Volume 189 — Pennsylvania State Reports

Appeal, No. 125, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1896, No. 873, on verdict for defendant. Ejectment for a lot of ground in the Fourteenth ward of the city of Pittsburg. Before Porter, J. The facts appear by the former report of the case in 174 Pa. 133, and in the charge of the court below which was as follows: There is no dispute as to the substantial facts of this case.

<p> Contract—Evidence—Parol evidence to vary written agreement. </p> <p>In an action by contractors against a railroad company it appeared that the plaintiffs by an agreement in writing had contracted to build a portion of the defendant’s railroad. Owing to alleged misconduct of the company’s engineer the plaintiffs claimed that they were unable to perform the contract. They subsequently met some of the officers and directors of the company, and a new contract in writing was entered into, modifying in some respects the first contract. One of the plaintiffs testified that at the time the second agreement was executed, one of the directors of the company had orally agreed that the contract price should be increased. Two witnesses corroborated to some extent this testimony, but neither of them sustained the claim of. a parol agreement contemporaneous with and independent of the second written agreement. The president of the company directly contradicted the testimony of the contractor. Held, that the evidence was insufficient to sustain the alleged par’d agreement.</p> <p>Railroads— Corporations—Directors— Contracts.</p> <p>Where the board of directors of a railroad company authorize the president of the company or, in his absence, the vice president to execute a contract, it is not within the province of a mere director to exercise the power thus limited to designated officials.</p>

<p>Appeal, No. 26, Jan. T., 1898, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1897, No. 48, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit upon a guaranty.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appear by the opinion of Arnold, P. J., which was as follows;</p> <p>On September 10,1890, the defendant, while acting as broker for John R. Baker, Jr., who was then in good repute, was requested by Mr. Baker to guarantee the signature of his grandmother, Elizabeth Baker, to an irrevocable power of attorney to transfer fifty shares of the stock of the Lehigh Coal and Navigation Company, the plaintiff in this suit, on the assurance by John R. Baker, Jr., that he saw his grandmother sign her name to said power. Baker also signed the power as a witness. Believing the signature to be genuine, the defendant wrote under the name of Elizabeth Baker, “Signature guaranteed, W. M. Blakeslee.” A transfer of said shares was made to John R. Baker, Jr., on November 6, 1890. Shortly thereafter, that is, about November 25, 1890, John R. Baker, Jr., fled from this country, and it was then discovered that he had forged the signature of his grandmother and father to many papers, both as to their individual property and as executors of the will of his grandfather, Charles H. Baker. Yerbal notice of this particular forgery was given to the plaintiff and defendant in this suit in February, 1891, and demand in writing for a new certificate was made upon the plaintiff on June 27,1892. Nothing further was done until July 6, 1896, when the administrator of Mrs. Baker commenced an action against the Lehigh Coal and Navigation Company to recover damages for the transfer of said fifty shares of stock, and the company, being unable to make defense, paid, on November 5,1897, the administrator of Mrs. Baker’s estate $1,887.85, in settlement of the claim against the company; whereupon on November 9, 1897, this suit was brought. The defendant in his affidavit of defense interposes the statute of limitations, and the question is, whether the statute is a good defense.</p> <p>Diligent search by the counsel for both parties, as well as myself, has not been rewarded by finding any case exactly like it upon the facts, so that we are without authority on the question. The plaintiff relies on the analogies furnished in actions on warranties of title in deeds of conveyance, on which the decisions are that no action can be maintained on a warranty until actual eviction under a superior title, as was held in Knepper v. Kurtz, 58 Pa. 480. But warranties are contained in deeds, which are writings sealed and delivered, and the statute of limitations does not apply to actions on sealed instrumerits. All that the cases on warranties decide is that there is no breach until eviction, and, therefore, no right to sue until eviction, so that we cannot get any aid from cases of that kind. Nor do actions between creditors of a principal and his surety, or by creditors against partners, throw any light on the subject. Here the defendant is a mere voluntary guarantor. When does the statute begin to run against a guaranty—from its date or from the creation of a debt or obligation by giving credit or acting under the guaranty ? The nearest ease we can find on this subject is Meade v. McDowell, 5 Binney, 195, in which it was held that if A guarantees to B the performance of any contract he may make with C, and six years elapse after a contract is made between B and C, and before the beginning of the suit against A on his guaranty, the statute of limitations is a good defense to the suit. There are several reasons for this. The guaranty is not under seal, and there is no element of fraud in the ease. This last reason is important, for when a party does so positive an act as to satisfy a mortgage by mistake, not involving fraud, the statute of limitations is a complete bar: Binney v. Brown, 116 Pa. 169. Likewise is it in an action on a false certificate of search by a recorder of deeds : Owen v. Western Saving Fund, 97 Pa. 47; Ashton v. Walton, 10 W. N. 452. There is no distinction between torts arising from contract (if we consider a guaranty in mistake to be a tort) and those which arise from official misconduct. “ What was the cause of action, and when did it arise ? ” said Gordon, J., in Owen v. The Saving Fund. “ Undoubtedly the cause of action was the issuing of the false certificate, and the right of action was accrued to the party purchasing it just as soon as he parted with his money on the faith of it. . . . The commencement of the limitation is cotemporaneous with the origin of the cause of action.” A guaranty of the genuineness of a signature which turns out to be a forgery is a false certificate, and, when given in mistake, not involving fraud, there is nothing to take it out of the statute of limitations.</p> <p>In Howell v. Young, 5 Barn. & Cress. 259, which was an ae tion against an attorney employed to ascertain whether a mortgage was a good security (that is, sufficient to secure a loan) for a loss which occurred by reason of the security being insufficient, it was held that an action may be commenced at once, although there has been no special damage, because special damage is a result and not a cause of action. “ There is not,” said Bailey, J., “ any substantial distinction between an action of assumpsit founded upon a promise, which the law implies, that a party will do that which he is legally liable to perform, and an action on the case, which is founded expressly upon a breach of duty. Whatever be the form of action, the breach of duty is substantially the cause of action. That being so, the cause of action accrued at the time when the defendant took the bad and insufficient security. That was more than six years before the commencement of the action, which is consequently barred by the statute of limitations.” The case of Moore v. Juvenal, 92 Pa. 484, an action against an attorney for failure to institute a suit until the cause of action was barred by the statute, is to the same effect. In Short v. McCarthy, 3 Barn. & Ald. 626, the action was for damages caused by the omission or neglect of an attorney to make the search he was employed to make, and it was held that the statute barred an action brought more than six years after the omission, although it was not discovered within that time. It was said by Dallas, C. J., in Brown v. Howard, 2 Brod. & Bing. 73, that a promise to obtain a good and sufficient security for money does not amount to a warranty. If a bank pays a check to a person presenting it with a forged indorsement of the payee’s name, both parties supposing the indorsement to be genuine, the right of action to recover back the money accrues at the date of the payment, and the statute of limitations begins to run from that date: Leather Manufacturers’ Bank v. Merchants’ National Bank, 128 U. S. 26. All the cages the other way were cited and overruled in that case. In Koch v. Melhorn, 25 Pa. 89, it was decided that when a note is transferred by a debtor to his creditor in payment of a debt, with a guaranty that it is as good as gold and will be paid when due, and it proves worthless, the contract is broken as soon as made, and the creditor is under iio obligation to pursue the maker of the note. He may sue at once, and consequently the statute begins to run at once.</p> <p>In the present case the defendant guaranteed the signature of Elizabeth Baker to be genuine. Upon that guarantee a prom ise is implied upon the part of the guarantor to be responsible to any party purchasing the certificate and power or making a transfer of it. This implied promise was broken when it was made. The right of action accrued at once, and, consequently, the statute began to run at the same time. As certificates and powers, as they are called, are often traded in and kept in circulation a long time before a transfer is made, we decide that the statute of limitations in cases like this begins to run at the date of the voluntary guarantee.</p> <p>Rule discharged.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 15, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T.,’ 1896, No. 1176, sustaining demurrer to statement.</p> <p>Assumpsit for breach of contract in refusing to furnish plaintiff with Welsbach lights agreed upon.</p> <p>Demurrer to statement that the contract set forth by plaintiff is terminable' at will.</p> <p>The substance of the pleadings appear in the opinion of the Supreme Court.</p> <p>Error assigned was the judgment of the court in sustaining the demurrer.</p>

Appeal, No. 288, Jan. T., 1897, by plaintiff, from decree of C. P. Centre Co., Aug. T., 1897, No. 65, dismissing bill in equity. Bill in equity for an injunction.

Appeal, No. 70, Jan. T., 1898, by-defendants, from judgment of C. P. Crawford Co., Sept. T., 1897, No. 43, on verdict for plaintiff. Ejectment for a tract of land in Wayne township. Before Thomas, P. J. At the trial it appeared that plaintiff purchased the land in May, 1897, at an orphans’ court sale by the executor of Robert Williams.

<p> Contract—Evidence—Farol agreement. </p> <p>In an action to recover for work done in drilling an oil well which was abandoned before completion because of the breaking of a casing, plaintiffs alleged that the only contract was a verbal one, to furnish labor at a fixed price. Defendants alleged that the parol contract placed upon the plaintiffs the duty of inspection, and that the provisions of the parol contract were precisely the same as those contained in two prior written contracts between the same parties. Defendants offered to show that plaintiffs knew that a written contract had been prepared similar to the other contracts, and that they had promised to sign it. Held, that while the terms of the parol contract could not be proved in this way, as plaintiffs had not seen the writing, yet, as tending to show that plaintiffs knew that something more than the price had been agreed upon, and that there was to be a special contract in writing, the evidence was admissible as affecting the credibility of the witness, and as corroborating the testimony produced by the defendants.</p>

<p>Appeal, No. 43, Oct. T., 1898, by tbe H. B. Claflin Company, from order of C. P. Lawrence Co., March T., 1898, No. 1, discharging rule for interpleader.</p> <p>Rule for sheriff’s interpleader.</p> <p>At the hearing of the rule before Wallace, P. J., all parties interested appeared in court by their counsel and witnesses, and the court proceeded to take the testimony and hear all the evidence. After a full hearing upon the merits, the court filed an opinion in which were .set out various findings of fact and conclusions of law, and upon this opinion discharged the rule for an interpleader. The H. B. Claflin Company, which was among the claimants, appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 44, Oct. T., 1898, by Adams & Ford, from order of C. P. Lawrence Co., March T., 1898, No. 1, discharging rule for interpleader.</p>

<p>Appeal, No. 45, Oct. T., 1898, by-Whitney, Wabel & Co., from order of C. P. Lawrence Co., March T., 1898, No. 1, discharging rule for interpleader.</p>

<p> Receivers—Corporations—Equity. </p> <p>Where receivers are authorized to operate the works of a corporation “with materials nowon hand,” and such other materials as the court might authorize them to buy, sell manufactured product and pay into court for distribution the proceeds of such sales over and above the cost of production, they have no authority to involve the plant of the company itself in debt, and to sweep away its entire value to the detriment of labor claimants whose liens had become fixed upon the plant.</p> <p>A chancellor will seek to protect one acting in strict compliance with nis orders from loss, but one who has acted upon his own judgment has no right to expect the court to divest a clear legal right existing in others to save him from the consequences of his own unauthorized acts. Per Williams, J.‘</p>

<p>Appeal, No. 157, Oct. T., 1898, by plaintiff, from decree of C. P. Gbeene Co., No. 17, in equity.</p> <p>Bill in equity to declare a forfeiture of an oil and gas lease.</p> <p>Taylor, J., of the 27th judicial district, specially presiding, filed the following opinion:</p> <p>TACTS POUND.</p> <p>(a) Hugh Smith being the owner in fee of a tract of land in Springhill township, Greene county, containing fifty acres, conveyed the same to William Johnson, one of the lessors to the lease in dispute, on September 29, 1882, for the consideration of $1,000, which deed was acknowledged on said day and recorded January 11, 1888, in deed book, No. 61, page 354.</p> <p>Pamelia Tustin and Isaac, her husband, being the owner in fee of a tract of land in Springhill township, Greene county, containing sixteen acres, two rods and thirty perches, conveyed the same to William Johnson, one of the lessors to the lease in dispute, on May 26,1853, for the consideration of #1,284.43, acknowledged the same day and recorded January 11, 1888, in deed book, No. 61, page 365.</p> <p>Thomas M. Carpenter and Margaret, his wife, being the owners in fee of two tracts of land in Springhill township, Greene county, containing nine acres and twenty-seven perches, and seventy-nine acres and twenty-nine perches, respectively, conveyed the same to William Johnson, one of the lessors to the lease in dispute, by deeds of conveyance dated March 29, 1879, acknowledged same day and recorded January 11, 1888, in deed book, No. 61, page 357, consideration $1,037.52, and deed dated September 28, 1885, acknowledged same day, consideration $2,225.44, recorded January 11, 1898, in deed book, No. 61, page 369; and</p> <p>1. These four tracts of land make up that portion which the said William Johnson and Elizabeth Johnson, his wife, one of the defendants to this bill, on February 15, 1896, as lessors, joined in the execution of a renewal lease and grant to Guffey and Queen, and their heirs and assigns, assignors of the South Penn Oil Company, defendant, in consideration of $1.00, “all the oil and gas in and under” the land therein described, containing 150 acres, more or less, together with the right of ingress and egress at all times and for the purpose of drilling and operating for oil, gas or water, and to conduct all operations and lay all pipes necessary for the production and transportation of all oil, gas or water taken from said premises, reserving, however, to first party, the equal one eighth part of all oil produced and saved from said premises, to be delivered in the pipe line to the credit of the first party, free of charge. On November 16, 1896, the said grantees, Guffey and Queen, and Frank R. Liggett, assigned the foregoing lease or grant of William and Elizabeth Johnson, and W. S. Guffey and Emmett Queen, with other leases, to the South Penn Oil Company, the oil rights thereunder, it paying the rental accruing and becoming due under said lease pending the completion of wells thereon while they hold the oil rights thereunder, reserving to the Carnegie Natural Gas Company the gas and gas rights under said several leases, subject to the provision of an agreement between said company and Guffey and Queen, dated October 15, 1894, which is fully set forth in a true copy in plaintiff’s bill as exhibit “ B. ” For the purposes of this case the material parts of the grant from William and Elizabeth Johnson to Guffey and Queen, assigned to the South Penn Oil Company and the Carnegie Natural Gas Company, may be paragraphed as follows :</p> <p>“2. To have and to hold the above premises unto the party of the second part, their heirs and assigns, on the following conditions : If gas only is found second party agrees to pay at the rate of $850.00 per year, payable quarterly, in advance, for the product of each well while the same is being used off the premises.</p> <p>“ 3. In case no well is completed within sixty days from this date (February 15, 1896) then this grant shall immediately become null and void as to both parties. Provided, that the second party may prevent such forfeiture from month to month, and no longer, by paying to the first party in advance twelve and fifty one-hundredths (12 50-100) dollars at New Freeport P. O., Greene county, Pa., until such well is completed.</p> <p>“ 4. All moneys that may become due under this grant payable to William and E. Johnson.</p> <p>“ 5. The conditions hereof extended to the parties hereto, their heirs, executors, administrators and assigns.”</p> <p>(5) The copy of the grant given to William and Elizabeth Johnson, the grantors, stipulated no place for payment of rentals falling due under the terms of the grant, the space in the instrument for that purpose being left blank; the original retained by the grantees, Guffey and Queen, stipulated that rentals were payable “ at New Freeport P. O., Greene county, Pa.” The omission to fill this blank with place of payment in the copy given the grantors and the filling of said blank space in the original retained by grantees, with the words at “ New Free-port P. O., Greene county, Pa.,” forms the basis of one of the principal contentions raised in this case. Several of the early monthly instalments of rentals falling due were paid by agents of the South Penn Oil Company, at the house of William and Elizabeth Johnson, to them, but finally the grantors went monthly to the New Freeport P. O., Greene county, Pa., and there received through the mail from the postmaster or his assistants, vouchers for rentals duo in advance, which under an arrangement between the postmaster and the assignees of the oil and gas rights of said grants, were there cashed to William and Elizabeth Johnson upon their signing said vouchers.</p> <p>(e) Of this method and this place of payment, there was no complaint on the part of the said William and Elizabeth Johnson, both of whom jointly signed each voucher for the monthly rent in advance, they having executed a joint lease or grant of the land. It was the post-office of the grantors and their point of trading and was made at that place for the convenience of all parties to the grant. The town of Waynesburg, at a bank, some twenty miles distant from residence of the said Johnsons, having in some former leases been the place of payment, this change was made for the most part for their convenience, and we have no difficulty in finding, under all the evidence introduced before us, that the payment of monthly rental for delay of $12.50 each, under the terms of the grant of February 15, 1896, was payable in advance, on or before the 15th of each month after April 15, 1896, at New Freeport P. O., Greene County, Pa., and the deposit of that sum, payable to the grantors by check or cash, with postmaster Matthias Meighen, at that place by Guffey and Queen, or their assignees, the grantor having received rentals paid in that way on April 7, 1897, was a valid payment of said rentals and prevented the forfeiture of said grant, notwithstanding the death of William Johnson, one of the grantors.</p> <p>(d) At the time of the execution and delivery of the grant of February 15, 1896, to Guffey and Queen, through their agent, Thomas Liggett, neither the agent nor the parties named knew that the 150 acres of land granted was held in fee in the proportion of fifty acres in right of the wife, Elizabeth Johnson, nor did the South Penn Oil Company at the time of the assignment of said grant of Johnson and wife by Guffey and Queen to it, dated November 16, 1896, have notice or knowledge that the title to the lands granted was held in fee in the proportion of fifty acres in right of the husband and 100 acres in right of the wife, Elizabeth Johnson. The deed for this 100 acres made by William Johnson to Elizabeth Johnson his wife, was not recorded until March 8,1897, something over one year after the grant of February 15, 1896, and the South Penn Oil Company was not so informed from the record until the service of the bill in equity by plaintiff upon said South Penn Oil Company, defendant.</p> <p>The grant of February 15, 1896, to Guffey and Queen was a joint one from Johnson and wife and though the wife informed Liggett, the agent, that she owned twice as much as her husband, with whom she lived, she informed him they held it jointly and that it had never been run off to her or any division of it made, whereupon said Liggett informed her they would have nothing to do with a division of the rentals, but make it payable to both of them at the New Freeport P. O., Greene county, Pa., and they could divide it then when payment was made to both of them.</p> <p>Whether this was satisfactory or not to the grantors does not appear, otherwise than that both Johnson and wife went to New Freeport P. O., Greene county, Pa., monthly for their rentals, received them and jointly signed the receipts for the same up until the death of William Johnson, the husband.</p> <p>(e) On February 21, 1897, William Johnson, the husband, died and soon thereafter administrators of his estate were appointed. When Elizabeth Johnson called at the New Freeport P. O., as usual, to receive her rental to April 15, 1897, she was informed by the acting postmaster that since her husband was dead, he was advised the rentals should be paid to his legal representatives. There was some controversy between Mr. Bradley, the acting assistant postmaster who paid the rentals by check and cash, and Elizabeth Johnson, and she was paid the rental to April 15, 1897. Owing to the death of William Johnson and the refusal of his administrators to receive rental accruing after his death and the fact that there were heirs, when Elizabeth Johnson went in May after her rental, due between April 15 and May 15, 1897, she was informed the rental was there as usual but the intermediary stated to her he was advised not to pay it out to her until it was determined who was to act in this particular for her deceased husband’s estate; that he had been informed there were minor children left by William Johnson. This displeased Elizabeth Johnson, and she left, saying she thought they didn’t intend to pay her any more rentals, and as she owned 100 acres of the land and wanted to make something out of it she would release it and declare the grant of February 15, 1896, then held by the South Penn Oil Company, for the oil right and the Carnegie Natural Gas Company for the gas right, forfeited, and accordingly Elizabeth J ohnson did on June 14,1897, execute and deliver a second lease for the 100 acres included in the grant of February 15, 1896, to Guffey and Queen to J. L. Fisher, of Broad Tree, W. Va., who on August 31, 1897, assigned said lease of June 14, 1897, to B. N. Freeland, the plaintiff in this bill, a true copy of which lease is marked exhibit “ C ” in the plaintiff’s bill.</p> <p>GO Upon the execution of this lease to Fisher, Elizabeth Johnson, as well as the lessee, had notice that the South Penn Oil Company denied that their lease was forfeited as claimed, and said South Penn Oil Company has continued to pay all rentals due and payable monthly under the terms of the grant of February 15, 1896, as therein provided to the surviving partner of the postmaster of New Freeport P. O., Greene Co., Pa., Peter Bradley, to this date, and claims the right to continue so to do under said grant assigned to it by the said Guffey and Queen, and has so continued to pay the same, which are now at New Freeport P. O., Greene Co., Pa., for Elizabeth Johnson.</p> <p>(</) No operations were ever begun by the said James L. Fisher, or his assignee, B. N. Freeland, on this land under the lease of June 14,1897, by Elizabeth Johnson on her 100 acres, beyond driving a stake to, mark the place for a location, and the ordering of one of the sons of Elizabeth Johnson on the land to get out a set of rig timbers.</p> <p>It is also in evidence that the payment of rentals under this new lease the said Elizabeth Johnson has postponed payment of by her lessee, until the final settlement of this suit, and that said lessee and his assigns she has agreed to release from the payment of the rentals provided for in said lease, or any part thereof, in case the grant of the South Penn Oil Company assigned is upheld by this proceeding in equity.</p> <p>(K) Exhibits “ B ” and “ C ” filed in this case are two receipts signed by William and Elizabeth Johnson for $37.50, each showing payment by the Carnegie Natural Gas Company, which owns the gas right, of $75.00, to them jointly for rental for six months on the grant of February 15, 1896, to Guffey and Queen, from October 15, 1896, to April 15, 1897, and that it was paid quarterly in advance instead of monthly in advance. These payments by the Carnegie Natural Gas Company, on account of the grant of February 15,1896, together with the payments made by the South Penn Oil Company, on account of the same grant, admitted to have been received by Elizabeth Johnson and her husband, to April 15, 1897, show a duplication of the receipts of rental by William and Elizabeth Johnson to April 15, 1897, on this grant under which the South Penn Oil Company and the Carnegie Natural Gas Company hold this 150 acres of land for oil and gas, and applied to the period for which Elizabeth Johnson claims there was a failure to pay her rental on her 100 acres by the South Penn Oil Company, at the time she declared a forfeiture of the grant of February 15, 1896, and released the 100 acres to James L. Fisher, June 14,1897. There was nothing due or owing to either Elizabeth Johnson or William Johnson’s representatives under the terms of said grant, but in truth and in fact, by these combined payments, as shown by their receipts, she and both of them, were overpaid, and paid in full to July 15,1897, and we find as a fact that the said Guffey and Queen, or the South Penn Oil Company, their assignee, did not neglect or refuse to pay to Elizabeth Johnson the rentals for delay under the grant of February 15, 1896, in the way and manner provided for in said grant, and therefore the grantor, Elizabeth Johnson, had no just or legal cause to declare the said grant forfeited as to her undivided interest in the same by the execution of a second lease, or by any other means whatsoever.</p> <p>(*) The grant of February 15,1896, was recorded on March 20, 1897, and therefore the said Fisher took his léase with full knowledge of all the facts as to when rental was payable, as disclosed by the record and the failure of Freeland and Fisher, his assignee, prior to the time of taking the lease of June 14, 1897, to make inquiry of Guffey and Queen, the Carnegie Natural Gas Company, or the South Penn Oil Company, their officers or agents, as to the status of the grant of February 15,1896, as between them and William and Elizabeth Johnson, or their intentions in regard thereto, and their agreement with Elizabeth Johnson whereby they are to be relieved from payment of all rentals in case this bill is dismissed, finds them in no position for equitable intervention in this particular.</p> <p>(/) On December 14, 1897, the South Penn Oil Company, relying upon its grant of February 15,1896, and the payment of it by rentals for delay, and the receipt of the same to April 15, 1897, by Johnson and wife, its payments into the deposition at New Freeport P. O., Greene county, Pa., to the credit of Elizabeth Johnson and her husband’s estate, all rentals due under the provisions of said grant, and the over payments by the Carnegie Natural Gas Company’s payments, and the continuing of the payment of rentals as they fall due, in advance, into the depository acquiesced in by them, and the completion of the said well on March 28, 1898, at large expense, and that said well proved to be a gas well and under the terms of the agreement between Guffey and Queen and the Carnegie Natural Gas Company, and noted in the assignment of this lease in question dated November 16,1896, have taken possession of said well for the purpose of marketing gas off the premises, under the terms of the lease, fixes the fee in the oil and gas rights under said farm in the South Penn Oil Company, and the Carnegie Natural Gas Company, subject only to the rents and royalties reserved in the grant, and that the possession of William and Elizabeth Johnson of said lands described in the grant of February 15, 1896, is the possession of the grantees, W. S. Guffey and Emmett Queen and their assignees; and J. L. Fisher and his assignees are not now legally in possession of any part of said lands.</p> <p>CONCLUSIONS OF LAW.</p> <p>********</p> <p>Our conclusion is that the defendant, the South Penn Oil Company, is entitled to be hence dismissed with reasonable cause, and that the plaintiff is not entitled to a decision of this court adjudging and decreeing as forfeited the lease executed and delivered by the said William Johnson to the said W. S. Guffey and Emmett Queen dated February 15, 1896, so far as it affects or relates to the 100 acres of land leased by the said Elizabeth Johnson to J ames L. Fisher and now held by the orator in this case, for the following reasons: (1) the grant of February 15, 1896, between William Johnson and Elizabeth Johnson, of the first part, and W. S. Guffey and Emmett Queen, is a valid and subsisting grant now in force, for the purposes and under the terms and conditions contained therein as to both of the said grantors; (2) the lease of June 14, 1897, made by Elizabeth Johnson to J. L. Fisher for 100 acres of land in Springhill township, Greene county, Pa., being a part of the same lands conveyed by grant of February 15, 1896, to W. S. Guffey and Emmett Queen, is null and void and of no effect.</p> <p>The court entered the following decree:</p> <p>And now, July 5, 1898, this cause came on to be heard at the June term, and it was heard and argued by counsel; and therefore, upon consideration thereof, it is adjudged, ordered and decreed as follows:</p> <p>1. That the lease of June 14, 1897, made, executed and delivered by Elizabeth Johnson to J. L. Fisher, for one hundred (100) acres of land in Springhill township, Greene county, Pa., and described in exhibit “ C,” in the plaintiff’s bill in this case, be delivered to the South Penn Oil Company, its attorney or agent for cancellation forthwith, and that the recorder of deeds in and for Greene county, Pa., upon exhibition to him of this decree make a note of this paragraph at the place of record ol said lease.</p> <p>2. That the bill of the plaintiff in this case is hereby dismissed at the costs of the plaintiff.</p> <p>Error assigned was the decree of the court.</p>

<p>Evidence—Written instrument—Explanation of written instrument— Mortgage—Record—Satisfaction of mortgage.</p> <p>A party offering a paper in evidence must offer the whole of it just as it is, and if it requires explanation the burden is upon him to explain This rule applies to the record of a mortgage on the margin of which the recorder has copied a receipt or satisfaction not acknowledged.</p> <p> Mortgage—Gonsideration—Satisfaction. </p> <p>The real estate of a decedent leaving a widow and four heirs was divided by partition proceedings into four purparts. One of the heirs purchased one of them at the sale, and another of the heirs purchased the remaining three, giving mortgages therefor. Subsequently he conveyed two of the purparts to the other two heirs so that finally the four purparts vested respectively in the four heirs. No money passed in any of the transactions, and it was not intended that any should. The mortgage upon tbe part which the purchaser of the three parts retained was to be treated as paid and canceled, but it was never properly and legally satisfied of record. The purpose of naming prices in money in the partition proceedings and in the mortgages was apparel itly to liquidate the widow’s interest which was to continue as a fixed charge on the land during her life, and to be distributable on her death to the heirs. No fraud was shown in the transaction. Held, that the mortgage on the part retained by the purchaser of the three purparts should not be enforced.</p>

Appeal, No. 201, Oct. T., 1898, by Peninah A. Swart et al., from decree of O. G. Green Co., April T., 1898, No. 19, dismissing appeal from register of wills. Appeal from register of wills. Before Ceaweoed, P. J. From the record it appeared that Jacob Swart died intestate, leaving to survive him a widow, Peninah A. Swart, a son, Amos C. Swart, and three daughters, one of whom was Florence Y. Duim. He also left grandchildren who were the children of deceased sons and daughters.

<p> Judgment—Revival of judgment—Parties—Practice, O. P.—Administrators. </p> <p>On a scire facias to revive a judgment entered originally against an administrator, an omission to make the administrator a party defendant in the scire facias is not fatal to the proceeding where it appears that the administrator was also an heir, and as such had been made a defendant; that he had full notice of the proceeding and was not complaining, and that in the body of the writ the parties to the judgment, its date, number and term all fully appeared.</p> <p>On a scire facias to revive a judgment against an administrator so as to charge the lands of the decedent with the payment of his debts, it is not a fatal objection to the proceedings that a person is named in the writ as an intermediate heir through whom the interests of other heirs was derived.</p> <p> Estate—Definition of word “ estate." </p> <p>While in its popular use the word “ estate” includes both real ánd personal property, yet when used in a strictly technical sense it applies to realty only. Its proper and technical meaning is the degree, quantity, nature and extent of interest which a person has in real property.</p> <p> Judgment—Practice 0. P.—Administrators. </p> <p>On a scire facias to revive a judgment against an administrator, where the heirs of the decedent are made parties defendant, any judgment rendered against the heirs will bind only the land in their hands as heirs, and cannot be enforced against them personally.</p>

<p>Boroughs—Election of eouncilmen—Statutes—Bepeal—Acts of April 6, 1841, April 3, 1851, June 1, 1883, and May 22, 1895.</p> <p>The Act of May 22, 1895, P. L. 109, relating to the election of councilmen in boroughs not divided into wards, does not repeal the local Act of April 6, 1811, P. L. 155, incorporating the borough of Clarion, in so far as the latter act relates to the election of council men and the filling of a valiancy in the office of councilman where there is a tie vote.</p> <p>The borough of Clarion was incorporated by the special Act of April 6, 1811, P. L. 155, section 2 of which provided that at elections for borough officers l-in case any two or more candidates should have an equal number of votes, the preference shall be determined by lot.” In 1873, the borough of Clarion, by appropriate proceedings brought itself under the general borough Act of April 3,1851, P. L. 320. Held, (1) that the method of deciding title to office on a tie vote was not affected by the coming of the borough under the Act of April 3, 1851, P. L. 320; (2) that neither the Acts of June 1, 1883, P. L. 54, nor May 22, 1895, P. L. 109, repealed the provisions of the Act of April 6, 1841, P. L. 155, relating to the filling of the office of councilman by lot when there was a tie vote.</p>

<p> Fixtures—Beal and personal property—Intention—Evidence—Mines and mining—Forfeiture. </p> <p>In determining whether personal property has become a fixture and part of the land, it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex and identify the property with the realty.</p> <p>Where an agreement in writing conveys all the coal under a tract of land, and provides that the grantees “shall have the right to abandon said land and mining at any time, and remove all their buildings and fixtures,” it is the clear intention of the parties that the buildings and fixtures shall not become a part of the realty either before or after abandonment, and this intention is not defeated by a subsequent agreement providing for a forfeiture of the contract for nonpayment of rentals, and a declaration of such forfeiture by the lessor.</p> <p>Forfeitures are odious to equity; it is seldom it will enforce them even in a clear case, but never in a doubtful one.</p>

<p>Constables—Costs—Serving subpoenas—Act of May 23, 1893.</p> <p>Under the Act of May 23,1893, P. L. 117, a constable is entitled to charge for serving a subpoena fifty cents for each person named in the subpoena and actually served.</p> <p> Practice, Supreme Court—Superior Court—Appeals. </p> <p>Where on cross appeals the Superior Court decides one appeal against plaintiff and the other against defendant, and the defendant alone appeals to the Supreme Court, the Supreme Court can only consider the question involved in defendant’s appeal.</p> <p> Statutes—Construction of statutes. </p> <p>Where the universal practice throughout the commonwealth was to allow certain fees under an act of assembly, such practice was a cotemporary construction of the act which was presumably known to the legislature, and when in a later act they used the same words, merely increasing the amount, the presumption is strong that they intended them to bear the same construction.</p>

<p>Appeal, No. 209, Jan. T., 1898, by Samuel Evans Maires, from order of O. P. No. 4, Phila. Co., Dec. T., 1897, No. 1359, disbarring attorney at law.</p> <p>Rule to show cause why an attorney at law should not be disbarred.</p> <p>The facts appear by the opinion of Arnold, P. J., which was as follows:</p> <p>Proceedings to disbar attorneys are among the most delicate and disagreeable, as well as infrequent, duties that pertain to a court of justice. As the result of disbarment is to deprive the attorney of his means of livelihood in the profession to which he has given years of study and preparation, it is of the greatest importance that care and deliberate action should be taken in order that no wrong may be done to the accused. “ On one hand,” said Chief Justice Marshall, “the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved: ” • Ex parte Burr, 9 Wheaton, 529. The interest of the people at large should be conserved by the court, in order that those who must of necessity place their property, their liberty, and even their lives in the care of an attorney, should be secure in their confidence in the integrity of their advocate. They should be assured that, whatever misfortune may happen to them, they will not be despoiled by the one in whom they have placed their trust. The oath which an attorney takes on his admission to practice, while short, is very comprehensive. He declares that he will behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use' no falsehood or delay any person’s cause for lucre or malice. This oath should inspire rectitude of conduct in the person who takes it, and confidence on the part of the people which is as sacred as that which exists between confessor and penitent. The law encourages the utmost freedom of communication between the lawyer and the client, by declaring not only that the lawyer cannot be compelled to divulge the information he receives as attorney, but also that he shall not be permitted to do so. Knowledge of this fact begets the confidence between attorney and client which is essential to the- relation between them. It disarms suspicion and prevents watchfulness on the part of the client. Hence the necessity and duty of the court to do all that is possible in preserving the integrity of the members of the bar, so that the popular confidence in lawyers may not be abused and dissipated. “ The profession of the law,” said Lord Bolingbroke, “ in its nature the noblest and most beneficial to mankind, is, in its abuse and abasement, the most sordid and pernicious.” If, instead of keeping up the tone of his profession, the lawyer debases it by the practice of methods in vogue between persons who deal adversely with each other, we will have, as Chief Justice Sharswood said in his valuable book on Legal Ethics, “ a horde of pettifogging, barratrous, custom-seeking, and moneymaking lawyers, which is one of the greatest curses with which any state or community can be visited.” If falsehood is used, the consequence upon professional character is to turn lawyers into higglers with their clients, and then, when the truth is discovered, we have suits by clients against their attorneys, and proceedings for disbarment, with the resulting strain upon the confidence of the people in the profession at large. By admitting an attorney, the court presents him to the public as worthy of its confidence, and it is the duty of the court, after full and satisfactory proof of his delinquency, to withdraw its indorsement : Davies’s Case, 9B Pa. 116.</p> <p>The present proceeding is directed against a member of the bar who has so often appeared in the trial of causes that he cannot plead want of experience as his defense to the charge now made against him. Indeed, he made no defense of that kind, but, on the contrary, attempted to justify his conduct by asserting a legal right to do as he did in the series of cases to which we will hereafter refer. The case which gave rise to the inquiry which resulted in the application for the present rule was that of Hesta V. Cook v. The People’s Traction Company and the Philadelphia Traction Company in this court, of June term, 1895, No. 460. The action was commenced on June 10, 1895. One year afterwards the death of Hesta Y. Cook was suggested, and Richard B. Sheridan, administrator of her estate, was substituted as plaintiff. On January 13, 1897, a verdict was rendered for the plaintiff against the Philadelphia Traction Company alone for $8,000. A motion was made for a new trial, which was granted on March 18,1897. In the mean time a dispute had arisen between Mr. Sheridan, the administrator, and Mr. Maires, which resulted in the resignation and discharge of Mr. Sheridan by the orphans’ court and the appointment of John I). Yarrow, Esq., as administrator d. b. n. in his stead. On March 3, 1897, Mr. Yarrow was substituted as plaintiff. On the death of Hesta Y. Cook, her estate vested in her mother, Mary B. Henning. Some dissatisfaction with Mr. Yarrow arose, whereupon Mrs. Henning retained Francis Shunk Brown, Esq., as her counsel, and applied to the orphans’ court for the removal of Mr. Yarrow, and in that proceeding the following agreement was made public:</p> <p>“ I, Mary B. Henning, mother and only heir at law of Hesta V. Cook, deceased, do hereby agree that Samuel Evans Maires, Esq., my attorney, shall collect through John D. Yarrow, Esq., administrator of the estate of Hesta V. Cook, deceased, all moneys that he can legally collect from the Philadelphia Traction Company in the case of Cook, by her administrator, &c., vs. the said company, common pleas, No. 4, June term, 1895, No. 460, in which case a verdict has been obtained in favor of plaintiff for $8,000, interest and costs, and said Samuel Evans Maires shall retain for his fees, administrator’s fees, costs and expenses, physicians’fbills, and other expenses, all moneys over and above the sum of $1,000, which sum shall be paid me in full and final settlement of all my claims against the estate of Hesta V. Cook, deceased, and which sum of $1,000 I hereby agree to accept as a full and final payment to me for all claims and demands against said Philadelphia Traction Company because of said verdict of $8,000, and in full for all claims against the said estate of Hesta V. Cook, deceased.</p> <p>“ Witness my hand and seal this tenth day of February, A. D. 1897.</p> <p>“Mary B. Henning. [Seal]</p> <p>“ Witnesses at signing:</p> <p>“ J. F. Fullaway,</p> <p>“J. C. Whedon.</p> <p>“ We agree to the above. 2-10-97.</p> <p>“Samuel Evans Maires,</p> <p>“ Attorney, &c.</p> <p>“John D. Yarrow,</p> <p>“ Administrator d. b. n.”</p> <p>This agreement was so novel and amazing that the agent of the traction company concluded to go over some of the other cases which Mr. Maires had conducted against the company, when the cases on which the present rule is based were discovered and brought to the attention of this court by the committee of censors of the Law Association of Philadelphia. At the hearing of the rule, Mr. Maires testified that he was to receive one half of the balance remaining out of any verdict, after deducting expenses and costs, and, when called upon to explain by what process the amount to be paid to the plaintiff was reduced to $1,000, he testified that the expenses of the suit were so large as to justify him in retaining all above $1,000. He said that he paid out for expenses, incidental details, and money, about #1,000 ; that he had paid a detective upwards of #400 or #450; that he had a great many doctors’ and other bills to pay, aggregating #1,300 or #1,400. He produced a paper called an expense account, beginning December 25, 1895, and coming down to February 8, 1897. In this account are four items for detectives, amounting to #315.50. There are six items, entitled “subpoenas, car fares, and incidental expenses preparing for trial,” amounting to #103.50, and for doctors, #900. The sum of #250 was charged for the services of an assistant in his office for making a brief and points for charge. What his fee of one half the amount to be recovered was to be paid for, unless it was to cover such a charge, is a question which naturally suggests itself and admits of only one answer. The necessity for the actual employment of, and payments to, detectives, were not shown, and as for the doctors, nothing whatever had been paid, but simply “ agreed to be paid.” This expense account is dated February 8,1897, and is signed by J. W. Henning (the stepfather) and M. B. Henning (the mother of Hesta V. Cook), by whom it was agreed that the amount thereof, #1,877, “shall be deducted from any moneys recovered, and the balance of any money left after payment of said #1,877 shall be equally divided between Mary B. Henning and Samuel Evans Makes, share and share alike.” This was followed by the agreement of February 10, 1897, before referred to, by which Mrs. Henning was to receive #1,000 out of the #8,000. The facility and frequency of and discrepancy between the agreements made between Mr. Makes and his client certainly arrest attention. As to the various items of this expense account, we are compelled to say that most of them are fabulous and mythical. They could not be allowed under any circumstances.</p> <p>This last agreement was illegal and void. An agreement made by a client with his counsel, after the latter had been employed in a particular business, by which the original contract is varied so that a greater compensation is secured to the counsel than was agreed upon when he was first retained, is without consideration and cannot be enforced: Lecatt v. Sallee, 3 Porter’s (Alabama) Reports, 115. Maires’s contract ceased to be one for a contingent fee, and was in effect the purchase of a lawsuit. “ The purchase of a lawsuit,” said Chancellor Kent, “ by an attorney, is champerty in its most odious form, and it ought equally to be condemned on principles of public policy. It would lead to fraud, oppression, and corruption. As a sworn minister of the courts of justice, the attorney ought not to be permitted to avail himself of the knowledge he acquires in his professional character to speculate in lawsuits. The precedent would tend to corrupt the profession and produce lasting mischief to the community: ” Arden v. Patterson, 5 Johns. Ch. Rep. 44.</p> <p>At the hearing of the present rule the first case examined was that of Robert J. Proctor. Proctor was the driver of a wagon and met with an accident by collision with a car of the Philadelphia Traction Company. A young man called upon him and asked him if he would give the case into his hands. After two or three calls Proctor agreed to do so upon an agreement that the attorney, Mr. Maires, was to have one half of the amount recovered. Some time afterwards Maires told Proctor that he had got $150 from the traction company, Avhich was $50.00 more than he expected. He paid Proctor $75.00, handing him certain papers to be signed. The fact is that Maires collected $400 on the claim. We make a reference to the written agreements in this case as a sample of the agreements made in the series of cases. On September 11, 1891, it was agreed, on a printed form, that Maires should he appointed Proctor’s “ true and lawful attorney, irrevocable at law and in fact, to make all negotiations with and bring all suits or actions at law or in equity against the Philadelphia Traction Company, and to perform whatever professional service is necessary for the recovery of damages.” It was also agreed that Maires was “ to make all negotiations, bring, conduct, and prosecute all suits, perform whatever professional service was necessary, and expend all money deemed requisite by him for the recovery from the said Philadelphia Traction Company of the said damages for the injury sustained by the said Robert J. Proctor.” In consideration thereof, the said Proctor agreed “ that he will give his time and attention to the recovery of said damages, and for that purpose Avill appear in court or elsewhere and testify, will make every effort to procure other witnesses, and will assist in every way in his power whenever requested so to do by the said Maires.” It was further agreed that if any moneys are recovered, the said Maires “ shall deduct and retain out of the same a sum sufficient to reimburse him for all moneys paid out as costs and expenses incident to said recovery, and shall retain one half part of the balance then remaining as a fee for his professional services rendered in the recovery of said money.” The same day Proctor constituted Maires his attorney irrevocable to institute and. pursue into final judgment, decree, and execution, any process or suit which he should deem expedient, and, at his discretion, to compromise or settle any negotiations or suit, and to satisfy of record any judgment or decree for such sum as he shall deem proper, and to collect and receive all moneys due from the Philadelphia Traction Company arising from said negotiation, suit, judgment, or decree, and to execute and deliver all releases, receipts, and acquittances therefor. On November 12,1891, in consideration of $75.00, Proctor executed a general release to Maires on account of his collection from the Philadelphia Traction Company as damages for injuries sustained by him. On November 9, 1891, Proctor executed a general release to the traction company for the damages for his injuries. This release contains a receipt for $400.</p> <p>Mr. Proctor testified that the sum of $400 was not in the release when ho signed it; that there was nothing on the paper but printed matter. This was denied by Mr. Maires, but, in view of the subsequent developments before us, we are compelled to give credence to Proctor and not to Maires upon this point. Mr. Maires states that the expenses in this suit reduced the amount to be divided to such an extent as to leave only $75.00 for the plaintiff. It appeared that Proctor wanted to settle the case, but Maires objected. In this case, as in others, Mr. Maires seemed to act upon the theory that he was the party injured, and that the plaintiff was a mere beneficiary who should count all he received as so much clear gain. He says he told Proctor that, inasmuch as he had been guilty of a breach of the original contract by insisting upon a settlement of the case contrary to his (Maires’s) desire, he wanted $200. The sum of $45.10 was charged for costs and expenses. Then there was deducted the sum of $79.50, which Mr. Maires said he paid to Mr. Eastwick, who was at that time a student or office boy, for going about collecting the evidence and assisting Mr. Maires in his work, which he called detective work. It was by charges such as these and by disputes with his client that Mr. Maires frittered down the allowance to Mr. Proctor to $75.00. He says he took his half first, $200, then deducted the costs and expenses, $125, and gave the remainder, $75.00, to the client. This was neither according to the contract nor honest.</p> <p>The next case was that of Charles Kriebel. Kriebel had a child who was run over and killed by a trolley car about ten o’clock in the morning. The same evening, about eight or nine o’clock, a young man came to him and gave him Mr. Maires’s card, and said that if Kriebel intended to sue the company he would like him to see Mr. Maires. The result was the engagement of Maires by Kriebel, and agreements similar to those before referred to were made, in writing and printing. An action was brought, and after awhile the case was settled, Mr. Maires paying Kriebel $125. It turned out, however, that Maires received $500. Mr. Kriebel said that Maires told him he had settled the case for $250. A release was executed to the traction company. Mr. Kriebel says the sum of $500 was not on it when he signed it; or, if it was on, the paper was turned under so that he could not see it, for he never knowingly receipted for $500, and never knew that $500 was received in settlement of his case. Mr. Maires says the amount of expenses in this case was $81.50, and that he thought $125 ought to be satisfactory to Kriebel, since he had to pay the young man who had “investigated” the case $98.50. Mr. Maires complained that Mr. Kriebel insisted on settling the case, whereas he wanted to try it. He claimed the right to try the case, and that it should not be settled without his consent.</p> <p>The next case was that of Frederick Goetz. Goetz had been injured in a collision. He was taken to the Pennsylvania Hospital, and even there one of the ubiquitous “young men” presented Mr. Maires’s card and solicited employment in the case. Maires was employed and the same series of papers was executed. After awhile Maires sent for Goetz and told him he had received $100 and gave Goetz $50.00. In fact, Maires had collected $200. This case was “ investigated ” by Maires’s assistant; the costs were figured up to about $100, and then Mr. Goetz was paid $50.00 out of the $200. A curious part of this settlement is that the traction company paid the sum of $125 for the damages as such, and $75.00 for the costs and expenses, making a total of $200.</p> <p>The next case was that of Daniel Cummings, who had met with an accident. A couple of days afterward a young man called on him and recommended Mr. Maires, who was employed by Cummings, and the usual written agreements were signed. Some time afterwards Mr. Maires sent for Mr. Cummings and told him that he had collected $20.00 for him, which was all the company was willing to give. In fact, the company had paid $100 in settlement of this claim. The receipt which Mr. Cummings gave for this money states that the $20.00, with the money retained for fee, expenses of witnesses and costs, is in full for all moneys collected from the Philadelphia Traction Company for the injuries sustained by Cummings. No action was brought in this case or in the Goetz case. Mr. Maires said this case was investigated by Mr. Fullaway and Mr. Eastwick, who worked on the case, and it turned out that the man was not very seriously hurt. He said he took $20.00 for his fee, gave Cummings $20.00, paid Mr. Fullaway and Mr. Eastwick each $20.00, and the other $20.00 went for witnesses and incidental expenses, when there was no suit brought and consequently no witnesses to be paid.</p> <p>The other cases were those of Mary E. Vallette and her sister, Eliza Nixon, and Louis Gerstenacker. In these cases the agreements were the same as in the others. Maires collected for Mary Vallett $250 and paid her $100. In Eliza Nixon’s case he collected $100 and gave her $25.00. In Gerstenacker’s case he received from the traction company $200 for damages and $50.00 for costs. He paid Gerstenacker $75.00. In these as in all the cases, Maires deceived and defrauded his clients.</p> <p>Mr. Maires’s construction of the agreements in all these cases is best given in his own cross-examination. He said that under the irrevocable power of attorney he had an equitable assignment of the claim, of so much of the fund as might be obtained; that he had an interest, which, under the power of attorney and agreement, gave him the right to say whether the case should be settled or not; and that when his client wanted to make a settlement he considered it a breach of the agreement with him; in fact, that he was a part owner, and had a right to control the disposition of the case. This strange contention seems hardly deserving of an answer; but a similar case arose in Chicago, and the Supreme Court of Illinois decided that a defendant sued for damages for negligence may settle with and pay the plaintiff without notice or payment to the attorney, who had an agreement that he was to have one half the damages for his services, and that notwithstanding the defendant knew of the existence of the agreement: North Chicago Street Ry. v. Ackley, 171 Ill. 100, decided December 22,1897.</p> <p>If these carefully drawn agreements astonish us, Mr. Maires’s statements on the stand astonish us more. They make us wonder how any one with any sense of professional propriety or regard for legal ethics could conceive and deliberately make and preserve such agreements. They contain every ingredient necessary to make a case of champerty at common law, and furnish written proof thereof which is indisputable. “ Champerty,” says Blackstone in the fourth volume of his Commentaries, page 135, “ is a bargain with a plaintiff or defendant to divide the land or other matter sued for between them if they prevail at law, whereupon the champertor is to carry on the party’s suit at his own expense. . . . These pests of civil society that are perpetually endeavoring to disturb the repose of their neighbors and officiously interfering in other men’s quarrels, even at the hazard of their own fortune, were severely animadverted on by the Roman law .... and they were punished by the forfeiture of the third part of their goods and perpetual infamy.” It is the agreement to carry on the suit at the expense of the attorney for a share of the profits that constitutes champerty. No question as to the validity of an agreement for a contingent fee arises in this matter. There was no complaint that Mr. Maires contracted for a contingent fee. The complaint was that he defrauded his clients of their full share. Besides contracting for the control of the suits, he bound his clients to give their time and attention to the recovery of damages, to appear and testify in court, procure witnesses and assist him, as if he were the principal and the client was a mere agent.</p> <p>The manner of obtaining the right to bring these suits involves another common-law offense, that of common barratry. Persons who did not care to bring suit, and perhaps thought their injuries were as much the result of their own carelessness as that of any one else, or were unwilling to invest their money in the moderate costs of a lawsuit, were hunted up by the assistants or students, office boys, or “ runners ” of Maires, as these pests are called, and thus litigation was made and dishonesty ensued in the division of the spoils. “ Common barratry,” says Mr. Justice Blaokstone, “is the offense of frequently exciting and stirring up suits and quarrels between his Majesty’s subjects, either at law or otherwise. The punishment for this offense in a common person is by fine and imprisonment; but if the offender (as is too frequently the case) belongs to the profession of the law, a barrator, who is thus able and willing to do mischief, ought also to be disabled from practicing for the future: ” Fourth Commentaries, 184.</p> <p>If we take Mr. Maires’s construction of his agreements to be correct, and that he had an interest in the various claims intrusted to him, then he was a partner with the plaintiffs, and in his subsequent dealings with them has been guilty of the modem statutory offense of fraudulently converting partnership money to his own use. Either way we look upon his dealing, as a ehampertor, barrator, or dishonest partner, we find no mitigation whatever, no excuse for his conduct.</p> <p>The cases brought to our attention have given positive proof of that which is frequently heard in ordinary conversation, that there are lawyers who make it a business to hunt up litigation, take cases upon speculation, and pay the costs, with the usual result—quarrels with their clients based upon a dishonest and unfair division of the moneys recovered. No lawyer with a proper sense of the dignity of the profession, as well as his own self-respect as a man, will stoop to such practices as have been laid bare in the present proceeding. Not even death can keep these ghouls of society at bay; their emissaries invade the house of mourning; they enter the hospital; no place is sacred from their intrusion. If any more such exist, it is hoped that the censors of the Law Association will continue their laudable efforts, until the offenders shall have been discovered and driven out of the profession.</p> <p>The assistant or runner who hunts up these cases is a nuisance which should be abated. He participates in the spoils, his share being covered up in the items for investigating, working up cases, and doing detective work. Perhaps these runners manufacture testimony, for in at least one of the cases exposed before us, the charge for witness fees is greater than the amount paid to the only witnesses known to the plaintiff. From tfce number of cases of this kind in which Mr. Maires appears, we are led to believe that much of his business was obtained in this improper way.</p> <p>Lawyers who employ runners, pay them for hunting up cases, take cases on an agreement to advance the costs, and cheat their clients in the division of the amount recovered, violate their oath. They do not behave with all good fidelity to the court as well as the client, and they use falsehood. Such lawyers, when discovered, will be disabled from practicing in the future.</p> <p>Some criticism was made upon the action of the Philadelphia Traction Company, Mr. Brown, the counsel for Mrs. Henning, and the censors of the Law Association. In reply thereto it should be said, as it is due to them to say, that their action in this matter has been highly commendable, although exceedingly disagreeable and wearisome. The censors of the Law Associar tion occupied many months in the preliminary inquiry before applying for the present rule. They gave Mr. Maires notice of their meetings, so that he was present by himself and counsel, and knew everything which was being testified. He was not taken unawares nor by surprise; nor was anything alleged against him here in court of which he did not have previous and full notice, so that he could be prepared to meet the charges.</p> <p>Upon the facts as developed before us, we are constrained to say that Mr. Maires is unfit to be continued longer as a member of the bar of this court, and that an order will be made striking his name from the roll thereof. A certified copy of this order will be sent to the courts of common pleas, the orphans’ court, and the court of oyer and terminer and quarter sessions of this county.</p> <p>Error assigned among others was the order of the court disbarring the respondent.</p>

<p>Appeal, No. 202, Oct. T., 1898, by defendant, from decree of O. P. Yenango Co., Aug. T., 1890, No. , on bill in equity.</p> <p>Bill in equity for partition of land in Cornplanter township. Before Criswell, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing exceptions to master’s report.</p>

<p>Appeal, No. 15, Oct. T., 1898, by Leontien Rowan, one of the defendants, from judgment of O. P. No. 1, Allegheny Co., Dec. T., 1895, No. 189, on verdict for plaintiffs.</p> <p>Scire facias sur mortgage. Before Stowe, P. J.</p> <p>At tbe trial it appeared that the main defense of Leontien Rowan was coercion by her husband in executing the mortgage</p> <p>When Mrs. Rowan was on the stand, in her own behalf, she was asked this question by her counsel:</p> <p>“ Q. What did your husband say to you the evening before and the morning just immediately before you went to Mr. Kaufmann’s office and signed this mortgage ? ”</p> <p>Plaintiffs objected, as irrelevant and incompetent, and that it is no evidence to show that the Kaufmanns had notice of anything that was said or done by the husband to the wife, before they had taken this mortgage.</p> <p>The objection was sustained and a bill sealed for defendants. [1]</p> <p>A further defense was that an agreement to extend the mortgage if certain payments were anticipated, changed the time of payment and released the wife, although the payments were not made.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for the plaintiffs. [2]</p> <p>Verdict and judgment for plaintiffs for 115,189.67. Leontien Rowan, one of the defendants, appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2) in giving binding instructions for plaintiffs.</p>

<p> Vendor and vendee—Suit, for purchase money—Affidavit of defense. </p> <p>In an action to recover the purchase money of real estate an affidavit of defense is sufficient which avers that the conveyance was to be subject to certain restrictions in regard to a private roadway which was marked on the plan of lots exhibited to the defendant when he was negotiating for the purchase (the distances not being marked upon the plan) ; that lie asked plaintiff how far the northwesterly line of the lot was from this roadway, and was told that the distance was fifteen or twenty feet, while in fact the lot was very close to the roadway, and on a much steeper portion of the ground, and that in improving the lot it would probably be necessary to build a retaining wall; that this was a misrepresentation of a material fact affecting the value of the land, and that he was deceived and misled by it, and would not have entered into the agreement if the truth had been told him.</p>

<p>Appeal, No. 32, Oct. T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny County, Sept. T., 1896, No. 197, on verdict for plaintiff.</p> <p>Assumpsit on a policy of fire insurance. Before Stowe, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The trial judge charged in part as follows:</p> <p>This policy ceased to have any legal effect at the time the property was removed to Shousetown, and so far as the company was concerned all it had to do was to do nothing; if the property was destroyed down there, the company would not be liable, under the assumption that nothing had taken place between the assured and the company.</p> <p>Both parties being aware of that fact, the plaintiff went to the agents of the defendant, according to his story; notified them (whether before the time that this alleged renewal took place or after is immaterial, as far as the fact is concerned) and gave them to understand that the property had been removed, and wanted to have the policy extended, and now the whole question, so far as it affects the jury in this case, is whether or not there was an actual extension of that policy for property that had been removed from Centre avenue to Shousetown. ■That is the great bone of contention here. The plaintiff alleges that he went there to announce the fact that the property had been removed (or that they knew it before), and that he then was given to understand that the policy had been renewed and would be kept in force upon the property where it was located in Shousetown, and he undertakes to sustain that by the entries upon the books of the company and by testifying to what was said to have occurred at that time. If you find that fact to be true, then there was an actual renewal or extension of this policy to the property in Shousetown, and it has exactly the legal effect, as far as this case is concerned, as if it had been indorsed on the policy or he had taken out a new policy on the property in his new location; but upon that question you have to look at the testimony on the other side of the case. That is denied. They say that the plaintiff was there; that there was a talk about renewing, and tbe entry was made in tbe book of that, as a sort of memorandum, but it was a conditional renewal, subject entirely to the approval of the company, and that the company never did approve of it. If that is true, then this policy never took effect upon the property in Shousetown, because if that was conditional, although it may upon the books have been an absolute one, yet if the understanding was between the parties that this was not to take effect unless the company approved it, then it ceased to have any effect, and the policy never was extended, and, of course, in that case, the verdict should be for the defendant. [That is the controlling question in this case; that is really the only question that is worth the consideration of the jury: if there was a renewal, he is entitled to a verdict for the amount of the policy, it being uncontroverted that the loss was total and that the value of the goods was more than the amount of the policy. If it was not, if it was merely conditional, and so made known at that time and so understood by the plaintiff, then your verdict should be for the defendant, but, so far as this case is concerned, if there was a renewal, then something more is to be proved than has been established by the defendant, in the way of cancellation of this policy.</p> <p>It is alleged that it was conditional; that after they received word from the company that it should not be renewed, or rather, a direction to them to cancel the policy, they notified by telephone the brother of the plaintiff, which is denied—as to the legal effect of it—never was received. Somebody apparently-represented him. A letter was written to Shousetown which may or may not have been received. The mailing of a letter to a party is evidence that he received it in the ordinary course of mail, but it is only prima facie, and if it is not received it has no effect whatever. If I mail a letter to any of you gentlemen, I can prove the writing and mailing, and then it devolves on you to prove that you did not get it, but the fact that I mailed it is no absolute proof of the fact that you got it; it is prima facie evidence, as we call it, but if the fact is alleged that it never was received, then it is for the jury to determine that question; but I apprehend that those matters are immaterial, particularly because there is not a shadow of proof, as I understand it, that would indicate that by any of those messages, either by telephone or letter, defendant’s agents undertook to return or pay back the return premium that is necessary unless it has been waived by the party. If a party undertakes to cancel a policy, then it is necessary to pay or offer to pay or have the right to pay waived. There is nothing in this case that would justify the jury in saying that they offered to pay it back, until after the fire I mean, and then it is too late ; but at the time, or within a reasonable time after the canceling of this policy, there is nothing to indicate that the parties even indicated an intention to pay back the premium.] [2]</p> <p>Plaintiff’s second point and the answer thereto were as follows:</p> <p>There being in the policy of the suit a provision that “ if this policy shall be cancelled as hereinbefore provided, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy,” and the defendant having claimed in its affidavit of defense that the plaintiff had delivered up and surrendered this policy to defendants in response to a demand from the company, and that the same had been cancelled, and it being seen that the unearned portion of the premium was not returned, there was no legal cancellation. Answer: We cannot affirm this point as it stands, but if you believe that there was, as claimed by the plaintiff, an actual and absolute renewal, or extension of this policy upon plaintiff’s property in its new location, then defendant having failed to show either payment or an offer to pay back the return premium before the fire plaintiff is entitled to recover. [1]</p> <p>Yerdict and judgment for plaintiff for $2,181.66. Defendant appealed.</p> <p>Errors assigned were (1,2) above instructions, quoting them.</p>

Appeal, No. 65, Oct. T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1896, No. 93, on verdict for plaintiff. Assumpsit upon promissory notes.

<p> Decedents' estates—Executors and administrators—Set-off. </p> <p>In an action by the executors of a solvent testator against a corporation to recover dividends which became due after the testator’s death, the corporation may set off a debt due to it by the testator when the suit was brought.</p>

<p>Appeal, No. 114, Oct. T., 1898, by Susan Watson, executrix, from decree of O. 0. Allegheny Co., June T., 1877, No. 87, directing trustee to pay over money.</p> <p>Petition for an order upon executor to pay oyer money to trustee.</p> <p>David S. McCann, the petitioner, was appointed trustee to fill the vacancy caused by the death of Frances Emma Watson, the trustee nominated in the will of Andrew Watson.</p> <p>Hawkins, P. J., found the facts to be as follows :</p> <p>Andrew Watson, by will probated April, 1876, gave the sum of $4,000 to his daughter-in-law, Frances Emma Watson, in trust for her children born by her to his son, Andrew Alexander Watson, and that amount was accordingly so decreed on the audit of the account of Susan Watson, the executrix. In 1877, the trustee was authorized by this court to invest $8,000 of this fund in a home for the children, and after the purchase had been made an additional sum was authorized to be paid for improvements. In April, 1876, the sum of $449.58 having been paid, trustee entered satisfaction in full, although there still remained $449.58 presumptively in the hands o£ the executrix. But in the mean time Andrew Alexander Watson, husband of the trustee and father of the beneficiaries, appealed to the executrix for the balance then in her hands, $893.70, “stating to her that he was about to be indicted or prosecuted for a certain crime which would disgrace him, the said Andrew Alexander Watson, the balance of the said legacy, to wit: the sum of $893.70, taking the note of said Andrew Alexander Watson therefor, and the same to bear interest.” The trustee thereafter receipted to the executrix for the interest on said balance and received in exchange therefor the receipt of the executrix for the interest due from Andrew Alexander Watson; but no money in fact passed, and there is no evidence that the children enjoyed the benefit of it. The claim made for interest prior to the loan to Andrew Alexander Watson was not pressed; but it is insisted that the executrix is liable for interest accruing since that time at the rate of six per cent and for the balance of principal, $449.58, remaining unpaid. Andrew Alexander W atson had, at the time of testator’s death, children “ born by ” Frances Emma Watson, and left children at his death in 1896.</p> <p>The respondent insists that because there was a general residuary clause in her favor she had such an interest in the fund as gave a right to hold the fund until it appeared that there would be no more children born—in other words, until the death of either Andrew Alexander Watson or his wife.</p> <p>The theory of detention suggested on behalf of the executrix as a defense is without merit. The testator made an absolute gift in trust for the children of his son, Alexander, “ born by ” his daughter-in-law Frances; there were objects in being in whom the, beneficial interest vested, and there could consequently have been no question of lapse. And besides this, there was a trustee named whose appointment would otherwise have been vain and useless, in whom the legal title vested for whom it might concern in esse or posse, and whose right to receive the fund was adjudicated in the decree of distribution made by this court.</p> <p>Assume that it was given contingently to a class, the income would belong to the members of the class for the time being, and after bom children take from the date of birth: In re Holford, 7 R. (Eng.) 804; and therefore, even though the executrix had a right of retention until the class was complete, 'she would have been bound to raise and pay the income in the mean time, and the death of Alexander, leaving children, would fix her liability as respects the principal. In any aspect, therefore, she was liable.</p> <p>The loan made by the executrix to Alexander was palpably inconsistent with testator’s purpose. His gift is for his grandchildren, and bis appointment of the daughter-in-law implied a want of confidence in his son, and exclusion from even handling the fund. He wished to insure their enjoyment of his intended bounty in any event, and in any contingency. The executrix evidently understood this, for the transaction was put in the form of a loan expressly providing for repayment to her. There is no evidence that the children ever derived any benefit, substantial or otherwise, from the fund while it remained in their father’s hands. The disposition of it by the executrix was in form and equity no more than an investment, and must be regarded as having been made at her risk.</p> <p>And now, to wit: April 22, 1898, this matter came on to be heard upon petition of David S. McCann, trustee, and answer thereto, and testimony taken, and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed that Susan Watson, executrix of the will of Andrew Watson, deceased, pay to petitioner David S. McCann, trustee for children of Frances Emma Watson borne by her to Andrew Alexander Watson, viz;</p> <p>Balance, .......$ 446 85</p> <p>Int. thereon from April 2, 1896, to April 2,1898, 53 62</p> <p>Int. on $893.73 from Dec. 9,1881, to April 2,1896, 767 54</p> <p>Total,.......$1,268 01</p> <p>Being balance of the principal and interest thereon of the legacy decreed to Frances Emma Watson in trust for her children at above number and term. Costs to be paid by executrix Susan Watson.</p> <p>Error assigned was decree of the court.</p>

<p> Mines and mining—Ownership of space occupied by coal—Eight of way. </p> <p>In the case of a sale of coal and severance of it from the surface, the title of the grantee or lessee is an estate in fee simple in the coal, and while such estate exists the owner has the right to haul through the gangways coal mined from other and adjoining land. Lillibridge v. Lackawanna, 148 Pa. 293, followed. The estate, however, terminates with the exhaustion of the coal. The owner of the land above and below has the right to a reversion of the space occupied by the coal within the time contemplated by the parties when they severed that peculiar part of the land from its horizontal adjoiners.</p>

<p>Appeal, No. 133, Oct. T., 1898, by defendant, from judgment of C. P. No. 2, Allegheny County, April T., 1897, No. 193, on verdict for plaintiff's.</p> <p>Trespass for deceit. Before White, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned among others were the instructions quoted in the opinion of the Supreme Court.</p>

<p>Deeds and mortgages — Recording acts—Index—Searches — Act of March 18, 1875.</p> <p>A grantee or mortgagee must search for conveyances and mortgages made by any one who has held the title; with conveyances and mortgages to them he has nothing to do. This rule has not been changed by the Act of March 18, 1875, P. L. 82, which requires recorders of deeds to prepare and keep in their offices direct and adsectum indexes of deeds and mortgages, and provides that “the entry of recorded deeds and mortgages in such indexes respectively shall be notice to all persons of the recording of the same.”</p> <p>Where an owner neglects to record his title every presumption is in favor of a subsequent purchaser, and vague and indefinite recitals are not sufficient notice to put him on inquiry outside the record.</p> <p>Where a mortgagee has a clear search against every one who appeared at anv time to have held the title, he is not affected by the recital in a satisfied mortgage, since he is not bound to go back over the records of satisfied mortgages to look for recitals.</p>

<p> Ejectment—Parol partition—Evidence. </p> <p>In an action of ejectment involving the question whether a parol partition has actually been made and executed, the judge does not sit as a chancellor, nor is it necessary that the partition be established by the measure of proof required to establish a parol sale.</p> <p>In the second trial of the ejectment, the first trial of which was reported in Howell v. Mellon, 169 Pa. 138, the trial court followed carefully the lines pointed out in the opinion of the Supreme Court, and on an appeal from the judgment on a verdict in favor of the plaintiffs at the second trial, the judgment was affirmed.</p> <p> Evidence—-Ancient transaction. </p> <p>The character of the evidence to prove a transaction sixty years ago differs from that which will be required to establish a recent transaction. There is not imposed on the party the impossible burden of producing the best evidence that could have been had sixty years ago, but only proving it by the best evidence that can be procured now. All that is necessary is that the weight of the evidence should produce conviction of the existence of the fact.</p> <p> Will—Conversion—Reconversion—Parol sale. </p> <p>Where testator makes provision for his wife during her life, and directs a sale at latest by his executors at her death, the proceeds to be divided among his children, the will works a conversion of the land into personalty, and if after the death of the widow some of the children purchase the whole tract from the others by parol, and take possession of it with the intention of relinquishing the right to conversion by actual sale, and of holding it thereafter as land, that disposition of their pm-chase with that intention works a reconversion of the constructive personalty into land.</p>

<p>Appeal, No. 148, Oct. T., 1898, by Franz J. Wehrle, from decree of O. C. Allegheny Co., May T., 1897, No. 135, overruling exceptions to adjudication.</p> <p>Petition of Helena Weber (née Fischer) a daughter and legatee under the will of Stephen Fischer, deceased, praying the court to award a citation directed to Herman Fischer and Franz. Joseph Wehrle, executors of the will of said decedent, to show cause why they should not file a final account and settlement of their said trust, having been dismissed, this petition for a rehearing was presented.</p> <p>In addition to what is contained in the opinion of the Supreme Court, the following facts appear by the opinion of Hawkins, P..J.:</p> <p>Stephen Fischer died in 1861, leaving a will in which he gave (1) to his wife a life estate in his realty and a right to the use of the principal if necessary to her comfortable maintenance, and the residue to his three children, including this petitioner; and (2) to his children the personal estate, and appointed his son Herman and his son-in-law, F. J. Wehrle, executors, and the latter trustee. The widow seems to have accepted under the will and Wehrle assumed the active duties of the trusts. An account, which included the real estate converted under a power in the will, was filed in 1862, showing a balance of #4,197.64 in the executors’ hands, of which no audit was had. The widow died April 8, 1876. In 1880, a citation was issued at the instance of Helena Weber, the present petitioner, to show cause why the executor should not file a final or further account and settlement of the business of said estate, service of which was accepted by “Weir & Gibson, attorneys for F. J. Wehrle,” but no answer was filed, and the matter was admittedly never brought to the attention of the court until the present hearing. Mr. Wehrle set up in his answer to the present petition a written release, dated March, 1876, purporting to have been signed by Mr. and Mrs. Weber, acknowledging to have received #225, “ being balance in full due after deducting all former payments made by them (the executors) to us of all our full share purpart and dividend of the sum of thirteen hundred and six (#1,306) dollars, which by the terms of the last will of said Stephen Fischer, was to be distributed and divided amongst the children of said decedent after the death of his widow, Ginnevev Fischer, the mother of the said Helena Weber, and Caroline Wehrle.” The respondent when examined at the hearing professed to have no recollection whatever of how this release came into existence or his possession. He never in fact had possession of the assets; but a Mrs. Baucher, a resident of Ohio, since deceased, who was familiar with the decedent’s affairs, took possession and undertook administration at his request. “ I never got any money in,” said he, “ and never paid any out. ... I got no papers in hands again. I gave them all over to Baucher to settle the whole thing. I had nothing to do with dividing it. Baucher divided it. . . .” No receipts nor evidence for the “ former payments ” alleged in the release to have been made was produced; no evidence was offered that such explanation of the contents of this release as Mr. and Mrs. Weber’s defective knowledge of the language required, was given; and the sanction of this court as in the ordinary course of settlement was never sought. The defense was rested entirely on the release, bio explanation was given as to why it was not adduced in response to the citation of which respondent admittedly had notice in 1880.</p> <p>On the other hand the explanation which Mrs. Weber gives of her delay is pathetic. “ I did not get any money seventeen years ago. Mr. Edmundson had the case and I was in poor circumstances, and could not get along to push it any farther as I had no money. I saved and scratched for what I got now. I can now pay all costs. It took me thirty years to raise all that money.” Petitioner’s appearance and manner were in keeping with hope deferred and the hardship of her fate.</p> <p>In respect to the release with which Mrs. Weber is now for the first time confronted, she admits the signature to be hers, and that what purported to be its contents was read to her; but declares that owing to her defective knowledge of English she did not understand its operation. The whole transaction seems to have sprung out of a fear from threats which were made, and which would naturally absorb her mind to the exclusion of other considerations. Herman Yoeghtly, a friend of Wehrle, had demanded wages which Weber owed him and threatened “ harm ” if they should not be paid. She and her husband had therefore asked Mr. Wehrle for money and were told that they must first sign a paper before ’Squire Evans, which he handed them. Here the story is best told in her own words: “We did not understand it, nor did he tell us what was in the paper. ... I never went to English school, we spoke German all the time. I could not read nor write English then because we had the mother language all the time; ’Squire Evans read the paper to us; but I did not understand it, nor did my husband either. I could speak a little' English at that time; but didn’t understand what was said. All I ever received was the #225. He (Wehrle) never paid me any other money.” Mrs. Weber showed in giving her testimony that her knowledge of English was indeed small; and the release covering as it did a page of legal cap and couched in technical phrase would have required study of any unprofessional person having a competent knowledge of English to understand. The manner of this witness left no doubt in the mind of the court that she at least believed in the truthfulness of her story. There was no perceptible attempt to extenuate or conceal anything. Statements which apparently told against were as freely given as those which told for her. All the original participants in the execution of the release except Mr. Wehrle and herself being dead, this was her only available direct evidence; but the improbability that so large an amount as her share in the estate should have been advanced pending the life estate, the absence of any receipts for the alleged “ former payments,” the executor’s gross neglect of the duties of administration, and his suspicious failure to bring the release to the attention of this court for,so many years, even after citation, are circumstances which are strongly corroborative of her story. On the other hand, while the answer as filed sets up the release as a defense, the respondent himself when orally examined made no direct denial of Mrs. Weber’s story, but professed entire ignorance of the whole matter. The release therefore stands alone and must yield to the weight of adverse evidence.</p> <p>It must be conceded that the statute of limitation has no application to this case; for there was not only an express trust imposed upon this respondent by the will (York’s App., 110 Pa. 69), but there is a decree of this court standing unsatisfied which showed his liability: Vincent v. Watson, 40 Pa. 306.</p> <p>The plea of laches comes with a peculiarly bad grace from this respondent; for he was himself continuously guilty of gross laches from the grant of letters. Instead of attending himself to the performance of duties of the trust which he had assumed under the direction of tins court in accordance with his oath of office, he delegated them, and turned over the whole assets to a nonresident agent, and by his own confession took no part in the administration. Even the citation from this court was insufficient to stir him to a sense of his duty. “ By transacting the business as the law requires, no injury would have befallen anybody: ” Eberts v. Eberts, 55 Pa. 110. That this was not done was owing primarily to the trustee’s default. It was his duty to have sought a settlement under the sanction of this court of his own motion: Peebles’s App., 15 S. & R. 41; and as a matter of common prudence, he should have done so, because the citation must have suggested to his mind a pending question of the validity of the release which he held. Settlement would then have been comparatively easy and inexpensive when all the parties to the release were living and the facts were fresh. The duty of initiative was on the trustee who ought not to take advantage of his own default. The penalty for delay should be imputed rather to his neglect of duty than to the poverty of his cestui que trust.</p> <p>On the other hand, the poverty of Mrs. Weber, which caused her long delay in calling on her trustee for settlement, is but an added hardship; and in no sense to be imputed to her as a fault. If, as she testifies, Mrs. Weber understood the paper which she signed to relate solely to the payment then made, and if as clearly appears she remained ignorant of its scope until the answer was filed, there is no ground upon which the suggestion of acquiescence can rest; for acquiescence implies knowledge of the facts from which it is sought to be drawn. There is nothing therefore left to sustain the plea of laches but mere lapse of time; and that is clearly insufficient. Trustees are but official custodians whose duly it is to maintain the sanctity of the estate for those who are beneficially interested; and are prohibited by an essential law of their trust from taking any personal advantage. The necessary implication is that so long as any part of the trust assets remained unadministered, trustees continue liable to answer those who are beneficial owners. Where laches is of such a character, taken in connection with other facts, as to be a fraud on the trustee, it will of course estop; but where the facts are within the knowledge of the trustee he acts at his peril outside judicial sanction: Eberts v. Eberts, supra. The real question in this case is then whether or not this petitioner received from respondent the full share to which she was justly entitled in her father’s estate. For he had no right to withhold a part and give \ part. The release is presumptive evidence of payment in fud; but this presumption is rebuttable: “If advantage is taken of the ignorance and want of knowledge of the releasor it is invalid.” Thus, it is well settled that a release taken by a guardian shortly after his .ward becomes of age, without settling an account, for an inadequate consideration, will be set aside. “ A written release directly to the guardian,” said Black, C. J., in Wills’s App., 22 Pa. 882, “ executed with all due solemnity by the ward, after he becomes of age and without a perfect knowledge of his affairs will not stand a moment in any court of equity unless it can be proved that the consideration he received was a full equivalent for the right given up.” “A court of justice,” said Woodward, J., in Hawkins’s App., 32 Pa. 263, “ will not permit such transactions to stand unless the circumstances demonstrate in the highest sense of the term full deliberation and uberrima fides.” The rule grows out of the ward’s lack of experience with the business, and of familiarity with the condition of the estate, and the corresponding duty of protection which inheres in the guardian’s office. The benefit of the experience and the knowledge acquired in virtue of his office by the guardian, are as much the right of the ward as the assets proper, and should be imparted according to his needs. The reason of the rule is equally applicable to other cestuis que trustent in like dependent condition. The duty of protection is measured by the intelligence of the cestui que trust; for the less the intelligence the greater the need. Thus a release obtained through misrepresentation or suppression of the truth by one who voluntarily assumed a relation of confidence toward nonresident legatees was set aside in Brooks v. Church, 128 Pa. 408. So a release obtained by trustees from nonresident cestui que trustent by payment of half their share of the trust estate is fraudulent and void: Bixler v. Kunkle, 17 S. & B,. 298. So where an executor obtained a release upon representation that no legacy had been given, which was false, it was set aside even though the record which was accessible to the legatee, would have shown its falsity: Hunt v. Moore, 2 Pa. 107. So where a donee stands in a confidential relation to an illiterate donor, the burden is on him to show that the gift was “free, intelligent and uninfluenced : ” Corson’s App., 137 Pa. 160. So an assignment made by an old, illiterate German, unable to read or write English and speaking and understanding it imperfectly, was set aside upon the ground that it was not freely and voluntarily made with full knowledge of the nature of the act, and its effect upon the donor in relation to his estate: Hasel v. Beilstein, 179 Pa. 560. The result of the authorities in brief is that relief will be granted by courts of equity whenever a release has been obtained by means of fraud or misrepresentations, suppressio veri or suggestio falsi, or has been executed by one ignorant of his rights, and not in a situation to inform himself of them. So when undue advantage is taken of the weakness or necessities of the party, or when there exists a confidential personal relation, as if obtained by the guardian from his ward, shortly after coming of age, or by an attorney from his client, or by a trustee for his cestui que trust (Deardorff’s App., 6 Watts, 160), and the measure of relief is the amount which remains unpaid.</p> <p>The confidential relation of the parties in cases of this kind differentiates the measure of proof from that which prevails in transactions between strangers. The trustee receives the assets without consideration for the benefit of his cestui que trustent in his official capacity; his position, by reason of his experience and his acquired familiarity with the facts of administration, gives him peculiar advantages for abuse, and at the same time disarms the vigilance of his cestui que trustent; hence it has been found essential to the sanctity of trust estates that he should be held to strict proof, and his cestui que trustent be treated with liberality, in the investigation of his administration; whereas another standard is appropriate to strangers, who deal at arms’ length, on equal terms, for the temporary purposes of trade, in the conservation of their respective interests : Bixler v. Kunkle, supra. For this reason it has been held that a release taken by a trustee will be operative for nothing more than has been actually paid: Bixler v. Kunkle, supra. It is at best no better than a receipt, and only prima facie evidence of payment. Even if treated as a covenant not to sue, it is quite as assailable: Eberts v. Eberts, supra. And why should Mrs. Weber not be permitted to assail the release adduced here ? She was admittedly a competent witness to show fraud or mistake in the execution; and how can her credibility be questioned when she is strongly corroborated by the conduct, and even by the testimony, of respondent himself ? If, as the weight of evidence shows, her story be true, the respondent has trust funds which he ought to pay and she is entitled to receive.</p> <p>The facts bring the present case within these principles. Advantage was taken of petitioner’s weakness, necessities and ignorance to obtain a release from her which, owing to her defective knowledge of English, she was incapable of understanding without explanation in the German, which was her “mother language; ” but no such explanation was given, although it was plainly the executor’s duty. The consequence was that trusting to the executor and moved by her anxiety, she signed the release in ignorance of its scope and without full consideration for her share of her father’s estate. Her wifely anxiety to protect her husband from threatened “ harm ” might have induced her to sign, even with a full knowledge of the contents of the release; but who would even attempt, to justify her trustee in taking advantage of her weakness or necessity ? It is clear that the release will be operative for nothing more than has been actually paid: Bixler v. Kunkle, supra. The executor could not acquire any beneficial interest in the estate without a breach of trust, and must therefore respond to petitioner’s claim.</p> <p>The court entered the following decree:</p> <p>And now, to wit: April 28, 1898, this matter came on for hearing, upon petition of Helena Weber (daughter of said decedent), for rehearing and answer thereto, and testimony taken, and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed that Franz J. Wehrle, acting executor of the will of Stephen Fischer, deceased, pay to petitioner, Helena Weber, the sum of $2,711.25, being in full of her distributive share of the balance, as shown by account filed at No. 31, June term, 1862, as per calculation hereto attached, and that the costs be paid by executor.</p> <p>STATEMENT.</p> <p>Balance as per account, .... $4,197 64</p> <p>Share of Helena Weber, one third, or $1,399 21</p> <p>Less amount paid on account, . 225 00</p> <p>Balance due,...... 1,174 21</p> <p>Interest thereon from July 1, 1876,</p> <p>to date, ...... 1,537 04</p> <p>Balance due Helena Weber, . . . $2,711 25</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 149, Oct. T., 1898, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1897, No. 166, on verdict for plaintiff.</p> <p>Assumpsit to recover for goods alleged to have been sold and delivered by plaintiff to defendant.</p> <p>At the trial the court gave binding instructions for plaintiff.</p> <p>Verdict for plaintiff for $1,528.95.</p> <p>On a rule for a new trial McClung, J., filed the following opinion, which states the facts:</p> <p>Plaintiff sues defendant for the price of certain goods, viz : iron cocks, sold and delivered to defendant by or through the firm of Dickson & Kerr. It is admitted that the goods were those of plaintiff, and that they were shipped to defendant by plaintiff and received by defendant. It is also admitted that the price charged is correct. The defense set up is that the goods were purchased under such circumstances that defendant is entitled to set off against their price a balance due it by-Dickson & Kerr, since prior to the first order given.</p> <p>Dickson & Kerr did business in the city of Pittsburg and were general sales agents for a number of manufacturers, especially for the Titusville Iron Works. They also acted as jobbers and dealers. They both purchased and sold goods for the defendant company, and sold goods to and purchased them from said company. For some eighteen months prior to November, 1896, Dickson & Kerr, in the course of their numerous dealings with defendant, had received orders for various small lots of goods, such as the present orders, which they (D. & K.) then purchased from plaintiff, who did business in Philadelphia. These goods were shipped direct from plaintiff’s works to defendant, consigned to defendant, the shipping receipt being sometimes given in the name of plaintiff and sometimes in that of Dickson & Kerr. Dickson & Kerr paid plaintiff for them and sold them to defendant. At the beginning of November, 1896, the book showed a balance in favor of defendant as against Dickson & Kerr, on their various transactions, of about $1,500. During November and December, 1896, defendant gave Dickson & Kerr four orders for iron cocks. Dickson & Kerr ordered goods to the amount of these several orders from plaintiff directing that they be charged to defendant. Plaintiff shipped the goods direct to defendant, one order on December 10, 1896, two on December 81, 1896, and one on January 22, 1897. The goods arrived in Pittsburg (part of them at Toledo, Ohio), within a day or two after shipment, and on January 7 or 8,1897, defendant was notified by an invoice of the goods then shipped, received from plaintiff, through Dickson & Kerr, that the goods had been charged directly to defendant. At the time of this notice the fourth order had not yet been shipped, and part of the others were probably yet in the hands of the railroad company, the balance being in defendant’s warehouse. Defendant, while it insisted that the purchase had been made from Dickson & Kerr, and not from plaintiff, retained the goods shipped, and called for the filling by plaintiff of the unshipped order.</p> <p>Some time in February, 1897 (it would seem February 17), defendant credited upon the account of Dickson & Kerr the amount of these four shipments. The present suit is for the price of these four bills. When these goods were bought and shipped, plaintiff did not know that Dickson «fe Kerr were indebted to defendant, and he acted in the matter in good faith. Nothing was said upon the subject, but plaintiff intended to pay Dickson & Kerr the usual commission for making the sale to defendant. Defendant gave to Dickson «fe Kerr nothing on the faith of these orders. It is conceded that plaintiff can recover, unless the price of the goods has been applied upon an account to which it is legally applicable. The goods were those of plaintiff. Defendant seeks to apply them to the payment of the debt of Dickson & Kerr. As one cannot be directly divested of the title to his property without his assent, so the same object cannot be attained by applying the price of one man’s property to the payment of another’s debt.</p> <p>There are apparent exceptions to this rule, but they are, in the eyes of the law, cases where the rule is recognized, but the real owner is, by some act of his own, estopped to say that the property does not belong to him whose debt is paid or sought to be paid. The burden is upon the defendant here of showing that plaintiff is estopped.</p> <p>It is contended that plaintiffs were the undisclosed principals of Dickson & Kerr, and that therefore under the ease of Frame v. Coal Co., 97 Pa. 309, the indebtedness of Dickson & Kerr can be set off.</p> <p>Frame v. Coal Co. is founded upon George v. Clagett, 2 Smith’s Leading Cases, 118, and certainly never was intended to cover every ease where an agent sells without giving the name of his principal. The estoppel is based not upon the act of the agent, but upon the act of the principal. George v. Clagett was explained by Baring v. Corrie, 2 Barn. & Ald. 137, where the distinction is taken between a factor and a broker. Mochem on Agency, sec. 773, states the rule as follows, viz.:</p> <p>“ In order to establish such set-off, the defendant must show: (1) that the contract was made by a person whom the plaintiff had entrusted with the possession of the goods with power to sell them; (2) that the person sold them as his own goods and in his own name as principal; (3) that the defendant dealt with him as, and believed him to be, the principal in the transaction, up to the time that the set-off accrued.”</p> <p>The present case is much more like the case of Baring v. Corrie than it is like the case of George v. Clagett, and in fact the equities in favor of the set-off were greater in Baring v. Corrie than they are in the present case. Frame v. Coal Co. may seem in some respects to go slightly further than George v. Clagett, but still even if the coal was shipped directly to the purchaser by the coal company, the transaction was fully completed in the name of Pollock & Medler, and in fact seems to have been really a sale by the coal company to Pollock & Medler. It was at all events a case in which the coal company intended to and did authorize Pollock & Medler to deal with the coal as their own, and hence was estopped to question the set-off. In the present case, plaintiff, on Dickson & Kerr’s representation that they had made a sale for plaintiff to defendant, shipped directly and gave notice before defendant had changed its position.</p> <p>Nor can defendant’s counsel sustain his contention that plaintiff by suing ratified the purchase from Dickson & Kerr and must take cum onere. The goods were not furnished on this contract, but on a contract purporting to make defendant the immediate purchaser from plaintiff, and if defendant, upon being informed of the facts, did not wish to stand to this contract, it was for it to refuse to do so. Plaintiff had shipped the goods to defendant as a purchaser and certainly had no option to take them back, if defendant desired to keep them, even if Dickson & Kerr had reported a sale which had not at the time been actually made. No goods had in fact been furnished by plaintiff on the contract between defendant and Dickson & Kerr, and the option as to ratification of the contract on which they were furnished lay wholly with defendant.</p> <p>It will be noticed that the goods included in the last order were not shipped when the true state of the deal became fully known to defendant, and that still defendant insisted that these goods be shipped. As defendant’s counsel read Frame v. Coal Co., it authorizes the application of the price of this last shipment to the payment of Dickson & Kerr’s debt, just as he maintains it does as to the other shipments. This certainly cannot be successfully maintained. Nor do we think that there is any greater reason for allowing the other goods to be so appropriated. The defendant has failed in its attempt to show a legal right to apply plaintiff’s goods to the settlement of Dickson & Kerr’s account, and plaintiff is entitled to recover his claim.</p> <p>Judgment was entered on the verdict. Defendant appealed.</p> <p>.Error assigned was in giving binding instructions for plaintiff.</p>

<p>Divorce—Service of process—Publication of notice—Act of March 13,1815</p> <p>The Act of March 13, 1815, 6 Sm. L. 287, sec. 3, is not mandatory as tí the time of publication of notice to the respondent to appear. The object is notice and the libellant may issue any number of alias and pluries subpoenas to secure personal service before resorting to publication as a constructive notice.</p>

<p> Contract—Penalty—Liquidated damages. </p> <p>The rule that in actions ex contractu where the breach of an agreement admits of compensation the recovery may be limited to the loss actually sustained, notwithstanding a stipulation for a penalty, is founded upon the principle that one party should not be allowed to profit by the default of the other, and that compensation and not forfeiture is the equitable rule. Equity will regard a penalty or forfeiture as intended to secure the fulfilment of a contract, and it may preclude the injured party from recovering more than a just compensation or from obtaining a collateral advantage. The general principle upon which the law awards damages is compensation for the loss suffered. The amount may be fixed by the parties in advance, but where a lump sum is named by them the court will always look into the question whether this is really liquidated damages or only a penalty, the presumption being that it is the latter. The name by which it is called is of but slight weight, the controlling elements being the intent of the parties and the special circumstances of the case.</p> <p>Uncertainty as to the extent of the injuries which may ensue is a criterion by which to determine whether it is a case of liquidated damages or a penalty.</p> <p>Defendant was the contractor for the construction of a building which he was required to complete within eleven months. By the terms of his contract with the owner he was to receive $100 for each day less than the time limit, and to pay $1,000 for each day that he should exceed it in the completion of the work. He entered into a contract with the plaintiffs for the stone and granite work. They agreed to furnish the materials and to finish the work to the top of the second story ready for the bricklayers in six weeks’ time after three stories of iron work had been erected, and bound themselves “ to pay the sum of one hundred and fifty dollars per day as a penalty for each and every day thereafter that the said work remains unfinished, as and for liquidated damages.” Held, that the stipulation in the plaintiff’s contract should be regarded as liquidated damages, and not as a penalty.</p>

<p>Appeal, No. 180, Oct. T\, 1898, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1896, No. 70, on verdict for plaintiff.</p> <p>Appeal from report of viewers. Before Portee, J.</p> <p>Verdict and judgment for plaintiff for $3,500. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence as set forth in the opinion of the Supreme Court; (4-8) the instructions referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 188, Oct. T., 1898, by plaintiffs, from judgment of C. P. No. 8, Allegheny County, Aug. T., 1897, No. 276, on certificate for defendants.</p> <p>Assumpsit on a contract for stone sold and delivered.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, Kennedy, P. J., charged in part as follows:</p> <p>[ But the defendants claim that this, exhibit “ A,” was the contract in existence between them, and claim further a large amount of damages by reason of the failure, upon the part of the plaintiffs to perform their contract. They first say that, on account of their failure to furnish them with the stone, in accordance with the terms of the contract, and at the times agreed upon, they were compelled to go into the market and buy stone, for which they had to pay a much larger price than that agreed upon with the plaintiffs for the furnishing of the stone; and that excess in price exceeds largely, by some $1,600 or $1,800, the claim of the plaintiffs for the stone furnished.] [5]</p> <p>[In addition to that, the defendants claim that other damages resulted to them by reason of the plaintiffs’ failure to perform the contract; the damage resulting to the machinery which they were required to provide and keep there for the building of this bridge, and the expenses of keeping in proper condition that machinery and other property there, while it was lying idle, by reason of the failure on the part of plaintiffs to perform their part of the contract to furnish the stone, and for other reasons they were damaged to a large amount of money, to wit: many thousands of dollars. They claim these, in addition to the amount which they claim to have paid for stone that they actually did get, in excess of the contract price with the plaintiffs.] [6]</p> <p>[In addition to that, they ask you for damages in many thousands of dollars, resulting to them from the failure upon the part of the plaintiffs to perform their contract and deliver all the stone needed for the construction of this bridge, and at such time or times, as they agreed to by the contract, as claimed by the defendants. Those, then, are the important questions for your determination.] [7]</p> <p>[In addition to this they say, finding that they were not able to purchase stone sufficient for the completion of their contract with the city, they opened a quarry of their own, and sought to obtain the stone in that way, and they ask you to allow them the difference in the cost of that stone, and the price of the stone as contracted for with the plaintiffs. ... If, however, the cost of obtaining the stone by that means, the opening of their own quarry, was the same as that at which they could purchase it in the open market at the time, and that greater than the contract price with the plaintiffs, then they would be allowed that difference.] [8]</p> <p>[You will first determine what the contract was, and if it was, as claimed by the defendants, and as stated in this written memorandum, then you will consider carefully what amount of damage the defendants have suffered by reason of the failure, if any, on the part of the plaintiffs to perform their contract, and offset that against the plaintiffs’ claim here. If the amount of damage exceeds the claim of the plaintiffs, you will certify a balance for the defendants for whatever amount you find their damage to be in excess of the plaintiffs’ claim.] [9]</p> <p>Certificate for defendants for $1,267.41, upon which judgment was entered. Plaintiffs appealed.</p> <p>Errors assigned among others were (5-9) above instructions, quoting them.</p>

Appeal, No. 200, Oct. T., 1898, by defendants, from order of C. P. No. 2, Allegheny Co., July T., 1898, No. 886, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit by an indorser against a partnership on a partnership note. The substance of plaintiff’s statement is set out in the opinion of the Supreme Court.

Appeal, No. 210, Oct. T., 1898, by plaintiffs, from decree of O. P. No. 1, Allegheny Co., June T., 1898, No. 4, on bill in equity. Bill in equity for the Cancelation of stock and bonds of a corporation. Demurrer to bill. The substance of the pleadings is stated in the opinion of the Supreme Court. Error assigned was decree dismissing bill.

<p>Taxation—Charily—School—Act of May 14, 1874.</p> <p>The Act of May 14,1874, P. L. 158, Constitution of Penna. art. 9, sec. 1, exempting certain property from taxation, does not require that the grant of property to a purely public charity shall be stamped by perpetuity. The only requirement is that when the institution seeks exemption its character, whether created by charter, conveyance, articles of association or voluntary rules and regulations, shall be that of a purely public charity. If it violates its implied duty towards its contributors, equity will afford relief; if it ceases to be that on which it depends for exemption, the property at once becomes subject to taxation.</p> <p>There is nothing either express or implied in the law which disqualifies a board of trustees composed of members of a single church from managing and supervising a public charity.</p> <p>A Roman Catholic church owned a lot on which was erected a church, a convent and a school building. The legal title was in the bishop in trust for the congregation. The school building was erected by voluntary contributions and maintained by such contributions. It was open to all, free of charge, without regard to creed, color, race or condition. No revenue was derived from it. The teachers of the school lived in the convent building which was occupied exclusively by them. They were paid a small salary in addition to the privilege of residence in the convent building. Both buildings when projected, designed and erected were intended for the use to which they were put. Held, that the convent building was exempt from taxation.</p> <p>Donohugh’s Appeal, 86 Pa. 306, followed. Philadelphia v. Women’s Christian Association, 125 Pa. 572, Episcopal Academy v. Philadelphia, 150 Pa. 565, and Philadelphia v. Pennsylvania Hospital, 154 Pa. 9, criticised.</p>

<p> Equity—Trust and trustees—Evidence—Responsive answer. </p> <p>On a bill in equity to have a trust declared in stock of a corporation, plaintiff averred that the stock had been transferred to the defendant in trust for plaintiff. Defendant averred that when the plaintiff was the owner of the stock, defendant was his creditor for a large amount, and also liable as his surety; that plaintiff was financially embarrassed and unable to carry the stock; that defendant then advanced his own money, took the stock, and made the company a success, and that he had no agreement to hold the stock in trust for plaintiff. The court below held that the answer was responsive to the bill and that plaintiff’s evidence was insufficient to overcome it. It also appeared that in proceedings which had been instituted by creditors to set aside the transfer to defendant, plaintiff had said nothing of the alleged agreement with defendant, and in his testimony in those proceedings, introduced in evidence in the equity suit, he swore that it was his purpose that the legal title should be in defendant because he wanted it where it could not be reached. Held, that the court below committed no error in dismissing the bill.</p>

Appeal, No. 214, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., T., 1898, No. 828, for plaintiff on case stated. Case stated to determine the marketable title to real estate. The case stated was as follows : And now, September 26, 1898, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court, in the nature of a special verdict.

<p>Appeal, No. 217, Oct. T., 1898, by plaintiff, from judgment of G. P. No. 1, Allegheny Go., Dec. T., 1895, No. 768, on verdict for defendant.</p> <p>Trespass to recover damages for injuries to real estate caused by the construction of a bridge. Before Collieb, J.</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>1. That any evidence in the case in regard to noise, dust, invasion of privacy or anything of this sort is not the basis for recovery by the plaintiff. It is only evidence to be considered by the jury in weighing the testimonj^ of witnesses as to value of the property as unaffected by the bridge in question compared with the value of the property in question affected by the construction and operation of the bridge. Answer: Affirmed and bill sealed for plaintiff. [1]</p> <p>5. The jury has no right to consider what its view of the damages would be by reason of noise, dirt or invasion of privacy. Those circumstances are only circumstances to be considered in determining the credibility of the testimony of witnesses who testified to the market value before and after the property was affected by the bridge. Answer: Affirmed and bill sealed for plaintiff. [2]</p> <p>Verdict and judgment for plaintiff for $2,728. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p> Negligence—Master and servant—Vicious mule—Evidence. </p> <p>In an action by an employee against his employer to recover damages for personal injuries sustained from a kick of a mule, there is no error in excluding an offer of the plaintiff to show that one of the mules of the team prior to the kicking of the plaintiff had kicked and injured another driver, without any offer to show the time when, or the circumstances under which, the injury was inflicted, or by which mule it had been done. It is also proper to reject an offer to prove that the defendant’s manager had been told that the team was unsafe, where it is not accompanied by an offer to show the time, with reference to the plaintiff’s injury, when the communication was made, except that it was within two years thereof or in what respect the team was unsafe.</p>

Appeal, No. 196, Oct. T., 1898, by plaintiffs, from order of O. P. No. 3, Allegheny Co., Aug. T., 1897, No. 190, refusing to take off nonsuit. Trespass to recover damages for personal injuries. Before McClung, J. At the trial it appeared that the accident occurred about noon on June 4,1893, at a point on the Tarentum and Saxonburg state road where the traveled portion of the road was smooth, level and about fifteen feet wide.

<p>Appeal, No. 218, Oct. T., 1898, by defendant, from order of C. P. No. 2, Allegheny Comity, Oet. T., 1898, No. 72, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit upon a policy of fire insurance. Before White, P. J.</p> <p>The statement of claim averred that the property insured had been destroyed by fire about 10:30 o’clock p. M., on April 12, 1898; that on April 14, 1898, the defendant was notified of the fire, but refused or declined to participate in any ascertainment of the loss, or to appoint appraisers as provided in the policy; that appraisers appointed by the plaintiff and other insurance companies appraised the property destroyed, and that the defendant’s liability was fixed by such appraisement at the sum of $2,099.77. The defendant filed the following affidavit of defense: '</p> <p>The Spring Garden Insurance Company, represented by Clarence E. Porter, who is the secretary of said company, defendant, being duly affirmed, doth depose and say:</p> <p>The said defendant has a just and lawful defense to the whole of plaintiff’s claim, the nature and character of which is as follows, to wit: On April 5, 1898, the Penn Plate Glass Company, by its duly authorized agent,. made application to J. T. Cort, the agent of defendant company at Jeannette, Westmoreland county, Pa., for a policy of insurance for $3,000 in defendant company, and on said day defendant’s said agent countersigned and delivered policy No. 5112 of defendant company to said agent, said policy being in the sum of $3,000. Defendant’s said agent made report of said transaction to defendant, which report was received at the home office in Philadelphia, Pennsylvania, on April 7,1898. Defendant being unwilling to ratify said transaction or to assume the risk covered by said policy, instructed its said agent by telegram to immediately cancel said policy, the said telegraphic message having been sent on April 7, 1898, and having been received by the said J. T. Cort, agent aforesaid, on the same day, as affiant is informed, believes and expects to be able to prove. The said J. T. Cort did, on the same day, to wit: on April 7,1898, duly notify the agent of the said Penn Plate Glass Company of said instruction and of the cancelation by defendant of said policy, the said agent of the Perm Plate Glass Company being duly authorized to receive such notice of the cancelation of said policy, of all of which affiant is informed, believes and expects to be able to prove. The Penn Plate Glass Company had not theretofore and has not since paid the premium which was the consideration for said policy, or any part thereof. By the terms of said policy, the defendant was entitled to cancel the same by giving five days’ notice of such cancelation, as appears bj lines fifty-one and fifty-two in the copy of the policy filed as part of plaintiff’s claim. The loss upon which plaintiff bases its claim in this case did not occur until April 12,1898; wherefore the plaintiff had five days’ notice of the cancelation of said policy by defendant prior to the time when the alleged fire took place. The defendant accordingly denies that the plaintiff is entitled to recover any sum whatsoever upon said policy against the defendant.</p> <p>For further defense the defendant by the above named affiant says, that even if said policy was not canceled at the time when plaintiff’s alleged loss by fire occurred, it is not true that plaintiff would be entitled to recover the sum of $2,099.77, on said policy from the defendant, but the fact is that the proportion of plaintiff’s loss which the defendant would be bound to pay under the terms of said policy, would bo much less than said sum, as affiant is informed, believes and expects to be able to prove, on the trial of this case.</p> <p>The supplemental affidavit of defense was as follows:</p> <p>In addition to the defense set forth in the former affidavit whereby defendant denies liability for any part of the plaintiff’s claim in this case, the defendant doth further depose and say: It has a just and lawful defense to a part of the plaintiff’s claim, even if the policy sued on were valid and existed at the time of the fire as alleged in the plaintiff’s statement of claim, the nature and character of which is as follows, to wit: The plaintiff claims to be entitled to recover from the defendant the sum of $2,099.77 on said policy, on the ground that said amount would be the defendant’s proportionate share of the loss sustained by the plaintiff through said fire. The defendant is informed, believes and expects to be able to prove, that plaintiff based said averment on the ground that plaintiff’s loss upon buildings injured by said fire was $62,000 and upon equipment, so injured, was $228,734.63, and upon stock so injured was $42,034.24, making a total loss upon said items of $332,768.67, which was covered by insurance in various companies, amounting in all to $475,435.69. The defendant is informed, believes and expects to be able to prove that plaintiff’s loss, by reason of said alleged injury to the plaintiff’s equipment covered by said various policies of insurance, was not so much as $228,784.68, but on the contrary did not exceed the sum of $60,000, and that therefore the plaintiff’s total loss covered by said various policies of insurance was not the sum of $882,768.67, but on the contrary it did not exceed the sum of $164,084.24, and that the proportionate share of said loss which, under the terms of said policy sued on in this case, should be borne by the defendant, would not be the sum of $2,099.77, but on the contrary would not exceed the sum of $1,085.</p> <p>Moreover the plaintiff has not paid the premium on said policy of insurance or any part thereof; said premium, as shown by said policy of insurance was the sum of $52.00. If said policy was not canceled, but was valid and existent at the time when the alleged fire occurred, the whole of said premium or sum of $52.00 is justly owing by the plaintiff to the defendant, and the defendant is in law and equity entitled to deduct the same from any amount which would otherwise be owing on said policy by the defendant to the plaintiff, wherefore, if deducted, the whole amount so owing could not exceed the sum of $983.</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>

Appeal, No. 220, Oot. T., 1898, by the Pittsburgh Library Association, from order of C. P. No. 8, Allegheny Co., Feb. T., 1898, No. 227, making absolute a rule for judgment for want of a sufficient affidavit of defense. Scire facias sur mortgage. Before Doty, P. J., of the 10th judicial district, specially presiding.

Appeal, No. 15, Oct. T., 1898, by the Pittsburgh Library Association, from order of C. P. No. 3, Allegheny Co., Feb. T., 1898, No. 583, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit on a bond. Before Doty, P. J., of the 10th judicial district, specially presiding. The Pittsburgh Library Association intervened and filed an affidavit of defense, which was in substance as follows: 1.

<p>Appeal, No. 81, Oct. T., 1898, by William Hamilton et al., from decree of C. P. No. 1, Allegheny Co., June T., 1897, No. 156, on bill in equity.</p> <p>Bill in equity to determine the ownership of a beneficiary-fund.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 166, Oct. T., 1898, by defendants, from judgment of C. P. No. 1, Allegheny Co., March Term 1896, No. 281, on verdict for plaintiffs.</p> <p>Issue to determine the validity of a judgment. Before Collier, J *</p> <p>From the record it appeared that the judgment had been entered on a bond given by defendants to secure the compliance on the part of H. Grant Henderson with the terms of an agreement between him and plaintiffs for the settlement of the partnership account. The agreement provided that the award of an expert accountant should be conclusive. The accountant after examining the boohs and accounts prepared and delivered an award in writing to the parties. Subsequently, upon the plaintiffs calling his attention to an error, he prepared a second award, which was as follows:</p> <p>Final Summary.</p> <p>“Pittsburg, Pa., January 20th, 1896.</p> <p>“ Messrs. Hartley & Henderson,</p> <p>“ Allegheny, Pa.</p> <p>“ Gentlemen: The supplement herewith submitted has been necessitated on account of omission in not heretofore, or prior o the final closing of Chestnut street books, taking account of the loss of the following book accounts, viz:</p> <p>Book accounts, per appraisers’ inventory . $9,662.33</p> <p>Also the Sandusky street account of Hartley &</p> <p>Henderson for...... 2,904.86</p> <p>“ The profit and loss account having been closed, the same are now charged off to Capital Stock Account, direct and fully detailed, per adjustment entry made on Journal ‘ C ’ 1, page 31, to which I refer you for further particulars.</p> <p>“ W. W. Edgab,</p> <p>“Auditor.”</p> <p>SUPPLEMENT.</p> <p>(Covering revision of previous issue.)</p> <p>Hartley & Henderson, Asset and Liability Statement, Chestnut street office.</p> <p>Assets—July 81, 1895.</p> <p>Cash balance on hand.....$ 545 30</p> <p>Horse account. Two lead horses . . . 200 00</p> <p>Fioats and flats, per appraisers’ inventory ....... 12,298 47</p> <p>Coal account, per appraisers’ inventory:</p> <p>Coal.......11,288 51</p> <p>Feed...... 207 38</p> <p>1,498 79</p> <p>Book accounts due as per Scheduled” .....$19,713 70</p> <p>Less amount S. S. Branch—account H. & H..... 2,904.86</p> <p>16,808 84</p> <p>$31,346 40</p> <p>Liabilities—July 81, 1895.</p> <p>Book accounts due others per Schedule “ C ” $16,230 10</p> <p>Bills payable outstanding notes per Schedule “G”........10,051 04</p> <p>B. M. Hartley, one third capital stock, or present worth this date ..... 1,688 42</p> <p>C. W. Hartley, one third capital stock, or present worth this date..... 1,688 42</p> <p>H. G. Henderson, one third capital stock, or present worth this date..... 1,688 42</p> <p>$31,346 40</p> <p>FINAL SUMMARY.</p> <p>Mr. H. G. Henderson’s indebtedness to the firm of Messrs. Hartley & Henderson is composed of the following items:</p> <p>Cash account (Sandusky St. Branch) $4,875 31</p> <p>Personal account (Sandusky St. Branch)..... 2,202 82</p> <p>Personal account (Chestnut St. Branch)..... 2,388 71</p> <p>-$8,966 84</p> <p>Credit.</p> <p>By amount due H. G. Henderson per capital stock Chestnut street books,.....$1,688 42</p> <p>PercapitalstockSanduskystreet books, 1,212 42</p> <p>-$2,900 84</p> <p>Per account indebtedness due firm of Hartley & Henderson by Mr. H. G. Henderson $6,066 00</p> <p>At the trial, plaintiffs offered in evidence the above (second) award.</p> <p>Defendants objected to the offer as incompetent and irrelevant, on the ground that there is no award under the plaintiffs’ testimony, and that the offer is not even evidence of the award.</p> <p>The Court: Objection overruled and bill sealed for defendants. [1]</p> <p>Defendants’ point and the answer thereto were as follows :</p> <p>The court is respectfully requested to charge that under the evidence the verdict must be for defendants. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiffs for $5,625. Defendants appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2) above instruction, quoting it.</p>

<p>Appeal, No. 137, Oct. T., 1898, by defendant, from judgment of 0. P. No. 2, Allegheny Co., Jan. T., 1897, No. 755, on verdict for plaintiff.</p> <p>Assumpsit on a bond. Before White, P. J.</p> <p>At the trial it appeared that the bond upon which suit was brought was given on May 18,1896, for the sum of $2,585.27 in settlement of an account which the defendant had stated to the plaintiff.</p> <p>Defendant’s counsel offered to prove by certain witnesses that prior to the giving of the mortgage in May, 1896, the defendant paid to the plaintiff, by assignment on March 8, 1895, the sum of $827.52; and that in the giving of the mortgage of May 8, 1896, no credit was allowed him on account of said assignment; and further, that on July 7, 1894, the defendant assigned to the plaintiff a mortgage, bond and judgment thereon, against one Johnston, for $851, and that at the time of the giving of the bond and mortgage sued on, no credit was allowed him for the payment of this amount, and the same was left out of the said mortgage and bond either by accident or mistake; and that the said assignments were made as part payment of the indebtedness of the defendant to the plaintiff.</p> <p>Objected to by plaintiff as incompetent and irrelevant.</p> <p>By the Court: The plaintiff has already stated that there was a settlement between him and the defendant at the time the bond and mortgage of May, 1896, were given, and that it was based upon the figures of the defendant, and that he has those figures. Of course, the proper way is now for the defense to call for that statement and those figures, and that would show whether there was any mistake or not. Without that the defendant now wants to go into matters occurring a year before the bond and mortgage of May, 1896, were given. Without proving that there was any direct omission of them at that time, he wishes to infer that there was an omission without proving it. He must prove that by accident or mistake that was omitted from the settlement as made in May, 1896. The attempt is here to go back and rake up transactions which cannot possibly or probably be explained now. The defendant must show directly that there was some omission at the time the bond and mortgage of May, 1896, were given. Without that, all this testimony is irrelevant.</p> <p>Objection sustained, and bill sealed for defendant. [1]</p> <p>The plaintiff, called on cross-examination by the defendant, having testified that he received from the defendant an assignment of a mortgage in the sum of $827, for which he gave no credit in the settlement at the time of the giving of the mortgage and bond in suit, the defendant proposed to ask the plaintiff further questions relating to the transaction involved in that credit of $827, for the purpose of showing that the money thereon assigned, or the mortgage thereon assigned, belonged to the defendant, J. E. Glass, and that it should have been included in the settlement at the time of giving the bond and mortgage in suit.</p> <p>Objected to as incompetant and irrelevant.</p> <p>By the Court: This evidence is irrelevant, for reasons given by the court previously in ruling former offer.; and in the second place, the witness has already testified that that has nothing at all to do with this case. The objection is sustained and bill sealed for defendant. [2]</p> <p>Defendant’s counsel proposed to offer in evidence the receipt found on the mortgage record, vol. 642, page 654, in the following language:</p> <p>“ I, J ohn F. Steele, mortgagor, do acknowledge the payment of $800 on account of the principal moneys secured by this mortgage, and in consideration thereof, do release from the lien of this mortgage lot No. 173 in C. P. Jones’s plan recorded in plan book, vol. 12, page 238. Witness my hand and seal, February 12, 1894.</p> <p>[Seal.] John F. Steele.</p> <p>“Witness, George P. Hetzel.”</p> <p>This for the purpose of showing the payment of $800 on this mortgage, which the witness has testified was not included in any subsequent mortgage given, and has also said that he did not make any credit of it in the settlement.</p> <p>By the Court: The record may be put in evidence in connection with the witness’s testimony. The witness said he signed that release of the mortgage, but also said he never received any money on it. Now this is the testimony brought out by the defendant, and the defendant cannot put that in evidence without further evidence to overthrow the evidence of the witness on the stand. If they have other evidence to show that that money was paid, that will be received. The evidence of the witness on cross-examination that he never received it, is not conclusive against the defendant, but he cannot overthrow it in this way; therefore the objection is sustained and bill sealed for defendant. [3]</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $2,885.71. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions.</p>

Appeal, No. 205, Oct. T., 1898, by plaintiff, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1896, No. 860, on bill in equity. Bill in equity to restrain transfer of property.

Appeal, No. 216, Oct. T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny County, June T., 1897, No. 911, on verdict for plaintiff. Assumpsit on a policy of fire insurance. Before Collier, J. The facts appear by the opinion of the Supreme Court. Defendant’s points and the answers thereto among others were as follows: 1.

Appeal, No. 54, Oct. T., 1898, by defendant, from order of C. P. No. 8, Allegheny Go., Nov. T., 1897, No. 463, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit upon a policy of life insurance. Rule for judgment for want of a sufficient affidavit of defense. The averments of the statement sufficiently appear in the opinion of the Supreme Court.

Appeal, No. 174, by plaintiffs, and No. 189, by defendant, Oct. T., 1898, from decree of C. P. No. 3, Allegheny Co., Feb. T., 1894, No. 726, on bill in equity and cross-bill. Bill in equity and cross-bill for injunctions.

<p> Practice, Supreme Oourt—Improper assignments of error. </p> <p>It is not commendable practice to assign error to all the rulings of the court below, simply because they are adverse to the party appealing, when in point of fact the great bulk of them are upon undisputed conditions of the testimony and upon legal propositions which cannot possibly be controverted.</p> <p> Trusts and trustees—Accounts. </p> <p>Where a person having the legal title to property executes an instrument in writing, in which he recognizes that other parties have an interest in the property, and agrees that if he sells the land, or any pai't thereof, he will apply the proceeds to repay himself for any moneys paid out by him, and if there is any surplus left over after paying himself for moneys he had paid out or is liable to pay, he will pay the surplus to such other parties, such person is a trustee, and is bound to furnish to the parties mentioned in the instrument a full account of all his dealings and transactions in connection with the property.</p> <p> Trusts and trustees—Equity—Partition—Jurisdiction. </p> <p>A court of equity has jurisdiction in a case where a bill is filed for an account and for partition founded upon an equitable title.</p> <p>A bill in equity for an account and for partition may be filed in the county where the lands are situated, although the defendant, a trustee, is a resident of another county.</p> <p>It is no defense to a bill in equity for an account and partition that another bill has been filed in another county, where it appears that such bill had been filed against the defendant by another person; that it did not embrace one of the agreements relied upon in the first suit; that it did not ask for partition of any lands, nor for anything more than an account.</p> <p> Trusts and trustees—Equity pleading—Equity practice—Laches. </p> <p>Where a cotenant of a trust estate bought and held part of the trust estate for his sole benefit, a decree against him in a bill in equity, holding him liable as a trustee ex maleficio, cannot be sustained where it appears that the plaintiff had acquiesced in the defendant’s claim to the property for many years; had said nothing about it in the bill; had not asked for any relief as against him on that account, nor had asked for any decree of any kind against him on that or any other account.</p>

<p>Appeal, No. 153, Jan. T., 1898, by Edward K. Clark and Roger P. Clark, from decree of C. P. McKean Co., Feb. T., 1897, No. 3, on bill in equity.</p>

<p>Appeal, No. 52, Oct. T., 1898, by John Widdowson, from decree of O. 0. Indiana Co., June T., 1897, No. 81, refusing issue devisavit vel non.</p> <p>Appeal from register of wills admitting will to probate.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing appeal.</p>

<p>Appeal, No. 173, Oct. T., 1898, by defendant, from judgment of C. P. Greene Co., Oct. T., 1896, No. 47, on verdict for plaintiff.</p> <p>Assumpsit on a policy of life insurance. Before Cra w-ford, P. J.</p> <p>At tbe trial it appeared that tbe policy contained tbe following provision:</p> <p>“ Death as the result of engaging in a duel, or in violation of law, and self-destruction within two years from date hereof, whether sane or insane, are not risks assumed by the company under this contract; otherwise this policy will be incontestable, except for fraud or nonpayment of premium.”</p> <p>On the margin of the policy was the following note: “ Premium payments having been made for ten full years, this contract becomes a paid-up participating policy and the values endorsed for succeeding years are guaranteed as payable at the periods specified, if surrendered.” Signed, “Geo. W. Reed, Secretary.”</p> <p>This marginal note was on the policy at the time of its delivery to the insured by Holland, the company’s agent.</p> <p>The defendant offered to prove by Mr. Holland that at the time the policy in suit was negotiated he was the agent who transacted the business for the defendant; that he delivered the policy to the insured in the same condition in which it appears today, and that at that time there was but $182.63 paid by the insured on that policy to him, as agent of the company, and that he has no interest whatever in the result of this suit. This for the purpose of explaining the marginal note on this policy signed by the secretary of the company as to whether the same is a receipt or an option.</p> <p>Plaintiff objected, first, to the competency of the witness; the other party to the contract or thing in action being dead, and his mouth being closed by death, and no one else being present, and there being no offer to show that any other person was present who is now living to testify on the subject, this witness is incompetent to give evidence as to any matter that occurred at that time ; second, the contract between the parties being printed and in writing, parol proof is incompetent as to the understanding of the parties or as to the contents thereof; third, it is incompetent to permit the defendant to contradict or vary the written contract by parol proof.</p> <p>By the Court: Objection sustained and exception sealed for the defendant. [4]</p> <p>The defendant offered further to show by the witness on the stand that he is the agent who negotiated the policy in suit, that he delivered the same to the insured; and further to show by him the meaning of the marginal note on the policy in suit; and this for the purpose of showing that the same was understood to be a part of the contract and not a receipt for ten annual payments on said policy.</p> <p>Same objection was made as to the former offer.</p> <p>By the Court: Objections sustained and exceptions sealed for defendant. [5]</p> <p>The court charged in part as follows:</p> <p>[The clause on the face of the policy purporting to be a receipt, being ambiguous, we deem it the duty of the court to interpret it. If any ambiguity appears on the face of any writing we deem it the duty of the court to interpret it. And under that we hold it the duty of the court to interpret it against the company issuing the policy of insurance, and on this ground we think that under all the evidence in the case here, your verdict ought to be for the plaintiff for the amount of the policy, with interest from the date of the death of Dr. James A. Sargeant down to the present time. And with your consent the prothonotary will now take your verdict for that amount in favor of the plaintiff, Priscilla S. W. Sargeant.] [6]</p> <p>Plaintiff’s point and the answer thereto were as follows:</p> <p>1. This suit having been brought on a life insurance policy issued by the defendant company on November 4,1892, for the sum of $2,500, payable on the death of James A. Sargeant to his wife, Priscilla S. W. Sargeant, the plaintiff in this suit, on the condition a premium of $182.63 be paid to said company upon the delivery of said policy, and a like sum on November 4, in each year for the term of ten years; and said premium having been paid for ten full years, the contract became a paid-up participating policy; and the said James A. Sargeant having died on July 21,1893, the plaintiff is entitled to a verdict at your hands for the amount of said policy, to wit: the sum of $2,500, together with interest thereon from the date of said death down to this time, and your verdict should be for that amount. Answer: Affirmed. [1]</p> <p>Defendant’s point and the answer thereto were as follows:</p> <p>1. If the jury believe from the evidence that James A. Sargeant, the insured, destroyed his own life by his own act within two years of the date of policy their verdict should be for the defendant. Answer: Refused. [2]</p> <p>2. Under all the evidence in this ease the verdict of the jury must be for the defendant. Answer: Refused. [3]</p> <p>Verdict and judgment for plaintiff for $3,150. Defendant appealed.</p> <p>Errors assigned were (1-3, 6) above instructions, quoting them; (4, 5) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 203, Oct. T., 1898, by plaintiff, from decree of C. P. Lawrence Co., March T., 1898, No. 1, on bill in equity.</p> <p>Bill in equity to have an ordinance and municipal contract declared illegal and void. Before Wallace, P. J.</p> <p>The court found the following facts :</p> <p>1. Ellwood City is a borough duly incorporated, having its borough council.</p> <p>2. The Ellwood Water Company is a corporation duly incorporated.</p> <p>3. H. N. Marshall is a taxpayer of the borough of Ellwood City.</p> <p>4. Samuel A. Roelofs, at the time of the passage of the ordinance providing for the contract- with the Ellwood Water-Company, was a member of the borough council for the borough of Ellwood City.</p> <p>5. At the time of the passage of this ordinance, Samuel A. Roelofs’s name appeared upon the stock book of the Ellwood Water Company as a stockholder, and that his name also appeared upon the minutes of the meetings held by the Ellwood Water Company as secretary of said water company.</p> <p>6. He acted as secretary of the water company at its meetings, signed certificates, and made affidavits as secretary.</p> <p>It is contended, however, that while he appeared there as secretary he was simply a nominal secretary, and that while the certificate of stock stood in his name, that he was not the owner of any stock, but simply held in trust for somebody else or some other corporation. So far as our findings of fact are concerned we can come to but the one conclusion, and that is, that Samuel A. Roelofs was at the time of the passage of this ordinance secretary of the Ellwood Water Company and also a stockholder of said company, and so we find. Further, we find that at the time of the passage of the ordinance making the contract with the Ellwood Water Company that there were five members of the town council present, which was a clear quorum necessary to conduct the business of the borough; that the five members present voted, including Mr. Roelofs’s vote, in the affirmative, and that the ordinance was declared passed. In our view of this case these are about all the facts that we deem it necessary to find outside o£ those which are laid in the bill and admitted by the answers.</p> <p>CONCLUSIONS OP LAW APPLIED TO PACTS POUND.</p> <p>Having found that Mr. Roelofs was a stockholder in the water company at the time he voted for the ordinance we can come to but one conclusion as to his vote and that is, that it was a violation of the 66th section of our criminal code and by reason of its being a violation of the code, was illegal and the vote was illegally cast. .The 66th section of our criminal code, providing, in substance, that no person interested in any corporation holding or desiring a contract with the borough, or any municipal corporation shall vote or be a member of the borough council, and the so voting is declared a misdemeanor. So, being a violation of the law, and being a misdemeanor, his vote is clearly illegal. The next question is, what effect does the vote of Samuel A. Roelofs have upon the validity of the ordinance ? As it is urged by the plaintiff in this case that the fact of his vote being illegal the ordinance passed is illegal and void. And in support of this position .he relies principally upon two cases which were quoted and argued fully in our Supreme Court. The first case is that of Milford v. Milford Water Company, 124 Pa. 610, wherein the contract with the water company was held void and illegal. In the discussion of that case by the Court it was found as a fact that there were six votes cast for the ordinance making the contract with the Milford Water Company, and also found as a fact that four of the six members who voted for the ordinance making the contract were stockholders of the water company. These four being stockholders of the water company, violated the law when they voted for that contract, and by violating the law they made their votes illegal, and by striking out the four votes which were illegally cast it left but two legal votes in that council for the ordinance, and the ordinance was illegally passed and Void. This was so held by the Supreme Court, but in their opinion they decided nothing else. Again, the counsel rely and urge upon us the case of Trainer v. Wolfe, reported in 140 Pa. 288. This is a case wherein a school board contracted with Mr. Wolfe for the purchase of land for a school building and he was enjoined and the contract declared void. And some of the facts in the case reveal this status: Mr. Wolfe, the landowner, and the party >who sold the land to the school board, was at the time he made the contract for the sale of the land, treasurer of the school board and also a member thereof, and when the vote was taken to make the contract, Mr. Wolfe cast the deciding vote in favor of the purchase of his own land. This was clearly in violation of the 66th section of our criminal code, and was an illegal vote. Hence, his vote being illegal should not count and the resolution not having a majority of those present failed.</p> <p>[As a matter of law, and it is all through the long line of decisions, we find that all ordinances that are passed by a majority of legally cast votes, and duly approved, are valid. Any ordinance that lacks a majority of legal votes must surely be invalid.] [1]</p> <p>And this raises the question, if there be an invalid vote cast, does that invalidate the ordinance passed by a majority of valid votes ? Let us see: To illustrate, we will take the city council of the city of New Castle with its twenty-one members. Would it be reasonable to say, or would it be good law to urge, that if the twenty-one voted for an ordinance and it afterwards appeared that one of these members had cast an illegal vote—had committed a crime, had violated our criminal code,—to say that that illegally cast vote invalidated the ordinance passed by the twenty legal voters ? Or, take the city of Pittsburg with over one hundred councilmen and apply the same reasoning, and could any court say that because one member of council had east an illegal ballot and thereby made himself liable to a penalty, that that illegal ballot would vitiate and make void all the business of the council in which he had cast a vote without regard to whether his vote was necessary to pass the ordinance or not. We cannot look at the law in that way. We are satisfied that if the passage of the ordinance depended upon the vote, and that was illegal, then it should be thrown out and the ordinance would be declared invalid.</p> <p>In the case before us wo have five members present and five affirmative votes, including Mr. Roelofs’s, for the ordinance. Mr. Roelofs’s vote was clearly illegal, hence it should be thrown out and cast aside. But what effect does the casting aside or the declaring of his vote illegal have upon the ordinance ? [The minutes of the council clearly show that a majority of the councilmen present voted for the ordinance, and while Mr. Roelofs’s vote was illegal and cast aside, the ordinance would be valid without his vote.] [2]</p> <p>[So wo cannot say, by applying the law to the facts as we have found them, that this ordinance is invalid, and we hold, as a matter of law, that the ordinance passed making the contract with the Ellwood Water Company, was a valid contract,] [8] there being no question raised as to any other matters pertaining to it except the evidence of Mr. Roelofs. With this view of the case and these findings of fact we think it unnecessary for any further discussion.</p> <p>[And now, September 16, 1898, the bill in this case is dismissed with costs.] [4]</p> <p>Errors assigned were (1-4) portions of opinion as above, quoting them.</p>

<p>Appeal, No. 33, Oct. T., 1898, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1897, No. 240, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>Stowe, P. J., found the facts to be as follows:</p> <p>Without entering into a minute detail of the minor facts of this case, it will be sufficient to say that the plaintiffs are the owners of certain pieces of property fronting for a considerable distance on Duquesne Way, in the city of Pittsburg; that said lots were composed of parts of lots in the general plan of Pitts-burg, made by the proprietors who owned the land running to the river, in fee simple, and are described in said plan by memoranda as being sixty feet in width and extending from Penn street, as shown on said plan, to the Allegheny river. Subsequently, the proprietors by certain deeds granted and conveyed said lots to various persons in fee, describing them as extending to the Allegheny river, substantially as stated in the first, second and third paragraphs of plaintiffs’ bill. In pursuance of two acts of assembly, approved March 31, 1836, and June 3, 1836, the said Duquesne Way was laid out as a public street, forty feet wide, from Water street, on the Monongahela river, to a point beyond plaintiffs’ properties, and the ground between said way and low water-mark of the Allegheny river was taken and appropriated for public use as a public landing. The said acts declaring that the same should forever thereafter be occupied and employed as a public landing, and from that time till the commission of the acts complained of in plaintiffs’ bill, the space in front of plaintiffs’ said properties has continued to be open and unobstructed and used as a public landing whenever occasion required; plaintiffs have large buildings erected on said lots for business purposes.</p> <p>The defendant has entered upon-the ground in front of plaintiffs’ properties thus appropriated for a public landing, and has appropriated the same to his own use, and has erected a large structure thereon, fronting at or near low water-mark on the Allegheny river, which interferes with the landing in front of plaintiffs’ properties, as well as plaintiffs’ free access thereto. Defendant claims that he has a just and legal right to erect and maintain the structures placed by him upon the portion of the wharf in question, and sets out in his answer, by way of justification therefor, that under an act of assembly of this state, approved March 31, 1836, and a certain ordinance of the city, and agreement in writing made and entered into between him and the city in pursuance thereof, and, also, under the power and authority of the secretary of war of the United States, the right was vested in him to erect, maintain and use the said part of said landing and the structures erected thereon in the manner and for the purpose intended by him, to wit: “to use the said place for the purpose of a public landing, and for no other purpose whatever, and, in order to accomplish such purpose, to build, as an improvement to such public landing, that which is necessary to enable said portion of said wharf or public landing to be used as a public landing—a roadway from the northern line of Duquesne Way to low water line; said roadway to be lower than the grade of Duquesne Way, and supported by piles, driven according to the plans and under the direction of and to the satisfaction and approval of the director of the department of public works and the United States engineer in charge, and in such manner that all driveways reaching to and returning from said tract of ground shall be continually kept open during the term mentioned in said lease, and in such manner as not to interfere with driving, hauling or passing over and along the surface of said Allegheny wharf, either now or in the future, when said wharf is graded and paved so that hauling can be accomplished thereon, and the said roadway (he avers) will, in fact, not constitute any obstruction to travel along and over said wharf more than the abutments of the different bridges.” Defendant also avers that said landing has never been graded or fitted for a public landing, has never been used for a public landing or wharf, and could not be used for the purpose of hauling, and he proposes to improve and put in proper shape and condition for a public landing said portion of said wharf.</p> <p>The court entered the following decree:</p> <p>And now, to wit: November 29, 1897, the above entitled case having been heard on bill, answer and replication and agreed statement of facts, and having been argued by counsel for plaintiffs and defendant, it is now ordered, adjudged and decreed as follows:</p> <p>1. The ordinance of the city of Pittsburg, approved January 27, 1897, purporting to authorize the lease of the premises described in plaintiffs’ bill, is illegal, null and void.</p> <p>2. The lease dated March 22, 1897, purporting to be made under and in pursuance of said ordinance, and being the same under which defendant claims to use and occupy the premises described in the bill, is of no legal effect and confers no authority on him so to do.</p> <p>3. The buildings and structures of every kind placed upon the premises by the defendant, as described in the bill and answer in this case, have been placed there without authority , of law, and are a public nuisance, and should be removed by the defendant at his own cost.</p> <p>4. The said defendant be and is hereby ordered, adjudged and decreed to remove said nuisance within thirty days, and be, and is hereby, enjoined from keeping or maintaining the said buildings and structures or any of them, or any part of them, on the said premises, after the expiration of said period, and from entering upon, using and occupying said premises under said ordinance and lease.</p> <p>And it is further ordered, adjudged and decreed that the defendant pay the costs of this proceeding.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Corporations—Mortgages—Railroads—Resolution of January 21, 1843.</p> <p>A mortgage given by a railroad company after debts to contractors and others had been incurred is only illegal and void under the joint resolution of January 21, 1843, P. L. 367, as against “ such contractors, laborers and workmen.” As between the parties to the mortgage and as against all other persons the mortgage is valid.</p> <p> Receivers—Bales—Corporation. </p> <p>Liens upon property held by a receiver are not divested by virtue of a sale made by him. If the order of sale make no mention of such prior lien or of incumbrances of any kind the sale passes the title in the property as it is in the receiver, and subject to whatever incumbrances there may be existing upon it.</p> <p>Receivers—Sales — Corporations — Foreclosure—Equity—Jurisdiction— Acts of April 11, 1862, and March 23, 1877.</p> <p>In Pennsylvania, under the Acts of April 11,1862, P. L. 477, and March 23, 1877, P. L. 32, the jurisdiction under which corporation mortgages are foreclosed, so as to sell the property and franchises of railroads and other designated corporations, is the general equity jurisdiction, and not the common-law jurisdiction of the courts. It therefore follows that in cases of sales by receivers the general equity rule that liens are not barred unless the holder has notice of the proceedings is in force.</p>

<p>Appeal, No. 90, Oct. T., 1898, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1896, sustaining exceptions to report of referee.</p> <p>Exceptions to report of referee, William R. Blair, Esq.</p> <p>The report was as follows:</p> <p>1. On May 9,1890, the city of Pittsburg filed two municipal liens at Nos. 60 and 101 of July term, 1890, municipal lien docket, in the sums of $773.44 and $504.34 respectively, against certain land in the twenty-first ward of the city of Pittsburg, belonging to the heirs of John M. Murtland, deceased, the .amounts fixed by viewers as alleged benefits to said land resulting from the opening of Grazier street, which is now called Hamilton avenue, in the city of Pittsburg.</p> <p>2. From the report of viewers aforesaid the Murtland heirs, on November 20,1889, at No. 647 of December term, 1889, appealed, and on April 8,1891, their appeal was sustained, the report of viewers was reversed and set aside by the court, and it was ordered that all said proceedings, so far as they affect the property of appellants, be quashed, and the liens aforesaid be stricken from the record.</p> <p>3. In the summer of 1890 the Murtland heirs entered into a contract for the sale of the land aforesaid, clear of all incumbrances at a certain price. At this time Mary B. Murtland, the widow, and John A. Murtland, the plaintiff in this action, a son of John M. Murtland, deceased, were the administrators of the estate of said decedent, and said Mary B. Murtland died before the institution of this action.</p> <p>4. After an examination of the title to the land aforesaid, the purchasers aforesaid refused to take it, unless the liens were removed, and thereupon Mr. O. O. Dickey, who was counsel for the heirs as well as for the administrators of the estate of John M. Murtland, deceased, called at the office of the city attorney for the purpose of endeavoring to make some arrangement for getting rid of the said liens against said land and securing the city in case the land should be held liable for said assessments.</p> <p>Mr. Dickey there met W. H. House, at that time the clerk of the city attorney, and the person who, for the city attorney, attended to all matters relating to the damages and assessments for opening streets, stated to him the purpose of his visit, and proposed the following arrangement be made in regard to said liens, to wit: That said liens be marked satisfied of record by the city attorney, the amount of the liens and costs being paid into the city attorney’s hands to be held by him upon condition that if the appeal aforesaid was sustained, the money should be refunded, or if sustained in part, a ratable part should be refunded. Mr. House, after consulting with W. C. More-land, the city attorney, in regard to the proposal of Mr. Dickey, reported to Mr. Dickey that the arrangement proposed by him could be made, and thereupon Mr. Dickey, on behalf of the plaintiff, delivered to Mr. House, representing the city attorney, a check of Mary B. Murtland, administratrix of the estate of John M. Murtland, deceased, for the amount of said liens and costs, to wit: $1,298.78, and on the same day, September 10, 1890, the liens were marked satisfied of record, by Mr. House, representing the city attorney. Said check was subsequently deposited in Mr. Moreland’s account in the Allegheny National Bank, Pittsburg, along with other funds belonging to the city derived from street improvements, and was duly paid by the bank on which it was drawn.</p> <p>5. It further appears that at the time of this transaction, and for years previously, it was the practice for the city attorney in cases of opening the streets, to collect and receive the money assessed as benefits, disburse the same to those entitled to damages without the same passing into the hands of the city treasurer. In this case the amount received from parties assessed, including the sum received from plaintiff was $4,798.97, and the amount paid out $15,935.76, the difference $11,141.79 being paid by the city of Pittsburg. The referee finds therefore that the plaintiff’s money was actually received and used by the city in its own exoneration of its liability to those entitled to damages.</p> <p>6. Shortly after plaintiff’s appeal was sustained, demand was made upon the city attorney for the return of plaintiff’s money, but the same has not been returned.</p> <p>CONCLUSIONS ON LAW.</p> <p>While at first the referee was of opinion that this case came within the ruling of Peebles v. The City of Pittsburg, 101 Pa. 304, and other cases of the same class holding that a voluntary payment may not be recovered back, as urged by the counsel for the city, subsequent reflection has led him to the conclusion that this case must be decided upon other principles. The referee is of opinion that the transaction between the counsel for the parties whereby the money of the, plaintiffs came into the possession of the then city attorney cannot, properly speaking, be regarded as a payment at all. A payment, in a sense within the above rule, is anything which is given to and accepted by a person as a discharge and satisfaction of an obligation. The idea of discharging or satisfying a demand claimed against the party paying is an essential element to a payment within the above rule. But in this case all idea of discharging the obligation,, evidenced by the liens, is wanting, both parties to the transaction, to wit: the counsel acting as the agents of the plaintiff and of the city agree that the transaction was in effect a mere substitution of- the money for the liens. There can be no doubt that an agreement such as was made in this case, if made between private individuals, parties to a dispute at law, would be recognized and enforced as a trust upon the fund deposited. While it may be that the duty of the city attorney was limited to the collection of these liens as the learned counsel for the city contends, and that the agreement made with the plaintiff was outside his powers as an officer of the city, yet it seems to the referee, and he so holds, that if the city repudiates the arrangement it must repudiate in toto, and that it may not affirm in part and repudiate in part, it may not take the money and repudiate the conditions under which it was given: Hughes v. -Bank, 110 Pa. 428.</p> <p>It is plain beyond question that the city has obtained and used the money of the plaintiff to which it had and, as the land against which the lien was filed did not abut on the improvement, could have no lawful right, in direct violation of the agreement in which it was deposited in its own officer’s hands.</p> <p>It is proved, and if not admitted, it is not disputed, that the land of the plaintiff, beclouded by these liens, did not abut on the line of Hamilton avenue at all, but was separated therefrom by a block of intervening property. It is plain, therefore, not only was it not subject to lien on account of want of constitutional legislation so subjecting it, but that by no legislation could it have been made subject to these liens: In re More-wood Avenue, 159 Pa. 20. This being so, this case, in the opinion of the referee, fallé within the reasoning of Clapp v. Pine-grove Township, 188 Pa. 35, in which the distinction is made between payments of claims invalid by reason of some irregularity or neglect of statutory requirement, and of claims utterly •without lawful foundation, and forming no consideration for the payment. Besides, the plaintiff in this case had appealed, and was duly using all the means of redress the law allowed, yet without relief, as the liens still on record were depriving him of lawful use of his property. This case is not the case of a practical acquiescence by paying a claim with a mental reservation expressed in a protest, but without practical resistance; but is a case of practical resistance with a collateral arrangement substituting a claim upon a fund for a lien upon land; an arrangement voidable, it may be, by reason of infirmity of power in the officer mating it, but not itself unreasonable or unlawful, nor in any just sense injurious to the city.</p> <p>While it may be true that it is to the public interest that money voluntarily paid to the city should be freely disposable in its hands for public purposes, yet the referee cannot agree that this rule goes so far as to permit a city to take advantage of its officials’ acts so far as they are beneficial or profitable, and repudiate them so far as inconvenient to it; with the result of taking the money of its citizens to which it is not, and in this ease cannot be, lawfully entitled in violation of the conditions upon which the money came within its grasp.</p> <p>The referee is also of opinion that while under the practice existing in this city at that time as to receipts and disbursements for street improvements, it was undoubtedly supposed by the plaintiff’s counsel that the money would be held and returned by the city attorney, there is nothing in the evidence in this case to sustain a personal liability on the part of that officer. The evidence discloses no personal assumption on his part or misrepresentation of his authority in the premises whatever ; one of which must be shown to render a public officer liable personally for acts beyond his authority, and unless this action can be maintained the plaintiff is without remedy.</p> <p>The referee is of opinion that the plaintiff is entitled to recover, and it is now ordered that judgment be entered in favor of the plaintiff and against defendant in the sum of $1,298.78, with interest from April 8,1891, to wit: $1,967.65, with costs of suit.</p> <p>The court, in an opinion by White, P. J., sustained excep tions to the report of the referee.</p> <p>Errors assigned were in sustaining exceptions to referee’s report.</p>

<p> Executors and administrators—Surcharge—Sale of personal property— Responsibility of executors. </p> <p>So long as executors manage the estate in accordance with the ideas which the decedent himself entertained of it, and do nothing but what there is reason to believe he would have approved, it seems they are not responsible for losses to legatees.</p> <p>Between an executor and legatees, a case is to be decided upon a more liberal view of the discretion and power of an executor than it would be as against creditors.</p> <p>All that a court of equity requires from trustees is common skill, common prudence and common caution. Executors, administrators or guardians are not liable beyond what they actually receive unless in case of gross negligence, for when they act as others do with their own goods, in good faith, they are not liable.</p> <p>Testator before his death verbally requested his widow whom he made his executrix to sell his stock of goods. The goods were old, and the business for several years had been in bad condition, and was heavily involved in debt. Testator had made repeated efforts to sell the stock, but had not succeeded. After testator’s death the widow continued the business for about three months, and then with the consent of all the children who were legatees under the will she sold the goods for $30,000, which was $18,000 less than the inventory.</p> <p>There was no evidence that any responsible person or persons would have paid the inventory price for them, and the clear preponderance of the testimony of the best informed witnesses was that the price received was a fair and reasonable one. It appeared that through the prudent and skilful management of the executrix the whole estate, after a period of eight years, was relieved of a debt of nearly one quarter of a million of dollars. One of the legatees who had assented to the sale afterwards assigned his interest in the estate and his assignee asked to have the executrix surcharged. Held, that under the facts of the case, the orphans’ court was in error in surcharging the executrix with the difference between the price of the goods as inventoried and the price for which they were actually sold. 1</p> <p>The inventory of a decédent’s goods is not conclusive as to value, but only prima facie evidence, and is liable to be questioned by any party in interest, either as being too low or too high.</p> <p> Orphans' court—Equity practice—Reopening case—Evidence. </p> <p>As the orphans’ court is governed by equity principles and practice, and as one of the familiar doctrines in chancery practice is that the door of equity is never closed, the orphans’ court should, after having surcharged an accountant for an alleged wrongful sale of goods, reopen the case for the introduction of new testimony which tends strongly to show that the price received for the goods was fair and reasonable.</p> <p> Executors and administrators—Commissions. </p> <p>Where the actual disbursements of an estate amount to about $350,000, and the actual transactions to about $2,000,000, and the executrix through careful and prudent management and successful litigation during a period of eight years clears off a debt of a quarter of a million of dollars, and hands over to those entitled to it an estate which was originally bankrupt, free of debt, and with its whole value unimpaired, the executrix is entitled to a compensation of five per cent upon the actual amount disbursed.</p> <p> Wills—Annuities—Executors and administrators. </p> <p>Where a widow is made sole executrix of a will “ with plenary powers to execute and carry out its provisions,” and the whole estate is given to her subject to the payment of two annuities out of testator’s estate “yearly, in quarterly payments,” the executrix may pay the annuities in quarterly payments if the money is not needed for creditors, and may take credit for such payments at the date of each payment, in her account as executrix.</p> <p> Will—Charge of legacies. </p> <p>Testator gave all his real estate and the income of all his personal estate to his widow so long as she remained his widow, and no longer, “ subject to the following charges: I give and bequeath to each of my two daughters [naming them] so long as my widow remains unmarried, the sum of one thousand dollars payable out of my estate yearly, in quarterly payments.” Held, that the annuities were not a personal charge upon the widow, but were payable out of the testator’s estate.</p> <p> Executors and administrators—Expenses of conducting business. </p> <p>Where an executrix was compelled for a period of eight years to maintain an independent office by reason of an immense number of transactions of many different kinds relating to the settlement of the estate, she is entitled to credit for office rent, carpets and general expenses in maintaining the office.</p> <p>Where an executrix is compelled to operate a store for a few months before the stock can be sold, she will not be surcharged for ice and other items furnished to the store.</p>

Appeal, No. 134, Oct. T., 1898, by defendant, from judgment of C. P. No. 2, Allegheny County, April T., 1897, No. 600, on verdict for plaintiff. Assumpsit to recover money loaned.

Appeal, No. 135, Oct. T., 1898, by defendant, from judgment of C. P. No. 3, Allegheny County, Feb. T., 1897, No. 652, on verdict for plaintiff. Trespass for personal injuries. Before Porter, J. At the trial it appeared that about 8 o’clock on the evening of October 10,1896, plaintiff was driving a covered wagon on a township road which was occupied by the defendant company with two tracks used in the operation of an electric railway.

<p> Chech—Presumption—Evidence. </p> <p>The mere possession of a check by one to whose order it is drawn is presumptive evidence that it was given in payment of a debt, or for cash received at the time.</p> <p> Chech—Consideration—Question for jury. </p> <p>In an action against an administrator on a check given by the decedent in his lifetime to the order of the plaintiff, the case is for the jury where it appears that the check continuously remained in the possession of the plaintiff, and there is considerable proof of a consideration of boarding, nursing and attendance on a number of occasions. In such a case the jury may be properly instructed that if they find there was only a partial consideration they may return a verdict to that extent only.</p>

<p>Appeal, No. 136, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 3, Allegheny Go., Feb. T., 1897, No 360, refusing to take off nonsuit.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before McClung, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 142, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1897, No. 595, on verdict for defendant. Assumpsit for professional services. The facts appear by the charge of the court below, which was as follows: This is an action brought by Mr. W. G. Crawford to recover counsel fees, alleged to be due him from the Forest Oil Company.

<p>Appeal, No. 146, Oct. T., 1898, by plaintiffs, from decree of O. P. No. 2, Allegheny Co., July T., 1896, No. 284, on bill in equity.</p> <p>Bill in equity for an injunction to restrain a nuisance.</p> <p>The court filed the following opinion:</p> <p>The bill was filed by fifty-two citizens, living on the bluff, opposite where defendant’s garbage furnace is located, against William Flinn, Philip Flinn and Charles E. Flinn, doing business as the American Reduction Company, alleging that the garbage furnace of the defendant was a public nuisance, and asking that it be prevented from continuing as a nuisance. The bill was filed in May, 1896, The answer set forth that William Flinn was not concerned in the business and had no interest whatever in it; and Philip Flinn also filed an answer denying that he had any interest whatever in it. Charles E. Flynn’s answer admitted that he was the owner of the property and that he was conducting it under the name of the American Reduction Company. The evidence established the fact that William Flinn and Philip Flinn had no interest whatever in the establishment, and, therefore, the bill should be dismissed as to them.</p> <p>When the case first came up before the court, the answer admitted that it had been conducted in such a negligent manner that it was substantially a nuisance to the plaintiffs in the bill; but stated that the company intended to change the mode of reducing the garbage, and would do so in such a way as not to be offensive, and the court at that time gave permission to the defendant to make the change that it contemplated, and then the question to come up. The defendant company did make certain changes in the mode of reducing the garbage and of disposing of the offensive odors or gases, and commenced business again in the summer of 1896. It is now contended by the defendant that there are no offensive odors of gases escaping from the establishment. The contention on the part of the plaintiffs, however, is that it is as bad as it was before.</p> <p>FINDINGS OF FACT.</p> <p>1. The garbage furnace is located on the bank of the Monongahela river. For a distance of a mile or so along the river bank, there are no residences ; it is occupied by the Baltimore & Ohio Railroad, by street car railroad tracks, and by several factories and establishments of that kind. It is a narrow strip or bank between the river and the steep bluff, that rises from 100 to 150 feet high. The plaintiffs live on that bluff.</p> <p>2. The garbage furnace was constructed in 1895, under certain ordinances, and with- the sanction of the city authorities. An ordinance was passed by the city councils and approved by the mayor on January 14,1895, in pursuance of an act of the legislature of April 12, 1872. Section 23 of that act of the legislature provided that the board of health, which is now the bureau of health, under recent acts in reference to the city, “ shall have the power and authority to enter into any contract with such parties as they may think proper, for the removal of all dead animals from streets, lanes and unoccupied ground within the city of Pittsburg.” Section 33 provided that the board of health ivas authorized “ to employ from time to time as many scavengers as it may deem necessary, upon such terms and with such appliances and conveyances as it may deem expedient, and to make from time to time such rules and regulations for the conduct of such scavengers as it may deem necessary.” Section 34 provided that “the board of health shall cause a printed notice to be left at each and every hotel, tavern, eating house, dwelling house in the-city, stating that a scavenger will call for offal, garbage, swill—at certain times mentioned in the notice, and requiring that such offal, swill—be ready in packed tubs or other suitable'vessels, for the scavenger when he calls for the same.” Section 35 provided a penalty for neglect of the dwellers in those houses to provide such tubs. In pursuance of that act of the legislature, the ordinance of January 14, 1895, was passed, containing among others, these provisions:</p> <p>“Section 1. That it shall be the duty of every resident, householder, tenant, hotel-keeper, boardinghouse-keeper, retail dealer and all parties or persons occupying dwellings within the city of Pittsburg, to provide, or cause to be provided, and at all times keep or cause to be kept or provided, portable vessels or tanks for holding garbage and offal;” and “all such vessels or tanks shall be promptly delivered to the collector when called for.</p> <p>“ Section 2. The words * garbage and offal ’ as used in this ordinance shall be held to include every refuse accumulation of animal, fruit or vegetable matter, liquid or otherwise, that attends the preparation, use, cooking, dealing in or storage of meats, fish, fowls, fruits or vegetables.</p> <p>“ Section 3. All persons engaged in collecting and removing garbage and offal, as aforesaid, shall, for said purpose, provide themselves with iron or steel boxes or tanks, mounted on two or four wheels, which boxes or tanks shall be made perfectly water-tight and kept so, and securely and tightly covered on top so as to prevent the contents or any odor escaping therefrom. ”</p> <p>Section 5 was amended by the ordinance of April 8, 1895, which read as follows: “All such garbage and offal thus collected shall be conveyed by the persons so collecting it at their own cost and expense to such furnace or furnaces as shall be necessary, and to be located within the limits of said city, at such place or places as shall from time to time be designated by the director of the department of public safely, and all such offal or garbage so removed shall be disposed of at such furnace or furnaces in a proper sanitary manner. ”</p> <p>Section 6 of the ordinance of January 14, 1895, provided: “ The director of the department of public safety shall district the city of Pittsburg for the purpose of collecting and removing garbage and offal. ”</p> <p>Section 12 provided: “The collection, removal and disposal of garbage, offal, dead animals and condemned meat, as aforesaid, shall be conducted under the supervision and control of the department of public safety and bureau of health and in strict conformity with the provisions of this ordinance, and of the additional rules and regulations made or to be made in compliance therewith. ”</p> <p>Section 13 provided: “The director of the department of public safety is hereby authorized and empowered to make and enforce such additional rules and regulations regarding the collection, removal and disposal of garbage, offal, dead animals and condemned meat, as he may from time to time deem necessary, said rules and regulations to be subject to the approval of councils and the mayor. ”</p> <p>“ Section 15. The director of the department of public safety be and hereby is instructed and empowered to advertise for proposals, and enter into a contract for the collection, removal and disposal, of the garbage, offal, dead animals and condemned meat of the city, in accordance with the conditions, stipulations and requirements of this ordinance, such contract to be for a term not exceeding four years, and subject to the approval of the councils and mayor. ”</p> <p>In pursuance of these ordinances a contract was made with the defendant, Charles E. Flinn, for collecting and disposing of the garbage of the city; the factory on Second avenue was located by the director of the department of public works; the site approved by him; and in pursuance of that the garbage furnace and factory were erected. The director of the department of public safety frequently visited and inspected it, and also the officers of the bureau of health repeatedly visited and examined it, and have testified that it was in a proper location and properly conducted, and that it was not a public nuisance.</p> <p>3. The plant cost, in its original construction, and in the repairs and changes that have been made, well on to $100,000. There are fourteen digesters, as they are called, in which the garbage is boiled. As originally constructed, these were not tight, and a great deal of odor and gas escaped from them. There was no mode at first of deodorizing and destroying these gases and odors; they were conducted by a pipe down towards the river, escaped, and were quite offensive, down on the river bank: and up on the bluff. A change was made, by which the digesters were made air-tight, by lids on the top, after the garbage was put in, before the boiling process began; the offensive odors and gases were conducted under a vacuum to what is called an incinerating furnace, by which they were either destroyed or deodorized, the pulpy material was conducted into what is called a “ dryer, ” and the dry residuum obtained from that dryer. At first this residuum was converted into fertilizing material at the garbage furnace, and, in the process of converting it into fertilizer, some chemicals were used, which were themselves offensive and increased the bad odors. When the change was made, in the summer of 1896, they ceased to convert this residuum into fertilizers, and obtained some place up in one of the adjoining counties to which the residuum is shipped, and there converted into fertilizers. From eighty to one hundred tons of garbage are hauled to this furnace every day, except Sunday. No garbage is hauled on Sunday, and the works are never run on the Sabbath day. About 120 barrels of the residuum are obtained every day and shipped off on the cars; no offensive vapors or gases from the digesters, during the boiling process, if kept closed, can escape into the building, and the gases conducted through the incinerating furnace are there either destroyed or deodorized, so that they are not offensive, and any smells that may ascend to the bluff are not from the gases or vapor arising during the boiling process. In that respect the furnace is a success.</p> <p>The operation of the work on the bank is not a nuisance' to those traveling along Second avenue or on the railroad tracks, or the street car tracks. In the establishment, since the change in 1896, fans have been used, expelling from the building all the air and escaping gases, out into the atmosphere, so that in the building itself there are no offensive odors at any time, except when the fresh garbage is brought in. The garbage is brought in and put into a pit, where foreign substances, like bottles, cans and things of that kind, are picked out, and it is then conducted by a conduit up to the digester, and put into the digester. When the garbage remains in the pit for any length of time, an hour or so, there is a very considerable quantity of offensive odors escaping from that garbage. They go into the building and are expelled from the building into the atmosphere by the fans.</p> <p>5. There is occasionally on the bluff an offensive odor from the establishment. It does not arise from the boiling process; does not arise from the dry residuum that comes out. It comes from the offensive odors from the garbage, before it is put into the digester; and, by being driven out of the building with the warm air in the building, when the wind is blowing from the furnace towards the bluff these offensive odors are occasionally quite distinct and manifest on the bluff. There are other large factories and establishments along the river, on both sides of the river, that contribute to the offensive gases or odors up on the bluff when the wind is blowing in that direction. In June of 1896 a large amount of garbage and refuse, consisting of partially burned canned goods and groceries, from the wholesale grocery establishment of T. C. Jenkins & Co., that was destroyed by fire, was hauled by wagon loads, and dumped out on a portion of the railroad yard near this factory. That remained there on the ground giving out a fearful stench for some weeks, and it no doubt affected the offensive odors upon the bluff during that time.</p> <p>. The witnesses who testified for the plaintiffs, living on the bluff, attributed all the offensive smells and odors up there to this garbage furnace, and some of them, who kept records of the days when it was so very offensive, spoke about its being on some Sabbath days, and testified that the vapors came out of the smoke stack of the furnace, and that the garbage furnace was working on that day. They were mistaken, because the factory never was worked on the Sabbath day, and the odors and gases that escaped after passing through the incinerating furnace did not enter the smokestack, but escaped through a separate pipe at the top of the building. Some of them also testified that their imaginations contributed to their sensations from these escaping vapors.</p> <p>6. If the garbage is not permitted to remain in the pit after it is hauled, but is at once conducted into the digesters, there would be little or no offensive odor in the building, or that could escape from the building. The evidence would indicate that at some times garbage was permitted to remain in the pit for two or three hours, perhaps sometimes even longer than that. During that time the offensive odors would accumulate in the buildings, and the fans would expel them from the buildings, and, with the heated air, they would rise up to the bluff, when the wind was in that direction. This accounts for the offensive odors occasionally noticed by those on the bluff, and, if the process should be remedied in these respects there would be little, if any, offensive odor or gas escaping from the building up to the bluff.</p> <p>CONCLUSIONS ON LAW.</p> <p>It is the duty of a large city like Pittsburg to make provision for gathering and disposing of the garbage of the city; it is indispensable to the health and comfort of the citizens. There is difficulty in finding a proper place for the disposal of the garbage of Pittsburg. There is no place within twenty miles of the city, on any of the rivers, where the garbage could be disposed of in the ordinary way without being regarded a nuisance in that locality; or no point within twenty miles of the city on any of the railroads where the garbage could be disposed of without being regarded a nuisance. To haul out the garbage by wagons into some remote portion of the county would be exceedingly expensive to the city; and perhaps no locality in the county could be got where it would not cause trouble. It is a serious question for a city located as we are, and yet it is the duty of the city to provide in some way for disposing of the garbage.</p> <p>No doubt the city has the right to dispose of that garbage within the city limits, as provided by the ordinance, if a suitable place can be got. The location of this garbage furnace is, perhaps, in the most unobjectionable place that could be selected within the city limits. There is no evidence to the contrary. In selecting a place for a garbage furnace, a reasonable discretion must be allowed to the city authorities. There is no doubt that a garbage furnace anywhere may be to some extent a nuisance to citizens in that locality. As one witness in the case testified, the very thought of a garbage furnace will be an annoyance. So any large establishment, factory, rolling mill, furnace, glass works, and all these other large establishments, will be, to a certain extent, an annoyance to property holders in the immediate vicinity, and, in many cases, may even depreciate the value of property in the vicinity. These inconveniences and annoyances that some citizens may suffer are simply the incidents resulting from the growth and business of a large city. This furnace is constructed on the most scientific principles, and is far superior to ordinary garbage furnaces. The bluff where these complainants live was, some years ago, probably the most delightful place about the city for residences, overlooking the Monongahela river and the hills beyond, a high bluff bank, almost perpendicular; but, in the growth of the city, factories and furnaces have been established along the bank of the river, and no doubt will increase with the years, and the smoke from these, the noise, the steam, the smells, and the offensive odors from them, will affect the bluff as a place of residence. But, the onward march of the business of the city cannot be arrested because it may be an annoyance to some of those living on the bluff. In the course of a few years it will not be, perhaps, a desirable place for residences. It is just like many other portions of the city; years ago, the lower part of the city, on Penn avenue, was the most delightful portion of the ciiy for residences. In consequence of the large iron establishments and others, it has almost ceased to be a place of residence; property for residences has depreciated in value, and the desirable places for residences are out in the suburbs annoyed some little by tbe fact that a garbage furnace is down on the bank, and, some little annoyed, perhaps by the hot air that escapes from the building, does not make this a public nuisance. The offensive odors on the bluff arose from the garbage remaining too long in the pit. If the garbage brought into this furnace should be, at once, put into the digesters, and they kept tight, I believe there would be no offensive odors escaping from the garbage even in the building, and none, of course, to any appreciable extent, could extend up the bluff.</p> <p>The contract with the defendant was made by the director of the department of public safety, and approved by councils and the mayor, and is only for four years. If, at the end of that period of time, only a year or so hence, this factory should be found to be a nuisance, the city authorities will not continue it, or, if they attempt to continue it then, there may be an effort made to stop it. It cannot be continued without the consent of councils and the mayor. It will not be any serious injury to these complainants to let this factory run on for the length of time provided for under the present contract, if the garbage be at once put into the digesters. Of course the city cannot authorize or sanction a public nuisance. Under the testimony of the director of the department of public safety and the officers of the bureau of health, I do not feel authorized to suppress this garbage furnace at this time, which would result, of course, in a great loss to the defendant. If the causes of the offensive odors, as stated in my findings, cannot be removed, it will be the duty of the director of the department of public safety and of the officers of the bureau of health to stop this furnace, because the ordinance requires it to be conducted in a sanitary manner. It is their duty to visit it frequently, inspect it, and hear any complaints of the citizens on the subject ; and, unless it can be conducted in a manner that will not be offensive to the neighborhood, or to the complainants living on the bluff, it would not be proper for the director of the department of public safety to renew this contract with the defendant, but he should make some other provision for disposing of the garbage of the city.</p> <p>Let a decree be drawn requiring the defendant to dispose of the garbage as soon and as fast as it is brought to the pit, and at once conduct it into the digesters, they to be kept tight, and the residuum to be shipped off as speedily as possible; the defendant, Charles E. Flinn, to pay the costs. William Flinn and Philip Flinn, having no interest in the establishment, as to them the bill is dismissed.</p> <p>Error assigned among others was the decree of the court.</p>

<p> Neghgence—Street railways—Damages—Gharge of court. </p> <p>In an action against a street railway company to recover damages for personal injuries, where the plaintiff has not been guilty of contributory negligence, and the negligence of the defendant is undoubted, the Supreme Court will not reverse a judgment based upon a verdict moderate in amount, because the trial judge, after stating to the jury that plaintiff should be compensated for the time she had already lost by reason of the injury and her doctor’s bill, further charged that the plaintiff “ is entitled to such reasonable sum in addition to that, as you gentlemen think she ought to have, as a recompense to her, not a compensation, because you cannot compensate people for pain and suffering. No man would take the loss of an arm for any amount of money, but .... the law leaves it for you to judge .... what reasonable sum she ought to have.”</p> <p>An electric ear, in which plaintiff was a passenger, had stopped at a railroad crossing while a train was passing. The controller was out of order, and was being examined by the inspector, when the car suddenly started forward, and struck the train. Plaintiff was injured in endeavoring to jump from the car. Held, (1) that the company was negligent; (2) that plaintiff was not negligent.</p> <p>A person who, as a result of an injury, is compelled to employ a servant to do her household work is entitled to damages for the expense of keeping such servant.</p>

<p>Affidavit of defense—Praetiee, G. P.—Assignment.</p> <p>In an action upon an order given by a building contractor on an owner to pay money to the plaintiff on account of the building, where the statement avers that the order was retained, although it does not aver that it was accepted, an affidavit of defense is sufficient which denies that defendant ever had possession of the order or agreed to accept or pay the same, and avers that the contractor had sued for and recovered a judgment for the entire amount due upon the contract; that before the verdict defendant had accepted various other orders and assignments made by the contractor; and that execution attachments had been served upon her, and that she had subsequently applied the moneys due by her to the payment of these orders, assignments and attachments, and that she had no funds of the contractor in her hands.</p>

<p>Appeal, No. 155, Oct. T., 1898, by plaintiffs, from decree of C. P. No. 8, Allegheny Co., Aug. T., 1898, No. 295, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>Motion to continue preliminary injunction.</p> <p>McClung, P. J., filed tbe following opinion :</p> <p>The plaintiffs by their bill in this case pray for an injunction to restrain the boulevard company from permitting the railway company to lay its tracks and operate its cars on the boulevard laid out from a short distance above Homestead to the borough of Duquesne (about two or three miles in length), and passing over certain lands in which plaintiffs own an undivided one-half interest, and to restrain the railway company from constructing and operating a street railway over said boulevard. The railway company wishing to build and operate a railway over this route through Mifflin township, sought permission to do so from the landowners, and obtained it from all save the plaintiffs in this bill, who refuse it. The boulevard company, incorporated for the purpose of constructing a boulevard over the said route, its officers being the same as those of the traction company, then took possession of the ground, it having a right of eminent domain, and proceeded to construct a public highway. Its right to construct said highway is not denied, but it is alleged that it is constructing, or permitting the railway company to construct upon this highway, an ordinary double track street railway—the intention being to permit the railway company to run its cars over the said road; and thus accomplish the purpose which the plaintiffs’ refusal of a right of way interferes with. Of course, if this allegation were made good, we would, without hesitation, enjoin. But whilst the boulevard company admits that it is constructing a roadway with a thirty-foot paved roadbed, under the act of 1895, and as part of said construction is putting down a double track street railway, laid with the ordinary flat rails, it disclaims any right or intention to permit the other company, or any company, to run cars over the said road until permission so to do is granted by plaintiffs. The railway company is not concerned in the laying of said track, and concedes the right of plaintiffs to prevent it from passing over their land with its cars. The boulevard company is putting up no overhead wires, and avers that the laying of the rails will improve, or at least not injure, the roadway, and it is not forbidden by the boulevard act of 1895. It admits that it expects that in the future the railway company will obtain the consent of the plaintiffs to operate its car line, and says that with that expectation it considers it wise to now put down the railway tracks. As the case now presents itself, it seems unnecessary to enjoin against the running of cars. This we are assured will not be attempted. If it is attempted, we can very readily stop it.</p> <p>Can plaintiffs maintain this bill to prevent the laying of the tracks by the boulevard company? Whilst it appears very improbable that the boulevard company would put rails there as part of its structure did it not expect them at some time to be used by a railway company, yet, if it gets the surface, such as the law requires, the fact that it has also a railway track will not affect its right to maintain the boulevard. Hence, the question before us becomes one of the proper or improper construction of the roadbed of the boulevard. It is not a case of putting something on the road entirely foreign to its purposes as a driveway. The tracks can be used for driving purposes, and some persons consider them an advantage. Can the abutting property owner come into court, and by bill regulate the construction of the road as respects material? We think he cannot, not only because he does not show as to this matter the interest in or damage to himself different from that of the general public, but also because other adequate methods of determining the matter have been provided by law.</p> <p>And now, to wit: June 29,1898, the motion to continue the preliminary injunction in this case is refused.</p> <p>Error assigned was the order of the court refusing to continue the preliminary, injunction.</p>

Appeal, No. 161, Oct. T., 1898, by defendants, from judgment of O. P. No. 3, Allegheny Co., Feb. T., 1898, No. 520, on verdict for plaintiffs. Issue devisavit vel non. On the trial for an issue to determine the validity of an alleged will of James McMichael, deceased, dated October 1, 1896, defendants alleged undue influence, and that the will had been revoked by one made on or about ’February 2, 1897, which had been lost.

<p>Appeal, No. 167, Oct. T., 1898, by plaintiffs, from order of C. P. No. 1, Allegheny Co., June T., 1897, No. 755, refusing to take off nonsuit.</p> <p>Assumpsit on a municipal contract for constructing sewers. Before Collier, J.</p> <p>The contract provided that defendant might enlarge or diminish the work to be done, with an addition to, or deduction from, the contract price, according to a scale of rates agreed upon in the contract. Partial payments were to be made upon monthly estimates, and the balance upon completion of the work upon a final estimate to be made by the engineer who was to superintend the work; and that “ in any dispute which may arise between the parties,” the decision of the engineer should be final and conclusive; the parties waiving “ any right of action, suit or suits, or other remedy in law or otherwise, .... so that the decision of the engineer shall, in the nature of an award, be final and conclusive on the rights and claims of the parties.”</p> <p>On completion of the work, the .engineer made his final estimate, of which plaintiffs obtained a copy.</p> <p>At the trial plaintiffs offered in evidence a receipt signed by them for the sum of $6,000, being a payment on account due them, according to the engineer’s final estimate. This receipt contained language purporting a payment in full. Plaintiffs thereupon further proved that they protested against giving a receipt in full.</p> <p>In entering a nonsuit the court said</p> <p>The controlling facts are these: The plaintiffs made a written agreement to lay down sewers for the borough of Wilkins-burg, at a contract price of $138,000; by the final estimate made by the engineer under the contract they were allowed $148,000, $10,000 more than the contract price, all of which money the plaintiffs got; afterwards, in March, 1894, plaintiffs signed a receipt in full for all demands, including the very extras now demanded, the receipt here being only prima facie as to the amount, but the receipt shows it covers the very things now claimed for. Under these controlling facts the plaintiffs certainly cannot recover in this action, and if they have any remedy it would be under the written contract to have the matter disposed of by the engineer, because that is the proper way and the only way that boroughs and cities can get their work done. We are also of the opinion that no sufficient evidence of a demand on the disputed items has been shown, made upon the engineer and refused. But on either, particularly the first point, we are of the opinion that the plaintiffs have not maintained their action, and, therefore, grant the motion for a non-suit, with leave to move the court in banc to take it off, if the court in banc thinks we have erred, or will give you the benefit of it.</p> <p>Error assigned was in entering nonsuit.</p>

<p> Boad law—Damages—Charge of jury. </p> <p>Where a street is opened through a tract of land in a city, and it appears that if the land were laid out in lots fronting on the new street the owner would be benefited rather than injured by the taking, and it also appears that there are buildings on the land parallel with the new street, but the owner contends that the lots would be more valuable if they were laid out so as to front on a street at right angles to the new street, and that therefore he should be paid for the land taken, it is not error for the court to charge that if the jury adopt the owner’s theory they should not allow, as an additional element of damages, the destruction or cost of removal of the buildings.</p> <p> Boad law—Evidence—Bond. </p> <p>On the trial of an appeal from the report of a road jury, a bond with a plan attached, given by the city to the plaintiff to secure the payment of such damages as lie might sustain from the opening of the street through his property, is not admissible in evidence.</p>

<p>Appeal, No. 185, Oct. T., 1898, by S. Oliver Rhoads, from decree of O. G. Allegheny Co., Dec. T., 1896, No. 63, in dismissing petition to reopen an adjudication.</p> <p>Petition to reopen adjudication.</p> <p>The petition of the executors set forth that they were not present at the audit, and it prayed that the adjudication should be opened so that an item of $1,000, being a note of S. Oliver Rhoads to decedent, should be stricken from the debit side of the account, and should not be charged as a payment against S. Oliver Rhoads.</p> <p>Mary Large and Charlotte Fairbank, legatees, denied that the note had been either paid or released, and alleged that it was still due the estate. The court dismissed the petition.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 204, Oct. T., 1898, by defendant, from order of C. P. No. 1, Allegheny Co., June T., 1898, No. 241, discharging rule to open judgment. Assumpsit to recover broker’s commissions. Rule to open judgment. From the record it appeared that the defendant had inadvertently overlooked the service of summons upon him, and that judgment had been entered for want of an affidavit of defense.

Appeal, No. 211, Oct. T., 1898, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1898, No. 313,1). S. B., making absolute a rule to open judgment. Buie to open judgment.

Appeal, No. 219, Oct T., 1898, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Nov. T., 1897, No. 794, dismissing bill in equity. Bill in equity for an injunction. Doty, P. J., of the 10th judicial district, specially presiding, found the facts to be as follows: FINDINGS OF FACT. 1.

Appeal, No. 56, Oct. T., 1898, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1867, No. 12, entering non pros. Motion to take off non pros, in an action of ejectment. The facts appear by the opinion of the Supreme Court. The court in an opinion by White, P. J., refused to take off the non pros. Errors assigned were in refusing to take off non pros.

<p>Contract— Corporation—• Stock.</p> <p>In an action of assumpsit for money had and received a verdict and judgment for the plaintiff will be sustained where it appears that he gave money to the defendants under an agreement that he should receive certificates of stock of a corporation to bo formed by defendants for the manufacture of certain patent articles ; that no such corporation was formed by defendants, and that the plaintiff waited five years for the organization of the company, before bringing suit. In such a case, it is immaterial that the defendants used plaintiff’s moneys in the developement of patents, or that they used due efforts without success to form the company; nor is it of any consequence who should have control of the patents, when issued.</p>

<p> Partnership—Ships and shipping—Admiralty—Partnership settlement. </p> <p>Where a decree in admiralty is entered against several persons as joint owners of a boat, and one of them is compelled to pay the whole decree, he may enforce, by an action at law, contribution from the other owners; and they cannot set up as a defense that the plaintiff had been a partner with them in the business of the boat, and that there had been no partnership settlement, it appearing that the defendants themselves had not asked for nor demanded any such settlement for fifteen years after the partnership had been dissolved.</p>

<p>Appeal, No. 7, Ocfc. T., 1898, by defendant, from judgment of O. P. No. 1, Allegheny Co., March T., 1896, No. 202, on verdictfor plaintiff.</p> <p>Trespass to recover damages for injuries to land caused by the construction of a bridge. Before Collier, P. J.</p> <p>At the trial it appeared that plaintiff’s testatrix, Margaret White, at the time of the construction of the bridge by the defendant company, was the owner of a lot of ground situate on Fifth avenue, in the city of McKeesport, at the southwest corner of Fifth avenue and Mulberry alley, fronting on the south side of Fifth avenue sixty-eight feet, and extending back southwardly along the west side of Mulberry alley sixty feet, having thereon erected two two-story frame dwelling houses, with other improvements. One of the dwelling houses fronted on Fifth avenue, and the other was in the rear, fronting on Mulberry alley. The land was held by one title and was undivided by any lines. The bridge was constructed on Fifth avenue, and was built to some extent over the plaintiff’s sidewalk on that street.</p> <p>Defendant’s first point and the answer thereto were as follows :</p> <p>In this action, plaintiff has no right to recover any damages for any alleged injury done to that portion of her property upon which the house fronting on Mulberry alley is erreeted, to wit: said house and the ground covered thereby, and so much additional ground as may be used in connection with and necessary for the ordinary use and enjoyment of said house. Answer': Refused.</p> <p>Verdict and judgment for plaintiff for §4,858.38. Defendant appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

Appeal, No. 63, Oct. T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny County, June T., 1896, No. 279, on verdict for plaintiff. Assumpsit for breach of contract.

Appeal, No. 140, Oct. T., 1898, by defendant, from decree of G. P. No. 2, Allegheny Co., July T., 1897, No. 715, on bill in equity. Bill in equity for an injunction.

Appeal, No. 177, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 2, Allegheny County, April T., 1897, No. 581, on verdict for defendant. Assumpsit to recover counsel fees. Before Frazer, J. At the trial it appeared that John Kalbfell died on June 19, 1894, leaving a will appointing Henry W. Kalbfell, his son, as his executor. The plaintiff, an attorney at law, was employed by the executor, and rendered the services to the estate for which this suit was brought.

<p> Criminal law—Removal of ease into the Supreme Court—Certiorari— Jurisdiction of Supreme Court—Jurisdiction of Superior Court—Practice, Supreme Court. </p> <p>The constitution of 1874 did not take away from the Supreme Court the power to remove a criminal case from the court of quarter sessions and send the record thereof to the proper court of another county for trial, or detail one of the justices of the Supreme Court to preside at the trial.</p> <p>The supervisory power of the Supreme Court over criminal cases should be exercised with extreme caution and only in a clear case; and it must also be exercised in aid of the administration of justice, not to defeat it or needlessly embarrass it.</p> <p>The supervisory power of the Supreme Court over criminal cases in the quarter sessions does not extend to reviewing the action of the quarter sessions in overruling demurrers to indictments, and in refusing to quash indictments. Such orders are merely interlocutory, and no appeal can be taken from them until after conviction and sentence, and such appeals are, under the Act of June 24, 1895, P. L. 215, exclusively within the jurisdiction of the Superior Court.</p> <p>The Supreme Court will not remove a criminal case from the court of quarter sessions of Philadelphia county, on the petition of the defendants alleging that they cannot have a fair and impartial trial, where the contention is based merely upon vague charges against two of the lower court judges, one of whom had resigned before the petition was filed, and the other will not be likely to serve again in the quarter sessions until after the ease against the defendants had been disposed of.</p>

<p>Judgment— Opening judgment—Striking off-judgment—Lien.</p> <p>The opening of a judgment which is alien on real estate does not destroy or impair the lien, nor does it necessarily affect the lien of a levy made upon personalty under an execution issued on the judgment. The liens in either case may and should be continued pending the determination of the issues relating to the validity of the judgment and to the nature and amount of the indebtedness represented by it. But when a judgment is stricken off, and an execution issued upon it is set aside, the lien of the judgment and the lien of the levy are without support.</p> <p>Judgment—Partnership—Confession of judgment— Opening judgment— Selling aside execution.</p> <p>A partner signed a judgment note with the firm name and his own name for a debt contracted by him before he entered the partnership. The judgment was entered up and execution issued. The other partner took a rule to open the judgment, averring that the firm had never assumed the debt for which the judgment was confessed, and that his partner, under the partnership articles, had no right to confess judgment for the firm. The evidence on these two subjects was conflicting. The court opened the judgment and set aside the execution. Meld, that the court committed no error in opening the judgment, but it should not have deprived the plaintiff of his security by setting aside the execution, and the attachments.</p>

Appeal, No. 168, Oct. T., 1898, by defendant, from judgment of O. and T. Allegheny County, March T., 1898, No. 25, on verdict of guilty of murder of the •first degree. Indictment for murder. The facts appear by the opinion of the Supreme Court. The court charged in part as follows: The charge in this case is murder, the highest grade of offense in our calendar,—murder, the killing of a human being.

<p>No. 106, July T., 1894. Appeal from Q. S. Phila. Co.</p>

<p>No. 104, July T., 1894. Appeal from Q. S. Phila. Co.</p>

<p>No. 105, July T., 1894. Appeal from Q. S. Phila. Co.</p>

Appeal, No. 143, Jan. T., 1899, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. T., 1897, No. 943, dismissing bill in equity. Decree dismissing bill in equity. Bill in equity for an injunction to restrain defendant from using his premises as and for a distillery for malt and spirituous liquors. Brégy, J., filed the following opinion: 1. Mary A. Keichline owned the property described in the bill, at Twenty-second and Clearfield streets.

<p>Appeal, No. 38, Jan. T., 1898, by defendants, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1896, No. 552, on verdict for plaintiff.</p> <p>Sterrett, C. J., dissents.</p> <p>Trespass for personal injuries. Before Brégy, J.</p> <p>At the trial plaintiff claimed that she was injured while alighting from one of defendants’ cars in August, 1895. Suit was brought on January 2, 1897.</p> <p>The charge was as follows:</p> <p>If this young woman, while she was in the act of getting off a car was thrown to the ground and injured, by reason of the conductor or motorman starting the car before she got off, then your verdict should be in her favor, and you should give her that which will make her whole for what she has lost. Of course it is not contended by anybody that this was done on purpose, and the law does not treat it in that way. It was an unfortunate accident, if it occurred in the way which has been stated. The law says that a person who, by negligence, injures another, must pay that which will cover the loss .which has been sustained. Now, what loss has this young lady sustained ? In discussing that I am required to call your attention to the law upon the subject of minors. This young lady is a minor. Whatever she earns up to the time that she is twenty-one years of age, or whatever she would earn, would not belong to her but to her father. Therefore, so far as her earnings are concerned, you must throw out of consideration everything that she would have earned up to the time she was twenty-one years of age. All her earnings from the time she was hurt up to the time she was of age would belong to her father, and all her expenses, all her medical expenses up to that time, would have to be borne by her father; and if he should bring suit against the railroad company, then they could be considered in that suit. Now, taking her after she is twenty-one years of age, and considering the time that she would probably live, how much has she been damaged in money, or how much less money could she earn now than then, and how much extra expenses would she have to pay by reason of this accident? Those are matters to be considered by you. Is she utterly incapable of doing anything, or can she follow some occupation with her other hand ?' If her right hand is gone, will she be able to do anything, and to earn some money ? Will she be able to earn less than she would otherwise have been able to earn ? Consider all there things, and try to fix an amount to compensate her for her loss, by reason of the injury. That is what the law gives her. In addition to that, you ought to add such sum as you believe proper and reasonable for the pain and suffering she has gone through, and will go through, by reason of this injury. That is the legal measure of damages that she is entitled to, if she is entitled to anything. And if you find she is, that is what she ought to have. You must consider these questions with a full sense of the responsibility of what you are doing. If you believe, however, that she was not injured in this way, but was injured by slipping from the step of the car, while in the act of getting off, and while the ear was standing still, then that would be something not the fault of the railroad company, and your verdict should be for the defendant. Of course you must consider that, and it is for you to consider. Do what you think is right. The case has been so fully argued that I do not think there is anything more for me to say.</p> <p>Verdict and judgment for plaintiff for $7,500. Defendants appealed.</p> <p>Error assigned among others was the charge of the court, quoting the whole charge.</p>

Appeal, No. 229, Jan. T., 1899, by plaintiff, from order of C. P. No. 2, Phila. Co., December T., 1894, No. 91, refusing to take off nonsuit. Trespass for personal injuries. Before Pennypacker, P. J. At the trial it appeared that plaintiff, who was employed by the defendant as a brakeman, was injured on June 7, 1889, at Newark, New Jersey, while operating a defective brake.

Appeal, No. 244, Jan. T., 1898, by George D. Melloy, from judgment of G. P. No. 1, Phila. Co., June T., 1896, No. 604, on verdict for plaintiffs. Assumpsit upon promissory notes. Before Biddle, P. J. The suit was upon two promissory notes given by J. M. Melloy’s Sons to Rachel Melloy. The sheriff returned nihil habet as to J. Frank Melloy, and George D. Melloy. The defendant served, pleaded the statute of limitations.

<p>Appeal, No. 221, Jan. T., 1898, by defendant, from judgment of C. P. No. 4, Pbila. County, Sept. T., 1896, No. 292, on verdict for plaintiff.</p> <p>Trespass for the death of plaintiff’s husband. Before Will-son, J.</p> <p>At the trial it appeared that James Ragan, plaintiff’s husband, was killed at a grade crossing at the intersection of Twenty-fifth and Wharton streets, in the city of Philadelphia, on September 21, 1896, at about 7 o’clock in the evening. At the place of the accident the railroad occupies the entire width of Twenty-fifth street, while Wharton street is a paved street traveled by the public. The four corners of the intersection are vacant lots. No safety gates were maintained at the grade crossing. The evidence on behalf of the plaintiff was in effect that the evening was a dark and foggy one with drizzling rain; that the only light within one square of the crossing was an oil lamp thirty-nine feet distant; that the deceased and a Mr. McCusker approached the crossing on Wharton street, and when they were at the oil lamp they stopped, looked and listened for a train; that they continued east until they reached a point on the pavement about six feet from the defendant’s track, where they again stopped and looked and listened; that there was no train in sight or hearing; that the men then proceeded to cross and had reached about the center of the track when Mr. McCusker heard an engine coming out of the fog a short distance from him and jumped; that Mr. Ragan was struck by the engine running south on Twenty-fifth street and killed; that no whistle was sounded and no bell was rung; that the engine was being run backwards down grade, without any light on the tender, at the rate of twenty-five miles per hour.</p> <p>The defendant’s witnesses testified that the night was clear; that an unobstructed view of the track on Wharton street could be had for a distance of several hundred feet; that the deceased and his companion were standing upon the track when they were struck; that they had warning by a headlight, bell and whistle, as well as by a shout from one of the crew of the train, and that the engine was not running at a greater rate of speed than six to eight miles an hour.</p> <p>Defendant’s point and the answer thereto were as follows :</p> <p>Under all the evidence the verdict should be for the defendant. Answer: Refused.</p> <p>Verdict and judgment for plaintiff for SI,916. Defendant appealed.</p> <p>Error assigned was above instruction.</p>

<p>Will—Election to take against will—Husband and wife—Bights of survivor—Act of May 4, 1855.</p> <p>The intent of the Act of May 4, 1855, P. L. 430, was not to create a special rule to be applied in each case according to the circumstances of the particular husband and wife in respect to children, but to produce equality by a general rule giving husbands and wives equal and similar rights under similar circumstances. The share which the survivor takes under the act is determined by the existence or absence of issue of the decedent, and is in nowise affected by having or not having issue of his or her own.</p> <p>Under the act of May 4, 1855, where a husband elects to take against the will of his wife, who has died without children, he is entitled to one half of the personal estate, absolutely, and one half of the real estate, for life, although he himself may have children by a former wife so that if he had died first, his wife would have been entitled to only one third of his personal estate and dower in one third of his realty.</p>

Appeal, No. 152, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1896, No. 428, on verdict for defendant. Assumpsit on a policy of life insurance. Before Finletteb, P. J. At the trial the uncontradicted evidence on behalf of the defendant was that the insured in his application had answered “ no ” to the question whether he had ever been rejected, declined or postponed by another insurance company.

<p> Negligence—Injury by falling body—Evidence. </p> <p>Where a person is injured by a falling body while lawfully engaged upon the property of another it is not sufficient to show merely that the accident occurred, the injured person, in order to recover, must also show negligence upon the part of the defendant.</p> <p>In an action to recover damages for personal injuries it appeai'ed that the plaintiff was employed by a contractor in the erection of a building. While so employed he was injured by the fall of a scaffold which had been put up by another and independent contractor. The uncontradicted testimony was that the scaffold was built of the best material, but the evidence as to whether it had been built in a proper way was conflicting. Held, that the case was for the jury, and that a judgment and verdict for plaintiff should be sustained.</p>

Appeal, No. 117, January T., 1898, by plaintiff, from judgment of C. P. No. 1, Phila. County, September T., 1897, No. 801, on verdict for defendant. Trespass for personal injuries. The facts appear by the charge of the court below, which was as follows: I feel that I will be obliged to affirm the defendant’s point, which will give binding instructions to find for the defendant.

<p> Practice, Supreme Court—Assignments of error—Nonsuit—Appeals. </p> <p>An appeal does not lie from the entry of a compulsory nonsuit, but only from the refusal of the court in banc to take it off.</p> <p> Principal and surety—Master and servant—Larceny—Embezzlement. </p> <p>In an action upon a bond securing an employer against loss by reason of the fraudulent or dishonest acts of an employee amounting to embezzlement or larceny, a nonsuit is properly entered where there is no evidence to show that the employee personally received goods shipped to him, or that they had been in his actual control, or that he had ever received the proceeds of the sale of them.</p> <p>A tailoring firm sent clothes to an agent in a distant city under an agreement that, if they were not accepted by the persons ordering them, he should return them within thirty days after they were sent to him, and if they were accepted he was to collect the money and remit. He never accounted for them. It was not shown that he ever received any of them or any money for them. In an action by the firm on a bond securing them against any pecuniary loss from the fraudulent or dishonest act of the agent “ amounting to embezzlement or larceny,” it was held that plaintiffs could not recover.</p>

Appeal, No. 313, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1897, No. 143, refusing to take off nonsuit. Trespass for personal injuries. Before Biddle, P. J. At tbe trial if appeared that plaintiff was injured on July 23, 1897, on Arch street above Front street in the city of Philadelphia, by being crushed between cars operated by the defendants. The eastern terminus on Arch street for both companies was at the place of the accident.

Appeal, No. 242, Jan. T., 1898, by defendant, from judgment of O. P. No. 3, Phila. Co., June T., 1894, No. 1613, on verdict for plaintiff. Appeal from award of road jury. Before McMichael, J. At the trial it appeared that the construction of a sewer on Jasper street necessitated the change of the grade of Tioga street. The evidence tended to show that the result of the change of grade of Tioga street was to leave the plaintiff’s land in a depression.

<p> Insurance—Contract—Breach of contract—Discretion of directors. </p> <p>In an action by a policy holder against a mutual insurance company to recover dues, premiums and assessments for which the company is alleged to be liable because it had issued a new form of policy providing for a new class of risks to be paid out of the reserve fund, thereby violating the contract of insurance, an affidavit of defense is sufficient which alleges that plaintiff’s statement does not set out the entire transaction with the defendant, in this, that the copy of application for insurance which had been attached to plaintiff’s certificate and which was part of the contract was not attached to the copy of the certificate filed with the statement, and, further, that the constitution or by-laws gave the directors full power and discretion to make said change in the contract.</p>

Appeal, No. 293, Jan. T., 1898, by plaintiffs, from order of C. P. No. 4, Phila. Co., March T., 1898, No. 1289, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit to recover the value of 100 shares of stock of the Lehigh Valley Railroad Company.

Appeal, No. 291, Jan. T., 1898, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1898, No. 139, on case stated. Case stated to determine the right to transfer shares of stock.

<p>Appeal, No. 332, Jan. T., 1898, by Susan Israel, from decree of O. C. Phila. Co., Jan. T., 1881, No 309, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that Lewis Wain died in 1863, leaving a will by which he provided, inter alia, as follows:</p> <p>“I give, bequeath and devise to the Pennsylvania Company for Insurances on Live and granting annuities the sum of Ten thousand dollars in trust to invest the same in well secured Mortgages on Real Estate in the City of Philadelphia or in Loans of the said City or of the State of Pennsylvania for the use of my niece Susan Israel paying to her the interest on the investment as it accrues during her life and the principal to her sisters Phoebe W. Bell and Mary L. Smith share and share alike at her death in case of her leaving no lineal descendants otherwise the principal to be paid to her child or children and in case of the death of Phoebe W. Bell or of Mary L. Smith before that of Susan Israel then the share of the said decedent to be paid to her child or children failing which to be paid to her sister if living or in case of her death to her descendant or descendants.</p> <p>“ I give bequeath and devise to the above mentioned company the sum of Ten Thousand dollars in Trust to invest the same in the above mentioned securities for the use of my nieces Phoebe W. Bell and Mary L. Smith and to pay to each of them one half of the interest on the investments as it accrues during life and on the death of either, one moiety of the principal to be paid to her child or children failing which her interest in the Trust to pass to her sister or to her descendants in case of her death.”</p> <p>Mary L. Smith died December 26,1895 ; Phoebe W. Bell died March 16, 1898; neither left husband nor descendants. Mrs. Bell’s will made the appellant, Susan Israel, her residuary legatee.</p> <p>Susan Israel made claim to the fund given to the trustee for the use of Phoebe W. Bell and Mary L. Smith.</p> <p>The auditing judge, Ashman, J., refused to allow the claim, and awarded it to other legatees in order to make good the bequests to them.</p> <p>Exceptions to the adjudication were dismissed, Penrose, J., filing the following opinion:</p> <p>It is conceded, as it must be, that the original limitation to the beneficiaries under the present trust was but a life estate. Their interest, being equitable, could not coalesce with gifts over of the legal estate to descendants, even if the word “ descendants ” be regarded as the equivalent of heirs of the body (Bacon’s Appeal, 57 Pa. 504), but “ descendants,” at most, is only the equivalent of “ issue ” which, when used with reference to personalty, is a word of purchase: Myers’s Appeal, 49 Pa. Ill; Hawkins on Wills, 197.</p> <p>It is contended, however, that at the death of one of the cestuis que trust without descendants the other, under the terms of the will, became additionally entitled to one half of the principal, previously held in trust for the one so dying, absolutely; and, undoubtedly, at the death of either, having children, one half of the principal is to go to them. But at the death of either without children, or as the will expressed it, “ failing which,” the survivor is to receive, not one half of the principal but, “ the interest in the trust ” of the one so dying, in other words, the entire income of the trust estate instead of the half only as originally given, the entire principal in that event going at her death to her descendants. The distinction between the half of the principal given to children and “her interest in the trust” passing to the other cestui que trust was clearly in the mind of the testator.</p> <p>As the will fails to provide for the contingency which has occurred of the death of both without descendants, the trust fund falls into the general estate and becomes applicable to the payment of other pecuniary legacies, in the, order prescribed, with interest, so far as they have not already been paid in full, the surplus, if any, going to the residuary legatees.</p> <p>Exceptions dismissed.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 14, Jan. T., 1899, by the Pennsylvania Company for Insurance on Lives and Granting Annuities, from decree of O. C. Phila. Co., Jan. T., ,1881, No. 809, dismissing exceptions to adjudication.</p>

<p>Wills—Administration d. b. n. o. t. a.—Appointment of administrator c. t. a.—Act of March 15, 1832, sec. 22.</p> <p>Where the executors of a will are dead, and each of several applicants for administration d. b. n. c. t. a. objects to the granting of letters to any of the other applicants, the register of wills has no power to issue such letters to a stranger, but, under the Act of March 15, 1832, P. L. 140, sec. 22, he must issue them to such one or more of those entitled to the residue of the estate as he shall judge will best administer the estate, or to such person as those entitled shall nominate.</p> <p>Where the register of wills has erroneously issued letters of administra^tion to a person not legally entitled to them, the orphans1 court has power to vacate the letters granted, and to direct the register to issue letters to the proper person.</p>

<p> Judgment—Opening judgment—Partnership—Execution—Setting aside execution and attachments in execution. </p> <p>The articles of copartnership between A and B provided that “ neither copartner shall without the written consent of the other enter into any .... judgment .... affecting said firm.” A gave plaintiffs a judgment note of the firm, in violation of the agreement, in part for his individual-debt and in part for partnership debts which were not yet due. Judgment was entered on the note. Execution was issued and levied on the firm property. The debtors of the firm were made garnishees in the attachments in execution. B obtained a rule to show cause why the judgment should not be opened and the execution set aside. It could be fairly inferred from the testimony taken on this rule that plaintiffs knew the provisions of the articles of copartnership befoi’e they accepted the judgment note. Plaintiffs made no answer to the affidavit on which the rule was obtained and offered no testimony to contradict it or the testimony introduced to support it. The court opened the judgment and set aside the execution and the attachments. Held, (1) that the judgment was pi’operly opened; (2) that the executions and attachments must be reinstated and the liens preserved.</p>

Appeal, No. 129, Oct. T., 1898, by defendant, from judgment of O. & T. Allegheny Co., Deo. T., 1897, No. 29, on verdict of guilty of murder of the first degree. Indictment for murder. Before Stowe, P. J. At the trial it appeared that the prisoner shot and killed his wife on December 31,1897. He alleged that at the time of the shooting his wife attacked him with a knife, and that he killed her in self-defense.

<p> Assignment for creditors—Setting aside assignment under the New York law as to particular creditor—Attachment execution—Set-off. </p> <p>A firm in New York made an assignment for creditors. Plaintiffs by proper proceedings had the assignment set aside as to themselves for fraud upon them. The effect of setting aside an assignment for fraud as to one creditor under the New York law does not affect its validity as to others. Plaintiffs brought suit in Pennsylvania and summoned a bank as garnishee. The bank claimed the right to set off the assignors’ notes, overdue when suit was brought, but which had not matured at the time of the assignment. Held, (1) that as to plaintiffs the assignment was legally nonexistent either in favor of or against them; (2) that the plaintiffs had no standing to object to the claim of set-off raised by the bank.</p>