Volume 185 — Pennsylvania State Reports

<p>Libel — Libellous words per se — Province of court and jury.</p> <p>Where words are of dubious import,, the plaintiff may aver their meaning by innuendo, and the truth of the innuendo is for the jury; but the quality of an alleged libel, as it stands upon the record, either simply, or as explained by averments or innuendoes, is purely a question of law for the court; and in civil cases, the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true.</p> <p>One tradesman becoming provoked at another over an alleged dilatoriness or disregard of his contract obligations wrote him a letter, coarse in its language, and showing irritation throughout, in which he used this language: “ You are a first class fraud, and of the first water.” In an action for libel against the author of the letter it was averred in the statement that the words quoted meant that plaintiff, in conducting his business, cheated and deceived his patrons for purposes of gain, and that defendant thereby brought plaintiff into public ridicule, hatred and contempt. The only question raised was whether the publication was libelous. No special damages were either averred or proved. Held, that the plaintiff was entitled to go to the jury on the question of general damages.</p>

<p>Appeal, No. 7, May T., 1898, by plaintiff, from decree of C. P. Dauphin Co., No. 241, equity, refusing a preliminary injunction.</p> <p>Bill in equity for an injunction to restrain the awarding of a contract to build the capitol buildings at Harrisburg.</p> <p>The allegations of the bill were as follows :</p> <p>Under the provisions of the act of April 14, 1897, the commissioners of public buildings and grounds, together with the president pro tempore of the senate and the speaker of the house of representatives, were constituted a commission to erect a new capitol building, which building was to be erected with the least possible delay, as nearly fireproof as possible, ready for occupancy not later than November 15, 1898. By the same act of assembly the commissioners were limited to the sum of $550,000, for the erection and construction of said building, including the fees of the architect.</p> <p>The said commissioners organized and took into their employment, as architectural adviser, Warren P. Laird, of the University of Pennsylvania, who prepared and promulgated a programme setting forth the requirements of the proposed capitol building, and the commissioners then requested architects to compete, by the exhibition of plans, the prize to be awarded being that of architect for the proposed new building.</p> <p>The architects throughout the country did so compete and a large number submitted drawings and plans, but four of the commissioners, the defendants in this case, rejected all of such drawings and plans, and also the report of the board of experts as to which of those plans were best. Against this action, Daniel H. Hastings, one of the commissioners, protested, as an act of bad faith to the competing architects, and in violation of the written agreement upon the part of the commissioners.</p> <p>The four defendants, composing a majority of the commission, after rejecting said drawings and plans, took into their employment one Henry Ives Cobb, and have caused to be made certain drawings, plans and specifications for the erection of a new capitol building, assuming to act by virtue of the authority of the act of assembly above referred to.</p> <p>After the preparation of the plans, drawings and specifications by said Henry Ives Cobb, the said commission advertised for sealed proposals for the general construction of the new capitol building according to such plans and specifications, which could be seen in the Supreme Court room, at Harrisburg.</p> <p>The drawings, plans and specifications were examined and inspected by those who desired to become bidders.</p> <p>The only legal authority for the erection of a capitol building is contained in said act of April 14,1897, and the powers vested in said commission must be exercised in the manner and within the limitations provided in said act.</p> <p>The plans and specifications call for a building not fireproof, but readily combustible.</p> <p>The opening for a future dome is to be trussed over with timber trusses, the roof formed of boards, covered with tarred felt, pitch and sand. A common board underflooring is specified, and all doors are temporary, while the stairs throughout the building, including the main entrance steps, are marked “temporary,” and are of wood. The partitions are of seven-eighth inch matched pine fencing, and the guard rails are all wood.</p> <p>The act of assembly requires the contract to be let to the lowest responsible bidder who will complete and deliver the building not later than November 15, 1898, while the specifications provide for general construction only, and that the contractor shall have until November 15, 1898, to furnish the material and do the work of an incomplete building. The drawings and specifications entirely omit heating and ventilation, gas or electric lighting, plumbing, water supply and drainage, interior finish, such as marble, tile or mosaic, millwork and joinery, and finished floors, furring on the outside walls and roof arching, as -well as elevators. The specifications omit balustrades and all carving, while the drawings show all this work completed. In the senate and house chambers, the rotunda and a number of rooms, plastering is omitted. Temporary roofs are provided for.</p> <p>The appropriation is provided to be paid by the state treasurer upon warrants drawn by the auditor general, who is Amos H. Mylin, one of the defendants.</p> <p>The intent and meaning of the act of assembly was that a completed building should be erected, and in the future other buildings were to be added for executive and departmental purposes, while the plans and specifications provide for the construction of an incomplete part of a larger structure for the use, not only of the general assembly, but for executive and departmental purposes as well.</p> <p>The proposed building will contain over four millions of cubic feet, and will cost, at the moderate estimate of thirty cents a cubic foot, more than 81,200,000, and will require the addition of a wing at each side, shown in the elevation of the structure, which it is anticipated to ultimately erect, while the commission is forbidden to contract for any expenditure in excess of the sum of $550,000, including the architect’s services.</p> <p>The plans and specifications are for work of an initiatory character only, and to complete the work will require the expenditure of many millions of dollars. To permit said work to proceed according to said plans and specifications would greatly damnify the commonwealth and impose burdens upon the taxpayers not contemplated by, and in violation of the provisions of, said act of assembly. The letting of any contract or contracts, pursuant to such plans and specifications, is without authority of law and in violation of the express provisions of the statute.</p> <p>On February 7,1898, the bids made upon the plans and specifications, as prepared by said Henry Ives Cobb, were opened by the commission and are as follows: Mcllvaine-Unkefer Company, Pittsburg, per specifications, $1,167,000; first modification, $508,862; second modification, $499,300; P. J. Carlin, Brooklyn, one of the builders of the Albany capitol, per specifications, $926,438 ; first modification, $916,458; second modification, $485,756; Edward S. Williams & Co., Scranton, per specifications, $1,022,808; first modification, $495,000; second modification, $489,000; H. Sckuddemage, Harrisburg, per specifications, $939,750; first modification, $914,750; R. A. Malone, Lancaster, per specifications, $1,000,000; fifteen modifications, ranging down from $985,700 to $542,132; Norcross Brothers, New York, per specifications, $1,385,000; first modification, $1,155,000; Allen B. Rorke, Philadelphia, per specifications, $1,100,000; first modification, $525,000; William G. Ball and William H. Jones, Harrisburg, per specifications, $977,500; first modification, $907,000; second modification, $505,000; third modification, $498,000; fourth modification, $428,000.</p> <p>The commissioners propose and intend to let a contract to some one of the aforesaid bidders according to the plans and specifications made by such bidder as modifications of the plans and specifications upon which bids were invited, which would be in violation of that provision of the act of assembly requiring two weeks’ public notice previous to awarding the contract for the construction of said new building, and would, be the acceptance of a bid without competition.</p> <p>The prayers of the bill were :</p> <p>1. That the defendants be restrained from proceeding to let any contract or contracts for the erection of the capitol building based upon the plans and specifications referred to.</p> <p>2. That they be restrained from authorizing the payment out of the state treasury or any indebtedness heretofore contracted or that may hereafter be contracted in the preparation of the plans and specifications referred to, or for any other purpose in any wise connected therewith.</p> <p>3. That Amos IT. Mylin, auditor general, be restrained from drawing any warrant upon the state treasurer for any expenses contracted by said commission under or about said plans and specifications, or on account of any contract or contracts heretofore made or to be made by said commissioners for the erection and construction of said capitol building under said plans and specifications.</p> <p>3-J. That said defendants be restrained from proceeding to let any contract or contracts for the erection of the capitol building, based upon the so-called modified plans and specifications submitted by bidders.</p> <p>4. General relief.</p> <p>The defendants, in their answer, suggest and claim that they are not subject to the control of the executive branch of the government, and that the attorney general has no legal or equitable right to maintain his bill against them.</p> <p>They admit the passage of the act of April 14, 1897; that the commissioners organized and employed Warren P. Laird, who submitted a programme which was adopted by the commissioners ; that they publicly advertised to secure satisfactory plans for the buildings contemplated by said act of assembly; that about thirty architects submitted drawings; that the board of experts made report that none of the drawings submitted indicated a building which could be constructed within the limits of the appropriation, unless the materials used and the character of the workmanship were to be unworthy of the capital of the commonwealth; that for this reason, as also for unsatisfactory arrangements for the lighting of the senate and house of representatives, they rejected the eight designs recommended to them by the board of experts, and directed that all drawings submitted be returned to their respective authors; that Daniel H. Hastings, governor, one of the commissioners, protested against this rejection as an act of bad faitb, and they allege that such action was not in bad faith or in violation of any agreement made by the commissioners, but, upon the contrary, was required by the duty which the commissioners owed to the commonwealth, whose representatives they were, and they suggest that their action in this regard has been expressly approved by the Supreme Court of Pennsylvania.</p> <p>They admit that they advertised for new plans; that a large number were submitted; that the same were carefully considered by Henry Ives Cobb, and were approved and adopted by the defendants as a majority of the commission; that the architect has prepared certain drawings, plans and specifications for the erection of the new capitol building, and they allege that they have acted in conformity with and as required by the several provisions of the said act of assembly.</p> <p>They admit that they have advertised for proposals, as stated in the fifth paragraph of the plaintiff’s bill, according to the plans and specifications prepared by said architect, and that, as printed in plaintiff’s book, the specifications are correct; that the only legal authority for the erection of a capitol building is contained in the act of April 14, 1897, and they further admit that their powers as commissioners must be exercised in the manner and within the limitations provided in said act, which they aver they have not transcended.</p> <p>They deny that the building proposed to be constructed under the said specifications will be readily combustible, but aver that the said specifications provide for a building which will be as nearly fireproof as possible, within the meaning of said act. They admit that the opening intended for a dome is required to be trussed over with timber trusses, to be covered by a board roof with felt, etc., and that the construction of a roof of this character and the omission of a dome for the present were necessitated by the limitation of the cost of the building, and they aver that such a roof will be as nearly fireproof as possible under the circumstances; that the floors proposed are good; doors, partitions and guard rails are substantial.</p> <p>They allege that they still intend to ask for separate proposals, and award contracts for the heating, ventilation, lighting, plumbing, drainage and water supply of, and proper elevator service in, the building.</p> <p>They admit that the money appropriated for the erection and construction of said building is required by law to be paid by the state treasurer, upon warrants drawn by the auditor general in the usual manner.</p> <p>They aver that the said plans for said building and the specifications which they have received from the said architect do not relate to or require the erection and construction of any other building for any other purpose whatever, but that, when said building shall have been constructed in accordance with the plans and specifications they have thus adopted, it will be a building of such size and form as will, in their judgment, under the conditions and requirements of said act of assembly, be adapted to the present and future use of the general assembly, its officers, committees and employees.</p> <p>They deny that the erection and construction of said building will cost $1,200,000, or that said building, when so completed, will require for its full use and adaptation to the purposes for which it is to be constructed, a large addition of a wing at each side of said building.</p> <p>They deny that they ever intended to expend more money than the amount appropriated by the aforesaid act of assembly, or that they intend to leave the building in such a condition as to require additional expenditure.</p> <p>They deny that the plans and specifications are for wort of an initiatory character only, and that to complete the wort will require the expenditure by the commonwealth of many millions of dollars. They also deny that to permit said work to proceed according to the plans and specifications would greatly damnify the commonwealth and impose burdens upon the taxpayers not contemplated by the act of assembly.</p> <p>They admit that on February 7, 1898, the bids stated in plaintiff’s bill, made upon the plans and specifications prepared by Henry Ives Cobb, were opened by the commission, and that the modifications referred to were submitted by said bidders under a provision in the specifications. They aver that they propose to carefully consider the said modifications, and unless it shall appear that there was a fair and proper competition as between the bidders no contract will be awarded, based either upon said bids or said modifications, but that in such case, new specifications will be required and new proposals asked for, and no contract will be made without sucli competition as- is required by the act of assembly.</p> <p>The defendants’ prayer was that the bill be dismissed.</p> <p>On a motion for a preliminary injunction, S MONT ON, P. J.,, filed the following opinion:</p> <p>As we have come to the conclusion that a preliminary injunction ought not to be granted, and as the act of assembly which gives the right of appeal where a motion for a preliminary injunction is denied provides that “ all such appeals shall! be heard by the Supreme Court in any district in which it may be in session, as provided in cases of equity originating in the-Supreme Court .... And all cases shall be heard and determined as though said court had original jurisdiction in the-premises and the application for injunction had been made to-said court,” we do not think it would serve any useful purpose-to discuss this case at length. We shall, therefore, content ourselves with indicating briefly the reasons for our conclusions.</p> <p>One of the allegations in the bill on which the motion for an injunction is based is that the specifications upon which the-advertisement for bids for the construction of the capital building was founded call for an unfinished and incomplete structure, and that if it were built according to these specifications it would be incomplete and not habitable. This averment in-the bill is sustained by the testimony of several witnesses, but. the conclusion sought to be drawn from it is based on evident. misapprehension. The defendants admit in their answer that the building would be incomplete if the construction were confined to these specifications and the contract to be based upon, them, but they aver, and Mr. Cobb, their architect, testifies, that additional specifications are to be prepared and other contracts ■ made for the remaining parts of the construction, all of which axe to be in progress together, and to be finished at the same-time.</p> <p>Another averment in the bill is that the intent and meaning of the act of assembly was that a completed building should be erected for the use of the general assembly, its officers, committees and employees, and that in future, from time to time, as-, the financial condition of the state will admit, other buildings. are to be added necessary for executive and departmental purposes, but that the plans and specifications prepared for the commission by their architect provide for the incomplete construction of a large structure for the use, not only of the general assembly, but for executive and departmental purposes as well.</p> <p>The defendants in their sworn answer aver that the act of assembly requires them not only to procure the construction of a new capitol building on or near the site of the old capitol building, in the city of Harrisburg, of such size and form as may, in their judgment, be adapted to the present and future use of the general assembly, its officers, committees and employees, but that it makes it the duty of the defendants to advise with and employ an architect and adopt plans for the construction of said building and such other buildings to be erected in the future as may be necessary for executive and departmental purposes. And they aver that they have adopted plans prepared by the architect for such buildings, and also a plan for the construction of the particular building which said act requires to be now constructed for legislative use, and that the plans and specifications which they have procured do not relate to, or require the erection and construction of, any other building except one which will be of such size and form as will, in their judgment, under the conditions and requirements of said act of assembly “ be adapted to the present and future use of the general assembly, its officers, committees and employees.”</p> <p>The testimony shows that the only difference between the plan adopted by the commissioners and that originally adopted in what has been known as the programme is that the buildings to be erected in the future are to be physically connected with the building now to be erected for the use of the legislature, instead of being detached, as was contemplated in the original programme, and we find nothing in the act which in any degree controls this matter.</p> <p>Another allegation in the bill is that the commissioners intended to contract for the expenditure of a large amount of money in excess of the sum of -1550,000, in violation of the provision of the act of assembly which forbids them to contract for the expenditure of any larger sum. To this defendants answer, and the testimony shows, that it is not their intention or purpose, and never has been, to enter into any contract or contracts for the erection and construction of said building, or any parts or portions thereof, in excess of the amount of money available under said act of assembly, and that it is not their purpose or intention to 'leave said building, when completed, in accordance with the plans and specifications approved and to be approved by them, in such condition as to require the expenditure of any additional money thereon in order to fit it for the convenient use and occupancy of the general assembly, its officers, committees and employees, and the testimony warrants us in believing that such is the fact, even were we not required to accept the sworn answer of the defendants to this effect.</p> <p>Another of the allegations in the bill is that the defendants have invited and have received bids upon the plans and specifications prepared by their architect, and that in advertising for said bids they also called for and have received modified bids from a number of contractors, and that they propose and intend to let a contract to some one of the aforesaid bidders according to plans and specifications made by such bidder as modification of the plans and specifications upon which bids were invited, and that to let such a contract would be in violation of the provision of the act of assembly requiring two weeks’ public notice by advertisement previous to awarding the contract for the construction of said building, and would be the acceptance of a bid without competition.</p> <p>Defendants, in their sworn answer, admit that they have asked for and received such bids, that they are now in the hands of the architect, who is instructed to make a careful examination thereof and report to the commission the character of the modifications so suggested, and such other information as will enable the commission to determine whether or not these modifications are upon such lines as will suggest a proper competition, and that if it be found that they are not, no contract will be awarded upon either of said bids, but that modified specifications will be prepared and proper advertisement made and new bids received, and that they do not propose or intend to let any contract to any of the bidders, or to accept any bids or modifications without such competition as is required by the act of assembly.</p> <p>Another allegation in the bill is that notwithstanding the act of assembly requires that the capitol building shall be made as nearly fireproof as possible, the plans and specifications upon which bids have been invited call for a building not fireproof but readily combustible, and a number of respects are specified in the bill on which it is alleged the building is not fireproof, among others, the roof and flooring and staircases. In respect to this the commissioners say in their sworn answer that they believe that under the restrictions and limitations imposed by the act of assembly in the matter of cost, size and accommodations required, the specifications provide for a building which, when completed, will be as nearly fireproof as possible within the meaning of the act. The architect of the commissioners testifies that on account of the restriction as to cost the only kinds of roof which could be selected would be either tar and gravel or tin, and that a tar and gravel roof, properly constructed, is not a dangerous roof on a building standing detached from other buildings, and that all portions of the building that are constructed of timber are to be coated with fireproof paint which will prevent their burning, and that in his opinion the building will be as nearly fireproof as the limitation of cost and the required size and accommodations to be furnished in the building will allow.</p> <p>There can be no doubt that a building could be constructed which would be much more nearly fireproof than the building called for under these specifications, if the builder were not limited in the matter of expense; but we are unable to see how a building which would meet the requirements of the one in question, with the cost limit attached, could be made more nearly fireproof than this, and we do not think the requirement that it shall be as nearly fireproof as possible is to be understood in an absolute sense, and not relatively to the other conditions, including that of cost.</p> <p>On the specifications upon which the advertisements were issued and the bids received the word “temporary” occurs in a number of places, and it is alleged in the bill that this indicates that the work is to be of a temporary nature and to be replaced hereafter by other work which will require future appropriations. The architect, however, explains that “ this contract is the initial contract, and there are future contracts necessary to complete the building, and that the work marked “ temporary” is in many cases superseded by work that is to be put in by other contractors, and that specifications are to be prepared and advertisements to be made and bids received for the stone carving, the fireproof painting, sewers and plumbing, gas piping, water supply, electric wire, elevators and elevator screens, vault doors, heating, ventilating, bells and tubes,” and that the contracts for all these are to be executed during the same time that the contract for the general construction is under way, and all will be required to be completed at the same time; and that when all the specifications are drawn and all the contracts to be advertised for are completed, which must be within the time limited by the act of assembly, the building will be complete and ready to be used for the purposes prescribed in the act.</p> <p>After a careful consideration of the bill and the sworn answer 'of the commissioners, and an attentive hearing of the testimony produced at the hearing, we have been unable to find any evidence that the commissioners have done or intend to do any act which will endanger the rights or prejudice the interests of the commonwealth, such as would warrant the granting of a preliminary injunction, and thus delaying them in the prosecution of the work entrusted to and imposed upon them by the act.</p> <p>The motion for a preliminary injunction is, therefore, refused.</p> <p>Error assigned was the decree of the court.</p>

<p>Evidence — Qross-examinaüon—Witness—Party.</p> <p>If the cross-examination of a witness is directed to collateral matters,, the court may limit and under some circumstances exclude it; but if directed to the situation of the witness, his relations with the party calling him, his zeal or bias as shown by his conduct or by improper efforts to influence witnesses or jurors in the case trying, it is, within proper limits, a matter of right; and when a party becomes a witness for himself, he stands in no better position than any other witness.</p> <p>On the trial of a negligence ease, the plaintiff may be asked upon cross-examination whether he did not, during the progress of a previous trial of the case, meet the foreman of the jury, treat him to liquor, talk with him about the case, and attempt to influence his judgment.</p> <p>Negligence — Joint negligence — Owner and contractor — Province of court and jury.</p> <p>In an action to recover damages for personal injuries suffered by reason of a pile of stones on a sidewalk, where it appears that the stones were placed on the sidewalk by a contractor, and both the contractor and the owner are defendants, it is error for the court to charge that, as to the contractor, “he put the stone there, and had control of it while it was there ; and if there be any liability for negligence it is obvious that in the act of negligence he was a participant.” Either or both may have been guilty of negligence, if negligence existed. The question is one of fact for the determination of the jury and not of law for the decision of the court. While the general rule is that the true ground of liability in actions for negligence is not danger but negligence, and the test of negligence is the ordinary usage of business, yet this rule is not applicable where the ordinary usage of business is below what ordinary care requires.</p> <p>Negligence — Dangerous sidewalk — Reasonable care — Question for jury.</p> <p>It is not enough for a builder to fence off a part of a dangerous sidewalk and put up lights in the evening, and then give it no more attention. He may not be required to maintain a watchman at the gate, but he must give some attention to it afterward, while the walks are actively occupied, in order to be sure that the lights and barriers he has provided to protect the public are in place, and are doing their work. The question whether he has exercised proper care is for the jury.</p>

<p>Evidence — Witness—Parly dead — Act of May 28, 1887, section 5, clause e, P. L. 158.</p> <p>Where a deceased person, in her lifetime, deposited money in a savings fund in the joint name of herself and another person, such other person, in an action against him by the administrator of the deceased to recover the deposit, is not a competent witness as to what took plaoe between him and the deceased in regard to the fund in controversy.</p> <p>Gift — Gift inter vivos — Donatio mortis causa — Bank deposit — Delivery.</p> <p>Where a person deposits his own money in a savings fund in the joint name of himself and another, under a stipulation in the deposit book that either may draw the fund, or the survivor may draw it, the other person after the death of the owner of the fund cannot, in the absence of any other evidence, establish title to the fund, either as a gift inter vivos, or as a donatio mortis causa.</p>

Appeal, No. 151, Jan. Term, 1897, by defendants, from judgment of C. P. No. 2, Phila. County, Dec. Term, 1895, No. 577, on verdict for plaintiff. Trespass to recover damages for personal injuries. Before WlLTBANK, J. Defendants’ points and the answers thereto were as follows : 1.

Appeal, No. 296, Jan. T., 1897, by David B. Martin et al., from decree of O. C. Phila.' Co., April T., 1897, No. 169, dismissing exceptions to adjudication. Exceptions to adjudication.

Appeal, No. 226, Jan. T., 1897, by Louis J. L. Buck, from decree of O. C. Phila. Co., Jan. T., 1897, No. 246, dismissing exceptions to adjudication. Exceptions to adjudication. The auditing judge, Penrose, filed the following adjudication. The decedent died, as represented in the petition annexed, December 26, 1895, intestate, unmarried and without issue, father or mother, leaving two brothers, Louis J. L. Buck, (the accountant) and William T. Buck.

Appeal, No. 195, Jan. T., 1897, by Mary Kingsley, from decree of O. C. Phila. Co., July T., 1895, No. 205, refusing to award an issue devisavit vel non. Application for an issue devisavit vel non. Held: there must be affirmative proof of the absence of undue influence, and that testator was fully informed and under no misapprehension as to the value of the residue so bequeathed, and under such circumstances an issue should be awarded.

<p>Appeal, No. 268, Jan. T., 1897, by plaintiff, from order of C. P. No. 4, Phila. Co., March Term, 1894, No. 1288, refusing to take off nonsuit.</p> <p>Trespass for personal injuries. Before Audenried, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

Appeal, No. 318, Jan. Term, 1897, by George H. Earle, Jr., et al., from decree of C. P. No. 2, Phila. Co., June T., 1894, No. 1428, on bill in equity. Bill in equity against a reorganization committee of a corporation to permit the plaintiff to participate in the benefits of the reorganization plan. Pbnjstypackeb, P. J., filed the following opinion: And now, to wit: February 1, 1896, the court find the facts as follows: 1.

<p>Appeal, No. 186, Jan. T., 1897, by plaintiffs, from order of C. P. No. 3, Phila. Co., Dee. T., 1888, No. 732, sustaining exceptions to referee’s report.</p> <p>Trespass for deceit to recover damages for alleged false and fraudulent representations made in the sale of the stock, fixtures and good will of a coffee roasting establishment by the defendant to the plaintiff.</p> <p>The referee, Frank L. Lyle, Esq., found the facts to be as follows:</p> <p>1. Jacob S. Wolfe, the defendant, owned and carried on the coffee roasting business at No. 2239 Wright street, Philadelphia. In January, 1888, he agreed to sell the business to the plaintiff for $3,500, which sum was afterwards reduced to $3,300, the difference representing the value of a horse which was not to be included in the sale. This agreement of sale was subsequently varied as to the purchase' money and on July 7, 1888, in pursuance of the prior negotiations, defendant transferred to the plaintiff the stock, good will and fixtures of said business, including the horse omitted in the first agreement of sale of January, 1888, above referred to, for $3,850, of which sum $2,550 were paid in cash, and the balance secured by a bill of sale from the plaintiff of the personal property transferred.</p> <p>2. The negotiations for the sale of the business from the defendant to the plaintiff, commencing in January, 1888, and consummated upon July 7, 1888, constituted one transaction.</p> <p>3. Defendant represented to the plaintiff that he had roasted for customers an average of from six to eight thousand pounds of coffee per week at one half cent per pound and toll (which consisted of three pounds of roasted coffee from every hundredweight sent to be roasted)', and that he had sold each week in his business one thousand to twelve hundred pounds of coffee. These representations were made for the purpose of establishing in the plaintiff’s mind the value of the defendant’s business; and said representations were material and were relied upon by the purchaser.</p> <p>4. The books of the defendant show that the roasting for customers done by him for seventy-eight weeks prior to the sale of July 7,1888, averaged four thousand, nine hundred and nine pounds per week, and for the year 1887, immediately preceding the time the representations were first made, averaged four thousand six hundred and six pounds roasted per week,</p> <p>5. The averages of roasting shown by defendant’s books for thirty-four weeks ending July 7, 1888, are two hundred and fifteen pounds per week in excess of the copy of the roasting book, exhibit No. 22, said exhibit being a copy of the book delivered to plaintiff by defendant as one of the books of the business, which shows a larger number of customers for whom work was done, but less roasting in the aggregate than appears by the books of the defendant.</p> <p>6. For each thousand pounds of coffee roasted for customers at the time of the sale, the receipts amounted to $12.50, including the toll. The difference, therefore, between the actual roasting and that represented by the defendant was a most material variance in the extent of the business and in the value of the good will. This difference was known to the defendant and was concealed by him to deceive the plaintiff.</p> <p>7. The defendant’s sales were substantially as represented by him.</p> <p>8. Plaintiff continued the business for four weeks at a loss each week. He soon discovered that the representations of defendant were not true, and tried to have the contract rescinded, but the defendant refused to do so. He then applied to counsel, who on August 1,1888, communicated with defendant concerning the representations and had an interview with him. On August 8, 1888, plaintiff sold the business and all the personal property received from defendant to Messrs. Dilahay and Coppes for $1,000 in cash and a release from the bill of sale given defendant to secure $1,300 of the original purchase money. This sale was made with the full knowledge and approval of the defendant, and no testimony was offered to show that the full market price had not been obtained. The purchasers were employees of defendant who had been retained by plaintiff, and $750 of the $1,000 consideration paid to plaintiff was loaned to the purchasers by defendant, who took title to the personal property and secured himself by a contract of bailment with the purchasers.</p> <p>9. Prior to the sale to plaintiff, defendant offered to show him his sales and roasting books so that he could ascertain for himself the business done. This plaintiff declined to do, stating that it was not necessary to look at the books, that he would trust the defendant, and that he believed to be true that which the defendant represented.</p> <p>10. The representations made by defendant as to the roasting done in his business were false, and were known to him to be false. They were material and were relied upon by the plaintiff, and he was deceived thereby.</p> <p>The referee reported that judgment be entered against defendant for 12,181.70.</p> <p>Exceptions to the referee’s report were sustained by McMichael, J.</p> <p>Errors assigned were in sustaining exceptions to referee’s-report.</p>

Appeal, No. 352, Jan. T., 1897, by plaintiff, from judgment of C. P. Lehigh County, April T., 1896, No. 92, sustaining demurrer to statement. Trespass for death of plaintiff’s husband. The statement alleged that plaintiff’s husband was killed on August 31,1894, and it appeared from the record that the summons issued on March 9,1896. Defendants demurred to the statement on the ground that the action was not brought within one year after the death of .the decedent.

<p>Judgment — Judgment note — Parol evidence.</p> <p>A condition in a bond given by a debtor to a creditor that the debtor will pay, when so required, all notes and other indebtedness on which he' “is liable” in any way to the creditor, secures only debts existing at the date of the bond; not those afterwards contracted.</p> <p>Where a judgment note is given to a bank to secure an existing indebtedness, an oral statement subsequently made by the debtor to the officers of the bank, in the presence of another creditor, that the judgment note was to cover later indebtedness, will not entitle the bank to claim that the judgment note covered such later indebtedness as against the other creditor, if the latter at the time the oral statement was made did not say or refrain from saying anything that induced action or inaction by the bank to its prejudice.</p>

<p>Arbitration — Award—Mistake of fact.</p> <p>Where one of two arbitrators soon after an award has been made, and before any action has been taken upon it by either party, notifies the parties that his assent to the award had been given under the influence of an important mistake of fact, and that he does not assent to it, the award cannot be enforced either at law or in equity.</p> <p>Arbitration — Mistake of fact — Award—Corporation—Costs.</p> <p>Where arbitrators are appointed to settle a dispute between a corporation and a partnership, and after the award has been made, one of the arbitrators notifies the corporation that the award was assented to by him under a mistake of fact, and that he does not assent to it, and the board of directors, notwithstanding the notice, and against the protest of some of its members, settle upon the basis of the award, a stockholder of the corporation is bound by the action of the board, unless it appears that the directors acted in bad faith, and knowingly and intentionally disregarded the interests of the stockholders.</p> <p>Where a bill is filed by a stockholder against a corporation, its officers and a partnership, of which some of the officers of the corporation are members, alleging that, in a settlement, the board of directors fraudulently favored the partnership, to the detriment of the stockholders of the corporation, and the court below finds that there was no fraud on the part of the directors, although their act was detrimental to the interests of the stockholders, the Supreme Court, in affirming the decree of the lower court, will not impose all the costs upon the plaintiff, but will make such distribution of them as justice to all the parties and equity require.</p>

<p>Appeal, No. 266, Jan. T., 1897, by plaintiff, from order of C. P. Chester Co., Oct. T., 1895; No. 50, refusing to take off nonsuit..</p> <p>Trespass to recover the value of bonds alleged to have been converted by defendant to his own use.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned among others were (1) in refusing to take off nonsuit; (2-7) in permitting plaintiff to be cross-examined upon the various matters referred to in the opinion of the Supreme Court.</p>

<p>Assignment — Equitable assignment — Parol evidence to vary writing— Consideration.</p> <p>R., an insolvent corporation largely indebted to C. & Co., executed, by its treasurer P., before its general assignment for creditors, the following paper: “R. hereby assign to C. & Co. all money due or to become due by M. & Co. for goods consigned by R. to M. & Co., or from any other source.” It did not appear that P. had had any authority to execute the paper, but the corporation, subsequently, by various acts, showed that it had knowledge of the paper, and never repudiated it. The fund raised by the sale of the goods was claimed by C. & Co., and also by the receiver of the corporation. Two witnesses testified that the writing was executed to prevent the goods from being attached prior to the general assignment. Three witnesses testified that the assignment was made for the purpose of preferring C. & Co. Held, (1) that the auditor committed no error in admitting parol evidence to show the consideration-for the execution of the paper; (2) that the paper was a valid equitable assignment; (3) that the finding of the auditor, confirmed by the court below, that the parol evidence was insufficient to vary the terms of the writing would not bo reversed by the Supreme Court; (4) that the knowledge by the corporation of the acts of its secretary and its failure to repudiate them were sufficient to warrant the auditor in considering the assignment ratified.</p>

<p>Sheriff's sale — Setting aside sheriff's sale — Confirmation of sale — Inadequacy of price.</p> <p>A sheriff’s sale will not be set aside for mere inadequacy of price.</p> <p>The delivery of a sheriff’s deed, after it has been properly acknowledged, the sale confirmed and the purchase money paid, vests the title in the purchaser. If any fraud has been committed upon the defendant in the execution, his remedy is either by an action of ejectment or by a bill in equity, and the court has no power, upon a rule to show cause, to set aside the sale and compel the purchaser to deliver up the deed to be canceled because part of the land has been subdivided into building lots and part contains a valuable stone quarry, neither of which was mentioned in the advertisement, and the advertisement did not comply with the law, and the price was grossly inadequate.</p> <p>On an appeal from an order setting aside a sheriff’s sale, where the record does not disclose any special order fixing a day for the acknowledgment of sheriff’s deeds, but it is not alleged that there was no such order, the Supremo Court will presume that the court below acted rightly and strictly in accordance with its own rule in the matter of the acknowledgment of the deed.</p>

Appeal, No. 368, Jan. T., 1897, by plaintiffs, from decree of C. P. No. 4, Lackawanna County, Jan. Term, 1897, No. 368, dismissing bill in equity. Bill in equity to declare an agreement of dissolution of a partnership null and void.

<p>Appeal, No. 400, Jan. Term, 1897, by plaintiff, from order of C. P. Lackawanna Co., May T., 1897, No. 472, refusing to take off nonsuit.</p> <p>Trespass to recover damages for the death of a son twelve years old.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, in the following opinion by Archbald, J.</p> <p>That the car by which the plaintiff’s son was killed was running at a high and possibly negligent rate of speed may for the present be conceded; the distance which it ran before it could be stopped would go to prove this, if there were nothing else: Dunseath v. Traction Co., 161 Pa. 124. But unless this was the proximate cause of the accident, or was a material factor in it, the defendant, notwithstanding, is not liable: Goshorn v. Smith, 92 Pa. 435.</p> <p>The testimony of Frank Jackson establishes clearly how the accident occurred. Four or five boys, of whom the deceased was one, were chasing each other along the street on the way home from school. About at the point where the accident occurred, they turned off from the sidewalk, across the street and car track, at an angle. Two of the boys who were considerably in advance of the others had reached the opposite side, when the Pletcher boy, closely followed by young Jackson, started across also. They apparently took no account of the coming car, and did not, in fact, observe it. It was so close upon them, however, that when young Pletcher ran onto' the track it must have been but a few feet away. Young Jackson says he just saw it himself in time to turn aside as it shot by, and that Pletcher was but five or six feet ahead of him. He called to him to look out for the car, and as he did so Pletcher stopped, but looked in the opposite direction from that in which the car was coming. Another instant, and in all probability he would have been across and out of danger; but stopping as he did, the car struck him and he was killed. There is no dispute over these facts, and it is evident from them that the boy darted in front of the car when it was so close upon him that stopping as he did it was inevitable that he should be struck. The excessive speed of the car had nothing to do with the matter. For all that we can see it would have occurred had the car been running at an entirely safe and proper rate. The case is not to be distinguished from Funk v. Traction Co., 175 Pa. 559. There is no difference in principle between running into a moving street car and running directly in front of it. The case is not like that of Woeckner v. Motor Co., 176 Pa. 451. The child there was of tender years playing between the side of the street and the car track; but the boys here were of such size and age as to warrant the belief that they would not heedlessly run into danger. The suggestion that they formed a procession across the street, of which the motorman was bound to take notice, is highly imaginative. 7</p> <p>The rule to take off the nonsuit is discharged.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 494, Jan. T., 1897, by-defendant, from judgment of C. P. Berks County, Nov. T., 1897, No. 79, on case stated. Case stated to determine title to real estate, which the plaintiff assuming to own in fee simple sold by contract to Levi Miller, the defendant, for the sum of $15,000. The plaintiff on November 11, 1897, executed a deed acknowledged to be in proper legal form. The property was clear of all incumbrances.

<p>Appeal, No. 315, Jan. T., 1897, by Adam H. Potteiger, from decree of O. C. Berks Co., dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the adjudication of Bland, P. J., which was as follows:</p> <p>From the evidence in the case I find the following facts:</p> <p>1. Darius Richard is a son of Eva Mary Richard, and was born on February 3, 1861; Eva Mary Richard was a sister of Adam H. Potteiger, the accountant, and they, Eva Mary Richard and Adam H. Potteiger, were children of Margaret Potteiger, deceased.</p> <p>2. Eva Mary Richard died about February 1, 1861, and at her decease her said son, Darius Richard, inherited from her the sum of $2,767.58.</p> <p>3. When Darius Richard was ten days old he was taken by said Adam H. Potteiger into his family, as a member thereof, and remained therein until he, Richard, married, in October, 1883. While Richard was a member of Potteiger’s family, Potteiger and his wife treated him in all respects as parents treat a child, and they were to him the only parents he ever knew. When Richard was old enough to perform labor he worked for Potteiger as a son would work for a father, without wages or contract, and simply upon the basis of the family relation.</p> <p>4. On March 7, 1863, one Joseph Kalbach was appointed guardian of Darius Richard; on April 2,1870, said Joseph Kalbach conveyed a farm to Adam H. Potteiger for the consideration of $15,674.75, of which consideration the sum of $2,767.58, which Kalbach held as guardian of Richard, was a part. The $2,767.58 was not paid by Potteiger to Kalbach, but was retained out of said consideration by Potteiger, in pursuance of an agreement between him and Kalbach that when Darius should arrive at the age of fourteen years Potteiger should become guardian in the place of Kalbach. In execution of that agreement Adam H. Potteiger was, on April 3, 1876, appointed guardian of Darius Richard, and when he became guardian had in his hands for Richard the said $2,767.58, with .interest thereon from April 2, 1870, the date of the conveyance of said real estate.</p> <p>5. On January 3,1881, said Margaret Potteiger, grandmother of Darius Richard, died testate, having by her last will and testament made him her residuary legatee, and having appointed said Adam H. Potteiger her executor; and on September 7, 1882, Adam H. Potteiger filed his account as such executor, showing a balance in his hands for Darius Richard, as residuary legatee, of $3,449.12.</p> <p>6. Darius Richard had implicit faith in his uncle, Adam H. Potteiger, and never inquired about the money he held for him, and did not know how much he held, either as guardian or executor. He trusted Potteiger absolutely and was entirely under his control. Seven days after he filed his account as executor, to wit: on September 14, 1882, when Richard was living with him as a member of his family, Potteiger took Richard to a justice of the peace and had him execute a release to him, Potteiger, as executor of Margaret Potteiger, for the said residuary bequest of $3,449.12, without the payment of any money or any other consideration. The release was obtained from Richard by undue influence exerted over him by Potteiger, through the confidential relation existing between them, and was executed by Richard in ignorance of his rights and without a proper knowledge of its meaning; and the release was a fraud upon the rights of Darius Richard.</p> <p>7. In the latter part of 1883 and in the early part of 1884, Darius Richard purchased farm stock and implements to the value of $3,134.91, for which stock and implements Adam H. Potteiger paid during the years 1883, 1884 and 1885, and the payments so made constitute the grounds of the credits taken in the account and excepted to by Darius Richard.</p> <p>8. The only account Adam H. Potteiger had filed when he made the said payments for stock and implements was his account as executor of Margaret Potteiger, and upon which he was, when the payments were made, indebted to Darius Richard in the sum of $3,449.12, with interest.</p> <p>9. Adam H. Potteiger never invested the guardian money in his character as guardian, and at no time set it apart as the estate of Darius Richard. Adam H. Potteiger, when he paid the said $3,134.91 for stock and implements made no appropriation of the money paid to the extinguishment of his liability as guardian, and did nothing to indicate to which of his liabilities to Darius Richard he intended his payments to be applied. The receipts taken by Adam H. Potteiger for the payments so made were taken in his own name, and not in his character as guardian.</p> <p>10. On March 6, 1896, Adam H. Potteiger confessed a judgment for $8,743.98 to Elvina Potteiger, his wife, which on the same day was entered in the office of the prothonotary of the court of common pleas of Berks county, becoming thereby a lien on his real estate.</p> <p>11. On March 10, 1896, Darius Richard obtained a citation from this court to Adam H. Potteiger to file an account as guardian as aforesaid, and the account here was filed in pursuance thereof.</p> <p>12. Seven days after the issuance of the citation to him, to wit: on March 17, 1896, Adam H. Potteiger and his said wife, Elvina Potteiger, made an assignment of all his, Adam H. Potteiger’s, property for the benefit of his creditors.</p> <p>13. On March 23,1896, at the request of said Adam H. Potteiger, the said Darius Richard and John Snyder, his father-in-law, went to the house of Potteiger for the purpose of determining the amount of the indebtedness of the latter to Darius Richard. They remained there from about 9 o’clock in the morning until 3 o’clock in the afternoon, looking over books and papers relating to Adam H. Potteiger’s liabilities as guardian and executor, and showing payments made by him for the stock and implements aforesaid; and Adam H. Potteiger then declared to Darius Richard, that as guardian he owed him (Darius) $2,800, and that he would pay him that sum with interest at five per cent for eight years, and that as executor of Margaret Potteiger he owed him $3,400, and that he would pay him that sum with interest at five per cent for eight years.</p> <p>14. Henry W. Smith was surety on the guardian bond of Adam H. Potteiger, as guardian of Darius Richard. Said Henry W. Smith died on September 5, 1896; and Darius Richard alleges that the guardian bond is worthless, and has placed a disclaimer on the record, in this audit, of all demand against the surety on the guardian bond, and has renounced all right to proceed on the guardian bond against the estate of the said Henry W. Smith.</p> <p>The evidence in this case shows, and I have, in effect, found, that Adam H." Potteiger dealt with his ward’s money as if it were his own. He was enabled to do so for so long a period, without challenge, by reason of the fact that he stood in a confidential relation to his ward. I have not found it as a fact, because I did not deem it essential, but it is a fact observed by me at the hearing, that Darius Richard is a very dull person, and readily susceptible to the influence of one standing in the relation sustained by Potteiger to him. There is no telling how much longer Richard would have remained .inert under the appropriation by Potteiger of his estate, if he had not been spurred into activity by the confession of judgment by Potteiger to his wife. The confession of judgment may have the effect of depriving Darius Richard of his patrimony, but there is nothing in his conduct, or in that of his guardian, which should incline a court to give impunity to such a wholesale conversion of trust funds as Potteiger has been guilty of in this case. I have found that Potteiger, on March 23,1896, admitted that he had $2,800 of guardian money, and $3,400 as executor of Margaret Potteiger, in his hands, and that he promised to pay Richard both sums. If these findings of fact are correct, the plea of the statute of limitations is of no avail to Potteiger, and as a conclusion of law, from the facts found, I decide that the statute is no defense. I have also found that Potteiger made no appropriation of the money paid by him for stock and implements. He having made no appropriation, the law will apply it in the interest of the creditor. The amount of money paid by Potteiger, for Richard, was $3,134.91. The money was paid in 1883, 1884, and 1885. In September, 1882, Potteiger filed his account as executor of Margaret Potteiger, showing that he held, as such executor, for Richard, the sum of $3,449.12. Instead of paying him the money, Potteiger, through his undue influence over Richard, obtained a release from him, without consideration, and in fraud of his rights. The only effect of the release was to place the legacy of Richard in jeopardy, and to make its collection difficult, by putting Richard to the proof of the circumstances necessary to establish its fraudulent character. There seem to be two reasons why, there having been no appropriation of the money at the time of its payment, the court should apply the money so paid to the extinguishment, pro tanto, of the liability of Potteiger as executor. In the first place he had accounted as executor, and that liability was, in every sense, due and payable, whereas he had not accounted as guardian; and in the second place, the fraudulent release put the money due Richard on the account as executor in jeopardy; for, as above stated, the release was presumptive evidence of the payment of the legacy, and it could not be collected by a legal proceeding without first establishing by proof the nullity of the release. Now it is the settled law that in a case of indefinite payment the court will apply the payment, as between two or more debts, to that one which was first due and collectible, and as between debts of unequal security to that one which is least secure. The general rules as to appropriation of payments are stated by Mr. Munger in his work “Application of Payments,” on page 10, as follows: “ Where money is paid by a debtor to his creditor, the debtor has a right to make the appropriation to which account he pleases; if the debtor makes no appropriation, then the creditor may apply it to the satisfaction of any demand which he has against his debtor, at his own pleasure; and if neither party makes any such application, then, if there be various debts due to the creditor, the court will make the application according to its own view of the law and equity of the case, under all the circumstances.” When neither the debtor nor creditor has made an appropriation, the court in making the application, will, in this state, whatever may be the law elsewhere, consider the interest of the creditor as paramount, and apply the payment in a way most advantageous to him; and where the circumstances are such as to present a case of that character, to the debt least secure. That such is the law of Pennsylvania is clearly shown by Johnson’s Appeal, 37 Pa. 274, where Mr. Justice Strong said: “ In the absence of direction by a debtor, and of actual application by a creditor, the law will make an equitable application, and, in making it, will regard the circumstances of the case. In the present case it oould make no difference to Duncan whether his credits were applied to the earlier or the later items of the account. He was equally a debtor for both, and both carried interest. It is true, that when payments are made upon a running account, it is one of the principles of legal application that they shall be treated as extinguishing the earliest charges in the account. But this is not a paramount principle. Another of equal force is that the payments are to be applied to that debt which is least secured. Both these rules look to the interest of the creditor, it being presumed that the debtor, by neglecting to give any direction, consented to such an application as would be most beneficial to the creditor.” Johnson’s Appeal was an ordinary case between debtor and creditor, and not a case between a fiduciary who had assumed the delicate and comprehensive duties of a technical trust and of the confidential relation of parent and a ward standing in the relation of a child ; and if the rule of law applied was equitable in that case, a fortiori, it must be equitable as between such a fiduciary and his ward to whom he has placed himself in the parental relation. It seems, therefore, quite clear to me, that the rule followed in Johnson’s Appeal is applicable in this case. The contention of the guardian that the credits should be allowed to stand in the interest of his surety appears to me to have no merit. No one authorized to represent the surety is here asking that the credits be allowed, and in Hollister v. Davis, 54 Pa. 510, Mr. Justice Thompson said: “ The court could not go outside of the case, in the absence of an appropriation, to see whether or not there were other parties interested in the subject of the set-off. It could only deal with the case of the parties before it, and in doing it, we cannot discover any error that was made.” But in this case, the exceptant having renounced and disclaimed on the record all demand on the bond of the surety, the assertion of the supposed equity of the surety loses all appearance of merit, if, under any circumstances, it might be conceded to have any. But my opinion is, that if the exceptant had not renounced his right to sue on the bond and to pursue the estate of'the surety, as he has done, and the personal representative of the surety were here objecting, the credits should nevertheless be disallowed, on the ground that the case presents no facts grounding the surety’s equity. There is nothing in the facts of this case tending to show fraud or imposition upon the surety, and in the absence of some such ground a surety has no footing to control the application of payment to a debt for which he is bound: Munger on Application of Payments, page T9. That a surety, in the absence of special facts raising an equity in his favor, cannot control payments in self-exoneration, is shown by the case of The Stamford Bank v. Benedict, 15 Conn. 444, where Chttbch, J., said: “ If then, as the defendant supposes, there was no application made by either debtor or creditor, of the avails received by the Stamford Bank from its mortgage from Whiting, the question is, Is the court, by the principles of law or equity before stated and applicable to this case, bound to apply the payment so as to reduce the amount due upon the notes indorsed by this defendant ? What are his peculiar equities, that he should claim to direct the application of payments made and received by other parties ? The debtor and creditor had the sole right of controlling these payments; and if neither of these has done this, the court must do it, as the rights, equities and intention of these parties seem to demand. The defendant is an indorser, or at most a surety, and this constitutes his only relationship to these debts. It has been said that sureties are to be favored in the construction and enforcement of contracts. But we cannot extend such considerations to cases like the present. To do this would be to defeat the object and end of suretyship; it would be to hold that the surety might have the money paid by his principal so applied as to leave the creditor a loser, notwithstanding his care and vigilance; and, in truth, to discharge an indorser who has been duly charged as such, without the fault or negligence of the creditor. And such would be the effect in the present case. This would be inequitable ; and we cannot direct the application of this money, upon this principle. Indeed, this is a case in which, if the creditor had made no application of the payment, the court, upon equitable principles, would apply it upon the precarious debts: Plomer et al. v. Long, 1 Starkie, 153 (2 E. C. L. 334). But the plaintiff here' insists, and we think very properly, that the creditor, the bank, when the money was received, correctly exercised its privilege of applying it in payment of such of the debts due to it from Whiting, etc., as were not secured by the defendant’s indorsement. The court would have done the same.” To the same effect is Hansen v. Rounsavell, 74 111. 241, where Mr. Justice Sheldon said: “ But it is claimed that if there was no agreement for the appropriation, then the circumstances of there being sureties for one debt should control the application in protection of the sureties to that debt. But we understood the general rule to be otherwise, and that it is the creditor’s right in such cases to have the payment applied to the debt which is the most precarious, where there is nothing to control this application: ” 2 Parsons on Contracts, 631. We recognize the rule as stated by that author, as follows: “ But where an obligor makes a general payment to his obligee, to whom he is indebted, not only on the bond but otherwise, the surety of the obligor cannot require that the payment should be applied to the bond, unless aided by circumstances which show that such application was intended by the obligor: ” 2 Parsons on Contracts, 634. My opinion is that, as between the accountant and his ward, the former is not entitled to the credits claimed for the money paid out for stock and implements; and that the contention set up by the accountant that the credits should be permitted to stand in exoneration of his surety is without merit, and the credits claimed are accordingly disallowed.</p> <p>Tbe guardian having dealt with the ward’s estate as if it were his own, and having, from the time he laid his hands on the trust funds, deliberately and persistently ignored his trust as guardian, he is, of course, not entitled to a reward for his conduct, and his claim to compensation is disallowed.</p> <p>In accordance with the above conclusions, the accountant will be surcharged with the amount of the credits taken for payments made for stock and implements, 13,134.91, and with the credit claimed for compensation, $221.40.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

Appeal, No. 45, Jan. Term, 1895, by defendant and terre-tenants, from order of C. P. Chester Co., making absolute a rule for judgment for want of a sufficient affidavit of defense. Scire facias sur mortgage.

<p>Appeal, No. 43, Jan. T., 1898, by Samuel H. Hoopes, administrator et al., from decree of O. C. Chester Co., dismissing petition tp open a decree admitting a will to probate.</p> <p>Petition to open a decree refusing to probate the will of Joshua Hoopes, deceased.</p> <p>The petition averred as follows :</p> <p>Joshua Hoopes, late of West Goshen township, in said county, died on or about the day of September, 1894, leaving a will dated June 28, 1892.</p> <p>Among other things in said will he left one eighteenth of his estate to the widow and children of Lewis Hoopes, or the survivors of them. That said Lewis Hoopes died on the day of 18 leaving to survive him his widow (Sarah Hoopes), one son (Lewis G. Hoopes) and two daughters (Mary E. Sparks and Sarah C. Chadwick) and two grandchildren (Ida Kinsman and Eda Hicklin), daughters of a deceased daughter (Estherline Broadhurst), who died in November, 1874; the said Sarah Hoopes, who was the mother of said children and grandmother of said grandchidren, died on or about January 18, 1895, intestate, and without any estate except her interest in the estate of said Joshua Hoopes, deceased, under and by ■virtue of his said will. No letters of administration were ever granted in her estate in Terre Haute, Indiana, where she died, and on August 26, 1897, letters of administration were for the first time granted in the estate of said Sarah Hoopes, deceased, to your petitioner; on February 22, 1897, Ida Kinsman and Eda Hicklin, the aforesaid grandchildren of said Sarah Hoopes, deceased, filed a petition asking the register of wills to probate said will of Joshua Hoopes, deceased, for reasons set forth in said petition which the petitioner is informed and believes to be true; among other things in the answer to said petition the other side set out as follows: “ The only party that would have standing to ask for the probate of said will . . . . would be her (Sarah Hoopes’) administrator or her executor and not her heirs ; ” subsequently the court of Chester county decided, in an opinion filed in the orphans’ court, that said petitioners were not the proper parties to ask for the probate of said will. The petitioner, therefore, showing by the admission of the other side that he, as administrator of said Sarah Hoopes, deceased, is the proper person to ask for the probate of said will of Joshua Hoopes, deceased, respectfully requests the register of wills to open the decree heretofore made and probate said will for the following reasons:</p> <p>1. The decree of the orphans’ court of Chester county, filed on January 6, 1896, deciding that said will was invalid, is void for want of jurisdiction, because the said Sarah Hoopes, now deceased, was never heard in the contest over said will, and never had any notice served on her by direction of either the orphans’ court of Chester county or the register of wills of said county, that the probate of said will was ever contested or to be contested prior to the rendering of said decree on January 6, 1896, and the subsequent affirmance of it by the Supreme Court in March, 1896.</p> <p>2. The said Sarah Hoopes died before the hearings in said contest were terminated and the record in said contest shows that neither the said grandchildren of said Sarah Hoopes, deceased, nor her administrator were ever made parties to said •contest.</p> <p>8. The said grandchildren and the administrator of said Sarah Hoopes were never notified by legal process of said contest and ■were never heard in said contest.</p> <p>4. The estate of said Sarah Hoopes, deceased, is entitled to receive one fourth of the legacy left by said will to the widow and children of said Lewis Hoopes, deceased, and of said estate of Sarah Hoopes, deceased, the said grandchildren are entitled to receive one fourth.</p> <p>The following answer was filed:</p> <p>Henry L. Brinton, one of the administrators of Joshua Hoopes, deceased, and an heir of said decedent, on behalf of himself and of the other heirs of the said Joshua Hoopes, deceased, in answer to the petition of Samuel H. Hoopes, administrator of Sarah Hoopes, deceased, to open the decree refusing the probate •of a paper writing purporting to be the last will and testament •of the said Joshua Hoopes, deceased, says :</p> <p>That the said Joshua Hoopes died September 14, 1894.</p> <p>That W. S. Harris, alleging that he was the executor of, and a legatee under, a certain paper writing dated June 28, 1892, alleged to be the last will and testament of the said Joshua Hoopes, deceased, presented said paper writing to the register •of wills of Chester county for probate as the last will of said decedent, and requested the appointment of an orphans’ court for a decision thereof.</p> <p>In compliance with said request, the register, on October 19, 1894, appointed an orphans’ court, and on December 17, 1894, the said orphans’ court was held and a hearing had in the matter of the probate of said paper writing, at which hearing W. S. Harris, a member of the bar of the county of Chester, appeared for all the legatees under said alleged will, except the Marshall Walters legatees, and at said hearing Wm. T. Barber, Esq., appeared for said Marshall Walters legatees.</p> <p>That in said alleged will Sarah Hoopes appeared as a legatee and was, at the time of the death of the said Joshua Hoopes, deceased, and at the time of the hearing by said orphans’ court, in full life.</p> <p>That after several hearings were had in said matter by said court, on January 6, 1896, said court filed an opinion, finding that the said Joshua Hoopes at the time of the making and execution of said paper writing had not testamentary capacity, whereupon the probate of said paper writing was refused, and from the decree entered in the premises by said orphans’ court of Chester county an appeal was taken to the Supreme Court of the state of Pennsylvania. Said Court, on March 16, 1896, affirmed said decree and dismissed said appeal at the cost of the appellants.</p> <p>That the affirmance of said decree by the Supreme Court of the state of Pennsylvania was final and conclusive upon all parties in interest, and especially upon the said Sarah Hoopes, and the said Samuel H. Hoopes, the present petitioner, as administrator of the said Sarah Hoopes, deceased, cannot be heard to question said decree.</p> <p>I therefore ask that the petition of the said Samuel H. Hoopes, administrator as aforesaid, be dismissed.</p> <p>The court in an opinion by Hemphill, J., remitted the record to the register of wills with directions to dismiss the petition for want of jurisdiction.</p> <p>. Error assigned was decree of the court.</p>

Appeal, No. 44, Jan. T., 1898, by W. S. Harris et al., from decree of O. C. Chester Co., dismissing appeal from register of wills. Appeal from register of wills.

Appeal, No. 42, Jan. T., 1898, by F. W. Mosteller, from decree of O. C. Chester Co., making absolute a rule to quash petition for citation. Petition for citation.

<p>Appeal, No. 356, Jan. T., 1897,. by plaintiffs, from order of C. P. Northampton Co., Dec. T.,. 1894, No. 63, refusing to take off nonsuit.</p> <p>Trespass for the death of a son six years old. Before Schuyler, P. J.</p> <p>At the trial it appeared that on November 13, 1894, plain-, tiffs’ son, a child about six years old, while playing upon a street on which the defendant operated an electric railway, suddenly darted upon the track immediately in front of an approaching car, and it was not possible to stop the car in time to-save the boy.</p> <p>Under objection and exception the court refused to permit-plaintiffs to call George Barnet, tbe motorman of tbe car, as if for cross-examination. [2]</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were (1) refusal to take off nonsuit; (2) ruling on evidence, quoting the bill of exceptions.</p>

<p>Wills — Perpetuities—Vested and contingent estates.</p> <p>The rule against perpetuities is directed against future contingent interests only, and has no reference whatever to vested estates.</p> <p>An interest is not obnoxious to the rule against perpetuities, if it begin within a life in being and twenty-one years thereafter, though it may extend beyond. The remoteness against which the rule is directed is remoteness in the commencement, or first taking effect of limitations, and not in the cesser or determination of them. An estate that is to ariso within the prescribed period may be so limited as to be determined on the happening of any event, however remote.</p> <p>Where a part of testator’s general scheme is that the estate shall be kept entire for any unlawful period, no part of the provisions can be sustained, but the estate to which the void provisions relate will vest immediately in the heir.</p> <p>Testator devised his real estate to his executors in trust for the period of seventy-five years, giving to the executors active power in the management of the estate, and directing them to pay all charges against the land, and all legacies out of the rents and profits. After all the charges and legacies were paid out of the rents he directed his children to select a trustee, and directed that such trustee should collect the rents and profits of the land, and after paying for repairs and taxes should distribute the balance to his children and their legal descendants until the expiration of the seventy-five years. At the expiration of seventy-five years, the trustee was authorized to sell the land, and the proceeds were to be distributed “ to and among all my children share and share alike that may be then living, and the legal descendants of any of my said children that may be then dead. The legal descendants of such deceased child or children to take, however, only such share and portion of the said proceeds as their deceased parent would have taken if then living.” Held, (1) that the particular estate — the term of seventy-five years given to the trustee — did not violate the rule against perpetuities; (2) that the gift of the ulterior estate in remainder was a future contingent interest repugnant to the rule against perpetuities, and therefore void for remoteness; (3) that as testator’s general scheme was to keep his estate entire for an unlawful period, and as the particular estate was created for this purpose only, the particular estate must fall with the ulterior estate; (4) that testator died intestate as to his real estate which accordingly passed at his death to his heirs at law.</p>

<p>Appeal, No. 436, Jan. T., 1897, by Elizabeth Knecht, from decree of O. C. Northampton Co., dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>From the report of William Beidelman, Esq., auditor, it appeared that W. J. H. Bruch executed a codicil to his will which read as follows :</p> <p>“ Codicil to will I bequeath Five Thousand Dollars that is the yearly income as long as she remains single bearing the name of Elizebeth Hamlin and after her death to go to ‘ Sematary ’ fund to keep my ‘ graven5 in repair. My Executors will have no right to have any claim on any property that I gave to the said Elizabeth Hamlin outside of the five thousand dollars I am satisfied with my previous will this being only codicil to my will.”</p> <p>Elizabeth Hamlin married Evan Knecht on January 29,1896. Before the auditor, the cemetery company claimed the fund, upon the marriage of Elizabeth Hamlin. Elizabeth Hamlin claimed that the Interest upon the fund continued to her until her death. The auditor awarded the fund to the cemetery company.</p> <p>Exceptions to the auditor’s report were dismissed by the court, in an opinion by Scott, J.</p> <p>Error assigned was in awarding the fund to the cemetery company.</p>

Appeal, No. 23, Jan. T., 1898, by-defendants, from judgment of C. P. Northampton Co., Jan. T., 1898, No. 23, on case stated. Case stated to determine whether county commissioners should draw warrants for an amount demanded by the directors of the poor.

<p>Wills — Issue devisavit vel non — Insanity—Delusions.</p> <p>An issue devisavit vel non will not be granted where it appears that the testatrix who had formerly entertained trustful and kind feelings for the contestant, suddenly conceived for her an unexplained dislike, which caused testatrix to discriminate in her will against contestant, but the evidence fails to show that this change of feeling was based upon the supposed existence of facts which never existed, and which no rational person in the absence of evidence would have believed to exist, or that there was such a condition of things surrounding the whole case which would not only be consistent with the theory of delusion, but from which the existence of the delusion might reasonably be inferred.</p>

Appeal, No. 86, Jan. Term, 1897,. by Eleanor P. Comly et al., from decree of O. C. Phila.. Comity, dismissing exceptions to adjudication. Sterrett, C. J., and Mitchell, J., dissent. Exceptions to adjudication. The facts appear by the opinion of the court by Ashman, J., which was as follows : The difficulty which lay in the claimant's path to recognition as wife of the decedent was the absence of any formal ceremony of marriage.

<p>Principal and surety — Contract—Building contract — Evidence.</p> <p>A contractor agreed to build two houses on two lots owned by a trust company as guardian. The trust company agreed to advance a $1,000 bond orx each house, the bonds to be secured by a mortgage on the lots. A surety company guaranteed the completion of the buildings to be erected on the lots under the contract, and agreed to “ indemnify, keep harmless and insure (plaintiff) against all loss or damages not exceeding $2,000.” The contractor received from the guardian the two bonds and the mortgage, and pledged them to other parties. After digging the cellars the contractor abandoned the work. The guardian brought an action against the surety to recover the amount of the bonds delivered to the contractor. Held, (1) that the surety could be called upon to meet its own engagement when the fact that the builder had failed to meet his obligations became apparent; (2) that evidence as to the value of the lots was irrelevant; (8) that the guardian was entitled to recover the full amount, necessary to redeem the bonds.</p>

<p>Appeal, No. 299, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 1117, on verdictfor defendant.</p> <p>Appeal from jury of view. Before Biddle, P. J.</p> <p>At the trial, William Kelley, an expert witness for defendant, testified that plaintiff’s land was benefited to the amount of $8,882, by the opening of Fifty-eighth street through it. Counsel for plaintiff cross-examined Kelley as follows :</p> <p>“ Q. What did you calculate the ground worth fronting on Fifty-eighth street since the street has been opened? A. I value the triangular piece at 50 cents per foot. Q. How much would that make the whole piece worth ? A. The whole piece I value at $12,666. Q. As to the other? A. I value that at $2.00 a foot. Q. Without improvements or with them ? A. Without street improvements; that is, 724 at $2.00 a foot. Q. What would the street improvements cost ? ”</p> <p>Mr. Wayland : I object.</p> <p>Objection sustained. Exception for plaintiff.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Frror assigned was ruling on evidence, quoting the bill of exceptions.</p>

<p>Contract — Building contracts — Defective performance — Mechanic's lien.</p> <p>On a scire facias sur mechanic’s lien for plumbing and gas fitting in a house under a written contract, the defense set up was that plaintiff had not substantially performed the contract. It appeared that defendant had moved into the house, and for one year and a half there was a dispute between him and the plaintiff as to the character of the plumbing work. During this period there was no suggestion by defendant that the defects were of such a character as to release him from the payment of the whole price, and plaintiff’s right to a just compensation had been repeatedly recognized. Defendant finally wrote: “I will not accept the plumbing and gas fitting until all is complete, and unless you immediately comply with the contract, I will employ a competent plumber to do so, and deduct the cost from the contract price.” Held, (1) that while the use and occupation of the house imposed no liability on defendant to pay for the defective work, and none would have been imposed by remedying the defects, yet the notice given left the plaintiff free to do the work himself, or have it done at his cost by the defendant; (2) that plaintiff was entitled to recover the contract price less the amount paid by defendant to complete the work; (3) that a provision in the contract relating to the architect’s approval was waived by the undertaking of the defendant to complete the work, and deduct the cost from the contract price; (I) that formal acceptance of the notice by the plaintiff was not essential, because the notice was an affirmance of the defendant’s rights under the contract.</p>

<p>Appeal, No. 116, Jan. T., 1897, by-defendant, from judgment of C. P. Lebigli Co., Nov. T., 1895, No. 8, on verdict for plaintiff.</p> <p>Trespass to recover damages for wrongfully inducing a husband to separate from his wife. Before Albright, P. J.</p> <p>At the trial it appeared that the defendant was the father of plaintiff’s husband; that the plaintiff and her husband lived on the defendant’s farm, and that the son worked for his father. The plaintiff offered testimony which tended to show that the defendant, by constant disparagement of plaintiff, and by an unfriendly manner when he was in her presence, and by threats, and probably by promises, induced the son to leave his wife. The testimony showed that defendant had called plaintiff a “dirty slop; ” had said that his son was an “ ox to have married her; ” that she “ could not cook, could not bake, could not clean anything; ” that if he were his son he would not live with her; that she was a “ glutton and a negro; ” and that she was “ Irish.” The testimony showed that he had told his son that if he lived with her again that he would disinherit him.</p> <p>The evidence also showed that the defendant had furnished the money with which his son might go away, and had himself driven his son to the railroad station.</p> <p>Defendant’s points and tbe answers thereto were among others as follows:</p> <p>1. The slanderous words alleged to have been spoken by tbe defendant concerning the plaintiff were spoken more than one year before the commencement of this action, and is therefore barred by the statute of limitation. Answer: Negatived. [1]</p> <p>2. The action not having been commenced until more than two years after the alleged wrongs done by the defendant it is barred by the statute of limitation. Answer: Negatived. [2]</p> <p>3. There is not sufficient evidence to warrant tbe jury in finding that any unlawful act on the part of the defendant was the inducing and moving cause of the separation of the plaintiff from her husband. Ansioer: Negatived. Whether or not the plaintiff’s allegation as to this is proved is left to the jury for their decision. [4]</p> <p>Plaintiff’s points and the answers thereto were as follows:</p> <p>1. A wife may maintain an action for the loss of the society, consortium, companionship, aid and assistance of her husband, against one who wrongfully and maliciously, wickedly and unjustly induces and procures, advises, aids and assists her husband to abandon her or drive her away. Answer: Affirmed. [5]</p> <p>2. If the jury find that C. A. Gernerd, the defendant, maliciously, wrongfully, wickedly, unlawfully contrived, with the express purpose, the plaintiff and her said husband to separate in their domestic relations, and to deprive the said plaintiff of the care, society, aid and companionship of her said husband, and did advise, aid and assist and, by promises and threats, procure and cause the said Joseph Gernerd, the plaintiff’s husband, to become alienated in feeling and affection, and caused the said Joseph Gernerd to leave the said plaintiff and refuse to live with her, then the plaintiff is entitled to recover. Answer: Affirmed. [6]</p> <p>Yerdict for plaintiff for $2,500. On remittitur filed judgment was entered for $2,000. Defendant appealed.</p> <p>Errors assigned among others were (1, 2, 4, 5, 6) above instructions, quoting them; (3) in not sustaining the defendant’s special demurrer which reads:</p> <p>And now March 3,1896, the defendant, by Evan Holben, his attorney, comes and says that the statement is not sufficient in law to maintain the plaintiff’s action and demurs thereto and in support of said demurrer the defendant gives the following reasons:</p> <p>1. Because there is no precedent in law for the action.</p> <p>2. Because the statement does not set forth a legal cause of action.</p> <p>3. The action being for defamatory words alleged to have been spoken by the defendant of and concerning the plaintiff, and not having been commenced within one year after the alleged words had been spoken the action is barred.</p> <p>The defendant therefore prays that the case be dismissed.</p>

Appeal, No. 215, Jan. T., 1897, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1896, No. 6, on verdict for defendant. Trespass to recover damages for diversion of water.

<p>Contract — Building contract — Penalty for delay — Evidence.</p> <p>In an action upon a building contract in which the defendants claim a per diem deduction for delay, a verdict and judgment for the plaintiffs for the full amount claimed will be sustained where the evidence for the plaintiffs, although to some extent contradicted, tends to show that the delay was caused by doing necessary piling, which the plaintiffs did by direction of and under an independent agreement with defendants’ agent, and also by changes in and additions to the original contract ordered, by the defendants or their agents.</p> <p>In an action upon a building contract where the defendants claim a per diem penalty for delay, a judgment in favor of the plaintiffs will not be reversed because the architect’s certificate was admitted in evidence, if it appears from the undisputed evidence that the certificate was not a final certificate, and the jury were plainly instructed that for any delay for which the plaintiffs were responsible, there should be a deduction from the balance accruing thereon, in accordance with the terms of the contract.</p> <p>Provisions in a building contract that disputes relating to various specified matters shall be decided by the architect, will not be extended to a dispute arising from a delay in completing the building, unless the contract in plain terms invests the architect with the authority to decide such dispute.</p>

<p>Appeal, No. 173, Oct. T., 1897, by plaintiff, from judgment of C. P. No. 1, Allegheny County, June T., 1895, No. 585, on verdict for defendant.</p> <p>Libel for divorce.</p> <p>The facts appear bjr the opinion of the Supreme Court.</p> <p>Plaintiff submitted the following point:</p> <p>I. Under all the evidence the verdict must be for the plaintiff. Answer: Refused. [1]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was above instruction, quoting it.</p>

Appeal, No. 261, Jan. Term, 1897, by plaintiff, from order of C. P. No. 8, Phila. County, December Term, 1894, No. 430, refusing to take off nonsuit. Trespass to recover damages for personal injuries. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Negligence — Master and servant — Duty of master to instruct servant— '■ Dangerous machine — Contributory negligence.</p> <p>In an action by a girl seventeen years old to recover damages for personal injuries sustained while working at a mangle in a laundry, the case is for the jury where the evidence is conflicting as to whether the plaintiff was properly instructed before being placed at work at the mangle, whether the absence of a guard rendered the machine more dangerous, and whether the plaintiff herself was guilty of contributory negligence.</p>

Appeal, No. 322, Jan. T., 1897, by defendants, from order of C. P. No. 3, Phila. Co., March T., 1897, No. 410, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit upon a promissory note. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 379, Jau. T., 1897, by defendant, front judgment of C. P. Montgomery Co., Oct. T., 1897, No. 87, in favor of plaintiffs on case stated. Case stated to determine tbe marketable title to real estate. The facts appear by the opinion of Swartz, P. J., which was as follows.

<p>Appeal, No. 74, Jan. T., 1897, by defendant, A. B. Russell, from judgment of C. P. Lackawanna Co., Marcb T., 1894, No. 428, on verdict for plaintiffs.</p> <p>Ejectment for coal under a tract of land, in Scott township. Before Purdy, P, J., of the 22d judicial district, specially presiding.</p> <p>Plaintiffs’ testimony tended to prove that A. B. Russell, the defendant, knowing all about the terms of this lease from Davenport to Comegys and Davis, told Comegys in the month of February, 1892, that Joseph Davenport had paid his royalties to January 1, 1892; and that relying upon the statements made at that time, the plaintiffs expended considerable money in developing the property; that they sent Mr. E. H. Shurtleff on June 1,1893, to pay to Russell any royalties which might be due, and that Russell then and there told him, that noire was due, and if there was he would not accept it from plaintiff; that relying upon this declaration, these plaintiffs continued to devote some of their time to the enterprise in which they were jointly concerned, which they would not have done unless that declaration had been made; that no cause for forfeiture existed, there being no unpaid royalties on September 28, 1893; that the character and conduct of Davenport was such that these plaintiffs could at no time ascertain from him anything concerning the account between himself and Russell; that between September 18, 1893, the date of the decision in the equity case, and September 28, 1893, the date of the alleged re-entry, there was a fraudulent and secret agreement between Russell and Davenport, by which the former was to apparently resume possession, but in the interest of the latter, for the purpose of defeating the just claims of these plaintiffs; that these men, Russell and Davenport, by their appearance, manners and conduct, when upon the witness stand, and under oath, in the presence of the jury, plainly and clearly betrayed their common interest in the property, and such entire disregard for truth and decency of expression that no jury could fail to see and appreciate the absolute dishonesty of the defense.</p> <p>Other facts appear by the former report of the case in 175 Pa: 166, and the charge of the court below in this case which was as follows:</p> <p>The action in which you have been sworn is one of ejectment between H. 0. Comegys, Thomas Davis, William R. Williams and S. M. Mayer v. A. B. Russell, to recover the possession of property situated in tlie northern part of this county, containing about four hundred acres, more or less, the possession of which, at the time of the service of the writ in this case, was in the defendant here, and the right of possession to which is claimed by the plaintiffs. At the time this writ was issued in this case it was issued against three parties, A. B. Russell, this defendant, Joseph Davenport and Jerome Brittain. Subsequently Joseph Davenport and Jerome Brittain filed disclaimers in this case, disclaiming any ownership in the premises, and thereupon they are taken out of the case; this action proceeds against A. B. Russell only. To entitle the plaintiffs to recover in this case it must appear that the defendant, A. B. Russell, was in possession of the property at the time of the service of the writ, and it must further appear that the plaintiffs in this action were entitled to that possession. When we speak of the premises we do not mean for you to understand the entire fee, or the land itself, but the premises in question here, the coal strata, or the interests which Davenport acquired by virtue of his lease with Russell; those are the premises and that is the property which the plaintiffs in this action contend they were entitled to the possession of at the time this writ was issued.</p> <p>It appears in evidence that Albert Russell acquired title to this tract of land on November 8, 1875, by deed from W. II. Sturdevant and wife, and that on December 81, 1887, for a sufficient consideration, Russell leased to Joseph Davenport, his successors and assigns, all the coal underlying this tract, with the right to enter upon the premises and to dig, mine and remove the same or any part thereof, Joseph Davenport agreeing to pay for the coal so taken from the land, for the first year ten cents per ton, for the second year fifteen cents per ton, and thereafter twenty cents per ton, until it was worked out, or so long as Davenport, his heirs and assigns, desired to work the mines. In this lease or agreement there was no stipulation that Davenport should mine or remove any specific quantity of coal in any one year. It seems to have been left entirely at his option as to the quantity, if any, which he should mine during any particular year or period. That lease provided that for coal retailed in small quantities two thousand pounds should constitute a ton, and if shipped by railroad or sold in large quantities twenty-two hundred and forty pounds were to constitute a ton. By the terms of that agreement the payments were to be made by Davenport to Russell every six months, and the lease provided that in case of failure by Davenport to make payment of these royalties for the space of twelve months after they became due, he forfeited the lease, and Russell should have the right to enter upon and take possession of the premises without recourse to law. The rights which Davenport acquired under this lease might be transferred by him, if he so desired, to other parties; this lease was made to him, his heirs and assigns. Such transfer, however, by him would pass to his grantee or assigns only such title or rights as he, Davenport, had in the premises, and in the absence of any declarations or conduct on the part of Russell, which would operate as an estoppel against him. he could assert his right under the forfeiture clause against Davenport’s assignee the same as he could against Davenport.</p> <p>On July 1, 1891, Joseph Davenport entered into an agreement with H. C. Comegys and Thomas Davis, giving them, for the period of seven months, the privilege to bore and test the property, and the option within that time to elect to mine the coal, and if they did elect to mine the coal they should remove or pay for at least five hundred tons in each year; that is what is meant by the minimum spoken of here, that was the least' quantity that they were required to pay for; whether they mined it or not, they were to pay for five hundred tons every year; they had the option to mine a greater quantity if they chose to do so.</p> <p>On November 9 following the making of this agreement last spoken of, the time mentioned in that agreement, seven months, was extended three months, so that their option under this agreement would expire at the end of ten months instead of seven. This agreement was placed upon record January 12, 1892, that is the agreement of extension. On January 14,1892 —two days after the agreement of extension, perhaps after the entire agreement, the extension clause and the agreement of July 1, 1891, were placed upon record — Davenport and wife entered into an agreement with Comegys and Davis, two of the plaintiffs here, the terms and language of which latter agreement, except as to the minimum amount of coal required to be mined each year, are almost identical with the agreement of •July 1,1891. This latter agreement is dated July 1,1891, and provides substantially as follows: “That Joseph Davenport lets, leases and demises for the considerations hereinafter mentioned all the coal on and underlying lands described in a certain eoal lease now recorded in the office for recording of deeds in and for the county of Lackawanna, in the city of Scranton, .in deed book No. 57, page 887, etc., to the said H. C. Comegys and Thomas Davis, [this clause identifies the land as the same which was conveyed to Russell, and which was leased, the coal under which was leased to Davenport] to the same extent as said Joseph Davenport has the right to the same under the above described lease, for the sum of twenty-five cents per ton for all sizes above the size of pea coal, and the sum of ten cents per ton for pea coal as royalty or rent, and also ten cents per ton for smaller sizes than pea coal.”</p> <p>Then the lease provides that Comegys and Davis are to have the privilege of boring to ascertain the thickness of veins for a period of seven months from the execution of this lease, and this time was subsequently extended to ten months. This lease provides that at the expiration of that time, seven months, after-wards extended to ten, the lease and all rights under it of Comegys and Davis should cease and determine and revert to Davenport unless Comegys and Davis elected to proceed to mine in a good and workmanlike manner all coal three feet thick and over. Then the lease provides that in case Comegys and Davis, at the expiration of that time, elect to proceed under this lease they should pay to Joseph Davenport the royalties aforesaid on the respective sizes, etc., within the period of three months of the mining of the same. There was a further provision in this lease that they should not hinder, Comegys and Davis should not hinder, the said Joseph Davenport from working said veins for the period of seven months. Comegys and Davis, under this lease, agreed to ascertain by proper borings before the expiration of seven months the thickness of the veins on and under the land so as to be able to determine whether they would elect to mine and remove the coal therefrom. The lease provided if they did elect to proceed within the time mentioned, then and in that case they were to pay for the coal mined in accordance with the stipulations which we have before stated. It was further stipulated in this agreement that they should commence mining of coal nineteen months after the date of the lease, and that they were to mine a minimum amount of ten thousand tons in every year. I-stated to you before that they were at least to pay for that amount whether they mined it or not; the lease seems to require that they should mine that amount each year. In this lease it was provided that after beginning to mine the coal that Comegys and Davis might pay, or cause to be paid, to A. B. Russell such royalties as might-be due him under Russell’s lease to Davenport, returning or giving the surplus, if any, over to Davenport. This agreement was signed by the parties, witnessed and acknowledged. You will remember we said this agreement was made on January 14, 1892. It bears date July 1,1891, the same as the former lease made and executed between the parties.</p> <p>The plaintiffs in this case claim, and some.testimony has been introduced by them for tlie purpose of showing, that it should be substituted for and stand in the place of the agreement made and signed July 1, 1891.</p> <p>It appears that between the times of the making of these two papers, on November 21, 1891, H. C. Comegys and Thomas Davis, who at that time were the lessees in the paper executed July 1, 1891, entered into an agreement with W. R. Williams and S. M. Mayer by which they sold to Williams and Mayer an undivided one half of their holdings in the land, upon the condition that Williams and Mayer should bore and test the property on or before May 1, 1892, to ascertain the quantity and quality of the coal beneath the surface. This was between the making of the paper of July 1, 1891, and the one of January 14, 1892.</p> <p>On February 1,1892, Davenport and wife gave Comegys and Davis an option to purchase Davenport’s interest in his lease from Russell, that is, to purchase it outright, for the sum of $20,000. Understand, gentlemen, that these parties already had an agreement by which Comegys and Davis had the right to mine the coal, if they chose to do so, paying certain royalties-to Davenport. This agreement of February 1, 1892, gave Comegys and Davis the option to purchase Davenport’s interest in the land outright for $20,000. This option was to expire on December 31, 1893.</p> <p>On February 15,1892, fifteen days after obtaining the option. of purchase from Davenport, they obtained from Russell an option to buy his title in two hundred acres of the premises within one year. That agreement between them provided that any interest which Davenport might have in the premises was excepted and that the parties, Comegys and Davis, were to take whatever they did take from Russell subject to any rights which Davenport had in the premises. So that on February 15,1892, Comegys and Davis had an option to mine the property under a royalty, paying a royalty to Davenport; they also had the option to purchase Davenport’s interest in the property absolutely, and they also had from Russell an option to purchase his interest in two hundred acres of the property for the sum of 8150,000.</p> <p>These papers, we think, were all valid papers, and we see nothing in any one of them that would operate to destroy the other. Under Davenport’s lease to Comegys and Davis he continued to mine coal from this property up to about the time Russell took possession in August or September, 1898. There is some question about that date; my recollection is that it was in September, 1893, that Russell took possession.</p> <p>By the terms of the agreement between Davenport and Comegys, that is, the agreement which was signed on January 14, 1892, which bore date July 1, 1891, they were to have seven months, which, subsequent to the time of the signing, was extended to ten months, for boring and testing the property, and at the expiration of that time their rights under the lease should cease unless they elected to proceed to mine and pay for the coal as stipulated in the agreement. The plaintiffs claim that they did elect to proceed to mine the coal, and that they gave Davenport notice of such election on or about April 25, 1892. This notice was in writing and was as follows: “ Scranton, April 25,1892. Mr. Joseph Davenport. Dear Sir: We, the undersigned, hereby notify you in accordance with the requirements of the lease signed by you July 1, 1891, leasing to us the tract of coal land known as the C. Weaver tract, that we accept said lease and elect to proceed to mine said tract of land in accordance with the requirements of said lease. Respectfully, H. 0. Comegys, Thomas Davis.”</p> <p>The defendant in this case contends that this notice cannot be construed as applying to the lease July 1, 1891, but which was actually signed January 14, 1892, but that it applies to the other paper, or some other paper, presumably to the paper which was given in evidence by the defendant in this case dated July 1, 1891, and which it appears was signed July 1, 1891. [The plaintiffs claim under the lease dated July 1, 1891, but executed January 14, 1892; that is, they claim in this case and base their right to recover in this case upon that lease or agreement, and if they are entitled to recover in this action it must be by virtue of this lease which was signed on January 14, 1892, although dated July 1, 1891, and not upon the strength of any other lease or paper.</p> <p>Now, gentlemen, with reference to this question we say to you that if the notice of April 25, 1892, which we have read to you, was designed to relate to the lease which was signed January 14, 1892, and both parties so understood it, then the election to mine under this lease, and the notice thereof, was sufficient. If, however, this notice was designed to relate to the other lease which was signed July 1, 1891, or any other paper or lease between the parties, or if Davenport understood by reason of the language of the notice that it related to this prior lease or to some other lease than the one signed January 14, 1892, then we think there is no sufficient evidence of an acceptance by Comegys and Davis of the option in the lease of January 14, 1892, to bind Davenport; and if Davenport was not bound, Russell would not be bound.</p> <p>The first question then is, what was the intent and understanding of the parties respecting this notice ? That is a question for you to determine, gentlemen, under all the testimony bearing upon it. In determining what that understanding was and just what weight should be given to this notice you should take into consideration the similarity of the two leases, their phraseology, the discrepancies between them where they differ, and we said to you there were but slight differences; the principal difference and perhaps the only difference in the two is with regard to the minimum coal to be mined. You should also consider the fact that one was dated and signed July 1, 1891, and the other was dated July 1,1891, but signed January 14,1892. You should consider the testimony given by the witnesses here bearing upon the question of the substitution of the latter for the former, and all of the testimony bearing upon the question as to wliat was the understanding of the parties at that time. Is it true or is it not that this latter paper was substituted for the former? You have heard the testimony of the witnesses who were present at the execution of the latter lease. They testify that the two papers were compared at that time and that it was understood then and there between them that this latter paper should take the place of the former. The notice relates to a lease signed July 1, 1891. If, as we said before, it was the intention of the parties that it should refer to this latter lease, then that discrepancy between the language of the notice and the time when the latter lease was signed would be entirely immaterial.] [2] If you should find from the evidence that there was a valid acceptance by Comegys and Davis of the option in the lease under which the plaintiffs in this case claim, that is. under the lease signed January 14, 1892, then such rights as Davenport possessed at that time under his lease with the defendant Russell passed to Comegys and Davis, and in order to protect those rights it was incumbent on them, in case of Davenport’s failure to do so, to meet the obligations imposed upon him by his lease with Russell.</p> <p>On September 23, 1893, Russell declared the forfeiture of the rights which Davenport had acquired under his lease and took possession of the premises. If at the time Russell took possession of the premises, on September 23, 1893, there were royalties unpaid which had been due from Davenport for one year, then as to Davenport his rights under the lease were forfeited and these plaintiffs would have no rights superior to Davenport unless, by some declaration of misconduct of Russell in the premises by which they had been misled to their prejudice, he is estopped from asserting the forfeiture against them. But if Russell knew of the acquisition of Davenport’s title in the property by the plaintiffs, if they did acquire that title, and made such positive declarations to them, as they allege here, that no royalties were due from Davenport, and relying upon the truth of such declarations, and by reason thereof, they subsequently made expenditures upon the property to their prejudice, then Russell would be estopped, -we think, from denying the truth of those declarations ; but if the forfeiture had already accrued at the time of the statements made, their falsity would be no bar to asserting the forfeiture unless the plaintiffs were subsequently prejudiced thereby. What we mean by that is this, that in order for the declarations made by Russell, if he made any such declarations, to be of any avail in this case for the plaintiffs, it must appear that they were not true and that these plaintiffs, acting upon those declarations, upon the assumption that they were true, expended time or money to their prejudice subsequent to that time.</p> <p>Plaintiffs’ point and the answer thereto among others were as follows:</p> <p>2. That it is for the jury to find from all the circumstances attending its execution, whether or not Joseph Davenport understood that the paper or lease dated July 1, 1891, but acknowledged January 14,1892, was the writing under which the plaintiffs elected to proceed. Answer: That is affirmed. [3]</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Errors assigned were (2, 3) above instructions, quoting them.</p>

Appeal, No. 385, Jan. T., 1898, by defendant, from judgment of C. P. Northampton Co., Dec. T., 1893, No. 49, on verdict for plaintiff. Trespass to recover damages for injuries alleged to have been caused by sparks from a locomotive. Before Scott, J. The facts are substantially the same as those which appeared at the first trial of the case reported in 178 Pa. 367.

Appeal, No. 34, Jan. T., 1897, by plaintiff, from order of C. P. Bradford Co., Sept. T., 1896, No. 415, making absolute a rule enjoining sheriff from levying upon a trust estate. Rule to enjoin sheriff from levying upon property belonging to the estate of Sarah Tozer, deceased. From the record it appeared that Sarah Tozer provided by will, inter alia, as follows: “Item.

Appeal, No. 234, Jan. T., 1897, by plaintiff, from judgment of C. P. Sullivan Co., Sept. T., 1892, No 87, on verdict for defendant. Issue to determine the validity of a judgment. The facts appear by the opinion of the Supreme court.

Appeal, No. 305, Jan. T., 1897, by defendant, from judgment of C. P. Susquehanna County, Nov. T., 1895, No. 167, on verdict for plaintiff. Trespass to recover damages for death of plaintiff’s husband at a grade crossing. Before Searle, P. J. At the trial, it appeared that on August 31,1895, George W. Tiffany, plaintiff’s husband, was killed at Kingsley station while driving a sulky over the tracks of the defendant company.

<p>Appeal, No. 314, Jan. T., 1897, hy George D. Hoffman, from decree of O. C. Lycoming Co., Dec. T., 1888, No. 21, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The facts appear by the opinion of Metzger, P. J., which was as follows:.</p> <p>A number of exceptions have been filed by the administrator to the report of the auditor in this case. The first exception we regard as an important one, involving, as it does, the question whether the administrator should account in the orphans’ court for the rents, issues and profits of the farm. There can be no doubt that as a general rule the administrator is not chargeable in his account as administrator with anything but the personalty. Upon the death of the intestate the real estate goes to the heirs, and the administrator has no power over it except in the manner pointed out by the act of assembly, when such real estate is wanted for the payment of debts. As said in McCoy v. Scott, 2 Rawle, 222, “ the real fund is not absolutely, but sub modo, assets in his hands.” That case decides that “ the administrator who collects the rents and profits of the realty of the intestate holds them as trustee for the heirs, and not for the creditors. Until the right of the heirs is divested by a sale by the administrator under an order of the orphans’ court, or by execution, the right of the heirs to the land is as absolute as that of their ancestor.” There can be no doubt, under the decisions in Pennsylvania, that the administrator cannot be compelled against his will to account in the orphans’ court for the rents, issues and profits of the real estate received by him, as they do not belong to the estate but to the heirs, and they alone are interested therein. When, therefore, the administrator takes possession of the realty and undertakes to manage it, he must he held to do so as the agent of the heirs, who alone can call upon him in such case for an account. This they could' not do in the orphans’ court, but would have to resort to the court of common pleas, which is the proper forum in which to account in such case. This is expressly ruled in the ease of appeals of Fross and Loomis, 105 Pa. 259: “ An administrator is not properly chargeable with the rents of his intestate’s, realty. If he takes charge of the realty, and collects the rents therefor, he acts merely as agent for the heirs; nor does he bind himself as administrator by assuming to act in that capacity. His liability as administrator, and that of his sureties, is limited to the matters appertaining to his office.” The same principle is decided in Walker’s App., 116 Pa. 419. In that case it was contended that the accountants had not in fact charged themselves with all the rents, issues and profits which they had actually received, and Justice Clabk, in delivering the opinion of the Court, on page 480, says: “ As the realty, as well as the personalty, was to be equally divided among the testator’s children, and the creditors have all been paid, it would be just and fair enough, perhaps, if the parties were willing, to allow the rents and profits received, and the taxes and insurance and repairs expended, to be adjusted in the account; but it was contended on the part of the appellees that the accountants had not in fact charged themselves with all the rents which they had actually received. As the accountants were not legally bound to charge themselves with any of these rents, it was, of course, futile and useless to enter into a contest of the account respecting the rents alleged to have been omitted. The only practicable method of procedure, therefore, was to turn the parties over to a forum which had proper jurisdiction of the subject-matter in dispute, and in which their respective rights might be ascertained and properly adjudicated.” These cases lay down the general rule. It does not follow that there are no cases in which the facts are such as to make them an exception to the rule laid down.</p> <p>It is contended in the case now before us, that it was expressly agreed by and between the heirs and the administrator that the latter should take charge of the realty and manage it. The evidence shows such an agreement between the parties, and, though there was no express agreement to account, the administrator clearly understood that it was his duty in his administrative capacity to look after and manage the said real estate. We think there is sufficient evidence to warrant us in finding that it was the understanding of all the parties that the administrator should take charge of and manage the real estate, and that it was to be treated as the estate of the decedent and accounted for as such. There was an express agreement, so far as the proceeds of the timber sold to Smithgall and .Weaver was concerned, that it should be passed upon by the auditor in stating the distribution account between the heirs and the widow. It is further contended by the widow and heirs that the administrator having taken charge of the real estate by their consent, and having managed it in his capacity as administrator, receiving as administrator the rents, issues and profits thereof, and paying the taxes, insurance, labor, etc., on the farm, in the same capacity, as shown by his cheeks given as administrator, and in some instances paying the same out of the estate’s fund and not out of the rents and profits of the farm, and having in his account filed as administrator claimed credit for expenses connected with the farm, such as taxes, insurance, and farm expenses, and also claimed, as shown by the evidence, for his services in looking after and managing the farm, in all of which the widow and heirs acquiesced, he is now estopped from denying his liability to account in the orphans’ court for his management of the realty.</p> <p>It is a fair inference from the evidence in this case that it was understood between the widow and the heirs and the administrator, that he was managing the real estate, not as their agent, but as administrator, in the same manner as he had charge of and managed the personal estate. It is evident, too, from the fact of his'making certain charges and claiming certain credits with respect to the real estate that he was under the impression that he had the right to settle this account in the orphans’ court, the same as he settled his account of the personal property. It would seem, also, from the exceptions filed by the widow and heirs to his account, that they were under the same impression, for they complained by their exceptions that he did not charge himself with all the proceeds of the farm. We hear of no objection, such as is now filed to the auditor’s report, until the audit had progressed for some’time, and until a number of the items with which the administrator would be chargeable would be barred by the statute of limitations if the parties were now turned over to another forum to begin proceedings anew. In short, the administrator has been guilty of such conduct in the management of the estate, including the realty, and in the filing of his account, as to induce the widow and heirs to desist from resorting to any other tribunal for the adjustment of the accounts between him and them until the statute of limitations has intervened to bar a number of items in the account. If we are now to determine that the widow and heirs must resort to any other tribunal to recover what is due them from the administrator for the receipts of the farm, we leave them without .remedy for a considerable amount to which they would have been legally entitled but for the delay which was wholly caused by the conduct of the administrator. We are aware that, as a general rule, the want of jurisdiction can be taken advantage of at any stage of the proceedings; also, that where a court has not jurisdiction of the subject-matter, jurisdiction cannot be given it by consent; but we think we do not violate this principle if we now determine that, by reason of the agreement between the parties, the continued acts of the administrator, acquiesced in, as they were, by the other parties interested, and in view of the fact that he, himself, invoked the jurisdiction of the orphans’ court in the first instance, thus causing by his acts and conduct large expense and loss, and making ineffectual by reason of the delay any other remedy which the parties might have had to have their rights adjusted in the proper tribunal, he is estopped from now alleging want of jurisdiction in the orphans’ court. What harm can result from holding him to liability in this proceeding? All the parties to be affected have acquiesced in all that has been done until the administrator found he had made a mistake in invoking the jurisdiction of the orphans’ court, because he discovered that when both sides of the account were presented before the auditor there would be some balance due the widow and heirs which he was unable to wipe out by his expense account. So far as he was concerned he settled his account, including his account of the real estate, in the orphans’ court, and it would seem to us to be enabling him to perpetrate a fraud on the other parties if, at this late day, he were now permitted to have his own act in said court set aside, for no other purpose, it seems to us, than to enable him to get rid of accounting for some period of time for the proceeds of the farm. We are therefore of opinion that under the peculiar facts in this case the administrator is estopped from now raising the question of the jurisdiction of the orphans’ court. We are also of opinion that where, as in this case, all the parties interested permit the real estate to be treated as assets of the estate, there is nothing to prevent the orphans’ court from assuming jurisdiction of the account of the administrator with respect to such realty, especially where he himself has invoked the jurisdiction of said court.</p> <p>It has been held in Massachusetts and some other states that where there is an understanding or agreement that the administrator shall take the rents and account for them for the benefit of the estate, in such a case the administrator would account in the probate court for such rents with the general assets, according to such agreement, but not necessarily by force of any requirement of the statute. Such is said to be a somewhat common practice: Stearns v. Steams, 1 Pickering, 158. In that case it was contended that the administrators had no right to enter on real estate of their intestates .... and were not by law chargeable with the rent or income in the administration account; but the court held them liable to account in that case, holding that the consent of all parties might be presumed because the administrators had voluntarily credited the rents in their first account, and the other heirs made no objection, excepting as to the amount which should be credited ; and the administrators continuing afterwards to occupy the land, without notice to the other heirs of any change, the latter had a right to consider they were still holding on the same terms and would be chargeable in the same manner as before. See, also, Kimball v. Sumner, 62 Maine, 810. As to the other exceptions on the part of the administrator, saving the ninth, we do not think they can be sustained. We think there was evidence to warrant the auditor in all his findings of fact, and that there was evidence to warrant the disposition he made of the various items. So far as the household expenses are concerned, which the administrator claims to have paid, we think there was no-evidence warranting the auditor to find any agreement for the payment of those expenses, without which he clearly could not recover them. We think, however, the auditor should have allowed something more than he did for the services of the-administrator. Since we hold him chargeable with the rents, issues and profits of the real estate, it would not, in our judgment, be too much to allow him -1300 in addition to the compensation allowed him by the auditor, as we do not think he was guilty of such fraud or misconduct as should deprive him of all compensation. The exceptions on the part of the widow and heirs are also dismissed.</p> <p>And now, to wit: July 10,1897, the exceptions to the report of the auditor are all dismissed except the ninth exception of the administrator, which is sustained, and it is ordered, adjudged and decreed that the administrator be allowed the sum of $300 in addition to the compensation allowed him by the auditor; and the report of the auditor is referred back to him, with instructions to allow the said additional sum of $300 to the administrator, and to redistribute the balance in his hands in accordance with this opinion.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 61, Jan. T., 1898, by Charles Schlager, one of the defendants, from order of C. P. Susquehanna County, Nov. T., 18.96, No. 178, discharging a rule to open a judgment as to part. Rule to open judgment.

Appeal, No. 86, Jan. Term, 1898, by plaintiff, from order of C. P. Bradford Co., Sept.'Term, 1896, No. 625, refusing to take off nonsuit. Trespass to recover damages for personal injuries. Before Searle, P. J., of the 34th judicial district, specially presiding. At the trial it appeared that plaintiff was injured on the night of August 8,1894, while employed as an engineer in running a freight train from Sayre to Falling Springs.

<p>Trusts and trustees — Joint and several trust — Devastavit—Mortgage to protect one cestui que trust will inure to all.</p> <p>Whenever one person is placed in such relations to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated.</p> <p>Where a mother gives all her residuary estate to a trustee to pay one half of the income to a son, and one half of the income to a daughter, she does not give one hal f of the principal to be held for each, but gives it to be held jointly in trust forboth. In such a case if the brother learns that the trustee is embarrassed financially, and secures from him a mortgage on his property, to protect the brother, without informing his sister, the sister will.be entitled, in case of a devastavit, to share in the benefit of the mortgage.</p>

<p>Appeal, No. 407, Jan. T., 1897, by plaintiffs, from decree of C. P. No. 2, Phila. Co., June T., 1893, No. 225, on bill in equity.</p> <p>Bill in equity for a partition.</p> <p>The facts appear by the opinion, of Sulzberger, J., which was as follows:</p> <p>1. On April 24,1864, Michael McGranighan took title to the premises described in the first paragraph of the bill, subject to a yearly ground rent of $36.00, payable to Richard J. Dobbins, his heirs and assigns, in equal half-yearly payments on the first day of the months of March and September in each year, redeemable on the payment of the principal sum of $600.</p> <p>2. The said Michael thereupon entered into possession of said premises and about the year 1868 built a second house at the corner of 54th and Wyalusing avenue, on said lot. Into this second house he removed with his family, leasing thereafter the first house to his eldest son, Daniel, one of the plaintiffs, at the rent of $10.00 per month.</p> <p>8. On October 2,1888, tlie said Michael died intestate seized in fee of the said premises, subject to the ground rent as aforesaid, leaving to survive him, his widow, Ann, and seven sons, as follows: Daniel, Hugh, Charles, Patrick, John, James F. and Michael S., to which said sons said premises descended and vested as tenants in common, in fee, subject to the dower right of their mother.</p> <p>4. In the month of December, 1888, Charles died intestate, seized of his undivided one seventh interest in said premises, leaving to survive him, his widow, Julia, and five children, as follows: Annie, Catherine, Charles, Henry and Frank; all of whom are minors, without guardian.</p> <p>5. Ann, widow of Michael, the elder, continued to live in the corner house until her death, which took place on April 30, 1892, and Daniel has continued to live in the other house.</p> <p>6. Daniel paid the rent on his house to his mother during her lifetime except for the last two months, when he was unable by reason of sickness to raise the money.</p> <p>7. The widow, Ann, at the time of her death owed five half-yearly instalments of ground rent amounting in all to $90.00.</p> <p>8. Suit was brought for the arrears of ground rent, judgment obtained and execution issued, and on August 1, 1892, the premises in question were sold by the sheriff to Jamos F. Mc-Graniglian and Michael McGranighan, the younger, for the sum of $600, and on September 19, 1892, the said sheriff delivered his deed to said vendees, subject to the ground rent.</p> <p>9. On the same day, September 19, 1892, the owners of the ground rent by deed granted and extinguished the same to the said James and Michael in consideration of $600.</p> <p>10. On the same day, September 19, 1892, the said James and Michael mortgaged the said premises for $1,600 to the St. Agatha’s Building and Loan Association, the mortgage money, as recited in said indenture of mortgage, being advanced to pay the consideration to the sheriff for said premises and the consideration for the extinguishment of the ground rent. In point of fact only $1,200 were applied for these purposes, $195 were used to pay doctor’s bill and funeral expenses of the mother, and $205 appear to be unaccounted for.</p> <p>11. The said James and Michael, claiming the ownership in fee of said premises, instituted proceedings before a magistrate against Daniel under the act of June 16, 1836, which proceedings have been removed to this court, being the same proceedings which the bill seeks to enjoin.</p> <p>12. The said James F. and Michael S. have collected and are collecting rent for the corner house.</p> <p>13. The premises in question have a value of $400 and upwards above the amount of the aforesaid mortgage.</p> <p>The vital question in the case is whether James and Michael acquired the ownership in fee. If they did, the proceedings sought to be enjoined are entirely correct and the bill must be dismissed. If they did not, they hold merely as trustees for all concerned, and partition should be ordered and an account stated. The law of Pennsylvania was clearly laid down by Mr. Chief Justice Lewis, in Weaver v. Wible, 25 Pa. 270: “ Where several persons have a joint or common interest in an estate, it is not to be tolerated that one shall purchase an incumbrance or an outstanding title, and set it up against the rest, for the purpose of depriving them of their interests. ... All that can be demanded is contribution from each to the expense of any purchase which releases the common interest from embarrassment.” This principle was restated by the Supreme Court in the late case of Powell v. Lant-zy, 173 Pa. 543.</p> <p>The defendants deny the plaintiff’s right because they say that:</p> <p>1. The sheriff’s bill for sale was put up on the house in which Daniel lived, and he was going in and out and must have seen it.</p> <p>2. Before the sheriff’s sale John (one of the defendants), said to Daniel and Hugh: “ Before I will see it go to sheriff’s sale, I will put up my share with any one of you.” Hugh says : “ I don’t want to have a damned thing to do with it; I don’t want a dollar out of it; I have my own house and a building association, and' it is as much as I can attend to.” Michael said to Dan: “ There is a lot of bills against it.” He says : “ Well, 1 have no money to straighten them.” Michael says: “Well, somebody will have to straighten them, a stranger will own it; now I am in a building association, before a stranger will own it, I will bid on it, but if you don’t wish that, why here is my book, give me what money» I have paid on my book, you go down and I would as lieve you would own it.” He says: “No, I am very glad, Mike, that you are able to buy it. I would not like to see it go out of the name. I would like to see you have it and I am glad to see that you are able to buy it.”</p> <p>3. Everybody knew of the sheriff’s sale.</p> <p>4. Michael paid $50.00 at sheriff’s sale, $25.00 his own and $25.00 his brother James’s. They borrowed $1,600 on their shares from the building association, which was applied as follows :</p> <p>Purchase money ....... $600.00</p> <p>Principal of ground rent..... 600.00</p> <p>Dr. Whiteside’s bill for the mother . . . 85.00</p> <p>Funeral and tombstone for the mother . . 110.00</p> <p>$1,395.00</p> <p>What became of the other $205 did not appear.</p> <p>These points made by Michael were substantially reiterated by James, his narrative, however, varying somewhat in the details.</p> <p>The plaintiffs’ testimony on the other hand differed materially on some of these matters. 1. Daniel admits that he knew of the sheriff’s bill, but says that he was confined to his bed. 2. Daniel describes the interview before the sheriff’s sale as follows : “ Hugh asked them (the defendants) to put it in the hands of a trust company, or to the orphans’ court; that he was willing to pay his share of what would be against it, and of course I acquiesced in what he said, in everything he said, right by his shoulder, and he said: ‘ If there is a dollar coming to us, we want it, and if there is $10.00 in debt we offer to pay it.’ ”</p> <p>Daniel denied that any amount of money necessary to be raised was named; he denied that the brother offered his building association book, or that it was declined, or that he said that he would have nothing to do with it.</p> <p>Assuming for argument’s sake that the defendants’ statements on these controverted points are exactly correct, it is difficult to see how they help the defendants’ cause. The plaintiffs were not men of much education or knowledge of business affairs. Daniel is a gardener and Hugh was a fireman, who since the filing of the bill died in the performance of his duty. They were not men of means, but plain laboring men with families to support. They had no money to pay the arrears of rent and other liens, and they had not sufficient business knowledge to know how to save their imperiled interests without a considerable outlay. The third party plaintiffs were the widow and five minor children, of a deceased brother, very poor, and of course, ignorant of business affairs. What did these cotenants defendants do under the circumstances? According to their own account they utterly ignored the widow and minor children, and put prominently before the other two plaintiffs the necessity of raising what was to them a considerable amount of money, and all their statements rested on the assumption that some one with money would have to take up the matter, and that the interests of those without money were doomed to be sacrificed. If in so acting they dealt in good faith and honestly gave their cotenants the best thought they had on the subject a question of some difficulty might be presented. We have, however, been unable to avoid the conclusion that at the time when the defendants puzzled two of the plaintiffs with the apparently insoluble difficulties of the situation, they had in their minds a method whereby all rights could have been saved with very little trouble, the method, which in point of fact, they promptly adopted. To us it seems that their bearing towards all the plaintiffs was, to use the language of Chancellor Kent in the somewhat analogous case of Van Horne v. Fonda, 5 Johns. Ch. 888, “repugnant to a sense of refined and accurate justice, .... immoral because it would be against the reciprocal obligation to do nothing to the prejudice of each other’s equal claim, which the relationship of the parties, as' joint devisees created. . . . The parties had equal concern which created a mutual obligation, to deal candidly and benevolently with each other, and to cause no harm to their joint interest.” The plaintiffs are therefore entitled to the relief prayed for.</p> <p>And now, January 2, 1897, the prothonotary will notify the parties or their counsel of the filing of this report and opinion, and if no • exceptions are filed thereto within twenty days a decree will be entered according to the foregoing opinion.</p> <p>The following decree was subsequently entered:</p> <p>And now, February 24,1897, no exceptions having been filed to the findings of fact and law in this case within twenty days from the filing thereof, in accordance with the report and opinion, and on motion of David H. Stone, Esq., solicitor for plaintiffs, it is ordered, adjudged and decreed that the defendants, James F. McGranighan and Michael S. McGranighan, hold the title to the premises described in said bill, acquired by them by purchase at sheriff’s sale thereof on August 1,1892, as trustees for all the parties plaintiff and defendant, as of the shares and interests therein as the same were held by them or the persons through whom they claim immediately prior to said sheriff’s sale, subject as respects the said James F. McGranighan and Michael S. McGranighan to the payment of a certain mortgage debt of $1,600 secured upon said premises by indenture of mortgage given by said defendants to the St. Agatha’s Building and Loan Association, dated September 21, 1892, recorded at Philadelphia, in mortgage book T. G., No. 211, page 275, etc., and as respects the shares and interests of the other parties to $1,200 of said mortgage debt. And it is further ordered and decreed that an injunction issue to the said defendants, James F. McGranighan and Michael S. McGranighan, perpetually restraining them from further maintaining their action against plaintiff, Daniel McGranighan, for the recovery of said premises as of the term and number of this bill, and from commencing and maintaining any other action for the recovery of possession thereof in their own right based upon their said purchases at said sheriff’s sale. And it is further adjudged and decreed that the said James F. McGranighan and Michael S. McGranighan account to the said plaintiffs, for the rents received by them for said premises or any part thereof. And it is further ordered, adjudged and decreed that partition or division of said premises be had and made among all of said parties according to the acts of assembly and the course and practice in equity, and the shares of said parties set out to them in severalty; and Walter George Smith, Esq., is hereby appointed master to state said account and to make said partition, and in case the said premises cannot be divided or parted among said parties without injury to or spoiling the whole, to value the same or convenient purports thereof, and to report his doings to this court for confirmation and further order. [1]</p> <p>Errors assigned among others were (1) the decree of the court, quoting it; (5) in finding as a matter of law that the-appellants were trustees for the complainants.</p>

Appeal, No. 390, Jan. T., 1897, by plaintiff, from order of C. P. No. 8, Phila. Co., June T., 1895, No. 471, refusing to take off nonsuit. Trespass to recover damages for personal injuries. At the trial it appeared that plaintiff, a boy ten years old, was injured on March 80,1895, at the intersection of Seventeenth street and Pennsylvania avenue, in the city of Philadelphia.

<p>Appeal, No. 391, Jan. T., 1897, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1895, No. 470, refusing to take nonsuit.</p> <p>Trespass to recover damages for injuries to the plaintiff’s minor son.</p> <p>The facts appear by the last preceding case.</p>

Appeal, No. 393, Jan. T., 1897, by Fidelity Ins., Trust & Safe Dep. Co., from decree of O. C. Phila. Co., July T., 1889, No. 46, dismissing exceptions to adjudication. Exceptions to adjudication.

Appeal, No. 452, Jan. T., 1897, by William F. Parker, from judgment of C. P. No. 1, Phila. Co., March Term, 1897, No. 485, on case stated. Case stated to determine the marketable title of real estate..

<p>Appeal, No. 453, Jan. T., 1897, by William F. Parker, from judgment of C. P. No. 1, Phila. County, March T., 1897, No. 486, on case stated.</p>

Appeal, No. 6, Jan. T., 1898, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1897, No. 779, refusing to take off nonsuit. Trespass to recover damages for personal injuries inflicted upon plaintiff by defendant’s servant.

<p>Contract — Cancelation of contract.</p> <p>Plaintiffs agreed to manufacture and ship certain goods to defendants in lots beginning on a certain day mentioned. Subsequently plaintiffs wrote defendants that on account of a strike they would be obliged to have an extension of time of about forty days to deliver the goods. Defendants wi’ote first that they could not make any change in the order, and then wrote canceling the order, stating that on account of plaintiffs’ inability to deliver the goods they had been obliged to leave them out of their price list, and that under the circumstances the goods would be of no use to them. It appeared that if the shipments had begun on the day designated in the contract it would have taken about four months to complete the deliveries. The notice of the refusal to make the extension was given one month and twenty-one clays before the time to which the change was requested to be made. Held, that the plaintiffs were not entitled to recover damages from defendants.</p>

<p>Food law — Shimmed milk — Ael of June 26, 1895 — Criminal law.</p> <p>“Skimmed milk” is the generic term by which is meant milk from which its natural cream has been taken in part or in whole. The process of removing the cream is a mere incident, and the result in the product is a difference only in the proportion of the cream or fatty constituents left in it, a difference of quality only, and not greater, as appears, than that In milk skimmed once, or skimmed twice, in the old-fashioned way, and after twelve hours’, or after twenty-four hours’ setting. It is not, therefore, an indictable offense under the Act of June 26, 1895, P. L. 817, entitled “An act to provide against the adulteration of food,” etc., to sell, as “ skimmed milk,” milk from which the cream or butter fat has been taken by the centrifugal or “ separator” process.</p>

<p>Mechanic's lien - Subcontractor - Lump sum - Amendments-Act of June 11, 1879.</p> <p>Where a person who is really an owner of a building, although holding himself out as a contractor, makes a contract for a lump sum with a material man, the latter may file a lien for the lump sum specified in the contract.</p> <p>Where a material man files a mechanic’s lien against a building for a lump sum, naming one person as owner, and another as contractor, and subsequently ascertains that the person named as contractor was really the owner of the building, and had transferred the title to the reputed owner in order to defraud his creditors, the court may, under the Act of June 11, 1879, P. L. 122, even after the expiration of six months front the filing of the lien, permit the record to be amended so that the person named as contractor shall appear as owner; but such amendment will not atfeot any intervening rights of terre-tenants or other persons. Ballman v. Heron, 160 Pa. 877 and 169 Pa. 510, followed.</p>

<p>Appeal, No. 35, Oct. Term, 1898, by Philip Hill, from judgment of O. & T. Allegheny Co., June T., 1897, No. 18, on verdict of guilty.</p> <p>Indictment for murder. Before Slagle, J.</p> <p>Nolle pros as to defendant, Earley Banks. Not guilty as to defendant, James Hill. Guilty of murder of the first degree as to defendant, Philip Hill, and judgment on the verdict.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were as follows: (1) the evidence was nob sufficient to warrant a conviction of murder in the first degree;</p> <p>(2) the verdict of the jury was against the evidence; (3) the learned judge did not sufficiently instruct the jury on the law of homicide and the facts of this case.</p>

<p>Will — Intestaey—Remainders.</p> <p>Testator after disposing absolutely of two fourths of his residuary-estate gave one fourth in trust for his sister for life, and at her death one half of the income of said fourth to his nephew for life, and half of the income to his niece for life. At the death of the niece, he gave one half of the principal of the share so held in trust, being one sixteenth of his residuary estate, to her children; and in case of her death without children or other issue, then the whole of the principal of one eighth to a certain charity. This charity was the ultimate remainderman as to other shares of the residuary estate, and it also received a money legacy under the will. The niece died leaving children to survive her. Held, that testator died intestate as to one half of the fund held in trust for the niece, and it was error to award to the charity designated one sixteenth of the residuary estate.</p>

<p>Negligence — Joint tort feasors — Practice—Trial.</p> <p>Inasmuch as joint tort feasors are jointly and severally liable for injuries caused by their torts, and. as between themselves, no contribution exists, one of them has no cause to complain because in an action against the two, the trial judge directed a verdict in favor of the other.</p> <p>Negligence — Electric light company.</p> <p>In an action against an electric light company to recover damages for personal injuries caused by an electric current, the case is for the jury where the evidence shows that plaintiff received an electric shock from a guy .wire running from a pole in a street across her yard; that numerous telegraph and other wires were strung upon the same pole, the voltage of which was not sufficient to cause the injury; that the insulation in close proximity to the guy wire was worn off by contact with it, and that flames and sparks had been seen at this point for months before the accident.</p> <p>It is not error for the trial court to charge in an action for damages for personal injuries against an electric light company, “ This wire is admittedly a dangerous wire. It is insulated for that, among other reasons, and the question is, whether you consider that putting a wire of that kind on a pole already covered with other wires and going through the city .... is not a very dangerous thing, of itself;” if the court had previously stated that plaintiff’s contention was that the accident was caused by defendant’s wire becoming worn and by the electricity running down a guy wire, and that that was a question for the jury to decide, and if they decided in favor of plaintiff’s contention, the second question would be, “Has this electric light company been guilty of negligence which caused the accident ? . . . . Every man understands that care which is sufficient /or a barrel of potatoes is negligence for a barrel of gunpowder;’’and immediately follows the part of the charge objected to, with this instruction: “The question for you to decide is, do you think that this company took such care and supervision of this wire under the circumstances as, considering its dangerous nature, it should have done.”</p>

<p>Mechanic's lien — Original construction — Additions mid alterations— Finding by the court.</p> <p>A factory was erected to manufacture paint in a particular way. Soon after the completion of the construction of the building, it was found that the method of manufacture contemplated was not feasible, and it was determined to use other appliances. In pursuance of the change in the plans, an additional building was erected. One of the contractors of the original building furnished the work and materials for the new building, and filed a lien therefor. Held, that it was proper for the court below to find that the work and materials furnished after the completion of the original building should be regarded as having been furnished for additions and alterations.</p> <p>It seems that the Act of May 18, 1887, P. L. 118, relating to mechanics’ liens, applies to all liens for repairs, alterations or additions in all parts of the state, and therefore supplies all previous legislation on that subject.</p>

<p>Negligence — Bicycle schools— Bicycles.</p> <p>In an action against the proprietors of a bicycle school to recover damages for personal injuries caused by a fall from a bicycle, a nonsuit is properly entered where the evidence for the plaintiff shows that she was a pupil of the school; that during her fiflh lesson she was placed upon a bicycle by her instructor who took her once around the room, and then gave her a push, telling her to go ahead, and saying in answer to her protest, “ You are all right, push; ” and that she then lost control of the wheel, and was thrown and injured.</p>

<p>Appeal, No. 298, Jan. T., 1897, by-plaintiffs, from order of C. P. No. 3, Phila. Co., March T., 1895, No. 364, refusing to take off nonsuit.</p> <p>Trespass to recover damages for the death of plaintiffs’ son. Before Finlettek, P. J.</p> <p>At the trial it appeared that on January 13, 1895, plaintiffs’ son, a boy sixteen years old, with several other boys, was running east on the north side of Bainbridge street, in the city of Philadelphia. As they approached Tenth street they saw a car going south on that street. Plaintiffs’ son checked his speed, but continued on, and either ran into the front corner of the car, or on the track immediately in front of the car. He was struck and killed. The second boy struck the side of the car, but saved himself by throwing up his hands against the side. The motorman had his hands upon the brake and lever; he was at the moment looking eastward; the car was stopped in about four feet. The trial judge directed a nonsuit, which the court in banc refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Will — Power of sale — Trusts and trustees.</p> <p>Testator after making provision for his family by life estates and bequests directed that the residue of his estate should be used in establishing a charitable institution, and directed that his mansion house should be used for that purpose. Owing to a great shrinkage in his estate his intent to found a charitable institution failed. By his will he gave to his executors and trustees power to sell “any or all of my real estate” when they should think it for the best interest and benefit of his estate. Certain of his children petitioned the orphans’ court to direct the trustees to sell the mansion house, which was an unproductive property, in order that the proceeds of the sale might be invested and the income therefrom distributed to testator’s children. Meld, that it was proper for the court to direct the trustees to sell the property.</p>

Appeal, No. 466, Jan. T., 1897, by Bertram Dawson Coleman, from decree of O. C. Phila. Co., July T., 1892, No. 222, refusing to award an issue devisavit vel non. Appeal from register of wills. Tbe facts appear by the opinion of tbe orphans’ court, Ash-man, J., which was as follows : The testator and his mother executed their respective wills concurrently, each giving liis or her property to the survivor.

<p>Trust and trustee — Conversion of securities by trustee — Duty of inquiry.</p> <p>Where securities, which show on their face that they are held in trust, are pledged by a firm of which one of the trustees is a member, as collateral security for a loan, the pledgee is put upon inquiry, and if inquiry would reveal the fact that the trustee had no power to sell or assign the security, the pledgee must account for them to the trust estate.</p> <p>Trust and trustee — Cotrustees—Breach of trust — Parties to suit.</p> <p>Where one trustee has committed a breach of trust, his cotrustees may sue to restore the property with or without the cestui que trust being made a party to the suit.</p> <p>Will — Life estate.</p> <p>Testator by his will gave a certain portion of his estate to trustees in trust to pay over to his daughter, for her sole and separate use during her natural life, the income thereof, and at her decease the principal was given “ equally to and amongst all the heirs of her body, if she should have any; the children or descendants of any one of her children who may be dead to take collectively what their parent or ancestor would have been entitled to if living, and if any die before their mother without issue the share or shares of such to go to the survivor or survivors, or their issue in the same manner, and, in default of such heirs, equally to her brothers and sisters and their heirs.” Held, that the daughter took a life estate only.</p> <p>Trust and trustees — Power to sell — Will.</p> <p>AArhere a testator directs that his trustee may sell the trust estate created by his will in favor of his daughter, provided that the daughter gives her consent in writing to such sale, neither her parol consent nor her conduct and acquiescence will be considered sufficient, but her written consent is necessary to give validity to a sale by the trustees.</p>

<p>Negligence — Use of acids in laundry — Evidence—Nonsuit.</p> <p>In an action against the proprietors of a laundry by an employee to recover damages for loss of eyesight alleged to have been caused by fumes created by the use of acids, a nonsuit is properly entered where there is no evidence that the defendants had any knowledge that the use of the acids complained of would produce the disease from which the plaintiff suffered, and there is no proof that it was not customary to use acids in laundries in the same manner and proportions as they were used in the laundry business conducted by the defendants.</p>

<p>Attachments — Contempt—Lunacy.</p> <p>An attachment is never issued against a party or a witness unless he is shown to be in contempt o£ the court. He can only be in contempt by disobeying some process or order of court previously served upon him.</p> <p>It is improper to issue an attachment for contempt against a person who has failed to deliver the property of a lunatic to the lunatic’s committee, where if appears that no rule or order was ever issued or served upon him prior to the rule for attachment ; and a written request by the committee of the lunatic, or a mere remark of the court at the hearing of the rule for the attachment that the property must be delivered, is not sufficient to support the attachment.</p> <p>Lunacy — Proceedings in forma pauperis — Costs.</p> <p>The court may appoint a commissioner in lunacy at the expense of the estate of the lunatic, although the petition for the inquisition has been in forma pauperis.</p> <p>The court may order that the committee of a lunatic pay the expenses of the lunacy proceedings, without notice to the person who filed the petition for an inquisition.</p>

<p>Appeal, No. 495, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1891, No. 487, on verdict for defendant.</p> <p>Trespass to recover damages for the opening of a street. See Plan 166, 148 Pa. 414, and Clark v. Philadelphia, 171 Pa. 80, where the property in controversy in this case was also involved. Before Wiltbank, J.</p> <p>At the trial it appeared that in 1878, a grade of plaintiff’s property was established by a confirmed plan. Nothing was ever done, however, either by the city or by the plaintiff, in accordance with this plan. By an ordinance of November 2, 1885, the grade was changed from that established in 1878, and in 1889 Forty-fifth street was opened in accordance with the grade of November 2, 1885.</p> <p>When William II. Jones, a witness for plaintiff, was on the stand, he testified as follows :</p> <p>Mr. Clark, of counsel, for plaintiff: “ Q. Did you ever make an estimate oE the amount of filling required upon those properties to bring them to the grade regulations of 1878 established by the city? A. I did. Q. Are those your figures?” The purpose being to put plainly upon the record again the offer that the amount of filling necessary to bring plaintiff’s properties to the grade regulations in force on November 1, 1885, is a material and relevant matter, and one which I am entitled to have before the jury. I repeat that offer, adding that this offer is made not as an independent item of damage, but as it influences value.”</p> <p>Objected to by Mr. Miller. Objection sustained. Exception noted for plaintiff. [1]</p> <p>George W. Hancock, a witness for plaintiff, was questioned by the court: “Q. But you are quite uncertain to what height it was to be filled, and it is only after the passage of the ordinance of 1888 that you find the height established according to the lines of 1885; now, how can you estimate a value in view of that uncertainty? A. There was a grade established as early- Q. You must not talk about that grade of 1878 ; tliat is not in the case. I am putting the question as to the uncertainty which you have just spoken of. You have said that after this grade was adopted practically, and the work was done, you had facts. So you had. You had the facts, you had an established grade according to the lines on the plan of 1885. Before that, you had not facts. Now, before you had facts, how could you estimate the value of that land? ” [2]</p> <p>The witness was asked by plaintiff’s counsel: “ Q. I understand that there could have been a more favorable grade for the development of the plaintiff’s property than the grade of November 2, 1885?”</p> <p>Objected to. Objection sustained. Exception noted for plaintiff. [8]</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>1, The jury have nothing to do with any plan earlier than the plan of 1885. Answer: Affirmed. [4]</p> <p>2. The jury have nothing to do with the question whether the city might have fixed a more favorable grade for Mi’. Clark than it has fixed. Answer: Affirmed. [5]</p> <p>3. No suit can be brought for damages because of the change of a street height on the city plan. The damage is not done until the work is performed. The question then is whether the property is worth more or less after the street is constructed to the new grade than it was under the conditions immediately preceding the construction. [6] Answer: Affirmed.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-6) above instructions, quoting them.</p>

Appeal, No. 24, Jan. T., 1898, by-Frank Rickards, from order of C. P. No. 4, Phila. Co., Sept. T., 1894, No. 385, dismissing exceptions to auditor’s report. Exceptions to report of auditor.

Appeal, No. 55, Jan. T., 1898, by plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1894, No. 1,395, on bill in equity. Bill in equity to enforce the extinguishment of ground rents. The case was heard on bill, answer and proof.

Appeal, No. 27, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Pliila. Co., Sept. T., 1896, No. 924, refusing to take off nonsuit. Trespass to recover damages for death of plaintiff’s husband. Before Biddle, P. J. At tlie trial, it appeared that plaintiff’s husband, Albert M. Wood, together with Charles E. Cochran, was engaged on J une 18, 1896, in conducting a photograph gallery in Washington park in the city of Philadelphia.

Appeal, No. 58, Jan. T., 1898, by plaintiff, from order of C. P. No. 4, Pliila. Co., Dec. T., 1895, No. 809, refusing to take off nonsuit. Trespass to recover damages for death of plaintiff’s husband. Before Willson, J. At the trial it appeared that on January 18, 1895, plaintiffs husband, the Rev. Frederick Nicodemus, about ten o’clock in the morning, was riding a bicycle east on Walnut street in the city of Philadelphia, and on the south side of the roadway.

<p>Negligence — Death—Release of damages — Evidence.</p> <p>In an action to recover damages for death of plaintiff’s husband, the action of the trial court in directing a verdict for the defendant will not be reversed where the evidence shows that the husband’s head and eye were slightly injured while riding in defendant’s car; that he walked home after the accident, merely complaining of being tired; that ho felt worse the next day, had fever with pain in the head the third day and also on the fourth, with restlessness, swollen throat and wandering of the mind, and died on the sixth day; and where it appears that the deceased and his wife executed a release of damages, and there was nothing to show mental incapacity at the time of tlic release, except an offer to prove 1ns condition on the day before he signed the release, which offer was excluded by the court.</p>

<p>Appeal, No. 72, Jan. T., 1898, by-defendant, from judgment of C. P. No. 4, Pbila. Co., December Term, 1895, No. 806, on verdict for plaintiff.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Willson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in submitting the case to the jury.</p>

Appeal, No. 73, Jan. T., 1898, by plaintiff, from order of C. P. No. 2, Pliila. Co., Sept. T., 1895, No. 588,. dismissing exceptions to report of referee.

Appeal, No. 303, Jan. T., 1897, by Ellen Kane, from decree of O. 0. Phila. Co., Jan. T., 1894, No. 391, sustaining exceptions to adjudication. Exceptions to adjudication.

<p>Criminal law — Removal of oases to Supreme Court — Certiorari—Constitution of 1874 — Act of March 18, 1875.</p> <p>The authority oí the Supreme Court to remove causes by certiorari from the court of oyer ami terminer or quarter sessions has not been taken away by the constitution of 1874, nor has it been affected by the Act of March 18, 1875, P. L. 80, relating to change of venue.</p> <p>The Supreme Court will not remove by certiorari from the quarter sessions an indictment for bribing a city councilman, where the ground for removal is alleged to be the excited condition of the public mind by reason of inflammatory articles in newspapers, expressions of the district attorney that he anticipated jury fixing, the offering of a reward by a political organization for the conviction of any one for bribing a jury or attempting to do so, and the illegal and irregular course of two judges sitting as committing magistrates in investigating the bribery charges connected with that in the indictment where it appears that two terms have elapsed since the application for the removal was made, and the public excitement about the case has died out.</p> <p>Jurisdiction — Judges—Investigation of bribery charges.</p> <p>A judge of the quarter sessions, sitting as a committing magistrate or justice of the peace, has no jurisdiction to conduct an investigation of general charges of bribery in connection with city council men where there is no definite charge against any specified person, and no affidavit, as provided by the constitution. The legal tribunal for inquiry and investigation, based on rumor, or common report, or general charges, is the grand jury.</p> <p>In a public examination of charges of bribery of city councilmen, conducted by a judge of the quarter sessions sitting as a committing magistrate and by the district attorney, it is illegal to force from one of the suspected parties, by solemn adjurations and threatening manner, admissions tending to incriminate himself.</p>

<p>Liquor laws — Remonstrances—Mandamus—Practice, Q. 8.</p> <p>A petition for a mandamus to compel the judges of the quarter sessions to hear and consider remonstrances against the granting of liquor licenses was founded on remonstrances against forty-two different persons scattered through twenty-two different wards of a city. The remonstrances were upon printed blanks, but the blank spaces calling for statements that the remonstrants were residents of the ward in which the licenses were applied for were not filled up. A number of the remonstrances were signed by the same persons though the places were in different wards. There was nothing to show that the remonstrants were citizens or residents of the commonwealth. Held, that the petition should be dismissed.</p>

Appeal, No. 269, Jan. T., 1897, by Mary Bachman, from decree of O. C. Phila. Co., Jan. T., 1895, No. 168, dismissing exceptions to adjudication. Exceptions to adjudication. The material portions of the adjudication were as follows: It was shown that testator died January 18, 1888, leaving a will, duly admitted to probate on January 28, 1888, by which, inter alia, lie bequeathed and devised all his estate to his wife, Babetta Schmidt, during her natural life.

<p>Appeal, No. 270, July T., 1897, by plaintiff, from order of C. P. No. 4, Pbila. Co., June T., 1894, No. 897, dismissing exceptions to report of referee.</p> <p>Assumpsit on checks.</p> <p>The case was referred to Richard C. Dale, Esq., who reported as follows:</p> <p>1. On December 6, 1898, the plaintiff drew its check, signed by its president and treasurer, to the order of H. J. Verner, teller, which check was by the said H. J. Verner indorsed to the order of Ralph H. Grant. This check upon its face bore the words “ In set. agree. No. 2259, Ralph II. Grant.” The circumstances under which the check was drawn were these: Early in October, 1893, Ralph II. Grant, of Scranton, applied to the plaintiff for a loan of $1,800, to be secured by mortgage on property in Scranton on which Grant proposed to erect a house. It was understood between Grant and C. S. Woodruff, the attorney of the plaintiff company in Scranton, that the plaintiff should not actually pay over to Grant the amount loaned until the house was fully completed, so as to make the property good security. In accordance with the method established by the plaintiff corporation in the conduct of its business, Grant, the borrower, was to take out a policy of life insurance for the amount of the loan, so that in case of death prior to the repayment of the loan, the proceeds of the life insurance policy would cancel the mortgage debt and the property would pass to his heirs free from any incumbrance. The books of the corporation plaintiff show as follows :</p> <p>Application register, defendant’s exhibit “ A,” that Grant’s application bears date October 4, 1893, and was received October 5, 1893. The loan was approved by the executive committee of the board of directors under date of October 10,1893, and the papers were sent to the plaintiff’s conveyancer on October 23,1893, the agreement for the loan then receiving a record number to identify it in the company’s business as No. 2259. On November 3,1893, the papers connected with the mortgage were delivered to the Commonwealth Title and Trust Company for tlieir examination, and on December 5, 1893, the plaintiff’s books show that a settlement certificate was received from the title company, and that on the same day N. A. Williams, who was settlement officer of the plaintiff corporation, filled up what is called a voucher for the drawing of a check for the amount of the loan. The plaintiff was unable to produce the particular voucher for this transaction, as it has probably been destroyed, but the form of voucher used in the business of the corporation plaintiff shows that such voucher contains the name of the applicant for the loan, the agreement number, the amount of the loan. This voucher in the regular course of business is prepared and signed by the settlement officer, who at the date of this transaction was N. A. Williams. It is approved by the signature of the president and afterwards signed by a bookkeeper, who draws from the check book a check in accordance with the data mentioned in the voucher. The check drawn in accordance with the voucher just referred to is the $1,800 check above mentioned. The signature of the president and treasurer is admittedly genuine, as is also the indorsement of H. J. Yerner, teller. The further indorsement upon the check of “ Ralph H. Grant ” is forged, and from the evidence the referee finds the forgery was committed by N. A. Williams, the settlement officer of the corporation plaintiff, who, having the check in his possession after its execution in the regular course of business, forged the signature of Grant, placed his own name upon it, and deposited it in his personal deposit account with the Commonwealth Title and Trust Company, who subsequently deposited it to their credit in the deposit account kept with the Farmers’ and Mechanics’ National Bank, by whom the check Avas collected through the clearing house from the Central National Bank, the amount thereof being charged to the plaintiff’s deposit account. This occurred in the regular course of business within two or three days; the exact date does not appear in the evidence. On December 31, the account of the plaintiff with the defendant was settled, and entry was made in plaintiff’s bank book showing the balance on deposit and the checks paid were returned. The checks thus paid and returned included the $1,800 check above referred to. The plaintiff’s deposit book was afteiuvards settled monthly, at the end of each month, and the balance struck was of course based upon the balance of December 31.</p> <p>Upon the application register of the corporation plaintiff, note was made of the drawing of this check on December 6, 1893, and the fact of this drawing was also entered on other books of the plaintiff, kept in the regular course of business, as follows:</p> <p>In ledger, defendant’s exhibit “B,” page 213, appears this entry: “December 6, 1893, K. H. Grant, agreement No. 2259, cash $1,800.00, mortgage investment $1,800.00.”</p> <p>In book entitled current analysis, defendant’s exhibit “C,” appears the following: “Grant No. 2259, $1,800.00.”</p> <p>In the book of record of loans kept by the actuary, defendant’s exhibit “ E,” there is this entry: “ 12/93, No. 2259, Grant, Ralph H., page 30, Scranton, Pa., $1,800.00.”</p> <p>In loan register, defendant’s exhibit “ H,” the transaction appears at page 254, giving the same number of mortgage loan No. 2259. The stub of the check book from which this check was drawn, defendant’s exhibit “J,” shows as follows: “No. 4669, 12/6/93, Ralph H. Grant, No. 2259, $1,800.00.”</p> <p>The plaintiff neither at or about the time this check was drawn received any voucher or receipt from Grant of the receipt of the money.</p> <p>2. On March 27, 1894, N. A. "Williams, who still was in the employment of the corporation plaintiff as its settlement officer, filled up another voucher for $1,800 for the same loan of Ralph II. Grant and procured another check to be drawn, signed by the president and treasurer, for $1,800. This check was indorsed to the order of the Commonweath Title Insurance and Trust Company by the plaintiff’s teller, and the proceeds of the check were used by the title company through whom the settlement for the Grant mortgage was made, in paying to Grant the amount of the loan less expenses. The voucher of March 27, 1894, as drawn, was for the same amount, and purported to be in settlement of the same transaction as that of December 6, 1893, the agreement number, No. 2259, being noted on it. The check was for $l,800s drawn in accordance with this voucher bearing date March 27, 1894, and is also expressed to be in settlement of agreement No. 2259, Ralph H. Grant. The stub of the check No. 5018, dated March 27, 1894, for $1,800, refers to agreement No. 2259, Ralph II. Grant, in this respect being similar to the stub of the check of Decernber 6,1893. On March 27, 1894, at the date when the second check was drawn, the plaintiff’s application register showed that a check had been drawn on December 6, 1893, in settlement of the transaction. The plaintiff’s ledger at page 314 contains an entry, “Ralph H. Grant, agreement No. 2259, cash $1,800.00, mortgage investment $1,800.00,” and is in terms a duplication of the entry made on the same ledger at page 213, under date of December 6,1893.</p> <p>In the plaintiff’s current analysis book Williams made a false entry of the number for the loan of March 27, 1894, it appearing in the same as No. 2368.</p> <p>The plaintiff’s loan register book shows that No. 2368 refers to a loan made to one Joseph L. Yandegrift, which is marked across in red ink, “ Fallen through N. A. W.”</p> <p>The same false number is entered in plaintiff’s actuary’s loan register and in the current analysis book.</p> <p>The settlement book of the plaintiff corporation, which was kept by Williams in the regular course of his employment, shows the transaction entered as closed under date of March 27,1894, the number here given being No. 2268, which is, stricken out and the figures No. 2259 written above it in red ink. Reference to No. 2268 in the loan register shows an entirely different transaction.</p> <p>In the settlement book the title company number is given as No. 25013. This is the same number as is given in plaintiff’s application register, defendant’s exhibit “A,” as the title company number for the settlement certificate which was received in December and for which the check of December 6,1893, had already been given out.</p> <p>3. On May 9, 1894, in the regular course of the plaintiff’s business, upon a voucher presented by N. A. Williams as settlement officer, the plaintiff’s president and treasurer signed a cheek of $300 to the order of W. E. Clear, teller, being the $300 check referred to hereinbefore. W. E. Clear, teller, duly indorsed this check to the order of John B. Goodwin and handed the same to N. A. Williams, the settlement officer. N. A. Williams forged the signature of Goodwin and deposited this check to his own credit in his deposit account with the Commonwealth Title and Trust Company. The Commonwealth Title and Trust Company deposited the check to their credit with the Farmers’ and Mechanics’ National Bank, through whom it was collected from the Central National Bank through the clearing house, within two or three days, and the amount thereon was charged by the defendant against the plaintiff’s deposit account with the defendant.</p> <p>On or about May 17,1894, the corporation plaintiff discovered the fact that hi. A. Williams had forged the signatures of Ralph H. Grant and John B. Goodwin upon the checks mentioned, and on June 6 made demand upon the defendant to recredit their account with the amount of these checks, which demand the defendant declined to accede to.</p> <p>4. It appears from the books of the Commonwealth Title Insurance and Trust Company that on January 3, 1894, N. A. Williams, who committed the forgery, had to his credit in his account with that company a balance of $775, and that up to January 10, 1894, his balance remained upwards of $700. On March 24, 1894, the balance to his credit was $1,646.09, and on March 27, 1894, his balance was $764.</p> <p>Upon the facts as found the defendant has failed in its duty to the plaintiff in making payment of the checks of $1,800 and 8800 indorsed as payable to Ralph H. Grant and John B. Goodwin. The contract between a banker and his customer is to pay the customer’s check or bills to the person or persons designated by the customer, and to none other, and if a check or bill is payable to order, the banker has only authority to pay it to the payee or to another person who becomes the holder by genuine indorsement. In Robarts v. Tucker, 16 Adol. & Ellis, N. S. 560, Baron Parke said (c. 578) : “The banker cannot charge his customer with any other payments than those made in pursuance of that authority.” In the course of his argument in that case Sir Frederick Thesiger asserted that “ if the banker has used due skill and diligence in endeavoring to ascertain the genuineness of the indorsement of a stranger he has done his duty, and the customer has no right to complain if the banker is deceived and pays the bill, though the indorsement be forged.” To which the judges replied as follows:</p> <p>Maude, J.: “ Certainly the customer has no right to complain of the payment; and he wxrald have no right to complain though the banker exercised neither skill nor diligence in ascertaining the genuineness of the indorsement before paying the bill, or even paid it knowing it to be forged. Bankers may spend their own money in paying forged bills. But what you want is a case in which a banker has been permitted to debit his customer with such a payment, and I apprehend that there never was one.” Aldeeson, B.: “You reason as if the customer hailed money to the banker to be kept with reasonable diligence and returned in specie. But the customer lends money to the banker and the banker promises to repay that money, and -whilst indebted to pay the whole or any part of the debt to any person to whom his creditor, the customer, in the ordinary way requires him to pay it. . . .” Later in the argument, Maulé, J., remarked: “ And a banker would be justified in refusing to pay until he had more information as to whether the presenter was holder or not.”</p> <p>While there are but few American cases in which this precise question has been discussed, the law as stated by the exchequer chamber in the case just referred to may be accepted as fundamental. In the present case the correctness of the rule was not seriously questioned by counsel for defendant. Their defense arose upon several independent propositions, which will be stated and considered in order.</p> <p>1. That the plaintiff was negligent in failing to use due diligence in discovering the forgery of the indorsement, “Ralph H. Grant,” on the return of the $1,800 check immediately after the settlement by the defendant bank of the plaintiff’s bank book on December 31, 1893, when it knew, or ought to have known, that it had no security or voucher which it ought to have had, had the payee of the check actually received the money. This proposition seems to involve a double suggestion of negligence: (a) in that the plaintiff was bound to examine the checks upon their return to verify the indorsements; (5) that the absence of a voucher or security receipting the loan to Grant, should have in itself notified the plaintiff that the money represented by the $1,800 check had not reached Grant.</p> <p>The referee is of opinion that neither of these propositions can be sustained. While the Supreme Court of the United States, in the case of the Leather Manufacturer's’ Bank v. Morgan, 117 U. S. 96, clearly recognizes the rule that a depositor in a bank, upon the return, after settlement, of the bank book with entries of credits and deposits and the paid checks as vouchers, is bound personally or by an authorized agent and with clue diligence to examine the book and vouchers and to report to the bank without unreasonable delay any error which may be discovered, there is nothing in the case to justify the suggestion that it is the duty of a depositor to examine the indorsements which may have been placed upon the back of checks and to assume the burden of knowing the genuineness of such indorsements. The referee is of opinion that the business world has never undertaken to do business upon such understanding of the relative duties of bankers and their depositors ; and in the absence of any authority to sustain such a proposition the referee is prepared to accept the conclusion of the court of appeals of New York, in Welsh v. the German American Bank, 73 N. Y. 424, in which that court held, “a depositor owes no duty to a bank requiring him to examine his pass book and the returned checks with a view to the detection of forgeries in the indorsements. He has a right to assume that the bank before paying his checks will ascertain the genuineness of the indorsement.”</p> <p>The referee is also of the opinion that the failure of the plaintiff to discover the misappropriation of the proceeds of the $1,800 check by reason of the absence of vouchers or securities to represent the same does not in itself show such negligence as will debar recovery in this action. Every one familiar with real estate settlements knows that after money is paid upon a mortgage loan, weeks and sometimes months elapse before the mortgage papers are returned from the recording office, or from the title company or conveyancer to whose care their preparation and the examination of title is intrasted. The referee is therefore unable to find in this evidence any evidence of negligence on the part of the plaintiff.</p> <p>2. The defendant’s second and third propositions will be considered together.</p> <p>(2) The plaintiff was negligent in drawing the check on March 27, 1894, when there was abundant evidence on its own books that it was a duplication of the prior check and that there must have been clearly some fraud in the transaction.</p> <p>(3) Williams, who committed the forgery, was the plaintiff’s settlement officer, and he had knowledge of the forgery while acting in that capacity, and with such knowledge caused the second check of March 27, 1894, to be drawn in the regular course of employment; moreover, even if .he had not been the forger, he would certainly have acquired a knowledge of the fraud, which followed up would have shown the forgery from the record of the books which passed under his eyes in the course of his employment during the months of January, February and March.</p> <p>In considering the defense thus set up it will be noticed that it is not sought to charge the plaintiff with the knowledge which Williams the forger had of his own wrongful act in making the indorsement “ Ralph H. Grant.” If this were the defendant’s proposition, it could not be affirmed. The forgery of the name of Grant was not committed by Williams in the course of his employment. The plaintiff corporation was therefore not chargeable with any knowledge which rested within the breast of Williams, that he outside of the line of his duty had wrongfully written the name of Grant upon the $1,800 check of December 6. If authority were needed to sustain this proposition, it is found in the case already cited of Welsh v. The German American Bank, in which the precise proposition was passed upon by the court, and the principal held not chargeable with the knowledge possessed by his clerk, who had forged the indorsement of customers on checks drawn by the principal and delivered to the clerk for transmission. It is to be noticed, however, that the defendant’s propositions do not seek to impute notice to the plaintiff from knowledge which rested within the breast of Williams. The defendant seeks to charge the plaintiff with notice by reason of the fact that entries made in the plaintiff’s books in the regular course of business disclose the fact that upon one application, to wit: No. 2259, two checks for $1,800 had been drawn and made payable to the order of Ralph H. Grant. The facts which show that this was the case are fully stated in the referee’s findings of facts, as already set forth. The entries which are there referred to show that upon the books of the corporation plaintiff is a series of entries which, if they had been examined by the president or any other competent person, would, on and after March 27, 1894, have shown clearly that two checks of like amount for the same transaction had been drawn and made payable to Ralph H. Grant. Of these entries the referee is of opinion that the plaintiff must be taken to have had knowledge. The fact that Williams, their settlement officer, was the only person who in truth may have known of these entries, is no answer. The knowledge of the entries possessed by Williams was knowledge obtained by him in the course of his agency. He was the person trusted by the corporation to know the contents of those books. If he knew it and wrongfully concealed it, it does not relieve the plaintiff from the consequences of actual knowledge. The legal proposition that a corporation is chargeable with all the knowledge which its agents intrusted with the conduct of its business obtain in the course of that business, is one, for which it would not be proper to multiply authorities. The most recent (¡ase in our state is the National Bank of Bedford v. Stever, 169 Pa. 574, in which the proposition was reaffirmed.</p> <p>The pertinency of the defense thus made is, that on and after March 27, 1894, the plaintiff must be considered as knowing that two checks had been drawn by it for $1,800 in settlement of loan No. 2259 and made payable to Ralph II. Grant. The moment the plaintiff obtained this knowledge it became the plaintiff’s duty to inquire further and find an explanation of the duplication. Inquiry then made would have disclosed the fact of the forgery, and the forgery having been discovered, it became plaintiff’s duty to immediately notify the defendant. The plaintiff does not question that upon knowledge of the forgery it became its duty to give notice, and there is no question that as soon as actual knowledge did come to the plaintiff such notice was given. The case turns on the proposition whether the notice given on or about May 17, after actual knowledge, was sufficiently prompt, when for reasons already given the plaintiff is chargeable with that knowledge as early as March 27. The referee is of opinion that the plaintiff being chargeable with knowledge on or about March 27, 1894, did not perform its duty to the defendant, no notice having been given to the defendant by the plaintiff of the forgery until on or about May 17, 1894.</p> <p>The duty of diligence is clearly set forth in the case of Iron City National Bank v. Fort Pitt National Bank, 159 Pa. 46, and, while the circumstances of that case differ from those of the present case, the case clearly shows that in the course of business the duty of prompt notice of a discovered forgery is a portion of the commercial law of the state.</p> <p>The evidence in the case shows that on March 27, 1894, Williams had to his credit as a depositor in the Commonwealth Title and Trust Company, $764. Had notice been given him that day this amount at least could have been recovered, but the referee is of opinion that is not necessary for the defendant to make effective the defense based upon the want of diligence of the plaintiff in giving notice of the forgery, to show with certainty that had notice been given at an earlier day a fund belonging to Williams was in existence which could have been attached and held. When it is once shown that the plaintiff failed to give prompt notice of the discovery of the forgery, the plaintiff’s right of action is gone. The law assumes, and does not find it necessary to conduct an inquiry to verify the assumption, that had the notice been given promptly, the Central Bank might have taken steps to protect itself as against Williams. Entertaining these views as to the failure upon the part of the plaintiff to exercise diligence in giving notice, the referee is of opinion that the plaintiff is not entitled to recover from the defendant .the sum of $1,800 paid by the defendant upon the forged indorsement of the check made payable to Ralph H. Grant.</p> <p>With reference to the $300 check drawn on May 9, 1894, made payable to the order of John B. Goodwin, the referee is of opinion that there can be no recovery. By the findings already made the plaintiff is charged with knowledge on March 27, 1894, that N. A. Williams, its settlement officer, had forged the name of Ralph H. Grant. Being thus chargeable with knowledge of that fact, the plaintiff could not, in justice to the business world with which it was dealing, continue Williams in a fiduciary position. Having knowledge on that day that he was a forger, it continued him in his position and intrusted him with the means of perpetrating other frauds. Having thus wrongfully given him its confidence, the plaintiffs must accept the consequences of its breach, and for these reasons is of opinion that there can be no recovery by the plaintiff from the defendant of the sum of $300.</p> <p>The referee reports that judgment in this case should be entered for the defendant.</p> <p>Errors assigned were in dismissing exceptions to referee’s report.</p>

<p>Appeal, No. 271, Jan. T., 1897, by plaintiff, from order of C. P. No. 8, Phila. Co., March T., 1895, No. 885, making absolute a rule for a new trial.</p> <p>Trespass for personal injuries.</p> <p>New trial granted after expiration of term at which judgment was entered.</p> <p>From the record it appeared that on Januarj'-16,1896, a verdict was rendered for plaintiff for $1,500.</p> <p>On January 20,1896, the appellee moved for a new trial and assigned reasons in support thereof, and on January 30, 1896, after an argument before the court in banc, the rule for a new trial was discharged. On February 4, 1896, the jury fee was paid and judgment was entered on the verdict.</p> <p>On February 21, 1896, the appellee filed a bill of exceptions and on the same day a writ of certiorari from the Supreme Court (of January term, 1896, No. 273), was brought into the office. On February 25, 1896, the record was certified for the Supreme Court, but was not filed in said court.</p> <p>On November 27,1896, the appellee filed a motion for a new trial. The docket entry is as follows: “ November 27,1896, motion for a new trial and reasons filed;”' but no reasons were filed.</p> <p>The court made the following order:</p> <p>“And now, November 27, 1896, on motion of J. Bayard Henry, Esq., attorney for the Hestonville, Mantua and Fair-mount Ry. Co., one of the defendants in the above entitled ease, the court grant rule on the plaintiff to show cause why a new trial should not be ordered. Returnable on the day of December, 1896.”</p> <p>On December 31, 1896, the court made absolute a rule for a new trial.</p> <p>Error assigned was the order of December 31, 1896.</p>

<p>Appeal, No. 287, Jan. T., 1897, by tbe Colonial Finance Company, from order of C. P. No. 2, Phila. Co., Sept. T., 1896, No. 1034, dismissing exceptions to referee’s report.</p> <p>Amicable action in tbe nature of a bill in equity.</p> <p>Exceptions to referee’s report.</p> <p>The report of the referee, N. DuBois Miller, Esq., was as follows:</p> <p>On September 20, 1894, the Hercules Ice Machine Company, a corporation of the state of Illinois, with its principal place of business in the city of Aurora, Illinois, contracted in writing with Adolph Segal, of Philadelphia, for the erection on his premises in the city of Philadelphia of one complete one hundred and twenty ton ice-making plant and apparatus under letters patent owned or controlled by the Hercules Ice Machine Company, in accordance with specifications annexed to the contract, for which the Hercules Ice Machine Company was to be paid the sum of $78,700, of which $10,000 was to be paid in cash on delivery of the machinery in the building, $20,000 cash and $15,000 in first mortgage bonds at par on completion of thirty days’ satisfactory run, $16,850 in a thirty days’ note, and $16,850 on a sixty days’ note, to be dated on completion of thirty days’ satisfactory run. There were specific provisions with regard to acceptance of notes not being considered as payment until actually paid, etc., and a guaranty that if the machinery and apparatus should not accomplish the results guaranteed in the specifications, then a reasonable time should be allowed in which to accomplish the results. On the same day another contract in precisely the same terms as the one just recited was made between the same parties for the erection of another ice plantón another property of Segal in West Philadelphia. At the time when this contract was made, and for some time prior and subsequent thereto, Joseph Koenigsberg had represented the Hercules Ice Machine Company as its agent for the purpose of obtaining contracts upon which he received commissions, and on each of the foregoing contracts he was entitled to receive a commission of $9,000. At some time prior to July 12, 1895, the Hercules Company had suggested that Koenigsberg accept in part payment of this commission, $10,000 of the bonds which Segal had agreed to pajr under his contracts, but this Koenigsberg declined to do. Writing on July 12,1895, to the president of the company, he said: “ I have carefully gone over the entire correspondence relative to the Segal bonds, and while it is true that you have insisted several times that I must accept $10,000 in bonds as a part of my commission, the whole correspondence very pointedly indicates that you are in error in the premises. .... My commission is due and I will take bonds if you have them, or I will take acceptances or cash, the form of the payment being immaterial. I do not consent and never have consented to take these bonds for my commission, with the possibility that they may not be delivered to me in one year or ten years.” He received no reply to this letter and on July 17, 1895, he wrote again to the Hercules Ice Machine Company, proposing that the company should give him an order on Segal for $10,000. He wrote : “ The order is not to specify ‘ bonds,’ nor that the amount named is due as commission merely on Segal contracts. With this order in hand I will go to Philadelphia and attempt to collect the claim; it being understood that I accept the order as payment to the amount named, provided Mr. Segal honors the same, but otherwise the order is void.”</p> <p>On July 19,1895, the Hercules Ice Machine Company replied to Koenigsberg’s letter of the 17th and inclosed to him a letter from them to Segal bearing the same date, saying: “We are indebted to Mr. Koenigsberg for services rendered, and in part settlement he has agreed to accept $5,000 worth of bonds on each of the plants erected by us for you, making $10,000 in all. . ... We trust that you will therefore see your way clear to arrange the matter to his satisfaction. Any arrangement that you make with him whereby we are not charged with more than $10,000 of bonds by you will be satisfactory to us if it is to him.”</p> <p>On or about July 25, 1895, Koenigsberg presented this original letter to Segal and handed to and left with him a copy at Segal’s office in the Drexel building, Philadelphia. Segal declined to give any bonds to him upon the ground that the company had not finished its work, nor fulfilled its contract, and, upon being asked by Koenigsberg what more he required, promised to give him a letter setting out what the ground of his complaint was.</p> <p>On August 1, 1895, Koenigsberg, not having received the promised letter from Segal, again called upon him and was handed a letter which Segal was about sending to him, in which Segal specified the grounds of his complaint, and concluded by saying that if the Hercules Company would do certain specified things with respect to the machines, “ I will be only too glad to turn you over ten thousand dollars of the bonds. But I will have to have a guarantee from Mr. Allison personally, as I will not take their word for it. I will also say that if I do not hear from them in ten days from this date, I will begin suit for damages,” and he again refused to give any bonds to Koenigsberg until the Hercules Ice Machine Company had fulfilled its contract, as he claimed it should have been fulfilled. Upon Koenigsberg stating that he needed money very much and asking him to lend him $1,000, he did so, taking from Koenigsberg a due bill, in the following form:</p> <p>“$1,000.00 Aug. 1,1895.</p> <p>“ Borrowed from Adolph Segal'one thousand dollars, ($1,000) which I promise to return to him as soon as I receive the ten one thousand dollar bonds of the Philadelphia Ice Mfg. Co. I will place them with him as collateral.</p> <p>“ This loan to be repaid within thirty days from date.</p> <p>“ J. Koenigsberg.”</p> <p>Before this due bill had been written out there had been prepared a collateral note in another form, but Segal, conceiving the idea that its acceptance might be construed as an acknowledgment that he held the bonds for Koenigsberg, tore it up and wrote the due bill as above quoted.</p> <p>On August 3,1895, Koenigsberg inclosed to the Hercules Ice Machine Company the letter of August 1,1895, from Segal to himself, and he then wrote:</p> <p>“ There must be something done pretty soon in regard to these bonds, as I cannot get along without means any longer.”</p> <p>On August 5,1895, the Hercules Ice Company acknowledged receipt of Koenigsberg’s letter of August 3, stating: “If we understand his (Segal’s) letter correctly, it simply binds him to the delivery of $10,000 of bonds instead of $30,000, which is our due under the contract; it therefore cannot be considered as a basis for a settlement.”</p> <p>On August 24, 1895, Koenigsberg again wrote to the Hercules Ice Machine Company, saying: “ My commission on the Segal contracts is long overdue. You gave me an order or request on Mr. Segal for $10,000, which he declines to honor on the ground that his plant is not up to the contract requirements. I have made diligent efforts to obtain the fund from him but have failed to do so. Mr. Segal makes a proposition to pay me the amount of $10,000, as per jmur order, if you agree to put the plants in good condition, etc., as per his letter of August 1. In your letter to me of August 5, you declined to enter into this agreement, as it simply binds him to the delivery of $10,000 bonds instead of $30,000 which is your due under the contract. This clearly throws the responsibility for the immediate payment of my commission directly on you.</p> <p>“ I insist that you pay me the amount either by checks or acceptances either in one payment or in substantial instalments.”</p> <p>No further correspondence upon the subject passed between Koenigsberg and the Hercules Ice Company until the following December. In the meantime Koenigsberg and Segal met twice- — once in the latter part of September and later on the twenty-sixth day of October, at which interviews Segal expressed the hope that Koenigsberg might get the bonds, but he made no express promise to give them to him.</p> <p>On September 20,1895, Segal and the Hercules Company entered into a new agreement by which, after reciting that matters of difference had arisen between them, they provided that Segal should immediately pay two notes aggregating $25,000, then overdue, and subsequently should deliver to the Hercules Company twelve one thousand dollar bonds, one half of them to be secured on each of the two ice plants, and to pay $500 in cash, “ when one J. J. De Kinder expresses his satisfaction as to said plants.” The contract was stipulated to be in adjustment of all differences between the contracting parties or claims which either might have against the other.</p> <p>■ On November 19, following, the Hercules Company duly assigned to the Edward P. Allis Company all money due under the contract of September 20, 1895, with Segal, and all rights thereunder.</p> <p>On December 6, 1895, Koenigsberg, who had heard nothing of the assignment to the Edward P. Allis Company, wrote to the Hercules Company:</p> <p>“ I owe Mr. Segal $1,000 which I promised to pay him upon Tecept of my bonds. If you will send me by return mail to my New York office an order to Segal to deliver to me ten thousand dollars in bonds on your act, I think I can get those bonds by paying him the $1,000. A friend will advance me this amount until I can cash the bonds. Hoping to receive your favorable reply immediately, I remain,” etc.</p> <p>On December 16, 1895, without having received any reply to this letter, Koenigsberg having had stated an account between himself and the Hercules Company, consisting of numerous items on both sides, including his commissions of $18,000 on the Segal contracts, and showing a balance of $11,489.50 due to Koenigsberg on October 1, 1895, executed at the foot of the sheet on which the account was stated, the following:</p> <p>• “For value received I hereby assign and transfer the foregoing account and the moneys represented therein, unto the Colonial Finance Company absolutely, with interest due and to become due, and I hereby give unto the said company and its assigns full power and authority to collect, receive, demand and sue for the same, in my name if necessary, but to the use of the said company and its assigns.”</p> <p>On December 17, 1895, Segal was notified by counsel for the Edward P. Allis Company of the assignment of the Hercules Company to the Allis Company and a request was at the same time made upon him for compliance with the contract of September 20.</p> <p>December 18,1895, Koenigsberg to the use of the Colonial Finance Company issued a writ of foreign attachment against the Hercules Company, summoning Segal as garnishee. The suit was begun in common pleas, No. 4, as of March term, 1896, No. 5. Although no affidavit of cause of action was filed, counsel for plaintiff stated to counsel for the Edward P. Allis Company that the cause of action was the balance of account as shown on the statement to which the assignment to the Colonial Finance Company was appended. Subsequently when the statement of claim was filed March 19,1896, credit was allowed for the $10,000 of bonds.</p> <p>On December 26, 1895, the president of the Hercules Company replied to Koenigsberg’s letter of the 6th of the same month, saying: “ In regard to the Philadelphia matter, I have to inform you that some time since in order to settle with the Edward P. Allis Company, who built our engines, it was necessary for us to assign our account against Adolph Segal, which we did. As soon as Mr. Segal settles the matter with them we shall be prepared to honor your draft in his favor for $1,000 and to settle the balance of the commission matter in a proper manner.”</p> <p>On January 2, 1896, Koenigsberg executed a formal assignment to the Colonial Finance Company of “ all my right, title, equity and interest of, in and to certain bonds of the Philadelphia Ice Manufacturing Company amounting to $10,000 (secured by mortgage), now deposited with Adolph Segal and held by him for my use.”</p> <p>January!, 1896, the Colonial Finance Company notified Segal of Koenigsberg’s assignment to it of January 2, 1896, handed him a copy of the assignment and demanded delivery of the bonds.</p> <p>January 16, 1896, Stokes Brothers, Ltd., issued a writ of foreign attachment against the Hercules Company, summoning Segal as garnishee. The suit was begun in court of common pleas, No. 2, as of March term, 1896, No. 29.</p> <p>CONCX/USTONS 03? LAW.</p> <p>The referee is of the opinion:</p> <p>1. That under the facts as set forth, there wras no agreement by Koenigsberg to accept the order of the Hercules Company upon Segal for bonds in payment of his commission, nor was it given or taken as collateral security; that it was thereafter, if not actually canceled or destroyed, treated as a nullity, and in law was such, and that as against the Edward P. Allis Company the subsequent assignee of the right, title and interest of the Hercules Company under the agreement of September 20, 1895, the order of July 19, 1895, gives no title to tbe bonds admitted by Segal to be due to the Hercules Company, or its legal assignee.</p> <p>2. That the foreign attachment issued at the suit of Koenigsberg to the use of the Colonial Finance Company in common pleas, No. 4, March term, 1896, No. 5, is no lien upon the cash or bonds due by Segal under the contract of September 20,1895,</p> <p>3. That the foreign attachment issued at the suit of Stokes Brothers, Ltd., in common pleas, No. 2, March term, 1896, No. 29, is no lien upon any indebtedness due by Segal under his contract with the Hercules Company of September 20, 1895, the defendant company having parted with all of its right, title and interest in said contract to the Edward P. Allis Company, prior to the issuance of the attachment.</p> <p>4. That Segal is not entitled to any deduction from the amount due by him under his contract of September 20, 1895, to the Edward P. Allis Company, assignee of the Hercules Company.</p> <p>- 5. That the costs under the agreement of reference should follow the decree and be paid by the Colonial Finance Company.</p> <p>It may be proper to give the reasons for the referee’s conclusions of law:</p> <p>The findings of fact are undisputed, except as to the one question of Segal’s having promised Koenigsberg in September or October, 1895, that he should have the bonds ; upon this point the referee is'satisfied that Segal’s testimony is the more reliable. The first conclusion of lawr, that Koenigsberg never agreed to accept the order upon Segal for $10,000 of bonds as payment of his claim, or as collateral security therefor, is a deduction from the admitted facts. The test of his right to consider it as payment is whether at any time subsequent to his receipt of this order the Hercules Company owed him less than the full amount of his original claim, and could have successfully set up his acceptance of the order for these bonds as payment pro tanto of his claim. It seems impossible to reach such a conclusion. His original proposition was that he should be given an order for $10,000 cash, “ to be void ” if not honored. He did not receive an order for this amount of cash, but one calling for bonds to this amount, but it was not honored, and lie subsequently wrote to the Hercules Company, “ tliis throws the responsibility for the immediate payment of my commission directly on you. I insist that you pay me the amount either by check or acceptances, either in one payment or in substantial instalments.” In the face of such a positive repudiation of this form of payment it would have been impossible to hold that he had accepted the order in payment. Koenigsberg’s subsequent conduct entirely accords with this finding. On December 6, 1895, he wrote for another order on Segal for $10,000 in bonds, and very shortly after, not having received the second order, he assigned to the Colonial Finance Company, not the balance of his claim, but his entire claim against the Hercules Company, without allowing any credit for the bonds, and still further acting upon the theory that there had been no payment on account, commenced suit by way of foreign attachment to the use of the finance company, and through his counsel stated that his cause of action was the original balance of account assigned to the finance company. It might well be that this subsequent course of conduct would not of itself necessarily determine his rights under the order of July 19, 1895, but it goes to show still further his attitude of mind on the subject, and that he never accepted the order for the bonds as a payment on account. It is certain that he never acquired title to any specific bonds, and that no action of trover would have lain against Segal had he parted with all of the bonds due and owing to the Hercules Company. Neither could Koenigsberg have sued the Hercules Company in trover or replevin.</p> <p>It goes without saying that if the first conclusion of law is correct, the second and third follow as necessary corollaries.</p> <p>As to the third conclusion, not much room is left for doubt upon reading the contract of September 20, 1895. Whatever might have been said in support of Segal’s intention that he had advanced the $1,000 to Koenigsberg on the faith of the order of July 19, as to the correctness of which there might be some reasonable doubt, this argument fails in the face of the agreement of September 20, that on that day he owed $500 in cash and $12,000 in bonds.</p> <p>Some question might have arisen as to whether the order of July 19, 1895, was not taken by Koenigsberg as collateral security, but that suggestion seems not only to be negatived by the fact that there was no mention in the correspondence on either side of any such intention, but the thought was expressly disclaimed by his counsel on the argument.</p> <p>The referee reported on exceptions as follows:</p> <p>The second and fifth exceptions are substantially sustained and the referee therefore modifies his report so far as to state as part of his findings of fact that the letter dated July 19, 1895, from the Hercules Ice Machine Company to Adolph Segal reads as follows:</p> <p>“N. D. M.</p> <p>“Dec. 15/96.</p> <p>“No. 6.</p> <p>“Aurora, III., U. S. A., July 19,1895.</p> <p>“ Mr. Adolph Segal,</p> <p>“ Drexel B’ld’g, Philadelphia.</p> <p>“Dear Sir: This letter will be handed you by Mr. Joseph Koenigsberg, our eastern agent. We are indebted to Mr. Koenigsberg for services rendered, and in part settlement he has agreed to accept $5,000 worth of bonds on each of the plants erected by us for you, making $10,000 in all. These are the bonds which we have referred to in our correspondence with you, as having been disposed of by us.</p> <p>“ Mr. Koenigsberg has been entitled to this settlement for some time and we have been willing to settle with him, but have as you know, been unable to secure the bonds from you. We trust you will therefore see your way clear to arrange the matter to his satisfaction. Any arrangement that you make with him whereby we are not charged with more than $10,000 of bonds by you, will be satisfactory to us if it is to him.</p> <p>“Very truly yours,</p> <p>“ Hercules Ice Machine Co.</p> <p>“ Edw. Worcester,</p> <p>“ V. P. & G-en’l Mgr.”</p> <p>The referee also finds as a fact that the letter of July 19, 1895, from the Hercules Ice Machine Company to Adolph Segal was not physically canceled or destroyed, but was retained by Koenigsberg after showing it and handing a copy of it to Segal and it was produced in evidence before the referee.</p> <p>The other exceptions, viz: 1, 8, 4, 6, 7, 8 and 9 are not Sustained, and are dismissed.</p> <p>MEMORANDUM.</p> <p>After the testimony had all been closed before the referee, there was filed with him an agreement entered into between all the parties to the agreement of reference whereby it was agreed that there should bo paid into the hands of the referee the sum of $5,000 by Adolph Segal in complete and final liquidation of the indebtedness of $12,000 in first mortgage bonds, and $500 in cash, admitted by Segal to be due under his contract of September 20, 1895, with the Hercules Ice Machine Company.</p> <p>This agreement was carried out and the sum of $5,500 was deposited with the referee in accordance with the terms of agreement, which also released the Hercules Ice Machine Company from any claim on account of the $1,000 loaned by Segal to Koenigsberg. The additional $500 paid to the referee, was by way of interest on the original amount agreed to be paid, and was settled between the parties.</p> <p>Errors assigned were in dismissing exceptions to referee’s report.</p>

<p>Appeal, No. 316, Jan. T., 1897, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1895, No. 779, on verdict for plaintiff.</p> <p>Trespass to recover damages for personal injuries. Before Arnold, P. J.</p> <p>Tbe defendant was engaged in tbe manufacture of artificial ice. It bad a full corps of officers wbo were actively engaged in supervising tbe work of tbe company, among whom may be mentioned Mr. Ballingall, president of the company, Mr. Harper, the general manager, in direct' charge of the work, and Mr. Wilson, the secretary, who seems also to have frequently given orders directly to workmen, among whom was one Flynn, who was an engineer, in direct charge of the engine.</p> <p>Attached to the ceiling of the storage room was a set of pipes, arranged in coils, through which there flowed brine which had been reduced to a very low temperature by means of ammonia. The purpose of this was to reduce the temperature of the storage room that the ice there stored might not readily melt. Ballingall, the president of the company, noticing that ice had collected upon the cold pipes, directed Flynn to shut down the brine pump for two or three hours; the effect of which would be, by removing the source of the cold, to soften the ice, and he further directed him that he should then have some one go along the pipes with an ice pick and the coating would then be readily removed. Flynn disobeyed orders and did not shut down the brine pumps. He was not present at the trial, having removed to Florida; but one Corner, who was a mere journeyman, testified that Flynn told him to take an axe and break off the ice from the pipes. Corner took an axe and struck the pipes a hard blow with the blunt end of the axe, with the result that the pipes, with the heavy coating of ice, fell, injuring the plaintiff, who had been employed some time before by the manager, as a kind of “ extra,” to do such work as might be required from time to time, for which he was paid by the hour when he was actually engaged.</p> <p>Further facts appear by the opinion of the Supreme Court and the charge of the trial court, which was in part as follows :</p> <p>It appears that on September 9,1895, the plaintiff was working in the ice plant of the defendant company, and, while working there, the pipes containing the brine used for manufacturing ice suddenly fell from the ceiling above him, and they, with the ice gathered around them, fell upon him, causing severe injuries; breaking his leg and four of his ribs, bruising him, spraining his back and causing injuries which required him to remain in the house for several months, and which have, in some respects, a permanent character, because they effect his ability to work now. While his leg is healed of the fracture and lie can walk, nevertheless, ho says he feels the effects of the injury, and he is not able to do as much work as he formerly did. [The basis of the claim is that the officers of the company superior to him desired those pipes cleaned, and that they gave orders to the men to see to it, to wit: by breaking off the ice with an axe and striking heavy blows upon it, and that those heavy blows struck upon it caused the rings which held it up to break, and all the pipes fell upon the plaintiff.] [4]</p> <p>It is the duty of employers to provide safe appliances for employees, but they are not always bound to provide the latest improved machinery. The complaint, however, is not so much against the character of the machinery furnished as it is against the manner in which the machinery was ordered to be cleaned. [It is testified that the order to clean was given by the officer of the company to an employee who, obedient to orders, struck the pipes with an axe and thereby caused them to become dislodged, and the pipes and the ice on them fell upon the plaintiff.] [5] There is another rule of law, that where people are working together, that is, coemployees, and one is injured by the fault of the other, he has no remedy against his employer, because it was his coemployee who caused the injury. That is one of the defenses alleged here, that the injury was caused by the fault of a fellow-workman, and not by the fault of the company. As to that, however, [the plaintiff has produced some testimony showing that the orders to clean, these pipes that way were given by a superior officer, principal or vice principal of the company, in which case, the rule that exempts the company from the responsibility for the acts of fellow-servants, does not apply, and the company then becomes responsible for the injury which is the result of orders given by it or by its officers.] [6]</p> <p>If you are of opinion that the injury was the fault of the workman Corner, that it was Corner’s own judgment, his own act, that caused the injury, and that be and Mr. Prevost, the plaintiff, were fellow-servants working together, then the responsibility is chargeable to Corner only and not to the company. [If, on the other hand, you believe that Corner did what he did by direction of some of the officers of the company higher in authority, then that rule of law does not apply and you can find a verdict against the company] [7] for damages in favor of the plaintiff. That is really the pinch of the case. [What was the relation between - these parties ? You are to settle it upon the testimony. By whose orders were these pipes hit with the axe ? By whose orders was that mode of cleaning adopted? By the orders of the officers of the company principals, or, was it the act of Corner alone, and were Corner and Prevost fellow-servants of colaborers ? If you find that Corner and Prevost were fellow-servants, working together in common work, and the accident was caused by the act of Corner, by his judgment in cleaning the pipes that way, it is Corner’s fault, and Corner’s fault only, and the company is not responsible. If you find, however, that that method of cleaning the pipes was adopted by the company, and they set Corner to clean that way, then tbe company is responsible to this plaintiff.] [8]</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned among others were (4-8) above instructions, quoting them.</p>

<p>Appeal, No. 320, Jan. T., 1897, by defendants, from order of C. P. No. 4, Pliila. Co.,'March T.. 1897, No. 375, awarding mandamus.</p> <p>Petition for mandamus.</p> <p>The petition was as follows :</p> <p>1. That in the year 1879 petitioner was incorporated under the provisions of the act of assembly of the state of Pennsylvania, of April 29, 1874, and its supplements, for the purpose of “ constructing, maintaining and operating a line or lines of telegraph, and all such other business as may be authorized by the act of April 29, 1874, providing for the incorporation and regulation of certain corporations, and its supplements relating to the uses of electricity.”</p> <p>2. That by the thirty-third section of said act of April 29, 1874, it is provided: “Such corporation shall be authorized, when incorporated, as hereinbefore provided, to construct lines of telegraph along and upon any of the public roads, streets, 'lanes or highwaj’S, or across any of the waters within the limits of this state, hy the erection of the necessary fixtures, including posts, piers or abutments for sustaining the cords or wires of such lines, hut the same shall not be so constructed as to incommode the public use of said roads, streets or highways, or injuriously interrupt the navigation of said waters; and this a it shall not be so construed as to authorize the construction of a bridge across any of the waters of this state.”</p> <p>. 3. That by an ordinance of the city of Philadelphia which went into effect December 24, 1879, it was enacted by tlie select and common councils as follows:</p> <p>“AN ORDINANCE.</p> <p>“To authorize the Bell Telephone Company of Philadelphia to run its wires through and over the streets of the city of Philadelphia.</p> <p>“ Section 1. The select and common councils of the city of Philadelphia do ordain, That the Bell Telephone Company of Philadelphia be, and is, hereby authorized to run and maintain its wires over and through the streets of the city of Philadelphia for the purpose of establishing telephonic communication between its patrons and between its exchange office and the subscribers thereto: Provided, That the consent of the owners of any private properties to which attachments are made be first had and obtained.</p> <p>“Sec. 2. That before availing itself of the privileges of this ordinance the said Bell Telephone Company shall execute and deliver to the city of Philadelphia a good and sufficient bond in tlie sum of ten thousand (10,000) dollars, conditioned that in the event of its going out of existence by merger, or by surrender or forfeiture of its charter, it will remove the wires run by it, and further, that it will not sell the rights hereby granted to any other corporation.</p> <p>“Provided, That the said Bell Telephone Company shall, before erecting any wires, as provided herein, file in the law department a written obligation to comply with all the ordinances of the city regulating or in any manner controlling telegraph or telephone companies in the use of the streets for telegraph and telephone purposes, which have been, or may hereafter be enacted, as well as the provisions of this ordinance: And provided further, That the sum of fifty (50) dollars be first paid to the city treasurer to pay for the printing of this ordinance.”</p> <p>4. That petitioner did execute and deliver to the city of Philadelphia a bond in accordance with section second of said last-mentioned ordinance, and did file in the law department the written obligation provided for in said section, and did pay to the city treasurer the sum of fifty (50) dollars in said section stipulated to be paid, and has in all other things complied with all the conditions and provisions of said ordinance.</p> <p>, ' 5. That in pursuance of its said charter, and with the express permission and assent of the city of Philadelphia, as set forth in said recited ordinance, petitioner established telephone service by means of wires throughout the city of Philadelphia, and has, from that time to the present, furnished public telephone service by means of electricity over telegraph wires throughout the entire city. That the construction of this telegraph line required the erection on the streets of the city of many telegraph poles, and the stringing of many miles of telegraph wire.</p> <p>6. By an ordinance of the city of Philadelphia, approved June 13, 1882, the councils of said city enacted as follows:</p> <p>“AN ORDINANCE.</p> <p>“ To remove and prohibit the erection of poles and wires for telegraph, telephone and electric light purposes.</p> <p>“ Section 1. The select and common councils of the city of Philadelphia do ordain, that, prior to the first day of January, 1885, all poles and wires erected for telegraph, telephone and electric light purposes by firms, corporations or persons other than the city of Philadelphia shall be removed from the streets of the city of Philadelphia.</p> <p>“ Sec. 2. That it shall be unlawful after the above date to érect or maintain any poles and wires for the above-mentioned purposes in the streets of the city of Philadelphia, excepting as provided in section 1, so far as the same relates to the city of ' Philadelphia.</p> <p>",. “ Sec. 3. That any corporation or person or persons, excepting the city of Philadelphia, erecting and maintaining any poles and wires for the above purposes in violation of the provisions, of this ordinance shall forfeit fifty (50) dollars for every day each of said poles are maintained, to be recovered as like penalties are now recoverable by law.”</p> <p>7. Said ordinance of 1882 imposed upon petitioner, if it complied with its provisions, an enormous expense, and involved the practical destruction of lines of overhead wires, erected at very great expense under the authority of its charter, an authority which had been recognized bjr the councils of the city of Philadelphia in its ordinance of 1879, already referred to. Notwithstanding this, your petitioner, desiring to aid the municipal authorities as far as possible in what the latter considered to be an improvement to tlie city, commenced at once tlie construction of numerous expensive underground conduits designed to eventually substitute for tlie overhead wires a system of underground wires.</p> <p>8. It was found, both by your petitioner and all other telegraph companies within the limits of Philadelphia, impossible to complete the system of underground conduits within the limits of the time fixed by the ordinance of 1882. Although councils, by a resolution of June 11, 1885, instructed the chief of the electrical department to notify the various telegraph companies to remove the overhead wires, they subsequently, by another resolution passed January 21,1886, instructed the chief of the electrical bureau to suspend action in the matter of cutting the wires until further action was taken by councils. In the meanwhile your petitioner has been diligently extending its underground conduits, and has now a system of conduits throughout nearty the whole of the closely built-up portion of the city of Philadelphia.</p> <p>9. Under tlie overhead system which had been established by your petitioner under the authority of the charter, the wires are strung from pole to pole along and over instead of under the streets. By the underground system the wires are run. through conduits underneath the streets, but in order to connect with tlie various subscribers in a reasonable way and by a reasonable, feasible expenditure, it is necessary at certain points to erect terminal poles. The number of these terminal poles is insignificant in comparison with the number of poles required by the overhead system, but their erection is necessary in order to complete the underground system and allow service to be made to the customers of your petitioner.</p> <p>10. By the preamble and first section of an ordinance of the city of Philadelphia, approved January 6,1881, it was provided as follows:</p> <p>“AN ORDINANCE.</p> <p>“ To regulate the erection and maintenance of telegraph poles in the corporate limits of the city of Philadelphia.</p> <p>“Whereas, Great inconvenience and annoyance have been occasioned to property owners by the placing of telegraph poles in front of their premises.</p> <p>“ And whereas, The lives and property of citizens traveling upon the public streets and highways have been imperiled by the erection and maintenance of inadequate or unsound telegraph poles thereon, so that it has become necessary to establish a system for the proper inspection of such poles, and for the regulation of the erection and maintenance thereof, therefore, •</p> <p>“ Section 1. The select and common councils of the city of Philadelphia do ordain, That whenever permission shall have been granted by councils to any corporation, firm or individual to construct a line of telegraph which requires the erection of poles in or upon any of the public streets or highways within th§ corporate limits of the city of Philadelphia, it shall be the duty of such corporation, firm or individual, before any pole shall be erected, to submit to the superintendent of the police and fire-alarm telegraph a written application specifying the number and size of poles intended to be erected, and designating the places where the same are intended to be inserted, and if no objection be made hereto it shall be the duty of the said superintendent of police and fire-alarm telegraph to issue a license to the said applicant for the erection of the specified poles at the designated places of insertion. In case of objections being made to the whole or any part of such application, it shall be the duty of the superintendent of the police and fire-alarm telegraph to hear the same and grant the license, either-in accordance with the application or with such conditions and modifications, to secure the purposes of this ordinance, as the case may require.</p> <p>■ “No pole shall be newly erected without the license of the superintendent of the police and fire-alarm telegraph shall have been previously obtained therefor as provided in this section, and for every license so granted there shall be paid to the city treasurer for the use of the city, the sum of five dollars per pole.”</p> <p>11. Under the reorganization of the departments of the city of Philadelphia, in accordance with the provisions of the act of assembly, approved June 1,1885, commonly known as the Bullitt bill, the duties of the superintendent of the police and fire-alarm telegraph have -been vested in the director of public safety, who exercises his control over telegraph lines, under the ordinance of 1881, already quoted, through a subordinate officer, known as the chief of the electrical bureau of Philadelphia.</p> <p>12. Tn the work of changing this overhead system to an underground system, in accordance with the ordinance of 1882, already cited, your petitioner lias erected a large number of terminal poles, and by means thereof has been enabled to do away with many of the old poles required for the overhead system, and with many miles of overhead wires. As the construction of the underground conduits progressed permits have been given to your petitioner, from time to time, by the mayor of the city, through the director of public safety and the chief of the electrical bureau, for the erection of the necessary terminal poles. Permits have also been given, by ordinances of councils and otherwise, to other companies beside your petitioner, for the erection of similar terminal poles in connection with underground conduits, and many of them have been erected within the city limits.</p> <p>13. Since the erection of the last terminal poles for which permits were issued to' your petitioner as aforesaid, a large amount of additional underground conduits have been constructed by your petitioner, and for the purpose of using them and of doing away with the corresponding overhead system, in accordance with the ordinance of 1882 already referred to, it is necessary to erect additional terminal poles. Petitioner has made application to the mayor of the city of Philadelphia, the director of public safety and the chief of the electrical bureau for permission to erect said additional terminal poles. A list of the poles necessary in order to utilize the underground conduits already constructed, and for which permits have been asked for as aforesaid, is hereto annexed.</p> <p>14. Petitioner has offered to pay all license fees required for said poles by any ordinances, and has fully complied with all the conditions required by the ordinances herein recited, and all lawful rules, regulations and conditions which the said mayor, director of public safety and chief of the electrical bureau might lawfully impose under said ordinances.</p> <p>15. Nevertheless, the said defendants, the mayor of the city of Philadelphia, the director of public safety and the chief of the electrical bureau, refuse to issue any permits whatever to your petitioner for the erection of said terminal poles.</p> <p>18. Your petitioner is without remedy at law in the premises. In its endeavor, to comply with the desires of the city of Philadelphia to change its overhead system to an underground sj^stem, it has expended a large amount of money in the construction of the underground conduits aforesaid, and in changing its plant from an overhead system to an underground system in the more densely populated portion of the city. It has now progressed a very great way in the worlc of such change, and the refusal to issue permits ,for the additional terminal poles as aforesaid leaves it with a partially completed underground system and a partially destroyed overhead .system which the city claims the right to wholly destroy at any time under the ordinance of 1882, thereby threatening destruction of .petitioner’s plant and interference with its business. The system of terminal poles in connection with underground conduits is the system authorized to be used in Philadelphia by all other telephone companies which have put their wires underground, and is at present the ordinary and approved system within the densely built-up portion of the city for giving telephone service. It is the only way in which petitioner can reasonably and properly utilize its system of underground conduits which have been built.</p> <p>Petitioner therefore prays the court to issue to Charles F. Warwick, mayor of the city of Philadelphia, Frank M. Piter, director of public safety, and David P. Walker, chief of the electrical bureau, a writ of alternative mandamus, returnable days after service thereof, commanding the said Charles F. Warwick, mayor of'the city of Philadelphia, Frank M. Piter, director of public safety, and David R. Walker, chief of the electrical bureau, to grant to your petitioner permits for the erection of the terminal poles set forth in the exhibit annexed to this petition, or to show cause why they should not do so.</p> <p>Frank M. Riter, director of the department of public safety, made return as follows :</p> <p>1. Pie admits the facts set forth in paragraphs 1, 2 and 8.</p> <p>2. It is true as stated in paragraph 4 of said petition that the petitioner did execute and deliver to the city of Philadelphia a bond in accordance with the second section of the ordinance of December 24, 1879, and did file in the law department the obligation therein referred to, and did pay to the city treasurer the sum. of 150.00 as required by tiro said ordinance. But, notwithstanding the petitioner fded the said obligation in the law department “ to comply with all the ordinances of the city regulating or in any manner controlling telegraph or telephone companies in the use of the streets for telegraph and telephone purposes which have been or may hereafter be enacted,” the petitioner, the Bell Telephone Company, did not comply with the ordinance of June 13, 1882, as set forth in paragraph 6 of its petition.</p> <p>3. This respondent admits the facts set forth in paragraph 5 of the said petition, but avers that the petitioner’s line of telegraph is not now constructed as required by section 33 of the act of April 29, 1874, under which it was incorporated and which requires that it “shall not be so constructed as to incommode the public use of said roads, streets or highways.” That since the incorporation of the said company, petitioner, a system of underground construction has been perfected which avoids the serious inconvenience and danger to the city and the public resulting from overhead construction through the streets, and that the petitioner is legally bound to construct its lines in such manner as will cause the least inconvenience and danger, and this it has not done.</p> <p>4. It is true as stated in paragraph 6 that the councils of the city of Philadelphia passed the ordinance of June 13, 1882, as set forth in said paragraph, but this respondent avers that the petitioner did not comply with the provisions of the said ordinance, and did not remove its wires from the streets of the city' prior to the first day of January, 1885, and that petitioner has in violation of section 2 of the said ordinance continued to erect and maintain its wires in the streets of the city, without interruption, from the date of its incorporation to the present time.</p> <p>5. This respondent avers that while it is true as stated in paragraph 7 that petitioner has constructed numerous underground conduits, it is on the other hand true that it still has' extensive overhead construction upon the streets of Philadelphia, and is continuing to erect such construction to the inconvenience and danger of the city' and the public.</p> <p>6. This respondent denies that, as stated in paragraph 8 of the petition, it was impossible for the petitioner to comply with the ordinance of June 13, 1882, but admits that councils did pass the resolutions referred to in paragraph 8, and that the petitioner has an extensive system of underground conduits in the central part of the city. ,</p> <p>1: This respondent denies that, as stated in paragraph 9, the erection of terminal poles is necessary in order to complete the underground system and allow service to be made to the customers of the petitioner, While the erection of terminal poles saves labor and expense in construction, they are not necessary to the completion of the underground' system. This respondent further avers that while it may be true that the number of terminal poles alleged to be necessary as part of the underground system is small as compared with the number required by the overhead system, it is nevertheless a fact that the> said .terminal poles are larger, more unsightly and more objectionable in every way than the pole used in overhead eon-: struction. The said terminal poles are necessarily erected to a height exceeding that of the surrounding buildings, and are from eighteen to twenty-two inches in diameter.</p> <p>8. This respondent admits the facts set forth in paragraphs 10 and 11.</p> <p>9. This respondent admits the facts set forth in paragraph 12, but avers that no permits for the erection of terminal poles have been issued except by express authority of an ordinance of councils.</p> <p>10. This respondent admits that certain underground conduits have been constructed, by the petitioner since the erection qf the last terminal poles, as set forth in paragraph 13 of the petition, but denies that, as stated in said paragraph, “ it is necessaryto erect additional terminal poles.”</p> <p>It is true that the petitioner has made application, as stated in paragraph 13, for permission to erect additional terminal poles, and that the list annexed to the said petition marked “ A ” is a correct list of poles for which permits have been asked, but respondent avers that even if permits could be granted by these respondents for the erection of terminal poles along petitioner’s line, the poles ought to be located by the electrical bureau, with a view to the interests of the city and of the property owners, as well as the convenience of the public, and not by the petitioner.</p> <p>11. The respondent avers that, even if the allegations contained in paragraph 14 of the petition be true, be nevertheless cannot lawfully issue a permit for tbe erection of any poles in the city of Philadelphia without authority of councils, and that councils have not authorized the issuing of any such permit.</p> <p>12. The respondent admits the fact stated in paragraph 15 of the petition, hut avers that he is without authority of law to issue permits for the erection of the said terminal poles.</p> <p>13. This respondent denies that Iiis refusal to issue permits for terminal poles will cause the destruction of petitioner’s plant, as stated in paragraph 16 of the petition. This respondent denies, as stated in paragraph 16, that the system of terminal poles in connection with underground conduits is the system authorized to be used in Philadelphia by all other telephone companies which have put their wires underground, and avers that the only other telephone company which has placed its wires underground in Philadelphia is the American Telephone and Telegraph (Long Distance) Company, and that company does not use the system of terminal poles, but uses another system which could also be used by this petitioner, the Bell Telephone Company.</p> <p>14. This respondent, for a further return, avers that by the ordinance of April 18, 1863, the erection of any pole or poles in the streets of the. city is prohibited, unless authorized by councils, and that this prohibition was emphasized by the ordinance of June 13, 1882, which, although suspended in operation so far as the removal of existing poles and wires was concerned, has never been repealed as to the erection of additional poles and wires. This view of the present status of the ordinance of 1882 is confirmed by the ordinance of July 13, 1890, granting the Bell Telephone Company the privilege of extending its poles and wires in Germantown, and which expressly repealed so much of the ordinance of June 13, 1882, as conflicted therewith. This respondent further avers that the ordinance of August 5, 1886, regulating the laying and construction of underground wires, electrical conductors, conduits, etc., in the city of Philadelphia requires the consent of councils for all such construction, and that councils have never authorized the erection of the terminal poles, as a part of such underground system for which permits are demanded by the petitioner. This respondent further avers that by tlie ordinance of January 12, 1888, the Bell Telephone Company was 'authorized to lay and maintain underground conduits, cables, etc., and to erect terminal poles within certain portions of the city of Philadelphia ; that in accordance therewith the petitioner has constructed underground conduits, etc., and has erected about two hundred terminal poles; that the said ordinance of 1888 contained a proviso that the privileges granted therein should “cease and determine unless one third of the entire construction authorized by this ordinance is completed within two years; two thirds within three years, and the entire construction within •five years after the passage of this ordinance; ” that the said five years' expired on January 12, 1893, since which time the petitioner has been without authority to erect the said terminal poles, and is now without such authority, and that this respondent has .no authority to issue permits for the erection of such poles.</p> <p>15. The said respondent further avers that the select and common councils of the said city of Philadelphia, on February 4, 1897, passed the following resolution:</p> <p>“RESOLUTION.</p> <p>“Relative to issuing permits for the constructions of conduits and the erection of terminal poles.</p> <p>“ Resolved, by the select and common councils of the city of Philadelphia, that the departments of public works and safety, and board of highway supervisors, are hereby directed not to issue any permits for the construction of' underground service or the erection of terminal poles unless the same has been duly authorized by ordinance of councils.”</p> <p>The court in an opinion by Audenried, J., awarded a mandamus.</p> <p>Error assigned was the order of the court.</p>

<p>Habeas corpus — Certiorari—Practice, S. C.</p> <p>An essential prerequisite to the granting of a special writ of certiorari by the Supremo Court to bring up the record in the proceedings before a judge sitting as a committing magistrate, as ancillary to a habeas corpus for which a petition is presented at the same time, is a meritorious and well grounded petition for a habeas corpus. If that is wanting the certiorari should be refused, and the petition dismissed.</p> <p>One who enters into a recognizance to appear at the quarter sessions when required, and then, without application to such court to correct any error in the proceedings before the judge sitting as committing magistrate, either in holding him for appearance in court or in demanding excessive bail, voluntarily surrenders himself to the sheriff, is not entitled to a habeas corpus from the Supreme Court.</p> <p>Criminal law — Information—Bribery.</p> <p>An information is sufficient to support a warrant of arrest where the affiant affirms that “ to the best of his knowledge, information and belief,” the defendant did wickedly, corruptly and unlawfully give and offer money, and bribe a number of members of the councils of a city to influence them to vote in favor of a certain ordinance particularly described.</p>