Volume 187 — Pennsylvania State Reports

<p>Appeal, No. 329, Jan. T., 1897, by plaintiff, from judgment of C. P. Schuylkill Co., July T., 1895, No. 11, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Endlich, J., of the 23d judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court reserved the point quoted in the opinion of the Supreme Court.</p> <p>The jury returned a verdict for plaintiff for $5,000. Subsequently the court made absolute a rule for judgment for defendant non obstante veredicto.</p> <p>Errors assigned among others were (3) in not making a proper reservation; (4) in entering judgment for defendant non obstante veredicto.</p> <p>If a point of law be reserved on the trial of a cause the point and the facts upon which it arises must be stated upon the record in order to authorize the court to enter judgment non obstante veredicto: Wilde v. Trainor, 59 Pa. 439; Fergusonv. Wright, 61 Pa. 258; Patton et al. v. Railway Co., 96 Pa. 169; Inquirer Printing Co. v. Rice, 106 Pa. 623; Elkins v. Susquehanna M. F. Ins. Co., 3 Penny. 367; Wilson v. Steamboat Co., 25 Pa. 317; Cook v. Schrauder, 25 Pa. 312; Winchester v. Bennett & Davis, 54 Pa. 510; Yerkes v. Richards et al., 170 Pa. 346 ; Moore, Admrx., v. Copley et al., 165 Pa. 294; Richboro Dairymen’s Assn. v. Ryan, 16 W. N. C. 383; Farmers’ & Mechanics’ Bank of Shippensburg v. Lefever, 74 Pa. 49.</p> <p>There being no reservation in this case, for the reasons above given, there was nothing upon which to base an exception which must be put on the record: Henry v. Heilman Bros., 114 Pa. 499; Fayette City Boro. v. Huggins, 112 Pa. 1; Mechanics’ Saving Fund v. Murphy, 1 Walker (Pa.), 31.</p> <p>As none of the concomitants of a proper reservation are contained in the alleged reserved point, the judgment thereon cannot stand in law: North American Oil Co. v. Forsyth, 48 Pa. 291; Commonwealth to use, etc., v. McDowell, 86 Pa. 377 ; Clark & Thaw v. Wilder, 25 Pa. 314; Irwin v. Wickersham, 25 Pa. 316; Buckley v. Duff, 111 Pa. 223 ; Barwell v. Wirth, 61 Pa. 133 ; Campbell v. O’Neill, 64 Pa. 290.</p> <p>Boyle did not know of the dangerous condition of the pavement. He followed the beaten path. To constitute contributory negligence one must use a street knowing it to be unsafe; and knowing the defects that make it so, but not choosing to avoid them, although he could have done so: Smith v. New Castle, 178 Pa. 298; Fee v. Columbus Boro., 168 Pa. 382; Forker v. Sandy Lake Boro., 130 Pa. 123 ; Pomfrey v. Saratoga, 7 Cent. Bep. 44 ; Taylor v. Yonkers, 7 Cent. Hep. 230 ; Biggs v. West Newton, 164 Pa. 341; Douglas v. Monongahela City Water Co., 172 Pa. 435; Shook v. Cohoes, 11 Cent. Rep. (N. Y.) 301. See also Altoona v. Lotz, 114 Pa. 246; Erie v. Magill, 101 Pa. 616; Fleming v. Lock Haven, 15 W. N. C. 216; Whitford v. Southbridge, 119 Mass. 564; Horton v. Ipswich, 12 Cush. 489; Wilson v. Pa. R. R., 177 Pa. 503; Gates v. R. R., 154 Pa. 566.</p> <p>Plaintiff’s contributory negligence is a question for the jury, under proper instructions: Smith v. B. & O. R. R. Co., 158 Pa. 82; Sprowls v. Morris Twp., 179 Pa. 219; Davidson v. Lake Shore, etc., Ry., 179 Pa. 227; Ellis v. R. R. Co., 138 Pa. 506; Whitman v. Pa. R. R. Co., 156 Pa. 175; Chilton v. Carbondale, 160 Pa. 463; Mallory v. Griffey, 85 Pa. 275; Yannatta v. Cent. R. R. Co., 154 Pa. 262; Campbell v. City of York, 172 Pa. 205; Hogan v. West Mahanoy Twp., 174 Pa. 352; Buswell on Law of Per. Inj. 208; Glasé v. Phila., 169 Pa. 488 ; Longcnecker v. Penna. R. R. Co., 105 Pa. 328; Sopherstein v. Bertels, 178 Pa. 401; Pender v. Raggs, 178 Pa. 341; Pa. R. R. v. Werner, 89 Pa. 59; Philpott v. R. R., 175 Pa. 570; Fisher v. Ry., 131 Pa. 292.</p> <p>The point reserved in the case at bar conies up to the measure laid down by this- Court, from Irwin v. Wickersham in 25 Pa. 316, down to Yerkes v. Richards, 170 Pa. 346.</p> <p>If the plaintiff did not wish to concede the facts stated in the point reserved, it was not only his right, but his duty to except at the time of the reservation. He had his day in court; having taken no exception then, he cannot now have that action of the court reviewed: Fayette Borough, v. Huggins, 112 Pa. 1; Ins. Co. of Penna. v. Phoenix Ins. Co., 71 Pa. 31; Smith v. Van Horne, 72 Pa. 209; K.oons v. W. IT. Tel. Co., 102 Pa. 169; Heany v. Schwartz, 155 Pa. 154; Mohan v. Butler, 112 Pa. 591; Fulton v. Peters, 137 Pa. 613.</p> <p>Boyle.saw the ridge before going upon it; this is established by his testimony, and was conceded when the point was reserved. Under such circumstances, his deliberate attempt to walk over it was contributory negligence per se, and there was nothing to send to the' jury: Forks Twp. v. King, 84 Pa. 230 ; Erie v. Magill, 101 Pa. 616; Railway Co. v. Taylor, 104 Pa. 306; Crescent Twp. v. Anderson, 114 Pa. 643; Hill v. Tionesta Twp., 146 Pa. 11; Mauch Chunk v. Kline, 100 Pa. 119 ; Burns v. Bradford, 137 Pa. 361; Davis v. Corry City, 154 Pa. 598; Lohr v. Philipsburg, 156 Pa. 249; Wyman v. Philadelphia, 175 Pa. 117; Lynch v. Erie, 151 Pa. 380; Haven v. Bridge Co., 151 Pa. 620; Baker v. Gas Co., 157 Pa. 593; Mar-land v. R. R. Co., 123 Pa. 487; R. R. Co. v. Mooney, 126 Pa. 244 ; Myers v. R. R. Co., 150 Pa. 386 ; Lees v. R. R. Co., 154-Pa. 46.</p> <p>It did not appear that either the roadway, the sidewalk or the gutters were improperly constructed. Decker v. Scranton, 151 Pa. 241, Manross v. Oil City, 178 Pa. 276, and kindred cases, do not apply.</p>

<p>Appeal, No. 373, Jan. T., 1897, by defendant, from judgment o£ C. P. Schuylkill Co., Sept. T., 1895, No. 346, on verdict for plaintiff.</p> <p>Assumpsit on a contract.</p> <p>At the trial the court reserved the following points presented by the defendant:</p> <p>1. A foreign corporation in regard to the citizens of this state is a company incorporated under the laws of any country or state outside the commonwealth of Pennsylvania.</p> <p>2. A foreign corporation can only sue or be sued, or transact other business, within this commonwealth, by complying with all the laws, rules and regulations of this state relating thereto, and it appearing in evidence that said plaintiffs are a foreign corporation, the burden is on them, before they can maintain this suit, to show that they complied with all the laws, rules and regulations prescribed for them by this state, entitling them to sue or be sued or transact other business here, and having failed to make such proof, they cannot maintain this suit, and the verdict of the jury must be in favor of the defendants.</p> <p>8. Under the laws of this state in order to maintain this suit the plaintiffs are bound to show' as a condition precedent to their recovery that, not only when the lumber and material now in controversy in this suit was sold or contracted for and shipped by them, but at and before tbe time the suit was instituted, they had an office or offices in this commonwealth, and resident agent or agents appointed for the transaction of business therein, upon whom service of legal process could have been made, or other business relating to such agency transacted, and having failed to make such proof, this suit cannot be maintained by them, and the verdict must be in favor of defendant.</p> <p>4. In order to maintain a suit at law such as this, or transact other business in this commonwealth, a foreign corporation, such as plaintiffs, is bound to file a statement in tbe office of the secretary of the commonwealth, showing among other things the name or names of its authorized agents therein, and must show, before they can recover, that they have done so, and that a proper certificate was issued to them by competent authority, and that such certificate, if issued, was preserved by such agents in each of the offices, if more than one, for public inspection at all times, and having failed to show that they complied with these requirements they cannot maintain this suit, and the verdict of the jury must be in favor of defendants.</p> <p>Verdict for plaintiff for #1,408.55, upon which judgment was subsequently entered. Defendant appealed.</p> <p>The domicil of a corporation is in the state under whose laws it was created or where its principal place of business is located. It cannot migrate to another sovereignty: Bank v. Earle, 18 Peters, 588 ; 2 Morawetz on Corp. sec. 958 ; Runyan v. Costers, 14 Peters, 122.</p> <p>A state may regulate the business of foreign corporations within its boundaries or exclude them from transacting business altogether: 2 Morawetz, Corp. sec. 971; Paul v. Virginia, 75 U. S. 168; Doyle v. Ins. Co., 94 U. S. 585; Ins. Co. v. French, 18 Howard, 407; Ducat v Chicago, 10 Wallace, 410; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727 ; Leásure v. Ins. Co., 91 Pa. 491; Com. v. Standard Oil Co., 101 Pa. 119.</p> <p>In this state there is legislation and constitutional provisions against their suing or doing any other business (if suing be business) excepting subordinate to our laws. Having failed to comply with our laws and regulations at or before the time the cause of action accrued they cannot maintain their suit: Thorne v. Ins. Co., 80 Pa. 15 ; Ins. Co. v. Bales, 92 Pa. 352; Holt v. Green, 73 Pa. 198 ; Ins. Co. v. Heath, 95 Pa. 333 ; Lasher v. Stimson, 145 Pa. 30 ; Johnson v. Hulings, 103 Pa. 498 ; Com. v. Hughes, 1 Dist. Rep. 596.</p> <p>Plaintiff had a registered agent in this state at the time the contract in this case was made.</p> <p>The goods were delivered on board cars at Saginaw, Michigan, and therefore the sale took place there : Com. v. Fleming, 130 Pa. 138; Bacharach & Co. v. Chester Freight Line, 133 Pa. 444.</p> <p>Plaintiff was not “ doing business ” in Pennsylvania within the meaning of our constitution and laws relating to the registration of foreign corporations : Com. v. Standard Oil Co., 101 Pa. 148; Toledo Commercial Co. v. Glenn Mfg. Co., 11 Ohio ■Cir. Ct. 153 ; Kilgore v. Smith, 122 Pa. 57 ; Leasure v. Life Ins. Co., 91 Pa. 491; Bank v. Tanning Co., 170 Pa. 4 ; Blakeslee Mfg. Co. v. Hilton, 5 Pa. Superior Ct. 189.</p> <p>Plaintiff is engaged in interstate commerce, and the freedom of trade between those doing business in the different states is protected by article 1, section 8, clause 3, of the constitution of the United States: Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Wile & Brickner Co. v. Onsel, 10 Pa. C. C. R. 659; Mobile County v. Kimball, 102 U. S. 691; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 ; Robbins v. Shelby County Taxing Dist., 120 U. S. 489; McCall v. California, 136 U. S. 104.</p>

<p>Appeal, No. 129, Jan. T., 1897, by-plaintiffs, from order of C. P. Franklin Co., Sept. T., 1893, No. 248, refusing to take off nonsuit.</p> <p>Assumpsit for goods alleged to have been sold and delivered. Before Stewart, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p> <p>The contention on the part of the appellants is that this is not such a special contract as precludes the subject-matter thereof, or the goods delivered thereunder, from being the proper subject of book entry: Cooper v. Morrel, 4 Yeates, 341; Laird v. Campbell, 100 Pa. 164; Bear v. Trexler, 3 W. N. C. 214.</p> <p>It is submitted that the charges in plaintiffs’ books are not evidence of goods sold and delivered by the plaintiffs to the defendants: Laird v. Campbell, 100 Pa. 159; Lonergan v. Whitehead, 10 Watts, 249; Nickle v. Baldwin, 4 W. & S. 290; Corr v. Sellers, 100 Pa. 169, 171; Rheem v. Snodgrass, 2 Gr. 379; Eshelman v. Ilarnish, 76 Pa. 97; Rhoads v. Gaul, 4 Rawle, 404, 407; Stuckslager v. Neel, 123 Pa. 53, 61.</p>

<p>Appeal, No. 321, Jan. T., 1897, by plaintiff, from judgment of C. P. Monroe Co., Sept. T., 1895, No. 87, on verdict for defendants.</p> <p>Scire facias sur mechanic’s lien. Before Albright, P. J., of the 31st judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Plaintiff’s points and the answers thereto were among others as follows:</p> <p>3. If the jury believe from the evidence that the contract between Gill and Barteau, on October 6, 1894, was that, upon Bartoau’s agreement to turn over the house unincumbered, Gill waived the bond which he was to have for his security against liens, that contract does not prevent the plaintiff from filing a lien. Answer: Merely waiving the bond spoken of by these parties would not deprive Gill of the benefit of an agreement on Barteau’s part that there should be no liens; if such an agreement is proved, plaintiff is entitled to a lien unless defendants have proved that it was a part of the agreement between Barteau and Gill that there "should be no liens for material or work, and that on the faith of it Gill signed the writing. If such agreement is proved in the way as stated in the general charge, plaintiff has no lien, and the verdict must be for the defendants. The bond was not indispensable to the agreement .against liens. The point is negatived.</p> <p>4. In order to make the plaintiff’s lien inoperative against the building the evidence must convince the jury that there was an express covenant by Barteau against liens, or a covenant resulting as a necessary implication from the language employed, and that the implied covenant should have been so clear that the plaintiff could have understood it without consulting a lawyer: Nice v. Walker, 153 Pa. 132. Answer: In order to make the plaintiff’s lien inoperative against the building the evidence must convince the jury that there was an express agreement by Barteau against liens. The court declines to affirm the point as drawn. The reference to consultation of a lawyer quoted from the opinions of Nice v. Walker, 153 Pa. 132, could not aid and might confuse or mislead the jury. At least it is not a necessary point of instruction in this case, in view of the evidence of the defendants relying upon the alleged promise that Barteau agreed that no liens should be put upon the property.</p> <p>5. Under the whole evidence in the case the plaintiff is entitled to a verdict for the value of the materials furnished toward the-construction of the defendant Gill’s house. Answer: Negatived. That matter is referred to the jury.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them..</p> <p>cited McElroy v. Braden, 152 Pa. 81; Brown v. Cowan & Steele, 110' Pa. 593; Nice v. Walker, 153 Pa. 132; Lucas v. O’Brien, 159-Pa. 535; Sullivan v. Hancock, 2 Pa. Superior Ct. 528.</p> <p>cited, McElroy v. Braden, 152 Pa. 78; Creswell Iron. Works v. O’Brien, 156 Pa. 172 ; Rynd v. Pittsburg Natatorium,. 173 Pa. 237.</p>

<p>Appeal, No. 420, Jan. T., 1897, by plaintiff, from judgment of C. P. Northampton Co., June T., 1895, No. 61, on verdict for defendant.</p> <p>Replevin to recover a quantity of hides.</p> <p>The case was tried by agreement before Scott, J., without a jury-</p> <p>The plaintiff is a bank incorporated under the laws of the state of New York and doing business in the city of Buffalo, New York. The defendant is a corporation incorporated under the laws of the state of Pennsylvania and doing business in the city of Easton, Pa. The plaintiff was a creditor of the firm of Moffatt Bros, of Alden, New York, in January, 1895, to the amount of about $41,000. On January 28, 1895, the firm of Moffatt Bros, executed a paper and delivered it to the plaintiff, as follows :</p> <p>“Buffalo, N. Y., January 23d, 1895.</p> <p>“ Warehouse receipt and voucher.</p> <p>“ Executed and delivered under the provisions of act, chap. 326, of the laws of New York, passed in 1858, and the acts amendatory thereof, passed in 1859 and 1866.</p> <p>“ Received in store from The City Bank at and in the building at our tannery at Alden, New York, known as ‘The Hide House,’ as its bailee, the following property, viz: Five thousand hides, same having been received from Jacob Dold, and known as Dold Packer Hides, and all bundled and all placed apart from all other hides in the east end of ‘ The Hide House,’ occupying the entire space from the east wall of ‘The Hide House ’ west to, say three feet beyond the first sectional cross beam of said hide house, and extending across the entire width from north to south of said hide house, as found and inspected by A. J. Barnes on January 22d, 1895 ; said hides to be stamped in the usual place, thus ‘C. B.,’ as evidence of ownership by the City Bank, Buffalo, N. Y., to be tanned, finished and sold by us for them, whenever ordered to do so by said City Bank.</p> <p>“Moffatt Bros.</p> <p>which we have this day pledged to ‘ The City Bank,’ to be held subject to the order of said Bank endorsed hereon, and we do further agree to deliver to said Bank, from time to time, such additional collateral as may be required by it. If such additional collateral is-not delivered on demand, then we agree to pay an equivalent sum in money to be applied in reduction of our indebtedness in such manner as the Bank elects.</p> <p>“ This pledge is made to the said Bank as collateral and continuing security for the payment to said Bank of all debts, obligations and responsibilities, joint, several and copartnership, which we now or at any time hereafter may owe or assume to the said Bank; and for all commercial paper, promissory notes, cheques, drafts, bills of exchange, to which we may be a party as maker, drawer, acceptor, or endorser, jointly or severally, oías member of any copartnership which may be maker, drawer, acceptor, or endorser thereof; and all loans, discounts and overdrafts to, by or for the benefit of ourselves or any firm of which we may be a member or members.</p> <p>“ And in case of a failure on our part to pay such indebtedness, obligations, or responsibilities, or any part thereof, when and as the same shall become due and payable, or to deliver to-said Bank such additional collateral as shall be from time to time demanded, or to pay such equivalent in money, we hereby authorize and empower the said Bank to sell the said hides or so much there,of as shall be sufficient to pay the amount of all such indebtedness, either at public or private sale, with or without notice; the proceeds of such sale to be applied in payment, of the amount then owing from us, or for which we may in any way be responsible to the said Bank, whether due or to become due, and the expenses attending the said sale; the balance (if' any) to be paid to us.</p> <p>“Moffatt Bros.”</p> <p>On the said date, January 23, 1895, Mr. Barnes, the cashier of the bank, went to Moffatt Bros.’s tannery, at Alden, and the 5,000 hides mentioned in the paper were separated and stored in a building known as “ The Hide House,” and thereupon the bank, on the faith of said instrument, loaned and advanced to Moffatt Bros. $15,000.</p> <p>The hides were then marked “ C. B.,” as evidence of the plaintiff’s ownership, and upon written orders from the plaintiff, the firm of Moffatt Bros, commenced to tan the said hides. The plaintiff had no knowledge of any of the dealings between the firm of Moffatt Bros, and the defendant, but on May 24,. it learned that Moffatt Bros, had shipped a large amount of “ C. B.” leather to the defendant. Upon ascertaining this fact, it at once telegraphed defendant as follows:</p> <p>“ Buffalo, May 24,1895.</p> <p>“ To Easton Boot and Shoe Co.,</p> <p>“Easton, Pa.</p> <p>“Hides shipped to you by Moffatt Bros, are our property;, separate them, and hold them on our order.</p> <p>“ City Bank, Buffalo, New York,”</p> <p>The defendant had for a period of five or six years purchased large quantities of leather from Moffatt Bros., leather manufacturers at Buffalo, N. Y., aggregating from $75,000 to $100,000 per annum. Orders were given for the leather some months in advance and shipments made from time to time on those orders, as the leather was manufactured. At the date when the final order was given, in February, 1895, two prior orders were still partially unfilled ; namely, an order given in August, 1894, and one in October, 1894.</p> <p>Moffatt Bros, did an extensive business. They shipped leather to a large number of firms all over the country, and their credit was unquestioned. There was nothing to suggest or indicate in any way to any parties dealing with them commercially that they were in the slightest degree financially weak.</p> <p>A. J. Barnes, cashier of the City Bank, testified on the trial as follows:</p> <p>“ Q. Moffatt Bros, were doing business all this time, selling leather, were they not ? A. Yes. Q. And they had control of the hide house in which these hides were deposited? A. Yes. Q. That was connected with their tannery ? A. Yes. Q. They had other hides in the same hide house ? A. They had. Q. And other hides in the process of manufacture? A. They had. Q. They were selling and buying leather and hides during all the time of this transaction ? A. So far as I know they were, yes.”</p> <p>C. M. Newton, Moffat Bros.’ foreman, testified as follows:</p> <p>“ Q. Did you continue to ship leather to various parties all over the country? A. Yes. Q. There was no change in your methods of doing business after Mr. Barnes’s visit from what it had been before? A. None at all. Q. You never saw any orders from the City Bank of Buffalo? A. No, sir. Q. You never received any orders from them? A. No, sir. Q. You never saw any of the officials of the City Bank of Buffalo, there? A. No, sir. Q. You never received any instructions from them of any character? A. No, sir; I never received any instructions from them. Q. Were there any agents, or watchmen, in charge of any hides there on the part of the City Bank of Buffalo? A. No, sir.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The trial court entered judgment for defendant.</p> <p>Error assigned among others was in entering judgment for defendant.</p> <p>The defendant was not a “ subsequent purchaser in good faith: ” Van Heusen v. Radcliff, 17 N. Y. 580; Anderson v. Read, 106 N. Y. 838; Winslow v. Leonard, 24 Pa. 17; Gonser v. Smith, 115 Pa. 456; Barnard v. Campbell, 55 N. Y. 456; Parker v. Baxter, 86 N. Y. 586; Winne v. McDonald, 39 N. Y. 240; Goodwin v. Wertheimer, 99 N. Y. 149; Fenby v. Pritchard, 2 Sanford, 151; Stalker v. McDonald, 6 Hill, 93; Phoenix Insurance Co. y. Church, 81 N. Y. 218; Farwell v. Importers, etc., Bank, 90 N. Y. 483.</p> <p>In no case is the intrusting of the possession of personal property to another, even to one whose business is to sell, sufficient to deprive the true owner of the property, even against a purchaser in good faith: Quinn v. Davis, 78 Pa. 15; McNeill v. Bank, 46 N. Y. 325; Pickering v. Busk, 15 East. 44; Woods’s App., 92 Pa. 379; Bradlee v.Whitney, 108 Pa. 363; O’Connor v. Clark, 170 Pa. 318; Wilkinson v. King, 2 Campbell, 335; Quinn v. Davis, 78 Pa. 15; Weaver v. Barden, 49 N. Y. 286; Moore v. Bank, 55 N. Y. 41; People v. Bank, 75 N. Y. 561; Bickford v. Menier, 107 N. Y. 490; Smith v. Clews, 114 N. Y. 190; Walsh v. Ins. Co., 73 N. Y. 5; Crane v. Gruenewald, 120 N. Y. 274; Eldred v. Hazlett, 33 Pa. 307; Waters’s App., 35 Pa. 523; Ream v. Harnish, 45 Pa. 376 ; Sunderlin v. Struthers, 47 Pa. 411; McKnight v. Bell, 135 Pa. 358; Sensinger v. Boyer, 153 Pa. 628; Griffiths v. Sears, 112 Pa. 523; Miller Piano Co. v. Parker, 155 Pa. 208; Bank v. Wentzel, 151 Pa. 142; Clow v. Woods, 5 S. & R. 275; Stephens v. Gifford, 137 Pa. 219; Janney v. Howard, 150 Pa. 339; Kitchen v. Lowery, 127 N. Y. 53; Jones v. Graham, 77 N. Y. 628; Tremaine v. Mortimer, 128 N. Y. 1.</p> <p>The defendant was a purchaser in good faith: Spicer v. Waters, 65 Barb. (N. Y.) 227; Merritt v. R. R., 12 Barb. 605; Stephens v. Gifford, 137 Pa. 219; O’Connor v. Clark, 170 Pa. 318.</p> <p>In Caulfield v. Van Brunt, 173 Pa. 428, this Court expressly-decided that the failure to file a chattel mortgage in New York was void as against creditors: Post v. Berwind-White Coal Mining Co., 176 Pa. 297; Macauley v. Hopkins, 35 Hun, 556.</p>

<p>Corporations — Directors—Power to convey property.</p> <p>The directors of an incorporated mutual life association cannot, in the absence of legislative authority, and without any previous action of the members, transfer the entire membership and property of the association to another corporation.</p> <p>Where a deed has been executed in the name of a corporation, in pursuance of an unauthorized act of the company’s directors, the corporation may inquire into the validity of the consideration of the deed. In doing so it is not attempting to set aside its own act, but the unauthorized act of its directors.</p>

Appeal, No. 312, Jan. T., 1897, by defendants, from judgment of C. P. No. 2, Phila. Co., March T., 1896, No. 311, on verdict for plaintiff. Replevin. Before Wiltbank, J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff under binding instructions. Defendants appealed. Error assigned was above instruction.

Appeal No. 262, Jan. T., 1897, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1897, No. 1238, making absolute a rule to open judgment. Rule to open judgment entered under ejectment clause in a lease. Before Craig Biddle, P. J., and Brjégy, J. The facts appear by the opinion of the Supreme Court. Error assigned was the order of the court.

Appeal, No. 457, Jan. T., 1897, by plaintiffs, from order of C. P. No. 1, Phila. Co., Dec. T., 1896, No. 250, refusing to take off nonsuit. Trespass for death of child two years old. Before Biddle, P. J. The facts appear by the opinion of the Supreme Court. The trial court entered a compulsory nonsuit, and refused to take it off.

<p>Appeal, No. 437, Jan. T., 1897, by-plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1896, No. 408, dismissing bill in equity.</p> <p>Bill in equity for an account.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in sustaining demurrer and dismissing the bill.</p> <p>The property of an insolvent corporation becomes, upon insolvency, a trust fund for the payment of its debts: Montgomery Web Co. v. Dienelt, 133 Pa. 585; R. R. v. Howard, 7 Wall. 392.</p> <p>This is not the case of an ordinary railroad foreclosure.</p> <p>The right of the mortgagees cannot extend beyond the property mortgaged, and the right of the receiver must necessarily have the same limitation: Gluck & Becker on Receivers, sec. 66 ; Scott v. Farmers’ L. & T. Co., 69 Fed. Rep. 17 ; Harland v. Bankers’ & M. Tel. Co., 32 Fed. Rep. 305; Smith v. McCullough, 104 U. S. 25; Penna. Co. v. Phila. & Reading R. R., 69 Fed. Rep. 482.</p> <p>The principle is that, until the mortgage creditor takes possession by his trustee or a receiver, the whole net earnings and income of the property belong to the company, and are to be applied among all its creditors; but when the mortgagee has entered into possession, then the net earnings and income from the mortgaged property is to be applied to the interest on the mortgaged debt: Blair v. St. Louis, H. & K. Ry., 25 Fed. Rep. 232; Sage v. R. R., 125 U. S. 378; Cent. T. Co. v. Rolling-Stock Co., 56 Fed. Rep. 5.</p> <p>This appropriation, effected as it was by the agreement of the creditors and debtor, was a fraud on the appellant and other general creditors of the Philadelphia and Reading Railroad Company: Farmers’ L. & T. Co. v. San Diego St. Car. Co., 45 Fed. Rep. 518; Graham v. La Crosse & Mil. R. R., 102 U. S. 148; Wabash, St. L. &. P. Ry. v. Ham, 114 U. S. 58T; R. R. v. Howard, 7 Wall. 392; Montgomery Web Co v. Dienelt, 183 Pa. 585; Pa. Transportation Co.’s App., 101 Pa. 576.</p> <p>That the forms of a judicial sale were used to effect the transfer does not validate the transaction, if otherwise invalid: Sage v. Cent. R. R., 99 U. S. 334; Canada Southern Ry. v. Gebhard, 109 U. S. 527; Biddle v. Tomlinson, 115 Pa. 299.</p> <p>If one deliver money or personal property to another under the promise of the latter to deliver it over to a third person who has a beneficial interest therein, such third person can maintain an action therefor against the promisor: Guthrie v. Kerr, 85 Pa. 303; Wynn v. Wood, 97 Pa. 216; Drake v. Phila. & Reading R. R., 21 W. N. C. 122; Adams v. Kuehn, 119 Pa. 76; Delp v. Brewing Co., 123 Pa. 42.</p> <p>The remedy sought by the bill is a proper one: 2 Lewin on Trusts, see. 613; Bound v. Ry. Co., 50 Fed. Rep. 853; Perry on Trusts, sec. 511; Nickisson v. Cockill, 3 DeG. J. & S. 622; Greenough v. Welles, 10 Cush. 571; Colton v. Colton, 127 U. S. 800.</p> <p>The decree of the United States circuit court ordering the sale of the premises and the action of the receivers in taking possession of the assets of the railroad and of the coal and iron companies, in administering the receivership, and in distributing the proceeds derived from the sale of the assets in their hands, were proper, and, whether proper or improper, in no event can the same be reviewed here, under any allegations made by the bill.</p> <p>The plan of reorganization was legal: Penna. Trans. Co.’s App., 101 Pa. 575.</p> <p>There was no appropriation for the appellant’s benefit of the stockholders’ contributions under assessments. There was no provision for a contingent fund out of bonds and shares to be created by the new company, applicable to the payment of the indebtedness of the railroad company or of its stockholders.</p> <p>A court of equity has jurisdiction to entertain a bill averring that a conveyance, by means of a judicial sale, under a decree of another court, was in fraud of the complainant’s rights, and to afford him such relief as will protect or restore his rights, notwithstanding the forms of law were scrupulously observed; and without assuming to control, supervise or annul the proceedings of such other court, it may by its decree lay hold of the parties and compel them to do that which, according to the principles of equity they ought to do, and thereby secure and establish the rights of the plaintiff: Arrowsmith v. Gleason, 129 U. S. 86; Jackson v. Ludeling, 21 Wall. 616 ; Gaines v. Fuentes, 92 U. S. 10; Barrow v. Hunton, 99 U. S. 80; Johnson v. Waters, 111 U. S. 640; Marshall v. Holmes, 141 U. S. 689 ; DeNeufville v. N. Y. & N. Ry. Co., 81 Fed. Rep. 10; Farmers’ L. & T. Co. v. N. Y. & Northern Ry. Co., 150 N. Y. 410.</p>

Appeal, No. 36, Jan. T., 1898, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1895, No. 730, overruling demurrer to return to writ of mandamus. Demurrer to return to alternative writ of mandamus. The facts appear by the opinion of Pennyracker, J., which was as follows : The respondents are the members of the board of public education.

<p>Practice, Supreme Gourt — Charge of court — Record—Appeal.</p> <p>A charge of the court is regularly on the record where it is contained in a formal bill of exceptions signed by the judge.</p> <p>Negligence — Charge of court.</p> <p>In an accident case where all the evidence shows that the deceased was struck by a wagon as he was crossing the second of two railway tracks on a street, it is reversible error for the court to say to the jury “ from the evidence it appears that he had only begun to cross.”</p> <p>In an action to recover damages for death it was claimed that the driver of defendants’ wagon rapidly and recklessly drove against the deceased. The defendants claimed that the deceased darted unexpectedly in front of the horse and was struck, by his own fault. The court charged: “ There can be no question about the negligence of the deceased, because there is no evidence which directly shows what he was doing, except the evidence of the two boys, and they say that he stepped directly in front of the horse. At all events, it is important for the jury to consider where he was when he was struck, and from the evidence it appears that he had only begun to cross.” Held, that the charge was confusing and misleading, and that a judgment on a verdict for the plaintiff should be reversed.</p>

<p>Will — Nuncupative will — Evidence.</p> <p>In order to constitute a nuncupative will each requisite of tlie statute must be strictly proved, and it must be shown that there was present not only the animus testandi, but also the mind and intent to nuncupate.</p> <p>The testamentary words of the decedent as committed to writing and offered for probate were “ Everything is to go to Willie, everything is Willie’s. I want everything to go to Willie.” Two of the three witnesses to whom the words were addressed testified to them at the hearing in substantially the same form. The third witness stated them with an addition as follows: “ ‘ Mary, don’t you or the children worry about anything, I want Willie, brother Willie,” she said, ‘to have everything — ithas been put off. I intended to fix it so there would be no trouble, but it has been put off.’ ” The witness further said “ she realized then she was not able to do anything.” Other witnesses testified that on several previous occasions decedent had used similar words as to her intention, as soon as she was able to “ fix everything for brother Willie.” There was no evidence that decedent made any explicit call on persons present to bear witness that the declarations which she made were intended as her will. The nurse testified that the decedent requested the presence of her family, but the purpose of the request was not stated. Meld, that the evidence was not sufficient to establish a nuncupative will.</p>

<p>Appeal, No. 100, Jan. T., 1898, by defendants, from judgment, of C. P. Blair Co., Oct. T., 1897, No. 69, on verdict for plaintiffs.</p> <p>Assumpsit to recover an overdraft. Before Bell, P. J.</p> <p>At the trial counsel for plaintiffs offered in evidence the following checks of A. C. Moyer & Co. upon the banking house of Gardner, Morrow & Co.:</p> <p>Check dated August 5; 1894 .... 9 4.00</p> <p>“ “ September 8, 1894 40.00</p> <p>“ “ September 8, “ . 60.00</p> <p>“ “ September 18, “ . . . 60.00</p> <p>“ “ September 27, “ . 138.70</p> <p>“ “ November 12, “ 50.33</p> <p>“ “ January 17, 1895 .... 47.00</p> <p>“ “ February 14, “ ... 35.00</p> <p>February 16, “ U 19.60</p> <p>April 2, “ U 140.96</p> <p>July 24, “ 46.50</p> <p>October 11, “ ... 46.50</p> <p>January 28, 1896 .... 16.00</p> <p>April 2,1895, drawn upon Gardner, Morrow & Co. by A. C. Moyer & Co. for the sum of....... Draft 46.50</p> <p>This for the purpose of showing that upon the request of defendants, plaintiffs paid and advanced to defendants, upon their written orders, the amounts of money represented by these checks and drafts; to be followed with evidence showing the credits of defendants in the bank, and the bank book of the defendants.</p> <p>Counsel for the defendants objected (1) because the plaintiffs have not declared upon these checks, and the offer is a departure from the pleadings in the' case; (2) the payment of a check is not even prima facie evidence of an indebtedness of the drawer of the check. A check is the draft of a person upon a fund in the possession of another, and it is no evidence in this case of an indebtedness owing by the defendants to these plaintiffs. Plaintiffs cannot, by tbe production of checks and bank books simply, show an indebtedness arising upon an overdraft by checks. The payment of a check is presumed in law to be the payment of a debt by the drawee to the drawer. Before liability arises the plaintiffs must show by proper testimony, either parol or otherwise, that it was an overdraft, because there may be other credits to which the parties are entitled that do not appear by that simple transaction, evidenced by the checks alone.</p> <p>By the Court: If the offer is to be followed by the evidence indicated, we will admit it as preliminary proof leading up to the proof of an overdraft. To which the defendants except. Bill sealed. [1]</p> <p>Counsel for plaintiffs now offers in evidence note of A. C. Moyer & Co., payable to the order of F. H. Hastings, cashier, dated October 8, 1895, for $3,000. Paid by Gardner, Morrow & Co., January 15, 1896. Indorsed: For collection and credit for account of Second National Bank, Altoona, Pa. Frank Hastings, cashier.</p> <p>To be followed with evidence that the note offered was paid by Gardner, Morrow & Co.</p> <p>Counsel for defendants object to this offer because it is not declared upon as plaintiffs’ cause of action in this case; that the plaintiffs, withouts an amendment to the pleadings, cannot offer in evidence a note of A. C. Moyer & Co. held by the Second National Bank of Altoona; that there is no notice to these defendants that they would be called upon to meet a liability arising from the note just now offered; that the note not being the subject of book entry the defendants had no notice they would be surcharged in this issue with either this or any other note.</p> <p>By the Court: As I understand the offer it is to be followed by proof of the bank book and pass book of the defendants showing an overdraft; and as preliminary proof, leading up to the overdraft, I will admit the note in evidence. To which the defendants except. Bill sealed.</p> <p>Counsel for plaintiffs offers in evidence the bank pass book of A. C. Moyer & Co. with Gardner, Morrow & Co., having therein upon the credit side the checks, drafts and note read in evidence, and containing the debits or deposits made by A. C. Moyer & Co. with the firm of Gardner, Morrow & Co., showing a balance of $1,312.29 due Gardner, Morrow & Co.</p> <p>Counsel for defendants object to the offer of the bank book: (1) Because the charge of the note for $3,000 is not indicated in the bank book as the note now offered in evidence by the plaintiffs; (2) there is no evidence to show, either upon this-book or otherwise, that any settlement was made with the defendants, the book showing simply an ex parte transaction, which only represents a part of the transaction between the plaintiffs and defendants.</p> <p>By the Court: I am of opinion that where a bank book is-produced by the defendant on notice from the plaintiffs, and that bank book, which is in possession of the defendants, shows-a balance due the bank, it is prima facie evidence that the balance is correct, because when a customer of a bank has an account settled by the bank and thinks it is incorrect, he at once takes it back for rectification. If he has his individual bank book in his possession, showing an overdraft, I think it isprima facie evidence of the overdraft shown by it. Therefore I admit the bank book in evidence. To which the defendants except. Bill sealed.</p> <p>Counsel for defendants offered to prove by James P. Gardner, that on or about January 15,1896, this witness called upon the firm of Gardner, Morrow & Co., composed of Anthony S. Morrow and William Jack, at their banking house in Hollidaysburg, at which time there was an interview and an agreement between the witness and Anthony S. Morrow, representing the plaintiffs, to this effect. Prior to this time, the Second National Bank of Altoona held a note for $3,000, signed by the-firm of A. C. Moyer & Co., which firm was then composed of' A. C. Moyer and T. S. Gardner, the father of witness, and at. the interview between Morrow, representing the bank, and the witness, it was agreed, at the request of the witness, representing the firm of A. C. Moyer & Co., that Gardner, Morrow &. Co. should lift the note held by the Second National Bank of Altoona, and charge the same to the account of T. S. Gardner,, in the bank of Gardner, Morrow & Co., and credit thereon the-balance that was due from Gardner, Morrow & Co. to A. C. Moyer & Co.; that it was then and there expressly agreed by Mr. Morrow, representing the plaintiffs, that the bank would lift this note and credit thereon the balance due in bank to A. C. Moyer & Co., and the balance due from Gardner, Morrow & Co. to T. S. Gardner, amounting to over $1,000 upon the note and, if there was any balance of the note unpaid, it was agreed that the estate of T. S. Gardner should pay it. Upon the good faith of that transaction Mr. Morrow went to the Second National Bank of Altoona and lifted this note, and the estate of T. S. Gardner, acting upon the agreement, appropriated, under this agreement, the balance in bank to his credit to the payment of this note ; that that balance in bank was permitted to remain there under this appropriation ever since, without being checked upon, except a few items for freight that were an incidental charge to that account. This for the purpose of showing a further credit of $1,092 upon this note.</p> <p>If objection be taken to the fact that James P. Gardner is a son of T. S. Gardner, defendants offer to prove that T. S. Gardner died intestate leaving a widow, Anna P. Gardner, and two children, Paul D. Gardner and James P. Gardner, the witness on the stand; that the estate of T. S. Gardner, represented by the widow and Paul D. Gardner, by an agreement dated January 3, 1898, and herewith exhibited to the court, released the witness from any liability, concurred in the appropriation that was made, and assented to his competency as a witness to testify to these facts; that upon the death of T. S. Gardner, James P. Gardner and Anna P. Gardner were duly appointed the administrators of his estate, and the appropriation and agreement made between Anthony S. Morrow and the witness was made between Morrow and the witness as administrator of the estate of T. S. Gardner, to which his coadministratrix, Anna P. Gardner, assented.</p> <p>It is admitted that there is a balance of $240 or $250 due the plaintiffs upon this note, and this evidence is offered for the purpose of showing an additional credit upon the note in suit.</p> <p>And it is further offered to show by the witness on the stand that the alleged settlement, as appears by the bank book of A. C. Moyer & Co. offered in evidence by the plaintiffs, was settled after the death of Anthony S. Morrow, and that he then and there insisted upon this additional credit being placed upon the note; that Mr. Gardner, upon the production of this bank book to him, objected to that balance as being the amount due from A. C. Moyer & Co. to the plaintiffs in this case.</p> <p>In support of this offer counsel for defendants offer in evidence the release and the agreement executed by Anna P. Gardner, Paul D. Gardner and James P. Gardner permitting witness to testify. They propose further to show that Gardner and Morrow made a deed of assignment for the benefit of creditors, which assignment has been admitted in evidence, and that the estate of A. S. Morrow was then and is now totally insolvent, and that the estate of Anthony S. Morrow is in no manner affected by this evidence; that the real question at issue is between these defendants and the creditors of Gardner and Morrow, and not with the estate of Anthony S. Morrow.</p> <p>Counsel for plaintiffs objects to the offer as a whole as being incompetent, irrelevant and immaterial, and as constituting a variance from the allegations of the affidavit of defense.</p> <p>He objects to that portion of the offer relating to the fact that the account of James P. Gardner, and Anna P. Gardner, administrators of T. S. Gardner, deceased, was entitled to be charged with such part of the overdraft in suit as will amount to the balance of their account in bank, for the reason that James P. Gardner and Anna P. Gardner, administrators of T. S. Gardner, are not parties, to this action, have no rights herein to be affected, and are not entitled to have any rights adjudicated here; and the release of interest offered in evidence does not make this witness competent to testify in behalf of parties whose rights are not in litigation, and is not sufficient to constitute a consent that the balance in the account of T. S. Gardner’s administrators shall be set off upon plaintiff’s claim.</p> <p>He objects to the testimony offered for the reason that the alleged agreement between Gardner, Morrow & Co. and James P. Gardner was an agreement, if made at all, between the witness, who is a party defendant in this case, with A. S. Morrow, then a partner of Gardner, Morrow & Co., the said A. S. Morrow having since died, and the death of A. S. Morrow makes this witness incompetent to prove any facts connected with the claimed agreement which might adversely affect the firm of Gardner, Morrow & Co. or A. S. Morrow’s estate.</p> <p>He objects to the testimony, in so far as it is desired to prove the fact that the estate of A. S. Morrow, deceased, is not affected by the proposed proof, for the reason that if the evidence is admitted and the agreement is adjudicated as proved, the result will affect the estate of A. S. Morrow, deceased, for the reason that his estate is liable for all the debts of Gardner, Morrow & Co., and the result of a finding by this jury as influenced by the evidence proposed to be proved, allowing the estate of T. S. Gardner, a credit upon the overdraft of Gardner, Morrow & Co. against A. C. Moyer & Co., will be to reduce the available assets of Gardner, Morrow & Co., and thus increase the actual liabilities of the estate of A. S. Morrow, deceased.</p> <p>He objects to the introduction of the fact that the bank book in evidence was settled after the death of A. S. Morrow as irrelevant, immaterial and incompetent under the issues in the case.</p> <p>By the Court: I think the witness called is a party whose interest is adverse to Anthony S. Morrow, a deceased party, and that this case comes within the exception of the act of 1887 allowing every person to be a competent witness. Therefore I exclude that part of the offer which proposes to prove a contract or interview between the witness and A. S. Morrow, representing Gardner, Morrow & Co.; but I will allow the witness to testify as to occurrences since the death of A. S. Morrow, and if the account in the bank book of defendant was settled after the death of A. S. Morrow I will allow the witness to testi fy to at least a portion of what took place when his attention was called to such settlement in his bank book. Just how much or to what extent he can so testify it is not now necessary to rule.</p> <p>To which the plaintiffs and defendants both except and bill sealed for both parties. [4]</p> <p>Under this offer, the witness, James P. Gardner, testified: Q. The plaintiffs have offered a bank book of A. C. Moyer & Co., purporting to contain a settlement of the account of A. C. Moyer with these plaintiffs. Did you have that bank book in your hand? A. Yes, sir. Q. When was that bank book with that settlement given to you ? A. I can’t give the date. Q. With reference to the life of A. S. Morrow? A. It was some time after the death of A. S. Morrow. Q. State who gave it to you. A. It was either Mr. Cree or his agent at the bank. I think Mr. Cree handed it to me himself. Q. Were you present at the settlement of that account, or was it settled in your absence ? A. There has been no settlement of it as far as I know. Q. Was it balanced in your presence? A. No, sir; it was handed to me in the shape it is in now. Q. State whether or not you made any objection to the balance at the time when it was given to you. A. I didn’t make the objection at that day, because I just put it in my pocket and took it home to refer to it; but immediately, or the next day, I think it was, I went and hunted up Mr. Cree and stated that the balance was not correct. Q. What did you state as to wherein it was wrong ? A. I said there should have been a further credit of — ”</p> <p>Counsel for plaintiffs objects to what the witness stated to Mr. Cree, as plaintiffs do not contend that there was any settlement of this bank account or any admission on the part of James P. Gardner or Moyer & Co., that the account was correct. In the offer of the book counsel for plaintiffs offered the credits deposited in the bank, leaving the balance to be struck, but will not claim to the jury that there ever was an admission upon the part of the defendants that the bank account was correct.</p> <p>Counsel for defendants proposes to show wherein the witness objected to it and what the error was he complained of.</p> <p>By the Court: As plaintiffs’ counsel has stated that he does not claim that defendants ever admitted it was correct, I sustain the objection. I do not see that it is material. [4]</p> <p>The court charged in part as follows:</p> <p>[As I understand and recollect the argument of defendants’ counsel, they mostly lay the stress on Mr. Morrow’s statement that he had to do it, and ask you to infer that when he said he had to do it he meant he had entered into a contract with the Thaddeus Gardner estate whereby he was bound to lift the $3,000 note, and the Thaddeus Gardner estate was bound to apply the balance due them in payment of said $3,000 note, on the overdraft of the Moyer account, which would result from charging up the $3,000 note to the A. C. Moyer account.] [6]</p> <p>[Now the plaintiffs seek to draw an entirely different inference from the facts in evidence. They say, in the first place, that no inference of a contract, such as defendant-s claim, is to be drawn from the-act of Gardner, Morrow & Co., in paying this $3,000 note, which was payable at the Second National Bank; that it is the custom among bankers often to pay matters which apparently are not directly drawn on their bank; for instance, life insurance policies of their customers, dues of building and loan associations, etc.; that they often pay these matters which are not directed to them in the form of a check or a note payable at their bank, and that they then charge them up to their customers as if they had drawn a check for them; that that is the reasonable and natural explanation of why Mr. Morrow apparently went out of his way to pay a note which was made payable at the Second National Bank of Altoona.</p> <p>Then, too, in effect, it is claimed on the part of the plaintiffs that Mr. Morrow was not a shrewd, careful banker; but that he was a gentleman easily persuaded and that James P. Gardner was a grandson of his old partner, James Gardner, Sr., and that when he said he had to do it for James, that he meant simply, not that he was bound by any contract to do it, but that James had persuaded him to do it.] [7]</p> <p>Verdict and judgment for plaintiffs for $1,469.75. Defendants appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (6-7) above instructions, quoting them.</p> <p>Two questions are involved in the first three specifications of error; first, the admissibility of the note under the offer, without an offer of any evidence explaining the fact of payment .and the possession of the note by defendants. Under the pleadings, it was not admissible, and could not be without amendment, and this, plaintiffs’ counsel refused to do. Under the facts as they appeared, it, of itself, is not evidence of debt. It was in the possession of defendants rightfully. It was paid, and so written on its face in the handwriting of plaintiff, and it was further canceled by the stamp of Gardner, Morrow & Co.; second, the account was not admissible. The entries were not the subject of book entry: Nickle v. Baldwin, 4 W. & S. 290 ; Lonergan v. Whitehead, 10 W. 249; Alexander v. Hoffman, 5 W. & S. 382; Eshleman v. Harnish, 76 Pa. 97 ; Haverly v. Mercur, 78 Pa. 257 ; Stuckslager v. Neel, 123 Pa. 53; Shoemaker v. Kellog, 11 Pa. 310; Corr v. Sellers, 100 Pa. 169.</p> <p>James P. Gardner was a competent witness : Dickson v. Mc-Graw, 151 Pa. 98 ; Patterson v. Dushane, 27 W. N. C. 41; Kuhns’s Est., 163 Pa. 438; Turner v. Warren, 160 Pa. 336 ; Pringle v. Pringle, 59 Pa. 281; McClelland v. West, 70 Pa. 183; Updegraff v. Rowland, 52 Pa. 317.</p> <p>An overdraft is an irregular loan by the bank to the customer, and can he recovered by the bank in an action therefor, and the form of action is indebitatus assumpsit for money paid to his use: Bank v. Macalester, 9' Pa. 475; Morse on Banks & Banking (3d ed.), see. 357; Montgomery v. Exchange Bank, 5 Cent. Rep. 261; Meighen v. The Bank, 25 Pa. 288; Union Bank v. Knapp, 3 Pick. 96; Heller v. Royal Ins. Co., 151 Pa. 101.</p> <p>Where paid checks of a depositor constitute overdraft of his account they may he introduced in evidence to prove the overdraft: Morse on Banks & Banking (3d ed.), sec. 460.</p> <p>Gardner was an incompetent witness: Hanna v. Wray, 77 Pa. 27; Standhridge v. Catanach, 83 Pa. 368; Dickson v. Mc-Graw Bros., 151 Pa. 98; Yard v. Pancoast, 108 Pa. 384.</p>

<p>Partnership — Dealing in lands.</p> <p>An unincorporated association organized to buy and sell lands is essentially a partnership.</p> <p>Partnership — Pule of court — Denial of partnership — Dand association. A rule of court which provides that in actions by or against partners the partnership shall be taken to be admitted as alleged on the record, unless one of the defendants before pleading shall file an affidavit denying the existence of the partnership in relation to the subject-matter of the action, includes partnerships in particular transactions, such as in the buying and selling of land.</p> <p>Evidence — Discrediting witness — Discretion of trial judge.</p> <p>The right to discredit a witness by proof of' contradictory statements without first calling his attention to them in order that he may have an opportunity to explain or reconcile them is a matter within the sound discretion of the trial judge, upon the circumstances before him. When the witness is a party his declarations out of court, as admissions, constitute independent evidence of themselves, and may be proved without first giving him an opportunity to explain.</p> <p>A letter written by the plaintiff, two years before his evidence was taken, to a person who was not a party to the transaction nor interested in it, and not contradicting any statements in his testimony, nor showing an admission against the right to recover, is properly excluded when offered by defendant, to discredit plaintiff’s testimony,.</p>

<p>Appeal, No. 63, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T. 1896, No. 240, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit for ground rent.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Craig Biddle, P. J.</p> <p>The averments of the affidavit of defense are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule for judgment.</p> <p>Section 7 of the act of April 27, 1855, does not apply to rents reserved before its passage, because such application would impair the contract: Angelí on Limitations, 37; Green y. Biddle, 8 Wheat. 1.</p> <p>This is not a statute perfecting title by adverse possession: Haines’s App. 73 Pa. 169. Biddle v. Hooven does not rule this case.</p> <p>The act of April 27, 1855, is constitutional: Korn v. Browne, 64 Pa. 55; Biddle v. Hooven, 120 Pa. 221; Wallace v. Church, 152 Pa. 258 ; Sharpless v. Phila. 21 Pa. 164; Terry v. Anderson, 95 U. S. 628.</p>

<p>Appeal, No. 449, Jan. T., 1897, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1895, No. 597, refusing to take off nonsuit.</p> <p>Trespass to recover damages for personal injuries. Before Beitler, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The trial court entered a compulsory nonsuit and refused to take it off.</p> <p>Error assigned was refusal to take off nonsuit.</p> <p>The case was for the jury: Frame v. Electric Traction Co., 180 Pa. 49; Thompson v. Traction Co., 180 Pa. 114; Jackson v. Traction Co., 159 Pa. 899 ; Kline v. Traction Co.; 181 Pa. 276; Davidson v, Traction Co., 4 Pa. Superior Ct. 86; Smith v. Traction Co., 3 Pa. Superior Ct. 129; Howett v. R. R., 166 Pa. 607; Gilmore v. Ry., 153 Pa. 31; Thatcher v. Traction Co., 166 Pa. 66 ; Lott v. R. R., 159 Pa. 471; Kestner v. Traction Co., 158 Pa. 422; Gibbons v. Ry., 155 Pa. 279; Evers v. Traction Co., 176 Pa. 376 ; Beard v. Ry. Co., 3 Pa. Superior Ct. 171; Dunseath v. Traction Co., 161 Pa. 124 ; Harkins v. Traction Co., 178 Pa. 146 ; Haney v. Traction Co., 159 Pa. 395.</p> <p>cited on the question of negligence: Yingst v. Lebanon, etc., Ry., 167 Pa. 438; Cominskey v. Ry., 4 Pa. Superior Ct. 631; Wood v. R. R., 177 Pa. 806.</p> <p>Cited on the question of contributory negligence, R. R. v. Aspell, 23 Pa. 147; N. P. R. R. v. Hileman, 49 Pa. 60; Nagle v. R. R., 88 Pa. 35 ; Barnes v. Sowden, 119 Pa. 53; Thomas v. Citizens’ Pass. Ry., 132 Pa. 504; Carson v. Federal St., etc., Ry., 147 Pa. 219; Eliminan v. Ry., 150 Pa. 180; Wheelahan v. Pliila. Traction Co., 150 Pa. 187; Gilmore v. Ry., 153 Pa. 31; Winter v. Ry., 153 Pa. 26; Omslaer v. Pittsburg, etc., Trac. Co., 168 Pa. 519; Buzby v. Trac. Co., 126 Pa. 559; Warner v. Pass. Ry., 141 Pa. 615; Harris v. Commercial Ice Co., 153 Pa. 278; Flanagan v. The People’s Pass. Ry., 163 Pa. 102; Rauscher v. Pliila. Trac. Co., 176 Pa. 349; Nugent v. Traction Co., 181 Pa. 160; B1 aney v. Traction Co., 41 W. N. C. 555</p>

Appeal, No. 35, Jan. T., 1898, by defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1896, No. .530, on verdict for plaintiff. Trespass for personal injuries. At the trial it appeared that plaintiff, a boy sixteen years old, was working at a carding machine in defendant’s woolen mill, and was hurt while cleaning the machine.

<p>Appeal, No. 432, Jan. T., 1897, by William Root, from decree of O. C. Phila. Co., Jan. T., 1883, No. 94, dismissing exceptions to readjudication.</p> <p>Exceptions to readjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to readjudication.</p> <p>—It is, in this state, well settled that where there is a person of the blood of the testator who corresponds to the description, it is not permitted to prove either that an illegitimate relation or one connected by marriage is meant: Appel v. Byers, 98 Pa. 479 ; Lewis v. Fislier, 2 Yeates, 196 ; Green’s App., 42 Pa. 25 ; Johnson’s App., 3 W. N. C. 52; Tucker v. Seaman’s Society, 7 Metcalf, 188; Comfort v. Mather, 2 W. & S. 450 ; Sword v. Adams, 3 Yeates, 34; Woodman v. Good, 6 W. & S. 169; Coale v. Smith, 4 Pa. 376; Wusthoff v. Dracourt, 3 Watts, 240.</p> <p>cited Falkner v. Butler, 1 Ambler, 513; Shelley v. Bryer, Jacob’s Ch. R. 207; Smith v. Lidiard, 3 K. & J. 252; Thompson v. Robinson, 27 Beav. 486; Frogley v. Phillips, 30 Beav. 168 ; Weeds v. Bristow, L. R. 2 Eq. Cases, 333; In re Blower’s Trusts, L. R. 6 Ch. App. 351; Wells v. Wells, L. R. 18 Eq. Cases, 504 ; Merrill v. Morton, L. R. 17 Ch. Div. 382; Wilks v. Bannister, L. R. 30 Ch. Div. 512; In re Jodrell, L. R. 44 Ch. Div. 590.</p>

<p>Corporations — Collateral attach upon charter — Forfeiture — Turnpike road companies — Street railway companies.</p> <p>Where a turnpike road company has a franchise under an old charter to construct and operate a street railway upon its roadbed, but has never exercised such right, the franchise can be forfeited only in a direct proceeding by tiie commonwealth; not in a proceeding by a street railway company organized under the Act oí May 14, 1889, P. L. 211, to condemn a right of way over the roadbed.</p> <p>Where a turnpike road company lias a right under its charter to construct a street railway on its roadbed, a street railway company subsequently organized has no power to lay its structure on the same roadbed.</p> <p>It seems that article 16, section 1, of the constitution, relating to the forfeiture of existing charters, or grants of special or exclusive privileges, does not apply to an active existing corporation, fully organized, and doing business in good faith at the time of the adoption of the constitution, although such corporation has an additional privilege or franchise which it lias not exorcised.</p> <p>A turnpike company which has a right to lay railway tracks on its roadbed may, in condemnation proceedings instituted against it by a street railway company organized under the act of May 14, 1889, deny the latter company’s right to lay tracks, although it is expressed in the charter of the street railway company that it has the right to lay tracks upon the turnpike road. Such a right is not essential to the validity of the street railway company’s charter, and therefore its adverse determination in a collateral proceeding does not affect the charter.</p>

<p>Appeal, No. 52, Jan! T., 1898, by defendants, from judgment of C. P. No. 4, Phila Co., June T\, 1896, No. , on verdict for plaintiff.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, P. J.</p> <p>At the trial it appeared that on April 14, 1896, plaintiff was injured by the fall of an elevator which he was operating in defendants’ warehouse.</p> <p>Other facts sufficiently appear by the opinion of the Supreme Court.</p> <p>Plaintiff’s points and the answers thereto among others were as follows:</p> <p>2. The mere fact that defendants have shown that repairs were made to the elevator whenever their attention was directed to its defective condition by the plaintiff, does not release them from liability resulting from injuries suffered by tbeir servant. If you should find from the evidence that the repairs made were inadequate or deficient, or that the condition of the elevator Avas not such as would justify a prudent man in permitting his servant to continue to use the same, then your verdict should be for the plaintiff. Answer: That point I affirm. [2]</p> <p>3. If the jury believe that the defendants’ agent told the plaintiff, after having repaired the elevator the morning of the accident, that the same was all right and to go ahead, and the plaintiff, in consideration and in accordance with said information, and confiding in the promise of the defendants’ agent, did immediately commence to operate said elevator, which at the time of the admission and promise by defendants’ agent was in a defective and dangerous condition, and Avhich was unknown to the plaintiff, and Avhich could or should have been known to the defendants, and in consequence of the defective and dangerous condition of said elevator plaintiff suffered the injuries complained of, your verdict should be for the plaintiff. Answer: That point I affirm. [3]</p> <p>4. If the jury believe, as has been testified to, that the defendants had been Avarned by the screaming of the elevator that the parts were being worn, and that by the wearing or friction the gear or worm wheel had its cogs worn down so thin as to render them liable to break upon operating the elevator, so reducing the factor of safety as to make it dangerous to run the elevator, and that the defendants neglected to remedy or repair this defect, or put in a neAV gear wheel, although they may have made other repairs to the elevator, and that it was by reason of this defective and worn out gear Avheel that the elevator broke and this accident happened, then yon should find a verdict for the plaintiff. Answer : That point I affirm. [4]</p> <p>5. Even if the defendants did not knoAv the exact cause of the accident, or did not know of the defect in the machinery, yet if the jury believe that this eleArator had been out of repair previous to the accident, and that the circumstances Avere such as to give the defendants notice that there was something wrong Avith the elevator and the apparatus for running the same, and if the jury believe that the repairs made to the elevator were such as would be merely superficial, or inadequate, or deficient in their character, then the jury should find that by the exercise of reasonable care tbe defendants should have known of the defect in the elevator, or the machinery for working the same, and should have properly and entirely repaired or replaced the same, and the jury should therefore find'a verdict for the plaintiff. Answer: That point I affirm. [5]</p> <p>Verdict for plaintiff for $8,645. Upon remittitur filed, judgment was entered for $5,000. Defendants appealed.</p> <p>Errors assigned were (2-5) above instructions quoting them.</p> <p>A workman ordered to desist from work until repairs are made cannot, expect at his own risk, resume work until the repairs have been declared to be satisfactory by the master or a vice principal, or. until a sufficient time has elapsed to charge the master with knowledge of their insufficiency: Wharton on Negligence (2d ed.), sec. 230; Morgan v. Ry., 5 Best & Smith, 570; Kelley v. Nor-cross, 121 Mass. 508; Tunney v. Ry., L. R. 1 C. P. Cases, 291; New York, L. E., etc., R. R. v. Bell, 112 Pa. 404; Johnson v. Boston Tow-Boat Co., 135 Mass. 209; Schulz v. Rohe, 43 N. E. Rep. 420; Lehigh Val. Coal Co. v. Jones, 86 Pa. 432; Faulkner v. Ry., 49 Barbour, 324; Lineoski v. Coal Co., 157 Pa. 153; Campbell v. Penna. R. R.,' 17 W. N. C. 73.</p> <p>A master is not an insurer against accidents: Northcoate v. Bachelder, 111 Mass. 322; Mansfield Coal and Coke Co. v. McEnery, 91 Pa. 185; Durgin v. Munson, 91 Mass. 400; Malone v. Hathaway, 64 N. Y. 5; Hofnagle v. N. Y. C. & H. R. R. R., 55 N. Y. 610; Tarrant v. Webb, 18 C. B. 798.</p> <p>The question whether the repairs made by Blackman were sufficient and adequate, was properly left for the determination of the jury: Mulvey v. R. I. L. Works, 14 R. I. 204; Corcoran v. Holbrook, 59 N. Y. 517.</p> <p>Blackman was not a fellow servant: Fuller v. Jewett, 80 N. Y. 46 ; Kirkpatrick v. N. Y. Cent., etc., R. R., 79 N. Y. 240 ; Myers v. Hudson Iron Co., 150 Mass. 125; Moynihan v. Hills Co., 146 Mass. 587 ; Mahoney v. Dore, 155 Mass. 513; Toy v. Cartridge Co., 159 Mass. 313.</p> <p>This is not a case where the servant accepts the risks of his employment: Chicago, etc., R. R. Co. v. Kneirim, 152 111. 461 ; Bannon v. Lutz, 158 Pa. 166; Bennett v. Glass Co., 158 Pa. 120; Brownfield v. Hughes, 128 Pa. 194.</p> <p>The following are a few of the Pennsylvania cases where the Supreme Court has held that a servant was entitled to recover damages for injuries sustained through defective machinery, notwithstanding the master had remedied the defect to which his attention had been directed: Sopherstein v. Bertels, 178 Pa. 407: Bier v. Standard Mfg. Co., 130 Pa. 446; Penna. & N. Y Canal and R. R. Co. v. Mason; Same v. Leslie, 109 Pa. 296; Walbert v. Trexler, 156 Pa. 112; Fritz v. Jenner, 166 Pa. 292; Kingan v. Pittsburg Traction Co., 5 Pa. Superior Ct. 436.</p>

Appeal, No. 60, Jan. T., 1898, by plaintiff, from judgment of O. P. No. 4, Phila. Co., June T., 1895, No. 911, on verdict for defendant. Assumpsit to recover a balance alleged to be due in tbe purchase and sale of stocks. Before Willson, J. Tlie facts appear by tlie opinion of the Supreme Court.

Appeal, No. 76, Jan. T., 1898, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1897, No. 221, refusing to take off nonsuit. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. The trial court entered a compulsory nonsuit and refused to take it off. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 430, Jan. T., 1897, by plaintiff, from judgment of C. P. Luzerne Co., Jan. T., 1893,' No. 50, on trial by court without a jury.</p> <p>Appeal from report of viewers.</p> <p>Tlie ease was tried by the court without a jury before Bennett, J., under the Act of April 22, 1874, P. L. 109.</p> <p>At the trial it appeared that the defendant took for railroad purposes portions of two culm banks.</p> <p>When W. A. Lathrop, a witness for plaintiff, was on the stand he was asked on direct examination:</p> <p>“ Q. Suppose that fill had been borrowed from some place in the vicinity there close by, how much would it have been worth to the defendant company to have borrowed it somewhere else, per cubic yard?”</p> <p>Objected to by defendant.</p> <p>The Court: I cannot see how that is testimony. I do not think either side would be bound by what it would have cost to have gone some other place. We sustain the objection. Plaintiff excepts and bill sealed. [7]</p> <p>The court found as to the measure of damages in an opinion in part as follows:</p> <p>8. [A further consideration of this subject convinces us that while as we have already found, the plaintiff is entitled to compensation for the value of the coal in question, considered as such, as an element of damages in the cause, and for that purpose Avas entitled to show, as nearly as possible under the circumstances, the quantity and quality of such coal and the fair value thereof to itself at the time of the taking, yet, that the value as indicated by the method of showing it adopted by the plaintiff’s witnesses, is speculative, contingent and fanciful; that the plaintiff is not entitled to damages upon that basis, and that the testimony in question, so far as relates to the valuation of the coal, is incompetent and should be disregarded.] [2]</p> <p>It may be remarked that, in effect, this evidence assumes, (a), that this coal, amounting to a given number of tons, was all screened, cleaned and prepared for sale at the breaker in December, 1892, whereas it was still in place in the banks, and 'its exact quantity could not then be determined; (6), that the whole quantity thus assumed to have been prepared could have been sold at the breaker at going rates in December, 1892, for the daily or monthly output of these less salable sizes, whereas the preparation of all this coal was then impossible and the prices were fluctuating; (c), that the cost of production would have been a given amount per ton, although no coal from these banks had been thus prepared at that place, and the requisite machinery for that purpose did not there exist; (d), that the whole amount of the price for this coal would have been presently receivable in 1892, whereas at best it would only have been received in monthly instalments, according to production, during a term of years; and finally, it involves, as the then present value of the coal, (e), the assumed profits of combined capital, consisting of coal in place, money and competent supervision, and makes no allowance for the risks and losses incident to business enterprise. We know of no authority justifying this basis of compensation or method of estimating damages in cases of the taking of propert}1, under the right of eminent domain, and that there are none we deem it sufficient to refer, without further comment, to the case of Becker v. Railroad Co., 177 Pa. 252, and the principles and authorities there enunciated and cited.</p> <p>We do not regard as in point the cases of Coleman’s Appeal, 62 Pa. 279, Ege v. Kille, 84 Pa. 340, Coal Co. v. Rogers, 108 Pa. 147, and McGowan v. Bailey & Co., 179 Pa. 470, which hold that under particular circumstances such a,s existed in those cases, — neither of them being a taking under the right of eminent domain, — the value of ore or coal in place may be taken to be its value at the pit’s mouth or in the market, as the case may be, less the cost of putting it there. Each of those cases recognizes the true rule to be the value of the mineral in place, not complicated with the question of the cost of production, wherever the formei! can be shown, without reference to the latter; and as pointed out in Coleman’s Appeal, the method there allowed of showing value in place results in producing too great a value, in not making a reasonable deduction from the price of the mineral mined or marketed, for the profits of capital and the value of personal skill and superintendence, as well as cost of labor and machinery, where such capital, skill and superintendence are employed. See also, Fulmer’s Appeal, 128 Pa. 24. But aside from the difference between the nature of those actions and the one at hand, the latter is to be distinguished in a marked degree from the former. There the taking was from day to day, the mineral was actually marketed and the exact cost of production, as well as the market prices produced, was definitely known and ascertainable, while here the taking was all at one time, and of the coal in its then condition; it was neither screened nor marketed, nor will it ever be, nor will the exact amount of coal ever become known. It is therefore not to be considered as screened coal worth a certain price, as such, for the purpose of ascertaining its value unscreened. It is to be taken just as it was and as it will remain.</p> <p>Finally, the fact that no sales of culm banks for a fixed consideration, not depending on the quantity of coal to be produced, had been made, and the absence of a general soiling price, do not prevent the fixing of a price. In the case of the taking of land, the market value may be shown from the opinions of men of experience and judgment who are acquainted with the property, although no sales have been made anywhere in that locality : Curtin v. Railroad Co., 135 Pa. 20. So here, evidence of men of experience in the coal business, having knowledge of culm banks and of the one in question, is competent to establish the value of this coal. One of the witnesses for the defense, Mr. W. F. Dodge, having this knowledge, in part from personal examination of these banks, and in part from hearing the evidence of the tests, did testify as to the value of this coal, recognizing the principle that its value was to be determined, not by the amount of profits that might have been made out of it by screening the coal, but upon the basis of what it was fairly worth for coal purposes, taking into consideration the facts* that it would require capital and labor to prepare the coal; that there would be changes in the market value from time to time, and that the investment, of capital and the conduct of the business would be accompanied with more or less risk in connection with the prospects of a successful enterprise. Although his testimony was predicated of the correctness of the estimates as to quantity and quality given in evidence in behalf of the plaintiff, it is equally worthy of consideration, and competent as to a lesser quantity of coal found to have existed, making due allowance for that fact.</p> <p>Judgment for plaintiff for $3,780. Plaintiff appealed.</p> <p>Errors assigned among others were (2) portion of opinion as above: (7) ruling on evidence, quoting the bill of exceptions.</p> <p>The measure of damage is the market value of the coal, less the cost of preparing it: Coleman’s App., 62 Pa. 279; Graham v. Pittsburgh, etc., R. R. Co., 145 Pa. 504; Ege v. Kille, 84 Pa. 340; Coal Co. v. Rogers, 108 Pa. 147; R. R. Co. v. Butts, 36 Am. & Eng. R. R. Cases, 673 ; Montgomery County v. Bridge Co., 110 Pa. 54.</p> <p>The court below did not err in its finding and its method of finding the damages awarded to the appellant, i. e., by refusing to allow speculative damages : Becker v. R. R., 177 Pa. 258; Schuylkill TStav. Co. v. Thoburn, 7 S. & R. 421; R. R. v. Balthaser, 119 Pa. 472; Searle v. R. R., 38 Pa. 57.</p> <p>The market value of a thing taken fixes the measure of damage ; it is not fixed by price obtained in particular sales: R. R. v. Patterson, 107 Pa. 461; Ry. v. Vance, 115 Pa. 825; Cur-tin v. R. R., 135 Pa. 20.</p>

<p>Appeal, No. 65, Jau. T., 1898, by defendants, from decree of C. P. No. 4, Phila. Co., March T., 1897, No. 282, on bill in equity.</p> <p>Bill in equity in the nature of an interpleader bill to determine the rights of the parties to certain funds in dispute.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, in an opinion by Willson, J., entered the following decree:</p> <p>1. And now, this twenty-ninth day of January, 1898, the above entitled case having come on for hearing, and having been argued by counsel upon the bill of complaint and the answers ol the several defendants, the court upon consideration thereof doth enjoin the defendants, Abraham C. Prince and Harry E. Keller, trustees, from the further prosecution of the writs of attachment execution in which the complainant, Arthur B. Huey, is named as garnishee, issued by the said Abraham C Prince upon a judgment entered in this court as of March term, 1897, No. 282, and by the said Harry E. Keller, trustee, upon a judgment entered in the court of common pleas, No. 1, of March term, 1897, No. 1016.</p> <p>2. The court doth further adjudge and decree that the funds in the hands of the said Arthur B. Huey, trustee, realized from the collateral referred to in said bill in exhibit “ A ” are subject to said writs of attachment execution, and that as against said writs of attachment execution issued respectively by said Abraham C. Prince and the said Harry E. Keller, trustee, the defendants, George G. Pierie and Plarrison G. Seeler, assignees for the benefit of creditors of L. H. Taylor & Co., are not entitled to the funds in the hands of the said Arthur B. Huey, complainant in the case.</p> <p>3. The court doth order and decree the said Arthur B. Huey to appropriate said funds in his hands as trustee, as recited in the bill, after payment of the costs of this cause and the expenses of said complainant as trustee, an allowance being made to said complainant as trustee at the rate of five per cent upon •the amount of the fund in the hands of said complainant, which ■allowance shall cover both the compensation and expenses of ■said trustee, first to the payment of the judgment obtained by the said Abraham C. Prince against L. H. Taylor & Co. in the isum of $9,442.71 with interest thereon from April 15, 1897, ■■and costs, as of March term, 1897, No. 282, and that subject thereto the said Arthur B. Huey do appropriate the balance of ■said fund to the payment of the judgment obtained by Harry .E. Keller, trustee, against L. H. Taylor & Co. in the sum of ■$47,655.62 in the court of common pleas No. 1, as of March term, 1897, No. 1016.</p> <p>Error assigned was decree of the court.</p> <p>The facts of Weber v. ■ Samuel arose prior-to the act of 1843, and although those of Seal v. Duffy arose after that act it was not mentioned in the ■opinion of the court and does not seem to have figured in the decision. The act of 1843, and its supplement, the act of 1849, made a great change in the whole law relating to voluntary .assignments in Pennsylvania, those acts providing for the first time that an assignment containing preferences should enure to "the benefit of all the creditors of the assignor.</p> <p>As a reason why the later cases of Kern and Powell and Dickson and Company’s estate have adopted a different rule from Seal v. Duffy and Weber v. Samuel it is suggested that, prior to the act of 1843, and its supplement, the act of 1849, there was no general legislative system looking to the protection •of the creditors of an insolvent as a class, for the reason that •assignees might be for a few as well as for all creditors, and therefore it was a race for precedence. The assignor would .confess judgment or make an assignment with preference, or to protect releasing creditors. This being the case, the courts’ .construction of the act of of 1818 leaned toward protecting the most diligent creditor. The act of 1843 was passed to prevent an assignor from preferring creditors in the assignment itself, but even that act when first before the Supreme Court was not regarded as prohibiting an assignment in favor of named parties, as was pointed out by the Court in Miners’ National Bank’s Appeal, 57 Pa. 193.</p> <p>In Trickett on Assignments, page 43, it is stated in a note that the case of Kern v. Powell was directly opposed to Seal v. Duffy, and we are unable to reconcile the doctrine laid down in the two cases, but earnestly urge the court that it is much more in accordance with the decisions and the tendency of the acts-of assembly in Pennsylvania to- distribute an assigned estate-equally among the creditors, and when a first assignment fails, because not recorded, the property thereby assigned should vest in a subsequent assignee, because the first assignment is void as to him, he being the representative of all the creditors. By adopting this rule, the same system applies to trustees both in insolvency and voluntary assignees ; and the act of 1818, where it provides that assignments not recorded within thirty days shall be null and void as against any of the creditors of the assignor, will be construed in the liberal spirit of the act of 1843- and its supplements.</p> <p>We respectfully submit that-the rule of law in Pennsylvania is well established that an assignment of property in trust for the benefit of creditors passes the legal title to the same to the assignee; as against a subsequent assignee the title of the first assignee is good, even though he fails to record the assignment within the thirty days prescribed by the statute. But as against the creditors of the assignor who by proper proceedings in execution levy upon or attach the assigned property, the assignment not having been recorded as prescribed by the statute, is voidable, and such judgment creditor by proper process of execution may subject the assigned property to the payment of the judgment. This is. the view adopted in the opinion of the learned court below, and we respectfully submit that its judgment should be affirmed: Seal v. Duffy, 4 Pa. 274; Golden’s App., 110 Pa. 581; Weber v. Samuel, 7 Pa. 499; Moncure v. Hanson, 15 Pa. 385; Chaffeesv. Risk, 24 Pa. 432; Wright v. Wigton, 84 Pa. 163; Thomas, v. Phillips, 9 Pa. 355; Dickson & Co.’s Est., 166 Pa. 134.</p>

<p>Appeals, Nos. 467 and 468, Jan. T., 1897, by Eleanor Owens and Mary A. Crawford, from decree of O. C. Luzerne Co., No. 913, of 1875, overruling exceptions to account, and declaring liens of legacies discharged.</p> <p>Petition of E. Merrifield, legal representative of the estate of William Merrifield, for review of the account of the said William Merrifield and Nicholas Washburn, executors of Calvin Washburn, deceased.</p> <p>Exceptions to account of E. Merrifield, executor of William Merrifield, of the administration of the estate of Calvin Wash-burn.</p> <p>Separate petitions of Mary A. Crawford, formerly Mary A. Washburn, and Eleanor Owens, formerly Eleanor Washburn, widow and daughter of Calvin Washburn, deceased, to have annuities declared a charge on real estate. Before Darte, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were decrees of the court, permitting the review, dismissing exceptions to the account, and refusing to charge real estate.</p> <p>It was seventeen years after the account had been confirmed that the application was made. The act of assembly authorizing a review limits it to five years.</p> <p>The petition set forth no sufficient grounds: Priestley’s App., 127 Pa. 420.</p> <p>There is no sufficient ground for allowing the filing of a separate account, even if the application were in time: Weig- and’s App., 28 Pa. 571; Weldy’s App., 102 Pa. 461; Stong’s Est., 160 Pa. 18; Bohlen’s Est., 75 Pa. 304.</p> <p>The liens were not discharged: Wertz’s App., 65 Pa. 306; Gallagher’s App., 48 Pa. 122; McGlaughlin v. McGlaughlin, 24 Pa. 23; Horner v. Hasbrouck, 41 Pa. 181; Smith v. Seaton, 117 Pa. 382; Hiester v. Green, 48 Pa. 96 ; Rohn v. Odenwelder, 162 Pa. 352; Dewait’s App., 20 Pa. 239; Helfrich v. Weaver, 61 Pa. 390; McCredy’s App., 47 Pa. 450; Dewart’s App., 43 Pa. 326.</p> <p>Harriet C. Mott, the sheriff’s vendee of the land sought to be charged. — Granting that the legacies given to appellants by tbe fourth clause of Calvin Washburn’s will were charges upon the real estate devised to Nicholas Washburn, the liens were discharged by the sheriff’s sale of the land in 1877.</p> <p>The legacies in question were not continuing or fixed liens against testator’s real estate: Gallagher’s App., 48 Pa. 122.</p> <p>The .liens of the legacies were discharged by the sheriff’s sale; Barnet v. Washebaugh, 16 S. & 14.410 ; Woods v. White, 97 Pa. 222; Wood’s App., 20 W. N. C. 250; Pryer v. Mark, 129 Pa. 529.</p> <p>E. Merrifield, executor. — The orphans’ court is a court of equity, with full power to review and correct its former adjudications: George’s App., 12 Pa. 260; Johnson’s App., 114 Pa. 182.</p> <p>The filing of a joint account is not a continuing obligation whicliremains fixed without regard to subsequent circumstances: Young’s App. 99 Pa. 74.</p>

<p>Evidence — Gompetency of witness — Effect of act making witness incompetent.</p> <p>If a person, competent at the time to testify, is examined as a witness in a cause, and subsequently and before the trial, becomes incompetent, his testimony taken when he was competent is admissible.</p> <p>Where the deposition of a physician is taken prior to the passage of the Act of June 18, 1896, P. L. 196, which renders physicians incompetent to testify as to certain matters, and the physician dies after the passage of the act, the deposition is admissible in evidence at the trial, although the physician himself, if he had lived, would have been disqualified as a witness.</p>

<p>Appeal No. 586, Jan. T., 1896, by defendant, from judgment of C. P. Blair Co., Oct. T., 1896, No. 14, from order making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Bell, P. J.</p> <p>The facts appear by tbe opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p> <p>A scire facias cannot issue for the recovery of each instalment, as it matures : Fickes v. Ersick, 2 Rawle, 166.</p> <p>No default in the payment of any of the sums or instalments is averred, and no provision in the mortgage, or in the bond or agreement secured thereby, whereby the sums or instalments mentioned in the agreement, became due, upon the default in the payment of any one of them, is alleged. Such provision and default cannot be inferred, and no cause of action is shown: Ewart v. Irwin, 1 Phila. 78; Swift v. Allegheny Building Assn., 82 Pa. 142.</p> <p>The covenants in the contract of loan to pay the dues and to maintain the protection risk are mutual and dependent. Upon default in payment of the dues, the choice of two remedies are offered. Enforcement of the contract by recovery of the dues, or rescission and recovery of damages for the breach. The notice given by the plaintiff company that the protection risk was forfeited was sufficient, and rescinded the contract. The damages to be recovered in such case would be the original consideration: American Life Ins. v. McAden, 109 Pa. 399.</p> <p>The dues, whether the contract be insurance or loan, go to make up the amount of the advancement, interest and indemnity -on the risk, and the parts of the dues paid previous to the rescission, applicable to the consideration, would go to the reduction •of the damages.</p> <p>If recovery can be had in this action the amount can only be for the original consideration or loan, diminished as hereinbefore stated, with interest on the balance, and not the value of the contract, estimated according to the settlement value table: Fire Ins. Co. v. Oberholtzer, 172 Pa. 230.</p> <p>An insurance company may waive a breach, and it does waive it by the acceptance of an overdue premium. It may also decline to waive the breach and notify the insurer that it will not pay the policy in case of death, yet subsequently change its decision and insist upon the performance of the contract according to its terms: Zuck v. McClure, 98 Pa. -541.</p>

<p>Appeal, No. 370, Jan. T., 1897, by the Provident Building and Loan Association, from order of C. P. Blair Co., Jan. T., 1896, No. 314, dismissing exceptions to auditor's report.</p> <p>Scire facias sur mortgage.</p> <p>Tlie facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 233, Jan. T., 1897, by defendant, from decree of C. P. Clearfield Co., Sept. T., 1893, No. 1, on bill in equitjr. Bill in equity to cancel a mortgage. Wilson, P. J., of the 36th judicial district, specially presiding, reported the following findings of fact and conclusions of law : 1. The mortgage in question was executed by William H. Brown and Charles Brown, April 19, 1892. 2.

<p>Appeal, No. 94, Jan. T., 1898, by plaintiff, from decree of C. P. Blair Co., Dec. T., 1895, No. 247, dismissing bill in equity.</p> <p>Bill in equity to cancel a deed.</p> <p>The facts appear by tbe opinion of the Supreme Court.</p> <p>The court by Lyons, P. J., of the 41st judicial district, specially presiding, entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p> <p>Au implied trust must arise, if at all, from the date of the transaction, or the passing of the deed in which it originated: Gould v. Lynde, 114 Mass. 366; Payne v. Patterson, 77 Pa. 124; Cook v. Fountain, 3 Swanst. 591.</p> <p>Courts have never resorted to the fiction of an implied trust to afford relief to a- cestui que trust where the trustee endeavored to shield himself from a demand to account by setting up a release to himself of the beneficial interest from his cestui que trust: Michoud v. Girod, 4 How. 503 ; Bixler v. Kunkle, 17 S. & R. 298 ; Smith v. Townshend, 27 Mxl. 388.</p> <p>A release from a cestui que trust to his trustee is either absolutely void as the basis of any title whatever, or, if sustained, is an absolute relinquishment of all interest by the cestui que trust: Newbold’s App., 80 Pa. 317 ; Way v. Hooton, 156 Pa. 8.</p> <p>An examination of all tlie cases decided by this Court in which the sixth section of the Act of April 22, 1856, P. L, 532, was held to apply, will show that they were all cases of resulting or constructive trusts purely: Christy v. Sill, 95 Pa. 380; Silliman v. Haas, 151 Pa. 52; Clark v. Triadle, 52 Pa. 492; McNincli v. Trego, 73 Pa. 52; Roy v. Townsend, 78 Pa. 329; Rider v. Maul, 70 Pa. 15; Douglass v. Lucas, G3 Pa. 9.</p> <p>On the other hand the instances are numerous where this Court, disregarding the five years’ period fixed by the act, lias afforded relief by setting aside written instruments attacked on various equitable grounds: Darlington’s App., 86 Pa. 512; Worrall’s App., 110 Pa. 349; Meurer’s App., 119 Pa. 115 ; Miskey’s App., 107 Pa. 611; Bugbee’s App., 110 Pa. 331; Eberts v. Eberts, 55 Pa. 110; Tanney v. Tamiey, 159 Pa. 277.</p> <p>Even had the plaintiff slept on her rights since the execution of the fraudulent release, she would still not have been barred from relief by acquiescence, she having, under the authorities, twenty-one years from the time her trustee set up his adverse claim in which to begin proceedings: Pipher v. Lodge, 4 S. & R. 309; Elmendorf v. Taylor, 10 Wheat. 171; Kane v. Bloodgood, 7 Johns. Chañe. 90; Philippi v. Philippe, 115 IT. S. 151; Baker v. Whiting, 3 Sumner, 486 ; Hies ter v. Madeira, 3 W. & S. 384; Exton v. Greaves, 1 Vern. 138.</p> <p>The burden of establishing the fairness of the transaction is in all cases on the trustee: Graves v. Waterman, 63 N. Y. 657 ; Beckett v. Tyler, 3 McArthur, 319 ; Greenfield’s Est., 1 4 Pa. 489; Miggett’s App., 109 Pa. 520; Wistar’s App., 54 Pa. 63 ; Parshall’s App., 65 Pa. 224; Coles v. Trecothick, 9 Vesey, 247; Pomeroy on Equity Juris, sec. 958 ; Lewin on Trusts, 926.</p> <p>The quitclaim deed conveyed a good fee simple title to the land therein described: Schlegel v. Herbein, 174 Pa. 504; Wilson v. Albert, 89 Mo. 537 ; Christy v. Christy, 176 Pa. 427 ; Brink v. Michael, 31 Pa. 165 ; Fulton v. Moore, 25 Pa. 468.</p> <p>The deed was only voidable : Pearsoll v. Chapin, 44 Pa. 9 ; Negley v. Lindsay, 67 Pa. 217; Christy v. Sill, 95 Pa. 380 ; Lyon v. Phillips, 106 Pa. 57.</p> <p>If complainant intended to repudiate the deed and rescind the contract, it was her duty to do so within a reasonable time, and to communicate her election to do so to John T. Christy within the same : Howard v. Turner, 155 Pa. 349 ; Logan v. Gardner, 136 Pa. 588; Bispham’s Prin. of Eq. sec. 259 ; Hilliard v. Wood Carving Co., 173 Pa. 1; Learning v. Wise, 73 Pa. 173 ; Gibson v. 11. K,., 164 Pa. 142 ; Hollingsworth v. Fry, 4 Dallas, 345.</p> <p>Appellant is barred by the act of April 22,1856 : Bispham’s Prin. Eq. sec. 20 ; Tanney v. Tanney, 159 Pa. 284; Hollinshead’s App., 103 Pa. 158; McKean & Elk. L. & Imp. Co. v. Clay, 149 Pa. 277; Silliman v. Haas, 151 ’Pa. 52; Way v.Plooton, 156 Pa. 8.</p>

<p>Constitutional law — Taxation—Aliens—Act of June 15, 1897.</p> <p>The Act of June 15, 1897, P. L. 166, entitled “An act regulating the employment of foreign born, unnaturalized male persons over twenty-one years of age, and imposing a tax on the employers of such persons,” etc., is unconstitutional, because it offends against tire 14th amendment to the constitution of the United States, and also against section 1 of article 9 of the constitution of Pennsylvania, which provides that “ all taxes shall be uniform upon the same class of subjects,” etc.</p>

<p>Insurance — Life insurance — Warranty—Statements in application as to health.</p> <p>In an action upon a policy of life insurance, it appeared that the deceased had stated in his application that he never had apoplexy, paralysis, or any other “illness” or “local disease,” and that to his knowledge there was not then existing any disorder-or weakness tending to impair his constitution. At the conclusion of a number of answers was the following warranty: “I hereby declare and warrant that every foregoing statement is true without evasion or reservation, to the best of my knowledge or belief.” The insured also stated in his application that he had used alcoholic and malt stimulants, but at the date of the application was strictly temperate. It appeared that about three months before the application the insured had an attack of temporary illness, but the evidence was conflicting as to whether it was apoplexy, paralysis or prostration incident to ovorindulgence in stimulants. He had been told by a physician that if he did not stop drinking he would die. The testimony was conflicting as to whether a physician had told him that his illness was paralysis. There was evidence that prior to the application the insured had suffered from headache, especially after eating, and that there was some irregularity of the heart. Held, (1) that the warranty was, not that the statements in the application were absolutely correct, but that the insured had not consciously or wilfully falsified; (2) that the question whether the statements in the application were true, or were believed by the insured to be true, was for the jury; and (3) that, considering that insured might have thought the illness was due to his drinking, which he had stopped at the date of the application, the question was for the jury whether it was of a character material to the risk, within the act of June 23, 1885, sec. 1, providing that no false statement, made in good faith by the applicant, shall effect a forfeiture unless it relate to some matter “ material to the risk.”</p> <p>Insurance — Life insurance — Application—Act of June 23, 1885.</p> <p>A provision in a policy of life insurance that the policy is to be construed solely by the laws of another state is invalid, as against public policy, in so far as it affects the provisions of the Act of June 23, 1885, P. L. 131, which provides that in warranties to applications for insurance, no misrepresentation or untrue statement made in good faith by the applicant shall effect a forfeiture, or be ground of defense in any suit, unless such misrepresentation or untrue statement relate to some matter material to the risk.</p>

Appeal, No. 18, Jan. T., 1898, by defendant, from judgment of C. P. Erie Co., Sept. T., 1894, No. 148, on verdict for plaintiff. Trespass by parent to recover damages for personal injuries to a child of tender years. Before Noyes, P. J., of the 37th judicial district, specially presiding.

Appeal, No. 103, Jan. T., 1898, by defendants, from judgment of C. P. Cumberland Co., May T., 1897, No. 685, on verdict for plaintiffs. Assumpsit to recover tbe purchase price of a stock of merchandise. Before Biddle, P. J. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for plaintiffs. Verdict and judgment for plaintiffs for $2,211.30. Defendants appealed. Error assigned was in giving binding instructions for plaintiffs.

<p>Deed — Recording deed — Notice—Constructive notice.</p> <p>The record of a deed is notice only to those who are bound to search for it, including parties subsequently dealing with the land or concerned with .its title; but it is no notice to the grantor in the deed.</p> <p>Deed — Fraud—Statute of limitations — Ejectment.</p> <p>Where a tract of land is included in a deed by the. active fraud of the grantee, and without knowledge of the grantor who continues in possession of the tract, the statute of limitations will not begin to run against the grantor until discovery of the fraud, or until he has such notice as puts him upon inquiry.</p> <p>Deed — ■Acknowledgment of deed — Fraud—Justice of the peace — Evidence —Competency of witness.</p> <p>That a justice of the peace knowing of a fraud takes an acknowledgment of a deed by which the fraud is to be carried out, and says nothing at the time to the parties defrauded, is a circumstance which may affect his credibility with the jury, but which does not make him an incompetent witness in a contest between the original parties.</p>

<p>Negligence — Contributory negligence — Explosion of gasoline from lighted lamp — Evidence.</p> <p>In an action to recover damages for personal injuries caused by the explosion of gasoline, plaintiff' is properly nonsuited because of contributory negligence, where it appears from his own testimony that he entered a cellar with a lighted lamp; that he knew at the time he entered that the gas apparatus was out of order; that he had been warned and instructed previously not to turn on the gas until the pipes were fixed; that he had also been informed by a book of instructions that it was dangerous to approach the gas vault with a light, aud that the generator should never be filled with gas except by daylight.</p>

<p>Attorney at law — Privileged communication ■ — ■ Competency of witness— Malicious prosecution.</p> <p>Privileged communications between an attorney and client are confined to confidential communications and knowledge derived wholly or in part from private and professional intercourse, and do not embrace those facts which the counsel may become acquainted with collaterally, or those which were from necessity, and to subserve the interests of the client, publically disclosed by direction of the client himself, on the trial of his cause.</p> <p>In an action for malicious prosecution, an attorney who was counsel for the present plaintiff when defendant in the criminal court, may, for the purpose of contradicting the plaintiff, be called as a witness to prove that an agreement had been made openly in the criminal court, when the case was called for trial, and participated in by the parties, their counsel, and tbe district attorney. There is no element of confidential professional communication in such evidence.</p> <p>Evidence — Testimony affecting credibility of witness.</p> <p>An agreement, though void, may be shown to have been made to contradict a witness, going to his credibility.</p> <p>Criminal law — Felony—Verdict by agreement.</p> <p>A prosecutor who has made an honest mistake and begun a prosecution with probable cause, and who finds he has made a mistake and his expected proof is likely to fail, is not bound to go on and press for a conviction of the accused, guilty or not guilty.</p> <p>Practice, commonpleas — Trial—Sealed verdict — Separation of jury.</p> <p>A sealed verdict is no verdict if one of the jurors dissents in open court. Where a jury seals a verdict and separates, and subsequently when the jury is polled in open court one of the jurors dissents, the trial court must treat the proceeding as a mistrial and, instead of sending the jurors out again to agree anew upon a verdict, should discharge them.</p> <p>The allowance of a sealed verdict and separation of the jury is an indulgence to the jury which, except in cases involving life, is within the discretion of the court and does not require the consent of counsel or par-lies.</p> <p>The separation of the jurors or keeping them together and secluded during the trial is within the discretion of the court in cases not involving life.</p>

<p>Appeal, No. 67, Jan. T., 1898, by James H. Liglituer, from decree of O. C. Lancaster Co., June T., 1890, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor's report.</p> <p>The facts appear by the opinion of the Supreme Court, and in the report of Old’s Estate, Lancaster Trust Co.’s Appeal, 176 Pa. 150.</p> <p>JError assigned was decree of the court.</p> <p>The whole matter is res adjudicaba : 1 Herman on Estoppel, p. 238, sec. 203.</p> <p>Where an auditor reports a fact as a deduction from other facts his conclusion is the result o£ reason, and, therefore, subject to revision and correction, if erroneous: Cake’s Appeal, 110 Pa. 65; Lancaster’s Est., 38 Leg. Int. 4; Miller’s App., 102 Pa. 544; Nauman’s App., 116 Pa. 505; Hindman’s App., 85 Pa. 466 ; Phillips's App., 68 Pa. 130; Kutz’s App., 100 Pa. 75; Sproull’s App., 71 Pa. 137; Moyer’s App., 77 Pa. 482; Beaumont v. Wilkes-Barre, .142 Pa. 198; Babcock v. Day, 104 Pa. 7 ; Jacobs’s App., 107 Pa. 141; Milligan’s App., 97 Pa. 525; Follwoiler v. Lutz, 112 Pa. 107.</p> <p>A trustee will not be surcharged for a loss if he has exercised common, skill, prudence and caution, but only for supine negligence or wilful neglect; and in determining a trustee’s liability for failure to collect and convert assets, regard is to be had to the character of the trust: Chambersburg S. F. Assn.’s App., 76 Pa. 208; Fahnestock’s App., 104 Pa. 46; Neff’s App., 57 Pa. 91; Eyster’s App., 16 Pa. 372; Crist v. Brindle, 2 Rawle, 121; King v. Morrison, 1 P. & W. 188; Orr v. Newton, 2 Cox’s Cases in Equity, 274.</p> <p>Trustees who have acted in good faith and under the advice of counsel are not responsible for a mere error of judgment or a mistake of law: Bradley’s App., 89 Pa. 521; Calhoun’s Est., 6 Watts, 185; King v. Morrison, 1P. & W. 188 ; During’s App., 13 Pa. 233; Jack’s App., 94 Pa. 371; Pleasonton’s App., 99 Pa. 369: Cridland’s Est., 132 Pa. 484; Gelbaeh’s App., 8 S. & R. 205; Bonsall’s Case, 1 Rawle, 273; Bowman’s App., 3 Watts, 369; Gochenauer v. Froelich, 8 Watts, 19.</p> <p>The doctrine of res adjudicaba'applies only so long as the issue is between the same parties or their privies, where the subject-matter of the second suit is substantially the same as the first: Bouvier’s Law Dictionary “ Res Adjudicata; ” Herman on Estoppel and Res Adjudicaba, pp. 117, 145-147, 183, 184; Converse v. Colton, 49 Pa. 346; Follansbee v. Walker etal., 74 Pa. 306 ; Gordinier’s Appeal, 89 Pa. 528; Schriver v. Eckenrode, 87 Pa. 213; Kaster v. Welch, 157 Pa. 590; Schwanetal. v. Kelly, 173Pa.65; Myers v. Kingston Coal Co., 126 Pa. 582; Phila. v. Ridge Ave. Pass. Railway Co., 142 Pa. 484.</p> <p>In Barton’s Estate, 11 W. N. C. 561, it was held that a trustee investing trust funds in a mortgage, without submitting ' the 'same to the approval of the court, will be held to the highest degree of care. To like effect see the following cases: Baer’s App., 127 Pa. 360; Ihmsen’s App., 43 Pa. 431; Smith v. Wilmington Coal, etc., Co., 83 111. 498; Leech’s Est., 26 Pitts. Leg. Jour. 10.</p> <p>It is an established rule that the finding of an auditor upon the facts which have been approved by the court below will not be disturbed on appeal except for flagrant error: Burroughs’s App., 26 Pa. 264; Lewis’s App., 127 Pa. 127; Iless’s Est., 150 Pa. 346.</p> <p>A trustee in tins state must exercise exactly the same care and diligence that a man of ordinary prudence would practico •in the care of his own estate: Neff’s App., 57 Pa. 91; Witmer’s App., 87 Pa. 120; Lechler’s App., 21 W. N. C. 507; Barton’s Est., 11 W. N. G. 561; Chambersburg Saving Fund Assn.’s App., 76 Pa. 203 ; Wliitecar’s Est., 147 Pa. 368; Henninger v. Boyer, 10 Pa. C. C. 519; Fowler v. Odell, L. 11.16 Chan.Div. 723 ; Davis v. Kerr, 3 App. Div. (N. Y. Sup. Ct.) 322; Quinn’s Est., 41 Leg. Int. 226; King v. Talbot, 40 N. Y. 76; Adair v. Brimmer, 74 N. Y. 539; Ormiston v. Olcott, 84 N. Y. 339; Earle v. Earle, 93 N. Y. 113.</p>

<p>Appeal, No. 163, Jan. T., 1898, by plaintiff, from judgment of O. P. York Co., on verdict for defendant.</p> <p>Assumpsit on a lost promissory note. Before W. F. Bay Stewart, J.</p> <p>Plaintiff’s statement alleged an indebtedness of $1,400, for wbicb a judgment note had been given before the death of plaintiff’s intestate, but which could not be found after bis death, for which reason a copy of the note could not be set forth in the statement.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Plaintiff’s points and tbe answers thereto were as follows :</p> <p>1. If the jury believe from tbe evidence that on or about tbe 8th day of February, 1896, the defendant, William P. Helzer, executed and delivered to his father, Melchoir Helzer, in payment of a lot of ground, as testified to by tbe witness Keeeh, a judgment note for the sum of $1,400, payable one year after its said date, with interest at the rate of three per cent per annum, and'further finds from the plaintiff’s evidence that she made proper and diligent search for the same among the papers and effects of the decedent within a few days of his death, and was unable to find the same, and that the death of said Melchoir Iielzer occurred a long time before said note fell due and became payable, then there are no facts in the case from which the jury could presume or find the fact of the payment of the note by the defendant, and their verdict should be in favor of the plaintiff. Answer: This point is refused. There is no evidence offered showing the fact that payment could be inferred in the case; and there is no evidence showing an indebtedness due from the defendant to the plaintiff at all, evidence as to contents of the note having failed. [1]</p> <p>2'. There being no evidence offered in the case upon either side to prove payment of the note in suit, and no evidence as to whether or not it went out of the possession of Melchoir Helzer in his lifetime, or Avhat became of it after his death; and it appearing that a diligent search among his papers and effects after his death by his administratrix failed to disclose its whereabouts, the jury may, from all the facts in the case, infer and rind that the indebtedness for which the note was originally given remained unpaid at the death of Melchoir Helzer, and still -remains unpaid; and if they so find from all the eAddence in the case, their verdict should be for the plaintiff for the amount of the note, with interest at the rate of three per cent from the date thereof. Answer: This point is refused. [2]</p> <p>3. Upon the law and the facts of this case, the verdict of the jury should -be for the plaintiff. Answer: This point is refused. [3]</p> <p>The court gave binding instructions for defendant. [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned -were (1^4) above instructions, quoting them.</p> <p>The contents of a lost instrument may be proved by parol, after proof of its existence and proper search for it, but the contents need not be proved with entire exactness as to details: Diehl v. Emig, 65 Pa. 820; Gorgas v. Hertz, 150 Pa. 538; Hemphill v. MeChilians, 24 Pa. 369 ; Fisher v. Borough of South Williamsport, 1 Pa. Superior Ct. 386; Goto v. Schoen, 1 Pa. Superior Ct. 583; Spalding v. Bank, 9 Pa. 28; Empire Transportation Co. v. Steele, 70 Pa. 188 ; Baab v. Urick, 2 W. N. C. 53; Lehigh Valley Coal Co. v. Ward, 149 Pa. 119.</p> <p>We can find no authority, nor was any cited in the court below, to show that where an alleged paper in suit is voluntarily produced by the defendant, but its authenticity is denied by the plaintiff, such mere act of production, not only precludes secondary evidence of the contents of the alleged lost instrument being offered afterward, but justifies the court in ruling out, without notice, evidence which it had previously admitted.</p> <p>The dominant rule of evidence that is without relaxation, and at all times in the ascendency, is that demanding the best attainable proof of which the case is susceptible. No evidence shall bo received which presupposes better in the party’s power to produce ; because the attempt to substitute the inferior for the higher implies that the higher would give a different aspect to the case of the party introducing the lesser: 1 Rice on Civil Evidence, p. 147; Graff v. Pitts., etc., R. R. Co., 31 Pa. 489.</p> <p>A copy is not admissible when the prima facie original is in court: Stitt v. Huidekopers, 17 Wallace, 397; Gray v. Gray, 2 Lansing, 173.</p>

<p>Appeal, No. 80, Jan. T., 1898, by plaintiff, from decree of O. C. Lancaster Co., dismissing petition for citation.</p> <p>Petition for citation. Before Brubaker, J.</p> <p>Samuel R. Myer died May 6, 1876, testate, leaving to survive liim a widow and minor children. He appointed bis brother, Jacob R. Myer, and bis business partner, John D. Buck-waiter, executors.</p> <p>The will provided as follows: “ The shares of those of my children not of age at the time shall remain in the hands of my executors during their minority, and to be paid them respectively as they arrive at twenty-one years of age.”</p> <p>One of the minor children, Samuel R. Myer, the appellant, after he became of age, presented his petition to the orphans’ court, praying for a citation to issue to the executors of the estate of his deceased father, Samuel R. Myer, to file an account. The citation was granted and it was served upon Jacob R. Myer, one of the two executors, the appellee, but not on Johi D. Buck-waiter, the other executor, he not being within, the jurisdiction of the court. Thereupon the said Jacob R. Myer filed an answer alleging that the moneys of the appellant were not in his hands, but in the hands of John D. Buckwalter, and that he was not accountable for the same. He, however, admitted in his answer that the said Buckwalter had, about 1898, moved to' California, and that he was then insolvent.</p> <p>The other material facts appear by the opinion of the Supreme Court.- ■</p> <p>The court entered a decree dismissing the petition. .</p> <p>Error assigned was the decree of the court.</p> <p>Jacob R. Myer was bound to file an account, without regard to his ultimate liability, and without regard to whether the funds now claimed actually came into bis hands or not: Smith v. Black,-9 Pa. 808; McKeown’s Est., 37 Leg. Int. 134; Millers’s Est., 6 Kulp, 49; Disston’s Est., 38 Leg. Int. 270; McNeal’s Est., 6 Kulp, 271; Dickson’s Est., 32 Leg. Int. 249 ; Weldy’s Appi, 102 Pa. 454; Fensmire’s Est., 134 Pa. 67; Stong’s App., 160 Pa. 13 ;- Hengst’s App., 24 Pa. 413.</p> <p>On the merits of the case, there is no liability on the part of Jacob R. Myer: Sterrett’s App., 2 P. & W. 422; Robinson’s Est., 7 Phila. 61; Wilson’s App., 115 Pa. 101; Ormiston v. Olcott, 84 N. Y. 339; Stell’s App., 10 Pa. 149; Hatch’s App., 12 Atl. Rep. 593; Trayner’s Est., Rolla Dance’s Trust, 12 Lane. Bar. 135.</p> <p>One executor cannot prevent a coexecutor from taking possession of the assets, or take them from him after he has obtained possession of them: Willians on Exrs. *946; Wood v. Brown, 34 N. Y. 337. .</p> <p>Iii the absence o£ gross misconduct or gross neglect a trustee will not be surcharged with moneys he never received: Lancaster’s Est., 43 Leg. Int. 16; Presbyterian Church v. Gordon, 25 Leg. Int. 380; McNair's App., 4 Rawle, 148; Doebler v. Suavely, 5 Watts, 228; Young’s App., 99 Pa. 74.</p> <p>Neither a guardian nor an executor will he compelled to file an account when he has no funds in his hands: Knightee Keneagy’s Est., 7 Lane. Law Rev. 300; Guinane’s Est., 17 Pa. C.‘C. 438.</p>

Appeal, No. 98, Jan. T.,. 1898, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1896, No. 71, on verdict for defendant. Ejectment for several tracts of land. Before Livingston, P. J. At the trial it appeared that the land in question consisted of five single lots which the defendant had bought at the sale of the assignee for the benefit of creditors of Henry Kegerreis, plaintiff’s husband. Plaintiff gave notice at the sale of her claim, under a resulting trust.

<p>Appeal, No. 116, Jan. T., 1898, by plaintiff, from judgment of C. P. Lancaster Co., Nov. T., 1897, No. 29, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit against an indorsee on a promissory note. Before Livingston, P. J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Plaintiff’s statement averred that notices of protest had been mailed at the post office in York, Pennsylvania, to the defendants and other indorsers of the note in suit.</p> <p>The material averment in the supplemental affidavit of defense is quoted in the opinion of the Supreme Court.</p> <p>The court discharged the rule for judgment.</p> <p>Error assigned was the order of the court.</p> <p>cited Lord v. Ocean Bank, 20 Pa. 384; Moore v. Baird, 30 Pa. 138; Newbold v. Boraef, 155 Pa. 227; Smyth v. Hawthorn, 3 Rawle, 355; Newbold v. Pennock, 154 Pa. 592; Comly v. Simpson, 41 W. N. C. 240; Berg & Co. v. Abbott, 83 Pa. 177; Baumgardner v. Reeves, 35 Pa. 250; McGarr v. Lloyd, 3 Pa. 474; Smith v. Janes, 20 Wendell, 192.</p> <p>was not heard, but cited in his printed brief: Stephenson v. Dickson, 24 Pa. 148; Etting v. Schujdkill Bank, 2 Pa. 865; Winsor v. Farmers’ & Mechanics’ Nat. Bank of Rochester, 81* Pa. 304; Eyre v. Yohe, 67 Pa. 477; Endlich on Affidavits of Defense, sec. 627 ; Paine v. Kindred, 163 Pa. 642; iEtna Ins. Co. v. Confer, 158 Pa. 604; Griffith v. Sitgreaves, 81* Pa. 378; Radcliffe v. Herbst, 135 Pa. 568.</p>

<p>Husband and wife — Judgment—Evidence.</p> <p>In a contest between a wife and her husband’s creditors over the distribution of a fund raised by a sheriff’s sale of the husband’s real estate, a decision in favor of the wife should be sustained where it appeal's that the husband gave to his wife judgment notes at a time when there was no occasion to contemplate fraud, and that the wjfe had a separate estate which she had loaned to her husband sufficient to sustain her claim for the fund.</p>

Appeal, No. 364, Jan. T., 1898, by plaintiff, from judgment of C. P. Juniata Co., Sept. T., 1896, No. 90, on verdict for defendant. Attachment execution. Before Lyons, J. The issue was between the plaintiff and the garnishee under a plea of nulla bona and the garnishee is the defendant in this issue.

Appeal, No. 433, Jan. T., 1897, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1896, No. 652, refusing to take off nonsuit. Trespass to recover damages for death of plaintiff’s husband. The facts appear by the opinion of the Supreme Court. The trial court entered a compulsory nonsuit, and refused to take it off. JBrror assigned was refusal to take off nonsuit.

<p>Appeal, No. 28, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 4, Philadelphia Comity, June T., 1897, No. 69, on verdict for defendant.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Krror assigned among others was in giving binding instructions for defendant.</p> <p>The case was for the jury: Howett v. R. R., 166 Pa. 607; Blooms-burg Steam Co. v. Gardner, 126 Pa. 80; Bruch v. Phila., 181 Pa. 588; Scranton City v. Gore, 124 Pa. 595; Born v. Plank Road Co., 101 Pa. 334; McNerney v. Reading City, 150 Pa. 611; Chilton v. Carbondale, 160 Pa. 463; Altoona v. Lofcz, 114 Pa. 238.</p> <p>cited People v. Cunningliam, 1 Denio, 524; Com. v. Passmore, 1 S. & R. 217; Palmer v. Silverthorn, 32 Pa. 65; Mallory v. Griffey, 85 Pa. 275; Borough of West Chester v. Apple, 35 Pa. 284; Ervin v. P. & R. R. R., 89 Pa. 71; McNerney v. Reading City, 150 Pa. 611; Cromarty v.' Boston, 127 Mass. 329; Hayes v. Cambridge, 138 Mass. 461.</p>

Appeal, No. 158, Jan. T., 1898, by plaintiff, from judgment of C. P. Fayette Co., Sept. T., 1889, on verdict for defendant. Ejectment for a lot of ground in the borough of Bridgeport.

<p>Appeal, No. 443½, Jan. T., 1897, by defendant, from judgment of C. P. Lancaster Co., Jan. T., 1896, No. 97, on verdict for plaintiffs.</p> <p>Sheriff’s interpleader to determine the title to personal property. Before Livingston, P. J. See 182 Pa. 587.</p> <p>At the trial, Hannah W. Eavenson, one of the plaintiffs, alleged that site had a separate estate, and that with this she had bought the property in dispute.</p> <p>She testified that she received money from her uncle and her uncle’s widow as compensation for nursing her uncle. She further testified:</p> <p>“ Q. All this personal property you claim, this household a,nd kitchen furniture jmu have described, was either given to you by your father or was furniture that had replaced furniture that had been worn out that you got from your father ? A. Yes, sir, the furniture that had been replaced. Q. You say none of it had been in your possession — none had come into your possession within the last ten years preceding the execution — you had it all prior to that? A. No, I don’t think there was any got within ten years ; I have no recollection of any. Q. If any had been bought by your husband please state whether he gave it to you to replace what had been worn out.”</p> <p>Objected to by defendant. Admitted. Defendant excepts.</p> <p>“ Q. Please state whether or not he had given it to you to replace what was worn out. A. Yes, sir, he gave it to me.” [I]</p> <p>When E. M. Gilbert, Esq., a witness for plaintiffs, was on the stand, after testifying that he was the executor of the will of Mary Eavenson, the widow of Benjamin Eavenson, plain tiff’s uncle, he testified:</p> <p>“ Q. Before she died, if you know, did she get ft,000 that belonged to her husband who had made his home with Reese Eavenson ? A. Yes, sir. I will just explain how slie got it. Q. If you know. Just give us your own knowledge.</p> <p>Objected to by defendant. Admitted. Defendant excepts. [2]</p> <p>“A. Mary Eavenson died some time last winter, and she lived at my father’s house for a number of years before she died. She told me that when her husband died in 1883 she inherited from him ft,000, and that she gave that to Hannah W. Eavenson for taking care of him.”</p> <p>No request was made to strike out this answer but on the contrary defendant’s counsel cross-examined the witness.</p> <p>The court charged in part as follows:</p> <p>This is what is called a feigned issue under the interpleader act, to ascertain whether certain property levied on by Mr. Pownall as the property of Reese Eavenson, was Iris property at the time of the levjr or not. The property has been claimed here as the property of Hannah W. Eavenson, his wife.</p> <p>As yon have been told the case has been here before, and on that trial the court did not allow them to ask the lady any questions at all. She presented her deed here and we considered that sufficient. It was carried up to the Supreme Court and the Supreme Court say we were in error, because it was a fight between the woman and the husband’s creditors. If it had been a question between the woman herself and a stranger our judgment would have been right. It comes back here for the purpose of permitting her to show whether or not she had any money in this farm, any money of her own to put into it at the time it was purchased, prior to the making of his levy.</p> <p>You will remember the testimony. She bought this property in 1891 and the deed was made in 1892. You will remember at that time, or before that time, her husband had made an assignment for the benefit of creditors. His property had been sold and purchased by another party and it was from the other party she purchased, not from him or through him.</p> <p>Now, the Supreme Court say that if a question arises between Mrs. Eavenson and strangers, then the rule I adopted would have been correct; but where it was raised between her and the creditors of her husband, who sought to sell the property as his, they say she should show by clear proof two things: first, the question of an estate of her own, not derived from her husband, and second, a bona fide purchase by herself of the farm with or upon the credit of such separate estate. She was relieved, it says, of both of these by me on the former trial.</p> <p>Now, had she in the first place any separate estate? You have heard what she has said and her testimony seems to be uncontradicted. She was put through a very rigid examination and cross-examinatioir. Had she at the time she purchased this property any separate estate or money of her own ? The amount is not material. If she had a separate estate of her own or money of her own which went into this, then she would have a right to buy. She has told you she had $1,000 of her own money. She has told you where she obtained it and how she obtained it and what it was for. Mr. Slocum has told you, I-think, in his testimony, that she paid $1,000. She said she lent this to her husband when she got it first, and he used it. Before he broke up, before he chose assignees he paid her the $1,000 he had borrowed from her, without interest. Now complaint has been made because he did that. That he had a perfect right to do. lie could have and did pay her, if you believe what she says, shortly before he broke up. He preferred her as he had a right to do, and no other creditor has a right to complain ; and if you believe she got the money, as she says she did, and lent it to him, and he paid it to her again before he made the assignment and she appropriated it to the purchase of this property, the transaction would be proper.</p> <p>[Did she do that? Do you believe she has told you the truth ? It is said she is uncorroborated. If you believe she has told you the truth then she needs no corroboration. She after-wards called Mr. Gilbert, her counsel, who left the case and testified. You heard his testimony. All this testimony is for you to say whether you believe it or not. If you believe she did get this money and purchased this farm as her own — if she has shown you that beyond a reasonable doubt, then your verdict should be, as counsel of the parties tell you it should be, in be»' favor, for the plaintiff.] [8]</p> <p>Verdict and judgment for plaintiffs. Defendant appealed..</p> <p>Errors assigned among others were (1, 2) rulings on evidence, quoting the bill of exceptions; (8) above instructions, quoting them.</p> <p>It is incumbent upon the wife to prove her title by evidence which does not admit of a reasonable doubt: Gamber v. Gamber, 18 Pa. 363 ; McDermott’s App., 106 Pa. 358 ; Shober v. Harrison Bros. & Co., 3 Pa. Superior Ct. 188; Winter & Hartman v. Walter, 37 Pa. 155 ; Rhoads v. Gordon, 38 Pa. 277; Flick v. Devries, 50 Pa. 266; Curry v. Bott, 53 Pa. 400; Bower’s Appeal, 68 Pa. 126; Lochman and Wife v. Brobst, 102 Pa. 481; Leinbaoh v. Templin, 105 Pa. 522; Blum v. Ross, 116 Pa. 163 : Adams v. Bleakley, 117 Pa. 283; Steckman v. Schell, 130 Pa. 1.</p> <p>cited Cummings’s App., 11 Pa. 272; Barr v. Green-await, 62 Pa. 172; Phillips v. Hall, 160 Pa. 60; McDevitt v. Vial, 11 Atl. Rep. 645; Hinney v. Phillips, 50 Pa. 882; Bergey’s App., 60 Pa. 408; Tate v. Carney, 14 Atl. Rep. 327.</p>

Appeal, No. 166, Jan. T., 1898, by Noah S. Gosnell, from order of Q. S. York Co., deciding that Augustus G. Kolir is entitled to the office of assessor of New-berry township. Petition in an election contest. An election for township officers was held in Newberry township, York county, Pennsylvania, on February 15,1898. Among the offices to be filled was that of assessor.

<p>Appeals — Practice, c-ommon pleas — Equity—Buie for rehearing.</p> <p>A rule for a rehearing in an equity case does not stay the running of the time within which an appeal may be taken.</p> <p>Prior to the passage of the Act of May 19, 1897, P. L. 67, limiting all appeals to six months from the entry of the sentence, order, judgment or decree appealed from, appeals in equity cases might be taken under the Acts of March 17, 1845, P. L. 158, April 21, 1846, P. L. 433, and February 14, 1857, P. L. 39, within three years from the entry of the decree, aud they, therefore, eaine within the saving clause of that act. Equity appeals were not within the Act, of April 1, 1874, P. L. 50, limiting appeals to two yeitrs.</p> <p>A decree in equity was entered November 14, 1895. A rule for rehearing was discharged November 15, 1897, and an appeal taken November, 27, 1897. The Act of May 19, 1897, P. L. 67. limiting appeals to six months, provides that the act shall go into effect on July 1, 1897, and apply to cases then pending, with the saving clause that “the limitation of time herein provided for as against any party entitled to appeal from a suntenee, order, judgment or decree theretofore entered shall not begin to run until that date, if but for this aet the right of appeal would have extended after that date beyond the times herein described.” Held, that the appeal in this ease was taken in time.</p> <p>Equity — Equity rules — Filing statement of errors in lower court.</p> <p>The Act of May 19, 1897, P. L. 67, relating to appeals, does not abrogate the equity rules which provides that an appellant must file in the court below “ a statement of the errors he alleges to have been made by the decree appealed from.” It seems, however, that the Supreme Court would permit the filing of such a statement nunc pro tunc in a case of mere oversight of counsel, and where no special hardship would be imposed on the other party.</p> <p>Equity — Findings of fact — Review—Judgment.</p> <p>On a bill in equity to declare a judgment invalid as fraudulent and collusive, the Supreme Court, although it might not have reached the same conclusion on an original hearing, will not reverse a finding of the trial judge that there was sufficient positive testimony to overcome the suspicion of fraud, when the whole case turns upon the credibility of the witnesses.</p>

<p>Practice, common pleas — Auditor's findings of facts.</p> <p>Tlie general rule as to the weight that ought to be given to an'auditor’s findings of fact cannot be urged with much strictness or force where he has made no definite or detailed findings.</p> <p>An auditor’s findings of fact will not be considered as conclusive where it appears that his findings were largely based upon the assumption that the testimony of the defendant and his wife was so tainted with bias and interest as to make it incompetent, and this assumption wholly ignored the fact that the testimony so discredited was strongly corroborated by other evidence, including the circumstances of the case.</p> <p>Husband and wife — Presumption—Evidence—Gift.</p> <p>The mere fact of the reception of the wife’s money by her husband makes him her debtor, and it requires no affirmative proof by the wife that he received it as a loan, and not as a gift, but he is not, as a general rule, chargeable with interest on it. If it is alleged afterwards by him or others that the money was received as a gift, and not as a loan, the burden is upon those who make such allegation to prove it, and on her, to show the agreement which entitles her to interest, but the agreement, in either case, may be implied from the circumstances attending the transaction.</p> <p>A wife mortgaged her separate estate and loaned the proceeds of the mortgage to her husband. The interest on the mortgage was paid by the husband out of the money received by him for rents of her separate estate. There was no direct evidence that he agreed to pay interest on the money which he borrowed, but both husband and wife testified that he agreed to account for the rents. Held, that the husband was bound to pay interest on the loan.</p>

<p>Appeal, No. 169, Jan. T., 1898, by defendants, from order of C. P. Northumberland Co., Sept. T., 1897, No. 16, dismissing petition for mandamus.</p> <p>Petition for mandamus.</p> <p>The facts appear by the opinion of the court below, Savidge, P. J., which was as follows:</p> <p>This is a rule for a mandamus on the commissioners of Northumberland county to require them to build, jointly with the. commissioners of Union county, abridge across the West Branch of the Susquehanna river at Lewisburg.</p> <p>The river at this point forms the boundary line between the two counties, and the proceeding is under the Act of May 6, 1897, P. L. 46. The original bridge, maintained by the Lewisburg Bridge Company, was destroyed by the flood of 1865. It was rebuilt in 1868, and by authority of the legislature (see act of February 19, 1868), the location was slightly changed, the bridge company being empowered to rebuild at any place within one half mile of the location of the old bridge. In point of fact the new bridge was built north of the cite of the old bridge, 196 feet at one end and 444 feet at the other end. By the same act the bridge company was authorized to construct for railroad purposes as well as for travel by wagons and otherwise, and the bridge has ever since been used for such purposes. All the property and franchises at the site of the old bridge were saved to it by the said act, and it still owns and occupies its toll house and other property at the Lewisburg shore end of the old bridge.</p> <p>It is urged that the act of 1897 is unconstitutional, because special legislation. With this view we agree. A proper classification of bridges is not objectionable. It may be conceded that there would be no offense in making a class to include all bridges spanning county line streams and which are owned and maintained by corporations, etc., and which have been destroyed and'abandoned, and to provide for their rebuilding in the manner prescribed. But the act goes much further. It operates upon certain bridges of this class to the exclusion of all others. They are to be bridges used exclusively for vehicles and foot purposes. A bridge having in addition to the carriage and footway, a street railway, a towing path or a steam road upon it, is left out. [Bridges which have been destroyed and not rebuilt are unprovided for. It is only where the same has been “rebuilt by said corporation or private persons, or by public subscriptions on another site,” that the act takes hold. Where there has been a rebuilding of the old bridge a short distance further up or down the stream, a second structure must be built at the public expense. Where the bridge has been destroyed or abandoned and not rebuilt, the traveling public may swim.] [1] In the language of Mr. Justice Paxson, in Commonwealth v. Patton, 88 Pa. 258: “This is classification run mad,” and [the method in the madness was to provide for a free bridge over the West Branch of the Susquehanna at Lewisburg, by legislation that would not be applicable anywhere else in the commonwealth. It is not probable that there can be found elsewhere in the commonwealth á situation that would meet all the conditions of this extraordinary act of assembly.] [2] To provide for the reconstruction of a bridge already rebuilt to the exclusion of all cases where there has been no rebuilding is, it seems to us, a very peculiar kind of legislation. We cannot see any reason in it, nor do we think there is any, except as above intimated. It is certainly not general legislation: Commonwealth v. Patton, supra. There are numerous other authorities to which it is not necessary to refer.</p> <p>The act provides in the fourth section for the taking of private property, and the method of compensation. There is no reference to this in the title. In this we think it offends the constitution. The title must so express the purpose as to clearly and fully give notice to those who may be specially interested therein: Sewickley Boro. v. Sholes, 118 Pa. 169. It was claimed that inasmuch as there had been no abandonment of the bridge in question, the same having been rebuilt as directed by the act of 1868, this case did not come within the provisions of the act of 1897. It will be seen, however, by a close examination of that act that it was not an abandoned bridge that the legislature attempted to provide for. A rebuilt bridge cannot be said to have been abandoned. If constitutional, the act would be applicable to bridges which have been destroyed and rebuilt upon another site, or, in other words, to a change in location.</p> <p>We have no doubt the public are poorly accommodated by the present bridge and that there is danger in crossing it with vehicles ; that, however, is not the question here. We are dealing solely with the constitutionality of this act of assembly. If the public demands better accommodation than it now has, there are other methods of getting it. The act of 1897 does not provide the only means of securing free bridges.</p> <p>[Being of the opinion that, for reasons given, the act in question is unconstitutional, we discharge the rule at the cost of 1 he petitioners and note an exception and seal a bill for them.] [3]</p> <p>Errors assigned were (1-3) portions of the opinion as above, „ quoting them; (4) in refusing the mandamus prayed for.</p> <p>We start with the presumption that the statute is constitutional. Every intendment is in favor of its constitutionality : Pennsylvania R. R. v. Riblet, 66 Pa. 164; Speer v. School Directors, 50 Pa. 150.</p> <p>Where it is proposed to show that an act is unconstitutional by proof, the burden of such proof is undoubtedly upon the person seeking to show the unconstitutionality of the act: R. R. Co. v. Casey, 26 Pa. 300.</p> <p>The power of making a proper classification is vested in the legislature: McCarthy v. Com., 110 Pa. 243; Van Piper v. Parsons, 4Ó N. J. L. 123; Ayars’s App., 122 Pa. 281; Perkins v. .Phila., 156 Pa. 554; Kilgore v. Magee, 85 Pa. 401.</p> <p>The title gives sufficient notice of the purposes of the act: Allegheny County Home’s Case, 77 Pa. 78; P. R. Co.’s App., 77 Pa. 429 ; Mauch Chunk v. McGee, 81 Pa. 433; Dewhurst v. Allegheny, 95 Pa. 437.</p> <p>The word “ or ” is frequently read “ and ” in the construction of statutes in order to render the whole operative and consistent: Murray v. Keyes, 35 Pa. 384.</p> <p>The title does not give sufficient notice of its subject to reasonably lead persons to inquire into the body of the bill: Phcenixville Road, 109 Pa. 44; Com. v. Samuels, 163 Pa. 283; Sewickley Borough.v. Sholes, 118 Pa. 169.</p> <p>It is true that the presumption is in favor of the constitutionality of a statute, but this presumption must of necessity fall in the light of the test that constitutional provisions are to be so construed as to prevent the mischief designed to be remedied by their adoption: Ayars’s App., 122 Pa. 266 ; York School District’s App., 169 Pa. 70.</p> <p>The act under consideration is special legislation in the guise of a general law, which has been pronounced the most specious and vicious form that special legislation can assume: Philadelphia v. Cemetery Co., 162 Pa. 107; Com. v. Patton, 88 Pa. 258; Scowden’s App., 96 Pa. 422.</p>

Appeal, No. 148, Jan. T., 1898, by plaintiff;, from judgment of C. P. Northumberland County, Sept. T., 1895, No. 1482, on verdict for defendant. Trespass to recover damages for death of plaintiff’s husband. Before Savidge, P. J. The court gave binding instructions for defendant.

<p>Appeal, No. 154, Jan. T., 1898, by defendant, from judgment of C. P. Northumberland Co., May T., 1897, No. 1, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Savidge, P. J.</p> <p>At the trial it appeared that about 11 o’clock on the niglit of November 29, 1896, the plaintiff, in company with a young lady, was returning borne from church, driving a gentle horse with a buggy. The evidence tended to sliow that the buggy struck an obstruction in the road, and was precipitated with tlie occupants and horse over an embankment. The roadbed at tlie point of the accident was about eleven feet wide, and on the side of the embankment was not provided with guard rails. The road had been constructed many years before, and bad always been without guard rails at the point where the accident occurred. The plaintiff was a resident of tlie neighborhood and was well acquainted with the road. There was evidence that plaintiff bad stated after tlie accident that it was caused by tlie stumbling of his horse.</p> <p>Tlie court charged in part as follows :</p> <p>[That horses will stumble and do stumble upon highways is perhaps a matter of common knowledge. Whether the ordinary horse, such as is commonly used, will sometimes stumble I leave it to you to say. If so, if it is an ordinary and usual thing for horses to occasionally stumble upon the highway, then it was the duty of the supervisors to anticipate that such was likely to occur and to provide against such conditions, and if they were negligent in not providing a suitable barrier, and this horse simply stumbled in the ordinary manner, provided you find he stumbled at all; and the stumbling of the horse was not the producing cause of the accident and injury, there should be a recovery if you find there was negligence of the township and the absence of negligence on the part of the plaintiff. When I speak of the word “ stumbling of a horse,” I mean such stumbling as is controllable.] [1]</p> <p>■ [If the horse simply stumbled in the ordinary way, did not fall, but by reason of the stumbling swerved from the course, and by reason of the narrowness of the way, went over the embankment, the cause of the injury, in a legal sense, and that is what you are to be governed by, was not the stumbling, but the absence of the barriers. Therefore, in that event, if the ■township was at fault in not putting a barrier there, and the plaintiff was free from contributory negligence, in other respects he would be entitled to recover, because, in that event, the stumbling could no more, in my judgment, .be said to be the proximate and efficient cause of the accident and injury, than could the shying of a horse if upon the highway, or the fact of the traveler being crowded off by other vehicles, be said to be the proximate cause of the accident and injury.] [2]</p> <p>[If you should conclude that the defendant knew another safe way around, it does not follow that he was necessarily obliged to take it; that would depend upon whether the danger in traveling over the road he did take, and upon which this accident befell him, was so manifest and apparent that, as a prudent man, he ought not to have undertaken its passage. If, as a prudent man, notwithstanding the condition of the road, he believed it could be safely traversed with reasonable safety,— if that is the conclusion that a prudent man, under the circumstances, would have come to, — then, notwithstanding the danger, he had a right to undertake the passage. If the danger was so great and apparent that a reasonable man, in the exercise of common and ordinary prudence, ought not to have undertaken its passage, then he ought not to have gone that wajr, if he knew of another way around, and he was guilty of contributory negligence and ought not to recover.]. [3]</p> <p>[If you find a permanent injury you would have to determine what would be the length of Ms life. The life table shows an expectancy of thirty-nine years, or little over. You will take into consideration his ag'e at the time of the injury or accident, which was but a few months ago, and you will take into consideration all the testimony bearing upon a probability of his life and determine for yourselves how long he will probably live, in case you find the injury a permanent one.] [4]</p> <p>[No one saw the horse stumble, from the testimony, but the fact that it did stumble is sought to be established by the declarations of the plaintiff. Several witnesses have sworn to these declarations. The plaintiff not only denies he ever made the declarations imputed to him but asserts that it is not a fact that the horse stumbled. When I say denies and asserts I mean he did so from the witness stand. You will first determine whether he made these declarations. Secondly, if he did make them, whether they were true, because, even though he made them, if they were not true, you are not to decide the case against him because he asserted what was not the fact, but you are to decide the case from what you find from all the evidence the fact was. Declarations against a party’s interest are to be construed most strongly against him. However, you are to determine their truth from all the testimony in the case relating to the particular question with regard to which they are made, and from all the fads and circumstances surrounding them.] [5]</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>4. If the jury find from the evidence that the plaintiff knew the condition of the road and the absence of barriers, that he also knew of the awkwardness and clumsiness of the horse, and its propensity to stumble, and voluntarily undertakes to drive over the road in question on a dark night with said horse, he is guilty of contributory negligence, and the verdict of the jury must be for the defendant. Answer: I cannot affirm this point as presented. If the danger was so apparent that in the use of ordinary care he ought not to have undertaken the passage, as I explained to you in the general charge, he was guilty of contributory negligence and ought not to recover. Otherwise he should recover in case you find with him on the questions submitted to you in the general charge. [6]</p> <p>5. If the jury believe that the plaintiff undertook to use the public road upon which the accident occurred, knowing that it was unsafe and knowing the defects that made it so, but not choosing to avoid, although he could have done so by taking another road, to wit: the Quaker road, then the plaintiff cannot recover and the verdict of the jury must be for the defendant. Answer: This point is not affirmed. I refer you to what I have just said in answer to the fourth point. [7]</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them.</p> <p>cited Yoders v. Amwell Twp., 172 Pa. 452; Jones on Negligence of Municipal Corporations, 479; Elliott on Roads and Streets, 452; Gregory v. Inhabitants of Adams, 14 Gray, 242 ; McCormick v. Washington Twp., 112 Pa. 185; Herr v. Lebanon, 149 Pa. 222; Chartiers Twp. v. Phillips, 122 Pa. 601; Hill v. Tionesta Twp., 146 Pa. 11; Haven v. Pittsburg, etc., Bridge Co., 151 Pa. 620; Smith v. City of New Castle, 178 Pa. 298 ; Monongahela City v. Fischer, 111 Pa. 9 ; Mueller v. Ross Twp., 152 Pa. 399 ; Erie v. Magill, 101 Pa. 616 ; Robb v. Connellsville Boro., 137 Pa. 42.</p> <p>cited Yoders v. Amwell Twp., 172 Pa. 452; Lower Macungie Twp. v. Merkhoffer, 71 Pa. 279; Kitchen v. Union Twp., 171 Pa. 145 ; Burrell v. Uncapher, 117 Pa. 353 ; Allen v. DuBois Borough, 181 Pa. 184 ; Shaw v. Philadelphia, 159 Pa. 487.</p>

Appeal, No. 167, Jan. T., 1898, by-plaintiff, from order of C. P. Northumberland Co., Sept. T., 1896, No. 136, refusing to take off nonsuit. Trespass to recover damage for personal injuries. At the trial it appeared that on March 19, 1896, plaintiff, while driving a two-horse team, was injured at one of defendant’s crossings in the borough of Shamokin.

<p>Contract — Contradictions in written contract -Parol testimony — Province of court and jury.</p> <p>Where a written contract refers to plans, specifications, drawings and a bill of items, and it appears upon inspection that the bill of items is contradictory of the specifications and drawings, parol testimony is admissible to detei'mine which paper was intended by the parties to govern, and the question is one of fact for the jury, and not one of construction of written terms for the court.</p>

<p>Equity — Answer—Evidence.</p> <p>The evidence of two witnesses, or one witness and strong corroborating testimony, being necessary to overcome the denial under oath in the answer of the allegations in the bill that plaintiff’s testate executed a transfer in blank of stock, and that the name of his wife was thereafter fraudulently inserted, declarations of testate that he so signed it, and the fact that thereafter dividends were paid by cheeks to his order, and that the amounts were placed to his credit, are insufficient.</p> <p>Equity — Evidence—Findings of fact — Conclusiveness of findings.</p> <p>The Supreme Court will not reverse a decree of the lower court dismissing a bill in equity which was filed to compel a retransfer of stock, where the lower court finds upon sufficient evidence that the owner of the stock directed that the name of the transferee should be inserted in the blank transfer before signing the transfer, and that, after the name of the transferee had been so inserted, he signed the transfer and delivered the certificate to the transferee with the intention of passing the title to her.</p>

<p>Appeal, No. 476, Jan. T., 1898, by defendants, from judgment of C. P. York Co., April T., 1897, No. 81, on verdict for plaintiff.</p> <p>Ejectment. Before W. E. Bay Stewart, J.</p> <p>At tbe trial it appeared that on or about April 1,1881, Sarah Witmyer, tbe owner of .the land in dispute, with Daniel Witmyer, her husband, called at the office of William P. Williams, Esq., a justice of the peace, and instructed him to prepare a deed from them to Philip Benedick. The justice prepared the deed, and it was duly executed and acknowledged by them, who instructed him to keep it. Subsequently Mrs. Witmyer demanded the deed from the justice, and it was given to her. Other facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[If you believe the deed was duly executed and delivered into the hands of Justice Williams to hold without any restraining instructions, then such delivery was sufficient to vest the title to the farm in Philip Benedick, this plaintiff, and so far as this evidence goes it has not shown that the title has been divested, and the plaintiff would be entitled to your verdict. And this would be so without any regard to what the agreement may have contained.] [1]</p> <p>[The justice testifies that the real consideration for the deed was this understanding or agreement of Philip Benedick to keep and maintain Daniel Witmyer during his life. If you believe this, and you believe further that Daniel Witmyer was provided for on the farm during the remainder of his life, then performance of the conditions of the agreement was entered upon by Philip Benedick, and at the death of Daniel Witmyer it became absolute and he is entitled to recover.] [2]</p> <p>Plaintiff’s points and the answers thereto were as follows :</p> <p>1. If the jury believe from the evidence that after March 31; 1881, Sarah Striewig, then Sarah Witmyer, with her husband, Witmyer, executed and acknowledged in the usual form, before William T. Williams, Esq., then justice of the peace, in York county, a deed for the land for which this suit is brought, to Philip Benedick, and left it with said justice, without instructions, their verdict must be for the plaintiff for the land described in the writ. Answer: This point is not affirmed as written. If the jury believe that the deed was left in the possession of ’Squire Williams without any instructions other than that he should simply hold it, without any restraining instructions, then the law is, as stated in the point. [3]</p> <p>2. If the jury believe from the evidence that on or about April 1, 1881, Sarah Witmyer and husband duly executed and acknowledged a fee simple deed for the farm claimed, to Philip Benedick, and left it with ’Squire Williams, without any instructions inconsistent with the idea of a present and absolute conveyance thereby of the title to the plaintiff, and if they believe from the evidence that she intended to then convey title to her brother, the verdict of the jury must be for the plaintiff for the land described in the writ. Answer: This point is affirmed. [4]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p> <p>There was not sufficient evidence of delivery for the jury: 2 Jones on Real Property, sec. 1225.</p> <p>While delivery is usually a question for the jury, yet when there is no evidence of delivery, it is error to submit it: Galbraith v. Zimmerman, 100 Pa. 374; 2 Jones on Real Property, see. 1222; Duraind’s App., 116 Pa. 93; Dayton v. Newman, 19 Pa. 194; Critclifield v. Critchfield, 24 Pa. 100; Landon v. Brown, 160 Pa. 538; Stephens v. Rinehart, 72 Pa. 434.</p> <p>The delivery is complete when the grantors declare before the officer that they sign, seal and deliver the deed, without saying anything to qualify the delivery*-. If the grantee be present it is beyond doubt that the title vests; and no subsequent conduct of the grantor can affect or divest it: Blight v. Schenck, 10 Pa. 285; Diehl v. Emig, 65 Pa. 320; Emig v. Diehl, 76 Pa. 359; Ingles v. Ingles, 150 Pa. 397.</p>

Appeal, No. 109, Jan. T., 1898, by defendant, from judgment of C. P. Lancaster Co., March T., 1897, No. 26, on verdict for plaintiff. Assumpsit on a promissory note by indorsee against maker. Before Livingston, P. J. At the trial there was evidence that the note in suit was given in a stock gambling transaction. It appeared that the plaintiff was a bona fide indorsee and holder for value, without notice, and before maturity.

<p>jRoad law — Statutes—Repugnancy in proceedings — Acts of April 8, 1848, April 21, 1873 and May 16, 1891.</p> <p>There is such a repugnancy between the special Acts of April 8, 1848, P. L. 415, and April 21,1873, P. L. 824, relating to the borough of Verona, and the general road Act of May 16, 1891, P. L. 75, as to the modes of proceeding in opening streets, as will not warrant any attempt at mixing or blending the two modes of proceeding in one. The borough or the property owner must adopt wholly the one or the other mode of proceeding from the beginning to the final decree.</p>

<p>Appeal, No. 182, Oct. T., 1897, by plaintiffs, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1897, No. 332, on case stated.</p> <p>Case stated to determine the marketable title to real estate-Before McClung, J.</p> <p>From the case stated it appeared that Ruth Roberts died on April 29, 1870, seized of certain land, leaving to survive her, her husband, George W. Roberts, and, inter alia, three daughters, namely, Susanna Ann, intermarried with John Redmond, now deceased; Mary Elizabeth, intermarried with Noah Pang-burn, and Sarah Jane, intermarried with Edward G. Lewis.</p> <p>Said Ruth Roberts left a last will and testament by which she provided as follows: “ I give and bequeath to my beloved husband, George W. Roberts, for and during the term of his natural life, all of my real estate whatsoever and wheresoevei situate at my death. . . .</p> <p>“ 4. The lot of ground I hold on the corner of Second avenue and Mill street in Elizabeth borough, Allegheny county, Pa., being one hundred and twenty feet square, after the expiration of the life estate of my husband, George W. Roberts, heretofore provided for, with all the buildings and improvements thereon erected, I give and bequeath to nay three daughters aforesaid during their lives, to be equally divided between them, under the condition that they shall hold the same exclusively and free from all control of their husbands or any of them. Said property to descend and be inherited by said daughters’ children and their heirs forever.”</p> <p>The plaintiffs, said Sarah Jane Lewis and Edward W. Lewis, were married and had children living at the date of the making of the will of Ruth Roberts, and at her death, and are still united in marriage, and said children are still living.</p> <p>By articles of agreement made and entered into on August 31, 1897, the plaintiffs agreed to sell and convey by general warranty deed, free from incumbrances, to the defendant an undivided one-tliird interest in fee simple in the land in question.</p> <p>It was agreed that if the court be of opinion that the plaintiffs can convey an undivided one-third interest in fee simple in said lots numbered 17 and 18, then judgment to be entered for the plaintiffs in the sum of $1,500, to be satisfied by them, upon the defendant accepting their deed and making payment of said sum, but if not, then judgment to be entered for • the defendant.</p> <p>The court entered judgment in favor of the defendant.</p> <p>There was no separate use trust created by the will: Todd’s App., 24 Pa. 429; Trittv. Colwell, 31 Pa. 234; Heck v. Clippenger, 5 Pa. 387; Bailey v. Allegheny Bank, 104 Pa. 425; Rank v. Rank, 120 Pa. 195; Ringe v. Kellner, 99 Pa. 460; Torbert v. Twining, 1 Yeates, 432; Morrison v. Dollar Savings Bank, 36 Leg. Int. 215.</p> <p>The natural and obvious meaning of the last sentence in item fourth, makes the pronoun “ their ” refer to “ daughters ” and not to “ children ” and, therefore, it is “ daughters’ heirs ” that is meant, and not “ children’s heirs.”</p> <p>The will created a fee simple in the daughters: Yarnall’s App., 70 Pa. 341; Huber’s App., 80 Pa. 355; Oyster v. Oyster, 100 Pa. 540.</p> <p>Under this will a separate use trust is created as to the estate of the daughter, Sarah Jane Lewis, she being at date of the will under coverture: Wilbert’s Est., 166 Pa. 113; Hays v. Leonard, 155 Pa. 477; MacConnell v. Lindsay, 131 Pa. 476; Morrison v. Dollar Savings Bank, 36 Leg. Int., 215.</p> <p>The husband of Sarah Jane Lewis being still alive, she cannot alien her interest in fee during his life: Hays v. Leonard, 155 Pa. 277; Quin’s Est., 144 Pa. 454; Lancaster v. Dolan, 1 Rawle, 231; Wright v. Brown, 44 Pa. 224.</p> <p>The word “ children ” used in the devise is not a word of limitation, but a word of purchase: Carroll v. Burns, 108 Pa. 386; Taylor v. Taylor, 63 Pa. 484. Being a word of purchase and not of descent or limitation the first taker has only a life estate and cannot convey a fee: Daley v. Koons, 90 Pa. 249; Keating v. McAdoo, 180 Pa. 10.</p>

<p>Appeal, No. 136, Jan. T., 1897, by Rockport Granite Company et al., from decree of C. P. No. 3, Pbila. Co., June T., 1893, No. 797, dismissing exceptions to master’s report.</p> <p>Petition for dismissal of trustee.</p> <p>Exceptions to master’s report. Before Finletter, P. J., and Gordon, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to master’s report.</p> <p>Where the lower court has not considered and passed upon the findings of fact and conclusions of law of an auditor or a master the Supreme Court will, under its general powers and under the Act of May 20, 1891, P. L. 101, review the whole case upon its merits, and enter such decree as it “may deem proper and just, without returning the record for amendment or modification to the court below:” Reading Iron W7orks, 150 Pa. 369; Fessenden’s Est., 170 Pa. 631; Fitzsimmons v. Robb, 173 Pa. 645; Kutz’s App., 100 Pa. 75; Milligan’s App., 97 Pa. 525; Miller’s App., 102 Pa. 544; Moore’s App., 3 Pennypacker, 110; Worrall’s App., 110 Pa. 349.</p> <p>Under the evidence the master should have found as a conclusion of law that Bryson was not a proper person to act as trustee, and should have recommended a decree removing him from the trust: 2 Lewin on Trusts, 848; Scott v. Rand, 118 Mass. 215; Marsdeu’s Est., 166 Pa. 213; Hilles’s Est., 9 W. N. C. 421; Kellberg’s App., 86 Pa. 129; Seyfert’s Est., 3 W. N. C. 565; Gaul’s Est., 12 Phila. 13; Wilson v. Wilson, 145 Mass. 490; Uvedale v. Ettrick, 2 Cases in Chan. 130.</p> <p>—This appeal should be dismissed, because as the record shows no formal decree has been entered in this case, and it is improper practice in equity to treat the court’s conclusions of law as the equivalent of a decree: Fitzpatrick v. Engard, 175 Pa. 393.</p> <p>The findings of a master on questions of fact, approved by the court below, will not be set aside by the Supreme Court, except for clear error: Stocker v. Hutter, 134 Pa. 19; Sharps-burg Borough v. Saint, 6 Cent. Rep. 142; Warner v. Hare, 154 Pa. 548; Brotherton v. Reynolds, 164 Pa. 134; Citizens Pass. Ry. v. Harrisburg Pass. Ry., 164 Pa. 274.</p> <p>The evidence is not sufficient to sustain the averments of the petition, or to show such conduct on the part of the trustee as would justify his dismissal.</p>

<p>Equity — Practice—Findings of fact — Review —Appeals.</p> <p>Where there is evidence to sustain the findings of fact by the court below in an equity suit, the Supreme Court will not nicely weigh the testimony to determine which side predominates, nor carefully compare the statements of contradictory witnesses and pass on their credibility. Under the new equity rules, this is for the court below.</p> <p>Statute of frauds — Part performance of oral contract — Specific performanee.</p> <p>A part performance of an oral contract for the conveyance of an interest in real estate takes it out of the operation of the statute of frauds and enables a court of equity to decree a full and specific performance of such contract.</p> <p>On a bill in equity filed by a sister against a brother, it appeared that the mother of the parties had been the administratrix of her husband’s estate, but that the defendant had transacted all the business of the estate. When the administratrix’s account was filed, the plaintiff sought to surcharge the accountant with considerable sums of money, and also claimed an equitable interest in certain real estate. To facilitate a compromise the case was continued by the orphans’ court, and on the following day plaintiff and defendant, with their counsel, met and concluded an oral agreement which was to be carried into effect by a formal writing to be thereafter drawn by counsel, a memorandum of,which was at the time made. By this agreement plaintiff consented to the confirmation of the account as filed, and defendant was to pay to the plaintiff a portion of the proceeds of the sale of the real estate. On llie following day the account was confirmed at the request of the parties. After the confirmation of the account defendant refused to execute the written agreement, offering, however, to consent to the opening of the account, but 'to this some of the other parties interested therein objected. Held, (1) that the evidence showed a part performance of the oral contract by the plaintiff; (2) that the plaintiff had no adequate remedy in damages; (3) that she was entitled to maintain the bill for specific performance.</p>

<p>Appeal, No. 164, Jan. T., 1897, by Security Company of Pottstown, from order of C. P. No. 4, Pbila. Co., March T., 1898, No. 90, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>From tbe report of the auditor, John F. Thayer, Esq., it appeared that Josiah F. Bailey, prior to January 1, 1891, was an iron commission merchant, and his sons, Frank E. and Harry H., were employed by bim as clerks at stated salaries. On January 1, 1891, tbe three formed a partnership, under the name of J. F. Bailey & Sons. Tbe sons contributed no capital, and they received no salaries from tbe firm, but were entitled to profits, as follows: Frank E., thirty per cent; Harry H,, twenty per cent; their father’s share being tbe remaining fifty per cent. Tbe new firm continued in business until March 11, 1893, when the firm and the three members, as individuals, assigned the firm and their individual estates to Omar J. Kinsley, for the benefit of the firm and individual creditors.</p> <p>The partnership creditors of the firm of J. F. Bailey & Sons contended that certain bonds and shares of stock were the property of the partnership, and not of J. F. Bailey, individually. On this subject the auditor found as follows :</p> <p>The most valuable of these assets were the 950 shares of the Philadelphia Copper Mill Company, the sixty shares of the stock of the Reading Rolling Mill Company, and fifteen five per cent coupon bonds for $1,000 each of the Bloomington City Railroad Company. As to the Copper Mill stock, Mr. Kinsley, the assignee, testified that when the certificates of stock came into his possession as assignee, they stood all in the name of Josiah F. Bailey, except two shares; of these two shares, one certificate of one share stood in the name of H. JE. Bailey, and the other in the name of Frank E. Bailey. These two shares Mr. J. F. Bailey and Mr. H. H. Bailey both testified were not in reality the property of Messrs. H. H. Bailey and Frank E. Bailey, but belonged to Mr. J. F. Bailey, and that they were placed in the names of H. H. Bailey and Frank E. Bailey to enable them to act as directors. The books of the Provident Life and Trust Company were also produced to show the registration of this stock in the above names. The sixty shares of the stock of the Reading Rolling Mill Company, Mr. Kinsley, the assignee, testified that at the time they came into his possession also stood in the name of Mr. J. F. Bailey. The fifteen bonds of the Bloomington City Railway Company, were pledged as the property of J. F. Bailey, and came into the assignee’s possession after the payment of the debt to the Provident Life and Trust Company, for which they were collateral, had been paid.</p> <p>Upon the part of the individual creditors it was urged that the evidence of the ownership of these stocks and bonds by J. F. Bailey individually was conclusive. Counsel representing the firm creditors disputed this position and claimed that as these stocks and bonds bad been the property of J. F. Bailey, and used as such in his business before his sons were admitted as partners, they continued to bear the same relation to the new firm, and should be considered as part of the capital of J. F. Bailey & Sons, and distributable as firm assets. For this they pointed to entries of these securities in the books of J. F. Bailey & Sons, where they appear under the head of Security Account, and to strengthen this contention Mr. J. F. Bailey was examined by the counsel for the firm creditors as if on cross-examination, and Mr. Graham, Mr. Houston, Mr. Ballard and others were called to show that, after the assignment of J. F. Bailey & Sons, Mr. J. F. Bailey had repeatedly spoken of the securities in question as firm assets and sought to apply them as such in a scheme of reorganization of the firm of Cofrode & Saylor, Limited, the Reading Rolling Mill and the firm of J. F. Bailey & Sons. The auditor finds from the evidence that Mr. Bailey did do this, but inasmuch as such words were spoken and such actions taken by Mr. J. F. Bailey after the assignment, such words and actions can have no effect upon the rights of the creditors which had before that time attached.</p> <p>“ Let the partner actually apply his own property as he thinks proper while he administers it himself. When it is in gremio legis his control over it ceases.” Mr. Justice Paxson in Gallagher’s Appeal, 114 Pa. 353.</p> <p>Nor can greater effect attach to. the action of Mr. J. F. Bailey, as proved before your auditor, in suffering a sale to be made by the assignee of the securities in question as the property of the firm of J. F. Bailey & Sons, as such action was also subsequent to the assignment. It is true, as admitted by Mr. J. F. Bailey, that he on one occasion pledged 198 shares of the Copper Mill stock as collateral for a firm debt, but this accommodation to the firm did not make the collateral the property of the firm.</p> <p>“ If a partner own laud or personalty, his right and interest cannot be affected by permitting the partnership to use his property upon any terms satisfactory to them:” Parsons on Partnership, * 492; Story on Partnership, § 372; Fay v. Finley, 14 Phila. 206.</p> <p>Such transactions are quite common in business. The entries in the ledger of J. F. Bailey & Sons under title, Security Account, of certain of the stocks and bonds the auditor does not regard as controlling evidence of ownership in the firm, in view of the fact of Mr. J. F. Bailey’s denial of such ownership by the firm, and the fact that the certificates stood in his name individually.</p> <p>Upon tbe whole testimony your auditor finds, and so concludes, that the assets set down by the accountant as individual assets were in fact the property of Mr. J. F. Bailey, and that his two sons, who comprise the other members of the firm, had no right, title or equity in them whatsoever. If this be so, then the firm creditors must be excluded from participation in this fund, and it must be divided pro rata among the individual creditors of Mr. J. F. Bailey, according to the amount of their claims and interest to the date of the assignment, irrespective of any collateral security they may hold: Jamison’s Estate ; Boyer’s Appeal, 168 Pa. 143, and cases cited in opinion of Justice Mitchell.</p> <p>The right of the firm creditors to the assets included in the account as firm assets is not quite so clear. Under York County Bank’s Appeal, 32 Pa. 446, Scull’s Appeal, 115 Pa. 141, and Bixler & Correll v. Kresge & Green, 169 Pa. 405, it might be questioned whether the evidence in this case establishes any equity in the partners, H. H. Bailey and Frank E. Bailey, as against Josiah F. Bailey, the other partner, which' would give them the right to require the application of the assets enumerated to the payment of the firm debts. They contributed no capital; whatever comprised the capital of J. F. Bailey & Sons emanated entirely from their father; all they were to receive was a certain percentage of the earnings, and against these earnings they drew certain sums, which were charged to them in tbe books exactly as had been done when they were clerks. Mr. J. F. Bailey in his testimony, however, discriminated between what he regarded as his individual property and what he had considered firm property at the formation of the partnership. He spoke of contributing ten thousand dollars ($10,000), although the auditor finds no trace of this contribution in the books at the time indicated, viz: January 1, 1891. He speaks also of the capital being nominal and consisting partly of bad debts (suspended accounts) of the old business. On cross-examination he speaks of the assets in the firm of J. F. Bailey & Sons as follows:</p> <p>By Mr. Saylor: “Q. Were there any assets of the firm of J. F. Bailey & Sons except those which you furnished from time to time ?' A. There was some accumulations, I believe, as results of bad debts. Q. Were there any tangible valuable commercial assets of J. F. Bailey & Sons, at any time from tlie time of the formation of the firm until the time of the assignment, other than those which you furnished ? A. Yes, sir, there were book accounts. Q. Were not these book accounts the creation of your capital, tlie result of your capital? A. No, sir, the book accounts were the creation of this indebtedness. Q. The assets or book accounts which were due J. F. Bailey & Sons by the persons with whom you did business — did not that business or indebtedness due you grow out of capital which you alone furnished J. F. Bailey & Sons? A. No, sir; if we have an indebtedness here of $75,000, that is in your hands. Q. It grew out of that ? A. Yes. We had other indebtedness, I think about $30,000, collateral loans and open accounts. Q. In other words, there were no assets of J. F. Bailey & Sons, other than those which you furnished? A. No other than those which I furnished. Q. In truth, and in fact, you were the firm of J. F. Bailey & Sons ? A. That is just as you choose to construe it.”</p> <p>If the auditor should construe the above testimony as counsel for the firm creditors apparently construes it, it would, under York County Bank’s Appeal, etc., be fatal to his client’s claim; but the auditor regards the construction put upon it by the witness more in consonance with law, viz: that such assets as were tlie result of the business, as explained in the witness’s answers as above, are properly firm assets, and distributable to firm creditors.</p> <p>“So far as the partnership property has been acquired by means of partnership debts, those debts have in equity a priority of claim to be discharged: ” 3 Kent, p. 65.</p> <p>It is hardly necessary to quote authority for the legal proposition that “ where there are separate and partnership creditors and separate and partnership property, the rule in equity is, that each estate shall be applied exclusively in the first instance to the payment of its own creditors : ” Walker v. Eytli, 25 Pa. 216; Black’s Appeal, 44 Pa. 503; 3 Kent, Com. p. 65; Assigned Estate of Jamison & Co., 163 Pa. 143.</p> <p>The point of law, however, loses its importance when, as in this ease, the assets proved to be separate assets are sufficient to pay the separate debts in full and leave a balance to be carried to account as firm assets.</p> <p>Exceptions to the auditor’s report were dismissed- by the court.</p> <p>Errors assigned were in dismissing exceptions to the auditor’s report.</p> <p>The law of the case would seem to be reasonably clear. If the Copper Mill stock . had been contributed to the firm and had become firm assets, it belonged, in the first instance, to the firm creditors, just as the true individual assets of Josiah F. Bailey belonged primarily to his individual creditors: Jamison & Co.’s Assigned Estate, 163 Pa. 143; 34 W. N. C. 481 (1894), and cases there cited.</p> <p>It is respectfully submitted that the overwhelming testimony in this case was that the Copper Mill stock had become by special contribution the property of the firm. The books of the firm, kept by the assignee, and with which each partner is presumably familiar, clearly included this stock among the firm securities. Moreover, it is undoubted that portions of the stock were pledged for a firm debt at the time of the assignment.</p> <p>No claim was made by Josiah F. Bailey, individually, at the time of the assignment, that this stock was his individual property, and no separate inventory was filed by his assignee, who, as stated, had been his bookkeeper.</p> <p>Moreover, the stock was finally sold by the assignee, at public auction, as the property of J. F. Bailey & Sons.</p> <p>Against these facts and admission there is only the post factum declaration of Josiah F. Bailey, that the stock did not belong to the firm, and the fact that it was in his individual name.</p> <p>The burden was and is now upon the plaintiffs to satisfy tire court that in his finding of fact the auditor was guilty of obvious mistake or an unwarranted conclusion: Hibbs v. Woodrvard, 15 W. N. C. 338; Ellison v. Hosie, 147 Pa. 337; Philadelphia Company v. United Gas Imp. Co., 180 Pa. 235.</p> <p>Where there are partnership and separate creditors and partnership and separate property, and the firm is insolvent, each class has priority upon its respective estate aud must first resort to it for payment; after satisfaction of the claim of either class the other may come upon the residue according to its several legal and equitable rights: Black’s App., 44 Pa. 503; Parsons on Partnership, *492; Fay v. Finley, 14 Phila. 206 ; Gallagher’s App., 114 Pa. 353.</p>

<p>Appeal, No. 239, Jan. T., 1897, byi defendants, from decree of C. P. No. 3, Phila. Co., Sept. T., 1896, No. 114, on bill in equity.</p> <p>Bill in equity for a conveyance and an account. 'Before McMichael, J.</p> <p>The bill was filed in 1896 against the executors and heirs of Thomas Finley, who died October 24, 1879, to obtain an accounting and a conveyance concerning five properties situate in Philadelphia, to which the decedent had title, alleging that they were affected by a trust in plaintiff’s favor, created by said decedent in his lifetime. Said properties, as numbered in the bill, are as follows: No. 1. Northeast corner Thirty-sixth and Spring Garden streets; No. 2. Southwest corner Thirty-sixth and Spring Garden streets; No. 3. Crescentville Mill Property; Twenty-second and Twenty-third wards ; No. 4. Northwest corner Thirty-fifth and Spring Garden streets; No. 5. South side Spring Garden street, 100, feet west from Thirty-sixth street.</p> <p>The bill averred that Nos. 1, 2 and 3 belonged to plaintiff’s mother, and that upon her death in 1886, intestate, the plaintiff acquired a one-sixth interest in common with her five brothers, subject to the life estate of her father, James P. Bruner; that she had no interest .originally in properties Nos. 4 and 5, which belonged solely to her father; that in order to protect Edward Browning and the firm of Browning Brothers, to whom they were indebted, James P. Bruner and his sons agreed that said Browning should acquire their title and interest and that of complainant in said real estate, and that he should hold the same in trust, and after paying the indebtedness due to him and his firm out of rents and proceeds of sales, etc., should pay over to plaintiff any surplus in cash, and convey to her any properties that might then remain unsold; that in 1877, in pursuance of such agreement, the title and interest of the father and sons were sold at sheriff’s sale under judgments held by Browning against them and bought in by Browning, and the plaintiff conveyed her one-sixth interest in the three properties to him.</p> <p>The bill averred that subsequently Browning agreed to convey the properties to Finley in consideration of the payment by Finley of the balance of the indebtedness of James P. Bruner & Sons due to him, Browning, upon the trusts thereinafter mentioned, and that‘Browning did so convey by deed dated February 1J, 1878; that Finley, by agreement dated January 22,1878, agreed with plaintiff that out of rents and proceeds of mortgages and sales he should first repay himself the moneys advanced by him, to pay the balance due Browning and all taxes and expenses incurred in managing the properties, as well as certain sums due him by James P. Bruner, and should deduct a commission, of ten per cent for the management of the properties, and when payment in full had been made to him, he, Finley, would convey to the plaintiff the properties remaining unsold; that properties Nos. 1 and 5 were sold in Finley’s lifetime, the first at sheriff’s sale under a mortgage made by Browning, and the other by Finley for a nominal consideration, subject to a mortgage of ¡110,000, also made by Browning, and that Nos. 2, 3 and 4 were sold after Finley’s death at sheriff’s sale under foreclosure proceedings on mortgages.</p> <p>It was further averred that property No. 5 was sold in fraud of plaintiff’s rights, because of inadequacy of price, and that the purchase by the executors of Nos. 2 and 3 was in trust for her. under the said written agreement made with Thomas Finley, the decedent, and that the same should be conveyed to her by the executors, and that there is a balance due for which the defendants should account to her. She asks for an accounting of all five properties.</p> <p>Defendants’ answer admitted the facts set forth with reference to the original title to the properties, but denied that the alleged written agreement was made by Thomas Finley, but avers that Finley was the sole and absolute owner of said properties which-were not subject to any trust in favor of the plaintiff; that the executors purchased the two properties, of which a conveyance and accounting are sought, at sheriff’s sale in 1881, under adverse proceedings on mortgages thereon in order to protect their decedent’s bond, and that the plaintiff never made any claim of interest in said properties from the time they were sold in 1881 up to 1896, during which time the executors had expended large sums in improving said properties.</p> <p>It averred that James P. Bruner and his sons in 1877 were insolvent, and that Edward Browning and Browning Brothers held judgments against them under which the interest of the Bruners in the properties was sold and bought in by Browning; that plaintiff conveyed her interest in the properties to Browning in order to pay the indebtedness of her father and brothers; that there was no agreement by which Browning was to hold the properties in trust, but that his conveyance from the sheriff and the plaintiff was an absolute title, not subject to any trust in favor of the plaintiff; that Browning did not agree to convey the properties to Finley upon any trust in favor of complainant ; that the only agreement under which Browning sold the properties to Finley was an agreement to sell absolute^ to Finley for the consideration of upwards of $16,000, and no mention was made of the plaintiff’s name or of any trust in her favor; that the deed by Browning to Finley, dated February 19, 1878, in pursuance to this agreement, was likewise absolute on its face; that plaintiff signed a paper dated January 22, 1878, but this was never signed by Finley, and Finley never agreed to hold the properties in trust for plaintiff; that the properties sold at sheriff’s sale were sold under adverse process on the mortgages, of which plaintiff had full and ample notice; that the executors were unable to carry the properties any longer, ■ and under advice of counsel declined to pay interest, and notified plaintiff that she could have a conveyance of the properties upon payment of upwards of $20,000, which was the amount expended on them by the decedent and the executors, who submitted an itemized account thereof; that plaintiff knew of the sheriff’s sales to the executors of Thornes Finley at the time they took place, but made no claim of interest under the trust or otherwise for fifteen years thereafter, and until shortly before this suit was brought.</p> <p>The facts as developed at the trial appear by the opinion of the Supreme Court.</p> <p>The court below entered a decree directing an account.</p> <p>Error assigned among others was the decree of the court.</p> <p>■ — No written agreement of trust was proved to have been executed and delivered within the statute of frauds: Porter v. Wilson, 13 Pa. 641; Slaymaker v. Wilson, 1 Penrose & Watts, 216 ; Laubach v. Meyers, 147 Pa. 452 ; Burr v. Ease, 168 Pa. 91; Krise v. Noason, 66 Pa. 253; Kerns v. Swope, 2 Watts, 75; Smith v. Smith, 27 Pa. 180; Williard v. Williard, 56 Pa. 125; Fox v. Heffner, 1 W. & S. 372; Barry v. Hill, 166 Pa. 344; Pringle v. Pringle, 59 Pa. 281, and under the terms of the alleged agreement the defendants would not be liable.</p> <p>The title to the real estate did not descend to the executors, hence they were not on any theory trustees for the plaintiff, and they owed no duty to her: Jenks v. Backhouse, 1 Binney, 91; Schenck v. Schenck, 16 N. J. Eq. 182; Zabriskie v. Morris, etc., R. R., 6 Stewart (N. J.), 22; Lockman v. Reilly, 95 N. Y. 64.</p> <p>The title was derived from the sheriff’s sale under adverse proceedings, and even if the executors had stood in a fiduciary capacity the purchase by them would not have been subject to any trust: Fisk v. Sarber, 6 W. & S. 18; Chorpenning’s App., 32 Pa. 315; Patterson v. Lennig, 118 Pa. 571; Twin Lick Oil Co. v. Marbury, 91 U. S. 590; Allen v. Gillette, 127 U. S. 589.</p> <p>The title derived from the executors through the sheriff’s sale is at most voidable, not void, and any trust relation by the executors toward the plaintiff with respect to the property so purchased, can arise only by legal implication, and such trust is then within the operation of section 6, act of April 22, 1856 : 1 Pepper & Lewis Dig. 2683; Fisk v. Sarber, 6 W. & S. 18; Christy v. Sill, 95 Pa. 380; McKean v. Clay, 149 Pa. 277; Way v. Hooton, 156 Pa. 8; Hollinshead’s App., 103 Pa. 158; Silliman v. Haas, 151 Pa. 52; Barry v. Hill, 166 Pa. 344.</p> <p>Plaintiff has been guilty of gross laches in remaining silent for fifteen years before making her claim: Penna. R. R. Co.’s App., 125 Pa. 203; Ashhurst’s App., 60 Pa. 290; Graham v. Donaldson, 5 Watts, 451; Norris v. Haggin, 136 U. S. 386; Baker v. Read, 18 Beaven, 398; Roberts v. Tunstall, 4 Hare, 257; Twin Lick Oil Co. v. Marbury, 91 U. S. 587; Rich v. Black, 173 Pa. 92; Bauer’s Estate, 30 W. N. C. 429; Stryker’s Eat., 17 Phila. 507.</p> <p>The Supreme Court will not reverse if the findings are based upon evidence sufficient to submit to a jury: Warner v. Hare, 154 Pal 548; Brotherton v. Reynolds, 164 Pa. 134; Railway v. Railway, 164 Pa. 274.</p> <p>If the necessities of her case so required, the appellee might well contend that the appellants are estopped from denying the signature of Thomas Finley: Rhodes v. Frick, 6 Watts, 315; Vanleer’s App., 24 Pa. 224; French v. Whitticar, 3 Phila. 51.</p> <p>Much of the appellants’ argument to the effect that a trust of real estate descends to the heir at law would be applicable, were it not for the fact that none of the properties as to which the bill was filed ever passed under Thomas Finley’s will. All were sold to strangers, or the title acquired by the appellants outside the will.</p> <p>A trustee will not be allowed to purchase the trust property at his own sale unless by leave of the court first had, nor in any manner to make a profit out of the same: Patterson v. Lem nig, 118 Pa. 571.</p> <p>The mere lapse of time cannot of itself bar an established legal or equitable right: Salter v. Cavanagh, 1 D. & W. 668 ; Patrick v. Simpson, L. R. 24 Q. B. D. 128; Nugent v. Nugent, 15 Law Reps. Ireland, 321; Lewin on Trusts, *64; Hovenden v. Annesley, 2 Sch. & Lef. 607; Cox v. Dolman, 2 DeG., M. & G. 592; Atty. Gen. v. Brewers’ Co., 1 Mer. 495; Ward v. Arch, 12 Sim. 475; Oliver v. Piatt, 3 How. 411; Pickering v. Lord Stamford, 2 Yes. Jr. 283; Paschall v. Hinderer, 28 Ohio, 580; Shorter v. Smith, 56 Ala. 208; Dickenson v. Holland, 2 Beaven, 310.</p>

<p>Evidence — Expert witnesses — Opinion of witness.</p> <p>Two things must concur to justify the admission of an expert witness-first, the subject under examination must be one that l-equires that the court and jury have the aid of knowledge or experience such as men not specially skilled do not have, and such therefore as cannot be obtained from ordinary witnesses; second, the witness called as an expert must possess the knowledge, the skill or experience needed to inform and guide the court and jury in the particular case. Upon such a question such a witness may be called and may testify not merely to facts, but to conclusions from the facts.</p> <p>Criminal laiv — Murder—Evidence—Expert testimony.</p> <p>On the trial of an indictment, for murder, it appeared that after the arrest of the prisoner liis room was searched, and an old, worthless pocketbook was found in his bed. The murder had been committed six months prior to the prisoner’s arrest. Evidence was offered to show that the pocketbook had been rudely mended with thread of the usual size and character. It was sought to connect this pocketbook with the deceased by showing that he had a smaller pocketbook which had been mended in a similar manner. For this purpose a witness was put upon the stand as an expert to prove that the repairs upon each pocketbook had been made by the same person, with the same thread. The witness declined to say that the repairs on both were made by the same person. The thread used liad been the same in number on both, as he thought, but it was a common number, and was not a certain basis for an opinion that the work had been done by the same person. This evidence was submitted to the jury, with the instructions that if the pocketbook found in the prisoner’s bed was one of those which the murdered man owned and had in his possession at, the time of his death, it would be a strong presumption of the defendant’s guilt. Held, (1) that there was no question of art or skill raised by the evidence upon which special knowledge was needed; (2) that the witness did not show himself possessed of expert knowledge, if it had been necessary; (8) that the jury should have been instructed that it did not follow from the evidence that the prisoner either took the pocketbook from the murdered man or placed it where it was found; (4) that the credibility of the story was for the jury, and they should first have determined its value.</p> <p>The question as to the length of time after death when rigor mortis may be expected to set in is a question for expert medical testimony, and cannot be answered by an undertaker’s assistant, who has no medical knowledge, who states that he is not an expert on the subject and whose only experience has been in preparing dead bodies for burial without his attention being specially directed to the subject.</p> <p>Criminal law — Murder—Evidence— Threat.</p> <p>In the trial of an indictment for murder a threat to rob the deceased is admissible to show knowledge or motive on the part of the prisoner, but there is no such legal presumption that the threat will be executed as relieves the commonwealth from the duty of proving the fact it alleges, viz: the participation of the prisoner in the robbery and killing of the deceased.</p> <p>Criminal law — Murder—Evidence of detectives — Cross-examination.</p> <p>On the trial of an indictment for murder where it appears that detectives had been employed by the county to work up the case against the prisoner, they, for the purpose of showing their interest or feeling in the cause, may be asked upon cross-examination to state the general eharaeter of tlie contract with the county, and how the pay of the agency was to be adjusted.</p>

<p>Appeal, No. 375, Jan. T., 1895, by defendant, from order of C. P. No. 3, Pliila. Co., March T., 1897, No. 1176, making absolute a rule for attachment.</p> <p>Rule for attachment for disobeying an injunction. Before McMichael, J.</p> <p>The facts and the decree appear by the opinion of the Supreme Court.</p> <p>JSrror assigned was the alternative decree entered by the trial court.</p> <p>-The receiver gets only such title as the defendant or judgment debtor has to the estate of which he takes possession: 20 Am. & Eng. Ency. of Law, 30; Gere v. Dibble, 17 How. Pr. (N. Y.) 31; In re North American Gutta Percha Co., 17 How. Prac. (N. Y.) 549; Rich v. Loutrel, 18 How. Prac. (N. Y.) 121.</p> <p>If, at the time a receiver is appointed, a party claiming a right in the same subject-matter, under a title paramount to that under which the receiver is appointed, is in possession of the right which he claims, the appointment of the receiver leaves him in possession of the right, and does not interfere with the exercise of it: Kerr on Receivers (2d ed.), p. 169; Evelyn v. Lewis, 3 Hare, 472; Johnes v. Claughton, Jacob, 573, Rodman v. Henry, 17 N. Y. 482; Brown v. Gilmore, 16 How. Prac. 527; Parker v. Browning, 8 Paige (N. Y.), 388.</p> <p>When property in possession of a third person is claimed by the receiver, the claimant must make such person a party by amending the bill, or the receiver must proceed against him by suit in the ordinary way: Story’s Equity Juris, sec. 833 b; Noe v. Gibson, 7 Paige (N. Y.), 513; Yeager v. Wallace, 44 Pa. 296.</p> <p>A receiver has no legal title to the assets which he is appointed to collect, and without authority from the court he cannot maintain trover where they have been wrongfully converted previously to his possession: Singerly v. Fox, 75 Pa. 114; Yeager v. Wallace, 44 Pa. 294; Albany City Bank v. Schermerhorn, 9 Paige (N. Y.), 372.</p> <p>The possession of the appellant was, (a) either the possession of the company itself, because of his relationship to the company, or (6) a possession arising by virtue of the alleged forfeiture of the company’s rights, by reason of its breach of agreement.</p> <p>If his possession was that of the company, then clearly delivery to the receiver should be enforced by attachment. If his claim is by virtue of the forfeiture, equity will not permit him to allege the forfeiture as the basis of the title, and will hold that the title has not changed from the title which existed in the company before he attempted to enforce the forfeiture; in which event, delivery of possession is properly enforced by proceedings for an attachment. This seems to be so thoroughly settled by the authorities quoted by appellant that we are satisfied to leave the case to the determination of the court, upon the law as settled by the decisions.</p>

<p>Party wall — Boundaries—Monuments on ground — Deed—Description.</p> <p>A party wall is a permanent monument which fixes the location oí a boundary line within the meaning of the well-established rule, that monuments on the ground must prevail over measurements.</p> <p>In an action to recover the purchase money of real estate, it appeared that plaintiff agreed in writing to sell to defendant the premises “known as 3816, Locust street,” and recited as being twenty-five feet wide. Over twenty-one years before the date of the agreement the owner of the land in question owned the adjoining lot to the west, and built thereon twin houses. The middle of tbe party wall of these houses was six inches west of the middle line of the two lots. The owner sold the eastern lot, which subsequently became vested in plaintiff. The deed tendered by him to defendant for the eastern lot conformed to the agreement. The defendant contended that the fair intendment of the agreement was that it should include one half the party wall, and denied that plaintiff’s deed to the eastern lot carried his title further than the middle line between two lots. Held, (1) that plaintiff had a good and marketable title to the middle of the party wall, and that the deed tendered was sufficient to convey the same to defendant.</p>

<p>Sheriff's sale — Fraud—Tender—Equity.</p> <p>Where a purchaser at a sheriff’s sale and the execution creditor have been guilty of a fraudulent combination in connection with the sale, a bill in equity may be maintained by the defendants in the execution to compel a reconveyance of the property, without a previous tender to the purchaser of the amount expended by him in the purchase of the property.</p> <p>On a bill in equity to compel the reconveyance of properly sold at a sheriff’s sale under a building association mortgage, it appeared that the plaintiff had owned the property in question, and that the defendant promised to secure a stay of the sale by using certain money which the plaintiff had given him, and other money which he was to advance himself. The building association refused to postpone the sale, and the defendant, without notifying the plaintiff, entered into an agreement with the association by which he was to bid in the property for a sum which would pay the building association, but which was not equal to the value of the property. There was a material disagreement between the plaintiff and the defendant as to the amount due on her debt to the association, as to the amount advanced by defendant, and as to the amount furnished by plaintiff'. Held, (1) that a tender by plaintiff' to defendant of the amount expended by him in the purchase of the property was not a prerequisite of a right to maintain the bill; (2) that plaintiff was entitled to a reconveyance on reimbursing the defendant for his expenditures; (3) that the matters in the bill were not res adjudicata, since the plaintiff was not seeking to invalidate the sale, but merely to obtain a reconveyance of the property sold, on the ascertainment and reimbursement of defendant’s expenditures ; (4) that the court below should not have dismissed the bill, but should have ascertained the amount of defendant’s expenditures and decreed a reconveyance of the property conditioned upon the payment by the plaintiff of the amount ascertained to be due to the defendant.</p>

Appeal, No. 369, Jan. T., 1897, by defendants, from order of C. P. No. 4, Pbila. Co., Sept. T., 1897, No. 22, entering judgment in favor of relator on petition for mandamus. Petition for mandamus.

<p>Negligence — Street railways — Speed of car — Evidence—Question for jury.</p> <p>In an action against a street railway company to recover damages for personal injuries caused by a horse taking fright and backing a cart into a trolley car, where the statement avers, as the only negligence, that the car was run at “a very rapid and an unlawful rate of speed,” and the only evidence in support of the averment is the uncorroborated testimony of plaintiff, whose description of the accident was not suggestive of the speed alleged in his statement, and where the testimony of the motorman, the conductor and three policemen was that the car was moving at a low rate of speed, and that the accident was caused by the sudden and unexpected turning and backing of the horse, binding instructions should be given in favor of defendant.</p>

Appeal, No. 376, Jan. T., 1897, by-plaintiff, from judgment of C. P. No. 1, Pbila. Co., June T., 1896, No. 40, M. L. D., on verdict for defendants. Scire facias sur mechanic’s lien. Before Biddle, P. J. At the trial it appeared that no notice had been given to the owner of the work for which the claim was filed, and that the claim was filed under the act of June 16, 1836.

<p>Corporation — Trespass—Wrongful dispossession of real estate — Province of court and jury— Contract — Director.</p> <p>In an action by the assignee of an insolvent corporation against two partners, the evidence showed that one of them who was a stockholder, director and one of the building committee of the corporation, entered into a contract, in the name of the partnership, with the corporation, to build a factory upon land owned by the other partner, the building when finished to be paid for by a mortgage for the contract price; and, further, that the company paid the owner of the land the price agreed on in a contract made the same day. The evidence also tended to show that the partner who had agreed to construct the building, secretly sublet the contract at a much less sum to another person who, before the contract with the corporation was made, had offered to do the work for him at this less sum. The property was delivered to the corporation, which placed in the building valuable machinery, but refused to execute a mortgage for the full amount of the contract price. The partners thereupon ejected the corporation from the possession of the building. Held, that plaintiff, under the evidence, had a right to go to the jury on tlie question of damages for a wrongful dispossession.</p> <p>While the act of March 81, 1860, forbidding officers of a corporation to contract with the corporation to furnish supplies and materials, does not apply to contracts with private corporations, yet such contracts come under tlie common-law rule that they shall be closely scrutinized, aud be in all respects fair and reasonable.</p>

<p>Corporations — Stock subscription — Evidence—Estoppel.</p> <p>In an action by a corporation to recover on' a stock subscription, it appeared that at a stockholders’ meeting at which defendant was present it was unanimously resolved to issue 400 undisposed of shares of stock, for the purpose of enlarging the company’s plant. Three persons who were present at the meeting testified that the defendant agreed, after some hesitation, to be one of four to take this stock, and that he directed the secretary to put him down in the minute book for 100 shares. The secretary testified that he made the entry a few minutes thereafter. The minute book was offered in evidence, but excluded under the objection of the defendant. The other three took and paid for the other 300 shares. It also appeared that the entire proceeds of the stock so issued was necessary for improvements agreed upon; that contracts were made on the strength of the subscription, and that defendant advised with the directors and urged the selection of a particular engine. Defendant never disputed his liability, but, on the contrary, recognized his obligation to pay, by postponing the time of payment, and naming a time when he would pay. Held, (1) that defendant was estopped from questioning the validity of his contract, even if it were only in parol; (2) that ‘the minute book was the best evidence of what the secretary did by direction of the defendant, but defendant cannot complain of its exclusion on his own objection; (3) that a verdict and judgment against the defendant should be sustained.</p>

<p>Negligence — Street railway — Evidence.</p> <p>In an action against a street railway company a verdict and judgment for the plaintiff will be sustained where it appears that an electric car in which plaintiff was riding as a passenger, at night, suddenly stopped by reason of the trolley pole becoming displaced; that the lights immediately went out leaving the car in darkness, and that the motorman and conductor took no proper precautions to warn the car which followed, and which collided with the standing car, by which the plaintiff was injured.</p> <p>Negligence — Surgical operation — Damages'.</p> <p>In an accident case it is not error for the court to charge the jury that if they “ believe that the surgical operation necessary to relieve or cure the plaintiff was a serious or critical operation, necessarily attended with some risk or failure, then the plaintiff was not bound in law to undergo the operation.”</p> <p>Practice, G. P. — Trial—Gharge of court — Requests for instruction.</p> <p>If a trial judge fails to charge on some point which counsel regard as essential, the attention of the judge should be called to it before the jury retire, and more specific instructions requested.</p>

<p>Evidence — Depositions—Practice, C. P.</p> <p>A deposition taken by a stenographer in shorthand must be fully written out in longhand, read by or to the witness, assented to and signed by him. These requirements or their full equivalent are essential, and cannot be dispensed with. Unless complied with the court will not receive or consider the deposition.</p> <p>Arbitration— Revocation of arbitration — Consideration — Rule of court.</p> <p>Where an agreement to arbitrate partakes of the nature of a contract whereby important rights are gained and lost reciprocally, and the submission is the moving consideration to these acts, the agreement is irrevocable.</p> <p>By an agreement to arbitrate, title to land was admitted to be in the plaintiff, together with certain water privileges. Damages were admitted to be due and owing, and the agreement provided simply for their assessment. There was some delay incident to the reference. Held, that the agreement to arbitrate could not be revoked by the defendant.</p> <p>An agreement to arbitrate when made a rule of court is irrevocable.</p> <p>Where an agreement to arbitrate is in a pending action, it is treated as under a rule of court, and it is unnecessary to so stipulate in the agreement.</p>

Appeal, No. 88, Jan.' T., 1897, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1893, No. 52, on verdict for defendant. Assumpsit on a promissory note. Before Archbald, P. J. ■Reference is made to McCarthy v. Scanlon, 176 Pa. 262.

Appeal, No. 246, Jan. T., 1896, by plaintiff, from decree of C. P. Lackawanna Co., June T., 1893, No. 8, dismissing bill in equity. Bill in equity for an injunction to restrain defendant from tbe breach of a condition or covenant. Edavabds, J., bled the folloAving opinion: Tbe facts set forth in plaintiff’s bill are substantially as follows : Plaintiff and defendant are corporations.

<p>Appeal, No. 235, Jan. T., 1897, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1894, No. 114, on. verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Clayton, P. J.</p> <p>The facts appear by the charge of the court below, and by the former report of the case in 174 Pa. 369.</p> <p>At the trial the. plaintiff offered in evidence the notes of testimony of Newlin Trainer taken at the first trial. The defendant objected because no efforts had been made to produce the witness. The court admitted the testimony on the ground that the witness was out of the state, and could not be subpoenaed. Exception and bill sealed. [1]</p> <p>The court charged as follows:</p> <p>This is not a very clear case so far as the testimony is concerned, and I think the principles of law involved in it will be easily understood. The difficulty you will have will be with the testimony. [It may be stated as a general proposition of law that every employer should provide a reasonably safe place for his workmen or his laborers, reasonably suitable and safe tools and machinery, reasonably safe materials to work with and reasonably competent fellow-workmen, and if inexperienced workmen are employed it is his duty to instruct them that the work in which they are employed is dangerous. Now, so far as I am able at present to remember, these are the only duties which the law throws upon an employer, and if he neglects any of them and an accident results by which an injury is inflicted upon any of his workmen, the employer is liable to respond in damages.] [2] So, you see, the very essence of the case that you are about to dispose of is whether the employer here was guilty of any negligence in the performance of any of the duties which I have enumerated. It is not necessary that there should be wanton, wilful or gross negligence; that is not necessary. Negligence is the absence or the want of due and proper care; and what is due and proper care depends largely upon the surrounding circumstances, the business that is being prosecuted, the tools that are being used and the danger that is incident to the business; these are all to be considered. [The defendant is a corporation, that is to say, it is an artificial person. In its aggregate capacity it is liable to the same extent as if it was one individual person. A part of the difficulty in the cause arises from the question of agency. It is easy to bring a want of knowledge home to an individual; it is sometimes difficult to bring it home to a corporation. Still, it has no immunities that an individual has not. Corporations act by their agents and by their officers. Now, there is a distinction between an employee in a general sense of the word who works for wages, and an officer of a corporation who is financially interested in it as a stockholder, who acts as its manager and general superintendent, who hires and discharges workmen and pays wages; and he is generally compensated for what he does by a salary. If you find, therefore, that Mr. Davis was the general superintendent of the whole business, and that he was the general manager of all the machinery, then, I charge you that he was not, technically speaking, a mere agent; he was the vice principal, or stood in place of the principal; this is what the law calls a vice principal as distinguished from a mere agent. Now, understand me, if you find from the evidence that Mr. Davis was the general superintendent of the whole business, and was the general manager of all the machinery, then, I charge you that any want of care in him, any negligence of duty, is a want of care and negligence of duty in the corporation, because he is the vice principal of the corporation; the corporation is the principal. A general manager is not the mere agent; he is the vice principal, and stands in the place of the corporation.] [3] Then, we come down to a repetition of the first question, as to wliat was his first duty. [It was the duty of the corporation, and if you find he was the general agent of the machinery and superintendent, then it was his duty, and his duty was the corporation’s duty, to furnish reasonably safe tools and machinery for the workmen employed by that corporation, and the great question will be, has he done it ? If he has not done it then his principals or the ones he represents, that is the corporation, are liable if the accident was the result of that negligence.] [4] Now, in order to dispose of that question, you may say what did he do, and what did he neglect to do ? Upon this question, the evidence is very meager, very unsatisfactory; very indeed. It is by no means clear, and much will depend on inferences and presumptions, but let me say to you, gentlemen, you are not permitted to guess at anything; all your findings must be based upon the testimony. You may draw inferences, but you will not be permitted to guess at results. It seems that the plaintiff here was ordered, together with Mr. Taylor, another workman, to put up two hangers for a countershaft, and arrange the pulleys upon it. He said it weighed some two or three hundred pounds. The shaft of course would hardly weigh that much, but there were pulleys; they appear to be attached to the shaft which, of course, increased its weight. The plaintiff tells you that he and Taylor went down in the room below and took down two hangers that had been in use there. He says that he went to his dinner, and when he came back he found what he supposed was the hangers he had taken down, in the place where they were to be put up, and that a scaffold had been built some seven feet above the floor, and some three or four feet from the joists or girder to which the hangers were to be attached. It seems that while the plaintiff was at dinner Mr. Davis countermanded the order for the hangers that had been taken down below, at least, we may presume that he did; there is no evidence what he said, but there is evidence that Mr. Davis and Mr. Taylor went with him to a place where some old hangers had been stored, and that two of them were selected and brought up and put upon the platform. These hangers were put up by these two workmen, and after they had been put up, and as the workmen were about leaving, one of them broke, either from the weight of the shaft, or because of some unskilful work upon the part of Taylor and the plaintiff, or because of some defect in the hanger. Now, if that breaking was caused by any unskilful work upon either the part of the plaintiff or his coworkman, Taylor, there can be no recovery here, and I want you to particularly remember what I say upon this subject. If you find from the evidence that the cause of this accident was the screwing up of set screws too tight, either by Mr. Giberson or by Mr. Taylor, his fellow workman, then the company is not responsible either for the unskilful work of the plaintiff himself or for any unskilful work upon the part of his fellow-workman. Now, remember that, gentlemen; and that will be one of the questions for you to decide. I would advise you to take up that question first of all, because it may relieve you from further trouble in the case in construing the evidence. Lot me repeat again, because it is one of the turning points in the cause, after considering that question by the evidence, if you come to the conclusion that the cause of this accident was the screwing up of the set screws too tight, by which the hanger was broken, then the plaintiff cannot recover, because it is a settled principle of law that the negligence of a coworkman or negligence in the workman himself causing the accident cannot bo charged to the employer.</p> <p>Now, you come to the second question in the case, the more delicate one. If you come to the conclusion, under all of the evidence, that the accident was not caused by want of care or skill in putting up the machinery; if you find that it was not caused by screwing up the set screws too tight, but that it was caused by some latent defect, or some, patent defect, in the machinery itself, then you naturally come to the second question, and that will be whether the defendants knew or ought to have known that there was a defect in that hanger; and [I here charge you again that Mr. Davis’s knowledge was the company’s knowledge, if you find that he was the general superintendent and manager of the machinery. Then, if you should come to the second question, you will look at all the evidence upon that. You have heard the testimony in the case as given by the witnesses in regard to the appearance of the iron. Some of them say it was broken all the way across a half inch thick and dark; some say it was broken on the outside, and some say they think it was on the inside, some of the witnesses say there was a sand blister there, the size of a three cent piece, and a crack on each side, but that it did not extend as far as the others say. Some examined it, perhaps, more closely than others did. If you come to the conclusion, therefore, that this was a piece of machinery that ought not to have been used without a further inspection of it, then, if you find evidence enough upon that subject, and find that that was the cause of the accident, you may find for the plaintiff.] [5] [Now, what is the evidence? I say, it is not satisfactory or clear. I am not prepared to say whose fault it was that it is not satisfactory or clear. It may be the fault of the law, because the law, as it now stands, does not permit the plaintiff to give in evidence declarations that were made after the accident. It may be the fault is in the defendants in not producing more evidence in regard to the inspection of it. It is certain that the plaintiff has produced all the evidence that the law will permit him to produce, and I say it is not clear and satisfactory.] [6] The evidence is this: It appears that there was an old part of the mill which was called the Keystone, as near as I can ascertain from the testimony, which had either been rebuilt, torn down or repaired, it is not very clear which, and that some hangers that had been used in the old Keystone mill had been stored away in a part of the mill now being used, and that they had been there for many years. If I am not mistaken, Mr. Taylor says they had been there for many years. I think that Mr. Trainer says also, that they had been there for a long time. He says that Mr. Davis was the general manager of the machinery; “I had nothing to do with that, if he was present; he was general superintendent of the mill; he did not buy goods.” Now, that is what Mr. Trainer says Mr. Davis’s position was. He says he was general manager of the machinery, general superintendent of the mill, could hire and discharge workmen, but did not buy goods. He had the right to discharge the men. [Now, Mr. Johnson asked him if he knew what became of their condemned hangers. Now, this is evidence that there are condemned hangers around there. This is some evidence at least that all the hangers around there are not in good condition; that there are condemned ones; it is evidence that they had examined and condemned them. “ Q. Do you know what became of your condemned hangers ? A. No, sir; they are thrown in the pile and sold. Q. You do not know that this hanger had been condemned? A. No, sir; I do not. Q. Did you ever hear of that before to-day? A. No, sir; it is entirely new to me. If you will allow me I will say what Mr. Davis said.” But that of course he could not do. “ Q. Do you know whether or not any of the twenty-two hangers — ? ” Now, this is important testimony, gentlemen, it seems there were about twenty-two hangers in that apartment that were never used. . “Q. Do , you know whether or not any of the twenty-two hangers which Mr. Taylor took down, do you know whether any of them were condemned or not?” He says, “I thought not. Q. Did you know that they were thrown away? A. I remember seeing some but the most of'them were good.” This would indicate from Mr. Trainer’s testimony that they were not all good. “Probably one half of them.” Now, what does he mean? What hangers does he refer to ? It will be for you to say. I say the testimony is by no means clear. If Mr. Trainer were here perhaps he could explain it. They are talking now about some twenty-two hangers. I suppose, it will be for you to say, that they are referring to the hangers that were in that apartment unused, and Mr. Trainer says, “ most of them were good, probably one half.” Now, if only one half of the hangers in that room were fit for use, it was the duty of Mr. Davis, as superintendent and general manager of the machinery, to know that, and if they went to that apartment and selected hangers that were not fit for use without properly testing them or examining them, it would be some evidence of negligence upon the part of Mr. Davis, and if it were negligence upon his part it was negligence upon the part of the defendant, and if it were not for that testimony in the cause I would feel it my duty to withdraw this case from you and say that there was not sufficient evidence; and 1 paid very close attention to the testimony. It strikes me that Mr. Taylor’s testimony and Trainer’s testimony does point at least toward some negligence in the selecting of those hangers, if you find that the hanger was defective.] [7] [Now, there is another point to which I want to call your attention. I think that Mr. Taylor says that these hangers were painted twice within six months. He said they were painted once, I feel quite certain, within six months, and his testimony intimates that they were in that room where they went for them. Now, who painted them? Or why were they painted? If they were imperfect, and were painted by the direction of Mr. Davis, then, I say, if that painting was done without a close inspection, it was negligence. They had no right to paint the old defective hangers, if there were defective hangers there, without first inspecting them, and if they were not inspected before they were painted, it is clear the painting may have destroyed the ability of the workmen to see the defect. The workmen say that they looked over those carefully before they put them up, and saw no defects, but they say they had been painted, and I understood Mr. Taylor to say that they had been painted within six months. Now, it may be that he does not mean that, but' it will be for the jury .to say.] [8] Mr. Taylor says that in his judgment the hanger was broken by the tightening of the screws; he says they were all examined, and that he helped to do it. (The court here reads from the witnesses’ testimony in the paper-book.) “ Q. Do you know whether it was the custom of the mill or not to examine the machinery up in the mill to see whether it was effective?” I suppose that means “defective.” He says “it was.” “ Q. And do you know whether or not this hanger was examined? A. They were all examined. Q. I understand your judgment to be that that hanger was broken by tightening of the set screws? A. Yes, sir. Q. What was the plaintiff’s business there? A. Well, he says he was ‘general carpenter.’ Q. After this hanger had been taken down in the storeroom had it been used afterwards?” Now what does that mean? It was, as I understand, a hanger that was taken from the Keystone factory and put down in the storeroom. “Was it used afterwards?” He says, “I think not. Q. Do you know whether the hanger that broke had been condemned? A. I think not. There was quite a.number of them there.” I suppose he means in the storeroom. “ Q. And you would be most likely to know if it was afterward used? A. Certainly I should have known it. Q. And you are the one that took them up and down with thé help from other men? A. Yes, sir.” That is, took them from the storeroom, I suppose he means, up to the scaffold, or else he means he is the one who took them from the old Keystone works and put them there; I don’t know which he means; it will be for you to say. “Q. Mr. Davis was superintendent of the mill and he was your boss as well as Mr. Giberson’s? A. Yes, I got my orders from Mr. Davis. Q. Where were the hangers before being in the storeroom?” Now, as I understand, the storeroom was a part of the present factory? Is that right? (The counsel answers yes.)</p> <p>“ Where were the hangers before being put in the storeroom ? ” The answer is “The Keystone — ” and then there is a dash. “Where is that?” Answer “At the east end of the mill, on the third floor.” He could not mean that. He could not mean the Keystone factory is on the third floor of this mill. Therefore, there is evidently something left out. He means that the storeroom was in the east end of the mill on the third floor. Is that what you mean?</p> <p>Mr. Broomall: The Keystone, there is no Keystone mill, that is the name of the storeroom.</p> <p>The Court: Oh, is that so, then it means that.</p> <p>Mr. Cockran: Was not the Patterson mill called the Keystone Mills ?</p> <p>The Court: That is what I thought, I don’t know, gentlemen, you must get whatever light you can upon it. It may be that the Keystone, which was a small mill built by Mr. Patterson, stood on the site where this is now; that was the way I understood it. Now he goes on “ How long had they been there ? ” He says, “I don’t know.” He means in this storeroom. “I don’t know. I could not tell you anything about that. They might have been there ever since the mill was built. Q. Do you know how old the mill is ? A. It was built in ’61 or ’62.” That is thirty-two or three years that he says they might have been there. “What was the width of the shafting — ” and then they go on to another question. I want to get down to where he speaks about the painting.</p> <p>[Mr. Cochran: The painting is spoken of on page 22, if the court please, under the first court question there. (The court refers to the question in the paper-book.) “ Q. Had this hanger been painted? A. Yes, sir. Q. How many coats of paint had it? A. About two, probably, not more than one. Q. Who brought the hanger from the shop to the mill? A. I can’t say.” There is more said about the painting than that. In the crossexanrination, he says they were painted about six months ago. “Q. Now did you know at the time what had happened to them? A. No, sir. Q. How much of the hanger was up there; did you see the broken piece ? A. I don’t remember whether I saw it or not. Q. What did you do with the broken hanger ? A. I took it down and throwed it in the scrap pile. Q. Did Mr. Davis throw it in the scrap pile ? A. He certainly did. Q. You say this hanger had been painted twice; how recently before the accident. A. Probably six months.”</p> <p>Now this is an important piece of testimony. If these old hangers that had been stored away (they were in this storeroom) were recently painted, there should be some evidence here of their condition before they were painted. There should be some evidence that they were inspected before they were painted. If you find that there was a defect in the machinery, if the painting itself had a tendency to conceal any defect in the hangers, then, if they were good hangers, what were they doing there? Why were they not used when the mill was built ? Why were the hangers stored away ? Why, I suppose you may presume they were stored away for an emergency, and were to have been examined, and believed to be reasonably good, and Mr. Trainer, if you put the same construction on his testimony as I do, says that probably one half of them were good, which would indicate that they were not all fit for use without a proper examination.] [9] Now, gentlemen, that is all the testimony that we have upon the subject of negligence. I say it is not clear, by any means; it is very unsatisfactory, but it will be for you to say what the testimony is, and if you come to the conclusion, after considering all the testimony, first, that this accident did not happen because of the unskilful setting of the machinery and a too tight screwing up of the set screws, but that it happened because of some defect in the machinery itself, that it was not able to bear the weight, and the wrench or weight of the countershaft which, according to the testimony, was 250 pounds, and that the weight of the countershaft alone broke it; that there was a flaw in it somewhere, if it was defective ; but it was hidden so that it could not be seen, [then jmu will consider whether it could have been seen before it was painted, and if you come to the conclusion that Mr. Davis was the general agent and the general superintendent, you may infer that the painting was done by his direction, and if it was done on this defective machinery, it was his duty before it was painted to see whether it was perfect or not, for he could not see it if it was concealed by painting.] [10] If it was successfully used and unbroken before, he could take it for granted that it was good, and the law would not require him to make the same careful inspection as if it was a ,new piece of machinery, but the whole question will be for you, and I say to you, there is barely enough to submit the case to you. [And if you come to the conclusion, therefore, that there was some neglect of duty on the part of Mr. Davis, if you find that he was the general superintendent and manager, I charge you that his negligence was the negligence of the company, and that it is responsible for it, that he was not a mere agent; that he was a vice principal, and that any negligence upon his part was negligence upon the part of the company. It is not the case of negligence upon the part of the foreman. A foreman is not a vice principal, he is an employee, a grade above a workman. If he were a mere foreman I would say to you that the company would not be responsible for his negligence and there could be no recovery for negligence upon his part, if he were a mere foreman, but he is more than a foreman, he is a subprincipal, and for that reason I hold that negligence upon his part was negligence upon the part of the company. And if you find from all of the evidence that there was negligence upon the part of Mr. Davis you can find for the plaintiff.] [11]</p> <p>Verdict and judgment for plaintiff for $ 1,100. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2-11) portions of charge as above, quoting them; (12) in submitting the case to the jury.</p> <p>The official stenographer’s notes of the testimony of a witness, taken at a former trial of the same issue, are not a deposition, and, if the stenographer is not sworn, they are not properly proved notes of the examination as required by section 3 of the Act of May 24, 1887, P. L. 199: Smith v. Hine, 179 Pa. 203.</p> <p>Under the circumstances, the defendant contends that Davis and Taylor, in selecting this hanger, were fellow-workmen of the plaintiff and that, being such, there can be no recovery; that while Davis might have been a vice principal for certain purposes, yet in the particular matter of the selection of this hanger he was a fellow-workman, and the defendant is not responsible for any lack of care on his part: Ross v. Walker, 139 Pa. 42.</p> <p>There is nothing in the case to show that Davis knew anything about the hangers being' defective. On the contrary, the only evidence upon that subject is that of Samuel Taylor, who says Davis and himself examined the hangers closely and saw no defect.</p> <p>The vice principal is where the master or superior places another in charge of his business or a distinct branch of it: Wharton’s Law of Negligence, sec. 229; Lewis v. Seifert, 116 Pa. 628; N. Y., L. E. & West. R. R. v. Bell, 112 Pa. 400; Lehigh Valley Coal Co. v. Jones, 86 Pa. 439; Frazier v. Penna. R. R., 38 Pa. 104.</p> <p>It was proper for the court to leave to the jury the fact as to whether Davis was a vice principal or a fellow-workman, and their verdict shows him to have been a vice principal: Plass v. Philadelphia & Southern Mail Steamship Co., 88 Pa. 269; Mullan v. Steamship Co., 78 Pa. 25; Evilhock v. R. R., 169 Pa. 592.</p>

<p>Practice, common pleas — Trial—Reservation of point oflaiv where written contract is declared upon.</p> <p>Where the determination of a question of law reserved depends upon the construction of the written contract declared upon, it is not necessary to include in the point extraneous and incidental matters. If the entire contract is set forth in the declaration it need not be incorporated in the reserved point.</p> <p>Practice, common pleas — Trial—Demurrer—Reservation of point of law.</p> <p>The fact that the defendant in a suit upon a written contract did not raise by demurrer the question whether the suit was prematurely brought is no bar to the decision of it upon a point of law reserved.</p> <p>Contract — Construction of contract — Fntire and severable contract.</p> <p>A board of trade of a borough, desiring that a corporation should establish its plant within the limits of the borough, agreed in writing that the corporation “ during the first ten years’ occupancy of the premises shall be exempt from borough taxation, and will be supplied with water for the natural uses of the business at a cost not exceeding $100 per annum.” Held, that under the contract a suit could not be maintained for payments of water rent in excess of $100 for one year, or a number of years, before the expiration of the ten years mentioned in the contract.</p> <p>Corporations — Foreign corporations — Act of April 22, 1874.</p> <p>It seems that wherever a foreign corporation seeks to enforce in the courts of Pennsylvania demands accruing to" it from the transaction of business within the state, it is bound to show, as part of its case, that it was entitled to do business in the state as a corporation, by having comjjlied with the provisions of the Act of April 22, 1874, P. L. 108, relating to the appointment of agents and designation of place of business.</p> <p>It seems that if a foreign corporation has filed a statement designating a place of business in one county, and subsequently removes to another county, it is bound to file a new statement designating the new place of business, and failing to do so it has no standing to enforce claims in its favor.</p>

<p>Appeal, No. 25, Jan. T,, 1898, by plaintiff, from decree of C. P. Schuylkill Co., March T., 1897, No. 1, on bill in equity.</p> <p>Bill in equity to restrain a borough council from entering into a contract for lighting its streets. Before SavidGB, P. J., of the 8tli judicial district, specially presiding.</p> <p>On September 2, 1895, the town council of the borough of Tamaqua entered into a written contract with the Edison Electric Illuminating Company for lighting the streets of the borough, pursuant to a resolution of council passed August 26,1895, and duly approved by the chief burgess. The contract was for five years, and provided for eighty, ten amperes, fifty volt, 2,000 candle power, arc lights, at $75.00 per light per year, to be paid monthly.</p> <p>On the faith of the contract the Edison Company enlarged its plant, at great expense and, since December 1,1895, has been furnishing the lights required. No complaint is made of the efficiency of the service. Prior to December last, the streets were lighted by the same company, incandescent lamps being used. The Edison Company had the only electric lighting plant in the town. On February 20, 1895, an election, authorized by resolution of town council, was held on the question of increasing the borough indebtedness $25,000, for the purpose of providing a town light and power plant. The proposition carried by a large majority.</p> <p>It was contended that the contract in question ought to be annulled, because (a) council was concluded by the will of the people expressed at the polls and could not, thereafter, contract with a private concern for street lighting service, but were bound to provide the borough plant, for which the increased indebtedness was authorized, (5) the contract was illegal, not having been authorized by borough ordinance, (c) the borough authorities could not contract for a longer term than one year, (d) the contract was improvident and the prices to be paid excessive.</p> <p>The trial court dismissed the bill.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing bill.</p> <p>Any regulation of the lighting of streets must be by ordinance: Com. v. Beaver Boro., 171 Pa. 542; Kepner v. Com., 40 Pa. 124; In re Seventh St. Lebanon City, 5 Dist. Rep. 591; Borough of Milford v. Milford Water Co., 124 Pa. 610; Penna. Globe Gaslight Co. v. Scranton, 97 Pa. 538; Larimer & L. St. Ry. v. Larimer Ry., 137 Pa. 533; Butler v. School Disk, 149 Pa. 351; Harrisburg Ry. v. Harrisburg, 7 Pa. C. C. R. 584; L. C. & N. C. v. Inter-County St. Ry., 167 Pa. 126; Wain v. Phila., 99 Pa. 337 ; Com. v. Buchanan, 6 Kulp, 217; Schenck v. Borough oí Olyphant, 181 Pa. 191.</p> <p>A borough cannot make a contract to light its street for a longer period than one year: McKeesport City v. Pass. Ry. Co., 2 Pa. Superior Ct. 242; Black v. City of Chester, 175 Pa. 101; Crenshaw v. U. S., 134 U. S. 99; Mottv. Penna. R. R., 30 Pa. 9 ; 1 Dillon on Municipal Corp. sec. 98.</p> <p>The contract did not require the sanction of an ordinance. A resolution duly passed and proved was sufficient: Millvale Borough Case, 162 Pa. 374; Wilkes-Barre v. Wyoming Historical Society, 134 Pa. 616 ; Shaub v. Lancaster City, 156 Pa. 362.</p> <p>The terms “ ordinance,” etc., are not essential, — a “ resolution ” answers the same purpose: Com. v. Beaver Boro., 171 Pa. 542; Buchanan v. Beaver Boro., 171 Pa. 567; Ake v. Mason, 101 Pa. 17 ; Silsby Mfg. Co. v. Allentown, 153 Pa. 319; Reuting v. Titusville, 175 Pa. 520.</p> <p>A municipality, like a trading or business corporation, unless expressly prohibited by law or restricted by its charter, may enter into any contract necessary to enable.it to carry out the powers conferred upon it: 15 Am. & Eng. Ency. of Law, 1080.</p> <p>If no mode of entering into contracts is prescribed, valid contracts within the scope of the corporate powers may be -made, just as natural persons may make like contracts: Dillon on Municipal Corporations (4th ed.), sec. 307; Butler v. Passaic, 44 N. J. L. R. 171; Crawfordsville City v. Braden, 14 Lawyers Rep. Ann. 273; Fisher v. South Williamsport, 1 Pa. Superior Ct. 386; Water Co. v. Waymart Borough, 4 Pa. Superior Ct. 211.</p> <p>The power to contract is incidental to the other powers of a borough : Trickett, Penna. Boro. Law, p. 224 ; Shaub v. Lancaster City, 156 Pa. 365 ; Hummelstown Boro. v. Brunner, 17 Pa. C. C. R. 140.</p> <p>The borough authorities have the right to contract for more than one year: Metropolitan Electric Light Co. v. Reading, 175 Pa. 107 ; Mott v. Penna. R. R., 30 Pa. 9.</p>

<p>Appeal, No. 30, Jan. T., 1898, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1894, No. 26, on verdict for plaintiff.</p> <p>Assumpsit to recover assessments for street improvements.</p> <p>At the trial before Clayton, P. J., it appeared that the ordinance under which the assessments were made was as follows:</p> <p>“ Ordinance appointing assessors.</p> <p>“ ordinance</p> <p>“ Providing for the assessment of the cost of local improvements heretofore made upon the property abutting on the street, lane or alley, or part thereof, where the said improvements have been completed.</p> <p>“ Section 1. The mayor and council of the city of Chester do ordain, that the cost of local improvements heretofore made in the said city of Chester shall be assessed upon the property abutting on the street, lane or alley, or part thereof, where the said improvements have been completed. Said assessments shah be made and collected in accordance with the provisions of the act of assembly, entitled £ An act authorizing assessments and re-assessments for the cost of local improvements already made or in process of completion, and providing for and regulating the collection of the same,’ approved May 23, 1889, and Robert Wilson, Samuel Mcllvain and Nathan Sharpless are hereby appointed viewers to make said assessments.</p> <p>“Sec. 2. Said assessments shall be due sixty days from the date of making the same, and if not paid when due shall bear interest, and shall be collected, together with five per centum penalty, as provided in said act of assembly.</p> <p>“Sec. 3. Said assessment may be paid in five equal instalments, the first instalment shall be due and payable sixty daj^s from the date of said assessment; the second instalment shall be due and paj^able in one year from the date of said assessment; the third instalment shall be due and payable in two years from the date of said assessment; the fourth instalment shall be due and payable in three years from the date of said assessment; and the fifth instalment shall be due and payable in four years from the date of said assessment. The second, third, fourth and fifth instalments shall bear interest from the date the first instalment was due and payable, and in case any instalment is not paid when due, the whole assessment remaining unpaid shall become due and payable, and shall be collected as provided by said act of assembly.</p> <p>“Sec. 4. Any owner of property against which said assessment shall be made may pay all or as many of said instalments as he chooses before the same are due, and in case said assessment is paid within sixty days after being made, or any said instalment is paid when due, the owner pajfing such assessment or instalment shall be entitled to have deducted from the same a sum equal to ten per centum upon the amount of such assessment or instalment.”</p> <p>The court under objection and exception by defendant admitted the ordinance in evidence. [2]</p> <p>When Robert Wilson, a witness for defendant, was on the stand, defendant’s counsel made the following offer:</p> <p>“ I propose to show by this witness that the assessment which is the basis of this claim in the above action was entirely perfunctory ; it was made from an inspection of the original contract with the city for the whole work oil each particular street, or from a statement of the said contract made by the city officials. I desire to show that this was the basis upon which the viewers arrived at the amount; that no calculation was made of the quantity and value of the several materials entering into the work, nor as to the time and value thereof occupied in doing the work. The information upon which the viewers made their report was based, not upon their own examination, measurement, inquiries or calculations of either the cost or value of the work and materials, nor the quantity thereof, but from figures and data furnished by the officers of the plaintiff, and the final result arrived at in this case was not the calculations of the viewers made by themselves from information independently attained by them, but that the said result was prepared by the city officers for them; they did not ascertain separately the time, amount, quality, value or cost of the various items of sand, gravel, stone and lumber contained in that part of the street opposite the defendant’s property, so as to assess against him his just and true indebtedness to the plaintiff' city, but based it on estimates of values or secondary evidence obtained from the plaintiff, and not upon the true worth thereof. The time occupied by the viewers in going over the eight streets named in the statement of claim in said case, containing many hundreds of feet and numerous properties, was only parts of a very few days, entirely inadequate to enable them to make a just and legal assessment upon each particular property.”</p> <p>Plaintiff’s counsel objected to the offer.</p> <p>The Court: The objection is sustained and the offer is overruled upon two grounds ; first, that the defendant had notice, and it was his duty to have appeared before the viewers and made his objection there; secondly, he has now leave to show in defense any defense that he has upon the merits. Exception noted. [6]</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned among others were (2) admission of ordinance as above; (6) sustaining objection to defendant’s offer, quoting the bill of exceptions.</p> <p>The ordinance offended against the constitutional provision requiring the subject-matter to be clearly and fully set out in the title so as to give notice of contents: Mt. Joy Borough v. Turnpike Co., 182 Pa. 581.</p> <p>Where a city passes an ordinance to pave a street, the existing ordinance applicable to all such cases must be read into the special provision of a particular case: Erie v. Griswold, 5 Pa. Superior Ct. 132; Indiana & Westmoreland Turnpike Co., 5 Pa. Superior Ct. 65.</p> <p>The act of 1876 relates to “paving and grading.” The act of 1887, which is said to be a virtual substitute for it, relates only to “ grading.”</p> <p>Apart from a meager proof of notice of meetings of the viewers, no testimony was admitted as to their actions. The offer of the defendant in this particular was overruled by the court; and for the purposes of this argument it is to be regarded as proved. But it is submitted that the action of the viewers was a proper matter for the consideration of the jury, because they were appointed to faithfully, conscientiously and carefully ascertain the amount and the value of the work; and, like all other persons having duties of a public character to perform, are held to a substantial performance of them. This is not a new question, and is, in substance, ruled in the cases of More-wood Avenue, 159 Pa. 20, Ferguson’s App., .159 Pa. 39, Omega Street, 151 Pa. 129, and Shiloh Street, 152 Pa. 136.</p> <p>If the title fairly gives notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to the contents as has often been said: Allegheny County Home’s App., 77 Pa. 77; Lackawanna Township, 160 Pa. 494; Rogers v. Imp. Co., 109 Pa. 109; Mauch Chunk v. McGee, 81 Pa. 433.</p> <p>The plaintiff contends that the position of this defendant is conclusive against him, and that he is estopped from raising any question as to anything except to the character of the work: Harrisburg v. Baptist, 156 Pa. 526; Chester v. Pennell, 169 Pa. 300.</p>

<p>Corporations — Directors’ meetings — Illegality of meeting — Ratification. A resolution authorizing the assignment of certain insurance policies 2)assed at a meeting of the directors of a corporation, of which meeting two of the directors did not have timely notice, is voidable, but if no officer or stockholder of the company makes any objection to it, their acquiescence must be accepted as a ratification of the resolution ; and no creditor of the company can question its validity.</p> <p>Corporations — Preferences.</p> <p>A corporation, as well as an individual or copartnership, may prefer one creditor to another if the preference is honestly made to secure or satisfy a bona fide debt.</p> <p>Corporations— Preferences — Directors.</p> <p>A director who is also a creditor of an insolvent corporation may not by his own vote obtain a preference for his claim over the claims of other ci'editors.</p> <p>The fact that one of the parties benefited by a preferential assignment made by an insolvent corporation is a director of the corporation is not fatal to the preferences lawfully created and conferred by it.</p>

<p>Appeal, No. 179, Jan. T., 1897, by city of Williamsport, from order of C. P. Lycoming Co., June T., 1896, No. 39, sustaining exceptions to report of viewers.</p> <p>Exceptions to report of viewers. Before Metzger, P. J.</p> <p>From the record it appeared that in 1869 the city of Williamsport constructed a brick main sewer about four feet in diameter in West Third street. The cost of the sewer was paid for entirely out of the general revenues of the city. In the flood of May, 1894, the sewer caved in at several points, and it was necessary entirely to reconstruct it. On March 6, 1896, viewers were appointed, who proceeded to assess the cost of the sewer upon the owners of the abutting land. Exceptions to the report of the viewers were sustained by the court in an opinion by Metzger, P. J.</p> <p>Error assigned was in sustaining exceptions to report of viewers.</p> <p>The ex-ceptants and the court below rely for their position upon the cases of Hammett v. Philadelphia, 65 Pa. 146, and City of Erie v. Russell, 148 Pa. 384. The force of the rulings in these cases is not questioned, but we desire to call the attention of the court to what would seem a clear distinction between them and the present case. It is to be observed: (1) that in the matter of an original paving the liability of the abutting property owners rests, not upon the fact but upon the presumption, of an actual direct benefit to their properties, and that the courts will not presume such a direct benefit to accrue a second time from repaving. In such case the direct user and benefit accrue to the traveling public; the benefit to the property owner is indirect in the way of a possibly increased value to his property. But in the case of a house sewer the benefit to the properties is primary, resting upon actual user; the benefit to the public is secondary; (2) that in the City of Erie v. Russell, the property owners paid for the cost of the original sewer; and further, it does not appear from the report of the case that such sewer was a main sewer constructed for the purpose of carrying off storm sewage as well as house sewage, in other words, for public service as well as private, benefit.</p> <p>The assessments in this case, being for the cost of reconstructing a sewer, cannot be enforced against property owners abutting on the street under which the sewer is laid: Erie v. Russell, 148 Pa. 384.</p> <p>No matter how or by whom the original cost of sewer construction is paid, the municipality must bear the cost of reconstructing such sewers: Hammett v. Philadelphia, 65 Pa. 146 ; Williamsport v. Beck, 128 Pa. 147; Harrisburg v. Segelbaum, 151 Pa. 172; Beyer v. Reading, 151 Pa. 185; Park Avenue Sewers, 169 Pa. 433.</p>

<p>Negligence — Husband and wife — Injury to wife — Act of May 8, 1895.</p> <p>The purpose of the Act of May 8, 1895, P. L. 51, entitled “ An act relative to actions by a husband and wife lor injury to the person unlawfully inflicted on her,” is to provide that the two rights of action, recognized as still existing in both husband and wife respectively, should be redressed in only one suit to which both husband and wife are made parties before the trial. Nevertheless said act recognizes a separate right of action in each, which either or both may assert, and if the court at the instance of the defendant refuses to consolidate the two actions, a verdict and judgment in favor of the wife in her own case will be sustained, and the wife cannot be prejudiced by the mistaken action of the court in denying the motion to consolidate.</p>

<p>Appeal, No. 122, Oct. Term, 1897, by plaintiffs, from judgment of C. P. Allegheny County, April Term, 1897, No. 556, on verdict for defendants.</p> <p>Issue devisavit vel non. Before White, P. J.</p> <p>The facts appear by the report of the case in 179 Pa. 645, and by the opinion of the Supreme Court, infra.</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned appear by the opinion of the Supreme Court.</p> <p>The .evidence introduced by the defendants to impeach the general reputation for truth of plaintiffs’ witness, B. F. Young, was improperly received: People v. Abbot, 19 Wend. (N. Y.) 192; Rucker v. Beaty, 3 Ind. 76; Pape v. Wright, 116 Ind. 502; Waddingham v. Hulett, 92 Mo. 528; Long v. State, 23 Neb. 33; State v. Howard, 9 N. H. 485; Mitchell v. Com., 78 Ky. 219; Wood v. Matthews, 73 Mo. 477; Rogers v. Lewis, 19 Ind. 405 ; Fisher v. Conway, 21 Kan. 25; Stratton v. State, 45 Ind. 468; Willard v. Goodenough, 30 Vt. 393; Smith v. Hine, 179 Pa. 203; Marion v. State, 20 Neb. 234; State v. Johnson, 41 La. Ann. 574; Fire Office v. Ayerst, 37 Neb. 184; Webber v. Hanke, 4 Mich. 198; State v. Taylor, 45 La. Ann. 605.</p> <p>The court should not have permitted the record of the orphans’ court to be read in evidence to the jury at No. 250, September term, 1892, in the proceedings in that court begun for the purpose of compelling the payment of the legacy left A. II. Miller under the will in question: Bower'v. Bower, 142 Ind. 194.</p> <p>The letter from George T. Winston, an entire stranger to the issue tried here, should not have been read in evidence to the jury: Spence v. Spence, 4 Watts, 165 ; Deitrich v. Deitrich, 4 Watts, 167.</p> <p>It is a general rule that anything may be given as rebutting evidence which is a direct reply to that produced on the other side: 1 Rice on Ev. p. 602.</p> <p>The court should not have modified plaintiffs’ point, substantially informing the jury that there was no evidence to justify them in finding that Florence was the trusted and confidential agent of his father: Wright v. Smith, 23 N. J. Equity, 106; Taylor v. Wilburn, 20 Mo. 306; Overall v. Bland, 11 Ky. L. Rep. 371.</p> <p>The coirrt should not have accepted and recorded the verdict in this case, because it was conditional, and not absolute: Jacksonville, T. & K. W. R. Y. v. Adams, 83 Fla. 608.</p> <p>The court committed reversible error in its statement to the jury of June 5, 1897, when they returned to the court room and asked to be discharged, after they had informed the court that they could not agree upon a verdict: Merseve v: Shine, 37 Iowa, 253; Western & A. R. Co. v. Abbott, 74 Ga. 851; Randolph v. Lampkin, 90 Ky. 552; McPeak v. Mo. Pac. Ry., 128 Mo. 617; Cranston v. N. Y. O. & H. R. R., 103 N. Y. 614; Gholston v Gholston, 31 Ga. 625; Terre Haute, etc., R. R. v. Jackson, 81 Ind. 24; North Dallas, etc., Ry. v. McCue, 35 S. W. 1030; Slater v. Mead, 53 How. Prac. Rep. 57; R. R. v. Barlow, 86 Tenn. 537.</p> <p>The testimony impeaching Young was not too remote. Where a witness has removed from a community some years before the trial, the impeaching testimony of his former neighbors may be received: Jones on Evidence, sec. 862 ; Graham v. Chrystal, 2 Keyes (N. Y.), 21; Watkins v. State of Georgia, 82 Ga. 231; Snow v. Grace, 29 Ark. 131; Holmes v. Stateler, 17 111. 453; Rathbun v. Ross, 46 Barb. 127; Norwood v. Andrews, 71 Miss. 641; Sleeper v. Van Middlesworth, 4 Denio, 431; Com. v. Billings, 97 Mass. 405; Thurmond v. State, 27 Tex. App. 347; Blackburn v. Mann, 85 111. 227; Kelly v. State, 61 Ala. 19 ; Keator v. The People, 32 Mich. 484; Morss v. Palmer, 15 Pa. 51; Smith v. Hine, 179 Pa. 203; Samuel v. Withers, 16 Missouri, 532; Fearn v. Ferry Co., 143 Pa. 127.</p> <p>There was no error in the supplemental charge: Bunn v. Hoyt, 3 Johns. 255; Proffatt on Jury Trials, sec. 460; Ahearn v. Mann, 60 N. H. 472; Johnson v. State, 60 Ark. 45; Erwin v. Hamilton, 50 Howard’s Practice, 32; Green v. Telfair, 11 Howard’s Pr. 260; Conners v. Walsh, 131 N. Y. 590 ; Wiggins v. Downer, 67 Howard’s Practice, 65; White v. Calder, 35 N. Y. 183; Com. v. Tuey, 8 Cush. 1; Allen v. United States, 164 U. S. 501; Kullberg v. O’Donnell, 158 Mass. 405 : Com. v. Kelley, 165 Mass. 175 ; Hannon v. Grizzard, 89 North Carolina, 115; Osborne v. Wilkes, 108 North Carolina, 661; Fogarty v. State of Georgia, 80 Ga. 454; Parker v. Ry. Co., 83 Ga. 539; Austin v. Appling, 88 Ga. 56; Houston v. Ladies’ Union Branch Association, 87 Ga. 203; Odette v. State, 90 Wisconsin, 263; State v. Smith, 49 Conn. 386; State v. Gorham (Vt.), 31 Atlantic Rep. 845; State v. Hawldns, 18 Ore. 476; Watson v. Minneapolis St. Ry. Co., 53 Minn. 551; Gibson v. Minneapolis, St. Paul & S. Ste. Marie Ry., 55 Minn. 181; Pierce v. Rehfuss, 35 Mich. 53; Allen v. United States, 164 U. S. 501; North Carolina v. Gosnell, 74 Fed. Rep. 734; Douglass v. .Tousey, 2 Wend. 355.</p> <p>The rule that the burden of proof is upon a beneficiary who occupies a confidential relation to the testator to show the absence of undue influence does not apply, unless one of the following facts is proved: (a.) that the beneficiary solicited the benefit; (6) that he wrote the will; (c) that he procured it to be written; (d) that his advice was sought and taken : Miller v. Oestrich, 157 Pa. 268; Douglass’s Estate, 162 Pa. 567 : Herster v. Herster, 122 Pa. 239; Caldwell v. Anderson, 104 Pa. 199; Harrison’s App., 100 Pa. 458 ; Irish v. Smith, 8 S. & R. 580; Hoshauer v. Hoshauer, 26 Pa. 407; Linton’s App., 104 Pa. 228 ; Wilson v. Mitchell, 101 Pa. 495 ; Armor’s Est., 154 Pa. 517 ; Pensyl’s Est., 157 Pa. 465 ; Dean v. Negley, 41 Pa. 317; Tallman’s Est., 148 Pa. 290; DeHaven’s App., 75 Pa. 340 ; Thompson v. Kyner, 65 Pa. 379; Tawney v. Long, 76 Pa. 115.</p>

<p>Corporations— Officers of corporations — Boohs—Evidence—Criminal law. An officer or employee of a corporation who is under indictment for embezzlement of its funds may not require of his employer a suppression or conceal menr of his own entries in its books, although the entries may furnish the material clue to his crime and possibly afford satisfactory evidence of it.</p> <p>Where the president of the corporation which is in the hands of a receiver has been indicted for embezzlement, the court of common pleas which has appointed the receiver will entertain a petition of the district attorney and the prosecutrix in the criminal proceeding, for leave to examine the books, papers and accounts of the company in the hands of the receiver, although such examination may furnish evidence against the person indicted.</p>

<p>Appeal, No. 371, Jan. T., 1897, by defendant, from judgment of C. P. Lackawanna Co., March T\, 1896, No. 420, dismissing exceptions to report of referee.</p> <p>Sheriffs interpleader to determine ownership of certain goods. Before Archbald, P. J.</p> <p>After interpleader filed, agreement of parties to refer to James II. Torrey, Esq., under the act of 1869.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The referee found as a matter of law as follows:</p> <p>1. The transaction November 27,1895, between the Chamberlain Coal Company and the Finch Manufacturing Company constituted a complete and valid sale of the goods in dispute by tbe former to the latter company.</p> <p>2. At tbe time of tbe levy by the defendant upon tbe said goods, they were tbe property of the plaintiff, the Finch Manufacturing company.</p> <p>3. The Finch Manufacturing company is entitled to the fund in court.</p> <p>4. The protlionotary is directed to enter judgment in favor of the plaintiff and to pay to the plaintiff, the Finch Manufaotaring company, the money in court, the proceeds of the sheriff’s sale of the goods described in the plaintiff’s declaration.</p> <p>Defendant filed exceptions to the report of the referee.</p> <p>The court in an opinion by Abchbald, P. J., overruled certain objections and directed judgment to be entered in accordance with that ruling.</p> <p>Errors assigned were in overruling exceptions to referee’s report and directing judgment.</p> <p>The Chamberlain Coal Company was insolvent at the time of transferring to the Finch Manufacturing Company the property in dispute, and the transfer constituted a preference of I. A. Finch, which was a fraud inlaw: Kersteter’s App., 149 Pa. 154; Hopkins’s App., 90 Pa. 69; Neal’s App., 129 Pa. 64.</p> <p>The reasonable and only conclusion to be drawn from the sale of the property to the Finch Manufacturing Company is that it was because the latter company was a dealer in machinery, and would naturally pay the highest price for it; and the reason for the sale of the property was in no sense in view of a possible insolvency of the company, but because the property was not in use or needed by the company, and it was for its own advantage to dispose of it.</p> <p>The evidence, as was found by the referee, failed to show that the Chamberlain Coal Company was insolvent on November 27, 1895, the time of the sale in question: Mueller v. Fire Clay Co., 183 Pa. 452.</p>

<p>Mortgage — Contested ownership of mortgage — Practice, C. P.</p> <p>Where two parties .under different assignments are claiming the ownership of a mortgage, and one of the parties has issued a scire facias, it is proper for the court to direct that the scire facias shall be proceeded in to judgment, and then to award an issue between the two equitable claimants, to determine the facts by a jury and the law by the court.</p> <p>In a contest as to the ownership of a mortgage, the evidence for the plaintiff tended to show that K., the original owner of the mortgage, made a parol assignment of it to W. on December 20, 1875. It also appeared ' from the evidence that W. subsequently made an assignment to creditors, and his assignee transferred the mortgage to plaintiff. The evidence for the defendant showed that on December 21, 1875, K. made a general assignment for creditors to A. Subsequently on March 19,1881, K. specifically assigned the mortgage to F. and L., who assigned it to plaintiff. Twenty years after the assignment for creditors of K., plaintiff secured a judgment in the name of the legal owner on the mortgage. During these years neither the assignee nor the creditors made any assertion of ownership, and the estate of the insolvent had been settled, and the assets distributed. Held, that the plaintiff had under the circumstances of the case a color of title sufficient to give him a right to demand of another claiming the mortgage that he should establish by competent evidence his right to it.</p> <p>Evidence — Competency of witness' — Party dead — Act of June 11, 1891.</p> <p>In a contest to determine the ownership of a mortgage between two parties claiming under an assignment from the original owner of the mortgage, the original owner is a competent witness under the Act of June 11, 1891, P. L. 287, to prove that he made a parol assignment to the person under whom plaintiff claimed, although such person is dead, if another witness has already testified to being present and hearing the alleged parol contract.</p>

<p>Appeal, No. 109, Jan. T., 1897, by defendant, from decree of C. P. No. 4, Pliila. Co., Sept. T., 1895, No. 25, in divorce.</p> <p>Libel in divorce.</p> <p>The facts appear by tbe opinion of the Supreme Court,</p> <p>Errors assigned, were in dismissing exceptions to master's report, and in making absolute rule for divorce.</p> <p>Marriage and family relation lie at the very basis of social life, and the deep stake society has in their sanctity has led courts to be strict in the construction of the causes of divorce: Edmond’s App., 57 Pa. 282; Richards v. Richards, 37 Pa. 225.</p> <p>While in common-law cases the verdict of the jury, and in ordinary equity cases the finding of a master confirmed by the lower court (where no palpable error is shown), are in general conclusive on questions of fact, the procedure in divorce is exceptional, and the appellate court will not hesitate to put its own construction upon the evidence adduced: Miller v. Miller, 3 Bin. 30; Andrews v. Andrews, 5 S. & R. 374; Grove’s App., 37 Pa. 443; Jones v. Jones, 66 Pa. 494; Sowers’s App., 89 Pa. 173; Hardie v. Hardie, 162 Pa. 227; Mason v. Mason, 131 Pa. 161; McClurg’s App., 66 Pa. 366; Hahn v. Bealor, 132 Pa. 255; Detrick’s App., 117 Pa. 452; Yan Dyke v. Yan Dyke, 135 Pa. 459.</p> <p>The libellant has himself clearly shown that the separation was not a desertion in any sense.</p> <p>The libellant agreed to and acquiesced in the separation. Consent is a bar: Butler v. Butler, 1 Pars. Select Eq. Cases, 329; Ingersoll v. Ingersoll, 49 Pa. 249; Ralston’s App., 93 Pa. 133; Ferree v. Ferree, 19 Pa. C. C. 67; Smith v. Smith, 3 Phila. 489.</p> <p>Where the separation is followed by negotiations for a return to each other, there is no desertion: Simon v. Simon, 39 N. Y. Supp. 573; Rudd v. Rudd, 33 Mich. 101.</p> <p>The libellant was himself guilty of a desertion: Anger v. Anger, 63 Pa. 450.</p> <p>The Supreme Court will not disturb the master’s findings of fact except for clear error: Burroughs’s App., 26 Pa. 264; Robinett’s App., 36 Pa. 174; Mellon’s App., 32 Pa. 121; Doran v. McConlogue, 150 Pa. 98; Warner v. Hare, 154 Pa. 548; Brotherton v. Reynolds, 164 Pa. 134; Citizens’ Pass. Ry. v. Harrisburg Pass. Ry., 164 Pa. 274; Bugbee’s App., 110 Pa. 331; Krumbhaar v. Griffiths, 151 Pa. 223; Best v. Best, 161 Pa. 515; McMillin y. McMillin, 183 Pa. 91.</p> <p>The respondent wilfully deserted the libellant: Beck v. Beck, 163 Pa. 649; Bishop on Marriage and Divorce, sec. 790; Butler y. Butler, 1 Pars. 329; Rie v. Rie, 34 Ark. 37; Raver v. Raver, 1 Pa. Dist. Rep. 178; Yardley’s Est., 75 Pa. 207; Palmer v. Palmer, 22 N. J. Eq. 88.</p> <p>The respondent had no reasonable cause for the desertion: Butler y. Butler, k Pars. 329; Detrick’s App., 117 Pa. 452.</p> <p>A wife who refuses the repeated requests of her husband for the period of two years to return to him and live and cohabit with him is guilty of such desertion as will entitle the husband to a divorce: Bauder’s App., 115 Pa. 480; Whelan v. Whelan, 41 W. N. C. 212.</p>

<p>Appeal, No. 491, Jan. T., 1897, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1896, No. 1291, on verdict for defendants.</p> <p>Scire facias sur mortgage. Before Wiltsank, J.</p> <p>The defendants pleaded payment with leave, etc.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>You will observe that up to the time the bond and mortgage passed to Philip L. Schaefer no money passed between these parties. Mr. Brecht having died, and his executors having brought suit, they secured judgment whereby it was determined judicially that the money ivas due by John McParland and his wife to the personal representatives of Mr. Brecht, and thereupon certain proceedings were had, and in consequence thereof the judgment, by order of the court, was opened in order that there might be an investigation of the question, whether or not, after all, Mr. Brecht’s personal representatives were entitled to any of that money; and it was claimed on the part of the McParlands, the defendants here, that Mr. Brecht’s representatives were not entitled to any of that money, because, in fact, the bond and the mortgage had been paid; and that is the question for you to determine — whether or not, in point of fact, the bond has been paid, and the mortgage which secured it is thereby released, and should be satisfied.</p> <p>This question has arisen from dealings between Mr. McFarland and certain gentlemen whose names you have heard. In the first place, you will remember Mr. McParland was the brother of Mr. Joseph McParland, and Mr. Joseph McParland was a contractor. He had entered into contracts with the city of Philadelphia fox the building of sewers, and it was a part of his arrangement with the city of Philadelphia that he should be paid for his sewers in what are called assessment bills. That is to say, the property owners who benefited by tbo sewers would, under the law, be charged with a proportionate part of the cost of the sewers, and the contractor, Mr. McParland, was not to get his money from the city, but was to get it from the property owners who were obliged to pay according to assessment, and the procedure was, that when the work was done Mr. McParland was entitled to what are called assessment bills, which I may describe to you in that brief way.</p> <p>Accordingly, as it was necessary under the circumstances, Joseph appearing to have no capital adequate to the purpose, that he should get money in advance in order to do his work or look about for pecuniary assistance, he turned to Mr. Errieson, who was a man we may safely assume whose business it •was to raise money. At all events, he undertook that duty for Mr. McParland, and he said substantially to Mr. McParland, “ I will raise this money for you, but I must have some security,” and thereupon Mr. Joseph McParland procured the assistance of his brother, Mr. John McParland, to secure this money. There were two bonds and mortgages, but you have only to do with one in tins case. Mr. Lowrey was selected as the gentleman to whom the bonds should be given, who should be named as the party to whom the mortgage was to be made, and he took, as I have already told you, the bond and mortgage described. As I have said, no money passed at all. The object was that Mr. Erricson should procure money for Mr. McParland, and then turn over to the lender the bond and mortgage which would be the security for the payment of the debt, Mr. Lowrey being the gentleman who held the papers subject to the order, as it then stood, of Mr. Erricson. It was ascertained, however, that Mr. Erricson could not accomplish the purpose, and accordingly it became necessary that Mr. Joseph McParland should look to somebody else, and he and John Mc-Parland eventually made an arrangement with Mr. Gustav R. Schaefer, Mr. Gustav R. Schaefer having agreed that he would endeavor to raise this money and see that Mr. Joseph McParland was furnished with it. As, however, the bond and mortgage had already been created, it was also agreed that Mr. Lowrey, who held them, should transfer them to a person to be named by Gustav R. Schaefer, and he named his cousin, Mr. Philip L. Schaefer, as the party to whom Mr. Lowrey was to turn over the bond and mortgage; and Mr. Lowrey did, by assignment, turn over the bond and mortgage to Mr. Philip L. Schaefer; Mr. Philip L. Schaefer paying no money for them, but holding them subject to any such arrangement as Mr. Gustav R. Schaefer could make in the interest of John McParland. It so turned out that Mr. Gustav R. Schaefer had an acquaintance, Mr. August Brecht, who had money which from time to time he invested by the aid of Mr. Gustav R. Schaefer, and to him Mr. Schaefer sent the message that he would like to see him, and he opened this prospect of investment and finally procured from Mr. August Brecht the money — we will say $5,000 for the purposes of this ease. He procured more money from Mr. August Brecht, but I will only indicate that which has relation to the bond and mortgage before you. Mr. August Brecht did loan the money to Mr. Gustav R. Schaefer, and Mr. Schaefer stated to him at the time he got the money from him that the security was good, in mortgages, etc., but he did not describe to Mr. Brecht what bond and mortgage he had to secure that fund. Mr. Brecht seems to have had so much confidence in Mr. Schaefer that he did not ask to see the paper, he did not demand the delivery of the paper, and did not, indeed, insist on anything more than a general statement that this loan would be secured by mortgages.</p> <p>It is a question for you to determine whether or not up to that time Mr. Brecht had any knowledge at all of Mr. John McParland in the matter, or Mr. Joseph McParland. I say that I leave that question to you. You will determine that upon the proofs before you. At all events, all of Mr. Brecht’s money, so far as we need to look to it in this case, was turned over to Mr. Gustav It. Schaefer upon the representations made to Mr. Brecht by Mr. Schaefer, and subsequently to that Mr. Gustav R. Schaefer did turn over that money to Mr. Joseph McParland.</p> <p>The arrangement between Mr. Schaefer and Mr. Joseph Mc-ParlancI and also Mr. John McParland was, I think I may say, without question, but I leave that also to you, that the money was to be repaid out of what I have described as the assessment bills, and the arrangement -was also that Mr. Schaefer was to collect the assessment bills. Mr. Joseph McParland was not to collect them; Mr. John McParland was not to collect them; but Mr. Gustav R. Schaefer was to take those assessment bills and collect the moneys on them. That was the arrangement between the McParlancls, as I have told you, and Mr. Gustav R. Schaefer.</p> <p>[There is some evidence that Mr. Brecht knew of that arrangement, but how soon lie knew of it I leave to you to determine. After that Mr. Gustav R. Schaefer did collect more than enough moneys to repay this debt of $5,000; he did collect those moneys on the assessment bills that I have referred to, and if he had properly appropriated them by virtue of his arrangement with Mr. McParland and his brother, he would have turned them over to Mr. August Brecht in full payment of the debt, and his mortgage would then of right have been to be satisfied; the debt would have been paid, the bond would have been released, and the mortgage should have been satisfied.] [9] The mortgage, the moment Mr. Brecht advanced his money and the McParlands, one or either or both of them availed themselves of that money, acquired full life and vigor, so that it was in full force and effect against Mr. John McParland. Up to that time it could not have been enforced against him, but the moment they availed themselves of the proceeds, Mr. John McParland and his wife became liable on the mortgage. So that you do not have to consider any question here of consideration. The money, however, which was collected by Mr. Gustav R. Schaefer on these assessment bills was not paid to Mr. August Brecht, and for the purposes of this case you will regard that money as having been misappropriated. It was misappropriated at a time when Mr. Gustav R. Schaefer was responsible for it, and accordingly, under the law, it was the same as if he himself, Mr. Gustav R. Schaefer, individually had misappropriated it. . . . Gustav R. Schaefer was, in a sense, the representative of both these parties. . . . Did he misappropriate tins money as the agent of John McParland and Joseph, his brother? If he did so, your verdict would be in favor of the plaintiff. Did he misappropriate it as the agent of August Brecht ? If you find that he so did, then your verdict must be for the defendant. . . .</p> <p>Now, then, how are you to determine the character of Gustav R. Schaefer at the time he made that misappropriation ? You will determine it upon the testimony of these people and upon the legitimate conclusions that you draw from the facts which are proved before you. [At a certain time, Schaefer (and in speaking of Schaefer from now on, unless I otherwise indicate, I mean Gustav R. Schaefer) at a certain time Schaefer had the fund to pay that debt. He had it absolutely in his control.] [10] He says that he was not the attorney of McParland, that he was the attorney of Brecht, and he raises the implication that at the time of the misappropriation he held that fund as the agent or attorney of Brecht, and that, accordingly, his misappropriation of the fund was a misappropriation of Brecht’s money. If that is so, the defendants are entitled to yoúr verdiet, because there is a payment to Brecht if you find that testimony to be true. . . . Mr. Brecht appears to have said .... that his advance to Mr. McParland or to Mr. Schaefer, put it as we may elect to do under the proofs, was with the knowledge that he was to be repaid from assessment bills, and that it was his understanding that he was to be so paid. His deposition has been read to you twice — once in the course of the trial and once in the course of the argument — and you will recall what he said in that relation. If you believe he did say that, that is an important fact here, because, gentlemen, if all these parties understood, if Mr. Brecht understood, and the Messrs. McParland understood, and the agent of both of them (Schaefer) understood that this money was to be repaid out of assessment bills, and you find that to be the fact, then you must find a verdict for the defendant, because it is undisputed that these assessment bills have been paid. Mr. Brecht has said what I have referred to upon that head. [When we come to Mr. McParland we find that he and his brother expressly put Gustav R. Schaefer in the position of one who had control of the bond and mortgage for purposes of raising money on them, and that they also put him in control of the assessment bills for the purpose of paying the lender. So that, with regard to the testimony of the defendant and his brother, so far as they are to be looked to to state what the arrangement was, there would seem to be no doubt whatever that the assessment bills were to pay the debt, and we know that the assessment bills did go to Mr. Schaefer and were collected.] [11] ....</p> <p>I am asked to charge you, on the part of the plaintiff, as follows:</p> <p>1. Under all the evidence in the case, the verdict must be for the plaintiffs. Ansiver: I decline so to charge. [1]</p> <p>2. The uncontradicted testimony in this case is that these mortgages were originally created for the purpose of negotiation to raise money, and were afterwards placed into Gustav R. Schaefer’s hand by Mr. McParland to handle as Schaefer pleased or “dispose of them as he saw fit; ” and that this authority was never withdrawn. The uncontradicted evidence further shows that Brecht paid Gustav R. Schaefer $11,000 for Mc-Parland, and that Brecht was never repaid any portion of this money. If the jury believe this evidence and so find, then all the testimony as to whether Brecht expected Schaefer to return the money to him or looked directly to McParland, and all the evidence as to transactions between Schaefer and McParland becomes irrelevant and immaterial, and will not avail as a defense to this mortgage; and the verdict must be for the plaintiffs. Answer: I decline so to charge. [2]</p> <p>3. When one person gives another his bond or mortgage to enable that other to raise money thereon, such bond or mortgage resembles accommodation paper. Want of consideration cannot be set up against such paper, even though the holder knew that it was made for the accommodation of the payee, for the reason that the object of issuing it was to raise money thereon. In such case there can be no defense to the bond and mortgage in the hands of a third party who paid value for it. It is immaterial, therefore, what is the state of the accounts between Schaefer and McParland. If the jury find from the evidence (and the evidence is uncontradicted), either Schaefer or McParland owed Brecht at the time of the assignment of the mortgage to him, a sum equal to or exceeding the principal of this mortgage, the verdict must be for the plaintiffs. Answer : I decline so to charge. [3]</p> <p>4. The mortgage in suit having been placed in the hands of G. R. Schaefer by the defendants, for the purpose of getting a loan thereupon, and the loan being made by August F. Brecht, and the mortgage assigned to him, the said Brecht having paid the full amount of said mortgage unto the said G. R. Schaefer, who used the said money at the request of and under the order of the said defendant, and if subsequently G. R. Schaefer collected and received other moneys which belonged to the said defendant, but did not pay the said moneys over unto the said August F. Brecht, your verdict must be for the plaintiffs. Answer: I decline so to charge. [4]</p> <p>5. Where one of two innocent persons is to suffer from the tortious act of a third, he who gave the aggressor the means of doing the wrong must alone bear the C02isequences of his act. In this case, if the jury find that the mortgage remained in Gustav R. Schaefer’s hands, with the original authority to dispose of as he saw fit unrevoked, and afterwards assigned to Brecht in accordance with the original understanding between McParland and Schaefer, then the embezzlement of the money by Schaefer must be borne by McParland, who gave Schaefer the means of doing the wrong, and the verdict must be for the plaintiffs. Answer: I decline so to charge, because it does not admit of the contingency of Brecht’s having made Schaefer his agent to receive payment in one form or another. [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1-5, 9-1P) above instructions, quoting them.</p> <p>The evidence admitted was wholly irrelevant, incompetent and immaterial.</p> <p>The disappointed expectations, however great, of a creditor as to the manner in which his debtor will repay him have never yet been held an accord and satisfaction of the debt.</p> <p>Defendants cannot complain, because the mortgage was used for the purpose intended: Weigley v. Conrade, 132 Pa. 147.</p> <p>No consideration was given at the time the mortgage was created, and none for either of the assignments of it.</p> <p>Brecht was a client of Schaefer in this matter, and McParland was not.</p> <p>The money McParland was to get was to be a loan by Schaefer, and not by Brecht.</p> <p>The mortgage in suit was to be a security to Schaefer and not to Brecht, and only to secure the delivery of the assessment bills.</p> <p>The assessment bills were to be taken in payment as so much cash.</p> <p>Brecht and McParland never met in connection with the matter until long after all the money had been loaned by Schaefer and repaid to him.</p>

<p>Appeals — Opening judgment — Practice, Szipreme Court.</p> <p>Where a judgment is opened and a trial upon the merits results in a verdict and judgment for defendant, and plaintiff takes an appeal from the order opening the judgment and also from the judgment on the verdict, the Supreme Court in affirming the judgment upon the verdict will also affirm the order opening the judgment.</p>

Appeal, No. 482, Jan. T., 1897, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 174, on verdict for plaintiff. Trespass for personal injuries. Before Arnold, P. J. The facts appear by the opinion of the Supreme Court. Defendant’s points and the answers thereto among others were as follows: 1.

Appeal, No. 408, Jan. T., 1897, by John Maride and Alvan Maride, from decree of O. C. Philadelphia Co., Oct. T., 1898, No. 190, on bill of review. Bill of review.