Volume 183 — Pennsylvania State Reports

<p>[Marked to be reported.]</p> <p>Dower — Partition—Decedents' estates — Husband, and wife.</p> <p>The dower interest which a widow has in the real estate of her husband is an estate for life, and such interest is not changed by the fact that in partition proceedings it is charged upon all of the lands of the husband passing to a purchaser. Such an estate can only be sold by a writ of venditioni exponas, in the manner provided by the act of January 24, 1849.</p> <p>Execution against life estate — Venditioni exponas — Acts of October 13, 1840, and January 24, 1849.</p> <p>Under the Act of January 24, 1849, P. L. 677, the right to sell a life estate in the same manner as estates of inheritance are sold, upon a writ of venditioni exponas, is subject to two conditions: first, the right of the defendant to an appraisement of its annual value by an inquest and to elect to retain possession at the rental fixed; second, the consent or order of the proper court made after ten days’ notice to the defendant that such writ has beeu asked for.</p> <p>Where a widow’s interest charged upon the real estate of her husband is sold under a judgment against her, without an order of court allowing the writ of venditioni exponas, and without notice to the widow, the sale is void, and confers no title upon the purchaser.</p>

<p>Appeal, No. 210, Jan. T., 1897, by plaintiffs, from order of C. P. Juniata Co., Dec. T., 1895, No. 50, directing manner of executing fi. fa.</p> <p>Petition to restrain sheriff from levying as directed by the plaintiff in the execution.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court made the following order:</p> <p>And now, April 27, A. D. 1897, this cause having come on to he heard on petition, answer, replication and proofs, and having heen argued by counsel, upon due consideration the rule is made absolute; and it is further ordered and decreed that H. C. Hower, the use plaintiff in judgment No. 50, December term, 1895, in the court of common pleas of Juniata county, be and he is hereby enjoined and restrained from collecting the whole of the balance of debt, interest and costs, to wit: the sum of 07,856.61, with interest thereon from November 9, A. D. 1896, from W. N. Sterrett, William Puffenberger and William B. McCahan, but the debt, interest and costs of said judgment shall be paid by the eighteen cosureties, (naming them) in equal shares and proportions, and the sheriff is ordered and directed to levy upon and collect the said debt, interests and costs, by virtue of fi. fa., No. 6, of December term, 1896, or any alias or pluries writ of fieri facias which may be issued on said judgment, from the goods and chattels, lands and tenements of each and all of said defendant cosureties, in equal portions, and should any of said cosureties be unable to pay their proper proportions, or goods and chattels, lands or tenements, shall not he found, out of which to levy the same, then the deficiency shall be collected from the remaining cosureties in equal portions. And it is further ordered that H. 0. Hower pay the costs of this rule.</p> <p>Error assigned was above order.</p> <p>If persons not members of a corporation whose original certificate has not been recorded, and who have no knowledge of the fact that it is an incorporated company, deal with such company, they can enforce their contracts against it as a partnership: Gnckert v. Hacke, 159 Pa. 303; Bank v. Crowell, 177 Pa. 313; Spahr y. Bank, 94 Pa. 429.</p> <p>Under the rule laid down in Grubb v. Mahoning Navigation Co., 14 Pa. 304, the moment the letters patent are issued the subscribers become a corporation for every practical purpose: First Nat. Bank v. Almy, 117 Mass. 476: Water Supply Co. v. Braintree, 146 Mass. 482; Tarbell v. Page, 24 111. 47; Ramsey v. Ins. Co., 55 111. 311; Pierce v. Hacke, 49 Leg. Int. 288.</p> <p>As to the plaintiff, all of the defendants are debtors, and he is not obliged to regard them as sureties or principals. It is true, if all were sureties, and one or more paid the debt, they would have a right to subrogation against the others: Agnew v. Bell, 4 Watts, 32; Moore v. Bray, 10 Pa. 519; Martin v. Frantz, 127 Pa. 389; Baily’s Est., 156 Pa. 634; Croft v. Moore, 9 Watts, 451; Mosier’s App., 56 Pa. 76 ; Hess’s Est., 69 Pa. 272; Wright v. Sewing Machine Co., 82 Pa. 80; Arna’s App., 65 Pa. 72; Act of April 22, 1856, P. L. 533, sec. 9; Phelps’s App., 98 Pa. 546; Miligau’s App., 104 Pa. 503; Wilson v. Ritchie, 4 W. N. C. 37; Roddy’s App., 72 Pa. 98; Shannon v. Com., 8 S. & R. 444.</p> <p>The indebtedness so contemplated by the act of 1894 is not merely the extraordinary or “ bonded indebtedness ” of the corporation, but also its ordinary debts: Green v. Whitehead, 5 Dist. Rep. 613.</p> <p>This judgment was acquired by H. C. Hower, not in the capacity of a stockholder, but as an individual purchaser: Act of April 7, 1870, P. L. 58; Phila. & Balt. Cent. R. R. Co.’s App., 70 Pa. 355; Bayard’s App., 72 Pa. 453; Fox v. Hemp-field R. R. Co., 28 Leg. Int. 4; Hill v. Frazier, 22 Pa. 320; Githers v. Clarke, 158 Pa. 616; Hoopes v. Stidham, 13 W. N. C. 266.</p> <p>The relation of cosureties is one of mutual trust and confidence, and from it springs their liability to contribute equally to the payment of their principal’s debt, as well as their right to equally participate in an indemnity that may be obtained from him directly or indirectly, by either or all of them : Shaeffer v. Clendenin, 100 Pa. 567; Story’s Equity Jur. sec. 493.</p> <p>The act of the appellant in securing a man of straw to take this judgment for the purpose of oppressing the appellee is little short of criminal: Com. y. Carlisle, Brightly’s Rep. 36; Confer v. McNeal, 74 Pa. 112; Lowe v. Dalrymple, 117 Pa. 564; Merchants Nat. Bank v. Tinker, 158 Pa. 17.</p> <p>It has been repeatedly held that in the case of manufacturing corporations organized under the act of April 7, 1849, and its supplements, after which this section of the act of 1874 is copied, that the remedy for the collection of debts of the corporation from stockholders and directors is special, and the requirements of the statute must be strictly followed: Hoard y. Wilcox, 47 Pa. 51; Mansfield Iron Works v. Willcox, 52 Pa. 377; Wagner v. Corcoran, 2 Dist. Rep. 440; Nat. Loan & Bldg. Soe. y. Lichtenwalner, 100 Pa. 104.</p> <p>Statutes which impose individual liability on stockholders for the debts of the corporation are to be strictly construed: O’Reilly v. Bard, 105 Pa. 569; Means’s Appeal, 85 Pa. 78.</p> <p>The case of Guckert v. Hacke, 159 Pa. 306, and New York National Exchange Bank v. Crowell, 177 Pa. 313, both hold that failure to record the certificate of incorporation has the effect of defeating the exemption of the corporators from the debts of the corporation and, for a much stronger reason, penalties growing out of the conditions of corporate existence should not be inflicted.</p> <p>Forfeitures are odious in law, and are enforced only where there is the clearest evidence that that was meant by the stipulations of the parties: Helme v. Ins. Co., 61 Pa. Ill; Kister v. Ins. Co., 128 Pa. 567; Girard Life Ins. Co. v. Mut. Life Ins. Co., 97 Pa. 30; Watts’s App., 78 Pa. 370.</p> <p>The right of the court of common pleas to stay an execution, or to prevent one from issuing on a judgment of said court, has frequently been recognized, and is very common in practice: McCann y. Farley, 26 Pa. 173; Chambers v. Harger, 18 Pa. 17; Herman on Executions, 612; Loomis v. Lane, 29 Pa. 242; Harrison v. Soles, 6 Pa. 393; Struthers v. Lloyd, 14 Pa. 216 ; 1 Troubat & Haly’s Prac. page 848 (4th ed.) ; Morris v. Mettaline Land Co., 164 Pa. 326. '</p> <p>The court had ample legal authority for deciding that the appellees had a right to subrogation if they would pay the entire debt held by the use of plaintiff: Slaymaker v. Gundacker’s Exrs., 10 S. & R. 74.</p> <p>It is denied by the appellees that any losses occurred out of the transactions of 1892, but if such losses did occur the fact is immaterial. The directors were not responsible for the decline in the price of commodities then going on: Spering’s App., 71 Pa. 21.</p>

<p>Appeal, No. 6, Jan. Term, 1897, by plaintiff, from order of C. P. Dauphin County, March T., 1896, No. 438, refusing to take off nonsuit.</p> <p>Trespass for personal injuries. Before McPherson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off in an opinion in part as follows :</p> <p>The motion to take off the nonsuit raises a question that should be settled definitely. The plaintiff concedes that no other evidence of defendant’s negligence is to be found than the unexplained breaking of a wire; but the argument is vigorously made that nothing more is needed to carry the case to a jury. Two or three decisions in other jurisdictions support this view, but to adopt it in Pennsylvania would be so marked a departure from the course of decision in our own state, that a trial judge cannot be expected to take the step. As a question of policy, it may be wise to put into one class all companies using electricity upon or over the streets of a city and subject them to a presumption of negligence whenever an injury is done by any appliance under their control. But whether it be wise or not, it is clear that the proposed change of rule should be ordained by the legislature or announced by the Supreme Court; for by the present rule, in the case of injury to persons on the street, the courts of common pleas are bound to deal with these companies as with other defendants charged with negligence, and to require affirmative evidence that they have failed in duty, other than the bare fact that an appliance of the business has caused the injury complained of.</p> <p>Considering the proposed rule in reference to street railway companies alone, it is obvious that one result would be to make such companies insure the safety of persons on the street against injury by any appliance of transportation. As in the present case, the plaintiff in a suit for such an injury would prove the bare fact that he had been hurt; thereupon the presumption of the defendant’s negligence would arise, and evidence in explanation would probably be offered; and then, upon the question whether the explanation was sufficient — the element of contributory negligence being laid aside — the controversy would go to the jury, with a verdict for the plaintiff as the highly probable result. A report of such a trial may be found in Uggla v. Railway Co., 160 Mass. 351. In that case the plaintiff while driving on Park Square, in Boston, “ was struck by a broken iron attached to a wire guy. The iron was part of an ear, used to clasp a trolley wire and apply to it a strain from the guy, in order to keep the trolley wire in place around a curve and over the defendant’s track. The ear broke with the strain and one part of it fell, striking the plaintiff on his head. As to these facts there was no dispute at the trial, and there was no other evidence that the defendant was in fault.” Thereupon the defendant offered its explanation, and introduced evidence, “ that it was not guilty of negligence, tending to show that the break was a clean break, bright in color and appearance, and that the iron was sound all through; without flaw or defect in it; and also that the whole apparatus was manufactured and put up by a manufacturer of the highest reputation; that the ear and guy constituted the best and strongest device known at the time for keeping trolley wires in place; that the defendant employed a corps of competent superintendents, foremen and inspectors, who inspected the whole line weekly, including the ears and their attachments; and that this particular part of the line had been inspected within a week prior to the accident.” It is not likely that in any case more could be proved than is here set out; but the ease was carried to the jury by the presumption of the defendant’s negligence, and in spite of an explanation apparently complete there was a verdict in favor of the plaintiff.</p> <p>Volkmar v. Elevated Railway Co., 134 N. Y. 418 is a somewhat similar decision. It may fairly be cited in support of the plaintiff’s contention, although there was some slight evidence in that case of the defendant’s negligence, in addition to the fact that a bolt had fallen from its structure and had struck the plaintiff upon the shoulder. Haynes v. Gas Co., 114 N. C. 203, contains some general language which is in the line of the argument now being considered; but in that case the plaintiff proved the defendant’s negligence in putting up a guy wire that crossed and was in contact with the feed wire of a railway company ; and the language of the opinion should be read in the light of the facts in proof. It may be, however, that the court intended to lay down a general rule in reference to companies using electricity upon a public street; and in that event, the case supports the plaintiff’s argument. In Giraudi v. Electric Improvement Co., 107 Cal. 120, there was evidence of negligent construction; and in Nichols v. City, 35 Minn. 430, a telephone company had notice that its wires were obstructing travel, and failed to remove them after a reasonable time.</p> <p>But, whatever maybe the rule in other jurisdictions, the rule in Pennsylvania is, that in cases like the present the plaintiff must offer affirmative evidence that the defendant has been negligent. It would be a waste of time to cite more than two or three of the numerous cases enforcing this rule with regard to steam railways, whose right of passage conflicts with the similar right of a traveller on foot or by wagon at the crossing of a public road: Railway Co. v. Frantz, 127 Pa. 297; Ellis v. Railway Co., 188 Pa. 506; Childs v. Road Co., 150 Pa. 73. In principle, however, the doctrine now contended for is as applicable to such companies as to street railways. The only difference is one of degree, the street railway being more dangerous; but unless as a matter of policy this difference requires a difference in rule, it ought to be enough for the person injured at a crossing by a steam railroad, to prove the bare fact that he has been struck upon the crossing by the defendant’s train. The presumption of negligence should arise at once, and with the explanation offered by the defendant should carry the whole controversy to the jury. As to steam railroads, howmver, it need not he argued that this is not the law of Pennsylvania. Neither need time be spent to establish the proposition, that it is not the law in actions for negligence against individuals or private corporations. In such suits, also, there is no presumption that the defendant has been negligent; the plaintiff must prove that averment affirmatively, and is not allowed to recover unless he can show more than the mere fact of injury: Gorshorn v. Smith, 92 Pa. 435; Simpson v. Pittsburg Locomotive Works, 139 Pa. 245; Reese v. Clark, 146 Pa. 465; Pick v. Jackson, 8 Pa. Superior Ct. 878.</p> <p>It can also be made clear without difficulty that the rule now proposed is not the law of Pennsylvania in suits against street railway companies, the class of corporations in question: Campbell v. Railway, 139 Pa. 522; Keller v. Railway Co., 149 Pa. 65; Gilmore v. Pass. Ry. Co., 153 Pa. 38; Kestner v. Traction Co., 158 Pa. 422; Johnson v. Railway Co., 160 Pa. 647; Yingst v. Railway Co., 167 Pa. 438; Flanagan v. Railway Co., 163 Pa. 102; Thatcher v. Traction C-o., 166 Pa. 66; Harper v. Traction Co., 175 Pa. 129: Comey v. Traction Co., 175 Pa. 183; McLaughlin v. Traction Co., 175 Pa. 565; Harkins v. Traction Co., 173 Pa. 146; Conner v. Traction Co., 173 Pa, 602; Reilley v. Traction Co., 176 Pa. 835; Musser v. Railway Co., 176 Pa. 621; Reber v. Traction Co., 179 Pa. 339.</p> <p>If necessary these citations could be multiplied; but probably enough have been given to show clearly that the proposition now under consideration is a novelty in this state. It is not for a court of common pleas to overrule these cases and change the law of evidence.</p> <p>There is one decision in Pennsyl vania, however, upon which the plaintiff lays much stress : Canal Co. v. Graham, 63 Pa. 290. The facts were, that the canal company was required by its charter “ to build and keep in good repair suitable and convenient bridges; ” and that the plaintiff was injured by the breaking of a bridge. He brought suit, and was allowed to recover without other proof of the company’s negligence than the fact that the bridge broke down. In some degree, the case supports the plaintiff’s argument; but the opinion makes it clear — as does also the comment in Improvement Co. v. Rhoads, 116 Pa. 384, —that the decision was put upon the express obligation imposed upon the company by its charter. It is true that the General Railroad Acts of 1849 and 1868, and the Street Railway Act of 1889, might perhaps have been construed to imply a similar obligation by reason of the power they give to construct, maintain and operate; but it is equally true that this construction has not obtained. This grant of power has never been regarded as imposing an obligation so imperative as to involve a change in the rule of law that requires a charge of negligence to be made out by affirmative evidence. In this connection, the case of Whitaker v. Delaware & Hudson Canal Co., 87 Pa. 34, may be referred to as instructive, and perhaps as tending to confine the authority of Canal Co. v. Graham, to an identical state of facts.</p> <p>The plaintiff’s argument may be fairly summarized as an effort to extend the doctrine of res ipsa loquitur, so as to embrace every injury done by the companies employing electricity upon a public street. In the present state of the Pennsylvania decisions, I do not regard the question as open, and therefore, I have not discussed it. But I may point out in conclusion that if I am wrong in the view I take of our own authorities, the facts now before the court present the question distinctly: Shall negligence be presumed against a street railway company from the mere happening of an injury to a person on the highway, caused by an appliance of tbe company’s business ? There is nothing here except the single fact, that the wire broke; for anything that appears, it might have been struck by lightning, or blown down by a high wind, or broken by the fall upon it of a missile thrown by a stranger, or torn apart by some inevitable accident. Unless the presumption contended for exists, it is a mere guess to say that the break was caused by negligence. The plaintiff has chosen to rely upon the bare presumption, and if that fails there is nothing else.</p> <p>Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p> <p>There are cases in which a fair presumption or inference of negligence arises from the circumstances under which the injury occurred, and this we think is one of them: Shafer v. Lacoek, Hawthorn & Co., 168 Pa. 497; Fleming v. Railway, 158 Pa. 135 ; Clow v. Pittsburgh Traction Co., 158 Pa. 410; Phila. & Reading R. R. v. Anderson, 94 Pa. 351.</p> <p>The following cases are directly in point and establish the position we claim: Pennsylvania & Ohio Canal Co. v. Graham, 63 Pa. 290 ; Huey v. Gahlenbeck, 121 Pa. 238 ; Scott v. Dock Co., 3 Hurlst. & Colt, 596; Dixey v. Phila. Traction Co., 180 Pa. 401; Butler v. M. R. Co., 143 N. Y. 418; Morris v. Strobel & Wilken Co., 81 Hun, 1; Briggs v. Oliver, 4 Hurlst. & Colt, 403; Giraudi v. Electric Imp. Co. of San Jose, 17 Cal. 120 ; Haynes v. Gas Co., 114 N. C. 203 ; Denver Consolidated Electric Co. v. Simpson, 5 Am. Elec. Cases, 278; Bourget v. Cambridge, 156 Mass. 391; Uggla v. West End Street Ry., 160 Mass. 351; Hutchinson v. Boston Gas Light Co., 122 Mass. 219; Nichols v. Minneapolis, 33 Minn. 432.</p> <p>Negligence cannot be presumed from the mere fact of injury, but must be affirmatively proved: Baker v. Fehr, 97 Pa. 72; Whitaker v. Canal Co., 87 Pa. 34; Borough v. Neff, 102 Pa. 474; Goshorn v. Smith, 92 Pa. 435; Shearman & Rediield on Negligence, sec. 12; Jones on Evidence, sec. 181; MacLean v. Burnham, 19 W. N. C. 53; Mensch v. R. R., 150 Pa. 598; Hartman v. R. R., 144 Pa. 345: Simpson v. Locomotive Works, 139 Pa. 245; McKenna v. Paper Co., 176 Pa. 306; Titus v. R. R., 136 Pa. 613; Allison Mfg. Co. v. McCormick, 118 Pa. 519; R. R. v. Yeiser, 8 Pa. 366; Jennings v. R. R., 93 Pa. 337 ; Henderson v. R. R., 144 Pa. 461; Thomas on Negligence, p. 574; Wharton on Evidence, sec. 362; Erie R. R. v. Decker, 78 Pa. 293; R. R. v. Yerger, 73 Pa. 121; Booth on Street Railways, sec. 132; Collins v. Leafly, 124 Pa. 203 ; Allegheny v. Zimmerman, 95 Pa. 287 ; Scott v. Dock Co., 3 Hurl. & C. 596; Welfare v. Ry. Co., L. R. 4 Q. B. Cases, 693.</p>

<p>Public officers — Fees—Clerk of court of quarter sessions — Clerk of court of oyer and terminer — Acts of March 10, 1810, and April 2, 1868 — Repeal of statutes.</p> <p>The Act of April 2, 1868, P. L. 11, relating to the compensation of public officers, does not repeal the Act of March 10, 1810, P. L. 79, in so far as the latter act provided that when any one person holds both the office of the clerk of the court of quarter sessions and the office of clerk of oyer and terminer, the fees of the two offices should be added together, and all excess over $1,500 of receipts should be divided equally between the officer and the state, except that $1,500 has been increased to $2,000.</p> <p>Fees — Olerk of quarter sessions — Liquor licenses.</p> <p>The sum of $5.00 which is required by law to be paid to the clerk of the court of quarter sessions “for expenses connected” with the issuance of a liquor license is a part of the official receipts of the office, and is subject to taxation as such.</p>

<p>Waters — Extraordinary flood — Act of Godr — Evidence— Question for jury ■ — Railroads.</p> <p>In determining whether a flood is ordinary or extraordinary, the jury must consider what should be expected in that particular stream, taking into account its character, the adjacent territory and previous floods.</p> <p>In an action against a railroad company to recover damages for injuries to land caused by the breaking of a culvert during a flood, a finding of the jury that the flood was an ordinary one will be sustained where the evidence for the plaintiffs, although contradicted, tended to show that in a period of forty-two years, including the flood in question, there had occurred five floods in the stream of about equal force and volume of water.</p> <p>Railroads — Construction of works — Negligence—Damages.</p> <p>A railroad company is bound to bring to the execution of its works the engineering knowledge and skill ordinarily known and practiced in the construction of such works. If it constructs a culvert so unskilfully and negligently as to be insufficient to vent the ordinary highwater of the stream, the company will be liable for the injury thereby caused.</p> <p>Railroads — Land damages — Construction of works — Release.</p> <p>In an action against a railroad company to recover damages for injuries caused to land by the breaking of a culvert, the railroad company offered in evidence a release by the plaintiff of all damages “ by reason of the location, construction and operation of” the railroad. The company offered no evidence as to the time when the lease was executed, but relied upon certain vague statements of the plaintiffs to show that it was executed after the construction of the culvert. The jury found specially that it was executed prior to the construction of the culvert. Held, that a judgment for the plaintiffs should be sustained.</p>

<p>Equity — Preliminary injunction — Municipal contracts.</p> <p>On a bill in equity to restrain the officers of a city from awarding a contract for “lake asphalt,” where it is alleged iu the bill that the word “ lake” was surreptitiously and fraudulently inserted in the ordinance authorizing the contract, and it is also alleged that there is no such thing as “ lake asphalt ” known to commerce, but the court finds the facts contrary to the allegations of the bill, a preliminary injunction should not be granted because the specifications required that the lake asphalt should be that obtained from two designated sources, “ or other lake asphalt which in quality and durability shall be equal to the standard” of the asphalt from the places designated.</p>

<p>Practice — Supreme Court — Superior Court — Jurisdiction as determined by amount — Act of June 24, 1895.</p> <p>Where a plaintiff in his statement claims an amount in excess of $1,000, and the jury returns a verdict less than $1,000, subject to a question of law reserved, and the court subsequently entei’s judgment for tho defendant non obstante veredicto, from which judgment plaintiff appeals, assigning for error the refusal of the court to enter judgment on the verdict, he thus, by his pleadings, limits his claim to the amount of the verdict, and the Supreme Court has no jurisdiction.</p>

<p>Mines and mining — Severance of coal from surface — Adverse possession —Statute of limitations.</p> <p>If there is no severance of coal from the surface, an entry upon the surface will extend downward and draw to it a title to the underlying minerals, so that he who disseizes another and acquires title by the statute of limitations, will succeed to the estate of him upon whose possession he has entered; but if a severance is made before his entry, and he has notice of that severance, either by the record, or by the state of the possession acquired both by observation and by years of service in the employment oi the owner, his entry upon either of the estates will not affect the other.</p>

<p>Appeal, No. 126, Jan. T., 1897, by plaintiff, from judgment of C. P. McKean Co., Oct. T., 1894, No. 42, on verdict for defendants.</p> <p>Ejectment for eighty acres of land off the east end of warrant No. 8725 in Corydon township. Before Morrison, J.</p> <p>Tbe facts appear by tbe opinion of tbe Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[We think that the answers to the points presented by the counsel on both sides, will dispose of all the questions necessary for us to discuss in this case. But, as preliminary to that, we will refer briefly to the reason why we do not adopt the oak at the southwest corner of 3724, and the quaking aspen at its southeast corner, and the cherry called for at the southeast corner of 3731, as a means for fixing the line between 3725 and 3721.</p> <p>Upon the map that you are looking at (plaintiff’s map), you will notice that the lines running between 3714 and 3731, the line between them from the ash, is connected to the cherry; you will also notice that there is a line connected between 3724 and 3731 upon their map.</p> <p>The undisputed evidence, as we understand it, shows that those lines were not run through there and marked upon the ground. It shows also that there was not a connection between the southwest corner of 3725 and the oak which is called for as the southwest corner of 3724; that they were not connected upon the ground. The evidence, we think, sustains the theory of the defendants that the south line, called the Holland Land Company, the line between the Robert Morris surveys and the Holland Land Company, is not actually connected on the ground at any place with the batch of surveys north, except the district line on the east, which we do not think cuts any figure in this case; now from the fact that the undisputed evidence shows a surveyed line marked on the ground from the ash, the southeast corner of 3721, to the ironwood, the northeast corner of 3704, and thence west to the Allegheny river, with several of the corners marked along their north and south line, and the fact that the actual work upon the ground does not connect the quaking aspen and the oak and the cherry with the survey north of it, we think there must be some other rule adopted to fix the line between 3725 and 3721 than to work from the Holland Land Company’s line, the south hue shown on the map. While we have some doubts about it, we are not able to discover in the time we have had to investigate it, any better method than the one set forth very succinctly in the defendants’ points.] [1]</p> <p>Plaintiff’s points and answers thereto among others were as follows :</p> <p>3. It being a fact conceded by both sides, that the line dividing the tier of Robert Morris warrants on the west, composed of Nos. 3727, 3726, 3725 and 3724 from the tier of Robert Morris warrants on the east, composed of Nos. 3704, 3734, 3720, 3707,3721 and 3731, is a chambered line not run on the ground; and it appearing that there is no monument in the line but the quaking aspen in the south end in the line between the Robert Morris warrants and the Holland Land Company’s survey; and it further appearing that all the returns of surveys for the above numbered warrants call for a straight line between them, running north and south, then the said line is to be located upon the ground by running the course called for in the return of surveys from the quaking aspen. Answer■: We answer this point in the negative. [2]</p> <p>4. The quaking aspen referred to in the foregoing point as being the south terminus of the line running south from warrant No. 3715 being gone, and there being no better evidence of its location shown, the location of the said quaking aspen upon the ground may be determined by dividing equally the distance between the other known monuments, the white oak at the southwest corner of 3724 and the cherry at the southeast corner of No. 3731, and if the jury believe from the evidence that the plaintiff’s surveyors have correctly located said white oak and said cherry corners, then the quaking aspen is to be located midway between them, as the return of the survey of the said warrants Nos. 3724 and 3731 locate said quaking aspen at an equal distance from said white oak and from said cherry. Answer: This point is refused as applicable to the location of the line between 3725 and 3721. [3]</p> <p>8. If the jury believe from the evidence that the land described in the plaintiff’s writ lies west of a line running north from the quaking aspen, to the south line of warrant 3715, then the verdict of the jury should bo for the plaintiff for the land described in the plaintiff’s writ. Answer: Answered in the negative. [4]</p> <p>Defendants’ points and answers thereto among other were as follows:</p> <p>1. Lines and corners having been run and marked on the ground for the interior warrants of the batch known as the Robert hi orris warrants, the interior warrants are to be located without regard to the exterior lines and comers of the whole batch of Robert Morris warrants wherever it can be so done by the lines and corners marked on the ground for said interior warrants, and by their calls and returns of survey into the land office. Answer: Answered in the affirmative. [5]</p> <p>2. Warrants 3704, 3734, 3720, 3707 and 3721, constitute a tier of the Robert Morris warrants, and warrants 3727, 3726 and 3725 constitute another tier of the same batch of warrants adjoining the first mentioned tier on the west, calling for each other and are connected by linos and monuments found on the ground. But the division line between said tiers of warrants was not run and marked upon the ground. The true method of locating said division line is to commence with 3704 and 3727, they having been surveyed first, and locate the division line between them, then proceed south in the same manner with the successive warrants in the order of their dates of survey. Answer: Answered in the affirmative. [6]</p> <p>3. It being undisputed that the east and north lines of 3704 were run and marked on the ground by the deputy surveyor in 1793, and their location now being undisputed, and also the location of the if onwood at the northeast corner and the maple at the southeast corner of said warrant, and no dispute as to the location of the northwest corner of 3727, the northeast corner of 3727, and the northwest corner of 3704 will be at a point which divides the distance between the ironwood and the northwest corner of 3727 proportionate to the distance called for on the north line of these two warrants and a line projected from said point so located south according to the course of the return of the surveys of said warrants, till it meets a line projected west from the maple southeast corner of 3704, according to the return of survey, will form a boundary line between said warrants, and said line projected on south according to the return of survey of the successive warrants, in the same manner, until it meets a line projected west from the ash at the southeast corner of 3721, according to its return of survey, will be the boundary line between each of the successive warrants to, and including warrants 3721 and 3725, the east line and the northeast and southeast corner of each of said warrants being indisputably located as run and marked on the ground; and if the jury find that the land in dispute is east of the line so projected, their verdict should be for the defendants. Answer’: Answered in the affirmative. [7]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned among others were (1-7) above instructions, quoting them.</p> <p>The landmarks returned in the returns- of survey should have controlling influence in locating the lines in dispute.</p> <p>Where a new survey is made calling for the lines of an older survey, there is no occasion to remark the trees: Covert v. Irwin, 3 S. & R. 288; Caul v. Spring, 2 Watts, 395; Ormsby v< Ilimsen, 34 Pa. 470 ; Dreer v. Carskadden, 48 Pa. 45 ; Malone v. Sallada, 48 Pa. 430; Eister v. Paul, 54 Pa. 198; Salmon Creek Lumber Co. v. Dusenbury, 110 Pa. 446.</p> <p>Natural or artificial landmarks, descriptive of land surveyed, constitute the true boundaries ; and the courses and distances, if added, serve but to point towards the place: Cox v. Couch, 8 Pa. 147; Brolaskey v. McClain, 61 Pa. 163; Craft v. Yeaney, 66 Pa. 214; Burkholder v. Markley, 98 Pa. 40; Hall v. Tanner, 4 Pa. 245; Blasdell v. Bissell, 6 Pa. 258.</p> <p>And this is equally so when these landmarks are supplied by proof of their former existence, where the marks or monuments are gone : Lodge v. Barnett, 46 Pa. 477 ; Morse v. Rollins, 121 Pa. 537; Hughes v. Smith, 4 Penny. 220; Carroll v. Miner, 1 Pa. Superior Ct. 455.</p> <p>Later surveys are competent evidence on the question of loca tion of earlier surveys: Northumberland Coal Co. v. Clement, 95 Pa. 126; Tyrone M. & M. Co. v. Cross, 128 Pa. 636; Fisher v. Kaufman, 170 Pa. 444.</p> <p>One or the other of our theories of location is correct: Bloom v. Ferguson, 128 Pa. 362; Ferguson v. Bloom, 144 Pa. 549.</p> <p>An adopted line or corner must be a real line or corner to become a monument of the lines of the adopting warrant.</p> <p>There being neither mark nor call to control the line, it must be run according to its own courses and distances: Darrab v. Bryant, 56 Pa. 69 ; Glass v. Gilbert, 58 Pa. 267.</p> <p>Where there is no landmark or call to control, the lines of an older survey cannot go beyond the official course and distance: Boynton v. Urian, 55 Pa. 142.</p> <p>The proportional division between adjoining tracts of the surplus of land over the amount returned in the official surveys is an equal division: Parks v. Boynton, 98 Pa. 370.</p> <p>A careful reading of Ferguson v. Bloom, 144 Pa. 549, and Bloom v. Ferguson, 128 Pa. 362, shows that the principles applicable to the block system have no application to the location of these two warrants.</p> <p>On the authority of Parks v. Boynton, 98 Pa. 370, and other cases, we fix this corner northwest of 3704 and northeast of 3727, by dividing the distance between the ironwood northeast corner of 3704, and the red oak, northwest corner of 3727, proportionately to the distance called for in the return of survey of these two tracts: Grier v. Penna. Coal Co., 128 Pa. 79.</p> <p>In the case of Wilson v. Marvin, 172 Pa. 30, cited by counsel, the method of locating the chestnut was agreed to bjr both sides. The record does not state that there was any excess in the distance called for between the white oak and hemlock, and if there was no excess, that would undoubtedly be the correct way to locate it. The record in that case not showing any excess in distance, and no question having been raised to that method, it cannot be regarded as authority for the plaintiff’s theory.</p> <p>In addition to the cases already referred to, we cite the well considered case of Fisher v. Kaufman, 170 Pa. 444, as supporting the theory on which this case was tried by defendants and decided by the court beloAV.</p>

Appeal, No. 37, March T., 1896, by defendant, from order of G. P. Armstrong Co., Oct. T., 1897, No. 9, discharging rule to set aside sheriff’s sale. . Rule to set aside sheriff’s sale.

Appeal, No. 3, Oct. T., 1897, by plaintiff, from judgment of C. P. Lawrence Co., Dec. T., 1895, Ño. 14, on libel for divorce. Libel for divorce. The case was tried by Wallace, P. J., in open court without a jury. His opinion was as follows : On September 19, 1895, Herman E. McMillin presented his libel in divorce, and subpoena was awarded. The petition alleges, as a ground for divorce, adultery on the part of the defendant with one Victor Leibric.

Appeal, No. 4, Oct. Term, 1897, by Josiah Boyts, from order of C. P. Somerset County, May T.,. 1892, No. 28, confirming auditor’s report. Exceptions to report of John O. Kimmel, Esq., auditor.

<p>Appeal, No. 2, Oct. T., 1897, by S. D. Livengood, from order of C. P. Somerset Co., May T., 1892, No. 23, confirming auditor’s report.</p> <p>Exceptions to report of John O. Kimmel, Esq., auditor.</p> <p>The facts appear by the opinion of the court below, by Longenecker, J., quoted in full in the preceding ease.</p> <p>Error assigned was confirming auditor’s report.</p> <p>If this was a lien it was created by a method and in words heretofore unknown to the law or the practice. If, practically, associations can create and carry liens in this way, there is no adequate protection for their general creditors.</p> <p>It cannot be claimed that the clause in the deed of conveyance to the North Savage Fire Brick Company, Limited, created an equitable lien. The judgment specified in the deed was not for purchase money, nor for the performance of any condition Collateral to a sale of the land. It employed no apt words for the creation of a lien, nor did it make even a clear declaration of an intention to create a lien. And besides, equitable liens are not favored by the laws of Pennsylvania: Hiester v. Green, 48 Pa. 96; Holm v. Odenwelder, 162 Pa. 352; Heist v. Baker, 49 Pa. 9.</p> <p>In Pennsylvania, a judgment is a lien on every kind of equitable interest in land, vested in the debtor, at the time of its entry: Carkhuff v. Anderson, 3 Binn. 4; Pugh v. Good, 3 W. & S. 56; Lynch v. Dearth, 2 P. & W. 101; Williams v. Downing, 18 Pa. 60; Richter v. Selin, 8 S. & R. 425; Catlin v. Robinson, 2 W. & S. 373; Baird v. Lent, 8 W. & S. 422; Stephens's App., 8 W. & S. 186; Russell’s App., 15 Pa. 319; Roth & McCrone v. Humrich & Maglaughlin, 76 Pa. 128; Lloyd’s App., 82 Pa. 485.</p> <p>The case of Richter v. Selin, 8 S. & R. 425, followed by Lynch v. Dearth, 2 Penrose & Watts, 101; Episcopal Academy v. Frieze, 2 Watts, 16; Foster’s Appeal, 3 Pa. 80; Lyon v. McGuffey, 4 Pa. 128; Cake’s App., 23 Pa. 186; Waters’s App., 35 Pa. 524; Appeal of Borough of Easton, 47 Pa. 265; Zeigler’s App., 69 Pa. 473; Snyder’s App., 91 Pa. 479; Holmes’ App., 108 Pa. 27, establishes the rule, that a judgment against the equitable estate, which a vendee holds under articles of agreement for the sale and purchase of land attaches to and binds the legal estate the instant that it vests in the vendee.</p> <p>In further support of this view, the case of Episcopal Academy v. Frieze, 2 Watts, 16, is referred to, in which it was held by this court, that “ a judgment against a vendee by articles is only a lien to the extent of his interest, and if a deed be subsequently made, subject to the payment of the purchase money, the grantor will be entitled to the proceeds of a sheriff’s sale of the land: ” Roth v. Humrich, 76 Pa. 128.</p>

Appeal, No. 83, Oct. T., 1897, by plaintiff, from order of C. P. Westmoreland Co., Feb. Term, T896, N6. 262, refusing to take off nonsuit. . Assumpsit to recover the purchase price of thirty lots in the town of Emmens.

<p>Appeal, No. 142, Oet. T., 1897, by-plaintiff, from decree of C. P. Beaver Co., March T., 1897, No. 5, dismissing bill in equity.</p> <p>Bill in equity to set aside conveyances and transfers of property.</p> <p>The opinion of Wilson, P. J., before whom the case was heard, was as follows:</p> <p>FINDINGS OF FACT.</p> <p>1. That Perry Brown died on November 18,1892, leaving to survive him two children, the plaintiff, Amanda E. Campbell, and the defendant, Hartford P. Brown.</p> <p>2. That the plaintiff was married in 1860 to Samuel Campbell, who is still living, and at the time of the decease of Perry Brown, their children, two sons and one daughter, aged respectively 28, 30, and 32 years, were all married.</p> <p>3. That the plaintiff and her husband were living at Beaver Falls at the time of the death of the said Perry Brown, and had been living there for a number of years prior to that time, a distance of about five miles from the location in the borough of Rochester, where the said Perry Brown had been living for quite a number of years before and at the time of his death.</p> <p>4. That the defendant, Hartford Perry Brown, was also married, and at the decease of the said Perry Brown had a family of small children.</p> <p>5. That the wife of the said Perry Brown died on June 27, 1889, and after her death Perry Brown divided nearly all the household effects between the plaintiff and the defendant, and from that time until his decease made his home with the defendant in the borough of Rochester.</p> <p>6. That in the fall of 1888, during the illness of his wife, said Perry Brown suffered some sort of an attack, from which lie completely recovered, and the following year made a trip, unaided and alone, to California, where he remained during the winter, returning in April, 1890.</p> <p>7. That a short time after the above-mentioned illness the said Perry Brown, had two or three similar attacks, bnt in much milder form, and from all of which attacks he speedily recovered, and that there was no impairment of his mind by reason of these attacks, nor was any bodily infirmity produced by them.</p> <p>8. That the said Perry Brown was a man of strong mind and good business capacity, and so remained until his decease at the age of 72 years, and physically unafflieted, save by the usual infirmities of age.</p> <p>9. That the said Perry Brown was a man of strong' determination, uncompromising in defense of his rights or his supposed rights, controlled only by his own ideas of what was proper. He was a man of business ability, a member of the board of directors of the Rochester Heat and Light Company, and from 1887 until within a few days of his death participated in the transaction of the business of said company, attended the meetings of the board of directors, transacted business for it, waiting upon its customers in receiving the money and receipting the bills for gas, until sometime in the month of November, 1892. .</p> <p>10. That on September 23,1889, the said Perry Brown made his last will and testament, in his own handwriting, duly signed and executed in the presence of witnesses, and delivered it to John Conway, to be delivered to the defendant upon the death of the testator — -which will has since been duly proved and remains of record in the register’s office in this county, in which he gave, devised, and bequeathed unto the defendant all his property, real, personal, and mixed, except one hundred shares of the People’s Insurance Company stock, which he bequeathed to the plaintiff; and at that time the- said Perry Brown was the owner of the stocks and real estate in controversy in this case, which, so far as the evidence discloses, was practically all the property that he had at that time.</p> <p>11. That on November 9, 1889, the said Perry Brown executed and delivered to Hartford P. Brown, the defendant, a letter of attorney with general powers, recorded in letter of attorney book No. 4, page 249. Thei’e is no evidence, however, that the defendant ever accepted the said power of attorney or ever transacted any business whatever by virtue thereof.</p> <p>12. That in the spring of 1890, the defendant talked of being a candidate for register and recorder, and wrote plaintiff’s husband asking him to support him, but through some misunderstanding the defendant was persuaded that the plaintiff’s husband would not give him support, and so informed his father, Perry Brown, upon his return from California in April of 1890; that at that time the said Perry Brown went to see the plaintiff and remained with her a short time, and shortly thereafter told others that the plaintiff had treated him like a hog and that he would never darken her doors again.</p> <p>14. That Perry Brown thereafter never did go to see the plaintiff, nor did the plaintiff ever visit her father or call to see him during his last illness.</p> <p>14. That on December 23, 1890, the said Perry Brown gave the defendant his interest in the banking firm of John Conway & Company, which interest at that time was worth about $5,500, executed a formal transfer thereof on the back of a copy of the articles of association of said firm, in the presence of witnesses, who signed the same at the request of the said Perry Brown.</p> <p>15. That in the fall of 1890 said Perry Brown went to the state of Georgia, unattended and alone, and returned the next spring, and from that time until his death attended to office work of the Rochester Heat and Light Company.</p> <p>16. That on December 15, 1891, said Perry Brown gave the defendant one hundred shares of People’s Insurance Company stock, of the par value of $37.50 per share and a market value of about $3,800, mentioned in the bill of complaint, by transferring the same to him by power of attorney in blank on the back of two certificates of stock, each for fifty shares, in the presence of witnesses, who signed the same at the request of the said Perry Brown, and the transfer was duly made upon the books of the company.</p> <p>17. That on August 6, 1892, the said Perry Brown gave one hundred and four shares of stock in the Rochester .Heat and Light Company, of the value of $1,000, to the defendant, transferring the same by powers of attorney on the backs of the certificates therefor, in the presence of a witness, who signed the same at the request of the said Perry Brown; and the said stock was transferred upon the books of the company, with the exception of one share, which was allowed to remain on the books in the name of Perry Brown to enable him to act as director of the company thereafter.</p> <p>. 18. That on August 6,1892, the said Perry Brown, by three separate deeds of conveyance, conveyed all his real estate, of the value of about f20,000, in the borough of Rochester, to the defendant. The acknowledgments of said deeds were taken by Charles W. Hurst, a notary public, well acquainted with the said Perry Brown, and the deeds were produced by him and signed in the presence of the notary.</p> <p>19. That the said deeds were recorded on August 16, 1892.</p> <p>20.. That the defendant, ever since the date of the transfers of the stocks, has controlled the same, and upon the execution and delivery of said deeds took possession of the lands described therein, and has ever since controlled the same.</p> <p>■, 21. That the evidence disclosed the fact that Perry Brown had great affection for the defendant and his family, and after said assignments and deeds had all been made, he stated that he had disposed of all his property and business to his son Hartford by deeds, and when he was asked why he had done that when he already willed the property to the defendant, replied that he was afraid that after his death litigation might take place, and that the transfer of the- property would prevent all that.</p> <p>22. That no fraud, misconduct or undue influence on the part of defendant has been shown, nor that the defendant stood in the relation of confidential adviser to the said Perry Brown.</p> <p>28. That in the fall of 1892, sometime prior to his last illness, said Perry Brown suffered from an abscess in his back, but from which he soon obtained relief under the care of a physician.</p> <p>Captain Brown was a man of strong likes and dislikes, quick to take an affront and slow to forget. In all the affairs of life, he formed and had his own opinions, and great- determination in defending those opinions. Independent in thought and action, contrary in mind and spirit, he repulsed flattery and defied contradiction.</p> <p>Shortly after the death of his wife, which occurred in June, 1889, he determined upon a trip to California, and on September 23, he wrote with his own hand, executed in the presence of witnesses and delivered to John Conway a last will and testament, with the instructions that after his death the same should be delivered to his son Hartford. In and by this instrument lie devised and bequeathed all his property, real .and personal, to his son Hartford P. Brown, with the exception of one hundred shares of stock in the People’s Insurance Company, of Pittsburg; and on November 9, of the same year, just before leaving for California to spend the winter, he made and executed to his son, Hartford P. Brown, letters of attorney, with general power to act. It does not appear that Hartford P. Brown ever accepted said power or did any act or thing thereunder.</p> <p>On Perry Brown’s "return from California in April, 1890, he made his home with his son, Hartford P. Brown. The only thing that cropped out in this case Avhereby any feeling seemed to have arisen between the plaintiff and the defendant, ivherein the defendant is sIioaaui to have said anything to the father, Perry Brown, by A liich he might have been influenced in his affections or feelings toAvards his daughter, the plaintiff, Avas at this time. It appeared that Hartford P. Brown was thinking of being a candidate for register and recorder, and some mistake between himself and S. R. Campbell, the husband of the plaintiff, arose in reference to the position the said Campbell Avould take in the matter, and the defendant Avas led to believe that Campbell would be antagonistic to him, and upon his father’s return so informed him. The father thereupon paid a visit to his daughter in Beaver Falls, and from her testimony, though held to be incompetent, yet even if taken to be admissible to relate what occurred there, their feelings were not of the most cordial kind ; and the father, avIio had not seen his daughter for many months, after that intervieAv, left in high dudgeon, and never again darkened her door, and made complaints to others that he had been treated like a hog. Captain BroAvn from this time on lived Avitli his son Hartford, the defendant, and was engaged in the office work for the Heat & Light Gas Company, attending to business for that company and his OAvn business from time to time, Avith the exception of an interval of a few months in the winter of 1890-1891, when he was absent in Georgia, Avhich trip he made unattended and alone, returning early in the year 1891. Between December 28, 1890, and the time of his death, which occurred on November 18,1892, the transfers and conveyances of which the plaintiff complains Avere made — the first transfer having been made on December, 23, 1890, and the last on August 6, 1892. It is not necessary to recount all the circumstances attendant upon these transfers and conveyances more than to say that at the time they were made Perry Brown was of sound and vigorous mind, although physically somewhat crippled with age. Prompted bj^ a great love for his son, the bad treatment which he had received at the hands of his daughter, and of which he complained to others, and that he had stated that he had already given his daughter considerable help, and the will having been made prior to the trouble between Hartford and Campbell, fully account for the conduct of Perry Brown in making the transfers and conveyances complained of by the plaintiff.</p> <p>Upon the hearing in this case the testimony of the plaintiff was admitted, as was also that of her husband, under objection and exception by the defendant. In this case the plaintiff claims by descent to be entitled to an interest as heir in the property of her deceased father. In this view of the case the plaintiff is an incompetent witness, as is also her husband. Under ' the Act of May 23, 1887, sec. 5 (e), P. L. 158, which provides that where a party to a contract is dead, no other person whose interest shall be adverse to the right of the decedent shall be a competent witness to any matter or thing occurring before the death of the decedent, unless the issue or inquiry be devisavit vel non, a plaintiff in ejectment who claims by descent from his father, and that a voluntary deed executed by the father to the defendant and other of his children is void because of the father’s incapacity, is not a competent witness as to matters occurring, before the father’s death: King v. Humphreys, 138 Pa. 310; Crothers v. Crothers, 149 Pa. 201.</p> <p>There is no doubt that the defendant, being the surviving party to a contract with his father, was an incompetent witness. In considering clause “ e ” it is discovered that the intention was to establish the principle of fairness between contending interests, having no regard to the parties to the action'. The question now is, What is the thing or contract now in action ? Who were the parties originally interested therein ? Did any of them die or become a lunatic ? If both are living and sane, they are presumed to be able to take care of themselves, and all persons may testify to any relevant fact, save as stated in clauses a, b, c, and d. If, however, either party is dead or a lunatic, an inequality probably exists which the act strives to remedy. The further questions then arise: Has the right of the dead or lunatic party passed to a party on the record ? Does this party represent this right in the depending action? Was the right directly involved in the subject in controversy? If the answers are yes, the living party can no longer be beard as to any matter occurring before the death of tbe other or the adjudication of bis lunacy. For a similar reason no one else can be heard as to such matters, if his interest be adverse to the right in controversy of tbe dead or lunatic party; but any one may, no matter what may be liis interest in the action, testify to matters occurring after tbe deatli of tbe party or tbe adjudication of his lunacy. See McPherson, Competency of Witness.</p> <p>In this case the defendant, being a surviving party to the transfers and the conveyances, cannot be beard; and tbe plaintiff, having an interest adverse to tbe rights of the decedent, the other party to the contract or contracts, is an incompetent witness, and she being incompetent renders her husband also incompetent.</p> <p>24. That at tlie time tbe assignments and deeds were made, the said Perry Brown was strong, physically, for a man of his age, and of sound and unimpaired mind.</p> <p>25. That after the said assignments and conveyances had all been made, tbe said Perry Brown stated that he bad already given Mrs. Campbell, the plaintiff, and her husband, what was a large amount, and thought that they were pretty well provided for, and that any one that treated him ill could not expect any favors from him.</p> <p>26. That in transferring the stocks and making the conveyances above referred to, the said Perry Brown intended to make a gift of those stocks and real estate described in said deeds to the defendant, and at the making of said gifts he was of sound mind and knew the nature of his acts and their effect upon him in relation to his estate, and that his intention was not produced by any undue influence, fraud, or misconduct on tbe part of tbe defendant.</p> <p>27. That on August 27, 1894, tbe defendant, as executor of the will of Perry Brown, filed his final account, showing a balance of #326.56 due the accountant.</p> <p>28. That tbe plaintiff in this proceeding filed exceptions to said‘account, for the reason that the accountant had not charged himself with the John Conway & Company bank stock, the Rochester Heat and Light Company stock, and the People’s Insurance. Company stock, described in the bill of complaint in this case, and thereupon the orphans’ court appointed an auditor to pass upon said exceptions and restate the account if necessary.</p> <p>29. That the meetings of said auditor were attended by the exceptant and her counsel, and after investigation, argument and reargument, the auditor upon deliberation dismissed the exceptions so far as they related to said stocks and submitted his findings to said counsel for exceptant, whereupon the ex-ceptant’s counsel, in open court and by leave of the same, withdrew the said exceptions to the said account so far as they pertained to said stocks, and the auditor’s report, without any modification, was filed and confirmed nisi on October 28, 1896, which confirmation became absolute in five days thereafter, and no appeal was taken therefrom.</p> <p>30. That the said Perry Brown could read and write, and was fully acquainted with the value of his property.</p> <p>31. That the cause of Perry Brown’s death was pneumonia.</p> <p>CONCLUSIONS OK LAW.</p> <p>1. The plaintiff, Amanda E. Campbell, is an incompetent witness, and her testimony as to matters occurring in the lifetime of Perry Brown should be stricken out, as should also that of her husband, S. R. Campbell.</p> <p>2. The transfer of the interest in the firm of John Conway & Company, the People’s Insurance Company stock, the Rochester Heat and Light Company stock, and the conveyances of the real estate by the three deeds of August 6,1892, were gifts, and should be sustained.</p> <p>3. That said transfers and conveyances, being gifts from father to son, every presumption of law is in favor of their validity and fairness.</p> <p>4. That when the plaintiff filed her bill and called upon the defendant to answer it, she thereby made him competent for that purpose; and if the answer is responsive to the bill, the plaintiff is bound by it, unless she overcomes the effect of it by the requisite proof.</p> <p>5. Tlie answer being responsive, the effect of it cannot be overcome, except by the testimony of two witnesses, or at least the testimony of one witness and corroborating circumstances equivalent to the weight of the testimony of a second witness.</p> <p>6. That said Perry Brown, being of sound mind, had the undoubted right to dispose of his property by making gifts of the whole of it to his son.</p> <p>7. The questions arising in this case concerning the stocks in suit are not res adjudicata.</p> <p>8. That the bill should be dismissed.</p> <p>Jirror assigned was in dismissing bill in equity.</p> <p>Where there is a confidential relation between the parties, the burden is upon the party claiming the benefit, to show affirmatively the utmost fairness: Darling-ton’s App., 86 Pa. 513 ; Boyd v. Bojul, 66 Pa. 283; Greenfield’s Est., 14 Pa. 505; Miskey’s App., 107 Pa. 629; May on Fraudulent Conveyances (2d ed. Worthington), 494; Yardley v. Cutlibertson, 108 Pa, 459; Worrall’s App., 110 Pa. 364.</p> <p>Plaintiff and her husband were competent witnesses: Howser v. Griesing, 7 Lane. Law Rev. 23; Eichhorn’s Est., 24 W. N. C. 364; Corson’s Est., 27 W. N. C. 84.</p> <p>was not heard, but cited in bis printed brief: Crotliers v. Crothers, 149 Pa. 201; Ralston v. Turpin, 25 Fed. Rep. 19; Uhlicli v. Mulilke, 61 111. 499 ; Harrison’s App., 100 Pa. 458; Blumo v. Hartman, 115 Pa. 32; Caldwell v. Anderson, 104 Pa. 199; Boyd v. Boyd, 66 Pa. 283; Clark v. Clark, 174 Pa. 309.</p>

<p>Oil and gas lease — Mines and mining.</p> <p>In an action to recover a bonus under an oil and gas lease it appeared that prior to the execution of the lease the lessor had conveyed the coal under his land to a corporation, reserving to himself in the deed the right to drill three wells for oil and gas through the coal. After the execution of this deed, but before the execution of the lease, the lessor conveyed portions of the surface of his land to various other persons, without reserving to himself any right to drill wells upon the portions of the land so conveyed. The defendant, lessee, filed an affidavit of defense in which he averred that the corporation had denied the right of the lessor and his lessees to drill wells for oil and gas, and that under threat of suit defendant had agreed to pay the corporation a certain amount for each well, and that subsequently the corporation had obtained an injunction restraining the drilling of any wells upon the lots conveyed to others. Reid, that the affidavit of defense was insufficient to prevent judgment.</p>

Appeal, No. 48, Oct. T., 1897, by Caroline Becker and Mary Becker, from decree of O. C. Washington Co., Aug. T., 1896, No. 35, on appeal from register of wills. Appeal from register of wills. The facts appear from the opinion of Taylor, J., which is as follows: This is a contest between the four children of Charles and Willielmina Schmidt, deceased, for letters of administration upon the mother’s estate.

<p>Appeal, No. 161, Oct. T., 1897, by William A. Adams, from decree of O. C. Washington Co., Feb. T., 1897, No. 6, sustaining demurrer to petition.</p> <p>Petition for bill of review.</p> <p>The facts appear by the opinion of Taylob, J., which was as follows:</p> <p>It is conceded by the petitioner in this case for a bill of review of the accounts of Wm. J. Alexander, trustee of Rose Ann Adams, and James S. Alexander and Joseph A. Herron, executors of the will of the said Wm. J. Alexander, who was trustee of the said Rose Ann Adams, deceased, that he has laid no ground demanding relief as a matter of right, which was to admit that there were no errors of law apparent on the face of the records referred to, and that no new matter had arisen since the decrees confirming said accounts. .It was frankly stated by the petitioner’s counsel at the argument of the case that if the petitioner were granted the review for which he laid claim, it rested solely with the court as a matter of grace, and to this attribute alone on the equitable side of the court he addresses himself and refers his cause. In disposing of the case it will be necessary to consider only when and under what circumstances a review should be granted as a matter of grace, after referring to the facts stated in the petition, from which the petitioner’s rights are now to be determined, if he have any, under this proceeding.</p> <p>The will of Joseph Alexander must be taken as the basis of any claim the petitioner here may have to relief, since the petition sets forth his will, and that whatever estate Rose Ann Adams had was derived by and under said will, and in which the trust here was also created. Joseph Alexander died testate in June, 1871. His will was duly probated and letters testamentary issued to Wm. J. Alexander, a son, who at the time of his father’s death was engaged with him in the banking business as private bankers in the city of Monongahela. By the said will of Joseph Alexander his executor therein named was also made trustee of the one fifth residue of his estate remaining after the payment of his debts, to be by him held in trust for the use and benefit of the said Rose Ann Adams during her life, and then any remaining after her death to be paid to her two sons, Wm. A. Adams, the petitioner in this ease, and Charles W. Adams, who died intestate, unmarried and without issue. Rose Ann Adams was a daughter of the said Joseph Alexander and a sist'er of ffm. J. Alexander, the executor and trustee under the father’s will. In the appraisement of the estate of Joseph Alexander, deceased, filed August 1, 1871, the sum of $4,988 was appraised as “ due from Alexander & Co.,” the banking firm, and represented the interest of the deceased father in this business. This sum, with other items of personal property of the deceased, aggregated $5,542, Avhich sum the accountant, together with the sums derived from the sale of the decedent’s real estate, aggregated, as the entire estate of said deceased, $17,961.50; and after deducting debts, funeral expenses and expenses of settlement, left abalance for distribution among the legatees under said will of $17,169.95, which balance was distributed in five equal shares and amounts to and among the children of said deceased of $3,433.99 each, as shown by the account of said executor filed to No. 14, February term, O. C. 1872, which account was confirmed and never excepted to. The executor of Joseph Alexander received, and receipted for as trustee' of Rose Ann Adams, her full share as shown by the distribution account of her father’s estate, December 16, 1871, $3,483.99, and placed it on deposit in the banking house of Alexander & Co., where it remained until finally used up by the said Rose Ann Adams, principal, and interest which it drew from the date of its deposit with the bank on December 16, 1871, the interest of which and so much of the principal as was remaining were paid July and January of each year for the support and care of the said Rose Ann Adams, who was a lunatic, confined in an asylum for the insane until her death, May 22, 1893.</p> <p>At No. 5, January term, O. C. 1881, the said William J. Alexander filed an account of his management of this trust fund held by him under the will of Joseph Alexander for the use of said Rose Ann Adams, accounting for principal and interest accrued thereon July 1, 1880, $4,810.88, from which he took credit in the sum of $2,683.02, as paid out for the maintenance, care and keeping of his sister, in the institution for the insane where she was confined. This account was duly confirmed by the court without exception filed, and the balance shown by it in the hands of the trustee, viz: $2,127,86, the said trustee continued to keep invested at six per cent annual interest until January 2, 1888, when principal and interest of the trust fund became exhausted in the support of the lunatic, and the trustee and brother had expended of his own funds, as appears by the account of his executors, who to bio. 56, May term, O. C. 1895, filed his final account as trustee, the sum of 1971.54, showing an indebtedness in said amount of the estate of Rose Ann Adams to the executors of William J. Alexander, deceased. This account filed of this trust estate by the trustee’s executors, the trustee having died June 4, 1894, was exhibited in the register’s office May 15, 1895, in a few days less than one year after the decease of the said trustee of Rose Ann Adams, and was advertised and confirmed according to law absolutely April 17, 1895, without exception filed thereto. It is these two latter accounts that the petitioner here, William A. Adams, the only surviving son and heir of the said Rose Ann Adams, filed March 8,1897, Cor a rule, etc., asks the court to open up to him, as a matter of grace, for review, for the purpose of showing, as he sets out in paragraph 14 of his petition, that “ the portion of the estate allotted to the trustee of Rose Ann Adams was an interest in the said Alexander & Co., equal to the amount of said estate, and was never converted into money, and never passed through the hands of Wm. J. Alexander as executor and trustee, but remained a vested interest in said company without interruption from the death of Joseph Alexander to this date, and the principal thereof has never been accounted for.” It is here plain to be seen that no new proof has been discovered after the decree confirming the account of Wm. J. Alexander, as trustee of the said Rose Ann Adams, a lunatic, filed to No. 5, January term, 1881, which proof could not possibly have been used at the time when the decree confirming that account wras made. By that account the trustee plainly discloses the fact that the share or interest derived by the said Rose Ann Adams from her father’s estate, and by him held in trust under the will of his father for this lunatic sister, is not a vested interest in the banking firm of Alexander & Co., but there as a deposit drawing interest thereon at the legal rate, the same as that of an investment for an interest rate instead of an interest in the firm. A period of about eight years had elapsed between the death of Joseph Alexander and the filing of the first account of Wm. J. Alexander, as trustee of Rose Ann Adams, yet in all these years no expenses of the running of the banking house of Alexander & Co., were charged up to the trust estate of Rose Ann Adams in the trustee’s hands; in this account, and then, as now, the accountant treated the money derived by her from her father’s estate as invested simply as an interest bearing investment, the income of which, as well as some of the principal, from time to time, were necessarily used for her support and maintenance in the asylum. There is no allegation in the petition that the petitioner was without knowledge of the filing of this account, or the last one filed by the executors of the trustee, or so situate that he could not -inspect the same, and we must take it after this lapse of time, and particularly after the death of Wm. J. Alexander, the trustee, whose lips are now sealed in death, that the petitioner has been guilty of such laches, he being the residuary legatee of the mother’s trust estate under the will of his grandfather Joseph Alexander, as destroys his title to relief. For the principle laid down above, and which controls our decision in this case, see Scott’s App., 112 Pa. 427; Priestley’s App., 127 Pa. 420, and the cases in the above two cases cited, wherein these principles of equity, as applicable to the act of 1840, were early adopted by the Supreme Court of this state. We must assume that the petitioner, interested as he was in the estate of his grandfather, a portion going 'to his mother and then to himself, in the hands of the trustee appointed by the will of his grandfather, had legal notice of the filing of these accounts which were advertised, and the solemn decrees of the court confirming them, wherein it is shown on the face of each-that they could then, before the confirmation of each, have been attacked for the same reason and by the same proof as now proposed, but for the laches or negligence of the petitioner. “ As a matter of grace, a review may be granted for new proof discovered after the 'decree, which proof could not possibly be used at the time when the decree was made; yet when the partjr complaining has been guilty of laches after notice of the decree, the bill should not be granted: ” Priestley’s App., supra; Scott’s App., supra; Milligan’s App., 82 Pa. 389; Lee’s Est., 29 W. N. C. 346.</p> <p>We can attach no weight to paragraph 10 of the petition wherein the simple statement is made that the interest of Joseph Alexander in the banking firm of Alexander & Co., being a one third interest, was valued at $4,988 on August 1,1871, and that the interest of Wm. J. Alexander in the banking firm of Alexander & Co., August 20,1894, was a one third interest, valued at $40,000. We are led to conclude, therefore, that as no proof or evidence is suggested hy the petitioner now or gross errors the knowledge or evidence of which he could not, by the exercise of reasonable diligence, have discovered before the accounts were finally confirmed, his claim for relief must rest on his averments : LeMoyne’s App., 104 Pa. 321. The petitioner sets forth that he “ has discovered very recently, and since the filing and confirmation of the last account, that the estate of Rose Ann Adams was invested as hereinbefore set out,” etc. There can be no doubt that his claim as to this is based upon the will of Joseph Alexander, and full and entire information as to the trust funds could have been demanded and enforced at any time by him, at least since May 22, 1893, the date of the death of Rose Ann Adams, and prior to the death of the trustee. If the petitioner was content to rely on the “ advice of the custodians and trustees of the funds,” and if “believing their statement ” he “ has allowed said accounts (made under oath) to remain unquestioned,” this would not bring him within the requirements of the law which would entitle him to a bill of review under the circumstances of this case disclosed by his petition. The authorities of McNeel’s Est., 68 Pa. 412, and Kinter’s App., 62 Pa. 318, cited by petitioner’s counsel, do not apply to the situation as disclosed by the petition. In those cases there was a plain showing that assets belonging to estates had been omitted from the accounts: it was made to appear as a matter of fact that such was the case, upon which the review was granted to reform and surcharge. In the case before us no such facts plainly appear, nor can we take the filing of the demurrer in this case to admit that the statements made here are facts, admitted for any other purpose than to avail the demurrers of a legal defense as a matter of form in pleading.</p> <p>And now, June 26, 1897, this cause came on to be heard on petition and demurrer thereto, and after argument by counsel and due consideration thereof, the demurrer filed is sustained and the petition dismissed, at costs of petitioner.</p> <p>lUrror assigned was decree of the court.</p> <p>In disposing of this case the court below held that the appellant did not aver, in his petition, any new matter that he could not have used at the time the accounts were confirmed; and that he was barred by his laches. In so holding, we contend that the court did not give the demurrer filed in this case its proper and legal effect, namely, that by demurring to the petition the appellees thereby admitted all such matters of fact as are sufficiently pleaded in the petition to be true as alleged: Stephen on Pleading (9th Am. ed.), 143; Ackerman v. Buchman, 109 Pa. 254; Bitting’s App., 105 Pa. 517; Wildee v. McKee, 111 Pa. 335.</p> <p>A trustee will not be permitted to obtain any profit or advantage to himself in managing the concerns of the cestui que trust, but whatever benefits or profits are obtained will belong to the cestui que trust: 1 Story’s Equity Jur., sec. 220 ; 1 Perry on Trusts, sec. 427; Baker’s App., 120 Pa. 48; Norris’s App., 71 Pa. 125; Kepler v. Davis, 80 Pa. 153; Hall’s App., 40 Pa. 413; Raybold v. Raybold, 20 Pa. 308.</p> <p>Where there is fraud laches cannot be imputed to the injured party, until the fraud is discovered: 1 Perry on Trusts, sec. 230; Sankey v. McElevey, 104 Pa. 265; Kuhns’s App., 87 Pa. 100; Ferris v. Henderson, 12 Pa. 49; McNeel’s Est., 68 Pa. 412.</p> <p>The facts in the case show that no rights have changed in consequence of the decrees confirming these accounts, and in such case the power of correction will be liberally exercised, even if error does not appear on the face of the record or new matter is not averred or shown: Mitcheson’s Est., 11 W. N. C. 240; George’s App., 12 Pa. 260; Bishop’s App., 26 Pa. 470; Bucknor’s Est., 7 W. N. C. 470.</p> <p>The investment of the estate in the private business of the trustee, resulting in large profits, and the failure to account for the same, is a fraud, which an examination of the account would not reveal. In such cases great liberality is exercised by the courts in granting bills of review, and especially so when it will not result in the disturbance of an appropriation already made: Kinter’s App., 62 Pa. 322; Kuhns’s App., 87 Pa. 100; McNeel’s Est., 68 Pa. 412.</p> <p>An account settled and confirmed can only be reviewed as a matter of right, for error of law appearing on the face of the record, or for new matter which has arisen since the decree. As a matter of grace a review may be granted for new proof, discovered after the decree, which proof could not have been used at the time the decree was made: Story’s Equity Pleadings, sec. 404; Riddle’s Est., 19 Pa. 431; Russell’s App., 34 Pa. 258; Hartman’s App., 36 Pa. 70; Fletcher’s App., 125 Pa. 357; Priestley’s App., 127 Pa. 432; Jones’s App., 99 Pa. 124; Lehr’s App., 98 Pa. 25; Scott’s App., 112 Pa. 427; Gosner’s Est., 133 Pa. 528; 4 Brewster’s Practice, 808.</p> <p>We do not quarrel with the position taken by the appellant that the demurrer “admits all such matters of fact as are sufficiently pleaded,” but we deny that this legal principle can be so extended so as to cover any naked averments which the petitioner may see fit to make, especially if such averments are directly contradicted by the records to which he specifically refers and makes a part of his petition. “Inferences from facts, arguments and conclusions” are not admitted: Com. v. Commissioners of Allegheny County, 37 Pa. 277; Manners v. Library Co., 93 Pa. 165.</p>

Petition by defendant to amend judgment of reversal by adding thereto a formal judgment in favor of the defendant. January term, 1896, No. 602. From the record it appeared that on May 3,1897, the Supreme Court reversed the judgment of the court below, 181 Pa. 160, and the following decree was entered: “The first and second specifications of error are sustained, and the judgment appealed from is reversed.” A venire facias de novo was not awarded.

Appeal, No. 36, Jan. T., 1897, by plaintiffs, from order of C. P. Lackawanna Co., Sept. T., 1896, No. 501, discharging rule for judgment for want of a sufficient affidavit of defense. Scire facias on mechanic’s lien based on a building contract. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 174, Jan. T., 1897, by defendants, from decree of C. P. Union Co., May T., 189ti, No. 1, on bill in equity. Bill in equity for an account. Before McClure, P. J. The facts appear by the opinion of the Supreme Court. The decree of the court below was in part as follows: 1.

Appeal, No. 485, Jan. T., 1896, by People’s Trust, Savings and Deposit Company, guardian, from decree of O. C. Lancaster Co., directing payment to ward without entry of security. Rule to compel guardian to pay over money to ward. An outline of tbe facts of this case is given in the opinion of the Supremo Court.

Appeal, No. 145, Jan. T., 1897, by defendants, from judgment of C. P. Lancaster Co., Aug. T., 1894, No. 10, on verdict for plaintiff. Assumpsit on contract for salary.

<p>Equity — Parlies—Public corporation — Bill to enforce the performance of public duties.</p> <p>A bill in equity to enforce the performance of public duties by a corporation cannot be maintained by a private party in the absence of a special right or authority.</p> <p>A private citizen has no standing to recover damages from a canal company for failure to reconstruct a portion of its canal which was destroyed by a flood, because he was prevented from using his boat on the canal, from which use he derived a profit.</p>

<p>Railroads — Common carriers — Modification of common-law liability— 174Contract — Public ¡policy— Custom.</p> <p>2400 As a general rule a common carrier must give to the consignee of goods, notice of their arrival at the point of destination.</p> <p>While a common carrier cannot stipulate for a release from the consequences of his own negligence or fraud, yet he can modify his liability as such so far as to provide that notice of the arrival of goods need not be given at small stations where no station house has been built and no freight agent located.</p> <p>A contract that at such stations the goods shall be at the “ risk ” of the owner until loaded into cars, and when unloaded therefrom is not against public policy and will be enforced.</p> <p>Where goods are carried under such a contract all responsibility for protecting the same after the goods reach their destination is assumed by the consignor.</p>

Appeal, No. 81, Oct. T., 1897, by defendant, from judgment of C. P. Westmoreland County, Feb. T., 1896, No. 703, on verdict for plaintiff. Assumpsit upon a promissory note under seal. Before Doxy, P. J. At the trial the note in suit was offered in evidence. It was objected to because upon its face it purports to have been signed by Snyder as surety, and the absence of the signature from the customary place is not explained.

<p>Appeal, No. 138, Oct. T., 1897, by 'plaintiff, from order of O.' P. Armstrong County, Dec. T., 1896, No. 215, refusing to take off nonsuit.</p> <p>Trespass for personal injuries. Before Rayburn, P. J.</p> <p>The facts appear by tlie opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p> <p>It is difficult to understand tlie difference between this case and that of a horse becoming frightened and backing upon and over the side of a bridge, as occurred in the case of Lydia Bitting v. Township of Maxatawny, 177 Pa. 213; 180 Pa. 359.</p> <p>If this horse had taken fright when on the bridge, and because of the absence of guard-rails backed the buggy off, we think no one, in the face of our numerous adjudicated cases, would have questioned the answerability of the defendant: Lower Macungie Twp. v. Merkhoffer, 71 Pa. 276; Twp. of Newlin v. Davis, 77 Pa. 317; Scott v. Montgomery, 95 Pa. 444; Hey v. Philadelphia, 81 Pa. 44.</p> <p>It is the neglect of duty which constitutes negligence; and where the law imposes no duty there can be no negligence : Francis v. Franklin Twp., 179 Pa. 197.</p> <p>When, as in this case, the facts are not controverted, the question of proximate cause is for the court: Behling v. Pipe Lines, 160 Pa. 359; Ry. v. Taylor, 104 Pa. 306 ; Twp. of West Mahanoy v. Watson, 112 Pa. 574; Yoders v. Am well Twp., 172 Pa. 447; Chartiers Twp. v. Phillips, 122 Pa. 601; Herr v. Lebanon, 149 Pa. 222; Schaeffer v. Jackson Twp., 150 Pa. 145; Wagner v. Jackson Twp., 127 Pa. 184; 133 Pa. 61; Kieffer v. Ilummelstown Boro., 151 Pa. 304.</p>

Appeal, No. 21, Oct. Term, 1897, by defendants, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1896, No. 338, on bill in equity. Bill in equity for a partnership accounting.

Appeal, No. 43, Oct. T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny Go., April Term, 1894, No. 356, on verdict for plaintiff. Trespass against the sheriff to recover damages for alleged wrongful levy. Before Magee, J. At the trial it appeared that the property levied upon was three boat bottoms, one loaded with pit posts and two with check posts. It was levied upon as that of W. W. O’Neil.

<p>Appeal, No. 37, Oct. T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. Term, 1894, No. 241, on verdict for plaintiff.</p> <p>Assumpsit to recover money alleged to have been loaned by a wife to Iter husband. Before Magee, J.</p> <p>At the trial the evidence for plaintiff tended to sbow that in 1884, John Kalbfell married Anna K., tlie widow of Jacob Pfeiffer, deceased, and tbat Mrs. Kalbfell had received $3,000 from her first husband’s estate. At various times between 1884 and 1893, Kalbfell collected from bis wife’s debtors about $2,800. There was no evidence that be ever paid these amounts to bis wife, and it affirmatively appeared that she had on a number of occasions demanded from him a mortgage or judgment to secure her money.</p> <p>The defendant presented the following points:</p> <p>The evidence offered on bebalf of plaintiff does not show that Mrs. Kalbfell loaned her husband money, and the verdict should be for defendant. Answer: This point is refused. [1]</p> <p>The evidence fails to show wliat sum, if any, was given by Mrs. Kalbfell to lier busband, and without such evidence the plaintiff cannot recover. Answer : This point is refused. [2]</p> <p>Under tbe pleadings and evidence the verdict should be for defendant. Answer: Tliis point is refused. [3J</p> <p>Verdict and judgment for plaintiff for $3,540. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p> <p>cited, Hauer’s Est., 140 Pa. 420; •Eavenson’s App., 84 Pa. 172.</p> <p>cited, Hamill’s App., 88 Pa. 363; Reber’s App., 143 Pa. 308.</p>

<p>Appeal, No. 68, Oct. T., 1897, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May Term, 1896, No. 396, on verdict for defendant.</p> <p>Appeal by plaintiff from report of viewers assessing benefits against plaintiff’s property. Before McClung, J.</p> <p>At the trial it appeared that the borough of Willrinsburg improved a portion of Hill avenue, one of its streets, under the provisions of the Act of May 16, 1891, P. L. 75, by grading, curbing with Beaver sandstone and paving with fire brick a width of 30 feet and a total length, exclusive of cross streets, of 2,179.94 feet. This improvement extended from a point in Pitt street on the west to the west line of Coal street on the east. About midway between these termini Hill avenue is bisected by Wood street, a leading thoroughfare, and that portion of the improved part of Hill avenue lying west of Wood street is level, and the grade of the improved street practically that of the abutting property, while that portion of the improved avenue lying east of Wood street rises sharply from Wood street almost to the eastern terminus of the improvement, where there is a crown. Plaintiff’s property fronts 376 feet on the extreme west end of the improvement, lying between Pitt street and Hay street, on the level portion of the avenue, and has a complete outlet via Wood street. The crown near the eastern end of the improvement was cut, causing damages to abutting properties amounting to more than $2,000.</p> <p>Counsel for plaintiff offered evidence to show that the cuts made upon the several properties were of no peculiar or special benefit to her property. Objected to.</p> <p>By the Court: The objection is sustained. We will permit the plaintiff to show that her property was not specially benefited to the amount assessed against her, but we do not think that the offer as made is competent for that purpose, or is the proper way to show that fact. Exception allowed and bill sealed. [1]</p> <p>Counsel for plaintiff offered to show that the result of the action of the viewers, in assessing benefits for damages awarded by reason of changes of grade along the lino of the improvement, was to prorate the damages allowed as benefits upon all ■the properties abutting upon the whole length of the improvement, with allowance for flankage and variance in depth of lots. Objected to as incompetent and irrelevant in "this issue.</p> <p>1 By the Court: Objection sustained. Exception allowed and bill sealed. [2]</p> <p>S. H. McKee, a witness for plaintiff, being on the stand, was examined in chief as follows:</p> <p>“ Q. Mr. McKee, you have stated that you were acquainted with the properties abutting upon the line of the improvement of Hill avenue before and after the improvement, and their relative positions with reference to the improvement, as to grade. I wish you would state whether or not in your judgment the change in the grade of Hill avenue between — or do you know whether or not there was a change on Hill avenue between— 'Coal and Center streets,, in connection, with this improvement.? A. I know there was a cut in Hill avenue, but I don’t know whether you would call it a change of grade, at the uj)per end of Hill avenue. Q. Between Center and Coal? A. Between Center and Coal; but whether it was a change in grade or not I don’t know. It was a change from the original contour of the ground. Q. Well, if that was a change of grade between those points connected with this improvement, was that change of grade on Hill avenue between Center and Coal streets of any special or peculiar advantage to the property of Mrs. L. A. Boyd?” Objected to as incompetent and irrelevant.</p> <p>By the Court: Objection sustained. Exception allowed and bill sealed. [3]</p> <p>The court charged as follows:</p> <p>• In this case it is conceded by counsel that it has practically resolved itself into a question of law; that is, that the rulings of the court with regard to the principles upon which this matter is to be decided have settled what your verdict should be. The counsel for plaintiff here admits the truth of the testimony of the witnesses to the effect that regarding this whole improvement there is a peculiar benefit to the plaintiff’s property to the amount of the assessment, $1,473.94. He maintains that he has a right to separate the two portions of the street, and maintains that there is part of this improvement, which perhaps was the most costly part, which does not benefit his client’s property. We are unable to see how we could permit him to go into that matter, because if we go into one, we must go into all of these cases, and we would have an inextricable mix in trying these various issues. It seems to us that we have gone as far as we can in allowing him to show matters which would reduce the assessment of his client. Counsel does not claim that there has been anything improperly assessed upon the property along this entire street. The cost of improvement, he concedes was all right, and was not improperly increased; but he thinks that he ought to be allowed to show that his client’s property would have been as much improved if they had only improved part of this street — had not improved it clear through. We think he must take the improvement as a whole ; and the question is whether he has had benefits which justify this assessment. Under that ruling, as I have said, while the borough was prepared to submit further testimony, counsel for plaintiff candidly concedes that the assessment should be sustained, and therefore, under this concession, your verdict would be properly in favor of the borough. The issue here possibly is not made up as it should be logically. Probably the borough should be plaintiff; but we will arrive at the same end by taking your verdict in the form that I suggest — that would be a verdict for the defendant, and that the peculiar advantage resulting to the plaintiff’s property from the improvement in question is equal to the amount of the assessment, to wit: $1,473.94.</p> <p>The jury found the following verdict: “We, the jurors empanelled in the above entitled case, find for defendant, and find that the property of the appellant, Mrs. Louise A. Boyd, has been peculiarly benefited by the improvement in issue to the full amount of the assessment of benefits made upon said property, to wit: $1,473.94.”</p> <p>Upon which verdict judgment was entered.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions.</p> <p>The damages should have been determined separate and apart from the benefits, and the damages caused by the change of grade should have been assessed upon the properties peculiarily and specially benefited by the change of grade: Aswell v. Scranton, 175 Pa. 181; Tonrison’s App., 171 Pa. 43; Dawson v. Pittsburgh, 159 Pa. 317; Pittsburgh’s Petition, 138 Pa. 434.</p> <p>cited Seaman v. Borough of Washington, 172 Pa. 467, and argued that the appellant’s authorities sustained appellee’s' position.</p>

Appeal, No. 67, Oct. T., 1897, by defendants, from order of C. P. No. 2, Allegheny Co., April T., 1897, No. 123, awarding peremptory mandamus. Petition for mandamus. The facts and sufficient of the allegations of the petition and answer appear by the opinion of the lower court, White, J., which was as follows: This case comes before us on an amicable submission, to decide the legal questions involved.

Appeal, No. 62, Oct. T., 1897, by defendant, from judgment of C. P. No. 1, Allegheny County, Dec. T., 1895, No., 294, on verdict.fpr plaintiff. Trespass for crim. con. Before Stowe, P. J. The facts appear by the charge of the court which was as follows: [The first question for you to determine is, whether or not you believe the plaintiff, and the woman, who is alleged to be his wife, were actually married.

Appeal, No. 61, Oct. T., 1897, by defendant, from judgment of C. P. No. 1, Allegheny Go., March T., 1896, No. 682, on verdict for plaintiff'. Trespass for death of plaintiff’s husband.

Appeal, No. 167, Oct. T., 1897, by N. M. Marker & Son, from decree of O. C. Westmoreland Co., Feb. T., 1896, No. 48, overruling exceptions to'auditor’s report. Exceptions to auditor’s report, distributing $9,438.47 in the hands of Armstrong Jamison, executor of tlie estate of James Jamison, deceased, realized from real and personal property.

<p>Appeal, No. 103, Oct. T., 1897, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1895, No. 123, on verdict for plaintiff.</p> <p>Appeal from road jury.</p> <p>At the trial it appeared that the plaintiff claimed damages for injuries to a school lot caused by a change of grade of Home-wood avenue.</p> <p>F. C. McGirr, T. D. Keller, H. C. Phones and Frank Laughlin, witnesses for plaintiff, were each asked this question, on rebuttal, by plaintiff’s counsel: “ State whether in your opinion the erection of a stone wall along Homewood avenue, with steps leading up to the property and a fence on the wall, would render this school property available for school purposes?”</p> <p>Defendant objected to the testimony as incompetent, and as part of plaintiff’s case in chief. Objection overruled. Exceptions and bills sealed.</p> <p>Each witness answered that he thought it would not. [3, 4, 5, 6.]</p> <p>Mr. Carnahan, of counsel for defendant: I offer in evidence the benefit assessment. Objected to as incompetent and irrelevant. Objection sustained. Exception and bill sealed. [7]</p> <p>Mr. Carnahan: I offer in evidence the order of the court, confirming the report of the board of viewers fixing tbe benefit assessment. Objected to as incompetent, irrelevant and immaterial. Objection sustained. Exception and bill sealed. [8]</p> <p>Counsel for defendant offered to show by testimony the cost of the improvement, the value of it, the number of feet frontage oh the street, with the depth of the properties, in order to get ' at the relative advantages of the pavement to the various properties.</p> <p>Objected to as incompetent, irrelevant and immaterial. Objection sustained. Exception and bill sealed. [9]</p> <p>Verdict and judgment for plaintiff for $9,000. Defendant appealed.</p> <p>Brrors assigned were (1) the verdict was excessive; (2) the verdict was not warranted by the evidence; (8-9) rulings on >, evidence, quoting bill of exceptions.</p> <p>■•¡cited: Tourison’s App., 171 Pa. 38.</p> <p>but cited in their printed brief: Holthouse v. Rynd, 155 Pa. 43; Farmers Ins. Co. v. Bair, 87 Pa. 124; Asay v. Hay, 89 Pa. 77; Shaeffer v. Kreitzer, 6 Binn. 430; Donaldson v. P. R. R. Co., 15 W. N. C. 312; Tourison’s App., 171 Pa: 38.</p>

Appeal, No. 79, Oct. T., 1897, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March Term, 1896, No. 24, on verdict for defendant. Assumpsit to recover royalties alleged to be due under an oil and gas lease.

<p>Oil and gas lease — Rentals—Joint liability — Assignment of portion of lease.</p> <p>In an oil and gas lease the lessee covenanted “ to commence operations and complete one well within one month and, in case of failure to complete one well within such time, to thereafter pay as rental to the party of the first part for such delay the sum of fifty dollars per month.” The lessor agreed “ to accept such sum as full consideration, liquidation and payment of all damages for any delays until one well shall be completed, and a failure to complete such well or to make any such payments within such time and at such place above mentioned renders this lease absolutely null and void, and no longer binding on either party, and will revest the estate herein granted in the lessor and release the lessee from all his covenants herein contained, he having the option to drill said well or not, or pay said rental or not, as he may elect.” The lessee assigned a one half interest in the lease. No well was ever completed or commenced. The assignee of the one half interest in the lease paid the rental for three months, but then ceased, and ho more was paid. In an action for the rental against the lessee and the assignee of the one half interest, the defendants filed an affidavit of defense in which they averred that (1) the lessees had an option to sink a well or pay the monthly rental, or to do neither, and by refusing to do either, the lease was at an end; and (2) there was no joint liability of the defendants. Held, that the affidavit of defense was insufficient to prevent judgment.</p>

<p>Wills — Devise of real estate — Rule in Shelley's case.</p> <p>Testatrix, after directing that her debts, funeral expenses and the costs of a burial lot should be paid out of rents accruing from her real estate devised certain real estate to her son in fee simple and then directed as to the residue of her estate that her son should “have all the income or emoluments arising from the same during his natural lifetime, except so much of said income as may be necessary to carry out the provisions of the first article of my will and the payment of such sums to keep said property in good repair, together with all taxes assessed on the same, and at liis death the same shall descend to his heirs.” Held, that the son took a fee simple estate in the residue.</p>

Appeal, No. 80, Oct. T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1896, No. 612, on Verdict for plaintiff. Trespass for personal injuries to a child twenty-one months old.

Appeal, No. 108, Oct. T., 1897, by Second National Bank of Pittsburg, from order of C. P. No. 2, Allegheny Co., April T., 1895, No. 272, sustaining exceptions tó auditor’s report. Exceptions to report of auditor.

<p> Negligence&emdash;Street railways&emdash;Child of tender years&emdash;Contributory negligence. </p> <p>In an action against a street railway company by a boy nine years old to recover damages for personal injuries, the ease is for the jury when; the evidence for the plaintiff, although contradicted, tends to show that at the time of the accident plaintiff, riding upon a tricycle, attempted to cross the tracks at a point where there was no regular crossing; that ho looked and saw one ear pass, aud then started to cross, but became bewildered when he saw the next ear, and was struck before he could get off the track; that there were wagons either on the track or on the side of the road, and that the car which caused the accident was running at a very high rate of speed, with no gong rung and no guard on the front.</p>

<p>Appeal, No. 107, Oct. T., 1897, by ' plaintiff, from decree of O. C. Allegheny Co., June T., 1896, No. 132, to compel restoration of securities to minor’s estate.</p> <p>Petition to compel restoration of securities to minors’ estate.</p> <p>The petition of. William Hinds alleged that his father, William Hinds, late of the county of Allegheny, died January 11, 1883, intestate, leaving to survive him a widow, Annie Hinds, and six minor children, namely, Martha (now of full age, and has been settled with by Thomas H. Chapman, guardian), William (petitioner), Jane, Nellie, Frank and George; that letters of administration were issued to Thomas H. Chapman, a nephew, and George Hinds, a brother of decedent; that the administrators filed an account, and audit was made thereon and a distribution decreed; that on April 12,1884, Thomas H. Chapman was discharged as administrator and appointed guardian of all the minor children of William Hinds; that on the distribution of the estate of William Hinds, deceased, there was distributed to Thomas H. Chapman, guardian of William Hinds, seventy shares of the capital stock of the Merchants and Manufacturers National Bank of the city of Pittsburg; that said bank issued to “ Thomas H. Chapman, guardian of William Hinds,” a certificate for the same, No. 629, shown in the guardian’s statement; that William Hinds (petitioner) attained the age of twenty-one years on May 15, 1895; that Thomas H. Chapman, guardian of William Hinds, has filed his account; that on the audit of this account Thomas H. Chapman was surcharged as guardian of all the minor children of William Hinds, deceased, in the sum of about $100,000; that it is alleged that Thomas H. Chapman pledged said certificate, No. 629, to the Bank of Pittsburg, as collateral security, for the payment of a note of $4,000, drawn by said Thomas H. Chapman, guardian; that Thomas H. Chapman was and is president of the Standard Coal Company, and is and was the owner of a majority of the shares of stock of said company, and as president, and as an individual, borrowed large sums of money from the Bank of Pittsburg, foreign to the purpose of the estate of petitioner, and the investment being one in which Chapman could not legally use any portion of the assets of the estate of petitioner; that the money borrowed was not for the benefit of petitioner’s estate, but for the use of Chapman and the Standard Coal & Coke Company, and that the notes of the said Chapman, guardian, are unpaid, and the Bank of Pittsburg holds possession of the said seventy shares of stock of the M. & M. National Bank, and refuses to pay petitioner any dividends on said shares of stock.</p> <p>The prayers of the bill were that the Bank of Pittsburg be restrained from all sale, pledge, or disposition of said stock, and the M. & M. National Bank from transferring the same; that the Bank of Pittsburg be ordered to transfer and deliver said stock: that the Bank of Pittsburg and M. & M. National Bank account and pay for all dividends subsequent to April 1, 1895 ; that said stock be decreed the property of the petitioner.</p> <p>Other facts appear by the opinion of Hawkins, P. J., which was as follows:</p> <p>In 1884, Thomas H. Chapman applied, as guardian of the minor children of said decedent, to the Bank of Pittsburg, for a loan, representing that the proceeds were intended to be used in the improvements which this court had authorized, of his ' wards’ real estate; and that bank, upon the strength of the representations thus made by the guardian, without examination of the record of this court, made the loan, taking in pledge, stock of this bank owned by the wards. Had examination of the records of this court been made, it would have appeared that the guardian had asked authority to make improvements on certain real estate of his wards to the extent of $5,000, “ with the receipts and revenues arising from the estate of said minors during the current year, together with the funds already in the hands of your petitioner, will afford a sufficient sum of money for to make said improvements,” and that an order had been made on the petition authorizing such improvements.</p> <p>An additional loan was afterwards (1888) made in like manner; and the record showed that the guardian had asked authority to make improvements on certain other real estate of his wards, to the extent of $5,000 ; that he had “ belonging to said wards ample funds available to pay for the erection of said buildings; ” and that an order had been made on this (second) petition, authorizing such improvement to be made. Renewal notés were given in these instances from time to time, fluctuating in amounts; sometimes increased and sometimes diminished, as shown by the attached schedule, until the loans seem to have been reduced to $2,000. An application was then made for a loan of $20,000, for an alleged purpose, similar to that of the former loan. It was not asked upon the strength of an order, alleged to have been made, authorizing an improvement, but upon an allegation that because similar orders had been made heretofore this court would make another order; and upon the strength of this statement the loan was made; stock of the Merchants and Manufacturers National Bank being substituted for that of the Bank of Pittsburg, as security. The promised order of this court was never made, nor even applications made therefor. Two thousand dollars of the proceeds of this loan went in satisfaction of the balance of the former loans, which the guardian now alleges had gone in fact into the improvement authorized; and $18,000 was invested by the guardian in a private corporation, of winch he was the president.</p> <p>When the guardian filed his final account he claimed credit for this loan; and exception was taken to this and other items. This court suspended action on this item until liability for the loan and pledge, as betwéen the estate and bank, should be ascertained; and surcharged the guardian on the other items with an amount exceeding $100,000, and judgment was entered thereon as against the guardian and his sureties. A petition was shortly afterwards presented to court, on behalf of the succeeding guardian, setting forth that these sureties had made an offer of compromise of these judgments, and this offer being in the petitioner’s opinion, after investigation, advantageous, asked that authority be given to accept it; whereupon the court granted an order with the following qualification:</p> <p>“ The compromise herein authorized be a complete and effectual release and discharge of each of said sureties, making such payment from all liability upon judgments at Nos. 762, 763 and 764, April term, 1896, and also to be a full release from all further liability upon a bond on which said judgments are based; except that in event of a recovery being had by William Hinds against the Bank of Pittsburg, of certain stocks in proceedings instituted, and now pending in this court at No. 132, June term, 1896, or a recovery in any similar suit hereafter instituted by or on behalf of the other beneficiaries of said bond, the liability of said sureties, as to the subject-matter of said proceeding or proceedings, shall be in no way compromised, affected or discharged ; and the carrying into effect of said compromise, or compromises, to be in no way construed as creating or admitting' any liability on the part of said sureties to the Bank of Pitts-burg, or others, by reason of the exceptions herein contained.”</p> <p>The present proceeding was instituted with a view to compel the retransfer of these stocks to the credit of the petitioners; and the question submitted to the court is whether said loan and pledge were a valid exercise of the authority of the guardian. Both the Bank of Pittsburg and the Merchants’ and Manufacturers’ Bank were made parties respondent. It is conceded that if the loans and pledges in this case were made with notice of the breach of trust, the prayer of petititioner must be granted; hut it is insisted that there was neither breach of trust nor notice. These are the issues, and in respect of both the decision must be in favor of petitioner.</p> <p>1. The guardian had no power by virtue of his office, nor of any order of court, nor was there any occasion to borrow. It may be conceded that this guardian had power to sell his wards’ personal estate for purposes incidental to his trust, as with a view to make other more advantageous or safer investments ; but what reason could he have to borrow ? Certainly for no ordinary purpose. The reasons which gave rise to the rule, that a power to sell implies a power to mortgage, do not exist here. These powers are simply alternative modes to raise funds for the payment of debts used in the administration of estates by executors or administrators. A guardian has ordinarily nothing directly to do with the payment of debts of an estate; that is a peculiar function of the administrator; while his function is to receive, hold and invest the “surplusage,” he has no power to create new debts (McCreery’s Appeal, 31 P. J. L. 230), consume any part of the principal, nor change the course of descent by converting personal into real or real into personal estate, without the sanction of the orphans’ court, but must maintain in its integrity and character the whole corpus. In the exercise of powers of sale, abuses are unavoidable. Thus in this very estate the guardian sold a large number of valuable bank stocks with a view to relieve himself of encumbered real estate, which his wards were afterwards compelled to accept, because of his insolvency. Such instances as this are fortunately of rare occurrence. Necessity compels their endurance, but opportunities and temptations to abuse will be greatly increased without any occasion, by concession to guardians of the power to borrow. Injudicious, improvident or fraudulent trans-' actions will happen, and the wards’ property, pledged at an undervalue, be forfeited for want of redemption when sale at the market value in the first instance would have averted the loss; and difficulties in fixing the liability of guardians in such cases are increased to the wards’ great disadvantage. These are hazards which there is no reason to assume, and can only be prevented by the denial of any right to borrow, unless with the prior sanction of the orphans’ court. The occasions are so rare in the course of guardianship, in which borrowing becomes necessary or advisable, either on security of real or personal estate, that such a rule can cause no inconvenience. The guardian cannot engage in active business; his duty is to “ hold ” and “ invest.” There is no reason why his power in respect of borrowing on security of personalty should differ from his restricted power over realty. There was not only no authority given by this court to borrow, but an implied prohibition. The decree was an adjudication, (a) that petitioner’s averment of sufficient available assets belonging to the estate with which to make the Improvements was true; and (6) an appropriation of those assets to that purpose, which neither the guardian, nor those who claim under him can now deny.</p> <p>As no modification of this decree was ever asked or made, it must be conclusively presumed that these funds were used as decreed. Power to convert a ward’s personal into real estate by making valuable improvements ought not to be assumed without sanction, because it affords the guardian an opportunity to act independently of court, whoso officer he is, alter the course of descent or improve the ward out of his own estate, contrary to the policy of the law. Where improvements have been made judiciously, the court may, of course, in its discretion, ratify them: Miller’s Estate, 1 Pa. 326; Eberts v. Eberts, 55 Pa. 110 ; Kilpatrick’s Appeal, 113 Pa. 46. But the evidence here fails to show that more than the amount appropriated by this court was needed in making the improvements. Eighteen thousand of the twenty thousand dollars last borrowed was traced distinctly into another investment and credit therefor stricken from the guardian’s final account as illegal. What became of the other money borrowed has not been sufficiently shown. But the inconsistency of this transaction with the guardian’s sworn statement, and his concealment of it from this court for so long period, taken in connection with his waste of over $100,000 of trust funds that have been placed in his care, are pregnant with suggestion of suspicion. Done without and in defiance of authority, without occasion, and without apparent benefit to the estate, it was a palpable breach of trust.</p> <p>2. Those who deal with trustees are presumed to do so with notice of the legal limitations of their power; and when they go outside of this, they do so at their own risk. Absolute owners may do as they please with their property so long as they do not infringe the laws of public policy; but trustees, whether bankers, attorneys, guardians or others, act in a representative character, and are limited by the purpose of the trust which each holds. Administrators, executors and guardians are quasi-public trustees, with duties prescribed by law, which every one is obliged to know, and notice of whose character is notice of the limitation of their power. The application of this principle is aptly illustrated by tbe case of Marshall’s Estate, 138 Pa. 285. An executor, without authority, offered in pledge stocks belonging to his trust to a bank with a view to secure a loan, the proceeds of which he declared were intended to be used in the continuance of the business in which his testator had been engaged. Trusting to these representations, without further inquiry, the bank made the loan; and proceedings having been thereafter taken to compel restoration of the stocks, it was held that there was enough to put the bank on inquiry, which would have led to a knowledge of the facts; and that it was therefore a party to the breach of trust. “ The absence of any reference in the will,” said the court, “to the firm of James Marshall & Company, ought of itself to have excited inquiry. But there is no evidence that they even examined the will, or made any inquiry of the coexecutors, or colegatees of James Marshall, Jr., or consulted an attorney in reference to the matter.</p> <p>“ They appeared to have trusted alone to the representations of James Marshall, Jr., and have themselves to blame for their credulity. It would be' simply a perversion of justice to hold that in such circumstances, this petitioner, without any default on her part, should lose her beneficial interest in these stocks.” An order of restoration was accordingly made.</p> <p>The facts are substantially those. Respondent dealt with Mr. Chapman, in his representative character as guardian, and with stocks known to belong to his wards. It having been informed that the purpose was to improve the wards’ real estate, respondent was bound to know that the guardian had no power to improve without the sanction of this court; and when told that the court had authorized such improvements, was bound in the exercise of ordinary prudence to inquire into the extent of this authority. “ Every man is bound,” said the Court in Mes-singer v. Kintner, 4 Binn. 97, “ to take notice of the record which is the foundation of his title. If they look into the title at all, the decree of the orphans’ court stares them in the face at the first glance, and seeing the decree, they must take notice at their peril, of the proceedings on which it is founded.” So, on the same principle here, if respondent had examined the i-ecord which, as already seen he was bound to do, it would have found that not only was there no authorization, nor occasion for a loan, but an implied prohibition. In making the last of the series of loans, they did not even wait, but took tlie risk of an anticipated order, for improvement. The specific purpose in making all these loans was to provide means for carrying out alleged orders of court, made or anticipated, for the improvement of the wards’ real estate. The attention of the respondent having been thus specifically directed, made the duty of inquiry the more imperative. If the guardian had offered fox-discount aix ordinary promissoi-y note, the bank would doubtless have made ixxdependexxt inquiry, as in the usual course of business, into the responsibility of the ixxdorser; and had at least as much reasoxx to do so here, in respect to the responsibility of this trust estate : Bedford Bank v. Stever, 169 Pa. 574.</p> <p>The respondent, havixxg thus had ixotiee that the guardian was acting without authority, and without occasion for a loan, was a party to his breach of trust, and became answerable to petitioner for the loss which resulted.</p> <p>Error assigned was decree of the court.</p> <p>—A guardian is by the general nature of his trust entitled to the possession and care of the persoxxal estate and the rents and profits of the real estate of his ward. Though it is not in the ordinary course of the guardiaix’s duty to sell the personal property of his ward, yet he has the legal right to do it, for it is entirely under his control and xnaixagemexxt, and he is not obliged to apply to the court for directioxx in every particular case, fie may ixxvest, call in, and reinvest, change and otherwise dispose of the personalty, as the exigencies of the trust and his judgment may require. As to the realty, he may take possessioix of it and work it himself, or may lease it during the guardianship. He canxxot convey the realty absolutely, without special authority of the orphans’ court, because the nature of the trust does ixot require it, and because the statutes so provide. The question as to tlxe exercise of the guardiaxx’s powei-, in thus disposing of his ward’s pei-sonal estate, arises betweeix him aixd his ward oix fixial settlement, but a stranger, dealing with the guardian, justly and fairly is xxot liable afterwards to have his title questioned : 3 Rhone’s Orphans’ Court Px-actice, 233; Field v. Schieffelin, 7 Johnson’s Chancery, 150; Woodward v. Donally, 27 Ala. 198; Wallace v. Holmes, 9 Blatchford, 67; Humphrey v. Buisson, 19 Minn. 182; Lancaster v. Dolan, 1 Rawle, 231; Rowley v. Towsley, 53 Mich. 329; Edmonds v. Morrison, 5 Dana, 223 ; Beam v. Froneberger, 75 N. C. 540; Odd Fellow's Savings Bank’s App., 123 Pa. 356.</p> <p>It will be found on an inspection of the case of Bayard v. The Bank, 52 Pa. 232 ; Garrard v. Pittsburg & Connelsville R. R., 29 Pa. 154, that the assets of the estate were being used for the individual purpose of the fiduciary.</p> <p>The loans made by the bank of Pittsburg to the guardian and the pledges taken therefor were with notice of a breach of trust: Colebrook on Collateral Securities, secv 76; Jones on Pledges, sec. 481; Jaudon y. Nat. City Bank, 8 Blateh. 431.</p> <p>The representations that the money was to be used to improve the wards’ real estate given in the manner disclosed by the evidence was sufficient to put the bank on inquiry : Oakley v. Oakley, 3 Demárest, 140 ; Bond v. Lockwood, 33 111. 223 ; Flade’s Minors, 40 Leg. Int. 131; Broadus v. Rosson, 3 Leigh. 12; Nicholls v. Peak, 12 N. J. Eq. 69.</p> <p>The bank never paid or offered to pay any part of the surcharge of the guardian. The person who invokes the doctrine of subrogation must come into court with clean hands : Sheldon on Subrogation, sec. 44; Milwaukee & Minnesota R. R. v. Soutter, 80 U. S. 517; 24 Am. & Eng. Ency. of Law, 193; German Bank v. U. S., 148 U. S. 573; Rowley v. Towsley, 53 Mich. 339; Beam v. Froneberger, 75 N. C. 540.</p>

<p>J/unacy — Accounting by committee — Laches.</p> <p>Where the administrator of a deceased committee oí a lunatic died eleven years after his appointment without any demand ever having been made upon him to file an account, and no demand is made upon his legal representatives after his death, an administrator d. b. n. of the deceased committee, appointed fourteen years after the death of the lunatic, and who is unable to. obtain any knowledge of the affairs of said committee, will not be required to account for the lunatic’s estate.</p>

<p>Sheriff's sales — Setting aside sale — Discretion of lower court.</p> <p>The setting aside or refusing to set aside a sheriff’s sale is in the sound discretion of the lower court, and unless there be a manifest and gross abuse of that discretion the Supreme Court will not disturb the decree.</p> <p>The setting aside of a sheriff’s sale for no other reason than inadequacy of price is such an abuse of discretion as will require the Supreme Court to reverse the decree.</p> <p>The Supreme Court will not reverse a decree setting aside a sheriff’s sale where it appears that all the parties interested mistakenly supposed that the property was sold subject to a mortgage, when in fact it was not, and by reason of such mistake the property was knocked down for a grossly inadequate sum.</p>

<p>Wills — Devisavit vel non — Practice.</p> <p>On an issue devisavit vel non where several questions are propounded by the orphans’ court, the jury should answer each question separately.</p> <p>Wills — Issuer—Devisavit vel non — Testamentary capacity — Province of court and jury.</p> <p>In a proceeding devisavit vel non where one of the issues is “ whether at the time of signing said paper writing the decedent had testamentary capacity,” it is improper to add the issue “ whether the decedent had a full and intelligent understanding of the nature of said paper writing and of the dispositions it contained.” The repetition of the question as to testamentai-y capacity in different phraseology is not only unnecessary, but is calculated to cause confusion and to embarrass the trial judge in his effort to present the subject clearly and concisely to the jury.</p> <p>On an issue to determine whether an alleged testator has testamentary capacity, a verdict and judgment'in favor of the contestant will be sustained whore the evidence for the contestant, although contradicted, tended to show lack of testamentary capacity, and the trial judge laid down the proper legal rules by which the jury were to be governed in reaching their verdict.</p>

<p>Divorce — Desertion—Befusal of request to return.</p> <p>A desertion without consent and without sufficient legal cause is presumed to be wilful and malicious, and when a wife so leaves her husband, and for a period of two years refuses to return, she is guilty of such desertion as will entitle him to a divorce. A husband will be entitled to a divorce where the evidence shows that his wife left his house after a quarrel, although her husband’s mother entreated her not to go; that a few days afterwards she sent for her clothes; that subsequently she paid no attention to a kind and conciliatory letter from her husband in which he urged her to return, and on a number of occasions she refused his request to return, and stated that she would not speak to him, and that if he spoke to her on the street she would have him arrested.</p>

<p>Executors and administrators — Compensation fixed by will.</p> <p>Where an executor accepts the office with knowledge of a provision in the will fixing his compensation, he is ordinarily bound thereby.</p> <p>Testator directed as follows: “To each of the executors of this my last will and testament, I bequeath the sum of one thousand dollars, as and for compensation for their services as such executors.” The estate was of such a size that commissions at three per cent would have amounted to nearly $18,000. Held, that the two executors were entitled to only $1,000 each.</p>

<p>Contracts — Contract for erection of state capítol — Architects—Delegation of authority — Action against the state — Act of April 14, 1897.</p> <p>Under the Act of April 14, 1897, P. L. 19, commissioners were appointed to erect a new state capítol oil land owned by the state, at a cost not to exceed a sum specified. Apart from the location, cost and fireproof character of the building, everything was left to the discretion of the commissioners. The commissioners employed au expert architect under authority given them by the act, and with his assistance issued specifications, styled the programme. Under the programme three disinterested architects were selected as a board of experts to whom all plans were submitted anonymously with the assurance to those competing that all the plans submitted would have full consideration; that the board would recommend eight designs, out of which the commissioners agreed to select one, whose author should be appointed architect “to design and supervise' the erection ” of the building, and two others whose authors should receive first and second medals respectively. Out of thirty designs submitted the board of experts selected eight which they recommended to the commissioners, and also reported that all the designs submitted would exceed the appropriation unless the materials used and the character of the workmanship were to be unworthy of the capital of the commonwealth. They also reported that two of the designs submitted had been excluded from the competition for violation of the directions of the programme, one because trees were shown in one of the drawings, and the other because all the elevations in the drawing were not rendered in monotone. The commissioners disapproved the action of the board of experts, set aside the competition under the programme, ordered all designs to be returned, and invited submission to the commissioners of new plans by all the competing architects. Two architects who had submitted plans filed a bill in equity against the commissioners to compel them to award the prizes to three of the eight preferred designs. The complainants did not aver in their bill that their designs were among the eight. Held, (1) that complainants had shown no such interest in the subject-matter as entitled them to relief; (2) that they had violated the terms of the competition and were therefore not entitled to be considered in the selection ; (3) that the action of the commissioners was not illegal, but was justified under the terms of the programme; (4) that even if the action of the commissioners had been in disregard of the programme they could not bind themselves so as to delegate their discretion, or limit their final judgment ; (5) that the state being the real party in interest as defendant, and it not being alleged that its officers were acting in violation of the law which created their authority, the courts were without jurisdiction of the subject-matter.</p>

<p>Contracts — Contract for plans for state capítol — Architects—Equity—Discretion.</p> <p>A court of equity has no jurisdiction to control the exercise of the discretion of the commissioners appointed under the Act of April 14, 1897, P. L. 19, to erect a state capitol, where there is no allegation that the commissioners were acting in violation of the law which created their authority.</p> <p>On a bill in equity for an injunction to compel the commissioners appointed under the act of April 14, 1897, to award the first prize to an architect whose plans had been recommended by a board of experts appointed by the commissioners, an allegation that the commissioners had allowed complainant’s design to be photographed and published, whereby he lost the advantage of his skill and labor, will not prevent the court from dismissing the bill for want of equity, inasmuch as the complainant has an adequate remedy at law for the injury caused by the wrongful use of his plans.</p> <p>Doubted whether a court of equity may order service on defendants outside the county where service has been accepted by one defendant in the county.</p>

<p>Appeal, No. 7, Oct. T., 1897, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1889, No. 428, in favor of plaintiffs on trial by court without a jury.</p> <p>Assumpsit. Trial by court without a jury by agreement of the parties.</p> <p>The facts appear by the previous report of the case in 165 Pa. 139.</p> <p>Doty, P. J., filed the following opinion upon exceptions filed after judgment was entered in accordance with the opinion of the Supreme Court:</p> <p>Judgment was promptly entered in strict accordance with the order of the Supreme Court. To this judgment exceptions were filed as follows :</p> <p>1. The learned court erred in not finding as a fact fairly deducible from the evidence that the plaintiffs had knowledge that the bonds in question were taken by defendant’s intestate in payment for their coal; that the plaintiffs authorized the sale of the coal for these bonds, and afterwards, with full-knowledge, assented to and confirmed the sale for bonds.</p> <p>2. The learned court erred in not finding as a fact that the bonds taken in payment for the coal were secured by a first mortgage of the coal conveyed; that the sale to McCurdy was merely nominal, and constituted only part of the real transaction which Avas a sale to the Coal Co., to be paid by the Coal Co. by bonds secured by first mortgage on the property purchased.</p> <p>8. The judgment entered is coram non judice; because the attorneys for the parties Avere Avitliout authority to Avaive trial by jury and submit the cause to the court, and the parties to the action were Avithout authority to authorize or execute such submission.</p> <p>These exceptions must bo dismissed for two reasons. First, they come too late. Under the 2d section of the Act of April 22, 1874, P. L. 109, exceptions must be filed within thirty days after service of notice of the decision of the court. That act does not contemplate that exceptions may be filed after judgment. And there would be no end to the proceeding if exceptions were permitted after revieAv and decree in the Supreme Court. The validity of the act is affirmed in Com. v. Mitchell, 80 Pa. 57. The requirements of the second section must therefore be observed. There is no trouble about the first and second exceptions. Without doubt, they Avere not filed in time. As to the third exception, it is alleged that the question of jurisdiction can be raised at any time and at any stage of the proceeding. This is undoubtedly true. But it by no means follows that want of jurisdiction can be taken advantage of by exception to the final judgment of the court. The submission was under the act of 1874. The proceeding is to be governed by the provisions of the 2d second section of that act. Apart from the act there is no authority to file exception, and under the act the exception is too late. If the objection is well grounded that the court was without jurisdiction, the parties may not be concluded by the judgment. In Campbell v. Fayette County, 127 Pa. 86, the question of jurisdiction Avas raised by a petition to set aside the agreement of reference and the proceedings before the referee.</p> <p>Second, as we view it, Ave have no discretion in the matter. The case was heard in the Supreme Court and the court below was directed to enter judgment. This was done. There is no allegation that the judgment was not in accordance with the direction of the Supreme Court. And judgment thus entered, the proceeding was ended,' and the trial judge had nothing further to do in this proceeding. The Supreme Court is authorized by act of assembly after final decree “ to remit the record with its judgment or decree to the appropriate court, which judgment, decree or decision said court shall duly carry into execution or effect.” There was only one duty for the court below to perform, and that was to enter judgment as directed, and with that duty discharged the proceeding was ended so far as the court below is concerned.</p> <p>It is true the question of jurisdiction was not heretofore raised. Such question was not passed upon by the Supreme Court. The jurisdiction, however, was assumed without question and the proper judgment indicated. We are now asked to say that the Supreme Court had no jurisdiction, and that we are under no obligation to carry out the deliberate judgment of that court. We do not so understand our duty in the premises. We are not unmindful of the fact that in Campbell v. Fayette County, 127 Pa. 86, it is held that the submission of a case under the act of April 22, 1874, where one of the parties is acting in a fiduciary capacity, is abortive, and ought to be set aside. And that in Com. v. Mitchell, 80 Pa. 59, it is in effect held that there can be no submission of a case to the court by virtue of section 27, article 5 of the constitution; but that every such submission must be regulated by the provisions of the act of April 22,1874. But after all, the true rule for our guidance is to be found in Bolton v. Hey, 168 Pa. 418, and kindred cases, wherein it is affirmed, that the judgment of the proper court becomes the law of the case, binding not only upon the parties, but also upon the courts until reversed or set aside, and that we are not to look for inconsistent decisions or for cases holding otherwise, in order to carry out our own judgment of what is right in the case under consideration. This is the only safe rule, where the lower court is directed to do a certain thing, as, in this case, to enter judgment. We have no right to assume in this proceeding that the judgment would have been otherwise had there, been some other question raised. This matter was considered in the court below and on appeal by the Supreme Court. After looking at the issues, under the law and the evidence, the matter was adjudicated. Three new questions are raised by the exceptions. What right have we now to correct our findings of fact, and to assume that judgment would have been otherwise if these questions had been presented, and on appeal been considered, by the higher Court? If such practice is tolerated when would this proceeding end ? It is clear to us that these questions cannot be raised in this way. As judgment is already entered, it only remains to dismiss the exceptions.</p> <p>Error assigned was entry of judgment.</p> <p>cited Gates v. R. R., 154 Pa. 566; Ormsby v. Ihmsen, 34 Pa. 462.</p> <p>cited Bartholomew v. Lehigh County, 148 Pa. 82; Fennell v. Guffey, 155 Pa. 38; Bolton v. Hey, 168 Pa. 418.</p>

<p>Appeal, No. 8, Oct. T., 1897, by defendants; from judgment of C. P. Westmoreland Co., Aug. Term, 1895, No. 883, on verdict for plaintiffs.</p> <p>Scire facias sur judgment to charge real estate.</p> <p>The facts appear in 165 Pa. 189.</p> <p>At the trial, when P. K. Carnahan was on the stand, the following offer was made:</p> <p>We propose to show by the witness, P. K. Carnahan, and others that the coal conveyed by James L. Thompson was never in fact reasonably worth the sum of $40.00 per acre; that there was no market for the coal at any time until the sale was made to the Westmoreland County Coal & Coke Company; that the price paid was fictitious and much more than the property was worth, and that it was not intended that the sale should be made in good faith for the consideration mentioned in the deed, payable in lawful money.</p> <p>To which offer counsel for plaintiffs make reply that this offer is irrelevant, impertinent to the issue and immaterial. It is no matter whether the coal was worth $40.00. The only question at issue is, what did the attorney in fact sell the coal for ? and what should he have gotten under the sale ? And for the further reason that it is not a question of good faith. It does not matter whether the attorney in fact acted in good faith, if he exceeded his authority in the letter of attorney which gave him authority to act for the plaintiffs. Evidence having already been given by the defendants from the lips of R. C. McCurdy that the coal was bought for $40.00 an acre in lawful money.</p> <p>By the Court: Objection sustained; offer overruled; exception to defendant’s counsel; bill sealed. [7]</p> <p>Verdict and judgment for plaintiffs for $8,752.30. Defendants appealed.</p> <p>Errors assigned among others were (7, 10) rulings on evidence, quoting bill of exceptions.</p> <p>We submit that the agent, if liable, was liable only for the actual loss resulting from his acts, and that the question of his alleged misfeasance and the extent of the injury resulting should have been submitted to the jury: 1 Am. & Eng. Ency. of Law, 1067 (2d ed).</p> <p>In an action against the widow and heirs, the defendants may go behind the judgment recovered against the administrator, and make any defense which it would have been competent for them to have set up in the original suit, if they had been made parties to it. Such action is to enable them to contest the lien or disprove the debt. They may contest on original grounds, unaffected and unobstructed by the precedent judgment, as well as on secondary grounds, subsequent to the judgment: Sergeant v. Ewing, 36 Pa. 156 ; Neely v. Bair, 144 Pa. 250; Whitehead v. School Disk, 145 Pa. 418; Murphy’s Appeal, 8 W. & S. 165 ; Benner v. Phillips, 9 W. & S. 15; Atherton v. Atherton, 2 Pa. 112; Schwartz’s Estate, 14 Pa. 42; Stewart v. Montgomery, 23 Pa. 411; Sample v. Barr, 25 Pa. 457; Shontz v. Brown, 27 Pa. 136; Walthour’s Heirs v. Gossar, 32 Pa. 259; McLaughlin v. McCumber, 36 Pa. 14.</p>

<p>[Marked to he reported.]</p> <p>Practice, G. P. — Amendment—Bes adjudicata.</p> <p>The allowance of an amendment of a statement of claim is not such res adjudicata as will prevent the defendant from objecting to the enforcement of the amendment, if it appears that it was improperly allowed.</p> <p>Amendment — Statute of limitations.</p> <p>A new cause of action cannot be introduced, or new parties brought in, or a new subject-matter presented, or a fatal and material defect in the pleadings be corrected, after the statute of limitations has become a bar.</p> <p>Amendment — Statute of limitations — Policy of insurance — New promise.</p> <p>A promise by an insurance company to pay the amount of a policy, notwithstanding a previous denial of all liability, while a new undertaking not contained in the policy, cannot be separated from the policy, or from its terms and stipulations, but must be enforced, if enforced at all, with a full reference to the original contract itself, and to its fundamental and indispensable conditions; and such a promise cannot be introduced by amendment in a case against the insurance company, after the time limit for bringing suit prescribed by the policy has expired.</p> <p>A policy of fire insurance provided that suit should be commenced within twelve months next after the fire. In an action upon the policy the defendant filed an affidavit of defense alleging that the plaintiffs had violated one of the conditions of the policy by keeping prohibited articles on the premises insured. More than a year after the fire the plaintiffs were allowed to file an amended-statement in which they averred that after the fire the defendant company had at first denied all liability, but subsequently orally agreed to pay the loss. At the trial, the plaintiffs proceeded upon the amended statement. The defendant contended that there could be no recovery, because the amendment was not made until after the limitation upon the right of action had closed. Held, (1) that the allowance of the amendment was not res adjudicata as to the right of allowing it; (2) that plaintiffs could not recover on the amended statement. Insurance — Fire insurance — Parol waiver.</p> <p>A parol agreement by an insurance company to pay a loss, notwithstanding the fact that the insured had violated one of the express conditions of the policy, must be established by evidence which is clear, precise and indubitable.</p>

Appeal, No. 17, May T., 1897, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1896, No. 870, on trial by court without a… Held: owned or possessed by individual residents of Pennsylvania, or by any co-partnership, unincorporated association, company, joint stock association or company, limited partnership, bank or corporation', in their own right, Held, owned or possessed by them as trustee, agent, attorney in fact or in any other capacity, .......

<p>Insurance — Fire insurance — Inventory of goods destroyed — Evidence.</p> <p>In an action upon a policy of fire insurance an inventory, made before tlie fire, of the goods totally destroyed is admissible in evidence, in connection with the testimony of the parties who made it, as tending to show the amount and value of the goods destroyed.</p> <p>Insurance — Fire insurance — Ownership of goods — Double insurance.</p> <p>A lumberman’s exchange, incorporated, took out a policy of fire insurance “ on lumber, lath and pickets, their own or held by them in trust, or on commission,-or sold but not delivered, piled in the yard leased by K.” At the time the goods were destroyed, the assured had not parted with its interest in the goods. K. had been intrusted with tlie property under a contract of bailment to saw the logs into lumber. A printed clause in the policy provided that “ the interest of the assured shall be unconditional and sole ownership.” K., without the knowledge of the exchange, took out a policy of insurance “ on lumber of eveiy description, including lath, shingles and picket's, their own or held by them in trust, or sold but not delivered, on ground leased from F.” This “ ground ” was the same as the “ yard ” mentioned in the first policy. Held, (1) that the lumber exchange did not violate the condition of the policy in regard to ownership of the goods; (2) that the written stipulation should prevail over the printed stipulation ; (3) that the contract with K. did not constitute such a change of ownership as the insurance company could object to; (4) that the policy taken out in the name of K. and tlie one in suit were not upon the same subjects,- and therefore not double insurance; (5) that the word “ lumber ” as used in the policy in suit did not include shingles; (6) that as the lumber exchange did not know of the K. insurance until after the fire, or consent to it at anytime, the policy in suit was not affected by such insurance.</p> <p>Insurance — Fire insurance — Double insurance.</p> <p>Double insurance takes place when the assured makes two or more insurances, either simultaneous or successive on the same subject, the same risk and the same interest.</p>

<p>Husband mid wife — Evidence—Ejectment—Equitable defense.</p> <p>In an action of ejectment to recover land purchased at sheriff’s sale on a judgment against'the husband, in whom was the legal record title,.and where the wife of the defendant in the execution, who had a separate estate, is in possession of the property and claims it on the ground that she had furnished the purchase money under an agreement with her husband that the deed should be made to her, and also on the ground that her husband had subsequently made a deed of the property to her, which deed she had destroyed, and also that he had agreed to make another deed lo her, in consideration of money which she had furnished for improvements, the evidence to sustain the defendant’s contention must be clear and convincing, and if the judge, acting as a chancellor, is of the opinion that it is insufficient to prevail against the legal title, he should give binding instructions to the jury to find for the plaintiff.</p>

<p>Appeal, No. 171, October Term, 1897, by plaintiff, from judgment of C. P. Beaver Co., Decern-ber Term, 1890, No. 19, on verdict for defendants.</p> <p>Issue to determine whether P. H. Stevenson, deceased, executed the note on which judgment was entered.</p> <p>At the trial plaintiff offered the following paper:</p> <p>“ M. Darragh & Co. v. “John Bigger and “ P. H. Stevenson,</p> <p>1 No. 286, September Term, 1896.</p> <p>^ Sur. No. 19, December Term, 1890.</p> <p>( Sur. No. 330, June Term, 1883.</p> <p>Sur. No. 9, June Term, 1867.</p> <p>“Debt, $5,073.17.</p> <p>“ Interest from June 14, 1892.</p> <p>“This agreement made the 14th day of December, A. D. 1895, by and between M. Darragh, of Bridgewater Borough, County of Beaver, and Commonwealth of Pennsylvania of the one part and S. H. Darragh of the Borough of Beaver, County and Commonwealth aforesaid of the other part, Witnesseth, whereas, we, M. Darragh and S. H. Darragh, composing the firm of M. Darragh & Co., on full and complete settlement of our individual accounts with said firm, find that M. Darragh is indebted to said firm in the sum of $5,792.51, over .and above the indebtedness of S. H. Darragh to said firm; and, whereas said firm has a judgment of $5,073.17, with interest from June 14, 1892, against John Bigger and P. H. Stevenson; which judgment was, on petition of Charles Stevenson, administrator of P. H. Stevenson, opened and is now in litigation; and, whereas, S. II. Darragh is willing to accept the interest of M. Darragh in the same as it stands, in full satisfaction of his interest in the indebtedness of M. Darragh to M. Darragh & Co., and thus close their individual accounts with the firm; S. H. Darragh taking and assuming all risk of costs or recovery on said judgment aforesaid and binding himself hereby for any and all costs and expenses in any way incident thereto without recourse on M. Darragh & Company, or M. Darragh as an individual, in consideration whereof M. Darragh hereby releases and extinguishes his interest in said judgment as completely and entirely as though he had never in any manner whatsoever been connected therewith.</p> <p>“In witness whereof we have hereunto set our hands and seals, the day and year aforesaid.</p> <p>“ M. Darragh, [Seal.]</p> <p>“S. H. Darragh. [Seal.]</p> <p>“Attest: Chas. Darragh, Sr.,</p> <p>“ Robert W. Darragh.</p> <p>“ Therefore know all men by these presents, that in consideration of tbe above agreement between tbe individual members composing the firm of M. Darragh & Company, the firm of M. Darragh & Company, composed of M. Darragh and S. H. Darragh, hereby sells, assigns, transfers and sets over to S. H. Darragh the above judgment, debt, interest and costs without recourse on the firm of M. Darragh & Company or M. Darragh. And George W. Mackall, prothonotary of said court, is hereby authorized, empowered and directed to file and enter this assignment of record among the papers in said case.</p> <p>“ M. Darragii & Co.</p> <p>“ Per M. Darragh,</p> <p>“S. H. Darragh.</p> <p>“ Attest.- Chas. H. Darragh,</p> <p>“ Robert W. Darragh.</p> <p>“ Filed December 16, 1895.”</p> <p>Plaintiff’s counsel having produced the above paper and shown that the attesting witness to the note was dead, offered to prove by M. Darragh, above named, that he was present when the note in suit was executed and saw P. H. Stevenson sign it.</p> <p>Objected to by defendants’ counsel as incompetent, the said AI. Darragh being a surviving or remaining party to such thing or contract in controversy here.</p> <p>The Court: The objection is sustained, and an exception sealed for the plaintiff.</p> <p>Plaintiff’s counsel offer the day book and ledger of M. Darragh & Co. showing the account of Stevenson & Bigger, in evidence, for the purpose of showing the indebtedness of Stevenson & Bigger — P. H. Stevenson and John Bigger — to the firm of M. Darragh & Company, the balance of which indebtedness was $1,657.81, the exact amount of the note in controversy; and further showing that the account was closed by bills receivable, being the note in question of John Bigger and P. H. Stevenson ; and for the further purpose of showing that on June 5, 1871, M. Darragh & Company wrote to Mr. Stevenson in reference to the note in question, and received the reply thereto of June 9, 1871, marked exhibit “ J.”</p> <p>Objected to bjr defendants’ counsel as incompetent and irrelevant.</p> <p>The Court: The issue in this case is simply to try the genuineness of this signature. We cannot see what light this offer would throw on the issue we are trying. We will sustain the objection, and seal a bill for the plaintiff.</p> <p>Plaintiff’s counsel offered in evidence the following letter identified by a number of witnesses, marked exhibit “ J.”</p> <p>“Moon, June 9,1871.</p> <p>“ Messrs. M. Darragh & Co.,</p> <p>“Dear Sirs: — Yours of June 5th inst. is received yesterday. I am much surprised as Bigger told me he had paid part quite three years ago and I seen him this spring early he told him and some of your company had made arrangements to cancel note. I will see him next week and one of us will see you. I will make him attend to it right away now.</p> <p>“ Yours,</p> <p>“ P. H. Stevenson.”</p> <p>This for the purpose of showing that by P. H. Stevenson’s own letter of June 9,1871, he recognized the receipt of a letter of June 5 inst., from M. Darragh & Company in relation to the note in controversy, signed by himself and Bigger; and for the purpose of showing that Stevenson knew in his lifetime of the existence of a note signed by himself and John Bigger.</p> <p>Objected to by defendants’ counsel as incompetent and irrelevant, the paper offered not proving anything.</p> <p>The Court: The defense in this case is not want of consideration, but that Mr. Stevenson did not make the note in suit. The issue alone to be determined is whether or not the signature to the note in suit is the signature of P. H. Stevenson. That being the case^ we think the offer is incompetent for the purpose stated in the offer. The objection is sustained and an exception sealed for the plaintiff. [3]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions.</p> <p>The appellant contends that Mattison Darragh, by the release and ex-tinguishment in good faith of all his interest in the matter in controversy, became a competent witness under section 6, of the Act of May 23, 1887, P. L. 158: Beaver v. Beaver, 23 Pa. 169; Kams v. Tanner, 66 Pa. 297.</p> <p>. Under clause (e) of section 5 of the act, the surviving party is incompetent only when ho has an interest in the result of the suit; being a surviving party merely does not dis qualify him: Dixon v. McGraw, 151 Pa. 98.</p> <p>Appellees contend that M. Darragh, being a surviving or remaining party to the note in suit, cannot, under the facts of this case, by any release or extinguishment which he might make, become a competent witness against the estate of P. H. Stevenson, deceased, because he is incompetent by reason of public policy, and not solely by reason of interest : Clover v. Painter, 2 Pa. 46; McClelland v. Mahon, 1 Pa. 365; Karns v. Tanner, 66 Pa. 297.</p> <p>Appellant cites Dixon v. McGraw, 151 Pa. 98, in support of his position; but in this case the court properly held that the witnesses offered had no interest in the thing in controversy whatsoever.</p> <p>An assignment is not a release or extinguishment: Ilaus v. Palmer, 21 Pa. 296.</p>

<p>Appeal, No. 25, May T., 1897, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1896, No. 619, on trial by the court without a jury.</p> <p>Appeal from tax settlement.</p> <p>Simonton, P. J., filed the following opinion :</p> <p>This is an appeal from a settlement made by the auditor general and state treasurer, April 26, 1896, against the corporation defendant, for tax on capital stock for the tax year 1894. It was tried by the court without a jury, as provided by the act of April 22, 1874, and on the testimony and documentary evidence we find the following facts:</p> <p>1. The defendant is a corporation of the state of Pennsylvania, incorporated March 6, 1898. Prior to the beginning of the tax year 1894 it had issued 160,00.0 shares of capital stock of the par value of $50.00 each, on which part of the par value had been paid, leaving them subject to calls for the balance due. At various times during the tax year additional amounts were paid in on 159,153 of these shares until $25.00 in all had been paid oh each share. No more than $6.25 per share has ever been paid on the remaining 847 shares. On September 13, 1894, defendant issued to its stockholders, in proportion to their ownership of shares at that date, 39,910 additional shares of the par value of $50.00 each, on which the stockholders paid in $25.00 per share, receiving certificates showing that the shares were subject to calls for the additional $25.00.</p> <p>2. In December, 1894, defendant’s president and treasurer, having first taken the oath prescribed by law, made a report to the auditor general, which stated, inter alia, that defendant’s total authorized capital stock was $10,000,000, divided into 200,000 shares of the par value of $50.00 each, and that 199,910 shares had been issued, on 199,063 of which $25.00 each had been paid, and on the remaining 847 shares $6.25 each. They also reported that the amount of capital so paid in, which was taxable for the tax year 1894, was $3,113,667.97. That the gross earnings during the year were $247,813.89, all of which had been expended in payment of rents, salaries, necessary repairs and interest accrued during the year, leaving no net earnings; and that the average price of sales of stock during the year was $41.37i-, and that defendant owned shares of stock in other corporations, which paid the tax upon their respective capital stocks, $4,992,827; and they accompanied this report with an appraisement in which they stated as follows: “We have estimated and appraised the average capital stock of said company at its actual value in cash as follows, viz : shares at ' dollars and cents per share, amounting in the whole to $5,150,953.35.”</p> <p>3. This appraisement was not made by estimating the shares which had been issued at their actual value in cash, but assuming that shares on which $25.00 had been paid were shown by the average price at which they had sold for during the year to be worth $41.37j-, the amount of the appraisement was fixed at a sum which bore the same proportion to $3,113,667.97 — which was assumed to bo tbe average amount taxable during tbe year —that $41.37 bears to $25.00, the amount thus arrived at being $5,150,953.35.</p> <p>4. The auditor general accepted this report and appraisement and settled an account June 18, 1895, for tax thereon, deducting the value of the shares of the capital stock of other corporations upon which the taxes were paid by those corporations, and charged defendant with a tax at the rate of five mills on $158,126.35, amounting to $790.63, which was paid by defendant.</p> <p>5. Afterwards, on April 26, 1896, believing that the former account was settled on an erroneous basis owing to the wrong principle on which the report and appraisement had been made, the auditor general resettled the account against defendant, charging it with a tax on 199,063 shares at the rate of $56.75 per share, that being the highest price of sales of stock between the 1st and 15th days of November, 1894, amounting to $11,296,825, and on 847 shares at $50.00 per share, amounting to $42,350, the total being $11,339,175, which, after there was deducted therefrom $4,992,827, the value of shares of other companies, left taxable $6,346,348, the tax upon which at the rate of five mills amounting to $31,731.74, upon which defendant was entitled to a credit of $790.63, for tax already paid, which the auditor general no doubt inadvertently failed to allow. And from this settlement the appeal now before us was taken.</p> <p>6. The testimony produced at the trial, includes a certificate of certain computations made by agreement of the parties by an officer of the Commonwealth Guarantee, Trust and Safe Deposit Company, of Harrisburg, which states, inter alia, “ If the average is to be obtained by multiplying the number of shares sold in each transaction, by the price of said transaction, adding together the number of shares and also tbe total proceeds of all tbe sales at the exchange, tbe result thus obtained shows the total number of shares sold from November 6, 1893, to November 3,1894, to have been 325,442, and the aggregate of all sales at tbe stock exchange to have been $16,441,114.27. This aggregate, divided by the number of shares sold, shows a result of $50.52 per share.” There were, as we already show, 39,910 shares distributed by tbe company to its shareholders at $25.00 per share, but as this was a distribution and not a sale, and as tbe evidence shows that the shares at the time this distribution was made were of much greater value than $25.00 each, we do not think these ought to enter into the computation, and we therefore find that the value of each share between the 1st and 15th of November, 1894, was $50.52.</p> <p>We think the- report and appraisement made by defendant’s president and treasurer was made on a wrong basis and resulted in an incorrect settlement by the accounting officers. After reporting the number of shares of stock issued, if all were not issued before the beginning of the tax year; and an apportionment of the tax was asked for on this account, the report should have shown the date during the year when the additional shares were issued. This it did not do, but instead it gave the dates when the several instalments upon the shares were paid during the year, which was of no consequence, as whatever influence this could have upon the appraisement was involved in the selling price of the shares from time to time from which the average price during the year was obtained. And in making the appraisement the president and treasurer did not appraise the stock at so much per share, but appraised the average amount of the money paid in. This was incorrect and misleading, and the settlement made on the basis of this appraisement did inr justice to the commonwealth. The accounting officers were therefore well within the limit of their authority and duty in resettling the account, as this was done within a year from the date of the first settlement. But in this resettlement the tax should have been apportioned on the appraised value of the 89,910 shares for the portion of the -tax year remaining at the date of its issue, and the appraised value of the shares should have b.een fixed at $50.52 per share, instead of $57.75. And as there were no sales of the 847 shares on which only $6.25 had been paid and no evidence was given of their value, we think it equitable to appraise them- at that amount, We therefore reach the following :</p> <p>CONCLUSIONS OF LAW. .</p> <p>1. The settlement made by the auditor general and state treasurer on June 17, 1895, was incorrect, and the amount of tax charged therein was much, less than the amount justly due from defendant to the commonwealth.</p> <p>2. The auditor general and state treasure]' had full authority to make the resettlement of April 29,1896, and said settlement is valid and binding on defendant, except as modified herein.</p> <p>8. The commonwealth is entitled to recover from defendant a tax at tlie rate of five mills on the dollar of the actual value of its capital stock, as follows, viz: For the whole tax year 1894 on 159,158 shares at $50.52 per share; on 39,063 shares at the same rato per share for the proportion of the tax year remaining on September 13, 189-4, when said shares were issued; and on 847 shares for the whole tax year at $6.25 per share; less $4,992,827 invested in shares of other corporations.</p> <p>4. The prothonotary is directed to enter judgment in favor of the commonwealth and against the defendant for the amount of the tax which shall be found due when properly calculated upon the basis stated in the foregoing conclusion, if exceptions be not filed within the time limited by law.</p> <p>Defendant’s exceptions alleged that the court erred:</p> <p>1. In not including in its sixth finding of fact the whole of the certificate of computations made, by agreement of the parties, by an officer of the Commonwealth Guarantee, Trust and Safe Deposit Company, of Harrisburg, which said certificate is as follows, viz:</p> <p>“I hereby certify that, as requested, I have made certain computations from the sales of the capital stock of the People’s Traction Company as said sales appear in a certain affidavit made by Charles O. Kruger, on tlie fifth day of December, 1896, in the case of the Commonwealth of Pennsylvania v. People’s Traction Company, No. 619, Commonwealth Docket, 1896, in the Court of Common Pleas of Dauphin County, for the purpose of ascertaining the average price of said sales.</p> <p>“ Taking the sales at the Philadelphia Stock Exchange by themselves, if the average is'to be determined by taking the highest sale and the lowest sale, adding the two together and dividing the result by two, tbe average thus obtained is $41.37] per share.</p> <p>“ If the average is to be obtained by multiplying tbe number of shares sold in eacb transaction by tbe price of said transaction, adding together tlie number of shares and also tbe total proceeds of all tlie sales at tlie exchange, tbe result thus obtained shows the total number of shares sold from November 6," 1893, to November 3,1894, inclusive, to have been 325,422 shares, and the aggregate of all sales at the Stock Exchange to have been $16,441,114.27. This aggregate divided by the number of shares sold shows a result of $50.52 per share.</p> <p>“ If the average is to be ascertained by including not only the shares sold at the Philadelphia Stock Exchange, but also the 39,910 shares sold by the company itself at $25 per share, then the total of all the shares is 365,332 shares, and the aggregate price for which all said shares were sold $17,438,864.27. This aggregate divided by the number of shares sold shows a result of $47.73 per share. I believe the foregoing computations to-be correct.”</p> <p>2. In that portion of its sixth finding which reads as follows:</p> <p>“There were, as already shown, 39,910 shares distributed by the company to its shareholders at $25.00 per share, but as this was a distribution and not a sale, and as the evidence shows that the shares at the time tins distribution was made were of much greater value than $25.00 each, we do not think these ought to enter into the computation, and we therefore find that the value of each share between the 1st and 15th of November, 1894, was $50.52.”</p> <p>The fact being, as shown by the undisputed testimony, that “ the new shares issued by the company were not subscribed for, but were sold outright by the company at $25.00 per share, that being the par value of the amount paid in.”</p> <p>3. In not finding as a fact, which clearly appears from the undisputed testimony in the case, that:</p> <p>“ There was upon the stock exchange a good deal of speculation in this company’s shares, as may readily be seen from the wide and violent fluctuations in price. Furthermore, the transactions upon the stock exchange represent many more thousand shares of stock than were actually transferred upon the books of the company during said ye&T.</p> <p>“The gross receipts of the company during the year were $247,813.89, while its expenses, including interest, amounted to $249,264.51. The company was incorporated March 6, 1893. It paid no dividends in either 1893 or 1894. The value of the stock depended to a large extent upon the future success of the company, and upon the success of the People’s Passenger Railway Company, in whose shares the capital stock of the People’s Traction Company was largely invested. There was nothing in the character of the property and assets of the business of either company up to that time to indicate intrinsic value in the capital stock of the People’s Traction Company largely in excess of the amount which had been paid in upon each share, and no more than $25.00 had been paid in on any share.”</p> <p>4. In not taking into consideration the 39,910 shares of stock sold by the company at $25.00 per share.</p> <p>5. In not finding the fact, as requested in No. 4 of defendant’s request for findings of fact, that:</p> <p>“ During the tax year 1894 there was a great deal of speculation in defendant’s shares, the transactions at the Philadelphia Stock Exchange aggregating 325,422 shares, or nearly twice as much as the entire capital stock of the company. Taking the highest sale and the lowest sale, adding the two together, and dividing the resirlt by two, the average thus obtained is $41.37 J per share for $25.00 paid shares.”</p> <p>6. In not finding the fact, as requested in No. 6 of defendant’s request for findings of fact, that:</p> <p>“ The actual value in cash of defendant’s capital stock, not less than the average price which said stock sold for during said year ending with the first Monday of November, 1894, did not exceed $41f per share for $25.00 paid shares, or a premium of 65-^ per cent.”</p> <p>7. In not taking into consideration under all the circumstances of the case, the 39,910 shares of stock sold by the company at $25.00 per share in determining the average price of sales of stock.</p> <p>8. In not finding as a matter of law that under the facts of this case the proper method of determining the average sales of stock was by taking the highest and lowest sales during the year, and accepting the mean thereon as said average.</p> <p>9. In its first conclusion of law :</p> <p>“ The settlement made by the auditor general and state treasurer on June 17,1895, was incorrect, and the amount of tax charged therein was much less than the amount justly due from defendant to the commonwealth.”</p> <p>10. In its second conclusion of law:</p> <p>“ The auditor general and state treasurer had full authority to make the resettlement of April 29,1896, and said settlement is valid and binding on defendant, except as modified herein.”</p> <p>11. In its third conclusion of law:</p> <p>“ The commonwealth is entitled to recover from defendant a tax at the rate of five mills on the dollar, of the actual value of its capital stock, as follows, viz: For the whole tax jear 1894 on 159,153 shares at $50.52 per share; on 39,063 shares at the same rate per share, for the proportion of the tax year remaining on September 13, 1894, when said shares were issued; and on 847 shares for the whole tax year at $6.25 per share; less $4,992,827 invested in shares of other corporations.”</p> <p>12. In its fourth conclusion of law:</p> <p>“ The prothonotary is directed to enter judgment in favor of the 'commonwealth, and against the defendant for the amount of tax which shall be found due when properly calculated upon the basis stated in the foregoing conclusion, if exceptions be not filed within the time limited by law.”</p> <p>13. In finding and holding to be taxable, a valuation of the shares of defendant’s capital stock, instead of a valuation of its tangible property and assets, and its franchises, between the first and fifteenth days of November, 1894.</p> <p>14. In directing judgment to be entered in favor of the commonwealth and against defendant.</p> <p>15. In not directing judgment to be entered in favor of defendant.</p> <p>Simonton, P. J., filed the following opinion on exceptions.</p> <p>Exception 1: We have included in the sixth finding of fact all the certificate made by agreement of the parties which we consider pertinent. The whole certificate is in the record, and this exception is sustained to the extent that we hereby refer to said certificate and make it a part of our sixth finding.</p> <p>Exception 2: This exception is overruled. The new shares were not sold on the market, but were taken by the then shareholders at par of the amount paid in, the market price being at that time much above par. It is true that the defendant’s treasurer stated in his affidavit: “ The new shares issued by the company were not subscribed for, but were sold outright by the*-company at $25.00 per share, that being the par value1 of the amount paid in.” But he also said: “The holders of the existing 160,000 shares were permitted to acquire the new shares in the proportion of one share of new stock to every four shares of old stock.”</p> <p>The fair inference from these statements is that which we have drawn, namely, that the shares were allotted to the stockholders in proportion to their holdings at par of the amount paid in. When proof of facts is tendered in the form of an affidavit, we cannot be bound to accept the affiant’s inferences involved either in the language or in the form of the affidavit, but must be at liberty to draw such inferences as the facts seem to us to warrant.</p> <p>Exception 3: This exception is overruled. Much of the matter quoted in this exception is opinion and inference, and all of it is irrelevant, as the average selling price of the shares was conclusive evidence of the actual value of the capital stock.</p> <p>The court dismissed the other exceptions.</p> <p>Errors assigned were (1 — 15) in overruling exceptions, quoting them.</p> <p>-The act of March 30, 181.1, which affords the only statutory authority for the settlement of accounts by the auditor general and state treasurer, requires that they are to be settled according to law and equity: Com. v. Lehigh Yalley R. R. Co., 3 Luz. Leg. Obs. 147.</p> <p>The practice of apportionment has uniformly been sustained and enforced by the courts, both for and against the commonwealth : Com. v. Atlantic Refining Co., 2 Pa. C. C. R. 62; Com. v. Standard Oil Co., 101’ Pa. 119; Com. v. Penna. Coal Co., 41 Leg. Int. 125; Com. v. Western Union Telegraph Co., 15 W. N. C. 331; Pullman’s Palace Car Co. v. Com., 107 Pa. 156 ; Drexel v. Com., 46 Pa. 31; Com. v. Canal Co., 50 Pa. 410; Com. v. American Machine Co., 2 Ches. Co. Rep. 186.</p>

<p>Appeal, No. 57, Oct. T., 1897, by</p> <p>defendant, from judgment of G. P. Clarion Co., on verdict for plaintiffs.</p> <p>Trespass for an alleged wrongful sale of plaintiffs’ property.</p> <p>Before Rayburn, P. J., of the 83d judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court, and by the charge of the court below, which was in part as follows :</p> <p>The plaintiff in this case is the Portland Lumber Company and the defendant is Jesse Kiehl. The subject in controversjr between tlie parties is five rafts of timber — one of small timber and four of large. These five rafts of timber were sold by Jesse Kiehl, the sheriff of Clarion county, on one or more wxits that were placed in his hands, in which W. W. O’Neil, Jr., was the defendant, and by virtue of those writs Jesse Kiehl levied on those five rafts as the property of O’Neil. After the writ had come into the hands of the sheriff (it is in evidence) Mr. Maffett, the attorney for the Portland Lumber Company, verbally notified him that the property was not that of O’Neil but was the property of the Portland Lumber Company; and on the day of the sale Mr. Maffett, as attorney for the Portland Lumber Company, as each raft was offered for sale, went on the raft and gave notice (which has been offered in evidence) to the bidders that the purchasers of these several rafts would not take title to the property, and in the notice, stating that it was not the property of W. W. O’Neil, but was the property of the Portland .Lumber Company. These rafts were sold by the sheriff, and now the plaintiffs bring this action against the sheriff to recover for the price or value of the rafts at the date of the levy, namely, the 20th day of April, 1893. You will remember the testimony of Mr. Maffett and the sheriff as to the giving of notice, and the sheriff’s stating that he would not sell unless a bond was given; and the evidence shows there was a bond given to indemnify the sheriff, and he went on and sold the property. Now, the plaintiff company has shown in evidence that the property did belong to it, and that J. K. Gardner as its agent entered into an agreement with W. W. O’Neil to sell him certain rafts. You will remember the testimony of Mr. Gardner that he met Mr. O’Neil in Pittsburg and, in a conversation there, O’Neil stated he would be in the market for timber, and Gardner replied that he would be in the market with-timber, and perhaps they could deal — something to that effect, and that afterwards O’Neil came to Hallton, after notifying Mr. Gardner to be there. They went up and looked at this timber. It was then piled on the beach, four or five logs high, upon skids,, and at that time he named to O’Neil the price, namely, twelve cents for small timber and fifteen cents for large. That at that time O’Neil stated, that he was expecting to get another contract and might need more lumber, and he would take this proposition of Mr. Gardner’s into consideration, or under advisement, and would write him. That afterwards he wrote a letter to J. K. Gardner, dated March 8 (which is in evidence before you), in regard to this pine timber that was for sale there, and also saying he had a contract for building a coal tipple; and in that letter he agreed to take certain timber from Mr. Gardner.at the price quoted of fifteen cents for the large, or gunnel timber, and twelve cents for the smaller, adding: “ I take it for granted.that they (the terms) are to be one third cash, one third ninety days, balance four months.” In response to that letter, Mr. Gardner writes Mr. O'Neil: “ We accept your terms on pine timber and will commence delivering it to you as soon as the weather gets warm enough to run. As to the measure, if I can get a good competent person to measure it here, I will do so, and if I do not succeed in finding such a person, then we will get some one at your place. I understand you want all timber landed above State Road Riffle, on the right side, near the old Ritts mill.”</p> <p>Now those two letters constituted at that time the contract between these two parties as to this timber in dispute, and we say to you that if there ivas not any evidence offered to indicate or show that there was any waiver of the terms of this contract, then the title to the property never passed to W. W. O’Neil, and the sheriff would not have any authority to levy upon it and sell it, and the plaintiffs could recover in this case, because when property is sold by one man to another if anything remains to be done, either by the seller or the buyer as to it, as to ascertaining the weight, amount, or measurement, or putting it into condition for delivery, by which the buyer could accept it, the title to the property does not pass. Now the theory of the defendant in this case is that the terms of this contract were changed subsequent to this time. In support of that theory witnesses were called who testified as to what transpired between the parties subsequent to this time in reference to the timber. You will remember that at first there were two rafts run down, which were taken into possession by W. W. O’Neil, or his employees, and sawed up — at least one and a part of another; some of the witnesses stated that both were sawed up, and others that one and part of another were sawed; that James K. Gardner came to the mill after that was done, came there with J. D. O’Neil, a brother of W. W. O’Neil, and that he went upon the mill, and there was some inquiry made as to the measurement — whether those rafts had been measured. I believe one of the witnesses testified that the rafts had been measured, that a man by the name of Spence, or Meddock (I forget which it was), had measured them. Then afterwards, on April 5th James K. Gardner and W. W. O’Neil met here, in Clarion. O’Neil testifies that he came here and met Gardner at the train; that they came up street to the Jones House; that he said to Air. Gardner he knew what he wanted with him, that is, seeing in reference to his, O’Neil’s, financial responsibility; that they came to the Jones House and he showed Gardner a npte he had of one Krepps & Son, and that after talking there awhile they went over to the bank. In the first place O’Neil stated that he was going to pay this thousand dollar note upon the timber contract and that there was some dispute in reference to the discount or in reference to a receipt that was to be written, and that they went over to the bank, to Mr. Arnold, and he settled the question of discount for them, how much it would be, and that there, in the bank, he (O’Neil) indorsed this note over to Mr. Gardner on the timber contract; that there was a conversation there and O’Neil said to Arnold in that talk that the dealings between them, or the contract, amounted to between seven and eight thousand dollars, and he also stated he believed Gardner told Arnold the same thing — -at least he gave Arnold some figures. Mr. Arnold testifies that the note was indorsed in the bank, on the table in the back room of the bank, and that there was some conversation in reference to the amount of dealings between the parties; the amount was seven or eight thousand dollars, and there was a conversation there, also, in reference to the financial ability of O’Neil. Now in reference to that transaction, Mr. Gardner testifies that he met O’Neil at the train that morning and they came to the Jones House; that there they had a conversation, and* that the thousand dollar note of Krepps & Son was indorsed over to him, but it was on the siding contract; that that was understood at the time, and was so spoken, and that there was a statement there of Hall, Gardner & Company with W. W. O’Neil in reference to it; and there was a receipt written on the back of that statement or bill and given to W. W. O’Neil. Mr. O’Neil states there was a statement written at that time, but it was not signed; that they went over to the bank, for something in reference to the receipt, and that while over there, in their conversation, he supposed it was forgotten; that he had it in his possession for some time afterwards, and states that it was not of any value, not being signed, and it, together with other papers, he believes was destroyed by his wife at his direction. In reference to this note transaction between these two parties, J. D. O’Neil is called and he testifies that along about April 18, 1893, he met Mr. Gardner in Pittsburg at the Boyer House; that there Gardner showed him this note and asked him whether it was good or not, and his reply was tliat it was good, and that Gardner there said it was a payment upon the timber contract. In support of Gardner’s statement in reference to the transfer of this note, and as to the account it was to be credited on, you will recollect the testimony of Mr. Bartlett, who states that he saw Gardner in Pittsburg about April 7th or 8th, and had a conversation with him; that Gardner told him he had gotten the Krepps’s note from O’Neil and that it was upon the siding contract. Mr. Knopsuyder, also, was called and testified that in a conversation with Gardner shortly after April 5th, Gardner-stated to him that it was a credit on the siding- contract; that that note had been transferred from O’Neil to him. Mr. Hyde also testifies to the same fact, and that the note was delivered to him as the firm of Hall, Gardner & Company.</p> <p>N ow, in order to understand that testimony, we state to you that the ordinary rule of evidence is that the declarations of a party cannot be received in evidence in support of his claim. But there is an exception to that rule, and we have admitted this testimony; and that testimony is to show that the testimony of Mr. Gardner upon the witness stand here was not of recent date ; that he made those statements to these parties just shortly after the transaction had happened, and before there was any prospect of a controversy, and that there was no motive in his telling other than what the transaction really was. But if you do not believe Mr. Gardner’s testimony that that transpired at the time he says it did, in the Jones House, and in the manner he says it did, then the evidence of those witnesses is of no avail; but you will take that into consideration in determining this matter. In support of the evidence of Mr. Gardner as to what transpired at the time of the transfer of this note, Edward S. Shippen was called by the plaintiffs. He testified that he met W. W. O’Neil on a Sunday morning, April 9,1898, and that O’Neil there said to him that he had paid to Mr. Gardner the thousand dollar note, the Krepps’s note, on the siding contract, last week, in Clarion. Mr. Knopsuyder also stated that a few days after April 5, he was on the train with Mr. Gardner and W. W. O’Neil, and that he had a conversation with O’Neil in which O’Neil stated he had settled with Gardner for all he had bought; that they were talking about the siding contract and he said he had settled for the siding contract a day or two before that, at Clarion. Mr. Knopsnyder says that this was between the 5th and the 7th of April, 1898; and it is not disputed but what this transaction took place between these parties- on April 5, 1893, at the Jones House or at the bank. In this connection you will also remember the testimony of W. W. O’Neil, who states that he did not have any such conversation either with Knopsnyder or with Shippen. Also in that connection you will recollect the testimony of Mr. Shippen as to the conversation between him and W. W. O’Neil at the Boyer House; that he said in that same conversation that Gardner had run a raft in, and it had been cut and it was not up to what the agreement was; that the timber was not the timber he bad bought, and that he was not going to take the balance of the timber, and he would not settle for what he had got without deduction. Now you take that into consideration in determining which of these parties is telling the truth in reference to the transfer of this note at the Jones House. If Mr. W. W. O’Neil made that statement to Mr. Shippen at that time, then you would take that into consideration in connection with his testimony as to what transpired at the Jones House — whether he had paid the thousand dollar note on the timber contract or not. This evidence, gentlemen, you will consider carefully, because there seem to be certain contradictions in reference to it.</p> <p>On the part of the defense two telegrams have been offered, which were sent on April 5, 1893, by J. K. Gardner; one to W. M. Gardner, who was the jobber for the Portland Lumber Company, and was cutting, manufacturing, rafting and running this timber for that company; and also one to W. H. Hyde, who was a member of the Portland Lumber Company. The one to Mr. Hyde reads thus: “ Have all pine rafts back and one hemlock raft delivered to State Road. J. K. Gardner.” The one to W. M. Gardner reads: “ Deliver all pine now back and one hemlock raft to State Road. J. K. Gardner.” Both telegrams are dated on April 5. You will remember the testimony of O’Neil and Gardner as to what was done on that day here in Clarion; that they went to the telegraph office at that time and these telegrams were sent. There was some testimony then in reference to some lines.. It is not disputed, I believe, by either Mr. Gardner or Mr. O’Neil that at that time Mr. Gardner requested that Mr. O’Neil or his men would have a river line there to help them land that it was a bad place to land. Mr. O’Neil testified, also, that Gardner requested him to put his lines on, as the jobbers did not want to leave their lines on the river, they were always anxious about that, to take their lines with them, and O’Neil states that he promised he would do so. After April 5, the other rafts in controversy were sent down by W. M. Gardner into the eddy, I believe it was, above the ripple at Duck Rock; they were landed there and the lines taken off, that is the jobber’s lines were taken off, and the lines of O’Neil were put on those rafts — W. M. Gardner and his men came there and took them off and requested O’Neil’s men to put the other lines on, and those rafts were dropped down, I believe, by T. J. Brenneman and one or two others.</p> <p>You will take these facts and circumstances into consideration in determining whether or not there was a waiver of the terms of the original contract; that is, that it was delivered; that is, that it was the intention of J. K. Gardner, as the agent of the plaintiff company, to deliver this timber without requiring O’Neil to perform the covenants in the contract as to paying the one third cash. You will recollect that the timber was to be,measured either up above or after it came down there by a man selected to do so; and this contract would indicate that that man was to be selected by Gardner or by the plaintiff company either at the place where it was rafted in or down at the place where it was landed. There the contract might indicate that the man was to be selected either by the plaintiff company or by the company together with O’Neil. You will recollect there is not any evidence here that there was any agreement between the parties as to the selection of a man to measure the timber except the testimony of W. W. O’Neil, who states that he thinks Gardner agreed for Mr. Meddock to measure the timber ; and there is some evidence that Meddock did measure a portion of the timber, but he testifies that the plaintiff company had no notice from him that he was to measure it; but he sent the measurement, I believe, to J. K. Gardner, and it went into the possession or hands of Mr. Hyde, a member of the plaintiff company, some time along about the 28th day of April, which was after the levy. The letter is dated April 18, and Mr. Med-dock said he believed he sent it the day it was written.</p> <p>Now, gentleman, you have in evidence the two letters which constitute the original contract between these parties, and we say to you that if there was nothing more than that we would have to instruct you to find for the plaintiffs. But you must go further than that; you must take into consideration the evidence that has been given before you and which we have rehearsed to you, as to whether or not the terms of this contract were waived in any manner, and the timber was delivered into the possession of W. W. O’Neil or his men without requiring the terms of the contract to be complied with. If you find from the evidence that the contract was not changed or waived in any way by J. K. Gardner or the plaintiff company, then it would be your dutjr to find a verdict for the plaintiffs for the five rafts in dispute, or, rather, for the value of them at such price as the evidence given before you would warrant. But [if you find that the contract was changed, that there was a delivery into the hands of W. W. O’Neil or his men of this timber, without the plaintiffs or agent insisting upon the performance of the terms of this written contract, that, we say, in law would constitute a delivery, and title would pass to the defendant and it would be your duty then to find a verdict for the defendant. But there being this written contract between the parties, and it upon its face must be construed that the title to the property did not pass by this contract at the time it was made, now you must find from the evidence that it .was the intention of J. K. Gardner, the agent of the plaintiff company, or of the plaintiff company, to let the title pass into the hands of W. W. O’Neil without requiring him to perform his part of this contract; that is, to [lave the money paid and to have the timber measured. It is in evidence that this timber was not measured, except what was testified to by Mr. Spence and Mr. Meddock, until after the date of the levy, when Mr. Webster measured it. Now you must infer from the actions of the parties subsequent to this act that it was the intention of the plaintiff company to let the title pass into the hands of W. W. O’Neil without being paid the one third in cash, and without the company having measured it; and to arrive at that intent you take the testimony of these witnesses into consideration.] [2]</p> <p>Now, whether there was anything paid or not. This thousand dollar note, even if that was paid upon the timber contract, that, in. accordance with the amount of the contract and the amount of the timber, at the rate agreed upon, would not constitute the one third of the cash price agreed on. You will also take these telegrams into consideration, as to what was said in them ; whether or not J. K. Gardner intended by them that the timber should be delivered to W. W. O’Neil without requiring him to pay the one third cash, and whether or not he intended it to go into O’Neil’s possession without Gardner first having a man to measure it. If you find that the title to this property passed to W. W. O’Neil — and before you can find that the title did pass to him you must find that it was the intent of the plaintiff company, by its acts after this contract was made, to change that contract, to let O’Neil have the timber without its being measured and without his paying the one third cash — if you find that was tbe intent, then that is an end of your duties in this case, the plaintiff's could not recover. But if you find it was not the intent of the parties to change this first original contract, then you go further and find what the price of this timber is. The rafts were measured by a man by the name of Webster, and he testified that the small raft, the first one, contained 4,899 cubic feet, that the second one had 4,370, the third, 6,006, tbe fourth, 5,592, and the fifth 8,030 cubic feet; that out of one of those rafts there were thirty-six sticks to be deducted. You will recollect the testimony of the witnesses as to what the timber was worth per cubic foot. There were several witnesses called on the part of the plaintiffs who testified as to what the timber was worth. Webster, I believe, testified that at the Pittsburg market the large timber was worth eighteen cents and the smaller about fourteen; Bartlett testified that the large timber was worth seventeen to nineteen cents and the small from twelve to thirteen cents; James Howe that the large timber was worth sixteen or seventeen cents per cubic foot and the small twelve and a half cents ; A. W. Wallace testified the large was worth seventeen to eighteen cents per cubic foot and the small twelve to thirteen cents. They do not vary much in their testimony as to the market value. You also have the testimony of one or two persons that the expense of running would be from one and a half to two cents per cubic foot.</p> <p>As to the value of the timber the defendant called Mr. Ritts, who is a lumberman, and he testified in regard to the value of timber along from about tbe 1st to the 14th, that it was then, for large timber, I believe, about sixteen to eighteen cents, but after that time there was a drop in the market of about one to three cents. He does not state definitely when that happened, whether it was gradual or happened in a day or two. So you will take his testimony into consideration, whether or not the market value' of this timber at Pittsburg was on April 20, the day of the levy, as much as the witnesses on the part of the plaintiffs have testified. Mr. Bartlett also stated there was a break in the market some time that spring; he left Pittsburg on April 14, and could not tell just exactly when it happened. You will recollect, also, the testimony of the witnesses as to the deductions in some of this timber at the time Mr. Gardner sold it afterwards, he having purchased part of it at sheriff’s sale. And then you will also take into consideration the testimony of James Taylor and Mr. Flesher, who bought this timber from Gardner, and what they say in reference to the condition and qualhy of it, in arriving at whether or not the witnesses have testified as to the correct value of it.</p> <p>We have been requested to answer the following points on the part of the plaintiffs :</p> <p>1. There is not sufficient evidence of waiver of the terms of measurement and payment as to the five rafts in controversy in this suit, even if the jury should find from the evidence that there was such a waiver as to the two rafts of small pine that had been sawed up before the levy, and the verdict of the jury should be for the plaintiffs. Answer: That point is refused. But we say to you unless you can find sufficient evidence subsequent to the delivery of those first two rafts to change the terms of the original contract, the delivery of those two rafts being prior to the date of April 5, would not of itself change the contract. You cannot take into consideration by itself the delivery of the two rafts to the mill as a change of the terms of the contract. Then, if they were delivered, the contract being an entire contract, the fact that two of the rafts were delivered and put into the possession of W. W. O’Neil prior to April 5, would not change the title to the subsequent rafts that were run down and are claimed for in this suit. [1]</p> <p>7. That under the contract and the undisputed facts in evidence, the title to the five rafts in controversy in this case remained in the plaintiffs at the time of the levy thereon by the defendant unless there was a waiver of the terms of measurement and payment by the plaintiffs or their authorized agent. Answer: That point is affirmed. Unless you can find from the evidence in this case that there was a waiver of the terms of the contract, that is, of measurement and payment, by the plaintiffs or their authorized agent, the title to the five rafts remained in the plaintiff company. [8]</p> <p>The defendant requests us to answer the following points :</p> <p>1. The plaintiffs by their duly authorized agent and attorney having orally notified the sheriff after the levy that they claimed title to the pine timber levied upon, and that they would give him a written notice before the sale, and having in pursuance of such oral notice, at and immediately before the sale given the written notice in evidence that “ the purchaser under this sale will take no title to the property sold,” are estopped from recovering from the sheriff any other or greater damages than such as had accrued from the detention of the property during the time it was in his constructive possession under the levy. Answer: That point is refused. [4]</p> <p>Gentlemen, you will take this ease; weigh the evidence carefully ; and we say to you that [if you find from the evidence that the title did not pass to W. W. O’bieil, Jr., it would be your duty then to return a verdict for the plaintiffs for the value of those five rafts.] [5] If you find that title had passed to W. W. O’Neil, Jr., then your verdict must be for the defendant.</p> <p>Verdict and judgment for plaintiffs for $4,916,10. - Defendant appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p> <p>Conceding that no one of the undisputed facts is, by itself, sufficient evidence of a transfer of the possession, or delivery, under the contract, we contend that all taken together constitute such delivery as transferred the title; Leedom v. Philips, 1 Yeates, 527; Harris v. Smith, 3 S. & R. 20; Bowen v. Burk, 18 Pa. 146; Smith v. Smith, Murphy & Co., 21 Pa. 867; Mackaness v. Long, 85 Pa. 158.</p> <p>The notice given at and immediately before the sale of each raft was an election of remedies which should estop the plaintiffs from recovering more in this action than the damages which they may have sustained by reason of the detention of the property, while it was under levy: Floyd v. Browne, 1 Rawle, 121; Yetter’s App., 99 Pa. 52; Edwards’ App., 105 Pa. 103; Birney’s App., 114 Pa. 519; Butler v. Hildreth, 5 Mete. 49; Moller v. Tuska, 87 N. Y. 166 ; Fire Ass’n v. Rosenthal, 108 Pa. 474; Stutz v. Coal & Coke Co., 131 Pa. 267; Wise v. Rhodes, 84 Pa. 402; Nield v. Burton, 49 Mich. 53.</p> <p>It is improper to assign as error isolated sentences wrenched from their position and connection in the general charge, which when read in their proper connection are free from error: Com. v. Zappe, 153 Pa. 498; Irvin v. Kutruff, 152 Pa. 609.</p> <p>Where the buyer is by the contract bound to do anything as a consideration, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer: 1 Benj. on Sales (Corbin’s ed.), secs. 366, 417; Elgee Cotton Cases, 89 U. S. 187; Lester v. McDowell, 18 Pa. 91; Henderson v. Lauck, 21 Pa. 359; Com. v. Hess, 148 Pa. 99; Pike v. Yaughn, 39 Wis. 499; Gibson v. Tobey, 46 N. Y. 641; Miller v. Munhall, 34 Leg. Int. 321.</p> <p>When the five rafts in question were delivered at “ State Road,” there remained two more to be delivered, and the time for measurement and payment had not yet come: Shinn v. Bodine, 60 Pa. 182; R. & O. Oil Co. v. Hughey, 56 Pa. 322 ; Leedom v. Philips, 1 Yeates, 527.</p> <p>The bringing of a suit against the sheriff will not of itself vest a title in the purchaser; nor will a verdict therein; nothing short of a judgment on the verdict will change the title and bar the owner’s remedy against the purchaser: Floyd v. Browne, 1 Rawle, 121; Marsh v. Pier, 4 Rawle, 273; Fox v. Northern Liberties, 3 W. & S/103.</p> <p>To estop a party it must appear (1) that he has made an admission which is clearly inconsistent with the evidence he proposes to give; (2) that the other party has acted on the admission; (3) that the latter will be injured by allowing the truth of the admission to be disproved. All these elements are essential: Eldred v. Hazlett, 33 Pa. 316 ; Birney’s App., 114 Pa. 520.</p>

<p>Appeal, No. 47, Oct. Term, 1897, by plaintiff, from judgment of C, P. Jefferson County, May Term, 1894, No. 320, on verdict for defendant.</p> <p>Trespass for an illegal cutting of timber. Before Harry White, P. J., of the 40th judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below charged in part as follows :</p> <p>The plaintiffs claim the timber to have been cut by the defendant on warrant No. 2983, while the defendant denies this and claims the land was not on 2983, but was on 2981, which he, the defendant, owned. We will now pause right here to go over in detail the title of the defendant — that is, the paper title of the defendant. There was a warrant issued on December 18, 1792, No. 2981, to Wilhelm Willink and the Holland Company, which was executed by W. P. Brady on November 7, 1794, and returned on October 8, 1802, the same day that warrant 2988 was returned. Now the defendant has traced up title from the commonwealth to himself — paper title, in this warrant 2981. Some matters here, gentlemen, are not in dispute, and we need not waste time discovering how they are. Now it is not denied by the defendant really that he made a contract with parties in writing who cut the timber on the land in question. It is clear also, as we have said, that both these warrants wore dated the same day, and both came to the hands of William P. Brady, the deputy surveyor. It is also clear that upon the same day, so far as the record evidence and the evidence before us shows, they were both located. Neither is it disputed that these warrants were located by the surveyor going on the ground and locating at least the outside lines of them; and while it may not be absolutely conceded all around, yet it would appear that some eight other warrants to the Holland Land Company or this Willink party, came to the hands of the surveyor at the same time, and were located and returned at the same time; and this may be called a block of warrants that seem to have been executed together. It is also beyond dispute that Nichols & McPherson warrants 3931 and 3932, older than these warrants 2983 and 2981, were located upon the ground previously to them, and well located west of the proposed location of warrants in hand. [It also appears beyond denial that to the east, Timothy Pickering & Co. warrant 122 was located, and is of an older date than those in contention here. First, the Nichols & McPherson warrants located west, Pickering to the east. The holders of the Nichols & McPherson and the Pickering would hold a better title because they are prior warrants to the laud they covered than the persons claiming the land on these warrants in contention. It is also conceded that somewhere between the Nichols & McPherson warrants and this Pickering warrant, to the east of the Nichols & McPhersonTine, these warrants 2983 and 2981 were actually located.] [3] With these conceded facts and matters before us we must discover then where these warrants 2983 and 2981 were actually located. In this behalf it is material for us to keep in mind that the claim of the plaintiff is that this warrant 2983 was so located as to embrace this land in dispute. . . .</p> <p>Now the actual work upon the ground overcomes the prima facie presumption that the survey was made as returned. So then taking these drafts as returned, we may take this a little further. If we would begin on the east line of Nichols & McPherson and measure east for 2983, 461 rods to a post; then we would commence at the end of that distance and would measure north locating 2981; measure east from there 477 rods to an ironwood; the prima facie presumption is then that 2983 would go its full distance to the east and 2981 would commence where it left off and go 477 rods to an ironwood. Now, that is. the prima facie presumption; and this connected draft from the laud office, that has been offered in evidence, shows the same thing. Now, that prima facie presumption remains until it is overcome by the actual work on the ground. . . . [A difficulty here, however, is encountered in this case, that the Pickering warrant, a senior one and well located, is upon the east; hence the contention here. I fancy the contention in this case results from that fact. We are thus brought face to face with the dispute upon the eastern line primarily. And right here again we may make plainer if possible some general legal principles about the location of warrants ; and we may repeat a little. When the commonwealth grants a warrant and places it in the surveyor’s hands and he locates it, no future warrant can be granted and located so as to interfere with this former one. The holder of the first will, as a rule, have the better title as against a later one. That applied here would give the holders of the Nichols & McPherson warrants 3931 and 3932 on the west, and of the Pickering No. 122 on the east, a paramount or better title to the lands they covered than the holder of any subsequent warrants laid upon them. This is, to be plain, if these warrants 2983 and 2981, .in contention here, were laid in whole or in part upon the Nichols and McPherson on the west, and on the Pickering on the east, thej'1 would not give good title to the land so previously covered by the older Nichols & McPherson and Pickering warrants. In other words, the first warrant laid takes the better title to the land.] [4]</p> <p>. Then again, it is a rule that when a warrant has been located and tlie survey on it made and returned to the land office, as we have already explained to you, the presumption is that it was made as returned, that is, it was made and located on the ground, according to the lines, courses and distances to the natural objects and monuments found marked on such returned draft. This presumption, we repeat, continues until it is overcome by work on the ground. That is, the presumption may be overcome in a case of dispute by showing from the location of the ground, the situation of tlie objects or monuments called for on the draft or the location of tracts called for as adjoiners, that the actual location cannot have been as it appears from the draft returned. This rule has been stated and illustrated by Justice Williams recently in the case of Bloom v. Ferguson, 128 Pa. 380, where he says, speaking upon a kindred subject:</p> <p>“ This rule is applicable to a single survey and to a block of surveys with equal force. If a survey has no work of its own it must call to its aid that of the block of which it is part; for, the legal presumption that a survey was made as it was returned cannot be made to help in the location of a tract, until a starting point has been identified somewhere on the lines of the block from which the work of tracing the lines can be securely begun. But with an original mark for a starting point, the lines may be run in accordance with the legal presumption, and will hold the tract against all younger surveys. The work found on the ground is the basis. It fixes tlie footsteps of the surveyor, so far as it exists, and from, it the legal presumption projects the lines along the courses and distances as returned, and incloses the tract.” When, then, the question arises about the actual location of a survey returned, we go to the ground to search for the marks there, the work there. The trees or monuments- marked or set by the surveyor there when he located the warrants are the first, now mark you, are the first and best evidence of where the line is. If no actual marks can be found, we next look at the calls for adjoiners. If there are no calls, then the courses and distances of the draft are followed. Thus the legal rule is : First, actual work or marks; second, if no marks, the adjoiners called for; if none of these, then third, the courses and distances are followed. . . .</p> <p>The next rule, if you can’t find marks, is the calls for adjoiners. [If a survey commences at Nichols & McPherson and goes' several’hundred rods east, if you please, to the Pickering —say it calls for 200 rods, and the Pickering warrant wasn’t found until they ran 800 rods, that is where the survey would go.] [5] It would go to what is named the call — that is, the call of the adjoiner upon the east. Now these are the rules. If there are no marks and no calls, then you follow and take up the courses and distances. . . . Now, if it clearly appears and you are satisfied that the land in dispute, or any part of it, on which the timber was cut is on warrant 2988, the plaintiff is entitled to recover three times the value of the timber so cut that was growing upon the property and was covered by 2988. If none of the land on which the timber was cut was in 2988, but was in 2981, then the defendant must recover.</p> <p>With these legal principles before us, we take up draft 2983 ' again. As returned, and aided by the legal presumption that it is located as returned, we find it started for its western line at the eastern line of Nichols & McPherson 3931 and 3932, and ran east 461 rods to a post on the northwestern corner of survey 2981. I say that is what appears there; and I say to you now that then 2981 would apparently, according to the terms, begin at this northwest corner and continue east 477 rods to the ironwood as stated in the official drafts to be a corner of another Wilhelm Willink survey No. 2955. [Prom this connected draft, we find that the ironwood is marked as a corner for that which is a warrant to the east of this adjoining it on the west. Now, if such was the location, part of 2981 would be on top of Pickering 122, an older warrant; but we may safely say here in any event, even accepting the theory of the defendants that the hemlock was the northwest corner of 2981 instead of the ironwood, part of this 2981 would be located, or is located, on this Pickering warrant — overlaps it.] [6] But under the evidence, no difference what exploration surveyor Brady may have made when locating 2983, his official return starts at the east line of Nichols & McPherson 3931 and 3932. We say to you, we have nothing to change this, although there may have been explorations beyond and over that line, we find no evidence to submit to you to change the commencement of 2983 from that which appears to have been adopted on the returned survey, and the western line of that survey is the eastern line of Nichols & McPherson. Then that being the case, it would, upon its facet naturally go east 461 rods to what is marked as a post, and then 2981 would commence there and continue 477 rods to the ironwood, as marked on the draft. Now the plaintiffs contend this is the proper location. Hence, the dispute. We meet right here, then, two important questions. Where was the actual northeast corner of 2981 ? When we find it, where from it was the division line between 2983 and 2981 ? If we cannot find the eastern line of 2981, can we still find whether the surveyor in 1794 made a division line between these two surveys 2983 and 2981 ? If so, where was it ? The plaintiffs deny any such line or division, and rely primarily upon the surveys starting from the Nichols & McPherson line in the west; while the defendant denies the correctness of the official draft, denies that there was an ironwood at the northeast corner of 2981, but that the actual marked corner there was a hemlock. . . . To avoid confusion, if you are not satisfied that there was a division line made between 2983 and 2981 in 1794, but find that the hemlock was the actual corner, then I repeat, there was a proportional decrease of distance. If there was no division line, however, made between them, there would be a ratable decrease in the length of the respective lines in proportion to the length of the lines of the respective tracts between the points where it started and this hemlock at which it would stop ; and upon a calculation we find that would leave about thirty-five acres and a half of the land in dispute on 2983 j and if the plaintiff would be entitled to recover on that theory, he would only be entitled to recover for the timber that was cut upon that portion.</p> <p>Now, gentlemen, take this case, and under our instructions see where was 2983 located. Was it located and given its whole distance ? If so, the plaintiffs would be entitled to recover the whole claim. Was it so located that the eastern line stopped at the hemlock? Then there would be a proportional decrease. [If, however, there was a division line made between them in 1794 as contended for by the defendant, then of course your verdict should be for the defendant, because it would throw all the land on the defendant. You are to be controlled in this matter by the weight of the testimony.] [7]</p> <p>Plaintiffs’ fourth point and answer thereto were as follows : .</p> <p>That as there was a line run and well marked upon the ground in 1794, the date of the location of warrants Nos. 2983 and 2981, fifty rods east of the hemlock referred to in the third point, which eastern line is about nineteen rods short of the full distance called for by the lengths of north and south lines of tracts Nos. 2983 and 2981, which first named line extends the full distance southward from the north line of the last named tracts to the south side of three tiers of the Wilhelm Willink & Co. tracts, it is a pregnant circumstance to show that, after the discovery by the surveyor who laid the warrants he had overlapped the Nichols & McPherson warrants, abandoned the line forty-eight rods west of the eastern line of the Nichols & McPherson warrants and the corresponding - north and south lines, and run the eastern line calling for the ironwood, as the east boundary of warrant No. 2981. Answer : The matters referred to are proper to be considered by the jury when seeking to discover from all the evidence what was the true location of the eastern line of 2981. While we will not say the matter referred to is a pregnant circumstance, still it is material matter, and should be considered by the jury in connection with the other evidence in the case. [1]</p> <p>Defendant’s second point and answer thereto were as follows: That the provisions of the act of March 29, 1824, were intended only to prevent the wilful or careless cutting of another’s timber. Answer: That is correct. [2]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned among others were (1-7) above instructions, quoting them.</p> <p>In questions of private boundaries, declarations of particular facts, as distinguished from reputation, made by deceased persons, are not admissible unless they were made by persons who, it is shown, had knowledge of that whereof they spoke, and who were on the land or in possession of it when the declarations were made, and these declarations, to be evidence, must have been made while the declarant was pointing out or making the boundaries, or discharging some duties relating thereto: Hunnicutt v. Peyton, 102 U. S- 364; Bender v. Pitzer, 27 Pa. 333.</p> <p>■ In Dawson v. Mills, 32 Pa. 302, the evidence was admitted because the witness at the time of the statement was in possession of the land, and showing the extent of his claim.</p> <p>In case of Kennedy v. Lubold, 88 Pa. 246, the evidence was admitted, and the grounds stated by Agnew, C. J., is: “ Herrington in 1837, and Fenton in 1888, were engaged in professional acts, tlie latter locating tlie warrant officially, and under his oath of office.</p> <p>“ The declarations as to the corners when found, blocked and counted, were a part of the res gestae, and so far from being doubtful evidence, were competent and always admitted when the transaction is old and surveyor dead.”</p>

<p>Insurance — Life insurance — - Notice of assignment — Waiver—Evidence— Question for jury.</p> <p>In an action against a life insurance company by the assignee of a policy of insurance containing a stipulation that “this company will not take notice of any assignment of this policy until a duplicate or certified copy thereof shall be delivered to the company at its principal office,” it was not claimed that a duplicate or certified copy of the assignment had been delivered, but it was averred that the company had waived the stipulation. The plaintiff offered evidence which tended to show that in accordance with instructions from the secretary of the company plaintiff had sent the policy and the assignment to the office of a general agent of the company; that in the absence of the general agent these papers were presented to a clerk in the office who took and examined them, walked a short distance to a book in which he appeared to make entries, and then returned to the messenger and handed the papers back to him. Held, that the evidence was for the jury to determine whether the company had waived the stipulation in the policy as to filing a duplicate or certified copy at the principal office.</p> <p>Evidence — Province of court and jury.</p> <p>If the evidence is direct and certain, presenting no question of credibility, and leaving no sufficient ground for inconsistent inference of fact, the court may be asked to instruct the jury as to its legal effect. But if it is uncertain, if it depends on the credibility of witnesses, and if there is room for drawing from it different inferences of fact, it must go to the jui'yi They must clear up the doubts, settle questions of credibility, draw the correct inferences, and give final shape to the findings of fact.</p> <p>Insurance — Life insurance — Assignment of policy as collateral security.</p> <p>Where an indorser of a promissory note to whom a policy of insurance has been assigned as collateral transfers the assignment to the holder of the no.te to secure the same debt to secure which the policy had been assigned to him, the title vests in the transferee of the indorser, so far as that is necessary to enable the latter to hold the policy as collateral security for the debt and to sustain an action upon the policy.</p> <p>Promissory note — Renewal note — Collateral security.</p> <p>Where a policy of life insurance has been assigned as collateral security for the payment of a promissory note a renewal of the note will not destroy the assignment if such was not the intention of the parties.</p>

<p> Definition of insolvency. </p> <p>Insolvency generally signifies insufficiency of assets when turned into money to discharge existing indebtedness.</p> <p>Corporation — Insolvency—Receivers.</p> <p>A corporation had assets worth at fair valuation $40,000, and debts amounting to $16,000, with not sufficient ready money to pay its indebtedness. Among the debts were $5,000 which it owed to banks upon notes on which the four director's of the corporation were indorsers. At. the request of the banks the corporation confessed a judgment to the four directors in trust for the banks. Held, that the facts were not sufficient to sustain a charge that the corporation was insolvent at the time the judgment was confessed.</p> <p>Corporations — Directors—Rights of stoclcholders — Confession of judgment —Preference.</p> <p>Where the directors of a corporation are indorsers of its notes, and vote in favor of confessing a judgment by the corporation, which judgment will relieve them from personal liability, the stockholders have the right to the most exacting inquiry into the nature of the transaction.</p> <p>Where a corporation borrows money from banks upon notes indorsed by all of its directors, who receive no personal benefit from the transaction, the directors may, subsequently, when the banks refuse to renew the notes and demand a judgment, confess a judgment to themselves as trustees for the banks to secure the payment of the debt.</p>

<p>Appeal, No. 58, Oct. T., 1897, by First National Bank of Clarion, from judgment of C. P. Clarion Co., on verdict for plaintiff.</p> <p>Bill of discovery in aid of execution sur judgment of A. R. Braden v. W. W. O’Neil, Jr.</p> <p>No formal issue appears to have been made up in the case, but the parties proceeded to trial as if there had been an allegation upon the one side and a denial on the other that the defendants had, by means of fraudulently confessed judgments and executions issued thereon, obtained possession of the property of O’Neil, with intent to hinder, delay and defraud the plaintiff.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendants’ points and answers thereto among others were as follows:</p> <p>1. Under all the evidence in this case the plaintiff is not entitled to recover. Answer: Refused. [1]</p> <p>2. A judgment confessed by an insolvent man to secure a bona fide creditor, whether contingent or otherwise, even though it is intended to give, and has the effect of giving, him a preference over other creditors, is not fraudulent either in law or in fact. Answer: Refused. [2]</p> <p>3. The agreement of May 6, 1893, of the execution creditors of W. W. O’Neil, Jr., for the purchase of his property at the sheriff’s sale and distribution of the proceeds, is not evidence of fraud. Answer: Refused. [3]</p> <p>The court charged in part as follows :</p> <p>[Under our instructions, gentlemen, your verdict will be for the plaintiff; you will find that the First National Bank of Clarion and Rachel K. Pollard, each has in its and her hands money of W. W. O’Neil, Jr., now due and payable to an amount in excess of the whole amount of plaintiff’s judgment, debt, interest and costs; being, debt and interest $2,407.30, and costs $9.65, making in all, $2,416.95; and you find for the plaintiff against each of said defendants in the sum of $2,416.95.] [4]</p> <p>Verdict and judgment for plaintiff for $2,416.95. The First National Bank of Clarion appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p> <p>There was no fraud in the transaction: Neal v. Clark, 95 U. S. 704; Moss v. Riddle, 5 Granch, 351; Milne, Browne & Co. v. Henry, 40 Pa. 352; Gregg v. Sayre, 8 Peters, 252.</p> <p>The confession of judgment by O’Neil in favor of the appellant was not a constructive fraud: Blakey’s App., 7 Pa. 449 i; Summers’ App., 16 Pa. 169; Act of May 4, 1852, P. L. 584 ; Worman v. Wolfersberger, 19 Pa. 59; Uhler v. Maulfair, 23 Pa. 481; County Bank v. Carter, 38 Pa. 446; Miners’ Nat. Bank’s App., 57 Pa. 193; Wilson v. Berg, 88 Pa. 167; Walkejr v. Marine Nat. Bank, 98 Pa. 574; Lake Shore Banking Co. v. Fuller, 110 Pa. 156; Davis v. Charles, 8 Pa. 82; Wingerd v. Fallon, 94 Pa. 184; Byers v. Franklin Coal Co., 106 Mass. 131.</p> <p>The sale of O’Neil’s personal property was not rendered fraudulent by the agreement between the execution creditors in respect to the purchase thereof at the sheriff’s sale and distribution of the proceeds : Huber v. Crosland, 140 Pa. 575.</p> <p>A judgment confessed voluntarily by an insolvent or indebted man for more than is due is prima facie fraudulent within the statute of 13 Eliz. c. 5: Clark v. Douglass, 62 Pa. 408, 415; Lewis v. Rogers, 16 Pa. 22; Lynch v. English, 4 Del. Co. R. 481; Appeal of Erie City, 91 Pa. 402; People v. Arguello, 37 Cal. 525; Oyster v. Short, 177 Pa. 601 ; Brough’s Est., 71 Pa. 460; Dodson v. Taylor, 21 Atl. Rep. 293; Severs v. Dodson, 34 Atl. Rep. 7; Byers v. Franklin Coal Co., 106 Mass. 131; Hancock v. Entwisle, 3 Term Rep. 435; Staines v. Planck, 8 Term Rep. 386; Frost v. Carter, 1 Johns. Cas. 75; Ditchburn v. Jermyn, 13 Pa. 3.</p> <p>The transaction created a secret trust on the part of the bank in favor of O’Neil to the extent of $6,756.77 of indorsed notes of third parties, which were included in the judgment.</p> <p>A transfer of personal property which creates a1 trust, whether secret or avowed, in favor of the grantor, renders the transaction fraudulent and void in legal contemplation, even though there may be mingled with it provisions in favor of preferred creditors: Shaffer v. Watkins, 7 W. & S. 219; McCIurg v. Lecky, 3 P. & W. 91; Passmore v. Eldridge, 12 S. & R. 198; Kirker v. Johnson, 13 W. N. C. 385; Lukins v. Aird, 6 Wallace, 78; Twyne’s Case, 1 Smith’s Leading Cases, 1; Sexton y. Wheaton, 1 Am. L. C. 18; Towle v. Hoit, 14 N. II. 61; Smith v. Lowell, 6 N. H. 67; Hart v. McFarland, 13 Pa. 182; Connelly v. Walker, 45 Pa. 449; Lynch v. English, 4 Del. Co. R. 481; Heath y. Page, 63 Pa. 108.</p> <p>The whole transaction to which the bank was a party gave an exaggerated appearance of insolvency to O’Neil, the direct tendency of which was to hinder, delay and defraud his other creditors who had no judgment, and who were not parties to the agreement of May 6, 1893: M. & M. Bank v. Bank, 7 W. & S. 340; Bunn, Raiguel & Co. v. Ahl, 29 Pa. 387.</p> <p>In a case like this, where all the material facts appear of record or are admitted or proved by uncontradicted evidence, it is the duty of the trial court to rule as a matter of law whether the facts established such fraud as would vitiate the transaction. Hence the court was justified in giving binding instructions to the jury to find for plaintiff: Koons v. Steele, 19 Pa. 204; Milne v. Henry, 40 Pa. 352; Thompson v. Kauffelt, 110 Pa. 215; Angier v. Eaton, 98 Pa. 594; Werner v. Zierfuss, 162 Pa. 360.</p>

<p>Appeal, No. 132, Oct. Term, 1897, by plaintiff, from judgment of C. P. Somerset County, May Term, 1895, No. .425, on verdict for defendants.</p> <p>Ejectment for a tract of land in Elk Lick township. Before Longeneckbr, P. J.</p> <p>Tbe facts appear by tbe opinion of tbe Supreme Court.</p> <p>When Susan Mognet, one of the defendants, was on tbe stand, defendant’s counsel offered to prove by lier that as soon as she saw tbe deed for tlie land, and saw that it bad been made to her husband, J. G. Mognet, instead of to her, she complained about it, telling him she had paid the purchase money; that he himself said that the deed was made that way in mistake, and he promised to rectify it by making the deed to her.</p> <p>It was objected to as incompetent on the ground that these are self-serving declarations, and the plaintiff cannot be affected by them, made in his absence.</p> <p>The Court: I think we will permit her to show the fact, without going into the conversation between her and her husband. Exception noted and bill sealed to the plaintiff. [8]</p> <p>The court admitted under objection and exception the deed of Joseph G. Mognet to Susan Mognet for the land in dispute, dated October 14, 1892. [9]</p> <p>Defendants’ counsel, in repetition of the offer made earlier in the trial of the case, which was excluded, offered to prove by the defendant, Susan Mognet, that when she learned first that this deed had been made in the name of her husband, she objected to its having been so made in the name of her husband, and asked her husband then to make the conveyance directly to her; that he admitted that the property had been paid for by her or her estate and promised to make the conveyance to her at an early day; that he neglected it, and that he often promised to do so, and continued to neglect it up until the date of this deed offered in evidence.</p> <p>This was objected to as incompetent and irrelevant, being self-serving declarations made between husband and wife.</p> <p>The Court: We will permit the defense to show that upon demand being made upon the husband for a deed he assured the witness that he would have the title put in her, but neglected to do so, as a fact, not by way of receiving the declarations of the parties in regard to the title. Note an exception and bill sealed to the plaintiff.</p> <p>Under this ruling, Susan Mognet, the defendant, was permitted to testify that she first learned of the title being in the name of her husband in June, 1890; that she told her husband then that she wanted the deed in her name, and that he said he would have it changed right away, but that he neglected it, and she asked him more than once to make the change, but that he did not make the deed to her until October 14,1892. [10]</p> <p>The court charged in part as follows:</p> <p>[She alleges that she had no knowledge whatever that the deed had been made to the husband instead of to herself, until June, 1890. She says she fully believed the legal title was in her name until she saw the deed for the first time in that month. What does the evidence satisfy you in regard to that? It is a question of fact for your ascertainment. If it is as she says, she was not required within that time to assert her rights, when she was unconscious that they were being jeopardized. She was not called upon to demand an acknowledgment in writing of an equitable title, if she believed in good faith the legal, as well as the equitable, title was already in her name. In such case the statute did not run until she learned the true state of her title.] [1] [But when she discovered its true condition, it became her duty to take steps to secure in writing the evidence of the title which the statute points out. Did she do so ? She speaks of demands made on her husband, and of his assurance that he would attend to it. This likewise is a fact for your ascertainment and determination. If she made such demands on him and obtained the promises she claims, and in good faith relied on them, she is not chargeable with such laches as would estop her from asserting her title in this action. But if, on the other hand, you conclude from the evidence that she did not exercise vigilance in seeming for herself the evidence of her alleged equitable title in writing, but delayed the matter until the property was incumbered by her husband, without taking action, she would be estopped from setting up the title now.] [2]</p> <p>Plaintiff’s points and answers thereto were among others as as follows:</p> <p>1. Under all the evidence in the case, the verdict must be for the plaintiff for the laud in dispute. Answer: Refused. We cannot determine that question as a matter of law, as you have already inferred from our charge. [3]</p> <p>3. It being admitted that the title to the land was in George F. Baer, and that he conveyed to Joseph G. Mognet by deed dated April 4, 1885, and recorded on April 15, 1885, and that S. J. Ringler, who had been a tenant under George F. Baer, remained a tenant on the farm, by virtue of a lease under Baef, until Mognet moved there in the spring of 1886, and he remained there until April 1,1888, and then rented to Peter Shultz, who remained on the farm as a tenant of Joseph G. Mognet until April 1, 1898, and as no deed was made from Joseph G. Mognet to Susan Mognet until October 4, 1892 — more than five years after he acquired title — therefore the case is within the sixth section of the act of 1856, and-the verdict must be for the plaintiff. Answer: This is so if you find that the wife knew during the time mentioned that the legal title was not in her, but in the husband. But if she only discovered that fact in 1890, the five year period provided by the statute ran from that time, and had not, of course, expired in October, 1892, when he conveyed to .her. [4]</p> <p>4. In order to create a resulting trust the facts necessary to constitute such a trust must have existed at the inception of the title in the trustee; that is, in this case, the purchase of the property must have been made for Mrs. Mognet at her direction, paid for with her money at the. time, or secured by her, and the deed must have been made in the name of her husband by mistake, and not acquiesced in by her when it was delivered, and the evidence is not sufficient to warrant the jury in finding in favor of a resulting trust. Answer: In order to create a resulting trust the necessary facts must have existed at the inception of the title in the husband,’ and the property must have been paid for with the wife’s funds, not with funds belonging to or loaned to the husband; the deed must have been made in his name by accident, inadvertence or mistake, and not acquiesced in by her after she learned it. But it is not necessary that the purchase was made at her direction. Nor can we say that the evidence is insufficient to warrant you in finding in favor of a resulting trust. That is a question which you will determine, under the instructions given you, on all the evidence. The point, as written, cannot therefore be affirmed, and it is refused. [5]</p> <p>5. The deed to Mognet by George F. Baer having been recorded on April 14, 1885, and his title to the property not brought in question until the execution of the deed to his wife on October 14, 1892, a period of seven years and six months, the record was constructive notice to Susan Mognet of the deed to Joseph G. Mognet, and more than five years having elapsed after the passage of the Act of June 3,1887, P. L. 332, until the execution of the deed by Mognet to her on October 14,1892, she is estopped from setting up title to the land in dispute, and the verdict must be for the plaintiff. Answer: It is true, the recording of the husband’s deed in April, 1885, was constructive notice to the wife, as it was to all other persoxis, that the legal title was in him, but it was merely corxstractive notice, and if you believe that she did not, in fact, know it until 1890, the rale invoked in the point does not apply. The correctness of the point depends on the way you shall find that fact. [6]</p> <p>6. As it has been shown by the testimony of Susan Mognet that she learned in June, 1890, that the deed was made in the name of her husband, but that she let it remain ixx his name until after he became liable to Hocking on the note for $5,000 on October 11,1892, and judgment entered thereon on October 13, 1892, and having taken xio steps to secure a deed froxn her husband xxntil after the Hockixxg note was entered against her husband, she is estopped from setting up title to the property, and the verdict must be for the plaixxtiff. Answer: This point is affirmed if you find the facts as stated; but it is not necessary that she should have ixxstituted legal proceedings against her husband to exiforce her equitable title, or procure a declaratioxi of the trust, in order to escape an estoppel, if she, in good faith, demanded a conveyaxxce from him and relied oxi his promise to make it, and especially so if she was unaware of his contracting the liability to Hocking before receiving her deed. [7]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them; (8-10) rulings on evidence, quoting the bill of exceptions; (11) refusal of new trial.</p> <p>The evidence was insufficient to establish a trust: Hoover v. Hoover, 129 Pa. 201; Silliman v. Haas, 151 Pa. 52 ; Lau’s App., 176 Pa. 100; Fowler v. Webster, 180 Pa. 610 ; Reno v. Moss, 120 Pa. 49 ; Hess v. Calender, 120 Pa. 138; Dyer’s App., 107 Pa. 446; Wylie v. Mansley, 132 Pa. 65; Gilchrist v. Brown, 165 Pa. 275 ; Young v. Senft, 153 Pa. 352.</p> <p>cited Miller v. Baker, 160 Pa. 172; Light v. Zeller, 144 Pa. 581; Gilchrist v. Brown, 165 Pa. 283; Rupp’s •App., 100 Pa. 531.</p>

<p>Appeal, No. 168, Oct. T., 1897, by plaintiffs, from order of C. P. Westmoreland Co., Nov. T., 1892, No. 432, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report in distributing a fund realized from a sale of land on proceedings in partition.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p> <p>At common law the appointment of a debtor operated as a release of the debt, but in this state the common law was recognized so far as that the action for it was merged, but the debt must be accounted for as assets. The act of 1834 put this into statutory form.</p> <p>In no case decided by this Court, so far as we have been able to see, has it been ruled that where a testator has a judgment lien against his executor the appointment extinguished and discharged that lien.</p> <p>We contend that in the case at bar the learned auditor and court below have lost sight of and ignored the distinction between an “action” and a “judgment” or “lien.”</p> <p>A civil action is defined to be a legal demand of one’s right, or it is the form of a suit given by law for the recovery of that which is due. Till judgment the suit is called an action: 1 Am. & Eng. Ency. of Law (2d ed.), 578; Blystone v. Blystone, 51 Pa. 374; Anderson’s Law Dictionary, title “Lien,” 623.</p> <p>cited Eichelberger v. Morris, 6 Watts, 42; Bowman’s Appeal, 62 Pa. 169.</p>

<p>Appeal, No. 72, Oct. T., 1897, by defendant, from judgment of C. P. Venango Co., Jan. T., 1896, No. 54, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Criswell, P. J.</p> <p>At the trial it appeared that the plaintiff was injured on the evening of April 5, 1896, while working in defendant’s tube works. He testified that he had been instructed by the furnace and roll boss to handle some pipe in a dangerous 'place where he had not worked before; that he had not previously done this kind of work; that he had not been properly instructed as to its danger, or as to his work, and that in stepping over certain skids or bars his foot went into a hole or opening, of the existence of which he was ignorant, and that thereby he was seriously injured. There was also evidence on behalf of the plaintiff that the place where the accident occurred was not properly-lighted. It also appeared that after the accident the opening or hole was covered by the defendant company.</p> <p>The court charged in part as follows:</p> <p>It Appears that the plaintiff, on April 5, 1895, was in the employ of the defendant company as a laborer; that on that day he went to work in the evening, shortly after six o’clock; that he was assigned by a Mr. McLaughland to assist in removing pipe, in the manner which has been detailed here by him and by the other witnesses. It also appears, and as to this there is no controversy, that prior to this time he had not been engaged in such work at this mill. It is alleged by the plaintiff that he was put at work there at this time; that he was briefly shown what his duties were, and that he continued there till sometime after, nine o’clock when he was injured. It appears that he occupied the position most of the time outside the skids, and so far as tire evidence discloses, did not cross any of the skids until, the time when he was injured. . . . According to the testimony of Mr. White the skids are from two feet three inches to two feet six inches in height from the floor, as I remember his.testimony, and about three feet six inches apart. By keeping in mind these figures it may assist you when you come to determine some of the questions here in controversy, that is, it may enable you to form some idea, a very correct idea, as to what the parties at each side of these skids were required to do in the performance of their duties there.</p> <p>It appears that about nine o’clock the plaintiff stepped over one of these skids, and his foot went into an opening there, resulting in one foot or leg being suddenly taken off. There is no question but at that place in the floor there was at that time an- opening. Different witnesses have described that opening. They don’t quite agree as to the size of it. However, it is in the neighborhood of two feet long and two feet wide, or somewhere along there. The testimony of the witnesses differ. You will remember what they say in reference to it. As the result of the injury, which he there received, it appears that he lost his leg, and this is the injury for which he now seeks to recover. The plaintiff claims that at the time he was not instructed as to the danger there was in crossing over the skids; that he had no knowledge in reference to the matter, or that there was any danger in going where he did. He further claims, I believe, oi1 at least some of the witnesses on the part of the plaintiff do, that at that time this part of the works was not well lighted; that while there was an electric light located some twelve feet above and five feet to one side of this trough, or possibly the hole, that the light at that time was not lighted, and that he could not see the hole, and he testifies he did not see it, had no knowledge of it, did not know the danger, and for that reason went into the danger. In addition to his testimony in reference to this you have the testimony of Raymond Brown. He testifies in reference to the existence of the hole, to the fact that it was known to him, and, as I remember his testimony, that it could be seen, and testifies that upon that occasion he was within a short distance from the point where the injury occurred, and that the light at that time was not burning, that it was dark, and other matters. He was examined quite at length, and you will remember his testimony. Mr. Olekschak, who, it appears, was stationed at the front end of these pipes that were being removed, or at the opposite end from which the plaintiff was located, was also called. His business was to catch hold of the other end of the pipe and pull it away, while the plaintiff and his helper were to push towards him. As I remember the testimony of this witness, it was to the affect that in order to push the pipe clear over it was necessary for the plaintiff to cross the skids. His testimony is reference to this, and in reference to all matters, you will remember, gentlemen. It is impossible for us to recall it, and we simply in brief now refer you to the different witnesses. Jacob Miegas wag also called on behalf of the plaintiff’. He is the witness who testified that he first went to the plaintiff after his injury and assisted in lifting him over the trough. Vincent Markowski was also called on behalf of the plaintiff, and he testifies that after the injury the hole was covered by a sheet iron board in some way, and testifies also as to other matters. Joseph Solomon was called on behalf of the plaintiff. As I remember this witness’s testimony, he was asked chiefly in reference to matters which he considered incompetent or irrelevant here, and for that reason did not answer. He is the gentleman who worked in different mills at other places. The only other witness called on behalf of the plaintiff was John Gunshaw. He is the assistant millwright. He was asked different questions, which also remained unanswered for the same reason.</p> <p>On behalf of the defendant, Mr. George H. White was first called. He has given you the dimensions of these skids, and has detailed his familiarity with these mills, as to their construction, as to whether or not this mill was in his opinion safe, or as safe as such mills usually are. Edward McLaughland was also called and gives you his version as to what occurred at the time of the employment of the plaintiff. The plaintiff testified, as we have already stated, that he received no instructions except briefly to be shown what his duties were, to assist in removing the pipe. Mr. McLaughland testifies that, in addition to showing him what his duties were, he instructed him not to cross the skids at that point, and further that he pointed. out to him the hole in the floor, in which the plaintiff afterwards was injured. Fred Nubar was also called. He testifies that, he saw Mr. McLaughland at the time he took the plaintiff to his position there, and saw him instruct him in reference to his duties, and saw him point out to the plaintiff the hole in the floor. Mr. Nubar also testifies that after Mr. McLaughland left, at the instance of Mr. McLaughland, that he went and talked to the plaintiff and instructed him, and that he also called his attention to the hole, and instructed him that he should not cross over the skids. Frank Kabriski was called on behalf of the defendant, and he testifies that he was employed in the immediate neighborhood of these rolls, and that he saw both Mc-Laughland and Nuhar instructing the plaintiff as to his duties and informing him about this hole in the floor.</p> <p>This testimony will probably be considered important by you, gentlemen, in determining whether or not the plaintiff was-guilty of contributory negligence. When the plaintiff is negligent, it is called contributory negligence. If you determine from the evidence which has been educed here that the plaintiff was informed of the danger; that the place where the injury occurred was pointed out to him, and that he was instructed not to cross over those skids ; if you find that from the evidence you should find that the plaintiff is guilty of contributory negligence ; because if he knew the fact it was dangerous to go between those bars, and with knowledge of that danger on his part, and after having been instructed not to do so, he went over, why he is guilty of contributory negligence, and he should not recover in this action. Upon this question you have the testimony, as I remember, of the plaintiff on one side, and these two witnesses on the other, their testimony being corroborated by the third witness, Kabriski. We call your attention to that as being important testimony in the case.</p> <p>Defendant’s points and answers thereto among others were as follows :</p> <p>I. Under all the evidence the verdict should bo for the defendant. Answer: Refused. [1]</p> <p>5. It appearing that plaintiff’s place was outside the skid, and therefore safe, and that no one in authority instructed him to go over ivhere he was hurt, there is no evidence of negligence on the part of defendant, and plaintiff cannot recover. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $1,907.68. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p> <p>The law does not require an employer to protect his employees against the possibility of an accident: Iron-ship Building Works v. Nuttall, 119 Pa. 149; Shaffer v. Haish, 110 Pa. 575; Faber v. Carlisle Mfg. Co., 126 Pa. 387; Augerstein v. Jones, 139 Pa. 183; Morse v. Ry. Co., 40 Minn. 465 ; Dayman v. R. R., 11.8 Pa. 508; Schultz v. Refining Co., 180 Pa. 272; Zurn v. Tetlow, 134 Pa. 213; Allison Mfg. Co. v. McCormick, 118 Pa. 519 ; Dooner v. D. & II. Canal Co., 171 Pa. 581; Bellows v. Canal & R. R., 157 Pa. 51; Kehler v. Schwenk, 144 Pa. 348.</p> <p>Plaintiff should have noticed where he was stepping. Ilis</p> <p>failure so to do, as well as his leaving his proper position, was contributory negligence on his part: Bemisch v. Roberts, 143 Pa. 1.</p> <p>What is or is not negligence under a given state of circumstances is, as a general proposition, a question peculiarly for the jury: Fisher v. Monongahela Ry., 131 Pa. 292; Bucklin v. Davidson, 155 Pa. 362; Lerch v. Bard, 153 Pa. 573; R. R. v. Jones, 128 Pa. 308; Penna. R. Co. v. Peters, 116 Pa. 206 ; Neslie v. Pass. Ry., 113 Pa. 300 ; Baker v. Gas Co., 157 Pa. 593; Pass. Ry. v. Bresmer, 97 Pa. 103.</p> <p>A positive duty rested upon the appellant company to instruct an inexperienced employee such as Smith, and explain to him the dangers incident to the place and work in which he was engaged: Rummell v. Dilworth, 111 Pa. 343; Bannon v. Lutz, 158 Pa. 166; Wagner v. Jayne Chemical Co., 147 Pa. 475; Kehler v. Schwenk, 151 Pa. 505; Fisher v. Canal Co., 153 Pa. 379; Tagg v. McGeorge, 155 Pa. 368; Ross v. Walker, 139 Pa. 48.</p> <p>What the appellant company did immediately after the injury by way of covering the hole is a proper matter for the consideration of the jury: McKee v. Bidwell, 74 Pa. 219; R. R. v. McElwee, 67 Pa. 311; R. R. v. Henderson, 51 Pa. 315; Water Co. v. Stewartson, 96 Pa. 436.</p>

Appeal, No. 264, Jan. T., 1897, by H. M. Rupley, from decree of O. C. Cumberland Co., revoking letters of administration. Appeal from register of wills. Biddle, P. J., filed the following opinion: Emanuel Neidig, an aged bachelor of Silver Spring township, died on the morning of Saturday, March 20, 1897, at the house of one of his tenants, with whom he was then making his home.

Appeal, No. 23, Oct. T., 1897, by defendant, from judgment of G. P. Armstrong Co., June Term, 1895, No. 267, on libel for divorce. Libel for divorce. The case was referred to E. C. Ross, Esq., as commissioner, wbo reported: 1. That a marriage was solemnized between the libellant Newton II. Gosser, and the respondent, Annie M. Gosser, née Grinder, on August 16, 1879. 2.

<p>Insurance — Life insurance — Statements in application as to health.</p> <p>Statements which are immaterial to the risk made in good faith, and in the belief that they are true, by an applicant for life insurance, but which are incorrect and untrue, will not avoid the policy.</p> <p>Where a life insurance company defends to a suit on a policy on the ground that the insured made untrue statements as to the condition of his health at the time he applied for the insurance, the ease is for the jury where there is a positive conflict in the evidence respecting the health of the insured at the time the policy was issued.</p>

<p>Appeal, No. 53, Oet. T., 1897, by plaintiff, from judgment of C. P. Westmoreland Co., November Term, 1895, No. 66, on verdict for defendant.</p> <p>Common law action of partition. Before McConnell, J.</p> <p>At the trial it appeared that both plaintiff and defendant were sons of John Boyer, deceased, but the family name during the lapse of years was changed from Boyer to Byers. Plaintiff claimed partition of the coal underlying a tract of land of which his father had died seized. The material portion of the will of John Boyer who died in 1835 was as follows :</p> <p>“ And as to my land in Mt. Pleasant township it is my will that the proceeds of the lands and the increase of stock be taken and applied to building a house and barn and still house on the old place, and rebuilding the barn where I live. When finished it is my will that the land be equally divided in quantity and quality,, having due regard to the timber and the stonecoal, and limestone between my sons John H. Boyer and Jacob Boyer, and I authorize my executors to make a deed of conveyance to each of my children for their land as soon as it conveniently can be done.”</p> <p>The evidence showed, and it was not denied, that in 1848 plaintiff and defendant made a parol partition, which plaintiff contended related to the surface of the land only, while defendant contended that it included both surface and coal.</p> <p>The court charged in part as follows:</p> <p>[Now, in the absence of either a written instrument making a severance of the coal from the surface, or in the absence of the acquisition of a title under the statute of limitations, I know of no way to acquire title to real estate of this kind hy a parol partition. Therefore, we say to you, that so far as this partition, or the allegation of the existence of a parol partition, that took place forty or fifty years ago is concerned, you must consider that as being a partition of a tract of land in its ordinary acceptation. You must regard the thing, as we must assume the testator regarded it, as a unit, a thing to be divided. There is no indication in the testator’s will that there was any attempt on his part to sever the coal from the surface. There is no indication, so far as I can see, from the testimony, of any attempt, by John H. and Jacob Byers, by any instrument in writing, to make out of that single estate two estates, so far as severing it horizontally is concerned. Therefore, under what we have said to you, you are required to look at the evidence that has been produced here on the subject of this partition as bearing upon that tract of land as a unit, as one estate, and not as two separate and independent estates, one in the surface and one in the coal.] [1]</p> <p>There has been a great deal of evidence introduced here in regard to the relative value of these two tracts of land. That is a mere incident to the main inquiry that you have before you. It may be possible that by reason of the increase of the va.ue of the coal from the time that this partition was made down to the present time, would make one side of that tract of land more valuable than the other, but that question is of no significance. We care nothing about that. This evidence ivas admitted for the purpose of showing what must have been obviously in the minds of these brothers when it is alleged they attempted to make partition of this land. The hills, the timber, the stone-coal, the limestone, the streams, the natural configuration of the land, its exposure to the winter winds, the natural quality of the soil; all these things were presumably in existence at the time when this alleged partition took place, and presumably were in the contemplation of the parties at that time.</p> <p>You will recall that the death of the testator, as testified to by one of the defendant’s witnesses and perhaps the plaintiff’s also, was on November 27,1885. His will was dated on October 25, 1835, and probated on January 6, 1838. Jacob Byers gives his version of the facts in this case; he says that he and John lived together until 1813 ; that the attempted division of the real estate was in 1848; that at his father's death he was seventeen, and his brother twenty-one or twenty-two; that he himself was married in 1842; that the coal was not opened at the time of this attempted division; that is, not opened at the coal mine, as it is now; that they took coal out of the bottom of the ran, and that in 1854 he and John opened the present coal bank; and that in 1857 the spring was taken, and so on.</p> <p>Now, then, there is a claim, however, on John H. Byers’ part that he has always had the right of taking out coal. Now, if this partition that I have spoken of took place, and it was the intention of the parties that it should be a complete severance indefinitely downward, so that the coal, like every other part of it would fall as the surface fell, and that dividing line was lived up to, then John H. cannot take back a thing out of that partition, a thing that was a constituent element in it. It is either a partition or it is not a partition. If it was a partition, everything that was parted must remain parted so far as effectiveness of that proceeding is concerned. It is like an “ exchange ” of lands about which we will not bother; there is an implied warranty in every common law partition, that is, as long as the parties to that partition own their respective parts there is an implied warranty of the one to the other. When the title of one of them fails, the title of the other fails with it as long as the parties are in possession of what they parted themselves. There is that warranty, so that if this seam of coal was in the land, and there had been no severance, and was part of the land, if you find a partition took place, John H. Byers cannot withdraw from that partition this seam of coal, and then claim that the partition exists as to the residue. [If that partition stands, it. must stand on both legs. If its one leg is taken away it must fall. This is either a partition or it is not. And we have said to you that independent of a writing severing that which was one estate, and making it two estates horizontally, and independent of the statute of limitations, you must consider that as a unit, and if John H. Byers exercised the rights of taking coal, you must look on that as affecting the question whether or not a partition of that unit took place or not.] [2]</p> <p>Now, then, what was the condition of things at that time? In 1848, was this coal mine as it now exists opened? Was the coal considered of any particular value at that time ? Look at it as it looked to them at that time. Before 1848 and down until 1854, wliat evidence has been introduced here to show you the rights of John H. Byers in regard to taking coal? What did he do at that time independent of what is now said ? After looking at all these things that were done at that time, as bearing upon tbis question, you will then look at the declaration of the parties in regard to it. There has been evidence introduced on that subject. John H. Byers has given his version of his claim, and Jacob has given his version. There have been witnesses called here who testified in some particulars in contradiction of these respective witnesses in that regard., All these declarations you are to consider in disposing of this question. The kind of testimony that is the most material is of the things done at the time. The most honest men in thinking about matters that transpired in the past often become confused about what the exact fact was then in comparing it with the state of affairs now. What was said and done then? If a partition took place, we do not regard it as being made out in the same way that a parol sale of land has to be made out in order to guard against the provisions of the statute of frauds. The same degree of accuracy is not essential as would be essential there. If a partition took place, and the parties receded from that partition. line, that was a confession, a mutual confession of being ousted from his former cotenant’s side of the line, and the titles of the parties commenced then, if the division was made pursu • ant to the contract. All these things in regard to what they did afterwards, how they did it, all bear on the question of how they understood it, whether or not there was a partition at that time.</p> <p>Now, then this much in regard to partition. [Then the next question would be in regard to whether or not there can be an acquisition to the title to the land, assuming that a partition was made which affected the coal, and that the partition of the coal on Jacob’s side went with the surface land on that side to Jacob, let us next look at the question of whether or not the acts that have been detailed in the witnesses’ testimony here would allow John H. to acquire title under the statute of limitations to this coal mine that Jacob says was opened in 1854.] [7]</p> <p>[If you find that there was no partition at all, and that this land remained undivided as it came to them from the will of John Boyer, then there could be a recovery of the undivided one half interest in the subject-matter of this suit. If you find that there was a partition, and tliat Jolm H. lias not acquired title under tlie statute of limitations, then you would find tliat they do not hold together and undivided the property described in the statement of claim.] [8] If you find that John II. acquired title under tlie statute of limitations for an undivided one half interest in the subject-matter of the suit, then your verdict would he that they do bold together and undivided the property described in tlie statement of claim, and tliat John holds ono undivided half thereof.</p> <p>Plaintiff’s points and the answers thereto among others were as follows:</p> <p>8. Tlie plaintiff and defendant, being tenants in common of botli surface and coal, could, if they chose, make a good parol partition of the surface alone, or tlie coal alone, or of both together. But the defendant, who sets up such a partition of the coal against the written recorded title, must take the burden of proving clearly, not only that they made a partition of the surface, but that it was intended to embrace, and actually did embrace, the underlying coal as well. Answer: That is refused. [4]</p> <p>5. The undisputed testimony in this case is that the parties many years ago agreed that the surface should be occupied and used separately, up to a line which was marked on the ground. That since that each has possessed and occupied the surface on his side of that line to the exclusion of the other; each has taken the proceeds of his own side, paid the taxes thereon, and made valuable improvements. Whether this was intended at the time as a final division or not is immaterial. Under our law these facts work a severance of the estate in common, and each can now hold the surface in severalty, and therefore it was properly left out of this case. Answer: The recital of the testimony here does not establish the proposition on which that is predi-' cated, as I recall the testimony'-, and the point is refused. There is no evidence, as I have already explained to you, sufficient to show a severance at that time, such as would make that, instead of one estate, two estates [5]</p> <p>6. As to the coal, however, we have a different state of facts. In so far as this coal was susceptible of actual physical possession, the undisputed testimony'- is that there never was any change in the possession, but that both continued to possess and to use the coal after the alleged partition just as they had done before it. True, the defendant claims that prior to 1857, this possession by the plaintiff was permissive, while since that time it has been against his will and protest. But neither the defendant, nor any other witness testifies that there was ever an ■exclusive possession of the coal by Jacob Byers. We therefore instruct you that there never was a fully executed partition of the coal, and the plaintiff must recover on his written title. Answer: That is refused for the reasons given in the general charge. [6]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>JSrrors assigned were (1-7) above instructions, quoting them.</p> <p>The plaintiff and defendant being tenants in common in the joint possession of the surface land, and in the joint possession, physical, visible and actual, of the underlying coal, which was open, had full power and a perfect right to mate, if they chose to do so, a good parol partition of the surface land only, allowing the coal to remain in common as before: McConnell v. Carey, 48 Pa. 350; 3 Leading Cases in the Am. Law of Ileal Prop. 128; Ebert v. Wood, 1 Binney, 216 ; Rider v. Maul, 46 Pa. 376; McKnight v. Bell, 135 Pa. 371; 17 Am. & Eng. Ency. of Law, 668; Snively v. Luce, 1 Watts, 69; Gratz v. Gratz, 4 Rawle, 433.</p> <p>The partition was complete as to the whole land: Calhoun v. Hays, 8 Watts & Sergeant, 132; Rider v. Maul, 46 Pa. 380 ; Susquehanna, etc., Coal Co. v. Quiet, 61 Pa. 328; Hawk v. Senseman, 6 Sergeant & Rawle, 22; Breneman v. Shroder, 21 Pa. 228; Dellaven v. Landell, 31 Pa. 126 ; Wright v. Guier, 9 Watts, 172 ; Sorber v. Willing, 10 Watts, 141; Adams v. Robinson, 6 Pa. 271; Christy’s App., 110 Pa. 538.</p> <p>The possession which holds the right of entry must not only be notorious, but adverse, hostile and exclusive, as against the owner. There must be an ouster by unequivocal acts where there has been privity of title and possession; such an act as shows that the occupant claims in his own right, and does not acknowledge the right of the other: Long v. Mast, 11 Pa. 189 ; Bannon v. Brandon, 34 Pa. 263; Lodge v. Patterson, 3 Watts, 74; Peck v. Ward, 18 Pa. 506; Sorber v. Willing, 10 Watts, 141; Martin v. Jackson, 27 Pa. 510; 15 Am. & Eng. Ency. of Law, sec. 2, p. 506; Tiedeman on Real Property, sec. 2.</p>

Appeal, No. 91, Oct. T., 1897, by do fend ant, from judgment of C. P. Westmoreland Go., Feb. T., 189G, No. 548, on verdict for plaintiff. Mitchell and Williams, JJ., dissent. Assumpsit by a depositor against a bank. Before Doty, P. J. At the trial it appeared tbat on September 19,1895, tlie plaintiff, who owned certain shares of Penna.

<p>Appeals, Nos. 134 and 135, Oct. T., 1897, by A. F. Byrnes and James Graham and Son, from order of C. P. Lawrence Co., Dec. T., 1894, No. 2, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report. Before Hazen, J.</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>—It is not always necessary that there should be an actual removal of the goods and a change of possession from hand to hand. Here from the nature of the article it could not be removed without great expense and loss, and it is not usual to remove asphalt blocks and tiles before they are sold, nor to pub them ih a warehouse for sale, on account of the expense and the damage they sustain by removal: Adams Express Co. v. Lyons, 7 W. N. C. 421.</p> <p>The title acquired by the receiver under his appointment is the title held by the Western Asphalt Block and Tile Company, and he cannot avoid the rights and equities in the property which the corporation itself could not avoid: High on Receivers, sec. 859; Mitchell v. Winslow, 2 Story, 630; Collins’s App., 107 Pa. 590; Wallace’s App., 104 Pa. 559; Garrison’s App., 2 Grant, 216; Potter v. Gilbert, 177 Pa. 169.</p> <p>An assignee for the benefit of creditors cannot defend in an action of replevin for specific chattels which had been sold by the assignor and not delivered at the time the assignee came into possession: Vandyke v. Christ, 7 W. & S. 373; Twelves v. Williams, 3 Whart. 485; Brooks v. West. Nat. Bank, 16 W. N. C. 298; Wright v. Wigton, 84 Pa. 163; Morris’s App., 88 Pa. 368.</p> <p>An equitable execution, as it is sometimes called, with reference to the possession of property in the hands of a receiver, is not an execution or attachment. It is the possession by the receiver in equity where all the rights and priorities of those claiming can be determined, and does not give any advantage in the party applying for it: Ellicott v. U. S. Ins. Co., 7 Gill (Md.), 307 ; Ellicott v. Warford, 4 Md. 80.</p> <p>A contract of pledge depends for its validity upon delivery and possession of the subject-matter: Schouler on Bailments, 167; Story on Bailments, sec. 287; 18 Am. & Eng. Eney. of Law, 597; First Nat. Bank v. Nelson, 38 Ga. 391; Story on Bailments, sec. 297; Smyth v. Craig, 3 W. & S. 14.</p> <p>The appointment of a receiver in creditor’s proceedings against an insolvent corporation has in equity an effect similar to an execution in law: Taylor’s Law of Corporations, sec. 542 • Davis v. Gray, 16 Wall. 203.</p> <p>To sustain an actual or equitable lien of pledge there must be an appropriation of the property of such a nature as to confer a complete and present right of same to the pledgee, and an entire abandonment by the pledgor of any rights to appropriate, control or dispose of it. Such contracts, where delivery is not effected, are not binding against a debtor’s assignee for benefit of creditors: Wylie’s App., 92 Pa. 196; Bank v. Gish’s Assignees, 72 Pa. 13; Kliuker’s Est., 1 Lehigh Valley Law Reporter, 196.</p> <p>The receiver, being appointed in proceedings in behalf of creditors, the corporation being insolvent, is more the representative of creditors than the assignee in insolvent proceedings, and not so much an agent of debtor for distribution: Smith on Receivers, sec. 159 ; 5 Thompson on Corporations, sec. 6950 ; Smith on Receivers, sec. 38.</p>

<p>Appeal, No. 144, Oct. T., 1897, by defendant, from decree of C. P. Jefferson Co., Sept. T., 1889, No. 1, on bill in equity.</p> <p>Bill in equity for' an account.</p> <p>The case was referred to Charles Corbet, Esq., as master, who reported in favor of dismissing the bill.</p> <p>Exceptions to the master’s report were sustained in an opinion by Clark, P. J., and a decree entered against the executor of John Keck for the amount claimed by the plaintiffs.</p> <p>The facts appear by the opinion of the Supreme Court, but it will be noticed that the opinion says the deed was for 4040 acres, while Keck speaks of the tract as containing 4080 acres. Keck thought it contained 4080 acres but later discovered his mistake and the deed was made for 4040 acres.</p> <p>Error assigned among others was the decree of the court.</p> <p>The fiduciary relation does not arise when the vendor at the time he made the purchase owed no duty to the vendee: McElhenny’s App., 61 Pa. 188.</p> <p>A court of equity has no jurisdiction in this case.</p> <p>Equity-had jurisdiction: Short v. Stevenson, 63 Pa. 95; Zahn v. Mc-Millin, 179 Pa. 146 ; Kate v. Johnston, 178 Pa. 346 ; Evans v. Goodwin, 132 Pa. 136; Edgett v. Douglass, 144 Pa. 95; Fidelity Co. v. Weitzel, 152 Pa. 502; Harrington Bros. v. Florence Oil Co., 178 Pa. 444.</p>

<p>Appeals — Practice, 8. G. — Interlocutory decree — Quashing appeal.</p> <p>Upon exceptions to tlie account of an executor involving the validity of certain payments under an arbitration provided for in the decedent’s will, the orphans’ court set aside the award of the arbitrators and ordered the selection of a new board of arbitrators, and directed that meantime the “ further consideration of the exceptions filed to the report of the auditor,” to whom the exceptions to the executor’s account had been referred “ stand over until after the filing of” the award of the new board of arbitrators. Held, that the decree of the court was not a final decree, and that an appeal from it should be quashed.</p>

<p>Appeal, No. 41, Oct. T., 1897, by defendants, from judgment of C. P. Washington Co., August Term, 1896, No. 22, on verdict for plaintiff.</p> <p>Ejectment for oil and gas under a tract of land in Cecil township. Before McIlvaine, P. J.</p> <p>The facts appear by tbe opinion of the Supreme Court and part of the charge of the court below which is as follows :</p> <p>It appeal's that on February 4, 1896, Albert Behling, the owner of this lot of ground, made a lease to Alex. Adams. The-lease sets forth that it is made for the purpose and with the exclusive right of drilling and operating for petroleum and gas, and it sets forth further that the lessee, Alex. Adams, is to commence operations on the premises within thirty days from the date of the lease, and that if he fails to commence operations within that time that the lease shall he null and void. . . .</p> <p>Now, the next thing that I wish to call your attention to is, that Albert Behling, the owner of this lot of ground, on-March 26, 1896, — about fifty days after the first lease was executed, — executed another lease to Adam A. Welsh, giving him the'exclusive right of drilling and operating'for petroleum oil and gas; in other words, gave him the same right in the tract of land that he had previously granted to Alex. Adams. . . .</p> <p>On or about June 1,1896, George Gillmor and other parties, being in possession of this lot and having drilled a well to the oil producing sand thereon, as assignees of the lessee named in the Welsh lease, Alex. Adams and T. 0. Henderson, to whom lie had assigned half of his lease brought this action of ejectment. ...</p> <p>Now, there is no dispute, as Ave have already intimated, about Mr. Behling executing the lease to Mr. Adams, but the question turns, as Ave take it, upon Avhether or not Mr. Adams and Mr. Henderson (to whom he had previously assigned a half interest in the lease) performed the covenant that required them to commence operations on the premises within thirty days; because if they did not, the moment that the clock struck the hour that completed the expiration of the thirty days they were given to commence by the terms of the lease, their rights were gone, and on June 1, or when this suit was brought, they would not have any rights of any kind in that acre of ground. Noav, the plaintiffs claim that they did perform that covenant and did commence operations, and that therefore the rights that were given them under the other covenants in this lease were not forfeited, but still belong to them. The defendants deny this.</p> <p>[Now, the plaintiffs rely upon certain acts that they allege were done under this lease by them to establish the claim that they commenced operations, -while the defendants insist that what the plaintiffs did does not constitute a commencement of operations. Now, you must take into consideration, in deciding that question, not only what was done on March 5, 1896, (which is the day on which the plaintiffs allege they did these acts and commenced operations) I say you may not only take into consideration what was done at that time, but you can take into consideration the conduct and acts of the parties previous to that time, (and after the lease was executed), and Avhat they may have done after March 5, up to the time suit was brought, and also Avhat they failed, to do, in order to determine the effect that must be given to the acts done on that day. The commencement of operations, or the commencement of anything, of course, might be a very trivial act. It has to be, because everything, be it ever so great, is accomplished by doing little things one after the other, and the commencement of the drilling of a well may be made by doing an act insignificant in itself. The commencement of the buildings for the World’s Exposition, perhaps, tvas the striking of a pick into the ground. But whether any given act is a commencement or not depends on circumstances. So in commencing operations in the drilling of a well, a very little thing may be the commencement, while acts more extended might not be. You must take all the circumstances into consideration, all the surroundings, to determine the character and effect of the act. Now, if the plaintiffs, Adams and Henderson, went upon this lot on March 5, (which was the last of the thirty days) and in good faith staked out a location for a well, showing where they wished to erect their derrick, and ordered lumber and had some of it put upon the lot, with the intention of proceeding with the work on the next day and continuously thereafter to the completion of a well, then locating the well on the ground and driving the stake and hauling the first load of lumber and delivering it upon the lot, in our opinion, would be a commencement.] [3] But the defendants claim here that what was done was not done in good faith; that it was, to use a slang expression, “ a bluff; ” that it was not followed up; that they didn’t do anything between that time and the time this suit was brought, nor between that time and the time the second lease was made; that they abandoned the prosecution of the work. Well now, if that is true, then it was not a commencement to drill a well, — it was simply putting a stake in the ground and putting some lumber there for the purpose of pretending to commence a well, and it would not be a compliance with the terms of the lease. It would be an act that is like and similar to commencing a well, but an act done in bad faith, and would not have the effect that it would have had if it had been followed up and the well completed. [Now, that brings us to another important question in this case. The plaintiffs explain this failure to do more by saying that it was the fault oí Mr. Behling; that they didn’t do anything more, but that they did what was done in good faith, and that the reason that they did not proceed on the morning of March 6, to complete- the derrick and to drill the well, and the reason they did nothing more before the second lease was made and the" defendants went into possession was because Mr. Behling would not let them, but stopped and prevented them from going on and completing the well. Now, gentlemen, if that was so that would' excuse any further performance. If you believe .what has preceded that was done in good faith and the plaintiffs were actually interfered with and prevented from doing more by Mr. Behling, and this before the thirty days were entirely expired, then they would not be responsible for not doing •more. This is an important matter for your consideration.] [4] What transpired there on March 5, when Mr. Reed brought the lumber, and what did the parties do or fail to do at that time, —that is, Mr. Henderson and Mr. Adams? Did Mr. Behling simply talk to these people, as the defendants here argue, about being mistaken as to the lot, and about not putting the lumber there? Was that all that he did? And then did Adams and Henderson take advantage of what he said as an excuse to stop doing anything further ? Did they make what he said an excuse for stopping when realty they wanted to stop ? Was there such opposition on the part of Mr. Behling that it was a fair and reasonable thing for- Adams and Henderson to do to abandon the work and not go back there the next morning or have their men go? Were there such things done there as to preArent them going on safely with this enterprise ? If there was, why then it is not in Mr. Behling’s province to say they didn’t go on, — that what they did was not enough to make a commencement. If they did what they did there in good faith, ■intending to follow it up so as to drill the Avell to completion and get the oil and gas which was the primary object of Mr. Behling in making the lease, and they were actually stopped •by Mr. Behling himself before the thirty days were up, then I say that Mr. Behling would not be in a position to set up that they had not gone on and supplemented what they had already done by finishing the well. On the other hand, if they did not put the lumber there in good faith, and merely made an excuse for not going on out of Avhat conversation there was between •Behling and Reed, — made- that an excuse for not going on, and for stopping the further prosecution of the Avork, why then what they did. do would not be a commencement; it would be, as I said before, but a bluff or an attempt to make a display of commencing when they didn’t intend to commence.</p> <p>Now, gentlemen, we intend to leave that question entirely with you, and you will take into consideration these different things that have been testified to here by the witnesses in regard to this transaction, both before and after March 5, 1896, and take into consideration what happened there that day, and what was said in regard to the matter between the parties in interest, and then determine the two'questions; first, was‘this staking out and indicating of the location, — going on the lot to indicate the location at which the well was to be drilled and the placing of the lumber upon the lot, — was that done in good faith with the intention of proceeding the next day with the Avork on to completion? And second, was Mr. Behling responsible for the stopping of the work; did ho so interfere Avith Avhat Avas done there that day as to justify Mr. Henderson and Adams in abandoning it the next morning, or did they take Avhat was done there and Avhat Avas said as an excuse to do what they intended to do already, — simply make an effort at commencement and then stop. N ow, gentlemen, we leave the question Avith you. [If you believe, as I said before, that these men started this work in good faith, intending to follow it up and drill the well to completion, and that they were stopped by Mr. Behling who owned the land, then Mr. Behling would be responsible for their not going on, and they would be entitled to recover; for these defendants, taking under him, and taking only the title they got from him, stand on no higher ground than he would.] [5]</p> <p>Defendant’s points and answers thereto were as follows:</p> <p>2. Inasmuch as the lease for oil and gas purposes, dated February 4,1896, from Behling to Adams, Avas not followed by the taking of an actual and substantial possession of the land leased, by either Adams or his assignee Henderson, the verdict must be for the defendants. Answer: That is refused, subject to what we have said in our general charge. [6]</p> <p>8. There being no legal evidence that the defendant, the Forest Oil Company, has at any time been in possession of the premises in dispute, there can be no verdict against the Forest Oil Company. Answer: That point is refused. That is, we ré'fuSe' to give-you binding instructions. That is a question for the jury under the evidence, and we think there is enough evidence to submit that question to the jury. If this company by' itself, or by its agents, were not in possession when this suit was brought, then the point is affirmed. [2]</p> <p>4. On the whole case, the verdict must be for the defendants. Answer: Refused. [7]</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>Errors assigned were (2-7) above instructions, quoting them.</p> <p>-The plaintiff in order to recover in ejectment must establish the possession of defendant: McCanna v. Johnston, 19 Pa. 434 ; Helfenstein v. Leonard, 50 Pa. 461; Mclntire v. Wing, 113 Pa. 67.</p> <p>The right of forfeiture was distinctly reserved. It was the right and duty of the landlord to exei’cise the right promptly, and there was no equity in the plaintiffs to prevent the remedy of forfeiture in good conscience. There was no evidence of unlawful 'eviction or deforcement to submit to the jury.</p> <p>The law is now well settled that such oil and gas lease as the one from Behling to Adams does not grant an estate in the land: Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173; Barnhart v. Lockwood, 152 Pa. 82; Venture v. Fret-ts, 152 Pa. 451-;' Sennett v. Bucher, 3 P. & W. 392.</p>

<p>Appeal, No. 42, Oct. T., 1897, by First National Bank of Indiana, from judgment of C. P. Indiana Co., dismissing exceptions to confirmation of account.</p> <p>Exceptions to confirmation oE account of assignee of creditors.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to the confirmation of the assignee’s account.</p> <p>When a trustee sells to himself, directly or indirectly, the sale will be set aside, or the. trustee held accountable for the proceeds, at the instance of the cestui que trust: Lazarus v. Bryson, 3 Binn. 54; Chronistcr v. Bushey, 7 W. & S. 152; Webb v. Dietrich, 7 W. & S. 401; Beeson v. Beeson, 9 Pa. 279; Shuman’s App., 27 Pa. 64; Rich v. Black & Baird, 173 Pa. 92; Taylor v. Haskell, 178 Pa. 106.</p> <p>cited Dyott’s App., 2 W. & S. 557 ; Kutz’s App., 40 Pa. 90.</p>

<p>Appeal, No. 115, Oct. T., 1897, by plaintiff, from judgment of C. P. Butler Co., March T., 1895, No. 34, on case tried by tlie court without a jury.</p> <p>Ejectment for oil and gas in a tract of land in Middlesex township.</p> <p>The case was tried by Greer, P. J., without a jury.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned among others was in entering judgment for plaintiff.</p> <p>cited Farmers’ Oil Co. y. Phillips, 179 Pa. 175; Building Ass’n v. Hetzel, 103 Pa. 507; Weaver v. Cone, 174 Pa. 104.</p> <p>cited Barnhart v. Lockwood, 152 Pa. 82; Venture Oil Co. v. Fretts, 152 Pa. 45G; McNisli v. Stone, 152 Pa. 457; Eichman v. Hersker, 170 Pa. 410.</p>

<p>Insurance — Life insurance — Application attached to policy — Act of May 11, 1881.</p> <p>In an action upon a policy of life insurance where it appears that the medical examiner’s report is made a part of the application, but it is not contained in the copy of the application attached to the policy, the application is not attached to the policy within the meaning of tho Act of May 11, 1881, P. L. 20, and is not admissible in evidence.</p> <p>Insurance — Life insurance — Suicide.</p> <p>Where a policy of life insurance contains no provision, stipulation or condition as to suicide, the policy will not. if the insured commits suicide, be avoided as against the wife of the insured, who is the nominated beneficiary.</p>

<p>Negligence — Pipe line— Contributory negligence — Highway—Pro%imati,_ cause — Wright of horse — Evidence—Province of court and jury.</p> <p>In ail action against a natural gas company to recover damages for personal injuries, it appeared that while plaintiff was driving in a one horse two wheeled cart along a highway which he traveled almost daily, the right wheel struck and scraped a two inch iron pipe, part of defendant’s feed line at the side of the road. The mare which he was driving took fright, jumped to one side and kicked over the front of the cart, throwing plaintiff backward out of the cart and seriously injuring him. At the point of the accident a cut through a ridge at right angles to the road had been made for the road bed, which last, at the surface or wagon track, was eight feet six inches wide. The gauge of plaintiff’s cart wheels was five feet two inches. The defendant had laid its pipe on the bank above the cut, (dose to a post and rail fence, within about two feet horizontally from the track on the highway. Either from the effect of changes of the weather on iron, or by physical force, the pipe at this point had been moved from its original position and was thrown in a curve out from the fence and down into the cut, so as to be over on the wagon track about, a foot. It was shown that this had been the situation of the pipe for at least some weeks and, perhaps, months before the accident. Held, (1) that the question of defendant’s negligence and of plaintiff’s contributory negligence was for the jury; (2) that it was proper to admit evidence that sonic time prior to the accident another horse of quiet temper had been frightened at the noise made by a wagon wheel scraping on the pipe; (3) that it was proper to admit evidencie that the pipe had been seen to lie out of place for a long time, by an ordinary traveler, and until two or three weeks before the accident; (4) that it was proper to permit the plaintiff to testify that up to the time of his injury he had no knowledge of any other person coming into collision with the pipe.</p> <p>In an accident case where the defendant alleges that the mare which had taken fright and caused the injury was a vicious animal, and that a former owner who had reared her had not used her, the plaintiff may show iu rebuttal that the reason the mare had not been used was because her owner had so many horses that he had not work for all of them.</p>

<p>Appeal, No. 73, Oct. T., 1897, by defendants, from judgment oí C. P. Washington County, May Term, 1896, No. 122,'on verdict for plaintiff.</p> <p>Seire facias sur mortgage. Before Taylob, J.</p> <p>At the trial it appeared that J. T. Fredericks died on July 21,</p> <p>1886, indebted to Margaret Hemphill upon two promissory notes not under seal, for $1,000 eacb. One of the notes was dated April 1, 1884, at twelve months, and the other September 1, 1885, at one year. These were the only debts of the testator. No suit was ever brought or judgment obtained on the notes.</p> <p>Testator directed by his will, inter alia, as follows :</p> <p>“Second. I direct that all my honest debts.be paid as soon after my decease as convenient.</p> <p>“ Third. ... I further direct that all my real and personal property be sold and converted into money except my household goods my wife Mary desires for her own use, excepting my library, which I direct shall be equally divided between my three sons.</p> <p>“I hereby.grant unto my executors the term of five years in Avhich to make sale of my estate as aforesaid, using said time as in the judgment of my executors and family may be deemed best in the interest of my estate. . . .”</p> <p>Testator left to survive him a widow and four children. On March 1, 1895, under an order of the orphans’ court, the mortgage in suit was executed by the executor of the ivill of J. T. Fredericks to secure the notes given to Margaret Hemphill. There was evidence that interest had been paid upon the notes by the executor with the knowledge and consent of the widow and children within six years of the date of the mortgage.</p> <p>Two of the children, however, John B. and David P., were minors at the time of the alleged knowledge and consent, and after they reached their majority on December 15, 1894, they conveyed their interest to W. H. Fredericks, one of the appellants.</p> <p>The court charged in part as follows :</p> <p>On July 21,1886, the Rev. J. T. Fredericks, of Burgettstown, in this countjq died seized of some real estate which has been described in your hearing. He left a will, and to survive him a widow and four children. In his will he nominated, constituted and áppointed one D. M. Pry the sole executor thereof, and the will has been read in your hearing. One of the provisions of it .was, that his executor therein named had five years in which to settle up his estate, either by the sale of his property, or in any manner that would be a final settlement of ic according to law. We take that provision of the will to mean this, that for the period of five years after Mr. Fredericks’ death no one could force the executor to file an account or settle his estate; a.nd nothing was done by way of a settlement except the payment of the funeral expenses, perhaps, and some little indebtedness that existed, during that five years, and the reason was given to you by Mr. Pry upon the stand that during that period and afterwards, owing to the depressed condition of the real estate market, it was deemed best by all parties concerned, that is, the widow, who then lived, and the four children, in connection with the sole and only creditor of the estate at that time, Mr. Hemphill, the plaintiff here, that the period given by Mr. Fredericks in his will to his executor to settle his estate should he extended after the expiration of the five years, and that the plaintiff would not demand payment of his claim. That is, the plaintiff in this suit, Mr. Hemphill, who then, it is shown, had two notes given by Rev. J. T. Fredericks, which were given by Mr. Fredericks in liis lifetime (and the correctness of that is not denied in this case), was the sole and only creditor of the estate at the time that this five year period expired; that it was acceptable to the heirs and the widow, and to Mr. Hemphill, who did not need his money except the interest, that his notes should still continue unpaid, there being no personal assets on hand to discharge the debt, and none of this land, which wc hold by law, under the will (having passed upon that before) was a conversion, — that none of this land should be sold to discharge this debt of Mr. Hemphill’s, owing, as Mr. Pry says, to the depressed condition of the market, and that he would not enforce payment of the principal at that time, and all he desired was the interest payable on these notes as it became due ; that the widow and all the heirs, Mr. Pry says, in connection with himself, agreed to this arrangement for these reasons, of weight to both parties, and that Mr. Hemphill, who was the creditor, also agreed to it. The recollection of the court is, — but that is one question of fact, gentlemen, for you to find from the evidence, — that Mr. Pry said that he had a conversation with various members of the family of Mr. Fredericks, the widow and children, at different times in person, and those of the children with whom he did not talk in person, he communicated with by persons and letters about it, and had received word from them that this arrangement was satisfactory to them, and that no property should be sold, and that Mr. Hemphill’s debt was to continue, rather than sell land, by the payment of the annual interest as it became due. That was done up until March 1, 1895,1 believe, when this debt was merged into the mortgage by Mr. Pry, the executor, coming into this court on petition and asking leave of the court at that time to mortgage this land for the payment of Mr. Hemphill’s debt of 12,000; the court granted leave to the executor to do that, and this land, a portion of it, such as was necessary, was mortgaged under the direction of the court for the purpose of the executor receiving the money and paying off this indebtedness of the plaintiff. Of course exceptions were taken by the counsel for the defense here as to the jurisdiction of the court to authorize this mortgage, as you have heard here, but that is purely a question of law for the court with which the jury has nothing to do. [The court passed upon that at a former trial and has taken the position that the act of 1834, under which the'defendants in this case claim that the executor had no authority, does not apply to this case under the facts of this case; but a question for your determination is, whether or not you believe the statute of limitations pleaded here (which is a question of fact and must be found by the jury) would operate as a bar to the recovery of the plaintiff for the amount of his unpaid mortgage with the interest to this date.] [13]</p> <p>Now, the first indebtedness to the plaintiff existed by these two notes which have been described in your hearing, and offered in evidence here, both of which are shown not to be under Seal; they are old notes, — they were given by Mr. Fredericks in his lifetime: that they were not barred by the statute of limitations at the time of the maker’s death, and that they were valid, subsisting indebtedness at that time against his estate, and have never been paid except by this mortgage now sued upon, we do not understand to be gainsaid; but after his death the statute of limitations would begin to run against them, under the act of 1713, I believe it is, which bars recovery upon evidences of indebtedness of this kind at the end of six years, if no payments were made on them, or either of them, or no new promise to.pay made to take them out of the statute of limitations. The notes as they stand themselves on the face of each, without any answer to them, and as the defense have introduced them in evidence, would be barred by tlie statute of limitations before this mortgage which took them up, was given; but, gentlemen, Mr. Pry, the executor, and Mr. Hemphill, the plaintiff in this suit, both witnesses in the case, say that the interest was paid on them each year, I think, as it fell due, after Mr. Fredericks’ death, and Mr Hemphill says that he received the interest from the executor, and it was paid and received under this arrangement or agreement that was made with the widow and himself and the heirs in the manner in which Mr. Pry testified it was made, — if you find that to be the fact, — that the interest was paid on both of these notes up until March 1, 1895, when Mr. Pry, as executor, made his application to this court to sell; that the creditor agreed to wait if they paid the interest on these notes, and they agreed to pay the interest and actually did pay it, — if you find that to be the facts in the case, as testified to, then the bar of tbe statute has been tolled by tbe payment of the interest upon these notes to tbe executor, and by him to the creditor of tlie estate, i f yon further find it was under an arrangement or agreement with the widow and heirs, including all of them and all the parties in interest that had any right or interest in this estate.] [14]</p> <p>Now, one of these defendants here introduced an article of agreement in evidence by wliicb lie takes tbe interest, by purchase, of two of these heirs. There is some reference made in that to this llémpbill indebtedness, perhaps not the full amount of it—</p> <p>Defendants’ counsel: That is a different judgment, your honor.</p> <p>By the Court: I may not remember as to that, but I beard it read as the Hemphill indebtedness, and it appears that it is another Hemphill, not the plaintiff, referred to, and you will disregard that, gentlemen of tlie jury; the court’s impression was that it referred to this indebtedness ; but aside from that, tlie executor at that time had not finally settled the estate. W. H. Fredericks claims that he lias an interest in this mortgaged real estate, having agreed to purchase the interest of two of tlie boys, and is one of the defendants here resisting the collection of this mortgage. When lie contemplated purchasing an interest in the Fredericks’ estate it was incumbent upon bim to know what tbe condition of the estate then unsettled was, and if he bought it without making an investigation, and there were unpaid, valid, legal claims against tlie estate, claims which the law at that time recognized as being iu force, be would take it subject to any burden tliat was upon it. Tlie mere fact that one of the defendants liere on the record, by his own seeking, had acquired an interest in this property, if the law gave Mr. Hemphill his right to recover that which is admitted to be owing to him, and which it is sought to avoid the payment of because of some interposition of an outside party, — he would be chargeable with notice under the law. But this is not a question to be determined by you, but one of law which the counsel for defendant will submit to the court; but we might as well say here on this point, that purchasers of aii interest of an heir stand in the shoes of the heir whose interest he has purchased, and the rights of a creditor of the estate, under any binding agreement with the executor and heirs or dévisees, cannot be prejudiced by the subsequent sale by one or more of the heirs or devisees of their 'interest in the estate.</p> <p>We think the questions here for you are, the effect, if any, of the statute of limitations and this agreement; it being admitted by counsel that the only question for you to determine is upon this question of the statute of limitations, — was this arrangement that Mr. Pry testifies was made by the widow and heirs and himself with tlie plaintiff, by which this interest was received on this Hemphill indebtedness and paid over to him, —was it a binding, valid arrangement entered into by all of 'them, that they all had knowledge of it and agreed to it? If you find tliat to be the fact, then the court would be of the opinion that this plaintiff ought to have his money, — what is due to him, and so we think you would be of the same opinion. If you find, however, that no such arrangement was entered into, ■and Mr. Pry was acting solely on his own behalf in the matter, without having consulted the heirs and widow, or they bad no knowledge of it, and they are protesting against it, then your verdict wouLd be the other way, — for the defendants. But we say to you if you find these facts to be in existence at the time these payments were made on these notes, on this indebtedness, and that they were received up until the 1st of March, 1895, when the mortgage was given, and the mortgage took the place ■ of these notes, why this bar of the statute of limitations is removed, if it .ever began to run under the circumstances of this case.' And with that, we leave the case with you, with the instruction that the burden is upon the plaintiff to make out his case by a preponderance of the evidence, before he can recover a verdict at your hands.</p> <p>The court refused binding instructions for defendant. [12]</p> <p>Verdict and judgment for plaintiff for $>2,368.65. Defendants appealed.</p> <p>Errors assigned among others were (12-14) above instructions, quoting them.</p> <p>The notes were barred because action was not commenced upon them within six years after the cause of action upon them arose: Claghorn’s Est., 181 Pa. 600; Keener v. Zartman, 144 Pa. 179; Clark v. Maguire, 35 Pa. 259.</p> <p>The notes were barred because suit was not commenced within five years after the death of the decedent. The reason lying at the foundation of the decisions that the act of 1834 does not apply when the testator directs his land to be sold for the payment of debts is that there is an express trust in the executor as trustee for the payment of those holding debts against the estate, and no statute of limitations applies against the trust: Agnew v. Fetterman, 4 Pa. 56; Alexander v. McMurry, 8 Watts, 504; Steel v. Henry, 9 Watts, 523; Hall v. Boyd, 6 Pa. 267; Baldy v. Brady, 15 Pa. 103; Buehlor v. Buffington, 43 Pa. 278; Trinity Church v. Watson, 50 Pa. 518; McCandless’s Est., 61 Pa. 9; Buffington v. R. R., 74 Pa. 162; Oliver’s App., 101 Pa. 299; Yorks’s App., 110 Pa. 69; Seitzinger’s App., 170 Pa. 531.</p> <p>The proceeding to mortgage was irregular and void, because notice was neither required by the court to be given to the widow or purchaser, nor was the mortgage given to raise money to pay the debt, but only for the purpose of substituting it for the barred notes.</p> <p>Interest was paid on the first note after April 1, 1891, and on the second note after September 1, 1892; the payments of interest upon each note being to March 1, 1895, the date of the mortgage in suit. No more unequivocal acknowledgment of the validity of the notes could have been made: Burr v. Burr, 26 Pa. 284; Barclay’s App., 64 Pa. 70.</p> <p>Mr. Pry, the executor, knew that these notes were just claims against his testator’s estate, and the execution of his duties did not require him to oppose their payment: Woods v. Irwin, 141 Pa. 295; Ritter’s App., 23 Pa. 95; Fritz v. Thomas, 1 Wharton, 66; McFarland’s Est., 4 Pa. 149; Smith y. Porter, 1 Binney, 209; Steel v. Steel, 12 Pa. 64.</p> <p>The cases on the subject, from Alexander y. McMurry, 8 Watts, 504, to Seitzinger’s App., 170 Pa. 531, all hold that ■where it is obvious that a testator did not intend his real estate to reach his beneficiaries in the shape of realty itself, but rather in the shape of the proceeds of a conversion of it into money, the requirements of section 24, of the act of February 24, 1834, are inapplicable: McWilliams’s App., 117 Pa. 111.</p>

Appeal, No. 78, 0ct. T. 1897, by defendants, from judgment of O. P. Butler/Co., Sept. T., Í89^x No. 73, on verdict for plaintiff. Ejectment for two lots in Evans City. Before Greer, P. J. Tlie facte appear by the opinion of the Supreme court.

Appeal, No. 121, Oct. T., 1897, by defendant, from judgment of C. P. Venango Co., Aug. T., 1894, No. 72, on verdict for plaintiff. Trespass for personal injuries. Before Criswell, P. J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,150. Defendant appealed.

<p>[Marked to be reported.]</p> <p>Taxation — Local taxation — •Exemption—Railroads—Repair shops.</p> <p>The property of a railroad company is exempt from taxation for local purposes, only when it is indispensably necessary to the operation of the railroad as such.</p> <p>The machine shops of a railroad company used exclusively in repairing and restoring the cars and locomotives of the company, and not for original construction, are exempt from taxation for local purposes; but if used for construction they are subject to local taxation. ■</p> <p>The case of Berks County v. East Penna. Railroad Co., 1 Walker, 428, so far as it holds that shops operated for purposes of repairs only are subject to local taxation is distinctly overruled.</p>

Appeal, No. 151, Oct. T., 1897, by plaintiffs, from order of C. P. Westmoreland Co., Nov. T., 1896, No. 167, refusing to take off nonsuit. Trespass to recover damages for the death of plaintiff’s son. Before McConnell, J. At the trial it appeared that on March 19, 1896, Alexander Johnston, plaintiffs’ son, aged eighteen years, was killed in defendant’s coal mine, where he was employed as a miner.

<p>Divorce — Marriage—Foreign marriage— Conflict of law — Act of March 10, 1815, 6 Sm. L. 288.</p> <p>Where a husband, after being divorced in Pennsylvania from his wife on the ground of adultery with a woman domiciled in Pennsylvania, goes into a state whose laws do not forbid marriage with a paramour, and there marries his paramour, and immediately returns to Pennsylvania where he and she live and cohabit together as man and wife until his death, she is not entitled to letters of administration, if the first wife survives.</p>

<p>Negligence — Railroads—Death—Evidence.</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband, a verdict for the defendant is properly directed where the evidence shows that the deceased, although intoxicated, but not in a helpless condition of intoxication, was carried beyond the station where he had intended to alight, just after dark in the evening; that the conductor, knowing where he wanted to alight, stopped the train shortly after it left the station, assisted him to alight and pointed out' to him the station which had been passed; that the place where lie-got oif tlie ear was exceedingly dangerous; that he reached the station in safety, and passed eleven hundred feet beyond it, where his body was found about four or five o’clock the next morning, on the line of another railroad company ; that he had been dead about an hour when found; and the injuries to his body showed that death must have followed very soon after they were received.</p>

Appeal, No. 70, Oct. T., 1897, by Caroline Becker et al., from decree of O. C. Washington Co., Aug. T., 1896, No. 24, dismissing exceptions to auditor’s report. Exceptions to auditor’s report. The facts appear by the opinion of the Supreme Court. Error assigned among others was in dismissing exceptions to auditor’s report.

<p>Executors and administrators — Surcharge—Interest on deposits.</p> <p>The relation between a bank and its depositor is that of debtor and creditor. The depositor has no right to an account from the bank of the use to which it put his deposit, or the profits accruing from its use.</p> <p>An administrator who withdraws funds under his control from a bank which was paying interest on balances, and deposits them in his own bank is chargeable with such rate of interest as he could reasonably have secured from the bank from which he withdrew the funds, or from other reputable banks in the same region for the same deposit.</p> <p>When a sale of real estate was really effected by a guardian, in aid of which some services were rendered by an administrator, the latter is not entitled to charge a commission upon the purchase money, as compensation for his services.</p>