Volume 186 — Pennsylvania State Reports

<p>Criminal law — Murder—Conspiracy—Evidence.</p> <p>On the trial o£ an indictment for murder where the commonwealth offered to show that the prisoner conspired with other persons to rob the deceased some months before the murder occurred, but the evidence in support of the offer shows only that the prisoner probably overheard a conversation among the other persons without assenting thereto or taking any part therein, the evidence should be rejected.</p> <p>It is substantial error for a judge in charging a jury on the trial of an indictment for murder to give the commonwealth the full benefit of an offer of evidence, rather than the fair effect of what was actually proved under the offer.</p> <p>Criminal law — Murder —■ Confessions — Admissions — Evidence — Detectives.</p> <p>A confession voluntarily made is entitled ordinarily to great weight. If it is forced from the mind by the flattery of hope or the torture of fear induced by representations made to the accused, its value is lost, and it should be excluded altogether. If it is induced by what may be called collateral inducements it occupies a kind of intermediate position. Such inducements are to be considered as affecting, not the admissibility of the statements made by the prisoner against himself, but their credibility. They should go to the jury with the inducements that led to them, in order that the jury may see how they came to be made, and the motives that operated on the prisoner’s mind when they were made. The jury can then judge of their value and determine the weight to which they are entitled.</p> <p>, On the trial of an indictment for murder it appeared that professional detectives, having fixed their suspicions on the prisoner, approached him and led him to believe that they were the members of a baud of outlaws engaged in the commission of great crimes, and that he could secure admission to the band if his record as a criminal was such as to give assurance of his courage and hardihood. Under this inducement the prisoner made statements that he had been connected with various robberies, and that he was one of the persons who had killed and robbed the deceased. Held, (1) 'that while it was proper to admit in evidence tile statements of the prisoner as to the murder, it was error for the court in its charge to fail to call to the jury’s attention the collateral inducement which caused the prisoner to make them; (2) that the statements in regard to crimes other than that under investigation were not admissible in evidence. ^__†-</p> <p>Practice, 8. C. — Evidence—Exception—Assignment of error.</p> <p>The Supreme Court will not consider an assignment of error to the admission of evidence where there is nothing on the record to show that an exception was taken to the admission of the evidence.</p> <p>Evidence — Competency of child as witness.</p> <p>A boy thirteen years of age who alleges that he is fully aware of the nature and importance of an oath is not incompetent because of his age.</p> <p>If it is alleged that he is unacquainted with the nature of an oath, he should be examined on that subject, and, if necessary, instructed in the presence of the court. .</p> <p>Practice, oyer and terminer — Trial—Calling witness out of order.</p> <p>Where the court On the trial of an indictment for murder consents that 'a witness for the defendant Who could not be found in the court room ■should be called upon the following day, and with this understanding the defendant rests his case, the court is bound to permit the witness to be called upon the following day, if it appears that he is competent. If the commonwealth or court ask the purport of the testimony before consenting that the witness may be called out of order, defendants must state it fairly, but if it be not asked for, the calling of him is a return to the ease in chief of the defendant, and if his testimony would have been competent when he was first called and could not be found, it was competent when called out of order.</p>

<p>Appeal, No. 115, Jan. T., 1897, by-defendant, from judgment of C. P. Susquehanna Co., Jan. T., 1895, No. 197, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Searle, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points and the answers thereto were as follows :</p> <p>1. Upon the whole evidence the verdict must be for the defendant. Answer .-We refuse to so instruct you, as that would be binding instructions. [1]</p> <p>2. The undisputed evidence shows that Benjamin Maxey, who was a competent mine foreman, was employed and had full power to place and designate the employment of the hands employed in the mine at such place and work as was necessary for the successful working of the mine; therefore, if any negligence on the part of any one but the plaintiff conduced to his injury, it is not chargeable to the defendant and the verdict therefore must be for the defendant. Answer: That calls for binding instructions to find for the defendant and it is therefore refused. [2]</p> <p>3. The plaintiff was injured by reason of bis position on the electric motor; that is, sitting on one of the front bumpers of the motor with his legs hanging over in front of said bumper; the evidence of both plaintiff and defendant shows that he was warned against riding in any such position, and if you believe this evidence the plaintiff cannot recover. Answer: It is true that the injury was sustained as claimed in this point and that some of the evidence of the plaintiff and the evidence of the defendant shows that the boy was warned against riding in that manner. But the boy himself testifies be was not warned. If you should find as a fact that he was warned of the danger and instructed not to do so, then you should find for the defendant. [3]</p> <p>4. The negligence, if any, in this case, was the negligence either of the plaintiff himself or that of a fellow-servant, and in either case it is not the negligence of the defendant, and therefore plaintiff cannot recover. Answer: That requests binding instructions, which we refuse to give you and therefore the point is refused. [4]</p> <p>Verdict and judgment for plaintiff for $1,654.17. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

Appeal, No. 335, Jan. T., 1897, by plaintiff, from judgment of C. P. Lackawanna Co., June T., 1887, No. 180, on verdict for defendant. Trespass for deceit. Before Edwards, J. This suit was instituted against John Plandley in his lifetime. He died after the verdict was rendered, and his executors were substituted before judgment.

<p>Land law — Roads—Patents.</p> <p>After the state has granted lands to abut on a public highway, it has no power to grant the soil of the highway to another person. The title of the original grantee extends to the middle of the highway, as in the case of ordinary private grants.</p> <p>It seems that there is no authority under the land law to patent lands appropriated to public highways.</p>

<p>Deed — Boundaries—Conveyance of land abutting on highway.</p> <p>Owners of land granted, bargained, released and conveyed to the trustees of a pi'oposed railroad “so much land in width across our several and respective properties and estates as may be necessary and proper for the location and construction of said railroad of single or double track, not, however, to exceed the legal width. The release to operate only for tlie uses of such railroad, and to be void and of no effect should such railroad not be constructed.” The railroad was subsequently constructed.</p> <p>By a sheriff’s sale and mesne conveyances, the land of one of the grantors, including the strip conveyed to the railroad company in the description thereof, became vested in the defendant, a coal company. The plaintiff, claiming by conveyances from the heirs of the said grantor, brought an action of trespass against the defendant for mining coal under the strip occupied by the railroad. Held, that if the grant to the railroad was merely of a right of way the fee in the land remained in the grantor and passed under the sheriif’s sale to the defendant, but if the conveyance from the grantor, followed by the location of the railroad, operated as a grant of the land to the railroad company in fee upon condition, the conveyance amounted to a fee in both surface and coal, and the heirs of the grantor were not the owners of the coal.</p>

Appeal, No. 347, Jan. T., 1897, bjr the Pennsylvania Company for Insurance on Lives and Granting Annuities, from decree of O. C. Luzerne Co., No. 49 of 1892, sustaining exceptions to account. Exceptions to trustee’s account. Appellant, as trustee under the will of Charles Dorrance, deceased, collected 1117,955.24, and distributed it during a period of five years, to the beneficiaries named in the will. In the account filed, it charged three per cent for its services.

<p>Prisons — Goniract for feeding prisoners in Luzerne county — Act of April 13, 1868.</p> <p>Under the Act of April 13, 1868, P. L. 917, i-elating to the Luzerne county-prison, the prison commissioners have a right to enter into a contract with the warden of the county prison fixing the price or sum to be allowed the latter for feeding prisoners and determining the quantity and kind of food to be furnished daily to each prisoner. Such a contract is not within the purview of the Act of June 27, 1895, P. L. 403, relating to the office of county controller.</p>

Appeal, No. 387, Jan. T., 1898, by plaintiff, from decree of C. P. Centre Co., Nov. T., 1897, No. 151, dissolving preliminary injunction. Bill in equity by a water company for an injunction to restrain a borough and its corporate officers from erecting and operating rival waterworks.

<p>Ejectment — Evidence—Mistake—Deed.</p> <p>In an action of ejectment it appeared that about fourteen years prior to the issuing of the writ, plaintiff conveyed the land in dispute to his mother, the consideration named in the deed being $2,000. Three years afterwards plaintiff’s mother conveyed the land to M. who, seven years thereafter, conveyed a life estate to plaintiff’s mother with remainder to defendant. Plaintiff claimed that by a mistake the land had been conveyed to his mother absolutely, whereas he had intended to convey only a life estate. The evidence showed that at the time the deed was executed the mistake was noticed, but that the grantee said that it would make no difference as the land would all go back to her son when she died. Declarations were also admitted in evidence made by M., the brother-in-law of plaintiff, and by Charles A. Smith, the real defendant, another brother-in-law, who claimed the land under his deceased wife. The declarations tended to support the plaintiff’s claim. The evidence as to whether any of the consideration had actually been paid was conflicting. There was also evidence that plaintiff at the time he executed the deed was insolvent, and that the property was incumbered. Held, (1) that the declarations of the grantee and of Charles A. Smith were properly admitted in evidence; (2) that a verdict and judgment for plaintiff should be sustained.</p>

Appeal, No. 300, Jan. T., 1897, by defendant, from decree of C. P. Cumberland Co., on petition for an attachment. Petition for an attachment. See the report of the case in 177 Pa. 155.

Appeal, No. 324, Jan. T., 1897, by plaintiff, from decree of C. P. Cumberland Co., April T., 1883, No; 1, on roaster’s report. Exceptions to master’s report.

Appeal, No. 7, Jan. T., 1898, by defendant, from judgment óf C. P. Cumberland Co., on verdict for plaintiff. Trespass for personal injuries. Before Blddle, P. .J. • At the trial the jury rendered a verdict for $1,003.91.

<p>Ejectment — Evidence of title — Releases—Recitals—Deed—Railroad.</p> <p>In an action of ejectment against a railroad company to recover land occupied as a right of way, the defendant company claimed title under a release executed by J. more than sixty years prior to the bringing of the suit. In the release J. recited that he was the owner of the land. S., who was J.’s brother, recited in a similar release that his own land adjoined that of J. The land in controversy had belonged to the father of J. and S., who by his will apparently gave to J. an estate tail in it, with limitation over to S. After the father’s death Ihe sheriff conveyed S.’s interest in the land to M. In the following year J. convoyed the laud to M. In the latter deed J. recited that his father had in his lifetime “advanced and transferred ” the said laud to J. Subsequently in the same year J. executed to M. a deed to bar any estate tail in the land. In this deed he recited and declared that he was seized in fee of the land by a title paramount to the will of his father. In subsequent deeds from M. to the plaintiff in the ejectment there were recitals that the land had been advanced and transferred to J. by his father in the father’s lifetime. The evidence showed open, adverse and continued occupation of the land for over sixty years. Held, that it was proper to give binding instructions for the defendant.</p>

Appeal, No. 344, Jan. T., 1897, by-defendant, from decree of C. P. Erie Co., Sept. T., 1897, No. 2, on bill in equity. Bill in equity for an -injunction to restrain defendants from 'constructing a-certain siding or switch in front of the “Rawle farm ” in Mill Creek' township. The facts appear by the opinion of Walling, P. J., which was as follows: I find the following facts : 1.

<p>Appeal, No. 291, Jan. T., 1897, by defendant, from decree of C. P. No. 4, Phila. Co., June T., 1896, No. 401, on bill in equity.</p> <p>Bill in equity for a reassignment of an interest in a decedent’s estate.</p> <p>Arnold, P. J., filed the following opinion:</p> <p>This is a bill to require tbe defendant to execute and deliver to Joseph L. Caven, one of the plaintiffs, a reassignment of the interest of George F. Hensel, the other plaintiff, in the estate of his father, which it is alleged was assigned to Thomas M. Lewry as collateral security for a debt which has since been satisfied. George F. Hensel and Thomas M. Lewry were brothers-in-law. Lewry lent Hensel $6,850, and took a judgment note therefor, dated August 26, 1882. Judgment was entered on this note and a fi. fa. was issued thereon on August 28, 1882, on which the personal property of the defendant, George F. Hensel, was levied upon and sold, realizing the sum of $405.08, and on August 31, 1882, an attachment execution was issued against the executors of the will of Henry W. Hensel, deceased, butno further proceedings were taken thereon. On June, 1887, a sci. fa. to revive this judgment was issued, which was brought to trial on May 2, 1892, and resulted in a verdict for the defendant.</p> <p>On September 1,1882, the said George F. Hensel assigned all his interest in the estate of his father, Henry W. Hensel, deceased, to Thomas M. Lewry, and on September 4, 1889, assigned the same interest to Joseph L. Caven, plaintiff in this suit. Possession of this interest has not yet been had for the reason that it depends upon a life estate which has not yet ceased. It was alleged on behalf of the plaintiffs that the assignment by George F. Hensel to Thomas M. Lewry, on September 1,1882, was given as a collateral security for the amount due by Hensel to Lewry, as shown by the judgment note before mentioned. It was contended on behalf of the plaintiffs that inasmuch as that indebtedness is now satisfied, the plaintiffs are entitled to the relief which they claim, to wit: a reassignment by the executrix of Thomas M. Lewry to Mr. Caven.</p> <p>From the testimony taken before me 1 find that the assignment by George F. Hensel to Thomas M. Lewry, on September 1, 1882, was made as collateral security for the indebtedness due by Plensel to Lewry at that time. The testimony of the witnesses upon this point was uncontradicted, and the character of the witnesses is such as to leave no doubt whatever of the correctness of their testimony. As it appears by the record of the case in which judgment was entered for that indebtedness that the judgment is satisfied and the indebtedness paid, the plaintiffs are entitled to the relief which they crave.</p> <p>Objection was made to the joinder of the plaintiffs in this suit, but I do not consider this objection tenable. The plaintiffs are suing in the same right, one derivative through the other, and claiming the same relief. There is no multifariousness in this. It is just the same as if the action was brought at law in the name of George F. Hensel to the use of Joseph L. Caven.</p> <p>It will therefore be adjudged and decreed that the defendant, Harriet C. Harsh, the executrix and trustee under the will of Thomas M. Lewry, deceased, make, execute, acknowledge and deliver to Joseph L. Caven a reassignment of the interest of George F. Hensel in the estate of his father, Henry W. Hensel, deceased, unless exceptions be filed within ten days.</p> <p>Error assigned was decree of the court.</p>

<p>Jurisdiction — Gommon pleas — Orphans' court — Decedents' estates — Executors and administrators — Distribution.</p> <p>The court of common pleas has no jurisdiction of a bill in equity filed by the executor of a husband against the executor of a wife, where it appears that both estates are in process of settlement in the orphans’ court, and the matter in controversy is the title of property in process of distribution. In such a case the orphans’ court has exclusive jurisdiction, not only to distribute the property, but also to restrain by injunction any action by either of the litigants, which would cause irreparable damage to the other.</p>

<p>Negligence — Release—Evidence—Province of court and jury — Fraud.</p> <p>In an action against a street railway company to recover damages for personal injuries, the defendant set up a release executed by the plaintiff. Plaintiff testified that the release had been obtained from her by false representations made by defendant’s agent to the effect that it would be futile for her to sue the company; that the judge was a stockholder; that the juries were corrupt, and that the company would buy all the jurors and witnesses, and could even buy her physicians and lawyers. The defendant’s agent denied that such representations had been made, and the subscribing witness to the release, who was a friend of the plaintiff and acted for her, flatly contradicted her testimony. It was admitted that the judge was not a stockholder, but plaintiff did not claim that she was induced to sign by the misrepresentation of this fact. Plaintiff claimed that her injuries were worse thau she had anticipated when the release was signed. Held, that it was proper to give binding instructions for defendant.</p> <p>Where a person without fraud or misrepresentation exercised upon him executes a release of damages for personal injuries, he cannot subsequently avoid the release by a claim that liis injuries were more serious than he had anticipated at the time the release was executed.</p>

<p>Building and loan association — Loans—Appropriation of payments.</p> <p>A borrower from a building and loan, association who lias deposited his stock as collateral for the loan may, before the intervention of the rights of creditors, direct appropriation of his payments on the stock to the extinguishment of the debt, and where the appropriation is made at the inception of the contract of loan, it cannot thereafter be successfully questioned.</p> <p>The by-laws of a building and loan association provided that the security for a loan “ shall be real estate, or by the borrowing member assigning his share or shares of stock to the association in pledge.” The bond for the loamcontained a covenant by the borrower that all money paid by him into the association on the stock held by him ‘1 shall be taken and considered as payment on and in liquidation of this bond.” Held, that the covenant in the bond operated as an express appropriation of, and not as a direction to appropriate, payments on stock to the extinguishment of the loan.</p>

<p>Appeal, No. 55, Jan. T., 1897, by defendants, from judgment of C. P. York Co., Aug. T., 1896, No. 75, on case stated.</p> <p>Fell, J., dissents.</p>

<p>Appeal, No. 157, Jan. T., 1897, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1894, No. 943, on verdict for plaintiff.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Woodward, P. J.</p> <p>At tbe trial it appeared that about ten o’clock in the evening of October 8, 1893, plaintiff’s son, Henry Mooney, while crossing a bridge in Luzerne borough, was killed by coming in contact with an electric telephone wire which had been maintained over the street near tbe place of the accident for over fifteen years, and had been unused and abandoned for several months. It crossed a charged electric light wire in close proximity thereto, and a few months before tbe accident bad sagged to such an extent as to interfere with travel. A member of the borough council and a street commissioner cut the wire and wrapped one end around a post within easy distance of pedestrians on the highway crossing the bridge. The end of the wire was left to rest on the ground or in the water.</p> <p>Defendant’s point and the answer thereto among others were as follows:</p> <p>5. Under all the evidence the verdict must be for the defendant. Answer: That certainly is a question for the jury and not for the court. [6]</p> <p>Verdict and judgment for plaintiff for $1,120. Defendant appealed.</p> <p>■ Error assigned among others was above instruction, quoting it.</p>

<p>Appeal, No. 229, Jan. T., 1898, by defendant, from judgment of C. P. McKean Co., Oct. T., 1895, No. 247, on verdict for plaintiff.</p> <p>Trespass to recover damages for personal injuries. Before Olmsted, P. J.</p> <p>At the trial it appeared that on February 3, 1895, plaintiff, while walking along Corydon street in the city of Bradford,, slipped on a ridge of ice which had been formed by water dropping from the eaves of an abutting building. The ridge was. about eight inches high, and the evidence tended to show that it was on the traveled part of the sidewalk. The evidence was conflicting as to whether plaintiff knew of the dangerous character of the sidewalk at the point where she fell. The evidence was also conflicting as to whether the sidewalks throughout the city were slippery and icy at the time from a sudden freezing.</p> <p>When the plaintiff was on the stand her counsel offered to prove by her that she left her home on February 3, 1895, to go to a neighbor’s house on Corydon street; that she went up Mechanic street, and from there turned the corner on to Cory-don street, and as she turned the corner and had taken a few steps, she turned to the right to let Mrs. Chapman pass, and as she did so, she stepped upon ice on the sidew-alk that was ridged up and rough, and slipped and fell and injured her hip to suclr an extent that she was afterwards taken to the hospital and remained there sick until about May, and that she has never fully recovered from the injuries she received at that time; this is to be followed by other evidence of the condition of the sidewalk at that time and prior.</p> <p>This was objected to as incompetent, irrelevant and immaterial under the declaration in this case, for the reason that by section 11 of article 5, of the act of assembly of Pennsylvania, approved May 23,1889, there is no duty imposed upon cities of the third class, to which class the city of Bradford belongs, requiring such city to construct, erect or maintain sidewalks ; that the only duty imposed by such section is a purely discretionary duty, and that under the laws of Pennsylvania a municipality is not liable for its failure to perform a purely discretionary duty. And that the declaration in this case setting forth that the plaintiff’s right to recover is predicated upon the negligence of the city in keeping this sidewalk in proper condition and repair, there can be no recovery under the declaration, and the evidence therefore is incompetent.</p> <p>By the Court: I would say clearly enough if there was a street in Bradford where they never had passed an ordinance to construct a sidewalk and never had constructed one, that the city would not be liable. But where they have constructed one and have passed an ordinance, that is another question. The remarkable thing is that, if this is the law, in the hundreds of cases of this kind that have been tried, the question has never been raised. Supposing it is discretionary with the city whether or not they must build sewers, and they do build one down the center of Main street, and some one breaks through into the sewer, is there any doubt that the city would be liable? Are there not cases that hold in the case of boroughs and cities, that, in the building and constructing of a sidewalk, the city or borough is liable for the injury done upon it? There is no doubt at all but what the power was purely discretionary, but where the discretion has been exercised by building a walk, and an invitation to the public to walk upon the sidewalk, I think the obligation continues on the city. There is a broad distinction between the sidewalk cases cited last night with the single exception of the Erie Co. case, but we can see a broad distinction between that case and the ordinary sidewalk negligence cases, and the objection is overruled. Exception sealed for defendant. [1]</p> <p>Defendant’s point and the answer thereto were as follows :</p> <p>1. If the jury believes from the evidence that the accumulation of ice which the plaintiff alleges caused her fall resulted solely from water dripping from the eaves of the adjoining building upon the sidewalk and freezing, the plaintiff cannot recover. Answer: We cannot affirm this point. [2]</p> <p>The court charged in part as follows:</p> <p>I have said in answer to one of the points, that if this icy ridge was there, and the plaintiff had observed it and knew it, she had no right to walk upon it; she should step aside and pass along, and if she did it, her negligence would be contributory with the negligence of the city in producing the injury and she could not recover. Now if she knew that this walk wras slippery there at this place, such an elevation as Mrs. Chapman describes, she had no right to walk upon it. It was her duty to go to the outer edge, or possibly step off on the ground and pass by, and if she did this with full knowledge of the condition of the walk she is guilty of contributory negligence, and cannot recover at all. [8]</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2, 3) above instructions, quoting them; (4) in not directing a verdict for defendant.</p>

<p>Appeal, No. 349, Jan. T., 1897, by plaintiffs, from judgment of C. P. No. 1, Pliila. Co., June T., 1892, No. 151, M. L. D. non obstante veredicto.</p> <p>Scire facias sur mechanic’s lien. Before Brégy, J.</p> <p>At the trial it appeared that on March 29, 1890, Albert E. Norton purchased a lot of ground bounded by Fortieth street, Fairmount avenue, Aspen street and Union street, in the city of Philadelphia.</p> <p>On September 22, 1890, he laid out a street called Sloan street through the lot, subdivided the tract into sixty-five smaller lots, and on the same date executed sixty-five separate mortgages, one on each of said smaller lots, describing the Fortieth street lots and the Sloan street lots as bounding on Sloan street. (See diagram on next page.)</p> <p>On each of the sixty-five lots there was erected a brick dwelling house.</p> <p>Subsequently on May 5, 1891, Norton executed a deed of dedication to the city for the bed of Sloan street, and it was put upon the plan of the city on November 5, 1891.</p> <p>On September 22, 1890, Norton entered into a contract with James Hood for the erection by Hood of sixty-five dwelling houses on the above-mentioned sixty-five lots of ground, containing, inter alia, the following provisions, viz :</p> <p>“2.....It is also agreed that the said James Hood shall execute and deliver a full and complete release of all liens whatsoever to one lot and building thereon, on payment to him of the full one-sixty-fifth part of the unpaid part of the aforesaid contract. . . .</p> <p>“11. The said James Hood furthermore agrees and binds himself that he will not himself file any lien for work and labor done and materials furnished towards the erection of said sixty-five houses or any of them, and that lie will not suffer or permit any lien, attachment or other incumbrance under any laws of this state or otherwise by any person or persons whatsoever to be put or remain upon the said sixty-five buildings, or upon any of them, for any work or labor done or material furnished, under or in pursuance to this contract or by reason of any other claim or demand against him that can or might in any manner or way affect, impair or take priority to the lien of the sixty-five mortgages executed in favor of the German-American Title and Trust Company as being upon each of the sixty-five respective premises.”</p> <p> </p> <p>On August 12,1890 (prior in date to the agreement between Hood and Norton, but reciting that Hood has contracted to erect the sixty-five buildings on said lots), James Hood entered into a contract with plaintiffs to do all the brickwork on said sixty-five houses, to be paid for, seventy-three per cent, as the work progressed, and containing, inter alia, the following provisions, viz:</p> <p>“ And the said parties of the second part herein (plaintiffs) in consideration of the said first mentioned sum of 73 per centum agree to waive all right to file a lien that will in any way affect said above mentioned mortgages. . . .</p> <p>“ It is also mutually understood and agreed that, if the said James Hood pay to the said parties of the second part the full one-sixty-fifth part of the unpaid portion of the aforesaid contract price herein agreed upon, the said parties of the second part shall and will execute and deliver a full and complete release of all liens whatsoever to one lot and building thereon for every payment.”</p> <p>On the trial an agreement was entered into as to many of the facts as follows:</p> <p>“ 7. The number of bricks laid on each Fairmount avenue house by plaintiff is 31,742; on each Aspen street and Union street house 20,485; and on each Sloan street house 24,518.”</p> <p>rPhe lien in question was filed as a joint apportioned lien against forty-five houses in the block, bounded on the north by Aspen street, on the east by Union street, on the south by Fair-mount avenue, and on the west by Sloan street. A writ of scire facias was issued on apportionment No. 32 of this lien, being against a house on the east side of Sloan street.</p> <p>Another joint apportioned lien under the same contract, was filed against twenty houses bounded on the north by Aspen street, on the east by Sloan street, on the south by Fairmount avenue, and on the west by Fortieth street.</p> <p>The court charged as follows:</p> <p>This claim depends upon a number of facts, all of which have been agreed upon save one, and that is in dispute, and that is whether any work was done on these houses within six months from the time of the filing of the lien. It makes no difference what the facts are; if no work was done within six months from the filing of the lien, that is an end of it, of course, because they cannot file a lien more than six months after some work has been done on the premises, and if you come to the conclusion that no work was done or that work was not done on this house within six months from the filing of the lien, that is an end of the plaintiffs’ case, and therefore I will ask you to find that fact, and we will reserve the other questions which have been agreed upon by counsel for final consideration, with the one question which you are to settle, whether upon the facts agreed upon and the one found by you, thé judgment should be for the plaintiffs or for the defendants.</p> <p>I have put it in this way, and instead of rendering the usual verdict for the plaintiffs or verdict for the defendants, you will sign this paper in the shape that you agree: “We find the plaintiffs did” — leaving a blank for the word “not” — “do the work on the house in question within six months of the time of filing the lien.”</p> <p>If you believe the plaintiffs did do work on this house you can take this paper as it is and sign it; if you believe they did not do the work within six months, just put in the word “ not.”</p> <p>The effect of the other legal questions which have been agreed upon I will reserve for final decision by the court in banc.</p> <p>The verdict was as follows:</p> <p>We find the plaintiffs did do work on the house in question within six months of the time of filing the lien.</p> <p>The court entered judgment for defendants, non obstante veredicto.</p> <p>Error assigned was entry of judgment for defendants.</p>

<p>Appeal, No. 354, Jan. T., 1897, by defendant, from judgment of C. P. Warren Co., Sept. T., 1896, No. 54, on verdict for plaintiff.</p> <p>Assumpsit for breach of contract.</p> <p>The contract on which suit was brought was as follows:</p> <p>“Know all men by these presents that I, Wm. J. Knupp, for p,nd in consideration of the performance of the agreements and covenants hereinafter contained by John Bright, hereby agree to convey to said John Bright, his heirs and assigns, the undivided five-eighths part of that certain lease and leasehold from A. J. Davis and N. J. Davis to me, bearing date the fourteenth day of June, A. D. 1890, of about forty acres of land, part of lot number seven, in the township of Sheffield, Warren county, Pennsylvania.</p> <p>“ In consideration whereof said John Bright agrees to drill one well for oil upon said premises to the proper sand rock on or before the first day of April next, and to carry a one-fourth of the working interest in said well for said Knupp — said Knupp to pay upon a one eighth interest held by him the one eighth part of the expenses of drilling said well and the share of the other one-quarter of said lease in drilling said well to be paid by said John Bright, but in case said well is a paying well the one-quarter of the expense of drilling said well carried by said Bright to be paid out of the proceeds of the first production of said well, and after the payment thereof in the manner aforesaid each one shall thereafter bear his proportionate expense of drilling and operating said leasehold. But if said well is not a paying well said Knupp shall1 only own one-eighth of the rig, casing, etc., put by us upon the premises in drilling said well.</p> <p>In case said John Bright fails to drill said well upon said premises on or before the first day of April next, all rights to him under this instrument shall be forfeited null and void and shall cease and determine.</p> <p>“ Witness my hand and seal the twenty-ninth day of August, A. D. one thousand eight hundred and ninety-one.</p> <p>“ Wm. J. Kntjpp, [Seal.]</p> <p>“ John Bpjght, [Seal.] ”</p> <p>Bright failed to drill the well stipulated in the contract, and Knupp, after waiting until March 10, 1892, executed the conveyance to Bright on that day. Plaintiff alleged that he had sustained damages in not having the well drilled which he had contracted to be drilled and paid for, and the measure.of those damages was claimed to be seven eighths of the cost or expense of drilling such well to the oil-bearing rock during the time mentioned in the contract, less seven eighths of the market value of the rig, drive-pipe and casing in place, with interest from the time the well should have been drilled.</p> <p>Plaintiff’s points and the answers thereto were as follows:</p> <p>1. If the jury believe from the evidence that the plaintiff delivered to the defendant the conveyance for the undivided five eighths of the leasehold offered in evidence, as testified to by him, before the first day of April, 1892, then the plaintiff is entitled to recover in this case upon the defendant’s breach of contract. Answer: We answer that in the affirmative. [1]</p> <p>2. If under the instructions contained in the preceding point, the plaintiff is entitled to recover, then the measure of damages is seven eighths of the cost arid expense of drilling a well on said leasehold to the oil-bearing rock, during the time mentioned in the contract, less seven eighths of the market value of the rig, drive pipe and casing in place, to which is to be added interest from the first day of April, 1892. Answer: We answer that point in the affirmative. In our judgment that is the correct measure of damages. Knupp was to pay one eighth of the cost of drilling the well, therefore Bright was only to pay seven eighths of it, which would be seven eighths of the cost of drilling the well to the sand rock, less the value of the materials used in so drilling, which may be made useful afterwards, together with interest from the time when the w'ell should have been completed. [2].</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>2. The plaintiff not having drilled the well himself, which the defendant agreed to drill on the property, and not having employed or paid anybody for drilling such well, he cannot recover the expense of drilling such well, or any part thereof ; in other words he cannot recover expense which he never incurred, or damage which he never sustained. Answer: That part of it we answer in the negative. We think the plaintiff would be entitled to recover, notwithstanding the fact that he did not actually drill the well himself. The concluding part of the point, as a general statement of law, is correct. “ He cannot recover expense which he never incurred, or damage which he never sustained.” [3]</p> <p>3. The plaintiff’s only interest in the well was one fourth of the oil that might be obtained therefrom, and in the absence of evidence showing that there was oil there "which he could and would have obtained by the drilling of the well, nominal damages only can be recovered, nothing having been expended by the plaintiff in drilling the well agreed to be drilled by the defendant. Answer: We answer that in the negative. We think the question of damages is not to be determined by the question whether or not there might be much oil or little oil in the well, but the cost of performing the work which Mr. Bright agreed to perform. [4]</p> <p>4. Only .such damage can be recovered as- may fairly be supposed to have entered into the contemplation of the parties when they made their contract, or such as might naturally be-expected to follow its breach. Answer: That part of the point as a general proposition we affirm; but the application of it which follows, we are unable to agree to. [5] And the parties having provided in the contract for a forfeiture of the consideration, namely, the defendant’s interest in the lease, in case he failed to drill the well within the time stipulated, that is the only damage that could fairly and reasonably be supposed to have entéred into the contemplation of the parties, and that having been forfeited to the plaintiff by the terms of the contract, nominal damages only can be recovered in this case. Answer: That part of the point we answer in the negative. The clause in the agreement providing for the forfeiture relates to the rights of .Bright under that agreement, viz : his right to an assignment and to contribution by Knupp to the expense of the well. When Knupp voluntarily executed his part of the agreement without waiting for performance by Bright, and Bright accepted that performance — whether or not that happened is a question of fact for the jury — but if it did happen and Knupp executed and delivered the assignment before the 1st of April, 1892, and Bright accepted that performance, then that agreement became so far executed that it could no longer be forfeited by either. But Knupp inserted in the assignment a clause of forfeiture, at his option. In the copy which Knupp says he delivered to Mr. Bright, it is put in this way at the end: “ In case said Bright fails to drill a well upon said premises as agreed to in said above recited contract, this conveyance to be forfeited, null and void at my option.” There is no evidence that this option was exercised. Under these circumstances this point, except the general statement in the first part of it, is answered in the negative. And it means, notwithstanding this clause of forfeiture in the papers, that if you find for the plaintiff upon the questions of fact which we shall submit to you relating to the actual delivery of this paper, he would be entitled to recover substantial damages notwithstanding those clauses. [5]</p> <p>6. If the jury should believe that the plaintiff did deliver an assignment of the lease on March 10, 1892, to the defendant, and should also believe from the evidence that there was not sufficient time to drill the well between March 10 and April 1, the time the contract required it to be completed, there can be no recovery in this case. Answer: We answer this point in the negative. And we think that even if there was- not sufficient time to drill the well between the time when Knupp delivered (if he did deliver it) the assignment of this contract and the expiration of the time in which the defendant was to drill the well, nevertheless he might be entitled to recover. The covenant to drill a well in this agreement is absolute, and the execution and delivery of the assignment by Knupp was not a condition precedent. Knupp’s agreement is expressly put in consideration of the performance by Bright and not merefy in consideration of Bright’s covenants. The plaintiff would not be prevented from recovering, therefore, by Ms failure to execute and deliver the assignment so as to enable the 'defendant to complete the well after its delivery and before the first of April, 1892. The defendant was not justified in waiting for the delivery of the assignment before commencing his performance, and especially not since there is no evidence of any demand by the defendant for the assignment, or refusal by the plaintiff to execute it. [6]</p> <p>Verdict and judgment for plaintiff for $1,138.75. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

Appeal, No. 10, Jan. T., 1898, by plaintiff, from order of C. P. Chester County, Aug. T., 1897, No. 19, refusing to take off nonsuit. Trespass to recover damages for personal injuries, Before Hemphill, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Negligence — Street railways — Obstruction in highway — Infant.</p> <p>A street railway company, in obedience to the direction of the road supervisors, laid its tracks in a highway eight inches lower than the surface of the road. This direction was given because the supervisors intended to lower the grade of the road. Between the trench and the traveled part of the road a mound was formed by wagon wheels displacing the earth. This mound was about two feet from the tracks, on a part of the road over which the company had no control. A child six years old, while playing in the road, was directed by her elder sister to cross the road to their home, ■and was cautioned to look out for a car which was then approaching. The child walked partly across the road to a point five feet from the tracks, and stopped for the car to pass. She stood there until the front part of the oar passed her, and then in some way not clearly explained she got under the rear wheels and was killed. In an action by the parents of the child against the company for damages, plaintiffs contended that defendant was negligent in laying its tracks in the trench, and that if the trench and the mound had not been there the child when she fell would have remained on the surface of the road, and not have rolled down under the wheels of the car. Held, (1) that, in laying the tracks according to the directions of the supervisors, there was no violation by the defendant of its duty to conform to the grade of the road in laying its tracks; (2) that the fall of the child not having been caused by the depression of the tracks, it is mere conjecture as to whether the depression made the situation more dangerous after the fall; (8) that it was proper to give binding instructions in favor of the defendant.</p>

<p>Negligence — Street railway companies — Sight to use streets — Walking on tranks— Contributory negligence.</p> <p>While city passenger railway companies have not an exclusive right to the use of the parts of the streets occupied by their tracks, they have a right ol way and a right to an unobstructed track for the passage of their cars. In the use of their tracks their rights are superior to those of the public. The convenience of the individual in the use of the part of the street to which the cars are confined must give way to the convenience of the public who use the cars.</p> <p>A'woman is not entitled to recover damages from a street railway company for personal injuries sustained while walking longitudinally along the tracks, where it appears that she was familiar with the neighborhood, and where she testified that she walked between the tracks for her own convenience, looking back for a car which she knew was coming, but which she could not hear by reason of the noise caused by a train passing over an overhead bridge, and that she knew the danger she was in.</p>

Appeal, No. 54, Jan. T., 1897, by defendant, from judgment of C. P. Lackawanna Co., March T., 1895, No. 581, on verdict for plaintiff. Scire facias to revive judgment.

<p>Promissory notes — Banks—Declaration of president of bank — Pelease of indorser.</p> <p>In an action by a bank against the second indorser of a promissory note, the defendant alleged that he had been indemnified against his liability on the note by a judgment against If., the prior indorser, and that he had satisfied that judgment on the procurement of the plaintiff bank. In support of this allegation he testified that he met the president of the bank in a hotel in Lock Haven and said to him: “Well, K. didn’t pay the note P ” and that the president replied, “ The matter is arranged.” Held, (1) that there was nothing in the statement made by the president to justify the inference that he meant to assert that the note was paid; (2) that a judgment and verdict for the plaintiff should be sustained.</p>

Appeal, No. 90, Jan. T., 1898, by plaintiff, from judgment of C. P. McKean Co., Oct. T., 1894, No. 42, on verdict for defendants.. Ejectment for eighty acres of land in Carydon township. The facts appear by the report of the case in 183 Pa. 74.

<p>Appeal, No. 455, Jan. T., 1898, by defendant, from decree of C. P. McKean Co., June T., 1897, No. 2, in equity.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of Olmsted, P. J., which was as follows:</p> <p>The Olean, Bradford & Warren Railroad Company was incorporated on September 29,1877. It was incorporated for the purpose of constructing a railroad from Olean, in the state of New York (or the state line near Olean), by way of Bradford, to Warren, in the state of Pennsylvania. The gauge of their road was to be three feet. It was soon afterwards constructed and operated as a narrow gauge railroad. Sometime prior to 1882, the Rochester & Pittsburg Railroad was incorporated by the state of Pennsylvania. This road was soon after constructed and operated from Rochester, in the state of New York, by wa}' of Bradford, in the state of Pennsylvania, to some point or points south or southwest of Bradford, in Pennsylvania. By various transfers and charters not necessary to detail in this case, the road became the Buffalo, Rochester & Pittsburg Railroad, and is operated under that name, and as such is made defendant in this case. It appears from the evidence that it was deemed necessary by the directors of the Rochester & Pitts-burg Company that it should cross the Olean, Bradford & Warren Railroad at a point near -the city of Bradford, the present point of controversy. Legal proceedings were instituted, and on June 17, A. D. 1882, a contract or agreement was entered into between the Olean, Bradford & Warren Railroad Company, of the one part, and the Rochester & Pittsburg Railroad Company, of the other part, upon the subject of this crossing (see contract given in evidence in this case), and by this contract the Rochester & Pittsburg were permitted to cross the Olean, Bradford & Warren Railroad at a point within eight hundred feet easterly from the station of the Olean, Bradford & Warren Railroad at Bradford. This contract contained other matters not essential to the matter in controversy in this case. This crossing was constructed and operated up to the present hour.</p> <p>It appears from the voluminous evidence upon the subject that in various ways the Olean, Bradford & Warren Railroad became merged in the Western New York & Pennsylvania Railway Company, party plaintiff in this case.</p> <p>I do not deem it necessary to go over the evidence of the various proceedings that resulted in the ownership by the Western New York & Pennsylvania Railway Company of the Olean, Bradford & Warren Railway. The various proceedings, although not given in evidence consecutively, seemed on the trial to be in accordance with the powers of railroad corporations, as given by our many statutes upon the subject, and it seems still further unnecessary as the averments of the same, as contained in the eighth paragraph of the plaintiff’s bill, are not denied in the answer clearly and distinctly.</p> <p>It may be conceded that the Olean, Bradford & Warren Railroad had the first right and the first constructions and operations at the point where this contention arises. This corporation, however, yielded certain rights and privileges to the Rochester & Pittsburg corporation by the contract of June 17,1882, but this right or privilege, broadly stated, was merely to cross their track, under certain restrictions contained in the contract. All other rights, powers and privileges given them by the various statutes of the commonwealth remained unaffected by the con- ' tract, and all the rights, powers and privileges granted by the commonwealth charter to the Olean, Bradford & Warren Railroad were vested in the Western New York & Pennsylvania Railroad, and when the Western New York & Pennsylvania sought to widen the gauge at the point in controversy it had the full -right to do so that would have been in the Olean, Bradford & Warren had no merger ever taken place. It appears then, that on May 6, A. D. 1897, when the plaintiff sought to widen its gauge at the point in controversy, it had the full right to do so given by our statutes, except as affected by the contract of June 17, 1882, and the corporation defendant had such powers as are given by our statutes, limited and affected by the same contract with the Rochester & Pittsburg, having succeeded to its rights.</p> <p>It is averred in the plaintiff’s bill, and not denied by the defendant’s' answer, that on May 6, 1897, the plaintiff sought to widen its gauge from three feet to four feet eight and one half inches at the point where the Rochester & Pittsburg obtained the right to cross the track of the Olean, Bradford & Warren Railroad by the contract of June 17, 1882, and were prevented by the corporation named as defendant in this bill.</p> <p>The plaintiff, on May 5,1897, then filed this bill, praying for an injunction to restrain the defendant from preventing the plaintiff from widening its gauge at the point in controversy (a somewhat awkward way of reaching the question), and on the same day, a rule to show cause why injunction should not issue, was allowed by the court, returnable May 11.</p> <p>On May 11 (the return day of this rule) the parties appeared by their counsel, and it was agreed that the hearing then should take place as though a preliminary injunction had been issued, and the hearing be to decide whether or not it should be made permanent, whereupon the parties proceeded with the evidence as reported by the stenographer.</p> <p>Had the Olean, Bradford & Warren the right, after the contract of June, 1882, to widen its gauge ? And if it had that right, is that right now vested in the corporation plaintiff? These seem to be the only questions involved in the case.</p> <p>The Olean, Bradford & Warren was chartered and constructed as a three feet gauge. It is now sought to make the gauge four feet, eight and one half inches. The Act of April 11, 1858, P. L. 8G6, enacts as follows: “Tliat any railroad heretofore chartered is hereby authorized to construct or change their gauge, or gauges, of road to such a width as the directors o£ such railroad company may deem expedient, and all laws inconsistent with this provision be and they are hereby repealed.” This act is followed by the Act of March 17, 1869, P. L. 12, which provides as follows: “ That it shall and may be lawful for any railroad, canal and slack-water navigation company, now or hereafter incorporated by or under any law of this commonwealth, to straighten, widen, deepen, enlarge and otherwise improve the whole or portions of their lines of railroads . . . . whenever, in the opinion of the board of directors of any such company, the same may be necessary for the better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic thereon.”</p> <p>■The legislature could not have employed language that more clearly, distinctly and unequivocally granted the right to widen the gauge of a railroad then constructed, or thereafter constructed. No citation of authorities or argument upon this point is necessary.</p> <p>The second question seems to us equally clear and free from doubt. The Act of May 16, 1861, P. L. 702, provides: “ That it shall be lawful for any railroad company chartered by this commonwealth to merge its corporate rights, powers and privileges into any other railroad company so chartered, connecting therewith, so that by virtue of this act, such companies may be consolidated, and so that all the property, rights, franchises and privileges then by law vested in such company so merged may be transferred to and vested into the company unto which such merger may be made.”</p> <p>Many subsequent acts of assembly have been passed to facilitate the transfer and consolidation of railroads, all asserting and reasserting that the property, rights, franchises and privileges of the merged company shall thereby vest in the company into which the other company is merged. I cannot find room for doubt that the Western New York & Pennsylvania Railway have precisely the same rights and legal powers in this controversy as the Olean, Bradford & Warren would have had if no merger had taken place. This brings us to the question whether the Olean, Bradford & Warren lost its rights to widen its gauge by reason of the contract of June 17, 1882. After a careful consideration of this agreement I find nothing therein contained which can be construed, either by a reference to its language or any legitimate inference from its purpose and scope that should be given any effect beyond the one so plainly expressed by its language, to wit: The right to the Rochester & Pittsburg to cross the track then operated and owned by the Olean, Bradford & Warren at a designated point, and under certain limitations and conditions. The directors of the Rochester & Pitts-burg knew, as they were bound to know, that the directors of the Olean, Bradford & Warren had the right at any time to widen the gauge, either of the whole or any portion of this road. Surely, if they intended to require the Olean, Bradford & Warren to barter away that important right (important to them and the general public) they would have expressed it in unmistakable language.</p> <p>If the Rochester & Pittsburg had been in possession of the disputed point, operating a railroad thereon, and the Olean, Bradford & Warren, with a subsequent charter, had approached it, asking to cross it with a three feet track, the case would have presented another and perhaps more difficult question. It woul d then have presented the question argued by the able counsel for the defendant, and to which the authorities therein cited are to some extent applicable.</p> <p>It is not by reason of the terms of the contract of June, 1882, that the Olean, Bradford & Warren obtained the right to widen its gauge at the point in dispute, but under the general law of the commonwealth, which right still remains applicable to that road, notwithstanding the contract.</p> <p>The copy of the contract of June 17, 1882, given in evidence, does not appear to have been signed by the officials of the Olean, Bradford & Warren. It was signed by the other party, passed to the custody of the proper officers of the Olean, Bradford & Warren, and by them is presented on the trial. The contract was signed by one party, the party receiving the principal benefit under it, and delivered to the other party. Both parties acted under it, and it has gone fully into effect, the defendant getting and exercising the right granted to it, and holding the right up to the present hour. It hardly seems necessary to cite authorities to show that this contract is binding upon both parties, at this late date.</p> <p>An ingenious argument is presented to us to demonstrate that since the passage of the act of 1875, regulating the amount of stock to be subscribed and paid in, as a condition precedent to obtaining a charter for a narrow gauge road, requiring a less amount than is required for a standard gauge; a narrow gauge cannot therefore be widened, for the reason that it might result in the existence of standard gauges with the limited amount of stock required for a narrow gauge. This state of things might, of course, occur, but how can the public be injured thereby; the cost of widening would have to be borne by the stockholders of the widened road, and as the statute limits the number of bonds to be issued by a railroad corporation, the amount of stock actually paid in would be unaffected; nobody could be affected by the transaction but the corporation itself.</p> <p>The legislature upon this subject might not have been wise (a question we are not now to decide) but as the whole matter was and is within the domain of legislative power, this difficulty (if it is a difficulty) does not affect the statutes giving the railroad corporations the power to change their gauges.</p> <p>We are of the opinion that the plaintiff is entitled to the relief prayed for in the bill filed in this case.</p> <p>The court entered the following decree:</p> <p>This cause having been dxxly heard and axgxxed by counsel and xxpon consideration thereof it is ordered, adjxxdged axxd decreed as follows, to wit: that the said clefendaxit, the Buffalo, Rochester & Pittsburg Railway Company, its agents, officers, servants and employees be restraiixed until final hearing or further order of court, from in any mamxer interfering xxdth the plaintiff, the Western New York & Pennsylvania Railway Company, its ageixts and employees, in putting in a four foot eight and one half inch, or standard gauge, crossing, or in any manner ixxterfering with, or in any mamxer prevexxtixxg, directly or indirectly, the putting in of said crossiixg in a safe axxd suitable mamxer, at the point designated in the contract beaiing date June 17, 1882.</p> <p>Error assigned was decree of the court.</p>

<p>Criminal law — Murder— Confession — Evidence.</p> <p>A confession procured by artifice is not for that reason inadmissible unless the artifice was calculated to produce an untrue confession.</p> <p>A man and woman charged with murder were confined in the same prison. The man voluntarily requested an interview with the woman. The sheriff granted the request, and stationed two deputies in such a position that they could hear-what was said. No other'artifice or constraint was used. Held, that the testimony of the woman and the two deputies was properly admissible as to the statements made by the prisoner at the interview!</p> <p>A letter written by a prisoner charged with murder, and voluntarily given by him to the sheriff to be .delivered to another person, is admissible in evidence against the prisoner.</p>

<p>Pipe lines — Damages—Release—Evidence—Trespass—Mistake of remedy.</p> <p>In an action of trespass against apipe line company for unlawful entry, where the defendant produces in evidence a release of damages which stipulates that the defendant shall pay “ for all actual injuries,” the plaintiff cannot be heard to allege that he supposed from the representations made to him that he would get the same damages as his neighbors, there being no offer to show fraud, accident or mistake, or that there was a parol promise made at the time, without which the release would not have been signed. In such a case the plaintiff’s remedy is an action on his contract.</p>

<p>Appeal, No. 497, Jan. T., 1897, by defendant, Louise D. Woodbridge, from judgment of C. P. Delaware Co., March T., 1897, No. 48, on verdict for plaintiff.</p> <p>Summons in partition. Before Clayton, P. J.</p> <p>The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff. Defendant, Louise D. Woodbridge, appealed.</p> <p>Errors assigned were (1) in directing the jury to find a verdict for plaintiff, quod partitio fiat; (2) in refusing a continuance.</p>

Appeal, No. 493, Jan. T., 1897, by plaintiff, from decree of C. P. Lebanon Co., equity docket, 1894, No. 6, on bill in equity. Bill in equity to cancel a mortgage. From tlie record it appeared that the plaintiff, Mario Siebert, on August 12, 1893, executed, with her husband, Siegfried Siebert, a mortgage for $25,000 on lier lands, to secure the payment of a debt of $25,000 due by her husband to the defendant bank.

<p>Taxation — Tax on corporation bonds — Nonresidents—Presumption—Acts of June 30, 1885, and June 8, 1891.</p> <p>Under see. I of the Act of June 80, 1885, P. L. 198, amended by the Act of June 8, 1891, P. L. 229, providing that it shall be the duty of the treasurer of each private corporation upon the payment of any interest on any script, bond or certificate of indebtedness issued by said corporation to residents of this commonwealth, and hold by them, to assess the tax imposed and provided for state purposes upon the nominal value of each and every of said evidences of debt owned by residents of this commonwealth as nearly as the same can be ascertained, and to deduct four mills on the dollar and pay the same into the state treasury, there is no presumption that the bonds of domestic or Pennsylvania corporations are held by residents of the state.</p> <p>The tax on the bonds of corporations is not in any sense or in any degree a tax on the corporation or its property, but on the individual citizen of the state who holds the bonds. The corporation is chargeable with it only as a collector, and by reason of default in the duty to collect. The duty of the corporation is to use diligence to ascertain the residence of its bondholders, and whether it has or has not done so is a question of fact iu each case to be determined by the circumstances and the evidence.</p>

Appeal, No. 378, Jan. Term, 1897, by the city of Reading et al., from decree of C. P. Berks Co., equity docket, 1897, No. 690, refusing preliminary injunction. Bill in equity by a taxpayer upon real estate for an injunction to restrain a city of the third class from the performance of an alleged illegal contract for street paving.

<p>Appeal, No. 450, Jan. T., 1897, by defendants, front judgment of C. P. Berks Co., August T., 1894, No. 76, on verdict for plaintiff.</p> <p>Trespass to recover damages for personal injuries. Before Endlich, J.</p> <p>Tbe facts appear by tbe opinion of the Supreme Court, and by tbe previous report of the case in 180 Pa. 613.</p> <p>Defendants’ points and tbe answers thereto among others were as follows:</p> <p>11. There is no testimony in tbe case from which the jury could find that the defendants were guilty of negligence. Answer: Declined. [1]</p> <p>12. The plaintiffs own testimony shows that tbe accident occurred through his negligence. Answer: Declined. [3]</p> <p>13. Under all the testimony in the case the verdict must be for the defendants. Answer: Declined. [2]</p> <p>Verdict and judgment for plaintiff for $2,162.50. Defendants appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 79, Jan. T., 1898, by defendant, from judgment of C. P. Lycoming Co., June T., 1897, No. 151, on verdict for plaintiff.</p> <p>Assumpsit on a municipal contract. Before Metzger, P. J.</p> <p>Tliis action, was brought on a written contract for laying an asphalt pavement on West Fourth street in defendant city. The defendant contends that the plaintiff in constructing the concrete foundation of the pavement wilfully departed from all of the essential requirements of the contract, so that as a consequence the foundation is useless for the purpose for which by the contract it was intended.</p> <p>At the trial the contract on which suit was brought was admitted without objection or exception.</p> <p>A number of statements or bills certified to by the engineer, offered by the plaintiff, were objected to by the defendant on the ground that they were not provided for by the contract, and that they were mere declarations of the city’s agent, made after the acts to which they relate were done. The evidence was admitted by the court.</p> <p>The evidence showed that the highway committee had accepted the work under the contract, and that the city had paid a part of the claim. The defendant made various offers of evidence tending to show that the work had been improperly done. Objections to these offers were made, and the objections were sustained. [8-11]</p> <p>The principal questions involved were: 1, whether the evidence introduced by the plaintiff was admissible as showing such acts on the part of the engineer and highway committee of the city, during the progress and after the completion of the work, so performed within the scope of, and in the manner warranted by, their authority, as to be evidence against the city; 2, whether the evidence properly admitted on the part of the plaintiff showed such acts of the engineer and highway committee as to preclude it from introducing any evidence whatever ; and 3, whether the certificate of the city comptroller to the contract in suit was a compliance with the requirements of the Act of May 23, 1889, P. L. 303, article 9, section 5, so as to permit the contract to take effect as such.</p> <p>The material facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>3. The contract in this case is void and the plaintiff cannot recover for the reason that tire city controller did not certify on the contract that the estimated amount of the expenditure under said contract had been charged against the item of appropriation on which the said contract was founded. Answer: If we did not intend to reserve that point we would say that we think it is too late to take that position now. This contract was certified, although it is contended that the certificate was irregular. If we were to grant that the certificate was irregular, we think when the contract was offered in evidence it should have been objected to. It was not objected to in this case and it went into the evidence. The irregularity was, therefore, as the court thinks, waived, and defendant cannot now at this late day raise that question. And, if the certificate was not proper then the whole contract was void. It should not have been received in evidence if defendant had objected to it, but as there was no objection the court received it without objection, by the acquiescence of the defendant; and it would be a veiy irregular way to try a lawsuit, to allow it afterwards to raise this question, when both parties have closed their case, and at the very last present a point of that kind, which was unthought of by anybody except the defendant up to this period. Now, it would be unfair, for the reason that if this contract had been objected to because of its irregularity at that time, it would have enabled the plaintiff to have brought an action in another way, in all probability, and recover either upon a quantum meruit, or recover by showing that the contract, although irregular, was affirmed and ratified by the city. If we would permit defendant to'raise this question now, we would have to open this case and permit the plaintiff to introduce evidence to show that notwithstanding its irregularity, it has been ratified. But we will not dispose of that point at this time. We will reserve it and your verdict will be subject to that point. [16]</p> <p>4. The verdict of the jury must be for the defendant. A timer: This we cannot affirm. We direct you to find a verdict in favor of the plaintiff for the balance due on the contract, and for the other work, provided you find it was a part of the contract, and it was its duty to perform it, at such a price as the evidence shows it ought to have for it. If you think that was strictly extra work the rule is different, and you would not give it' a verdict for that. [17]</p> <p>Yerdict for plaintiff for $9,494.51. McClube, J., of the 17th judicial district, specially presiding, directed judgment on the verdict. Defendant appealed.</p> <p>Errors assigned among others were (8-11) rulings on evidence, quoting the bill of exceptions; (16-17) above instructions, quoting them.</p>

<p>Appeal, No. 137, Jan. T., 1897, by Carrie Schollenberger et al.. from decree of Superior Court, Nov. T., 1896, No. 18, reversing decree of O. C. Phila. Co., Oct. T., 1887, No. 480, granting leave to mortgage under the Price act.</p> <p>Appeal from Superior Court.</p> <p>The facts appear by the report in 4 Pa. Superior Ct. 46.</p> <p>Error assigned was decree of the Superior Court.</p>

Appeal, No. 227, Jan. T., 1897, by defendants, from judgment of C. P. Northampton Co., June T., 1896, No. 7, on verdict for plaintiff. Ejectment for land in the borough of Bangor. Plaintiff claimed title by virtue of a sheriff’s deed in pursuance of a sale of premises made in 1895 under executions against Joseph Houck.

<p>Appeal, No. 85, Jan. T., 1898, by John G. Scouten, an attorney-at-law, from order of G. P. Sullivan Co., Dec. T., 1897, No. 41, making absolute a rule to disbar him.</p> <p>Rule to disbar an attorney-at-law.</p> <p>The facts appear by material portions of the opinion of Dun-ham, P. J., as follows:</p> <p>Upon tbe 25th day of October last, the above rale was granted upon John G. Scouten, Esq., a member of the bar of Sullivan county, by the court, upon its own motion, returnable at the then next regular term of the courts of said county, which sat upon December 13, 1897. The rule and the reasons therefor, which reasons were entered in full among the records of the court of common pleas of said county, were directed to be served upon said John G. Scouten, Esq., at once, by giving to him a duly certified copy of- the rule, the order of court, and the reasons assigned by the court for issuing said rule, which order was fully complied with on November 5, A. D. 1897. . . .</p> <p>In the said order of court, John G. Scouten, Esq., was ordered to make formal answer to the matters contained in the rule and reasons upon which the rule was granted, on or before December 13, 1897 at two o’clock p. m. . . .</p> <p>While the matters alleged in the rule granted upon Mr. Scouten are said to have occurred, and did occur, on October 14, A. D. 1897, and nothing that occurred prior to that date can be of any very great materiality to the case, yet the respondent seeks to in some way excuse or to a certain extent palliate his conduct by referring to former meetings of the court at which Hon. G. Kraus and Hon. John Line, the associate judges, held court, and in which the case of Bush v. Wiggins was being heard, and alleging that it was the understanding and agreement that at the next meeting of the court to hear said case the president judge was to be present, and sit in the hearing of the case, and that it was the violation of this understanding or agreement that incensed him to such an extent as to cause him to lose control of himself, and thus, in a moment of anger and passion, say what he otherwise would not have said.</p> <p>While we do not mean to insinuate in any way that, even if such were the exact facts in the case, it would in any way excuse, much less justify, the conduct of the respondent, we do feel it incumbent upon us, to state the exact facts in the case, known to the court, in order that the whole truth in the matter may appear upon the records. There had for some time been a rule pending in court to show cause why the judgment of Bush v. Wiggins should not be opened, and the defendant allowed to come in and defend against the claim of the plaintiff. Some evidence had been taken upon this rule prior to May term of court, and at said term, Hon. John J. Metzger, of the 29th district, holding the term of court, in place of the president judge of the district, who was unable to be present in court on account of sickness in his family, referred the case to the two associate judges to pass upon. As there was considerable business to be disposed of, these associate judges went into either a jury room or the judges’ chambers, and an application was made to continue the argument of the case, owing to the depositions not being in proper shape in some way. This application was granted and to accommodate the attorneys, one of whom lived in Dushore, and the other in Wyalusing, the hearing upon the rule was fixed at Dushore, and was held in Mr. Scouten’s office. At this hearing it W'as again continued at request of one of the parties and the hearing fixed at Laporte at the courthouse. The associates fixed the hearing at the courthouse, largely and mainly, because the conduct of Mr. Scouten in the case at his office was such that they did not feel like ever hearing anj'- argument again in which Mr. Scouten was concerned, in any other place except the courthouse, where no questions could be raised as to their authority, or to the regularity of their proceedings; but there was no understanding or agreement whatever about the president judge being present. At the next regular term of court or at September term, the jury trials took up almost the entire time of the jourt, so that few cases on the argument list were reached. And as the parties in the Bush v. Wiggins case seemed anxious to have the case disposed of as soon as possible, an adjourned court was fixed for October 14, at which that case and one or two other cases or rules were directed to be disposed of, or at least were put down to be heard. At the time this adjourned court was fixed the president judge announced from the bench to all parties that it would not, in all probability, be possible for him to be present upon that occasion, as he expected to be away from the county at that time.</p> <p>From these facts we are unable to see how it was possible for Mr. Scouten to have been misled as to who was to hear the rules, or to have been disappointed in not having had the president judge present, and thereby to have become irritated.</p> <p>Upon October 14, 1897, court met at the courthouse to hear the .rule in above referred to case, and also to dispose of some other rules and matters that were to come up at that time, and was held and presided over by Hon. C. Kraus and Hon. John Line, the two associate judges of the county. That these two judges have power to hold the court is too plain for any argument. It would not serve any particular purpose to attempt here to cite authorities showing the authority of associate judges to hold court. Their power to do so is abundantly sustained by authority.</p> <p>So that the court held upon October 14, by the associate judges was a court of competent jurisdiction and the orders, decrees and decisions of that court were of as much authority and as binding upon all the parties interested as they would have been had the president judge been present and participated in the business of the court.</p> <p>At this session of the court the case of Bush v. Wiggins had been argued, and the court had made the rule to open the judgment absolute and authorized the defendant to appear in court and defend against the note upon which judgment had been entered. Also the application of John P. McGee to set aside the sale of his real estate by the sheriff had been heard, and the rule to show cause why the said sheriff’s sale should not’be set aside had been discharged. In this last rule Mr. Seouten was personally interested, as he was one of the purchasers of the real estate of said John P. McGee, the property having been sold in different or separate lots or parcels, and John G. Seouten having purchased one of these lots or parcels at a price, thought by some, to be a high price for the property.</p> <p>After these proceedings had been taken, and the court had made the decisions and orders set forth above, Judge Kraus had occasion to leave the bench and pass out into the hall or corridor in the rear of the courtroom and down the stairs into the hall or corridor in the first story of the courthouse. Mr. Seouten, after Judge Kraus had left the courtroom, also left the courtroom, taking practically, if not exactly, the same route Judge Kraus had taken. Whether Mr. Seouten did this to follow Judge Kraus up or not, of course, we do not pretend to say, nor do we consider it of any consequence in this case. That he came out after Judge Kraus is not denied. That he descended into the lower hall or corridor after Judge Kraus is not denied. And that he there met Judge Kraus and began a most indecent and outrageous attack upon Judge Kraus on account of tbe rulings and decisions of the court is not denied, and that any other cause or controversy whatever existed for this attack is not in any way claimed by the respondent; so that whatever occurred there and whatever attack was made by Mr. Scouten upon Judge Kraus Avas made solely and entirely, because of the rulings, decisions and actions of the judges in the matters that were before them in court. When Mr. Scouten met Judge Kraus in the lower corridor of the courthouse he immediately began a most vile and abusive personal attack upon him, using language too Adíe and obscene for repetition here, or in fact in any place. One might expect to hear language of the kind used by Mr. Scouten in the lowest slums of a great city, or among the most degraded portions of humanity, but among men who care anything for themselves or for society, such language one would never expect and never ought to hear. Not only Avas Judge Kraus most foully abused but the court itself was attacked, its motives impugned and the honesty and fairness of its decisions were openly questioned. Owing to the character of the charges made against Judge Kraus and the court, and the language in which these charges were clothed, Ave do not feel at liberty to repeat them here, but merely desire to refer to them as they are spread upon the records in our reasons or foundations for the rule granted in this case, where under a sense of duty we felt compelled to have them put down. Had this attack been made by Mr. Scouten upon Judge Kraus Avlien there Avere no persons present to hear the same, it would not have been so flagrant and great an insult to the judge and the court, nor so far-reaching in its consequences to the public, but at the time the attack .began there were seAreral persons, members of the bar and others, in the corridor who could not avoid hearing it and the loud and boisterous manner of Mr. Scouten attracted more persons to listen to the disgraceful tirade. This attack occurred some time before the court adjourned for noon. And Avlien the noon recess came Mr. Scouten again folloAved Judge Kraus, this time into the judges’ chambers adjoining the courtroom where the íavo associate judges had gone, and again began an attack upon Judge Kraus, or at least was using loud, unpleasant and abusive language, and when ordered out of this room he stepped back into the courtroom, and then violently and boisterously, vilely abused Judge Kraus and also tbe court and court rules, and among other things dared Judge Kraus to come down into the court yard to engage in a personal combat with him. . . .</p> <p>It is clear that the court has the undoubted right to strike an attorney from the rolls for attacking or insulting a judge on account of any ruling or decision made in court. If the court has this right, and if it is their duty as was intimated by Justice Field to act in such cases, surely no one can for one moment contend that the present case is not one demanding the action of the court. In all the cases reported none can be found that in any degree approaches this one for insulting and abusive language, or for the extent to which the same was carried, even to the extent of threatening personal chastisement upon the judge. Indeed the respondent has virtually relieved us of all question as to the propriety of the action of the court by coming into court and expressly admitting the power of the court in the matter, and also admitting that the court could not in justice to itself and to the judiciary have done less than it has done, and that the offense deserves that this rule be made absolute. But he seeks to avoid the judgment of the court, that he virtually admits justice demands by humbly apologizing to the court and to Judge Kraus for his conduct, and throws himself upon the mercy of the court, asking us to forgive his shortcomings and offenses, and promising to do differently in the future.</p> <p>No one can for one moment question that the apology is as full and complete as able and astute counsel could make it. And were we convinced it came from the heart, and was prompted and made because his conscience upbraided him for the great wrong and insult he had put upon the court, and would not permit him to rest until he had made the fullest apology and the most ample amends for such conduct, we should feel disposed to accept it and dismiss this rule with an admonition to the respondent that in future he must so conduct himself that no further or future occasion should ever arise of a similar character. While we have the greatest respect for any person who, upon being convinced of an error, takes the first opportunity to apologize and make amends for the wrong done or the injury committed because lie believes justice, fair dealing and honesty demand he should do so, we have no respect for the person who declines or neglects to apologize or render a just and proper amend for a wrong done or an injury committed until he is convinced such a course is necessary to save him from punishment for such conduct. A person who makes an apology because he fears that unless he does so he will receive merited punishment, is a hypocrite and coward, and an apology wrung from him in that way is entitled to no merit or consideration.</p> <p>Let us then consider the circumstances in this case in order to see what weight or consideration we ought to give this apology and appeal for mercy. On October 14, the occurrence took place that is the foundation for this rule. The first attack was in the forenoon. Some forty-five or sixty minutes after this attack, after full opportunity to cool and reflect upon his conduct, the respondent renewed the attack and continued the same abuse. Nothing was done by the court in the matter until the afternoon of the 25th of the same month, when the entry of the facts in the case was made and the present rule granted. Court had been in session that forenoon, and the respondent had been present in court arguing matters before the court. Yet he made no attempt to apologize or in any way show any regret for his conduct. Court was again in session on November 4, and it was generally known that the above rule had been granted and upon what it was founded, although it had not then been served upon the respondent and then no sign of regret or apology came from the respondent. Not until the very day upon which the respondent was required to make answer, did he in any way attempt to atone for the abusive attack he had. made upon Judge Kraus. Then he comes into court with a typewritten apology, in a full and complete form, but very evidently gotten up and written by his able and adroit counsel, who presented it, signed it is true by respondent, but in all probability, that was about all he had to do with the instrument. He does not publicly acknowledge his wrong further than by having his counsel present his written answer, and appeal for mercy.</p> <p>Did respondent upon October 25, know and realize the enormity of the offense he had committed ? If he did it was his duty to apologize. If he knew it and refused to apologize, he cannot now complain because, we refuse to be satisfied with his late apology, as his conduct by so doing, shows that he is not a proper person to remain as an officer of a court he had so grossly wronged and insulted, realizing his guilt, yet refusing to apologize. If he did not know, feel and realize that he had committed a great wrong upon the court, and only was able to find that out from his able counsel, surely he is not a proper person to remain an officer of the court.</p> <p>It is unnecessary here to discuss the great responsibility resting upon attorneys, and the necessity of having only such persons as attorneys, whose character and personal standing are above reproach. Great efforts are being made to keep out of the bar all unworthy persons and all who are not fully qualified to perform their duties as attorneys. The bar should, have among its members, no person who is not a gentleman or lady in the fullest sense of the word, and no person who does not fully realize and faithfully live up to the obligations he takes to conduct himself honestly and faithfully to courts and his clients in all respects and under all circumstances.</p> <p>If we are in error in feeling and holding that the present apology of respondent, comes too late, and is not sufficient to convince us of its genuineness and of his sincerity in making it we can only say that respondent has it in his power to so live and conduct himself as to show and convince all who know him, of his determination to govern his temper and tongue, and when he has, by long persistence in this course, shown to us, that he has succeeded and can conduct himself in all respects, properly and respectfully, we shall cheerfully hear his application for readmission and act favorably thereon.</p> <p>Now, January 17, 1898, this case having been heard and fully argued by counsel, the rule heretofore granted to show cause why John G. Scouten, Esq., should not be removed from his office of attorney of this court and his name stricken from the rolls is made absolute, and John G. Scouten, Esq., is removed from his office of attorney of this court and his name stricken from the rolls.</p> <p>Error assigned was the order of court.</p>

<p>Contract — Parol contract — Evidence.</p> <p>In an action of assumpsit to recover damages for the breach of an alleged parol contract, it appeared that the plaintiff had entered into a written contract to cut and deliver timber and bark for the defendants. He alleged that the oral agreement was made at the time the written agreement was executed, and that under it the defendants were to furnish the necessary capital to carry out the written contract. The evidence showed that the defendants paid more for several years in their monthly payments to the plaintiff than the written contract called for. Plaintiff alleged that defendants had refused to make the advancements provided for by the alleged parol agreement, and that in consequence he was unable to carry out the written contract. Plaintiff’s evidence as to the existence of the parol agreement was not supported by the testimony of any other witness, and was contradicted by both defendants and a third witness. Held, that the evidence as to the existence of the alleged oral agreement was insufficient to submit to the jury.</p>

<p>Contract — Agreement to go security to release attachment — Damages.</p> <p>An action may be maintained for the breach of an agreement to enter security to release an attachment; and if there has been an unreasonable delay in entering the security, and the defendant in the attachment has been injured thereby, the latter is not entitled to punitive, remote or speculative damage, but only such damages as are fairly or reasonably to be considered as arising from the natural and proximate consequences of the facts made known at the time of the making of the contract.</p>

<p>Deed — Mortgage—Charge on land.</p> <p>Testator gave to his executors and trustees one third of his estate in trust for a daughter during her seclusion in a monastery. The executors under a power in the will sold and conveyed the land of the testator subject to the payment of interest on the daughter’s share during her life, and the payment of the principal of such sum to the persons entitled to it after her death. The deed was executed in May, 1856, but not acknowledged until November of the same year. On the day of the acknowledgment the grantee conveyed the real estate to the wife of one of the executors who was a son of the testator and the devisee of a third of the estate. No mention was made in this deed of the charge in favor of the daughter. On the same day the other son, who was also an executor and a devisee of another one third of testator’s estate, quitclaimed his interest to the wife of the first executor, who, to secure payment therefor, executed, with her husband, a mortgage dated as of the date of the deed in which the charge was created in favor of the daughter, but acknowledged on the day in November when the other papers were executed and acknowledged. The value of the property at the time these papers were executed was sufficient to cover both the charge and mortgage. Forty years afterwards when the land was sold it did not bring sufficient to pay both the charge and the mortgage. Held, that, in the distribution, the charge on the land was entitled to priority over the mortgage.</p>

<p>Appeal, No. 286, Jan. T., 1897, by defendant, from order of C. P. No. 8, Phila. Co., March T., 1897, No. 756, for making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit oh a promissory note and a book account.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The averments of the affidavit of defense and the supplemental affidavits of defense sufficiently appear by the opinion of the Supreme Court.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Promissory notes — Affidavit of defense — Suit by indorsee against maker.</p> <p>In an action by an indorsee against the makers of a promissory note, an affidavit of defense which would be good against the payee is sufficient, if it also avers that the defendants are informed, believe and expect to be able to prove that the plaintiff is not a bona fide purchaser of the note for value before maturity, and that he now holds the note for collection in the interest of the payees.</p> <p>In an action on a note given for work done and materials furnished, it appeared that the payees of the note under a written agreement guaranteed all work done and materials furnished by them for a period of five years, and agreed to repair the work and keep it in good order for said period. The defendants filed an affidavit of defense, averring that the work was not done in accordance with the contract, and specifying the location, nature and causes of defects in it. They further averred that the payees of the note had refused to make the repairs when notified, and that the defendants “ have been compelled to pay out, and will in the future be compelled to pay out, a large sum of money to repair the same and place in proper order and condition, a much larger sum of money than that for which this suit is brought,” and that they believe and expect to be able to prove that plaintiff is not a bona fide holder for value before maturity, but that he holds the same for collection for the payees. Held, that the affidavit of defense was sufficient to prevent judgment.</p>

<p>Appeal, No. 196, Jan. T., 1897, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1895, No. 665, on verdict for plaintiffs.</p> <p>Issue devisavit vel non. Before Pennypaoker, P. J.</p> <p>The facts appear by the opinion of the Supreme Court and the charge of the court below which was as follows:</p> <p>Margaret F. Erwin, upon October 30, 1893, executed a will in which she disposed of property amounting to about $206,000. She was a maiden lady living at 1835 Arch street, with three colored servants, and otherwise alone. She was eighty-nine years of age. She had had an attack of grippe or bronchitis in the winter of 1892, and another attack in the spring of 1893, which to a certain extent affected her vision, and according to the testimony of some of the witnesses her face was drawn. She had had a fall at one time in the night. She had a dizzy spell in the fall of 1893, and at the time of the execution of this will she was suffering from the pain in her toe which subsequently resulted in gangrene, from which she died on January 1, 1894. That will is contested, and there are two issues which are presented for your determination. ... It is suggested by the contestants in the first issue that she was not of testamentary capacity, that she was not of sound disposing mind, memory, and understanding, and in the second issue, that this will was the result of undue influence. . . . But I will relieve you from all trouble with respect to this first issue. [I have examined all of this testimony with considerable care, and I find nothing in it which would justify you in determining that this testatrix here had not testamentary capacity. My instruction to you, therefore, is, upon the first of these issues, to find for the plaintiffs.] [7] The real question which is raised in this case is upon the second issue, as to whether or not this will which is in controversy was really the will of the testatrix, Miss Margaret F. Erwin, or whether or not it was brought aboút by undue influence exerted by others. . . .</p> <p>It appears that in August, 1892, this testatrix had made an'other will. Under the terms of that will some $66,000 in all were given to her servants, and the residuary part of her property was given to the contestant here, Mrs. Agnew. The bulk of her property was in the residuary devise and bequest. Under this will which is in dispute, that of October 30, 1893, sonie $27,000 in all is given to her counsel, Mr. Tindall, $86,000 to the servants, and the balance of her property, left after making some devises and bequests, goes to charities, and Mrs. Agnew is left out of that will entirely. As you see, therefore, there was a- fundamental change in the disposition which she made of her property between the times of the execution of those-two wills. . . .</p> <p>It appears in this case that Mr. Tindall,'who is one of the beneficiaries, occupied a confidential relation to the testatrix. He had entire charge of her property. He was her counsel. It appears that in the lifetime of her nephew this testatrix had depended upon that nephew absolutely for all advice, and that on his death Mr. Tindall took his place; that she could not, as she expressed it, do without him; she did not know how she could get along without the assistance of Mr. Tindall. He not only was her confidential adviser, but he took the position of a friend. The evidence is that almost daily he went there to see her, talked to her about the ordinary affairs of life, and that she looked forward to his visits. When she gave him some peaches he told her that they were the best he had ever eaten in his life. This confidence which was displayed by the testatrix had its manifestations in very substantial ways. In the first place, he got a commission upon the moneys of hers which he collected; he got a fee of $2,000 for the services which he, in conjunction with Mr. Johnson, gave in the equity suit, for which Mr. Johnson’s compensation was $500. He got a commission of five per cent upon the bulk of the two estates amounting to $310,000, so that his commission was the comfortable sum of $15,500, and in addition to these compensations there were certain gifts from the testatrix. In January, 1893, he received $1,000; in May, 1893, he received $3,500; in August, 1893, she sent him to the fair, which cost $225, and that was followed by the presentation of a mortgage of $12,000. Now, I think it must be said, and it is rather painful to say it, but still the exigencies of the case require it, that I do not think you can read or consider carefully his testimony without reaching the conclusion that this confidence which was so implicitly placed by the testatrix in Mr. Tindall was mistaken. It appeal’s, to begin with, that when he took from her receipts for these moneys which had been given to him by the testatrix he drafted the receipts himself, and he described the moneys not as gifts, which they were, but as moneys intended for a special purpose or for a particular purpose. He testifies that when the agent sent the check to him for the Bail and Tioga rents, a check drawn to the order of Mrs. Agnew, he sent that check to Mrs. Agnew and that he said nothing at all to Miss Erwin about it. Now he was the agent of Miss Erwin, and it was his duty to see that she knew that the rents which belonged to her were paid, and were given to her. The $15,500 of which I have spoken was, as he tells us, represented to Mrs. Agnew as compensation for his services with respect to those estates, and he says that he told Mrs. Agnew that Miss Erwin had paid the whole amount of it, but with respect to Miss Erwin it was a gift. It appears also that of the $22,500 which Mm. Agnew gave him, representing the interest of Miss Erwin in the real estate, he expended some $8,000 or $10,000 for his own purposes, without consultation, and without the knowledge of Miss Erwin at the time. He says that she subsequently approved of it, but when he spent it, the ascertaining of this large sum, which was a gift, and only a gift from the point of view of Miss Erwin, had not been made. He also, as he testifies, when the will of Miss Erwin, the earlier will of 1891, had been intrusted to him as counsel, exhibited it to one who was an entire stranger, Mr. Stevenson. Now you heard Mr. Caven testify as to what ho regarded as the duty of counsel under those circumstances. The drafts of wills made by him, after the will had been executed, were destroyed in the exceeding care which he manifested that the secrets of his client intrusted to him should not get into the hands of strangers, but we have Mr. Tindall exhibiting to a stranger that will which had been given to him in confidence, and also the will of 1892, because Mr. Ste* venson tells us that he knew the contents of that will, and had seen it, contrary to the duty which Mr Tindall owed to the interests of his client intrusted to him.</p> <p>Now her gratitude for which she had made this bounteous acknowledgment to him was, as he tells us, largely because of the fact that she thought if it had not been for Mr. Tindall she would have been penniless, and that was because Mr. Tindall had suggested to Dr. Erwin Agnew to make a codicil to his will leaving her part of the estate to her. It appears that that advice was imperfect and incorrect advice. It did not, in the first place, accord with the facts. That property did not belong to Dr. Erwin Agnew, and he could not give it. He held it in trust, and when the matter was presented to other counsel, this provision of the will for which Miss Erwin was so grateful was not carried into effect, and a bill in equity in accordance with what was the exact fact, that Dr. Erwin Agnew was a trustee, was drawn by Mr. Johnson. And it appears that the saving of 110,000 from this bequest which was introduced into the will by Mr. Tindall was also impressed upon this good lady as a matter requiring her acknowledgment. I think, therefore, as I said to you, that it must appear to you that the confidence which was placed in the agent was not justified by the facts.</p> <p>But we are not so much confronted with the previous relations as we are with the question as to whether or not Mr. Tindall, at the time of the execution of this will, exercised upon Miss Erwin any undue influence. That, as you see, is an inquiry into the condition of Miss Erwin’s mind, and it involves your investigation of the conduct, not so much of those who had other relations to her, but the conduct of those Avho surrounded her at the time, and who are alleged to have used this influence. It is a difficult inquiry, because it does involve knowing the mind of another person, but that is the task which is set before you. You must endeavor to look into the secrets of Miss Erwin’s mind, and see whether or not this will represented her purposes and intentions, or whether it represented the purposes of other persons.</p> <p>Now, to begin with, in looking at Miss Erwin you have what I regard as an important fact at the outset. Before any of these wills were made, in the lifetime of Dr. Agnew, Miss Erwin had transferred all of her property, real and personal, to her nephew, Dr. Agnew, and apparently had not a scratch of a pen to show that she was the owner of it. Undoubtedly the affection between aunt and nephew may be very strong, between mother and son and father and son, and near relatives, but it is certainly a very unusual fact that an estate amounting, as we have heard, to more than $200,000 is transferred to another, even one occupying' such close and intimate relations, and it indicates something of the mental makeup of this lady about whom we are inquiring. Now there have been witnesses through the case, a number of them, who have testified that Miss Erwin was not the kind of a woman who would be likely to be influenced. That, however, was not the opinion of Mr. Tindall, and he was close to her, and her adviser. That appears in this way: He tells us that when the will of 1891 was made the suggestion first came from the people downstairs in the room below. Somebody suggested that Miss Erwin ought to make a will; that then they went upstairs, and either he or Mrs. Agnew suggested to her that she ought to make a will, and that thereupon he sat down and wrote it. There is a certain plausibility, although it is contradicted by a number of other witnesses who were present, about this account of it which is given by Mr. Tindall. It would certainly be remarkable if Miss Erwin, with her dead nephew lying in the adjoining room, and about to have an autopsy performed upon him, should want at that time to make a disposition of her property, and we are told that when she started to make her will the suggestion as to the girls was, “Will you give them $20,000, $30,000?” So that other persons were suggesting the amounts to her, and this testimony, if it be correct, indicates a woman who, under that great sorrow, with her nephew lying dead, about her own property apparently had at that time not force enough to resist the efforts of those about her who were anxious that there should be some disposition made of what she had. Further than that, we have the evidence of Mr. Tindall that he actually did influence her in making a will. His testimony with respect to the will of 1892 is that she wanted to draft a new will, and she gave him some directions, but that as to the bulk of it, the residuary bequest, which covered the greater part of the property, that he put Mrs. Agnew’s name in for the residuary estate without- consulting Miss Erwin: “She gave me no special instructions about the residuary estate.” He drafted the will leaving the residuary estate to Mrs. Agnew, and he took it up to Miss Erwin and she read it, and this is what she said: “I see Mary gets the balance of the property; I don’t see what claim she has upon my estate.” -That is, Miss Erwin was objecting to the residuary clause which her counsel had put in her will without asking her. Then Mr. Tindall says: “ I remarked, ‘ She expects it, Miss Erwin.’ ” That is, he undertook to determine the question, and then the will was executed. And on cross-examination he testified: “I had no motive in leaving her out.” Not that Miss Erwin was determining the question, but that counsel with respect to the bulk of this estate had no motive for leaving her out.</p> <p>Now when we come to the will in dispute, that of October 30, 1893, which was prepared by Mr. Caven and executed, it appears that before the will was executed Mr. Tindall had been with her and had gone over the items of the will. They were put down upon a piece of paper, and that he suggested that Mr. Caven draw it, and that Mr. Caven should be the executor. He says about Miss Erwin, that she had at that time evidently made up her mind, so that at the time when the amounts to be given and the points to be determined were ascertained she was consulting with Mr. Tindall, and that what Mr. Caven did later was to put the paper into formal shape. It also appears that this paper which Mr. Tindall had gone over was copied by Fanny. Her testimony is that she copied the paper which was presented. I have listened to the testimony of Fanny and the testimony of Mr. Tindall, in an effort to ascertain why it was necessary that Fanny should make a copy of that paper. To be sure, Miss Erwin had a great deal of confidence in her, but she also had confidence in Mr. Tindall, and she surely could not have thought that Mr. Tindall either did not write so good a hand, because he wrote a conveyancer’s hand, or that he did not know how to draft the terms in an instrument like that. That it was intended temporarily at the time to be complete is shown by the fact that that memorandum copied by Fanny she signed, the purpose evidently being that it should be a complete instrument in the event of anything happening before she could execute a more formal will. Now what was the purpose in having Fanny copy it? There were three persons who knew that Fanny had copied it — Mr. Tindall, Fanny herself, and Miss Erwin — and that fact, it appears, Mr. Caven did not know. If the purpose was that Mr. Caven should not know that Mr. Tindall had consulted with his client at the time, that the question was really under discussion, then we can understand a reason for it. If there be any other reason, if it was not with a view of concealment, then you will consider it carefully and find out what that reason was.</p> <p>Did Fanny exert any undue influence ? Mr. Tindall says that at the time he left that memorandum with Miss Erwin her mind was made up; that she had evidently thought over it carefully, and her mind was made up. Upon that memorandum Fanny had been given the sum of $30,000. After the memorandum had been copied Fanny, under the will of October 30, gets $40,000, and Fanny herself testifies to you that Miss Erwin was willing and wanting to give her $50,000, but she objected to it. Meanwhile, since the time when Miss Erwin’s mind had been made up, so far as we can see, nothing had occurred except that Fanny had copied the memorandum of the will. Now here was a very considerable change in the disposition which she made. It also appears, and that impresses me as somewhat remarkable, that when we come to the residuary bequests, the disposition of what is left after the special bequests in this will, one of the residuary legatees is the church with which Fanny was connected. Miss Erwin had bountifully provided for her servants, and one would naturally suppose that in looking about for charities, the many hospitals and the many churches with which she had association, Christ Church in which her grandfather was buried, would occur to her mind as proper ones to which to leave a bequest of that character. It appears, according to the testimony of Fanny, that Avithin a week after her death a number of her papers were destroyed by Fanny. She says it was after the death of Miss Erwin. Another witness has testified as to the destruction of papers before her death. Now, this is not so much a question of the importance of the papers as what the act in itself means. To attempt to decide as to whether or not certain papers relating to business transactions Averc ones which ought to bo destroyed is the act rather of one who is -a mistress than one who is a servant. v In considering the testimony of Fanny, and it is important to look at all of it, because with Mr. Tindall’s testimony and Fanny’s testimony we get close to the transaction which is under investigation, it appeared to me that she told very intelligently and very carefully, I might say even accurately, what had occurred within her knowledge, except as to one matter. She was asked upon cross-examination as to whether or not Miss Erwin was not in the habit of keeping considerable sums of money in her bureau drawer. Fanny said that she did not know about it. That is a fact which would not be likely to be forgotten, one which would be likely to impress a person occupying that relation if she knew it. Later in her examination, when she told about the Christmas presents, she said that she go.t the gold pieces, five, ten and twenty dollar gold pieces, out of a bag kept in the bureau drawer. Mary Moore testified that when she got her $1,000 Fanny went to the bureau drawer and got it out. Fanny herself tells us that she got $10.00 from the bag for the fireman who came there to get some money as a contribution, and Mr. Henderson tells us that in his presence she counted out $100 to a person who came there for Mrs. Grider. This latter item of testimony is denied by both Fanny and Mrs. Grider. It did appear, however, from Mrs. Grider’s testimony, that she had been in the habit of borrowing money from Miss Erwin, and at their last interview Miss Erwin forgave it.</p> <p>I have just one other item of testimony to which I will call your attention in this aspect of the case, and that was the evidence of James H. Taylor. He testified to the strongest expression on the part of Miss Erwin with respect to Mrs. Agnew that appears in this cause so far as I remember. There was a mortgage upon this house, and he concluded that it was not worth while to pay off that mortgage, and expressed a willingness to transfer the house. Mr. Tindall told him that the mortgage belonged to Mrs. Agnew. It appears that Dr. Erwin Agnew had told him that the mortgage belonged to Miss Erwin. He made the transfer to Mrs. Agnew at Mr. Tindall’s suggestion. After that he went to Miss Erwin and he told Miss Erwin that Mrs. Agnew had got this property which belonged to her, Miss Erwin. Then he says Miss Erwin said: “ She will not make anything by that.” Now that is the strongest expression of a purpose antagonistic to Mrs. Agnew that I recall in „the case. But as you see, with respect to that matter, Mrs. Agnew was entirely innocent. The suggestion of the transfer of this real estate was not made by her, but was determined by Air. Tindall. Now, why was it, there apparently being some question about it, that Mr. Tindall did not go to Miss Erwin and get what knowledge she may have had with respect to that property before it was done ? He testifies that he explained it to her afterwards and that she was satisfied, but the transfer was made at the suggestion of Mr. Tindall. Now it appears Mr. Taylor thought that had an influence upon Miss Erwin, because he testified that he told Dr. Adams, in the interview that they had, that he knew what had turned Miss Erwin’s mind with respect to Mrs. Agnew. Before he went to see Miss Erwin to tell her about this fact he had a consultation with Mr. Tindall, and it further appears in the case that he was in the habit of taking bis dinner at this house with these girls.</p> <p>I have now gone over the facts which have impressed me in the case of the contestant. There is a great deal of general testimony upon the other side which you ought to carefully consider, evidence as to the clearness of mind and purpose on the part of Miss Erwin. She was no relation at all to Mrs. Agnew. Mrs. Agnew had already received, through the death of her husband, a very large estate, the moneys of which had come from the Erwins. The servants who are the objects of these bequests were servants who had gone into the house in childhood, who had waited upon her and attended to her, who were with her through all her times of sorrow and affliction, and according to all of the evidence, they were servants who had attended her faithfully and kindly.</p> <p>[There is considerable evidence of a want of sympathy on the part of Miss Erwin with respect to Mrs. Agnew. You will recall that testimony and give to it such weight as it deserves. You have the evidence of entirely reputable counsel and able counsel who prepared this will, and the subscribing witnesses who were present when it was executed, that Miss Erwin went over the details of it, exhibiting a thorough understanding and comprehension of them, and that it indicated the purposes which she had in mind and carried them into effect. There are some specific items of testimony on this side of the case to which I want to call your attention, and the first is to the miniature about which we have heard so much discussion. It appears this was a miniature of Miss Erwin’s father, Robert Erwin. It had belonged to her sister Mary, and Mary’s direction with respect to it was that it should be buried with Rer. However, Dr. Erwin got it and put it in Ris safe and determined to give it to his stepdaughter, Susie. Susie, doubtless, as she tells us, with the idea of asserting her title to it when Miss Erwin asked for it, took it down to Caldwell’s and had the inscription put on it as coming from Dr. Erwin, calling him her father, to herself, and then she took it to Miss Erwin. Now Miss Erwin, whether through Fanny or by her own exertions, had that inscription removed, thus meeting the claim of property which Susie made, and she handed it over to her cousin, Mr. Parsons. Although this miniature has perhaps little pecuniary value, it has a value of another kind. Miss Erwin might well say that this was a matter of family interest. It was the portrait of her father, and it belonged to her sister, and her view might well be that that was not to go to some person who was not related by family ties, but ought to go to some one within the family, and, at all events, it seems to me to be quite plain that she intended to indicate at that time that that property was not to go back to Susie, but that she was there asserting her right to it, and a right to determine it.] [15]</p> <p>[It also appears, with respect to the Bail and Tioga rents, that these rents had been sent to Mrs. Agnew in the spring, according to her own testimony, and that Miss Erwin’s share of them was not paid over to her by Mrs. Agnew until in November of 1893, and after Miss Erwin had called Mrs. Agnew’s attention to the fact that they were unpaid. Now here was a matter of substance. It was a question of moneys collected, and it is one to which a person might well give importance.] [16] [There is also the fact, endeavoring to account for a change of attitude upon the part of Miss Erwin, of the sale by Mrs. Agnew of her home upon Arch street. You will remember the testimony that, after the death of Dr. Agnew, Miss Erwin suggested that now they were all in all to each other, and they ought to come together and live close to each other, as apparently they did, and it would seeni from what Miss Erwin said to Mrs. Agnew, as testified to by Mrs. Agnew, that while she thought it would be well for Mrs. Agnew to take a smaller house, her idea was that Mrs. Agnew would take a house upon Arch street or upon Broad street. Instead of doing so, acting upon her own judgment and following her own tastes, no doubt, she bought the property 1910 Locust street. Now the question for you to consider is whether or not Miss Erwin may not have considered that the initial step in the way of separation of their attachments was taken by Mrs. Agnew. If it be true, as testified, and I do not know that there was any contradiction of it, Miss Erwin had given for the purchase of this house on Arch street $30,000 of her own money, and now if the sale, or attempted sale, of this property, and the getting of a home in some other and more fashionable locality j involved a loss of money, part of which liad been contributed to this large extent by Miss Erwin, it would seem not only to be a reason which might have influenced her, but one which might properly influence her in coming to a determination.] [17]</p> <p>I have now gone over the case upon its facts as fully as I care to do with you. [It is not for me to present to you the details of testimony, nor is it for me to find questions of fact. That is exclusively your province. You will take them all into consideration and endeavor to reach a correct conclusion upon the one question which is presented to you, was this the will of Miss Erwin? No matter how remarkable or how strange it may appear to you, in what was done in it, does it represent her purposes and her intentions ? Or was it not the will of Miss Erwin, but a will brought about by improper influence of those who surrounded her ? And does it represent their wishes and their intentions rather than hers? In other words, did they exert undue influence upon her, and thus produce the result which we have before us ?] [18]</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Errors assigned among others were (7,15-18) above instruCT tions, quoting them.</p>

<p>Negligence — Master and servant — Defective appliances — Elevator.</p> <p>Iu an action by an employee against his employer to recover damages for personal injuries, the case is for the jury whore the evidence shows that plaintiff's duties were to carry goods from the first to the second story by means of an elevator which had no bell attached ; that on the day of the accident he looked up the elevator to ascertain whether or not any person was using it, when a weight of thirty pounds, connected with an automatic gate on the fourth floor, fell, striking the plaintiff on the head, and inflicting severe injuries; that the rope which held the weight had not been replaced by any new rope during six months preceding the accident, and was in a rotten condition ; that the block which would, or might, have prevented the fall of the weight had been long absent from its place, and there was no proof that defendant had ever inspected the rope.</p>

<p>Deed — Deed of trust — Voluntary settlement — Revocation.</p> <p>Whore a deed of trust is made for the grantor’s own personal convenience, and no beneficial interest is vested in any one until alter the death of the grantor, the disposition of property to take effect after the grantor’s death is testamentary, and therefore revocable.</p> <p>A voluntary deed of settlement will be set aside where there is an absence of a power of revocation, if it appears that the settlor was not advised of the necessity of such a provision to protect a beneficiary’s interest accruing to him after her death, against the demands of creditors.</p> <p>A woman executed a deed of trust by which the income of the property was to be paid to herself during her life, and the principal was to be divided among her three sons after her death. There was no power of revocation in the deed. She executed a second deed of trust by which she protected, as to both principal and income, a son who had become insolvent, against the claims of creditors. The second deed recited the first one, and stated that in all other respects the first deed was ratified. Subsequently she executed a will by which she provided that the daughter should share equally with the sons under the deeds of trust, and in which she repeated almost word for word the provision in favor of the insolvent son contained in the second deed of trust. By her will she also confirmed the first deed of trust. Held, (1) that the two deeds could not be regarded as separate, distinct and independent instruments, but as a combined whole, intended and designed to become operative together; (2) that the will was not in antagonism to the second deed of trust, but was intended to confirm the first deed as altered by the second ; (3) that the provision in the will for the daughter shows that it was not testatrix’s intention that the first deed should prevail against the will; (4) that the insolvent son’s creditors were not entitled to claim the fund passing to such son under the will.</p>

<p>Appeal, No. 341, Jan. T., 1897, by plaintiff, from order of C. P. Tioga Co., April T., 1895, No. 21, refusing to take off nonsuit.</p> <p>Assumpsit for breacli of contract. Before Mitchell, P. J.</p> <p>Tbe facts appear by tbe opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 444, Jan. T., 1897, by defendants, from judgment of C. P. Warren Co., June T., 1897, No. 54, on verdict for plaintiff. Trespass to recover damages for an alleged wrongful discharge from employment. Before Noyes, P. J. The court charged in part as follows : The plaintiff was advised that he was to be employed as a cutter in an establishment of merchant tailoring of a certain character wbieb was described to him.

<p>Deed of trust — Revocation—Voluntary settlement.</p> <p>Where a mother executes a voluntary deed of settlement, without power of revocation, retaining the income for herself during her lifetime, and giving the principal to her son after her death, and the purpose of the settlement fails by the death of the son without issue in the lifetime of the mother, the latter may, after the death of her son, revoke the deed of trust.</p> <p>Evidence — Competency of witness — Deed of trust.</p> <p>In a proceeding by the grantor against a trustee to revoke a deed of trust, where it appears that the grantor retained the income for her life, and gave the principal at her death to her son, and that at the time the suit was begun the son was dead, the trustee is a competent witness.</p> <p>Practice, S. C. — Findings of fact by lower court.</p> <p>The Supreme Court will not reverse the findings of fact by the lower court as to the ownership of a fund, where such findings are based upon sufficient evidence, and clear error is not made to appear.</p>

Appeal, No. 470, Jan. T., 1896, by defendant, from judgment of C. P. Lancaster Co., March T., 1894, No. 36, on verdict for plaintiff. Trespass -for personal injuries. Before Brubaker, J. The facts appear by the opinion of the Supreme Court. Defendant’s point and the answer thereto were as follows : Under all the evidence in this case the verdict of the jury should be in favor of the defendant. Answer: This point is refused. Verdict and judgment for plaintiff for $3,000.

Appeal, No. 99, Jan. T., 1898, by plaintiff, from judgment of C. P. Luzerne Co., March T., 1895, No. 189, on verdict for defendant. Seire facias sur mortgage. Before Lynch, J. At tbc trial it appeared that the balance claimed was $1,500. The defendant introduced evidence which tended to show that the whole of this sum bad been paid to M. Taylor, who was alleged to be the agent of the Patterson estate to receive such money.

<p>Appeal, No. 62, Jan. T., 1898, by plaintiff, from judgment of C. P. Blair Co., June T., 1895, No. 174, on verdict for defendant non obstante veredicto.</p> <p>Assumpsit by sheriff to recover loss occasioned by resale of real estate.</p> <p>At the trial it appeared that James Judg'e, a resident of the city of Altoona, Pa-, died June 1, 1886, intestate, seized of a house and lot in said city, and leaving to survive him a widow, Mrs. Alice Judge, and a daughter, Ella, who was then about seven years of age. Letters of administration on the estate were granted to David Koch, Esq., October 5, 1886. Under the decree of the orphans’ court, the administrator- negotiated-a loan of $600 for the payment of debts, and secured it by mortgage upon the lot, dated December 16, 1886. This mortgage was foreclosed, and a writ of levari facias issued on the judgment, to No. 170, October term, 1893, under which the mortgaged premises were sold by the sheriff, T. D. Hughes, Esq., to J. H. Miller, the defendant, for $2,525. The terms of sale were cash. The defendant failing to pay the purchase money, the sheriff duly executed and acknowledged the deed, tendered it to the purchaser, and demanded payment. Payment still being refused, upon application of the sheriff to the court, the acknowledgment of the deed was taken off. On resale the property brought $1,100. Other facts appear by the opinion of the Supreme Court.</p> <p>The jury returned a verdict for plaintiff for $1,745.62. The court reserved the question of law set out in the opinion of the Supreme Court. Subsequently judgment was entered for the defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 64, Jan. T., 1898, by defendants, from decree of C. P. Union Co., May T., 1896, No. 1, on bill in equity.'</p> <p>Bill in equity for an account. Before McClure, P. J.</p> <p>The facts appear by the previous report of the case in 183 Pa. 149.</p> <p>The court below decreed :</p> <p>1. That the balance due by the said Mrs. Anna E. Kline and Mrs. Emma M. Marsh, administratrices of the estate of Mary Eyer, deceased, to the said Erwin M. Beale, administrator cum testamento annexo of the estate of Dr. Aaron Wolf Eyer, deceased, is the sum of $3,877.36, with interest from January 10, 1898.</p> <p>2. That the said Mrs. Anna E. Kline and Mrs. Emma M. Marsh, administratrices, pay to the said Erwin M. Beale, etc., $3,877.36, with interest thereon from January 10, 1898, out of the funds and securities held in trust for Dr. Aaron Wolf Eyer by Mrs. Mary Eyer, and which at her death came into the hands of said Mrs. Anna E. Kline and Mrs. Emma M. Marsh, administratrices as aforesaid, and the accretions thereof.</p> <p>3. That the said Mrs. Anna E. Kline and Mrs. Emma M. Marsh, administratrices, etc., assign, transfer and deliver to the said Erwin M. Beale, administrator, etc., the note of Isaac A. Kline, dated May 4, 1887, at one day, $1,500, to the order of Mrs. Mary Eyer, in trust for Dr. A. W. Eyer.</p> <p>4. That the said Isaac A. Kline pay forthwith to the said Erwin M. Beale, administrator, $1,163.60, with interest thereon from January 10, 1898, and that upon said payment he be discharged from all further liability upon his said note of May 4, 1887, to the' order of Mary Eyer for $1,500.</p> <p>Errors assigned were in substance the charge of interest as above.</p>

Appeal, No. 310, Tan. T., 1898, by First Nat. Bank of Uniontown, from order of C. P. Fayette Co., June T., 1895, No. 8, dismissing exceptions to auditor’s report. Exceptions to report of R. W. Dawson, Esq., auditor. From tbe report of tlie auditor it appeared that tbe Thompson Glasg Company, a corporation of tbe state of Pennsylvania, on July 27, 1895, made an assignment for the benefit of creditors.

<p>Appeal, No. 425, Jan. T., 1897, by plaintiff, from judgment of C. P. Lancaster Co., Dec. T., 1893, No. 28, on verdict for defendant.</p> <p>Scire facias sur mortgage. Before Brubaker, J.</p> <p>The facts are substantially the same as those which appeared in the previous report of the case in 182 Pa. 604.</p> <p>The court charged in part as follows :</p> <p>[This presumption is prima facie evidence of payment; it is a strong presumption. The lapse of time can be explained bjr the plaintiff by sufficient evidence on his part to rebut the presumption. The presumption may be rebutted by showing direct payments, or by admissions, or statements or declarations by the defendant inconsistent with the presumption of payment. As I have said, the proof that must be furnished by the plaintiff must be satisfactory and convincing proof to you that the mortgage was not paid before he will be able to recover in this case.] [10]</p> <p>[Now, gentlemen, that is the main testimony that I have submitted to you to ascertain the fact whether this mortgage has been paid or not paid. First, I say to you, the law presumes it is paid, and the plaintiff is bound to furnish you convincing proof, satisfying proof, to rebut this presumption before he can recover a verdict.] [11]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (10, 11) above instructions, quoting them.</p>

<p>Equity — Accounting— Practice— Master's findings.</p> <p>■ On a bill in equity for an aeeounfc, it appeared that the plaintiff and defendant had entered into a written agreement by which the defendant was • to manufacture a certain article, and the plaintiff was to contribute his services in perfecting the article and in malting sales of it. The profits were to be divided between the parties. No time was set for the termination of the contract. Defendant testified that subsequently lie stated to plaintiff that he would not continue the agreement unless he was allowed twenty-five per cent for shop expenses. Defendant’s testimony on this point was supported by that of another witness, and it appeared also that he could not continue to manufacture the article profitably unless some allowance was made to him for shop expenses, and that without such allowance, plaintiff’s profits would have been unreasonably large. Plaintiff denied by his own testimony that any such statement had been made by defendant, but he admitted that for two years he had settled on the basis contended for by defendant. He was contradicted by a number of witnesses upon material matters. The master found in favor of the plaintiff. The court below overruled the master’s finding of fact. Held, that the decree of the court should be sustained.</p>

Appeal, No. 481, Jan. T., 1897, by defendant, from decree of C. P. York Co., on bill in equity. Bill in equity for an account. Before Bittenger, P. J. The facts appear by the opinion of the court, which is quoted in the last preceding case, ante, p. 386. Errors assigned were (1) in allowing interest upon the sum ascertained to be due; (2) in imposing the costs upon the defendant.

<p>Appeal, No. 389, Jan T., 1897, by Ida C. Bushey, from decree of O. C. York Co., sustaining exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The facts appear by the opinion of Bittengker, P. J., which was as follows:</p> <p>The testator after making several bequests to equalize his children, orders his real estate to be converted into money, and disposes of the balance remaining, as follows :</p> <p>“ And what is left over and above the above legacies shall be equally divided among my four children, or should they die before such division be made then it shall go to their issue as their parents share of my estate subject, however, to the following request. I direct that my daughter Ida C., married to William II. Bushey, shall invest her share of my estate as a first judgment or mortgage, and to receive the annual interest of the same during her natural life, and at her death it shall return to such of her children as shall then be living, and to the issue then living of such of them as may then be dead, such issue taking, and, if more than one, among themselves dividing the share or shares which their parent or parents respectively would have taken if then living.</p> <p>“ I direct that my daughter Ollie B., wife of Joseph Comfort, Carrie and Elmira, shall receive the annual interest of their individual share of the residue of my estate as it shall bo invested for them by my hereinafter named executors ; said investment not to be at the risk of my executors, but I direct them to make it as safe an investment for my children as possible; and at the death of my children above named I direct that it shall be for their issue and should either of them die without children then the share of such one shall return and be part of my estate and be divided among my living heirs.”</p> <p>It appears from the statement of counsel for the executor that the said Ida C. Bushey mentioned in the first quoted bequest is the mother of several minor children who are entitled in remainder in the legacy bequeathed and who have no guardian, and hence, to the end that the legacy may be properly awarded, for the safety of the executor and the rights of said minor children, the exceptions were filed.</p> <p>It is decided by the auditor that, notwithstanding the fact that the legacy is bequeathed subject to direction for investment in mortgage or judgment upon which investment the legatee is to receive the annual interest during life, and principal at her death to go to her children or the survivors of them and the issue of such as may be deceased, that the said Ida C. Bushey has an absolute estate, and the legacy is awarded to her absoluteljn The exceptions are to this award.</p> <p>The auditor finds that the sisters of Ida C. Bushey, Mrs. Ollie B. Comfort and the Misses Carrie and Elmira Byers take only a life estate and sustains the trust created by the will as to their shares, although the bequests to them are absolute in the first instance and are afterwards reduced to life estates by the direction of the testator, that their shares shall be held by trustees •and the income paid to them annually for life, and that at their death the principal to go to their children in remainder, or in default of children then among testator’s living heirs.</p> <p>■ This ruling is based upon a fair and proper construction of the language of the whole will. “ Every will is to be construed from its four corners, to arrive at the true intention of the testator. Decisions upon other wills may assist, but cannot control the construction. The order in which clevises are made in wills, is rarely of much importance: ” Fox’s Appeal, 99 Pa. 382. The question to be settled in giving construction to a will is not so much, what did the testator mean, as in the meaning of the words he has employed: Hancock’s Appeal, 112 Pa. 532. But words must be read according to their plain ordinary meaning, taking the immediate context into view: Howe’s Appeal, 126 Pa. 233.</p> <p>In regard to the bequest to Ida C. Bushey the auditor decides that the language of testator “subject to the following request,” and though immediately followed by the positive direction to invest, and for the disposition of the interest during the life of the legatee and the principal at her death, is only precatory, and therefore does not affect her bequest, so as to limit it during the life of said Ida C. Bushey. We are aware that in Pennsylvania mere precatory words will not convert a legatee or devisee of an absolute gift into a trustee, unless it affirmatively appear that they were intended to be imperative. But words expressive of a desire, etc., as to the direct disposition of the estate will constitute a bequest or devise.</p> <p>All expressions in a will indicative of a testator’s wish or will are commands: Burt v. Herron, 66 Pa. 400. It is different when a testator, having made a disposition, expresses a desire that the devisee should make a certain use of his bounty: Hopkins v. (Hunt, 111 Pa. 287. A will must be so construed as to give effect to every part of it and harmony to the whole instrument: MeDevitt’s Appeal, 113 Pa. 103. Although a foe be given in the first part of a will, it may be restrained by subsequent words so as to convert it into a life estate: Ulrich’s Appeal, 86 Pa. 386. In a will “ request ” may impose a duty: Hutton v. Hutton, 41 N. J. E. 267; Colton v. Colton, 127 U. S. 300.</p> <p>In the light of these well-established principles, governing the constructions of wills, can the auditor be sustained? Do not the words “subject to the following request” coupled with the direction to invest immediately following, unmistakably express the intention of the testator to create a trust for the benefit of Ida C. Bushey’s children, as he did for the children of his other legatees? Especially in view of the fact that the whole will shows the testator’s intention to equalize his children. We think the only difference in the devise of the shares of the testator’s children in case of Ida C. Bushey is that she is to act as trustee of the shares devised, while in case of the other daughters the executor is made the trustee. A trust is created in the will for all of their respective children. By the express language used, the parents are only entitled to the annual interest for life, and at their respective deaths the devises are in remainder as provided in the will. See MeDevitt’s Appeal, supra; Affolter v. May. 115 Pa. 54; Gross, Adm., v. Strominger, 178 Pa. 64; Good v. Fichtliorn, 144 Pa. 287; Presbyterian, etc., Missions v. Gulp, 151 Pa. 467.</p> <p>The auditor therefore erred in holding that Ida C. Bushe3r has an absolute estate in her legacy, and in awarding it to her absolutely.</p> <p>And now, October 11, 1897, the report, so far as the award of the share of Ida C. Bushey, is set aside, and the legacy is ordered to be paid to her, only upon her giving security as required in case of devises of life estates in personalty, or that it be invested in a mortgage or judgment in accordance with the direction in the will, the executor seeing that the same is properly and safely executed and entered or recorded, securing the fund.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>

Appeal, No. 220, Jan. T., 1897, by J. Adam Cake, from decree of O. C. Northumberland Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report. Before Savidge, P. J. The facts appear by the report of the auditor, J. Simpson Kline, Esq., which was as follows: FINDINGS OE EAOT. From the evidence produced before him your auditor finds the following facts : 1.

<p>Appeal, No. 383, Jan. T., 1898, by plaintiff, from order of C. P. Northumberland Co., Dee. T., 1895, No. 71, refusing to take off nonsuit.</p> <p>Trespass for alleged malpractice.</p> <p>At the trial it appeared that on Friday, May 4, 1894, plaintiff’s ankle joint was seriously injured by a fall of rock while he was working in a coal mine. The defendant was called as for cross-examination, and explained his method of treating the case. Dr. P. H. Penn, a witness for plaintiff, testified that the case had been properly treated. He further testified as follows:</p> <p>“ Q. You consider that a pretty good job, do you ? A. I consider tliere is a good deal of motion in this joint for the amount of injury done it. Q. Then doctor, in your opinion, from what you have heard of the testimony, and your examination of this man, has it been treated skilfully? A. Well, I think it lias, under the circumstances. ... 1 think the man is pretty lucky to have a leg on him at all.”</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off, Gordon, P. J., of the 46th judicial district, specially presiding, filing the following opinion:</p> <p>I bave examined the testimony in this case and remain of the opinion that the judgment of nonsuit was properly entered. There was no evidence of negligence or uuskilfulness on the part of the defendant, who, as a practicing physician, attended the plaintiff upon having his ankle and foot crushed by a fall of rock in a coal mine. Tire mode of treatment was explained by the defendant on being called by the plaintiff as a witness as on cross-examination, and the only other medical testimony was that of Dr. Penn, who approved of the mode of treatment as explained by the defendant. The evidence conclusively shows that the defendant’s injury was a serious one and that his foot is in much better shape than could bave been expected at the time. In my opinion it would not have been right to have permitted the jury to pass upon tlie question of damages when tliere was no such evidence as would warrant bolding the defendant liable. The theory advanced by plaintiff’s counsel, upon which be bases bis charge of negligence, is very plausible and was presented foi’cibly, but has no evidence to base it upon. As tlie facts proved did not justify sending the case to the jury, I see no ground for considering plaintiff’s application for a new trial although presented after the time fixed by the rules of court.</p> <p>Therefore, now August 80, 1897, it is ordered that the rule be discharged and that judgment in favor of the defendant be entered upon the nonsuit.</p> <p>JError assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 416, Jan. T., 1898, by plaintiff, from judgment of C. P. Northumberland Co., May T., 1896, No. 486, on verdict for defendant.</p> <p>Trespass for personal injuries. Before Savidge, P. J.</p> <p>The facts appear by the charge of the court below which was in part as follows:</p> <p>The injury for which the plaintiff asks damage from the defendant, occurred on the night of February 16, 1895, and was occasioned by the overturning of a sleigh in which he was being conveyed by his grandson from a church where he had been attending services to the home of his daughter, some three or four miles distant. The point at which the accident occurred was three or four hundred feet from the church, on what is known as the Paxinos and Elysbury road, and about the same distance from the point where this road leads into the Danville turnpike, the said turnpike constituting the main thoroughfare through the village of Elysburg. There had been an extraordinary snowstorm, beginning on the Thursday a week preceding the accident and continuing until the Saturday or Sunday preceding the accident. It is unquestioned that this ivas the severest storm experienced in many years. Not only was the fall of snow unusual, but there was an extraordinary amount of drifting, so that the roads all through the country were filled with drifted snow, and were in an impassable condition. At the point of the accident there was a drift lying across the road diagonally, according to the undisputed testimony, for a distance of about fifteen feet. On either side of this drift the road was comparatively free from snow, so that teams could pass and repass easily, and go upon any portion of the road to its full width. That is not disputed by the plaintiff. It became necessary, after the storm had subsided, to open the highways of the township, and the supervisors accordingly began to do this on Monday morning. There is no pretense that they did not act promptly in this behalf, it not being contended that they could have begun the performance of their duties at an earlier period, the storm having subsided late on Saturday, or, perhaps, not until sometime on Sunday.</p> <p>It is the duty of the supervisors to keep their roads clear of impediments, generally speaking, so that persons having occasion to be upon them may travel to and fro with safety. They must make them so as to be easy and convenient to the passage of the traveling public. But this must be reasonably understood. Where the clearing of the public highways of all impediments would be impossible, it is not required at the hands of the authorities. There is no allegation on the part of the plaintiff that the road at this point was out of repair, and all the testimony, both of the plaintiff and of the defendant, shows that this road was in perfect repair at the time, and at all times was one of the best pieces of road in the township. It is not on that account that the authorities are complained of. The alleged dangerous condition was wholly on account of the snow bank in the road. On Monday, according to the undisputed testimon3r, a way was cut through this bank sufficient to permit of the passage of a sleigh or sled, and a day or two on, the cut was widened. There is a mass of testimony here, offered both on the part of the plaintiff and defendant, to show that this passageway was not only wide enough for a single sleigh or sled to pass through, but for two sleighs to pass, going in opposite directions. Several witnesses for the plaintiff testified that wa3'\ I do not know of any testimony of airy witness offered on behalf of the plaintiff to the effect that there was not at least sufficient room for a single sleigh to pass through.</p> <p>There had been a protracted meeting in progress at one of the churches at Elysburg, prior to the snowstorm, which had been interrupted for a few days during or subsequent to the storm, but reopened two or three da3rs prior to the date of the accident. During the latter part of the week of the accident many people had driven to and fro through this cut in the snow, and there can be no question that the road was opened there at least of sufficient width for the passage of a sleigh or sled in safety. As many as sixt3r vehicles came and went each evening to and from the church. Some of the witnesses say as many as one hundred. It cannot be pretended that the way was unsafe, provided the traveler kept to the beaten track, because there is no evidence to show any considerable unevenness in the beaten track of the passageway cut through this bank by the supervisors. The driver, the plaintiff’s grandson, accounts for tbe accident in tliis way: he says the runner of the sleigh passed up on the bank, which is to say that he got out of the beaten track, and that when it so passed up on the hank at the side of the track the sleigh turned over. This was corroborated by the testimony of one or more of the defendant’s witnesses, who say that they saw there the next morning the mark of the runner where it passed up on the bank of snow at the side of the road opened up by the supervisors. . . .</p> <p>No necessity exists for the opening of the road to its entire width and in most instances, in the case of such a storm as this, it would be impossible for the supervisors to open the roads over the township within a reasonable time if they were required to sbovel the snow off the way from side to side; and as they are hound, with reasonable promptitude to open up all the public ways of the township, this could not be done. . . . Hence, I cannot resist the conclusion, drawn from the plaintiff’s testimony, unaided by that offered by the defendant, that the supervisors did their full duty in the premises. . . .</p> <p>Having, therefore, failed to show negligence in the supervisors, the plaintiff cannot be permitted to recover.</p> <p>There is another reason why, perhaps, a verdict could not be permitted for the plaintiff, even though neglect had been shown on the part of the supervisors, it is a principle of law that where the plaintiff himself is negligent he cannot recover, no matter how culpable tlie negligence of the defendant. I am inclined to think that the case shows neglect on the part of the plaintiff. It is true he was not the driver. It is true that he would not he responsible for tbe negligence of the driver under the law, and had he passed through this cut in the snow a mere passenger by invitation, without knowledge of the condition of the road, there could be no negligence imputed to him ; but lie knew the condition of this road, according to Ms own testimony. He bad passed over it several times within three or four days preceding the accident. He had passed over it on foot and in vehicles and he was bound to take notice of its condition, under tlie law, so that the law visits him with the knowledge of what the actual condition of that road was at that time. Had it been a dangerous road he should have called the attention of the driver to the fact, and should either have required the driver to get out and examine and look ahead, or gotten out himself, oi should have been looking out. To say the least of it, if he chose to remain in the sleigh, he should have been looking out for danger as he passed through. This, according to his own testimony, he did not do, and as there was a safe passage it was the duty of the driver to see to it that he kept himself in the passageway provided.</p> <p>It is true it was dark, but that is no excuse. Both the driver and Mr. Lynn knew the condition of that road. They knew it could be passed safely in the daytime, and if they undertook to pass it in the night-time when it was dark they should have used care accordingly. If it was necessary for the driver to get out, that much was required of him. But I am inclined to think from the testimony that he undertook to turn out to pass Mrs. Walise, her sister and a gentleman now in the West, who were passing through ahead of him. That would seem pretty clear from all the testimony in the case. If he undertook to pass by them in this place knowing what was there, that on each side there was a bank of snow, and knowing if one of the runners mounted the bank the sleigh would turn over; in all probability^, he undertook that passage at his peril, because it was not necessary. It was only about fifteen feet through this cut. All the testimony on both sides shows that. They were both going in the same direction and there was no occasion for him to undertake to pass them. All he had to do was to follow them through. If it was a dangerous place, ordinary prudence would require that he should not go faster than a walk, esjjecially as the passage was so short, and it cannot be pretended that there was any necessity for him to undertake to pass these people who were going through there on foot. If he undertook to do so, as we may fairly conclude from all the testimony in the case, and in the attempt drove on the bank, he took the risk, and could not complain even though negligence on the part of the supervisors had been shown, which, as I have stated to you before, I cannot allow.</p> <p>It has been contended that it was the duty of the supervisors to either blockade this road or exhibit danger signals. I do not think it was their duty to do either. The road was opened of sufficient width under the circumstances through this bank. Everybody^ knew of a storm of this kind; it was common knowledge, and the plaintiff knew of it. He knew the roads had drifted, and lie knew of this very drift. It was the duty of every traveler on that road to be on the lookout for drifts and snow banks and narrow ways through them. It is a matter of common knowledge that is the ordinary method of opening-roads in the country; that is, to open them of sufficient width for a sleigh to pass through in safety, and not the entire width of the road ; and travelers upon the township roads are bound to expect that the roads are opened in the usual and ordinary way, and not that they are opened out the entire width. And I question whether a stranger to that particular road, if he had met with an accident in passing through a drift of this kind, could have attributed negligence to this defendant by reason of its supervisors not hanging out danger signals. However that may be, this plaintiff cannot, because he knew of the danger as well as the supervisors, and the signals would have given him no more knowledge than lie had.</p> <p>If this had been a street in a town or a city the case would have been different. The rule is different there. Municipal authorities are obliged to open up their streets as soon as they conveniently and reasonably can to their full width. They are required to do this because it is reasonable and right, and for the same reason the supervisors having charge of country roads, covering many miles, exposed and drifted, shut and closed, by the snow during any severe storm are not required to open up their ways to the full width. Why ? Because it would not be reasonable and right to require it, and because there is no necessity for it, as there is in a city and a town; because it would be a greater burden than the people ought to stand or could stand, and because it never has been the custom to open up public roads in this Avay.</p> <p>The counsel for the plaintiff has cited the case of Susan Carr v. City of Easton, 142 Pa. 189. In that case the question of defendant’s negligence was not passed upon by the Supreme Court, and I rule this case mainly on that question. The case was sent back with a new venire, and we may reasonably suppose that the Supreme Court thought that there was sirfficient evidence of defendant’s negligence to submit the case to the jury, or they would not have sent it back. That was a city, and the way opened there, if I remember correctly, was over the street car tracks, in the center of the street, and practically on tlie line of the street car tracks. The same rule that would hold there does not maintain as to country roads. In the borough of Carlisle against Brisbin, cited by plaintiff’s counsel, the injury was occasioned by a stone pile in the center of the street, left there by the borough authorities negligently, and covered with snow. In the case of Erie City against Scliwingle there was such evidence as showed that the road provided to the water’s edge was insufficient in width for travel, and the case had to be left to the jury on the question of the defendant’s negligence.</p> <p>The cases cited are different from the one before us. Here, in my judgment, there is no evidence to show that under all the circumstances, considering the extent of the storm, its severity, the unusual piling up of the snow in the roads all over tbe township and everywhere else in the country, it being conceded that aside from the drift the road was in perfect condition — the supervisors have been negligent in the performance of their duty.</p> <p>[Now I may be wrong in my conclusions. I have kept close run of the testimony, and I have given full weight to the argument of counsel for the plaintiff and to his authorities; on an occasion of this kind, the defendants were required to do no more than thejr actually did, by opening up this way through this bank where hundreds of teams had passed to and fro in safety, and where beyond all question a team could pass if driven with reasonable care. Hence I say to you that your verdict should be for the defendant and you maj'- return your verdict accordingly.] [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was (5) above instruction, quoting it.</p>

Appeal, No. 166, Jan. T., 1897, by-Joseph W. H. Malmedie, garnishee, from order of C. P. No. 8, Phila. Co., Dec. T., 1896, No. 772J, entering judgment against garnishee on answers. Rule for judgment against garnishee for want of sufficient answers. The facts appear by the opinion of the Supreme Court. Error assigned was in entering judgment against garnishee for want of sufficient answers.

<p>Mortgage — Set-off—Notice—Assignment.</p> <p>The assignee of a mortgage, although allowed to sue in his own name, takes it subject to all the equities in favor of the mortgagor existing at the time of the assignment.</p> <p>Where a mortgage is given to secure the payment of certain promissory notes made by the mortgagor, which notes are renewed at- maturity, and before the renewal notes are paid the mortgage is assigned to a third per son to secure the mortgagee’s notes held by him, he cannot enforce the collection of the mortgagee’s notes by scire iludas on the mortgage.</p> <p>Mortgage — Assignment—Parol testimony — Evidence—Estoppel.</p> <p>On a scire facias sur mortgage by an assignee of a mortgage against the mortgagor, parol testimony is admissible to prove that the mortgage was to be held as security for certain promissory notes owing by the mortgagor to the mortgagee, and that the mortgagee was not to assign the mortgage to other persons.</p> <p>On a scire facias sur mortgage by an assignee of the mortgage against the mortgagor, where it appears that there was an agreement between the mortgagor and the mortgagee that the mortgage was to be security for certain promissory notes, and was not to be assigned, letters written by the executor of the mortgagor after the assignment to the assignee stating that nothing had been paid on account of the mortgage by the mortgagor, will not create au estoppel against the mortgagor’s estate.</p> <p>Evidence — Gross-examination—Discretion of trial court.</p> <p>The Supreme Court will not review the discretion of the trial court in excluding unimportant questions put to a witness on cross-examination.</p>

<p>Negligence — Railroads—Blowing whistle under street bridge.</p> <p>It is not negligence per se to blow a locomotive whistle under a bridge which carries a street over a railroad.</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband, a nonsuit is properly entered where it appears that the deceased was driving a team of horses over a bridge across a railroad in a city, and that a locomotive whistle was sounded immediately under the bridge when the deceased was upon it causing his horses to frighten and run away; there being no evidence that the whistle was not sounded for a proper purpose.</p> <p>The rule applicable to grade crossings, that it is negligence in the railroad company not to give warning on approaching them, has no application to under and over crossings of streets in a city-.</p>

<p>Referees — Findings of fact by — Review—Practice, Supreme Court.</p> <p>A referee’s finding of fact sustained by the court below will not be reversed by the Supreme Court unless exceptions specify the deficiencies in it, and show that it is legally insufficient to sustain the result of which complaint is made. Alleged errors to conclusions of law which are applicable to and in conformity with findings of fact which have been sustained are only indirect attacks, after a direct attack has proved fruitless.</p> <p>Equity — Jurisdiction—Convenience of remedy.</p> <p>A bill in equity may be sustained solely on the ground that it is the most convenient remedy: Appeal of Brush Electric Co., 114 Pa. 574. This is especially so where the remedy afforded by a court of law is obviously inconvenient and of doubtful adequacy.</p> <p>Equity — Jurisdiction—Specific performance — Contract to supply natural gas — Defense based on defendant's unlawful act.</p> <p>A court of equity lias jurisdiction to specifically enforce a contract to supply natural gas.</p> <p>A contract by a natural gas company organized under the laws of Pennsylvania, by which it is agreed that all of the surplus gas of the company shall be sold and delivered to another company, may be specifically enforced.</p> <p>The law does not look with favor upon a defense based on the unlawful act of the party interposing it.</p>

Appeal, No. 79, Jan. T., 1897, by defendant, from judgment of Superior Court, Nov. T., 1896, No. 113, affirming judgment of O. P. No. 4, Phila. Co., Dec. T., 1894, No. 275. Sterrett, C. J., and Williams, J., dissent. Appeal from Superior Court. Tlie facts appear from the report of the case in 3 Pa. Superior Ct. 254. Error assigned was the judgment of the Superior Court.

<p>Turnpike companies — Street railway companies — Abandonment of franchise — Estoppel—Acts of March 15, 1865, and April 5, 1870.</p> <p>Tho Act of March 15, 1865, P. L. 856, authorized the West Chester Turnpike Road Company to purchase the franchises of the Delaware County Passenger Railway Company', “ provided that the said turnpike road company may' remove the track and superstructure of said railroad, and dispose of tho materials thereof and of the other property so purchased; upon condition, however, that they shall within three months after the removal of any part of said track and superstructure restore that part of the road to as good order and condition for jjublic travel as the same was in before said railroad track was laid.” The turnpike company operated the railway for less than a year, when it took up the rails and restored the surface so as to permit safe travel by vehicles. The minutes and records of the company' show that this was done because the operation of the railway was unprofitable. By the Act of April 5, 1870, P. L. 890, the city of Philadelphia was authorized to open, grade and pave Market street front Forty-third street, west to the county line, as soon as the Philadelphia & West Chester Turnpike Road Company “ had given up and released free of charge to the city of Philadelphia all the interest of said company in that portion of their road occupying the bed of Market street within the limits of said city.” In 1872, the turnpike company executed to the city of Philadelphia a release of all its “ right, title and interest, and corporate franchises and privileges of the said company” in Market street, which it had acquired “ by virtue of its corporate rights therein and thereto, or otherwise howsoever.” Nothing relating to the railroad was reserved. The city subsequently opened, widened and paved Market street to the county line and, in 1881, with the consent of the cily, the West Philadelphia Passenger Railway Company extended its line to the city boundary, and subsequently constructed a double line trolley railway thereon, and repaved Market street from curb to curb with an improved pavement. In 1892, the turnpike company asserted its right to reconstruct a railway on Market street. Held, (1) that both the West Philadelphia Passenger Railway Company and the city of Philadelphia had a right to assume that the turnpike company had forever relinquished its right to build a railroad, and it, having misled both, was estopped from asserting that right; (2) that the evidence was sufficient to show that the turnpike company had in fact abandoned the right to build a railway; (8) that under the act of 1870, the turnpike company had the right to release its franchise to maintain a railway; (4) that the release executed to the city of Philadelphia included the right to maintain a street railway on Market street; (5) that it was not error to enter a decree perpetually enjoining the turnpike company from laying street railway tracks and operating a passenger railway on Market street.</p> <p>Hinehman v. Philadelphia & West Chester Turnpike Road Co., 160 Pa. 150, commented upon and explained.</p>

<p>Appeal, No. 107, Jan. T., 1898, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1894, No. 484, on bill in equity.</p>

<p>Appeal, No. 108, Jan. T., 1898, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1894, No. 435, on bill in equity.</p>

Appeal, No. 152, Jan. T., 1897, by defendants, from judgment of C. P. No. 2, Pliila. Co., Dec. T., 1895, No. 577, on verdict for plaintiff. Mitchell and Green, JJ., dissent. Trespass for personal injuries by a child seven years old* Before Sulzberger, J. Tbe facts appear by tbe opinion of tbe Supreme Court. Defendants’ points and the answers thereto among others were as follows: 2.

Appeal, No. 284, Jan. T., 1897, by-Louisa R. Maull et al., from decree of O. C. Phila. Co., overruling exceptions to adjudication. Exceptions to adjudication. The facts appear by the opinion of the Supreme Court. .Error assigned was in overruling exceptions to the adjudication of Ashman, J.

<p>Divorce — Gruel and barbarous treatment.</p> <p>Cruelty as a ground for divorce is such conduct in one of the married parties as renders cohabitation dangerous to the physical safety of the other, or creates in the other such reasonable apprehension of bodily harm as materially to interfere with tho discharge oí marital duty.</p> <p>Divorce— Venereal disease.</p> <p>A wife is entitled to a divorce where her husband has venereal disease, rendering cohabitation dangerous to her health and life.</p>

<p>Practice, Supreme Gourt — Exception to charge — Assignments of error— Stenographers.</p> <p>There must be an exception noted to the charge, before a verdict, to a complaining party to successfully assign error thereto, after-wards. It is not necessary to specify the error at that time; but counsel must then indicate their dissent from the law as announced by the judge, by having noted an exception to the charge, and must also request, before verdict, that the charge be reduced to writing from the stenographer’s notes and filed of record, and that he does so request must appear of record. If the record does not so show, his appeal will be quashed on motion of the opposite counsel.</p>

Appeal, No. 110, Jan. T., 1897, by defendant, from order of C. P. No. 3, Pbila. Co., Dec. T., 1892, No. 949, dismissing exceptions to auditor’s report. Exceptions to auditor’s report. The case was referred to Charles Biddle, Esq., as auditor, who reported the facts to be as follows: FINDINGS OF FACT RELATING TO THE CLAIM BASED UPON THE SHARES OF PENNSYLVANIA RAILROAD STOCK AND UPON THE PITTSBURG, TITUSVILLE & BUFFALO RAILROAD STOCK.

<p>Appeal, No. 111, Jan. T., 1897, by defendant, from decree of C. P. No. 3, Phila. Co., June T., 1893, No. 701, dismissing bill in equity.</p> <p>Exceptions to master’s report.</p> <p>The case was referred to G. Heide Norris, Esq., as master, who reported as follows:</p> <p>FINDINGS OF FACTS.</p> <p>The master finds the following facts:</p> <p>1. Prior to May 21, 1893, the plaintiff, Annie G. Summers, a married woman, wife of William D. Summers, was the owner, inter alia, of three hundred shares of the capital stock of the Pennsylvania li. II. Co., and prior to January 21,1887, was the owner of one hundred shares of the capital stock of the Green & Coates Street Passenger Railway Company.</p> <p>2. The plaintiff had, for a number of years, entrusted the management of all her securities and their custody to her husband for the purpose of exchanging or of reinvesting the proceeds of them in other securities in his discretion. She trusted entirely to him in the management of her estate, and was governed by his advice in the matter.</p> <p>3. On May 21,1883, at the request of her husband, the plaintiff delivered to him three certificates of one hundred shares each for the three hundred shares of Pennsylvania R. R. stock, and signed and delivered to him three irrevocable blank powers of attorney in regular form, to transfer the same. On January 21,1887, she delivered to him a certificate for one hundred shares of the Green & Coates Street Passenger Railway stock, accompanied by similar powers of attorney. All of the above powers were witnessed by her husband.</p> <p>4. Mr. Summers procured the certificates and powers of attorney for the two blocks of stock from his wife for the stated purposes, understood by her, of loaning them to Robert Laughlin, of the firm of Laughlin & McManus, the defendants, for use as collateral in the business of the firm. He informed his wife that Mr. Laughlin had requested the loan of these stocks, as they could be more readily used to borrow money upon than other securities in the possession of the firm. He told his wife that he would get value for them.</p> <p>5. Mr. Summers had been for twelve or thirteen years engaged in extensive speculative transactions through Laughlin & McManus, and also on joint account with members of that firm, and had also been speculating through a number of other brokers. Mrs. Summers knew that her husband had dealings with brokers, but did not know the nature of the business when she transferred the stocks in controversy.</p> <p>6. The three hundred shares of Pennsylvania stock were delivered by Mr. Summers to Laughlin & McManus, accompanied by the three powers of attorney, immediately after the execution of the same, on May 21, 1883, and the one hundred shares of the Green & Coates stock were delivered to them in like manner on January 21, 1887.</p> <p>7. Upon the delivery of the three hundred shares of Pennsylvania stock to Laughlin & McManus, they handed to Mr. Summers, by way of security, and as an exchange of collateral, between one thousand two hundred and one thousand five hundred shares of the Pittsburg, Titusville & Buffalo stock, which were of about equal value at the time. This stock was subsequently handed back by Mr. Summers to Laughlin & McManus, without Mrs. Summers’s knowledge, as collateral in certain speculative transactions of his, but there is no evidence that she was aware that her husband had received this stock in exchange or as security for her Pennsylvania Railroad stocks. The Green & Coates stock was given to Laughlin & McManus by Mr. Summers, without the knowledge of his wife, as collateral in the purchase of one hundred shares of Columbia gas stock for him by them. These one hundred shares were afterwards sold by him. Laughlin and McManus knew that the Pennsylvania and Green & Coates stock originally belonged to Mrs. Summers, for the certificates were in her name when they came into their possession.</p> <p>8. These stocks were used as collateral, and money borrowed upon them by Laughlin & McManus, from time to time, with Mr. Summers’s knowledge, and they were transferred out of Mrs. Summers’s name, as follows: One hundred shares of Pennsylvania to Shoemaker & Co., July 10, 1891; two hundred shares of Pennsylvania to Walter H. Snyder, May 28, 1891; one hundred shares of Green & Coates to Walter H. Snyder, December 15,1891. New powers were executed by Mrs. Summers, at her husband’s request, and witnessed by him on August 23 and September 13,1889, for the two hundred shares of Pennsylvania transferred to Walter H. Snyder. Mr. Summers knew at the time that the bank had required the new powers in order to make transfers.</p> <p>9. Both before and after the transfer out of Mrs. Summers’s name, the dividends were regularly collected on the two blocks of stock by Mr. Summers for his wife. Before the transfer they were collected on orders signed by Mrs. Summers, and afterwards by him through the instrumentality of Laughlin & McManus.</p> <p>10. Mrs. Summers never had any personal dealings with Laughlin & McManus, her husband always acting as the intermediary, but she knew that the stocks had been put into their possession. She never made any demand from them from the time o£ delivery, March 21, 1883, and January 21, 1889, until the bill was filed, July 17,1893. She knew that they had been transferred out of her name in October, 1891. She never personally received anything for these stocks.</p> <p>11. The two blocks of stock were treated by the receiver and by Laughlin & McManus as having been deposited with them as the property of, and as security for, the transactions of Mr. Summers. These transactions were speculative, but they appear to have been regular contracts of purchase and sale as far as Laughlin & McManus were concerned. With the usual result in such cases Mr. Summers made heavy losses, involving most of the securities belonging to his wife which were capable of hypothecation.</p> <p>12. At the time of the failure of Laughlin & McManus, on March 2, 1893, they had not returned either block of stock to Mr. Summers or to the plaintiff, but the receiver credited Mr. Summers’s account on the books of Laughlin & McManus with the sum of $28,125 received as the proceeds of three hundred shares of Pennsylvania stock, and one hundred shares of Green & Coates stock. Mr. Summers owed Laughlin & McManus at the time of their failure about $100,000 on various accounts.</p> <p>13. When the receiver was appointed there were in the possession of the Farmers’ & Mechanics’ Bank certain shares of stock of various corporations and other securities of the value of $103,288.29, as collateral for the loan to Laughlin & Mc-Manus of $89,500. The difference between the value of the securities held by the Farmers’ & Mechanics’ Bank and the debt due by Laughlin & McManus, after adjusting the interest, amounted to $12,276.19 in their favor, but among tire securities in the bands of the bank were $27,790.52 in public building due bills which were claimed by Douglass Bros., who bad, according to their claim, merely hypothecated the due bills in a lot of $150,990.04 with Laughlin & McManus for a loan of over $117,000. For various reasons, as these due bills were in danger of being sacrificed, your honorable court made an order under date December 20, 1893, on petition, in consequence of which collection was made upon the building certificates by joint action of Douglass Bros, and the receiver, and the sum of $21,498.88 was conceded to Douglass Bros., and $6,000 to the receiver, and the said amounts respectively paid to them. This division was made in respect of the said entire blocks of building certificates, in compromise as aforesaid of conflicting claims to ownership by Douglass Bros, and the receiver. This $6,000 in due bills was all that the receiver actually obtained in adjustment of the indebtedness between Laughlin & McManus and the various parties, including the Farmers’ & Mechanics’ Bank,- who held the public building due bills as collateral for loans to Laughlin & McManus, and the claim of the Farmers’ & Mechanics’ Bank having thus been settled, it handed over to the receiver ten shares of Kensington Bank stocks as surplus collateral.</p> <p>14. Among the securities with the Farmers’ & Mechanics’ Bank was a block of three hundred shares of Pennsylvania Bail-road stock and one hundred shares of Green & Coates stock, deposited January 5, 1893. These were sold in March, 1893, for the sum of $28,125.</p> <p>Two hundred of these shares of Pennsylvania stock were in a certificate issued in place of a certificate for a like number of shares in the name of Annie G. Summers, and the one hundred shares of Green & Coates stock were in a certificate likewise issued in the place of one for a similar amount in Mrs. Summers’s ñamé. The above may be considered as the stock originally belonging to her, but it is impossible to thus identify the other one hundred shares of Pennsylvania stock, as they'had passed through a number of hands and were mixed up with other blocks of the same stock in which Laughlin & McManus were interested. The evidence on the subject is that one hundred shares of Pennsylvania stock passed under the power dated March 21, 1883, from Mrs. Summers to Walter H. Snyder. He transferred them to Shoemaker & Co., and on March 11, 1892, Shoemaker & Co. transferred a block of one thousand shares back to Walter H. Snyder.</p> <p>CONCLUSIONS.</p> <p>It is difficult to see, under the facts as found, how the plaintiff is entitled to recover her stock or the value thereof from the receiver, by way of preference over the other creditors, .as prayed for in the bill. According to her own testimony and that of her husband she loaned both blocks of stock to Laughlin & McManus to use as collateral. This they proceeded to do from the time of delivery, and thus they appeared to have remained until the receiver was appointed. Whether Laughlin & McManus used the money raised upon the stocks for their own use, or for the use of Mr. Summers in speculation, is of no moment in this controversy, for having used the stock in one way or the other in accordance with the purposes for which the plaintiff says it was put in their possession, they cannot be said to be guilty of any breach of trust. If they have not committed a breach of trust, the plaintiff is not entitled to follow, claim or recover the value of the stocks by way of preference from the receiver. She is no more than a common creditor in this respect: Bank of Commerce v. McMurray, 98 Pa. 538. Her counsel now concedes that she cannot recover the stock itself or its full value, but claims only whatever may be the value of it beyond the amount for which it was hypothecated by Laughlin & Mc-Manus.</p> <p>The total indebtedness to the Farmers’ & Mechanics’ Bank was $89,500, and the value of the stocks deposited at various times was $103,287.29. The list of collateral produced from the books shows the approximate value of each item of collateral, and the master is asked to apportion the equity of the plaintiff’s stock, hnd to decide that she is entitled to a preference as to that.</p> <p>Now, while it may be said that she has succeeded in directly tracing some of the stocks formerly belonging to her from Laughlin & McManus to the Farmers’ & Mechanics’ Bank they were converted long before the receivership, and so commingled with other securities as collateral that the master is of opinion that she cannot point out or claim as belonging to her any proportion of the balance of the proceeds of the sale of all of the securities after the loan was repaid. It is true that the stocks were not sold or turned into cash until after the appointment of the receiver, but they had passed out of the control of Laughlin & McManus, and were sold, not by them or the receiver, but by the pledgee who had held them since January, 1893, if not before that time. The balance after the sale of all the collateral was turned over to the receiver or accounted for to him, but it is impossible to distinguish, under the circumstances, between any right of the plaintiff to share in the fund thus realized and the right of the owners of the other stocks or of every other creditor. We do not know how much the stocks were hypothecated for, what was the amount loaned on their security from time to time, or what was the proportional amount loaned on .the other securities. None of these except the Kensington Bank stock belonged to Laughlin & McManus. The proportional value of the securities to the balance furnishes no equitable standard of adjustment under such circumstances.</p> <p>If -there ever was a case in which the rule forbidding recovery by way of preference, where there is a commingling of securities, or where the means of ascertainment of the specific property fails should be applied, this seems to be one of the most appropriate: Thompson’s App., 22 Pa. 16; People’s Bank’s App., 93 Pa. 107; Freiberg v. Stoddard, 161 Pa. 259; Jamison’s Estate, 163 Pa. 143.</p> <p>Moreover, it would seem to the master that if the stocks were given by Mrs. Summers to Laughlin & McManus for use as collateral, the fact that there was value in them above the amount borrowed can make no difference to the plaintiff’s claim. There was no breach of trust as regards the use of the stocks, and she is but a common creditor, if creditor at all, in this respect, and should claim before the auditor of the receiver’s account the balance, whatever it maybe, as a part of the‘actual value of the stock.</p> <p>The plaintiff’s counsel placed great reliance upon the testimony of Mr. Summers that Mr. Laughlin had told him on one occasion that the Pennsylvania stock would never go out of his wife’s name, and not to worry over it, and also: that after the Green & Coates stock had been transferred from Mrs. Summers’s name, on questioning Mr. Laughlin about it, he had said to Mr. Summers that “ after this little scare is over, I will see that it is placed back.”</p> <p>Neither of these conversations were denied by Mr. Laughlin, but the master is unable to see how the testimony, if true, furthers the contention of the plaintiff for a preference.</p> <p>It appeared in the testimony that the stock was transferred out of Mrs. Summers’s name in consequence of the requirements of the bank with which it was used as collateral. The lender was unwilling to loan money on stock in the name of a married woman without actual transfer. Now, as Mrs. Summers assented to the use of her stock as collateral by Laughlin & Mc-Manus, her assent carried with it the right to do what was necessary in carrying out such purpose. There is nothing to show that she made any conditions about transfer from her name when she handed the stock to her husband, and in giving him the powers of attorney she furnished him with the appropriate means by which the transfers were made possible. He in turn handed these papers to Laughlin & McManus. Their assurance (which there is nothing to show occurred, when they received the Pennsylvania stock originally) that it should never go out of Mrs. Summers’s name, and that the Green & Coates stock would be placed back in her name, gives her no further rights than such as she would have as an ordinary creditor as lender of the stock to them for their use as collateral.</p> <p>Mr. Summers said that he knew that his wife’s stock was being used as collateral, and he assented to such use. He certainly had sufficient experience in stock transactions to know what that meant, and cannot rely upon a promise inconsistent with the rise for which, according to his own testimony, he delivered it. It is also in evidence that Mr. Summers actually knew that some of the stocks were to be transferred out of his wife’s name, for new powers of attorney for two hundred shares were executed by her on August 23 and September 13, 1889, for this purpose; the demand of the bank which held them as collateral, and the reason therefor having been communicated to him at the time.</p> <p>Great stress was laid upon the fact that Mrs. Summers received the dividends upon all the stock in controversy up to the time of the failure of Laughlin & McManus, and it was argued that this was an admission of Mrs. Summers’s continuing ownership. This is not inconsistent either with her theory of the case or with that of the defendants. If the stocks were loaned to Laughlin & McManus for their benefit, they would naturally pay her the dividends as they accrued, because they only required the use of the stocks as collateral, while if Laughlin & McManus regarded the stocks as collateral for the transaction of the husband, and as belonging to him, they might well pay him the dividends or let him collect them until he chose to pay his debts, for which they claimed to. hold the stocks, or until he redeemed them by return of the securities given in exchange, according to his account of the affair.</p> <p>Exceptions to the master’s report were overruled, and a decree was entered dismissing the bill.</p> <p>Error assigned was decree of the court.</p>

<p>Ships and shipping — Maritime law — Limitation of liability of owners— Acts of congress of March 3, 1851, June 26, 1884, and June 19, 1886.</p> <p>The limitation of liability of shipowners to the value of the ship and freight pending, as provided by the Acts of congress of March 3, 1851, see. 3, 9 Stat. at Large, 635, June 26, 1884, sec. 18, 23 Stat. at Large, 57, and June 19, 1886, see. 4, 24 Stat. at Large, 79, applies to actions for damages for death caused by negligence, and also applies to the case of a disaster happening within the limits of a county of a state, and to a case where the liability itself arises from a law of the state.</p> <p>The provisions of the acts of congress limiting the liability of shipowners prevail over the prohibition in section 21, article, 3, of the constitution of Pennsylvania, against any limitation of the amount to be recovered for injuries resulting in death, inasmuch as the control of congress is paramount over the maritime law of the country, and when it has been exercised in a particular way all state authority must conform to it.</p> <p>The provisions of the acts of congress limiting the liability of shipowners in certain cases, and prescribing a method for apportioning the loss among them, may be administered by a state court.</p> <p>In an action in a state court against the owners of a vessel to recover damages for death caused by negligence, evidence should be admitted of the value of the vessel and the defendants’ respective proportions of ownership in it. The most convenient practice then would be, after appropriate instructions to the jury, to direct them, if they found for the plaintiff, to find specially in addition the value of the vessel and the proportionate ownei’ship of the several defendants.</p>

<p>Appeal, No. 143, Jan. T., 1897, by plaintiff, from order of C. P. Montgomery Co., June T., 1896, No. 39, confirming report of auditor.</p> <p>Exceptions to report of auditor.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to auditor’s report.</p>

<p>Insurance — Life insurance — Untrue answers in application — Question for jury — Act of June 23, 1885.</p> <p>In an action upon a life insurance policy where the undisputed evidence is that the insured in his application had falsely stated that he never had any illness, and had not consulted a physician, it is error for the court to submit the question of thé materiality of the answers in the application, to the jury. Whore it is doubtful whether the matter is material the question of materiality must be submitted to the jury, but where the answer is false and the matter involved is palpably and manifestly material to the risk, as in answers as to health, the Act of June 23, 1885, P. L. 134, has no application.</p>

<p>Trust and trustees — Voluntary deed of trust — Spendthrift trust — Revocation— Testamentary disposition of property.</p> <p>If the intention of the grantor at the time he delivers a voluntary deed of trust is to part with the legal title the trust will be enforced in favor of the beneficiaries, even though their enjoyment of the estate is postponed until the death of their benefactor. Equity, because of exceptional facts in rare eases, has revoked the trust or held it revocable by the grantor, because plainly a testamentary instrument; but the general rule has remained without change.</p> <p>A man twenty-six years old, of intemperate and improvident habits, executed to his brother a voluntary deed of trust of an interest which the settlor had in his father’s estate. The trustee was to collect the income and pay it over, less expenses, to the grantor during the latter’s lifetime, and after the death of the grantor the trustee was to convey the land to the grantor’s brothers and sisters. Power to convey was given to the trustee, but it was provided that the proceeds of sales should be invested and held for the purposes of the trust. The deed contained no power of revocation. The grantor had considerable property apart from that covered by the deed of trust. Nine years afterwards the grantor executed a will by which after directing payment of debts he devised and bequeathed all the rest and residue of his estate to a brother .and a sister, and by express words revoked all former wills theretofore by him made. The settlor lived eighteen years after the execution of the will, but during all this time the grantor and the trustee continued acting under the deed of trust, and treating it as in full force. After the settlor’s death the trustee filed his account. Held, that the will did not revoke the deed of trust; (2) that the deed of trust by its terms and purpose was not revocable by any subsequent will.</p> <p>Evidence — Declarations—Deed of trust.</p> <p>Loose declarations of a grantor in a voluntary deed of trust made twenty years after the date of the deed, and tending to impeach it, are inadmissible.</p>

<p>Eminent domain — Assessment of damages — Itailroads.</p> <p>In order that two properties having no physical connection may be regarded as one in the assessment of damages for right of way, they must be so inseparably connected in the use for which they are applied, as that the injury and destruction of one must necessarily and permanently injure the other.</p> <p>In proceedings against a railroad to recover damages for land condemned, it appeared that the owner had bought the tract through which the right of way was taken for the purpose of manufacturing paper.</p> <p>There was a stream of pure water on the land, and the owner built thereon a reservoir and a paper mill. Several years before the proceedings were begun another railroad company had appropriated a right of way through the tract, and long afterwards plaintiff conveyed to the same company a strip adjoining this right of way for railroad purposes. The mill was on one side of this right of way, and the stream and reservoir on the other.</p> <p>It appeared that the paper mill could not have been operated without the stream and reservoir. Held, that the water and the land constituted an indispensable appurtenance of the mill, and made the whole one property, and that the mere right of way and conveyance could not destroy its identity as one properly.</p> <p>Where a railroad company condemns a right of way through a tract of land and liles a bond, but subsequently abandons this location and takes another through the same tract, consequential injuries from the construction and operation of the road may be considered in estimating the market value at the time the bond was filed.</p> <p>In condemnation proceedings the railroad company claimed that the owner of the land had been compensated for the pollution of a stream by another railroad company which had some years before located its railroad through the same tract. There was evidence that the company which had first located its road used anthracite coal which caused no serious inconvenience, while the second company used bituminous coal which had a very polluting effect upon the water. Held, that the question whether the owner had already been compensated for the pollution of the water was a question of fact for the jury.</p> <p>Eminent domain — Waters—Condemnation of stream for right of way of a railroad — Pollution of stream.</p> <p>Where a railroad company appropriates the bed of a stream, in whole or in part, for its right of way, and pollutes the water of the stream by the ordinary operation of its road, it must make compensation to the owner, and the jury may be permitted, in their computation of the value of the land, in statutory condemnation proceedings, to consider the depreciation of the property by the pollution of the stream.</p> <p>The act of April 9, 1856, authorizing the appropriation of a stream by a railroad company for steam and other railroad purposes, does not apply in a ease where the railroad company has appropriated the bed of the stream for its right of way, and has polluted the water of the stream by the ordinary operation of its railroad.</p> <p>The Supreme Court will not review the discretion of the lower court in condemnation proceedings in refusing to allow the jury to view the water in a pond alleged to have been polluted by the operation of the railroad, and then to view the water again after it had been passed through filters.</p> <p>Eminent domain — Railroads—Misdescription of land.</p> <p>A petition in condemnation proceedings correctly described the land by its outside boundaries, without striking off by boundaries a small strip through it conveyed to another railroad company. The petition, however, in setting forth the acreage, made allowance for this strip, and there was no evidence that the owner claimed before the jury a quantity more than he owned after the conveyance. Held, that there was no such misdescription of the land as would have justified a dismissal of the petition.</p> <p>Eminent domain — Railroads—Excessive verdict.</p> <p>' The Supreme Court will not review a verdict in condemnation proceedings as excessive where there is evidence which if believed by the jury would warrant the amount of the verdict.</p>

<p>Appeal, No. 407, Jan. T., 1896, by defendant, from judgment of C. P. Montgomery Co., March T., 1890, No. 112, on verdict for plaintiff.</p>

<p>Appeal, No. 147, March T., 1896, No. 147, by defendants, from judgment of C. P. Delaware Co., Jan. T., 1897, No. 409, on verdict for plaintiff.</p> <p>Replevin to recover 183 bales of wool. Before Clayton, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>There is but one very sharp point in the case, and as you shall decide that point, so your verdict will be. That point is simply this: Was Mr. Turtle a warehouseman in the sense defined by the act of assembly which authorizes a warehouseman to give a receipt for goods taken on storage ? Now, that is the only question in the case ; everything else seems to be regular and fair. If you find that Mr. Turtle was a warehouseman, then I charge you that, having received the goods in his warehouse, and having given a warehouse receipt for them, and that receipt having been indorsed over by Keen-Sutterle Company to the plaintiff, I instruct you that it had a full, absolute title to the goods, as collateral security for the note it discounted for Keen-Sutterle Company. I instruct you that nobody has authority to issue a warehouse receipt, as it is known, unless he be a warehouseman. A warehouseman is one whose business it is to receive goods on storage for compensation, that is a warehouseman. Was Mr. Turtle such a man ? [The first evidence that he was a warehouseman is that he called himself one before there was any trouble. Two years before he rented the property, he took a lease in his own name for the storehouse, and he called it a storehouse. Now what is the next ? Why, Keen-Sutterle Company called him a warehouseman. They agreed that he was, they recognized him as a warehouseman, and they put the goods in his storehouse and accepted a receipt, a formal receipt, acknowledging that their goods were there on storage, and that he was the custodian of the goods as a warehouseman. Then, here are two parties to the transaction that certainly are estopped from denying it. They have put it in writing and induced other people to act upon it. Mr. Turtle made the writing, Keen-Sutterle Company accepted the writing, so they are certainly estopped from denying that he was a warehouseman. Now, the bank acted on it, they recognized him undoubtedly as a warehouseman, because the man who owned the goods said he was a warehouseman; he was the one man, then, who was interested in it; he was not insolvent at the time; he had not failed then ; that is, when I say “ he,” I mean the firm of Keen-Sutterle Company. They had not failed; they had the dominion over the goods ; they could have sold them to anybody; and while they had the dominion over the goods they acknowledged that Mr. Turtle was a warehouseman and put them in his hands — what for ? Why, probably for the very purpose of doing this ; but that does not affect it.] [16] Although you may find that this warehouse was used for the purpose of having a place where goods could be stored and money borrowed by means of the receipts, that does not affect the question, and I think it is altogether likely that KeenSutterle Company had something to do with the creation of this storehouse. I think that is altogether likely, and they for their own convenience, in order to increase their dividends, thought best to have one of their own persons in control. Now, suppose it was Mr. Sutterle’s own son, what difference does that make ? Suppose he said, here, we will want to be constantly pledging our goods, and instead of sending them to other places where we have to pay high storage rates, suppose I place my son in business and he rents the Wood street -warehouse, and we do our business through him, and put our goods in there, and take his warehouse receipt, and thus be able to raise money when we need it from the bank, there is no crime in that. I cannot see any fraud in it; I think Mr. Sutterle or Sutterle Company had the right to induce a clerk, if they chose, to take the responsibility and rent a storehouse for the purpose of giving them facilities for the borrowing of money on goods stored in it. They could not have done that if the goods were in their own possession. I think that is probably the truth of it. It is for you to say. I do not say it is true, but I think it is altogether likely that Keen-Sutterle Company did induce their clerk, Mr. Turtle, to rent that place as a warehouse for their special accommodation, and perhaps it was also understood that they were to be the principal customer, but I instruct you that a warehouseman if he has but one customer, if he keeps a warehouse for the purpose of storing goods and the profit there is in it, it is a warehouse just as much as if he had one hundred. It is not as easy to prove, but still he is a warehouseman if he receives goods on storage and charges storage for them, and that is his business ; he is a warehouseman. I also charge you that it is not necessary that it be his only business. He may be a clerk, as well as a warehouseman ; a lawyer may be a merchant, or he may be a banker, if he sees proper; he may be a preacher; it is not often, I believe, that he is, though. [It has been said that lie received no compensation. Well, 1 am not so sure of that. There are receipts in one book for $40.00 a month, it is stated, as storage paid. It must be conceded that KeenSutterle Company paid the storage by paying his rent. What if they did ? He had his rent to pay. Suppose he goes to them and says, here is the receipt for the goods stored there ; I am liable for the rent; won’t you pay that storage for me ? He was liable to the landlord, who could have levied upon the goods there for rent, and if they gave the money to him to pay the rent with, it was virtually paying that much storage. But that is not the question. Suppose they never paid the rent; suppose they never paid one cent, could he not have recovered it ? It is not necessary that cash should pass ; the right to cash in law is the same thing. So far as the parties are concerned, Keen-Sutterle Company recognized him as a warehouseman; they put the goods in his warehouse and he could have sued them for storage if payment was refused, or under the act of assembly, could have refused to let the goods go until the expenses were paid. He had the goods in his hands.] [17]</p> <p>[Let us take another view: suppose the bank had done what the learned counsel says it should have done, before it advanced the money, — sent a man over to see if the goods were there; what would the result be ? The man would have found a storehouse, he would have found the identical goods stored there, he would have inquired of Mr. Sutterle whether he was the keeper of the storehouse, and Mr. Sutterle would say, Certainly I am, and then he would have said, I want the proof of it; and Mr. Sutterle would say, there is my' lease; that is my lease; it is in my name; and the man would say, You have pledged certain goods by this receipt; are those goods in Mr. Turtle’s warehouse, the ones you pledge? and Mr. Sutterle would answer, They are; take your receipt and look at them; and when the man went there he would find the goods. What more could he do? If he had inquired, what information would he have got? Just what he had on the face of the papers. It, therefore, seems to me that the evidence is pretty strong that as far as the parties are concerned Mr. Turtle was a warehouseman; and if you find that he was, that is an end of the question. Then I charge you that the plaintiff has a better title than the defendants to this wool, and it will be your duty to find a verdict for the plaintiff.] [18]</p> <p>Now take the other view. There is some evidence from which the jury could find that there was some fraud in the transactions between Mr. Turtle and Keen-Sutterle Company. .... Now, first, if he was a warehouseman, the law has made it a crime in him to let the goods get away from his possession without having the receipt presented. ... I say, therefore, if he was a warehouseman, he is liable for permitting the goods to get out of his custody without the receipts; if he was not a warehouseman he is liable, for he is guilty of a fraudulent and criminal conspiracy in holding himself out to the world as one and giving a receipt upon which money has been given on a false pretense. It is not wonderful that he is not inclined to answer under the advice of his counsel. . . .</p> <p>There is something we cannot get light upon, and I say it is no wonder that the defendant contests the case, for there is enough in it to make any man contest it. These circumstances are all suspicious. Here is Keen-Sutterle Company depositing goods and taking them away again without any receipt, from one of their places, and it is pretty strong evidence that there is something wrong, something fraudulent, and that there is some intent to form a criminal conspiracy between him and Mr. Sutterle ; but there is no evidence at all that the plaintiff had any intimation of that fact or of any circumstances such as would induce it or put it on inquiry to ascertain before it passed the money. That is the present condition of the case. If this were a contest between the defendant and Keen-Sutterle Company there would be no difficulty about it, the defendant would have title to the goods; if it were a contest between him and another creditor he would have the goods; if it were a contest between him and the sheriff he would have the goods, but it is a contest between him and a man or an institution that claims it has a prior right by virtue of these warehouse receipts.</p> <p>[Now, I say, gentlemen, while there are indications enough to induce us to believe there was something wrong between the warehouseman and Keen-Sutterle Company, it will be for you to say whether the transaction, so far as the [papers were concerned, were so reasonably fair as not to induce a person with ordinary care to notice that there was anything wrong about the transfers, and it seems to me that if there was nothing to give any information to the bank that there was anything wrong, it seems to me that its title is good; but I will leave it for you to say whether this man was a warehouseman.] [19] [If you come to the conclusion, under the circumstances, that he was not a warehouseman; that he never had control over the goods; that he was a mere man of straw, and that it was a fraud from the commencement, why I am inclined to think that the plaintiff here cannot recover. But, I say here was a warehouseman, here was a lease, and here the goods were actually on storage in a house at the time the receipt was issued and negotiated, and that it is the strong part of the plaintiffs case.] [20] The weak part of his case is that Mr. Turtle was a clerk under the control and employ of the Keen-Sutterle Company, and that he never had anybody there in charge; that the key was there; that any one could get the goods when they pleased and all that. There is some evidence that he had a desk there in which he kept the papers locked up. The only evidence I remember was that he had a desk in the Keen-Sutterle Company house and that he had the key for it, and that is the only evidence of it. [There was nobody on the premises to deliver goods; no watchman there. The goods were stored, and it seems that KeenSutterle Company could get them whenever they wanted them, but there is no evidence that the plaintiff knew that.] [21]</p> <p>Still, if you come to the conclusion that this man was not such a, warehouseman as described, there can be no recovery. That is to say, he must be a person who received goods on storage for compensation.</p> <p>Verdict and judgment for plaintiff for $10,893.06. Defendants appealed.</p> <p>'Errors assigned among others were (16-21) above instructions, quoting them.</p>

<p>Practice, G. P.— Trial — Reservation of point.</p> <p>The question whether there be any evidence which entitles the plaintiff to recover is a good reservation, without a statement, upon the record, of the facts on which the point is based; and if the evidence be submitted to the jury, and there be a verdict for plaintiff, or if the court direct a verdict for plaintiff, the court can, on such a reservation, enter judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 181, Jan. T., 1897„by defendant, from judgment of C. P. Schuylkill Co., on verdict for plaintiff.</p> <p>Assumpsit on a policy of fire insurance. Before Lyon, P. J.</p> <p>At the trial the defendant set up as a defense the fact that other insurance had not been indorsed upon the policy as required by the contract of insurance.</p> <p>Plaintiff’s points and the answers thereto among others were as follows:</p> <p>3. If the jury believe that, after the policy in this case was issued, the secretary of the company was notified by its agent, John Holdeman, that the plaintiff bad other insurance on the property described in this policy, and having sucb knowledge failed to indorse this fact on the policy, and having failed to notify the plaintiff that his policy was canceled and no longer in force, and by its acts and conduct treated the policy as in force for the purpose of collecting assessments upon it or to release premium and assessments already made, and also the premium note, tbe jury would have a right to find from these facts the further fact that the policy was in force for the purpose of paying a loss, which might rise thereunder, and for securing the indemnity against loss by fire provided for in this policy. Answer: This is affirmed, if you find the facts to be from the evidence as stated in this point. [4]</p> <p>4. A person taking an application for insurance from another, sending it to an insurance company, receiving from the company and delivering to the applicant the policy applied for, taking the premium note and collecting the premium for the policy, and afterwards collecting an assessment on the policy, giving receipts which the company recognized, and paying over to the company the assessment collected, must be regarded as the company’s agent in the transaction. If the jury believes John Holdeman was such an agent of this company, and, on taking the application for insurance from the plaintiff, was informed by the plaintiff .that he had #3,000 of other insurance, then it was the duty of Holdeman to so inform the company in order that the proper officer of the company might indorse on the policy notice of such other insurance, and the fraud or mistake of Holdeman, the agent, in failing to so inform the company, will not enable the company to avoid the policy to the injury of the plaintiff, if the plaintiff innocently became a party to the contract. Answer: This we affirm; the company could not adopt the acts of its agent so far as it inured to its own benefit and then repudiate it when the other party sought to enforce it. [5]</p> <p>The court charged in part as follows :</p> <p>[Now, if Mr. Holdeman, representing this company, had any fraudulent purpose in concealing this fact from the company and did not make it known to them at- the time when he presented his application to the company for its acceptance, then the company was bound as soon as it had notice of the fact, to give Mr. Kalmutz notice that it would not be bound by this policy and that he had no right to other insurance, because the company could not avail itself of the act of its agent, and collect the assessments due upon this policy, and at the same time hold it was null and void. It was its duty when it learned this fact (if it did so learn it), that this insurance had existed upon the property from the time that this policy was issued and before the application was made, to have notified Kalmutz that it would not accept his policy — to have returned, his premium note and not to have held out the belief to him that his policy was of binding force and effect.</p> <p>Now, Mr. Holdeman denies this. He denies that Kalmutz told him that he had additional insurance. He denies that he had any knowledge of the fact until in the month of October, 1894; that when he was there at the place of Mr. Kalmutz, and after he had collected the assessment, which was laid upon this policy for Kalmutz, that it was then that Kalmutz told him that he had additional policies upon this property, and that was the first time he knew of it. Then, he says, he did learn the fact and he communicated it to the secretary of the company at the meeting of the board of directors in the first week of November, I believe, 1894. There is again a discrepancy in the testimony. Mr. Kalmutz testified that when Holdeman called upon him for the assessment, he told him that his policy was of no use; that he had it read, and that he had learned that it was void because there was no notice indorsed upon it in writing that he had other insurance, and he testifies that he did this before he paid the assessment that was levied upon his policy. Now, how is that ? There is a conflict in his testimony and it is for you to determine. If the company, after the notice of this fact, and its attention was called to it by its agent, went on and collected this assessment and kept the money, then it would be estopped from denying the validity of the policy; but it could not be es-topped unless it did that after it had knowledge of this fact. Now, you will take this case into consideration, and if you find the company had knowledge before it levied an assessment, then it would clearly be liable, but I do not recollect that there is any testimony, and I think there is not, in the case, to show that it had knowledge until after that assessment had been collected and paid over.</p> <p>Mr. Shepherd: There is no evidence of that kind.</p> <p>Mr. Wadlinger: We argue there was.</p> <p>Mr. Shepherd: When?</p> <p>Mr. W adlinger: F rom the statement Hoi deman made to Prince in Frank’s that he believed ho had sent that notice, but was not certain, but said to Kalmutz that in order to make that sure he would put it in his memorandum book and send it there.</p> <p>The Court: If from any evidence in this ease the jury find that such was the fact,-that the company had notice before it levied and collected this assessment of this other insurance, it would be estopped from setting up that as a forfeiture of the policy. We submit all the evidence to you, and under the evidence you must determine whether such was the fact or whether it was not. There is considerable conflict in the testimony, and it is for you, and you must determine what the facts are. If on the other hand, you should find that this insurance company had no knowledge that there was other insurance upon this property at the time that it levied and collected this assessment, then it would not be held to have waived that condition of the policy,- unless you consider from all the circumstances of the case, that it made no effort to notify Kalmutz, the plaintiff, that it would insist upon it after the knowledge had been communicated to it by their secretary.] jj7]</p> <p>Verdict and judgment for plaintiff for $1,152.80. Defendant appealed.</p> <p>Errors assigned among others were (4, 5, 7) above instructions, quoting them.</p>

<p>Appeal, No. 18, Oct. T., 1898, by plaintiff, from decree of C. P. Beaver Co., June T., 1897, No. 5, on bill in equity.</p> <p>Bill in equity for an injunction to restrain the letting of a municipal contract.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Wilson, P. J., entered the following decree:</p> <p>Now, October 21, 1897, this cause came on to be further heard, and was argued by the counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz: That an injunction issue enjoining the defendant borough and its officers from passing the ordinance complained of in plaintiff’s bill, with the provision contained in the sixth paragraph thereof, providing for the purchase of the People’s Water Company plant at any time after same is completed.</p> <p>Errors assigned were (1) in not finding as a matter of law that, having consented to the Union Water Company’s providing a supply of water to the borough, and the water company having provided the same, the borough is without authority to contract with another company to provide a supply of water; (2) in not making a decree enjoining the borough and the defendants generally from passing any ordinance authorizing a contract with the People’s Water Company in relation to the supply of water.</p>

<p>Appeal, No. 327, Jan. T., 1897, by plaintiff, from judgment of Superior Court, Jan. T., 1897, No. 32, reversing judgment of C. P. Lackawanna Co., June T., 1889, No. 581, on verdict for plaintiff.</p> <p>Appeal from the Superior Court.</p> <p>Assumpsit to recover an alleged overpayment on account of the principal and interest of a mortgage. Before Edwards, J.</p> <p>Tlie facts appear by tbe opinion of tbe Superior Court, reported in 5 Pa. Superior Ct. 46, and the opinion of the Supreme Court.</p> <p>Errors assigned among others were portions of tbe opinion of the Superior Court, quoting them, as follows : (4) There can be no reasonable ground for doubting Steere’s knowledge that be was paying more than tbe legal rate of interest. While declaring that he could not “ figure down to tbe cents,” in computing interest, he admits his knowledge that $60.00 was the legal interest on $1,000; that the interest on $900 would be not quite $60.00; and that Oakley, in his computation, “ was figuring it too big.” Still more conclusive was the fact, testified to by Mm, that the first note, for $56.70, was for a year’s interest at six per cent. As bearing on the question of usury, it is a significant circumstance that this note was drawn to Nichols, the assignor of the mortgage, as payee; and from the uncontradicted testimony of Oakley this was done with a view to evading the usury law. Steere thus knew, at the outset, that $56.70 was the legal interest on $945.27; and whenever he paid more than this as a year’s interest be knew that he was paying more than the legal rate. This note remained in his possession from the time it was taken up by him until the settlement, and, were it necessary, he could always refer to it, as showing the amount of a year’s legal interest on the debt; (-5) His assertion that he was not knowingly paying more than six per cent is inconsistent, also, with the contention that his payments were involuntary, and were extorted by the duress of threatened legal proceedings for the collection of the principal. There is no element of duress in the case and the payments were not in contemplation of law involuntary. There can be no duress, in law, except through an unlawful act. There is no duress involved in a threat to enforce a legal demand in a legal manner; and this is the utmost that it is alleged on the part of the plaintiff in his testimony that Oakley threatened to collect the debt unless it was paid. The extortion of usurious interest, by such a threat, is to be redressed by an action for its recovery within six months, under the act of 1858; (6) In the present case, when the settlement was made, the plaintiff had in his possession all notes, receipts and other memoranda of his payments to the defendant. In the absence of fraud or mistake it must be presumed that all of these which the parties recognized as having a place in the settlement were duly taken into account. There is no evidence and no allegation that anything was omitted to the prejudice of the plaintiff that should have been included in the settlement. With the means at hand of determining with accuracy the credits which should be applied on the mortgage, it must be presumed that they were so determined and applied and that the balance which was accepted as correct was in fact the amount remaining due; (7) The settlement thus reached can be impeached only for fraud or mistake. There is, in the declaration no allegation of either fraud or mistake; indeed, outside of the common counts, which are indefinite, and under the procedure act of 1887 are not to be considered, there is no allegation of any act, omission or circumstance of any kind on which a recovery is sought. The record does not disclose the issue between the parties, and the evidence leaves it obscure. It is sufficient, however, to say, from a careful examination of the evidence, that there is nothing in it that can warrant a jury in finding either fraud or mistake in the settlement. It was wholly insufficient to justify the submission of the case to the jury, and the defendant’s first point should have been affirmed. Also (8) in reversing the judgment of the common pleas.</p>

<p>Appeal, No. 279, Jan. T., 1896, by defendants, from judgment of C. P. Pike Co., Oct. T., 1894, No. 4, on verdict for plaintiff.</p> <p>Ejectment. Before Pxjbdy, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendants’ point and the answer thereto among others were as follows:</p> <p>7. Under all the evidence in this ease, the verdict of the jury should be for the defendants. Answer: That is refused. [21]</p> <p>The court charged in part as follows:</p> <p>[As we view the law applicable to this case, the plaintiff in this case is entitled to recover in this action the land described in this writ, if this bond was executed by Brantley contemporaneously with and as security for the purchase money, and is the instrument mentioned in the mortgage which was given at that time, and that question we leave to you. You have the bond and mortgage.] [22] We have read those portions contained in the two instruments so far as they enable you to determine the reference of one to the other, and the plaintiff in this action has called Mr. Rinehart, who testifies that this bond is the same instrument which was executed at that time, and that it was executed by Mr. Brantley at that time and delivered to him contemporaneously with that mortgage. If you find that fact, your verdict will be for the plaintiff in this case, for the land described in the writ. If you shall not find that as a fact; if this bond is not the one referred to in this mortgage; if it was not given contemporaneously with that mortgage for the purchase money in the mortgage, then the defendants would be entitled to your verdict in this case.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned among others were (21, 22) above instructions, quoting them.</p>

<p>Constitutional law— Taxation — Assessments — Triennial assessments— Annual assessments — Municipalities — Cities of the third class — Act of May 23, 1895.</p> <p>That the system prescribed by ail act of assembly is liable to abuse in no way affects its validity.</p> <p>The portion of the fifth section of the Act of May 23, 1895, P. L. 118, which authorizes the board of revision of taxes and appeals in cities of the third class to cause an assessment of property to be made other than in triennial years, is not unconstitutional, either as being an illegal delegation of legislative power or as involving local legislation in violation of section 7 of article 3, of the constitution of Pennsylvania.</p> <p>Where valuations of property in a city of the third class are made by a so-called assistant assessor, and are reported by him to the board of assessors which adopts the same, they become the valuations of the board, and the assessments are not rendered illegal by the fact that the assistant assessor is not a legal officer.</p>

Appeal, No. 22, Jan. T., 1898, by defendant, from judgment of C. P. Lackawanna Co., March T., 1894, No. 637, on verdict for plaintiff. Trespass for nuisance. Before Edwards, J. At the trial plaintiff introduced evidence tending to show material discomfort and injury in the use of his property by the reason of oil escaping from defendant’s petroleum storage plant.

<p>Judgment — -Opening judgment — Evidence,</p> <p>An application to open a judgment entered upon a judgment note must un<^er facts developed in this case be supported by clear, precise and positive testimony, which should not be doubtful in character, and it must establish either that there was fraud, accident or mistake in the creation of the instrument itself, or that there bad been an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the principal contract was made, and without which, it would not have been executed. While a judgment should not be opened, as a general rule, upon defendant’s oath alone where he is contradicted by the testimony of the plaintiff, yet where there are corroborative circumstances, or circumstances from which inferences may be drawn corroborating the defendant, it is proper to open a judgment and refer the question to the jury.</p> <p>On an application to open a judgment it is proper for the court to-weigh the evidence and decide according to the preponderance thereof; and where the court, below has refused to open a judgment, the Supreme Court will as a rule determine only whether the discretion of the court below has been abused or improperly exercised.</p> <p>Judgment — Opening judgment — Bond—Mortgage—Parol evidence.</p> <p>A judgment entered on a judgment bond, given for the purchase of real estate, should be opened, on application, where the evidence for the defendants is olear and precise, and tends to show that at the time the judgment bond and the mortgage which accompanied it were given there was a verbal agreement made between the parties that if the defendants were unable to keep the property they should have the right to rescind the contract, reconvey the title, surrender the possession of the property, and thereupon have the bond and mortgage returned; and that subsequently the defendants, finding themselves unable to pay for the property, moved out and surrendered the key at the request of plaintiff, who advertised the property for sale, leased it and collected the rent.</p>

<p>Appeal, No. 405, Jan. T., 1897, by plaintiff, from order of C. P. Northampton Co., No. 145, Feb. T., 1895, making absolute a rule to strike off judgment.</p> <p>Rule to strike off judgment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in making absolute a rule to strike off judgment.</p>

<p>Insurance — Life insurance — Misrepresentations in application — Act oj June 23, 1885.</p> <p>Under the Act oi' June 23, 1885, P. L. 131, a misrepresentation or untrue statement in an application for insurance, if made in good faith, does not avoid the policy unless it relates to some matter material to the risk. Where the materiality of a statement to the risk involved is itself of a doubtful character its determination should be submitted to the jury.</p> <p>Questions in an application for life insurance relating to insurance in other companies, to the rejection of the applicant by other companies and to the attendance by physicians are all material to the risk, and it is error to submit the question of their materiality to the jury. The act of June 28, 1885, has nothing to do with such questions.</p> <p>An applicant for life insurance was asked the question: “ Have you ever spit blood:’” To this he answered “No,” without any qualification. The evidence showed that he had had an expectoration of blood which was so great as to amount to a hemorrhage. Held, that the question was falsely answered and that the jury should have been so instructed.</p> <p>In an action upon a policy of life insurance, it appeared that the application for the policy contained certain questions and answers as to health. The company presented a point to the effect that the concealment of a serious ailment by tire applicant was a fraud upon the company’s rights. The court affirmed the point with the qualifying remark, “ If those questions were asked.” Held, that the company was entitled to an unqualified affirmance of the point, as the added remark only tended to confuse the jury-</p> <p>In an action upon a policy of life insurance where it appeared that the insured in his application concealed the fact that he had consumption, the company is entitled to an unqualified affirmance of a point to the effect that if the insured had consumption at the time of the delivery of the policy, the company is entitled to a verdict. As the insured could not be ignorant of the presence of the disease, and as the question is material and the answer a warranty, the court should not include in the answer to the point the element of knowledge and the intentional concealment by the assured.</p> <p>In an application for a policy of life insurance on a wife, a question was: “ Are you now insured!’” The answer was, “ No.” The application was signed by both husband and wife, and the policy was payable to the husband. The husband acknowledged that the answer was false; that he had already taken out another policy on his wife’s life, and that he had paid all premiums ou it. Held, that the husband was not entitled to recover, even though the wife was without knowledge of the first insurance.</p> <p>In an action on a policy of life insurance, where it appears that the insured in her application had slated that she had no serious ailments; that she had not been attended by a physician, and that she had not been-rejected' by any other company, and the uncontradicted evidence shows that these answers were absolutely false, it is the duty of the trial court to direct a verdict in favor of the insurance company.</p>

<p>Appeal, No. 201, Jan. T., 1897, by plaintiffs, from judgment of C. P. Schuylkill Co., Sept. T., 1896, No. 178, on verdict for defendants.</p> <p>Assumpsit on a mining lease. Before Albright, P. J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts sufficiently appear by the opinion of the Supreme Court.</p> <p>Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.</p>