Volume 182 — Pennsylvania State Reports

<p>Appeal, No. 539, Jan. T., 1896, by plaintiffs, from decree of C. P. Lebanon Co., Equity Docket, 1896, No. 5, dismissing bill in equity.</p> <p>Bill in equity by assignees for the benefit of creditors to restrain a creditor from tbe prosecution of suits in Georgia and Florida to subject property to the payment of his debt.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below in an opinion by Ehbgood, P. J., holding that any property which has not passed by the assignment to the as signee, can be subjected by any creditor of the assignor, domestic or otherwise, to the payment of his debt, dismissed the bill.</p> <p>Error assigned was decree dismissing bill.</p>

<p> Partnership —Definition of partnership. </p> <p>A partnership is a contract relation between persons who have combined their labor or skill in a joint enterprise or business for the purpose of joint profit.</p> <p>Partnership — An agreement construed not to constitute a partnership— Accounting — Equity.</p> <p>On a bill in equity for a partnership accounting, it appeared that the plaintiff and the three defendants had entered into a contract in writing with B., whom they desired to help in starting business, by which they agreed to employ B. and appoint him agent, and to furnish him $2,000. They were to be the owners of the property purchased by him, and the property which he manufactured. B. was to be paid out of the profits solely, and to be responsible for all losses. His employers were to have power to annul the agreement at any time. The testimony of all the parties was in effect that no partnership was intended to be formed. Plaintiff sold a large number of cattle, and, after B.’s insolvency, contended that the defendants should account to him as a partner for a proportionate share of the purchase money. Held, (1) that the agreement created no partnership either in fact or in law as between the parties themselves; (2) that even if the agreement had constituted a partnership, plaintiff’s relation to the partnership was merely that of a creditor; his remedy was at law, and not by bill in equity for an account.</p>

<p>Public officers — County officers — Treasurers—Fees—Compensation—j Commissions on license fees.</p> <p>Salaried county officers can appropriate to their own use no fees for the performance of any duty east upon them by law.</p> <p>Under article 14, section 5, of the constitution of 1874, and the Act of March 81, 1876, P. L. 13, the treasurer of a county is not entitled to retain commissions for services rendered by him to boroughs and townships in collecting their shares of the liquor license. Such commissions belong to the county.</p>

<p>Corporations — Municipal corporations — Water companies —Acts of April 19, 1853 and April 29, 1874 — Boroughs.</p> <p>Where a borough is specially authorized by the legislature to subscribe to the stock of a corporation organized to supply the borough with water, with a right to appoint a certain number of the managers, but without the right to participate in the election of the other managers, the works of such company are constructed by the municipality within the meaning of the general corporation Act of April 29, 1874, P. L. 73, which forbids companies organized under that act to construct waterworks where such works have been already constructed by the municipality itself.</p> <p>Section 12 of the Act of April 19,1853, P. L. 578, incorporating the Car-lisle Gas and Water Company, provided that if the borough of Carlisle should subscribe and take one third or more of the capital stock of .the company, the borough should have the right annually to “ appoint three managers of the said company, and in that event the election of all other stockholders shall be confined to the president and five managers, and other stockholders shall alone have power to vote at elections and meetings.”</p> <p>The borough subscribed to one third of the stock, and continued to appoint three managers for more than forty years, without participating in the election of the other managers. For eighteen years the company was compelled to expend all of its net earnings in improving and extending its works, so that no dividends could be paid. The borough’s representatives always took an active part in the management and the extension of the plant. A corporation organized under the act of April 29, 1874, claimed the right to supply the borough of Carlisle with water. Held, that the works constructed by the Carlisle Gas and Water Company were municipal waterworks within the meaning of section 34 of the act of 1874 which forbids a company organized under that act “ to construct gas or water works within the limits of any municipality when gas or water works shall have been constructed by said municipality, without the lawful consent of the authorities thereof: ” White v. Meadville, 177 Pa. 643; and Metzger v. Beaver Falls, 178 Pa. 1, followed.</p>

<p>Promissory notes — Negotiability—Delivery—Indorsement of partial payments.</p> <p>Indorsement of payments on the back of a promissory note, made after the date of the note, but before its delivery, do not destroy the negotiability of the note.</p> <p>A negotiable promissory note dated July 8, and signed by fifteen persons, had indorsements on it of partial payments dated July 11, made by ten of the signers. The note was finally delivered on July 13. Held, that the indorsements did not destroy the negotiability ol the note, inasmuch as the amount due, although not expressly stated, could be ascertained with mathematical certainty.</p>

<p>Ejectment — Trusts and trustees — Executors and administrators.</p> <p>In an action of ejectment it appeared that the land in controversy had been originally owned by B.; that before B.’s death his son, T., became the owner of the land, B. holding judgments which were a lien upon it; that after B.’s death, another judgment creditor of T. issued execution, and the land was advertised to be sold by the sheriff. The defendant offered testimony tending to show that certain of the heirs of B., wishing to retain the land in the family, entered into an agreement by which W., B.’s executor, was to bid in the land which was to be free from the lien of B.’s judgments in which all his heirs had an interest; and the interest of the heirs in the judgments was to be thereafter represented by the land; that the heirs agreed to furnish what money should be required in addition to the judgments, and W., B.’s executor, was to bid in the land. W. bought the land at the sheriff’s sale. The purchase money was furnished by P., one of B.’s children, and the title was made to W., who gave P. a receipt showing that the money had been furnished by P. solely, and not by W. or by B.’s estate. P. went into possession of the land, and continued in undisturbed possession for eight years, treating the land as the property of himself aud his brothers and sisters. He never paid rent to W., and he purchased at’private sale the interests of two of his brothers. Eight years after the sheriff’s sale W., as executor, sold the land at public sale to the plaintiff, who had notice of the interests of B.’s heirs. There was evidence that the motive which prompted W. to sell the land was resentment against one of B.’s sons. Held, (1) that if W. bought the land at the sheriff’s sale as executor, the land continued personalty for purposes of distribution under the will, and the plaintiff took a good title at the executor’s sale; (2) that if W. bought for the heirs with their money and judgments, in pursuance of an agreement with them, then he was a trustee for them, wholly independent of the will, and they having the whole beneficial interest, he had no authority to sell without their consent; (3) that it was for the jury to determine whether W. bought the land as executor or as trustee for the heirs.</p>

Appeal, No. 502, Jan. T., 1896, by plaintiff, from judgment of C. P. Berks Co., Oct. T., 1895, No. 101, on verdict for plaintiff. Held: the franchises and property of the plaintiff, together with returns made by the plaintiff to the department at Harrisburg. All this testimony was presented to you to give you data and means of ascertaining what is the proper and just compensation to be paid plaintiff for the taking of this road.

<p>Principal and surety — Building contract — Novation—Judgment—Opening judgment — Discharge of surety.</p> <p>On a proceeding to open a judgment entered upon a warrant of attorney accompanying a bond, it appeared that F., one of the defendants, had had a building contract with plaintiff, and that the other defendants had been his sureties in this contract. Before the building was completed it was ascertained that F. would be in default, and that liens would be entered. Upon the application of the sureties, plaintiff advanced the money to make good F.’s default, and the sureties on the building contract became the sureties upon the bond given to secure the advances. Subsequently judgment was entered upon the warrant accompanying the bond. The sureties claimed that misrepresentations had been made to them by the plaintiff to induce the execution of the bond; that the plaintiff had failed to retain the ten per cent of sums due F. as the building progressed, under the terms of the building contract. One of the sureties also claimed that plaintiff had released the real estate of the other surely. It did not appear, however, what effect such a release had upon the other surety’s ability to respond to the judgment. Therewas.no sufficient evidence of misrepresentations by plaintiff. Held, (1) that it was too late, after the settlement of the building contract, to complain that the ten per cent had not been retained; (2) that the case should be remitted to afford an opportunity to investigate and ascertain whether the value of the right of contribution against the surety released had been destroyed or seriously impaired.</p>

Appeal, No. 12, Jan. T. 1897, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1894, No. 64, on verdict for plaintiff. Assumpsit to recover a balance of proceeds of two policies of life insurance.

<p>Appeal, No. 63, Jan. T., 1897, by plaintiff, from judgment of C. P. Bradford Co., Sept. T., 1892, No. 633, on verdict for defendant.</p> <p>Assumpsit on a policy of fire insurance. Before Dunham, P. ,T.'</p> <p>The court charged as follows:</p> <p>The action which you have been sworn to try is an action of assumpsit brought by R. Freedman against the Providence Washington . Insurance Company of Providence, Rhode Island. It is founded upon an insurance policy issued by that company to R. Freedman upon his stock of goods in his store situated at Laceyville. [The evidence in this case as to the procuring of the insurance policy at the time it was procured, and the representation upon which it was procured from the company by its agent, is entirely uncontradicted, and therefore it is for the court to say to you that the evidence establishes the fact that when this insurance policy was procured from the Providence Washington Insurance Company it was procured upon the representation that R. Freedman was a man living in the borough of Athens and doing business there, when the fact is that R. Freedman was a married woman. We say to you that this is such a fraud as vitiates this policy, and that your verdict must therefore be for the defendant, and we therefore direct you to render a verdict in favor of the defendant.]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was charge of the court as above quoting it.</p>

Appeal, No. 582, Jan. T., 1896, by William H. Lamed et al., from decree of C. P. No. 4, Phila. Held: does not settle the question of its present liability as land to the lien of a judgment.” And the learned justice further said: “ Moreover, of what the debtor’s share shall finally consist as to realty or personalty is and must remain entirely uncertain and contingent until after the death of the life tenant, when the trustees are to…

Appeal, No. 608, Jan. T., 1896, by defendant, from judgment of C. P. No. 2, June T., 1895, No. 592, on verdict for plaintiff. Trespass for personal injuries to plaintiff, which were alleged to have been caused by the fall of a gate, not properly secured, in a building adjoining a public sidewalk. Before PennyRACKER, P. J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 24, Jan. T., 1897, by Frederick Vietor et al., from order of C. P. No. 1, Phila. Co., June T., 1891, No. 863, dismissing exceptions to auditor’s report.</p> <p>Exceptions to report of auditor, Frank L. Lyle, Esq.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 5, Jan. T., 1895, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1898, No. Ill, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Biddle, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged as follows :</p> <p>This action is brought on behalf of Emanuel Fineburg against the Second and Third Streets Passenger Railway Company to recover damages for injuries it is claimed he suffered by the negligence of this company. These actions are familiarly termed actions of negligence, which is a very good name for them, because that is the foundation of the whole proceeding. It is not enough to show a painful accident has happened, you must go further; you must show this accident was caused in some way by the negligence of the person you accuse of having inflicted it upon you. Of course, the streets are the highways of the commonwealth of Pennsylvania, which everybody has a right to use with ordinary and proper discretion. This company has the right of way because it is unable to turn out, being fastened to one track; but it is obliged to conduct its business with due care and consideration toward the traveling public and everything connected with the business that necessarily arises in a large city.</p> <p>Of course, there is a large class of accidents where nobody is to blame. It is just the same as if you were driving in a wagon and a child ran into your horses and was run over; you could not avoid running over the child, and therefore the accident is not caused by any fault of yours. You are just driving your horse along with ordinary care, and this thing comes upon you suddenly and without warning; the child is injured, yet you cannot be blamed. Therefore you come down to the question in this case of what negligence this company, through its agents, the conductor and driver of the car, has been guilty of. The negligence that has been charged in this case is that this child was playing “ hide-and-seek ” in the street, and in endeavoring to run across the street he stumbled, and that he fell down such a distance away from this car that the driver of the car, if he had been attending to his duties, which he is bound to do, could have stopped his car in time to avert the accident. The driver of a car is not supposed to have his attention diverted to other matters; his attention has to be confined almost exclusively, with very few exceptions, to the exact business in which he is engaged. It is for him to look ahead and see that the track is clear, and if anybody is bn the track to slack up and prevent doing them any injury. It is alleged that this driver at the time, according to the testimony of Mr. Rosenberg, was talking to some one on the platform with him, although this child, it is said, fell down a sufficient distance from this car to enable the driver to stop if he was attending to his business, and that the car ran over the child when it might have been avoided by due care on his part. That is what the plaintiff contends. That the child was injured nobody denies, and that it was injured by this ear nobody denies; the only question is as to the negligence. Both parties have gone over the testimony, which is very short, and I do not think it is worth while for me to read it to you. There is a contradiction in the testimony of the witnesses which you must try to reconcile. Mr. Rosenberg, if you credit his testimony, undoubtedly establishes a case which in law would be negligence. Mrs. Paynter, on the other hand, said she was looking out of the window for her son, who was playing about there, and she saw this boy run from one side of the street, facing this car, apparently, having his hands, as I understand, upon the car, and that he ran by the side of the car, stating that it was not the front wheel that ran over him, but the hind wheel. If that is the view you take of the fact, it would have been impossible for the driver to have known anything about it, as she contends the head of the car had passed when the boy ran to the side of it, and as he reached the car his foot got under the hind wheel. Other arguments have been produced to you by the learned counsel for and'against the different statements and theories as to the manner in which this injury was sustained. That is a question entirely for you; it all depends upon what view you take of the evidence in this case. . If you take the evidence as sworn to by Mr. Rosenberg it will be sufficient to establish negligence. On the other side, taking Mrs. Paynter’s story, I do not see how negligence can be sustained, because there was no opportunity of seeing the boy, or of knowing he was in the place where he was hurt.</p> <p>In regard to the question of damages in this case, the law allows what they call compensation, and in estimating what compensation, if you think any should be given in this case, it is for you to say what would be a fair and adequate- compensation. The child is badly injured, and has the right to be compensated for the pain and suffering connected with the nature of the wound, and also for the injury he has sustained in his future inability to possess the same command over his limbs that he would have had this accident not happened. It is for you to consider these things, and what would be a fair and adequate compensation.</p> <p>These cases are reduced to a matter of business, and you must consider them from a business point of view. Some juries get excited, apparently, and give anything at all that their kind hearts induce them to give. They look at it in the light of “ What would you take to have your leg cut off ? ” That is not a fair test, and you have no right to appeal to yourselves in that way, for I suppose none of us would be willing to incur an injury of that kind, and you would be liable to say, “ I would not take the risk for a million dollars,” but after the injury you would think a moderate sum might compensate you for the injury, although to your mind nothing would compensate you beforehand.</p> <p>Mr. Léx: Your honor has stated in your charge that Rosenberg said the driver was talking to a man on the platform with him; will you kindly remind the jury that two witnesses contradicted him ?</p> <p>Judge Biddle (addressing the jury) :</p> <p>I do not mean to say that Mr. Rosenberg was not contradicted by other witnesses ; I picked out him and Mrs. Paynter as examples on both sides. I simply said, “ If you believe his statement to be a correct one, that would make a case for the jury to decide upon.” Of course, if you believe that was not true, if you believe the driver was not talking, of course Mr. Rosenberg’s evidence would be of no value, that is, if you do not believe it.</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p> <p>Errors assigned among others were (3) in failing to remind the jury (when requested to do so) of the fact of the testimony of the witness Rosenberg as to the alleged act of negligence being contradicted by at least two witnesses; (4) in charging the jury (after a request had been made by defendant’s attorney) as follows : “ I picked out him (meaning Rosenberg) and Mrs. Paynter as examples on both sides; ” (6) in failing to comment upon any of the testimony of the witnesses in the case, except that of Louis Rosenberg and Mrs. Paynter, to tell what the substance of the other testimony was, or to refer to the contradictions, the weight of the testimony, the manner or interest of the several witnesses, and the like, after having commenced to do so by referring to the two witnesses above mentioned; (7) because the court below in charging the jury gave an undue prominence to the plaintiff’s case and minimized that of the defendant.</p>

<p>Negligence — Evidence— Contributory negligence.</p> <p>In an action against a street railway company to recover damages for personal injuries resulting to plaintiff, a woman, from her falling from an open street car, it appeared that at the time of the accident plaintiff was riding in an open summer car with seats running lengthwise across the car. Some time previous to the accident the car was running rapidly, and, at a point two hundred and thirty feet from where the accident occurred, it collided with a cart and mule, but at the point of the accident it was under control and going at a moderate speed. Witnesses for the plaintiff testified that they saw her fall from the car, but gave no evidence of any act or omission which induced her fall. The uncontradicted testimony of witnesses for the defendant was, in effect, that at the time of the accident plaintiff was standing at the end of the seat, with a market basket on her arm, although she had been warned to keep her seat. Held,, (1) that there was no evidence of defendant’s negligence; (2) that plaintiff was at least guilty of contributory negligence; and (8) that binding instructions should have been given for the defendant.</p>

<p>Negligence — Master and servant — Contributory negligence.</p> <p>The duty of an employer is to provide his workmen with a safe place in which to work, and suitable tools, and to see that any dangers peculiar to their use are fully made known to the workmen. He has a right to rely on the exercise of common prudence by his employees in the selection of materials from a common stock provided for them, and in the use and care of the tools with which their work is done. A workman is bound to take notice of an obvious danger and cannot be required to continue at work in a dangerous place.</p> <p>In an action by a workman against his employer to recover damages for personal injuries, it appeared that the plaintiff, who was an iron worker, was at the time of the accident engaged in raising a bloom from a pit, and loading it upon a truck. The bloom was clasped by bitts while it was being lifted and carried to the truck. One of the bitts slipped, allowing the bloom to fall. Plaintiff alleged that he sprang backwards to avoid the falling bloom, and thus came in contact with a “ round ” of iron, and some scrap iron lying near it, which caused him to fall, and before he could escape the bloom struck and injured him. These articles had been improperly allowed to lie on the floor, although the defendant had provided a place for their storage. Plaintiff had for two or three years worked in the room, and nearly in the same place where the accident occurred. Plaintiff also alleged that the bitts were too smooth to grasp the bloom with sufficient firmness to support its weight. The evidence showed that the defendant kept a supply of sharp bitts on hand, and that the plaintiff knew this fact and the place where they were kept, and that it was his duty to discontinue the use of a bitt when it became smooth, and replace it by a sharpened one. Held, (1) that the defendant having provided a proper place for plaintiff to work, if such place became unsafe by the neglect of the workmen to remove rubbish and tools, the negligence was not that of the employer, but of the employee; (2) that plaintiff was guilty of contributory negligence in using a smooth bitt when he could have procured a sharpened one; (3) that binding instructions should have been given for defendant.</p>

Appeal, No. 44, Jan. T., 1897, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1896, No. 354, on verdict for plaintiff. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. Defendant’s points and answers thereto among others were as follows: „ 1. That the burden of proof is on the plaintiff to prove that the defendant company was operating the railroad at the time of the accident.

Appeal, No. 76, Jan. T., 1897, by Stephen P. M. Tasker, from decree of O. C. Phila. Co., Jan. T., 1894, No. 325, overruling exceptions to adjudication. Exceptions -to adjudication. Thomas T. Tasker died January 27,1892.

<p>Trusts and trustees — Commissions—Allowance of commissions on principal of trust fund before distribution.</p> <p>While as a general rule commissions will not be allowed to a trustee on the principal of the trust fund until the termination of the trust or of the trustee’s relation to it, there may be circumstances of an unusual and extraordinary character which will require a departure from the general rule. Thus where a trustee has managed an estate during a long period of years without claiming commissions in accounts filed from time to time, and by great care and skill through judicious sales and investments has increased the fund by many thousands of dollars, the court will allow him commissions on the principal of the trust fund, before final distribution or the termination of the trust relation.</p>

<p>Will — Vested and contingent estates — Devise.</p> <p>Testator by his will gave to his two grandsons J. and G., “at the death of their mother, H.,” a certain farm, describing it. He further directed as follows : “ I also further ordain and bequeath that my daughter H. shall have, hold and possess the whole of the above farm, with all the rights and title I now possess, during the term of her natural life; then and not till then shall my grandchildren, J. and G. aforesaid, possess and enjoy the same j and furthermore, if in case either of my grandchildren, J. and G., shall die before their mother, or before they arrive at the age of twenty-one years, then the one living shall possess the whole of the above farm, and in case both die before their mother, or before they arrive at the age of twenty-one years, leaving no issue, then I ordain and bequeath the whole of the above described properly,” etc. J. died before his mother, at the age of thirty-five years, leaving a widow to whom he was married after he came of age, and children. H. subsequently died, and her death was followed by that of G. who left a widow and children in possession of the farm. Ejectment was brought by the widow and children oí J. Held, (1) that J. took a vested estate in remainder subject to his mother’s life estate; (2) that plaintiffs were entitled to recover one half interest in the property.</p> <p>Misjoinder of parties first urged on appeal — Practice, S. G.</p> <p>Where no question is raised in the court below, misjoinder of parties cannot be urged on appeal, after a trial on the merits.</p> <p>Ejectment — Sheriff's return — Practice—-Possess-ion.</p> <p>In an action of ejectment where the plaintiff’s writ averred a wrongful detention of possession from plaintiffs, and the sheriff returned the writ as served, and the defendants pleaded the general issue, the plaintiffs are not bound to prove affirmatively actual ouster, but they may stand on the presumption which the act of assembly raises in their favor by the sheriff’s return..</p>

<p>Appeal, No. 340, Jan. T., 1896, by defendant, from judgment of C. P. Clearfield Co., Feb. T., 1896, No. 146, on ease stated.</p> <p>Case stated to determine tbe liability of tbe defendant to pay certain costs, as follows:</p> <p>1. Frank Smith, tbe plaintiff above named, since tbe early part of January, 1895, bas been, and still is, tbe sheriff of Clear-field county, Pa.</p> <p>2. Tbe defendant is a railroad company, organized under the laws of Pennsylvania, under tbe provisions of tbe act of tbe general assembly, of April 4, 1868, P. L. 62, and tbe acts supplementary thereto, to exist for tbe term of nine hundred and ninety-nine years, according to tbe articles of association filed and recorded in tbe office of tbe secretary of tbe commonwealth of Pennsylvania, on tbe 11th day of July, A. D. 1892, and patent issued thereon tbe same day.</p> <p>3. Tbe purpose of said company was to construct, maintain and operate a railroad for public use, in the conveyance of persons and property between Janesville, in Clearfield county, and Pbilipsburg, in Centre county, Pa. Tbe latter place being in tbe border of Centre county, and extending to tbe Clearfield county line.</p> <p>4. Tbe railroad of said company was commenced, and part of it made and used, before tbe year 1895, and its use bas been continued since that time. All of it is in Clearfield county, Pa. Tbe part in operation begins in Clearfield county opposite Pbilipsburg, near tbe line of Clearfield and Centre counties, and continues ten miles, more or less, toward Janesville, on the route located for said railroad.</p> <p>5. Tbe said company never bad an office in Clearfield county, neither do its chief officers reside there. It's general or principal office was and is in tbe city and county of Philadelphia, in which city its president, Samuel P. Langdon, resides. In August and September, 1895, at tbe time of tbe alleged ser vice-of the executions hereinafter mentioned, said Samuel P. Langdon, president of said company, had his office at room No. 915 Drexel building, in the city of Philadelphia, where the general business of said company was transacted by its chief officers, and which, for the purposes of - this suit, is admitted to have been the general or principal office of the company at that time.</p> <p>The company also had and has an office at Philipsburg, Centre county, Pa., at which very much of the business, relating to the construction of said railroad in Clearfield county, was transacted.</p> <p>6. In the year 1895, before the last of August, there were inter alia, thirty-two judgments obtained or entered in the court of common pleas of Clearfield county, Pa., in favor of various plaintiffs against the said Altoona & Philipsburg Connecting Railroad Company. On each of these thirty-two judgments there' was an execution writ of fieri facias issued returnable to September term, 1895. A list of said judgments, and executions to September term, 1895, is hereto annexed and made part of this case stated — showing, also, in each case, the disputed costs claimed by P. Smith as sheriff, from the said railroad company, defendant, and for which said defendant denies any legal liability.</p> <p>7. That the said Frank Smith as sheriff of Clearfield county, having the said thirty-two writs of fi. fa., returnable to September term, 1895, in his hands, went to the city of Philadelphia, and on August 81, 1895, about 11:30 A. M., during business hours, went to room No. 915 in the Drexel building, in the city of Philadelphia, a distance of two hundred and sixty-six miles direct, from the courthouse of Clearfield county, and Samuel P. Langdon, the president of said company, being absent, then and there made demand for payment of each of said writs, debt, interest and cost, on George B. Thatcher, chief clerk of said office, but payment was not made upon said demand.</p> <p>Afterwards, on the 2d day of September, 1895, during business hours, about 2:30 P. M. of said day, with the same thirty-two writs of fi. fa. in his hands, the said sheriff went to the office of the defendant company in Philipsburg, Centre county, Pa., a distance of about seventeen miles direct from Clearfield, and, the president of said company being absent, then and there demanded of George M. Case, general superintendent of said railroad, payment of the debt, interests and costs on each of said writs ; but payment was not made upon said demand.</p> <p>A copy of the return, as amended, made by said sheriff, to each of said thirty-two writs of fi. fa. is hereto annexed and made part of this case stated.</p> <p>8. That for said demand of payment in Philadelphia, with mileage in going and returning, the said Frank Smith, as sheriff, made the charge, and claims to have and collect from the said defendant upon each of said thirty-two writs, the sum of $1.00 for service of the same, and of $31.92 as mileage, making, upon all the said writs, a total for service in Philadelphia of $1,053.44.</p> <p>Also, for the said demand of payment in Philipsburg, Centre county, Pa., with mileage, the said Smith as sheriff makes the further charge of $2.00 on each of said thirty-two writs, which he claims the right to demand and collect as costs from the said defendant, making for the services of said writs at Philips-burg the further sum of $64.00.</p> <p>The above makes a total amount of $1,117.44 claimed by the said sheriff as costs, which he is entitled to demand and collect from the said defendant, and in regard to which the defendant denies liability.</p> <p>9. Afterwards in 1895 alias executions were issued on said judgments, having indorsed thereon the foregoing disputed costs, as well as other costs which were not disputed. On application of defendant to the court to have said disputed costs set aside as a charge against the said defendant, a rule to show cause, etc., was granted by the court. Afterwards the court made an order staying and restraining, for the present, the further execution of writs for the said disputed costs, upon payment being made by the defendant, of the debt, interest and uncontested costs, upon said thirty-two judgments and executions. Such payment was then made by the defendant, leaving unpaid only the aforesaid disputed costs, and the rule to show cause still pending. Afterwards, December, 1895, the court made a further order, allowing the said Frank Smith, sheriff, and said defendant, the Altoona & Philipsburg Connecting Railroad Company, in order to have the right of said sheriff to demand and collect said disputed costs, from said defendant, legally determined in one suit, to make a case stated for trial in the usual way, reserving the right of plaintiffs in said thirty-two judgments to appear and be heard on the one side or the other in such case stated. The said plaintiffs in said judgments, or their attorneys, to have due notice of the same. A copy of said order of court is hereto attached and made part of this case stated.</p> <p>If the court be of opinion that under the facts presented, the said Frank Smith is legally entitled to demand and collect from the said Altoona & Philipsburg Connecting Railroad Company the aforesaid claim, amounting to $1,117.44, or any portion of the same, then judgment to be entered for the plaintiff, Frank Smith, for the said sum, or for such portion of the same, as, in the opinion of the court, the said plaintiff is entitled to demand, and collect from the said defendant. But if the court be of opinion that the plaintiff, Frank Smith, is not legally entitled to demand and collect from said defendant any portion of the said disputed costs, then judgment to be entered for the defendant.</p> <p>The court in an opinion by Savidge, P. J., of the 8th judicial district, specially presiding, entered judgment for the plaintiff on the case stated.</p> <p>Error assigned was in entering judgment for the plaintiff on the case stated.</p>

Appeal, No. 149, Jan. T., 1897, by defendant, from judgment of C. P. Luzerne Co., Jan. T., 1898, No. 122, on verdict for plaintiff. Assumpsit on a policy of life insurance. Before Lynch, J. At the trial the plaintiff testified that he had performed services for the assured, who was his sister, for about twenty years; that he had expected to be paid although he had kept no account of them.

Appeal, No. 578, Jan. T., 1896, by William Dorris, executor, from decree of O. C. Huntingdon Co., on citation to executor to pay collateral tax. Citation to executor to pay collateral inheritance tax. The facts appear by the opinion of the Supreme Court. Error assigned was decree against executor.

<p>Appeal, No. 127, Jan. T., 1897, by defendant, from judgment of C. P. Cumberland Co., Feb. T., 1897, No. 284, on case stated.</p> <p>Case stated to determine the title to real estate, as follows:</p> <p>On October 30, 1888, Frederick J. Sheeley made his last will and testament, which was duly probated in the register’s office of Cumberland county on March 10, 1888.</p> <p>Among the provisions of the said will were the following: “ And to my two sons Samuel Sheeley and William H. Sheeley I sell my homestead farm for seven thousand dollars and of the same, I give bequeath and cancel for my two sons, Samuel Sheeley and William H. Sheeley, four thousand dollars as their share and portion of my worldly goods and estate. . . .</p> <p>“And any money that any of my sons owes me or my estate they shall pay to me or my estate, but forever excepting the part or parts, portion or portions, I give and bequeath to them out of the several farms mentioned. And on the several sum or sums of money owing to me or my estate the said sons are to pay no interest or any money owing by them to me or my estate after my demise unless payment or payments are unreasonably delayed. It is my will and desire that my real and personal estate shall be worked and carried on and be conducted in my name until all my honest and lawful debts are paid and when all my debts are paid, then my four sons, Samuel Sheeley, William H. Sheeley, Andrew Sheeley; and Emanuel Sheeley shall pay or cause to be paid to my four daughters the following moneys, or legacies. To Elizabeth Fetrow and Catharine Fisher each one of them two hundred dollars yearly until they have paid to each one of them, the said Elizabeth Fetrow and Catharine Fisher, two thousand dollars taken together making four thousand dollars, the same being their share and any portion of my worldly goods and estate, and the same to bear no interest till paid, if paid iñ reasonable time and according to my will.</p> <p>“ And when Elizabeth Fetrow and Catharine Fisher are fully paid, then my four sons, Samuel Sheeley, William H. Sheeley, Andrew Sheeley and Emanuel Sheeley shall pay in like manner my other two daughters Anna Sheeley and Barbara Sheeley each two hundred dollars yearly until a thousand dollars is paid to each one of them, the said Anna and Barbara Sheeley together making two thousand dollars. . . .</p> <p>“ It is further my will and I do declare it that Samuel Sheeley shall work the farm that I give to him and William H. Sheeley and farm the same until my four daughters shares are fully paid, provided nevertheless that the said Samuel Sheeley shall use due diligence in performing his duty on said farm to the interest of himself and William H. Sheeley and to pay his own and the said William H. Sheeley’s part of the legacies to my daughters and the said Samuel Sheeley to pay all necessary repairs on said farm and the taxes on the same until the legacies or share of my four daughters are fully paid, and after the legacies or share of my four daughters are fully paid the said William H. Sheeley to receive the proceeds of the said half of said undivided farm but forever prohibited from selling the said half or any part of said undivided farm forever. Nevertheless the said William H. Sheeley to receive the proceeds during bis natural life and when the children or legal heirs of William H. Sheeley come to the age of twenty-one years or more, then the said half of said farm to belong to the children or legal heirs of the said William H. Sheeley forever.”</p> <p>A copy of the whole of said will is hereto attached and made a part of this case stated.</p> <p>On December 10, 1896, William H. Sheeley, the plaintiff, entered into an article of agreement with J. R. Neidhammer, the defendant, for the sale of his one undivided half interest in the farm so devised to them, Samuel Sheeley and William H. Sheeley, the said William H.' Sheeley agreeing to execute a deed to the defendant in fee simple clear of all incumbrances and with clause of general warranty. The price to be paid for the interest of the plaintiff in said farm is $7,500 upon the execution and delivery of deed and delivery of the premises. A copy of said article of agreement is hereto attached and made a part of this case stated.</p> <p>The deed as provided for in said agreement has been executed and tendered to the defendant, as well as possession of the farm, but the payment of the consideration has been refused because it is insisted upon by the defendant, J. R. Neidhammer, that, under the will of Frederick Sheeley, in the land devised to William H. Sheeley the latter took but a life interest in the same, and not a fee.</p> <p>It is also a fact that the $4,000 directed to be paid by William H. Sheeley as provided for in the will of Frederick J. Sheeley, and also the payments of legacies directed to be paid by Samuel Sheeley, William H. Sheeley, Andrew Sheeley and Emanuel Sheeley to Elizabeth Fetrow, Catharine Fisher, Anna Sheeley and Barbara Sheeley have all been paid or settled, and that all honest and lawful debts due by the testator at his decease have also been paid.</p> <p>If the court therefore should be of the opinion that William H. Sheeley, under the will of Frederick J. Sheeley, took a fee in the land devised to him, then judgment to be entered in favor of the plaintiff for the sum of $7,500 and costs. . But if the court should be of contrary opinion, then judgment to be entered in favor of the defendant.</p> <p>Either party to have the right to sue out an appeal to the Supreme Court without oath or bail.</p> <p>The court, in an opinion by E. W. Biddle, P. J., entered judgment in favor of plaintiff for $7,500.</p> <p>Error assigned was entry of judgment in favor of plaintiff.</p>

Appeal, No. 3, Jan. T., 1897, by Edward J. Wise, from decree of O. C. Cumberland Co., dismissing exceptions to auditor’s report. Exceptions to report of auditor, James W. Eckels, Esq. The court dismissed the exceptions to the auditor’s report, in an opinion by E. W. Biddle, P. J., which states the facts as follows: Mrs. Catharine Wise was manifestly incompetent as a witness in her own behalf, and the auditor was- therefore right in disregarding her testimony.

Appeal, No. 487, Jau. T., 1896, by plaintiff, from judgment of C. P. Cumberland Co., entering nonsuit. Trespass for personal injuries. The facts appear by tbe opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 565, Jan. T., 1896, by-defendants, J. G. Coover, David Ober, J. C. Miller and S. F. Miller, from judgment of C. P. Cumberland Co., on verdict for plaintiff. Assumpsit on a tax collector’s bond.

<p>Appeal, No. 104, Jan. T., 1897, by defendants, from judgment of C. P. Erie Co., Sept. T., 1894, No. 148, on verdict for plaintiff.</p> <p>Trespass by parent to recover damages for personal injuries to a child of tender age. Before Gunnison, P. J.</p> <p>At the trial it appeared that on July 25, 1890, Lizzie A. Woeekner, a child two years and ten months old, was run over by a car of the defendant company, and so injured that both of her legs had to be amputated.</p> <p>Elizabeth Woeekner, a witness for plaintiff, was asked this question in her examination in chief: “ From your experience in caring for Lizzie during the last six years, and ever since the accident, what in your opinion has it been and will it be worth a week, extra, to care for her on account of her crippled condition as resulting from this accident, from the time she left the hospital until she arrives at the age of twenty-one years? ”</p> <p>Objected to as incompetent and irrelevant.</p> <p>The Court: Objection overruled and exception sealed for the defendant.</p> <p>“ A. A dollar a day.” [1]</p> <p>E. A. Woeekner, plaintiff, was asked this question in chief: “ Tell the jury how much in your opinion it is worth extra to take care of this little girl on account of her crippled condition resulting from this accident, from the time she returned to your home from the hospital until she will arrive at the age of twenty-one years ? ”</p> <p>Objected to; that it is not proper; that it is incompetent and irrelevant except they first show that if anything he has paid out in consequence of care which he has bestowed upon Lizzie since the occurrence of the accident; that it does not appear from the evidence that she will not be capable of taking care of herself so soon as she is old enough to know how to do work; that it does not appear from the testimony of the witness that he has any knowledge of the ability of the girl to earn wages, by sewing after she has become old enough to have learned how to sew, or do other manual work; that the question assumes that the child will be helpless and unable to take care of herself or support herself until she arrives at the age of twenty-one years; that the witness is asked to express an opinion about the cost of the trouble of taking care of this child, in general, and not the cost of the trouble to himself, alone, he being the plaintiff in this case.</p> <p>The Court: Objection overruled and bill sealed for defendant. If they see fit to do the work themselves they have the right to take that into consideration.</p> <p>“ A. Five dollars a week.” [2]</p> <p>Bessie Lona, a witness for plaintiff, was asked this question in chief: “ Assuming that Lizzie Woeekner was a healthy child and all right prior to the time of the accident, from your knowledge of the care and attention that she requires over and above what she would require if she was in a normal condition, what would you say would be a fair compensation for such extra care, from the time she returned from the hospital some six weeks after the accident, up until the time when she will arrive at the age of twenty-one years by reason of such crippled condition?”</p> <p>Objected to the same as to the other witness.</p> <p>The Court: Objection overruled and exception sealed for the defendant.</p> <p>“ A. One dollar a day.” [4]</p> <p>Defendant’s points and answers thereto among others were as follows:</p> <p>12. If the jury find from the evidence that any increased inconvenience or trouble has been, or is likely to be, caused to the wife of the plaintiff and his children, the plaintiff is not entitled to recover a verdict at your hands for any such speculative damages. Answer: Refused. [19]</p> <p>17. If the jury find from the evidence that the plaintiff sent his little boy, who was only eight years and two months of age, after Lizzie Woeekner, who was less than three years of age, and through the neglect of this little boy she was allowed to run and play on State street, where motor cars were constantly passing every two minutes, then and in that case E. A. Woeckner, the plaintiff, was guilty of contributory negligence, and your verdict must be in favor of the defendant. Ansioer: Refused. It is for the jury to say whether the plaintiff was guilty of negligence in sending the little boy after the child, and whether that negligence contributed in any degree to the accident. [20]</p> <p>Verdict for plaintiff for $4,000. Plaintiff haying remitted all in excess of $2,500, judgment was entered for that amount. Defendant appealed.</p> <p>Errors assigned among others were (1, 2, 4) rulings on evidence, quoting bill o0f exceptions; (19, 20) above instructions, quoting them.</p>

<p>Appeal, No. 529, Jan. T., 1896, by Elizabeth Smith from decree of O. C. Cumberland Co., dismissing exceptions to auditor’s report.</p> <p>Exceptions to report of auditor.</p> <p>The auditor, H. F. Hoffer, Esq., reported as follows :</p> <p>FINDINGS OF FACT.</p> <p>1. James Noble died September 19, 1836, testate, having first made his will dated August 30, 1836; and the fund in hand for distribution represents the bequest of f>8,000 (less expenses), bequeathed by the terms of said decedent’s will to his daughter, Mary Patton, “wife of Joseph W. Patton.”</p> <p>2. At the date of the said will, and at the date of the testator’s death, Mary, the testator’s daughter, was the wife of Joseph W. Patton, and continued to be such until the death of her said husband, which occurred on October 30, 1880.</p> <p>3. Mary Patton, the testator’s daughter and the widow of Joseph W. Patton, died on November 26, 1895, without issue, having first made her last will and appointed her niece, Mrs. Annie V. McComas, the sole executrix thereof.</p> <p>By the will of James Noble, deceased, he bequeathed, inter alia, as follows:</p> <p>CLAUSE A.</p> <p>“I give and bequeath, to my daughter Ann Mariah, the wife of John T. Fryatt the sum of eight thousand dollars. I bequeath to Elizabeth, the wife of William Smith, the sum of eight thousand dollars. I bequeath to Margaret, the wife of Robert Snodgrass, the sum of eight thousand dollars. I bequeath to Mary, the wife of Joseph W. Patton, the sum of eight thousand dollars, which said several sums are to be paid by my three sons, John, Armstrong and Robert in four years after my decease. ...”</p> <p>CLAUSE B.</p> <p>“ As to the bequest to my daughter, Margaret Snodgrass, I direct my executors to invest the same on loan or stock, as they may deem best, and pay the proceeds thereof to my daughter, for her sole and separate maintenance and that of her children during her life, and after her death, I bequeath the same to her children absolutely, her receipts for the proceeds to be taken by my executor.”</p> <p>clause c.</p> <p>“ As to the bequest to my daughter Mary Patton, I direct that my executor shall vest it in the same way and pay the proceeds to her separate maintenance and take her separate receipt therefor.”</p> <p>CLAUSE D.</p> <p>“ As to the bequest to my son James, I direct that it shall also be vested in the same way and the interest thereof appropriated to his necessities and those of his wife and family dur ing his life, and after his death the same I bequeath to his children. . . .”</p> <p>CLAUSE E.</p> <p>“ If my daughter, Mary Patton, should die without issue then the bequest to her to go to my other daughters share and share alike, subjéct to the limitations and directions as are made herein as to their bequests.”</p> <p>5. Mrs. Margaret Snodgrass died March 31, 1888, testate, and appointed John Hays, Esq., her executor. She had issue as follows:</p> <p>(1) Abbie Snodgrass, now Mrs. Newkirk, a daughter.</p> <p>(2) Marcia Snodgrass, a daughter.</p> <p>(3) William T. Snodgrass, a son, who died May 7, 1881, leaving to survive him a widow, Anna B. Snodgrass; and children as follows: Robert N. Snodgrass, Anna May Snodgrass, now Mrs. Reese, Blanche Alberta Snodgrass, Marcia A. Snodgrass, Margaret Snodgrass.</p> <p>6. Mrs. Elizabeth Smith survives.</p> <p>7. Mrs. Ann Mariah Fryatt died April 27,1870, testate, leaving to survive her no husband, but issue as follows : Daniel Webster Fryatt, Henry C. Fryatt and James N. Fryatt. Daniel died May 12, 1885, unmarried and with no issue. Henry C. died February 15, 1890, leaving a widow, Maggie L. Fryatt, and one son, Tillottson Fryatt, about ten years old, and having no guardian. James N. Fryatt is living and unmarried.</p> <p>8. Ann M. Fryatt by her last will bequeathed as follows: “ I will and bequeath to James N. Fryatt a legacy which was bequeathed by my father, James Noble, to Mary Patton during her life, and after her death to be divided between my two sisters and myself, to hold during the life of my said son, Daniel W. Fryatt, and to pay him the interest upon the same annually, and after the death of my son, Daniel W. Fryatt, I give and bequeath the same to my son, James N. Fryatt, without any condition whatever.”</p> <p>9. James N. Fryatt by his deed made February 2, 1886, granted unto William S. Henshaw, in trust, all his interest under the will of his grandfather, James Noble, and under the will of his mother, Ann M. Fryatt.</p> <p>10. Henry C. Fryatt by his deed of assignment made July 28, 1888, granted unto Anna Boarman as trustee of Maggie L. Fryatt and Tillottson Fryatt, her son, all his interest under the will of his grandfather, James Noble, and all his interest in the deed of trust made by James N. Fryatt to Williapa S. Henshaw, in trust, and dated February 2, 1886.</p> <p>11. William S. Henshaw, the trustee mentioned in the said deeds, has since died, and David C. Westenhaver has been appointed his administrator by the county court of Berkley county, West Yirginia.</p> <p>The auditor reports the following conclusions of law:</p> <p>1. That under the law of West Yirginia the administrator of a trustee becomes his successor in the trust.</p> <p>(Note. For the sake of convenience in referring to the will of James Noble, the portions of it to be construed have been divided into clauses marked A, B, C, D, E.)</p> <p>2. Under clause A of the will of James Noble the bequest of 18,000, to Mary, the wife of Joseph W. Patton, was absolute.</p> <p>8. Under clause C of the said will, taken in connection with the other portions of the will, a separate use trust, for the protection of the testator’s married daughter, Mary Patton; was created.</p> <p>4. The separate use trust thus created was intended only for the protection of the wife during coverture, and the same became executed upon the discoverture of the wife by the death of her husband.</p> <p>5. Upon the death of her husband in her lifetime, Mary Patton became entitled to the possession and control of the legacy thus placed in trust for coverture only, and became entitled to exercise over it all the rights of absolute ownership.</p> <p>6. By the last will and testament of Mary Patton she appointed Annie Y. McComas her executrix, and the latter became entitled to the possession and control of all of Mary Patton’s personal property, subject to the provisions of her will.</p> <p>7. Under the will of James Noble and the will of Mary Patton, the fund now in hand for distribution, being the legacy of $8,000 (less expenses), bequeathed to Mary Patton by James Noble, should be awarded to the executrix of Mary Patton; and it is so awarded.</p> <p>The court, in an opinion by E. W. Biddle, P. J., dismissed exceptions to the auditor’s report.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Practice, G. P. — Lis pendens — Plea in abatement.</p> <p>The pendency of a prior action is the subject of a plea in abatement, not of a motion to quash the second writ.</p> <p>A plea in abatement setting up the pendency of a prior action must allege that the first suit was pending when the plea in abatement was pleaded.</p> <p>Public officers — Sheriffs—Action against sheriff.</p> <p>An action of trespass against a sheriff for misfeasance in office is transitory, and may be brought in a county other than the sheriff’s bailiwick.</p> <p>English statutes — Report of judges — Presumption — Act 21 James I., ch. 12.</p> <p>The omission of an English statute from the list of English statutes reported as in force by the judges of the Supreme Court, 3 Binney, 595. while not conclusive against the statute, raises a presumption of very great weight that it is not in force in this state.</p> <p>The Act of 21 James I., eh. 12, relating to actions against public officers is not in force in Pennsylvania.</p>

Appeal, No. 574, Jan. T., 1896, by W. D. Himmelreich & Co., from order of C. P. Elk Co., May T., 1895, No. 30, overruling exceptions to auditor’s report. Exceptions to report of Rufus Lucore, Esq., auditor. The court, Matee, P. J., dismissed the exceptions and confirmed the report. The facts appear by the opinion of the Supreme Court. Error assigned was in dismissing exceptions to auditor’s report.

<p>Appeal, No. 51, Jan. T., 1897, by plaintiff, front decree of C. P. McKean Co., Dec. T., 1896, No. 1, dismissing bill in equity.</p> <p>Bill in equity for an accounting of partnership transactions. Before Mobbison, J.</p> <p>The three contracts marked exhibits A, B, C, which are decreed to be delivered up by the defendants for cancelation, are described in tbeir proper order in tbe opinion of the Supreme Court, where will also be found a full statement of the facts.</p> <p>The court below sustained a demurrer to the bill.</p> <p>Error assigned was in sustaining demurrer.</p>

Appeal, No. 189, Jan. T., 1897, by plaintiff, from judgment of C. P. Union Co., Sept. T., 1893, No. 126, on verdict for defendant. Issue to determine whether interest was payable on a promissory note given by a husband to a wife. Before MeCltore, P. J. At the trial it appeared that the note in suit was as follows: “#1,200.00 April 2nd, 1876. “ One day after date I promise to pay to the order of Wm.

Appeal, No. 190, Jan. T., 1897, by plaintiffs, from decree of C. P. Snyder Co., Sept. T., 1896, No. 1, dismissing bill in equity. Bill in equity by creditors to have certain deeds and assignments Adjudged void, because they were given to delay, hinder and defeat plaintiffs. McClure, P. J., found the facts to be as follows: 1. John Hummel, late of Monroe township, Snyder county, Pennsylvania, died April 7,1896, at the advanced age of seventy-eight years.

<p>Appeal, No. 87, Jan. T., 1897, by defendant, from judgment of C. P. Union Co., Sept. T., 1898, No. 67, on verdict for plaintiff.</p> <p>Assumpsit on promissory notes. Before McCltjee, P. J.</p> <p>Tbe facts appear by tbe opinion of tbe Supreme Court.</p> <p>At tbe trial Joseph C. Bucher was called on behalf of plaintiff.</p> <p>Mr. Linn, of counsel for defendant: We object to his being sworn, as be is not competent in this case. His wife is a daughter of Judge Walls, and if this note is recovered it goes to Judge Walls’s estate, and wherever tbe wife could not be a witness tbe husband cannot.</p> <p>Mr. Leiser, of counsel for plaintiff: We make tbe offer of tbe release of Mary Ellen Bucher and Joseph C. Bucher for all their interest in the estate or under the wills of John Walls and of Margaret Walls, deceased; bearing date the 18th of September, 1895, and duly acknowledged the same day before John L. Yarnall, notary public.</p> <p>Mr. Linn: We object to the witness because he is incompetent under the act of 1869, and subsequent acts, which declares that no one shall testify where the party to the contract is dead; that this is a conversation that is proposed to be related as between a dead man and Judge Bucher, who is the husband of a wife who appears to be a legatee and participant in this estate; and it appears that Judge Bucher has $1,000 of the money of this estate, and consequently Mrs. Bucher would have to pay this $1,000 into the estate of Margaret Walls, and for that reason he is incompetent to testify in this case. The witness is a party to the contract. He is represented by the administrator. While the act of 1869 does not render any person incompetent who was competent before, yet a party to the record was always incompetent.</p> <p>By the Court: The witness and his wife do not represent the estate; they are merely parties who might derive a benefit through the wills of Margaret Walls and Judge Walls. We overrule the objection. We think this witness is competent. The defendant excepts and a bill is sealed. [1]</p> <p>Plaintiff’s points and answers thereto among others were as follows:</p> <p>5. That the notes sued on were not canceled by the will of John Walls, or the codicil thereto. Ansiver: This point we affirm. [3]</p> <p>9. Before the jury can find for the defendant they must be satisfied from all the evidence in the case that the $1,000 note was actually paid. Answer: We affirm this point. [4]</p> <p>Defendant’s point and answers thereto among others were as follows :</p> <p>6. That the codicil dated October 15, 1890, — to the will of John Walls dated the 5th day of May, 1879, — republished the will as of the date of the codicil; that having directed and declared in his will that all obligations he may hold against any of his children for the payment of money shall be canceled and discharged, becomes effective as of the date of the codicil,— and that the claim in suit is thereby discharged. Answer: We refuse to so instruct you. [5]</p> <p>Verdict and judgment for plaintiff for $1,519.13. Defendant appealed.</p> <p>Brrors assigned among others were (1) ruling on evidence, quoting the bill of exception; (3-5) above instructions, quoting them.</p>

Appeal, No. 161, Jan. T., 1897, by defendants, from judgment of C. P. Fayette Co., Dec. T., 1896, No. 882, on verdict for plaintiffs. Scire facias to revive a judgment which had been previously revived by confession. Before Mestrezat, J. The facts appear by the opinion of the Supreme Court.

<p>' Equity — Injunction—Strikes—Display of force — Intimidation.</p> <p>A display of force by strikers against laborers who wish to work, such as surrounding-them in large numbers, applying opprobrious epithets to them and urging them in a hostile manner not to go to work, though no force be actually used, is as much intimidation as violence itself. Such conduct will be restrained by injunction, and the actors will be liable in damages to the employer of the laborers.</p> <p>Where new men, employed to take the place of strikers are on their way to work, their time cannot be lawfully taken up and their progress interfered with by the strikers on any pretense or under any claim of right to argu^'or,'persuade them to break their contracts.</p> <p>On a^billfin equity for an injunction to restrain strikers from interfering with men employed in their place, the evidence showed that the new men were followed from their point of embarkation to their destination and importuned not to work; that they wei-e met by the strikers in considerable numbers and called “ scabs ” and “ blacklegs; ” that they were sometimes surrounded, and efforts were made to pull them away. Held, that the plaintiff was entitled to an injunction.</p> <p>Where a bill has been filed against strikers for an injunction and for damages for injuries caused by their illegal conduct, the plaintiff has a right to proceed with the ease after the strike is over, for the purpose of recovering damages, and it is improper for a judge to express from the bench an opinion that the case should have been dropped.</p>

<p>Appeal, No. 426, Jan. T., 1897, by defendants, from judgment of C. P. Lancaster Co., Dec. T., 1898, No. 55, on sheriff's interpleader.</p> <p>Sheriff’s interpleader. Before Liyingston, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial, after plaintiffs’ judgment of $7,240 had been introduced hi evidence, defendants proposed to ask A. Hirsh whether or not his son, Benjamin W. Hirsh, was indebted to him on April 4,1893, or on November 11, 1893, in the sum of $7,240 or any portion thereof. Objected to by plaintiffs. Disallowed. Defendants except and bill sealed. [2]</p> <p>Defendants proposed to ask A. Hirsh what other lien indebtedness he had besides the $21,000 during the period he claims he was loaning money and paying debts for Benjamin Hirsh. Objected to by plaintiffs. Disallowed. Defendants except and bill sealed. [3]</p> <p>Defendants proposed to ask A. Hirsh whether or not, during the time he claims to have been loaning money to B. W. Hirsh and paying debts for him, his property was not incumbered for taxes. Objected to by plaintiffs. Disallowed. Defendants except, and bill sealed. [4]</p> <p>Witness, B. S. McLane, was shown paper marked “ J. B. L., No. 2,” and asked by defendants whether that is a search of the mortgages given by Abram Hirsh, and whether the records stood as this search shows it did, November 11, 1893. It is offered for the purpose of showing the insolvency of Abram Hirsh at the time of the alleged loaning of this money. Objected to by plaintiffs. Disallowed. Defendants except and bill sealed. [5]</p> <p>Papers marked “ J. B. L., No. 3,” and “ J. B. L., No. 4,” admitted to have been made by the deputy recorder, as deeds on record in his office for properties conveyed to Abram Hirsh and the deeds on record for properties sold by Abram Hirsh; it is proposed by defendants to ask the witness whether these lists contain all the properties of which there is a record in his office, purchased by Abram Hirsh, and of the properties sold by Abram Hirsh up to the 11th of November, 1893, — to be followed with the proof of value of these properties, — for the purpose of showing that the value of the properties was not equal to the amount of the deeds. Objected to by plaintiffs. Disallowed. Defendants except and bill sealed. [6]</p> <p>Defendants offered in evidence certified copy of the liens against Abram Hirsh from April 4, 1888, to April 4, 1893, for the purpose of showing the insolvency of Abram Hirsh at the time of the alleged loaning of this money.</p> <p>Plaintiffs did not object so far as it showed a judgment to Robert A. Evans. They consented to its offer for that purpose. They objected to its offer unless it is offered as to the judgments held by Robert A. Evans. Disallowed. Defendants except and bill sealed. [7]</p> <p>John B. Miller was asked this question by defendants : State the amount of the liens discovered by you, upon search of the records, to have been entered against Abram Hirsh from April 4, 1888, to April 4,1893. Objected to by plaintiffs. Disallowed. Defendants except and bill sealed. [8]</p> <p>The defendants offered to prove by I. H. Ryan, that he viewed and examined all the real estate which the records of the recorder’s office show were conveyed to Abram Hirsh, plaintiff, and not by him reconveyed, and the market value of the same at the time of the issuing of the execution by A. Hirsh v. B. W. Hirsh, and prior thereto. This for the purpose of showing, with the other offer, that, during the time the plaintiff alleges he was lending money to and paying debts for B. W. Hirsh, he, plaintiff, was indebted to other persons, and was insolvent. Objected to by plaintiffs. Disallowed. Defendants except and bill sealed. [9]</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>Errors assigned among others were (2-9) rulings on evidence, quoting the bill of exceptions.</p>

<p>School laws — Use of school buildings for religious purposes and publie lyceums.</p> <p>School directors have no authority to permit public school buildings to be used for sectarian religious meetings, for the holding of public lyceums, or for any purposes other than school purposes directly relating to the instruction of the pupils of the schools, or for lectures or debates which are made a part of the course of instruction.</p>

<p>Bond — Gift—Evidence.</p> <p>B. gave his son-in-law, S., $7,800 with which to buy a farm, and took therefor an ordinary money bond, by which it was provided that the money was to be accounted for without interest when a final settlement was made of B.’s estate. S.’s wife died before B. or S., and after her death S. became insolvent and made an assignment for the benefit of creditors. Held, (1) that the bond could not be construed as a gift by way of advancement from B. to S; (2) that it was not to be settled for after B.’s death by charging it against his daughter’s share of his estate, but B. was entitled to share as a creditor in the distribution of S.’s assigned estate.</p>

<p>Waters — Use of open stream as sewer — Municipality—Negligence.</p> <p>Where a municipality adopts a stream as an open sewer it is bound to keep open the channel of the stream and to remove accumulations of filth, ashes or other material that obstruct the flow of the water and throw it out of its banks upon the land of adjoining owners. There can be no prescriptive right to neglect so plain a municipal duty.</p> <p>In an action against a city to recover damages for injuries caused by the use of a stream as an open sewer, the evidence for the plaintiffs tended to show that the use of the stream as a sewer created an increase in the natural flowage of the stream, so that in the times of ordinary rains the banks of the stream were overflowed, the plaintiffs’ land was washed with sewage, the banks of the stream were broken down and washed away, and considerable quantities of filthy and offensive refuse were allowed to accumulate on the banks and in the stream, which not only obstructed the flow, but emitted disgusting, unhealthy and injurious odors over the plaintiffs’ land and buildings to such a degree as to render the same uninhabitable, and to prevent the owners from renting the same for any sum whatever. jReid, that the case was for the jury.</p>

<p>Appeal, No. 204, Jan. T., 1897, by defendant, from order of C. P. Lancaster Co., April T., 1897, No. 88, confirming report of referee.</p> <p>Assumpsit to recover the purchase money of real estate. ¡</p> <p>The case was referred to T. B. Holahan, Esq., as referee, who reported in favor of the plaintiffs.</p> <p>Exceptions to referee’s report were overruled, by the court below and judgment was entered in favor of plaintiffs for $15,125.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to auditor’s report.</p>

<p>Decedents' estates — Orphans' court sales — Conversion.</p> <p>An orphans’ court sale does not divest the title of the heirs until after confirmation thereof and conveyance delivered under the order of the court. The sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then no conversion takes place, and if the heir of the decedent dies, even subsequently to the confirmation of the report of sale, but before the deed, his interest descends as land, and not as money.</p> <p>Will — Life estate — Conversion—Orphans' court sales.</p> <p>Testator by his will directed as follows : “ And the residue of my estate, real and personal, and wheresoever found, I give and bequeath unto my dear wife, giving her full power and authority to sell the same and execute deed or deeds therefor, and if any of the same be left after her death, I order it to be divided amongst my children share and share alike.” The widow did not sell any of the real estate during her life. After the widow’s death there were several orphans’ court sales of the real estate, all of which were confirmed; but before the deeds were delivered, one of testator’s children died leaving a husband, but no children. Meld, (1) that the widow took an estate for life in the realty ; (2) that, as the lands were unsold at her death, they were subject to the operation of the husband’s will ; (3) that the share of the deceased daughter passed as real estate to her husband for life under his curtesy.</p>

<p>Appeal, No. 455, Jan. T., 1896, by Stuart St. Clair, one of tbe defendants, from order of C. P. York Co., April Term, 1896, No. 120, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit on a promissory note. Before W. F. Bay Stewart, J.</p> <p>Tbe statement showed tbat tbe action was brought upon a promissory note signed by tbe defendants. Tbe docket entries showed that there had been a return of nihil habet as to John D. Allen, but this was not set forth in the statement. Stuart St. Clair, the appellant, filed an affidavit of defense in which he averred as follows:</p> <p>1. The defendant admits that he, together with John D. Allen, the other defendant, executed and delivered to the plaintiff the promissory note as alleged in the plaintiff’s statement, but avers that the same was given by them jointly as members of a certain copartnership then existing between them, and for a partnership debt.</p> <p>2. The defendant avers that, after the execution and delivery of said promissory note to the plaintiff and before the same became due and payable, and before the bringing of said suit, the said partnership so as aforesaid existing between the defendants had legally passed into the hands of a receiver for an accounting, and that therefore he is not individually liable on said note to the said plaintiff.</p> <p>The defendant further avers that he is not liable to the plaintiff on said promissory note for the reason that, as he is informed and verily believes, said C. & C. Electric Company, plaintiff, is also in the hands of a receiver, for the purpose of winding up its affairs, and was so, before the bringing of this suit.</p> <p>In a supplemental affidavit of defense appellant further averred:</p> <p>That on or about the date of the maturity of said note in suit, one Mitchell May, Esq., of the city of Brooklyn, Kings county, state of New York, was, by a court of competent jurisdiction in and for said Kings county, and at the instance of this deponent, duly appointed receiver of the said copartnership mentioned in the affidavit of defense filed, the name, style, and title of which was, “ John D. Allen and Stuart St. Clair, doing business under the firm name and style of The Ice Palace Skating Rink Company,” (the purpose and business of which was building and operating ice skating rinks,) and which said receivership was at and before the time of bringing said action, and still is, in existence and legal force and operation.</p> <p>The court made absolute a rule for judgment against Stuart St. Clair, for want of a sufficient affidavit of defense.</p> <p>Frror assigned was the order of the court.</p>

<p>Municipalities — Gounties—Soldiers' monument — Gounty building — Acts of May 22, 1895 and April 19, 1895.</p> <p>A soldiers’ monument authorized to be erected by county commissioners under the Act of May 22, 1895, P. L. 97, is not a ‘ ‘ county building ” within the meaning of the Act of April 19, 1895, P. L. 88, requiring county commissioners, in the erection of “ a court house, jail, or other county building,” to let the work to the lowest and best bidder: Society of the Cincinnati’s Appeal, 154 Pa. 621, followed.</p> <p>Gonstitutional law — Municipal indebtedness — Soldiers' monument.</p> <p>It is error for a court to enjoin the erection of a soldiers’ monument on the ground that the contract is in violation of sections 8 and 10 of article IX. of the constitution where it appears that the debt, both gross and net, of the county, with the contract price of the monument added, is far below two per centum of the assessed valuation of property taxable for county purposes, and that the taxes levied by the commissioners for the year, together with the cash on hand and amounts due, are very largely in excess of the county’s liability, including the contract price of the monument.</p> <p>Equity — Injunction—Fraud—Evidence—Municipal contract.</p> <p>Mere proof of suspicious circumstances, without positive evidence of fraud, is not sufficient to justify an injunction against the awarding of a municipal contract.</p>

<p>Appeal, No. 185, Jan. T., 1897, by Isabel S. Wilhelm et al., from order of G. P. York Co., dismissing exceptions to auditor’s report.</p> <p>Exceptions to report of R. J. Lewis, Esq., auditor.</p> <p>Errors assigned were in - dismissing exceptions to auditor’s ‘ report.</p>

<p>Contract — Consideration—Partial restraint of trade — Evidence.</p> <p>A good and sufficient consideration for a contract in partial restraint oi trade must be affirmatively shown in order to make the contract valid.</p> <p>Where a legal obligation exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity.</p> <p>Where a contract for the sale of a business and the property connected with it has been completely performed by the execution of conveyances and the payment of money according to the terms of the contract, a subsequent written agreement by which the vendor binds himself, in consideration of the covenants of the former agreement, not to engage in the same business, is void for want of a valid consideration.</p>

Appeal, No. 183, Jan. T., 1897, by plaintiff, from judgment of G. P. Lancaster Co., Feb. T., 1896, No. 42, refusing to strike off nonsuit. . Assumpsit on a promissory note. Before Livingston, P. J. The note in suit was as follows: “$1225.75.

Appeal, No. 182, Jan. T., 1897, by defendant, from judgment of C. P. Lancaster Co., March T., 1897, No. 82, on case stated. Case stated to determine whether the plaintiff had power to sell real estate. Livingston, P. J., filed the following opinion: From the case stated it appears: 1.

<p>Appeal, No. 197, Jan. T., 1897, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket, No. 8, p. 103, dismissing bill in equity.</p> <p>Stockholders’ bill in equity for an injunction to restrain a corporation from issuing stock and bonds.</p> <p>The averments of the bill sufficiently appear in the opinion of the court below, Brubaker, J., which is as follows :</p> <p>The court finds the following facts as adduced from the testimony :</p> <p>1st. The plaintiff is a stockholder of the said the Lancaster Gas Light and Fuel Company, hereinafter called the Gas Company, holding three hundred and twenty shares of the capital stock.</p> <p>2d. The said Gas Company was incorporated on June 27, 1876, under the provisions of the act of April 29, 1874, and its supplements, for the purpose of manufacturing and supplying illuminating and heating gas to the citizens of Lancaster.</p> <p>3d. The Edison Electric Illuminating Company, of Lancaster, Pennsylvania, hereinafter called the Edison Company, was incorporated on March 1,1886, under the provisions of the act of April 29, 1874, and its supplements, for the purpose of manufacturing, distributing and supplying electricity for lighting, heating, motive power and all other purposes for which electricity can or may be used, to the citizens of Lancaster, Pa., and to the territory adjacent and contiguous thereto.</p> <p>4th. The Citizens’ Electric Light, ITeat and Power Company, of Lancaster, Pennsylvania, hereinafter called the Citizens’ Company, was incorporated on February 9, A. D. 1893, under the provisions of the act of April 29,1874, and its supplements, for the purpose of supplying light, heat and power by electricity to the public in the city of Lancaster, Pa., and to such persons, partnerships and corporations residing therein or adjacent thereto, as may desire the same.</p> <p>5th. The capital stock of the said Edison Company was #135,000, and the bonded indebtedness was #250,000.</p> <p>6th. The capital stock of the Citizens’ Company was #100,000, and the bonded indebtedness was #25,000.</p> <p>(The foregoing findings of fact are alleged in the bill and are admitted in defendant’s answers.)</p> <p>7th. The above named electric light companies were competitors for business in the city of Lancaster, and P. B. Shaw, a stockholder of the Edison Company, owned about #100,000 of its #135,000 capital stock; he was also the owner of some of the bonds of said company; the said P. B. Shaw obtained an option by which he was enabled to, and did, purchase a majority of the stock of the said Citizens’ Company; after such purchase he subsequently purchased a controlling interest in the Lancaster Gas Light and Fuel Company; he purchased all of said interest for himself and on his own responsibility and with money owned or borrowed by him.</p> <p>8th. The said Gas Company was a corporation with a capital stock of $200,000, divided into 8,000 shares of the par value of $25.00 each, and a bonded indebtedness of $202,400, and the profits from its business had for many years enabled it to pay the interest on all its indebtedness, dividends of at least eight per cent on its capital stock, and it had, in addition thereto, on December 1, 1894, a balance of cash on hand of $10,406.46. At the said time the said Gas Company had and was liable to pay a floating indebtedness of $25,000, for which it had given a promissory note of that amount.</p> <p>9th. Of the said defendants, John I. Hartman, John A. Coyle, J. Gust. Zook, John D. Skiles, J. Fred. Sener, N. M. Woods, H. M. North, John C. Hager, W. U. Hensel and John H. Baumgardner were not stockholders, owners or directors in the Edison Company at the time P. B. Shaw acquired control of a majority of the stock in the Gas Company and the Citizens’ Company.</p> <p>10th. The three companies and corporations hereinbefore named were the only corporations organized for the purpose of supplying heat, light and fuel to the citizens of Lancaster in existence on December 1, 1894, subsequent thereto or for some years previous.</p> <p>11th. The said P. B. Shaw, in procuring an interest in or majority of the stock of the said' Citizens’ Company and Gas Company, was not the agent of any of the said parties, his co-defendants, and when he purchased the said stock and interest, he acted on his own behalf and without any authority from, or agency of, any of his codefendants.</p> <p>13th. After the said P. B. Shaw had purchased all the stock of the Citizens’ Company, he bought all of its property and assigned, transferred and conveyed the same to the Edison Company, of the stock of which he held a large majority.</p> <p>14th. There was no arrangement at the time of its purchase, by and between P. B. Shaw and his codefendants, or any of them, to raise any money for the purchase of any stock of the Citizens’ Company. Neither they nor any of them ever arranged or authorized any arrangement to be made by them, for the raising of money for the purchase of said stock, by the increase of the capital stock or of the bonded indebtedness of the Gas Company. Neither they nor any of them made or entered into or authorized any arrangement by which any increased stock or bonds of said Gas Company were to he issued to the said P. B. Shaw, in the interest of himself and the other parties, codefendants, as he avers, to raise money for acquiring control of the said Gas Company and the said Citizens’ Company.</p> <p>15th. At a meeting of the stockholders of the Gas Company, held on February 12, 1895, the following preamble and resolution were adopted:</p> <p>“ Whereas, The Backus Manufacturing Company, being the owner of useful and valuable patents for the application of gas for heating purposes, has, through P. B. Shaw, proposed to sell, and assign to this company the exclusive right to use and sell and to license others to use and sell within the territory of Lancaster, Pennsylvania, and adjacencies, the Backus Portable Steam Heater, Radiating Mantel and Gas Consuming Appliances now owned by said Backus Manufacturing Company, for the sum of one hundred and ninety-seven thousand, six hundred dollars, payable in the stock and bonds of the said Lancaster Gas Light and Fuel Company, one hundred and twenty-five thousand dollars in stock, and seventy-two thousand and six hundred dollars in bonds, upon condition that this company will immediately, upon acceptance of said proposition, begin and energetically push the sale and use of said system of steam heating in the city of Lancaster; therefore, be it</p> <p>“ Resolved, That the aforesaid proposition of P. B. Shaw be, and the same hereby is, accepted, and that the board of directors be requested to make said purchase and to issue the stock and bonds to said P. B. Shaw, in accordance with said proposition.”</p> <p>16th. The meeting of the stockholders of the Gas Company at which said resolution was adopted was regularly called, in accordance with a resolution duly passed at a meeting of the board of directors on December 13, 1894, and according to the laws of the commonwealth providing for the increase of stock and the bonded indebtedness of corporations. All of the stockholders of said Gas Company except two, one of whom was plaintiff, numbering in all twenty-seven out of twenty-nine, and holding 7,580 shares out of the 8,000 shares of the capital stock of the said company, expressly waived notice of said meeting and assented to said increase of stock and indebtedness in writ ing; advertisement was made for sixty days in the newspapers of the city of Lancaster of the time and place of said stockholders’ meeting; and at the meeting of said stockholders every share of stock present or represented was voted in favor of said increase of stock and indebtedness, and the above resolution, requesting the directors to issue the stock and bonds to the said P. B. Shaw, for the purchase of the right to use and sell and license others to use and sell the Backus Portable Steam Heater, Radiating Mantel and Gas Consuming Appliances, was unanimously adopted at said meeting.</p> <p>18th. Since the adoption of the said resolution, and since the increase of the stock and indebtedness of the Gas Company, and since the purchase of the right to use the Backus patents and appliances, the operations of the said Gas Company have been conducted with increased efficiency and economy, so that, with a gain to the stockholders, the said Gas Company has been enabled to supply gas to the citizens of Lancaster and to their consumers and patrons at a reduced price.</p> <p>20th. P. B. Shaw, one of the defendants, sold a large quantity of the stock of the Gas Company and the Edison Company, in equal proportions, all at its par value, with the exception of that sold to one or two persons, and to them at prices not less than seventy-five per cent of its par value; all of whom are bona fide purchasers, and are still stockholders, a list of whom is appended to the testimony filed of record in this case.</p> <p>21st. The plaintiff was not a stockholder in either of said electric light companies.</p> <p>CONCLUSIONS OK LAW.</p> <p>Two questions arise from the pleadings and the testimony in this case:</p> <p>1st. Whether, as alleged by the plaintiff, the purchase by the Gas Company of the Backus heater and the increase of the capital stock and the bonded indebtedness of the said Gas Company, was a scheme and a fraud on the Gas Company, perpetrated by the parties defendant, other than the Gas Company, and prejudicial to the plaintiff.</p> <p>2d. Whether the license assigned .by the Backus Manufacturing Company or P. B. Shaw to the Gas Company-was a license to use anything that was proper, convenient, necessary or connected with the manufacture of gas, or its distribution, or for the purposes for which the company defendant was incorporated.</p> <p>The plaintiff contends that the increase of the capital stock of the Gas Company to the amount of $125,000, and the increase of its bonded indebtedness to the amount of $72,600, are not for any value actually received by the said company, and not in the furtherance of its real interests, but it was done for the purpose of enabling said defendants, other than the Gas Company, to obtain control of the three companies organized in said city of Lancaster, for the purpose of supplying heat, light and fuel to the citizens thereof.</p> <p>A careful examination of the testimony adduced on the part of the plaintiff will show that the plaintiff failed in his proof to establish the material averments contained in his bill; and, therefore, the court was obliged to refuse to find, as requested by the plaintiff, that the increase of the Gas Company’s capital stock and bonded indebtedness was not for any value by the company and not in furtherance of its real interests. There was no evidence before us to show that the license assigned by the Backus Manufacturing Company was not of any value, or that the increase of the capital stock and bonded indebtedness of the Gas Company was not made in compliance with the act of assembly. Admitting, for the sake of the discussion, that P. B. Shaw, one of the defendants, who controlled the Edison Companjr by reason of holding a majority of its stock, and virtually the Gas Company for the same reason, and made the purchase of the Citizens’ Company, devised a scheme for the purpose of controlling the three companies, which is the most that can be inferred from the testimony adduced, the transaction, in our opinion, did not prejudice the rights of the stockholders of the Gas Company. On the contrary, the proof rather shows it to have been of benefit to the company. We cannot conceive how, therefore, under the circumstances of this case, it has prejudiced the rights of the complainant. All the stockholders of the Gas Company, it appears, with the exception of the plaintiff, and, perhaps, one other, willingly entered into the transaction and gave it their support. The acts of its directors were not considered improper within the belief of all these stockholders, many of whom as will be seen are among our best and most intelligent business men, who, doubtless, would have been the first to complain if these acts had been done to their prejudice as stockholders. Thus, we have the request of but one stockholder, invoking the aid of a court of chancery to declare the acts of his company in the premises illegal and void, unsupported by any proof of fraud or collusion, or evidence of fraud or corrupt motives by other parties than the company defendant, as charged and averred in plaintiff’s bill. Had it been shown at the hearing of this case that P. B. Shaw or a majority of the Gas Company or any of its directors had entered into an alleged scheme to benefit themselves at the expense of the Gas Company or of the minority of the stockholders, the case would have been different. The plaintiff has not brought himself, however, within this chancery rule, by reason of the lack of proof, and, therefore, we must hold that the plaintiff has no standing on this point of the case.</p> <p>The second question, however, needs careful consideration. It involves the interpretation of the statute governing the franchise of the company; and in this we recognize the principle that a single stockholder may, when measures are adopted, which are plainly beyond the powers of the company and inconsistent with the objects for which the company was incorporated, invoke the aid of a chancellor to interpose in behalf of the minority stockholders to prevent the performance of such act. The usual remedy, however, is by quo warranto by the commonwealth through the attorney general, but in our opinion it is not the only remedy. We will, therefore, consider this question: That is, were the acts of the Gas Company in the purchase of the Backus heater, and consequently, its increase of the capital stock and bonded indebtedness, ultra vires ?</p> <p>It is contended by the learned counsel for the plaintiff that the Backus heater is not an appliance used in the manufacture and supply of gas, or in distributing the same to consumers. They pressed this point with great force at the argument, and with some degree of plausibility under the following rule:</p> <p>“A corporation, indeed, constituted by statute for certain purposes, is regarded as so entirely the creature of the statute, that acts done by it without the prescribed formalities, or for objects foreign to those for which it was formed, would be, in general, null and void. In so far as the rights granted to corporations are destructive of, or encroach upon public or common right, they are undoubtedly to be construed most strongly against those setting them up, and in favor of the state or public ; they are not to be extended beyond the express words in which they are given, or their clear import; and whatever is not given in unequivocal terms, is to be deemed as expressly withheld. And even in their own internal affairs, they are held to strict and rigid conformity with the powers granted, and the manner of their exercise prescribed by the statutes under which they have their being.” Endlich, on the Interpretation of Statutes, sec. 354. This rule is, however, modified: Id., sec. 416; Emerson v. Commonwealth, 108 Pa. 124.</p> <p>The legislation affecting the subject is contained in the act of 1874 and its supplements. The second section of the eleventh clause (Purdon’s Digest, pi. 406), defines the granting of the franchise for “ the manufacture and supply of gas, or the supply of light or heat to the public by any other means.” The 84th section provides as follows: “ Companies incorporated under the provisions of this statute for the supply of water to the public, or for the manufacture and supply of gas, or the supply of light or heat to the public by any other means shall, unless otherwise provided by this act,’ from the date of the letters patent creating the same, have the powers and be governed, managed and controlled as follows :</p> <p>“ Clause 1. Where any such company shall be incorporated as a gas company, or company for the supply of heat or light to the public, it shall have authority to supply with gas light the borough, town, city or district where it may be located, and such persons, partnerships and corporations residing therein or adjacent thereto as may desire the same at such price as may be agreed upon and also to make, erect and maintain therein the necessary buildings, machinery and apparatus for manufacturing gas, heat or light from coal or other material, and distributing the same,” with the right to enter upon the streets and lay pipe, etc.: Emerson v. Commonwealth, 108 Pa. 124.</p> <p>What was the intendment of this section of the act ? The application for the charter of the gas company says that the corporation was formed for the purpose of manufacturing and supplying illuminating and heating gas to the public in the city of Lancaster. This is, in effect, in our opinion, a charter to furnish heat as well as to furnish light to citizens of this place. The furnishing of light contemplates more than the supply of illuminating gas; so, also, the furnishing of heat more than the furnishing of heating gas. The purpose of the grant necessarily contemplates a contrivance for the distribution of heat. In order to distribute heating gas there are required not only pipes for the conveying of gas, but, also, in our opinion, all other necessary appliances and fixtures for its reception and use by the patrons of the company. Gas stoves and gas heaters, therefore, are indispensable to the use of heating gas, and, therefore, are not foreign to or inconsistent with the objects for which the company was incorporated. We might as well contend that the appliance of a gas burner, which is absolutely necessary for the creating of light from illuminating gas, is foreign to and inconsistent with the objects for which the company was incorporated.</p> <p>Judge Endlich in his excellent work on the Interpretation of Statutes, from which we have already quoted, gives us the principle, which we think applicable to this case, in these words:</p> <p>“ When powers, privileges or property are granted by statute, everything indispensable to their exercise or enjoyment is impliedly granted also, as it would be in a grant between private persons.” And farther on he adds: “ Even when a corporation is created with certain specifically enumerated powers, it possesses, in addition, by implication, all such as are necessarily incident to those specified, or essential to the expressed purposes and objects of the corporate existence. ‘In this country all corporations whether public or private, derive their powers from legislative grant, and can do no act for which authority is not expressly given or may not be reasonably inferred. But, if we were to say that they can do nothing for which a warrant could not be found in the language of their charters, we should deny them in some cases the power of self-preservation, as well as many of the means necessary to effect the essential objects of their incorporation. And, therefore, it has been an established principle in the law of corporations that they may exercise all the powers within the fair intent and purpose of their creation, which are reasonably proper to effect the powers expressly granted. Nor should anything that is fairly incidental to those things which the legislature has authorized be held ultra vires, unless expressly prohibited. Thus, it has been decided, that e. g. the grant to a municipality of power to ‘prevent and extinguish fires,’ granted, by implication, the power to erect a fire-engine house; of power to ‘ make police regulations or needful by-laws,’ a power to purchase fire-engines; of power to contract ‘ for lighting ’ streets, a power to acquire street fixtures, including gas pipes and lamp-posts for that purpose; and a grant of power to a railroad company to purchase land in order to procure stone and other material necessary for the construction of its road, a grant of power to purchase land in order to get cross-ties and firewood. Indeed, it may be generally said, that, whenever a power is given by statute, everything necessary to make it effectual, everything essential to the exercise of it is given by implication: ” Endlich on the Interpretation of Statutes, sec. 418.</p> <p>We hold, therefore, that the Gas Company had legal authority to purchase the right to the use of the Backus heater as apart of its franchise. There was no contention at the argument of this case that the Gas Company did not follow the act of assembly in its proceedings to increase its capital stock and bonded indebtedness. The plaintiff simply denies that the increase was for value received, or in furtherance of the real interests of the company. In this respect we do not agree with him. The increase, in our opinion, was not only regularly and lawfully made, but it was made for a valuable consideration, and the effect has been without any prejudice to any of the rights of the plaintiff or to any interest of the Gas Company. It cannot be questioned that the Gas Company had a legal right to increase the capital stock and bonded indebtedness of the company either for money or for labor done or for property actually received: 2 Thompson’s Commentaries on the Law of Corporations, sec. 1604, et sequitur; act of April 29, 1874, relating to corporations; Purd. Dig. 417, ph 68.</p> <p>A corporation may take in payment of its shares any property which it may lawfullypurchase. Such a transaction is not ultra vires or void, but is valid and binding upon the original share-takers and upon the corporation, unless rescinded or set aside for fraud. While such a contract stands unimpeached for fraud or otherwise, the courts, even where the rights of creditors are involved, will treat that as payment which the parties have agreed should be payment: 2 Thompson’s Commentaries, sec. 1642.</p> <p>DECREE.</p> <p>And now, April 5, 1897, it is ordered, adjudged and decreed, that the bill of R. A. Malone, plaintiff, against the Lancaster Gas Light and Fuel Company, and John I. Hartman, P. T. Watt, H. S. Williamson, John A. Coyle, J. Gust. Zook, J. D. Skiles, J. Fred. Sener, N. M. Woods, D. McMullen, H. M. North, J. C. Hager, W. U. Hensel, P. B. Shaw and J. H. Baumgardner, directors and stockholders of the said corporation, defendants, be dismissed, and that the costs of the said proceeding be paid by the plaintiff.</p> <p>Error assigned was decree dismissing bill.</p>

<p>Quo warranto — Corporations—Ferries—Exclusive franchise — Forfeiture of franchise — Practice—Pleadings—Formal defects — Arrest of judgment— Effect of verdict after trial on merits.</p> <p>In a quo warranto proceeding by the attorney general to forfeit an exclusive ferry franchise granted by a special act of assembly, where the defendants have filed a general denial to the information, and the case has. been tried upon the merits, and a verdict rendered against the defendants, the court will not, except in a very strong case, arrest the judgment because the averments in the information are too general.</p> <p>Where a person is granted a ferry franchise, and the franchise is made exclusive, within certain limits, so long as the grantee affords facilities for crossing the stream, the act or omission to act which will constitute a violation of the condition must be a persistent and general course of conduct, covering more than special days and acts, and must be continuous through months and, perhaps, years.</p> <p>In quo warranto proceedings against the proprietors of a ferry having exclusive privileges, the information averred that the defendants had for several years neglected to furnish facilities for passing foot travelers across the river, and had not kept the ferry in repair, or complied with the conditions of the grant; adding the following specifications: 1, the ferryboats are and have been unfit, inadequate and dangerous; 2, the employees in charge of the ferry are and have been inexperienced, incapable and negligent; 3, defendants do refuse and have refused, on divers occasions, to ferry travelers over the river when requested, so that they have been compelled to go to other ferries a long distance above or below; 4, the defendants and their predecessors have charged excessive and illegal tolls for ferriage; 5, the defendants have been guilty of other acts of misuser and nonuser. Held, that after a trial upon the merits and a verdict against the defendants the court would not arrest the judgment on the ground that the averments in the information were too general.</p> <p>In quo warranto proceedings against the proprietors of a ferry having exclusive privileges, where the exclusive privileges are conditioned upon the proprietors affording “facilities for crossing,” the omission of the word “wilful” in the information, as applied to the neglect or failure charged, is not ground for arresting the judgment, after a trial upon the merits and a verdict against the defendants. Quo warranto will lie to forfeit the exclusiveness of a franchise without affecting the right to exercise the main franchise itself.</p>

<p>Appeal, No. 95, Jan. T., 1897, by defendant, front judgment of C. P. Perry Co., Nov; T., 1893, No. 8, on verdict for plaintiff.</p> <p>Trespass for death of plaintiff’s wife. Before Lyons, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,127.08. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

Appeal, No. 213, Jan. T., 1897, by Jane Thompson, from decree of O. C. Juniata Co., overruling exceptions to auditor’s report. Exceptions to auditor’s report. From the report of Wilberforce Schweyer, Esq., the auditor, it appeared that the testator died on April 27, 1895, leaving a will which was as follows: “ First.

Appeal, No. 205, Jan. T., 1897, by defendants, from decree of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 992, on bill in equity. Bill in equity to restrain an alleged infringement of plaintiff’s trade-mark and to enjoin unfair competition in trade.

Appeal, No. 18, May T., 1897, by Aaron Paul, from decree of O. C. Dauphin Co., overruling ex-eeptions to auditor’s report. Held: that claims for services against a decedent’s estate not presented as a legal demand until after the death of the alleged debtor, will have every intendment and presumption made against them. “ Claims against a dead man’s estate which might have been made against himself, while living, are always subject to just suspicion: ”…

<p>Taxation — Corporation—Appraisement of shares — Mining leases.</p> <p>A corporation owning mining leases earned over sixteen per cent during the tax year of 1895, during which time there were no sales of stock. It owned no land, and some of its mining leases were to expire on June 30, 1897, and there was some uncertainty about their renewal, which was considered in making the assessment. It did not appear that a failure to secure a renewal of the leases would necessarily end the business operations of the company. The auditor general and state treasurer assessed the shares at live sixths of their par value. Held, that a proper allowance had been made for a possible failure to renew the leases, and that the assessment should be sustained.</p>

<p>Appeal, No. May T., 1897, by Elizabeth Pittman, from decree of O. C. Fulton Co., on petition to sell real estate.</p> <p>Petition to sell real estate. Before Swope, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Boad law — Change of grade — Leasehold—Future income — Damages.</p> <p>In a proceeding by a baseball club against a city to recover damages for an alleged diminution in the value of the leasehold of its ball grounds resulting from a change of grade of a street, where there is no proof that the change of grade affected the income of the club, and the uncontradicted testimony is that the income increased during the progress of the improvement, and continued to increase until the time of the trial, a period of three years, the jury should be instructed that the evidence is insufficient to justify them in allowing any damages whatever for alleged loss of income, whether in the three years which had already elapsed or in the remaining years of the lease.</p>

<p>Appeal, No. 534, Jan. T., 1896, by plaintiff, from order of C. P. No. 4, Philadelphia Co., Sept. T., 1895, No. 618, refusing a peremptory writ of mandamus.</p> <p>Petition for mandamus.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order refusing peremptory writ of mandamus.</p>

<p>Appeal, No. 367, Jan. T., 1896, by S. A. Barber, guardian, et al., from decree of O. C. Pbila. Co., Oct. T., 1888, No. 190, in dismissing petition to set aside sale.</p> <p>Petition to set aside sale.</p> <p>The facts appear by the opinion of the Supreme Court, and by part of the opinion of Ashman, J., which was as follows :</p> <p>The decisive points of this case are few, because the efforts of the petitioners were concentrated upon the showing of malfeasance on the part of the active trustee in depleting the estate of a single asset. That asset, however, was by far the most valuable property left by the testator. The respondent’s scheme, it was admitted, was carried out with a scrupulous adherence to legal procedures, and was even perfected by means of a judicial decree; but its purpose was his own enrichment and incidentally that of his co-life tenants, to the total subversion of the rights of remaindermen. The only facts which, at the outset, need to be referred to are that the testator was partner in a firm whose entire source of profit lay in its right, as lessee, to mine coal under two certain leases. The mines gave an extraordinary yield and, recognizing the value of his interest, the testator left minute instructions in his will for the continuance of his estate in the business, either in the existing firm or in one to be established, and he entrusted the work of carrying out this design to his son, John Markle, whom he vested with plenary powers. The son, assuming that the firm had dissolved, entered with his cotrustees and life tenants, as individuals, into a new partnership. Acting under his advice, these parties then applied, as trustees, for leave to sell the testator’s interest in the mining improvements and fixtures of the late firm, and to become buyers at the sale; and in lieu of paying over the purchase money, they obtained the order of court, which is now sought to be vacated, directing that it should be simply charged against their shares in the decedent’s estate.</p> <p>The initial objection to the order of sale is the alleged nonjoinder upon the record of the grandchildren, parties in remainder, of whom two were then living. It is worth noting that the sons and daughters, all of whom appeared, were, as to a part of their interest, something more than life tenants. At the age of forty years, one third of their share of the entire estate was to vest in each of them absolutely. But in case the trustees should decide to continue the business of mining, each of the sons was forthwith to be paid two sixteenths of the value of the lease and improvements of the mining property, and that sum was to be taken in part payment of his interest under the will. Tbe effect of this provision was to accelerate the vesting of so much of the son’s shares, or rather to turn what had been a contingent into a vested estate. The character of the property, outside of the superstructures on the ground, was such that it was liable to be worked to exhaustion during the pendency of the life estates. Hence the interests of the grandchildren hinged upon a double contingency; their survival of the children and the possibility that the principal of the estate would be absorbed by the income. For the grandchildren who were unborn at the date of the decree, and of whom four have since come into being, no guardian could be appointed. The duty of guarding their interests devolved upon the trustees. It is said, however, that, with one exception, the trustees were by the very terms of the decree itself .antagonistic to those interests, because they were buyers and sellers at their own sale. But the excepted trustee was wholly impartial; he was a stranger in blood to the parties, while of his cotrustees two were parents of the minors who are alleged to have been despoiled of their inheritance. He himself petitioned for the sale of the mining-property, and in his capacity as trustee, he represented in that transaction the remaindermen as fully as he did the tenants for life. In fact as well as in law, therefore, the minors were parties to the proceeding.</p> <p>Impartially read, the evidence points to the conclusion that the respondent trustee honestly sought the advice of counsel and withheld from him no fact which would be of service in making up his opinion. Not only were the sale and the negotiations which preceded it conducted under legal supervision, but the scheme of the sale itself was projected by counsel. It was said by an eminent judge that he knew of no case where a man who acted in good faith upon the suggestion of counsel had not been protected: King v. Morrison, 1 P. & W. 196. If we accept this statement in its entirety we do not thereby end this inquiry. For the advice of counsel is not so potent a talisman that it will render his own errors invulnerable. It may shield the trustee from responsibility, but it will not be permitted to inflict loss upon the beneficiaries if the door to a remedy is open. The present case must be adjudged upon this theory; because while the complaint is nominally against the active trustee, it is nevertheless, when analyzed, a criticism of the' course which was recommended by counsel. The work assigned to counsel was rendered difficult and delicate by certain peculiarities in the provisions of the will, and still more in the character of that part of the testator’s estate which is now the subject of controversy. At the time of his death, on August 18, 1888, the testator owned an interest of seven sixteenths as partner in the firm of George B. Markle & Co. The partnership was engaged in coal mining, and its most valuable assets were the privileges it enjoyed under two leases, one with the Union Improvement Company and the other with the Highland Coal Company. The testator held this property in high regard • it had engrossed much of his time and energy, and it had not only amply repaid the expenditure, but it promised to be even more remunerative in the future. Hence he was even painfully solicitous in his will to give the most elaborate directions respecting its care and control. After creating a trust under which each of his children would receive an equal share of the income of the estate until his or her age of forty years, and thereafter one third of the principal of such share absolutely, and the income of the remaining two thirds for life, with disposition over to children as the parent should by will appoint, and in default ■then to children absolutely, the testator directed that his interest in the firm should be continued in the said business for the benefit of his estate; and he empowered his executors and trustees to enter into new leases of the same lands and into new copartnerships. He also declared that all of these acts were to be done only by the advice and in the discretion of his son, John Markle. Under any new agreement of partnership he directed, out of the interest of his estate therein, the transfer to each of his sons, of two sixteenths of the whole value of the lease and improvements, to be charged against them respectively as part payment of their share of the principal of his estate. He constituted his three sons and D. Stuart Kobinson his executors and trustees. All of the five children survive, and three of them, the sons, are still under the age of forty years. The trustees continued the business up to January 1, 1890. One of the leases expired on the preceding day, and the other was within two years of expiring. On February 6, 1890, a petition was presented to the orphans’ court for leave to sell the interest of the decedent in the partnership to the sons and daughters of the testator, who had bécome members of a new firm, and of whom three were trustees under the will. Thereupon a decree reported by a master was entered June 14, 1890, and amended July 5, 1890, authorizing the sale, and fixing as the interests of the purchasers, two sixteenths each to George B., Alvan and John Markle, the sons, and one sixteenth each to Ida and Clora Maride, the daughters, in the purchase money of $289,769.12. The decree further directed that the amounts so due by the sons should be charged against the principal of their several shares in the decedent’s estate, and that the amounts due by the daughters should be paid by them in cash.</p> <p>The specific property covered by the lease with the Union Improvement Company was the Jeddo colliery. The buildings and mining appliances of every description connected with the colliery were owned by the firm, and the land alone was in the ownership of the lessors. The trustees were informed by the lessors that no lease of the Jeddo colliery could be had except in conjunction with the Ebervale colliery, which adjoined the former property. The question which thereupon confronted the trustees was whether the landlord had power to exact that condition, on the one hand, and whether they had the power to comply with it, on the other. The lease provided that, at its termination, the lessees should have “the preference of re-renting the same premises on as favorable terms as shall be offered by other responsible parties, or shall be allowed the actual cash value at that time ” of the improvements made by them on or under the land. The phrase, “as favorable terms as shall be offered by other parties,” covered a wide latitude of meaning. It certainly comprehended more than the mere bid of a higher rental. Manifestly, more favorable terms would be had from a competitor who should agree, as a condition of leasing this property, to mine another and less desirable colliery than from these lessees, if the latter should refuse, on any terms, to go outside of the land which was described in the original lease. The sole power conferred by the instrument upon the lessees was the right to compel a releasing, provided better terms were not procurable from others. Counsel instructed the trustees that, under the will, they had no authority to accept a renewal of the old or to execute a new lease for any other laud than that which the firm had theretofore operated, and that the will in terms prohibited them from mining in other territory. We will not discuss the soundness of this opinion, nor decide whether the letter of the will carried such an inhibition, or, if it did, whether the letter might not be disregarded in order to carry out its spirit. It is sufficient if the course advised by counsel can be vindicated by other considerations. The Ebervale mine, which was attempted to be foisted upon the trustees, had been overflowed, and could be kept free from water by pumping only, at an enormous and continuing expense. Another expedient, however, which, if carried out, would be undoubtedly effectual, was to open a tunnel from the mine to Nescopec creek. The tunnel, it was estimated, would be some three miles in length, and would cost several hundreds of thousands. When afterwards built by the new copartnership its actual cost was $342,863.44, and the right of way $79,758.82, in addition. Would the trustees have been justified, no matter with what hope of prospective advantage, in launching the estate upon such an adventure; and would not the parties who now object because the trustees refrained from attempting it have complained more vehemently if they had assumed the risk and wrecked the estate ? It is not enough to say that the undertaking afterwards proved to be feasible, and was successfully carried out by the trustees when they had laid aside their official capacity. They could do, as individuals, what they might not do as trustees; and their acts and omissions are to be judged, not by the light of experience, but that of experiment. As far back as the time of Lord Hardwicke, it was held that a trustee deserves to be treated even with tenderness, and the decision in Knight v. Plimouth, 3 Atk. 480, has hardened into a formula which is as stable as any proposition in law, that a trustee shall not be held to a larger measure of vigilance than would be displayed by a man of ordinary prudence in the management of his own affairs. We think that, with or without the advice of counsel, the trustee had a legal excuse for refusing to make the estate a party to this lease.</p> <p>Upon the lease with the Highland Coal Company two years were yet to run at the time of the sale. It contained the same provisions as to renewal which appeared in the Jeddo lease. But it also stipulated that the personnel of the lessees should not be changed without the consent of the lessor. . . .</p> <p>We have seen that the lessors could successfully oppose any demand for a renewal of the leases; in the one case by insisting upon making the leased territory servient to adjoining mines, and in the other by refusing, after the term should end, to accept the estate of a deceased lessee for the lessee himself. With this inability on the part of the trustees to renew existing leases, or to enter into new leases, of the lands in question, the interest of the testator in those lands, outside of the improvements which he had helped to erect, would vanish into air. The decedent was a partner in a firm whose assets were two mining leases, and whose profits were made by them as lessees and not as owners; when the leases ran out, their profits and the source from which they were derived ceased together.</p> <p>The reason has already been given why we are not called upon to debate the wisdom of the sale. Nothing short of conspicuous fraud would warrant us, after an interval of years, in going into the minutiee of the transactions which were necessarily involved in carrying it properly out. We are prepared to say, however, that due regard seems to have been paid to the properties. The appraisers were men of character and ability, and they were able to give a plausible account of the process by which they reached their valuations. Our attention was directed to the apparent discrepancy between the cost of the buildings and fixtures which on the books of the firm was stated at $591,804.45, and their value as fixed by the appraisers, which was $207,752.97 less than the cost. The explanation was that on the books no allowance was made for articles which were worn out or obsolete. When one piece of machinery was replaced by another, the cost of the new was piled upon the cost of the old; and as this practice had continued for years, the aggregate of the figures afforded no possible clue to the market value of what remained in use. One error, however, was pointed out by the appraisers themselves. By a slip of the pen they marked the good-will at $64,000, when they intended $128,000; and seven sixteenths or $28,000 of the former sum, being the proportionate interest of the estate in the firm assets, was carried by the trustees into the inventory, and thence into their account. The amount of the purchase money set out in the decree should be increased $28,000.</p> <p>Thus far in treating the case we have kept strictly to the lines which were laid down by counsel, and we have left out of sight what might prove a powerful factor in its determination, the sway which the testator voluntarily commissioned his son to wield. It was a gift, as respects the mining interests at least, and they are all with which we have to deal, of power which was practically absolute, because it was freed from responsibility. “ I release my said son from all liability for loss to my estate, occasioned by his deciding what is for the best interests of my estate in the mining of coal or other matter whatever,” is the language of the will. It does seem to be futile to undertake to examine through the glasses of an expert the methods of a trustee who holds a patent of authority like this, and to call him to account for what we may even believe to be folly, if it stops short of fraud, when the testator has expressly absolved him from accountability.</p> <p>This disposes, in a general way, of the testimony and arguments which were submitted concerning the transactions which culminated in the sale. In the decree itself which authorized the sale, a matter is involved which vitally touches the rights of the parties in remainder. The decree authorizing the sale directs that the shares of purchase money due by the sons shall be charged against their respective shares in the principal of the estate. Of course, this does not mean that if the shares, or any of them, in the capital should be less than the amounts due of the purchase money, the deficit shall be presented as a gift to the defaulting purchasers. For example, the share of one of the sons in the gross capital of the estate, as augmented by the purchase money, was, after deducting the third, which was paid to the widow, $93,296.38. But he had been advanced by the testator $102,897.72, so that he is still indebted to the estate, in the shape of advancements, $8,601.34. Evidently his proportion of the purchase money cannot be paid out of an interest which is $8,601.34 less than nothing. No change in the decree, except to add to the amount of purchase money therein, the sum which was omitted by the appraisers, is necessary. The order of sale was based upon the theory that the purchase money was cash, and that the shares of the purchasers in the estate were fully equal in cash values to their shares of the purchase money debt, and it would never have been, made upon any other hypothesis. To assume otherwise would be to put this court in the position of decreeing a positive wrong to tire innocent remaindermen. The price at which the property was sold was no mere paper value to figure in a balance sheet or to serve the turn of a speculator; it was the actual sum in cash, less perhaps the value of the good-will, which the lessors were bound to pay if the purchasing trustees had not assumed it; and when the trustees petitioned for leave to pay the purchase money out of their testamentary interests, they pledged their faith that those interests were, at least, equal to the debt. We do not believe that they descended into the artifice of drawing upon a fund which they knew was in the clouds.</p> <p>The specific prayers for relief are refused; but the order of sale of June 14, 1890, as amended by the supplementary order of July 5, 1890, is corrected by adding $28,000 to the amount of the purchase money, and increasing proportionately the amounts due by the respective purchasers therein. And the trustees are ordered to pay into the capital of the estate so much of the said purchase money as the shares of the children in the said capital are inadequate to pay; such deficit to bear interest from June 14, 1890.</p> <p>Error assigned was in refusing to set aside sale.</p>

Appeal, No. 547, Jan. T., 1896, by-Ida Markle Hessenbruch, from decree of O. C. Philadelphia Co., Oct. T., 1888, No. 190, that a charge of $28,000 should be paid by appellant. Petition to set aside sale. The facts appear by the opinion of the Supreme Court, and by Markle’s Estate,-ante p. 378.

<p>Appeals — Special allowance — Constitutional questions^-Practice, Supreme Court — Practice, Superior Court.</p> <p>An appellant from the Superior Court to the Supreme Court cannot be permitted to decide for himself whether he is entitled to an appeal with-</p> <p>out allowance. Unless it clearly appears from the record that the case comes within one of the exceptions named in the seventh section of the act creating the Superior Court, there must be an allowance of the appeal, and the petition therefor should set forth clearly and specifically what constitutional question is involved, and in what manner it is raised.</p> <p>Appeals were taken in a road case from judgments of the Superior Court without special allowance, on the filing of an affidavit that the cases involved the construction or application of the constitution of the state. It did not appear from the record that any constitutional question was raised.</p> <p>Held, that, though irregular, yet, as the question of practice when the appeals were taken was new, and had not been provided for by rule, and; as the cases were of public importance, and the judgments were rendered by a divided court, a motion to quash will be overruled and the appeals considered as if they had been duly allowed.</p> <p>Road law — Vacation of street — Damages—Act of April 21, 1858.</p> <p>Where part of a street has been vacated under the special Act of April 21, 1858, P. L. 886, relating to the vacation of streets in Philadelphia, owners of properties which abut upon the street, but not upon the part vacated, are entitled to recover damages if their properties are depreciated in value by reason of their being left in a cul de sac, and cut off from direct access to the system of streets in the direction of the vacated part of the street upon which their properties abut; and difficulties in defining the limits where the right to compensation shall end are not a valid objection to the claims of such property owners. Their injury is different from the injury of those who use the street for travel only, not in degree merely, but in kind. Their interests must be regarded as property, and will sustain a claim for compensation.</p> <p>Road law — Presumption that viewers have done their duty.</p> <p>In road cases it will be presumed that the requirements of statutes have been complied with by the viewers, and therefore it is not necessary to so state in the report, unless specifically required by the acts regulating the subject.</p> <p>Where a street has been vacated for the benefit of a railroad company, and this sufficiently, appears from the report itself, it is not necessary for the viewers to report specifically that the railroad company was the owner of the land benefited.</p>

<p>Appeal, No. 421, Jan. T., 1896, by Henry W. Bartol et al., from decree of O. C. Delaware Co., overruling exceptions to auditor’s report.</p>

<p>Appeal, No. 550, Jan. T., 1896, by plaintiff, from decree of C. P. Schuylkill Co., Nov. T., 1896, No. 6, dismissing bill in equity.</p> <p>Bill in equity for an injunction. Before Pershing, P. J., and Bechtel, J.</p> <p>The bill averred that the complainant was the lessee of the Mine Hill Railroad; that the Mine Hill Railroad Company took water for engines used on the Mine Hill Railroad from Indian Run stream, in Branch township, in Schuylkill county, from about the year 1885, and such taking was continued up to the date of the filing of the bill of complaint; that a lease was made by Samuel H. Shannon on January 10, A. D. 1866, to the Philadelphia and Reading Railroad Company, for the term of ten years, to take water from said Indian Run for the use of engines used on the Mine Hill Railroad, with the privilege of purchasing a perpetual right to lay pipes and take water from stream upon payment of the sum of $6,000 at any time during the term of said lease; that when said term had expired, the said Samuel H. Shannon made a new lease to said complainant for a period of twenty years, of the same right, with a similar clause as to the purchase of a perpetual right to lay pipes and take water from said stream upon payment of the sum of $6,000 at any time during the said term or at the end thereof, and covenanted to make a deed to said complainant for the said property, and bound his executors and administrators to make such deed; which lease was duly recorded in Schuylkill county, July 13, 1876; that the complainant expended large sums of money for the erection of a water station and the laying of pipes and keeping them in repair, and that without said water' supply the business of the Mine Hill Railroad will be seriously interfered with and irreparable injury will be done to the complainant by being deprived of said water supply, and by the appropriation of said property by the defendant; that the right of the Mine Hill Railroad Company to have and use the water of Indian Run was a matured right prior to the making of the agreements between the Philadelphia and Reading Railroad Company and Samuel H. Shannon, aforesaid; that prior to the end of the term of the lease for twenty years, to wit: on October 29, 1895, the Philadelphia and Reading Railroad Company, acting by and with the assent of the receivers of the said company, at a meeting of the board of directors of said company, adopted a resolution declaring that the said railroad company did conclude and determine to end the lease then existing, and to exercise the right in said lease to take a deed in perpetuity for the water rights and property mentioned in said lease, and directed notice of such determination to be given to the heirs of Samuel H. Shannon (the said Samuel H. Shannon being then deceased), and of the readiness of the said company to pay the sum of $6,000 in cash on the execution and delivery of a deed in accordance with the terms of said lease, and notice of such determination and of the adoption of said resolution was given to the heirs of Samuel H. Shannon, deceased, who are also the executrices of the estate of said deceased, prior to the termination of said lease and contract; that the Pottsville Water Company, by means of pipes laid and a dam in process of construction on said Indian Run stream, intend to take all the water of said stream and to destroy the same as a source of water supply for the complainant, and also to destroy the dam belonging to the complainant on said stream; that the Pottsville Water Company claim to take the said property by virtue of condemnation proceedings in the common pleas of Schuylkill county, against the heirs of Samuel H. Shannon, deceased, although the Philadelphia and Reading Railroad Company or the Mine Hill Railroad Company were not made parties to said proceedings, notwithstanding that the Philadelphia and Reading Railroad Company was in actual possession of said property at the time the said condemnation proceedings were instituted and all the time since; that the said property is held by the complainant for public purposes and public use, and the complainant being a corporation for public purposes, the said property cannot be taken from it by the Pottsville Water Company, respondent.</p> <p>Upon an allegation of no adequate remedy at law, an injunction was prayed for to restrain the defendant from taking the said property and from interfering with the dam and pipes of the complainant so as to prevent it from having a supply of water sufficient at all times for the engines used on the Mine Hill Railroad.</p> <p>The defendant’s answer denied that the Mine Hill Railroad Company acquired any right in or to all or any of the waters of Indian Run stream, or had any easement or right of way or title to any portion of the lands over which its pipes are laid to Indian Run stream, but it admitted the occupation of the property by the complainant and that it used and enjoyed the waters of said stream, but averred that the lease providing for the sale or use of the waters of said stream for purposes other than those appertaining to riparian ownership is void, and that all rights under the said lease fell with the condemnation proceedings referred to in the complainants’ bill.</p> <p>The answer denied the right of the complainant to any right of way or use of the waters aforesaid, because the right was enjoyed only under a lease, and that the complainant under the charter of the Mine Hill Railroad Company had no such right, and. that if it had such right it did not avail itself of it but exercised the right simply as a tenant under an admitted owner, and that no proceedings under the right of eminent domain were resorted to to acquire said property.</p> <p>The answer denied that the complainant has any right to the use of the water and right of way thereto by virtue of its being a common carrier or quasi public corporation, and averred that the complainant is a trespasser on the premises of the respondent; that the right to the use of said property is only by the lease from Samuel H. Shannon, a riparian owner, and that the complainant acquired no greater right than the lessor had as a riparian owner, and that the proceeding to condemn said property in the hands of the heirs of said Samuel H. Shannon divested the title which the complainants had in said property; that the waters of Indian Run are necessary for the Pottsville Water Company, and in enlarging its plant said water company is about to use the Indian Run stream, and alleging that it is necessary to do so for its business.</p> <p>The answer denied the allegation in the complainant’s bill that the right to have and use the waters of Indian Run stream was a matured right prior to the agreements made between the Philadelphia & Reading Railroad Company and Samuel H. Shannon, and averred that the complainant occupied the land as a tenant of said Samuel H. Shannon.</p> <p>A preliminary injunction was granted and, subsequently, on motion, the court entered a decree dissolving the injunction and dismissed the bill.</p> <p>JError assigned was decree dismissing bill.</p>

<p>Appeal, No. 552, Jan. T., 1896, by-defendant, from judgment of C. P. Montour Co., on verdict for plaintiff.</p> <p>Assumpsit for goods sold and delivered.</p> <p>At the trial it appeared that the suit was to recover the price of certain wood and iron patterns alleged to have been manufactured for and delivered to the defendant company upon its order. The defendant claimed, that the patterns arrived in a broken condition, were unskilfully made, were not in accordance with the specifications and could not be used.</p> <p>J. Foster, a witness for defendant, after having testified at length, was asked this question by Mr. Hinckley, of counsel for plaintiff:</p> <p>“ Do you not know that Bascom’s errand there — and the drift of the conversation — was his being paid for these patterns? A. As I understood it, he came for the purpose of having pointed out to Mm defects in his patterns. He may have wanted his pay. Q. Did he not come here to Danville for the purpose of getting Ms pay for these patterns ? A. As I understood it, tbe object of Bascom’s visit at that time was to see what defects there were in his patterns — for us to point out defects in the patterns. That is what I had notified him to come here for — to talk the matter over. Q. What was the windup of jrnur interview? A. Well, the windup of our interview was that I made Mm a proposition or offer to pay him five hundred dollars and give him the patterns. Q. You offered that that day? A. Yes, sir. Q. What did he say ? A. He said he would not settle it that way. Q. Did you at any time renew that proposition? A. I did. Q. When ? A. Subsequently, I think by letter, I renewed the proposition.”</p> <p>By Mr. Scarlet of counsel for defendant: I object to this. My objection is this, that anything in the way of a proposition of settlement that is not accepted by the parties, cannot be evidence in the case.</p> <p>By the Court: There is no pretense that the defendant is bound by it; but it is part of a conversation brought out or inqmred of by the defendant. We overrule the objection, admit the evidence, note an exception for the defendant. [14]</p> <p>By Mr. Hinckley: The proper motion now would be to strike out, but we have no objection to the record showing the objection made at the time the question was asked, and to having it ruled-in that way.</p> <p>“Q. That proposition was afterwards renewed, you say? A. Yes, sir. Q. That proposition was renewed by the letter of May 15th. A. Yes, sir. I renewed it on my own responsibility.”</p> <p>The court charged m part as follows:</p> <p>[We fail to discover anything in 'the testimony to support the defendant’s claim of a special or express warranty of these patterns by the plaintiff; but the plaintiff by Ms testimony proves that the work he did or was to do and the patterns were to be first-class; and, in the absence of special or express warranty, the law implies that the patterns manufactured should be reasonably fit and suitable for the purposes for which they were designed. If they were not, and if the defendant by reason thereof has sustained damage to an amount equal to or greater than the contract price, then you must find for the defendant. But if you should find the damage sustained to be less than the contract price or nothing, then, if the patterns have any value for any purpose, notwithstanding their unfitness for the use for which they were intended, the plaintiff might be entitled to recover such value.] [1]</p> <p>There has been a great deal of testimony in this case, and it has been very tedious and troublesome to investigate the different claims set up by one party and by the other in reference to these various and numerous patterns. The business of scanning and scrutinizing all this testimony and of ascertaining from it where the truth lies is peculiarly within your province. It is your duty to recall to your minds all the testimony in the case, both documentary and oral, and to give it such weight as you believe it entitled to. If you can reconcile the testimony of the witnesses and the written communications that took place between the parties so as to find them all consistent with the truth, and not to find that anybody intended to misrepresent or to swear falsely or make a mistake, it is your duty to do so; but if the testimony be so conflicting that one party or the other must evidently be mistaken, then it is your duty to give credit where you think credit is due. . . .</p> <p>[You will recollect that at least two of the defendant’s witnesses testified that these patterns were not in good condition when received. If they were not in good condition when received from the carrier company, whose fault or loss was that ? There is no evidence (that we recollect) that the plaintiff failed to pack them properly or that they were not properly packed. There is testimony that they were fastened to a followboard, and no denial that that was a proper way to pack and ship. If through the carelessness or mismanagement of the transportation company, the common carrier, the patterns were separated or broken or otherwise injured, it would not be the fault of the plaintiff nor of the defendant but that of the common carrier.] [2]</p> <p>[If you should find that the patterns were not made in full compliance with terms of the contract, but that they were received and kept, used and retained, for an unreasonable length of time, without giving the plaintiff knowledge of it — we believe there is no dispute as to the time the patterns were all received, about the middle of October, and that they were held until sometime in January following, a period of about three months, before notice — then, if you should find they were held for an unreasonable length of time, without notice to the plaintiff, although they were not fit for the purposes for which they were intended, the plaintiff would be entitled to recover, less the damage, if any, for failure to comply with the contract. Just at this point we should say to you that damages cannot be set off unless there is some satisfactory proof of them, something more than a general allegation, some data given you by which you can make an estimation or calculation of their amount.] [3] There was some testimony about two weeks’ work, and in a statement by Bascom, we think, something about a matter that could be remedied for a dollar and a half. Such items, where the proof is specific and certain, might be set off. If the defendant has shown any items of damage such that you can arrive at the total amount of damage, to such amount the defendant is entitled by way of set-off.</p> <p>To recapitulate, gentlemen of the jury: If you find from the evidence that the plaintiff has fully and entirely complied with the contract on his part, made and delivered the patterns according to the contract and specifications, then he would be entitled to recover the contract price with interest from the time it was due and payable — in other words, the full amount of his claim.</p> <p>[If you should find from the evidence that the plaintiff did not fully and entirely fulfil the contract on his part, but should also find that the defendant, notwithstanding such failure, received and accepted the patterns and retained and used them for an unreasonable length of time before giving notice to the plaintiff of such failure and without offering to return them in as good condition as they were in when received by the defendant, then the plaintiff may recover the contract price, less the damage, if any, which the defendant company has sustained by the failure of the plaintiff to make and provide the .patterns in accordance with the contract and specifications.</p> <p>You will understand that in either of these two cases or alternatives the plaintiff would recover the full amount of his claim with interest, but in the second, less the damage proved by the defendant.] [4]</p> <p>Thirdly, if you should find from the evidence that the patterns were so inferior in quality and manufacture, and so far from being in conformity with the contract and specifications relating to the same, as to be entirely worthless and useless to the defendant company, and that the defendant so notified the plaintiff and offered within a reasonable time to return the same or to hold them subject to his order, then your verdict should be in favor of the defendant.</p> <p>Defendant’s points and answers thereto among others were as follows:</p> <p>3. If there is a total or partial failure of the performance of the contract in the kind or quality of the workmanship so as to render the patterns unfit for the uses intended, and unprofitable to the defendant company, and the jury so find from all the evidence, there can be no recovery by the plaintiff in this ease. Answer: That point is refused. [5]</p> <p>4. If the contract is not performed according to the specifications, in that material parts have been omitted, or that they have been changed, so as to affect the value of the patterns and render the manufacture of the stove unprofitable and useless and worthless to the defendant, it is a non-compliance with the contract and the plaintiff cannot recover. Answer: That point is refused. [6]</p> <p>6. The letter of January 8,1891, is in no way binding upon the defendant company, it being shown that such letter was not signed by the company or by any one having authority to bind the said company.- Answer: That point is refused. -We will instruct you more particularly in reference to that matter farther on. [7]</p> <p>7. If the plaintiff by his correspondence leading up to the contract made any representation as to the kind and quality of the goods, to wit: That the stove in question was to be a first class stove, and the testimony of H. C. Bascom and Galbraith to the the same effect, such statement enters into the basis of the contract, and if there is a nonperformance by the plaintiff, either in the character of the design and the execution of the work or an omission and departure from the specifications in material matters, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: Considering this point as a whole it is not correct. [9]</p> <p>9. In the discharge of his duty as president, Henry Vincent could not accept the work of the plaintiff without a fair test and. trial, or place upon his company a worthless machine, and if the jury find from all the evidence that such work has never been accepted by the company as a just and reasonable performance of the contract intended, there can be no recovery by the plaintiff, and the judgment should be for the defendant. Answer : That point is affirmed. But in reference to it we should say to you that the defendant company being a corporation, could act or contract only by its officers or agents ; and when such company holds certain persons out to the public as authorized to act on its behalf, then such company or corporation, like an individual, will be bound by all the acts and contracts of such person which are done or made within the apparent scope of their agency or authority in reference to the business relating to the corporation. If you believe from the evidence in this case that the defendant corporation knowingly held out Vincent, the president of the company, and Schocli, the bookkeeper, or either or both of them, to the' plaintiff, as agent or agents authorized to act and to make a contract of any kind, or contracts in what was done by them in relation to the making and furnishing of the patterns in question in this case, and that they did so act, then the defendant company will be bound by the terms of such contract or contracts as to whatever they did with reference to the business of the company. If these patterns were accepted under such authority by Vincent, the acceptance would be binding upon the company, and the defendant would be liable for any default made in testing or for any failure to test their value. Or a corporation, like the company defendant, may ratify unauthorized acts. Although you may believe from the evidence that the plaintiff performed the work and furnished the patterns in question for the defendant, at the request of one or more officers, members, agents or emplees of the corporation defendant, not previously authorized to act or contract in reference thereto; still if you further believe from the evidence that the plaintiff performed that work, and the patterns were furnished to the company defendant with the knowledge and consent of the officers and agents of the corporation having charge and control of its property and affairs, and that the corporation received, accepted, used and held the patterns for an unreasonable length of time before notifying the plaintiff of its dissatisfaction, accompanied with an unconditional offer to return the same; then as a matter of law the company defendant may be held to have ratified the acts of such unauthorized persons, and it may be bound thereby. [10]</p> <p>Plaintiff’s points and answers thereto among others were as follows:</p> <p>2. That if the defendant company received the patterns in question, and after such receipt began to alter or change the same, such act would be an assertion of ownership. Answer : This point is affirmed: Provided such change or alteration was made without authority or consent of the plaintiff. [11]</p> <p>3. If the jury find that the patterns were delivered to the defendant by October 15, 1890, and that the defendant did not offer to return them (because of defects) before January 28, 1891, and that this offer was conditioned on the plaintiff paying to the defendant its cost incurred in altering the patterns, said offer would not be a defense to plaintiff’s claim. Answer: That point is affirmed. [12]</p> <p>4. If the defendant’s offer to return the patterns was conditioned upon the plaintiff’s paying the costs incurred by it in altering the patterns, and the plaintiff declined such conditional offer, and the patterns remained in the possession of the defendant for an unreasonable length of time, this would be evidence of the defendant’s intention to retain the patterns, and the defendant would be liable for the price. Answer: This point is affirmed with the condition or exception that the defendant would be liable for the contract price, less the amount of damage, if any, sustained by the defendant by reason of the patterns not being in conformity to the contract, as under an implied warranty, as we have before instructed you. [13]</p> <p>Verdict and judgment for plaintiff for $1,482.49. Defendant appealed.</p> <p>Errors assigned were (1-7, 9-13) above instructions, quoting them; (14) rulings on evidence, quoting the bill of exceptions.</p>

<p>Judgment — Striking off judgment — Practice, G. P.</p> <p>A judgment which is regular in every respect, and which was entered in accordance with the intention of the parties, cannot be stricken off, upon motion.</p> <p>Judgment — Opening judgment — Evidence—Practice, G. P.</p> <p>The rule that the opening of judgments is a matter largely within the discretion of the court in which the application is made, and is not to be reviewed on appeal, except for plain error, will not be strictly applied where the opinion of the court below is not based upon a consideration of the credibility of witnesses, but is rather founded upon certain legal and equitable aspects of the case.</p> <p>On a rule to open a judgment it appeared that the note was given by the defendant to the plaintiff to secure the latter against any liability arising from the mere fact of his indorsing a promissory note made by defendant’s son, and not as an indemnity against the debt represented by the promissory note, nor as security that the maker of the promissory note would pay the note. The promissory note was subsequently paid by a third person, in consideration for which the plaintiff assigned the judgment. There was no evidence that the defendant had ever agreed that the judgment should be used for any such purpose. Held, that defendant was entitled to have the judgment opened and an issue framed ; and if such facts were established on the trial of the issue, the defendant was entitled to binding instructions.</p>

<p>Waters — Riparian owners — Statute of limitations.</p> <p>Where several factories had been established nearly a century ago along a branch stream separated from the main stream by an island, and for over twenty-one years the upper owners have regulated the head-gates of a low dam which had been built across the main stream to regulate the flow of the water in the branch, and have controlled and operated the gates according to the necessities of their own business, without reference to the need of the lower owners on the stream, but without depriving them of water, such upper owners have no right to turn the water into the main stream so as to cut off the supply, at night or at any other time, from one of the lower owners; although the predecessors in title of such owner' may have used very little of the water for some years, and may have never used it at night. The right of the upper owner is to use, not to destroy the use by the others.</p> <p>Quaere whether a mere right to do wrong without advantage to the wrongdoer can be acquired by any lapse of time.</p>

<p>Negligence — Railroads—Passengers.</p> <p>In an action by a passenger against a railroad company to recover damages for personal injuries caused by falling into a culvert while walking upon the tracks after alighting from a train, evidence that the culvert was repaired after the accident is irrelevant and inadmissible, where there is nothing to show that the railroad company failed in any duty to the passenger while he was alighting from the train.</p> <p>A nonsuit is properly entered in a case by a passenger against a railroad company for personal injuries where it appears that the plaintiff fell asleep and was carried past the station where he intended to alight; that at the next stop, on the suggestion of the conductor, but without any compulsion, or demand upon him for additional fare, he alighted from the train in a city with which he was familiar, and started to walk between the tracks, and, after going some distance, fell into a culvert and was injured.</p>

Appeal, No. 20, Jan. T., 1897, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1894, No. 375, on verdict for plaintiff. Assumpsit for breach of contract.

<p>Appeal, No. 41, Jan. T., 1897, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1893, No. 109, on verdict for plaintiff.</p> <p>Trespass for injury to plaintiff’s property. Before Will-son, J.</p> <p>At the trial it appeared that the plaintiff owned the buildings 817 and 821 Walnut street, in the city of Philadelphia. The defendant owned a lot in the rear of plaintiff’s properties fronting on Sansom street, and it erected thereon a power house in which it placed large and powerful engines and machinery, for the purpose of furnishing power to move its cable cars.</p> <p>The issue was joined on a declaration which charged that the defendant, “ contrary to its duty, so carelessly and negligently erected its power house and building and said machinery thereon, used and to be used, and so carelessly, wrongfully, and negligently ran and operated the same for a long period of time, to wit; at divers times since or before the first day of January, 1888, to the first day of August, 1890, that in consequence of the great and violent shaking, jarring, vibration, and concussion resulting from the said wrongful, negligent, and careless erection and construction of said-power house or buildings and said machinery, and wrongful, careless, and negligent use and operation thereof, the said plaintiff was grievously annoyed, disturbed, and injured in the reasonable and ordinary enjoyment of his said stores and dwellings and the business therein carried.”</p> <p>The court overruled a demurrer to the statement. [1]</p> <p>Defendant’s points and answers thereto were as follows:</p> <p>1. The defendant, by its letters patent in evidence and the acts of assembly by virtue of which the same were issued, had full authority to build, construct, and operate a cable for the traction of cars, and for that purpose to erect and operate upon its own land such stationary engines as are necessary to furnish power to said cable, without liability to the plaintiff for consequential damages to his property, the uncontradicted evidence being that no part of plaintiff’s property has been taken, nor is suiy portion of the two buildings in contact, there being no use by the defendant of a party wall; but on the contrary, its wall having been built upon its own land, leaving a space between it and plaintiff’s wall all the way from the bottom of the foundations to the top of the walls, so designed especially to prevent contact; the machinery and its foundations shaving been further isolated by being surrounded by an air space, and the best precautions known to the state of the art having been taken by the defendant to prevent the transmission of noise and vibration, excepting as they may be conveyed by the bed of the earth beneath all foundations or by the atmosphere. The verdict should be for defendant. Answer: Refused. [2]</p> <p>2. The defendant is incorporated for the purpose of, and is engaged in, operating a public work, to wit: the carriage of passengers along the public streets in cars drawn bj an endless cable. The necessities of this operation and the character of the business compel it to seek the heart of the city as much for the convenience of the public as for its own. Hence, the maintenance of a power house and stationary engines as near the center of its line through the center of the town as possible is in the direct line of its duty, and is part of the lawful enjoyment of its property and franchises; and, as it appears by the evidence, this was done without negligence or malice, it entails no legal liability. If unavoidable inconvenience falls upon neighbors, the same is damnum absque injuria. The verdict should be for defendant. Answer : Refused. [8]</p> <p>3. The injury complained of is alleged to be exclusively due to the operation of the machinery, not to the construction of it or the power house. As its operation is lawful and without negligence, and conducted upon the defendant’s own land, without contact or encroachment upon plaintiff’s, there can be no recovery, and your verdict should be for defendant. Answer: Refused. £4]</p> <p>4. This is not the case of a private individual maintaining upon his premises, in the heart of a dwelling quarter of the city, objectionable machinery which could be equally well placed in a more secluded spot, but it is the case of a cable railway, authorized by law to maintain a cable road in one of the most important and busy thoroughfares of Philadelphia, and as it appears that this machinery must necessarily be placed upon that thoroughfare, and has been built upon the company’s own property and isolated from adjoining buildings, its maintenance is lawful. Answer: Refused. [5]</p> <p>5. Under all the evidence the verdict should be for the defendant. Answer: Refused. [6]</p> <p>The court charged in part as follows:</p> <p>[I do charge you that if there was any such special damage resulting to the plaintiff from the operation by the defendant of the defendant’s works in that building, whereby the plaintiff lost rent or suffered in some other ways that have been described, he is entitled to a verdict for the amount representing that injury.] [7]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>JErrors assigned were (1) overruling demurrer; (2-7) above instructions, quoting them.</p>

<p>Negligence — Railroads — Passenger — Master and servant — Fellow servant.</p> <p>A person employed by a railroad company at a certain amount of wages per day and free transportation to and from his home is to be regarded as a passenger while traveling to his home after his day’s work is done; and if he is injured or killed while on the train by the negligence of another employee of the company, he is not within the rule which relieves the master from liability for an injury to a servant caused by the negligence of a fellow servant.</p> <p>Practice, 8. 0. — Assignments of error.</p> <p>An assignment of error that “ the trial judge erred in charging the jury that the decedent was a passenger,” without quoting any of the charge, offends against Rule XXIII, which provides that “the part of the charge .... referred to must be quoted totidem verbis in the specification.”</p>

<p>Contract — Assignment of expectant interest — Consideration—Equity.</p> <p>A conveyance or assignment of something that does not belong to the grantor, and may never belong to him, is at law inoperative, and in equity must be founded upon a valuable, not merely a good, consideration.</p> <p>Decedents' estates — Assignment of interest under will — Consideration.</p> <p>An assignment of an expectant interest under a will, made without consideration, in the testator’s lifetime, cannot be enforced against the assignors after testator’s death.</p> <p>Testatrix made a will by which she bequeathed her whole estate to a daughter and two granddaughters. Before testatrix died the three beneficiaries under the will signed a paper by which they agreed that one third of the estate should be divided amongst the children of a son of testatrix. All of the parties knew the contents of the will at the time the paper was signed. There was no controversy or dispute between them as to any claim of interest or title which the grantees had or might have in the estate of the testatrix, and the agreement was not based upon any valuable consideration. Held, (1) that the agreement could not be sustained as a family settlement; (2) that it could not be sustained as a gift, because the thing given had no existence; (3) that the fact that the grantees abstained from further efforts to obtain a codicil to the will was not a sufficient consideration to support the agreement as an equitable assignment.</p>

<p>Tax sale — Assessment—Acreage—Evidence—Question for jury.</p> <p>In an ejectment to try title to land under atax sale where itis contended that the land in dispute was part of a larger tract in the seated list upon which the taxes had been paid, evidence of the quantity of land in the tract in dispute, and of the quantity of the larger tract, as well as evidence that the land in dispute had been separately assessed in the unseated list, and that taxes thereon had been paid without question, is for the jury in determining whether the smaller tract was included in the assessment of the larger tract.</p> <p>Tax sale — Mistake of description in treasurer's deed — Evidence—Question for jury.</p> <p>In an action of ejectment to try title to land acquired at a tax sale where the evidence clearly and undisputedly identifies the land described in the treasurer’s deed as the land assessed and sold and in dispute, a mistake in the treasurer’s deed will not render the deed inoperative, but the question of the identity of the tract assessed is for the jury under all the evidence.</p> <p>Tax, sale — Separate assessment — Sheriff's sale — Innocent purchaser without notice.</p> <p>In an action of ejectment to try title to land which was formerly a part of tiie larger tract, the plaintiff claimed under a tax sale on a separate assessment of the land. The defendants claimed under a subsequent sheriff’s sale. In the various deeds in the line of title to the defendants, including the sheriff’s deed, the treasurer’s sale was recited, and at the sheriff’s sale public notice of plaintiff’s title was duly given. Held, that defendants could not be heard to say that they were purchasers without notice of the separate assessment and sale of the land in controversy.</p>

Appeal, No. 146, Jan. T., 1897, by-defendant, from decree of C. P. Luzerne Co., June T., 1890, No. 2, on bill in equity. Mitchell, J., dissents. Bill in equity for an account of royalties. The decree of the court below from which the defendant appealed, as well as the facts, appear by the opinion of the Supreme Court. Errors assigned were in overruling exceptions to master’s report.

<p>Appeal, No. 148, Jan. Term, 1897, by plaintiffs, from decree of C. P. Luzerne Co., June T., 1890, on bill in equity.</p>

<p>Appeal, No. 505, Jan. T., 1896, by Tbomas Mitcliell, from decree of O. C. Huntingdon Co., No. 156 of 1896, refusing an order to sell real estate.</p> <p>Petition for sale of real estate. Before Bailey, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>jError assigned was decree refusing to sell real estate.</p>

<p>Appeal, No. 572, Jan. T., 1896, by Elizabeth Mitchell, from appeal of C. P. Huntingdon Co., Execution Docket,No. 2, Sept. T., 1896, distributing proceeds of sheriff’s sale of real estate of Thomas Mitchell.</p> <p>Exception to report of J. F. Schock, Esq., auditor to distribute proceeds of sheriff’s sale of real estate.</p> <p>This case grows out of the will of Samuel Mitchell, deceased, and the principal facts are stated in Mitchell’s Estate, ante, p. 530. The court in that case having refused to grant an order to the executor to sell the real estate of the decedent for the payment of debts, also refused to stay the writ of fieri facias' against Thomas Mitchell; and the land devised to him by Samuel Mitchell, deceased, having been sold at sheriff’s sale, the auditor to distribute the fund rejected the claim of appellant, who was a creditor of testator.</p> <p>Error assigned was dismissing exceptions to auditor’s report.</p>

<p>Negligetice — Fires by sparks from locomotives — Province of court and jury ■ — Evidence.</p> <p>In an action against a railroad company to recover damages caused by fire set by sparks írom a locomotive, the case is lor the jury where the evidence for the plaintiff tends to show that the sparks which caused the fire were emitted from a particular locomotive; that the same engine, on the same day, and within a distance of three miles, set eleven other fires on farms adjoining or crossed by the railroad; that some of these fires were set by sparks thrown from three to four rods beyond the right of way, and that an engine provided with an improved spark arrester will not throw sparks that distance so as to cause fires.</p> <p>In an action to recover damages for injuries caused by the emission of sparks from a locomotive, it is proper to admit evidence to show that other fires were set by the same engine on the same day.</p>

Appeal, No. 99, Jan. T., 1897, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1896, No. 572k 011 verdict for defendants. Feigned issue to determine Avhether interest was due upon a mortgage. The facts appear by the opinion of the court below and of the Supreme Court. The jury rendered a verdict for plaintiff for $3,444 and also found specially as follows: “ Q. Was interest actually paid by Mr. Searight to his wife ? A. Yes, to date April 1, 1877.

<p>Limited partnership associations — Transfer of shares — Acts of Line 2, 1874, and June 25, 1885.</p> <p>The Act of June 25, 1885, P. L. 182, amending section 4 of the Act of June 2, 1874, P. L. 271, relating to membership in limited partnership associations, makes no distinction between a transferee of stock who is a member of the association, and one who is not; and therefore a member who purchases additional shares of the association sustains the same relation to such shares as purchasers who are not members, and he cannot vote such shares unless elected to membership upon them.</p> <p>A limited partnership association is not restricted, in the adoption of bylaws, rules and regulations for its government, to such asitisinthe power of a corporation to prescribe. Although it has some of the qualities of a corporation, yet it is, nevertheless, a partnership association, governed by the statutes under which it was organized; and, under the acts of 1874 and 1885, it has power to adopt the rule that “ any person being a member of the association who becomes the transferee of additional shares, shall have no right to participate in the subsequent business or profits of the association, or to vote upon such additional shares, unless elected to membership thereupon.”</p>

<p>Ejectment — Evidence—Htisband and wife — Fraud.</p> <p>In an action of ejectment by the sheriff’s vendee of land sold as the property of a deceased husband against the decedent’s wife, the wife testified that prior to her marriage her husband gave her a large sum of money, and that immediately after her marriage she loaned the money to her husband. No demand was made by her for repayment afterwards. She had no separate estate apart from this money. About eight years after the marriage the husband became insolvent and made an assignment for creditors. Prior to the assignment he conveyed a house to his brother-in-law, and no mention was made of this house in the deed of assignment. The evidence showed this conveyance was for the purpose of concealing the property from creditors. Three years after the assignment the husband directed that a deed should be made to his wife for the property. The wife contended that the conveyance was in payment of the loan which she had made to her husband. Held, that the entire evidence of all of the facts above stated was relevant and significant, as bearing upon the.bona tides of the wife’s title, and that it was all for the jury.</p> <p>In an action of ejectment against a wife by the sheriff’s vendee of land sold as the property of a deceased husband, where the wife claimed the property in controversy as having been purchased with her own money, the defendant requested the court to charge “ that the evidence in the case is not of that full, clear and rigid character necessary to sustain the defendant’s claim, and the verdict should be for the plaintiff.” The court answered the point as follows: “This is refused. The question is a question of fact to be determined by you.” Held, that the answer was erroneous, as the jury had a right to definite instructions upon the sufficiency of the evidence to justify its submission to them.</p>

Appeal, No. 398, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1892, No. 44, on verdict for plaintiff. Assumpsit to recover tbe costs of repairs of a turnpike road in a borougb. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $3,402.04. Defendant appealed. Error assigned was above instruction.

<p>Husband and wife — Sheriff's interpleader — Evidence—Burden of proof.</p> <p>In a sheriff’s interpleader where the wife of the defendant in the execution claims the goods which are in the apparent possession of the husband, and alleges the husband’s possession to have been that of her agent or employee, the law will not presume the existence of her separate estate, but she must prove her title by evidence which does not admit of a reasonable doubt.</p> <p>Husband and wife — Evidence—Growing crops — Title to farm,.</p> <p>On a sheriff’s interpleader to determine the ownership of growing crops claimed by the wife of the defendant in the execution, and levied upon while in the apparent possession of the husband, the mere production of a deed to the wife for the farm upon which the crops were growing does ■ not establish conclusively her title to the crops, so as to prevent the creditor from inquiring of her whether she had a separate estate, and had herself furnished the purchase money of the farm.</p>

<p>Statute of frauds — Parent and child — Parol contract — Evidence.</p> <p>In order to take a parol contract for the sale of land out of the operation of the statute of frauds its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries, indicate the quantity of the land, fix the amount of the consideration, establish the fact that possession was taken in pursuance of the contract, at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. It must show also performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust.</p> <p>In parol contracts between father and child clearer and stronger evidence is required of the father’s intention to part with his property than in cases of strangers in blood.</p> <p>In a proceeding to recover possession of real estate bought at sheriff’s sale, three children of the defendant in the execution claimed that, prior to the entry of the judgment under which the sale took place, the defendant had sold to them by parol contract the land in question. Two of the children testified that they had bought the land under a parol agreement by which they assumed to pay certain indebtedness of their father, and that they subsequently gave their notes for this indebtedness, and received from the creditor certain personal property of the father which he had sold upon an execution and bought in at the sheriff’s sale. There was no evidence that there had been any change of possession of the land, and the only consideration claimed was the father’s interest in the land which was a life estate. The father had other children who had nothing to do with the alleged sale and claimed nothing under it. One of the children to whom the alleged sale was made, and who had joined in the note, did not appear as a witness to establish the contract. Held, (1) that no such equity had been established as would take the parol sale out of the statute of frauds; (2) that the jury should have been instructed to find for the plaintiff.</p>

<p>Appeal, No. 530, Jan. T., 1896, by B. Frank Eshleman, from order of C. P. Lancaster Co., Aug. T., 1895, No. 70, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Scire facias sur mortgage.</p> <p>Plaintiffs’ statement was as follows :</p> <p>The above action is brought on a certain mortgage, recorded in the recorder’s office in said county, in mortgage book No. 17, at page 635, etc., to recover the amount due thereon to.the plaintiffs. The said mortgage was given March 22, A. D. 1866, by Edwin M. Schaeffer to Eliza Schaeffer, Mary E. Herr, Margaret L. Levergood, Emanuel W. Schaeffer and Dr. John W. Levergood, trustee of Emily R. McNeal. The premises described in said mortgage were accepted by Edwin M. Schaeffer, under proceedings in partition, as directed in the will of said Emanuel Schaeffer, deceased, and were charged with the said mortgage of $4,000, in pursuance and by virtue of a certain marriage agreement, made on July 3, A. D. 1860, between said Emanuel Schaeffer and Eliza Winebrenner, which marriage agreement is recorded in the recorder’s office in and for Lancaster county, in record book G., vol. 9, page 320, etc. The provisions of said mortgage are as follows:</p> <p>“ Whereas, the said Edwin M. Schaeffer in and by five obligations or writings obligatory under his hand and seal duly executed, all bearing even date herewith, stands bound in one of said obligations unto said Eliza Schaeffer, in the sum of one thousand dollars, conditioned for the payment of the sum of two hundred and forty dollars, on April 1, 1867, and thereafter the sum of two hundred and forty dollars, on the first day of April in each and every year, annually and consecutively during her natural life; in another of said obligations, unto said Mary E. Herr; in another to the said Margaret L. Levergood; in another to the said Emanuel W. Schaeffer, and in the other unto the said Dr. John Levergood, trustee, as aforesaid; in each of said obligations in the sum of sixteen hundred dollars, and each conditioned for the payment of the sum of eight hundred dollars, at .the decease of Eliza Schaeffer, widow of Emanuel Schaeffer, late of the city of Lancaster, aforesaid, deceased, without any fraud or further delay, as in and by the said five recited obligations and the conditions thereof, relation being thereunto had may more fully and at large appear.”</p> <p>Three of said bonds, together with three fifths of said mortgage, were assigned to Catharine H. Long, on March 16, 1892. One of said bonds, together with one fifth of said mortgage, was assigned to W. H. Roland, on July 7, 1890, and the other one fifth interest in said mortgage was assigned to Charles L. Schaeffer on May 27, 1881, as recorded in the recorder’s office in and for said county, in record book L., vol. 12, page 229, etc. The said Edwin M. Schaeffer, by indenture bearing date July 3, 1871, recorded in book B., vol. 10, at page 528, etc., conveyed the premises on which said mortgage is a lien to Mary T. E. Hiester, “ subject nevertheless and charged with the said mortgage of $4,000.” The said Edwin M. Schaeffer sold the real estate described in said deed to the said Mary T. E. Hiester, at and for the snm of-$20,000. He received but $16,000 of the purchase money. The sum of $4,000 was withheld as the sum sufficient to pay the annual sum of $240 as provided in the said mortgage, and the above stated marriage agreement. The said annuity when capitalized being equal to $4,000. After the death of the said Mary T. E. Hiester, the said premises became vested in said B. Frank Eshleman, as present owner and terre-tenant. The said B. Frank Eshleman accepted the said premises in proceedings in partition on the real estate of Mary T. E. Levis, nee Hiester, being purpart No. 5, at $1,200, and subject to the payment of said mortgage of $4,000, vide partition docket No. 2, page 307, etc., of the court of common pleas of Lancaster county. The said Eliza Schaeffer died on March 29, A. D. 1890. The said mortgage of $4,000, representing that much of the estate of Emanuel Schaeffer, late of the city of Lancaster, deceased, who, by his last will and testament, proved on November 19, 1864, divided his estate equally between his five children, to wit: Edwin M. Schaeffer, Emanuel W. Schaeffer, Mary E. Herr, Margaret L. Levergood and Emily It. Schaeffer, subsequently married to H. B. McNeal.</p> <p>The plaintiffs aver that there is now due by said B. Frank Eshleman, as terre-tenant and present owner of said premises, on said mortgage in suit, the sum of $4,000, with interest as follows : to Catharine H. Long, the sum of $2,400, with interest from April 1, 1895; to W. H. Roland, the sum of $800, with interest from April 1, 1895; to Charles L. Schaeffer, the sum of $800, with interest from March 26, 1890.</p> <p>The affidavit of defense was as follows:</p> <p>B. Frank Eshleman, terre-tenant above named, being duly sworn according to law, doth depose and say that he hath a just and legal defense to the whole of Christian L. Schaeffer’s, one of the plaintiffs, demand, in the above suit, the nature and character of which is as follows, viz : the said mortgage referred to in plaintiffs’ statement, to wit: mortgage recorded in the recorder’s office of Lancaster county, in mortgage book No. 17, at page 635, was given to secure the payment of five bonds or obligations as follows, to wit: one to Eliza Schaeffer in the sum of $1,000, “ conditioned for the payment of the sum of two hundred and forty dollars on the first day of April, 1867, and thereafter the sum of two hundred and forty dollars on the first day of April in each and every year annually and consecutively during her natural life; ” one to Mary E. Herr, one to Margaret E.. Levergood, one to Emanuel W. Schaeffer, and one to Dr. John Levergood, trustee of Emily R. McNeal, each in the sum of $1,600, and each conditioned to pay the sum of $800 at the decease of Eliza Schaeffer, widow of Emanuel Schaeffer. Eliza Schaeffer died on March 30, A. D. 1890, and all the money due her by reason of the bond given to and held by her was paid, and therefore all liability for or on account of said bond so held by her, ceased; that the remaining four bonds are unpaid, and three of the said bonds are held by Catharine H. Long and one of the said bonds is held by W. H. Roland, to whom they were assigned by the several owners. Edwin M. Schaeffer, the assignor of Charles L. Schaeffer, never had any interest as a mortgagee in said mortgage either in law or in fact, hut, on the contrary, was the mortgagor mentioned therein; he neither created nor reserved for himself any interest or share therein at the time of the execution by him of the said mortgage.</p> <p>Further, he, said Edwin M. Schaeffer, by indenture dated July 3, 1871, recorded in book B, vol. 10, at page 528, etc., con-conveyed the premises on which said mortgage is a lien to Mary T. E. Hiester, her heirs and assigns, and after the death of the said Mary T. E. Hiester the said premises became vested in her deponent, by which conveyance he, the said Edwin M. Schaeffer, parted with all his right, title, in and to the premises bound by the said mortgage, and also with any share or interest he might have had in said mortgage as one of the legatees mentioned in the last will and testament of Emanuel Schaeffer, deceased, or of any interest he might have had in the said mortgage representing the amount of dower monej'- payable at the death of the said Eliza Schaeffer, all of which your deponent believes and expects to be able to prove on the trial of the case.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense and entered judgment against B. F. Eshleman, the terre-tenant, for the sum of $4,386.56, $1,111 of which to the use of. Charles L. Schaeffer, $818.89 to the use of Wm. H. Roland, $2,456.67 to the use of Catharine H. Long.</p> <p>Error assigned was above stated order.</p>

<p>Appeal, No. 89, Jan. T., 1897, by defendant, from judgment of C. P. Lancaster Co., Dec. T., 1893, No. 28, on verdict for plaintiff.</p> <p>Scire facias sur mortgage. Before Brubaker, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,768.75. Defendant appealed.</p> <p>. Error assigned was in giving binding instructions for plaintiff.</p>

Appeal, No. 514, Jan. T., 1896, by defendant, from judgment of C. P. Potter Co., June T., 1890, No. 97, entered upon report of referee. Replevin to recover 3,400 hemlock saw-logs. The facts appear by the opinion of the Supreme Court. Errors assigned were the various findings of fact and conclusions of law of the referee, sufficiently stated in the opinion of the Supreme Court.

Appeal, No. 515, Jan. T„ 1896, by plaintiff, from judgment of C. P. Potter Co., March T., 1891, No. 51, on report of referee. Trespass for alleged wrongful appropriation of logs. Trial by referee. Tbe facts appear by the opinion of the Supreme Court, and by the report of Dent v. Huntley, ante, p. 607. Error assigned was in entering judgment for defendant.

<p>Appeal, No. 495, Jan. T., 1896, by Fuller Hogsett and Morgan H. Bowman, from judgment of Superior Court, affirming an order of Q. S. Fayette Co., Sept. T., 1892, No. 3, directing a bridge viewers’ report to be referred to the county commissioners.</p> <p>Appeal from judgment of Superior Court: 2 Pa. Superior Ct. 265.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was judgment of the Superior Court.</p>

<p>Appeal, No. 194, Jan. T., 1897, by defendant, from judgment of C. P. Lancaster Co., May T., 1894, No. 57, on verdict for plaintiff.</p> <p>Assumpsit to recover salary and for money loaned. Before Livingston, P. J.</p> <p>Tbe facts appear by tbe opinion of tbe Supreme Court.</p> <p>At tbe trial defendant proposed to ask a witness, H. C. Weidler, wbo had been a teacher of bookkeeping for seventeen years at the bead of tbe Lancaster Business College, and wbo bad testified to bis experience in keeping partnership books, this question: “ Please look at tbe ledger before you, pages 2 and 10, being tbe accounts of W. M. Jacobs and L. E. Ryder, and state whether or not each of these accounts indicate an account of a partner with tbe firm.”</p> <p>Objected to by plaintiff. Disallowed. Defendant excepts. [5]</p> <p>Defendant proposed to ask a witness, Aldus C. Herr, as to whether or not, looking at tbe book before him, tbe accounts of W. M. Jacobs and L. E. Ryder on pages 3 and 10, respectively, are those between partners in account with tbe firm.</p> <p>Objected to by tbe plaintiff. Disallowed. Defendant excepts. [6]</p> <p>The court charged, in part as follows:</p> <p>[There was a contract for $200 a month. That is settled. There is no question about that. Was that contract changed at any time from $200 a month to a participation in the partnership profits, the net profits ? • If you find it was, then he would be entitled to $200 per month up to the time the change was made, and would be entitled to a portion of the net profits (one half) from that time so long as that relation existed. And if you are satisfied that was not the case, and that he has overdrawn $400, then your verdict would have to be for the defendant.] [1]</p> <p>[If you find there was a contract for $200 per month at first, and find it was changed, as I have said, to a participation in the profits, even if there were no'partnership at all, if you find there was no partnership, and it was changed from that time, and he was to receive part of the profits for his services and contributing nothing to the firm but his services, then he would be entitled to receive half of the net profits while he remained.] [2]</p> <p>Defendant’s points and answers thereto were among others as follows:</p> <p>1. If the jury believe from the testimony in the case that after May 1, 1893, the plaintiff was not to receive a compensation of two hundred dollars ($200) per month for his services, but thereafter a share of the profits of the business, there can' be no recovery by the plaintiff in this action for any services rendered after May 1, 1893. Answer: This point is refused unless the jury find from the evidence that there was a partnership existing between the plaintiff and defendant from and after May 1, 1893, until the time they separated in March, 1894. If the jury find from the evidence that a partnership did exist between them during that period, their verdict must be for the defendant, because one partner cannot sue another partner for a partnership transaction, except by bill in equity, or by an action of account render. [3]</p> <p>2. If the jury believe that the contract between plaintiff and defendant was that, after May 1, 1893, he should receive half the net profits of the business as compensation for his services for the ensuing year, there can be no recovery by the plaintiff in this action for services after May 1, 1893, no matter what those services were. Answer: That we answer in the same way with the other. If you find there was a partnership, then we say he can receive no pay for services in this action at all. But, if there was no partnership, and the contract was changed, as we have said, about April or May, and he was to receive half of the profits, then he can recover in this action even though there was no partnership. [4]</p> <p>Verdict and judgment for plaintiff for $3,027.11. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them; (5, 6) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 98, Jan. T., 1894, by defendant, from judgment of Q. S. Perry Co., Aug. T., 1898, No. 14, on indictment for peddling without a license.</p> <p>Indictment for peddling without a license.</p> <p>At the trial the defendant presented the following point:</p> <p>The court is respectfully requested to charge the jury that, under the facts proved by the commonwealth and the law, the defendant cannot be convicted for the following reason:</p> <p>Because the act of 1869 is in regulation of trade, not a police regulation, and under the utterance of the Supreme Court in Sayre Borough v. Phillips, 148 Pa. 482, is unconstitutional and void. Answer: This point is refused. The act of 1869 is in pari materia with the act of April 16,1840, and other general laws of this commonwealth regulating peddling and limiting it to certain classes of persons, which we believe is within the police regulation of the state, and the act is not unconstitutional.</p> <p>Verdict of guilty, upon which sentence was passed. Defendant appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

<p>Trespass — Trover and conversion — Damages.</p> <p>In an action of trespass in the nature of trover and conversion for the wrongful taking of cattle, where the defendants allege that the plaintiff received the cattle as their bailee to feed and care for, under an agreement by which they hada right to take the cattle at any time, while the plaintiff alleges that the cattle were delivered to him as a purchaser, if the defendants establish their allegations, plaintiff is entitled to recover nothing, as an action in trespass will not lie lor feeding and caring for the cattle.</p> <p>Promissory notes — Evidence to explain note — Contract—Parol evidence— Declarations.</p> <p>Parol evidence is admissible to explain a receipt, an entry in a'bank book or account book, or to show the purpose for which a note was given.</p> <p>In an action of trespass to recover damages for the alleged wrongful taking of cattle, where the plaintiff claims that he acquired possession of the cattle as a purchaser, and defendants claim that his possession was merely that of a bailee, it is competent for the defendants to explain certain notes which the plaintiff gave them when he received the cattle, as well as a memorandum made by them at the same time, and such testimony does not modify a written contract; and declarations of the plaintiff to the effect that he was satisfied with what the defendants had done are admissible as corroborative of the defendants’ claim respecting the agreement under which the cattle were received by the plaintiff.</p>

<p>Contract — Privily.</p> <p>Where A agrees to sell logs to B and B subsequently agrees to sell them to C the obligation of C to pay B for the logs imposes no obligation on C to A.</p> <p>Limited partnership associations under act of 1874 — Authority of treasurer —Contracts—Checks.</p> <p>Recovery cannot be had against a'limited partnership association organized under the Act of June 2, 1874, P. L. 271, on checks issued by the treasurer of the association, where it appears that he had no authority to issue the checks; that his act was not subsequently ratified; that the effect of the issuance of the checks was to create a liability against the company new and different from the contract in pursuance of which the checks were alleged to have been given, and the cheeks, although indorsed by the payees, had never in fact been delivered to them, but had been returned to the association and destroyed.</p>