Volume 184 — Pennsylvania State Reports

<p> Corporations—Manufacturing corporations—Preference to officers. </p> <p>A corporation, the same as an individual, may prefer creditors, but if the preferred creditor is an officer of the corporation the burden is on him to show that the preference was in all respects fair and conscionable, and that it was not collusive for the mere purpose of preference.</p> <p>A manufacturing corporation whose directors and treasurer know it to be heavily in debt, but do not believe it to be insolvent, may confess a judgment to its treasurer for borrowed money, which was absolutely necessary to pay wages and freight bills, and without which the works of the company would have been closed.</p> <p> Corporations—Ileceivers—Preferences—Judgments. </p> <p>Where a manufacturing corporation has been decreed insolvent, and a receiver has taken possession of its property, the status of all creditors is fixed as of the date of the appointment of the receiver, and judgments recovered after the appointment of the receiver, whether entered by leave of court or not, are not liens on the receivership fund, and are not entitled to any preference.</p> <p>The treasurer of a private manufacturing corporation advanced money to the company which was absolutely necessary to pay wages and freight bills in order to keep the works in operation, upon the promise and agreement of the directors of the company to give him judgment notes to secure him. The company refused to give the notes, and subsequently, upon a stockholders’ and creditors’ bill, the company was declared insolvent, and a receiver was appointed. After the appointment of a receiver, the treasurer filed a bill against the company as sole defendant, alleging the above facts, which were admitted by the company, upon which the court below entered a cautionary judgment against the company, and decreed that assets to the amount of the judgment should be set aside to await the event in the bill in equity. Held, (1) that the court had no authority to enter the cautionary judgment; (2) that under the facts alleged in the treasurer’s bill, the treasurer had no equity which entitled him to a preference over creditors who had no lien at the date of the appointment of a receiver; (8) that the facts being admitted, the treasurer’s claim, should have been adjudicated in distributing the receivers’ fund, and the court should not have set aside a portion of the fund to await the final decision upon the treasurer’s bill to compel specific performance.</p>

Appeal, No. 152, Oct. T., 1897, by S. R. Smythe & Co., from decree of C. P. Westmoreland Co., No. 265, on bill in equity. Bill in equity for a receiver. The facts appear by the opinion of the Supreme Court. Error assigned was decree of the court, and in deciding that the mechanic’s lien of appellants was not a valid lien against the fund.

<p>Appeal, No. 156, Oct. T., 1897, by George Cowan, from decree of C. P. Westmoreland Co., No. 265, on bill in equity.</p> <p>Bill in equity for a receiver.</p>

Appeal, No. 6, Oct. T., 1897, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1895, No. 557, on verdict for plaintiff;. Green, Williams and Dean, JJ. dissent. Trespass for personal injuries. Before Porter, J. At the trial, it appeared that on November 28, 1894, about noon, plaintiff was driving a wagon on East Ohio street, in the city of Allegheny, on defendant’s east bound track.

<p>Appeal, No. 56, Oct. T., 1897, by John Kalbfell, from decree of O. C. Allegheny Co., April T., 1896, No. 67, refusing a rehearing.</p> <p>Petition by an executor to have the decree upon his exceptions to his account reopened to enable him to submit further evidence.</p> <p>It was alleged by the appellee that the executor was in a position to know the condition of the firm at his father’s death, and the manner in which the business of the firm was carried on afterwards by the surviving partner, and he should not have permitted the surviving partner to buy new goods and conduct the business from the date of decedent’s death, June 19, 1894, to October 3, 1894, the time when the executor filed his bill against the surviving partner for the appointment of a receiver.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned among others was (7) refusal to grant a rehearing.</p>

<p>■ Pipe line—Removal of pipe—Easement—Eminent domain—Act of May 29, 1885.</p> <p>A pipe line company engaged in the production and transportation of natural gas, which has buried its pipe under the provisions of the Act of May 29, 1885, P. L. 29, is under no obligation to let it remain indefinitely, but it has a right to abandon the easement which is acquired under the right of" eminent domain and" remove the pipe when its interests require it.</p> <p>Pipe line—Removal of pipe—Measure of damages—Act of May 29, 1885.</p> <p>Where a pipe line company removes pipe which it has buried under the land of another, by proceedings under the Act of May 29, 1885, P. L. 29, it is the duty of the company to remove the pipes at the time and in the manner least harmful to the landowner; to fill the trench so as substantially to restore the surface of the land, and to make compensation for any actual injury to growing grain or grass, and for any substantial injury to the turf, beyond the mere opening and filling of the trench in which the pipe lay.</p> <p>The measure of the plaintiff’s damage is, therefore, the amount of injury done him not strictly necessary to the prudent and careful removal Of the pipes.</p>

<p>Appeal, No. 76, Oct. T., 1897, by defendant, from judgment of 0. P. No. 2, Allegheny Go., April T., 1897, No. 705, on case stated.</p> <p>Case stated to determine the marketable title to real estate.</p> <p>The facts and allegations in the case stated sufficiently appear in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Appeal, No. 75, Oct. T., 1897, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1895, No. 572, on verdict for plaintiff.</p> <p>Assumpsit for breach of contract. Before Slagle, J.</p> <p>At the trial it appeared that under the terms of the contract between the parties, the plaintiff was made the exclusive agent for handling the defendant’s safety valves, gauges, etc., in the territory included within the boundary lines drawn between Erie, Pa., on the north; Altoona, Pa., on the east; Cumberland, Md., on the south, and Columbus, O., on the west, for a period of three years, from June 1, 1894; and was to receive a commission of 10 per centum on all goods sold, whether the orders, within the specified territory, came from the plaintiff or direct from boiler makers or contractors. A reasonable number of goods were to be sent on consignment. All sales from consignments were to be reported at the end o£ each month, and payments for all goods sold were to be made within ninety days from the 20th of each month in which the sales were made.</p> <p>The plaintiff continued to act as the agent of the defendant, under this agreement, until November 1,1895, when the defendant revoked the contract, for the reason that plaintiff had, among other things, failed to report sales from consignments at the end of each month, and make payment for all goods sold within ninety days from the 20th of each month in which the sales were made.</p> <p>Defendant’s points and answers thereto among others were as follows:</p> <p>1. Under all the evidence the verdict must be for the defendant. Answer: Refused. [1]</p> <p>3. The measure of damages is the amount of commissions (10 per cent) plaintiff would be entitled to receive, under the contract in evidence, on such sales as are proved to have been made or consummated, and also on such sales negotiated, at the time of the alleged breach, so far that it could be ascertained with certainty that they would be completed, and the amoiint thereof. Mere expectations to sell, without definite assurances of intention to purchase, and opinions as to what sales could or would probably have been made are speculative and cannot be taken into consideration by the jury in estimating the damages sustained by plaintiff. Answer: This is refused as a whole. The first part of it in reference to special sales is not the rule of damages in my judgment. “Mere expectations to sell, with- • out definite assurance of intention to purchase, and opinions as to what sales could or would probably have been made are speculative and cannot be taken into consideration by the jury in estimating the damages sustained by plaintiff.” This is affirmed so far as it is a rule for estimating the damages, but what may appear in the evidence as probable may be considered in estimating the value of the contract. [2]</p> <p>4. There is no evidence in the case as to the value of the business or contract at the time of the alleged breach. The value of the contract, based upon the volume of business before and after the alleged breach, is speculative. Answer: This is refused. [8]</p> <p>The court charged in part as follows:</p> <p>[Unlike ordinary business, the amount of profit on it is fixed; upon whatever business it did it was to have 10 per cent compensation. Now, that is not like the sale of ordinary goods. In an ordinary business it depends upon sales, upon the point of manufacture, and upon the profit on the goods sold, whether bought or manufactured, and those things are necessarily indefinite. But here the amount of profit is fixed by the contract at 10 per cent, and the only element of uncertainty in the matter would be the amount of business, which would likely be transacted.] [4]</p> <p>Verdict and judgment for plaintiff for $3,500. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p> Wills—Issue devisavit vel non—Testamentary capacity—Belevancy and order of testimony—Practice, G. P. </p> <p>In tlio trial of an issue devisavit vel non, the passing upon the relevancy of evidence, the order of its admission, the mode of examining witnesses, etc., must be left very much to the sound discretion of the trial judge, and it is incumbent on a party complaining, not only to point out technical error, but also to satisfy the appellate court that he or she was prejudiced thereby.</p> <p> Wills—Issue devisavit vel non—Evidence—Opinions of witnesses. </p> <p>On the trial of an issue devisavit vel non, it is not error for the court to charge that in determining testamentary capacity, the facts as to business transactions of the testator are of much more value than the opinions of witnesses.</p> <p> Wills—Undue influence—Evidence—Testamentary capacity. </p> <p>Where the making and executing of an alleged will are not denied, testamentary capacity and the absence of undue influence will be presumed, and such presumption will stand until overcome by the weight of testimony.</p> <p>Where there is no evidence that a beneficiary in a will solicited the bequest himself, or wrote the will or procured it to be written, or that his advice was sought or taken, the existence of intimate friendly relations between the testator and the beneficiaiy, such as living witli him, nursing him and managing his business, do not import undue influence, or shift the burden of proof from those who allege it.</p>

<p>Appeal, No. 45, Oct. T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny County, April T., 1894, No. 340, on verdict for plaintiffs.</p> <p>Assumpsit to recover the price of pig iron sold and alleged to have been accepted by the defendant. Before Magee, J.</p> <p>The court charged as follows:</p> <p>This is an action of assumpsit brought February 6, 1894, by tbe plaintiffs, to recover from tbe defendant tbe sum of $5,454.52, with interest from November 1, 1890, for three hundred and forty tons of Sharpsville high sulphur Bessemer pig iron, at the price of $16.00 per ton, f. o. b. cars at Cochran station, Pa., terms of payment to be one half on tbe 10th and one half on tbe 25th of the month succeeding delivery, the iron to contain silicon not over two per cent (but that is not important because there is no dispute about tbe silicon) and sulphur not over .120. The following is a copy of the writing upon which the parties to this action were dealing with one another in the sale and purchase of the iron in dispute, connected also with some other iron not in dispute:</p> <p>“ Sale memorandum. Nimick & Co., pig iron and blooms, 96 Water street, Pittsburgh, Pa., October 18,1890. Allegheny Bessemer Steel Co., Pittsburgh, Pa. Dear Sir:—We have entered your order for 600 tons, more or less, Sharpsville high sulphur pig iron, delivery immediately. Price $16 per ton, f. o. b'. Cochran, Pa. Terms, cash 10th and \ 25th of the month succeeding delivery, to be shipped to Cochran, Pa., subject to possible delay from accidents, strikes or other unavoidable causes,” and signed “Yours truly, Nimick & Co., per Scott.” That was the witness Scott who was examined in the case. “In addition to the above, we will ship to you the balance o£ same kind of iron due on our contract with William Clark’s Sons & Co., about 250 tons, silicon not over 2 per cent., sulphur not over .120 per cent.”</p> <p>Nimick & Company were metal brokers, and were acting as the agents of the plaintiffs in the sale. The Sharpsville Furnace Company, the plaintiff, acting upon the order of their agent, shipped to the Allegheny Bessemer Steel Company the iron called for by the order, at least there is no dispute or evidence that it was not so forwarded. A portion of the iron shipped between October 21 and 31, 1890, both days inclusive, as testified to by Mr. Grey, amounting to three hundred and forty tons, and contained in thirteen cars, the numbers of which are : 3087, .9149, 3912, 9058, 1029, 324, 6527, 7754, 7658, 1620, 678,1296, and 816, has not been paid for and has given rise to this action. I give these car numbers because the analyses are all connected with the numbers of the ears.</p> <p>[On November 25,1890, the day designated for the full payment for all the metal shipped on the order, a partial payment having been made on November 10, the defendant company declined to pay for the metal in dispute, on the ground, as I assume from the evidence presented, that it was defective in quality and did not come up to the specifications upon which the same had been ordered, and was wholly unfit to be used in the manufacture of steel rails, for which purpose the defendant used iron, and which was known to the plaintiffs. I leave to you the question of whether that refusal was presented prior to the bringing of this suit. If that fact becomes material, you will determine when that notification was given to either Nimick & Company or the Sharpsville Furnace Company.] [1] The defendant says tliat it gave notice on the 25th to Nimick & Company of the rejection of the iron in dispute, for the reasons stated, and made settlement for the rest of the iron furnished. I am trying to give you what are the undisputed facts in the case. It is for you to determine what effect they may have upon the construction of their contract. This state of facts raises the main issue to be tried in this action—although there are other issues—whether it was accepted, or whether it was rejected, or whether it was rejected in time, or under proper conditions, are other questions ; but the main question that has been raised with reference to this suit is, was the iron in dispute of the quality contracted for and delivered in cars at Cochran station ? There is no dispute of the fact that the quantity of iron was delivered on cars at Cochran station, so that the principal issue, in my judgment, to be determined, is that of the compliance with the terms of the contract, or whether under the contract and the circumstances connected therewith, the defendant company had the right to reject the iron for the reasons assigned, that it was not of the quality contracted for.</p> <p>The contract calls for iron not to contain of sulphur more than .120. The question of the limit of sulphur is definitely fixed not to exceed .120. How the amount of sulphur in the iron is to be determined is not set forth in the order or contract—we will call it a contract—but the evidence seems to have admitted of tests by both buyer and seller to determine by analysis the quantity of sulphur in the iron. The evidence would indicate to my mind, though it need not necessarily do so to yours, that it was not the intention of the parties that each pig of iron was to be submitted to analysis. Judging from their action in the premises, the custom was to take one or more pigs from the furnace to start with, or from the cars, from which was to be ascertained the character and quality of tbe iron. No one anywhere in the controversy undertook to say that the meaning of that contract was that there was to be analysis of each pig. It was to be either by lots in some form or another, by a car load, or the lot altogether, and that is the question that is before you, I think. [It is not a question as to whether they were to furnish iron with sulphur not exceeding .120. That is admitted under the agreement, but how was it to be determined, and what did that mean in the subsequent dealings of the parties ? That question, I say, is for you.] [2] The evidence before you is that both parties to this litigation adopted that course. At the furnace, two or three or some reasonable number of pigs were taken from each cast (I needn’t say to you what a cast was. It was the run of the furnace), and analyzed, piled in the yard, marked with data on the pile, by which the analysis was known, and shipped according to the analysis given in records kept by the chemist at the furnace. Now that is what they say they did. When the iron reached Cochran station, the defendant company took from the cars one or two or more pigs, as it deemed requisite for its purpose, and made its analysis therefrom, and kept a record of the same, as made by its chemist, with the car numbers designated.</p> <p>This mode adopted by both parties would seem to indicate as the understanding of the parties that the analysis so made was the anticipated manner in which the quality of the iron in lots was to be ascertained; in other words, that any other way was impracticable, and was not to be required in the construction of the contract, which had been entered into. Do not take anything from me on the facts, however. You will find the facts yourself from the evidence, and the inferences you draw for yourself from the facts presented. You must not take them from me or from counsel unless the inferences seem reasonable to you or accepted as reasonable.</p> <p>Now let me say a little about the evidence, although I am not going into it, because you have had a very elaborate argument on the controversy, and have heard all the letters and other papers read. You have on the part of the plaintiffs the evidence of an analysis of the iron made at the furnace, the manner in which it was made, and the identification of the iron piled in the yard, and its subsequent shipment oil board cars. You have got that evidence, and you will recall what it is with the aid counsel has given you in the way of refreshing your memory. [The analysis given for the thirteen cars has been given in detail, that is, of the sulphur contents of the iron, and I will not give that in the case of the plaintiffs’ testimony, because it is all with one or two exceptions below .120, the standard that was fixed by the contract. I say that in so far as I recall the evidence, the different analyses made by the plaintiffs’ chemist, with a few exceptions, show the sulphur not in excess of .120. So if tlie analyses made by Mr. Barris, Mr. Trautvetter and Dr. Wuth are to be accepted as correct under the contract, and the mode that was adopted by which was to be determined the quality of the iron, then there will be no ground, I take it, for the rejection of the entire iron solely for the reason that it contained more sulphur than had been contracted for, for if the results of their analyses is to be taken as true, they show but one or two cars in which the sulphur exceeds .120, and not to a very great extent.] [3] That is the general character of the testimony of the chemists on the part of the plaintiffs. The results of their analyses show in three instances but few cars, perhaps one or two, in which the sulphur exceeded the limit fixed. Of course under their contracts it did not require that they should furnish iron just up to that limit in sulphur. They could furnish it at all the standard required for the manufacture of Bessemer steel if they saw proper to do it. They were not limited except that they could not go above .120. They could go below it if they wanted to. That is a general statement of what I think is all that is necessary for me to mention in connection with this branch of the question, of a test of the quality of the iron. Three men have said that they took the test ordinarily adopted in cases of this kind, taking one, two or three pigs in a lot, without selection at all, but with a view to determining the question of the quality, and these three men testifj^ what is the result and give you the details. [I do not give you the details, but simply say that the general result of their testimony is that it came substantially within the requirements of the contract as to the quantity of sulphur contained in the iron.] [4] Now, I will say a few things with reference to the defendant’s side of the case. In answer to the plaintiffs’ evidence the defendant has offered different analyses made by a number of chemists, four I think in number. Mr. Camp, the chemist of the defendant company, made an analysis by car numbers as they arrived, or within a day or two thereafter, that is the way I recall his testimony as to the time the analyses were made by him, and he said he also made one on June 4, 1895. The first analysis was of two samples taken from the car, and taking the average of the two samples, only three cars appeared below .120. The others ran : one car .129, another .137—1 mean of the average of the two samples taken. He has given both, but I havo taken the average—.158, .132 from two samples, .121, .151, :153, .123 and .148. That which I have given you is the analysis made at the time the car arrived. His analyses of June 4, 1895, was of six samples in some cases and three in others, and the averages by samples from the cars analyzed were as follows: .042, .176, .108, .125, .133, .152, .125, .090, .092, .113, .077, .091, .169. Those are the averages according to his testimony, as appeared by the cars. You will see that quite a number of them run beyond the limit of .120 and quite a number run below. Now, I have taken the average. I don’t say this is the proper average to be taken, but I say it is a question that belongs to you as to the matter of what is the average to be given.</p> <p>There is an average of some kind considered as a proper one for the determination of the sulphur in that iron, because they are all taking different samples, and they say that one piece will not determine it, but in some way an average is to be obtained. Is that average by the car or by the quantity? [Now, according to this testimony of Mr. Camp, a majority, perhaps, of the cars, show a percentage of sulphur greater than .120, but if you take the average of all the cars, it is .115, which is below the standard required. Now, which is right ? Under all the evidence and the contract that you find there in writing, how was it to be carried out, and what does it mean ? Does it mean the lot of iron that was shipped, or by car lots ?] [5] [It clearly does not mean by pigs, because nobody is contending for that. ■ Does it mean by car lots as contended for by the defendant, or does it go to the extent that has been contended for by the plaintiffs’ counsel, the entire lot, and if it does mean the entire lot, does it make it what the defendant contends it does, a non-homogenous mixture, and that, therefore, and in that way it is not a fair compliance with the terms of their agreement ? Now, that is Mr. Camp’s testimony, and it just depends upon which way you take his -view. By the whole lot it makes a less percentage, and by the cars it makes a higher.] [6] Mr. Handy made an analysis of three samples from each car, and I think he mixed them, he didn’t analyze each pig of the three, but took drillings from each and mixed them up, and then gave what he ■ regarded as the average of those three, and his results did not differ materially from those of Mr. Camp’s. There is a little variation, but there is not one solitary chemist whose analysis agrees with another straight through, even where the analysis was made from identically the same article, as in the case of .Dr. Wuth or some other chemist who had something left over from a drilling that was taken out by another chemist, but there is none of them that agree, and that would seem to indicate the very difficulty in getting at what would be the meaning of that contract, how it is to be determined, because you will find variations in their analyses on the same articles from twenty to thirty or ten thousandths of a difference. [Mr. Handy’s average for the entire cast, as I have said, is a little higher in sulphur than Mr. Camp’s. If my addition is correct, Mr. Handy’s averages, taking the entire lot, would be just .120. It just comes out that way according to my calculation.] [T] I have referred to the analyses made by three chemists who testified on behalf of the defendant. Two other chemists, Mr. Johnson and Mr. Gaurigues, gave their analyses of the iron. All the chemists differ somewhat in their results, and naturally enough, too, when they all use different pigs. I have only referred somewhat in detail to the analyses of two of these—two for the defendant and three mentioned casually on the part of the plaintiffs. I did not discuss the testimony of the chemists of the plaintiffs so much in detail, inasmuch as they have made their analyses, with but very few exceptions, below the .120 in sulphur, and for that reason I did not think it was necessary to go into it in the same extent as on the part of the defendant.</p> <p>What I have said in regard to the analyses of the iron has i-elation to the 3-ejectio3i of the iron as not according to the contract. Now, there are other reasons why they say they have a right to refuse payment, but what I have been talking about is the right to reject on the ground that the tests did not show that the iron complies with the contract as to the sulphur contained. A3rother question has been suggested and which is nidependent, I take it, of the quality of the iron. Of com-se if the quality of the iron did not correspo3id to the contract, if you find that fact, they would have a right to reject it at the proper time and with proper notice. [It is contended by the defendant that the iro3i was 3-ejected a3id that the rejection was acceded to by the plaintiffs, and their claim released as to the defendant company by the offer of the plaintiffs to sell or accept an offer for the iron in dispute 3nade by the Carnegie Company for $14.00 per ton as it lay in the yard, the Carnegie Company having- become at the time, or about that time, the purchaser of the plant of the defendant company, if I understand the testimony. Now, in a general way, for I am not giving you the detail of any of this, the plaintiffs say in answer to that that Nimick & Company were on the verge of insolvency at the time and the defendant had disposed of its plant, and in view of the apparent complications in which the sale of the iron was involved, they were willing to settle their claim against the defendant company for $14.00 per ton and accept the offer of the Carnegies. That will rest with you to determine under all the evidence the merits of the respective contentions of the parties. It may have the effect, as you find the facts, of either discharging the defendant from all liability, if that was the purpose of it between these parties, or reducing the claim of the plaintiffs to $14:00 per ton for the iron, or have no effect upon their claim as against the defendant. That is what it may do ; you will have to say what it does do. It becomes a matter for you to determine in order to reach a true verdict.] [8]</p> <p>Now, the counsel for the litigants have thoroughly discussed the testimony in detail on all the questions in dispute—whether it was a delivery or not. If defendant had a right from the defective character of the iron to reject it, then there could not be any recovery, and it had a right to. reject it if it did not come up to the standard of the article which it had purchased, but I have not touched on that very much; counsel have given you their views about that; whether there was delivery or not.</p> <p>[The lot of iron came from Sharpsville in Mercer county and was shipped according to agreement and was in the cars. I wouldn’t say that they couldn’t analyze it on the cars, or couldn’t analyze it off the cars and hold it in the yards, because it is a bulky article, and the cars might be demanded elsewhere. I leave that question as to whether or not it was a delivery and acceptance, and whether, after everything was settled properly and reasonably between them, that they long afterwards disputed it. The law of the case is not difficult to determine. It is a question as to whether the facts of the case bring it within’ the rules of the law.] [9]</p> <p>Now, as I say, it has been so thoroughly discussed that I deem it unnecessary that I should add anything further. [You will bear in mind tliat I have not intended to control you in your conclusions, either as to the facts to be found from the evidence or as to what the effect of the facts when so found by you from all the evidence may he. You hare got the facts and you will have to judge and determine from the facts what the effect of it is upon the question in dispute.] [10]</p> <p>Verdict and judgment for plaintiffs for $6,783.06. Defendant appealed.</p> <p>Errors assigned among others were (1-10) above instructions, quoting them.</p>

<p> Railroads—Appropriation of land—Location—Viewers. </p> <p>Railroad companies, tinder their right of -eminent domain, survey and appropriate land for the lines of their road, within the limits fixed by the statute, and point out the boundaries to the viewers appointed to assess the damages for the land taken according to the boundaries thus fixed by the company. It is no part of the duties of the viewers to fix the lines or determine the quantity of land to be taken.</p> <p> Railroads—Condemnation proceedings—Map made by viewer—Location. </p> <p>In railroad condemnation proceedings a map was made by a viewer and filed of record.. The company claimed aright of way sixty feet wide; the land owner claimed that a less amount had been appropriated. On the trial of an action of ejectment brought by him for the strip of land in dispute he introduced in evidence the map filed in the condemnation proceedings, which did not show a single course or distance, or the width of the land for which damages were awarded. The expert evidence introduced by both parties was conflicting as to whether the map established the boundaries of the right of way. Held, that the map was too indefinite to establish the boundaries of the right of way.</p> <p> Railroads—Appropriation of land—Adverse %possession—Statute of limitation—Ejectment. </p> <p>Where there are no monuments upon the ground to indicate the boundaries of a railroad company’s right of way, and there is no survey on record or elsewhere to define such boundaries, the extent of the actual occupancy must determine the limits of the right of way.</p> <p>Where a railroad company has lawfully entered upon land for its right of way, and has made compensation to the owner therefor, and for twenty-one years has had an actual and exclusive occupancy of a strip sixty feet wide, the boundary of the easement is forever settled by such occupancy, and the land owner cannot recover any portion of such strip on the ground that the railroad company originally appropriated and paid for a less quantity of land.</p>

<p>Appeal, No. 104, Oct. T., 1897, by George S. Fleming, from decree of O. C. Allegheny Co., Nov. T., 1896, No. 55, overruling exceptions to adjudication.</p> <p>Sterrett, O. J., dissented.</p> <p>Exceptions to adjudication. Before Hawkins, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p> Decedents' estates—Contract—Purchase of partnership interest. </p> <p>Testator gave to his son the right to purchase testator’s interest in a partnership in a drug business. In taking the business the son agreed “ to assume the payment of all bills and accounts payable of said firm.” He also agreed to use all reasonable endeavor to collect all the outstanding accounts receivable of said firm, and for those which he was unable to collect within five years he was to be allowed credit on final settlement. Amongst the bills payable was a draft drawn by a firm, the members of which were relatives of the testator, and accepted by the testator’s firm for the accommodation of the drawers. The son knew of the existence of this obligation when he accepted the interest of his father at the appraisement. Amongst the bills receivable was a judgment note to the order of the firm, given by a former employee, to secure an accommodation note for a like sum which the firm had indorsed, and which had been discounted. At the time of testator’s death the accommodation note was an outstanding liability of the partnership. After testator’s death the son renewed the indorsement in the firm name. The maker failed and the son had to pay it. The judgment was also uncollectible. Held, (1) that the son was bound to pay the draft under his agreement to pay all bills of the partnership; (2) that the son was also bound to pay the note indorsed for the employee, and was not entitled to credit in his final account for the judgment note.</p>

<p> Hoad law—Assessment of benefits—lie-establishment of grade. </p> <p>Where a city, during the progress of the work of paving a street under a proper municipal contract, regrades it and erects an expensive wall and embankment in it for the purpose of giving access to certain private property not on the line of the street, the owners of abutting property cannot be compelled to pay the cost and damages occasioned by such erection.</p>

Appeal, No. 112, Oct. T., 1897, by-James D. Callery et al., from judgment of C. P. No. 3, Allegheny Co., on verdict for plaintiff. Assumpsit to recover the value of ten bonds.

<p>Appeal, No. 118, Oct. T., 1897, by plaintiff, from decree of O. P. No. 2, Allegheny Co., October Term, 1896, No. 325, dismissing bill in equity.</p> <p>Bill in equity for a receiver and for an account.</p> <p>The facts appear by the opinion of tbe Supreme Court.</p> <p>Error assigned was in dismissing bill in equity.</p>

<p> Slander and libel—Privileged communication. </p> <p>A communication to be privileged must be made upon a proper occasion, from a proper motive, and must be based upon a reasonable or probable cause. When so made, in good faith, the law does not imply malice from the communication itself, as in the ordinary case of libel, but actual malice must be proved before there can be a recovery.</p> <p> Slander and, libel—Privileged communication—Words spoken in legislative body. </p> <p>A member of a legislative body cannot take advantage of his official position to give expression to private slanders against others, and then claim that the words were privileged because they were spoken in the course, and as a part, of a public discussion of a pending measure.</p> <p>In an action for slander it appeared that the defendant at a meeting of a borough council of which he was a member charged the plaintiff with haying sworn to a lie before a justice of the peace. At the time the words were spoken there was no motion pending, but the president of the council had called the attention of those present to the fact that plaintiff had recovered a judgment against the borough upon a claim which the council had previously refused to pay, and that the matter had been submitted to the borough solicitor who had advised that the bill should be paid. There was evidence of ill feeling between plaintiff and defendant in relation to other matters. Held, (1) that it was for the jury to determine from the evidence whether the utterance was malicious and wanton, and designed to injure the plaintiff under the cloak of a privileged communication ; (2) that the whole case should have been submitted to the jury.</p>

<p>Appeal, No. 116, Oct. T., 1897, by defendant, from judgment of C. P. No. 8, Allegheny Co., May Term, 1894, No. 771, on verdict for plaintiff.</p> <p>Trespass for malicious prosecution. Before Porter, J.</p> <p>The facts appear by the following portion of the charge of the trial court:</p> <p>In the spring of 1891 this plaintiff was arrested in the city of St. Louis upon a charge made by the defendant, in which the offense alleged was that he had been guilty, with Mr. O’Neill, Mr. Hanlon, and others to the prosecutor unknown, of a conspiracy to injure the defendant in his business by taking away from him his baseball players. The plaintiff, having been arrested on that charge, was for a short time confined in jail, and then released upon bail.' His hearing was adjourned from time to time, and the evidence would seem to be that on April 4, or, at any rate, some date early in April, that charge was abandoned by the prosecuting attorney, a nol. pros, was entered, and that was the end of that charge.</p> <p>Immediately upon the disposition of that first charge, the defendant in this proceeding caused the plaintiff to be arrested again upon substantially the same charge, the difference being that in the first information the overt act alleged to have been committed in the state of Missouri was that this plaintiff had attempted to bribe one King, who was an employee of the defendant in this action, to leave the employment of Mr. Von der Ahe, the defendant; that he had attempted to persuade him and offered him a bribe. The second information or form of the charge sworn to by the defendant in this action, and made upon April 4, or about that date, charged substantially the same conspiracy, but the overt act alleged to have been committed in the state of Missouri -was that he had actually accomplished his purpose by bribing or persuading King to leave the employ of Von der Ahe. The criminal offense charged was the conspiracy ; that is, the unlawful combination of two or more people to do an unlawful act, or to do a lawful act in an unlawful manner. It is the combination which makes the act criminal, for two or three men to enter into an agreement among themselves to take another man’s employees away from him for the purpose of injuring his business, or doing any other act that would necessarily interfere with his management of his business is a conspiracy. But if the conspiracy is entered upon, the agreement made in Pennsylvania, in order to give the courts of Missouri jurisdiction there would have to be some overt act committed in that jurisdiction. Some person would, at least, have to go there and enter upon the carrying out of the purpose of the unlawful combination. And for that reason it was necessary that some overt act should be charged, as it was testified by one of the witnesses in this proceeding.</p> <p>There are certain facts about which there is no dispute under the evidence. These people were all in the baseball business. Baldwin was connected with the Pittsburg Club, Mr. O’Neill was the president of that club, and Mr. Hanlon was the manager. Von der Ahe, from the evidence, seems to have been the owner of the St. Louis Club. A man named King was alleged by Von der Ahe to be under contract to play with that club during the -then approaching season of 1891—was alleged by Von der Ahe to be under contract with him., There was a man named O’Connor who was not under contract with Von der Ahe at all, but was alleged by the Columbus Club to be under contract to them for that year. Baldwin had signed O’Connor for the Pittsburg Club, which the evidence would indicate necessarily involved the loss of his services to the Columbus Club. But it was not the signing of O’Connor that was charged here, it was the conspiracy to deprive Von der Ahe of his players and employees, and King was the one named. The second information was dismissed, and that ended the prosecution, and the plaintiff brings this action for the purpose of recovering damages for a malicious prosecution. In order to entitle him to recover he must establish, by the weight of the evidence, two facts—that this prosecution was without probable cause, and that it was malicious. In order to do that, the plaintiff has been called in his own behalf, and he testifies that down until after the time of his arrest lie had not met King in St. Louis; that he was not guilty of the offense, that he was in no combination to sign him, and he testifies that they did not want King at that time ; that they had all the pitchers they needed. He says that the first time he saw King was when they came to take depositions in Ms criminal ease after his arrest, at his lawyer’s oflice, and that he did trot at that time, or at any other time, make King any offer, or have any negotiations with him with regard to his coming to the Pittsburg Club. If you believe that, that would establish a prima facie case upon that branch of his case. In other words, upon the mere question of probable cause, or want of probable cause, it would put the defendant to the necessity of putting in his case. But the plaintiff must establish more than want of probable cause; he must establish malice; that is, not necessarily that there was any grudge entertained against him, but that the motive was malicious. It would be sufficient to show that it was done with a recklessness of consequences and of the rights of others; in other words, that it was a wrongful act intentionally done, which would necessarily be injurious to the man against whom the charge was made, if it were without probable cause. In other words, malice may be inferred from the want of probable cause and the circumstances of the case. The plaintiff having put in his case as to what his relations with King had been, and then, having proved his arrest and all the circumstances connected with his detention, and the subsequent proceedings upon these eases, rested. Relying upon the inference of malice deducible from the want of probable cause, where the want of probable cause is established by evidence, the burden is upon the plaintiff to satisfy you of the existence of both the elements. The plaintiff having rested, the defendant then puts in his side of the case. Where the plaintiff has established a prima facie case by his evidence —in other words, a case which the defendant is called upon to answer—the defendant may offer evidence showing that there was probable cause for the prosecution ; that is, that there was a reasonable ground for suspicion, supported by circumstances sufficient to warrant a man of reasonable prudence in believing the person guilty of the offense. It is sometimes described as a deceptive appearance of guilt. In other words, he may show that the circumstances under which he acted were such as to warrant a man of reasonable prudence in believing the person guilty of the offense, although he may have been entirely innocent. If he does that, he has shown probable cause. Or, in case he fails to show probable cause, he may show that, although there was no probable cause, he was not actuated by malice; that his prosecution was in good faith. He may rebut or overcome the mere inference of malice arising from want of probable cause by showing that he acted in good faith, as that he made a fair and full statement of the facts within his own knowledge, and such facts as he had reasonable ground to believe he would be able to prove, and submitted them to counsel, and that counsel thereupon advised the prosecution, and that he followed that advice in good faith.</p> <p>Now, gentlemen, you apply those principles to this case. You will consider all the evidence in the case in passing upon those questions. There is no doubt about the arrest of the plaintiff, and there is no controversy as to what occurred subsequent to his arrest. There is no doubt about his discharge. You are not passing upon the question as to whether or not this plaintiff was guilty of the offense wherewith he was charged there; you are passing upon the question as to whether or not the prosecution was malicious, and without probable cause.</p> <p>The defendant has testified, and his testimony has been read to you, and the depositions of certain witnesses have been submitted for your consideration, in order to enable you to make up your mind as to the questions of fact. The probable cause that is alleged for this prosecution by the defendant in his testimony is that he -was informed by Pritchard, and I believe by Spink, that Baldwin had said that he was going to get King; that Munson and another witness said that O’Connor had told them that Baldwin was going to get King; that at that time there was a contest going on between the associations; that shortly before this information was made he had been shown a telegram from the Columbus Club by his secretary, Munson, with regard to the attempt of the Pittsburg Club to get association players; that he had seen a telegram from O’Neill to Comiskey, asking Comiskey to come to Pittsburg and bring this man King with him, and that he had seen the notice in the newspapers of the signing of O’Connor. Now, gentlemen, if Pritchard and Spink were men whom this defendant had reason to consider worthy of belief, and they told him that Baldwin had said to them that he was going to get King, taken in connection with the telegram from O’Neill that Von der Ahe had seen, and the fact that O’Connor had been signed, then those facts would constitute probable cause for the prosecution. But whether or not he bad been so told by Pritchard, whether you believe his witnesses, is a question of fact for you. If you find the facts to be so, then they constituted a probable cause for the prosecution, and your verdict would be in favor of the defendant. In case you find that there was no probable cause, in other words, in case you fail to find the facts to be as stated, and for that reason find against the defendant upon that point, then you will remember that the burden is upon this plaintiff to satisfy you of the existence of malice. He does not have to show you that the defendant hated him personally, but he has to show you that this prosecution was malicious; that is, that it was a wrongful act intentionally done, and necessarily injurious to him. But if you find want of probable cause in his favor, then you would be justified in inferring malice from the existence of the element of want of probable cause. In other words, from want of probable cause malice may be inferred, but this in ference would be overcome if the defendant went to a competent attorney with his witnesses, and there fairly stated what evidence he had, not keeping anything back, not alleging anything that he did not know or did not have reasonable ground to believe that he could prove by somebody else, making a full, fair and candid statement. And if, having made such a full, fair and candid statement, his counsel advised him to prosecute, then that would be rebutting the presumption of malice. And if you find that he did fairly submit his statements and his evidence to his counsel, and the counsel advised prosecution, then your verdict would be in favor of the defendant.</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>2. Should the jury find from the evidence that there was no probable cause, and that the defendant was impelled and actuated in his arrest and prosecution of plaintiff by actual malice and hatred, and was intentionally seeking thereby to harm and injure the plaintiff in liis person, reputation and business, they may by their verdict not only allow actual damages for said injury, but may also give vindictive damages in such amount as may be deemed an adequate punishment for the defendant’s act. Answer: Affirmed. [1]</p> <p>4. That in this case the jury ought to consider the facts, if they find the facts to be that a rivalry at and about the time of the prosecution existed between the two baseball associations, known as tbe National League and American Association, tbe fact that Baldwin was a member of the League Association, and was in St. Louis in the interest of the Pittsburg Club, a member of that association, to get O’Connor, a member of the other association, to break his contract; the general newspaper reports that Baldwin was in St. Louis after American Association players, and the evidence that the defendant was informed by Mun-son, Pritchard, Fay, Spink and others that O’Connor had stated that it was the purpose of Baldwin to get King also to leave the St. Louis Club and come into the National League Association, as evidence tending strongly to negative any inference of malice which. they might otherwise find, if they found that there was no probable cause for the prosecution. Answer: This point is' refused. The jury ought to consider the facts stated in passing upon the question of the existence of malice; but it is not for the court to say that they strongly tend to negative any inference of malice which the jury might otherwise find. The strength or weakness of the facts recited in the point as evidence upon the question of malice is for the jury, to be considered in connection with all the evidence in the case. [2]</p> <p>8. That in no event ought the jury to allow the plaintiff any other than compensatory damages. Answer: Refused. The general rule is merely pecuniary compensation for the damages actually sustained, and that is the rule in this case, but if the jury find from the evidence that the conduct of the defendant was a reckless and intentional oppression, undertaken without probable cause, for the purpose of distressing the plaintiff, then the jury may in their discretion award punitive damages. [3]</p> <p>9. That under all the evidence in the case, the verdict must be for the defendant. Answer: Refused. [4]</p> <p>Verdict and judgment for plaintiff for $2,525. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p> Trust and trustees—Declaration of trust—Equity. </p> <p>If a testator make a devise in terms absolute, but upon a private understanding had with his devisee, whether by the latter’s express promise, or by his assent implied from his silence, that he will apply the devised estate to a specific purpose designated by the testator, a trust arises which a court of equity will enforce, unless unlawful in itself.</p> <p>A brother devised a house to his sister. The sister at a time more than thirty days before her death signed a paper which, was as follows: “By the request of my dear brother, my house on Duquesne Way is to be sold at my death, and the proceeds to be divided between the Home of the Friendless, and the Home for Protestant Destitute Women.” Held, (1) that the paper was good and valid as a declaration of trust; (2) that it was immaterial that there was no affirmative testimony that the brother ever communicated the request to his sister Irwin v. Irwin, 34 Pa. 525, distinguished.</p>

<p> Will—Decedents' estates—Issue devisavit vel non—Undue influence—Evidence—Province of court and jury. </p> <p>Ou the trial of an issue devisavit vel non in which the alleged will is attacked on the ground of undue influence, the case is for the jury where the evidence on behalf of the contestant, although contradicted, tends to show that the wife of the testator, after a quarrel with the contestant who was her only son, declared that she would have his father cut him off without a cent; and it was further shown that she possessed grpat influence over her husband, who feared to resist her; that she immediately sent for a lawyer, and had a will prepared disinheriting the contestant; that she told her husband who was ill and weak at the time, and died of senility five days thereafter, that if he did not sign the will she would put him out of the house; that.she remained with her husband until it had been executed; that testator had always been on good terms with his son, and had expressed his intention to divide his property equally between the son who had been very kind to him, and his daughter.</p> <p> Evidence—Declarations—Issue devisavit vel non—Undue influence. </p> <p>On the trial of an issue devisavit vel non where undue influence by testator’s wife is alleged by a son, declarations of the wife, made a few hours before the will which made her the principal beneficiary and disinherited the son was drawn and executed, to the effect that she would have her husband cut off the contestant, his only son, without a cent, are admissible.</p>

<p> Railroads—Location—Servitude—Evidence. </p> <p>The selection and adoption of a line by the directors of a railroad fastens a servitude upon the property affected thereby and so takes from the owner and appropriates to the use of the corporation.</p> <p>When engineers to survey the route of a railroad have returned the protracted surveys of the line or lines run, to the office of the company, and the survey thus made has been formally adopted and declared to be the location of the road, that constitutes and completes the fact of location.</p> <p>, The plap or map of a survey of the route of a railroad returned by the company’s engineers to its office is the best evidence on the question of location of what has been done by them.</p> <p>The title of the owner cannot be completely divested until compensation is made or security given ; but as to third persons the adoption of a definite location is sufficient to give title to the railroad company.</p> <p>Vendor and vendee—Incumbrances—Railroads—Servitude—Location— Evidence.</p> <p>Where the defense to an action for the purchase money of land is that the stipulation for a title in fee clear of all incumbrances has been violated, a judgment and verdict for defendant will be sustained where the secretary and treasurer of a railroad company testified that prior to the contract, by a formal resolution of the board of directors of his company, a branch line of railroad had been located across the land in question, in accordance with a plan made by the engineers of the railroad, referred to in the resolution of the directors, and produced by the witness in court. In such a case it is not necessary to produce the engineers who actually made' the plan; nor is it necessary to show that the owners of the land were notified of the action of the directors; nor is it material that the damages had not been paid or secured to the owners at the time the plaintiffs contracted to sell to the defendant.</p>

<p>Appeal, No. 14, Oct. T., 1897, by plaintiff, from order C. P. No. 2, Allegheny Co., July T., 1897, No. 504, making absolute a rule to strike off judgment.</p> <p>Rule to strike off judgment.</p> <p>The petition for the rule was as follows:</p> <p>The petition of Arthur B. Pitts respectfully showeth that he is the duly elected and qualified collector of taxes for the borough of Duquesne, Allegheny county, Pennsylvania; that a statement was filed in the prothonotary’s office by the school district of said borough, showing a balance of $4,751.98 due and unpaid by Arthur B. Pitts, and that judgment has been entered upon said statement by the prothonotary for said amount against your petitioner and his bondsmen, and execution is as your petitioner believes likely to be issued upon said judgment; that said statement was filed under the provisions of an Act of Assembly of April 11, 1862, 1 Purdon (12th ed.), page 338 ; that an injustice has been done him and his bondsmen by the entering of said judgment, and that same was not done in good faith nor in the exercise of a sound discretion on part of the school board of said district; that the entering of said statement and judgment thereon is without warrant of law, the said act of assembly having been altered and repealed by subsequent legislation, and that any such law as the act aforesaid if not repealed is unconstitutional and void; and that as yet the auditors of said borough have not passed upon the accounts of said collector as provided by the Act of Assembly of June 25, 1885, P. L. 189.</p> <p>Wherefore, your petitioner prays your honors to grant a rule upon the school district of the borough of Duquesne, party plaintiff, to show cause, if any they have, why the judgment entered at above number and term should not be stricken from the record.</p> <p>The court granted a rule to strike off judgment, which it subsequently made absolute.</p> <p>Error assigned was order making rule absolute.</p>

<p>Appeal, No. 146, Oot. T., 1897, by Armand C. Hess, from order of C. P. No. 8, Allegheny Co., Noy. T., 1893, No. 513, overruling exceptions to auditor’s report.</p> <p>Exceptions to report of auditor, E. E. Kiernan, Esq.</p> <p>From the report of the auditor it appeared that on October 9, 1893, A. C. Hess was appointed receiver of the Pittsburg Vehicle & Harness Company. Among the property that passed into his hands was a lease known as the Williams lease, which the receiver sold to Murphy & Hamilton under an agreement by which the purchasers were to assume the rent from the date of sale. The receiver, however, continued to pay the rent to the day of delivery of the leasehold premises. • The auditor surcharged him with the amount paid from the date of sale to the date of delivery.</p> <p>The auditor further found that the stock of goods of the Pitts-burg Vehicle & Harness Company was appraised at $5,115.25, and that on November 25, 1898, the receiver presented his petition to the court stating that the goods were of such character that the}' could not be carried from one season to another without great depreciation in value; that during the winter there was no sale for such goods and that McGowan and Pepper had offered $2,006.42 for said stock, good-will and leasehold, and asked for an order to sell the same to said McGowan and Pepper at that price. The court granted the order and the sale was made accordingly. The auditor surcharged the receiver with the sum of $2,909.15, the difference between the appraised value of the goods and the amount received for them. This surcharge was made for the reason that at the time of the making of said sale to McGowan and Pepper the receiver had his arrangements made to become a partner in said firm, and that he afterwards did become a partner in that firm.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to auditor’s report.</p>

Appeal, No. 127, Oct. T., 1897, by defendants, from decree of O. P. No. 1, Allegheny County, March Term, 1897, No. 499, on bill in equity. Bill in equity for decree that plaintiffs’ judgments be declared liens upon land the title of which is not in the name of the defendant in the judgment, but the improvements on which were made with his funds.

<p>Appeal, No. 150, Oct. T., 1897, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1897, No. 354, on case stated.</p> <p>Case stated to determine the marketable title to real estate.</p> <p>The material portions of the case stated were as follows :</p> <p>Clark Kissick was in his lifetime and at his death seized in his demesne as of fee of a certain tract of land [reference is had to plot where it is particular^ described] ; said Clark Kissick died intestate on March 5, 1880, leaving surviving him a widow, Sarah E. Kissick, and William Clark Kissick, a minor, of whom James E. Haslett was duly appointed guardian, and letters of administration were duty granted by the register of wills of said county to the said Sarah E. Kissick.</p> <p>At No. 239, July term, 1881, of the court of common pleas No. 2, of Allegheny county, R. S. P. McCall, executor of the last will and testament of Moses Kissick, deceased, brought an action against Sarah E. Kissick as widow and administratrix of Clark Kissick, deceased, and said William Clark Kissick, .said minor, by his guardian, James E. Haslett, and recovered judgment therein for $15,803.41. After the entry of said judgment, to-wit: on June 17, 1881, said defendants, by John C. McConnell, their attorney, by writing filed at said number •and term, waived the right of inquisition and extension and agreed to the condemnation of said property, and directed the protlionotary to enter upon a fieri facias said voluntary condemnation, etc.; on June 17,1881, a writ of fieri facias was issued on said judgment at No. 108, July term, 1881, and upon said writ •of fieri facias, said protlionotary of said court marked inquisition and extension waived-; under said writ, the sheriff of the said county of Allegheny levied on the property herein-before referred to, and after the regular notice of the time and place of sale, sold the same to the plaintiff in said judgment, It. S. P. McCall, executor, for the price or sum of $25.00, and by deed poll dated October 22, 1881, and acknowledged after proclamation at a court of common pleas No. 2, held in and for said county before the judges of said court, by T. H. Hunter, Esq., sheriff of said county, on October 22, 1881, and duly •delivered to said plaintiff, conveyed the said property to the said plaintiff, It. S. P. McCall, executor; said deed being recorded in the prothonotary’s office of said county and the said It. S. P. McCall, executor, of the said Moses Kissick, deceased, by deed dated July 18, 1882, duly acknowledged and recorded in the recorder’s office of said county, granted and conveyed the said property to said Maria Kissick; that the said R. S. P. McCall, executor, and through him said plaintiff, entered into the possession of the said tract of land, immediately upon the execution and delivery of sheriff’s deed, and have been in free and undisputed possession thereof continually from that time to the present; and the said plaintiff is now in the undisputed possession of the said described tract of land, and at the time of the said levy and sale the said lots had thereon erected a two-story brick dwelling house.</p> <p>Said defendant in and by an agreement in writing, dated December 1, 1894, and by him duly signed, agreed to purchase ■of the said plaintiff, and the said plaintiff in and by said agreement agreed to sell said defendant a piece of land and the improvements thereon erected, situate in the seventh ward, of the city of Pittsburg, county of Allegheny, Pennsylvania, being lot numbered thirty-six, in Thomas Scott’s plan of lots, recorded in the office for the recording of deeds, etc., in and for said county of Allegheny, more particularly hereinbefore described. Said Maria Kissick, plaintiff, has always been ready to comply with the terms of the said contract, and has tendered to the said ■Albert N. Hunter a deed for the said property. The said Albert N. Hunter declines to accept the said deed and comply with the conditions of the said agreement for sale, for the reason that he avers the title of the said plaintiff to the said property is not a good marketable title in fee simple, and that the said John G. McConnell by virtue of his general retainer as attorney for the said defendants at No. 229, July term, 1881, had no authority to waive the right of inquisition and agree to condemnation, and that the said sale on the said writ of fieri facias is void, and that the title of said Clark Kissick to the said property did not pass to the said R. S. P. McCall, executor of Clark Kissick, deceased, under and by virtue of the said deed poll from T. H. Hunter, sheriff.</p> <p>The court entered judgment in favor of defendant. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant.</p>

Appeal, No. 157, Oet. T., 1897, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., J une T., 1896, No. 580, on trial by court without a jury. Assumpsit to recover money advanced. Before Stowe, P. J. The case was tried by the court without a jury.

Appeals, Nos. 17, 18 and 19, Oct. T.,. 1897, by defendants, from decree of G. P. No. 2, Allegheny Go.,. July Term, 1891, No. 215, on bill in equity. Bill in equity for a receiver and an account. The facts appear by the opinion of tbe court below by Ewing, P. J., which was as follows : The numerous exceptions filed to tbe master’s report and the arguments thereon, are such that we have felt compelled to, and liave read, the entire testimony and examined the principal exhibits.

Appeal, No. 154, Oct. T., 1897, by plaintiffs, from judgment of C. P. No. 1, Allegheny County, June T., 1895, No. 706, on verdict for defendant. Assumpsit for rentals under an oil lease. The facts appear by the opinion of the Supreme Court. The court gave binding instruction for defendant. Verdict and judgment for defendant. Plaintiffs appealed. Error assigned was in giving binding instructions for defendant.

<p> Contract—Building contract—Belay—Architect—Befects m plans and specifications. </p> <p>In a scire facias on a mechanic’s lien to recover a balance alleged to be due on a building contract which provided that the work should be done according to the plans of the architect, and that “ whenever the contractor knows or thinks that the drawings or specifications or both for any part of the work will not produce secure construction, it is his duty then to stop the work and to instantly notify the architect of this in writing ” and the work shall not be resumed “ until the contractor receives an order in writing from the architect over his own signature as to what is to be done anti when to proceed,” it appeared that certain arches fell down after they had been built, and that the completion of the work was delayed beyond the stipulated time. Plaintiffs’ evidence tended to show that the falling of these arches was through no fault of theirs, but wholly on account of the architect’s plans. The plaintiffs notified the architect in writing of the entire insufficiency of the iron work to support the arches, and received a reply from the architect in writing that the work would be done by other parties. They never received notice from the architect to proceed with the work, and the fallen arches were replaced by others. The defendants claimed a deduction for the work which was done by other parties and the penalty which was provided in the contract for the delay beyond the specified time for completing the building. The court left it to the jury to say whether the falling of the arches was the fault of the plaintiffs or of the architect. The jury found for the plaintiffs. Held, (1) that if the plans were defective, the rule that a contractor must complete his contract notwithstanding any accident by inevitable necessity did not apply to the facts of-this case; (2) that the plaintiffs did all that was required of them under the contract when they stopped work and notified the architect; (8) that, assuming that the plans were defective, the plaintiffs did not lose their lien because the material which they had placed in the arches had been removed and other material substituted in its place; (4) that if the arches fell and the work was delayed on account of the defective plans of the architect, the expense of rebuilding the arches and the penalty provided by the contract for the delay of the work beyond the stipulated time could not be deducted from the amount duo on the contract.</p> <p>Building contract—Extras— Waiver.</p> <p>A building contract provided that no claims for extras should be made by the contractors “ unless the same shall be done in pursuance of a written order from the architect.” There was evidence that the architect notified certain of the subcontractors to do some extra work, but gave no notice or written directions to the contractors. Held, that it was for the jury to say whether the provision of the contract as to written notice had been waived.</p>

Appeal, No. 100, Oct. T., 1897, by W. H. Martin, from decree of O. C. Allegheny Co., May T., 1896, No. 27, restating final account of said executor. Exceptions to adjudication. From the record it appeared that the accountant filed five different accounts, all showing great confusion.

Appeal, No. 125, Oct. T., 1897,. by J. George Krebs, from decree of O. C. Allegheny Co., June Term, 1896, No. 80, in partition proceedings. Petition to set aside decree in partition appointing a trustee. The facts appear by the opinion of Hawkins, P. J., which was as follows: The question involved in this matter is whether or not an active trust was created by the will of Michael Krebs, in respect of the share given to his son, George, in the following clause: “ Fourth.

<p> Street railways—Grossings—Diversions from highway. </p> <p>A street railroad company having permission to build its road upon a highway, may diverge for a short distance, where the conformation of the surface or the position of streams makes it necessary in order to avoid discomfort or danger to the traveling public, or to avoid.grade-erossings, or for any other reason amounting to necessity, or great public convenience.</p> <p> Street railways—Railroads—Laches—Estoppel—Equity. </p> <p>A steam railroad company filed a bill in equity for an injunction to restrain a street railway company from constructing an overhead bridge, on the ground that such construction would interfere with the railroad company’s enjoyment of its property, and also upon the ground that the street railway company could not change the location of its road so as to construct the same upon a bridge and upon private property. The evidence showed that the plaintiff had stood by while the tracks of defendant were being laid on an avenue nearly parallel to the tracks of the plaintiff and on a street which crossed its tracks at right angles; that plaintiff, without objecting to a grade crossing, negotiated with the defendant as to the manlier of its construction ; that when its demands were acceded to, it objected to a grade crossing, and suggested an overhead crossing, and that the defendant company had adopted that suggestion and, at a cost- of $40,000, purchased pu'ivat-e property, and done preparatory work towards the construction of an overhead crossingin accordance with plans suggested by the railroad company. It also appeared that the construction of the overhead crossing would cause little or no injury to the railroad company, while an injunction would cause irreparable injury'to the street railway company, and great inconvenience to the public. Held, that an injunction was properly refused.</p> <p>An injunction will not be issued when, upon a broad consideration of the situation of all the parties in interest, good conscience does not require it.</p>

<p>Appeal, No. 157, Oct. T., 1897, by defendant, from decree of C. P. No. 2, Allegheny County, April Term, 1896, No. 128, on bill in equity.</p> <p>Bill in equity to cancel an agreement, and to restrain proceedings upon a judgment. Before White, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned among others was decree awarding an injunction.</p>

<p>Appeal, No. 160, Oct. T., 1897, by plaintiff, from judgment of'C. P. No. 1, Allegheny Co., Sept. T., 1895, No. 468, on verdict for defendants.</p> <p>Scire facias sur mechanic’s lien. Before Stowe, P. J.</p> <p>At the trial it appeared that tbe plaintiff bad filed a lien as a subcontractor for materials furnished to a building built by Dolierty Brothers as contractors for Isabella Ross. The contract for tlie building, in one paragraph, provided that “no lien shall be filed against the building by tbe contractor or subcontractor,” but in a prior paragraph had provided as follows:</p> <p>“ It being understood that the final payment shall be made within sixty days after this contract is completely finished, provided that in each of the said cases the architect shall certify in writing that all the work, upon, the performance of which the payment is to become due, has been done to his satisfaction and provided further that before each payment, if required, the contractor shall give the architect good and sufficient evidence that the premises are free from all liens and claims chargeable to the said contractor, and that all claims for materials furnished to, and work done upon said building, have been paid; and further, that if at any time there- shall be any lien or claim for which, if established, the owner of the said premises might be made liable, and which would be chargeable to the said contractor, the owner shall have the right to retain out of any payment then due, or thereafter to become due, an amount sufficient to completely indemnify against such lien or claim, until the same shall be effectually satisfied, discharged or canceled. And should there prove to be any such claim after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises, made obligatory in consequence of the former’s default.”</p> <p>The court g-ave binding instructions for defendants.</p> <p>Judgment and verdict for defendants. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendants.</p>

<p> Contract—Sale—Breach of contract—Measure of damages. </p> <p>Defendant agreed to furnish plaintiff, an oil refiner, with all the crude oil that the latter might “need or use ” at his refinery during one year between certain specified dates. The plaintiff was permitted to order the oil in lots not exceeding twenty thousand barrels at one time, but such orders were in no ease to bo made oftener than once in thirty days. It was also agreed that the contract 'might be extended for an additional year upon the same terms, if plaintiff gave due notice before the first year had fully expired. The oil was to be paid for at the current price. Two weeks before the year closed and, at a time when plaintiff had on hand more oil than he had used during the whole year, he ordered twenty thousand barrels more, which was refused by defendant, on the ground that it could not be “ needed or used” during the year. Rive days before the close of the year plaintiff elected to continue the contract, and a few days later gave another order for twenty thousand barrels, which was also refused. The evidence showed that the stock on hand at the end of the year was insufficient to supply the needs of the refinery during the second year, and plaintiff was compelled from time to time to buy eighty-six hundred barrels, in addition, from the defendant, at a somewhat advanced price. Held,</p> <p>(1) that defendant had a right to refuse to fill the first order for the reason given by him; (2) that as plaintiff had a right to secure his entire stock for the second year as soon as could be done under the contract, defendant had no right t;o refuse to fill the second order, in so far as such order was necessary to complete plaintiff’s stock for the second year; (3) that plaintiff was entitled to recover the difference between the price of the eighty-six hundred barrels, at the time when the second order was given, and the price he was subsequently7 compelled to pay defendant.</p>

<p>Appeal, No. 163, Oct. T., 1897, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1894, No. 234, overruling exceptions to report of referee.</p>

<p>Appeal, No. 145, Oct. T., 1897, by defendant, from judgment of C. P. No. 8, Allegheny Co., Feb. T., 1895, No. 389, on verdict for plaintiff.</p> <p>Assumpsit on a building contract. Before Porter, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The charge of the court below was in part as follows :</p> <p>[If this defendant was in default in furnishing the foundations, then it would waive the benefit of this covenant in the contract, unless its failure to furnish the foundations in time was caused by the failure of the plaintiff to furnish the plans within a reasonable time.] [6] If the plaintiff failed to furnish plans within a reasonable time, then the defendant could go on, after having gotten the plans, using due diligence, to finish the foundations, and if it did that, and completed the foundations with due diligence, after getting the plans, then the plaintiff would still be bound by this covenant in the agreement, although the defendant may not have had the foundations completed at the time named in the contract. But if the defendant failed to furnish those foundations within the time named in the contract, then the burden is upon it to satisfy you that such failure was the result of the failure of the plaintiff to do what it ought to have done. And if the plaintiff furnished the plans with reasonable promptness after the contract was made, that was all that was required of it with regard to those plans. [The plaintiff says further that this contract was so altered, after it was made, as to operate as a waiver of this covenant within the contract for liquidated damages ; in other-words, that the parties, by mutual consent, so changed the contract as to necessarily cause delay in its completion beyond the period that had been limited in the contract; that there was not a reasonable probability of its completing the contract within the time, because of these changes. We say to you, gentlemen, as to the substitution of one engine for another, and as to the amendment of the specifications referring to the blooming mill, and as to the hydraulic bloom shear, that those changes being enumerated in exhibit “9,” in which the manager of the defendant company accepted a proposition that had been tendered by the plaintiff, specifying “ The foregoing is to be considered a part of the original contract and the payments will be changed accordingly,” made that a part of the original contract just as much as if it had been written in, and it was simply the substitution of one engine for another, and one mill for another, and the contract for the shears becomes as binding and as much a part of the original contract as if it had been written in it, and for that change there could be no extension of time.</p> <p>As to the changes which were made during the progress of the work, that is, the substitution of one thing for another that has been specified in the original contract, if the parties agreed, without saying anything as to time, simply to substitute one thing for another, without any mention of additional time—simply agreed that one machine should be put in place of another, as that a Gates crusher should be put in in place of a Blake crusher, then, in the absence of any evidence that would satisfy the jury that the defendant knew or ought to have known that that would render an extension of time necessary, there would be no extension of time under such circumstances. The first change seems to have been a change in the buildings ; it was a change in the dimensions, where they agreed to substitute a building that rvas possibly somewhat larger, and nothing was said about an extension of time because of that substitution. Where the plaintiff did not, at the time that the substitution was suggested and agreed upon, suggest additional time, then unless the jury are satisfied from the evidence that the defendant knew or ought to have known that that would necessarily require more time to do, and so prevent the completion of the contract within time, no extension of time would be allowed for those changes. The parties were able to contract for themselves; and the plaintiff could not have been required to make these changes after it had entered into this contract. If it did agree to the changes, the parties mutually consenting to these changes in dimensions, then that would not operate as a waiver of this clause for liquidated damages, unless the change was of such a nature that the parties would be presumed from that very fact to know that it would render the completion within time not reasonably probable.] [8]</p> <p>[As to the additions, gentlemen, where something outside of the contract was agreed upon by the parties and a price stipulated for it, the only thing that the plaintiff would be required to do with regard to that addition would be to finish that addition within a reasonable time. It is something outside of its contract. Something has been said about a mixing house which was not named in the original contract. All it would be required to do would be to finish that within a reasonable time. For those things which were outside of the original contract, it would only be required to finish them within a reasonable time, and if it did not get those additions finished before the 1st of June, it would not incur any penalty, because the additions were not finished, nor would it be liable to answer in damages for the noncompletion of those additions, until after a reasonable time for the completion of the additions had elapsed. If the additions were so mixed with the original contract that the doing of that work necessarily delayed the original contract, then the parties would be presumed to contract with a knowledge of that fact, that is, to contract for the additions with a knowledge of that fact; and if those additions were so commingled with the main contract that they would necessarily, or in all-reasonable probability, result in the delay of the completion of' the original contract, then the plaintiff would not be answerable in damages for such delay.] [9] So that you will- at once apprehend, gentlemen, that it is important for you to determine,' after the question as to whether or not there was delay, and after determining the question whether or not this defendant' caused the delay because of its failure to furnish foundations, if you find that there was delay, and that the defendant was' not responsible for that delay because of its failure to furnish foundations in time, or if you find that it did fail to furnish the foundations in time but that that failure was caused by the plaintiff’s failure to furnish plans, then it is important for you to inquire carefully as to what remained unfinished on this plant. If the original contract, including that part of it which had been added by agreement afterwards with regard to. the blowing engine, was completed on the 1st of June, and if those things that remained uncompleted were simply additions that had been ordered afterwards, then the clause for liquidated damages would not operate. And on the other hand, if the additions and changes or substitutions were all practically completed by the 1st of June, and the only thing that remained uncompleted was something that was clearly within the original contract and was not delayed by additions, then you would probably hardly find it necessary to inquire as to the effect of, the additions upon the extension of time. [The blowing engine that was put in was substituted for one mentioned in the original agreement, and by the terms of that substitution it was to be taken as a part of the original agreement. Now, what was the cause of the delay in the completion of this plant? If, under the evidence, you are satisfied that it was the blowing engine, and the blowing engine alone, then, gentlemen, you will consider carefully whether any of this new work, this additional work, caused any delay in the blowing engine. If all this new-work was completed on the 1st of June, and if it did not cause any of the delay whatever, and if you find further that it did not cause any delay to the blowing engine, then of course, the mere fact that new work was added, but was all gotten in in time, and within the contract, and did not delay the completion of the original contract, would have no effect upon the case, but if, because of some connection of this new work with the blowing engine, it delayed that engine, if because of the connection of new work or additional work with the plant as a whole, it prevented the completion of the contract, that would be another and an entirely different matter.] [10]</p> <p>[If the new work was of such a character, if its connection with the main work was of such a nature, being so mingled with it as to prevent the completion of the plant, it would leave the parties at large, and all the plaintiff would be compelled to do would be to finish within a reasonable time. But if the additional work had nothing to do with the delay, then the mere fact that additional work was put in would not operate as a waiver of this clause.] [11]</p> <p>[There has been considerable testimony submitted for your consideration as to the blowing engine, the nature of the change and the time when it was completed. The agreement for the substitution was made on September 20. Some work seems to have been done on the foundations that fall. The final plans for the foundations were not furnished by the parties who were acting for the plaintiff in that matter to the defendant, until in February, and after that time, along about May, the foundations were finally completed. It is not complained by the plaintiff that the fact that those foundations were not completed until May delayed the putting on of the blowing engine, but it does say that the fact that the foundation for the reversing engine was not ready prevented its building the blowing engine until long after it would otherwise have had it completed. If you find as a fact, gentlemen, that the foundations for the reversing engine were delayed, if those foundations were not ready on January 1, as I have already said, it leaves the parties at large, and all that the plaintiff would be bound to do would be to go on and complete within a reasonable time. In determining what was a reasonable time, you will consider all the circumstances surrounding the transaction, and it is not improper for you to consider the agreement that the parties themselves bad made, and as affected by the changed conditions produced by this state of affairs which operated as a waiver of the agreement. If the foundations for the reversing engine were completed on January 1, then of course, that is a complete answer to the contention of the plaintiff that this blowing engine was delayed because of the delay in furnishing the foundations for the reversing engine, thus preventing the getting of the reversing engine out of the shop and preventing their getting to work on the blowing engine. Of course, that makes that condition of the foundations for the reversing engine one of primary importance in view of the testimony of Mr. Wade. When were the foundations for that reversing engine finished? There is nothing said about filling in this contract, gentlemen, and if this defendant had, prior to January 1, completed the foundations for this reversing engine in accordance with the plans which had been furnished it by the plaintiff, that was all that it was required to do. The contract did not require the defendant to fill up these spaces about the foundations, but it did require it to finish the foundations, and that is the fact upon which you pass. If, however, after the foundations were finished, it did go to filling in there, and so delayed the placing of that engine, then that would amount to a waiver of this clause entitling it to damages. If although it was not bound to fill in this cinder, it went to filling there at such a time as to delay the delivery and placing of this engine upon its foundations, that would release the plaintiff from liability under this clause, for it would have no right to interfere with the placing of the engine. 'The defendant was not bound under the terms of this agreement to build any extra switches or trestles, and it was not compelled to build any foundations except those that the plaintiff required for the buildings and the engines. It was bound to build the engine foundations in accordance with the plans, but it was not bound to fill in the earth around the foundations. That part of the contract which required the plaintiff to do all the work above the general lqvel did not require the plaintiff to go down to the level of the earth. It simply required it to go down to the top of the foundations, and it did not require the defendant to build any foundations except for the buildings and for the machinery. The defendant, however, did not have the right to dump hot cinder wherever it pleased, and if it delayed the placing of this reversing engine in that way, that would be such a,n interference as would operate as a wraiver of the clause. I do not know that any testimony has been delivered referring especially to any delay of the reversing engine because of this dumping of hot cinder. It possibly may have referred only to other matters. You will remember what the testimony was upon that point; but if the foundations for the reversing engine were there at the 1st of January, the mere fact that the cinders had not been filled in, or that the earth had not been filled in about those foundations, would not, under this contract, release the plaintiff from the operation of this clause, for, under the terms of the contract, the defendant was not bound to fill in.] [12]</p> <p>Verdict and judgment for plaintiff for $76,154.48. Defendant appealed.</p> <p>Errors assigned among others were (6, 8-12) above instructions, quoting them.</p>

Appeal, No. 123, Oct. T., 1897, by W. D. Henry et al., administrators of the estate of James H. Lindsay, deceased, from decree of C. P. Allegheny Co., June T., 1896, Ño. 78, dismissing exceptions to adjudication. Exceptions to adjudication of an administrator’s account. The facts appear by the opinion of the Supreme Court.

Appeal, No. 10, Oct. T., 1897, by defendants, from decree of C. P. No. 1, Allegheny Co., June T., 1896, No. 545, on billinequity. Held: for the reasons stated in the opinion of our Brother Gordon, that, in the selection of school teachers, the provisions of this act must be strictly complied with; and we are not disposed to recede from that position.” If this construction is given to the clause relating to teachers, much more should it be applied to the sale of the…

<p> Criminal law—Murder—Challenge of jury—Opinion of juror. </p> <p>The Supreme Court will not reverse a conviction in a murder case because the trial judge overruled a challenge for cause, where it appears that the challenged juror stated on his voir dire that he had been present as a spectator at a previous trial; that he had heard part of the commonwealth’s evidence, and had read such summaries of the evidence as were published in the local papers, and from that had formed and expressed an opinion against the prisoner, but that his opinion was provisional, and it would not prevent him from rendering a verdict in accordance with the evidence submitted.</p> <p> Criminal law—Murder— Evidence. </p> <p>On the trial of an indictment for murder where the evidence showed that the murdered man had been tied with straps; that the murderers had ridden from the scene of the murder on horses belonging to a tenant of the deceased, and had abandoned the horses several miles from the deceased’s house, on a road leading to the prisoner’s house, it is proper to admit evidence of the tenant that he discovered on the morning after the murder that his barn had been broken open during the night; that a pair of horses, a couple of bridles and a saddle had been taken away, and that the straps with which the deceased had been bound were taken from his fly nets. This testimony was relevant as explanatory of the facts which were before the jury, and as tending to show by what route the murderers fled, and how it was possible for the defendants to have been seen so early next morning where, in the attempt to establish an alibi, their witnesses had placed them, consistently with the theory that they were the murderers, and as showing deliberation, and as a part of the history of the crime.</p> <p>On the trial of an indictment for murder evidence is admissible that, prior to the murder the deceased had in his possession a ten dollar confederate note, and that on the day after the murder the prisoner had in his possession a note similar in appearance, and of the same denomination, which was carefully destroyed by him, in connection with the prisoner’s declaration as to how he came by the note, and why he destroyed it.</p> <p> Criminal law—Murder—Evidence—Eying declarations—Necessity for their admission. </p> <p>The dying- declarations oí a person who has been mortally injured, as to the origin of his injuries and the person at whose hands he has received them, is competent, not merely in a case where the defendant could not otherwise be convicted, but in all casos, no matter how ample the evidence of identification through other sources may be.</p> <p>The dying declarations oí a murdered man as to the identity of the prisoners are properly admitted in evidence where they give in great detail and particularity the maimer in which the deceased was robbed and tortured; the opportunities he had of observing the robbers, so as to enable him to form his belief as to their identity, and conclude as follows: “Iam satisfied that the Roddy boys (the prisoners), brought to my house by the officers, are the same men that robbed and tortured me.” It is no objection to the admission of sueli declarations that at the time they were made a mask was put upon tlie faces of the prisoners so as to leave the same portions of the head and face open for examination as was left of the heads and faces of the robbers on the night of the murder.</p> <p> Charge of court—Stating purport of testimony. </p> <p>The use in the court’s charge of tlie word “claimed” instead of the word “ stated,” in referring to the testimony of certain witnesses who saw two men at a certain place, whom they did not then know, but who, they said at tlie trial, resembled defendants, was not error, where the court was not attempting- to give the purport of their testimony, but only referring the jury to the general class of witnesses to which they, among other witnesses, belonged, and referred the jury to their own recollection of the testimony.</p> <p> Criminal law—Practice—Motion for new trial—Reviews. </p> <p>The refusal of a motion for a new trial is an error in law only where it is apparent that such refusal amounts to a clear abuse of discretion.</p>

<p>Appeal, No. 172, Oct. T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny County, October Term, 1891, No. 451, on case stated.</p> <p>Case stated to determine the marketable title to real estate.</p> <p>The case stated was as follows:</p> <p>On May 15, 1897, Jacob Q. Hook and George Hook, the plaintiffs in this case, sold and agreed to convey by written agreement to the defendant, Eliza L. Me Cune, for the price or sum of §1,075, ali that certain lot or piece of ground situate in the borough of Bellevue, county of Allegheny and state of Pennsylvania, being lot No. 8 in Kendall Park plan of lots, plaintiffs agreeing to furnish a good and marketable title to the premises free and clear of all liens and incumbrances; purchase money to be paid June 15, 1897, upon delivery of a general warranty deed. A general warranty deed for the premises was thereafter duly tendered to the defendant by the plaintiffs and payment therefor demanded, which was .refused, defendant alleging that tlie title to the real estate was bad and not marketable, because the premises of which lot No. 8 in the Kendall Park plan was a part, had formerly consisted of a tract of land containing eight acres thirty-three porches. It was the property of one Edward F. Lightner, who had died seized of the same, and it was sold by virtue of an order of the orphans’ court of Allegheny county, for the payment of his debts, more than five years after his decease, the following being a statement of all the facts relating to the matter in detail:</p> <p>Edward F. Lightner died seized of the premises, intestate, April 26, 1875, leaving to survive him children, as his heirs at law, and J. II. Lightner was appointed administrator of his estate. On September 1,1876, George W. Smith filed a bill in equity against J. H. Lightner, administrator of the estate of Edward F. Lightner, deceased, asking for an accounting of the funds of the partnership which had existed between said Smith and Lightner, under the firm name of E. F. Lightner & Company. The said bill in equity was proceeded in until September 1, 1880, when a decree was entered in favor of Smith and against Lightner, administrator, etc., for the sum of §18,610.10. On November 27, 1880, J. II. Lightner, administrator of the estate of Edward F. Lightner, deceased, presented his petition to the orphans’ court, setting forth that the personal estate of decedent was insufficient for the payment of his debts, and asking permission to sell the said premises for the payment of the same, and setting forth the debts of the decedent, including the debt of §18,610.10 for which the decree was entered. Whereupon the court on the same day made an order for the sale of the premises at public sale for the payment of debts, and they were sold on December 28, 1880, to said George W. Smith, for the sum of $8,700, which sale was duly ratified and confirmed by the court, and a deed made by the administrator for the same, which deed is dated January 8, 1881, and recorded in the recorder’s office, in and for said county; thereupon. Smith went into the possession of 'the said premises. He devised the same by will, dated October 13, 1884, to Hanson Jones, to whom the premises were afterward, by deed dated January 17, 1885, conveyed by the executors of said Smith. Jones, by deed dated June 1,1891, conveyed the said premises to William Jenkinson, who laid the same out into a plan of lots called Kendall Park, and who, with his wife, by deed dated May 4, 1893, conveyed lot No. 8 in said plan to Jacob G. Plook and George Hook, the plaintiffs in this case, and said plaintiffs are now in possession of said lot and the parties hereinbefore named as having owned the said premises were in possession of the same during the time in which they held title, and their several deeds are duly recorded.</p> <p>If the court should be of opinion upon the facts above stated that the sale of said tract of land by order of the orphans’ court at No. 259, September term, 1880, to George W. Smith, made a good and marketable title to the same in him, then judgment to be entered for the plaintiff in the sum of $1,075. If the court should be of opinion that the law is with the defendant, then judgment to be entered for the defendant. Both parties reserve the right to sue out a writ of error or take an appeal.</p> <p>White, P. J., filed the following opinion:</p> <p>Edward E. Lightner died in April, 1875, and J. H. Lightner was appointed administrator in September, 1876. G. W. Smith filed a bill in equity against the administrator, for an account of the partnership between him and the said E. F. Lightner, which was duly proceeded in until September 1, 1880, when a decree was entered against the estate of E. F. Lightner for $13,610.10. On November 27, 1880, the administrator applied to the orphans’ court for power to sell certain real estate of E. F. Lightner, for the payment of the said decree and other debts, which was granted in pursuance of which a sale was made and duly confirmed by the orphans’ court.</p> <p>The lots in controversy in this suit were parts of the real estate of E. F. Lightner thus sold.</p> <p>The question now raised is as to the validity of that orphans’ court sale, because it took place more than five years after the death of E. F. Lightner.</p> <p>Under the facts stated there can be no doubt on the subject.</p> <p>Under the act of assembly of 1834, sec. 24, the debts of a decedent cease to be a lien upon his real estate after five years, “unless an action for the recovery thereof be commenced and duly prosecuted against his heirs, executors or administrators, within the period of five years after his decease.”</p> <p>An “ action ” is a demand or legal proceeding in a court of justice to secure one’s rights. It embraces a proceeding in equity as well as at common law.</p> <p>This action was begun less than two years after the death, and judgment by decree obtained within four years thereafter. It was only a few months over five years after the death of the decedent.</p> <p>It has never been held that the action must be prosecuted to judgment within the five years after death. It is sufficient if the action is brought within the five years and duly prosecuted, although the judgment may not be obtained within the five years: Phillips et al. v. Railroad Co., 107 Pa. 472.</p> <p>And now, September 4,1897, this cause came on to be heard on the case stated, and after arguments by counsel, and due consideration, judgment is ordered to be entered on the case stated, in favor of the plaintiffs against the defendant, for $1,075 with costs.</p> <p>Error assigned was in entering judgment for plaintiff on ease stated.</p>

<p> j¡es adjU(iioata—Judgment. </p> <p>A judgment in a proper court, upon tbe facts contained in the record, puts an end to all further litigation, not only as to the particular claim then before the court, but also as to all claims on account of the same subject-matter.</p> <p>Where the court has decided in an action by an official to recover salary for certain months of his term of office that his salary is payable at a certain rate, the question cannot be reopened in a subsequent action brought by him to recover salary for certain later months of the same term; although facts are alleged in the later case which did not appear in the former case, and which might show a good cause of action, but for the former adjudication.</p> <p>Bes adjudicata—Judgment—Public officers—County treasurer of Allegheny county—Salary—Aets of May 1, 1861—March 11, 1870—March 31, 1876—June 13, 1883.</p> <p>The case of Bell v. Allegheny County, 149 Pa. 381, which decided that as the county treasurer of Allegheny county was compensated solely by a salary, he was entitled only to the salary fixed by the local Act of May 1, 1861, P. L. 450, and not to the larger salary fixed by the general Act of March 31, 1876, P. L. 13, and its supplement of June 13, 1883, P. L. 113, is res adjudicata as to a claim for the increased salary for subsequent months of the same official term, although in the suit to establish such claim there is evidence that the treasurer was compensated not only by salary but by fees : Philadelphia v. By. Co., 142 Pa. 484, distinguished.</p> <p>Public officers—Treasurer of Allegheny county—Fees—Salary—Acts of April 3, 1872 and March 31, Í876.</p> <p>It seems that the fee of $1.00 allowed to the treasurer of Allegheny county by the local liquor Act of April 3, 1872, P. L. 843, section 20, for furnishing blank bonds to licensees, is not a compensation for services, but is merely to reimburse him for money laid out in procuring the printed blank bonds, and it does not render the office of said treasurer one partly paid by salary and partly by fees within the meaning of the Act of March 31, 1876, P. L. 13.</p>

Appeal, No. 176, Oct. T., 1897, by Robert Oliver, from decree of O. C. Allegheny Co., Feb. T., 1896, No. 1, awarding partition. Petition for partition of real estate. On February 12,1896, Harry Jeans presented his petition to the orphans’ court of Allegheny county, claiming one half of the real estate of the decedent, asking partition thereof, and claiming title thereto through his mother, Julia Jeans, in his own right and by conveyance from his father, brothers and sisters.

Appeal, No. 178, Oct. T., 1897, by Ann M. Kurtz et al., from decree of O. C. Allegheny Co., June T., 1897, No. 115, dismissing exceptions to adjudication. Exceptions to adjudication. The facts appear by the opinion of the court below which was as follows: William R. Murphy died testate on April 18, 1896. By his will dated July 12, 1894, he made the following provisions for his wife, who died prior to him, to wit: on September 29,1895: “ Second.

<p> Measure of damages—Stock. </p> <p>The measure of damages for a breach of contract to return borrowed stock is the price of the stock at the time of the refusal to return it upon demand.</p> <p> Debtor and creditor—Collateral security. </p> <p>A creditor who holds stock as collateral security for his debt, and also holds judgments which are liens upon the real estate of the debtor, is not obliged to claim the payment of his debt out of the fund raised by a sheriff’s sale of the real estate, but may rely upon the collateral security for its payment.</p> <p>Where a creditor has a prior lien upon two funds, both of which are subject to junior liens, he is not obliged to resort to one rather than the other to satisfy his debt.</p>

Appeal, No. 184, Oct. T., 1897, by defendant, front judgment of C. P. No. 2, Allegheny Co., Oct. T., 1895, No. 84, on verdict for plaintiff. Assumpsit to recover for services as attorney at law.

<p>Appeal, No. 60, Oct. T., 1897, by-defendant, from judgment of C. P. No. 1, Allegheny Oo., Sept. T., 1895, No. 378, on verdict for plaintiffs.</p> <p>Assumpsit on a book account. Before Stowe, P. J.</p> <p>. The facts appear by the charge of the court, which was as follows:</p> <p>In this case the plaintiffs make out their case by the admitted evidence. There is no question that Mr. Holstein did furnish the amount of leather that is claimed for, and in a general way there is no question as to the prices. There is a question as to some matters about which you heard the testimony, that is,- as to the amount delivered and the weights, which you will consider when the proper time comes. But in a general way the plaintiffs make out their case, and it devolves upon the defendant to meet it.</p> <p>These plaintiffs have no personal knowledge of the transactions. They are the executors of the dead man’s estate. They find upon the books of account or records belonging to the deceased, certain matters indicating that Mr. Kann, the defendant, is indebted to the estate, that is, it shows that without anything on the other side by way of answer. They can throw very little, if any, light upon the subject, except the fact that they have those books. The charges are not controverted. They come into court and there their knowledge in this case seems to terminate, and that will account for the fact that so far as they were concerned they were not upon the stand, because the evidence shows they could not know anything about it any more than you or I would know about a question as to which we have no personal knowledge, or in regard to an estate of which we were executors.</p> <p>But the defendant is met by a similar difficulty. His claim in this case is not that he did not get this leather, but that there was a contract made between him and Mr. Holstein which was, to a certain extent, at least, a private matter, they being friendly in business relations and probably personally. He claims that under that contract Mr. Holstein entered into certain obligations for the delivery of leather of various kinds at fixed prices, with which he failed to comply. When you come to the question of that contract the defendant’s mouth is closed. He is not, and he cannot be, a witness. He has to give his testimony the best way he can, from all the circumstances, or by other witnesses to prove that such a contract existed.</p> <p>I shall not go into details in any shape with reference to the testimony tending to establish the alleged defense. The plaintiffs are entitled to their claim unless the defendant has satisfied you fairly by the weight of the evidence that he has a complete defense. He says that he is entitled, under those allegations, and the testimony tending to sustain them, not only to a verdict in his favor, but that there should be a large amount certified in his favor as a balance, which the jury should give if they should find there was a balance coming to the defendant. If you find a verdict for the defendant, you certify a balance in his favor of so much. That is the form of the verdict. Or you can say, we find for the defendant so much, and we will put it in shape when you come into court.</p> <p>The defendant must satisfy you that there was a contract, must satisfy you of the terms of that contract, must satisfy you of the breach of that contract. Then when he has done that, the question arises between the price that was to be paid for the leather of different kinds that was not delivered, and the market price at that time. That is what the defendant is entitled to have on his side of the settlement in his favor as against the claim of the plaintiffs, the difference between what price was agreed' upon between these parties and the ordinary market price at the time of the death of Mr. Holstein, because there does not seem to be any other standard in this case. We cannot come this side of the death, because that cuts off all question in connection with these matters, relieves his personal liability and puts it out of his hands to comply with the contract. Of course it does not clear the estate, but it seems to me the only legal conclusion is to fix the standard of damages with reference to the market prices as of that date, and not at a later date, when they might have gone higher.</p> <p>The first question is in reference-to this contract. Was there a contract by which there was a specific agreement ? Because that is what you must find; you must find a distinct agreement between these parties to supply certain leather at certain prices and at certain times. I do not mean a particular day, but as demanded, is the allegation. In other words, was there an agreement by which Mr. Holstein agreed to sell all his product, or certain amounts of leather that were ordered by Mr. Kann as soon as it was ordered, immediately or within a reasonable time ? And did he, having the means within his hands, or not having the means, fail to comply with that contract ?</p> <p>If you come to the conclusion that there was such an agreement, then all you have got to do is to calculate the amount that was ordered under that agreement and not delivered, the price under the agreement at which they were to be delivered, and the market price at the time Mr. Holstein died. Upon that matter you will bear in mind that an order is not a contract. If the evidence only satisfies you that Mr. Kann, by a sort of amicable arrangement, ordered from time to time leather from Mr. Holstein, which he filled or not at his pleasure—ordinarily disposed to fill it, but did not fill it,—that does not make a contract under which Mr. Holstein would be bound to pay damages. But if you agree with me to deliver certain products at a certain price specifically mentioned, and fail to do it, and the price went up, I would be entitled to the d ifference between the contract and the market price. If the price wont up you would have a right to make me pay what I agreed to pay. It must work both ways, it must be mutual. There must be something by which each party is bound.</p> <p>In this case the alleged agreement is one under which Mr. Kami had a right to order whatever leather he wanted of certain qualities and quantities agreed upon, and which Mr. Holstein had agreed he would furnish, and furnish at a certain price. If you find those facts, then, as I said before, the question comes as to what that agreement was, what price was to be paid, what was to be delivered under that agreement and what was the market price at the time of Mr. Holstein’s death. Those are matters essentially of fact, matters that I dare not undertake to discuss, because I think, with my own idea of what would be just, I could not do it except by undertaking to array the testimony on one side or the other, and probably I would say too much on one side and perhaps not quite enough on the other side. The law imposes that duty upon you. Of course, there are many cases where the facts are so distinct and clear that it is the duty of the court to point out distinctly where the difference is. In doing that we have a right, and it is our duty, to refer to certain testimony. But I do not think in this case I would be even excusable in so doing, and .therefore, I impose upon the jury the duty that the law places there, first to determine from all the testimony whether there was a contract. It has been commented upon, and you have heard the arguments on both sides. What was that contract? How much leather was tobe delivered under it? What was the price fixed for the leather that was to be delivered ? What was the market price of that which was not delivered under that contract ? And what was the market price of the leather not delivered at the time of Mr. Holstein’s death ? If you come at it in that way, or some similar way of working out that general conclusion, you then find whether the defendant is entitled to any balance at all, and if so, how much- I may say, if you do not find that there was an agreement you must find the amount claimed by the plaintiffs. If you find a contract, it is then for you to say what was the failure to the extent that the contract was not performed, and the damages arising, as I have suggested, by reason of the nonperformance of that contract.</p> <p>We have been asked to say to you that the measure of damages is the difference between the contract agreed upon by Alexander Holstein and the market price on June 10, 1895. That we refuse to do. On the contrary we instruct you, as T have already said, that the measure of damages is the difference between the contract price and the market price on May 10,1895, the date of the death of Alexander Holstein.</p> <p>You can take these statements sent out by counsel merely as a guide and not as evidence.</p> <p>Verdict and judgment for plaintiffs for $9,629.47. Defendant appealed.</p> <p>Error assigned among others was the whole charge, quoting it.</p>

<p>Decedents' estates—Notice of claims to executors and administrators— Act of March 29, 1832.</p> <p>The proviso of the Act of March 29, 1832, P. L. 194, sec. 19, which provides that “ no creditor who shall neglect or refuse to exhibit his account to the executor or administrator within twelve months after public notice given in one or more newspapers published in the county in which letters testamentary or administration have been granted .... and continued for four (now six) consecutive weeks, shall be entitled to receive any dividend of such remaining assets,” is directory merely. It is only a rule of administration which should be relaxed to reach the equities of all the creditors as long as such relaxation does not prejudice the representative, and does not disregard any superior equity of a particular creditor.</p> <p>After an executor’s account had been adjudicated, but before distribution had been made, a creditor living out of the county, and without actual knowledge of a fund for distribution or of the audit, until final decree, presented Ms petition for review, and the orphans’ court, permitted him to present his claim, although it appeared that he had given no notice of his claim to the executor at any time within twelve months from the death of testator. It did not appear that the fund for distribution had been raised by the superior diligence of any other creditor, nor did it appear that the action of the court in any way injured the executor. Held, that the decree of the court permitting the belated creditor to participate in the fund should be sustained.</p> <p> Practice, orphans' courir—Finding of fads by auditing judge—Review. </p> <p>A finding of fact by the orphans’ court as to the novation of a contract by which a creditor of decedent’s firm agrees to accept as debtor a new firm when such finding involves the credibility of witnesses, will not be reversed by the Supreme Court, except for manifest error.</p> <p> Executors and administrators—Accounts. </p> <p>Where two executors have filed separate accounts, one of which has been adjudicated and the other not, the Supreme Court, on an appeal from the decree on the adjudicated account, cannot allow a credit claimed in the unadjudicated account for a payment to a creditor to be computed as a payment to such creditor in the adjudicated account.</p>

<p>Appeal, No. 188, Oct. T., 1897, by I). Wheeler, from decree of O. C. Allegheny Co., Dec. T., 1896, No. 15, sustaining exceptions to adjudication.</p>

<p> Practice, O. P.—Rules of court—Booh accounts—Affidavit as to items of set-off. </p> <p>A rule of court which provides that the defendant who files a specification or statement of set-off shall notify the plaintiff thereof within fifteen days after filing the same, and that no evidence will be heard upon the trial of the cause as to any facts not specifically alleged or referred to therein, applies to every species of counterclaim that may be legally or equitably interposed as a defense, and under this rule the filing of the statement of set-off, without more, is not notice to the plaintiff. If notice of the filing of the specification be not given to the plaintiff within fifteen days, no evidence as to the counterclaim will be admitted at the trial.</p>

Appeals, Nos. 185 and 186, Oct. T., 1897, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1895, Nos. 80 and 81, on bill in equity. Bill in equity for an account. . The facts appear by the opinion of White, J., which was as follows: The cases were heard on bills, answer and testimony, the same questions, and tried together. STATEMENT.

<p>Appeals, Nos. 11 and 12, Oct. T., 1897, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1898, Nos. 80 and 81, on bill in equity.</p>

Appeal, No. 187, Oct. T., 1897, by plaintiff, from decree of C. P. No. 8, Allegheny Co., May Term, 1897, No 479, dismissing bill in equity. Bill in equity to cancel a lease.

<p>Appeal, No. 86, Oct. T., 1897, by defendant, from judgment of O. P. Westmoreland County, May T., 1894, No. 899, on verdict for plaintiff.</p> <p>Trespass for personal injuries.</p> <p>At the trial it appeared that plaintiff, on the night of October 14, 1893, fell down the steps of an entrance to an unprotected cellar way leading from an alley twenty feet wide in the borough of Latrobe. The night was dark, and it was raining. The plaintiff lived a few miles from Latrobe, and was not familiar with the alley.</p> <p>Plaintiff in his testimony described the accident as follows:</p> <p>“Q. You were crossing over Ligonier street, and coming up to the alley? A. Yes, sir. Q. Where were you going to up the alley? A. I was going up to Osborne’s livery stable. Q. What was your purpose in going in there ? A. I was going in there to urinate. Q. Does the livery stable of Mr. Osborne face on the alley; straight on the line of the alley? A. Yes, sir; there is nothing between; it is open right to the alley. Q. What two places are there on the opposite corners of the alley ? A. The livery stable is on the right hand side, and Potthoff’s jewelry store is on the other side. Q. Both these face Ligonier street? A. Yes, sir. Q. Which building were you near to as you crossed the street ? A. I crossed the street right on the opposite side of the Parker House, across this to the right, and came right across to the corner, and turned to my left, right up alongside of his building, to come up this alley. Q. What happened to you there? A. It was a dark, rainy night, it was in the fall, it was cloudy like, and I knew this place was up in this alley, and came to the corner and turned around, and I thought I could go across the alley; it was kind of muddy in the alley. The arc light gave a little light past the corner. I saw what looked like a stone walk, and I thought I would follow that up and cross the alley, and 1 had only made a couple of steps until I fell down this hole. Q. Is Potthoff’s building on the line of the alloy? A. Yes, sir; right on the corner. Q. Runs along the alley? A. Yes, sir. Q. What time in the evening was this? A. As near as I can tell it was about half past eight. Q. How far is it from the corner of the Potthoif building to the beginning of this hole that you fell into ? A. It is a little bit over four feet; about four feet six inches to the top step where it starts down. Q. How wide is the hole ? A. Three feet. Q. Do you know how long it is ? A. About twelve feet, as near as I can tell. Q. How deep is it? A. Seven or eight feet. Q. You have examined the hole since ? A. Yes, sir; I looked at it the next Tuesday. Q. What was the hole there for; what was it made for ? A. It was a cellar way to get down into Mr. Potthoff’s store; 1 never was down, but I suppose that is what it is intended for, there is a door there. Q. What was there to get down that? A. Stone steps down running from Ligonior street. Q. Of what character was the outside wall of this area way ? A. It just faced up level; the wall slopes a little bit; the hole goes into a sort of a dish in the middle, and this is just a stone wall slanting down this side and over the top.”</p> <p>Albert Bossart, a witness for plaintiff, testified:</p> <p>“ Q. Hr. Bossart, describe the location and general dimensions of the area way, as it was in the alley, and its distance from the corner of the street. A. I would presume it is about four and one half to five feet from the corner of the curb at the side of the house in there; it is about three feet wide. Q. How long ? A. I wrould say about eleven to twelve feet. Q. How deep ? A. About seven and one half to eight feet deep at the deepest place; I never measured it though. Q. Was this excavation out on the alley ? A. It is on the alley; on borough property. Q. If a person were going in past the Potthoif building on a dark, rainy night near to the excavation, and there were no guards, signals, or other obstructions around this hole, state what your opinion is with regards to the danger of the place.”</p> <p>This is asked for the purpose of showing in the light of the testimony already in, that the locus in quo was a place of danger to pedestrians in the lawful use of the alley, for the purpose of showing negligence on the part of the defendant in maintaining it in such condition.</p> <p>The question was objected to by the counsel for the defendant, for the reason that while the witness might detail the exact condition of the alley, he is not supposed to determine whether or not its condition amounts to negligence on the part of the borough, and that it is an hypothetical ease, and an opinion by the witness which is the province of the jury to determine, and is therefore incompetent and irrelevant.</p> <p>By the court: Objection overruled, and exception for the defendant.</p> <p>“ A. It would be dangerous. Q. As you described the condition of the area way the next morning after the accident, state whether or not the place would be dangerous. A. It would be dangerous.” [1]</p> <p>Plaintiff’s points and the answers thereto among others were as follows:</p> <p>2. By throwing open its streets, alleys and highways to public travel, the borough thereby invites the public to use the same as its business demands; it is therefore the duty of the borough to maintain its streets and alleys in reasonably safe condition, and clear of obstructions and pitfalls ; and its failure to perform this duty is negligence. Answer: That we affirm. [2]</p> <p>5. We instruct you that the fact that the borough of Latrobe, defendant, had an ordinance permitting cellar ways, etc., constitutes no defense to an action brought for personal injuries received in falling into an area way in a public alley, if you find the same was dangerous, and the plaintiff guilty of no contributory negligence. Answer: That we affirm. [3]</p> <p>6. If in view of all the evidence, the jury find for the plaintiff, then his measure of damages is as follows : The jury must allow in estimating his damages the expense arising in consequence of plaintiff’s injury, compensation for the time his injury prevented him from engaging in his emplojunent, and for the privation and inconvenience he is subject to and is likely yet to be subjected to, and for the suffering he has endured bodily and mentally, and which he is likely to experience during the remainder of his life, as well as compensation for the decrease or loss of his earning power by reason of the injury during the remainder of his life. Answer : Affirmed. [4]</p> <p>Defendant’s points and answers thereto among others were as follows:</p> <p>3. However much the defendant may be in fault, if this plaintiff himself was guilty of negligence in going up that alley, with which he was not acquainted, and under tbe conditions which he described, to wit: that it was dark, raining and storming; and if his negligence contributed in any degree to the injury which he suffered, the law holds that he cannot recover any damages. Answer: This point would require us to dispose of the whole case. Under all the. facts of the case, that question is to be disposed of by the jury. You will take into consideration all the facts of the case, and say whether under the circumstances as you find them to be, there was negligence on the part of the plaintiff. We will not say to you that the facts recited are, per se, negligence. [5]</p> <p>5. The borough authorities are not required to exercise the same degree of care in maintaining alleys as in maintaining public streets and sidewalks, and therefore it was incumbent upon the plaintiff to exercise more care, prudence and vigilance in passing over this alley under the conditions which he describes, than he would have been compelled to exercise in passing over a street or sidewalk in the said borough. Answer: Wo will not affirm this point as a matter of law. We think the same degree of care is to be exercised against dangerous places whether their location is in a street or in an alley, that is to say, a municipality must take into consideration the nature and extent of the use to which an alley is subject, and the character of that use, and its care must be reasonably adequate to protect the public according to the use to which it is subjected,.—and the same is no more or no less true of a street. As a matter of fact, it can be safely assumed that the manner of keeping the ordinary alley is not the same as the keeping of the ordinary street in the thickly populated part of a town. That being the case, and the plaintiff, necessarily visited with that knowledge from his general knowledge of streets and alleys, would have to deport himself in view of that knowledge and in subordination to it, and use ordinary care and prudence, considering all those things. [6]</p> <p>6. A party cannot recover damages for an injury which by the exercise of reasonable care he might have avoided, and the plaintiff in this case having testified that he was unacquainted with this alley, that the night was dark, wet and stormy, so that he could not see where he was going, and that he knew of a safe way back to the stable yard through the stable from Ligonier street, we instruct you that plaintiff in going into the alley did not exercise such reasonable care as the law requires under the circumstances; that his conduct amounted to contributory negligence, and he cannot recover in this action. Answer: We refuse these instructions. The first paragraph of that point, namely: “ A party cannot recover damages for an injury, which by the exercise of reasonable care he might have avoided,” is correctly stated. We will not take from you the duty of passing upon the facts that are recited in the latter clause of this point. Under all the circumstances of the case, the question is for you. [7]</p> <p>7. An alley in a borough is like a public road in a borough, and requires only the same degree of vigilance on the part of the borough, and it is sufficient if a track for wagons and foot passengers is kept in smooth condition, safe and convenient for travel; it being the uncontradicted evidence in this case that an unobstructed track of seventeen feet existed in this alley, when the plaintiff under the conditions testified to by him, wandered from that clear track and was injured by an obstruction on the side, he did not exercise the vigilance required under the circumstances, and cannot recover in this action for the injury received. Answer: That, we refuse, for the same reason that we refused sixth point. [8]</p> <p>9. The conduct of plaintiff, as detailed by his own statement on the witness stand, in going into a dark alley on a dark, stormy, rainy night, without any acquaintance with or knowledge of the condition of the alley is negligence per se. Answer: That would require us to say, as a matter of law, that a person seeking the dark to attend to a call of nature, was guilty of negligence per se in going into it. We will not so instruct you. The question of negligence is for you. That point is refused. [9]</p> <p>10. A municipal corporation is not, as a matter of law, irrespective of locality and surroundings, liable for an injury received by a person who falls into an opening made by a third person in a sidewalk for a stairway, where the entrance only is left open, and the plaintiff in this case having testified that his injury resulted from falling into the opening in question, at the entrance to the stairway, we instruct you that for the purposes of this case, it does not matter whether the balance of the area way was open or not, the defendant is not liable for the plaintiff’s injury. Answer: This point we refuse. The question is for you to pass on—the circumstances of this excavation, its guarding, its location and all that sort of thing, and say under all the circumstances of the ease, whether or not there was negligence on the part of the defendant. The first part of this point is correctly stated: “ That a municipal corporation is not as a matter of law, irrespective of locality and surroundings, liable for an injury received by a person who falls into-an opening made by a third person in a sidewalk for a stairway.” The question of surroundings and locality is to be passed on, and also the fact of its being located in the alley where it is not illuminated by the town lights, if it is not so illuminated; all that is to be taken into consideration. We refuse this point for that reason. [10]</p> <p>14. Under all the evidence in this ease, your verdict must be in favor of the defendant. Answer: This, we refuse, as we-have already said. [11]</p> <p>The court charged in part as follows:</p> <p>[Now then, let us understand as clearly as possible what duties the law exacts from the defendant borough in a case of this kind. Among the numerous powers of the borough it is prescribed that it shall have power to survey, lay out, enact and ordain such roads, streets, lanes, alleys, courts and common sewers as they may deem necessary, and provide, enact and ordain the widening and straightening of the same. Also to prohibit the erection or construction of any building or work, excavation or other obstruction, and the opening, widening and straightening that would interfere with the convenient use thereof, and also to regulate the roads, streets, lanes, alleys, common sowers, etc. These express provisions of the statute law and the principles that constitute these express provisions govern a municipality of this sort and define what its powers and what its duties are. The liability of the borough in view of certain matters to which I will endeaver to call your attention, is commensurate with its duty.</p> <p>Now then, having the power to lay out these streets, lanes, and alleys, and having the power to prevent any obstructions or excavations that would interfere with the convenient use of them, and having the power to regulate these streets, lanes and alleys, we next inquire whether or not the defendant borough came up to the measure of its duty in this regard. Now, in examining this question you must have in view the purpose for which a street or an alley or a lane is dedicated. You must have in view the ordinary use for which it is designed, the frequency of that use made, the constancy of it and the locality of it and the kind of user which it is to be subjected to. All these things you must have in mind, and you will recollect that the defendant borough is not an insurer against accident.</p> <p>It is ordinary care that is demanded. The care that is exacted from the defendant borough is that it provide for the ordinary wants and necessities of the borough in this regard. Now it is incumbent upon them to provide that which will be ordinarily convenient for the use of the borough, and it must also provide that persons using these streets, lanes and alleys will be reasonably secure in their ordinary use of them.] [12]</p> <p>Verdict and judgment for plaintiff for $1,483.38. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-12) above instructions, quoting them.</p>

<p> Will—Trust and trustees—Separate use trust. </p> <p>Testator gave the legal title to the residue of his estate to his executors who were also trustees for his daughters, and directed that the estate should be kept together for ten years after his death, during which time his executors were to collect the income, divide it into eleven parts and pay the daughters one share each, “ for their sole and separate use, and shall be paid into their own hands respectively upon their sole and separate receipt therefor.” At the end of ten years there was to be a “complete partition” made of all his estate into eleven parts, and the executors were directed to hold the shares of the daughters after the division, upon the same trust and with the same power of control as they held the estate before division. The trust was to continue for the life of each of the daughters and the minority of the children she might leave to survive her. The trustees were given entire business management and direction of each of the shares, but any daughter could negative a sale of any part of the real estate included in her share. Held, (1) that the daughters took a life (¡state, the legal title to which was placed in the trustees upon an active trust created for the sole and separate use of each of them during life, with a limitation of the fee after their death; (2) that the direction for a “ complete partition ” meant a division from which nothing should be omitted, and not a division which would vest a fee simple title in each of the daughters, discharged from the trust.</p>

<p>Appeal, No. 144, Jan. T., 189T, by defendants, from judgment of C. P. No. 4, Pbila. County, March T., 1898, No. 383, on verdict for plaintiffs.</p> <p>Assumpsit for goods sold and delivered. Before Arnold, J.</p> <p>The facts appear by the charge of the court which was in part as follows:</p> <p>This action has been brought for a balance due on a bill for the sale of spirits of turpentine, the balance claimed being about $1,000. The sale and delivery of the turpentine, and the amount claimed, are conceded to be correct. [The defense -to-the payment, however, is, that the turpentine was purchased under a guarantee made by the plaintiffs to the buyers, the defendants, that it was pure. It is stated that it was bought by the defendants for the purpose of being used in the manufacture of varnish, and that when they did so use it in the manufacture of varnish they found that it was not pure turpentine, but that it was adulterated] [2] with petroleum or coal oil to such an extent as to vitiate the varnish which the defendants were making with the turpentine and. other ingredients. The defendants allege that they had the turpentine tested and analyzed by a chemist, and ascertained that it had in it petroleum or coal oil, to quite a large extent, and they have introduced testimony to show that the effect of such a substance as coal oil in turpentine, when used in the manufacture of varnish, was deleterious and injurious, and destructive of the varnish. The defendants claim that a large quantity of the varnish which they made with this turpentine was impaired in quality and made less in value than it would have been had the turpentine been good, and they say that they lost altogether on varnish manufactured with that turpentine, about $4,000, which you will perceive, is more than the amount claimed by the plaintiffs.</p> <p>[To that claim of the defendants the plaintiffs object, first, that they did not guarantee absolutely pure turpentine; that they took the order for, and sold, what they called spirits of turpentine as it is commercially known, or known among the trade, without any guarantee or warranty of quality; that it was such as they were in the habit of selling to manufacturers of varnish generally, and that it was such turpentine as is known to the trade as spirits of turpentine.] [2]</p> <p>[They have also offered testimony to show that when the hill for this turpentine became due, a son of Mr. Reeves, and one of the plaintiffs, went to the defendants’ to collect it, when complaint was made as to the quality of the turpentine and that the defendants then offered to settle the whole account for a discount of twenty per cent, but that the plaintiffs refused to submit to sucb a discount, and said that they would take back any turpentine wbicb was not satisfactory, and furnish other turpentine which was satisfactory, young Mr. Reeves saying that at that time he was informed that the defendants bad tbirty-nine barrels of their turpentine still on band, but that the defendants refused to give up tlie turpentine and kept it.</p> <p>Now, if that be true, you will readily come to tbe conclusion that the defendants ought not to be beard in making any complaint after that date, at least as to the tbirty-nine barrels, because if they had an opportunity of having that turpentine which would be satisfactory, and did not embrace the opportunity, tbey took tbe consequences of it. This testimony is introduced for the purpose of testing the bona fides or good faith of the defendants in making this defense, because it will be for you to determine, upon the testimony, whether parties who had turpentine which they claim was guaranteed to be pure, and which was not pure, and who offered to pay for it at a discount, and refused to exchange it for other turpentine which would be satisfactory, ought to be heard in making a defense when claim is made against them. It is, however, a question for you to determine. I express no opinion whatever upon it, but simply outline to you tbe main features of tbe ease:] [1] first, tbe claim for tbe turpentine, admitted to be just, so far as the amount is concerned; next, the defense that the turpentine furnished was of such impure quality as to be absolutely worthless to these defendants and injurious to their property, causing them a money loss of about $4,000, the reply on the part of the plaintiffs that they did not guarantee to sell absolutely pure turpentine, but sucb turpentine as was sold generally to parties engaged in tbe manufacture of varnish; also, that when they made demand for the payment of their bill, they were tendered the money, provided they submitted to a discount of twenty per cent, that they refused to stand that discount, and that they then offered to take back the turpentine and furnish other and satisfactory turpentine in place of it.</p> <p>That is the whole case, as presented on both sides. It is for you to determine, upon the evidence introduced by the parties, whether the plaintiffs are entitled to recover the amount, for which they sue, either in whole or in part, or not at all.</p> <p>[It has been also argued to you that as all varnish is composed of several ingredients it might very well have been that some of the other ingredients put into this varnish were not good, and might have affected the result. It has also been argued to you by counsel, and you have right to give effect to that argument, or not, as you see fit, that the defendants were not as skilful manufacturers of varnish as they ought to have been, and that therefore some of the alleged defects in the manufacture of this varnish were due to their want of skill, as well as the assigned defect on their part of bad turpentine.] [5]</p> <p>This, however, is a case which is peculiarly one for a jury to determine, and as I have said before, it has been so fully detailed to you by the witnesses and argued by counsel, that I shall leave it to you to determine upon the evidence without any intimation whatever from me. It is a pure question of fact for you to say, upon the whole testimony in the case, whether you think the plaintiffs are entitled to the amount which they claim, either in whole or in part, or whether their claim is entirely wiped out by the damage which the defendants say was done to the varnish which they made from this turpentine.</p> <p>My attention has been called by counsel for the defendants to the fact they claim, not only that they do not owe anything to the plaintiffs, but that the damage done to them by reason of the use of the turpentine sold to them by the plaintiffs exceeds the amount of the plaintiffs’ claim considerably, and that the defendants ask at your hands not merely a verdict in their favor, but a certificate that the plaintiffs owe them a certain sum of money, a statement of which counsel will send out with you.</p> <p>If you find that there has been a warranty, and a breach of that warranty, and damages suffered by the defendants, to an extent exceeding in amount the claim of the plaintiffs, you may give the defendants a certificate in their favor that the plaintiffs owe them that excess.</p> <p>Defendants presented nine points which were all affirmed.</p> <p>Verdict and judgment for plaintiffs for $1,305.49. Defendants appealed.</p> <p>Errors assigned among others were (1, 2, 5) above instructions, quoting them. (3) That the learned trial judge erred in not instructing the jury that even if they found as a fact that purity of said spirits of turpentine was not expressly warranted nor guaranteed by plaintiffs, that nevertheless the defendants were entitled in law to have delivered to them by plaintiffs, an article merchantable and salable under the denomination and description of the same as contained in bill of parcels, viz: “ 122 Barrels Spirits of Turpentine, Prime Regulars ” and that the jury should therefore have been instructed by the learned trial judge that they must ascertain from the evidence whether the article as actually delivered by plaintiffs to defendants under the contract between them was merchantable and salable under the denotnination and name “Spirits of Turpentine.” (4.) That the learned judge erred in not instructing the jury that if they found as a fact that the plaintiffs knew or were informed by defendants at the time of the making of the contract, that said spirits of turpentine was to be used by defendants in the manufacture of varnish, and that if the jury further believed that said spirits of turpentine as actually delivered to defendants by plaintiffs under said contract, was in consequence of its adulteration with petroleum oil, or other foreign substances wholly unsuitable or totally unfit for the manufacturing of varnish, and that the defendants in ignorance of the true nature of said admixture innocently and in good faith attempted to use same in the making of said varnish and thereby lost the value of said spirits of turpentine as raw material, and that all the defective varnish manufactured therefrom was worthless, unsalable and thrown upon defendants’ hands as a dead loss ; that then their verdict should be for the defendants, together with an award of a certificate for all damages believed by the jury to have been sustained by the defendants in the loss of large quantities of linseed oil, kauri or shellac gum, litharge, red lead, etc., innocently mixed and compounded by defendants in their attempt to manufacture varnish from said adulterated spirits of turpentine.</p>

<p> Will—Devise—Ademption of legacy—Ground rents. </p> <p>Where a particularly described lot or piece of land is specifically devised, and aferwards the subject of said devise is sold by the testator, or taken from him by operation of law in his lifetime, the devisee takes nothing.</p> <p>A devise of a particular ground rent is a specific devise and will be adeemed by the payment and extinguishment of the ground during testator’s lifetime.</p> <p>Testatrix devised two specifically described ground rents to her executors in trust to pay the rents to her brother. She directed as follows : “ Should said ground rents or either of them be paid off at any time I order and direct my executors to invest the proceeds in legal securities, and hold the same on the same trusts as I have above set forth.” Shortly after the execution of the will one of the ground rents was paid off, and testatrix invested the proceeds in a ground rent of about the same value as the one paid off. She made no change in her will. Held, (1) that direction to invest the proceeds of a ground rent paid off related only to a payment after the death of the testatrix; (2) that the ground rent bought with the proceeds of the extinguished ground rent did not pass to the executors in trust for the brother.</p>

<p>Appeal, No. 147, Jan. T., 1897, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1895, No. 738, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Beitleb, J.</p> <p>At tbe trial it appeared that tbe plaintiff was employed as a conductor on a car owned by tbe People’s Traction Company. On June 23, 1895, at about half past ten in the evening, the car upon which he was employed going east upon the south track ran into one of the defendant’s cars going west upon the north track on Girard avenue between Thirty-sixth and Thirty-seventh street, in the city of Philadelphia, and the plaintiff was severely injured. The terminus of the defendant’s branch was a lot east of Thirty-seventh street and south of Girard avenue, and all of defendant’s cars turned off on a switch at this point, to stop on the lot before returning on their eastward trip. The evidence on behalf of the plaintiff tended to show that the defendant’s car was run with speed around the curve, and in such a negligent manner in front of plaintiff’s car, that a collision was inevitable. The two companies used the track upon Girard avenue in common, east of the switch, but not west of the switch. The diagram on page 409 shows the scene of the accident.</p> <p>The court charged in part as follows :</p> <p>Under the law the Philadelphia Traction Company is answerable for the negligence of its employees. Negligence is ordinarily a question of fact for the jury. The law has defined it to be a want of care under the circumstances of a case, a failure under certain circumstances to do that which under certain circumstances a reasonably cautious and prudent man ought to have done, or a failure to do that which a reasonably cautious man ought to have done. The law also lays down the rule that there can he no recovery where both sides are at fault. The law furnishes no scale by which a jury can decide which one of two careless people was the more careless, or which one of two wrongdoers was more in the wrong than the other. It simply says that if there was fault on both sides, neither can recover from the other.</p> <p> </p> <p>Now, applying those simple principles to this case, gentlemen, it will be yonr'duty to determine one single question, and that is, was the servant of the Philadelphia Traction Company alone responsible for this accident ? If in weighing the testimony you reach the conclusion that the two men were to blame, that the Girard avenue line and the Philadelphia Traction line, were responsible, both of them, for this accident, then there can be no recovery in this case. In determining that question you will, of course, take all the evidence in this case. I presume the locality and its surroundings are sufficiently understood by you without any explanation on my part, and hence from the very slight allusion I shall now make to the facts, I do not want you to consider that I am attempting to review them all. I do not want you to consider that that which I allude to is any more important than that which I do not, but I shall only make mention of a few facts for the purpose of illustration.</p> <p>The yellow car was going west up hill on the northern track of Girard avenue. The terminus of the Philadelphia Traction Company Branch was a lot at 37th, or just east of 37th and Girard avenue and south of Girard avenue, and all the yellow cars of the Philadelphia Traction Company which ran across Girard avenue bridge had to go to that point and stop there before returning on their eastward trip. That was a fact of course known to all the employees of both companies using Qirard avenue. It was a rule testified to have been the rule of- all the companies, that cars going round curves must go round slowly. If there had been no testimony that there was any such rule, I think it would have been recognized that cars should go slowly round curves.</p> <p>The contention on the part of the defendant company is that when the yellow car reached that switch it had a right to go on crossing the south bound track, and the contention is that the Girard avenue car should have been under such control approaching that place known to everybody to exist, as that the car could have been stopped. The contention of the plaintiff, however, is that seeing the car coming down the hill, the motorman on the other line ought not to have turned in on that street, or that having turned in on that switch he ought to have gone across with more expedition than he did The fact is that the yellow car was struck when about from one foot to four feet forward of the rear end of the car.</p> <p>Now gentlemen, it will be for you in weighing this case to decide whether there was negligence on the part of both those motormen, whether there was negligence on the part of the Girard avenue man as well as on the part of the yellow car man, or whether that accident was the result solely and alone of the action of the motorman of the yellow car. If you find that the Girard avenue ear was properly run, that there was no negligence on the part of the motorman of that car, and that the negligence in this case was the negligence of the Philadelphia Traction Company alone, then you can proceed to consider the question of damages, and only if you so find.</p> <p>Defendant’s fourth point and the answer thereto were as follows:</p> <p>Under all the evidence the verdict should be for the defendant. Answer: Refused.</p> <p>Verdict and judgment for plaintiff for $10,000. Defendant appealed.</p> <p>Error assigned was refusal of defendant’s fourth point.</p>

<p> Mortgage—Subrogation—Duty of purchaser to indemnify mortgagor against mortgage. </p> <p>A person who purchases land subject to a mortgage is bound to indemnify his vendor from all loss growing out of the mortgaged debt, and this is the case, although there has been no assumption of the mortgage by the purchaser.</p> <p>A mortgagor, who after sale has been compelled to pay by suit upon his bond, is entitled to be subrogated to the rights of the mortgagee against the mortgaged estate.</p> <p> Equity—Suretyship—Liens—Distribution—Mortgage. </p> <p>In the distribution of a fund equity forbids payment of a prior lien as against a subsequent execution creditor standing to the owner of the first lien in the relation of surety.</p> <p>Testatrix devised to H. a half interest in certain real estate, upon all of which real estate testatrix had previously given H. a mortgage. Subsequently P. purchased the bond and mortgage from H., and also her undivided one half interest in the realty. The mortgage was assigned to" M. to keep it alive as against the entire realty. P. presented the bond for payment out of the estate of the testatrix. The claim was objected to by H. who was one of the two sole legatees of testatrix. Held, that the claim should be disallowed.</p>

<p>Mortgage—Defeasance—Recording—Act of June 8, 1881.</p> <p>The Act of June 8, 1881, P. L. 84, relating to the recording of defeasances, applies to deeds for real estate only.</p> <p>H. assigned to R. his interest in several decedents’ estates for $500, and R. gave H. an agreement dated the next day to reassign within one year for $580. Both papers wore delivered contemporaneously on the receipt by H. of $500 from R. Held, that the two papers, together, constituted a mortgage of plaintiff’s interest in said estates, but that the transaction was not within the terms of the Act of June 8, 1881, P. L. 84, because it had not been shown that the interest conveyed by the assignment included real estate.</p>

<p>Negligence-Street railways—Grossing tracks—Duty of traveler—“ Stop, look and listen."</p> <p>A person about to cross a street at a regular crossing is not bound to wait because a oar is in sight, if it is at such a distance from him that he has ample time to cross if it is run at the usual speed. The rule to “ stop look and listen,” applicable to the crossing of steam roads, applies only in part to the crossing of street railways. There is always a duty to look for an approaching car, and, if the street is obstructed, to listen, and in some situations to stop.</p> <p>In an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff was driving east on a street forty feet wide, without ear tracks, and much used by wagons. When he reached the corner of a street upon which the defendant operated an electric railway ho brought his horse nearly to a stop, and looking south saw an electric car which had crossed a street and was about two hundred and fifty feet from him. He did not notice whether the ear was in motion or was standing at the street crossing. He drove forward, and when his horse reached the tracks the car was close to him, running with great rapidity. He turned his horse northward, but was unable to avoid a collision with the car. There was evidence that the car was running at two or three times the usual speed of street cars. After it struck the plaintiff’s horse and wagon it ran one hundred and fifty feet before it was brought to a slop. Held, that the case was for the jury, and that a verdict and judgment for the plaintiff should be sustained.</p>

<p>Appeals, Nos. 124 and 142, Jan. T., 1897, by Anna F. Devereux, from decree of O. C. Plrila. Co., Oct. T., 1896, No. 549, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The opinion of Ashman, J., was as follows:</p> <p>The bond upon which judgment was entered was given by the decedent in 1875, three years before his death, to his son in the sum of $81,377.64. The origin of the debt was obscure. The decedent, who was a commission merchant, had lost very heavily in 1857, and continued more or less embarrassed financially thereafter. He became in some way involved in the affairs of an insurance and trust companjq and was subjected to various law suits in consequence. The son declared that he had settled and compromised many of these claims for his father, and had paid others, so that at the date of decedent’s death he was the sole creditor of his father, while the company itself was indebted to the decedent in the sum of $62,000. The son had returned from the army when his father’s troubles with the insurance company were culminating, but what resources he had brought back with him was not shown. Further inquiry on this point would' be unprofitable. The judgment was duly entered in the father’s lifetime, and its validity cannot be questioned in a collateral proceeding. More than twenty years, however, have passed since its entry, and the burden of rebutting the presumption that it has been paid rests upon the claimant. That the father did not pay it while he lived seems reasonably certain. Five or six years before his death he gave up all attempts at transacting business, and his means were so limited that he was unable to keep his dwelling house in repair, or to keep down the mortgage interest. His family were forced to take boarders, and his children assisted by their earnings to maintain the household. He owned a farm property near Frankford, which was incumbered to the extent of $25,000, but this was sold by the sheriff, and yielded nothing beyond the mortgage and costs of suit. In the language of his daughter, he sold what he had, little by little, to support the family and to pay interest on mortgages. At his death the dwelling house, with its furniture, the debt due by the insurance company, and a few securities, were the sole materials from which the holder of the judgment could hope for a possible payment. The character of the securities showed howpnuch ground there was for hopefulness. They comprised two shares of the Huntingdon and Broad Top Railroad Company, five shares in the Chiriqui Improvement Company, a defunct enterprise once located on the west coast of South Africa, and one share of a stock in a railroad which was never built. They also included an indebtedness of $62,000 by the United States Insurance, Annuity and Trust Company, upon which a single dividend was realized of $620. The principal item in the account, without which an accounting was scarcely called for, was a sum of $8,889, which was received in November, 1896, from the estate of a deceased relative.</p> <p>With these particulars in hand, all argument based upon the relationship of the parties, as affecting the presumption of payment, may be thrown aside. That species of reasoning is always illusive, because it works with equal efficiency in either direction. A son would not be likely to harass his parent with demands for payment which the father was unable to meet, and this circumstance would favor the presumption of nonpayment. On the other hand, a father in failing fortunes would be tempted to protect 1ns son, even at the expense of other creditors, and this would strengthen the theory of payment. The evidence, while uncontradicted, is a ñat bar to the presumption of payment, because it proves as a substantive fact that payment was impossible. It makes out a case not merely of insolvency, for, as we said in Griffith’s Estate, 14 W. N. 0. 486, “ a man may pay one creditor and be unable to pay ten creditors,” nor of poverty, for a debtor may impoverish himself by paying the very debt which is in controversy, but a case in which, after the entry of the judgment, no fund was in existence out of which it could be satisfied. The award to the son was proper, and the exceptions thereto must be dismissed.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Motion for reargument.</p> <p>The case was originally reported in 188 Pa. 74.</p>

<p> Municipalities—Ordinances—Paving streets—Road law—Constitutional law. </p> <p>The Act of May 9, 1871, P. L. 630, which authorizes the city of Erie “ in the levy and assessment of taxes paid or imposed on any lots or lands in said city to discriminate between property fronting on or adjacent to any street or streets which shall have been previously paved in whole or in part at the expense of the owner or owners thereof, and .... to wholly or in part exonerate any lot or property so fronting on or adjacent to any street wholly or in part so paved from the payment of all, or of so much city tax, as they may deem proper” does not violate article IX., sec;. 1, of the constitution requiring uniformity of taxation, nor article IX., sec. 2, forbidding the exemption of property from taxation.</p> <p> Municipalities—Ordinances creating contracts—Repeal of ordinance. </p> <p>The authorized body of a muuioipal corporation, acting within the scope of its powers, may bind it by an ordinance which, in favor of private persons interested therein, may, if so intended, operate as a contract ; and the repeal of such an ordinance cannot operate retrospectively to impair private rights vested under it.</p> <p>Where a city having proper legislative authority passes an ordinance allowing the owners of property abutting on a street to be paved, an abatement of their general city taxes on the same property, equivalent to a portion of the assessment for the improvements, and property owners relying upon the ordinance petition for the paving of a street, the city cannot by repealing the ordinance affect the rights of the property owners which had vested under it.</p>

Appeal, No. 252, Jan. T., 1897, by Commonwealth Title Ins. & Trust Co. et al., from decree of O. C. Pbila. Co., Jan. T., 1896, No. 167, dismissing exceptions to adjudication. Exceptions to the adjudication of the account of the executors of the last will and testament of Henry W. Gimber, deceased.

Appeal, No. 254, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 4,- Phila. Co., December T., 1896, No. 816, on verdict for defendant. Assumpsit on a promissory note given for a balance due on account of the purchase of a drug store.

Appeal, No. 275, Jan. T., 1897, by defendants, from order of C. P. No. 1, Phila. County, June Term, 1893, No. 786, dismissing exceptions to report of referee. Assumpsit to recover hire under a charter party. The material portions of the charter party were as follows : “ 4.

Appeal, No. 163, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 1, Piula. County, June Term, 1895, No. 730, on verdict for defendant. Trespass for personal injuries to a child three years old. Before Biddle, P. J. At the trial it appeared that the plaintiff, a little girl three years old, was seriously injured on April 3, 1895, by being knocked down by one of defendant’s horse cars.

<p>Appeals—Penalty for delay—Act of May 19, 1897.</p> <p>On an appeal by defendant from a judgment for want of a sufficient affidavit of defense in a suit upon a promissory note, the penalty for appealing merely for delay provided by the act of May 19, 1897, see. 21, P. L. 72, will be imposed where it appears that the record had never-been brought up; that no assignments of error had been filed; that no paper-book had been served upon plaintiff; that on the first day of the term the appeal was withdrawn and the case discontinued; that the affidavit of defense alleged no more than that the note in suit had been given with the express condition that it should be renewed at maturity, and that the plaintiff had refused to accept a renewal.</p>

<p> Replevin—Sheriff's vendee—Distress—Landlord and tenant—Evidence. </p> <p>In an action of replevin by the sheriff’s vendee for goods which, before their removal'from the premises where they had been sold, were distrained for a quarter’s rent which matured between the time of the levy and the sale, one of the questions in dispute was whether the goods could have been removed in the ordinary course of business before the distraint, and another was whether there was a demise to the plaintiff after the sheriff’s sale. Held, that evidence as to the dimensions and contents of the buildings and as to whether plaintiff had offered to pay rent for the time during which he had occupied the premises was relevant.</p> <p> Sheriff's sale—Removal of goods—Reasonable time—Landlord and tenant.. </p> <p>A sheriff’s vendee of goods stored in a leased building has a reasonable-time in which to remove the goods after the sale. Such time is not the shortest possible time in which they could be removed, but the time required to move them with diligence in the ordinary and usual manner of moving such goods. An extraordinary case, like a hurried removal of goods from a building on fire, furnishes no measure of the reasonable time required, for the removal of such goods.</p> <p>In an action by a sheriff’s vendee to recover goods distrained after the-sale, it appeared that the goods were turned over by the sheriff to the-plaintiff on a Saturday evening, and were distrained on the following-Thursday morning. Plaintiff testified that he was busy on Monday in picking out and delivering goods bought by other parties, and that he spent all of Tuesday in looking for a place to store the goods purchased by him. He-also testified, but in this he was contradicted, that on Wednesday defendant agreed that lie should keep the premises for a month and pay rent therefor. There was testimony that it would take from five to twelve days to remove the goods. Held, (1) that the fact that the plaintiff did not remove any portion of the goods before Thursday did not work a forfeiture of Ms right to the reasonable time which the law allowed for their removal; (2) that a verdict and judgment for plaintiff should be sustained.</p> <p> Evidence—Examination of witnesses—Discretion of court. </p> <p>The allowance or disallowance of questions addressed to a witness on a re-examination of him for the purpose of obtaining a repetition of some part of his former testimony, is a matter within the sound discretion of the court, and, therefore, not subject to review, unless a palpable abuse of discretion appears.</p> <p> Evidence—Lost letter. </p> <p>Evidence of the contents of a letter cannot be given without proof of the loss of the letter, or at least of an effort and an inability to produce it.</p> <p> Practice, G. P.—Trial—Charge of court—Expression of opinion by judge. </p> <p>It is not error for a trial judge to express an opinion upon the weight of the evidence if the facts be left to the jury.</p>

<p> Mortgage—Release—Debts secured by mortgage. </p> <p>Where a vendor of land, in taking a purchase money mortgage, agrees that if a certain sum of the mortgage debt per acre shall be paid by the vendee he will release from the lien of the mortgage any portion of the land which the purchaser shall ask and describe, proportioned to the number of acres paid for, such portion of the land will be released, not only from the lien of the mortgage, but also from the debt secured by the bond; and if judgment be entered upon the bond the lien of such judgment will be confined to the portion of the land not released: Neale v. Dempster, 179 Pa. 569, reaffirmed.</p> <p> Practice, 8. G.—Affidavit of defense—Review—Right to trial by jury. </p> <p>Where the court in entering judgment for want of a sufficient affidavit of defense distinctly bases its determination on the construction of certain writings which admittedly contain the entire agreement between the parties, it cannot be said that one of the parties was deprived of his constitutional right to trial by jury.</p>

<p>Appeal, No. 174, Oct. T., 1897, by defendant, from order of C. P. No. 1, Allegheny County, June T., 1896, No. 866, discharging rule to open judgment.</p> <p>Rule to open judgment.</p> <p>The petition for the rule was as follows:</p> <p>The petition of William Rogers, the defendant in the above case, respectfully represents that suit was brought at No. 866, June term, 1896, by plaintiffs v. defendant upon promissory note dated February 8, 1896, for 81,800, payable in sixty days after date alleged to have been made by William Rogers, the defendant, to the order of Doherty Bros, and indorsed by Doherty Bros, and given to the plaintiffs for valuable consideration; that on April 29,1898, an affidavit made by defendant ivas filed in this case, setting up the defense that the note sued upon ivas Avithout any consideration Avliatever, either to defendant or to Doherty Bros., or in the execution or indorsement and delivery of said note to said plaintiffs, and denying that the said plaintiffs acquired the said note for a valuable consideration, and alleging that, on the contrary, the whole transaction was made as an accommodation to said plaintiffs, without any consideration to this defendant or to Doherty Bros.; that shortly thereafter, to wit: on May 20, 1896, the aforesaid affidavit of defense was withdraAvn and a judgment confessed for $ 1,814.10 was entered therein; that the defendant made the aforesaid affidavit at the time while in a condition of doubt as to whether or not the note sued upon in this case was his note or a forgery, and was very loth to raise a question of forgery when he knew he had complete and sufficient defense without setting up or alleging forgery; that since the filing of the aforesaid affidavit of defense, and since the entry of judgment upon confession, deponent has asoertained as a fact which he is able to prove that the nobe sued upon in ibis case was a forgery and a fraud upon him, and that be has never received any consideration, advantage or benefit therefrom in any way, shape or form, from the aforesaid D. L. Gillespie or from Doberty Bros., aforesaid, and that Doherty Bros, well knew the said note to be a forgery, botb at tbe time of delivering same to D. L. Gillespie and Co. and at the time he importuned and prevailed upon the defendant to confess judgment for the aforesaid $1,814.10, upon the representation that that would be the last he would ever hear of the case; that the confession of judgment entered in this case was made through mistake as to the facts, in connection with the matters at issue in this case, and upon the advice and urgency of Geo. Doherty, doing business as Doherty Bros., the person to whose order the note in this case is drawn, and without any consideration to himself in any shape or form from either the said Geo. Doherty or from D. I;. Gillespie and Co.; that defendant has frequently requested plaintiffs to show him the original note alleged to have been made by him to the order of Doherty Bros., and by the latter indorsed and delivered to plaintiffs, but they have always refused to allow him to see the original note sued upon in this case, a copy of which only is filed herein.</p> <p>Your petitioner therefore prays this honorable court that a rule may issue upon plaintiffs to show cause why the judgment entered at the above number and term should not be opened, and the defendant let into a defense.</p> <p>The following affidavit was filed with the petition:</p> <p>Before me, the subscriber, personally appeared Charles J. Henderson, who, being duly sworn, deposes and says, that he was employed by Doherty Bros, for several years in the capacity of bookkeeper, and as such employee was familiar with the transactions between William Rogers, defendant in the above entitled case, and Doherty Bros.; that Doherty for a long time had been in the habit of procuring from William Rogers his signature to notes with amounts left in blank to be filled for a small amount, and that the said Doherty would then in the absence of Mr. Rogers fill the blank up for a larger and different amount than that agreed upon by Mr. Rogers; that he knows that this practice was engaged in by Doherty, and that Mr. Doherty knew that Mr. Rogers would not consent to sign a paper with an amount written therein in a sum greater than $200 or $300. Deponent says that he was present when these transactions were had, and that Doherty would say to Mr. Rogers: “ Mr. Rogers, we want to get your note for a small amount, $200 or $300.” Then Doherty would have Mr. Rogers sign a note with the amount blank, and after Rogers would go away Doherty would fill note with any amount necessary for his purpose, which would always be for a larger amount than that represented to Mr. Rogers that the note was for. Deponent states that he never knew of Mr. Rogers indorsing or signing a note represented to him to be for an amount over $200 or $300, but knows that several notes were filled out after Mr. Rogers had signed, for a larger amount than represented. Deponent states further that to his best knowledge and belief the aforesaid William Rogers never made and delivered the note sued upon in this case to Doherty Bros.</p> <p>Error assigned was order discharging rule.</p>

<p>Appeal, No. 285, Jan. T., 1898, by defendant, from judgment of O. & T. Montgomery Co., on verdict of guilty of murder in the first degree.</p> <p>Indictment for murder. Before Swartz, P. J.</p> <p>From the record it appeared that the prisoner was indicted for the murder of his wife, Emma P. Kaiser.</p> <p>The indictment was as follows :</p> <p>11 In the Court of Oyer and Terminer and General Jail Delivery in and for the County of Montgomery. December Term, 1896.</p> <p>“Montgomery Countt, ss.-</p> <p>“ The grand inquest of the commonwealth of Pennsylvania, inquiring for the county of Montgomery upon their respective oaths and affirmations do present that Charles 0. Kaiser, Jr., late of the said county, yeoman, on the twenty-eighth day of October, in the year of our Lord one thousand eight hundred and ninety-six, with force and arms, &c., at the county aforesaid and within the jurisdiction of this court, in and upon the body of one Emma P. Kaiser in tbe peace of God and tbe said commonwealth then and there being, feloniously, wilfully and of his malice aforethought, did make an assault, and her the said Emma P. Kaiser then and there feloniously, wilfully and of his malice aforethought, did kill and murder, contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.</p> <p>“ Jacob A. Stbassburg-er, “District Attorney.”</p> <p>At the trial the commonwealth alleged conspiracy between the defendant and James A. Clemmer to commit the murder for the purpose of recovering insurance upon the life of Mrs. Kaiser. The defendant alleged that the murder was committed by a highwayman, to the defendant unknown. The trial judge held that the evidence was insufficient to establish conspiracy, but permitted witnesses to give testimony of the presence and identity of Clemmer as an accomplice. [5-9]</p> <p>Verdict of guilty of murder in the first degree, upon which the defendant was sentenced.</p> <p>Errors assigned among others were (1-4) in refusing to arrest judgment on the ground that the commonwealth failed to establish that the corpus delicti took place in Montgomery county; (5-9) admission of evidence relating to the presence and identification of Clemmer; (10-17) instructions relating to the presence and identification of Clemmer; (18-28) various omissions of court in not calling the attention of the jury to particular items of testimony; (29) that the charge as a whole was argumentative and inadequately presented the prisoner’s defense.</p>

<p> Mortgage—Scire facias—Affidavit of defense—Pending partition proceedings—Parties. </p> <p>On a scire facias sur mortgage, the defendant filed an affidavit of defense in which he averred (1) that “the defendant has begun and is prosecuting with due diligence proceedings in partition in the orphans’ court, under which the mortgage, being against his undivided interest, will be-discharged and payment made from the fund raised by sale; (2) that the right of the plaintiff to sue does not appear on the face of the scire facias, as it is not alleged therein that letters testamentary to the executors to-whom the mortgage was given or letters of administration de bonis non cum testamento annexo to the plaintiff were granted in this state.” Held,. that the affidavit was insufficient to prevent judgment.</p>

<p>Appeal, No. 469, Jan T., 1896, by Patrick J. Corcoran, from decree of O. C. Piula. Co., Oct. T., 1896, No. 587, passing on exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that Charles Lafferty died October 10, 1885, possessed of considerable property, both real and personal. By his will he appointed four persons to act as executors and trustees, and provided that “ whenever my executors and trustees shall from any cause be reduced to two, they shall petition the orphans’ court to appoint another so as to keep up the number of three executors and trustees. . . . They shall nominate to the court such person as shall be a satisfactory colleague and be approved by the court for capability and good character.” He named as the executors of his will his son Charles H. Lafferty, his daughter Rose E. Lafferty (she being blind at the time of her appointment), the Right Rev. William O’Hara and Daniel Glackin. Upon the probate of the will Bishop O’Hara declined to act, and letters were granted to Charles H. Lafferty, Rose E. Lafferty and Daniel Glackin. Daniel Glackin subsequently died, and Rose Lafferty, widow of decedent, was appointed to succeed Mm. She died June 10, 1888, and on October 18, 1888, upon the petition of Charles H. Lafferty and Rose E. Lafferty, the surviving executors, Patrick J. Corcoran was appointed to fill the vacancy.</p> <p>At the audit, a claim was made by the receiver of the firm of P. Lafferty & Co. to recover certaM sums which said Corcoran, who was a member of this firm, had paid to the estate on account of his individual indebtedness thereto. The receiver claimed that the sums so paid over were partnership funds, while the accountants set up that the partnership was indebted to the trust estate for moneys of the trust diverted by Corcoran to the partnership, and also that the sums paid as above by Corcoran to the estate wore paid in checks or cash which gave no notice that they consisted of partnership funds. The court rejected the receiver’s claim.</p> <p>The accountant presented a claim for five per cent commissions on $179,171, which represented the gain made upon the sale of certain trust property over the amount of the appraisement. The court allowed the commissions of tMee and one half per cent.</p> <p>Other facts appear by the opinion of the court below, by Hanna, P. J., which was as follows:</p> <p>It is no slight task to consider the many questions arising upon the settlement of this account. On November 3, 1892, the seventh account of the executors and trustees was filed. It is entitled the account of the three executors, but is signed by but one of the number, viz: Patrick J. Corcoran. It should be entitled the account of the trustees, or executors and trustees, for the reason that all duties connected with the administration of the estate long since ended. And the real and personal estate were held and managed by the accountants as trustees. The trust estate consists of both realty and personalty, the former comprising a large number of dwelling houses and ground rents, and the latter both railroad, railway stocks, and bonds and mortgages upon real estate. The control and management of the estate, exclusive of any permanent investment made from time to time -by the trustees, seems to have been committed and intrusted by them to said Patrick J. Corcoran. Upon him devolved the duty of the collection of rents, interest and dividends, repair of the real estate, payment of taxes, etc., and the disbursement of the income in the payment of annuities and distributive shares, in such manner and at such times as he deemed proper and convenient. The office for the transaction of the business of the trust was in one of the dwelling houses of the estate, also the home of Rose E. Lafferty, a daughter of testator, and one of the trustees. At this office said Corcoran, with said Rose E. Lafferty, was in daily attendance." He was the bookkeeper for the trustees, and the few books required, such as rent book, cash book and check book were under his sole control, and the receipts and other vouchers were in his exclusive possession. As subsequently appeared, the books were kept in a negligent and inartificial manner. The trustees adopted the very proper and commendable custom of annually filing an account. When the time approached for the preparation of their seventh account it was prepared by counsel for the trustees; but was not satisfactory to Charles H. Lafferty, one of the trustees, for the reason that he had not examined it, nor compared therewith the vouchers, in the custody of his cotrustee Corcoran. The trustees had not for several years maintained, in their intercourse with each other, those relations of fraternal affection and friendly trust and confidence it was their duty to cultivate. They had become unfriendly and estranged. And when the account prepared as stated was filed, without the concurrence and examination which Charles H. Lafferty desired, his dissatisfaction resulted in the employment by him of separate counsel. To add to his unwillingness to accept the correctness of the account and great dissatisfaction with the course adopted by his two cotrustees, Rose E. Lafferty and P. J. Corcoran, the account they filed as a joint account, by some misunderstanding or misinformation by counsel, was audited and confirmed nisi, unknown to said Charles TL Lafferty. The confirmation, however, was promptly vacated by the auditing judge upon the application of counsel for said Charles H. Lafferty. The account referred to as already stated was signed by said P. J. Corcoran alone, although it is to be presumed it was concurred in by said Rose E. Lafferty. It comprised the period beginning October 11, 1891, a,nd ending October 10, 1892, and embraced both principal and income of the estate. After the vacation of the confirmation of the account, it seems that the counsel for Charles H. Lafferty, after many and tedious delays, succeeded in obtaining the books and vouchers in the possession of his cotrustee Corcoran, and employed a professional and expert accountant, who entered upon a prolonged examination of the same. Notwithstanding the suggestion of the auditing judge as to the proper practice to be observed, and instead of proceeding with the audit of the account filed by Corcoran and correcting it by surcharge, or disallowance of credits, and treating it either as a separate account of Corcoran, or his joint account with Rose E. Lafferty, the said Charles H. Lafferty, refusing to be bound by it, and claiming his well settled light to file a separate account, the account already filed was disregarded by the common consent of counsel, and the expert accountant employed proceeded to laboriously prepare another account, beginning October 11, 1891, and continuing to December 81, 1894, more than two years beyond the period embraced in the account already filed.</p> <p>This new account was again entitled the account of the “ executors ” instead of “ executors and trustees ” or as “ trustees ” and is signed alone by said Charles H. Lafferty. It was filed with the register on May 2, 1895, and finally reached before the auditing judge on June 10, 1895. This long delay of more than two years, with its attendant great expense, could have been avoided if counsel had followed the usual and regular practice of the audit and examination of accounts filed by one executor or other fiduciary without the knowledge or approval of his coexecutors, trustees, etc., or alleged by legatees, creditors, etc., to be false or otherwise incorrect. The result is we have before us an account filed by one executor and trustee, but entitled the account of the three executors, and as to which his cotrustees are but constructively parties. Moreover, it is not confined to the period embraced in the account filed by Corcoran as before mentioned. But however irregular this mode of procedure, no objection was made either by said Corcoran or Rose E. Lafferty, and the audit of the account proceeded as if both were actually parties thereto. Both appeared by counsel and in person, either before the auditing judge or at the argument of the exceptions. All the trustees participated in the several matters in contest, two filed exceptions and all, by their counsel, took part in the argument. So that they must be held to have joined in the account, and therefore individually and collectively liable to the cestuis que trust, for the balance of principal and income which, by the account, they admit to be due the trust estate.</p> <p>Coadministrators may sever in their accounts and each is held liable only for his own administration; but they and their sureties are jointly liable in a suit on their bonds: Metz’s Appeal, 11 S. & R., 204; Patterson’s Est., 1 W. & S., 291; Davis’s App., 23 Pa., 206.</p> <p>Coexeeutors and cotrustees may also account separately, and they are not jointly liable except for negligence and fraud; and this only where the estate of the defaulting trustee is insolvent: Boyd v. Boyd, 1 Watts, 365; Stell’s App., 10 Pa. 149; Irwin’s App., 35 Pa. 294; Geddis v. Irvine, 5 Pa. 508.</p> <p>And in Hengst’s App., 24 Pa. 413, it is held that by the settlement of a joint administration account executors render themselves prima facie liable for the balance; and in equity the estate of either who may subsequently die, is liable, if he had actually received the money, or the survivor be insolvent; especially if no effort had been made by the deceased executor during a number of years to secure the fund received by the executor who had become insolvent.</p> <p>And if tbe coexecutors file or settle a joint account they become jointly liable. But should either desire to escape liability for assets not received by him, or impose upon his coexecutors, a liability to which they ought to contribute, he should either file a separate account, or insist upon moneys or other assets, the collection of which was incumbent upon the executors, being included in their joint account: Ducommuu’s App., 17 Pa. 268; Bierly’s Eat., 81* Pa. 419.</p> <p>A joint account filed by coexecutors conclusively fixes their joint liability for so much as they have accounted for, but not for uncollected securities for which credit is taken in their account : Lightcap’s App., 28 Pittsburg L. J. 162.</p> <p>And where separate accounts are filed there should be a separate distribution: Evangelical Asso.’s App., 35 Pa. 316 ; Ileyer’s App., 34 Pa. 183. As the accountants have no joint duty of distribution, the account filed therefore admits the joint receipt and custody of both the investments and moneys forming the corpus and income of the trust estate. But two of the trustees, however, notwithstanding they are parties to the joint account, seek to avoid this responsibility to their cestuis que trust by alleging that certain moneys of both principal and income were never received by them, but solely by their cotrusteo Corcoran, and misappropriated by him. However this may be, so far as respects the joint liability of the trustees, it can be of no avail. And it seems well settled by authority that tbe trustees, having filed a joint account and charged themselves with the whole amount of the estate as if collected and received by them, cannot thus evade liability assumed, and compel the cestuis que trust to look to one of the trustees for the amount it is alleged he misappropriated. Nor can they claim a severance in the account. They elected to treat it as a joint account, and are concluded by it. The proper course has been already pointed out, and if they did not elect to be bound by the account, in order to escape a personal liability, they should have refused to be made parties to the account filed by Corcoran alone, and proceeded to its audit and settlement and ascertained the balance due from him to the estate; then compelled him to file a further account of all moneys collected by him from the close of his account, to the date he was restrained by injunction from interfering with or taking any part in the management of the estate. Thus the balance due by him individually of moneys his cotrustees allege were collected alone by bim would be ascertained, distribution made by directing tbe investments forming part of tbe principal of tbe estate to be delivered to bis cotrustee, if tbe same was not already in tbeir possession, and tbe balance of income to be paid to tbe cestuis que trust and annuitants in accordance with tbe will. This is tbe separate distribution, contemplated by tbe individual accounting of executors, etc: Heyer’s App. and Evangelical Asso.’s App., supra.</p> <p>And no occasion would arise for either Rose Lafferty or Charles H. Lafferty to file other than a principal account if tbe securities, etc., were in tbeir possession or under tbeir control, for it is conceded and shown by tbe testimony, that prior to tbe injunction against said Corcoran, neither of them collected or received any part of tbe bicorne of tbe estate. And any account filed by them of tbe income would include simply tbe money received since tbe date of tbe injunction. So, in like manner, by joining in tbe account filed by Charles H. Lafferty as a joint account, Rose E. Lafferty and P. J. Corcoran have made themselves parties to and are concluded by it, and it is now too late to escape Rabbity by endeavoring to maintain that it should be considered first, as a separate account of P. J. Corcoran, in order to ascertain tbe amount due individually by him; second, as a separate joint account of Rose E. Lafferty and Charles H. Lafferty to ascertain tbe amount to which they are liable; or, third, as the separate account of Charles H. Lafferty in order to determine bis individual liability. Tbe cestuis que trust have tbe right to bold tbe three trustees to tbe account they elected to file or as if filed by them, and should not be compelled to follow an alleged insolvent trustee for a portion of tbe income or tbe principal be has appRed to bis own use. Tbe trustees, by permitting tbeir names to be used in its title or caption, making no objection to tbe account, and, when called for audit by tbe court, participating in its settlement and final adjudication, must be estopped thereby, and they should be held jointly and severaUy bound, and liable to tbe cestuis que trust, for tbe balance of both principal and income stated in tbe account. With this conclusion, however, tbe majority of the court do not concur, and, as they are of the opinion that the form in which the account is stated is immaterial, and its disposition by the auditing judge is proper, the exception to his refusal to hold the trustees jointly liable must accordingly be dismissed.</p> <p>Exceptions were filed by certain of the cestuis que trust to the allowance of commissions claimed by the accountants upon the gain arising from the sale of investments, and by one of the executors to the reduction by the auditing judge of the amount of commissions claimed. But we are not convinced of any error in the conclusion of the auditing judge, and these exceptions are also dismissed. A further exception, relating to the principal of the estate, is to the allowance of the claim of Patrick Lafferty, one of the cestuis que trust, to recover for services alleged to have been rendered by him in preparing plans and specifications, and superintending the erection of certain dwelling houses, built by the trustees.</p> <p>We are not unmindful of the oftrepeated and well recognized rule, that the finding of the auditing judge upon a question of fact, like the verdict of a 'jury, will not be disturbed, unless clear error or mistake of fact be shown, or that it is clearly contrary to the evidence or weight of the evidence. The first obstacle, however, to the allowance of this claim is a question of law. The claimant alleges he was employed by two of the three trustees. In Hill on Trustees (1857), *305, the familiar principle is stated that trustees have all equal power, interest and authority with respect to the trust estate, As a general rule, therefore, they cannot act separately, but they must all join in any sale, lease or other disposition of the trust property, and also in a receipt for money payable to them in respect of their office. And in this they may differ materially from executors, who have a joint and entire authority, and any one of whom may effectually bind or dispose of the assets by his own individual act. And the principle of law, as applied to the eases of trustees, as well as other persons holding as joint tenants, is, that every act done by one of them for the benefit of the whole, shall bind the others, but not those acts which might tend to their prejudice. And where the act is for the benefit of the estate, the act of one will be binding on the others. Here, the employment of the claimant by two of the trustees, which imposed a charge upon the trust estate without the knowledge or concurrence of the third trustee, cannot be held to confer a benefit upon the whole number of trustees, nor in the absence of the proof of valuable and meritorious services, of benefit to the trust estate. Again, in 1 Lewin on Trusts, 374, it is stated to be a well settled principle that if there be more than one trustee all must act together. In Vandever’s App., 8 W. & S. 405, it is held that in matters involving the exercise of discretion, cotrustees must join; one of them cannot bind the trust fund without the assent of the other. One of three trustees has not power to put an end to a lease of the trust property: Kingsley v. School Directors, 2 Pa. 28; Koelle v. Englert, 12 Phila. 517; De Haven v. Williams, 80 Pa. 480.</p> <p>The conclusion must, therefore, be that if claimant was employed by the two trustees, as alleged by him, they exceeded their authority and could not bind the estate. For this reason alone the claim should be rejected. But, as a question of fact, two of the trustees, Rose Lafferty and Charles H. Lafferty, unequivocally deny any employment of the claimant by them, and the remaining trustee was not examined as a witness either in support of or in opposition to the claim. The only evidence approaching the dignity of proof of employment of claimant is that the trustee last referred to “ presented a bill in the claimant’s name to counsel for this service and said it was correct.” And so remote were the alleged services of claimant from being beneficial to the estate, the evidence shows that he was a meddlesome disturber of the builder and contractors. He was not the architect, and yet, wholly unauthorized, he interfered with and assumed to change the plans of one of the contractors, to such an extent that his sister and brother, two of the trustees, peremptorily directed the contractor to proceed with the work unmindful of him; and another of the builders testified that he impeded the work by useless directions. These facts clearly disprove any employment of claimant by the trustees and far outweigh the slight attempts to substantiate his claim. It should be disallowed, and the exceptions to the award to him are sustained.</p> <p>Exceptions were also filed by the receiver of the firm of P. Lafferty & Go. to recover moneys of the copartnership alleged to have been paid into the trust estate by a member of the firm, who is also one of tlie trustees, but, for the reasons stated by the auditing judge, which fully sustain a disallowance of the claim the exceptions are dismissed.</p> <p>We will now pass to the income account: It is shown by the testimony that the entire income was collected by P. J. Corcoran until the date of the injunction restraining him from further management or control of the estate. But the auditing judge has withheld from him all commissions or compensation, by reason of his want of: good faith in the misuse of moneys of the estate, and awarded the same to Charles H. Lafferty and Rose E. Lafferty, his cotrustees. While the disallowance to said Corcoran of compensation is fully justified by the facts shown, and is not inconsistent with the rule that the orphans’ court has no jurisdiction to apportion commissions among executors, etc.: Smith’s Estate, 37 P. L. J. 33; Markle’s Estate, 1 Dist. Hep. 54; yet it cannot be contended that the cotrustees earned and are entitled to the full rate of commissions allowed in such cases. They did not collect the income, rents and dividends, nor render the usual and necessary labor and services. They did not bestow any clerical services in the collection of the income, nor any personal attention thereto whatever. And by the conclusion reached by the court they are not personally liable for the deficit of their cotrustee. If this be the case, they should not be allowed commissions thereon. And as to the balance they should only be compensated for their responsibility, at the usual rate of two and one half per cent. But upon the income collected since the date of the injunction they should be allowed the full rate in accordance with the general rule. The exceptions are in part sustained.</p> <p>By reason of other exceptions filed on behalf of the cestuis que trust, the supplemental adjudication and schedule of distribution appear to be erroneous in several respects.</p> <p>1. The entire alleged deficit of one of the trustees is deducted from the corpus of the trust estate; not merely the principal unaccounted for, but the whole amount of income alleged to be misappropriated.</p> <p>2. All the expenses, counsel fees, claims of expert accountants and stenographer, for services rendered in restating the account, examination of the books of the estate, etc., and taking testimony at the hearing before the court, collateral tax and penalty, with the costs of the clerk, are deducted from the corpus of the trust estate, but, unless some reason be shown to the contrary, which does not yet appear, this is clearly inconsistent with the authorities upon the subject: Spangler’s Est., 21 Pa. 835; Butterbaugh’s Appeal, 98 Pa. p. 351; Mintzer’s Est., 18 Phila. 97. It is furthermore evident, from the will of the testator, that the collateral inheritance tax due, as ascertained by the register, should be deducted from the income of his estate, and not from the principal, and it is by no means clear that the trustees, whose duty it was to promptly pay the tax, are not personally liable for the penalty incurred through their negligence and default. And as to the employment by the trustees of separate counsel and separate expert accountants, to examine the books and vouchers of the trustees, restate the account, etc., see Fox’s Appeal, 125 Pa. 518; McDaniel’s Estate, 47 Leg. Int. 534; Emlen’s Estate, 8 Pa. C. C. 508.</p> <p>In Patterson’s Appeal, 104 Pa. 369, a trustee was personally charged with the cost of restating and correcting his account.</p> <p>While recognizing the rule referred to, that the proper and necessary costs and expenses of the settlement of the account are chargeable to the income of the trust estate, yet, in view of the circumstances of this case, and the large indebtedness incurred by the trustees for professional services, expert accountants, fees, etc., it is by no means clear that, in equity, the whole amount of the claims thus made against the estate should be deducted from the income. If not, what proportion should thus be deducted, and, further, whether the circumstances and facts shown will justify an exception to the rule and warrant a contribution from the corpus of the estate; and finally, whether the trustees should not equitably be charged personally with a just and proper proportion of the indebtedness they incurred and now claim to be paid only by the trust estate ? These questions do not appear to have been brought to the attention of the auditing judge, nor considered by him. In order that they may thus be carefully considered and determined, the exceptions as to these allowances are sustained, pro forma, and the adjudication recommitted for further inquiry and determination by the auditing judge.</p> <p>The distribution of the balance of income gave occasion for numerous exceptions and many hours of exhaustive argument. Among these are those relating to the omission of the auditing judge to consider a record containing the testimony of witnesses produced and examined before an examiner appointed in a proceeding instituted by Charles H. Lafferty for the removal of his cotrustees. The record was offered in evidence and admitted subject to the objection of counsel for Rose E. Lafferty. An examination of the record shows it contains the testimony of witnesses, some of whom were also examined before the auditing judge, all residents of this city, still living and accessible at the time of the hearing before him. Also, the testimony of P. J. Corcoran, who absented himself, and was not called nor examined as a witness before the auditing judge. In view of these facts, even if counsel had not failed to deliver to the auditing judge the record admitted in evidence upon objection, it would be clear error to consider the testimony reported by the examiner. As already stated, the witnesses were still living and within the jurisdiction, and if their testimony, and that of the trustee, was deemed material to the settlement of the account and distri-</p> <p>bution of the income, they and he should have been called to testify before the auditing judge: Chess v. Chess, 17 S. & R. 409. Nor were the witnesses produced, and it appeared they had lost their memory through sickness or old age : Rothrock v. Gallaher, 91 Pa. 108. The entire theory of the practice of taking the deposition of witnesses so as to enable them to be read upon the trial is that they are unable to attend personally and testify: Troubat & Ilaly’s Practice, sec. 616; Pipher v. Lodge, 16 S. & R. 214.</p> <p>We, therefore, see no error in the auditing judge in disregarding the record, and the exceptions thereto are dismissed.</p> <p>The proper distribution of the balance of income in the hands of trustees is a question solely between them and the cestuis que trust. The annuities and other payments are determined by the will. But at present the precise balance for distribution cannot be determined, for the reason already mentioned, that the property and amount of certain allowances otLt of the income are yet to be ascertained. Thus far we can consider only whether certain annuitants should be charged with payments alleged by the trustees to have been made to them, but denied by the annuitants. The onus of proof was, therefore, upon the trustees, and, after the most careful and laborious examination of the testimony by the auditing judge, he has found, as a fact, that the sum of $7,007.81, claimed to be paid to Rose E. Lafferty by P. J. Corcoran, one of the trustees, was not paid to her, but appropriated by him to his own use or the purpose of the business of the firm of P. Lafferty & Company, of which he was a copartner. That the sum of $6,000, alleged to be paid to Patrick Lafferty by the trustee Corcoran, was never paid or advanced to him, and also that the sum of $5,592.85, alleged to be paid Charles T. Maginnis by said Corcoran, was never paid in full, but only in a part, viz: the sum of $1,500, the maximum sum admitted by the annuitant to have been paid to him.</p> <p>In view of the testimony of the cestuis que trust, uncontradicted, and the explanation given by them of the transaction with the said Corcoran, whereby he sought to conceal from his cotrustees his misapplication of the money of the estate, the auditing judge is fully warranted in his conclusion that they should not be charged with the moneys alleged to have been paid to them. The exceptions to his finding are accordingly .dismissed.</p> <p>One of the main points of controversy before the auditing judge arose from the contention by her cotrustees, and certain of the cestui que trust, that Rose E. Lafferty, in the distribution of her share of the income, should be charged with the moneys of the estate, which it was alleged and shown that her cotrustee, P. J. Corcoran, had used for the benefit of the firm of P. Lafferty & Go. and not repaid by him or said firm, upon the ground that she was a copartner with that firm, and therefore personally liable for the amount due to the estate. . It was denied by Rose E. Lafferty that she was ever a copartner with said firm. After a careful examination of the testimony, and all the facts and circumstances developed, the conclusion of the auditing judge is that she was not a member of the firm of P. Lafferty & Co. To this finding exceptions are also filed. Thus a question of fact is again presented, and, as already adverted to, the conclusion of the auditing judge should not be set aside, unless clear error be made to appear from the evidence. No articles of copartnership were produced, but it is beyond dispute that Patrick Lafferty and P. J. Corcoran were trading together under the firm of P. Lafferty & Co. The evidence in support of the allegation that Rose E. Lafferty was also a member of the firm consists of the positive testimony of her brother, P. Lafferty, that she was a copartner with himself and Corcoran; the testimony of a well known and highly reputable member of the bar, who always “ understood” he represented the firm of Patrick Lafferty & Co., and that the firm was composed of the three persons named, yet he had no personal knowledge that Rose E. Lafferty was a copartner; and .although two leases were prepared by him or under his supervision wherein it is recited that she was a member of the firm, yet he did not witness the execution by her of either lease, nor was her signature by “ her mark ” proved by any witness whatever. The result is that neither lease was admissible in evidence as against said Rose E. Lafferty. A single admission by Rose E. Lafferty that she was a member of the firm was alleged by the expert accountant employed by one óf the trustees to have been made by her to him on March 15,1894, while he was employed in the examination of books and vouchers of the trustees and preparing their account. And finally a promissory note signed individually by P. J. Corcoran, Patrick Lafferty and Rose E. Lafferty for moneys loaned by her sister to said Corcoran for the purposes of the firm. These comprise the material facts shown by the affirmative proof. But on the other hand, repeated declarations of Patrick Lafferty that he and Corcoran composed the firm, and that no one but himself was interested in the business, were proved.</p> <p>It was also proved that Corcoran admitted to the counsel for Rose E. Lafferty that he had no knowledge that she was a partner. And when urged to furnish the books of the firm for examination, he declared “ that Rose has got nothing at all to do with the business; never had anything to do with it; she is not interested in it; she has no right to look at the books; I will not lot them go out of my possession.” And when subsequently the books were obtained by the receiver of the firm, they contained no entries showing any transactions with Rose E. Lafferty. Nor until the books were in the custody of the receiver, Corcoran surreptitiously and without the knowledge of Rose E. Lafferty or the receiver, made entries therein whereby she is credited with moneys paid or advanced to the firm. Again it was shown by the bookkeeper that he knew no other copartner than P. Lafferty and Corcoran. That the latter directed him to have cards printed, a copy of which was produced in evidence, which displayed alone the names of P. Lafferty and P. J. Corcoran as members of the firm, and that the same card was also published as an advertisement in several papers by direction of Corcoran. And finally Rose E. Lafferty, in the most direct and unqualified language denied that she was ever a copartner with Patrick Lafferty and P. J. Corcoran. And while she knew they carried on the business of brickmaking, yet she had no interest therein. That she never authorized Corcoran to use either her moneys or moneys of the estate in said business. That she never signed either of the leases mentioned, and never had any knowledge that moneys of the estate had been used by Corcoran for his own purposes until so informed by him. That she never had the conversation with the expert accountant related by him; nor admitted to him that she was a member of the firm of Patrick Lafferty & Co. And as to the promissory note she signed, she became a party to it solely to induce them to give her sister some evidence or security for money loaned the firm. The facts thus shown, and in some instances by contradictory testimony, may be said to fairly raise a question of fact not wholly free from doubt. But the auditing judge had the witnesses before him, and was influenced in his conclusion as well by their manner as by their testimony. It was for him to decide as to the credibility of the witnesses and the weight to be given to what was said by them, and as the clear error, to justify setting aside the finding of the auditing judge, has not been made to appear, the exceptions to Ms conclusion must be dismissed.</p> <p>Many of the remaining exceptions were .dismissed, others sustained, and the adjudication recommitted to the auditing judge.</p> <p>In a supplemental adjudication the auditing judge ordered and decreed, inter alia, that P. J. Corcoran pay the executors and trustees the sum of $28,750.65, $24,168.28 thereof on account of principal and $4,582.42 on account of income, and that the said claims of $4,582.42 against Corcoran should remain in accountant’s hands for future accounting.</p> <p>The first and second exceptions of Corcoran to this adjudication were as follows:</p> <p>1. The learned court erred in not noting in his adjudication the following offers made by counsel at the audit on behalf of Patrick J. Corcoran. First, “to explain his absence at the time of the last audit; second, to show that the $6,000 was paid in fact to Patrick Lafferty by the witness, and that the money was paid to Mr. Maginnis. And further, to show that the other deficit went into the brick yard, and who composed that brick yard ” (firm).</p> <p>2. The learned court erred in not entering in his adjudication his ruling at the time of the audit, upon the offers as above made.</p> <p>The opinion of the court, Hanna, P. J., sur exceptions to the supplemental adjudication was as follows :</p> <p>The adjudication having been recommitted to the auditing judge for further hearing and correction, in accordance with the opinion of the court filed January 18, 1896, further exceptions are now taken to the amended adjudication. . . .</p> <p>As to the exceptions of P. J. Corcoran, it need only be said that as to the first and second, it was wholly within the discretion of the auditing judge whether to hear the testimony of additional witnesses, or from that already in evidence, together with the record before him determine, the proportion of the costs and expenses of the investigation and settlement of the account, chargeable to principal and income. P. J. Corcoran, who was in attendance at the rehearing, was a competent witness upon the subject, if deemed necessary by the auditing judge, but he could not insist upon being heard. It was therefore not error to decline to admit him to be examined, nor omit to state in the readjudication he had been offered as a witness and his examination was deemed unnecessary.</p> <p>The remaining exceptions to the awards to Charles T. Maginnis and Patrick Lafferty allowed by the original adjudication, and to the separate charge against said P. J. Corcoran of his alleged deficit in both the principal and income of the estate, all refer to matters disposed of by the original adjudication and now form merely part of the schedule of distribution. As these were not the subject of the rehearing it was irregular to again file exceptions thereto. The proper remedy is by appeal upon the final confirmation of the adjudication.</p> <p>The exceptions filed by P. J. Corcoran are therefore dismissed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 222, Jan. Term, 1897, by plaintiff, from order of C. P. No. 2, Phila. County, Dec. Term, 1895, No. 281, refusing to take off nonsuit.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Sulzberger, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

Appeal, No. 293, Jan. T., 1897, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1895, No. 114, on verdict for plaintiff. Trespass to recover damages for death of plaintiff’s husband. Before Pennvpacker, 'J. The facts appear by the opinion of the Supreme Court. Defendant’s point was as follows : Under all the evidence in this case the verdict must be for the defendant. Answer: Refused. Yerdict and judgment for plaintiff for $4,000. Defendant .appealed.

Appeal, No. 256, Jan. T., 1897, by plaintiffs, from decree of C. P. No. 3, Pbila. Co., June T., 1895, No. 1377, dismissing bill in equity. Bill in equity to declare conveyances of real estate null and void.

Appeal, No. 255, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 8, Pliila. Co., Dec. T., 1895, No. 240, on verdict for defendant. Appeal from report of viewers.

<p> Pnnaipal and surety—Judgment—Opening judgment. </p> <p>A trust company became surety on a building contract and took from the defendant a judgment bond against loss as such surety. It immediately entered up the bond, and subsequently, upon failure of the contractor, completed the work with the fall knowledge and consent of the defendant. Held, (1) that the trust company had the right to protect itself by entering the judgment before a breach; (2) that it had the right to complete the contract; (8) that the defendant had no right to have the judgment opened.</p>

<p>Appeal, No. 326, Jan. T., 1897, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1893, No. 216, refusing to take off nonsuit.</p> <p>Trespass for personal injuries. Before Biddle, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 331, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1894, No. 220, on verdict for defendant. Trespass to recover damages for injuries to plaintiff’s cellar, caused by alleged percolations from defendant’s stable. Before McMichael, J. At the trial there was no evidence against the Bromley Brothers’ Carpet Company, and the court directed a nonsuit as against them.

Appeal, No. 346, Jan. T., 1897, by-plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1894, No. 1078, on verdict for defendant. Interpleader to determine the ownership of fifty shares of theCatawissa Railroad Company.

Appeal, No. 358, Jan. T., 1897, by plaintiffs, from judgment of C. P. No. 2, Pbila. Co., June T., 1894, No. 505, sustaining demurrer. Demurrer to statement. Plaintiffs’ statement was as follows : On tbe 1st day of December, A. D. 1893, and for several years prior thereto, plaintiffs were the owners of a mill property at the southeast corner of Tenth and Columbia avenue, and extending east to Hutchinson street, in the city of Philadelphia.

<p> Res adjudicata—Participation in suit. </p> <p>A person who has an interest in the subject-matter of a suit, and is ex- . amined as a witness in it, is not bound by the judgment, as far as the • defendant is concerned, if it appears that the defendant refused to permit Mm to become a party to the record, or to participate through Ms counsel in the trial, or to perfect an appeal from the judgment.</p> <p> Contract—Evidence—Entry in boohs. </p> <p>One party to a disputed contract cannot prove it by showing, as an independent item of evidence, that, for the consideration, he entered a charge . against himself in his own book.</p> <p> Evidence—Opinion of witness. </p> <p>In an action against a building and loan association the adverse party will not be permitted to call the secretary of the association to testify to an ■ opinion based upon entries in the association’s books and declarations in a mortgage, as to whether or not a particular person is a member of the association. The court and jury are just as capable of forming an opinion . on these facts as the witness.</p>

<p>Appeal, No. 168, Jan. Term, 1897, by plaintiff, from order of C. P. No. 1, Pbila. County, Dec. Term, 1895, No. 126, refusing to take off nonsuit.</p> <p>Trespass to recover damages for personal injuries. Before Brégy, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p> Equity—Equity practice—Amendment of bill—Costs. </p> <p>An amendment to a bill in equity after the evidence has been taken, in order to make the averments of the bill conform to the plaintiff’s case as developed in the testimony, may be allowed, but only upon proper conditions. In such case the plaintiff should pay the costs that would have been unnecessary if the bill had been properly drawn in the beginning.</p>

<p>Appeal, No. 319, Jan. T., 1897, by defendants, from decree of C. P. No. 3, Phila. Co., June T., 1894,. No. 1702, dismissing exceptions to master’s report.</p> <p>Bill in equity for partition.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to master’s-report.</p>

Appeal, No. 330, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1892, No. 829, on judgment for defendants. Trespass to recover damages for the alleged wrongful taking of plaintiff’s color books. Before Beitler, J. The case was previously reported in 174 Pa. 122, where the facts sufficiently appear. At the trial plaintiff testified in his own behalf as follows: “Q. What is the nature of the business of a color mixer?

<p> Municipalities—Supplying public places and private citizens with gas for lighting purposes. </p> <p>A city is not required by its municipal duty to supply its citizens with light in the streets and public places, and if it assumes the performance of that function, it acts under authority merely, as a business corporation, and not under municipal obligation.</p> <p>Municipalities — Gities of the first class—Power to supply gas—Act of June 1, 1885—Lease of gas works.</p> <p>The Act of June 1, 1885, P. L. 37, relating to the government of cities of the first class does not take away nor in any degree lessen any municipal authority previously lodged in the city, still less any merely business corporate power, such as the supplying of gas light to its citizens.</p> <p>Under the Act of June 1, 1885, P. L. 37, a city of the first class has a right to lease its gas works to a private corporation for a period of thirty years, and to covenant in the lease that it will do nothing by ordinance or otherwise which will in any way interfere with, or limit, restrict or imperil the exclusive right vested in the lessee. Such a lease does not in respect to the public lighting delegate a public legislative power, nor in respect to the private lighting confer a monopoly on the lessee.</p> <p> Municipalities—Loans—Gas works—Impairing obligation of contract. </p> <p>A municipality authorized a loan for the extension of its gas works, and in the ordinance required the retention by the trustees of the gas works of a certain per cent of the amount of the loan annually, and its payment into the city treasury; whereupon the city undertook to apply part of it to the interest on the loan, and to pay the other part into the sinking fund. There was no pledge of the gas works to secure the loan, and the ordinance expressly provided that a prior ordinance which had pledged the gas works as security should not apply to this loan. The city subsequently leased the gas works to a private corporation. On a bill in equity to annul the lease, there was no averment or proof that the sinking fund had not been kept up by appropriation from the city treasury from time to time as required by law. Held, that without such averment and proof it did not appear that any obligation of the loanholder’s contract had been impaired by the lease of the gas works.</p>

Appeal, No. 214, Jan. T., 1897, by William Provost, Jr., from order of C. P. Delaware Co., March T., 1896, No. 73, dismissing exceptions to auditor’s report. Exceptions to report of auditor, distributing the proceeds of a sheriff’s sale of the real estate of the defendant. The auditor, J. B. Hannum, Esq., found that William Provost, Jr., had erected, for the defendant in the execution, a three story brick building.

Appeal, No. 90, Jan. T., 1897, by defendants, from judgment of C. P. Chester Co., Oct. T., 1888, on verdict for plaintiff. Appeal from judgment of justice of the peace in proceedings to obtain possession under the landlord and tenant act of December 14, 1863. Before Hemphill, P. J. The case was previously reported in 147 Pa. 501, where the facte appear. Defendants’ points and the answers thereto among others were as follows: 2.

<p> Promissory notes—Agreement to renew note—Notice. </p> <p>A promissory note payable one year after date, with interest payable-semi-annually, had upon its face the following memorandum: “It is-agreed that this note may be renewed for one year at the option of tliemaker, and thereafter renewed from year to year unless six months’ notice to the contrary, prior to maturity, be given by the holder thereof. At the-expiration of such notice, the note shall become due and payable.” Interest was paid at the end of six months, and again a little after the end of one year. The maker did not exercise his option to renew the note, and* he made no further payments upon it. Three years afterwards suit was-brought upon the note. Held, that the maker could not allege as a, defense that the action was prematurely brought, because he had not been served with six months’ notice that the holder declined to make any further-renewal of the note.</p>

<p>Appeal, No. 178, Jan. T., 1897, by 'defendant, from judgment of C. P. No. 4, Pbila. Co., March 'Term, 1895, No. 55, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Arnold, P. J.</p> <p>'The facts appear by the opinion of tbe Supreme Court.</p> <p>The court charged as follows :</p> <p>This action is brought to recover damages for injuries which the plaintiff alleges were caused by the negligence of the defendant passenger railway company. Negligence, as you have heard before, means carelessness. The plaintiff was a passenger on one of the defendant company’s cars, and while on the car an accident occurred by which she was injured, and she charges that the accident and the consequent injuries to her were the result of the carelessness of the employees of the company ; that they did not take proper care of the passengers, and that while she was riding in the car it was, by their carelessness, derailed, thrown off the track, and she was thrown against the side of the car and suffered injuries. In the outset of the ease it is essential that you should find that the injuries to the plaintiff were caused by the carelessness or neglect of the employees of the company, otherwise the plaintiff cannot recover.</p> <p>It appears at the time of the accident the plaintiff was riding-in a car along the-line of the defendant company, which was at that time being changed from the old horse system to the new electric system for the propulsion of cars, and at the place where this accident occurred it had been dug out and new rails were being laid to meet the old ones just before they were taken up. There is no denial of the fact that the lady was a passenger and that she was injured. The dispute here is as to the liability for the injury and, secondly, the extent of the injury, and the amount of damages to which the plaintiff is entitled in case she is entitled to any.</p> <p>[The defense is that the injury to the plaintiff was caused by an inevitable event, an accident which could not have been foreseen or provided against, or, to use more expressive terms, the act of God, unpreventable, unforeseeable, and you will have to determine upon the evidence in this case whether you think that the accident in which the plaintiff was injured was such a one as the defendant company could have been able to foresee and guard against and prevent, or whether it was an event which could not have been foreseen and could not have been prevented.] [5] It is the duty of all transportation companies to carry their passengers safely, to protect them against all injuries which it Is within their power to foresee and guard against and prevent. They are not liable for extraordinary events which they cannot foresee and cannot prevent. [You have a right to say upon the evidence in this case whether this accident was one of the kind which might have been foreseen or was the result of carelessness, talcing into consideration this important fact that the road at that time was not in its normal -or regular condition; that it was being changed from one system of propulsion to another, and whether the company under those circumstances was not bound to a higher degree of care and foresight than is usual.] [6] If you are of opinion that this • company should have prevented this accident, should have guarded against it, and the accident was one which could have been foreseen by it, and could have been prevented, then, of course, [you may render a verdict for the plaintiff for any dam- . ages which you think she has suffered in consequence of the injury, or is entitled to in consequence of the injury.] [7] It is . argued here that she herself was, perhaps, at fault. I do not think counsel really meant to enforce that argument, that she knew that the road was being changed and -that she took the risk of going across that part of the road where the repairs were then being made. I do not know whether counsel really believes that argument to be a good one or not. I do not think that you will. I am sure I do not, but it is a question for you to say whether you think it was carelessness on the part of a passenger at the time they were changing the railways in Phila- • delphia from one system to another, or at any time when they were repairing the road, to remain in the car and ride over the place where the change was being made. The argument was made to you, and I submit it to your judgment to say whether you think it was carelessness on the part of the plaintiff to stay in a car going over a part of the road that was being changed.</p> <p>It appears that the accident occurred at a point which they . called a junction of a new rail and the old rail, and for some cause or another the car was thrown off the track, and that in ■ consequence thereof this plaintiff was injured. That she was injured is not disputed. The contention on the part of the defendant company is that the accident was one for which it was not responsible, and that the plaintiff must bear her own loss. I submit to you to determine upon the evidence in this case whether you find that her injury was caused by the fault • or neglect of the employees of the company. [If you find that it was, then you can give lier a verdict for sucli damages as will compensate her for the injury which she has suffered.] [8] You will remember the testimony is that her nose was bruised and cut and also her forehead, and that she was pretty badly injured, had to have her wounds dressed;. the day following they were opened, and suppuration, discharge of pus or matter flowed from the wounds. The lady kept her bed for four weeks and her house for several months, and she still suffers nervousness in consequence of that injury. [If you are of opinion that the company is responsible for the injury, then you can give her damages that will compensate her for the injury which it has caused her, allowing her damages for the pain and suffering which she has undergone in the past and is likely to undergo in the future, and any permanent injury which you deem she has suffered, and also any expense which she has been put to in the way of obtaining relief.] [9] In this case it is agreed by the parties that the one action of the wife shall be the action of both the husband and the wife; that the claims that the husband might otherwise make are to be settled in this ease,] [10] and you may take into consideration of this case the expense of which they have been put to in obtaining relief and treatment for the injuries which she has suffered. [The damages are to be such as would compensate her for the pain and suffering she has undergone, is undergoing now and is likely to undergo in the future,] [11] that is, if she has suffered permanent injury to her nerves or physical condition, and the expense she has been put to in consequence of her injury. In assessing the damages, in case you find for the plaintiff, I instruct you to give her compensation only. It is not a case for sympathetic or extreme or outlandish damages, but a case for fair and just compensation for the injury which she has undergone, in case that you find that she is entitled to a verdict. It is a matter for you to settle altogether upon the evidence, first determining whether the company is responsible at all, and if you find that it is, then for how much is it responsible.</p> <p>Verdict and judgment for plaintiff for 18,500. Defendant appealed.</p> <p>Errors assigned among others were (5-11) above instructions, quoting them.</p>

Appeal, No. 446, Jan. T., 1897, by Hannah A. Marshall, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report. Petition in partition. Harry B. DeHaven presented his petition in partition, and the same day Hannah Marshall presented hers, alleging different facts and asking that hers be substituted for his. E. D. Bingham, Esq., was appointed auditor to take proof of the facts and report them to the court with his opinion thereon.

Appeal, No. 4, Jan. T., 1898, by-Anna H. Thomas, from decree of O. C. Chester Co., sustaining demurrer to petition for bill of review. Petition for bill of review.

<p>Appeal, No. 484, Jan. T., 1897, by plaintiffs, from judgment of C. P. Delaware Co., Dee. T., 1896, N o. 105, on verdict for defendant.</p> <p>Trespass for personal injuries.</p> <p>At the trial it appeared that on October 13,1895, Catharine A. Fitzpatrick was injured while walking on a defective sidewalk in the borough of Darby. At the point where the accident occurred a trench had been dug and filled up, and Mrs. Fitzpatrick was injured by her foot sinking into the soft clay in the trench.</p> <p>Other facts appear by the opinion of the Supremo Court.</p> <p>The court gave binding instructions for the defendant.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>