Volume 188 — Pennsylvania State Reports

<p>Practice, common pleas — Pleading—Insurance.</p> <p>In an action upon a policy of life insurance where the statement of olaim averred that “ a true and complete copy of the policy is attached to and made part hereof,” but the copy of the policy filed refers to conditions none of which is attached to the statement, the defendant should demur to the statement; and if it fails to do so, and pleads non assumpsit, it cannot object, when the whole policy is offered at the trial, that the policy does not correspond with the instrument declared on. In such a ease the admission of the policy is equivalent to an amendment of the statement, and if the defendant is not prepared to meet the issue in that form, it should plead surprise, and ask a continuance. After a trial upon the merits the Supreme Court will not consider the suggestion that the allegata and probata did not agree.</p> <p>Insurance — Life insurance — Attachment of application to policy — Act of May 11, 1881.</p> <p>The omission to attach to a policy of insurance a portion of the application is a failure to comply with the requirement of the Act of May 11, 1881, P. L. 20, and if it appears that there is a supplementary application which was not attached to or indorsed on the policy, the original or principal application is not admissible in evidence.</p> <p>Evidence — Letters—Negotiation for settlement.</p> <p>Letters and written communications made in an offer or negotiation with a view of a settlement are not admissible in evidence.</p> <p>Insurance — Life insurance — Suicide—Burden of proof.</p> <p>Where a policy of life insurance provides that the policy shall be void if the insured dies by his own hand, and also provides that payment shall be made “ after receipt of satisfactory proof of death of said member, and the justness of the claim thereunder,” the plaintiff is merely required to make out a case by affirmative proof of death, and title in the policy. The burden of proof is not upon the beneficiary of the policy to show that the assured did not die by his own hand.</p> <p>Insurance — Life insurance — Suicide—Proof of death.</p> <p>In an action upon a policy of life insurance the plaintiff is not bound by admissions contained in the proofs of death, and may offer evidence to contradict or vary them.</p> <p>In an action on a policy of life insurance, it appeared that among the proofs of death there was a copy of a coroner’s inquest and the testimony given thereon. Upon this copy plaintiff entered the following protest: “Ihave been informed the verdict was suicide, but I decline to be bound by it.” The defendant made no request for further proofs, but accepted them as filed. Held, that the plaintiff was not precluded from recovery because the proofs of death tended to establish the fact of death by suicide.</p>

Appeal, No. 177, Jan. T., 1897, by defendant, from order of G. P. No. 2, Phila. Co., March T., 1896, No. 1003, sustaining demurrer to suggestion for quo warranto. Proceeding in the nature of a quo warranto, to reinstate the relator in the office of manager of the Masonic Home of Pennsylvania. Respondent filed an answer and additional answer to which .relator demurred. The facts appear by the opinion of the Supreme Court. Error assigned was in overruling demurrer.

Appeal, No. 112, Jan. T., 1898, by defendants, from order of C. P. No. 2, Phila. Co., March T., 1896, No. 1003, on petition for mandamus. Petition for mandamus. The facts appear by the opinion of the Supreme Court and the report of Commonwealth v. O’Donnel, ante, p. 14. ¡Error assigned was in entering decree awarding a peremptory mandamus.

<p>Corporations — Ouster — Opening judgment of ouster — Intervention of corporation.</p> <p>Where a judgment of ouster has been entered against a person claiming to be an officer of the corporation, and the corporation was not a party to the proceedings, the corporation has the right subsequently to intervene for the purpose of maintaining a rule to open the judgment of ouster.</p> <p>Practice, common pleas — Rules of court — Answer to petition for rule— Ouster — Quo warranto.</p> <p>A rule of court requiring an answer to be filed to petitions for rules applies to a petition for a rule to open a judgment of ouster in quo warranto proceedings.</p> <p>Practice, Supreme Court — Appeals—Rule to open judgment of ouster — . Act of Mag 20, 1891.</p> <p>It seems that an appeal from an order discharging a rule to open a judgment of ouster is authorized by Act oí May 20, 1891, P. L. 101.</p>

Appeal, No. 75, Jan. T., 1898, by plaintiff, from order of C. P. No. 2, Pbila. Co., Sept. T., 1893, No. 92, discharging rule to set aside report of referee. Rule to set aside report of referee. Exceptions to report of referee. The referee awarded a counsel fee of $250 to the attorney for the garnishees. Other facts appear by the opinion of the Supreme Court. Errors assigned were in discharging rule to strike off report of referee, and in dismissing exceptions to his report.

<p>Appeal, No. 426, Jan. T., 1897, by Amanda H. Ballantine, from decree of O. C. Phila. County, April T., 1897, No. 121, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by tbe opinion of tbe Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Decedents' estates — Glaim by attorney at law — Liability of estate.</p> <p>Where the estate of a decedent is ample, it is liable for services in connection with the transportation of decedent’s body from the place of his death in a foreign country to the place of burial, rendered at the request of the widow.</p> <p>Decedent while traveling with his wife died in India. The widow telegraphed to her attorney in Philadelphia to meet her at Marseilles. The attorney went to Paris and made all arrangements for the transportation of the decedent’s body through France to America. He was away fifty-five days from his professional duties. Held, (1) that while the attorney’s services were not strictly professional, yet he might infer from the telegram that his legal services were required; (2) that the sum of $1,800 was not unreasonable for the services rendered; (3) that the claim should be paid out of the decedent’s estate.</p>

<p>Evidence — Ancient document — Map—Boundaries</p> <p>In an action of trespass where the controversy turns upon the boundary of land,’ a map over sixty years old, found in the files in the proper office at the state capital, and prepared by the commonwealth to fix the location of land appropriated by the state for the purposes of a canal, is admissible in evidence as an ancient document, and it is not necessary that the party offering it should show that it. was framed and filed at the exact time the state entered upon the land of which the map purported to be the boundary. Such a map is not a paper between the parties as to boundary, but a signification by the commonwealth of the quantity taken by boundary, leaving open to objection on part of the landowner the amount of compensation only,.and this would in no way affect the boundary.</p>

<p>Appeal, No. 306, Jan. T., 1897, by Alice J. Jarvis and James Corbett, executors, from decree of O. C. Crawford Co., Feb. T., 1894, No. 43, sustaining exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, D. C. McCoy, Esq., reported the facts to be as follows:</p> <p>James Woodside, farmer and mill owner, a resident of Rock-dale' township, in said county of Crawford, and the possessor of quite a property, both real and personal, on May 10,1890, made his last will and testament, written by himself, as follows:</p> <p>“ Millers Station Crawford County State of Pennsylvania May 10th 1890 I James Woodside of county & state above Mentioned Do make this my Last Will and testiment revoking all former wills</p> <p>“ I give mrs Jane Cutchall Five hundred dollars</p> <p>“ I give mrs S F Langley the ten acres that I Bought of Henry Langley & wife Land Situated in Cambridge Township to have and to hold in fee Simple</p> <p>“ I give & bequeeth to Gerome Eddy & wife all money that may be due me on Bond & morgege after a settlement of all acts is apply on Bond & morge</p> <p>“ I give to my Sister Sharlott Ferris five hundred dollars “ I give to Gilbert Ferris & wife any amt they may owe Me on Bond & morge or note act &c</p> <p>“ I give & Bequeth my Sister mrs Elen Fleek one thousand dollars and what may owe me</p> <p>“ I give to my Sister Loretta Saeger one thousand dollars “ I give to my Bro Robert Woodside five hundred dollars and what he may owe me</p> <p>“I give my Bro Chester Woodside five hundred dollars “I give my Bro deece Mark Woodsid heirs five hundred dollars</p> <p>“ I give to Frank Decker five hun dollars of what he ows me He Said Decker to pay any ballance he may owe me to Mrs Charles Borgis</p> <p>“ I give and Bequeth to mrs mary Borgis the ballance of what Frank Decker may owe me and one thousand dollars “ I give to my Bro Wm Heirs what is my due from estate one thousand dollars</p> <p>“ I give to my Sister Jane Parker all I hold clames against Daniel Parker and five hundred dollars ' ■</p> <p>“ I give five hundred dollars to the Rockdale Cemitree</p> <p>“ I give Adolph Parker fifteen hundred Dollars</p> <p>“ I lease during his life time to C H Richards the use of</p> <p>what land and house & Barn not acede two acres that he now oekopies he must stay on the land or lease is foriieted</p> <p>“ now the above gifts & Bequeth is to Be paid by Sale of the mill property and all lands that is on the East Side of French creek in Rockdale Town Ship with this provision that all Pursonable property that is on the East Side of french creek at my deace after pay all my Debts accept what is herein after mentioned is to pay the gifts above made if when sold if their is enough to do so if not pay in propoton and if their is any over money after Pay the above Bequeth then any ballanoe to be divided Eaquel Between my living Newfews & nieces “ on the west Side of French Creek to be</p> <p>“ I give and Bequeth to Emma Corbet my adopted doughter or I call her So what is Know as the farm I bought of John George containing about one hundred and fifty acris She is to pay all money I may owe her husbun James Corbett at my deace to have and to hold in fee simple</p> <p>“ I now- Give and Bequeth to my Sisterinlaw Mis Allace J Jarvis all other lands I may own on the west Side of French creek Knows as the miller Farm alls the wing Island and all personable Property Such cows Horses hogs house hole Furniture all farm tools wagons &c that may on the farm She to pay James Parker Wife Five hundred dollars to have and to hold in fee simple I concider it as land or money left me by my late wife and realey should go to my late wife family and I now appoint Miss Alleace J Jervis and James Corbett to be my Executors of My afects and have five years to Settle up My this last will and testiment with full Power to sell any lands at any time on the east side of French creek.</p> <p>“James Woodside.”</p> <p>James Woodside died January 14, 1892.</p> <p>His will was probated January 20, 1892, and on the same day letters testamentary were issued to the executors named in the will.</p> <p>At the time the testator died, he had in Rockdale township on the east side of French creek from 500 to 600 acres of land. On this land or some parts of it were a gristmill and sawmill, with other improvements, and personal property of different kinds.</p> <p>On the west side of French creek in the township of Rock-dale, lie owned a farm which he bought of John George. He also owned a farm on the west side of French creek, the title to which came from Isaac Miller known as the Miller farm. He also owned about thirty-five acres of land in the same township, immediately north of, and adjoining the Miller farm. The title to this piece was derived from one Jededia Hall.</p> <p>The testator was a widower without children, and Miss Alice J. Jarvis, the sister of his deceased wife, was his housekeeper. The Miller farm was his place of residence. A part of his business was raising or buying cattle, and fattening them for the New York market. This was done on the Miller farm, where he had barns for the housing of the cattle, and the necessary apparatus for preparing feed for them during the fattening process. As to the care of the cattle intended for the market as above stated when in pasturage, the facts, as nearly as I can ascertain therein from the evidence, statements and admissions of the counsel on each side, are that the cattle were pastured on his lands on both sides of French creek, as was most convenient.</p> <p>At the time the testator died he had on the Miller farm over 100 head of cattle in preparation for market, some of them already fitted therefor. The testator had himself a few days before'his death procured two cars, to be sent to Miller’s station immediately joining the Miller farm, for the purpose of shipping a part of the cattle to market. The cars were on the siding when he died; and were loaded and sent to New York-before he was buried. The cattle so sent were sold in New York and the proceeds thereof turned over to the executors or to Miss Jarvis, one of them. The remainder of these cattle or most of them, three more cars, were sent to market soon after, and the balance were retained until the following winter, prepared for market and marketed in the same way as the former two carloads.</p> <p>During the intervening summer these cattle were pastured, or in a large part at least, on the lands of the estate of the testator on the east side of French creek, and the price of such pasturing charged by executors in their account.</p> <p>I state the fact as to the pay for this pasturing, on the testimony of Miss Alice J. Jarvis, which is not rebutted, and I find an item of money received from her in the account-of $280. That, while it does not say so, is presumably it.</p> <p>These cattle were prepared for and sent to market, and sold in the same way as the others. The entire sum received for these cattle was $5,866.66, the money being received by Miss Alice J. Jarvis, one of the executors.</p> <p>This item of $5,866.66 is not charged to the executors in the account; and its not being so charged is the ground of the sixth exception — the only contest now before the auditor.</p> <p>The contention of the exceptants is that, as the will is silent as to the thirty-five acres adjoining the Miller farm, and as the will is also silent as to the cattle being fattened on the Miller farm, and does specify certain articles of personal property on the Miller farm, as bequeathed to Miss Alice J. Jarvis, that, as to the thirty-five acres above mentioned, and the proceeds of the fat cattle, there is an intestacy, and therefore the proceeds of the said cattle belong to the heirs at law of the testator.</p> <p>The contention on the other hand is that the proceeds of the sale of said cattle belong to Miss Alice J. Jarvis; in other words,</p> <p>• that the bequest to her entitles her to all the personal property, on the Miller farm, belonging to the testator at the time of his death; that the will disposed of the entire estate, that there was no part of it of which there was an intestacy.</p> <p>The auditor found that there was no intestacy, and awarded the proceeds of the sale of cattle to Miss Jarvis.</p> <p>The court sustained exceptions to the auditor’s report.</p> <p>.Errors assigned were in sustaining exceptions to auditor’s report.</p>

<p>Municipalities — Boroughs—Water supply.</p> <p>Under present legislation a municipality is authorized to adopt one of two methods to supply itself with water: (1) it may construct and operate its own works by municipal taxation, or (2) it may contract with a private corporation to construct works and supply the municipality. It has no power to adopt both methods and have them in operation at the same time. The selection of one is necessarily under the law a final rejection of the other as long as the first continues the supply according to law.</p> <p>Where a borough has by legislative authority exercised its municipal function to supply itself with water through its ownership of stock and participation in the management of a private corporation, it cannot, by selling its stock and divesting itself of such management, acquire the right to make a contract with another corporation to supply the borough with water.</p>

Appeal, No. 345, Jan. T., 1897, by defendants, from decree of C. P. Erie Co., Sept. T., 1893, No. 3, granting injunction. Bill in equity restraining defendants from constructing a double track.

Appeal, No. 48, Jan. T., 1898, by plaintiffs, from decree of C. P. Erie Co., Sept. T., 1893, No. 3, on bill in equity. Bill in equity for an injunction. The facts appear by the opinion of Walling, P. J., in Willis v. Ry. Co., ante, p. 56. Errors assigned among others were (1) in modifying the preliminary injunction; (5-9) in second, fourth, fifth and seventh conclusions of law, and fourth finding of fact.

<p>Railroads — Electric railways — Grade crossing — Equity act of June 19,. 1871 — Damages for overhead trestle.</p> <p>Under the Act of June 19, 1871, P. L. 1860, the one test imposed by the statute is the reasonable practicability of the overhead crossing, and courts will prevent grade crossings wherever it is reasonably practicable to avoid them, notwithstanding it would be unsightly in appearance, and irrespective of the fact that, under a decree granting a grade crossing, extraordinary precautions were to be taken against collisions.</p> <p>In determining whether there shall be a grade crossing or an overhead.! crossing the court will not take into consideration a possibility that the construction of an overhead trestle would subject the company building it to liability for damages to adjacent property, in advance of any ascertainment of the damages, as they are too remote and speculative to make such-crossing not “ reasonably 23racticable.”</p> <p>The court will not authorize a grade crossing of a railroad by an electric railway where it appears that there is no physical obstacle to the construction of an overhead crossing; that such a crossing would extend only 700 feet along the street, and would leave a space of twenty-four feet clear’ for street travel, and would cost only $4,000.</p> <p>Appeals — Supreme Oourt — Superior Court — Equity</p> <p>An appeal lies from a decree of the court of common pleas sitting in equity to the Supreme Court, instead of the Superior Court, where the-lower court, in the exercise of the jurisdiction conferred upon it by the-act of June 19, 1871, authorizes the construction of a grade crossing.</p>

Appeal, No. 311, Jan. T., 1897, by plaintiff, from decree of C. P. Warren Co., Sept. T., 1897, No. 9, on bill in equity. Bill in equity for an injunction.

<p>Contract — Appeal—Evidence—Joint liability.</p> <p>An action of assumpsit was brought against four defendants, only one of whom was served, to recover the one fourth of the cost of drilling an oil well, which should have been paid by one of the defendants not served. The original statement averred a written agreement executed by all the defendants, but it appearing at the trial that this agreement had been signed by one of the parties without authority from the others, plaintiff amended his statement so as to aver a verbal agreement, and subsequently further amended it so as to aver that the verbal agreement had been reduced to writing; and signed by one of the parties without authority from the others, and that the defendant served had ratified it after the work was done. The evidence tended to show that each defendant had assumed a liability for one fourth, and that each one had paid his share except the one who had executed the contract. Held, that as there was no sufficient evidence of joint liability under either the verbal or written contract it was not error for the court to give binding instructions in favor of the defendant.</p>

<p>Master and servant — Wrongful discharge — Evidence.</p> <p>In an action by an employee against his employer to recover a balance of salary after an alleged wrongful discharge, where the plaintiff alleges that his discharge was prompted solely by defendant’s desire to get clear of paying his salary, it is proper to admit evidence that defendant employed another person at half the salary which was paid to the plaintiff; and this is the ease although the defendant replies that the new employee was to perform only half the work. All the evidence on the subject is for the jury.</p> <p>In an action by an employee against his employer to recover a balance of salary after an alleged wrongful discharge, it appeared that the plaintiff had been a superintendent of the defendant, a steam company. He had been first employed by a parol agreement, and there had been some dissatisfaction with the way in which he had performed his services. Subsequently it was agreed in writing that he should take charge of the plant of the company and manage it to the best of his ability, subject to the directions of the officers of the company as conveyed to him by the secretary, and that he would “ carry out said directions cheerfully, faithfully and promptly.” He was also to take charge of work given the company by a partnership of which the secretary of the company was a member. The contract further provided that if the company undertook to do certain work according to a theory contrary to plaintiff’s judgment it would release him from any liability as to successful results. It was also provided that plaintiff should not be responsible for the successful heating of houses according to the rules of the American District Steam Company. Sometime after the contract was signed he received a letter written by the secretary of the company, but signed by the name of the firm of which the secretary was a member, directing him to do certain work according to the rules of the American District Steam Company. Plaintiff replied, objecting to do the work in the manner requested. The secretary replied immediately stating that he had inadvertently signed his previous letter with his firm’s name, instead of as secretary, and again requesting plaintiff to do the work in the manner previously directed. Plaintiff persisted in doing the work in his own way, and was subsequently discharged for violation of the provisions of the agreement. Reld. (1) that it was error for the court in its charge practically to eliminate from the case the first letter because it was signed by the firm, and not by the secretary in his official capacity; (2) that the court should have charged that if the jury believed that both letters had been received by plaintiff, and that plaintiff refused to comply with the instructions which they contained, the verdict must be for the defendant.</p>

<p>Appeal, No. 199, Jan. T., 1897, by defendant, from decree of C. P. Delaware Co., March T., 1895, No. 5, on bill in equity.</p> <p>Bill in equity under the act of June 19, 1871, for a decree to regulate the construction and maintenance of a grade crossing. Before Clayton, P. J.</p> <p>The bill prayed for an injunction to restrain the defendant, a steam railroad company, from resisting or interfering with the maintenance of a street railway or trolley wire on Welsh street, in the City of Chester, crossing the defendant’s tracks, and also praying the court to make a decree for the manner of constructing the railway over the railroad, and for its future maintenance, under the provisions of the second section of the act of June 19, 1871, P. L. 1360, entitled “An act relating to legal proceedings by or against corporations.” The defendant filed an answer averring that the proposed crossing by the plaintiff company was not demanded by any requirement of public convenience, but was simply to enable the plaintiff to more conveniently operate its lines; that such crossing would be dangerous to persons and property; and denied that the plaintiff was clothed with full legal power and authority to construct and maintain its railway and trolley wires over the tracks of the defendant at grade, and averred that the resistance of the defendant to such construction was legal.</p> <p>The case was heard on bill, answer and proofs, and the court, entered the following decree:</p> <p>The plaintiff has leave to string its wires across the defendant’s road at a point where it crosses the defendant’s road at Welsh street at a height of at least twenty feet above the top of the defendant’s road as now constructed. As the stringing of the wires may interfere with the operation of the safety gates already constructed, new gates shall be provided of equal safety at the expense of the plaintiff’s company, and until so provided a watchman shall be maintained at said crossing with a flag to warn travelers on said street, and every approaching electric car, of an approaching train, and no electric car shall cross or attempt to cross the said railroad until signaled to do so by said watchman.</p> <p>Wfien any car propelled by electricity shall approach the said defendant’s railroad it shall come to a full stop at least twenty feet from the safety gates, whether said gates are up or down. If said gates are up, the conductor shall cross the entire railroad tracks, and look both up and down said railroad to ascertain whether any car, train or engine or other vehicle may or may not be approaching. If the track is free from all danger, he may give the signal for the car to cross, otherwise he shall not attempt to cross said track. If the safety gates are in working order, and down when the electric car shall approach, it must stop at the distance above prescribed until said gates are raised, when it may cross without the conductor being require to go upon the said railroad as provided when said gates are up.</p> <p>Either party has leave to move to amend, modify or change this decree as necessities for public safety may demand or new inventions for the prevention of accidents may be discovered. If the parties cannot agree as to the time and manner of crossing, then it is ordered that all the expenses of the said crossing shall be paid by the plaintiff; the frogs, rails, etc., necessary, shall be of the most approved pattern, and shall be subjected to the inspection and approval of the defendant’s company before being laid in place. The rails and tracks of the defendant’s company shall not be interfered with so as to hinder or delay the passage of its trains or to subject it to any danger from accident without its consent. All the materials for the said crossing shall be prepared, be on the ground and ready to be put in position when the defendant shall have at least forty-eight hours’ notice as to the day and hour when said crossing is to be made, so that the defendant shall have ample time to examine and approve or disapprove, as well the mode or manner of crossing the said road, as the time selected for said work, and if the defendant disapprove of either, it has leave to apply to the court for an injunction to restrain said work until it shall be satisfactory to the defendant or be approved by the court.</p> <p>The costs of the record of this proceeding to be equally divided between the parties, each party to pay his own part of the cost.</p> <p>Error assigned among others was decree of the court.</p>

Appeal, No. 200, Jan. T., 1897, by defendant, from decree of C. P. Delaware Co.,.June T., 1896, No. 5, on bill in equity. Bill in equity under tlie act of June 19,1871, for a decree to regulate the construction and maintenance of a grade crossing. Before Clayton, P. J. The facts of the case and the decree of the court are similar to those in Chester Traction Company v. Philadelphia, Wilmington & Baltimore Railroad Company, ante, p. 105.

<p>Equity — Jurisdiction— Unincorporated associations — Political parlies.</p> <p>The Act of June 16, 1836, Pi L. 784, confers upon the courts of common pleas in Pennsylvania only the power of the English court of chancery, and as the English chancellor has always disclaimed authority to interfere with the action of voluntary and unincorporated associations where no right of property is involved, courts of equity in Pennsylvania will do the same.</p> <p>A court of equity in Pennsylvania has no jurisdiction to restrain by injunction the chairman of a county committee of a political party from filling vacancies in violation of the rules of the party, where it appears that no property rights are involved. The fact that the committee disburses large sums for campaign purposes does not prove that any properly right is involved, inasmuch as the members of the committee have no personal ownership in the fund.</p>

<p>[Marked to be reported.]</p> <p>School laws — Removalofschool directors — Discretion of directors — Discretion by the court — Act of June 6, 1893.</p> <p>Under the Act of June 6, 1893, P. L. 330, relating to the removal of school directors who have failed to provide proper accommodations for school children, courts of common pleas have the power, through an inspector of their appointment, to ascertain the facts, and determine whether school directors' have exercised a sound discretion in providing such accommodations.</p> <p>The Supreme Court will sustain a decree removing school directors who have refused to provide accommodations for the children of a village where it appears that there were thirty-eight school children in the village; that the three sehoolhouses nearest to it were each about a mile and one half distant; that the seating capacity of these houses was insufficient to accommodate the children of the village; that there had been no change in the location of the sehoolhouses and no additional schoolhouse facilities during the past sixty years, and that the directors had reduced the tax rate to two mills on the dollar, and had reduced the teachers’ salaries $2.00 a month.</p> <p>The Supreme Court will not reverse an order of the court of common pleas removing school directors for failure to provide suitable school accommodations, unless there is manifest error in its findings or flagrant abuse of its discretion.</p>

<p>Charge on land — Assignment of charge — Asset of estate.</p> <p>Where a conveyance of land reserves a certain sum as a charge on the-land, the interest of which is to be paid to the grantor and his wife during their lives and, after their death, the principal to his estate, the charge is not a voluntary settlement, which is irrevocable, but it is an asset of the-estate, which may be assigned by the grantor during his lifetime.</p> <p>Charge on land — Lunacy—Assignment of charge.</p> <p>An owner of land conveyed it to another, reserving a certain sum as a charge on the land, the interest of which was to be paid to himself and wife during their lives, and the principal after their death to the estate of the grantor. The grantor and his wife in order to raise money assigned the charge without consideration to a grandson, who reassigned it to the person who furnished the money. After the grantor’s death, his administrator brought an action against the owner of the land to recover the amount of the charge. It appeared in this suit that the grantor by an inquisition in lunacy had been found to be a lunatic at the time he assigned the charge. Held, (1) That the question at issue was the capacity of the grantor to contract at the date of his deed for the charge on the land, and the administrator had no such legal title as entitled him to recover independent of the claim of the person who had bought the charge from the-grantor’s grandson; (2) that the owner of the land might have paid the money into court, but could if he chose put the administrator upon proof' of his title in the suit brought to recover the charge; (3) that the grandson was a competent witness since he was only a nominal purchaser and had transferred to another before the suit what, interest he had, if any, in the charge; (4) that the presumption of undue influence arising from the confidential relation between the grantor and his grandson was rebutted by the fact that the grandson was in no way benefited by the assignment of the charge to himself, and by the fact that the consideration money was a full one, and had all been applied to the payment of the grantor’s debts; (5) that a verdict and judgment in favor of the defendant should be sustained.</p>

<p>Appeal, No. 355, Jan.T., 1897, by-plaintiff, from decree of C. P. Northumberland Co., No. 210, in equity, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The court dissolved a preliminary injunction which had been-previously granted.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dissolving preliminary injunction»</p>

<p>Appeal, No. 162, Jan. T., 1898, by defendant, from judgment of O. & T. Lackawanna Co., Oct. T., 1897, No. 20, on verdict of guilty of murder in tbe first degree.</p> <p>Indictment for murder. Before Archbale, P. J.</p> <p>At tbe trial tbe court directed tbe jury to view tbe premises where the offense was alleged to have been committed, in the absence of the defendant and his counsel. No objection was made at the time, but six months afterwards, on the application of defendant’s counsel, the court sealed a bill of exceptions to its action in this matter.</p> <p>When Edward Akerly was being examined as a juror on his voir dire he was asked by defendant’s counsel: “'Then you could go into the jury box with the presumption that the man is innocent; unless evidence was produced by the commonwealth that would convince you beyond a reasonable doubt of his guilt, you would then do what? What would you do, acquit or convict ?</p> <p>On objection by the district attorney, the court rejected the question, and sealed a bill for defendant. [13]</p> <p>He was then asked by defendant’s counsel: “Now, if it should be proved in the trial of this case, that the defendant, and the deceased, Josephine Wescott, lived in an immoral state, would that create in your mind a prejudice against the defendant that would affect your verdict in the case? ”</p> <p>The court sustained an objection by the district attorney to this question and sealed a bill for defendant. [14]</p> <p>R. C. Shonk, a juror, was asked on his voir dire: “ Do you understand that the law presumes a prisoner, or one accused, to be innocent until he is proved guilty? and answered, Yes, sir.” The court then sustained an objection of the district attorney to this question : “ Notwithstanding that, you have an opinion as to this man’s guilt ? ” and sealed a bill for defendant. [15]</p> <p>Counsel for defendant asked the juror: “ Have you such a prejudice against a man and a woman living a life of adultery that would bias your judgment? ”</p> <p>The court sustained an objection by the district attorney to this question and sealed a bill for defendant. [17]</p> <p>John B. Owens, a juror, on his voir dire having said that an opinion which he had formed was fixed “ at present ” in his mind, was challenged by defendant. He then stated at the instance of the commonwealth : “ Could you not go into the jury box and leave that opinion behind you, discharge the opinion from your mind, and base your verdict solely upon the law and the evidence? A. I could.”</p> <p>Mr. Wedeman, of counsel for defendant: “ Q. Would it take -strong evidence to remove that opinion from your mind? A. It would.”</p> <p>Mr. Jones, district attorney: “ Q. If you were sworn as a' juror, could you set aside the opinion, which you say you now have ? A. Yes, sir. Q. And decide the case upon the law and the evidence alone, uninfluenced in any manner by what you have heard, of read, concerning this case outside of the court room? A. I could.”</p> <p>Mr. Wedeman: “Q. Would you go into the jury box presuming this man to be innocent as the law requires you to do? ”</p> <p>Mr. Jones: The commonwealth objects to the question.</p> <p>By the Court: I will sustain the objection.</p> <p>Exception noted for the defendant, at whose request a bill is sealed.</p> <p>Mr. Wedeman: We renew our challenge for cause.</p> <p>By the Court: The challenge is overruled. .</p> <p>Exception noted for the defendant, at whose request a bill is sealed. [16]</p> <p>The court sustained an objection on the part of the district attorney to tins question to the same juror, by defendant’s counsel, “Would you go into the jury box presuming this man to be innocent as the law requires ? ” and sealed a bill for defendant.</p> <p>When Frank Gehren was on the stand the commonwealth offered to prove that he saw Mrs. Wescott come out of the cellar door with her throat cut, and the blood running down in front, and also that he saw the man rushing out about the same time, whom he did not identify,, and who jumped over the fence and ran away. To be followed by evidence of the identification of the man.</p> <p>Mr. Wedeman: Counsel for the defendant have nó objection.</p> <p>Mr. Jones: “ Q. Do you remember the day that Mrs. Wescott’s throat was cut? A. Yes, sir. Q. Did you see her that day, did you see her with her throat cut? A. Yes, sir. Q. Go on and tell the court and jury when you first saw her and all about it. A. It was about 8 o’clock in the evening when I was playing a game of hoop-a-hoy and ran by the Nay-Aug barn aud I fell and hurt my knee, and I started walking by when I seen Mrs. Wescott come out of the cellar and Mr. Van. Horn after her, and. I seen Mr. Van Horn jump the fence, and I heard like the sound of wire; and she ran around and went in the house and went upstairs and come down the front, right away; she wasn’t half a minute; and as soon as she seen me, I ran right in the gate, and she says, ‘ George Van Horn did it,’ and she said, ‘ Frankie, get a doctor.’ ”</p> <p>Counsel for the defendant moved to have the answer stricken out as it was not included in the offer, alleging that he did not have an opportunity to object to it, and he asked to have it stricken out.</p> <p>By the Court: That is you object to the declaration made by Mrs. Wescott.</p> <p>Mr. Thayer: Yes, sir.</p> <p>By the Court: I will consider it now as though it had been made under the offer. I will hear you upon the motion.</p> <p>Mr. Wedeman: I understand that it is not part of the res gestae, and I object to it. We think it is not evidence and we ask to have the answer stricken out.</p> <p>By the Court: Beddingfi eld’s case was decided by Chief Justice Cockbtjrn trying a case at nisi prius, and was the subject of considerable comment at the time. The whole narrative of the case and of its surroundings, and the cross-examination which it evoked, are to be found in the 14th and 15th volumes of the American Law Review. A review of the case is there made by Prof. Thayer, of the law school of the Harvard University, himself a very eminent authority upon the subject of evidence. The result of that review is to call in question the soundness of that decision. The eminent judge by whom it is made, even the manner of the making of his rulings, is criticised because, without any objection on the part of the defendant’s counsel, evidently having some idea of what there was in the case, he stopped a witness of his own motion and excluded the evidence without further discussion. It does not seem to me that this is the law. The common mind certainly accepts a declaration of that kind under the circumstances as carrying the highest character of evidence; it is not only made at the time by the person having the best information, but under such circumstances as are strongly persuasive of the truth, and it requires the exercise of a good deal of legal learning and acumen to keep it out. It does not seem to me that the argument upon which it is excluded correctly states the law, and I am justified in that conclusion by the decision of our Supreme Court to which the district attorney has referred me, in Com. v. Werntz, 161 Pa. 591. It is true that in that case the question arose a little differently; there the defendant sought to put in those declarations to show that he was not the one who did the deed, but that some one else was; but at the same time the reasoning upon which the Supreme Court says that this was evidence fully establishes it as evidence, not only to exculpate one but to inculpate another, and that is what is sought to be introduced here. Following that authority and what I believe to be the weight of authority in this country, notwithstanding Bedding-field’s case and the cases cited by counsel for the defendant from the Supreme Court of California and Indiana, I will overrule the motion.</p> <p>Exception noted for defendant at whose request a bill is sealed. [24]</p> <p>The commonwealth offered to show, by Mrs. Fetterhoff, that when deceased went upstairs she went to Mrs. Fetterhoff’s bedroom door at the head of the stairs calling to Mrs. Fetterhoff and Mrs. Fetterhoff went out and Mrs. Wescott told her that George Van Horn had murdered her, and that the witness took Mrs. Wescott downstairs and out on the porch and down on the steps at the place where Frank Gehrens testified that she was when she made the declarations to him.</p> <p>Counsel for the defendant objected to that portion of the offer which goes to show what was said by the parties as not being a part of the res gestee, nor of the dying declarations, therefore being merely hearsay evidence and incompetent.</p> <p>By the Court: The objection is overruled; exception noted for the defendant, at whose request a bill is sealed. [25]</p> <p>The commonwealth offered to .prove by John Moir that he went to Wadena, in the state of Iowa, and brought George Van Horn, the defendant, back to Lackawanna county for trial; and that while en route the defendant voluntarily, without any inducement held out to him by the officer, without any hope, reward, intimidation, threats, or anything of that nature, indicating coercion, confessed to the witness that- he killed Josephine Wescott, in the cellar, by cutting her throat.</p> <p>Mr. Wedeman: Counsel for the defendant object to that part of the offer which refers to the confession as incompetent, and ask leave of the court to interrupt the examination of the witness for the purpose of showing that a previous confession had been obtained by undue means.</p> <p>By the Court: I will allow you, when we come to that point, which refers to the confession, to cross-examine before the reception of that part of the offer.</p> <p>Mr. Wedeman: The counsel having misunderstood the last ruling of the court, we now move that the court allow the examination of the witness to be interrupted for the purpose of showing a previous confession unduly obtained.</p> <p>By the Court: It seems to me that the law with regard to this matter is laid down very clearly and carefully in the ease of Iiizollo, familiarly known as Red Nosed Mike, and following what I consider is ruled there, I will overrule this motion.</p> <p>Mr. Wedeman: In this connection wre offer to prove by the •defendant that he was arrested by a constable near Wadena, who awakened him out of his sleep, and pointing a revolver at his head took him from there to West Union, with a revolver drawn on him all the time; that during the ride the constable in charge of the defendant said to the defendant that Mrs. Wescott had died charging him with having murdered her, saying, “ you had better tell me all about it, that if you explain it satisfactorily you will be discharged; ” also we propose to prove by the defendant that the district attorney of Fayette county told him that if he would tell him all about it, and explain it satisfactorily, that he would be discharged, and that the officers could not take him away from that state, in accordance with which he did make a statement.</p> <p>By the Court: I cannot all o w th e practice that is suggested by this motion, allowing an interruption on the part of the prosecution for you to introduce evidence to assail an offer of evidence, for that is all that we yet have, an offer of evidence made on the part of the commonwealth. Of course the admission of the offer is for the court in the first instance, and that is the only ground at all that I can see would sustain you in your suggestion, or in your motion. It seems to me that whatever there is must come out upon your side when your time comes, and that it must be relegated to that time. Further than that, in my judgment, what you now offer to show would not be sufficient to prevent a rejection of the testimony which the commonwealth proposes to introduce. You have the right to cross-examine this witness now with regard to anything that happened previous to that which' is contained in the offer. Exception noted for the defendant, at whose request a bill is sealed. [27]</p> <p>When the prisoner was on the stand, and after he had testified as to the circumstances of the killing, he was asked this question by the commonwealth: “You don’t say that you are insane, do you ? ” Counsel for the defendant objected to the question as improper, and not cross-examination.</p> <p>The Court: I see no objection to the question. Exception and bill sealed. “ A. No, sir.” [13]</p> <p>The court charged in part as follows :</p> <p>As distinguished from murder we also have manslaughter, and that, too, is divided into two degrees or into two kinds, one is voluntary and the other involuntary. Any unlawful killing, wilfully done, but without malice, is voluntary manslaughter. Any killing which is done by misadventure or accident, and yet under circumstances which do not free the party entirely from blame, is involuntary manslaughter. [Every unlawful killing is presumed to be murder (though not), of the first degree] ; [2] that is the natural inference that we draw. If we hear of a killing and consider it to have been done under circumstances that attach guilt, we immediately say, “That is a murder;” that is the common expression and it also fairly expresses the law. If it be shown, however, or if it be found upon investigating into the circumstances of a case, that this killing was done under provocation and in sudden heat of blood, this repels the idea of malice with which we would start out (because malice is the ingredient of murder), — this would repel the malice, and we would have to conclude that it was' voluntary manslaughter. In other words, the crime would have to fall in our judgment from murder to voluntary manslaughter. On the other hand, if it were shown thaf the killing was not simply with malice, but that it was either done by means of poison or by lying in wait or by any other kind of wilful, deliberate and premeditated killing, it would raise the offense; we would have to pronounce it murder in the first degree. The distinguishing feature of murder of the first degree, then, is the specific intent to take life; that must be present in the case, and that also must be a wilful, deliberate and premeditated intent. That will do for the definition of the different kinds and degrees of homicide. . . .</p> <p>Let us first consider the testimony as to the defendant’s alleged insanity. Mrs. William Gearhart, the defendant’s former wife, now divorced from him and married to another, testifies that while they were living in Michigan near Saginaw, the defendant was injured in the head. The defendant also testifies to the same thing. Both these witnesses say that he was in bed for some two or three weeks. Mrs. Gearhart testifies that she noticed a change in his conduct; that she lived with him for two or three years after that, but finally was compelled to leave him on account of his conduct and get a divorce. She expresses it as her opinion that his mind was not all right — but as I took her evidence she qualifies that by saying — when he was drunk; that he seemed all right except when he was in that condition. Robert Albro, another witness produced by the defendant upon this point, says that the defendant used to complain of having a headache when he was working on the road as a brakeman; he also, however, says, as he expresses it, that the defendant was generally on a racket. [A. J. Saunders, who was not able to be here, but whose testimony was taken by deposition while in the hospital, testifies in substance that the defendant seemed a little off when he got boozy, but that he noticed nothing except then, and that he could not see anything the matter with him other than that.] [7] W. IT. Nichols, a conductor on the D., L. & W. Railroad, on whose train the defendant worked at one time as a brakeman, some seven years ago I think it was, says that he discharged him because he did not think him quite right; that on one occasion ho got off from the head end of the train where he was working, or where he should have been, and came back with the wild statement that the engine was going to blow up, compelling the witness to order him back to his post. Mrs. Sarah Ann Van Horn, the defendant’s mother, now seventy-two years of age, says that when he first came back from the West he complained of his head; sometimes sat (I think she said) with it in his hands and said, “ Mother, my head is not right,” and would sit down and cry and said that he would, have to have his head operated upon; she does not think he was of sound mind. Upon cross-examination she said he drank considerably, but did not think that his trouble was caused by that. Harry Depue says that he met the defendant on one occasion and saw a peculiar look in his eye, as though he did not know what he was talking about, and from that he should say he was unsound in mind.</p> <p>, Opposed to this we have the testimony of Dr. Newton, who testified that he examined him in 1892 when the Railroad Trainmen’s policy was taken out; that his examination was necessarily directed also to his mental condition, and that he should say he was of sound mind. George Neiman, who has known the defendant, as he says,- a dozen years, considers him sound. Mr. Southard has known the defendant a number of years and never knew anything about him that was insane. Emma Wescott is to the same effect. Mrs. Neiman says he talked just as sensible as anybody.</p> <p>Now, when you consider that the main testimony is directed to that which happened to this defendant a long number of years ago; this accident out in Saginaw being some twenty years ago; this condition of mind that Mr. Nichols testifies to being, I think, some seven years ago, and also the fact which is undisputed that the defendant was dissipated and given to drinking, it seems to me that it is very weak testimony on which to say that the defendant, at the time this deed was committed, was so out of his mind that he was not responsible for his acts. [I imagine that it is very natural for a man, who is dissipated in the way that is described here, to have a headache, and to have it often, and that this is such a matter of common experience that I may allude to it. And during all this time, out of all the persons who must have been thrown in contact with him in one way or another, only these few are produced who suggest or give it as their opinion that he was at any time of unsound mind, and some of these only say it was when he was boozy, referring as I imagine to when he was under the influence of liquor.] [12] There is no location of the injury except that it was generally in the head; no physician is brought who has examined him except Dr. Newton, and his testimony is against this idea; no physician, I say, other than Dr. Newton, who testifies after an examiaation that he is or would likely be under any condition such as we have in this case, insane, of unsound mind, or irresponsible for his acts on account of that condition. [Further than this the defendant himself makes no such pretense. This is something that is advanced by his counsel.] [4] It is true it may be said that a crazy man would not know enough to say he was crazy; that is true; but you have seen him on the witness stand yourselves, you have heard his story; he says he remembers; he gives a detailed account of what happened; he professes, as I remember it, to remember ■all; and he frees himself in his story from blame. Looking at him, seeing him there, do you believe that he is not a man of sound mind, in his sober senses, or that he was not so at the time when this deed was committed? ....</p> <p>Let us now take up and consider at some little detail the evidence upon which the commonwealth relies for a conviction. First let us look at the relations existing between these parties. That Mrs. Wescott up to the time of the killing, or near it, had accepted the defendant in place of her husband, is clearly established by the evidence. She had separated from her husband for some time. While living on Spruce street the defendant had occupied the nominal position of a boarder there, but, according to the testimony of Mr. Saunders, it was really understood that their relations were otherwise. [Now this relation, this of lover and mistress, which existed between the defendant and Mrs- Wescott, is worth stopping to consider for a moment. As it is itself a violation of the moral as well as the written law, it is very likely from that very circumstance to bring other violations of the law in its train. If a man offends against the law in one respect it is very apt to entangle him in another. One of the most natural things growing out of just such a relation is jealousy. As such an illicit relation is a very free and easy one the inclination of the one party to throw aside the other and take up with a new person according to fancy follows almost as a matter of course. This naturally excites jealousy in the party who is put aside in that way, and, jealousy once established, it is but a step to such a crime as we have here charged. How many times, as a matter of common experience, as a matter that we see from the daily prints, do we find murder as the outgrowth of just such a relation as this, and the jealousy that comes from its disturbance by the one party or' the other. An accepted lover is rejected by his mistress and he revenges himself by taking her life. That is what is charged here.] [11] ....</p> <p>[You see, then, this evidence of the immediate occurrence, if we had nothing else, in brief, would go to show that Mrs. Wéscott while down cellar after potatoes to mix her bread on that Friday night in the dusk of the evening, in the dark, had her throat cut by a razor in the hands of the defendant, who immediately dropped it and fled. If this be so, that is to say, if you believe this evidence, if it establishes these facts to your satisfaction, here are all the elements of wilful, deliberate and premeditated murder, and would warrant a conviction for the same.] [19]</p> <p>I have said that the defendant immediately fled. I have also said that this evidence showed that the cutting was done by the defendant. Both those facts I may say are undisputed facts in the case. In stating that, however, I have anticipated the evidence bearing upon the question of flight. Frank Gehrens testifies that he saw the man who came out of the cellar immediately jump over the fence, using the ash barrel to help him; that he heard the twang or noise of a wire as he went through the adjoining yard, that wire being a clothes line. Wesley Kresge, who lives in the premises next door, says that he heard just about that time the noise of the wire. Mrs. Emma Bacon says she met the defendant in Page court right there where the electric light is; that he was walking, fast. And George Isadore saw him at the corner of the alley on Mifflin avenue. Immediate search by parties in the neighborhood and down cellar found no one. The same search, continued to places where it was possible that the defendant might be, did not find him. Nearly a year later he is arrested in the distant state of Iowa. This evidence of itself is enough to say that the defendant fled, but we have much more upon that point than this. We need to go no further than the defendant’s own tale about his course. He says he was scared; that he went out of the cellar and jumped the fence, and then out along the alley, just as these witnesses say they saw him go. He then went- down along the Delaware and Hudson Railroad and from there he does not tell exactly where he went, as I remember, except that the next account he gives of himself is when he came up the next morning and got something to eat at some person’s house; .[he says he cannot tell, but what he was helped by this young girl who testifies that she did give food to some man the next morning.] [20] He says he cannot say where he staid that night or whether he went out of the city or not; but he does state that he went through Moscow; he does state further that át Wimmers the next day someone let him have a paper and he saw the heading about this transaction and the declaration there that it would be murder if Mrs. Wescott died. And then that ho walked from there to Hawley, where he hired on a canal boat which took him out to the Hudson river and there with a tug he went on to Troy or West Albany. From there he went to Buffalo; then as I recollect it he went into Ohio, and finally to Wadena, in Io-wa, where he was finally arrested. [Mr. Saunders testifies that he saw the defendant the next evening here down in the yard. I do not see how it is possible for him to have done so if the defendant’s own story is correct, because by that time he had gone out through Moscow and Wimmers, and was on his way to Hawley. He does not himself pretend that the next day he was here.] [21]</p> <p>Mr. Wedeman: It was the next morning Mr. Saunders said he saw him, about 6 o’clock in the morning.</p> <p>By the Court: Furthermore this testimony of the defendant with regard to what lie did is substantially the same story that Detective Moir and Lieutenant Davis say that he told them about his goings when he was on the way here from the West in their charge. It is argued to you that this confession was wrested out of Mm, and the points that the defendant’s counsel put to me suggest that, and ask me to charge you that such a confession is worth nothing. I did so charge you: that the confession must be voluntary; but so far as this part of the confession is concerned it corresponds exactly or substantially with what the defendant himself says. There are one or two particulars that the detective and Lieutenant Davis give a little more fully; for instance one of them says that he said he went up Alder street by the M. Robinson brewery, and over through the South Side and on to the mountain, and did not stop until he got into the bush. While he himself does not give that immediate course, yet he gives enough to suggest it. So that it seems to me, whether you look at the testimony of the officers as to what he said, or whether you confine yourself entirely to what he testifies himself, I am justified in saying that immediately after the occurrence the defendant fled from his usual places of resort in this city into unfrequented or somewhat unfrequented parts of this county, and immediately thereafter into another state, and then finally into the very distant state of Iowa. This of course is most significant in this matter. .Flight is the natural and accepted evidence of conscious guilt. The Good Book says, “ The wicked flee when no man pursueth, but the righteous are bold as a lion.” It must be remembered, however, that flight, while the result of fear, may be the result also of innocent fear. Some men are more timid than others, and caught by some sudden emergency may take to their heels and leave, even though they be innocent. That is true. And therefore you have to distinguish between the two cases, whether the flight in any given instance is the result of the one or the other. The defendant says he was scared. Was he scared simply because he was involved in something that might incriminate him and, therefore, fled, fleeing innocently, although in fear, or was his flight actuated by conscious guilt? That is for you to say. You are to judge of that from the circumstances and the manner and method of his flight, the distance he went, all that, and all the other circumstances that precede and surround this case, or are found in it. I am called upon to charge you, most assuredly, that the most with regard to this unquestioned flight is that it was a circumstance, not conclusive by any means, but to be judged of and to be given weight to according to the other facts and circumstances which we have. It is for you to say whether it was the result of innocent fear or of conscious guilt, such as the commonwealth charges.</p> <p>[This, then, is the array of evidence which the commonwealth has made against the defendant: His illicit relations with the woman who was killed; an alleged disturbance of that relation resulting in his arrest; his anger and possible jealousy, followed by his threats to do her violence even to just what is here charged, to wit: the cutting of her throat; his skulking and lurking in the neighborhood of the premises as though watching an opportunity; the killing of the deceased by the cutting of her throat, in the cellar, in the dark, which the defendant' admits to have been done by himself with a razor; his immediate disappearance and extended flight. It must be confessed that this is evidence of the very gravest kind; of the gravest and most serious character; and as I have already said, would warrant you in findiñg the defendant guilty of the highest crime known to the law, no less than murder of the first degree.] [10]</p> <p>Defendant’s point and the answer thereto among others were as follows:</p> <p>10. If the jury find that, at the time of the committing of the act which caused the death of Josephine Wescott, the defendant was wanting in this self-governing power, whether caused insanity, gross intoxication, or other controlling influences, —[here I will put in a word or two — other than mere depravity or wickedness of heart,] then his mind was not fully conscious of its own purpose, and he was not guilty of murder of the first degree. Answer: With that correction of the point I affirm it. [6]</p> <p>Verdict of guilty of murder in the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) in granting the view; (2, 4, 7,. 10-12, 19-21) portions of charge as above, quoting them; (6) answer to defendant’s point; (13-18) rulings on questions, to jurors; (3, 24, 25, 27) rulings on evidence, quoting the bill of exceptions.</p>

<p>Taxation — Corporations—Tax on capital stock — Debt.</p> <p>A (ax upon the capital stock of a corporation is a tax upon its property and-assets.</p> <p>Under the Act of June 8, 1891, P. L. 229, the question of the actual value in cash of the capital stock of a corporation is a question of fact •which must be determined by considering the value of defendant’s tangible property and assets of every kind, including its bonds, mortgages and moneys at interest, and its franchises and privileges; and the amount of the incumbrances on its property and franchises is also a relevant fact to be considered, but it is not to be specifically deducted from the valuation so ascertained and determined.</p> <p>As the actual value of the stock of a corporation is a pure question of fact, an insolvent corporation has no standing to complain of discrimination in tho methods of appraisement as between itself and solvent companies, so long as its stock is not assessed in excess of its actual value.</p>

<p>Appeal, No. 26, May T., 1897, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1896, No. 699, on appeal from tax settlement.</p> <p>Appeal from tax settlement. Before Simonton, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in sustaining the appraisement made by the auditor general and state treasurer.</p>

Appeal, No. 21, May T., 1897, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1896, No. 668, on appeal from tax settlement. Mitchell, Green and Williams, JJ., dissent. Appeal from tax settlement. The facts appear by the opinion of the Supreme Court. jError assigned was the judgment of the court.

<p>Appeal, No. 20, May T., 1897, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1896, No. 658, on appeal from tax settlement.</p> <p>Mitchell, Green and Williams, JJ., dissent.</p> <p>Appeal from tax settlement.</p> <p>The material facts appear by the opinion of the Supreme Court.</p> <p>The case was tried by Simonton, P. J., without a jury, as provided by act of April 22,1874, who determined that the commonwealth is entitled' to recover from defendant in this case' a tax at the rate of five mills on the dollar on $4,200,000, the actual value in cash of defendant’s capital stock, with interest at the rate of 12 per cent per annum, from September 30,1896, and five per cent attorney general’s commission, and judgment is directed to be entered in favor of the commonwealth and against defendant for that amount when properly calculated, if exceptions be not filed within the time limited by law.</p> <p>Error assigned was the judgment of the court.</p>

<p>Taxation — Corporation—Capital stock — Findings of fact.</p> <p>Where an appeal from a tax settlement made by the officers of the commonwealth is tried by the court without a jury, and no special finding of fact is set out in the opinion, and none was requested except that the court should adopt the appraisement of the company’s officers, the Supreme Court will assume that the court below correctly found the facts on which it expressly declared that its judgment rested.</p> <p>Taxation — Corporation—Tax on capital stock — Debt.</p> <p>In ascertaining the value of the capital stock of a corporation for the purposes of state taxation under the act of June 8, 1891, the indebtedness of the company cannot be deducted from the value of the property and assets otherwise ascertained, but it may be considered as one of the relevant facts bearing upon the value of the stock.</p>

<p>1Trial before court without jury — Findings of fact — Practice, Supreme Court.</p> <p>Where a case is tried by a court without a jury, the Supreme Court will assume the correctness of the findings of fact where there is evidence to sustain them, and the tidal court is not bound to elaborate its reasoning from the evidence or particularize the mental process by which its findings are arrived at.</p> <p>Corporations — Tax on capital stock — Finding of fact.</p> <p>On an appeal from settlement against a railroad company for tax on its capital stock, if it be true that the company leased its road and failed to furnish equipments according to agreement, and the lessee had furnished them at great expense, the defendant was not injured by failure of the court, to so find, because it is by no means clear that this would depreciate the value of the stock; and if it did do so, the defendant, no doubt, had (he benefit of it.</p> <p>Taxation — Corporation—Tax on capital stock — Debt.</p> <p>In ascertaining- the value of the capital stock of a corporation for the purposes of state taxation under the act of June 8, 1891, the indebtedness of the company cannot be deducted from the value of the property and assets otherwise ascertained, but it may be considered as one of the relevant facts bearing upon the value of the stock.</p> <p>In ascertaining the actual value of the capital stock of a corporation, the value of the franchise may be taken into consideration.</p> <p>In a case of undervaluation of capital stock the court may take into consideration the corporation’s tangible property, assets and franchises.</p>

<p>Appeal, No. 23, May T., 1897, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1896, No. 655, on appeal from tax settlement.</p>

<p>Certiorari Nos. 9 and 10, May T.^ 1899, on petition of Patrick Foley et al., in C. P. Dauphin Co., in the matter of the nomination certificate of John S. Robb, Sr., for judge of‘the court of common pleas No. 8, of Allegheny county.</p> <p>Nomination certificate of John S. Robb, Sr.</p>

<p>Appeal, No. 392, Jan. T., 1897, by Benjamin Hauck, from decree of O. C. Sebuylkill Co., March T., 1897, No. 15, overruling exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the portion of the opinion of Dunn, P. J., which relates to this matter, as follows:</p> <p>Claim of Henry Breisch, now to the use of Benjamin Hauck, on a book account for a balance of $1,297.62.</p> <p>The payment of this claim was objected to by the representatives of the estate, on the grounds that it is not a debt of the estate, and that the claim is barred by the statute of limitations.</p> <p>An examination of the account book of claimant shows an account against Elias Miller, the decedent, on page 114 in ledger form. The debit side shows the specific charges made, and the credit side the specific credits on demands to which the claimant is entitled. On the same page we find the following entry:</p> <p>Mar. 19 Settled in full</p> <p>Balance......$71 98</p> <p>Transferred to page 172</p> <p>On page 115 the credit side, we find the following entry:</p> <p>1875</p> <p>Mar. 19. Settled in full Balanced.</p> <p>Turning to page 172, we find the account continued, the first entry on the debit side being:</p> <p>1875</p> <p>March 19 To carried from page 114, . . $71 98</p> <p>The credits on this page claimed including the $71.98 carried from page 114 amount to $291.01.</p> <p>On page 173, the credits amount to $177.02.</p> <p>At this point the account is not balanced. The entry made that it is transferred to page 312, Turning to page 312, we find the debit side continued, having entries made in 1878, 1879, 1881, 1882, one entry in 18'83, and no other entry until September, 1895.</p> <p>To 14 Bu Rye 50c ...... $7 00</p> <p>On the credit side page 813, we find five entries in 1878, one in 1879, one in 1886, one in 1890, and the following on December 7,1895.</p> <p>To by 4150 shingles $2.75 per M. . . . $11 41</p> <p>To by 16 Bu Wheat 70c.....11 20</p> <p>The amount of debits on page 312 is $383.82, and the amount of credits on page 313 is $405.63. These pages of claimant’s book account show that the claimant is indebted to the decedent in the sum of $16.80.</p> <p>But it is claimed on behalf of the claimant that there is one</p> <p>account against Elias Miller, the decedent, on page 455, continued on page 450, commencing November 30, 1876, and ending May 31,1877, which belongs in between the dates found in the account which ends on page 312.</p> <p>Turning to page 455 the last page all but one of this account book, we find the following account:</p> <p>ELIAS MILLER.</p> <p>Nov. 30 To Henry "Williams . . $ 40 91</p> <p>“ tt tt Viggans . . . . 274 71</p> <p>Dec. 30 To “ paid . . $362 63</p> <p>“ “ To H. Williams . . . 83.72</p> <p>tt tt tt 2STo. 3 Lehigh Colliery . . 43 75</p> <p>1876.</p> <p>Jan. 31 To Gilberton . . . . 179 91</p> <p>tt tt tt Viggans .... 122 18 $248 43</p> <p>83 32 $165 11</p> <p>Feby 29 To Gilberton . . . . 176 50</p> <p>tt tt tt Viggans .... 6 97</p> <p>Mar. 27 “ Gilberton .... 432 87</p> <p>it tt « West Lehigh ... 54 70</p> <p>tt tt it Viggans . . . . 39 62</p> <p>April “ Cash..... 50 00</p> <p>925 77</p> <p>April 26 By a note for .... 526 62</p> <p>399 15 190 00 209 15</p> <p>June 29 To West Lehigh ... 39 44</p> <p>it tt tt Viggans .... 71 48</p> <p>“ “ “ Gilberton . 183 84</p> <p>May 31 “ Adkins .... 48 90</p> <p>tt it tt Viggans . . . . 13 80</p> <p>“ “ “ Gilberton . . . 171 36</p> <p>June 2 “ Cash..... 60 00</p> <p>$797 97</p> <p>June 26 By cash .... 350 00</p> <p>$447 97</p> <p>This a copy of the account purporting to be against Elias Miller on page 455. Turning from this account to page 450, we find an account purporting to be against Elias Miller, with a debit and a credit side. There does not appear to be any connection between this account and the account on page 455, except, that at the head of the column on the debit side the •figures “ 1447.97 ” are entered in pencil, and the name of Elias Miller is written at the head of the account.</p> <p>A copy of the debit side of this account on page 450 is as follows :</p> <p>1876.</p> <p>June 80 To 164 Sills to Viggans . . 32 80</p> <p>< 44 44 “ Cash .... 50 00</p> <p>July 31 “ Gilberton for . . . 132 31</p> <p>Aug. 31 “ Gilberton for . . . 48 67</p> <p>(4 44 “ Viggans for . . . 22 72</p> <p>Sep. 30 “ Viggans for ... 54 80</p> <p>44 44 “ Gilberton for . . . 43 40</p> <p>Oct. 31 “ Gilberton for . . . 51 20</p> <p>ii 11 « Viggans . . . . 71 61</p> <p>Dec. 0 1877 “ Load of hay at No. 3 colliery 31 70</p> <p>Jan. 31 “ Gilberton ... 81 11</p> <p>Feby 28 “ Gilberton . . . . 73 46</p> <p>Cl 11 “ Viggans . . . . 794 49</p> <p>Mar. 28 “ Bill of M. Peter . . 26 42</p> <p>“ 31 “ Viggans .... 165 06</p> <p>u ii “ Gilberton 144 oak 1. m. . 36 30</p> <p>April 30 u Viggans .... 169 95</p> <p>u / ii “ Gilberton . . . . 90 82</p> <p>May 31 “ Gilberton ... 26 21</p> <p>“ Viggans . . . . 62 57</p> <p>A copy of the credit side of this account on page 451 is as follows:</p> <p>.1876</p> <p>Aug. 23 To Cash .... 1132 31</p> <p>Sep. 25 “ Cash paid W. Hammer . 67 99 Nov. 24 “ Cash of Viggans for Oct. . 58 77</p> <p>“ “ “ Balance of “ “ “ . 12 84</p> <p>Nov. 24 To Cash of Gilberton . . 51 20</p> <p>Dec. 24 By Cash..... 70 00</p> <p>1877 •</p> <p>Feby 24 By Cash .... 81 IT</p> <p>Mar. 11 By Cash ..... 267 95</p> <p>Apr. 26 By Cash .... 10 00</p> <p>May 2 By Check . . . 1 . 165 00</p> <p>“ 29 By Cash .... 169 95</p> <p>“ By Check by H. Williams . 39 79</p> <p>June 26 By “ “ “ “ . 77 24</p> <p>An examination of the account on pages 455 and 450 shows no connection with the account ending on page 312. They are separated by all these pages, upon nearly every page of which we find an account with other persons with Avhom Henry Breisch had dealings and an examination of these numerous accounts, shows that they are all of a date subsequent to the date of the account against Elias Miller on pages 455 and 450.</p> <p>Robert Breisch, the son of Henry Breisch, was called as a Avitness to explain this system of accounts. He was bookkeeper for his father for about twenty-four years. After testifying to the account ending on pages 312 of the account book, he was asked:</p> <p>“ Will you state to the court whether at the same time you kept in another portion of your book an account devoted to the timber business or transactions of Breisch and Miller? A. Yes, sir; on page 455.”</p> <p>He testified that the items of debit in this account were for timber or sawed lumber hauled to the mines for Elias Miller; that Elias Miller had a contract with certain collieries among which were Gilberton and Wiggans, for the sale and delivery of timber, and that Henry Breisch furnished the lumber upon a contract with Miller. He says this account was kept separate to know the amount of timber hauled in. He says that when the timber was delivered ■ at the several collieries for Miller, entry was made of the quantity and character of the timber, in small books and from them, the lumping charges were made out and entered in this account.</p> <p>An examination of the account against Elias Miller, Avhich ends on page 312, shows that on page 114 during 1872, charges of lumber were entered against Miller, and on June 19,1878, an entry is made of one load of plank hauled to Gilberton colliery. On page 172 of the same account, during 1874, numerous items of timber delivered at the Gilberton colliery were charged up to Miller. On page 312 during 1878,1879 and 1882 various items of lumber were charged against Elias Miller. The evidence shows that on January 9, 1890, Breisch settled an account which Miller had against him by a cash payment of 144.57. The books of original entries of Elias Miller having every indication of being the record of his daily transactions with other persons, as well as the record of the mutual account between himself and Breisch, show no entry of the two items of credit entered by Breisch in his book to the credit of Miller, on December 7, 1895.</p> <p>From this evidence, we find the following facts:</p> <p>1. The account between Henry Breisch and Elias Miller ending on pages 312 and 313, presented by claimant, is an unsettled account of their mutual dealings from May 1, 1875, to December 7, 1895, and by this account nothing is due claimant.</p> <p>2. The account beginning on page 455 and ending on pages 450 and 451 begins November 80 and ends June 26, 1876. It is a separate and distinct account of an entirely different character. It does not exhibit the sale and delivery of any goods or property by Miller to Breisch.</p> <p>3. The last item of this on either side is June, 1876; that nothing had been done by the decedent, by way of promise, acknowledgment or payment on this account within six years prior to his death which would toll the bar of the statute of limitations.</p> <p>Reference to a few authorities may be well, before making final disposition of this claim. In Mueller’s Estate, 159 Pa. 590, it is said that “claims against decedents which might have been made against himself while living are always subject to just suspicion.” The evidence offered in support of this claim discloses very just grounds for suspicion. It is a very stale claim. There appears no reason whatever for such delay. The decedent was of ample means, and Henry Breisch was in need of every cent due him, and while so in need, instead of insisting on payments on account, or credits on account, he was paying Miller in cash for goods sold and delivered to him by Miller. In the case of Wilson v. Wilson, 6 N. J. Law, 95, cited with approval by Mr. Justice Mitchell, in Fulton’s Est., 178 .Pa. 86, it is said, “ A book of daily entries containing accounts with different people touching matters in which a man is known to deal or be employed, and which according to the custom of the country are usually made matter of account, has been admitted as evidence for the jury under all the circumstances of the case, while a detached paper, which might have been made up for the occasion, has been wholly rejected. ... Now these last entries appear to me to be no part of the book, properly speaking, but to stand precisely in the situation of a detached paper, and to derive no credit at all from their being written ■within the cover of the book, seeing they are written upon pages wholly detached from the daily entries and accounts.”</p> <p>It is contended on behalf of claimant that Henry Breisch being a farmer, unacquainted with any better method for keeping his accounts, should not suffer because they were kept in this unusual way. But it is plain he must have known better how to keep such accounts, for during 1872, 1878, 1874, 1878, 1879 and 1882, numerous items of lumber charges were entered by him against Miller, in the usual and proper way, — not in lump charges as these are in a separate part from the regular entries of their mutual dealings.</p> <p>The claim is disallowed.</p> <p>Error assigned was in overruling exceptions to adjudication.</p>

<p>Orphans' court sale — Description of land.</p> <p>An orphans’ court sale of a farm by an executor will not be set aside on the ground that a lot which was alleged to be not a part of the farm had been included in the sale, where the evidence shows that, although the ■older surveys of the farm had not included the lot in question yet testator had acquired title to the land by adverse possession, and had for a number of years made it a part of one of his fields, and at the time of his death recognized it as a part of his farm and not as an independent tract of land.</p> <p>Orphans' court sale — Application for order of sale for payment of debts— Notice to widow and heirs.</p> <p>The widow and heirs of a decedent and persons claiming under them are not entitled to specific notice of an application for an order of sale for the payment of debts.</p> <p>Orphans' court sale — Jurisdiction—Private sale — Act of May 9, 1889— Decedents' estates.</p> <p>Under the Act of May 9, 1889, P. L. 182, the orphans’ court has jurisdiction to decree and confirm a private sale of real estate for the payment ■of debts. The court is to consider all the circumstances, and if for any sufficient cause it believes a better price can be obtained, or is offered at private than at public sale, it may decree or approve such sale.</p> <p>Where land has been put up at public sale, and only $20.00 an acre bid, and it appears that the order of sale had been renewed from term to term for over two years, and that the executor in his return under oath had said he could not find a purchaser for the land on account of the greatly depressed condition of the real estate market, the court commits no error in .confirming a private sale of the land at $45.00 an acre, upon the sworn return of the executor that it was unlikely that a better or as good an offer for the land could be had for some time to come.</p> <p>The orphans’ court may grant an order to sell the real estate of a decedent to pay debts “ at either public sale or private sale.”</p> <p>Orphans' court sale — Corvfirmaiion of sale — Setting aside sale — Laches.</p> <p>Although there may be irregularities in a private sale of real estate by an executor for the payment of debts, the orphans’ court will not set the sale aside upon a petition filed sixteen months after the confirmation of the sale, where it appears that the purchaser had been placed in possession of ■the land, and had practically paid all the purchase money, and there is no offer to refund the money, and no averment in the petition that the land was sold at an inadequate price.</p>

Appeals — Practice, Supreme Court — Practice, Superior Court — Amount in controversy. In determining whether a case should be appealed to the Supreme or to the Superior Court, it is the amount of the appellant’s interest in the controversy that must determine the jurisdiction.

<p>Appeal, No. 91, Oct. T., 1898, by defendant, from order of C. P. Washington Co., Nov. T., 1897, No. 57, making absolute a rule for judgment for want of an .affidavit of defense.</p> <p>Scire facias sur mortgage.</p> <p>From the record it appeared that the court entered the following judgment:</p> <p>And now, October 15, 1897, ten days after the return day of the writ in the above case, said writ having been returned by the sheriff served upon George M. Tenan, executor of the-will of Stephen Smith, deceased, and nihil as to M. H. Steven-' son named as terre-tenant in the writ; upon motion of plaintiff’s counsel for judgment for want of an affidavit of defense-(there being no appearances entered in the case), it is ordered that judgment be now entered in favor of James B. Tenan (the-person for whose benefit the writ of scire facias in this case is issued), and against Geo. M. Tenan, executor of the will of Stephen Smith, deceased, for want of an affidavit of defense; the sum due said James B. Tenan to be ascertained by theprothonotary in accordance with the terms of the affidavit of claim now on file, the lien of such judgment and any and all executions issued from- it to be confined to the property of which said Stephen Smith died seized ; and any writ of levari facias issuing from said judgment to be levied only on the real estate referred to in the mortgage from which the writ of scirefacias in this case issued.</p> <p>Error assigned was the judgment of the court, quoting it.</p>

Appeal, No. 94, Oct. T., 1898, by plaintiff, from judgment of C. P. Washington Co., Feb T., 1898, No. 42, on verdict for defendant. Ejectment for a tract of land in Hanover township. Before Taylob, J. The facts appear by the opinion of the Supreme Court in this case, and in the case of Mutual Life Insurance Co. v. Tenan, ante, p. 239. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 153, Oct. T., 1898, by-defendant, from judgment of C. P. Beaver Co., June T., 1897, No. 35, on verdict for plaintiff. Assumpsit for breach of contract.

Appeal, No. 168, Oct. T., 1898, by plaintiff, from judgment of C. P. Indiana Co., March. T., 1897, No. 384, on verdict for plaintiff, for less than his claim. Assumpsit for services. Before Harry White, P. J. At the trial it appeared that on August 4, 1893, James Mc-Featers entered into a written agreement with Wm. D. Mc-Featers : “ That his son, William I).

<p>Evidence — Parol evidence — Written instrument — Sheriff's sale.</p> <p>On a bill in equity against the vendee at a sheriff’s sale to compel a conveyance of land which it is alleged that he bought under a parol agreement that he would reconvey upon payment to him of a certain sum, if the alleged parol agreement is denied by the answer, the proof required at the hands of the plaintiff to overcome the answer must be clear, precise and indubitable, and must come from the mouth of at least two witnesses, or from sources that would be the equivalent of the testimony of two credible witnesses.</p>

<p>Appeal, No. 195, Oct. T., 1898, by plaintiff, from judgment of C. P. Beaver Co., March T., 1897, No. 88, on verdict for defendants.</p> <p>Assumpsit on a contract. Before James Sharp Wilson, P. J.</p> <p>At the trial it appeared that on October 24,1895, defendants executed an agreement in writing by which they bound themselves to sell certain land to the plaintiff, and subscribed the sum of $10,000 to its capital stock. The object of the agreement was to induce the plaintiff to build its plant in a certain borough.</p> <p>All of the defendants testified that they were induced to sign the agreement by representations made to them by the agents of the plaintiff, that it had a patent process for the manufacture of car axles which would revolutionize the business; that it desired to secure a location at or near Beaver Falls, and that if it could secure a suitable location it would be glad to locate there: that its capital stock was $200,000, — $100,000 of 'which had been issued to John T. Rowley, the patentee; that plaintiff would raise $65,000 with which to erect the factory if defendants would furnish it with five acres of land upon which to erect the buildings, and subscribe $10,000 of stock; that it would employ 800 men and would erect at least 100 houses. Defendants further testified that the agents alleged that they were in a great hurry to get away in order to catch a train, and that if defendants would sign the proposition as prepared and presented to them they would return within a few days and enter into a written contract, in detail, and therein set forth that said sum of $10,000 referred to in the proposition was not to be paid until the plant was erected and in successful operation, and that the said sum of $10,000 was to be used only as working capital and not to be paid until it was necessary to be used for the purpose aforesaid, and that they desired to have the proposition signed on that particular day, in the manner in which it was already prepared, in order that they might show it to others as evidence of the good faith of the defendants in giving the land therein set forth; that relying upon these representations, the defendants signed the proposition above referred to, and, in accordance with the agreement, executed and delivered a deed for the land, worth at least $5,000, but refused to pay the stock subscription, since the representations which induced them to subscribe the stock were never fulfilled; the plant was never put in successful operation and the company entirely failed to manufacture axles under the process referred to.</p> <p>Plaintiff’s points and the answers thereto were as follows:</p> <p>1. The defense in this case rests solely on an alleged contemporaneous parol agreement, which has only been testified to by the defendants, parties to the contract in suit, and is not supported by any other witness, or any fact, or any other corroborating circumstances equivalent to another witness. Answer : This point is refused. [1]</p> <p>2. Under all the evidence the verdict must be for the plaintiff. Answer: Refused. [2]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 277, Jan. T., 1897, by-defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1895, No. 396, on verdict for plaintiff.</p> <p>Assumpsit for an alleged breach of contract of employment. Before Beégy, J.</p> <p>The facts appear by tbe opinion of tbe Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[This contract had practically three years to run, and if they deprived, him of that benefit they ought to pay what that contract was worth, and that is the profit which he would have gotten out of it. If a man takes a contract to build a house for $10,000, at a profit of $2,000, and the man who is having the house built afterwards changes his mind, and says, “ I will not let you go on with it,” he is not entitled to $10,000, because he didn’t build the house, but he is entitled to $2,000, the profit that he would have made if he had been allowed to finish it, if that can be ascertained in actual figures.</p> <p>So here, if that'man was deprived of doing that which the contract gave him the right to do, — in other words, if the défendants broke the contract and prevented the plaintiff from making the money he would have made if. he had gone and carried out his contract, they must make it up to him, and what that was worth you ought to give him by your verdict. In other words, what was the money value to the plaintiff of the contract if he had been allowed to carry it on for the three remaining years, and if lie is entitled to anything that is what he is entitled to.] [1]</p> <p>Defendants’ points and the answers thereto among others were as follows:</p> <p>5. The fact that Rightmire advertised himself as sole selling agent, and, in fact, did for a time, as the agent of the defendants, continue to sell the three-quarter automatic excelsior knitting machine, does not of itself tend to establish that Rightmire was selling the three-quarter automatic machine under the contract of October 28,1893. Answer: Refused. [2]</p> <p>6. It appears from the admissions of the plaintiff that while he was in the employment of the defendants he received from Austin, the seller of needle-cylinders, a commission of one half cent per bar upon all the needle-cylinders sold by Austin to the defendants; this action of the plaintiff was in fraud of his duty to the defendants, and he cannot recover damages for an alleged breach of contract on the part of defendants in refusing to continue him as selling agent, even though the contract of October 28, 1893, should be held to apply to the three-quarter automatic machines. Answer: Refused. [3]</p> <p>7. The fact that the three-quarter automatic machines may have contained a cam-cylinder similar to that contained in the semi-automatic machine does not bring that machine within the operation of the contract of October 28, 1893, in view of admitted difference in the method and cost of construction. Answer: Refused. [4]</p> <p>8. If the plaintiff is entitled to any damages for breach of contract, the measure of the damage is the value of the contract at the time of breach, and hi considering the value the jury must bear in mind that the defendants were not obliged to furnish any specified number of machines, or even continue their manufacture; the plaintiff’s rights under his contract were subject to the contingencies of business, depression of trade, which might tend to reduce the sales, and in estimating the damages consequent upon the loss of the contract, the jury' must take into consideration what the plaintiff probably could earn in some other employment or occupation during the period during which the contract ran. Answer: Refused. [5]</p> <p>10. There is no evidence in the case which justifies the jury in finding, that at the time of suit brought the defendants owed him any commissions for machines sold under the contract. Answer: Refused. [6]</p> <p>11. Under all the evidence in the case, the verdict should be for the defendants. Answer: Refused. [7]</p> <p>Verdict and judgment for plaintiff for #10,000. Defendants appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them.</p>

<p>Appeal, No. 3, Jan. T., 1898, by plaintiff, from decree of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 631, on bill in equity.</p> <p>Bill in equity to declare a trust.</p> <p>The facts averred in the bill are sufficiently stated in the opinion of the Supreme Court.</p> <p>The prayers were: (1) that the court would make an order declaring that a trust in favor of the bank was impressed upon the said sum of $2,000, which was obtained from the bank as aforesaid by the said trust company; (2) that the court would make an order and decree directing the assignees to pay over the sum of $2,000 to the bank, together with interest thereon from January 2, 1896; (3) general relief.</p> <p>Defendant demurred to the bill because (1) under the allegations of the bill no trust or preferential relation was impressed upon the said sum of $2,000 obtained from the bank by the trust company; (2) plaintiff has an adequate remedy at law.</p> <p>The court entered a decree sustaining the demurrer.</p> <p>Error assigned was in sustaining the demurrer.</p>

<p>Negligence — Shoooiing oil well — Explosion of torpedo— Contract.</p> <p>In an action of trespass to recover damages ior injuries to an oil well by the explosion of a torpedo, whore it appeared that the defendant contracted with the plaintiff to shoot the well, but without any guaranty that the well should be shot without any resulting injury, the defendant is liable for damages only in case of negligence, the burden of proving which is on the plaintiff.</p>

<p>Insurance — Fire insurance — Proofs of loss — Evidence.</p> <p>In an action on a policy of fire insurance, proofs of loss are admissible only for the purpose of establishing the fact that the plaintiff has complied with the policy in furnishing proper proofs of loss, and when their sufficiency has been passed upon by the-court they have performed their function, and cannot be used, against the objection of defendant as to their relevancy, as affirmative evidence of the amount of the loss.</p> <p>Where proofs of loss have been admitted under objection and exception as affirmative evidence of the amount of the loss,.and the other evidence in the case as to the amount of the loss is of a most meager and unsatisfactory character, and the court does not instruct the jury to disregard the proofs of loss, a verdict and judgment for the plaintiff for the full amount stated in the proofs of loss, will be reversed.</p>

<p>Appeal, No. 107, Oct. T., 1898, by defendant, from judgment of O. P. Lawrence Co., Dec. T., 1895, No. 71, on verdict for plaintiffs.</p>

<p>Appeal, No. 111, Oct. T., 1898, by Robert Mitchell, from order of C. P. Indiana Co., June T., 1896, No. 84, overruling exceptions to auditor’s report.</p> <p>Exceptions to the report of the auditor, Coulter Wiggins, Esq.</p> <p>The facts appear by the opinion of Habby White, P. J., which was as follows:</p> <p>The only pending exception complains of the finding of the auditor that the entire mortgage of J. M. Guthrie to Mrs. Anna M. Guthrie was not a valid lien. It is practically admitted that the note for $1,760, of August 7, 1883, from J. M. Guthrie to Mrs. Guthrie, and mentioned in the mortgage of September 16, 1893, on the real estate sold, should be paid. It is contended, however, that the other note of $1,000, of December 28, 1890, with interest, should not be paid. After extended testimony, the auditor has found as a fact that both these notes, secured by the mortgage, should be paid. Together they amount to $3,971.26. The balance for distribution is only $3,870.25; thus the entire balance of the fund is insufficient to pay both notes. The only question, then, before us is, did the auditor make a plain error in his finding of fact? If he did not, we cannot interfere, because of the familiar doctrine that the finding of fact by an auditor, in the absence of plain error, must be regarded as conclusive: Penn Bank, 152 Pa. 65, and many kindred cases. In this behalf the auditor finds “that she,” Mrs. Guthrie, mortgagee, “received five shares of stock in the Farmers’ Bank from her mother; with a note she held against her husband, dated May 7, 1889, for $383, and money given her by her husband, she bought five more shares of bank stock. This she bought from Mrs. J. B. St. Clair in 1882. These facts are corroborated by the testimony of her husband and show the consideration of the note secured by the mortgage.” •Following this statement of facts, the auditor concludes, “The notes are not without consideration and not void; but Mrs. Guthrie’s claim under the mortgage is valid and a lien upon this fund.”</p> <p>This being a claim by a wife on the proceeds of the sale of her husband’s property against other of his judgment creditors, it is necessary for her to establish her right by clear and satisfactory evidence. That is, she must by evidence clear and satisfactory, show that the money in question was her own separate estate independently of her husband, or if it came from her husband to her, that it came from him when he was entirely solvent. These questions are discussed and decided in Reese v. Reese, 157 Pa. 206, and reiterated in Billington v. Sweeting, 172 Pa. 161. That the hnsband, if solvent and not in contemplation of insolvency, can make valid gifts to his wife which she can hold against his subsequent creditors is also discussed and decided in the cases cited above. It matters not that it may not be sworn that the husband agreed to repay to his wife money of hers received by him since the act of 1848. When a husband receives the wife’s goods or money, since this statute, the law presumes he received it as her trustee or agent, and if he would make title in himself he must prove it was a gift or purchase: Gicker v. Martin, 50 Pa. 138. The burden is on him to prove such gift or purchase.</p> <p>Mrs. Guthrie and her husband both clearly establish the fact that she received five shares of Farmers’ Bank stock from her mother. It is also clearly shown that she purchased with her own money from Mrs. St. Clair, in 1882, five more shares. One hundred dollars was the par per share, and appears to have had that value. Itis clear Mrs. Guthrie owned, claimed and used this stock as her own. It seems well and clearly established, also, that she sold and transferred this stock to her husband about November or December, 1890, for $1,000, its par value, he desiring to become a director of the bank, and the general banking law for such bank requiring an ownership of, at least, ten shares of the capital stock to become such. It is quite clearly proved Mr. Guthrie did not pay his wife cash for this stock, but, December 28, 1890, gave her his note for $1,000 at one day for it. He held and used this stock till December 10, 1892, being a director during the time of the bank, when he retransferred it to her, she surrendering the $1,000 note to him. What dividends were paid in the mean time Mr. Guthrie drew. It is also clearly established that about May, 1893, Mr. Guthrie, with the assent of his wife, sold for $1,000 this stock to S. G. Hartman. This money was paid to Mr. Guthrie directly or through his wife and he used it. This being Mrs. Guthrie’s money and coming into Mr. Guthrie’s hands, he would be liable to her for it, and a note, entered as a judgment through a mortgage, for it would be a valid lien against him. Thus far all seems to be clearly and satisfactorily established. The mortgage is dated September 16,1893, and recites the $1,000 note of December 28, 1890. If, then, the testimony justified the auditor’s finding that this note was to secure to Mrs. Guthrie the purchase money of the ten shares of bank stock sold to Hartman, then, there is an end of the case and the report must be confirmed. Perhaps the evidence about this being the note Mr. Guthrie gave to his wife for the proceeds of the stock received from Hartman is not as clear in a controversy of this kind as should be desired. But it is satisfactorily established Mrs. Guthrie sold the ten shares, November or December, 1890, to her husband for $1,000 and took his note for it. It is equally clear these shares wore sold and retransferred to her in December, 1892, and, she says, the note given her by her husband December 28,1890, surrendered. It is certainly clear that, about May, 1893, Mr. Guthrie sold this stock to Mr. Hartman, with the authority of his wife, and got and used the proceeds. It nowhere appears that Mrs. Guthrie ever received this money. It was certainly hers. She testifies, after reciting transactions: “ Q. Can you now say whether or not that note was given you when you transferred your stock to Mr. Guthrie or after you sold it to S. G. Hartman? A. I cannot tell you certainly. It was a very short time between the tranfer and sale of the stock. One was done in December, 1892, the other in May, 1893. It was a very short time elapsed. Whether Mr. Guthrie made the note then after it was sold and dated it back and included the interest, I cannot tell.” In this behalf Mr. Guthrie testifies, “ I gave her my promissory note for $>1,000. I held that stock until about the close of the year 1892 when I again transferred it to Mrs. Guthrie. Having-lifted all the dividends on the stock during the time that I had it my impression is that I lifted the note I had formerly given her. That was not done until some months after, when the same stock was sold by Mrs. Guthrie, myself acting as her agent, to S. G. Hartman, I receiving the money for the stock. I think I lifted the note that I had formerly given Mrs. Guthrie when I purchased the stock from her when I reconveyed it back to her. But when the stock -was subsequently sold to Mr. Hartman I had not received all the dividends. I think I made her a new note for her stock, dating it back to the time she first transferred it to me.” The note before us is not a promissory note, but a judgment note. Mr. Guthrie says when he purchased the stock from his wife in 1890, he gave her a promissory note; the pending note is a judgment one under seal. This would appear to be some corroboration that the promissory note was lilted in consideration of the retransfer, and that the pending note was a new one given for the proceeds of the sale lifted by Mr. Guthrie from Mr. Hartman. While in view of the testimony of Mrs. Guthrie, who does not seem to remember the full details of the transaction, all is not perfectly clear, yet it is perfectly clear she owned the bank stock, and that it was sold to Mr. Hartman, and Mr. Guthrie got the money, and the note before us was either the old note given her when she sold to Mr. Guthrie in December, 1890, or a new one dated back, so as to evidence the daté of the transaction, that interest might be calculated accordingly. If the old note was in existence at the time of the sale to Hartman and the reception of the money by Mr. Guthrie, both of the parties could treat that old note as still existing to evidence the indebtedness of Mr. Guthrie to his wife for his reception of the proceeds of the sale of-her property. Be this as it may, it is beyond doubt that when the mortgage of December, 1893, was executed, both parties treated tlie note in question as subsisting, for it is recited in the mortgage, and is for the price for which the stock was bought and sold and for the amount Mr. Hartman paid Mr. Guthrie for Mrs. Guthrie’s stock and which amount she has never actually received. We therefore can see no error in the auditor’s finding. No testimony was presented to contradict that of Mr. Guthrie and Mrs. Guthrie or that arising on the face of the papers. The auditor, like a jury, had the witnesses before him, with all opportunity, from manner and circumstances, to judge of the correctness of their testimony. The validity of the lieu of this mortgage, the debt and interest of which is not fully paid out of the fund for distribution, being the only question before us, the exception to the auditor’s finding must be dismissed.</p> <p>And now, April 18,1898, exceptions dismissed and auditor’s report confirmed.</p> <p>Error assigned was the order of the court.</p>

<p>Husband and wife — Real estate — Resulting trust.</p> <p>The Supreme Court will not reverse a judgment on a verdict in favor of a married woman in a proceeding by a sheriff’s vendee to recover possession of real estate, where the evidence tends strongly to show that title to the land in question'was taken by the defendant in the execution in his own name, but that his wife paid out of her separate estate a portion of the purchase money corresponding to the interest in the land awarded to her by the verdict, with the understanding that she was to have title to the land in proportion to the money paid by her, and that she did not know that her name was not mentioned in the deed.</p>

<p>Appeal, No. 170, Oct. T., 1898, by-Mary J. Weller et al., from decree of O. C. Washington Co., Aug. T., 1895, No. 23, on appeal from register of wills. Before</p> <p>Appeal from register of wills. Before McIlvaine, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree overruling the action of the register in admitting will to probate.</p>

<p>Insurance — Fire insurance — Proofs of loss — Specific objections — Belay in making objections — Waiver.</p> <p>Where the assured under a policy of fire insurance makes an apparently honest effort to specify with particularity his loss, as required by the policy, it is the duty of the insurance company, with reasonable promptness, to particularize wherein the assured fails to meet the condition.</p> <p>Where preliminary proofs of loss have been transmitted to an insurance company and received by it the next day, and no reply thereto is made, or any special defects therein pointed out, until fifty days thereafter, the delay is equivalent to a waiver of all objections to the form of the proof for defects therein.</p> <p>Fire insurance — Proofs of loss — Evidence—Objections to evidence.</p> <p>In an action upon a policy of fire insurance where the court has passed upon the. proofs of loss as sufficient, and subsequently the plaintiff offers them as evidence of the amount of the loss, the defendant company in order to effect their exclusion must object, not to the form of proof of loss, but to their competency as evidence of the amount of the loss. If it fails to do so, and makes no request to the court for an instruction that the jury shall not consider them, a verdict and judgment in favor of the assured will not be reversed by the Supreme Court.</p>

<p>Appeal, No. 116, Oct. T., 1898, by John G. Ruoff, from decree of O. C. Westmoreland Co., Nov. T., 1895, No. 82, overruling exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, John B. Head, Esq., reported as follows:</p> <p>This proceeding, as it comes before the auditor, is a petition to the orphans’ court, under the provisions of the Act of February 24, 1834, sec. 59, Purdon’s Digest (12th ed.), 620, pi. 266. The petitioners are all of the legatees under the will of George Hartzell, deceased, and the executor of said will. The respondent is J ohn G. Ruoff, present owner of a tract of land devised by said George Hartzell in bis will, and charged, as petitioners allege, with the payment of a sum of money bequeathed to them by said will. The powers and duties of the orphans’ court in such a case, after all the parties in interest have been brought into court, are defined by the following language taken from the act of assembly above referred to, viz: “ Whereupon such court may proceed according to equity, to make such decree or order touching the payment of the legacy, out of such real estate, as may be requisite and just.” All the material facts appear from the records offered in evidence by counsel for the parties. In accordance with the direction of the court, the auditor herewith submits findings of fact and of law, together with an opinion setting forth the reasons for the conclusions reached, and the form of a decree to be entered.</p> <p>FINDINGS OF FACT.</p> <p>1. George Hartzell died November 11, 1886, leaving to survive him a widow, Hannah Hartzell, and five children, viz: George M. Hartzell, Lewis H. Hartzell, Susanna E. Boyer, Lydia A. Hartzell, and Amanda Naley.</p> <p>2. By his last will, duly admitted to probate, the said George Hartzell provides, inter alia, as follows, viz:</p> <p>“ I give devise and bequeath to my son, Lewis H. Hartzell,' his heirs and assigns, the 4 Keefer farm,’ in Penn township, said county, containing about 128 acres, at seven thousand six hundred and eighty ($7,680) dollars.</p> <p>* * * * * * * *</p> <p>“For the purpose of making an equal distribution of my estate, except as hereinbefore directed, among my five (5) children, to-wit: George M., Lewis H., Susanna E., Amanda and Lydia Ann, I appraise and value the ‘ Jack farm ’ devised to George M., at fourteen thousand two hundred and eighty ($14,280) dollars, four thousand seven hundred and sixty ($4;760) dollars of this sum to remain alien on the land so devised, and the interest thereon to be paid annually to my beloved wife, as hereinbefore directed. The 4 Keefer farm ’ devised to Lewis IL, at seven thousand six hundred and-eighty ($7,680) dollars, one-tliird of which, viz: two thousand five hundred and sixty of which is to remain a lien on the lands so devised, and the interest thereon to be paid annually to my wife, as hereinbefore directed. The twenty-nine acres devised to Susan E., at two thousand one hundred and seventy-five ($2,175) dollars, one-third of which, viz: seven hundred twenty-five ($725) dollars, is to remain a lien on the same, and the interest thereon to be paid to my wife as hereinbefore directed. The property in Mt. Pleasant bororigh, aforesaid, devised to Lydiá Ann, at one thousand three hundred ($1,300) dollars, one-third of Avhich, viz : four hundred and thirty-three and 33-100 ($433.33) dollars, is to remain a lien on the same and the interest thereon to be paid annually to my wife, as hereinbefore directed. And the home property and the acre and a half pasture lot, devised to Amanda, I value and appraise at five thousand and five hundred .($5,500) dollars.</p> <p>^ &</p> <p>44 At the death of my said wife, the said sums of money made chargeable on the real estate devised to my children and the property devised to Amanda, shall be added together and this sum, less the costs, ete., shall be divided into fiAre equal parts, and one equal part paid to each of my five children above named, or their heirs.”</p> <p>Of this will the testator appointed his son George M. Hartzell executor, and letters testamentary were issued to him.</p> <p>8. Lewis H. Hartzell accepted the devise in his favor and went into possession, and appears to have accounted for all of his purchase money, except the sum of $2,560 payable on the death of the widow.</p> <p>4. On October 7, 1892, John G. Ruoff obtained a judgment against Lewis H. Hartzell for $8,860. On September 22,1893, Lewis H. Hartzell assigned to one John Long all his estate, right, title, etc., by and under the will of his father that would be due and owing to him at the death of his mother, Hannah Hartzell. This assignment was in writing, was for a valuable consideration, and on the day it was made, it was recorded in the recorder’s office.</p> <p>On September 28, judgment was entered in favor of J. W. Fisher against Lewis Hartzell for $200.</p> <p>5. Upon the two judgments above recited writs of fi. fa. were issued; the land devised to Lewis II. Hartzell was taken in execution and sold by the sheriff on November 10, 1893, to John G. Ruoff for $2,505. This sale was regularly confirmed by the court, and a deed was duly acknowledged and delivered to the purchaser.</p> <p>6. At the sheriff’s sale public notice was given to all parties that the land offered for sale was charged with the legacy of $2,560 dollars under the will of George Hartzell; that only the arrears of interest accrued thereon would be discharged by the sale and payable out of the proceeds, etc., and warning bidders to act accordingly. The sheriff’s schedule of distribution shows that $1,262.49 was applied to the payment of arrears due the widow at time of sale; $47.85 to costs of sale, and the balance of the purchase money $1,194.66, was allowed to John G. Ruoff, the purchaser, on account of his judgment.</p> <p>7. Hannah Hartzell, widow of testator, died on March 24, 1895. Since her death John G. Ruoff has refused to pay to the legatees’ petitioners the sum of $2,560 or any part thereof, and this proceeding has been instituted to enforce payment of that amount with interest from the date of the death of the widow. On his own petition John Long, assignee of the share of Lewis II. Hartzell, has been permitted by the court to intervene and become one of the petitioners.</p> <p>CONCLUSIONS ON LAW.</p> <p>1. The devise to Lewis H. Hartzell and his acceptance thereof vested in him the title to the “ Keefer farm,” charged with a lien to secure the payment of $2,560 dollars and interest thereon, to the persons and at the times provided in the will.</p> <p>2. Under the will, Lewis H. Hartzell, on the death of the widow, was entitled to receive, not any fixed share of the $2,560 charged on his own land, but a share in a fund to be made up of this and several like charges, from which fund was first to be deducted the costs and expenses of collection, distribution, etc.</p> <p>3. Under these circumstances this future but undetermined interest of Lewis H. Hartzell in the fund to be created as provided in the will did not merge and become extinguished in the fee simple title to the land which vested in him under the devise.</p> <p>4. The lien created by the will being of a fixed and continuing nature, a sheriff’s sale of the land during the life of the widow did not discharge the lien, but the purchaser took the land charged with the payment of $2,560, and the interest thereon, in addition to the amount of his bid.</p> <p>5. The purchaser at sheriff’s sale did not buy the interest or share of Lewis H. Hartzell in the fund to be gathered after the death of the widow, but only his interest in and title to the land itself.</p> <p>6. John G. Ruoff, the respondent, has no defense at law or in equity to the payment of the sum of $2,560 with interest thereon, from March 24, 1895, the date of the widow’s death, and the petitioners are entitled to a decree in their favor for that amount.</p> <p>If the respondent had any doubt as to the persons he should pay, the first section of the Act of May 1, 1861, Purdon’s Di- • gest (12th ed.), 621, pi. 269, furnishes complete protection against such dangers and enables a person in his situation to pay the legacy and discharge his land with promptness and security.</p> <p>That the land passed by the devise charged with the payment of the valuation money fixed by the testator, is too plain for argument: Hart v. Homiller, 23 Pa. 39 ; Gilbert’s Appeal, 85 Pa. 347.</p> <p>The devisee having taken the title bound by a lien, let us consider the further provision of the will providing for the creation of a fund after the death of the widow, and giving to each of his live children, including Lewis, an equal share in the net proceeds of that fund. Can it be said that the lien tlius fixed on the land of Lewis became merged in whole or in part in the title which vested in Lewis, because he, as a legatee, was to receive a share of the fund of which the money charged on his own land was a constituent part ? That the lien as a whole could not merge seems clear, because the widow and the other legatees were interested in it, and their interests could not be destroyed by mere operation of law. Equity does not favor mergers; and in law mergers are said to bo odious. Equity will not permit the rights of creditors, legatees, etc., to be defeated by mere act of law, without any act done by them: Penington v. Coats, 6 Wharton, 282.</p> <p>So if there be a beneficial interest in any other person, there will be no merger: Dougherty v. Jack, 5 Watts, 456.</p> <p>Could any part of the lien merge on the theory that it represented the share of Lewis in the fund? If so, what part or to what extent ? Let it be kept in mind that Lewis was not given a portion of the money charged on his own land, so that it could be said he owed himself a fixed and determinate sum. On the contrary, he was given a share in a fund the exact amount of which could not be determined when his rights vested, and cannot be determined now. True, if each devisee paid in the amount charged in the will, the gross amount of the fund could be known. Even then the net amount of the fund could not be ascertained. But how could it be told until payments were actually made that the devisees would pay the amount charged ? And in case of their failure what certainty is there that the lands charged would sell for enough to realize the amounts charged ? Although the original petition filed by the executor averred that the remaining devisees had paid into his hands the amounts charged on their devises, when the court decided that he had no standing to* receive the money and release the land the money may have been withdrawn from his hands; or it may be withdrawn at the pleasure of the devisees, as the executor is but their agent in this respect.</p> <p>It seems clear that the interest of Lewis in this lien was so impossible of ascertainment that the doctrine of merger could . not apply. Moreover it was not to the interest of the devisee that the two should merge. His interest in the fund was personal property. It could not be bound by the lien of a judgment against him. It would not pass by a sheriff’s sale of his land. He could sell and assign it at pleasure like any other chose in action. Under such circumstances there is a presumption that no merger took place. As a merger is for the benefit of him in whom the two interests unite, it will never take place when it is against his interest, or when it is most for his advantage to keep the charge alive: Wallace v. Blair, 1 Grant, 81; Moore v. Harrisburg Bank, 8 Watts, 149; Dougherty v. Jack, supra; Bryar’s Appeal, 111 Pa. 81. There is also some evidence, the only evidence on either side of this question, that as early as 1898, Lewis Hartzell did not consider there was any merger, because on September 22 of that year, he specifically assigned his interest in the fund to John Long. Finally the case of Hart v. Homiller, Ex’r, supra, seems to expressly decide this question and about every other important question in this case: “If after this (a sheriff’s sale of the land of the devisee charged with the payment of a legacy) there should be funds in the hands of the executor of the estate, and the said devisee’s share thereof should be sufficient to pay the charge on the land thus devised, this would not of itself operate as an extinguishment of the charge; for that would be the application of the devisee’s funds in order to discharge the duty of the sheriff’s vendee.” As this case is so much like the one in hand, and rules nearly every phase of it, it may be well to recall that it was carefully reviewed by Mitchell, J., in delivering the opinion of the Supreme Court when the present case was recently before that body: Hartzell’s Estate, 178 Pa. 286. While they overrule the case cited, in so far as it decides that an executor may maintain a proceeding in the orphans’ court to recover a legacy charged on land, the learned justice says: “ These cases are all subsequent to Hart v. Homiller, and while not disturbing the principle of that decision, must be accepted as establishing a different practice.”</p> <p>It would therefore appear that on September 22,1893, Lewis Hartzell was the owner of a tract of land bound by the liens of the charge created by the will, and the judgment of respondent. He was also the owner of a share in a fund to be made up after his mother’s death in the manner provided by the will. This was personal property, and was not bound by any attachment or other legal impediment to its assignment. On the date named he assigned this share for a valuable consideration to John Long, and there is no reason apparent in the evidence before the auditor why this assignment did not pass a good title to the assignee. The subsequent sale by the sheriff did not convey anything but the interest of Hartzell in the land. It did not disturb the assignment to Long. The purchaser had express notice of the fact that the lien would be preserved, and that the land would cost him the amount of the lien in addition to his bid. Presumably by reason of this, the respondent bought for $2,505, land devised to Lewis Hartzell by his father at $7,680.</p> <p>Under these circumstances the law will not permit the purchaser to hold the land except on payment of the legacy. And certainly in equity he has no standing to ask that his land should be discharged from the duty of paying the legacy. Upon all the evidence the auditor feels clear that the respondent has no defense at law or in equity against this proceeding, and accordingly a decree directing the payment of $2,560 with interest from the date of the death of the widow and costs since the filing of the present petition.</p> <p>Exceptions to the auditor’s report were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Partnership — Evidence of partnership.</p> <p>An agreement by two partners to pay fifty cents per thousand feet on timber manufactured by the firm to a third person, in consideration of the latter exercising a sort of supervision over the affairs of the partnership, and giving the partners the benefit of his counsel and advice in the conduct of their business, but not giving him a controlling voice in the direction of the business, nor permitting him to participate in its profits, does not make such third person a partner with the others.</p> <p>An agreement by a partnership to pay a certain sum per thousand feet on timber manufactured by the firm to a third person, in consideration of the latter indorsing the firm’s paper to an amount not exceeding a sum specified, does not make such third person a member of the partnership.</p> <p>Judgment — Confession of judgment — Partnership—Security—Fraud in law — Fraud in fact — Interest.</p> <p>A partnership may give a judgment note to a third person to secure the latter from loss by reason of future indorsements of the firm’s notes, and if the judgment note provides that judgment may be entered upon the insolvency of the firm, the payee may enter judgment for the full amount of the judgment note, issue execution and sell defendant’s real estate, although the notes indorsed by him aggregating the amount of the judgment have not as yet matured, provided they mature and are paid by him before the sheriff makes title to the property sold.</p> <p>Whore the payee of a judgment note, acting honestly and in good faith, and merely to secure and protect himsejf against loss, enters up a judgment note for an amount greater than the amount due him, and he does not claim or receive more than the amount actually due, the mere omission to enter credits on the judgment will not render it fraudulent and void as to other creditors of the maker.</p> <p>The fact that the prothonotary in entering up a judgment note marked “ interest from the date of the note,” although no interest was specified in the note, and the payee’s counsel in his confession of judgment did not claim it, and the payee never received any, will not render the judgment void.</p>

<p>Parent and child — Seduction—Evidence of character — Rebuttal.</p> <p>In an action by a father to recover damages for the seduction of Ms daughter, evidence is admissible of the previous good character of the daughter in the neighborhood where the intercourse took place, in rebuttal of defendant’s evidence that her reputation was bad before she came to that place.</p> <p>Seduction — Promise of marriage — Aggravation of damages.</p> <p>In an action by a father to recover damages for the seduction of his daughter, where intercourse was admitted but seduction denied, plaintiff may show iu aggravation of damages that defendant, after discovering that she was in the family way, had agreed to marry her.</p> <p>Seduction — Previous bad character — Reformation.</p> <p>In an action by a father to recover damages for the seduction of his daughter, the plaintiff may-recover although the girl may have led a life of prostitution, if it appears that at the time of defendant’s connection with her she was leading a virtuous life.</p> <p>Seduction — Civil and criminal actions.</p> <p>It is no defense to an action for seduction that the defendant has been or will be subjected to a criminal prosecution.</p> <p>Seduction — Promise of marriage not essential.</p> <p>Seduction is the act of a man inducing a woman to commit unlawful sexual intercourse with him, and it is not essential in order to maintain the action that there should be a promise of marriage.</p> <p>Seduction■ — Parent and child — Measure of damage.</p> <p>In an action for seduction of a daughter, the parent may recover not only for the loss of her services, but also for mental anguish caused by the loss of her virtue, the loss of comfort and consolation that he has a right to feel in the purity and virtue of his daughter and for the disgrace and dishonor brought upon himself.</p> <p>Seduction — Parent and child — Daughter not living with parent.</p> <p>In an action for seduction the fact that the daughter was not living with her father at the time the offense was committed, does not affect the father’s right of recovery.</p> <p>Deputation — Evidence,</p> <p>The fact that a person’s reputation is not talked of is evidence that it is good.</p>

Appeal, No. 199, Oct. T., 1898, by plaintiff, from judgment of C. P. Venango Co., Jan. T., 1898-, No. 39, on verdict for defendant. Assumpsit for an alleged breach of contract.

<p>Appeal, No. 336, Jan. T., 1898, by defendant, from judgment of O. & T. Chester Co., April T., 1898, on verdict of guilty of murder of the first degree.</p> <p>Sentence set aside and record remitted.</p> <p>Indictment for murder. Before Hemphill, P. J.</p> <p>From' the record it appeared that the prisoner was indicted for murdering his wife, Ella Preston. Insanity was set. up as a defense. On this subject Thomas Underwood, called, by the commonwealth, testified as follows :</p> <p>“ Q. Where do you reside ? A. Penn township. Q. Are you acquainted with Jonas Preston, Jr.? A. Yes, sir. Q. How long have you known him ? A. About fifteen years. Q. Was he ever in your employ? A. He was. Q. You are a farmer? A. Yes, sir. Q. For what period of time was he in your employ ? A. About four or five months. Q. Continuously? A. Yes, sir. Q. During that period he slept at your premises ? A. Yes, sir. Q. And took his meals there ? A. Yes, sir. Q. You have conversed with him ? A. Yes". Q. I wish you would state whether or not during this period of time jrou ever saw anything in his actions, behavior or conversation, different from that of a man in his station in life, an ordinary man. A. I did not.”</p> <p>By the Court: “ Q. When was this he was with you ? A. About ten years ago now.”</p> <p>Cross-examined: “ Q. About ten years ago he was in your employ? A. Yes. Q. Have you seen anything of him since then? A. Yes, sir. Q. Have you had any conversation with him? A. Yes, sir. Q. Have you had any business with him since then ? A. Nothing material that I can think of. Q. Have you had any particular occasion to converse with him since then on any subject? A. Yes, I think I have, a few times, not very often. Q. Nothing of importance? A. No, sir. Q. When he was with you it was about. four or five months, and that is ten years ago ? A. Yes, sir.”</p> <p>On the subject of insanity the court charged as follows:</p> <p>Now, gentlemen of the jury, if you, having passed upon the commonwealth’s evidence, should reach the conclusion that the prisoner at the bar, without anything more being shown, before you approach the defense, committed the crime of murder by the killing of his wife, and then conclude in what degree he is guilty, then you will reach the defense. Because, of course, if you reach a conclusion, which it seems to me is utterly improbable, if not impossible, that there was no murder committed, or that he did not commit the murder, your verdict will be an acquittal, not guilty. But if you conclude there was murder committed, and that the prisoner at the bar committed it, and fix upon the degree, the next step you take is to consider what is the answer that the defendant has made to these seemingly overwhelming facts or evidence against him? And his plea is that he was insane. Insanity is his plea. When you reach his defense the burden shifts. The burden to establish guilt is, in the first instance, upon the commonwealth. But when the defendant sets up insanity as a defense the burden is upon him to prove it, or to satisfy you that he was insane, for the presumption of law is that every person is sane until the contrary is proved. So that the burden rests upon the one who claims to have been insane at the time of the commission of a crime to prove he was insane, the law presuming until that is shown to the satisfaction of the jury that he was sane and accountable for his actions. The test of responsibility for crime where insanity is pleaded is whether the accused was capable, and did have a criminal intent, and the capacity to distinguish between right and wrong in reference to the particular act with which he is charged. If the prisoner at the bar had power of mind enough to be conscious of what he was doing at the time, then he was responsible to the law for his act. Bearing those definitions in mind you will inquire, was the defendant insane ? Has he satisfied you that he was insane? Now I do not propose to go over the testimony at length — you have heard it, it is fresh in your mind, and you have heard it commented upon but recently — further than to say that the character of insanity set up here and shown, if i t can be called insanity, was not of a character to indicate violence. At most it showed a childishness on his part. The testimony in substance was that after a certain fall which he had suffered back as far as 1874, that some years after that— how it is connected with the fall does not appear, except in the imagination or in the view of individuals — but subsequent to that fall, some years after that, he developed what are called spells; and the character of these spells was that he would talk foolish; that he would act foolish, and that he would play with sticks; that he would think he was driving horses, and that he would imagine somebody was after him; that he would ask whether people were talking about him or inquiring about him, of that harmless and childish character; nothing indicating a disposition to do wrong, to do injury or to do violence. But it does not follow from that, if you consider that -sufficient evidence of insanity, that there might not be a development in another channel. It might take another turn, and might, as we all know men do at times who are insane, being perfectly harmless, become very violent and very aggressive. But a peculiar feature of these spells, as set up here, is that they were not continuous; or rather that the insanity is not claimed to have been confirmed and of a continuous character; that there were long intervals, sometimes years; I think the last one before the killing was some three years previous, at least a year or more, when he got religion or when he joined the church. That being the case the defendant must not only satisfy jmu that he was subject to these spells of insanity; if you, in the first place find them to be evidence of insanity — -because that will be the first question, has he satisfied^ou these spells thus described to you are evidence of insanity — and if he has, the second question arises, had he one of these spells at the time this crime was committed ? Because a man that is sane for years and for months at a time, and only has short spells of insanity, the law requires that he should establish, in order to entitle himself to the protection that it gives an insane person in the commission of crime, to show that he had one of these insane spells at the time of the commission of the crime; because no matter how often or how frequently he was subject to spells of insanity, unless he was under one of these insane spells at the time he committed the crime, he is just as responsible for bis acts as you or I, or any one else, because he is then a sane person. Now bas be satisfied you, if you reach the conclusion that these spells were evidence of insanity, of such insanity as in law relieves the party accused from being hold responsible for his acts? If you reach that conclusion then yon come to the second question, has he satisfied yon be had one of these spells at the time of the commission of this crime? And you are placed in tlie same position as you were in determining the degree of murder. It must be all inferential. He lias not, apparently, declared to anybody tbe circumstances under which this crime was committed. [We know nothing of what occurred in that house at the time of the commission of this crime. We know not what the condition of his mind was, and you have got to determine that by ascertaining what the condition of liis mind was immediately before and immediately after, as being the best and most rational guide you can take to ascertain what it may have been during the interval. The only testimony I recall, and that closest to the commission of the crime, was given by his pastor, Samuel Ruth. He tells you that he was at prayer meeting on the evening before, on the evening of February 17; that he seemed then in his normal, and in a rational, condition. I think he had a talk with him. In addition to his testimony we have that of the pastor’s wife; and we have that also of a man named John L. Johnson, a colored man, and his wife, Lizzie Johnson, who were at the church and saw this man there that night in company with his wife. There was nothing, they say, to indicate there was anything whatever wrong. Now I recall no one who saw him so late before the killing as the parties I have named, four in number; and if their testimony is to be relied upon be was in his usual normal condition of mind.] [1, 2] That is the latest hour up to which, I believe, we can trace him previous to February 18. The first .person called upon the stand who saw him after the commission of tins crime was a young man named George Oatman, and he tells you he saw .him a short distance from his house, going away from his house, between 11 and 12 o’clock on the morning-of February 18, that he saw nothing whatever wrong ■with him; that he hailed him and requested him to tell Mr. Clark he would not be over there that afternoon to attend to some work which he apparently had engaged to attend to. The next person who saw him, as far as the testimony discloses, was Rebecca Cornelius. She tells you that he reached her house between 12 and 1 o’clock; that he was nervous, excited and crying. lie asked her to cut his hair, which she did. The next person who saw him was his brother, George Preston, whose house he reached about 2 p. M. He tells you his condition in substance was the same as that detailed by the sister; that he was nervous and excited, and perhaps crying. From that time on until late in the evening, between 5 and 6 o’clock, he is not accounted for. Then he turns up at his father’s house in the neighborhood of Jennersville, and there you will recall the testimony given by his brother-in-law, by his father and sister, who were there. Does that testimony satisfy you, if you believe these spells were spells of insanity, that he had o.ne of these insane spells at the time of this killing? If it does, if he has established to your satisfaction that he was insane, and was insane at the time of the commission of this crime, then he is entitled to a verdict of not guilty on the ground of insanity. But if he has failed to so satisfy you — and when you are weighing the testimony on that 'point you must not take the testimony of the defense alone, but that of the commonwealth also — because, without attempting to recount the testimony bearing on the general question of insanity, you will recall the number of witnesses called on the one side, in the first place, to establish it — outside the family they called Isaac; P. Jackson, Preston F. Powell, Benjamin Cook, Hayes A. Clark and Israel Milburn; and in addition to those some four members of his family, Jonas Preston, Sr., Rebecca Cornelius, George Preston and Elizabeth Brown. They were to establish the fact that this man was insane, or was given to spells of insanity. To contradict them the testimony offered by the commonwealth consisted of Samuel Ruth, who was his pastor, and his employer also at packing hay; Dr. Sharpless, the prison physician, who saw him after he was brought to the jail here, and he tells you that he saw no evidence of insanity and he thinks lie is not insane; Louisa Ruth, the pastor’s wife; William J. Johnson, who worked with him at the hay press; John L. Johnson, and Lizzie Johnson, his wife, whose testimony on the night before I have already called your attention to — R. C. Kelton, the station agent at Kelton; [Thomas Underwood, who had known him fifteen years and employed him four or five, and he slept and ate at his house while so employed; and Charles H. Effinger, who had employed him also on two or three occasions for a day or two at a time; and these people all tell you that in their judgment there was nothing wrong with him whatever,] [3] nothing out of the way. One, perhaps, tells you he was below the average of intelligence; one says lie was dumb, but they all tell you in their judgment that' he was not insane; that they saw nothing strange or peculiar about him in all their acquaintance with him. That is the testimony offered to you to satisfy you that this man is insane. If you reach the conclusion that these spells were not spells of insanity, but spells of childishness, or passion, or anything of that sort, not amounting to insanity, then it is not necessary for you to consider the second question, whether he was insane at the time of the commission of the act or not. But if you conclude that these spells evidenced insanity, if they satisfy your mind that at times at least he was insane, then the second question becomes a verjr important one, was he insane at the time this crime was committed ? If lie was, as 1 said before, you will render a verdict in his favor of not guilty on the ground of insanity. If, however, he has failed in that defense then' you will recur to the first questions that presented themselves, was he guilty of this murder, and if he was, was it murder of the first or second degree ?</p> <p>Verdict of guilty of murder of the first degree. Sentence of death was passed upon the verdict, without the prisoner being asked immediately prior thereto if he had anything to say why sentence of death should not be passed.</p> <p>Errors assigned were (1-3) above instructions, quoting them; (4) that the court erred in not asking the prisoner if he had anything to say why sentence of death should not be passed.</p>

<p>Corporations — Churches—Church law — Control of property by lay members — Act of April 26, 1855, sec. 7.</p> <p>Under the Act of April 26, 1855, P. L. 328, see. 7, relating to'the control of church property by lay members, the vestry of a Protestant Episcopal Church, representing as it does the laity, may dispose of church property under ecclesiastical rules in the interests of the church, unless it attempts to violate a condition subject to which the property was granted, or money to purchase and build it was contributed.</p> <p>' Church law — Conditional gift to church — Bemo'val of church building.</p> <p>Where money is contributed to a church corporation upon condition that it shall be expended in the construction of a building as a memorial to certain persons designated, the law will assume that both corporation and contributors made the condition, subject to the law of the church, that if the congregation became depleted in numbers and substance by reason of death and removals, or shifting of population, the particular church building might be disposed of, and all the associations connected with it should, as nearly as possible, be transferred to a successor, wisely located in a new field.</p> <p>A church was erected merely as a place of worship, by subscriptions, contemplating that it should be a memorial to two deceased bishops, and two memorial windows were built in the church in pursuance thereof. Held, that equity will not enjoin the destruction of the church by the vestrymen, where it is shown that it is their intention to remove the windows, and place them in a new church to be built at another place.</p> <p>Constitutional law — Church law — Decoration of house of worship.</p> <p>It is one of the natural and indefeasible rights guaranteed by the constitution that every one shall have the right to worship according to the dictates of his own conscience. If the pious persons of a particular de-. ' nomination choose, as an incident of their house of worship, to so construct or decorate it as to continually call to mind deceased persons noted for piety or devotion, it in no way transgresses their franchises, and the courts will not interfere with such action.</p>

<p>Will — Residuary clause — Construction of will.</p> <p>Testator directed as follows: “It is my will and I do order that John Mills unto his own use the sum of one thousand dollars out of the estate, and L give and bequeath until John Mills a bead and cover for the same, and 1 give and bequeath unto my so Cíilled son, Titos. H. Lloyd, two hundred dollars, and I give and bequeath unto Bethesda Church one thousand dollars for the use of the fence aud graves of Thomas Lloyds and Eoaanak and Richard II. Lloyd, aud the remainder of the interest of the remainder to remain in the property until the executor can appoint a committee to invest the same in safe hands, aud the yearly interest, or part of it, for the use of the church, aud the remainder of the money, if there should be left, for the repairs of the grave yard and church.” Held, (1) that the church was intended to have the residue of the estate; (2) that upon a deficiency of the whole estate to pay the three legacies, all three of the legacies should abate proportionately.</p>

<p>Appeal, No. 231, Jan. T., 1897, by plaintiff, from order of C. P. Monroe Co., Feb. T., 1897, No. 8, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit by an assignee to recover the surrendered value of a policy of life insurance against an insurance company.</p> <p>The statement of claim set forth the assignment of the policy, the collateral agreement and notice, as follows :</p> <p>COPY OE ASSIGNMENT.</p> <p>“For one dollar, to me in hand paid, and for other valuable considerations (the receipt of which is hereby acknowledged), I hereby assign, transfer and set over to the ministers, elders and deacons of the Walpack Reformed Church Congregation of Sussex Co., N. J., all my right, title and interest in this policy, No. 284,400 A, issued by The Mutual Life Insurance Company of New York, and for the consideration above expressed I do also, for myself, my executors and administrators, guarantee the validity and sufficiency of the aforegoing assignment to the above named assignee, its successors and assigns, and their title to the said policy will forever warrant and defend.</p> <p>“ Dated in Stroudsburg, Monroe Co., Pa., this seventh day of September, 1894.</p> <p>“In presence of us, the N words ‘executors, administrators ’ erased before y Catharine Dusenberry.</p> <p>signing.</p> <p>“ C. B. Staples.</p> <p> J </p> <p>and by Edwin A. Dusenberry Sept. 19,</p> <p>1894, in my presence.</p> <p>“ C. B. Staples. Edwin A. Dusenberry.”</p> <p>COPY OE COLLATERAL AGREEMENT.</p> <p>“Whereas Edwin A. Dusenberry of Stroud township, Monroe county, Pennsylvania, is indebted to the ministers, elders and deacons of the Walpack Reformed Church Congregation of Sussex county, New Jersey, in the sum of two thousand dollars with interest from xlpril 1, 1894, for moneys collected by Mm as treasurer of said congregation, and for which, in order to secure the payment of the same, he has this day executed and delivered to said congregation a judgment note in the sum of two thousand dollars with interest from April 1, 1894, at the rate of five per cent, per annum.</p> <p>“And whereas, in order further to secure the payment of said money, Catharine Dusenberry, the wife of Edwin A. Dusenberry, has this day assigned and transferred to said congregation a life insurance policy issued by the Mutual Life Insurance Company of-New York on July 1,1886, in the sum of six thousand dollars, No. 284,400 A, on the life of Edwin A. Dusenberry ; payment to be made in case of his death, to said Catharine Dusenberry, his wife.</p> <p>“Now therefore know all men by these presents, that it is hereby agreed by the said congregation, through its attorney, Charles B. Staples, that upon the payment of said indebtedness of two thousand dollars and all interest the said congregation will reassign to said Catharine Dusenberry the said policy of life insurance; the said congregation reserving the right and privilege of at any time surrendering said policy and collecting' whatever moneys may be payable by said Life Insurance Company upon said surrender, after the said congregation shall have given the said Catharine Dusenberry ninety days’ notice of its intention so to surrender said policy and a demand made upon her to pay the amount of said indebtedness and interest and take a reassignment of said policy.</p> <p>“C. B. Staples,</p> <p>Attorney for the mmisters, elders and deacons of the Walpack Reformed Church Congregation of Sussex Co., N. J.”</p> <p>COPT OP NOTICE.</p> <p>“ Catharine Dusenberry,</p> <p>“Dear Madam: You are hereby notified that the ministers, elders and deacons of the Walpack Reformed Church Congregation of Sussex count}1-, New Jersey, intend to surrender the policy of life insurance, issued by the Mutual Life Insurance Company of New York, No. 284,400 A, on life of Edwin A. Dusenberry, unless tliere is paid to it the amount of a judgment note given by Edwin A. Dusenberry to it for the sum of two thousand dollars and interest thereon from April 1,1894, at the rate of five per cent, per annum.</p> <p>“The said ministers, elders and deacons of the Walpack Reformed Church Congregation of Sussex county, N. J., therefore demand from you the payment of the said sum of two thousand dollars and interest from April 1,1894, within ninety days from this date.</p> <p>“ C. B. Staples,</p> <p>Attorney for the Ministers,</p> <p>“ Stroudsburg, Pa., Elders and Deacons of the</p> <p>“Aug. 5, 1895. Walpack Reformed Church Congregation of Sussex Co., New Jersey.</p> <p>Catharine Dusenberry having intervened as a party defendant filed the following affidavit of defense:</p> <p>“ Catharine Dusenberry the above named party defendant by leave and order of court, in the above case, being duly sworn, according to law, deposes and says that she has a just, true, full and legal defense to the whole of the plaintiff’s claim of the following nature and character, to wit:</p> <p>“ It is true, as contained in the plaintiff’s statement, that a policy of life insurance — No. 284,400 A — was issued by the defendant company, the Mutual Life Insurance Company of New York, upon the life of Edwin A. Dusenberry, and that in the said xjolicy the said defendant company, agreed to pay to the affiant, the wife of the said insured, at the death of her said husband, the sum of #6,000, in consideration of the payment to the said company of the annual premiums provided for in the said policy, but the date of the said policy is not correctly given in the plaintiff’s statement, said policy being dated July 1, A. D. 1886, and not on July 1, A. D. 1896, but it is not true, as insinuated in said statement, that the value of said policy if the stated annual premiums had been regularly paid, would have yielded to the affiant, as beneficiary, at the death of the insured, only #6,000.</p> <p>“ While it is true that the said policy stipulated for the surrender of it, at the option of the insured, to the insurer at the end of ten years from the date of its issue, which occurred on July 1, 1896, and the full reserve value.of it might then have been received, it is denied that the said policy at the end of the said ten year period was worth no more than $1,667.64, or that the above named use plaintiff, also styling itself the assignee of the insured and beneficiary, then had the right to surrender the said policy of insurance and to receive the surrender value of it, or that it had the right to surrender the same at any time since. It is also denied that the plaintiff has exhibited a full and correct copy of the contract of insurance.</p> <p>“While it is also true that the affiant on or about September 7, 1894, signed a paper which she understood to relate to the said policy of life insurance, and was in some way to secure the plaintiff for her husband’s debt to it, she did not know, until the discovery of the fact of the proceedings in this case and by explanations to her of the import of it, that that paper implied an absolute assignment and transfer of the policy to the plaintiff ; nor did she understand the collateral agreement referred to in the plaintiff’s statement to imply a right in the plaintiff to surrender the said policy at any time during the lifetime of her said husband, but on the contrary asserts it. that her understanding of the whole agreement, written and verbal, related to time after the insured’s death, if she survived him.</p> <p>“ The service of the notice of August 5,1896, is admitted, but she denies every insinuation of a promise by her to pay to the plaintiff the sum of $2,000 or any other sum of money, or her indebtedness to it of any amount, or its right to demand payment from her.</p> <p>“ And in further denial of the right of the said, the ministers, elders and deacons of the Walpack Reformed Church Congregation of Sussex county, New Jersey, plaintiff, to bring and maintain the said suit, the affiant says that she has been informed, verily believes, and expects to be able to prove upon the trial of this cause, that the said plaintiff promised and agreed to pay the premiums on the said policy of life insurance as and when the same became payable, but has neglected to do so, by reason of which default, the said policy has lapsed and become inoperative as a provision for her in the case of the insured’s death, and was nonsurrenderable, for a cash consideration, at the time of the offer of surrender of it by the said plaintiff to the said defendant insurance company. That the said alleged assignment by her of the said policy was void, first, because it was without consideration, and second because it was not given for her own debt or about the conduct of her separate business, but was given as collateral security to insure the payment of her husband, Edwin A. Dusenberry’s debt to the plaintiff, she being at the time of the assignment a married woman, wife of the said Edwin A. Dusenberry.</p> <p>“ Sworn and subscribed' •</p> <p>before me this 6th day of February, 1897. v</p> <p>“Wm. F. Decker, J “ Prothonotary.” J</p> <p>Catharine Dusenberry.</p> <p>The court discharged a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 5, Jan. T., 1898, by defendant, from order of C. P. Northampton Co., July T., 1897, No. 45, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Scire facias to revive judgment. Before Schuyler, P. J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The plaintiff’s statement averred that “ the said William E. Lilly has paid no part of said principal nor any interest, neither to the said Joseph Hummel in his lifetime, nor to the said administrator, nor to any other person for the said Joseph Hummel or the said administrator.”</p> <p>The defendant filed an amended affidavit of defense, styled an “ answer ” in the record, in which he averred as follows:</p> <p>“ The judgment which plaintiff seeks to revive, he states, was dated May 31, 1876, and was entered in the court of common pleas of said county, on June 1,1876, as of No. 474, April term, 1876. There has now elapsed more than twenty years since the date of said alleged judgment and since the aforesaid entry of the judgment. He is advised and believes that there has now arisen legal presumption of payment of said judgment; and defendant avers that he has not made a new promise nor paid anything on account of said judgment.”</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 24, Oct. T., 1898, by defendant, from judgment of O. P. Jefferson Co., Sept. T., 1895, No. 284, on verdict for plaintiff.</p> <p>Assumpsit to recover forservices rendered. Before Reed, P. J.</p> <p>The facts appear by the charge of the court which was as follows:</p> <p>[The apparent indisposition of the parties to this action to define or state the substantial issues between them has made it rather difficult for us to ascertain just what they were contending about, and during much of the progress of the trial it seemed to us that we had a case without an issue. We are not certain now that we fully understand the various contentions of the parties, but will state them to you as we believe them to be, from the pleadings and evidence in the cause. The plaintiff claims a verdict at your hands for the sum of $1,493.76, with interest from June 10,1895, to September 10, 1897, making a total of $1,695.17. His claim, as set out in the pleadings, shows a balance due him of $2,808.18, with interest from June 10, 1895. This amount is made up of three several items, namely: 1. Services rendered the defendant, in the management of Iris meat business conducted at Horatio, for a period of fifty-six months and sixteen days, at $60.00 per month, $3,392.50. This seems to bo an excess charge of fifty cents, according to the time and amount per month claimed as wages. The time claimed in plaintiff’s statement, as now presented, is for fifty-six months and ten days, making the claim for services, $3,380. The second item is for cash and other things furnished by him to the defendant, $1,267.87. The defendant admits the correctness of this last mentioned sum, and states it to be $1,279.70, instead of the amount claimed by the plaintiff. The third item is for use of his horse, harness and buggy in the defendant’s business, including a small item of feed furnished by him, amounting to $12.00, the total sum being $896, making his total claim, according to the statement of demand filed in the case, $5,556.37, against which he admits a credit of $2,748.19, leaving a balance due him of $2,808.18, as stated, or if his statement is corrected by adding the difference between the second item mentioned, and the amount as stated and admitted by defendant, but deducting the apparent error of fifty cents in the first item, it would make the balance claimed by him, $2,819.51, with interest from June 10, 1895. There is an item of $842.08, being an account run by the plaintiff at the Eureka Supply Company store, and paid by defendant, and for which no credit has been allowed defendant by plaintiff, in the account as stated by him. Under the evidence, we think there can be no serious controversy about defendant being entitled to a credit for the amount so paid, and deducting this from' the balance claimed by the plaintiff, would leave the actual balance, as we believe it should be stated, $1,977.43, with interest thereon from June 10,1895. The controverted items in that balance, as we understand, are: 1. The plaintiff’s claim for wages at $60.00 per month. The defendant claims that plaintiff was only in his employ about fifty-five months, and that the wages were to be $50.00 per month. This would make a difference of one month and sixteen days in the time, and of $10.00 per month in the monthly wages to be paid, or in dollars and cents, it would make a difference of $642, and accordingly as you find on this disputed question, the balance claimed by plaintiff, as stated, would or would not be affected thereby. If you find that plaintiff was employed for the length of time claimed by him, and that he was entitled to wages, during that time, the amount claimed, $60.00 per month, then the balance as stated would not be affected, but if you find that the time and amount of wages were as claimed by defendant, then that balance would have to be reduced $642, which would bring it from $1,977.43 down to $1,335.43. In reference to this-controversy, we need only say that plaintiff contends his contract of hiring was that the defendant was to pay him all he could afford to pay, that the business was profitable, netting defendant from $140 to $250 per month, that his services in the business were reasonably worth $60.00 per month, and that in view of the profits made or realized by defendant, he could well afford to pay him that amount.’ The defendant, replying to' tins contention, denies that any such contract was made, and furthermore, that if it was, he could not afford to pay plaintiff $60.00 per month, in view of what he had invested in the business and the amount made out of it. You heard the testimony of the witnesses called for and against this contention of plaintiff, and we will not attempt to restate it lest we might state it inaccurately, or omit to state it fully. You will recall it for yourselves, and determine this controversy according to the best of your judgment as to which of these parties, under the evidence, has the better right to your verdict on this question. The next controverted item is in reference to the use of the plaintiff’s rig in the- defendant’s business, and what plaintiff should receive, if anything, for the use of the same. The plaintiff includes in his statement of -demand filed, as we have already stated, a claim for this amounting to $896. In arriving at this sum, he claims that his rig was in use ninety-six days each year the first two years, sixty-four days the third year, ninety-six days the fourth year, and ninety days the fifth year, making in all four hundred and forty-two days in the five years, which at $2.00 per day, would amount to $884, then he charges $12.00 for feed furnished his horse, forty-eight days at twenty-five cents per day, making the claim of $896 for use of rig. If the plaintiff is entitled to recover for this item in his statement, its correctness as to the amount depends upon the evidence as to the number of days the plaintiff’s rig was in use. He testifies that it was used from seventy-five to one hundred days each year. He kept no accurate account, and he is, therefore, compelled to make an estimate as to the number of days the rig was in use. I f, under such circumstances, the jury should take the less number of days given by the plaintiff, namely, seventy-five days each year, he could not have very much ground for complaint. When a man makes a charge and seeks to recover, lie should be able to state it accurately so that there would be no guesswork about it. If the rig was in use seventy-five days, then the total number of days would be three hundred and seventy-five, which at $2.00 per day would be $750, adding the $12.00 for feed, would make this item of claim $762, instead of $896-, as set out in his statement of demand. Again, the plaintiff makes no allowance or deduction from this item of claim for the feed and care of his horse during the time stated. Pie testified that the rig was worth $2.00 per day without feed; also that his horse was fed at the expense of defendant. We do not recall whether the horse was fed by defendant during the entire time plaintiff was in his employ or not. You will recollect how that was. You will also recollect what the witnesses said as to what it was worth per month to keep a horse. The price as stated, we believe, ranged from $8.00 to $15.00 per month; that would be from $96.00 to $180 per year, and four years it would be from $884 to $720 in the aggregate. Hence you will see that the plaintiff’s claim of $896 for use of rig, in any event, is subject to a greater or less reduction according as you may determine the number of days it was in use, and what the keep of the horse would be worth. Again, whether he is entitled to recover anything depends upon what you may find with reference to whether, under all tlie evidence in the case, he is entitled to recover for the use of his rig. If the plaintiff had charge of defendant’s business, with authority to employ hands, buy cattle and do whatever was necessary in the conduct of that business, and it was necessary to have a rig in the conduct of the business, and the plaintiff, acting in good faith, furnished such rig, then he would be entitled to recover for its use whatever you may find from the evidence that it was reasonably worth. If the defendant, however, had horses there to be used in the business, thereby removing any necessity for the use of the plaintiff’s rig, and the plaintiff, notwithstanding, made use of his own rig, then plaintiff could not recover for such use of his rig. You heard the testimony bearing on this controverted question in the case, and we leave you to apply it under the instruction just given. If you find for defendant on this question, then the entire item of $896 should be deducted from tlie balance of $1,977.43, to which we called your attention. If you find that plaintiff is entitled to recover for use of Iris rig, then whatever difference there is between the amount you may find he is entitled to recover and the sum claimed, namely, $896, should, in any event, be deducted from the balance stated, and there should also be deducted from that balance the difference in wages, $642, if you find for the defendant on that question. This difference in wages and the claim for use of rig aggregate $1,538, which if deducted from the balance of $1,977.43 claimed by plaintiff, would still leave a balance of $439.43 due plaintiff. But the defendant says that he is entitled to about $800 for keeping plaintiff’s horse, and therefore that plaintiff is indebted to him between three and four hundred dollars.</p> <p>Now, gentlemen, this is a somewhat mixed-up matter, and wé do not know whether we have made it very clear to you or not. There is very little law in the case; it is principally one of fact, and we.cannot aid you very much in reaching a conclusion, but will repeat that the controverted questions are :</p> <p>' 1. What was the contract about the payment of plaintiff’s wages, and what sum per month is he entitled to recover ? He being in defendant’s employ from fifty-four to fifty-six and one half months, according as you find the facts.</p> <p>2. Is the plaintiff entitled to recover for use of his rig ? If so, how much ?</p> <p>3. Is the defendant entitled to a credit for keeping plaintiff’s horse ? If so, how much ?</p> <p>Outside of these controverted questions, it is admitted that plaintiff furnished money and property to defendant to amount of $1,179.70. This should be added to his claim for wages and rig hire, if he is entitled to anything for the rig hire, in making up his total claim; then as against this there is an admitted credit of $2,748.19, and also payment of that store account $842.08, making the total credits, $3,590.27. Strictly speaking the $842.08 store account, is not admitted, but we think, under the evidence, there can be no controversy about it, and that it should be allowed as a credit to defendant.] [5]</p> <p>Defendant’s point and the answer thereto among others were as follows :</p> <p>5. The plaintiff’s evidence failing to show what the profits of the business .were during the time for which the services are claimed, at the Horatio shop, there is no evidence to support the plaintiff’s theory of this case. Answer: Refused. [6]</p> <p>Verdict and judgment for plaintiff for $1,185.85. Defendant appealed.</p> <p>Errors assigned among others were (5, 6) above instructions, quoting them.</p>

<p>Appeal, No. 236, Jan. T., 1897, by plaintiffs, from decree of C. P. Schuylkill Co.. July T., 1892, No. 3, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The bill averred as follows:</p> <p>1. The borough of Port Carbon, one of said complainants, is a .municipal corporation in tbe said county of Schuylkill, tlie other complainants being residents and property owners in said borough. From time immemorial there bas flowed through the said borough of Port Carbon a stream known as the Schuylkill river, into which stream flows another called the Mill creek, forming a junction with it near the property of Christian Fricke. This latter stream flows from St. Clair in a southerly direction, in an irregular course through tbe center of tbe borough of Port Carbon to tbe junction aforesaid, forming tbe natural drainage channel of tbe said borough.</p> <p>2. The defendants engaged in the business of mining, preparing, washing or cleaning of anthracite coal, as follows: John F. Quinn, W. R. Tyler, McTurk & Company, at New Castle; and tbe Mill Creek Coal Company, a corporation, at Now Boston; all upon tbe banks of the Mill creek or its tributaries. Each and all of them for some time past have, and at the present time are, depositing in said creek large quantities of coal dirt and other refuse from the said mines, collieries and washories owned and operated by them, and not only filling up tbe channel or course of said streams, but are diverting it from its proper channel, impeding the proper flow of the streams, depositing large quantities of culm, muck and dirt in the bed and upon and over the legitimate banks of the said streams, filling up the drains and sewer channels leading into the said creek or river course, to the great damage and injury, not only to the property of the complainants, but as well to the health of the inhabitants of said borough.</p> <p>3. Prior to the depositing of culm and dirt into the said streams by the defendants, the creek bed in each of said streams was low enough to receive the drainage of the inhabitants of the said borough, and the flow and current of the creek swift enough to carry the same away, but by reason of the acts of the defendants above named, the condition of such creek or river channels is such that the drain mouths are blocked up, the drainage is dammed back into the cellars of the inhabitants, and great damage is done to the property of the complainants, and their health, and the health of all the inhabitants of said borough is seriously threatened thereby.</p> <p>4. All of the said defendants have either at their collieries, or at a washery connected with their collieries — a system of cleaning coal, whereby large quantities of water are passed over the coal and thence heavily charged with coal dirt and sediment, the said water is carried either directly into the creek channel, or first into settling tanks. By reason of the large quantities of dirt and water, the main mass of this refuse or coal dirt gets either directly or indirectly into the creek channel, causing the said creek channel to be choked and causing the damage above set forth. Defendants have been notified to desist from emptying their said dirt, refuse and water, etc., into the said creeks and streams, but in violation of the said notice they persist in so doing to the great and irreparable damage of the complainants as aforesaid.</p> <p>The master, E. D. Smith, Esq., found the facts to be as follows :</p> <p>1. The borough of Port Carbon is a municipality in the county of Schuylkill, and Christian Ericke, the complainant, is a resident of said borough.</p> <p>2. Mill creek forms a part of thé natural drainage of the borough of Port Carbon.</p> <p>3. John F. Quinn, one of the defendants, has deposited in the Mill creek at his washery at Darkwater, New Castle township, Schuylkill county, large quantities of coal dirt, culm, muck and refuse from the washing of coal in' said Mill creek, and said acts were continued by Wyms & Eagan, successors and assignees of the said John F. Quinn, at said washery. William R. McTurk, W. R. Tyler and Richard White, trading as Tyler, McTurk & Company, have deposited in the Mill creek at their washery at Darkwater, New Castle township, Schuylkill county, Penna., large quanties of coal dirt, culm, muck and refuse of coal dirt washed at said washery in the Mill creek; and James Wyms has continued said acts, claiming under said Tyler, McTurk & Company; and the said Tyler, McTurk & Company have deposited large quantities of coal dirt and refuse from the washing of coal from their colliery, known as Roberts colliery, in New Castle township, Schuylkill county, Penna., in a tributary of the said Mill creek, and thence into said Mill creek; and the said acts were continued by A. S. Van Wiekle, claiming under Tyler, McTurk & Company; and the said Wyms & Eagan and James Wyms and A. S. Van Wiekle, claiming under their respective grantors, had knowledge of this proceeding at the time of their respective purchases.</p> <p>4. The Mill Creek Coal Company at their colliery, known as The New Boston Colliery, on said Mill creek between May, 1892, and October 12,1893, placed large quantities of coal dirt, culm, muck and the refuse from the washing of coal in the said Mill creek.</p> <p>5. The joint acts of the said John F. Quinn, and Wyms & Eagan, Tyler, McTurk & Company and James Wyms and A. S. Van Wiekle, and the Mill Creek Coal Company, by placing culm, muck and coal dirt in said Mill creek, have polluted the waters of said creek and filled the channel of said creek and thereby damaged the property of the said Christian Fricke and the borough of Port Carbon, and threatened the health of the inhabitants of the said borough.</p> <p>The master recommended the following decree:</p> <p>And now , 1896, it is hereby ordered, adjudged and decreed as follows, to wit:</p> <p>1. That the said John F. Quinn, defendant, his workmen, agents, and employees and Wyms & Eagan, successors and assigns of the said John F. Quinn, their workmen, agents and employees, be perpetually restrained from discharging into Mill creek or from permitting to escape into said Mill creek from the coal washery, owned and operated by him, the said John F. Quinn, or his successors and assigns, at Darkwater, in New Castle township, in the county of Schuylkill, any coal dirt, culm or muck, water or other refuse from the washing of coal dirt, and from polluting the waters of said Mill'creek, as set forth in complainants’ bill of complaint.</p> <p>2. That the said William R. McTurk, W. R. Tyler and Richard White, trading as Tyler, McTurk & Company, defendants, their workmen, agents and employees, and James Wyms, successor and assigns of the said Tyler, McTurk & Company, his workmen, agents and employees, be perpetually restrained from discharging into Mill creek or from permitting to escape into said Mill creek, from the coal washery, owned and operated by them, the said Tyler, McTurk & Company, or their successors and assigns, at Darkwater, in New Castle township, in the county of Schuylkill, any coal dirt, culm or muck, water or other refuse from the washing of coal dirt, and from polluting the waters of said Mill creek, as set forth in the complainants’ bill of complaint. And further, that the said Tyler, McTurk & Company, defendants, their workmen, agents and employees, and A. S. Van Wickle, successor and assigns of the said Tyler, McTurk & Coinpany, his workmen, agents and employees, be perpetually restrained from discharging into the Mill creek or from permitting to escape, directly or by the tributary of said Mill creek, from their colliery known as the Roberts colliery, owned and operated by them, the said Tyler, McTurk & Company, or their successors and assigns, in New Castle township, in the county of ‘Schuylkill, any coal dirt, culm or muck, water or other refuse from the washing of coal, and from polluting the waters of said Mill creek, as set forth in complainants’ bill of complaint.</p> <p>3. That as to the Mill Creek Coal Company, the complainants’ bill be dismissed.</p> <p>4. That the cost of this proceeding, including the examiner’s and master’s fees, be paid by the defendants, and if not paid by the defendants within twenty days from the filing of this report, that the same be paid by the complainants with right to collect the amount from the defendants, jointly or severally.</p> <p>The court in an opinion by Endlich, J., of the twenty-third judicial district, specially presiding, dismissed the bill for the reason stated in the opinion of the Supreme Court.</p> <p>After the final decree the plaintiff moved to amend the bill so as to make it conform to the facts as found by the master. The court refused to allow the amendment.</p> <p>Errors assigned among others were (1) refusal to allow amendment ; (8) in dismissing the bill.</p>

<p>Appeal, No. 21, Jan. T., 1898,’ by plaintiff, from decree of C. P. Lebanon Countjq No. 7, Equity Docket, 1898, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>McPherson, J., of the 12th judicial district, specially presiding, found the facts to be as follows:</p> <p>1. Since April, 1881, the plaintiff has been, and is now, the owner in fee of a tract of land in South Lebanon township, lying along the south, side of the Berks and Dauphin turnpike, a toll road that has been in existence for many years. The land fronts upon the turnpike about 650 feet, and contains eighteen acres. Upon this tract a dwelling house, a barn and other outbuildings are situated, and the tract and dwelling are occupied by the plaintiff and his family as a farm and homestead. The dwelling is fourteen feet from the southern line of the turnpike, and is separated from the highway by a fence. The plaintiff asserts that the line of his land embraces twenty-five feet of the road, and for the purposes of this case it will be assumed that he owns the fee to that point, subject to the turnpike company’s right of way. The land is rural, but lies in a thickly settled region.</p> <p>2. In February, 1892, the defendant company was incorporated under the Street Railway Act of May 14,1889, P. L. 211. Its projected line of road is described in its articles of association as beginning at Eighth and Walnut streets in the city of Lebanon, thence over certain streets in the city until the township of North Lebanon is reached at Lehman street, thence through the township along Lehman street (at this point, an unpaved township road) to the intersection of that street or road with the Berks and Dauphin turnpike at Avon, thence along the turnpike to Railroad street in the village of Myerstown, entering the townships of South Lebanon and Jackson on the way, and thence along Railroad street to the Philadelphia and Reading railroad. No part of the road has been built, however, except the section beginning at the village of Avon and ending at Railroad street in the village of Myerstown in the township of Jackson. So far as appears, permission was never asked from the city councils to build within the city, nor from the supervisors of North Lebanon township for permission to build along Lehman street. The whole of the line constructed is upon the turnpike, and the damages due to the turnpike company were assessed by proceedings in court and afterwards paid. The north rail of the track from Avon eastwardly for about a 1,000 feet, probably lies within the township of North Lebanon, and was laid after permission so to do had been refused by one of the supervisors. In Jackson township the supervisors agreed to the construction as far as Railroad street, but refused permission to build on that street. In South Lebanon township the supervisors consented that the road should be built; and after passing the 1,000 feet above referred to, the whole of defendant’s road is in South Lebanon township until a point is reached beyond the plaintiff’s land.</p> <p>3. The work of location and construction was begun in the summer of 1893, but before the laborers arrived at the plaintiff’s land the present bill in equity was filed. It averred that the railway, if constructed in accordance with the location, would be a source of inconvenience and danger to the plaintiff and his family in passing between' the turnpike and his buildings on foot or with a vehicle; that he would also be deprived of safe and easy access to his land at other points along its front; that in going to and coming from the land and the buildings his family and servants would be endangered by the operation of the railway; that he would for these reasons suffer permanent and irreparable injury. It further averred that the defendant had not paid or offered to pay or secure any damages for the injury about to be done to his property, and declared that by reason of this omission to pay or give security the construction and operation of the railway would be without authority of law. It also alleged that the street railway act was unconstitutional as to points outside the limits of cities and boroughs, because it made no provision for securing or paying damages to adjoining landowners and provided no method by which compensation for injury to their property might be ascertained and recovered. Another averment was that the railway would be constructed without warrant of law because the authorities of North Lebanon township had not consented to its construction and operation in that township. The prayers of the bill were; “ First, that the defendant may be restrained by injunction from constructing its railway and from operating any car by electricity or otherwise on, upon and over the line of-the said railway in front of the said land of the plaintiff; second, that the defendant be commanded, directed and enjoined to at once abate, and remove any portion of the said railway, its embankment, ties, rails and fittings, poles and wires where the same had been constructed and axe located and in position on the said Berks and Dauphin turnpike road, in the said township of South Lebanon, in front of and along the land of the plaintiff as complained of, and to leave the turnpike road in as good condition, repair and shape, (and) the plaintiff’s facilities for coming and going to and from his land by way of the said turnpike road at the said place, as they were before the said railway was constructed.”</p> <p>The bill was served upon the defendant on June 21, 1893, but no application was made for a preliminary injunction.</p> <p>After the filing and service of the bill the defendant proceeded with the construction of the railway, and laid the track upon the turnpike in front' of plaintiff’s land and dwelling. The road was in full operation when the defendant filed its answer on October 6,1893. The plaintiff did not consent to the construction, but by this proceeding in equity has always been resisting the defendant’s entry and the building and operation and construction of its road. The track is laid about seven feet from the southern boundary of the turnpike and occupies what was known and used as a “ summer road,” being a part of the highway that is not macadamized.</p> <p>4. In building the railway the defendant used proper care and skill to conform at this point to the grade of the turnpike so far as it was reasonably practicable, and along plaintiff’s land there has been no serious, and scarcely an injurious, change in the grade. At the entrance to the house a planked crossing has been made and is maintained by the defendant in order to facilitate passage over the track. The rails are of the J pattern, but the space between them and immediately outside has been filled up almost to the level of the rail, so that driving directly across them at the entrance to a field is accompanied with but slight inconvenience. Access to the house and fields has been interfered with very slightly, if at all. There is some risk in coming out of the house or lane, either on foot or by vehicle, because a car may be approaching, and it is therefore necessary for the pedestrian or the driver to take precaution by looking up and down the road in order to see whether a car is near at hand. At a point immediately outside of the gate there is no difficulty in seeing for about 1,000 feet in either direction. The existence of the track so near the fence causes occasional inconvenience by making it difficult and unsafe to tie horses in front of the house or elsewhere along the land, or to drive along the fence. Horses must be driven into the yard or the lane, or taken across the turnpike and tied upon the other side. It may be also that the construction of the railway has somewhat injured the plaintiff’s land by obstructing the natural surface drainage, so that pools of water now form more easily after a heavy rain and run off with greater slowness. Concerning this, however, we make no specific finding, but assume for the present purpose that to some extent the injury exists.</p> <p>Whether or not the tract has been increased in value by the presence of the railway need not now be definitely found. Facility of access to the city of Lebanon two or three miles west, and to the village of Myerstown about four miles east, has certainly been much improved, but whether the selling price of the land has been influenced thereby is a matter we do not now consider.</p> <p>5. The defendant’s railway connects at Avon with another street railway leading directly to the city of Lebanon, and there is thus a continuous route (with a break of a few feet) between Lebanon and Myerstown. The community through which the railway passes is thickly settled and the travel is considerable; cars run twice in every hour between Avon and Myerstown, and the convenience of the public is largely promoted by the existence of this means of travel. The service has been continuously maintained since the road was built, and a large section of the community has grown accustomed to its convenience and comfort. It has become an important means of transportation for the public along its line, and for the” towns which it connects. The interruption of its traffic would inflict great inconvenience upon 'the public and a serious loss upon the company.</p> <p>The amount of damage done to the plaintiff by the construction.and operation of the railway need not be determined with any attempt at precision. It is enough to say that the evidence laid before the court shows plainly that whatever injury has been done is not considerable in amount and may readily be compensated in damages.</p> <p>6. The plaintiff has not been guilty of neglect in the prosecution of this case. The answer was filed in October, 1893, and practically the cause was then at issue; but neither party made an effort to bring on a hearing until March, 1896, when the plaintiff moved the court to fix a time for the -hearing. After-wards the bill Avas dismissed for want of prosecution, but was reinstated by the Superior Court: Becker v. Railway Co., 4 Pa. Superior Ct. 872. Other facts upon this point appear in the report of that case, and no fact of omission was proved at the present hearing to modify in any degree the opinion then pronounced. If the plaintiff was not in fault when the bill was dismissed, he has done nothing since to change his position for the worse.</p> <p>CONCLUSIONS OB’ LAW.</p> <p>When the defendant’s railway was projected and built, the respective rights of a railway company, the abutting landowner and the local authorities over the roads in a township were still undetermined. There was much uncertainty upon the subject, and of necessity many steps were taken in the dark. Between one and two years afterward however the decision in Penna. R. R. v. Montgomery Co. Pass. Ry., 167 Pa. 62, was announced, followed by several other cases in the same volume and three or four decisions since that time. Looking backward therefore with the light thus afforded, we can see clearly that the defendant’s railway was constructed in violation of the plaintiff’s legal right. There was no authority to build the section actually laid down, because only a part of the whole projected line was to be built, and because some of the local authorities had refused consent to the construction. Assuming that the consent of the landowners must be obtained, whether the land abuts upon a turnpike or upon an ordinary road, the further objection existed that the plaintiff’s consent had not been obtained. If the rules announced by the Supreme Count in the cases referred to had been known when the plaintiff’s bill was filed, ho could have had a preventive injunction for the asking, and the railway could not have been built. But during the uncertainty and con fusion incident to the entry of a new subject into the domain of legal principle and procedure, the railway was laid down; and this fact with the other facts in proof has so changed the situation that the plaintiff’s demand for a mandatory injunction can only be fairly considered in the light of the circumstances now existing. It is not necessary to discuss them, however, for a similar situation has been before the Supreme Court since the bill was filed and the proper rule to be applied in like cases has been already laid down: Heilman & Snavely v. Railway Co., 175 Pa. 200. The important facts in the controversy now before the court are practically identical with those in the case just cited. There, as here, the bill was filed before the defendant had begun to construct its road upon the turnpike in front of the plaintiff’s land; and there, as here, the plaintiffs did not ask 'compensation but simply prayed that the construction might be enjoined because it was unlawful. They insisted strenuously upon the defendant’s want of authority, giving reasons similar to some of those now urged, and they never abandoned this ground.' Their bill contained an alternative prayer, that if the court should find that the company had a right to build its railway, an injunction should restrain it from building until compensation was secured; but as the court below and the Supreme Court agreed that the company had no right to build, it is obvious that the second prayer.was never reached for consideration. Indeed it was not raised in the hearing of the case, for the plaintiff offered no testimony on this subject and confined himself solely to the question of the defendant’s legal right. In this respect the case of Henry Heilman v. Railway Co., 175 Pa. 188, differs from the case of Heilman & Snavely, for Henry Heilman began by asking for damages and only after a considerable time so amended his bill as to bring to the front the legal questions raised in the first instance by Heilman and Snavely. These two cases were decided on appeal at the same time, and in each decision the action of the court below in refusing a mandatory injunction was approved.</p> <p>Conceiving that the cases had been confused by the Supreme Court, Heilman and Snavely made a motion for a reargument and supported it with an elaborate and forcible brief, pointing out the difference between the cases in unmistakable terms and setting forth lucidly the grounds on which they insisted that the defendant must take up its rails in front of their land. The argument thus addressed to the Supreme Court is precisely the argument now addressed to us upon almost‘exactly the same facts, and it is superfluous to add that the answer to be given by this court must be the answer of the appellate tribunal. This will be found in 180 Pa. at page 627, where the reargument was refused, Mr. Justice Williams saying, inter alia: “ This company appears to have disregarded the rights of municipalities and of private individuals, and to have forgotten or misconceived its own character and the limitations upon its powers, but it bad completed its track along its entire line, a distance of six miles or more, as early as December, 1891. It has been in continuous operation ever since. It has become an important means of transportation for the public along its line, and for the towns which it connects. The interruption of its traffic would inflict great inconvenience upon the public and great loss upon it. The general situation must now be considered, and we must take into account the rights of the plaintiff and the nature and the extent of the injury of which he complains, but wo must not overlook the interest of the general public, or the consequences to the defendant company of the decree asked for. Equity does not enforce a strict legal right, regardless of consequences. It is said that an injunction is of grace. This does not mean that a chancellor may grant or refuse an injunction as he pleases, but that his action is controlled by considerations of conscience. He does that which in good conscience he ought to do. The question in each case must depend upon the circumstances out of which it grows, and requires the exercise of judgment in determining the equities involved. We think the case was determined in this manner in the court below. We affirm the decree, because we are of the opinion that it was right under all the circumstances of the case.”</p> <p>This language is certainly clear and easy to be understood, but the plaintiffs were still not convinced that their position was apprehended by the court and accordingly presented a second petition for a reargument. In this the argument of the first petition was repeated in briefer form, and the plaintiffs again demanded as a matter of strict legal right that defendant’s rails must come up in front of their land. This petition also after several months’ deliberation was refused, the order being made in October of this year, and the Supreme Court’s position in such circumstances must therefore be regarded as definitely and maturely taken.</p> <p>So far as a court of first instance is concerned, the rule thus laid down must be followed in like cases. It is therefore decisive of the present controversy, and requires us to refuse the plaintiff’s prayer for a mandatory injunction commanding the defendant to take up its rails in front of his land. But the bill need not be dismissed. If the plaintiff desires, to amend so as to ask for damages, the amendment 'will be permitted even at this stage of the proceeding and the dispute upon this point can then be determined either by the court or by an issue before a jury. The plaintiff may of course decline to amend; in that event the bill must be dismissed. If dismissed, however, it will be at the defendant’s costs, for the decree of dismissal will be based, not on the plaintiff’s want of legal right, nor of the defendant’s observance of legal right, but on regard for the public interest and convenience, and on this alone.</p> <p>The court entered the following decree :</p> <p>Accordingly, it is ordered that on or before December 20, . the plaintiff may asl£ leave to amend his bill in the particular just specified. Unless he makes such application, the prothon- • otary without further order will enter a decree that the plaintiff’s bill be dismissed, and that defendant pay the costs.</p> <p>December 21, 1897, plaintiff’s bill dismissed at cost of defendant, as per opinion filed, December 2, 1897.</p> <p>Error assigned among others was decree dismissing bill.</p>

<p>Appeal, No. 259, Jan. T., 1897, by plaintiffs, from judgmetit of C. P. Bradford Co., Feb. T., 1895, No. 218, on verdict for defendant.</p> <p>Trespass to recover damages for personal injuries. Before Dunham, P. J., of the 44th judicial district, specially presiding.</p> <p>At the trial it appeared that on September 6,1894, Martha Beardslee while riding in a wagon with her son was injured by the wagon going over an alleged dangerous and unguarded place in the road.</p> <p>When E. E. Yanvalkner, a witness called by plaintiff, was on the stand, he was shown on cross-examination, a photograph marked exhibit “ E,” and permitted, under objection and exception that it was not cross-examination, and that no proof had been given of the identity and accuracy of the photograph, to testify to the locality of the accident, as shown by the photograph. [1]</p> <p>The witness further testified:</p> <p>“ Q. Wherein does that photograph differ from the road on the day of the accident, if it does ? A. It differs considerably. Q. Now, state to the court and jury wherein it differs. A. Well, it differs in the width of it. Q. Well, anything else? A. Well, the road being straightened. There isn’t that curve there now that there was at that time. Q. Anything else ? ”</p> <p>Mr. Rockwell, of counsel, for plaintiffs: We ask what the purpose of this examination is?</p> <p>Mr. Maxwell, of counsel, for defendant: It is for the purpose of testing the witness’s knowledge as to the situation of the road.</p> <p>“ Q. Do you see anything else on that that differs from the •road at the time of the accident? A. Well, this don’t show the hill being as steep as it was, is another thing. It is a more gradual grade than it was at that time. Q. That shows the hill exactly as it is with the exception of the changes that were made there after the accident, by the road commissioners ? ” Mr. Wilson, of counsel, for plaintiffs: We object to this witness being permitted to use this paper or diagram marked exhibit “ A ” as a test to describe the road by where this accident happened, until there is some proof by some witness that this picture or exhibit has some show of the road as it existed at or about the time of the accident, and that it is not 'cross-examination.</p> <p>Objection overruled, exception and bill sealed. [2]</p> <p>Mr. Maxwell: “ Q. Do those photographs, exhibits ‘ A ’ and ‘ B,’ represent the situation as it existed at the time the photographs were taken upon the ground ? A. I think they do.” Mr. Rockwell: “ Q. They do not exhibit the whole of the hill, do they? You did not pretend to take the whole of that hill, did you, there, that day? A. Not in one picture, 210, sir. It would be a:i impossible thing to do. Q. Nor in two pictures ? A. No, sir, not the whole hill.”</p> <p>Mr. Maxwell: We now offer in evidence the photographs marked respectively exhibits “ A ” a2id “ B.”</p> <p>Mr. Wilson: We object to those photographs going to the jury 021 the ground that the evidence shows that they do not show or pretend to show the road as it existed at the time of the accident.</p> <p>By the Court: The evidence shows just what they do show and that will admit them. .</p> <p>Objection overruled, exception and bill sealed. [3]</p> <p>W. O. Hager, a witness for defendant, was asked this question, in chief:</p> <p>“ Q. What would you say the conduct of a person riding down this hill at the point where it was said that Beardslee met with the accident in September, 1894, behind a pair of colts, one three years old and one four years old, in a platform wagon, without any brake or locking, with twelve cheeses weighing thirty-three pounds each, including the boxes, and with thirty to thirty-five dozen eggs in the wagon and five persons, three grown and two small children, with a harness without any breeching on; what would you say as to the conduct of the person, who was familiar with the road, riding down there under these circumstances ? ”</p> <p>Mr. Rockwell: We object that the witness has not shown himself qualified; that ho does not pretend to know anything about this wagon, this team or this driver, and has not shown himself tobe an expert in business of horsemanship; the evidence is not rebutting, and is not evidence in this case for the reason that the jury must pass on this question.</p> <p>Objection overruled, exception and bill sealed.</p> <p>“ Q. Whatis your answer about coming down the hill? A. I should not consider it very safe under those circumstances.” [4]</p> <p>Similar questions were asked five other witnesses, and the rulings were the same. [5-9]</p> <p>The following question was asked a witness by defendant’s counsel:</p> <p>“ Q. What would you consider the conduct of a party who would ride in a platform wagon going down the Bailey hill road, with five persons in the wagon (three grown persons and two children), with twelve cheeses hi the same weighing thirty pounds each, exclusive of the boxes, and from thirty to thirty-five dozen eggs; hitched to two colts, one a three year old and one a four year old colt, one of the colts unshod, and using a harness without any breeching, or having any brake upon the wagon, and not locking the same, and he was familiar with the road on September 6, 1894?”</p> <p>Mr. Wilson: We object to the answer to this question as being irrelevant and not proper testimony, the evidence already showing that the person injured here was not the owner of the wagon or the team, and was nothing else but a passenger at a free ride, and had nothing to do with the driving, and no control over the teamster, nor any interest in the trip, except as an accommodation ride; and that the whole question is a question of fact for the jury and not for an expert, or a witness who is not an expert, and that this witness is not competent as an expert.</p> <p>By the CourtA person that rides with another, as we understand the law, is responsible for all patent and known defects that he knows of, or by reasonable diligence should know. It would be just as much an act of negligence for a person to get in and ride with another person who had an unsafe conveyance, and go over a place, as it would for the person who drove the conveyance, if she knew of it. Mrs. Beardslee in this ease has testified that she knew of the load that was .in the wagon and knew that the wagon had no brake upon it, and she knew or could have known by reasonable care that the harness had no breeching on, and we do not think that the court would be justified in ruling that a woman does not know anything about business, and is not responsible for her acts the same as a man. So far as that is concerned we will admit the evidence; but as to the competency of this witness, we have some doubt, as we do not think he has given sufficient knowledge of his being an expert teamster to permit him to testify upon that subject.</p> <p>Objection sustained.</p> <p>The plaintiffs took exception to the remarks of the court in sustaining their objection. Bill sealed for plaintiffs. [17]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned among others were (1-9) rulings on evidence, quoting the bill of exceptions; (17) remarks of the court while sustaining plaintiffs’ exceptions, quoting the language.</p>

<p>Appeal, No. 486, Jan. T., 1897, by defendant, from judgment of C. P. No. 4, Plrila. Co., June T., 1894, No. 282, on verdict for plaintiff.</p> <p>Feigned issue to determine the ownership of a fund raised by a sheriff’s sale of personal property. Before Willson, J.</p> <p>The evidence showed that in 1889 a business was started on Frankford avenue in the city of Philadelphia, in the name of A. (Anna) Kunz ; that the said Anna Kunz had commenced and carried on the business with money winch she had received from the settlement of her father’s estate; that in February, 1893, the business was changed to P. Kunz; that on May 11, 1894, the said P. Kunz confessed judgment in favor of his wife, the said Anna Kunz, the appellant, for the value of the goods in the business in February, 1893, when the transfer was made. Under this judgment a fi. fa. was levied on the husband’s personal property. Appellee attached the same property under the act of 1869. A feigned issue was awarded between the appellant and the appellee to determine the ownership of the fund raised by the sheriff’s sale.</p> <p>Appellee contended that appellant was estopped from obtaining the fund as against them because, shortly after the time she said she sold the business to her husband, appellee’s salesman had inquired of her husband what the change of the sign from A. Kunz to P. Kunz meant, and he said that the business had always been his and that he owed no money to any one, and that appellant was present and did not dispute his statement.</p> <p>The court charged as follows:</p> <p>It is alleged, however, that at the time of the change of the business some representatives of the creditors went there and made inquiry in regard to the reasons for the change, and that then, in her presence, Peter Kunz said that the old business had been his, and that he owed nobody, and that from that time the business was going on in his own name. Now, if you think that the wife stood by at such a time, and heard him say that the business was his, had been his, and that he owed nobody at that time, and that the business after that was conducted upon the basis of such a statement, and that credit was given to him by the plaintiff upon the faith of such a statement, made in her presence and heard by her; the statement being made so that she could not have failed to understand it, and she allowed that statement to go unchallenged, and the credit was given for whatever was due subsequently to the plaintiff upon the basis of such statement, then I think she must be regarded as having been a party to a fraudulent attempt to impose upon the creditors, and must be estopped from setting up her claim as against them. But you will bear in mind upon that point that, before a person can be regarded as bound to speak and deny a statement, that statement must be specific and clear. It must appear clearly to your satisfaction that she heard her husband say that the business had been his; that he had simply changed the name, that he did not owe anybody, and that upon the faith of such statement the credit was subsequently given.</p> <p>Verdict and judgment for plaintiff for $1,552.59. Defendant appealed.</p> <p>Error assigned was portion of the charge above quoted.</p>

<p>Railroads — Lateral railroads — Bond—Appeals.</p> <p>In proceedings under the lateral railroad law an appeal from an order directing a bond to be filed before the viewers have reported is premature, and will be quashed.</p> <p>Railroads — Lateral railroads — -Filing of bond — Eminent domain — Acts of May 5, 1832, April 20, 1858, and February 17, 1871.</p> <p>Under the lateral railroad Act of May 5, 1832, P. L. 501, see. 3, as amended by the Act of April 20, 1858, P. L. 361, seo. 1, the necessity for the exercise of the right of eminent domain is not determined by the petitioner's, but by the viewers with the approval of the court, or by the verdict of a jury upon an appeal, and until this preliminary requisite has been established no entry on the land is authorized. The proper practice therefore is to defer the filing of the bond until after the court has approved the report of the viewers; or in case of an appeal, until after the verdict of a jury, which under the Act of February 17, 1871, P. L. 56, may decide the fundamental question of necessity against the petitioner.</p>

Appeal, No. 165, Oct. T., 1898, by plaintiff, from judgment of O. P. Armstrong Co., March T., 1897, No. 195, on trial by the court without a jury. Assumpsit to recover money had and received. The case was tried by Greer, P. J., of the 50th judicial district, specially presiding, without a jury, who reported the following facts and conclusions of law: FINDINGS OF FACT. From a careful consideration of the evidence in this case I have reached the following findings of fact: 1.

<p>Waters — Diversion of waters— Water company.</p> <p>Where a water company lakes title to a lake and a dam in a stream which is an outlet ol the lake, over which dam is an ancient roadway, and the company is charged by the conveyance with the duty of maintaining the dam and the roadway, it may stop the flow of the water for a reasonable time to make repairs to them, but it has no right to shutoff the water so as to make material changes in the dam, whereby the water in the lake above the dam may be raised, and at times, entirely shut off; and i£ it shuts off the water for such purpose a lower riparian owner who is injured may recover actual damages from it.</p> <p>In an action against a water company to recover damages for the obstruction and diversion of water, the plaintiff may testify as to conversations between himself and the officers of the water company, for the purpose of showing that he had not acquiesced in the invasion of his rights.</p>

<p>Appeal, No. 49, Oct. T., 1898, by Bazel Gordon, from order of C. P. Greene Co., Jan. T., 1890, No. 7, sustaining exceptions to auditor’s report.</p> <p>Exceptions to report of A. A. Purman, Esq., auditor.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report by Mestrezat, P. J., of the 14th judicial district, specially presiding.</p>

<p>Principal and agent — Evidence—Declarations of agent — Cross-examination, — Credibility of witness.</p> <p>While an agent cannot by declarations subsequent to the act of agency affect his principals, his credibility as a witness may be assailed by showing that he made inconsistent statements to others. The effect of such statements, however, should be restricted by counsel in their argument and by the court in its charge to the contradiction of the witness.</p> <p>Evidence — Contradiction of party's witness — Cross-examination.</p> <p>The rule that a party cannot discredit his own witness does not apply to a case where plaintiff declares on a written contract in defendants’ hands, and is compelled to call the agent of the defendants to whom he had delivered the contract, and in whose hands he last saw it, to account for its nonintroduction, and who is afterwards called generally by defendants.</p> <p>Evidence — Lease—Printed forms.</p> <p>In an action upon an oil and gas lease alleged to have been written by the defendants’ agent, signed by the plaintiff and subsequently desti'03'ed by the defendants’ agent, it is improper to admit as evidence of its contents a particular form of lease used by defendants, and the fact that the defendants had taken many leases of a particular form, and under an arrangement with the recorder had the form printed in a lease book, which book had been used by the recorder.</p> <p>Practice, common pleas — Points—Charge to jury.</p> <p>Where points are presented in the alternative, and the plaintiff is entitled to the instructions asked in them, the court in affirming them commits no error in saying that if the jury do not find the facts as claimed in the points, the law as stated in them will have no application.</p>

<p>Appeal, No. 156, Oct. T., 1898, by W. L. Kann, front order of O. P. Westmoreland Co., No. 265, equity docket, dismissing exceptions to auditor’s report.</p> <p>Exceptions to report of N. W. Walkinshaw, Esq., auditor. Before McConnell, J.</p> <p>The facts appear by the report of the case in 184 Pa. 1.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Orphans' court — Jurisdiction—Borrowing money.</p> <p>To preserve the estate of a decedent from great loss the personal representatives will be protected in such advancements of money as they in good faith may make, and the orphans’ court will see that they are reimbursed on settlement of their accounts; and what the court will thus ratify and approve, it may, by precedent decree, authorize.</p> <p>The orphans’ court has jurisdiction to authorize an executor or administrator to borrow money to preserve a partnership business in which the estate is largely interested; but this power should be very cautiously and very rarely exercised.</p> <p>Testator was a member of a limited partnership association oi’ganized under the act of 1874. When the association had ended by its own terms, some years after his death, the executors conducted the business of the ■company. The partnership becoming embarrassed, the executors petitioned the orphans’ court for leave to borrow money to prosecute the business and thus preserve the estate from loss. In this proceeding the ex parte statement of the petitioners was accepted as true, but all of the material facts were not revealed to the court. The court granted the prayer of the petitioner. The money was borrowed, but a few years afterwards the partnership became totally insolvent. Held, that as the court had jurisdiction to grant the prayer the mistake of granting it on insufficient evidence did not invalidate it, and the person who loaned the money under the decree of the court was entitled to be paid in full out of the testator’s estate.</p>

<p>Principal and agent — Illegal contract — Intent.</p> <p>While the courts will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other properly belonging to the master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.</p> <p>An agent cannot set up a pretended illegal transaction to retain money extorted from his principals by gross falsehood to further a mythical illegal transaction. The money still belongs to the principal, and he can rightfully demand it as soon as he discovers the fraudulent conduct of his agent.</p> <p>The law takes no cognizance of a mere illegal intent; nor does it impose as a penalty for such intent immunity to him who has plundered one guilty of it. The illegal intention must be accompanied by an act which is criminal or prohibited by law, in order to make the transaction illegal.</p> <p>Principal and agent — Physician—Illegal contract — Fraud—Statute of limitations — Abortion.</p> <p>Where a physician in attendance upon two families, in one of which there is a son, and in the other a daughter, alleges that an illness of the daughter was caused by an abortion, and also falsely represents to the fathers of the two families that they are about to be prosecuted for the crime bjT a society, and in consequence of these representations receives money from them to be used in stilling the supposed prosecution and keeps the money himself, and constantly urges them to keep quiet about the matter, the persons who paid the money are entitled to recover it back, and the statute of limitations will not begin to run against them until the fraud is discovered.</p>

<p>Appeal, No. 31, Oct. T., 1898, by plaintiff, from order of G. P. No. 3, Allegheny County, Feb. T., 1896, No. 64, refusing to take off nonsuit.</p>

<p>Negligence — Street railways — Alighting from car — Child of tender age.</p> <p>In an action against a street railway company to recover damages for personal injuries to a boy eight years old, incurred while alighting from a car, the case is for the jury where there was evidence that the boy intended and attempted to get off the car at a crossing, but was prevented from doing so by the fact that the car did not stop long enough for him to do so, and where there was also conflicting .evidence as to whether he was jolted from the car, or fell off or jumped off.</p>

<p>Land law — Ancient document — Evidence.</p> <p>A draft of a survey over one hundred years old found in the county commissioners’ office, among the deputy surveyor’s papers, in the place where the office of the deputy surveyor was kept, and where the official papers belonging to his office were deposited, proved to be in the handwriting of the person who was deputy surveyor at the date appearing on the face of the paper, is evidence to elucidate and ascertain a boundary.</p> <p>Land law — Location—Survey—Return of survey.</p> <p>While it is a settled rule of law governing the location of surveys that the lines run and marked upon the ground by the deputy surveyor constitute the actual survey, and where those can be found the survey must be</p> <p>located by these lines, the rule does not apply where the deputy surveyor, after making the survey, finds .that he has included a larger portion of land than the act of April 1, 178-1, allows, and in making his official return outs off a strip of the land. In such a case the deputy surveyor has not only a right, but it is his duty, to change the survey prior to his return.</p> <p>While a warrant is in the hands of a deputy surveyor, before he makes a return of the survey, he may alter his original survey, throw out, or take in other lands, provided it does not interfere with mesne rights between the time of the original survey and the alteration, before the return. But when the survey is returned the authority of the deputy surveyor is exhausted, and it requires a new authority from the surveyor general or the board of property to warrant such alteration.</p> <p>A warrant was placed in the hands of a deputy surveyor of Northumberland county, who, on September 2 and 8, made a survey by running the lines upon the ground and marking the cornel's. Before making his return he cut off a strip of twenty rods from the northern part of the east and the west lines of the survey, abandoned the northern line as originally run and marked upon the ground, and returned the northern lino with post corners, upon which return of survey, a patent was issued. Held, that the survey as returned concluded the owner of the warrant and those claiming under him.</p> <p>Land law — Return of survey — Mistake—Board of properly.</p> <p>A warrantee of land will be concluded by the return of the deputy surveyor, unless he make application to the board of property to correct an alleged mistake.</p> <p>Land law — Patent—Survey.</p> <p>The acceptance of a patent for laud defines the lines and the quantity of the survey, and the patentee and those claiming under him are concluded by it.</p> <p>Practice — Request for charge — Assignments of error.</p> <p>Error cannot be assigned to the omission of a judge to charge in a particular way unless his attention was called to it by a special request.</p> <p>Ijand law — Location—Variance between return and marks upon the ground.</p> <p>Where a deputy surveyor in his official return makes the distance between two well marked corners of the survey twenty rods less than the actual distance on the ground, the difference in distance cannot be added to a line of the survey running south from one of these marked corners to a post corner, as it would contradict the official return and interfere with another survey on the south.</p>

<p>Taxation — Tax liens — Acts of March 30, 1811, 5 dm. L. 231, April 16, 1827, June 7,1879, and June 1, 1889.</p> <p>Where the commonwealth has not filed in the prothonotary’s office a certified copy of the taxes due the state as required by the Act of April 16, 1827, P. L. 472, until the day after a sheriff’s sale, such taxes are postponed to the liens prior thereto. The Acts of March 30, 1811, 5 Sm. L. 231, and April 16,1827, P. L. 472, are not repealed by the Acts of June 7, 1879, P. L. 112 and June 1, 1889, P. L. 420.</p>

Appeal, No. 40, Oct. T., 1898, by W. J. Shaw, front order of C. P. No. 8, Allegheny Co., Nov. T., 1893, No. 177, dismissing exceptions to auditor’s report. Exceptions to report of S. D. Mitchell, Esq., auditor.

<p>Mechanics' liens — Building contract — Covenant against lien.</p> <p>A mechanic’s lien cannot be filed against a building where the contract between the owner and the contractor provides that “no lien shall be filed against the building by either the contractor or any sub-contractor for work or labor done, or materials furnished.”</p> <p>A building contract after specifying the manner in which payment should be made continued as follows: “ Provided that in each case of the said payments, a certificate shall be obtained from and signed by G., architect, to the effect that the work is done in strict accordance with the drawings and specifications, and that he considers the payment properly due; said certificate, however, in no way lessening the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace work, if it afterwards be discovered to have been done ill or not in accordance with the drawings and specifications, either in execution or materials, and provided further.....no liens shall be filed against the building by either the contractor or any sub-contractor for work or labor done or material furnished.” Held, that the clause relating to liens, was an independent stipulation not connected with the previous subject, and that it should be enforced.</p>

Appeal, No. 70, Oct. T., 1898, by defendant, from judgments of C. P. No. 3, Allegheny Co., Feb. T., 1897, Nos. 225 and 226, on verdicts for plaintiffs. Trespass for personal injuries. Before Kennedy, P. J. At tbe trial it appeared that Mary Sowasb, wife of J. F. Sowash, was a passenger on one of defendant’s cars about seven o’clock in the evening of October 1, 1896. After alighting from the car of the front platform, she took a few steps, fell and sustained, injuries.

<p>Trusts and trustees — Deed of trust.</p> <p>By a deed of trust land was conveyed to M. “ for the sole and separate use of J. for and during his natural life, and so as he alone, or such person as he shall appoint, shall take and receive the rents, issues and profits thereof, to be used and appropriated as he may deem advisable for the use, education and maintenance of the children begotten, and hereafter to be begotten by said J. and M., and from and after the decease of the said J., in trust for the use of the heirs of the body of the said M. by said J. begotten, or to be begotten, forever. After the decease of the said J. the said M. is to have the exclusive control of the said above described property as long as she remains the widow of the said J.; and at her death or marriage the said above described property is to be equally divided among the following named children [naming them], and any other children hereinafter begotten between the said J. and M.” Held, (1) that M. had an interest in the land during the whole of her life if she remained unmarried after the death of her husband; (2) that the children after the death of J., and before the death or marriage of M., had no interest therein, and no standing to have the trust declared ended and terminated.</p>

Appeal, No. 101, Oct. T., 1898, by plaintiff, from order of C. P. No. 2, Allegheny Co., Oct. T., 1896, No. 769, refusing to take off nonsuit. Trespass to recover damages for injuries to land caused by an overflow of water from a sewer. At the trial the court granted a nonsuit, on the ground that the borough was not liable for .the inadequacy of the sewer.

<p>Appeal, No. 119, Oct. T., 1898, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1897, No. 600, on bill in equity.</p> <p>Bill in equity to compel the surrender of stock. Before Shaker, J.</p> <p>The court decreed a surrender of the stock as prayed for in the bill.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 121, Oct. T., 1898, by Thomas White, from decree of O. C. Allegheny Co., May T., 1897, No. 31, dismissing exceptions to adjudication. Exceptions to adjudication. The facts appear by the opinion of Over, J., which was- as follows: Bridget 'White died testate on March 16, A. D. 1896, leaving to survive her no children, but a husband, Thomas White. .

<p>Partnership — Beal estate — Personal property.</p> <p>Where a partnership agreement provides thafcreal estate should be considered as partnership property, and after the death of one of the partners, the surviving partner sells the real estate in good faith and for a proper price, and the administrator of the deceased partner with full knowledge of the sale and the terms and conditions of it, receives specifically a part of the purchase money as coming to the estate of his decedent, an administrator d. b. n. of the deceased partner will be estopped by the act of his predecessor.</p> <p>Practice, Supreme Court — Equity—Exceptions—Question raised in Supreme Court first.</p> <p>Where a master appointed to state an account between partners allows a claim for the services of one of them, and no exception is taken to the allowance before the master or in the court below, it is too late to raise the question in the Supreme Court for the first time.</p>