against said corporation, and the property, real, personal and mixed, of the same, including the said tract of land alleged to be held in perpetuity, advertised to be sold at sheriff’s sale on writs of special fieri facias issued from said judgments in the manner prescribed by the act of April 7,1870, and the court was asked to restrain said sales by injunction on the ground that real estate held in fee by a corporation could not be sold in the manner provided by the act of 1870. The bill also alleged that fifty bonds of 1500 each had been issued, by said company, secured by a mortgage on all its property, and that these bonds had been given to A. A. Stevens, the treasurer of the company, for the purposes of negotiation and payment of its corporate indebtedness, that they believe there exists a fund arising from the bonds already negotiated, together with the probable proceeds of bonds not yet negotiated, sufficient to pay and extinguish the entire corporate indebtedness, that no account has been furnished by the treasurer of the proceeds of said bonds, and that the corporation being unable to pay and discharge its indebtedness, irreparable injury will be done to complainants by the sale of the property of the corporation without affording it an opportunity to have an account stated of the proceeds of the sale of bonds and a proper marshaling of its assets. For these reasons the court was asked to appoint a receiver for the said corporation.</p> <p>On the presentation of the bill to us, due notice of the time having been given to counsel for the defendant, who were present when the application was made, a preliminary injunction was awarded, the execution of the writs stayed, and a rule granted to show cause why a receiver should not be appointed. Subsequently defendant’s counsel moved to dissolve the injunction, assigning therefor several reasons which we need not now consider because of the disposition made of the injunction on other grounds. We might say, however, that we do not consider any of the reasons assigned in the motion of themselves sufficient grounds for dissolving the preliminary injunction, but it is unnecessary to devote any time to the discussion of the reasons for arriving at such a conclusion. On the hearing of the motion to dissolve the preliminary injunction, no testimony was taken but it was then agreed, although no formal agreement appears on record, that the injunction should be disposed of at the next meeting as upon a final hearing, as well as the application for appointment of a receiver. The defendant then filed an answer responsive to the bill, and at the final hearing considerable testimony was taken, at least on part of the plaintiffs.</p> <p>Under the statement of facts contained in the plaintiffs’ bill and the accompanying affidavits, it was clearly our duty to stay the writs, but at the subsequent hearing it was developed that the plaintiffs’ counsel, in his hasty preparation of the bill, in order that it might be presented in time to prevent a sale, did not observe that the deed for the M. Dull tract did not convey the land in fee, but only conveyed certain rights to the streams' of water on said tract, a fact that was not disputed on the hearing and was apparent to us from an inspection of the deed; and it was also shown by the testimony that no dam or reservoir had been erected on the said tract by the Bellwood Water Company. It was developed, however, that the Bellwood Water Company had a title in fee to about one acre of land conveyed to it by John Coady, and that on this was its “intake” or small dam from which the water entered into its pipes, and this land being included in the general levy made by the sheriff and the description of the property advertised to be sold, it was contended by plaintiff’s counsel that there was still authority for restraining a sale under the special fi. fa. authorized by the act of 1870, and requiring the’ sale,_ at least as to this land, to be made under the act of 1836. Without entering into a lengthy discussion as to the effect upon the act of 1836 by the act of 1870 and the proper proceedings to be' resorted to in order to sell the property of a‘ corporation, it is sufficient to say that the precise question before us was decided by the Supreme Court in the case of Greensburg Fuel Company v. Irwin Natural Gas Company, 162 Pa. 78, adversely to the contention of the plaintiffs. The decision in that case is so entirely in harmony with the case of Guest v. Water Company, 142 Pa. 610, and the numerous other cases in which the act of 1870 has been before the Supreme Court and the lower courts, that-it may be regarded as settled law that it is proper practice under the act of 1870 to sell on the special fi. fa. provided for by that act land which is a component part of the corporate plant and necessary to the enjoyment of corporate franchises, and, which, therefore, could not be sold on execution under the act of 1836. The land purchased from Coady is certainly dedicated to corporate purposes and essentially incident and appurtenant to the exercise of the corporate rights, business and franchises of the Bellwood Water Company, and therefore is subject to sale in the manner resorted to bjr the plaintiffs in the executions stayed by us.</p> <p>• The plaintiffs were also unfortunate in being unable to substantiate the allegations in their bill upon which they based their prayer to have a receiver appointed. A. A. Stevens, the treasurer of the company, and the only witness called in regard to this matter by either side, testified that the plant of the Bell-wood Water Company had cost upwards of $26,000, and there had been advanced by himself and others, including the claim of R. D. Wood & Co., upwards of $26,000 for which bonds were held as collateral, that $12,000 of the bonds were in the hands of the defendant in this suit as collateral for the payment of their judgments, placed there by the written order of John E. Bell, president of the company and one of the present plaintiffs; $1,000 of the bonds were delivered in part payment for pipe laying to the parties who laid the pipe, and the balance held by himself, by Stevens & Owens, and the First National Bank, of Tyrone, as collateral for money advanced to pay for the expenses of the construction of the plant, and that there are still outstanding some debts unsecured, amounting to from $1,000 to $1,500, some of which are in dispute. Mr. Stevens also testified that he had been unable, after repeated and diligent efforts to do. so, both at home and abroad, to dispose of the mortgage bonds of the company, but that the erection of a plant by Bellwood borough and the business depression had interfered, and there was no attempt or offer to show that even a possibility exists of negotiating them now or in the future and thus receiving sufficient money to pay off the indebtedness of the company, and even if this could be done, we scarcely see how the situation would be bettered much with no probability of the receipt of sufficient revenue to even pay the interest on the bonds as it accrues. The testimony taken by the plaintiffs also discloses the fact that, although the water company has been in operation for over two years at least, its revenues have not yet exceeded over $1,150 a year, $1,000 of which is received from one customer, the P. & N. W. Railroad Co., and the testimony in support of the witnesses that the revenue from other sources was about $150 a year is so vague and uncertain, that it seems to us that about the only reliable source of revenue is the railroad company. It will thus be seen that the revenue has as yet been insufficient to pay the interest on the bonded indebtedness, and no attempt was made to show that there was any reasonable expectation that the revenue would likely be increased in the future. We assume that this state of facts exists, mainly for the reason that about the same time that this company was organized, a system of water works was introduced by the borough of Beliwood, which fact seems to have precluded this company from supplying water to persons living within the borough limits; whether this is the result of the legal rights of the borough water company or from the force of circumstances is an immaterial matter in this case.</p> <p>The claim of the defendant upon which judgment was obtained and execution issued is not disputed, — it was for water pipe furnished the company, — is overdue, and there is no claim of any agreement to forbear collection of the same.</p> <p>Although it was intimated at the time of the hearing, and on argument, that the plaintiffs did not thinlc it was necessary to dispose of or hypothecate the full amount of the mortgage bonds to secure the debts incurred in the installation of the plant of the water company, in other words, that if properly administered there would remain from the proceeds of the bonds a considerable amount to apply to the legitimate indebtedness of the company — there was no effort to introduce any testimony to this effect, although the plaintiffs received a plain intimation from the court in reply to the suggestion above referred to, that notwithstanding Mr. Stevens had been called by them, testimony would be received showing what the indebtedness of the company was and what disposition had been made of the bonds, even though that testimony tended to contradict him. In this connection we might suggest that questions of .account between the stockholders and officers and questions of a similar character cannot be adjudicated in this case, it being between the stockholders and creditors, although of course such matters might be of sufficient moment in certain cases to warrant the appointment of a receiver, to protect the property until they were adjudicated. This suggestion also applies to the suggestions made in the argument as to the fund in the hands of the N. & P. W. B.. R.. Co. not taken by the defendant on the order they hold, as well as the holding by defendant of bonds as collateral while pursuing the debtor by execution. All these matters will have to be settled in other proceedings.</p> <p>Under such a situation of affairs as that shown by the testimony in this case and recited above, we scarcely see. where the equities of the case require or even permit us to appoint a receiver to take charge of the affairs of the company. There are no scattered assets to be marshalled, no allegation of mismanagement in the conduct of the present business of the company. The purposes of the application and the only effect of granting it would be to hinder and delay the collection of a valid claim, and nowhere do we find any authority warranting the appointing of a receiver where the' effect would bo such as that mentioned. See opinion of Judge Weand in Griffen v. Burden, 10 Montgomery Co. Rep. 184, in which it is also held that on a stockholder’s bill a receiver will not be appointed where the same purposes can be accomplished by a sheriff’s sale. No sufficient foundation has been laid for any belief that the property could be disposed of to any better advantage at the hands of a receiver than by a sheriff’s sale, and even if that were established, it would not furnish a sufficient reason for appointing a receiver, as was expressly ruled in the case of Pairpoint Manufacturing Co. v. Watch Co., 161 Pa. 17.</p> <p>We can see that by the conveyance to this corporation of valuable franchises by the plaintiffs they are liable to lose them without receiving sufficient compensation therefor, but that furnishes us with no siifficient reason to grant relief not otherwise warranted in the premises, and more especially when we cannot perceive how the granting of a receiver, which could only delay a sale of the property a short time under the circumstances of the case, can in any way reinstate them in the position they were when they made this conveyance, or furnish them with adequate compensation for the franchises conveyed by them at a time when they were sui juris and capable of judging of • the probable results of their act. We have examined with care the authorities cited and all text books within our reach on the subject of the appointment of receivers, and fail to find a single case that would warrant us in the appointment of a receiver under the facts of this case, and this makes it unnecessary for us to refer to Gravenstine’s Appeal, 49 Pa. 310, which seems to be authority that it is error to appoint a receiver when the corporation is not made a party to the bill. We suggested this weak spot in the case to the counsel when the bill was presented, and again intimated it at the time of the hearing, but the case lacks ' merit in the direction already referred to, and it is unnecessary for us to consider whether this authority is applicable or not. The authorities all unite in agreeing that the appointment of a receiver is a delicate duty, and one that should not be performed without hesitation and a careful examination of all the facts of the particular case, and we need only refer to a few of the Pennsylvania authorities on this subject to show that the Supreme Court has always been very willing to reverse when the power has been exercised where the circumstances did not absolutely require it, and where it did not clearly appear that irreparable injury would result from the refusal to do so. We refer to Gravenstine’s Appeal, supra; Pairpoint Manufacturing Co. v. Optical Co. supra; Lowry v. Optical Co., 161 Pa. 123, and the cases there cited.</p> <p>The injunction previously issued having been awarded on a state of facts not sustained by the proofs must be dissolved at the costs of the plaintiffs, and the facts and the law applicable thereto not warranting us in appointing a receiver, the bill must be-dismissed.</p> <p>Now, July 21, 1896, this case came to be heard on bill and answer, testimony having been taken and the case argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as,follows:</p> <p>That the preliminary injunction is hereby dissolved and the bill dismissed at the costs of complainants, and the sheriff of Blair county is permitted to proceed on proper writ or writs of fi. fa. to sell the personal, mixed and real estate pertaining to the necessary enjoyment and exercise of the franchises of the Bellwood Water Company, together with the franchises and rights of the Bellwood Water Company.</p> <p>Error assigned was decree of the court.</p>

Appeal, No. 343, Jan. Term, 1896, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1895, No. 351, on verdict for plaintiff. Trespass for personal injuries. Before Savxdge, P. J., of' the 8th judicial district specially presiding.

<p>Practice, C. P. — Conclusiveness of auditor's report — Trusts and trustees.</p> <p>When an auditor’s report on the account of a trustee has been reviewed on exceptions and approved by the court below, the Supreme Court will not reverse the decree confirming the report, unless clear mistake, misconduct or manifest error be shown.</p>

<p>Boroughs — Municipal contracts — Advertisement—Acts of April 3, 1851 and May 23, 1893.</p> <p>Under the Acts of April 3, 1851, P. L. 322, and May 23, 1893, P. L. 113, the plans and specifications of a borough contract, if not essential parts oí the ordinance authorizing the contract, need not be advertised.</p> <p>The publication of the minute details of construction contained in specifications would impose an unreasonable burden on boroughs and would serve no useful purpose; the publication of plans and models would often be utterly impracticable. Such plans and specifications should be carefully preserved in the proper office and open to the inspection of all persons concerned. Per Fell, J.</p> <p>Municipalities — Boroughs— Ordinances — Resolutions.</p> <p>A permanent regulation in a municipal government may be adopted by what is designated as a resolution, and if so intended, and passed with the same formalities, will have the same force and effect as an ordinance.</p> <p>A resolution of council is but another name for an ordinance, and if it be a legislative act it is immaterial whether it be called a resolution or an ordinance.</p> <p>While legislation by borough councils may be by ordinance or resolution, the requirements which are essential to the validity of an ordinance must be observed in the passage, approval, recording and' publication of a resolution where the action of councils is legislative.</p> <p>A direction that enactments, regulations, ordinances and other general laws shall be recorded and advertised does not include resolutions which are not in their nature legislative, and which do not take the place of ordinances.</p> <p>Ordinances o£ a borough authorized the construction of electric light works. They fixed in detail the terms of the contracts to be entered into, the kind and character of the work to be done, the time of completion and the penalty for nonfulfilment. The ordinances were duly recorded and advertised. Bids were subsequently accepted and the contracts were awarded by resolution of councils, but the resolution was not recorded m the ordinance book, and not advertised. Held, that the resolution was merely a ministerial act and not a legislative one, and its advertisement was not necessary.</p> <p>Equity — Equity practice — Amendment—Boroughs—Municipal indebtedness.</p> <p>A bill in equity was filed to have certain contracts of a borough for the erection of an electric light plant declared void. The bill raised the question of the good faith of council in awarding the contracts and the regularity and legality of the ordinances upon which the contracts were based, but it did not question the right of the borough to issue bonds. An answer was filed denying every allegation of fraud and irregularity. A replication was filed to the answer, testimony was taken, arguments made, and the case was awaiting decision, when the court, more than a year after the bill was filed, allowed it to be amended, so as to raise the question as to the legality of the increase of the borough debt. No opportunity was given to the borough or the bondholders to be heard on the allegations in the amendment. At the time the amendment was allowed no affidavit was filed that the application was not made for the purpose of vexation or delay, or that the matter of the amendment could not with reasonable diligence have been sooner introduced into the bill as required by Equity Rule, 10. Held, (1) that the amendment shifted the ground of action by introducing an entirely new question which was not an integral part of the subject-matter of the bill; (2) that it was error to allow the amendment.</p>

<p>Contract — Fraud—Forgery—Ratification.</p> <p>Where a transaction is contrary to good faith and the fraud affects individual interests only, ratification is allowed, but where the fraud is of such a character as to involve a crime the adjustment of which is forbidden by public policy, the ratification of the act from which it springs is not permitted.</p> <p>Mortgage — Forgery— Ratification.</p> <p>On a scire facias sur mortgage, it is not error to charge that if the mortgage upon which the action is founded is a forgery, there can be no ratification of it, because forgery does not admit of ratification.</p> <p>On a scire facias sur mortgage, it appeared that the defendant applied to a building association for a loan to pay off a ground rent. An accredited agent of the association prepared a mortgage and forged defendant’s name to it, and did not pay off the ground rent for which the loan was made. There was no evidence that the defendant had employed the agent of the association as his agent for the purpose of executing the mortgage, and he denied knowledge of its execution; but after the execution of the mortgage, on information that the loan had been secured and the ground rent paid, he made payments to the building and loan association on account of his shares and on account of interest. Held, that a .verdict and judgment for the defendant should be sustained.</p>

Appeal, No. 523, Jan. T., 1896, by Hannah Harvey Daly, from decree of O. C. Crawford Co., Sept. T., 1894, No. 36, refusing an issue devisavit vel non. Appeal from register of wills admitting will to probate. Error assigned was decree of the court.

Appeal, No. 197, Oct. T., 1896, by plaintiff, from judgment of O. P. No. 1, Allegheny Co., March T., 1896, No. 224, for defendant on case stated. Case stated to determine the compensation of the assistant district attorney of Allegheny county.

<p>Insurance — Definition of accident.</p> <p>An accident is an unusual or unexpected result attending the operation or performance of a usual or necessary act or event.</p> <p>The exception in a policy of insurance of one from a number of like causes of damage to or destruction of property is a recognition by the insurer of its liability for loss arising from other causes of the same nature.</p> <p>An insurance company is presumed to know that which is obvious in regard to the property insured, including the natural perils to which it is exposed.</p> <p>In the absence of express stipulation and where no inquiry is made, a failui’e to state facts known to the insurer or his agent, or which he ought to know, is no concealment. The insurers are presumed to be skilled in their business, and to know those general facts which are open to the public, and may be known to all who are interested to inquire.</p> <p>An insurance company agreed to indemnify the insured against all loss arising from any accidental damage to or destruction of a stone mill and warehouse, etc., “ excepting only damage to or destruction by fire or lightning.” The property wasinjured “by reason of a sudden rise of the water ” in a river upon which the property was situated. In an action upon the policy the insurance company filed an affidavit of defense in which it averred that the injury did not arise from accidental damage to or destruction of the buildings, and that the insured did not state in his application for insurance that the property insured was on the bank of a river. Held, (1) that the destruction of the building by flood or freshet was accidental and within the terms of the policy; (2) that the insurance company must be presumed to have known the situation of the property and the natural perils to which it was exposed; (8) that the insured was guilty of no concealment or misrepresentation in not stating in his application that the property was on the bank of a river; (4) that the affidavit of defense was insufficient to prevent judgment.</p>

<p>Will — -Construction of — Vested and contingent estates.</p> <p>Testator by his will devised certain land to P. and after his death, same premises to P.’s “lawful child or children and to their heirs and assigns; .... but my further will is that if the said P. should die without leaving lawful issue to survive him, or leaving such issue who should not live to the age of twenty-one years nor their lawful issue, then and in that case all the before mentioned frame house etc.....I give and devise to the lawful children of AY.” P. had three children who in his lifetime attained the age of twenty-one years. One of them, a son, died in the lifetime of his father, leaving to survive him a daughter who attained full age and died before P. Held, (1) that the interest of P.’s deceased son was a vested interest which could be divested, if at all, only by the occurrence of'the contingency on which the devise over depended; (2) that the interest of P.’s deceased son was a descendible and devisable interest, and vested under the son’s will in his daughter; (3) that the devisee under the will of the daughter was entitled to one third of the fund raised by the sale of the real estate under the Price act.</p>

Appeals, Nos. 14 and 18, Jan. T., 1897, by Peter Monroe, executor et al., from decree of O. C. Phila. Co., July T., 1895, No. 240, overruling exceptions to adjudication. Exceptions to adjudication. Before Ashman, J. The facts appear by the opinion of the Supreme Court. Errors assigned were in overruling exceptions to adjudication.

<p>Appeal, No. 47, Jan. T., 1897, by plaintiff, from judgment o£ C. P. No. 3, Phila. Co., Jan. T., 1896, No. 47, of nonsuit.</p> <p>Trespass for personal injuries.</p> <p>At the trial it appeared that plaintiff was injured at about half past six o’clock on the morning of December 11, 1894, at Grays Ferry Station. He lived at Chester, and was employed at a coal car works at 39th street and Grays Ferry road, on the east side of the Schuylkill river in Philadelphia. For about two months prior to the accident plaintiff had been in the habit of leaving Chester at 5:50 each morning, and arriving at Grays Ferry Station at about 6:26. The circumstances of the accident are stated in 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 among others was refusal to take off nonsuit.</p>

<p>Appeal, No. 54, Jan. T. 1897, by-defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1890, No. 54, on verdict for plaintiffs.</p> <p>Appeal from jury of view.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points and answers thereto among others were as follows:</p> <p>. 1. The jury must find for defendant. Answer: Refused. [3]</p> <p>3. If the jury find that Kensington avenue bridge was not •begun or the plans defined at the time when the report was filed from which this appeal is made, they must find for defendant. Answer: Refused. [4]</p> <p>4. If the jury find that the plaintiffs were a party in 1892 to the proceeding for the assessment of damages, C. P. No. 2, December term, 1891, No. 932, because of the construction of Kensington avenue bridge, they must find for defendant. Answer: Refused. [5]</p> <p>Yerdict and judgment for plaintiffs for $6,500. Defendant appealed.</p> <p>Errors assigned among others were (3-5) above instructions, quoting them.</p>

<p>Appeal, No. 480, Jan. T., 1896, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1894, No. 252, on verdict for defendants.</p> <p>Trespass for personal injuries. Before Willson, J.</p> <p>At the trial it appeared that plaintiff claimed to recover $10,000 for personal injuries sustained by her on February 21, 1894, while in the employ of the defendants as a laundress in their steam laundry at the Windsor Hotel, Atlantic City, New Jersey. The. facts of the ease appear by the opinion of the Supreme Court.</p> <p>The court gave binding instrubtions in favor of the defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was above instruction.</p>

<p>Appeal, No. 493, Jan. T., 1898, by defendants, from judgment of C. P. Clearfield Co., May T., 1895, No. 119, on verdict for plaintiff.</p> <p>Assumpsit on a bond of suretyship.</p> <p>The facts appear by the charge of the court by Gordon, J., which was as follows :</p> <p>This is a suit by the Phoenix Brewing Company against W. E. Rumbarger, J. G. Solomon and George B. McClelland, for beer sold and delivered to them to the extent of the penalty, to wit: $1,000 and interest, of a certain bond entered into by said W. E. Rumbarger, principal, with George B. McClelland and J. G. Solomon as sureties, in favor of the Phoenix Brewing Company, dated the 2d day of February, 1893, in the said penal sum of $1,000, conditioned as follows : “ The condition of this obligation is such, that if the above bounden W. E. Rumbarger, . , their heirs, executors, administrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the above named, the Phoenix Brewing Company, its successors or assigns, the just and full sum of accounts, moneys, claims, or demands which may at any time be due and owing to it by W. E. Rumbarger for beer or liquors sold and delivered by it to said Rumbarger, in pursuance of a contract or course of dealing established and entered into with him, when, and as often as the same may fall due, or when thereunto legally required, and shall properly care for and return all cooperage and barrels belonging to said obligee, without fraud or further delay, then this obligation to be void and of none effect, otherwise to be and remain in full force and virtue.”</p> <p>The evidence shows that in pursuance of the arrangement entered into between the Phoenix Brewing Company and W. E. Rumbarger, one of the defendants, and of the bond, the condition of which has just been read, they sold and delivered to him from February 9, 1893, until April 24,1894, beer amounting to about $17,000; that payments were made on account, and the plaintiff claims that the balance now due and owing on said account is $1,176.76 according to its books, which have been offered in evidence. But, in this case, it only seeks to recover the sum of $1,000, with interest from the date of bringing suit, being the amount of the penalty of said bond with interest, and its counsel has stated in the presence of the court and the jury that so far as its claim of $176.76, the amount of its claim over and above $1,000, that it foregoes any right to collect the same in this account, so that it leaves the question simply as to its right to collect $1,000, with interest from the bringing of the suit, or nothing. The evidence further shows that, on June 28, 1894, William E. Rumbarger, by letter, which has been read in your hearing and offered in evidence, sent to the plaintiff his two judgment notes, one thereof for $729.72, due September 28, 1894, and the other thereof for $1,000, due December 28,1894; that the first note falling due was paid some time after maturity, but the second one, to wit, of $1,000, due December, 28, default was made in the payment thereof; that the same, on presentation at the bank at which it was payable, was not paid, but was permitted by the maker to go to protest, and subsequently, to wit, on January 21, 1895, judgment was confessed by virtue of the warrant of attorney in that note and entered in the court of common pleas of Clearfield county, to No. 865, February term, 1895, for the principal, as follows, namely, $1,000 the debt, $2.00 protest fee, $50.00 attorney’s commission, total $1,052, interest December 28, 1894. The evidence further show's that no part of this note of $1,000 has been paid, and the plaintiff claims the right to recover the amount thereof from the defendants, namely, from W. E. Rumbarger, the principal debtor, and his two sureties, by virtue of the bond which they entered into.</p> <p>There are certain legal questions involved in this matter: first, it is claimed that the plaintiff cannot recover under the pleadings in the case. There are certain other legal propositions ; second, that a certain act of assembly requiring certain inscriptions or stamping to be placed upon kegs or barrels of beer or other malt liquor has not been complied with, and on that account the plaintiff cannot recover; third, that on account of the extension of time given by the plaintiff in this case to W. E. Rumbarger, the sureties are released; fourth,- because of the entering of the judgment note, obtaining judgment upon the note given. These are legal questions which are for the court exclusively, and it is competent for us to reserve them, and we have concluded to do so.</p> <p>[Tbe plaintiff in this case has presented certain points to us, under all of which it asks us to take the case from the jury and as a matter of law direct a verdict for the plaintiff for the sum of $1,000, with interest from February 20,1895. It is admitted that the interest on this amount is $60.00, and the plaintiff, under these points, asks us to direct a verdict in its favor of $1,060, and we so instruct you to render a verdict. We will not pass upon these various points seriatim, but under all the points as presented we will direct a verdict for $1,060, reserving the legal questions.] [1]</p> <p>[The defendants have presented the followed points:</p> <p>1. Under the pleadings and evidence in the case there can be no recovery and the verdict must be for the defendants, the action being on the account and not on the bond.</p> <p>2. It appearing from the evidence that the claim or basis of account is for malt liquors sold by a brewing company, and there being no evidence that said plaintiff complied with the second section of act of April 14, 1863, requiring the stamping and certificate therein pointed out, the plaintiff cannot recover.</p> <p>3. The evidence disclosing the fact that the plaintiff accepted from W. E. Rumbarger, the principal, at the close of his account and when it was due and demandable, a judgment note extending the time of- payment for a definite period, without the consent or authority of the sureties, said sureties are therefore discharged from liability, and the verdict must be for the defendants.</p> <p>4. The evidence disclosing the fact that the plaintiff accepted a judgment note from W. E. Rumbarger for the same account in this suit, on which judgment was entered in this court to No. 365, February term, 1895, which is now in force, said judgment is a merger of the account sued upon in this case, and there can be no recoveiy here again on that account nor in this action.</p> <p>5. There can be but one judgment between the same parties for the same cause of action, and the basis of this action being the account for which the note was taken and on which judgment was entered as aforesaid, the verdict must be generally for the defendants.</p> <p>We refuse all of these points and reserve the legal questions raised thereby and submit the case to the jury on its merits for their verdict, subject to our opinion on these reserved points, and we will put our reservation in writing upon the defendants’ points and file them with the papers in this case. We therefore instruct the jury -to render a verdict in favor of the plaintiffs and against the defendants in the sum of $1,060.] [2] ■</p> <p>Verdict for plaintiff for $1,060, upon which the court subsequently entered judgment.</p> <p>Frrors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 125, Jan. T., 1897, by plaintiffs, from decree of C. P. Erie Co., Sept. T. 1895, No. 3, dismissing bill in equity.</p> <p>Bill in equity to enforce a contract in writing.</p> <p>The facts appear by the opinion of the court below by Gunnison, P. J., which was as follows:</p> <p>The material facts which are undisputed as I gather them from the pleadings and the testimony are :</p> <p>1. The German Savings Institution of Erie was incorporated by Act of February 1, 1867, P. L. 180, and was authorized to do a general banking business.</p> <p>2. The said corporation entered upon the transaction of the business for which it was incorporated, and continued the business until August 17, 1885, when, being insolvent, it made a deed of assignment of all its property to John C. Brady, one of the plaintiffs, in trust for the benefit of its creditors.</p> <p>8. On the 29th day of August, 1885, the agreement which is the foundation of the claim of the plaintiffs in this action, a copy of which is attached to the plaintiffs’ bill, was executed, as follows, viz:</p> <p>“ We, the undersigned, for value received, hereby severally agree and bind ourselves to pay to John C. Brady, assignee of the German Savings Institution, of Erie, for the purpose of paying the debt of said institution, a sum of money proportionate to the interests we severally have in said institution, whenever the solvent members of said association shall sign this stipulation; our respective interests therein, or shares of stock set opposite our respective names ; a part of this stipulation being that John Elliott shall pay to said institution the amount paid to him for his interest therein, with interest on same.</p> <p>“In witness whereof we have this 29th day of August, A. D. 1885, hereunto set our hand and seals.</p> <p>“John Gensheimee, [seal] 100 shares.</p> <p>“ John Elliott, [seal] 368 shares.</p> <p>“ J. W. Ryan, [seal] 10 shares.</p> <p>“ Wm. Selingee, [seal] 5 shares.</p> <p>“ Lloyd G. Reed, [seal] all of mine.</p> <p>“Chas. M. Reed, [seal].</p> <p>“John Metznee, [seal].”</p> <p>The agreement also purports to have been signed and sealed by Catherine Stephen, George Burton and George P. Griffith; but no proof of the execution of it by Catherine Stephen was offered, and the fact of its being sealed by George Burton and George P. Griffith is disputed.</p> <p>5. The assignee converted most of the assets of the bank into money, collected money from a number of those who signed the agreement and made these distributions among the creditors. A number of the signers of the agreement subsequently to the second distribution purchased claims against the insolvent corporation to a large amount, and the assignee in making the third distribution withheld the dividends payable upon the claims so purchased, until an adjustment should be made of the amounts claimed by him upon the assignors thereof upon the agreement.</p> <p>6. The dividends were as follows: No. 1, 33J per cent on amount of deposits; No. 2, 33J- per cent on amount of deposits; No. 3, 20 per cent on amount of deposits. No. 1 was paid sixty, days after the failure of the bank; No. 2, two months later, and No. 3, eight months after No. 2.</p> <p>7. The liabilities of the bank were deposits, with interest to August 17, 1885 . . . $190,302.47</p> <p>Notes and mortgages, and interest paid on other banks........ 25,648.42</p> <p>Note paid to the Park National Bank of New York 10,086.10</p> <p>Taxes and repairs, etc., paid by assignee . . 4,369.01</p> <p>Total.......$230,405.90</p> <p>8. The assignee received from all other sources than from the stockholders upon the agreement of August 29, 1885 . . . $126,090.98</p> <p>The assets in his hands unconverted amount to (as appraised).......1,150.00</p> <p>Total . ......$127,240.98</p> <p>9. The assignee has received from stockholders,</p> <p>upon the agreement of August 29, 1885, in $70,418.75</p> <p>all,viz: From Lloyd G. Reed. . $40,700.00</p> <p>From John Elliott . . . 22,011.75</p> <p>From John Gensheimer . . 5,940.00</p> <p>From H. Y. Claus .... 642.00</p> <p>From John W. Ryan . . . 750.00</p> <p>From Wm. Selinger . . . 375.00</p> <p>He claims in this action to recover</p> <p>From Lloyd G. Reed.....$16,157.90</p> <p>John Elliott....... 3,693.05</p> <p>John Gensheimer . . . . 1,045.00</p> <p>Estate of H. Y. Claus..... 754.09</p> <p>George Burton . . . . . . . 3,492.25</p> <p>George P. Griffith...... 3,492.25</p> <p>and interest on said sums:</p> <p>There were several disputed facts alleged by the plaintiffs, only one of which, it being in my opinion vitally important and essential to the right of the plaintiffs to recover that they should sustain their allegations as to it, it is necessary for me to consider, viz: as to whether all the solvent stockholders signed the agreement of August 29, 1885. The evidence shows that Catherine Stephen was a stockholder and was solvent. There is no evidence as to the execution of the agreement by her.</p> <p>[It is contended by the plaintiffs that William Yarnum was not a stockholder; that the stock issued to him was in reality the stock of Lloyd G. Reed. But whatever may have been the relations between them, as to all the world excepting Mr. Reed I can come to no other conclusion than that Mr. Yarnum was a stockholder. And the testimony shows him to have been solvent.] [1]</p> <p>CONCLUSION OK LAW.</p> <p>The foundation of the plaintiffs’ claim is the agreement of August 29,1885. If that is not a valid agreement, the bill must be dismissed. By the express terms of the agreement it was to become operative “ whenever the solvent members of said association ” should sign it. Until all the solvent members signed it, it was not binding upon any. Catherine Stephen was a solvent member. Her name is attached to the agreement, but there has been no proof offered as to her signature, and her execution of the agreement has not been proved. William Yarnum’s name does not appear upon the agreement. Pie was a solvent member of the association. • ■</p> <p>[It is contended by the learned counsel for the plaintiffs that even if it be found that the agreement was not signed by all the solvent members of the association, the fact that several of those who signed have paid upon the agreement has been shown, and that those payments operate as an estoppel against those who have paid, estopping them from denying their liability to pay the balance of their proportion of the amount claimed by the plaintiffs.. I cannot sustain the contention. There is no proof that anyone was led to do anytliing to his injury upon, the faith of any such payment, whereby it would be inequitable to permit the truth to be shown, and thus an -essential element of estoppel is wanting. The payments must be taken to have been voluntary. They do not estop those who made them from asserting that the solvent members did not all sign the agreement. Some evidence was offered that it was the understanding of all who signed that they constituted all the solvent members. It did not fill the standard of evidence required to change the plain terms of a writing, and cannot be considered.] [2]</p> <p>[The finding of the one fact that the solvent members of the association did not all sign the agreement is decisive of the case, and for that reason it is unnecessary to answer the various points, and find the several requests made by counsel in .detail.</p> <p>And now, December 2, 1896, it is ordered and adjudged and decreed that the bill of plaintiffs be dismissed at their costs.] [8]</p> <p>Errors assigned were (1-3) portions of the opinion as above, quoting them.</p>

<p>Appeal, No. 401, Jan. T., 1896, by defendants, from decree of C. P. Crawford Co., Sept. T., 1894, No. 1, on bill in equity.</p> <p>Motion for the imposition of the penalty provided by the act of May 25, 1874. The motion was supported by the affidavit of Pearson Church which was as follows:</p> <p>That he is attorney for John H. Martin, appellee in this case, and has been such from the institution of this suit until the present time; that he is thoroughly familiar with all the facts and circumstances of said case from its inception, and through its trial in the court below, and since the appeal was taken to this court; that the final decree of the court below was made on April 20, 1896, that the appellants waited the full term of twenty days, to wit: until May 9,1896, after the sitting of this court for Crawford county, before the taking of their appeal from said decree; that no preparation has been made during the year for the final hearing of this case in this court; that at the present date no record has been prepared for removal from the court below; that no paper-book has been prepared or served upon this deponent or upon his client; that an appeal was taken by these same appellants in November or December, 1894, from an interlocutory decree of the court below, and never pursued to final hearing; that from the facts and circumstances of this case and of this appeal, deponent believes and avers that the said appeal was taken herein for the purpose of delay, and for no other purpose; that the realization of the fruits of the decree by the appellee has been delayed one whole year by the conduct of the appellants in taking this appeal, and for no other purpose than for delay; the said decree being for the payment of appellants to this appellee of the sum of <!>2,199.75.</p> <p>E. Y. Breck, one of the appellants, filed the following affidavit: That as a member of the bar of Crawford county where this case was tried he was firmly of the conviction and belief that unless the decree of the court of common pleas of said county was modified the defendants would be compelled to pay more money than was justly due and owing to the plaintiff, and that upon his judgment and that of H. L. Richmond, Esq., counsel in the trial of the case, who died after the trial of the case in the court below, this appeal was taken. That a subsequent and more thorough investigation and examination' of the facts and law in the case after the appeal had been taken led affiant to the conclusion and belief that the expense that would be incurred in the printing of the record which was very voluminous, and in procuring competent counsel to argue the case in Philadelphia, would be equal or greater than any benefit to be gained from the prosecution of the appeal even if the decree were modified, and he thereupon so notified his codefendant some forty days before the return day of the writ issued in this case, but expressed his willingness to prosecute the appeal, to which notice affiant had no response; that affiant’s codefendant is at present somewhere in the West, his address being unknown to affiant, and is not expected to return until May 8, the return day of this rule, and affiant is not informed as to whether he has had notice of this rule and had opportunity to prepare any answer.</p>

<p>[Marked to be reported.]</p> <p>Negligence — Street railways — Contributory negligence — Defeat vn street.</p> <p>In an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff, a woman, pushing a baby carriage with a little child in it, started from the north side of a street to cross two tracks of the railway. At the time of the accident a trench had been opened which extended westward from the western crossing stones, a little to the south of the railway tracks. The dirt from the trench was thrown up between it and the southern track. There were three lines of crossing stones, some of which, across the trench, were torn up. The stones which had been taken up were lying upon those still in place. About three or four feet to the east of the crossing was a manhole in a direct line with the trench. The space between the flagstones and the manhole was clear, and was sufficient for the baby carriage to pass through. When the plaintiff reached the second track she heard a car about a half square away; she got off the track, pushed the carriage off also, changed its course, and, without looking where she was moving, fell into the manhole while the car was still moving, although it stopped at a distance of ten or fifteen feet away from the crossing. Held, that the plaintiff was guilty of contributory negligence, and could not recover.</p> <p>It is the duty of every pedestrian upon a public highway to use reasonable care for his own safety and to avoid an open or apparent danger.</p>

<p>Appeal, No. 463, Jan. T., 1896, by defendant, from judgment of C. P. No. 1, Pbila. Co., June T., 1894, No. 307, on verdict for plaintiff.</p> <p>Trespass for personal injuries to a cbild of tender age.</p> <p>The facts appear by tbe opinion of the Supreme Court.</p> <p>Defendant’s point and answer thereto among others were as follows: .</p> <p>4. Under all the evidence the verdict should be for the defendant. Answer: Refused.</p> <p>Error assigned was above instruction, quoting it.</p>

<p>Will — Power to sell — Lien—Conversion.</p> <p>A purchaser under an absolute testamentary direction to sell land is bound to see to the payment of scheduled debts because he has notice, but he is not bound to see to the payment of general debts, because other means for the satisfaction of that class of claims are provided by statute. In contemplation of law conversion in such ease takes place immediately on testator’s death, and claims which are not then liens on his land attach to the proceeds as personal estate and become payable as in ordinary course of administration. The same rule, however, does not apply where the power of sale is discretionary only.</p> <p>Testatrix by her will directed her executor to pay all of her just debts. She then created a spendthrift trust to continue during the life of her father, and directed the trustee and his heirs after her father’s death to divide and pay over the corpus of the trust estate to the remainderman. There was no direction to sell any lands for the purpose of paying debts. The trustee was authorized and empowered to divide the land into lots, to impi-ove and to sell them, and he was directed “ to invest the proceeds of every such sale or exchange in such real or personal securities or security as ” he “ may deem proper and right.” After testatrix’s death an inventory of her personal estate, far in excess of her debts, was filed, of which no account appears to have been filed or distribution made. Held, that there was no absolute direction to sell, and that an unscheduled debt became a lien from the date of testatrix’s death.</p>

<p>■ Appeals — Equity—Accounts.</p> <p>.. On an appeal in an equity case of account where the liability to account is in issue, all questions relating to such liability will be considered as having been finally settled by the appellate court, and such questions cannot be considered on a subsequent appeal in the same case on a decree following an accounting.</p>

<p>Mortgage — Lease—Corporation—Accounting.</p> <p>A corporation mortgaged and also leased its property to another corporation which was to go into possession and to apply the gross receipts to the payment of taxes, certain liens and the mortgage debt of the lessor to the lessee. The lessee sublet the property to another company. The lessee did not keep a detailed and itemized account, such as the lessor was entitled to, but the sublessee did so in regard to nearly all essential matters. The lessor complained from time to time of the inadequacy of the accounts, but made no effort to get the details when they were current and accessible, and afterwards, when an opportunity was given to examine the lessee’s books, failed to take advantage of it. The lessor filed a bill in equity for an account and to prevent the lessee from proceeding upon its mortgage. Held, that as it was possible to state an account, the lessee was not entitled to an injunction to restrain proceedings upon the mortgage.</p> <p>Where a business is conducted by one who is not the exclusive owner, but is accountable in part as a quasi trustee to another, the business must be conducted with fair regard to the interests of both parties, and equity will scrutinize closely where there is any reason to suspect fraud, or even any opportunity for unfair advantage; but where the interests of both parties are the same, there is a presumption that the best was done by the party conducting the business which the circumstances permitted.</p> <p>A railroad company mortgaged and leased its property to another corporation under an agreement that the lessee “ may charge for transportation on the said railroad and its branches any such l’ates as may be lawful and as may seem best to it for its own interest,” and shall set aside twenty jDer cent of the gross receipts for payment of the taxes, liens, etc., and the reduction of the mortgaged debt. The lessee sublet the road to a lumber company, and instead of reserving rent at a percentage of actual gross earnings, it substituted a fixed rate per ton of freight carried. It appeared that the leased road was a short road used principally for the development of lumber territory, that the territory was nearly exhausted, and that the lumber which was left was mainly controlled by the lumber company which threatened to build another road. Held, (1) that there was a strong presumption that the lessee was using its best judgment not only for its own interest, but for the interest of the lessor; (2) that if the lessor was injured at all, it was amply compensated by the action of the master and the court below in increasing the rate from thirty cents to eighty-five cents per ton as a proper charge for what the lessee should have received from the lumber company.</p>

<p>Appeal, No. 605, Jan. T., 1896, from decree.of O. C. Wyoming Co., auditor’s report book No. 3, page 431, overruling exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report distributing the fund upon final account of the executor of decedent’s estate. Before Dunham, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Mrrors assigned were in overruling exceptions to auditor’s report.</p>

<p>Appeal, No. 594, Jan. T., 1896, by plaintiff, from judgment of C. P. Wyoming Co., Jan. T., 1896, No. 109, on verdict for terre tenants.</p> <p>Scire facias sur mortgage, with notice to terre-tenants. Before Dunham, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[We say to you, as a matter of law, that when Benton Coleman deeded the land in question to J. C. Reynolds and Levi Lindley, either by deed of assignment or by ordinary deed, he parted with all right and title to the land, and that the only way he could obtain any title or interest in the same again was by a conveyance from the owners of the same ; and the undisputed evidence being that he had never received such reconveyance, upon November 11, 1891, he had no interest in the same except what he held by virtue of his mortgage against J. C. Reynolds and Levi Lindley, and his second conveyance to J. C. Reynolds conveyed no title whatever. We further say to you that a party may change the securities he holds for any debt or claim he has against another as often and as many times as he chooses, and still retain his rights as against the party he holds the claim against, and so long as the rights of others do not intervene no one is injured or has a right to complain. But when a party has taken a security for a debt or claim and entered it into a judgment or lien, he cannot change that security where the rights of others have become attached, and thus hold his claim good as against such intervening rights, whether those rights are acquired by judgment, mortgage or deed. We further say to you, gentlemen, that a purchaser at sheriff’s sale, or otherwise, where the person he purchases from is in possession of the land, is not required to look further than the public records, and is affected by no reports that he may hear, unless the same come from a party interested in the land or claim, and then it must be notice of the actual claim held.</p> <p>Applying these principles to this case it appears beyond controversy .that upon November 11, 1891, this plaintiff chose to change the security he held against J. C. Reynolds and Levi Lindley by satisfying or agreeing to satisfy bis purchase money mortgage against them and to take a new mortgage against J. C. Reynolds in payment of the old mortgage, or in place thereof; that on the 28th of the same month he did satisfy his old mortgage of record and place the new one upon record; that while he gave a new deed to J. C. Reynolds for the land already owned by J. C. Reynolds, yet such a deed was a mere nullity and of no effect; that at the time the original purchase money' mortgage was satisfied there was a judgment in favor of the Scranton Savings Bank and Trust Company standing against J. C. Reynolds, which, by this change of securities, became a first lien upon the land, so that the sale of the land upon this judgment divested the lien of the mortgage and the purchaser took the same freed from the mortgage.] [1]</p> <p>Plaintiff’s points and answers thereto were as follows:</p> <p>1. It being undisputed that the defendants, J. C. Reynolds and Levi Lindley, purchased the land pledged in this case from the plaintiff B. Coleman, and gave him a mortgage to secure the purchase money, which was duly executed on March 9, 1891, and duly recorded on March 24, 1891, and that subsequently, to wit: on October 3, 1891, the said defendant, J. C. Reynolds, purchased the interest of the said Levi Lindley; J. C. Reynolds thereupon being the sole .purchaser, it was entirely competent for him to make the arrangement with the plaintiff Coleman to make out a new deed to take the place of the one to him and Levi Lindley, and to give a new mortgage to take the place of the one given by him and Lindley to Coleman, and to thus supersede the former conveyance and mortgage. Answer : This we do not affirm as written; but say to you that J. C. Reynolds could only convey the interest he owned in the land by writing duly signed by him, but that as between Reynolds and Coleman, Coleman could satisfy his former mortgage and take a new one in its place with same effect as the former one, providing, it did not interfere with any acquired rights of any other person. [2]</p> <p>2. That by such substitution, no change was made in the character of the lien; on the contrary, the new mortgage was just as much a purchase-money mortgage as the former, and continued the lien as such. Answer: This point, gentlemen, we do not affirm, as we have already instructed you. [3]</p> <p>3. That the record showing that there was such a deed from Coleman to Reynolds dated November 11, 1891, and recorded November 28, 1891, and a mortgage'from Reynolds to Coleman of the same land as that in the said conveyance, and bearing precisely the same date, and recorded the same day, this was record notice that the said mortgage was a purchase money mortgage. Answer: This would be true were it not for the fact that the record itself shows that Benton Coleman had parted with his title and taken a mortgage therefor prior to this time. Therefore we deny the point as presented. [4]</p> <p>4. The record thus showing regular notice of the character of this mortgage, and in addition, that on the same day that it was thus put on record, a former mortgage from said Reynolds and Levi Lindley, pledging the same land, was satisfied, this was sufficient to put a purchaser upon inquiry, and was notice of what would have been learned upon such inquiry. Ansiuer: This we do not affirm. [5]</p> <p>5. In addition to the said record evidence, the uncontradicted evidence of both plaintiff and defendant, J. C. Reynolds, that the indebtedness secured by the mortgage dated November 11, 1891, was simply and only that for the purchase of the land, definitely shows that it was a purchase-money mortgage, and the record showing that it was recorded within sixty days after its date and delivery, its lien took effect from its execution, and it was therefore prior in lien to the judgment of The Scranton Savings Bank and Trust Company and remained a fixed lien notwithstanding the sheriff’s sale thereon. Answer: This we do not affirm. [6]</p> <p>6. The plaintiff having duly recorded his said mortgage as aforesaid, had discharged his full duty in the matter of giving notice thereof, and was not required by the law to attend the sheriff’s sale, nor give any further notice thereat. Answer: That we do not affirm. [7]</p> <p>7. To permit a party to obtain a substitution of conveyance and mortgage, as was obtained by the defendant in this case, at his own request and for his convenience, and then to obtain any advantage, by placing on record, two years and upwards after their execution, the deeds thus superseded, would not only be in violation of our acts of assembly, but such a practice as no court administering right and justice by the due course of the law, as our constitution requires, can permit. Answer : This point we decline to affirm as written. [8]</p> <p>8. That under all the evidence in the case, the verdict should be for the plaintiff for the amount of $1,760.82, with'interest from March 1, 1894. Answer: This point we affirm as against J. C. Reynolds. Your verdict in this case should be for the plaintiff and against J. C. Reynolds for the sum of $2,047.84, that being the sum of $1,760.82, with interest thereon from that date, and in favor of A. M. Wrigley and Lewis Armstrong, or that A. M. Wrigley and Lewis Armstrong were not terretenants. [9]</p> <p>Verdict for plaintiff against J. C. Reynolds for $2,047.84, and in favor of terre-tenants. Judgment was entered upon the verdict.</p> <p>Errors assigned were (1-9) above instructions, quoting them</p>

<p>Banks and banking — Ghecks—Signature of depositor.</p> <p>The signature of the depositor is the essential feature of a check, and a bank is not bound to pay any attention to the hand writing of the other parts, unless something is shown to excite suspicion.</p> <p>Principal and agent — Notice—Fraud.</p> <p>An exception to the general rule that notice to the agent is notice to the principal arises in ease of such conduct by the agent as raises a clear presumption that he would not communicate the fact in controversy, as where the agent acts for himself in his own interest and adversely to that of the principal.</p> <p>Where an agent representing two principals concocts a scheme to defraud one of them, it will be presumed that he did not disclose to the principal. he intended to cheat, the means by which he intended to effect his purpose.</p> <p>An independent fraud committed by an agent on his own account is beyond the scope of his employment, and bears analogy to a tort wilfully committed by a servant for his own purposes and not as a means of performing the business entrusted to him by his master.</p> <p>Banks and banking — Principal and agent — Fraud—Notice—Corporation.</p> <p>The treasurer of a manufacturing corporation, who was also vice president of a bank in general charge of the bank’s affairs, made two promissory notes, signing them with the name of the corporation followed by his own name, as treasurer. The two notes were discounted by the bank and the corporation was given credit for the proceeds. On the same day the treasurer drew a check “ to the order of Dft. N. Y.,” signing it with the name of the corporation and his own name as treasurer. The amount of the check was charged to the corporation upon the books of the bank. On the same day in payment of the check the treasurer of the corporation drew two drafts upon New York to his own order, signing them with his own name as “ vice president” of the bank. Pie received payment of the drafts in currency, and used the proceeds for his own private purposes. Subsequently the bank sued the corporation on the promissory notes. Held, that as the notes wei'e made by the treasurer of the corporation as such, and as the check was drawn for the proceeds by the treasurer as such, and as both acts were within the treasurer’s authority, the corporation was liable for the loss, and the bank was entitled to recover upon the notes.</p>

<p>Appeal, No. 66, Jan. T., 1897, by Henry W. Palmer et al., from decree of O. C. Lackawanna Co., No. 692, Series A., appraising estate for collateral tax.</p> <p>Appeal from appraisement for collateral inheritance tax.</p> <p>From the record it appeared that John Handley died on February 15, 1895, leaving a will by which he made various bequests to individuals and charities. He gave $250,000, to the city of Winchester, Virginia, for the purpose of founding a public library to be called “ The Handley Library.” His will continued as follows:</p> <p>“ Item. I direct and order that all of my personal property shall be sold at private sale, except that portion in which a life estate is created by this will, from time-to time by my executors for the best price that can be obtained for the same, hereby giving and granting unto my said executors full power and authority to make, execute and deliver good title for such personal property.</p> <p>“Item. All my real estate in the city of Scranton, Pennsylvania, except my coal lands in the state of Pennsylvania, West Virginia, and in other states, and my timber and iron ore land situate in the state of Virginia and other states, which I may own at the time of my death, I order and direct my executors to retain at rent for the period of twenty years.</p> <p>“ Item. I order and direct that all incomes and profits growing out of my said real estate, no matter where situate, after paying charges, life estate, repairs, taxes, and insurance shall be laid out and expended in paying in part or in whole the several bequests provided for and mentioned in this my will.</p> <p>“ Item. I order and direct and I hereby empower my executors or their successors to convey and sell my real estate at the end of twenty years, at public or private sale, for the highest price that may be obtained for the same, and to make and execute deed or deeds to the purchaser or purchasers thereof, said deeds to have the same force and effect as if made by order of the orphans’ court after sale had according to law.</p> <p>“ Item. I hereby order and direct my executors from time to time to rent at the best rents or royalty all coal and other minerais in and upon my lands in the state of Pennsylvania, Virginia, West Virginia and other states, upon the same terms and conditions like minerals are rented by other parties.</p> <p>“ Item. I order and direct that the income arising from the royalty or rents of my said mineral lands shall be applied as follows by my executor, namely, first — To pay the running expenses and public taxes. Second — The balance of said rents or royalty to be paid over every six months to the directors or trustees of St. Patrick’s Orphan Asylum, the House of the Good Shepherd'and to the city of Winchester, Virginia, in the following proportions, namely, thirty-three and one third per cent of such rents or royalty thereof to each.</p> <p>“ Item. I order and direct the directors or trustees and the officers of the city of Winchester to invest said income so received in the bonds of the states of Pennsylvania or Virginia, or in the bonds of the United States, the interest whereof shall be expended and laid out in paying the expenses, from time to time, of the several institutions provided for in this my will.</p> <p>“ Item. I hereby order and direct my executors and their successors to rent or lease the surface of my farm and mineral lands, and to sell the timber and bark thereon, from time to time, for the best price that can be obtained for said timber and bark. And also to lease the mineral on said lands for the period of twenty years, and thereafter to convey and sell said lands as they are hereinbefore ordered and directed to sell other real estate in this my last will; giving and granting unto my said executors the same power as hereinbefore given to convey and make deeds to the purchasers thereof.</p> <p>“ Item. I direct and order my executors to pay over all money arising from the sale of land situate in Virginia, West Virginia, Pennsylvania and other states, and the timber and bark thereon, and all minerals in and under said land to the directors and trustees aforesaid, and to the city of Winchester, Virginia, aforesaid, in the same proportions as named herein, namely, thirty-three and one third per cent of the net income. Said income to be invested by said several corporations as hereinbefore directed, and to be laid out and expended by them and each of said corporations and the city of Winchester as herein-before directed.</p> <p>“ Item. I order and direct my executors or their successors to collect and apply all of my life insurance or so much, thereof as may be required towards the payment of any debts that may be of record against my real estate at the time of my death.</p> <p>“Item. I order and direct my executors to continue paying the expenses of each boy and girl that I may have at school or college at the time of my death, until each of said persons shall graduate and, when such scholars shall have finished and graduated his or her education, to pay to each boy or girl the sum of five hundred dollars out of the income of my estate.</p> <p>“ Item. I order and direct that if at the end of any one year the income of the money devoted to the support of the library at Winchester, Virginia; St. Patrick’s Orphan Asylum or the House of the Good Shepherd shall be more than sufficient to pay the annual expenses, then and in that event I direct that the balance of said income shall be forthwith invested in interest bearing bonds of the United States or the state of Virginia and be added to the capital.</p> <p>“ Item. I order and direct that under no circumstances shall any portion of the capital of either or any of the institutions to which I have in this my will made bequests, sell, dispose, or pledge the same as security to meet the current expenses of said institutions.</p> <p>“ Item. I do hereby declare that all of the several bequests made in this my will are made upon the express condition that none of the moneys, principal, interest* rents or royalties arising from such bequests, shall be applied to any other purpose whatsoever than those specially mentioned and herein appointed.</p> <p>“ Item. All trust money mentioned in this my will shall be invested by my executors or the directors or trustees of the corporations named ánd the city of Winchester, Virginia, in United States registered bonds unless otherwise named and directed in this my last will.</p> <p>“ Item. I hereby order and direct my executors, unless where otherwise specially ordered, to pay the said persons, corporations and city of Winchester, Virginia, the said several sums of money bequeathed, devised and given by me, in manner following, namely: The total income obtained from my estate, real, personal or mixed, shall be accumulated for the period of two years from the date of my death and, after paying of all just debts, taxes, insurance and other charges for the preceding year, the balance remaining shall be divided by my executors pro rata among the several persons, corporations and the city of Winchester, Virginia, named in my will, in proportion to the amount bequeathed and devised to each, and so continue to pay, from year to year, on the first days of January in each year, until each and every bequest is paid in full by my executors and their successors.</p> <p>“ Item. I hereby order and direct that no act or deed of my executors appointed under this will or their successors shall be valid or binding upon my estate unless a majority thereof shall consent to the same in writing when the amount involved shall exceed the sum of one hundred dollars.</p> <p>“ Item. Should any one or more of my executors depart this life without first naming his successor in writing, and have the same acknowledged before some officer having authority to take acknowledgments, then and in that event I direct the president judge of this judicial district to appoint such successor or successors as in his sound judgment he may deem proper.</p> <p>“Item. All the rest and residue of my estate I give, devise and bequeath to the city of Winchester, Virginia, to be accumulated by said city for the period of twenty years, the income arising from said residue estate to be expended and laid out in said city by the erection of school houses for the education of the poor.”</p> <p>The appraiser appraised the lands situated in Virginia and West Virginia for the collateral tax. He also assessed the cash value of the bequests made to different persons in the nature of scholarships. The executors appealed from the appraisement, and the court, in an opinion by Abchbald, P. J., with some modifications as to amounts, confirmed the appraisement.</p> <p>Errors assigned were (4) the decree fixing the appraisement; (9) in not dismissing the appraisement made by the commonwealth.</p>

<p>Appeal, No. 26, Jan. T., 1897, by Harriet E. Fetherman, Executrix of Peter H. Fetherman, from decree of O. C. Monroe County, discharging rule for citation.</p> <p>Rule to show cause why a fund held by the executor of Charles Fetherman, should not be paid .to the executrix of Peter H. Fetherman.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>JSrror assigned was in discharging rule to show cause.</p>

<p>Partnership — Assignment for creditors — Possession of property.</p> <p>An assignee for the benefit of creditoi's of one of the individual partners of a firm has no right to the possession of any part of the firm property.</p> <p>Plaintiff sold machinery and appliances to a partnership, reserving the title to the property in himself until the purchase money should be fully paid. After the purchasers had taken possession, one of the partners gave her individual judgment note to a bank which immediately entered judgment upon the note. Subsequently she made an assignment for the benefit of creditors. Plaintiff brought an action of replevin against the assignee for the property sold. The assignee defended under the title of the bank which claimed to be a lien creditor of the individual assignor partner, on the ground that the property in question had as fixtures become part of the realty, the legal title to which was in such assignor. Held, (1) that even if the bank were in a position to assert its lien against the title of plaintiff, nevertheless the lien gave no right of possession, and the verdict should have been directed for the plaintiff, with a special finding as to whether the property was or was not subject to the lien of the bank’s judgment; (2) that on the undisputed facts a verdict should have been directed for the plaintiff ; (3) that if the bank desired to assert its claim, it should have done so in its own name, and by its own appropriate proceeding.</p> <p>Practice, Supreme Gourt — Assignments of error — Evidence.</p> <p>An assignment of error to the admission of testimony which fails to quote the testimony violates Rule XXTV., and should be entirely disregarded.</p>

Appeal, No. 38, Jan. T., 1897, by plaintiff, from judgment of C. P. Lycoming Co., March T., 1896, No. 505, refusing to take off nonsuit.. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

Appeal, No. 28, Jan. T., 1897, by plaintiff, from decree of C. P. No. 4, Phila. Co., March T., 1896, No. 943, dismissing bill in equity. Bill in equity for an injunction to restrain the distribution of a dividend.

<p>Appeal, No. 6, Jan. T., 1897, by Alexander B. Coxe et al., from decree of O. C. Luzerne Co., No. 198, of 1895, fixing amount of collateral inheritance tax.</p> <p>Petition of register of wills praying for a citation directed to the executors of Eckley B. Coxe, deceased, to appear and show cause why the collateral inheritance tax should not be paid.</p> <p>The facts appear by the opinion of Darte, P. J., which was as follows:</p> <p>Citation to Alexander B. Coxe and Henry B. Coxe, executors of said estate, to show cause why they should not pay collateral inheritance fax upon the personal property of said estate; based upon the following petition of Stanley W. Davenport, register of wills of Luzerne county; setting forth:</p> <p>1. That he is register of wills of Luzerne county, Pennsylvania, and that under the law he is the agent for the common-. wealth for the collection of collateral inheritance tax in the county of Luzerne.</p> <p>2. That Eckley B. Coxe, a citizen and resident of Drifton, Luzerne county, Pennsylvania, died testate on the 13th day of May, 1895.</p> <p>3. That the last will- and testament of the said Eckley B. Coxe was admitted to probate before the petitioner, as register of wills of Luzerne county, Pennsylvania, on the 21st day of May, 1895. Said will is duly recorded in the office of the petitioner, in will book P, page 2, and is here referred to and made a part of this petition as if set out herein in full.</p> <p>4. That on the 23d day of May, 1895, letters testamentary were duly issued to Alexander B. Coxe and Henry B. Coxe, executors named in said will. The said executors on the same day qualified and entered upon the discharge of the trust as executors of the said last will and testament, and have hitherto from said date and are now acting as executors of said estate.</p> <p>5. That on the 18th day of June, 1895, they filed an inventory and appraisement of the goods and chattels, rights and credits, which were of the said Eckley B. Coxe, deceased, in the office of the register of wills of Luzerne county, Pennsylvania.</p> <p>6. That from said appraisement it appears that the said goods and chattels, which were of the said Eckley B. Coxe, deceased, were of the value of one million three hundred and eleven thousand, seven hundred and thirty-seven dollars and sixty-one cents (11,311,737.61) ; that in addition to this .value, as shown by said appraisement there appears to be a large amount of personal property whose value is returned as “Not ascertainable.” The value of this so far as the petitioner has yet been able to ascertain, is one million dollars and upwards.</p> <p>7. That upon all of this said personal property there is due and owing to tbe commonwealth of Pennsylvania, under the said will and the law, a collateral inheritance tax of five dollars on every hundred dollars of the clear value of the same, which it is the duty of the petitioner, as register of wills, of Luzerne county, to collect, together with interest on the same as provided by law.</p> <p>8. That a return of the personal estate of said decedent was made to him, tbe said register of wills of Luzerne county, Pennsylvania,- within one year from the death of the said decedent, but to this day security has not been entered into for tbe payment of the collateral inheritance tax, due the commonwealth on the value of said personal estate, and, therefore, under the law, the said collateral inheritance tax became due and payable one year from the death of the decedent, to wit: on May 13, 1896, together with interest on the same from said date, at the rate of twelve per centum per annum.</p> <p>9. That no part of said tax or interest has been paid to the commonwealth, except tax on certain specific legacies under a nuncupative will, and is therefore now due and payable.</p> <p>10. That your petitioner, as register of wills of Luzerne county, Pennsylvania, has discovered that the said collateral inheritance tax has not been paid over according to law to the commonwealth, from the said estate, and is now due and payable, wherefore he prays, that a citation may be directed to issue out of this honorable court, directed to the said Alexander B. Coxe and Henry B. Coxe, executors of the last will and testament of Ecldey B. Coxe, deceased, citing them to appear before the court on Monday, December 7, 1896, at 10 o’clock A. M., to show cause why the said tax should not be paid.</p> <p>Said citation and order were duly served on said Alexander B. Coxe, on the 21st day of November, 1896, and on December 7, 1896, the following answer was filed by both of said executors.</p> <p>Alexander B. Coxe and Henry B. Coxe, executors, make answer to the above citation and say that the facts set forth in the first, second, third, fourth and fifth sections of the petition for citation are admitted to be true. Respondents deny the correctness of the facts stated in the sixth and seventh paragraphs thereof. As to the facts stated in the eighth paragraph in the said petition, respondents answer and say, that under the terms of the will of Ecldey B. Coxe, deceased, the collateral inheritance tax, due the commonwealth of Pennsylvania, did not become due and payable one year from the date of the death of the decedent, on May 13,1896, with interest thereon as stated— as they are advised by counsel. Respondents believe the facts set forth in the ninth paragraph of said petition to be correct.</p> <p>Respondents aver that by the provisions of the will of Eckley B. Coxe, deceased, his entire estate was devised to his executors, in trust, to pay over the entire net income thereof during the whole period of the natural life of his widow, Sophia Gf. Coxe, and after her death, in trust for all the nephews and nieces of the said testator per capita; that for greater certainty they here insert the second clause of the said will, which is as follows:</p> <p>“Second. I give, devise and bequeath all the rest and residue of my estate, real, personal and mixed, of whatsoever kind and description and wheresoever situated, unto my executors, hereinafter named, and the survivors and survivor of them and the heirs and executors of such survivor, in trust, nevertheless for the following uses and purposes :</p> <p>1. “ To pay over to my beloved wife, Sophia Gf. Coxe, the entire net income thereof, during the whole term of her natural life.</p> <p>2. “ From and immediately after her death to hold the same in trust for all my said nephews and nieces, children of my brothers, Brinton Coxe, deceased, Alexander B. Coxe, Henry B. Coxe and Charles B. Coxe, deceased, who shall have been living at the time of my death and the lawful issue, living at the time of my death, of any nephew or niece who .shall then be dead leaving such issue, their heirs, executors and administrators, the said nephews and nieces to take per capita and not per stirpes, and the issue of any deceased nephew or niece to take among them such shares only as their parent would have taken, if he or she had been living at the time of my death, and to take such shares per stirpes and not per capita; and I hereby declare that the nephews and nieces, and issue of deceased nephews and nieces, entitled to take, shall be those only who are living at my death, and that the estate or interest hereby devised and bequeathed to such nephews and nieces and the lawful issue of deceased nephews and nieces, shall vest in them at my death, subject, however, as to the possession and enjoyment of the same to the estate herein devised and bequeathed to my beloved wife, Sophia G. Coxe, and to the provisions and restrictions hereinafter contained and set out.</p> <p>3. “ And subject to this general expression of my will in the premises, I do further will, direct and declare the following uses and trusts of and concerning the estate, real, personal and mixed, which at the death of my wife shall be held in trust, as aforesaid.</p> <p>“ (A). The share of any nephew who shall then have attained the age of twenty-five years, shall vest in possession in him, his heirs, executors and administrators absolutely.</p> <p>“(B). The share of any nephew who shall not then have attained the said age of twenty five years shall continue to be held in trust until the said nephew shall have attained the said age and shall then vest in possession in him, his heirs, executors and administrators absolutely, and in the meantime the net revenue or income, accruing upon such shares, shall be paid to Mm, or, in case of a minor, to his guardian.</p> <p>“ (C). The share of any male descendant of a nephew or niece entitled as aforesaid, shall, at the death of my wife, vest in possession m him, his heirs, executors, and administrators absolutely, if he shall then have attained the age of twenty-five years, but, if he shall not have attained the age, the net income of the said share shall be paid to Mm until he shall have attained the said age, or in case of a minor, to a guardian during his mmority.</p> <p>“ (D). The share of my meces and of the female descendants of a nephew or niece, entitled as aforesaid, shall be held by my said executors, in trust, to pay to the same the net income or revenue thereof, for, and during their respective lives, and from and immediately after the death of each of the said tenants for life, to pay over the share so held in trust for her, to her children, share and share alike, or in the event of her death without leaving children her surviving, then to such person or persons as by her last will and testament she shall appoint, and, in default of such 'appointment, to her right heirs, under the intestate laws of the State of Pennsylvania.”</p> <p>That the said Sophia G. Coxe, widow of Eckley B. Coxe, deceased, is still living, and the respondents are advised that they cannot be compelled to pay the same out of the income of the said estate due the said widow, and that they would not be justified in law in paying the said collateral inheritance tax, when duly appraised and fixed out of the principal of said estate, for the reason that such payment would dimimsh the net income of the said estate, due the life-tenant, Sophia G. Coxe.</p> <p>That the respondents are advised by counsel that under the laws of the state of Pennsylvania regulating the payment of collateral inheritance tax and the provisions of the last will and testament of Eckley B. Coxe, deceased, they are not bound to pay the collateral inheritance tax even after the same has been duly ascertained according to law. That the same is not payable until after tbe death of the life-tenant, Sophia G. Coxe, widow of Eckley B. Coxe, deceased.</p> <p>Decedent died testate at Drifton, Luzerne county, Pennsylvania, May 13, 1895. Alexander B. Coxe and Henry B. Coxe are executors of'his will. He left a widow, Sophia G. Coxe, but no children nor their descendants. By his will, after giving his wife the personal property in and about his home, except his professional library, he gave to his executors, the successor of them and their heirs, all his estate in trust; (1) to pay over to his wife the entire net income thereof during the whole term of her natural life; (2) from and immediately after her death to “ hold the same in trust for all my nephews and nieces, children of my brothers, Brinton Coxe, dec’d, Alexander B. Coxe, Henry B. Coxe and Charles B. Coxe, deceased,” etc. Thus, after the death of the widow the entire estate is given collateral heirs. And as will be seen, by reference to the will, the remaindermen cannot be identified until after the death of the widow.</p> <p>June 18,1895, inventory-and appraisement of personal estate filed by said executors, amounting to $1,311,737.61. Also itemizing a large amount of property, of which the value is said to be “not ascertainable.”</p> <p>It appears that an appraiser has been appointed in said estate to fix the value thereof, for the purpose of assessing the collateral inheritance tax, but that he has made no return, except as to the value of certain legacies, given under a nuncupative will probated November 22,1895. Said legacies amounted to $28,000 appraised at $22,000, upon which the legatees took the benefit of the act of assembly, May 6, 1887, P. L. 79, and paid the tax May 26, 1896. After the expiration of the life estate the residuum,- less debts and expenses of settlement, is subject to the collateral inheritance tax. The question is, when is the tax on this personal estate assessable and payable?</p> <p>Section three, act of assembly, May 6, 1887, reads : “ In all cases where there has been or shall be a devise, descent or bequest to collateral relatives or strangers liable to the collateral inheritance tax, to take effect in possession or come into actual enjoyment after the expiration of one or more life estates, or a period of years, the tax on such estate shall not be payable, nor interest begin to run thereon, until the person or persons liable for the same shall come into actual possession of such estate, by the termination of the estate for life or years, and the tax shall be assessed upon the value of the estate at the time the right of possession accrues to the owner, as aforesaid.” But the privilege of postponing payment is given upon the following terms: “ And the owner of any personal estate shall make a full return of the same to the register of wills of the proper county, within one year from the death of the decedent, and within that time enter into security for the payment of the tax to the satisfaction of the register, and in case of failure so to do the tax shall he immediately payable and collectible'.”</p> <p>The usual inventory and appraisement has been filed, but no return has been made of the personal property, for the purpose of assessing the collateral inheritance tax, except as to aforesaid legacies, and no security has been' entered by the owners. As above stated it is impossible to identify the remaindermen.</p> <p>The act of 1887, after stating what estates are liable to the collateral inheritance tax says, “ And all owners of such estates, and all executors and administrators and their sureties, shall only be discharged from liability for the amount of such tax or duties, the settlement of which they may be charged with, by having paid the same over for the use aforesaid, as hereinafter directed.”</p> <p>[We sustain the citation and hold and find, that Alexander B. Coxe and Henry B. Coxe, executors and trustees of said estate, are the owners, for that purpose referred to in the said act of 1887, whose duty it is to make a full return of any personal estate liable to collateral inheritance tax to the register of wills, within one year, and enter security for the payment of the tax. And, that in default thereof, the said tax has become, and now is immediately due and payable upon all personal properly of said estate, after legal deductions for expenses, life estate, etc., with interest thereon, at the rate of twelve per centum per annum, from the 18th day of May, 1896.] [2] .</p> <p>Errors assigned were (1) in sustaining citation; (2) decree of the court, quoting it.</p>

<p>Appeal, No. 37, Jan. T., 1897, by Isaac J. Martin, from decree of O. C. Phila. Co., Jan. T., 1896, No. 382, sustaining exceptions to auditors report.</p> <p>Exceptions to the report of William H. Staake, Esq., auditor.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Hrror assigned was in sustaining exceptions to auditor’s report.</p>

<p>Practice, C. P. — Plaintiff's statement — Copy of contract or other writing in settlement — Affidavit of defense.</p> <p>To entitle plaintiff -to judgment for want of an affidavit or a sufficient affidavit of defense all the essential ingredients of a complete cause of action must affirmatively appear in the statement and the exhibits which are made part thereof; the statement of his demand must be self sustaining ; that is to say, it must set forth, in clear and concise terms, a good cause of action, by which is meant, such averments of fact as, if not controverted, would entitle him to a verdict for the amount of his claim.</p> <p>The requirement of the procedure act of 1887 that the statement ‘ ‘ shall be accompanied by copies of all notes, contracts, book-entries, . . . upon which plaintiff’s claim is founded,” is not merely directory, but is absolutely imperative; and if the copy of the written or printed contract on which the action is founded, or any part thereof, does not accompany the statement, and its absence is not satisfactorily accounted for, the omission cannot be supplied by averments of the contents, or the substance of the missing paper.</p> <p>In an action founded upon a written contract plaintiff annexed to his statement of claim a blank form of order containing blank spaces evidently intended to be used in specifying the kind, quantity and value of the goods to be ordered. These blanks were unfilled. The only written words which the order contained were the signature of the person giving the order and the words “ quantity and specifications already sent in.” Held, that the statement was incomplete and insufficient, and the defendant was not bound to file an affidavit of defense to it.</p>

Appeal, No. 445, Jan. T., 1896, from judgment of Superior Court, Feb. T., 1897, No. 5, reversing the Court of Quarter Sessions of McKean County. Appeal from Superior Court. The case was reported in 2 Pa. Superior Ct. 20. Error assigned was in reversing the judgment of the court of quarter sessions of McKean county.

<p>Appeal, No. 335, Jan. T., 1896, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1894, No. 860, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Biddle, P. J.</p> <p>At the trial it appeared that on March 30,1894, Agnes Maher, a child six years old, was struck by a car of the defendants, at Thirteenth and Reed streets, in the city.of Philadelphia. She died on October 30,1894. The evidence for the plaintiff tended to show that there had been a block of cars on Thirteenth street; that two cars had passed at a high rate of speed; that the third car which was the one which struck the girl was run at a high rate of speed, without stopping at either side of Reed street, and without making any signal. • As the car passed Reed street a passenger signaled the car to stop, and the motorman looked at him and laughed, without obeying the signal. The child was struck at the time when the motorman’s attention was temporarily diverted to the passenger. The court charged in part as follows:</p> <p>In this case it is contended that this child was crossing a street and that, while so crossing, this car of the company came on it at an unusual rate of speed, did not hold up as was the custom to hold up, did not slow up even sufficiently to allow a passenger who was waiting to get on, but went on, without ringing a bell, and without notice, and ran down and injured this child in such a way that she subsequently died from the injury. Now the highways of the city do not exclusively belong to the traction company. They are the highways of the state, and all people have equal rights to their use, and everybody must use them in such a way as to have regard to the rights of their neighbors — using them prudently and carefully. Especially is it the duty of these cars to stop or to slow up at the places where it is naturally expected that people would be crossing the streets, and especially in places where they are in the habit of stopping, where it is known that they do slow or stop — where people have a right to expect that they will stop, and where they act in accordance with that idea. The allegation is that none of these precautions were observed which ought to have been observed and for which, if they were not observed, the defendant is liable. I leave out of the account one, two or three persons who have given testimony about the accident, but will call your attention to Mr. Armstrong who has been referred to as a gentleman of intelligence, and who gave an accurate account of what occurred. You had their testimony before you. I think counsel for the defendant was mistaken in saying that Mr. Armstrong did not see the accident. My recollection is distinct that he said he saw the accident, and he repeated, on cross-examination, that he had seen the accident. So I do not think it can be said under the evidence that nobody saw the accident which happened. I speak of him, without reference to the others whose testimony you will also recollect upon the same point. Now, in answer to this allegation the motorman and the conductor have been called before you, and they contend that they did all that the law required them to do; that they did sound the bell; that they were not going at an unusual rate of speed, and that this child suddenly sprang up-in such a way as to make it impossible for them to prevent the accident, although they had taken every precaution that the law required. Of course if you are satisfied of those facts — as it has been asked of me to say to you that this was an unavoidable accident, and that no care on their part could have prevented it — then they are not responsible. But if you should consider that this is a case where there is responsibility on the part of the company, then the next question for you to consider is what compensation you think the plaintiff is entitled to receive. [Unfortunately the young lady is not here to receive whatever sum you should think her due, but she is represented by her personal representatives. They of course can do nothing for her. The trouble in all these cases is that most of them tend very much to excite one’s feelings particularly in a case where an accident like this happens to a young and attractive girl. Our sympathies are so excited that when we have listened to eloquent counsel we can hardly come down to consider the matter as we are bound to consider it, as a matter of business ; and the law very wisely requires us to be slow about giving a verdict,-according to the evidence, not allowing our minds to be inflamed when we consider such a question, but only to consider it as a business question. Undoubtedly if this young lady were here in person she would be entitled to compensation for the injury she had received and for the pain and suffering she had undergone and for whatever disability she had sustained for her future life, which the accident caused, and for whatever diminution of earning power there was due to the accident. If you — in regard to this question about earning power, were to die, or any other citizens, the question would be how much ought to be paid to the family or to the circle dependent upon you for support. This young lady was six years of age. You will have to determine her earning power — how much it was. You will have to consider that question without prejudice or feeling one way or the other, and whatever sum you think would be a proper and reasonable compensation you have a right to give her.] [8]</p> <p>Defendant’s point and answer thereto were as follows :</p> <p>3. Under all of the evidence the verdict should be for the defendant. Answer. Refused.</p> <p>Verdict and judgment for plaintiff for $8,000. Defendant appealed.</p> <p>Errors assigned were (1) refusal of point as above; (2) refusal of point as above in connection with the fact that the cause of action was for the death of Agnes Maher and the suit was prosecuted by her administrator; (3) portion of charge, quoted above.</p>

Rule to show cause why damages provided for in the act of May 24, 1874, in causes sued out merely for the purposes of delay, should not be imposed on appellant in appeal, No. 327, Jan. T., 1896, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 563, on verdict for plaintiff. The rule was granted upon the petition of Clinton O. Mayer, one of the attorneys for the plaintiff.

<p>Appeal, No. 559, Jan. T., 1896, by S. Augusta Freeman et al., from decree of O. C. Phila. Co., Jan. T., 1881, No. 228, directing trustee to execute a lease.</p> <p>Petition under the Price act to lease real estate.</p> <p>From the record it'appeared that Henry G. Freeman, who was an attorney at law, left a will by which he devised nnto the Girard Life Insurance Annuity & Trust Company of Philadelphia, certain real estate at the southeast corner of Broad and Chestnut streets in the city of Philadelphia, to have and to hold the same upon certain trusts, viz :</p> <p>In trust to make sales of all or any part of his real estate, at its discretion, for the benefit of his estate, either at public or private sale, etc. Provided always, nevertheless, That no such sale of any part of his real estate shall be made without the consent in writing of the several cestuis que trustent having any interest therein, and who may at the time being, be of lawful age and accessible.</p> <p>And further with power to make leases, from time to time, of the real estate, and to collect, demand, and receive the rents, income, and proceeds thereof, etc.</p> <p>On January 12, 1895, James Black Freeman, one of the parties in interest, presented to the orphans’ court his petition praying that the trustee might have leave to advertise for proposals to lease the property at the southeast corner of Broad and Chestnut streets, upon an improvement lease, for a term of years not to exceed fifty years, the proposers to submit plans showing the character of the building proposed to be erected, the amount of rent to be paid and the shortest term for which the proposers would agree to lease the premises. The proposed lease was objected to by parties representing one sixth interest in the estate. The court entered a decree authorizing the trustees to execute the lease.</p> <p>Error assigned was in making the 'decree authorizing the lease.</p>

<p>Appeal, No. 355, Jan. T., 1896, by tbe Pennsylvania Company for Ins. on Lives, etc., from decree of O. C. Plrila. Co., Oct. T., 1894, No. 463, sustaining exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>From tbe record it appeared that William R. Lejee died on May 5, 1887, leaving a will, tbe material portions of wlricb are as follows:</p> <p>“ I give and bequeath to tbe Pennsylvania Company for Insurances on Lives and Granting Annuities tbe sum of Twenty Thousand Dollars ($20,000) in trust for my niece Eugenia J. Marshall during her life, the income to be paid to her or to her authorized attorney, and at her decease the principal to be divided among her children, share and share alike, the issue of a deceased child to represent the parent. Should my said niece die without children or their issue surviving her, in that case the principal so held in trust for her shall be divided among the children of my niece Williamanna Fullerton and their issue as I hereinafter provide for such children and issue. As my said niece Eugenia J. Marshall is unmarried, should she at any time desire to increase her income by an annuity, the said Trustee, shall, at her request, at any time, invest the whole or any part of this Twenty thousand Dollars in an annuity for her, nor do I restrict her as to this investment in case she should hereafter marry.”</p> <p>By the will in the first clause the testator provides:</p> <p>“ I leave to ... . Eugenia J. Marshall One thousand dollars, to be paid as soon after my decease as practicable as they may need it for immediate support.”</p> <p>By a codicil to his will, dated March 12, 1894, the testator provided:</p> <p>“ The purpose of the present codicil is to add to the legacy of my niece Eugenia J. Marshall the sum of ten thousand ($10,000) dollars and to give and bequeath to each of my nephe'ws, etc. ... In all thirty thousand dollars, free of tax. The said legacy to be provided for and paid with other individual bequests before any appropriation is made for those to public or benevolent institutions, which amount in all to twenty-six thousand dollars.”</p> <p>By a codicil dated May 6, 1891, he provided as follows:</p> <p>“ I herebjr revoke so much of my last will and testament as gives the residue of my estate to the Hospital of the Protestant Episcopal Church and the Children’s Hospital share and share alike, and in lieu thereof I direct that said residue be divided pro rata among the individual legatees to whom I have made bequests in my said last will and testament and the several codicils thereto, excepting, however, Leonida Seobie (née Simones). In her case I do not make any change.”</p> <p>The adjudication by Ferguson, J., was in part as follows: The testator gave to the United States Trust Company the sum of $20,000 in trust to pay the income to Mrs. Leonida Scobie during her life, and after her death the principal to be divided among her children. There were several other bequests of a similar character. The question raised was whether the beneficiaries were entitled to interest on the said sum since the death of the testator or from a year afterwards. This question was decided by the Supreme Court in Flickwir’s Est., 186 Pa. 374, where it was held that where the income only of a sum of money was given it was the same as an annuity, and the beneficiary was entitled to the income from the time of the death of the testator.</p> <p>The testator by his will gave the sum of $5,000 each to a number of charitable institutions, and by one of his codicils cut these legacies down to $2,000 each, but made a mistake hi fig-, ures in stating the aggregate amount of them. This mistake can make no difference, as the intention of the testator to cut down the legacies is too clear to admit of any discussion.</p> <p>The testator by a codicil to his will dated the 6th day of May, 1891, revoked so much of his last will and testament as gives the residue of his estate to the Hospital of the Protestant Episcopal Church and the Children’s Hospital share and share alike, and in lieu thereof directed “ that said residue be divided pro rata among the individual legatees to whom I have made bequests in my said last will and testament and the several codicils thereto excepting, however, Leonida Scobie (née Simones). Tn her case I do not make any change.”</p> <p>The question was raised whether those legatees whose shares were held in trust were to participate in this pro rata distribution. The auditing judge thinks that it was the intention of the testator that all the legatees except the charitable ones were to share in this residue, and that he used the words individual legatees only to distinguish them from the charitable ones.</p> <p>The testator gave a legacy of $1,000 to his niece, Eugenia J. Marshall. By a subsequent clause he gave to the Pennsylvania Company $20,000 to hold in trust for her during her life. By a codicil dated March 12, 1894, he said, “ The purpose of the present codicil is to add to the legacy of my niece, Eugenia J. Marshall, the sum of $10,000,” etc. The question raised is as to which of the legacies to Eugenia J. Marshall the testator referred. The auditing judge is of the opinion that the testator meant the principal one of $20,000, for the reason that in the bequest of the $1,000 legacy the testator states that it is to .be paid to the legatee as soon after his decease as practicable, as she may need it for immediate support. The presumption then is that it was in the mind of the testator that this $1,000 would be so used, whereas the $20,000 would not be paid over until the settlement of his estate; in fact it has not been paid over yet. The $1,000 legacy having been paid over and perhaps spent', as indicated by the testator, there is nothing left to add the legacy of $10,000 to as directed by the testator, excepting the other legacy of $20,000 which is to be held in trust. The auditing judge awards this legacy of $10,000 to the trustee for Eugenia J. Marshall to hold for the uses and purposes declared by the will of the testator.</p> <p>Errors assigned were in sustaining exceptions to adjudication.</p>

<p>Appeal, No. 559, Jan. T., 1896, by-George W. Beatty, from decree of O. O. Delaware County, No. 5094, overruling exceptions to auditor’s report.</p> <p>The case was referred to John B. Hannum, Esq., who reported as follows:</p> <p>FINDING OF FACTS.</p> <p>1. Jonathan Dutton died on September 17, 1880, intestate, leaving to survive him, his widow, Lydia F. Dutton and four children: Jane F. Clayton, Annie G. Dutton, now Annie D. Johnson, John Dutton and George G. Dutton.</p> <p>2. Proceedings in partition were begun in the orphans’ court of Delaware county, in the estate of said Jonathan Dutton, which resulted in the said George G. Dutton accepting the premises, described as No. 1. ' And on April 8, 1881, the .said George G. Dutton entered into a recognizance in the usual form, for the sum of $14,200, as fully shown, in recognizance book No. 1, page 248.</p> <p>3. On July 11, 1881, a partial satisfaction was made upon this recognizance of the shares payable, prior to the death of the widow and signed by Powell F. Clayton, Jane F. Clayton and John Dutton.</p> <p>4. On July 11,1881, the heirs of Jonathan Dutton, conveyed by deed, premises described as No. 1 in proceedings of partition to George G. Dutton confirming partition conveying grantor’s estate subject to the recognizance in partition.</p> <p>5. That a short time prior to October 31, 1882, John Dutton made application to Charles C. Larkin, a conveyancer, residing in the city of Chester, for a loan of $1,000 upon his interest in his father’s estate; and the said Charles C. Larkin procured from Robert Singleton, the sum of $1,000 and on October 31, 1882, loaned the said John Dutton, the said sum of $1,000 taking as security for the same, a mortgage which is dated October 31, 1882, and recorded in mortgage book Z, No. 3, page 321, etc., on November 3, 1882. The description in-the mortgage being as follows: “ All my right, title and interest in and to all that certain tract or piece of land situate partly in the township of Middletown and partly in the township of Chester, in the county of Delaware and state of Pennsylvania. Bounded by Chester creek, by lands of Richard Berry, by lands of Joshua Habbersett, by lands of James Hall and lands of Elizabeth Sheppard. Containing one hundred acres of land more or less. Being’ the same premises which Jonathan Dutton, late of the township of Middletown aforesaid, died on or about the eighteenth day of September, A. D. 1880, intestate seized in his demesne as of fee, leaving to survive him as his heirs and next of kin, his widow, Lydia F. Dutton and four children, to wit: — J ane F. Clayton, Annie G. Dutton and the said John Dutton and George Dutton, to whom the same descended and came.”</p> <p>On January 21, 1884, the said John Dutton confessed by bond and warrant a judgment to John Beatty for the sum of $1,486.62, which was duly entered in the court of common pleas on January 21,1884, in judgment docket P, page 343, etc., and was payable in one month from the date thereof. The amount of said judgment was made up, as follows :</p> <p>Note of John Dutton to John Beatty, dated Sept. 8,179 $200 00</p> <p>Interest on same from Sept. 8, ’81 to Jan. 17, ’84. . 28 30</p> <p>Judgt. John Beatty v. John Dutton entered June 6, ’81 1000 00 Int. on same from Jan. 1, ’79 to Jan. 17, ’84 . . 302 83</p> <p>Note John Dutton to John Beatty, April 1, ’76 . . 66 66</p> <p>Int. on same from April 1, ’76 to Jan. 17, ’84 . . 31 13</p> <p>$1628 82</p> <p>Credit by labor, etc., . . 192 00</p> <p>$1436 82</p> <p>And on the same day by assignment recorded in deed book O, No. 5, page 247 etc., on January 21, 1884, assigned to the said John Beatty all of his “right, title and interest, property, claim and demand in the said recognizance as collateral security for the payment of a certain bond and warrant of attorney, bearing even date herewith; conditioned for the payment of the just sum of $1,436.82 in one month from the date thereof; together with lawful interest thereon at the rate of 6 per cent per annum.” This assignment was made on January 21,1884, attached to the recognizance in the recognizance book.</p> <p>At the time of the taking of the assignment by John Beatty the notes were surrendered to John Dutton. The judgment of $1,000 entered June 6, 1881, was satisfied on February 28,1884.</p> <p>At the time this last judgment was confessed the said John Dutton was the owner of real estate in Nether Providence township, Delaware county, upon which the said judgment of $1,000 was a lien.</p> <p>On February 6, 1886, the said John Beatty died, and on March 3,1886, letters testamentary upon his estate were granted to George W. Beatty and Edward F. Beatty, the latter named having since died.</p> <p>On April 12, 1886, execution was issued on judgment, entered January 21, 1884, being No. 27, June term, 1886, and personal property of the said John Dutton was sold and there was realized from said sale on account of said judgment, the sum of $146.44.</p> <p>On August 24,1886, Robert Singleton by assignment recorded in assignment of mortgage book, No. 8, page 488, assigned to Charles C. Larkin the said mortgage of John Dutton and also all the right, title, interest, property, claim and demand of the said Robert Singleton, in and to the said recognizance given by George G. Dutton.</p> <p>Lydia F. Dutton widow of Jonathan Dutton died on February 16, 1896.</p> <p>The share of John Dutton in the recognizance of George G. Dutton is $1,177.77 with interest from February 16, 1896.</p> <p>The amount of principal and interest due on said mortgage at the death of Lydia F. Dutton was $1,677.67.</p> <p>Notice of the assignment of the recognizance by John Dutton to John Beatty was given by the executors of John Beatty to George G. Dutton on April 24, 1886.</p> <p>John Dutton at the time the mortgage was given to Singleton had no interest in the land, formerly of Jonathan Dutton and taken by George G. Dutton, but was entitled to a share in the recognizance payable at the death of Lydia F. Dutton.</p> <p>CONCLUSIONS OK LAW.</p> <p>There are but two questions involved in the determination of this case:</p> <p>1. Is the mortgage from John Dutton to Robert Singleton to be considered as an equitable assignment of John Dutton’s interest in the recognizance given by George G. Dutton ?</p> <p>2. If the said mortgage is to be considered as an equitable assignment of said interest — who is entitled to payment, the estate of John Beatty, or Charles C. Larkin, the assignee of the mortgage given to Singleton ?</p> <p>The determination of the first question depends mainly upon whether or not Charles C. Larkin is competent to testify in the case, notwithstanding the fact that John Beatty, the assignee of the recognizance is dead. Under the ruling of the Supreme Court in Kuhns’s Estate, 163 Pa. 438, the auditor decides that Charles C. Larkin is a competent witness.</p> <p>There is no doubt that this mortgage of John Dutton to Robert Singleton standing by itself without any explanation, would bind nothing, as at the time it was given, John Dutton’s interest in his father’s land had passed to George G. Dutton by a proceeding in partition which had been confirmed by deed from John Dutton. If therefore, it is to operate as an equitable assignment of John Dutton’s interest in the recognizance, it must be, because of the intentions of the parties at the time it was given, and this depends entirely upon the testimony of Charles C. Larkin, taken in connection with the description in the mortgage and the fact that the only interest Dutton had in his father’s estate, was what would be due him out of the recognizance at the death of his stepmother, Lydia F. Dutton. Larkin says : “ I made the loan of one thousand dollars. John Dutton wanted a loan of one thousand dollars, and made an application to me for a loan on his interest in his father’s estate coming to him on the death of his stepmother, Lydia F. Dutton. I prepared the mortgage. He said his interest at the death of his mother would be fifteen hundred to two thousand dollars, which I thought ample. I went to Media and told H. T. Walter what I wanted to do. He got the book, opened it to the place, and said that is just what you want, and I copied the same description as is in the mortgage to Singleton. It was something connected with or part of the same estate of Jonathan Dutton, deceased. Mr. Walter’s assertion that it was all right, made me think it was all right. Two years’ interest has been paid on the mortgage by John Dutton. I paid it to Singleton. I paid the money I got from Singleton to Dutton. Mr. Singleton afterwards made demand for the amount of the mortgage, and then Mr. Broom all came, and I paid Singleton for the mortgage. I am owner today. Mr. Broomall drew the assignment.</p> <p>I did not examine the records to see if there were any mortgages or judgment given by John Dutton. He said he had not drawn anything on this dower interest; it was all clear. I made the loan relying more on what John Dutton said he had, than from an examination of the records. I hold no other security for the money.”</p> <p>In the case of Hay v. Mayer, 8 Watts, 203, where certain nephews of testator had made a conveyance of land, which it was presumed that they owned, when in fact they were entitled to receive only a certain proportion of the money that would arise from the sale of the land, Judge Kennedy held that their claim would “ be considered as assignable in equity for a valuable consideration, and their deeds as sufficient to bind and divest them, in equity at least, of their rights to any money that could be raised from the sale of the land.” Where there is a devise in fee, with an absolute direction to sell for the purpose of distribution, a conveyance of the land by a devisee passes his interest in the proceeds, when sold under the' trust in the will: Costen’s Appeal, 13 Pa. 292. See also Dunn’s Estate, 24 Pittsburg Legal Journal, 109. In the case of Bayler v. Com., 40 Pa. 37, a married woman gave a mortgage to a creditor -of her husband of “ all the estate, right, title and interest ” to which she would be entitled in her father’s estate, on his death. The mortgage was given for the sole purpose of securing a prior debt of the husband, and no consideration was received by her or given by the mortgagee. After the death of the father, the mortgagee claimed her share of the real estate — held that he was not a purchaser for value and that the mortgage did not enable him to hold against her.' The court saying that though a conveyance of an expectancy as such is impossible at law, yet it may be enforced as an executory agreement to convey, and it would be sustained by a sufficient consideration, in equity.</p> <p>In the case at hand, there is no doubt but that a sufficient consideration was given by Singleton. In Harner’s and Piles’s Appeal, Erwin’s Estate, 56 Pa. 405, a testator devised land to his wife for life, and directed it to be sold at her death, and the proceeds divided amongst his children. One of the children died in thé lifetime of the wife, and his administrator sold his interest in the land by order of the orphans’ court for the payment of his debt. Held that his interest passed to the purchaser, the court saying his deed was therefore an equitable, if not a legal, assignment of the interest of the intestate in the testator’s realty. An heir or expectant devisee or legatee may in the lifetime of the' testate or intestate, sell or assign his expectant or contingent interest, and if the contract be on a valuable consideration, equity will enforce it: Power’s Appeal, 63 Pa. 443. See also Tryon v. Munson, 77 Pa. 250, East Lewisburg Lumber and Manf. Co. v. Marsh, 91 Pa. 96, and Ruple, to the use of Lewis, v. Bindley, 91 Pa. 296, where it is held that the form of the assignment is immaterial so that there is a clearly expressed intention of an immediate transfer of the right of the assignee. Where a testator directs conversion of his land, the proceeds to be divided among his children, the interest of the latter is personalty. A mortgage given under such circumstances by one child operates as an equitable assignment of the undivided interest : Bailey v. Allegheny National Bank, 104 Pa. 425. See also McClellan’s Estate, 158 Pa. 639; Moeser v. Schneider, 33 W. N. C. 259; Whelen v. Phillips, 151 Pa. 312; Kuhns’s Estate, 163 Pa. 438. In Collins’s Appeal, 107 Pa. 590, it was held that in equity a valid or binding pledge could be made of the interest of the pledgor in a partnership to be subsequently created, so as to secure to the pledgee a priority of lien as against creditors of the pledgor. A mortgage is defined to be “the conveyance of an estate or property by way of pledge for the security of the debt, and to become void upon payment of it.” Personal property may be mortgaged if the mortgagee takes such possession of the thing pledged as its nature and the circumstances will admit: Fry v. Miller, 45 Pa. 441; Bismark B. & L. Asso. v. Bolster, 92 Pa. 123. In Campbell’s Estate, 7 Pa. 100, a mortgage of a legacy was sustained.</p> <p>From the evidence submitted, the auditor is of opinion that it was the intention of Dutton and Larkin to mortgage Dutton’s interest in this recognizance, and that under the principles decided by the cases above cited, the said mortgage operated as an equitable assignment of Dutton’s interest in said recognizance and so decides.</p> <p>The remaining question to be decided is, did Beatty give any consideration for the assignment to him ? For if he did not, then there is no question that the Singleton mortgage is entitled to be paid out of the recognizance, before the judgment of Beatty. It is claimed on the part of Beatty’s estate that their holding is for consideration, because the assignment of the collateral was part of a simultaneous transaction, by which a prior indebtedness of Dutton was extinguished and a new obligation taken, payable in thirty days. Now what are the facts ? Dutton was indebted to Beatty on certain notes and on a judgment which was entered on June 6, 1881, and which was a lien on Dutton’s real estate. On January 17, 1884, they had a settlement of accounts, a balance was struck, and it was found that Dutton owed Beatty $1,436.12, for which he gave him a new judgment payable in thirty days, which was entered on January 21,1884, and also assigned the recognizance to Beatty as collateral security for the payment of the judgment. The notes were surrendered and the judgment of $1,000 was satisfied on January 28, 1884. There is no evidence that the recognizance was assigned as collateral in consideration of the giving of time, or that it was contracted between them that said assignment should be made in consideration of the giving of additional time. Neither is there any evidence that Beatty was put in a worse position by the taking of- the new judgment and the giving of additional time, and while it is true that it has been held that an extension of time upon the original obligation is sufficient consideration for a promissory note given as collateral security therefor: VanGorder v. Freehold Bank, 7 Atl. Rep. 144; Jones v. Horner, 60 Pa. 214; Bell’s Estate, 4 Mont. Co. Rep. 175; Gross’ Estate, 6 Pa. C. C. Rep. 478; Hesser v. Steiner, 5 W. & S. 476; Giles v. Ackles, 9 Pa. 147; Arnold v. Stedman, 45 Pa. 186, still in all these cases the extension of time was contracted for.</p> <p>“ Consideration like every other part of a contract must be the result of an agreement.” .... In other words, in order that an extension of time shall be a good and valuable consideration, it must be contracted for: Pratt’s Appeal, 77 Pa. 382; Depeau v. Waddington, 6 Whart. 220; Petrie v. Clark, 11 S. & R. 377.</p> <p>To constitute the party a purchaser without notice, he must prove independently of the receipt of the deed, the payment of consideration before he had notice of the plaintiff’s equity: Coxe v. Sartwell, 21 Pa. 480; Lloyd v. Lynch, 28 Pa. 419. A creditor taking a chose in action as collateral security for a preexisting, indebtedness is not a purchaser for value, and takes no more than the debtor owned and can honestly transfer: Ashton’s Appeal, 73 Pa. 153; Pratt’s Appeal, 77 Pa. 378; Hoopes v. Beale, 90 Pa. 82; Linnard’s Appeal, 3 Atl. Rep. 840.</p> <p>The auditor is therefore of opinion that under the law, Beatty was not a purchaser for value of said recognizance, and therefore took the assignment subject to the equities existing between Dutton and Singleton, and must be postponed to the payment of the Singleton mortgage. As the amount due on the recognizance is not sufficient to pay the mortgage of Singleton, the auditor recommends that a decree of court be made directing that the amount due upon said recognizance be paid to Charles C. Larkin, the holder of the mortgage, and that the costs of the proceeding be paid out of the amount of the said recognizance.</p> <p>The court overruled exceptions and confirmed the report.</p> <p>Errors assigned were in overruling exceptions to auditor’s report.</p>

<p>Will — Construction of — Fee simple estate.</p> <p>Testator by his will gave certain specifically described real estate to his wife as follows: “1 give to my wife for a home my one half undivided interest in the real estate on which I now reside.” Testator had other real estate, and in his will he gave his executors a general power to sell real estate. Held, that the wife took an estate in fee simple in the lands specifically devised to her.</p>

<p>Insurance — Life insurance — Forfeiture—Failure to pay premiums.</p> <p>Where an insurance company had declared a policy forfeited and refused to accept a premium, the fact that the insured subsequently failed to pay premiums as they fell due will not affect the right to recover on the policy if the forfeiture was invalid.</p> <p>Insurance — Life insurance — Reinsurance.</p> <p>O. was insured in a mutual insurance company of the state of New York which had a contract with the H. insurance company by which'it was agreed that the former company should transfer to the H. company its membership and the latter company should reinsure said members on the basis of their original applications to the former company, on the execution of satisfactory transfer applications. O. filled out a transfer application in which he stated that he had recently recovered from an attack of pneumonia, but that his health was then fair, which he sent to the company, with a check for the quarterly premium. The H. company returned the check and demanded that he should be examined by their medical examiner. O. made no other quarterly payments, and subsequently died. Held, that the H. company was bound to pay the amount of the policy.</p>

Appeal, No. 386, Jan. T., 1896, by defendants, from judgment of C. P. Schuylkill Co., March T., 1886, No. 178 on verdict for plaintiff. Ejectment to recover possession of a lot of ground in the borough of Shenandoah. Before Lyons, P. J., of the 41st judicial district, specially presiding. The facts appear by the opinion of the Supreme Court.

<p>Election law — Marking of ballots.</p> <p>The mark of a one (1) in a square provided in the official ballot for a cross mark, or a cross mark (X) in a square below such square, has not the effect of a cross mark (X) in the proper place for it.</p>

Appeal, No. 21, Jan. T., 1897, by defendant, from judgment of C. P. Wayne Co., Deo. T., 1895, No. 252, on verdict for plaintiff. Trespass for death of plaintiff’s son. Before Purdy, P. J. The facts appear by the opinion of the Supreme Court. Defendant's point and answer thereto among others were as follows: 14. Under all -the evidence in this case the verdict must be for the defendant. Answer : This point is refused. It asks us to take the case from the jury and decide it.

Appeal, No. 35, Jan. T., 1897, by-plaintiff, from order of C. P. Wyoming Co., Jan. T., 1894, No. 22, refusing to take off nonsuit. Trespass to recover damages for death of plaintiff’s husband. Before Dunham, P. J. At the trial it appeared that plaintiff’s husband, Lewis W. Decker, was killed at the Water street crossing of the defendant’s railroad in Pittston, on December 24, 1892.

Appeal, No. 84, Jan. T., 1897, by-defendant, from judgment of O. and T. Schuylkill Co., March T., 1896, No. 878, on verdict of guilty of murder in the first degree. Indictment for murder. Before Savidge, P. J., of the 8th judicial district, specially presiding. At the trial it appeared that on February 17,1896, John H. Schwindt and Patrick Monaghan left the colliery at which they had been working to go to their homes.

<p>Appeal, No. 549, Jau. T., 1896, by-Frederick Schier, from decree of O. C. Carbon Co., dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, Frank P. Sharkey, allowed commissions to the executors at the rate of five per cent.</p> <p>Exceptions to the auditor’s report were dismissed by the court in an opinion by Cbaig, P. J.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Mortgage — Fixtures—Contract—Evidence.</p> <p>Where a mortgagor agrees with a mortgagee to place machinery to a certain amount in the mortgaged promises the machinery will be considered fixtures subject to the mortgage, notwithstanding that some of it was placed in the building after the mortgage was executed.</p> <p>It seems that without an agreement, fixtures attached to a building after the property is mortgaged, cannot be removed to the injury of the mort gagee: Roberts v. Bank, 19 Pa. 71.</p> <p>Fixtures — Mortgagor and mortgagee — Intention—Evidence.</p> <p>An agreement under which the members of a firm borrowed money to build a knitting mill and gave a mortgage, required the mortgagors to place therein the necessary machinery and to insure the same for the protection of the mortgagees. Sewing machines, hosiery knitters, and other machinery essential to the proper operation of the mill, were fastened to the floor, and run by the general steam plant. One of the mortgagors, in withdrawing from the firm, agreed to convey his interest in the real estate, machinery, etc., “ subject to the mortgage.” Eeld, that it was sufficient to warrant a finding that the parties intended to subject to the lien of the mortgage the machinery in the factory when the mortgage was executed and also the machinery subsequently placed therein by the mortgagors.</p> <p>Auditor's finding of facts — Evidence.</p> <p>The Supreme Court will not reverse an auditor’s finding of facts approved by the court below if there was sufficient warrant for it in the evidence.</p>

<p>Negligence — Railroads—Grossings—Positive and negative testimony.</p> <p>In a case against a railroad company for alleged negligence at a crossing where five witnesses for the company testify that lights were displayed, the bell rung and the whistle blown, and two witnesses for the plaintiff testily that they did not see the lights, nor hear the bell or whistle, it is reversible error for the court not to give adequate instructions as to the relative value of positive and negative testimony.</p> <p>Negligence — Railroads—Grossings—“ Stop, look and listen.”</p> <p>One who is struck by a moving train which was plainly visible from the point he occupied when it became his duty to stop must be conclusively presumed to have disregarded that rule of law and of common prudence, requiring him to stop, look and listen at a convenient distance from the railroad track before venturing to go upon it, and he will be presumed to have gone negligently into an obvious danger.</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband at a highway crossing, it appeared that the deceased at the time of the accident was driving a two horse team on a dark night. The locomotive was run with tender in front. The evidence for plaintiff was in effect that no light was shown on the tender, or signal given, and that the locomotive was run with speed. The highway before it made the crossing ran almost parallel with the railroad for one hundred and fifty feet, and then, in a distance of more than one hundred feet additional, reached the track. For the whole distance of two hundred and fifty feet the track on which the locomotive was coming was visible for nearly a mile. There was nothing to prevent the rumbling sound of the locomotive being heard, or the side glare from its headlight from being seen, for half a mile before the locomotive reached the crossing. Held, that a judgment and verdict for plaintiff should be reversed.</p>

<p>Negligence — Bailroad—Fellow servant — Fmployment of incompetent servant.</p> <p>In an action by a brakeman against his employer to recover damages for personal injuries caused by the negligence of the conductor of a log train upon which plaintiff was employed, a verdict and judgment for the plaintiff will be sustained, where the evidence tended strongly to show that the conductor was a manifestly incompetent servant for the duties he had to perform, and that the fact of his ineompetency was known or ought to have been known to the defendants when they employed him as conductor.</p>

<p>Assignment for creditors — Fraud—General creditors — Judgment creditors.</p> <p>In the distribution of an estate assigned for the benefit of creditors, a general creditor, whose right to participate in the fund or property has been established, may be heard to charge fraud against a judgment creditor.</p> <p>In the distribution of an estate assigned for the benefit of creditors, lien creditors whose liens date prior to judgments alleged to be fraudulent are not such interested parties as can be heard to contest the rights of the judgment creditors whose judgments are alleged to be fraudulent.</p> <p>Married ivomen — Judgment—Record.</p> <p>A judgment against a married woman regular on its face, and not showing for what it was obtained, will not be stricken off upon the allegation that it was for necessaries for which the husband was primarily liable.</p> <p>Mortgage — Alteration—Filling up blanks — Delivery.</p> <p>Where a bond and mortgage by husband and wife is acknowledged and delivered to the mortgagee with the amount and time of payment blank, which blanks are afterwards filled in the presence of the wife whose property is the security for the mortgage, no one is prejudiced thereby, and there is, in fact, no alteration of the instrument.</p> <p>Judgment — Collateral attack — Assignment for creditors.</p> <p>In the distribution of an estate assigned for the benefit of creditors, a judgment entered upon a bond executed by one of the assignors cannot be attacked, where there is no allegation of fraud.</p> <p>In distributing ah estate assigned for the benefit of creditors the audifor has a right, at the instance of the creditors, to enter into an investigation of the bona lides of a judgment, and to determine whéther or not it was collusive and given to cheat, defraud, hinder or delay creditors.</p>

Appeal, No. 10, Jan. T., 1897, by plaintiff, from judgment of C. P. Bradford Co., May T.,1892, No. 502, on verdict for defendant. Trespass for personal injuries. Before Dunham, P. J. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Error assigned among others was above instruction.

<p>Negligence — Death—Family relation — Mother and son.</p> <p>In an action by a mother to recover damages for the death of an adult son, the burden of proof is upon her to show the existence in fact of a family relationship which entitles her to maintain a suit for the death of her son.</p> <p>Negligence — Death—Act of April 26, 1855 — Nonresident alien.</p> <p>Under the Act of April 26, 1855, P. L. 809, which gives a right to recover damages for an injury causing death, a nonresident alien mother has no standing to maintain an action against a citizen of Pennsylvania to recover damages for the death of her son.</p>

Appeal, No. 72. Jan. T.. 1897, by-defendant,'from judgment of C. P. No. 3, Pbila. Co., June T., 1895, No. 682, on verdict for plaintiffs. Assumpsit to recover balance due on a municipal contract for building a reservoir. Before McMichael, J. The facts appear by the opinion of the Supreme Court, and by the charge of the court below which was as follows: The plaintiffs, LudwigS.

Appeal, No. 575, Jan. T., 1896, by J. G. Lawson, one of the defendants, from order of C. P. Pay-, ette Co., March T., 1892, No. 276, discharging rule to strike off judgment. Rule to strike off judgment. Before Mestbezat, J. The facts appear by the opinion of tbe Supreme Court. Error assigned was in discharging rule to strike off judgment.

<p>Will— Construction of— Sale— Conversion.</p> <p>Testator’s will was as follows: “ I, H. do now make my last will, that after my death that all my real estate I will all to my wife, Sophia, that she can do as she see best. My daughter, Sallie, i£ she should live longer than her mother, she shall have as long as she remains single, but if get married it shall be sold and equal share — first there shall be a tomb-stone for both.” Held, that the balance of the fund raised by the sale of testator’s real estate after payment of debts should be invested for the daughter for her life, or until she marries.</p>

<p>Appeal, No. 73, Jan. T.„ 1897, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1895, No. 433, non obstante veredicto.</p> <p>Ejectment to recover a tract of land in the twenty-third ward of the city of Philadelphia.</p> <p>At the trial it appeared that Benjamin Haigh died in June, 1871, leaving a will the material portion of which was as follows :</p> <p>“ And to such real estate as it hath pleased Almighty God to intrust me with I dispose of the same as follows, viz:</p> <p>“ I order and direct my hereinafter-named executors, to wit: my beloved wife, Mary Ann, and my esteemed friend, Levi Battersby, to have sole charge and the disposal of the same for the benefit of herself and my beloved children as they in their judgment may deem best; and when they should deem it for the best interest of them my said wife and children, then I order and direct them, my said executors or the survivor of them, to sell all my real estate, at either public or private sale, for the best price or prices that may reasonably he gotten for the same, and I do hereby authorize and empower my said executors, or the survivor of them, to sign, seal, execute and deliver to the purchaser or purchasers thereof good and sufficient deed or deeds of conveyance for the same in fee simple, without any liability on the part of .the purchaser or purchasers thereof as to the application, non-application or misapplication of the purchase money, and the net proceeds of such sale or sales to invest in good and sufficient securities as they hi their best judgment may direct, and when my youngest child shall arrive at the age of twenty-one years, then to divide all the residue and remainder of my estate to and among my beloved children, to wit: Mary Agnes, Annie, John C. and Fanny equally, share and share alike.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court directed the jury to find a. verdict in favor of the plaintiff, stating that a point was reserved “ as to whether or not the defendants bad a better title to the property in dispute under the conveyance from Mary A. Maberry than the plaintiff under the sheriff’s deed to him.” Afterwards the court entered judgment in favor of defendants on the point reserved, non obstante veredicto, Willson, P, J., filing an oppiion.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 503, Jan. T., 1896, by defendants, from judgment of C. P. Lancaster Co., May T., 1895, No. 7, on verdict for plaintiff.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Livingston, P. J.</p> <p>At the trial it appeared that on November 18, 1894, plaintiff and her husband, John H. Heisey, drove a blind horse in a dogcart over a bridge in the defendant township. There was a hole in the bridge, and into this the horse slipped, and Mr. Heisey was thrown from the cart and sustained injuries from which he subsequently died. The evidence showed that one of the supervisors had had knowledge of the defective condition of the road for several weeks prior to the accident.</p> <p>The court charged in part as follows:</p> <p>[From our view of the case as presented, by which you are in no way bound, your real investigation is narrowed down to a rather close question. There can be no question as to the fact of negligence on the part of the defendant, Rapho township. The supervisor admits both by word and act that this place complained of was not in proper condition; that he knew of the hole spoken of at this bridge some time prior to the accident, and had also been told of it, and that he had fixed it temporarily by putting a stone in until he could get time to repair it properly, which he never did while he was in office. So that the mam question for you to decide will be: Was John Heisey, the man who was killed or injured so he died, guilty of contributory negligence ? None appeared when the testimony of the plaintiff closed, in our view. As we have told you, this cannot be inferred merely because he was killed or injured so he died. The presumption is he did his whole duty, and the onus or burden of proving he was guilty of contributory negligence rests upon the township, the defendant.] [13]</p> <p>- Defendant’s points and answers thereto among others were as follows:</p> <p>1. In this action the burden of proof is on the plaintiff. She must show a case clear of contributory negligence on the part of John H. Heisey, and must prove negligence on the part of the defendant contributory to the injury. The defendant is presumed to be free from negligence. Answer: Our answer to that is that in cases of this character neither the court nor the jury can infer negligence or contributory negligence on the part of the deceased, John H. Heisey, merely because he was killed or injured so he died. The presumption of. law is he was not negligent, that he did his duty, and proof thereof is no part of plaintiff’s case. The burden of proving contributory negligence on his part is on the party alleging it, the defendant in this action. The balance of the point is true; he must prove negligence on the part of the township without contributory negligence on his part, clear of negligence on his part, and that is presumed by his death. [2]</p> <p>3. If the jury believe that John H. Heisey, in driving the blind mare, neglected to guide her in the middle of the track or road, and thus caused the accident which followed, he was guilty of contributory negligence and the plaintiff cannot recover. Answer : This we say we refuse. John H. Heisey was not bound to drive in the middle of the bridge. He had a right to drive over any part of the bridge open for travel. We remember no evidence as to negligence on the part of Heisey íd driving. The jury will remember the evidence, and if contributory negligence has been proved plaintiff cannot recover. [3]</p> <p>4. If there was a hole or depression a little larger than a horse’s hoof at the bridge, as testified to, and the same had been filled up, and only opened the day of the accident to John H. Heisey, there was no neglect or negligence on the part of the supervisors of Rapho township that would cause any liability, and the verdict of the jury must be for the defendant. Answer : That point we refuse. Notice had been given to them, and they knew it long before that, according to their own admission. [4]</p> <p>5. If John H. Heisey, or his wife, the plaintiff, was guilty of any degree of negligence the plaintiff cannot recover, even though the township was guilty of negligence. Answer: We say if the defendant has proved satisfactorily to the jury that John H. Heisey was guilty of contributory negligence the verdict must be for the defendant. We refuse to affirm that portion of it which refers to his wife. There is no testimony with reference to her negligence. [5]</p> <p>6. The plaintiff must show by the evidence that John H. Heisey was free from all contributory negligence and also that his injury, which caused his death, was the natural and probable consequence of neglect on the part of the township officers, before the plaintiff can recover. If the jury cannot find this state of facts from the evidence the verdict must be in favor of the defendant. Answer: We say the deceased, John H. Heisey, is presumed by law to have been free from negligence, to have done his whole duty, and the burden of proving contributory negligence is on the defendant alleging it. It is no part of the plaintiff’s case. If the defendant has proved to the satisfaction of the jury that Heisey was guilty of contributory negligence then their verdict must be for defendant. [6]</p> <p>7. If this blind mare driven by John H. Heisey slipped and fell in the road at or on the bridge before the alleged hole was reached, and by so doing caused the accident which resulted in the death of John H. Heisey, then the township is in no way liable, and the verdict must be against the plaintiff. Answer: Our answer to that is, this would be true, provided the mare did not get her foot in the hole, and by that means caused the accident. [7]</p> <p>8. If there was a hole, as alleged by plaintiff and denied by defendant, and John H. Heisey drove a blind mare on a slippery road over the bridge, which he knew had a hole on the east side, and he did not drive to the south side of the bridge (sixteen feet long), affording ample and safe passage, he was guilty of contributory negligence, and plaintiff cannot recover. Answer :' Our answer to that is, that if the hole in the bridge had not been filled up by a stone, as alleged in the fourth point, the day before the accident, and only opened on the day of the accident, there would be no presumption that Heisey knew it was open on the day of the accident, and the defendant has furnished no proof that he did. The point must, therefore, be refused. [8]</p> <p>9. The fact that John H. Heisey was driving a blind mare in a one-seated dogcart, with the plaintiff, his wife, by his side, on this slippery road and bridge at' the time of the accident, was an act of contributory negligence on his .part, and the verdict must be for the defendant. Answer : ¥e say it was not negligence merely to drive a blind mare, as stated in this point, if driven with ordinary care. Therefore, we refuse the point. [9]</p> <p>11. If there was any defect in or at said bridge or road not apparent and visible, but hidden and unknown to the super-' visors of the township, defendant would not be liable for any accident resulting therefrom to a traveler on the highway. Answer: This as a legal proposition would be true if the supervisors had no notice, but in this case the supervisor was told, as he says, of the defect and attempted to fix it temporarily until he could get time to repair it permanently. We refuse the point for that reason. [10]</p> <p>12. If the jury believe that the blind mare stumbled on the west side of the bridge and slipped on the bridge, throwing John H. Heisey out of the cart, then the plaintiff cannot recover, even if the mare did afterwards slip forward to where the hole was alleged to be. Answer: Our answer to that is, if the mare stumbled on the west side and thus threw Heisey out of the cart and killed him, or injured him so he died, without getting into the hole, of which we remember no evidence at all, and after the injury the mare only got mto the hole, the hole would not be the cause of the injury and the verdict should be for the defendant. That is self-evident. [11]</p> <p>Verdict and judgment for plaintiff for $4,000. Defendant appealed.</p> <p>Errors assigned among others were (2-11,13) above instructions, quoting them.</p>

<p>[Marked to be reported.]</p> <p>Municipalities — Municipal debt — increase of — Constitutional law — Constitution of 1874, art. 9, sec. 8.</p> <p>The provision of section 8, article 9 of the constitution which permitted a city whose debt at the time of the adoption of the constitution exceeded seven per cent of the assessment to increase the debt three per cent was of a temporary character; and if a city whose indebtedness then exceeded the seven per cent limit subsequently reduced its debt below that limit, it at once passed into the category of all the other cities of the commonwealth, and thereafter could only create or increase indebtedness in the same manner that they could.</p> <p>The increase of two per cent authorized to be made by the second clause of section 8, article 9 of the constitution may not be transcended except by a popular vote, and this is the case, whether the increase has been made by successive additions, each less than two per cent, or at one time, and by one municipal act alone.</p>

<p>Appeal, No. 526, Jan. T., 1896, by plaintiff, from order of C. P. Fayette Co., March T., 1895, No. 465, making absolute a rule to discharge a-rule to arbitrate.</p> <p>Rule to discharge and annul a rule of court to arbitrate.</p> <p>The facts appear by the opinion of the court below, Mestrezat, J., which was as follows :</p> <p>The parties to the above action submitted all matters in controversy between them to arbitration by the following agreement under their hands and seals :</p> <p>“And now, to wit, February 16,1895, said Joseph Wolf and Jasper Augustine agree to submit all matters, including sales of land, equity suits, judgments, contentions about personal property and all other controversies between them of whatsoever kind to J. Y. Thompson and A. D. Boyd, mutually chosen by them. Their award or umpirage shall be made or decided according to real equity and justice as shall be shown by the facts submitted to them. They furthermore agree that their submission to said award or umpirage shall be made a rule of or in court and hereby respectively bind themselves to submit to and be finally concluded by the award or umpirage of said referees or arbitrators or a majority of them. If any balance shall be found against said Wolf, all judgments in controversy in this case shall be satisfied or caused to be satisfied by said Augustine and the hen of said award shall be confined to only such one or more than one tracts of real estate of said Wolf as shall be necessary to secure the amount of the award so found. In case of disagreement between the parties hereto as to what real estate shall be bound by said award or hen the arbitrators shall decide. If the arbitrators, under the evidence submitted, so decide, said Wolf shall convey back to said Augustine, with as good title and as clear of encumbrances as when he obtained them, all or part of all lands conveyed by Augustine to Woll, and shall return to said Augustine all personal property in controversy, or its equivalent as arbitrators shall decide. If the arbitrators, under the evidence submitted, so decide, said Augustine shall convey back to said Wolf with as good title and as clear of encumbrances as when he obtained them, all or part of all lands conveyed by Wolf to said Augustine, and shall return to said Wolf all property in controversy or its equivalent as arbitrators shall decide. If said two arbitrators cannot agree, they shall appoint a third arbitrator.</p> <p>“ And the parties hereto bind themselves, their heirs, executors and administrators, to each other in the penal sum of forty thousand dollars, conditioned to abide by, be bound by and to carry into effect the award or finding of said arbitrators or a majority of them. This includes the Ross Augustine property.”</p> <p>This submission was filed in the prothonotary’s office on February 18, 1895, in the above entitled action.</p> <p>On April 18,1896, the defendant by petition alleged that the submission had been made a rule of court, and that it was Augustine’s understanding that the basis of the submission was the expectation that Thompson and Boyd would undertake the duties of their appointment and, if necessary, agree upon an umpire: that Mr. Boyd, one of the arbitrators named in the submission, had refused and still does refuse to act in that capacity, and that the parties had endeavored but were unable to agree on another arbitrator who would accept, and that Mr. Wolf would agree to no substitution for Boyd, and praying the court to grant a rule on the plaintiff to show cause whj^ said rule of court to arbitrate should not be discharged and annulled, and the proceedings thereunder dismissed. The rule was granted as prayed for.</p> <p>To this petition and rule, the plaintiff filed an answer. It admits the submission but denies that there was any understanding that the two arbitrators chosen should serve. It avers, inter alia, that said Boyd as attorney for Augustine, long after the execution of the submission, prepared an answer to a bill in equity filed in this court by Wolf against Augustine, and others in which answer, sworn to by Augustine, this submission was set up as a defense to said suit in equity and as a reason why the same was withdrawn and should be dismissed; that by reason of the preparation and filing of said answer, Augustine and Boyd are legally estopped from alleging that Boyd did not agree to act as one of the arbitrators, and especially from alleging that the submission was contingent upon Thompson and Boyd accepting the position of arbitrators; that it is denied that the parties cannot agree upon an arbitrator under the terms of the submission for the reason that Wolf is willing to concede to Augustine the right to select an arbitrator instead of Mr. Boyd. It is further averred in the answer that the submission is a contract, with a consideration, and irrevocable by either party, and that the court has no jurisdiction in the premises to discharge or annul the rule of court to arbitrate.</p> <p>Both parties have taken testimony and on it, the record, petition and answer, the matter must be determined. There is nothing in the testimony that would warrant us in finding that Mr. Boyd accepted the position of arbitrator. It may be conceded that he did not at once, nor for some time after his appointment, refuse to act, but he was not compelled to do so. Until he accepted, he could decline, and no length of time of itself could estop him from refusing to perform the duties of his appointment. Nor would the fact that he, as attorney for Augustine, prepared the answer in equity compel him to act or estop him from refusing to act. His position as arbitrator, mutually chosen by the parties in the case, must be distinguished from that as counsel for Augustine in the other case. Unless there was collusion or fraud between him and Augustine, of which there is no evidence, Mr. Boyd’s professional services in the preparation of the answer in the equity suit cannot control his action, individually, in accepting or declining the position of arbitrator in this case.</p> <p>Nor can we agree with the plaintiff that Augustine is es-topped from alleging or setting up Boyd’s refusal to act. At the time the answer in the equity suit was prepared, Augustine, without consulting Boyd, may have thought that Boyd would act as an arbitrator. If, as he did, Boyd subsequently declined, Augustine should not be prohibited from alleging the fact as a reason for the revocation of the submission. It may well be, and presumably is tbe fact, that Augustine reposed special confidence in Mr. Boyd’s ability to protect and secure his interests under this submission, and that he is unwilling to trust those interests, under this agreement, to another person.</p> <p>We agree with the counsel for plaintiff that this submission is not revocable by either of the parties to it. If this were the only or controlling question in this case, the solution of it must result in a decision favorable to the plaintiff. While it is true that a naked power to submit controversies to arbitration is revocable, it is equally well settled that when the agreement partakes of the nature of a contract, whereby important rights are gained and lost reciprocally, and the submission is the moving consideration to these acts, a different rule prevails : Paist v. Caldwell, 75 Pa. 166. Such is the character of this submission and, hence, it is irrevocable by either party. But another question arises here. From the testimony submitted, we find that Mr. Boyd refused to accept and act as one of the two arbitrators mutually chosen by the parties to this contract. We know of no authority in the court to compel him to act. Has the court the authority under this submission to compel Mr. Augustine or him and Mr. Wolf to select another arbitrator to act in Mr. Boyd’s place or, he and they failing or refusing, to appoint an arbitrator for that' purpose ? That, in our opinion, is the question to be determined.</p> <p>By this submission, the parties have contracted to have their differences settled by Mr. Thompson and Mr. Boyd, and, should they fail to agree, a third party is to be chosen by these two. The terms of this submission must control the court and the parties. There is no provision in it for filling a vacancy in this tribunal, whether occasioned by death or refusal to act of one or both of the arbitrators. The statute does not provide for filling such vacancy. Where no provision is made in the submission it is settled that a vacancy by death in the board of arbitrators, amicably chosen, revokes the submission: Huggins v. Neill, 2 Pa. Superior Ct. 103; Potter v. Sterrett, 24 Pa. 411. In this latter case the Supreme Court says: “ A submission to arbitration is like a delegation of any other power. Neither an agent nor an arbitrator can delegate his power unless expressly authorized by his constituents. An authority given to two cannot be executed by one, although the other die or refuse; nor if given to three can it be executed by two, although the three be authorized to act jointly and severally. A power is terminated by the death either of the party receiving it or of the party conferring it.”</p> <p>We are unable to see the difference in a vacancy in a board of arbitrators caused by death and one occasioned by the refusal to act of the arbitrator. The effect is the same, namely, to deprive the parties of the tribunal created by them for the adjustment of their differences. Unless specially provided in the submission, the remaining arbitrator cannot fill the vacancy. That power exists solely in the parties, and if they refuse, the submission is revoked and the arbitration is at end.</p> <p>It is not alleged that there was any collusion between Mr. Boyd and Augustine to revoke this submission. So far as the testimony discloses, Mr. Boyd, in declining to accept the appointment, has acted from motives of his own without regard to the wishes of Augustine in the matter.</p> <p>Entertaining the views above expressed, we will make this rule absolute and annul or rescind the rule of court to arbitrate.</p> <p>And now, September 30,1896, this matter having been argued by counsel and fully considered by the court, it is ordered and directed that the rule to show cause why the rule of court to arbitrate should not be discharged and annulled and the proceedings thereunder be dismissed, be made absolute, and the said rule to arbitrate is rescinded and set aside. It is further ordered that the costs accrued on said rule together with the costs on the present rule be paid by the plaintiff and defendant in equal proportions.</p> <p>Error assigned was the order of court, quoting it.</p>

Petition of the Scranton and Pittston Traction Company for modification of decree entered in the above case, April 14,1897. See Traction Co. v. Canal Co., 180 Pa. 636. Decree modified. The facts stated in the petition are : 1.

<p>Negligence — Municipalities—Defect in sidewalk.</p> <p>Persons walking on the pavements of a large city are not bound to exercise extraordinary care. They have the right to assume that the pavements are reasonably safe, and that they, by the ordinary use of their eyes, at an ordinary pace, can safely walk on them. Care according to circumstances is all that the law enjoins.</p> <p>Negligence — Municipalities—Defective sidewalk — Referee—Findings of fact — Act of May 14, 1874.</p> <p>A case against a city to recover damages for personal injuries to plaintiff caused by his falling into a hole in a defective sidewalk, at night, was referred to a referee. Plaintiff was unacquainted with the walk, and had no knowledge of the defect. There was evidence of an electric light not very far from the hole, and also evidence that this light dazzled the eyes of the traveler so that he could not see a defect in the pavement. The plaintiff testified that at the time of the accident he was walking along without looking around or about, “minding my own business; ” that he did not see the hole until he fell into it, and that “you could see it by looking at it carefully.” The referee found that the plaintiff was not guilty of contributory negligence. The court was of the opinion that the plaintiff’s testimony showed contributory negligence, and for that reason reversed the referee. Held, that, as the plaintiff’s testimony was susceptible of two meanings, the case would have been for the jury if that method of trial had been adopted; and the referee having been substituted for the jury his finding of fact was conclusive on defendant.</p> <p>The power of a referee appointed under the Act of May 14, 1874, P. L. 166, is the same to all intents and purposes as that of a judge who, under the Act of April 22, 1874, P. L. 109, by agreement, finds the facts and determines the law of the issue; and the referee’s findings of fact are as conclusive as the verdict of a jury. t</p>

<p>Appeal, No. 222, Jan. T. 1896, by plaintiff, front judgment of C. P. No. 8, Pbila. Co., March T., 1875, No. 353, on verdict for defendant on trial by referee.</p> <p>Case to recover damages for injuries to plaintiff’s business.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to report of referee.</p>

<p>Statute of limitations — Decedents' estates — Executors and administrators.</p> <p>The personal representative of a decedent is not answerable for a cause of action not created by the decedent; and if by a new promise the representative revives a debt already barred, or prolongs the life of one not yet barred, the contract is his own, and he is personally answerable, and, although he is not bound to plead the statute where he believes the debt unpaid, yet in the distribution of a fund creditors whose interests are affected can plead it.</p> <p>When a fund in the orphans’ court is not sufficient to pay all creditors each creditor has a right to oppose any other claimant, by showing the debt was paid or that it was barred by the statute of limitations.</p> <p>Decedents' estates — Executors and administrators — Bond—Statute of limitations.</p> <p>A creditor taking a bond from an executor or administrator discharges the old debt; the fact that the representative calls himself executor or administrator in the bond is mere surplusage, and he is chargeable only in his own right.</p> <p>A bond to a bank recited that “ J. and R. executors of C, deceased, are held and firmly bound ” unto the bank, and undertake that their successors in the trust shall be bound. It was further declared that the bond and warrant were executed to prevent the running of the statute against the estate of C. who was indorser for R. The condition of the bond was that if R. did not pay his debt to the bank the estate would continue answerable. The warrant was that if J. and R., executors, did not pay the notes of R. at maturity then any attorney was authorized to appear for them, their heirs, executors or administrators, at the suit of the bank, and confess judgment thereon against them, their heirs, executors and administrators. When the estate was settled more than six years after the death of C. there was not sufficient to. pay all the creditors, and one of them pleaded the statute of limitations against the claim of the bank. Held, (1) that the judgment entered upon the warrant was against the executors personally, and not against C.’s estate; (2) that the bond itself could only be construed as a promise that the executors would not plead the statute against the bank, when the assets were for distribution; (3) that a creditor could plead the statute against the bank, although the executors did not join in the plea; (4) that the action of the orphans’ court in disallowing the bank’s claim was not a collateral attack upon the judgment of the common pleas, inasmuch as the record showed that the judgment was not against the estate, but against the executors personally.</p>

<p>Appeal, No. 368, Jan. T., 1896, by the Commercial National Bank, from decree of O. C. Phila. Co., 'Oct. T., 1894, No. 261, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>Tbe facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 404, Jan. T., 1896, by plaintiffs,'from decree of C. P. No. 2, Phila. Co., Dec. T., 1895, No. 607, dismissing bill in equity.</p> <p>Bill in equity by stockholders against a foreign corporation alleging corporate mismanagement.</p> <p>Demurrer to bill.</p> <p>The averments of the bill and the grounds of the demurrer are stated in the opinion of the Supreme Court.</p> <p>The court sustained the demurrer and dismissed the bill.</p> <p>Hrror assigned was in sustaining the demurrer and in dismissing the bill.</p>

Appeal, No. 242, Jan. T., 1896, by tbe County of Lehigh, from judgment of C. P. Lehigh Co., June T., 1893, No. 25, on special verdict. Trespass to recover damages for injury to land. Before Al-bright, P. J. - From the record it appeared that the suit was originally brought against the Allentown & Bethlehem Rapid Transit Company alone, to recover damages for injury to plaintiff’s property by the construction of the approaches of a county bridge.

<p>[Marked to be reported.]</p> <p>Insurance — Life insurance — Assignment of policies— Gift — Delivery— Possession — Husband and wife.</p> <p>In an interpleader, between the executor and the widow of the insured, to determine the title to certain policies of insurance, it appeared that the insured in his lifetime had executed a regular assignment of the policy in writing, under seal, to his wife. The assignment and the policies were found in the insured’s safe after his death. Two witnesses testified that when the insured was on his death-bed he said that he had transferred his life insurance to his wife, and he requested his wife’s brother to get the insurance money as soon as possible, as his wife would need the money. He also stated that the policies were in the safe among his private papers. After his death the policies and the assignment were found in Iris office safe, in an envelope with his wife’s name indorsed thereon. Held, that the evidence was sufficient to submit to the jury with instructions that they should find for the widow if they found a delivery of the assignment or the policies.</p>

<p>Decedents' estates — Claims for services — Conditional gift — Implied contract — Family relation.</p> <p>A niece accepted a devise of a house from her aunt conditioned upon her providing an uncle, who had previously lived with her aunt, a home in the house as long as he lived. The niece had lived with her aunt and knew the age and the infirmities of her uncle. The uncle lived in the house until his death, and paid his niece the sum of $5.00 per week for his board. There was no evidence to show that there was any considerable change in the uncle’s condition after the aunt’s death. After the uncle’s death the niece claimed from his estate an additional $10.00 per week for services rendered to the decedent for two years and a half prior to his death. Held, (1) That as the niece had accepted the devise of the house upon the condition prescribed by her aunt’s will, a family relation was thereby created between the niece and. the uncle and she was therefore bound to show an express contract in order to sustain her claim; (2) that as there was no evidence of an express contract by the uncle to pay anything in addition to $5.00 per week the claim should be disallowed.</p> <p>Practice — Auditor's findings of fact and law — Review.</p> <p>Where an auditor'makes no distinct findings of fact or law, and his report is confirmed because the court is “unable to say the auditor has readied a wrong conclusion,” such confirmation is not entitled to the same consideration by the Supreme Court as it would be' if it rested on an approval of definite findings of fact and law made by the auditor.</p>

<p>Appeal, No. 600, Jau. T., 1896, by-defendants, from judgment of C. P. Delaware Co,, June T., 1893, No. 87, overruling exceptions to referee’s report.</p> <p>Exceptions to referee’s report.</p> <p>The case was referred to W. R. Bliss, Esq., as referee, wbo reported the facts to be as follows:</p> <p>On September 22, 1891, the city of Chester adopted the following ordinance:</p> <p>“ Ordinance for the grading, curbing and paving of both sides of Eighth street, from Barclay street-to Concord avenue.</p> <p>“ Section 1. The select and common council of the city of Chester do ordain, That the land owners on both sides of Eighth street, from Barclay street to Concord avenue, be and they are hereby directed to grade, curb and pave the sidewalks in front of their respective properties within thirty days after the first publication of this ordinance, in accordance with the lines and grades upon the official plan of the said city to be given by the city engineer, and upon failure of said land owners to hare said work done within the time specified, the commissioner of highways is- authorized and instructed to have the same done and collect the costs thereof by lien or suit as provided by law and ordinance.</p> <p>“ Section 2. The said paving shall be the full width 'of the sidewalk and the material used shall be the best quality of paving bricks, and the curb stones shall be such as are required by the fifth section of the ordinance of February 10, 1891,” etc.</p> <p>This ordinance was advertised in the newspapers designated for the advertising of ordinances during the year 1891, for the time required by law. William P. Thomson, who was the commissioner of highways at that time, gave to Mrs. Eyre, one of the defendants, who was the proper person to receive such notice, a partly printed and partly written notice which was in the following form:</p> <p>“ Chester, Pa., November 16th, 1891.</p> <p>“Sir: You are hereby notified and required to grade, curb and pave the sidewalk in front of your lands on Eighth street on both sides from Barclay street to Concord avenue in compliance with the ordinance of councils, approved 22d day of September, 1891, within ten days of the receipt of this notice, or otherwise the work will be done by this department and the costs thereof collected from you by lien or suit as provided by law.</p> <p>(Signed) “ William P. Thomson.</p> <p>“ To Mrs. J. P. Eyre.”</p> <p>This was the usual form of notice to property owners and was served more than thirty days after the first publication of the ordinance. The defendants did not comply with the requirements of the ordinance or of this notice and, on April 16, 1892, Mr. Thomson directed Michael Ross, the use plaintiff, to do the work, giving him the following written note :</p> <p>“ Oeeice oe Wm. P. Thompson, Comm’r oe Highways, )</p> <p>“ City Hall, Chester, Pa., April 16,1892. j</p> <p>“ Mr. Michael Ross : You are hereby notified and required to grade, curb and pave the sidewalk in front of the lands of Mrs. J. P. Eyre on both sides of Eighth street from Barclay to Concord avenue, in compliance with an ordinance of councils approved the 22d day of September, 1891.</p> <p>(Signed) “William P. Thomson.</p> <p>“ Commissioner of Highways.”</p> <p>Mr. Ross held a contract with the city for the year 1892, to do all the work of this character that might be required, at prices which were fixed by competitive bidding. Some time in the autumn of 1892 Mr. Ross, acting under the authority of the above letter from Mr. Thomson, set the curb stones, and graded and paved the sidewalk on the south side of Eighth street between Barclay street and Concord avenue, which is the work for which the lien now in suit was filed. There is no dispute as to the character of the work done, the kind or quality of materials used, or the prices charged. Before beginning the work Mr. Ross had the city engineer set the curb lines for him, and in the books in the engineer’s office the charge for that service is entered under date of October 1, 1892. After the completion of the work Mr. Ross measured it and handed a statement of it to J. Howard Cochran, a real estate agent of Chester, who kept his books for him. This statement with the prices charged, is entered in the books under date of October 20, 1892, and from it a bill was made out, dated October 21, 1892, and sent to Mrs. Eyre. The amount claimed in that bill was $869.81. The bill was not paid, and for the purpose of preparing a lien the city engineer was called upon to make an official measurement of the work, which he did, and from which he made out and gave to Mr. Ross the following bill against Mrs. Eyre:</p> <p>“Chester, Pa., Dec. 15,1892.</p> <p>“Mrs. J. P. Eyre,</p> <p>“To Michael Ross, Contractor, Dr.</p> <p>On the south side of Eighth street, between Pulton and Barclay streets, viz:</p> <p>Curbing, 474 feet, at .73, .... $346.02.</p> <p>Re-curbing,</p> <p>Paving, 604.39 sq. yds., at .75, . . . 453.29.</p> <p>Re-paving,</p> <p>Grading, 256.94 cubic yds., at .16, . . . 41.11.</p> <p>Surveyor’s Charges,..... 10.88.</p> <p>$851.30.</p> <p>“ Measured by E. H. Roberts, City Surveyor.”</p> <p>At the bottom of the printed form on which this bill was rendered were blanks for the approval of the bill by the commissioner of highways and the street committee of councils. These blanks were not signed. The defendants refused to pay tins bill, whereupon the city solicitor prepared the lien upon which this action is founded, and filed it on April 4, 1893, in the following form:</p> <p>“ City of Chester to use of Michael ' * Ross, Contractor, vs. “ Martha S. Eyre, Sallie P. Eyre, and Estate of J. P. Eyre, Jr., owners or reputed owners. > J</p> <p>Municipal Lien.</p> <p>“ The city of Chester files this claim, to the use of Michael Ross, contractor, against all that certain lot or piece of ground, with the buildings and improvements thereon erected, situate on the south side of Eighth street, in the city of Chester, aforesaid, and bounded on the north by the said Eighth street, on the south by Seventh street, on the east by Barclay street, and on the west by Fulton street, and against Martha S. Eyre, Sallie P. Eyre and estate of J. P. Eyre, Jr., owners or reputed owners thereof, for the sum of eight hundred and ninety-three dollars and eighty-six cents, being the cost of work done and materials furnished, together with a five per cent, penalty, for and about the paving and curbing of the sidewalks on Eighth street, in front of said lot of ground as follows :</p> <p>Curbing, 474 feet, at .73, $346.02.</p> <p>Paving, 604.39 sq. yds., at .76, 453.29.</p> <p>Grading, 256.94 cu. yds., at .16, 41.11.</p> <p>Surveyor’s Charges, 10.88.</p> <p>Penalty of five per. cent. 42.56.</p> <p>$893.86.</p> <p>“ The work was done and materials furnished in pursuance of law and the ordinances of the said city, the said owners or reputed owners having neglected or refused to do the same after due and legal notice and was completed within six months last past and duly assessed against said owners or reputed owners and said lot of ground.</p> <p>“Witness the hand of the city solicitor of the city of Chester aforesaid.</p> <p>(Signed) “ Orlando Harvey.</p> <p>“ City Solicitor.”</p> <p>Prior to September 22,1891, the Chester city councils passed two ordinances upon the subject of sidewalks, which are still in force. The first of these, approved January 6, 1890, and published on page 415 of the printed ordinance book, is as follows: “ Ordinance providing for the collection of the costs of paving or repairing sidewalks from the property owners:</p> <p>“Section 1. That from and after the passage of this ordinance it shall be the duty of any and all contractors who shall have hereafter paved or repaired any sidewalks in said city, under the instructions or directions of the proper committee of said council, to collect the cost of said work from the owner or owners of real estate abutting upon said sidewalk. And in case of the neglect or refusal of such owner or owners to pay for said work, then the said contractor or contractors shall be entitled to file a hen therefor and to prosecute the same in the name of the city to the use of said contractor or contractors, in the same manner as hens for such work are now by law recoverable by the said city.”</p> <p>The other of these ordinances was approved February 10, 1891, and is printed in the ordinance book at page 456. Sections 2 and 3, are as follows :</p> <p>“ Ordinance regulating the width of sidewalks, the curbing, paving, repaving and repairing thereof, and prescribing penalties for violations of its provisions :</p> <p>“ Sec. 2. That whenever the councils of the said city shall, by resolution or ordinance, direct the sidewalks or footways of any such street, lane or alley to be curbed or paved or repaved, it shah be the duty of the owner or owners of the lands abutting thereon and they are hereby required to cause said sidewalks or footways to be curbed and paved or repaved, the full width thereof, with such material and in the manner in said resolution or ordinance set out; and if any such owner or owners shall neglect or refuse to curb and pave or repave the said sidewalks or footways within thirty days after the publication first made of the resolution or ordinance requiring the same to be done, it shall be the duty of the commissioner of highways to cause the same to be done, and the cost and expense therefor shall be collected from said owner or owners by lien or suit, according to law.</p> <p>“ Sec. 3. That whenever any of the sidewalks or footways of the said city, or any part thereof, shall become out of repair, and need recurbing or resetting of curb or repaving, the commissioner of highways, by authority of the sidewalk committee, shall notify the owner or owners of real estate in front of whose respective properties said repairs are needed, to make said repairs forthwith, and if said owner or owners shall neglect or refuse to make said repairs within ten days after receiving such notice, it shall be the duty of the commissioner of highways to cause said work to be done, and the cost and expense thereof shall be collected from said owner or owners by lien or suit,. according to law. Provided, That said ten days’ notice shall be adjudged sufficient if left upon the premises with an adult, or in case of unimproved lands, if posted on the premises, or left with the agent or attorney of the owner or owners.”</p> <p>During the several hearings before the referee the attorney for the defendants offered to prove that while the ordinance of September 22, 1891, was pending in council, he tried to have it amended so as to exclude from its provisions the premises covered by the lien above set forth; and that failing in that, after the ordinance had passed, he entered into negotiations with the council’s committee on sidewalks, the result of which was an assurance given to him by the chairman of that committee and some of the members that the work in question should not be required until after notice should be given to him by the committee ; that no such notice was given by the committee either to him or to the defendants, and that it had been the custom in Chester for work of this kind to be done only after the sidewalk committee had notified the commissioner of highways to proceed. This testimony the referee excluded as irrelevant, for reasons which will be set forth hereafter. The exclusion of this testimony left but one question of fact to be decided, viz : Whether the. lien was filed within six months after the completion of the work. While the testimony upon this point is somewhat conflicting and reveals an inexcusable carelessness on the part of the city in preserving the evidence in support of such claims, the referee is of opinion that the facts shown are sufficient to sustain the lien.</p> <p>It appears that at the same time that this work was under way, Mr. Ross was doing a great deal of other sidewalk work in the same section of the city, part of it on this same street, and all of it within a few squares of the work. He testified that he could not give the exact date when any of this work was done, but that the work over which this suit arises was the last that he did. All the brick used in these several jobs was bought from Daniel Robinson, a brick maker, whose boobs show entries of charges against Mr. Ross for a large quantity of brick delivered in various places in that section of the city, the first of which under date of August 2d and the last October 20,1892. The entries of brick for delivery at Eighth and Fulton streets begin on September 27 and end on October 20. These are the only charges for brick delivered at the spot where this work was done; but paving was done at the same time on Fulton street, between Seventh and Eighth streets, and there are a large number of charges before October 1 for brick delivered at Seventh and Fulton. The curbstones used in this job were bought from George W. Lewis, whose books show that the last charge for curbstones was made on October 1. He testified that these stones were actually used in the work, as he saw them in place after the job was finished and could easily recognize them. None of the witnesses could say from memory whether the brick or stones were actually delivered to the places entered in the books, but said that the place of delivery was entered according to the instructions given by Mr. Ross when he gave the order and that the actual delivery was made by the teamsters whom they employed. Mr. Ross says that he was from three to five weeks doing this job, including one week when he had the men off upon another piece of work; that he did not begin the work until after the curb stakes had been set by the city engineer, E. H. Roberts, and that his practice was to measure such work as this as soon as it was completed and give the statement to Mr. J. H. Cochran so that it could be entered at once in his boobs and a bill be made out. The books in the city engineer’s office show that the fee for driving the stakes was charged up on October 1, and the entry in Mr. Ross’s books of the measurement made by him of the completed work is under date of October 20. Mr. Roberts, the city engineer, has no recollection of the date of driving the stakes, but says that the rule was to make such entries immediately after the work was, done and usually on the same day. There is no reason to question Mr. Ross’s statement that this job was the last piece of work of the kind that he did in that section of the city in the autumn of 1892. If that be true, then the facts that the curb stakes were set on or before October 1, that the brick charged as delivered at Eighth and Fulton streets is entered under dates beginning with September 27 and ending October 20, that the last charge for curbstones is under date of October 1, and that the charge for the completed work was entered in Mr. Ross’s books on October 20, appear to the referee to be sufficient— until controverted by equally strong testimony — to establish the fact that the date of completion of the work was within six months prior to April 4, 1893, the date of filing the lien.</p> <p>To controvert this testimony the defendants have produced Mrs. Eyre (now Mrs. Knowles) who says that in 1892, as now, she was living in Philadelphia; that she was in Europe while this work was being done; that she returned to Philadelphia on October 5, 1892, and on that day met her nephew, Edmund Pennell, with whom she had some conversation with reference to this work; that as the result of that conversation she came to Chester on October 8 and visited the premises, and that she found the work then finished, the pavement sanded and all the débris removed. She says she was in Chester twice during that month, but is certain that it was on the first visit that she made this examination. Edmund Pennell corroborates her testimony as to the date of his conversation with her and says that the information he gave her was communicated to him by his father, Charles D. Pennell. The latter says that he kept an eye on the work that was being done in front of his sister’s property during her absence in Europe, and that the work now in dispute was finished before her return.</p> <p>It is singular that this defense was not set up at an earlier stage of this case, which has now been under way for several years, but the facts may not have been known to the counsel for the defendants and they are entitled to the full benefit of the evidence.</p> <p>It is clear that if this work was in fact the last work done in that section of the city, it was not finished before October 4, because after that date there was almost daily deliveries of brick at Eighth and Fulton streets, up to the 20th, amounting to a total of 39,500 brick. If the direct testimony of Mr. Ross upon this point be set off against the direct testimony of Mrs. Eyre to the effect that she remembers seeing the completed work on October 8, the purely circumstantial evidence seems to the referee to give the weight of credibility very decidedly to the plaintiffs’ contention that the work was not completed before October 4. At the most, the direct testimony offered by the defendants goes back only to October 8.</p> <p>The defendants attack this municipal lien for the following reasons : (1) Because it does not set out on the face the time when the work in question was completed, merely alleging that it was done within six months last past. (2) Because it was filed against an entire square of ground, each of the sides of which is liable to a similar lien for work that may be done in front of it. (3) Because the work was not done in the manner expressly provided by the ordinances of the city which are above set forth. (4) Because the lien includes a penalty in addition to the contract price of the work as fixed by the competitive bidding for the year 1891.</p> <p>The referee overruled'the objections to the lien and reported in favor of the plaintiff for $1,025.81. Exceptions to the referee’s report were dismissed by the court and judgment entered for the plaintiff.</p> <p>Errors assigned were in dismissing exceptions to referee’s report and entering judgment for plaintiff.</p>