Volume 19 — Pennsylvania Superior Court Reports

Appeal, No. 255, Oct. T., 1900, by defendant, from order of Q. S. Phila. Co., Feb. T., 1900, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth v. Clarence Meeser and John F. Slater. Assumpsit on a forfeiture of recognizance.

Appeal, No. 144, Oct. T., 1901, by plaintiff, from judgment of O. P. No. 3, Phila. Co., Dec. T., 1899, No. 661, on verdict for plaintiff in case of Carrie Jacobs v. Central Railroad Company of New Jersey. Trespass to recover $462, alleged to be the value of a trunk and its contents lost by the defendant’s agent. Before Finletter, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $350, upon which judgment was entered for -$150.

Appeal, No. 119, Oct. T., 1901, by defendant, from order of C. P. No. 4, Pbila. Co., Sept. T., 1900, No. 532, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of William S. Kimball v. The Commonwealth Title Insurance and Trust Company. Assumpsit to recover proceeds of ground rent. The facts are fully stated in the opinion of the Superior Court.

Appeal, No. 260, Oct. T., 1900, by defendant, from order of O. P. No. 4, Phila. Co., Sept. T., 1900, No. 420, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Adam Baum, Isidore Baum and Nathan Baum, trading as A. Baum & Sons, v. Union Surety and Guaranty Company and Charles D. Hood. Assumpsit on the bond of an agent to recover money which it was alleged the agent failed to pay.

Appeal, No. 10, Oct. T., 1901, by Job R. Mansfield, from decree of O. C. Phila. Co., April T., 1894, No. 451, dismissing exceptions to adjudication in Estate of Charles C. Mansfield. Exceptions to the adjudication of Hanna, P. J. From the record it appeared that the testator, Charles C. Mansfield, died on June 17, 1884, leaving a will by which he created a trust for his only child, Edith Mansfielcj.

Appeal, No. 15, Oct. T., 1901, by defendant, from order of O. P. No. 1, Phila. Co., June T., 1900, No. 848, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth Title Insurance and Trust Company v. Leon H. Folz. Assumpsit on a contract of indemnity. The averments of the plaintiff’s statement of claim and of the affidavit of defense sufficiently appear by the opinion of the Superior Court.

Appeal, No. 45, Oct. T., 1901, by plaintiff, from order of O. P. No. 4, Pbila. Co., Dec. T., 1900, No. 101, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Kate V. Hall v. Mutual Reserve Fund Life Association.

Trespass to recover damages for personal injuries. Before Willson, J. At the trial it appeared that Patrick J. Murphy was the owner of the premises 1020 Cumberland street, and that the plaintiffs occupied the premises next door, No. 1022 Cumberland street. In front of Murphy’s house was a cellar door occupying two fifths of the sidewalk. The door was immediately in front of a bulk window.

Appeal, No. 58, Oct. T., 1901, by defendants, from judgment of C. P. No. 1, Phila. Go., Dec. T., 1895, No. 678, on verdict for plaintiff in case of William H. Waloer v. Robert J. Taylor and John A. Taylor, trading as Robert J. Taylor & Son. Assumpsit to recover the price of goods sold and delivered. Before Biddle, P. J. At the trial it appeared that in September, 1889, plaintiff sold and delivered to defendants seven barrels of plumbago.

Appeal, No. 157, Oct. T., 1901, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1897, No. 120, on verdict for plaintiff in case of Marshall D. Swisher v. George ,L. Sipps. Trespass to recover damages for special injuries caused by interference with the party wall and the alleged improper construction of an adjoining building.

Appeal, No. 115, Oct. T., 1901, by Gustav A. Schwab, from order of Q. S. Phila. Co., Dec. T., 1900, quashing his petition in the matter of the vacation and closing of Butler street from Lawrence street to American street in the thirty-third ward of the city of Philadelphia. Petition for appointment of viewers.

Appeal, No. 161, Oct. T., 1901, by-defendant, from order of O. P. No. 3, Phila. Co., Sept. T., 1900, No. 346, refusing exemption in the case of Mary G. Dock v. W. Walter Cauldwell. Rule to disallow exemption. The plaintiff filed an affidavit averring that the defendant was a nonresident of the commonwealth, a fugitive from justice, and that he had endeavored to hinder and delay his creditors. The defendant filed an answer denying the averments of the plaintiff’s affidavit.

Appeal, No. 185, Oct. T., 1901, by defendants, from order of O. P. No. 3, Phila. Co., March T., 1899, No. 613, discharging rule to open judgment in case of Theresa Mullin v. Thomas Monteith and George H. Farrell. Rule to open judgment. From the record it appeared that judgment had been entered on a warrant of attorney accompanying the bond given to secure the performance of covenants contained in the leased quarry.

Appeal, No. 127, Oct. T., 1901, by defendant, from judgment of C. P. Lebanon Co., Sept. T., 1900, No. 71, on verdict for plaintiff in case of Commonwealth v. George M. Stanley. Indictment for embezzlement. Before Ehbgood, P. J. From the record it appeared that George M. Stanley was indicted for embezzlement of the funds of the Economy Building & Loan Association of Lebanon of which association he was treasurer.

<p>Will — Issue devisavit vel non — Costs and expenses — Trusts and trustees.</p> <p>It is the duty of a trustee of a spendthrift trust created by will to oppose in the interest of the remainder man, a contest of the will instituted by the cestui qui trust, and the trustee is entitled to be reimbursed out of the estate for expenses incurred in sustaining the will.</p>

<p>Practice, O. P. — Affidavit of defense — Fraudulent representation — Set-off —Unliquidated damages.</p> <p>Unliquidated damages arising from a breach of contract can always be set off' when they are capable of liquidation by the application of any known measure or standard.</p> <p>Where the owner of a toboggan slide in a park has agreed to pay royalties to the lessee of the park during the continuance of the latter’s lease, or an extension thereof, and the lessee secures an extension of his lease, and thereafter assigns it to another, who falsely represents to the owner of the toboggan slide that the lease had not been renewed, and requires him to remove from the premises, the latter may in an action against him to recover royalties which had accrued before his removal, set off against the plaintiff’s claim the value of the remainder of his term, which he had lost by reason of the false representations of the plaintiff.</p>

<p>Appeal, No. 171, Oct. T., 1901, by defendants, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1899, No. 985, on verdict for plaintiff in case of Philadelphia to use of Josiah Thompson, trading as J. Thompson & Company, v. Louis O. Howell, Jr., and National Surety Company, a Corporation under the laws of the State of New York.</p> <p>Assumpsit to recover the price of material furnished to complete a municipal contract. Before Willson, J.</p> <p>At the trial, the defendant, Howell, testified that on October 3, 1898, the plaintiff accepted a note drawn by Frank S. Zane, who was a stranger to the transaction, for $260.70, at sixty days to said defendant’s order and indorsed by him, together with $2.75 in cash as full payment in satisfaction of all indebtedness due from the said defendant to the said plaintiff, and that the said note was subsequently renewed by a new note drawn by said Frank S. Zane to the said defendant Howell’s order and indorsed by him and accepted by the said plaintiff Thompson; plaintiff admitted that he had received the said note and the renewal thereof, but denied that he had accepted it in full payment and satisfaction of the original debt due by Howell to himself, and testified that the first note had been sent him by Howell and accepted by him without any agreement or conversation whatsoever in regard to the terms of its acceptance.</p> <p>The court charged in part as follows:</p> <p>[I must say further that if you find in the evidence anything which leads you to believe that the plaintiff here agreed to wait any time, to give to the defendant Howell any time upon the reception of the note, if he in any way tied his hands by receiving that note so that he could not, under the principles which I have stated to you, proceed at once, if he had chosen, upon his original claim against Howell, in that case, the surety would be relieved, because the surety is not responsible for obligations of principal if the one who owes those obligations, the creditor, gives any favor to the principal which might possibly imperil the interests of the surety. He is bound to keep himself in a position in which he can move promptly at any time against the principal, or the surety is relieved. If he gives' time, if he gives any indulgence, if he precludes himself from moving at any time he pleases, then the surety is relieved.] [1]</p> <p>Plaintiff presented these points:</p> <p>1. The mere acceptance by the plaintiff from the defendant Howell of Zane’s note for the existing indebtedness is not absolute but only conditional payment of the original debt, defeasible in the dishonor or nonpayment of the note, and in that event the defendants remain liable for the original debt, unless the jury believe that there was a special agreement to the contrary. Answer: I understand that is a mere repetition of what I have already said to you. [2]</p> <p>The burden is on the defendant to show such a special agreement to the contrary. Answer: I affirm that. [3]</p> <p>Verdict and judgment for plaintiff for $260.92. Defendants appealed.</p>

<p>Criminal law — Quashing indictment — Bias of grant juror — Challenge.</p> <p>While a grand juror may be challenged for cause, it is not the law that what might have been ground of challenge as to a particular grand juror is, under all the circumstances, ground for quashing the indictment.</p> <p>When an objection to a grand juror was known, or might have been known by the exercise of reasonable diligence, and might have been interposed by challenge, but was not, it is clear, both upon principle and authority that a refusal to quash the indictment for the same cause is not reversible error.</p> <p>Criminal law — Practice, Q. S. — Motion in arrest of judgment — Deposition — Record.</p> <p>Depositions taken in support of a motion to arrest the judgment are not a part of the record, and cannot be considered by the appellate court.</p> <p>Criminal law — Practice, Q. 8.</p> <p>In the absence of a plain abuse of discretion, the appellate court will not review the action of the court of quarter sessions in refusing to postpone atrial and in refusing an application for an attachment for an absent witness.</p> <p>Where, on a motion to quash the indictment on the ground of a bias of a grand juror, leave is granted to the defendants to call witnesses, and they proceed to do so without suggesting that they are not prepared, and after they have examined the grand juror, they ask for an attachment for an absent witness who lived in another county, and the court refuses to suspend the hearing, the action of the court is not ground for reversing a conviction.</p> <p>Criminal law — Evidence—Testimony of an accomplice.</p> <p>A jury may believe an uncorroborated accomplice, and if his testimony produces in their minds a conviction of the defendant’s guilt, beyond a reasonable doubt, they may convict. If the testimony of the accomplice his manner of testifj’ing, his appearance upon the witness stand, impress a jury with the truth of his statement, there is no inflexible rule of law which prevents a conviction. In such case it is for the trial judge who also heard the witness, noticed his manner and appearance upon the stand and who can judge equally with the jury as to his credibility, to say whether he is satisfied with the verdict.</p> <p>Appeals — Harmless error — Evidence.</p> <p>An appellant must not only establish the existence of an error in the proceedings below, but that the error tended to his injury. It is not sufficient, as a general rule, to show that an improper question either in form or substance had been put to a witness; it must appear that an answer is received which tended to injure the case of the appellant.</p> <p>Criminal law — Larceny—Evidence.</p> <p>An information on which a warrant for larceny is based is not admissible at the trial, either on the part of the commonwealth or the defendant, as primary evidence of the date of the larceny.</p> <p>Evidence — Contradiction of witness — Relevancy.</p> <p>In order to impeach a witness by proof of contradictory statements made by him, it is essential that such statements have reference to some matter which is relevant and material to the issue on trial.</p> <p>Where a party defendant in testifying against codefendants, denies, on cross-examination that he was biased or interested, a mere offer to prove that he had stated that he was to be “ left out at court,” is insufficient without a further offer to show by whom the promise was made, or that his being “left out at court,” was in any way dependent upon the conviction of the other defendants or the testimony that he might give against them.</p> <p>Evidence — Witness—Cross-examination.</p> <p>It is legitimate cross-examination of an ordinary witness who has testified in chief, that what purports to be his signature was not written by him to call upon him to write, in order that such writing may be compared with the disputed writing, for the purpose of contradicting him. The same is true of a defendant in a criminal case who has offered himself as a witness. By consenting to take the stand he waived his constitutional privilege.</p> <p>Practice, Q. S. — Record—Verdict—Presence of defendants.</p> <p>It is not imperatively necessary that the record of the trial in an indictment for larceny should show that the 'defendants were present when the verdict was rendered,</p>

<p>Evidence — False ifnprisonmenb^-Newspaper articles — Record.</p> <p>In an action of trespass for false imprisonment, newspaper articles describing an alleged larceny by the plaintiff of the goods of the defendant and comments relating thereto are incompetent and irrelevant.</p> <p>It is proper in an action of trespass for false imprisonment to show that the defendant had no reasonable ground for making the arrest, and of this the Verdict of acquittal by a jury is evidence. In the trial of such an action it is therefore proper to admit in evidence the record of the court 6i quarter sessions showing .the acquittal. At such a trial the witnesses Who were examined in the quarter sessions may be cross-examined as to particular facts testified to by them in the criminal court.</p> <p>Assault and battery — Definition.</p> <p>Assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person.</p> <p>There may be an assault and battery without any distinct physical injury resulting.</p> <p>False imprisonment — Evidence—Question for jury.</p> <p>In an action for false imprisonment the court commits no error in refusing binding instructions for defendant where it appeal’s that the defendant, suspecting that the plaintiff, a customer in his store, had appropriated some articles of merchandise, confined her in an upper room of the store for several hours, although the office of a justice of the peace was within a convenient distance of the store.</p> <p>False imprisonment — Damages—Mental suffering.</p> <p>In an action for false imprisonment, mental suffering, humiliation and injury to feeling are legitimate subjects of claim.</p>

<p>Appeal, No. 211, Oct. T., 1900, by-defendants, from judgment of O. P. McKean Co., Dec. T., 1898, No. 120, on verdict for plaintiff in case of Alice Slattery v. The Supreme Tent of the Knights of the Maccabees of the World.</p> <p>Assumpsit upon a policy of life insurance.</p> <p>Verdict and judgment for plaintiff for $ 1,168. Defendants appealed.</p> <p>Error assigned among others was refusal to grant a new trial.</p>

Appeal, No. 143, Oct. T., 1901, by defendant, from judgment of O. P. McKean Co., Dec. T., 1898, No. 121, on verdict for plaintiff in case of Alice Slattery v. The Great Camp of the Knights of the Maccabees for Pennsylvania. Assumpsit upon a policy of life insurance.

<p>Appeal, No. 236, Oct. T., 1900, by plaintiffs, from judgment of C. P. Lebanon Co., March T., 1899, No. 71, non obstante veredicto in case of George Stasch and Katharine, his wife, v. Cornwall Ore Bank Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Ehrgood, P. J.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>The jury returned a verdict in favor of plaintiffs for $466.37. The court subsequently entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 232, Oct. T., 1901, by plaintiffs, from judgment of C. P. Blair Co., June T., 1896, No. 258, non obstante veredicto in case of W. A. Ambrose, Trustee of Robert Bell, in right of said Robert Bell and in right of the Mutual Building and Loan Association of Altoona, v. The First National Fire Insurance Company of Worcester, Mass. Assumpsit on a policy of fire insurance.

<p>Road la,w — Appeals—Record—Discretion.</p> <p>On an appeal from an order discharging a rule to show cause why the confirmation absolute of the report of a jury of view should not be opened, the appellate court cannot review the findings of the court below upon the question whether the road had been actually opened, nor can it review any irregularity in the proceedings which did not go to the jurisdiction of the court to make the original decree, or present on the face of the record ail' insuperable barrier to the execution of an order to open.</p> <p>Road law — Termini—Sufficient definition of termini — Location of road —Draft.</p> <p>Absolute mathematical precision of definition of the termini of a road is not required. It is sufficient if there be substantial conformity between the petition and the report, and if they be described so that the road can be located with reasonable certainty. If there is substantial conformity between the petition and the report, and either terminus is definitely fixed in the report, a defect in the description of the other terminus is not necessarily fatal, for this may be ascertainable by tracing the courses and distances reported. These principles apply with great force where it is sought to set aside a decree which has stood unquestioned for forty years.</p> <p>A draft annexed to a report of viewers is properly a part of it, and is to be considered in determining as to the sufficiency of the designation of the termini.</p> <p>A report of viewers described a road as follows: “Beginning in the road or highway near R. W. Moore’s, thence by given courses and distances to the road a little west of Peter B. Lovell’s fields.” A draft annexed to the report showed the location of R. W. Moore’s house; a line, evidently indicating the highway, running past it; the terminus of the proposed road at a point in that highway opposite the house; its direction from the house; the courses and distances ; P. B. Lovell’s house, and the highway passing it in which the proposed road terminated. Held, that the court could not say that it was absolutely impossible for the supervisors to locate the road.</p>

<p>Appeal, No. 75, Oct. T., 1901, by supervisors of Hector township, from order of Q. S. Potter Co., No. 434, of Road Records, discharging rule to show cause why the confirmation of a road jury’s report should not be opened in case of Hector Township Road.</p> <p>Rule to show cause why confirmation of a road jury’s report should not be opened.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule.</p>

<p>Appeal, No. 208, Oct. T., 1901, by S. W. Sliipe et al., from order of Q. S. Northumberland Co., Feb. T., 1901, No. 104, vacating order incorporating Borough of Herndon.</p> <p>Order vacating order incorporating borough of Herndon,</p> <p>Error assigned was the order of the court,</p>

<p>Appeal, No. 227, Oct. T., 1901, by defendant, from order of O. P. Potter Co., March T., 1901, No. 68, discharging rule to open judgment in case of Commonwealth tb 'use of Genesee Twp. v. G. H. Allis, A. G. Allis and ¡M. F. McCarn.</p> <p>Buie to open judgment.</p> <p>Olmsted, P. J., filed the following opinion:</p> <p>G. H. Allis was treasurer of Genesee township for the fiscal year of 1899. A. C. Allis and M. F. McCarn, above named, were his bondsmen. On March 16,1900, the auditors of the township met to settle the accounts of G. H. Allis as said treasurer. They went over the accounts and made a conditional settlement. The accounts resulted in a considerable balance against the treasurer. Subsequently that balance, except $250 (the item now in controversy), was paid. There is no conflict of evidence in this case. G. H. Allis testifies substantially to the same, facts as the witness for the township. It appears that one Webster had a judgment of $250 against the township. This judgment had not been paid but was credited in the settlement of Allis as though paid by him. The evidence shows that Allis said it was not paid but that he had the money and would pay it to Webster the next day (Webster was not at home so it could then be paid). R. L. Nelson, one of the auditors, testified that Allis said he had -the money and would pay it to Webster the next day, says the settlement was not to be final unless he paid the money the next day, and that the entries on the books were left with the town clerk subject to revision and the agreement was if he paid the money, the entries on the book was to be considered the settlement, but if he did not we were to change it. The other auditors testify substantially to the same thing.</p> <p>Allis did not pay the $250 to Webster. Mr. Waterman, one of the supervisors of the township, testifies that learning that the judgment was not paid he went to see Allis upon -the subject and asked Allis to pay him the money, and that Allis replied that he had used the money in his business and could not pay it, but that he would in the future. Waterman testifies further that he told Allis that they would have to rectify the books if the money was not paid. Allis asked him not to change the books as he would pa}»- it in the future. Allis, himself, corroborates Waterman and says that the judgment of Webster was not paid. This being the situation the auditors met again on April 7, and the statement was changed, striking out the credit of $250.92 (the Webster judgment). This report was published and filed with the clerk of quarter sessions and judgment was entered upon the bond for the balance.</p> <p>It is agreed by counsel that McCarn, the present treasurer (and successor to Allis), has received from Allis the sum of $608.84, the balance as shown by the statement of March 16, 1900, which is in full of the plaintiff’s claim provided the plaintiff is estopped by the action of the auditors of that date from collecting the unpaid amount of $250.92, not paid to Webster but for which Allis has credit in that statement.</p> <p>The above is intended to be a correct statement of the facts of the case. The defense is purely technical and without equities. [I cannot avoid the conclusion that the auditors under the admitted state of facts in the case still had power to change to correct their work. If this matter had remained open until a succeeding board of auditors had come in, it would have been too late, but this was the same board of auditors and the work followed almost immediately after the first work and was just what was agreed to by all the parties that they should do if the Webster judgment was not paid.] [1] Any other conclusion would be a sacrifice of all the equities of the case. I cannot come to the conclusion that there is any imperious rule of law that should be permitted to work such injustice.</p> <p>[And now, May 16, 1901, rule discharged.] [2]</p> <p>Error assigned was the order of the court.</p>

<p>Lease — Lease of water by borough — Representations—Agent.</p> <p>In an action to recover rental under a lease of all the water upon the land of the plaintiffs, an offer to prove representations on behalf of the plaintiffs that a particular spring was upon their tract, and that these representations which were false induced the contract, is insufficient, since the offer does not include any proposition to prove the authority to the alleged agent making such representations, save as they might appear by his own declarations.</p> <p>Mistake — Mutual mistake — Materiality—Contract.</p> <p>An act done or a contract made under a mistake of a material fact is voidable and relievable in equity; but the fact must be material to the act or contract, for though there may be an accidental mistake, or ignorance of the fact, yet if the act or contract is not materially affected by it, relief will not be granted.</p> <p>In an action to recover rental under a lease of all the water upon the land of plaintiffs, where there is no reference in the lease to a particular spring, and it is undisputed that there are several sources of water supply upon the land, an offer to prove that a particular spring was believed by the defendant at the time the lease was made to be on the land of the plaintiffs, whereas it was upon another farm, is immaterial. In the first place the existence of the spring was not a fact upon which the contract by its terms in any way depended, and in the second place the offer as made did not disclose any mutual mistake.</p>

<p>Appeal, No. 237, Oct. T., 1901, by defendant, from judgment of C. P. Lancaster Co., Sept. T., 1901, No. 33, on case stated in case of John J. Galbraith v. Simeon W. Swisher.</p> <p>Case stated to determine title to real estate.</p> <p>The court entered judgment for plaintiff on case stated.</p> <p>Error assigned was in .entering judgment for plaintiff on case 'stated.</p>

<p>Appeal, No. 72, Oct. T., 1901, by defendant, from judgment of C. P. Lancaster Co., Oct. T., 1899, No. 10, on verdict for plaintiff in case of C. Albert Jacob, trading as Jacob Bros., Assignee of J. G. Ramsdell, v. Frances E. Groff and George W. Anne.</p> <p>Replevin for a piano. Before Livingston, P. J.</p> <p>At tbe trial it appeared that J. G. Ramsdell leased a piano to Frances E. Groff, and that by the terms of the lease, the lessee was to pay $50.00 per quarter, and to give a promissory note for $350 payable within three months. The note was given to the lessor who had it discounted by the Chestnut Street National Bank. When the note became due it was not paid and the bank brought suit.</p> <p>Defendant made the following offer:</p> <p>We offer to prove by this witness, Harry E. Groff, that suit was brought on the $350 note in circuit court of the United States, at Philadelphia, to April sessions, 1898, No. 33, b the Chestnut street National Bank, which had discounted the note; said note being dated November 13, 1897, payable three months after date, due February 13, 1898, signed by Frances E. Groff, payable to the order of and indorsed by J. G. Ramsdell, being the note of $350' referred to in the contract between J. G. Ramsdell and Frances E. Groff. This will be followed by proof of the settlement of said suit.</p> <p>Disallowed and defendant excepts. [1]</p> <p>We offer to prove by Harry E. Groff, this witness, that suit was brought on the $350 note in the circuit court of the United States, at Philadelphia, to April sessions, 1898, No. 33, by the receiver of the Chesnut Street National Bank, by which bank the note had been discounted by J. G. Ramsdell, being note of November 13, 1897, at three months, due February 13,1898, signed by Frances E. Groff, payable to the order of and indorsed by J. G. Ramsdell, and being the note mentioned in the contract between J. G. Ramsdell and Frances E. Groff; that the above suit was settled, the note surrendered upon the payment by witness of certain cash, by the assignment by witness of a life insurance policy in the Mutual Life of New York, No. 331550, and the execution and delivery by Frances E. Groff to J. G. Ramsdell of three notes, each for $50.00 and all dated August 25,1898, the first being due February 13, 1899; the second, May 13, 1899; and the third, August 13, 1899, and that this was a complete settlement of all matters at issuebetween Ramsdell, the bank and Mrs. Groff. Disallowed and defendant excepts. [2]</p> <p>Yerdict and judgment for plaintiff for $186.22. Defendant appealed.</p> <p>Errors assigned were (1,2) rulings on evidence, quoting the bill of exceptions. (3, 5) Instructions referred to in the opinion of the Superior Court.</p>

Appeal, No. 234, Oct. T., 1901, by Charles C. Goodman, from decree of O. C. Berks Co., Jan. T., 1894, No. 46, sustaining exceptions to adjudication in the Estate of Daniel Klapp, Deceased. Exceptions to adjudication.

Appeal, No. 40, Oct. T., 1901, by plaintiff, from order of C. P. Delaware Co., Dec. T., 1901, No. 85, making absolute a rule to open judgment in case of J ames Kellett v. Edwin C. Freeman. Rule to open judgment. Johnson, P. J., filed the following opinion: On September 8, 1900, a rule for judgment for want of sufficient affidavit of defense was made absolute by an opinion filed September 8, 1900.

Appeal, No. 91, Oct. T., 1901, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1900, No. 46, on verdict for defendant in case of Josephine E. Swayne v. Charles H. Swayne. Assumpsit to recover damages for the breach of a parol agreement to convey real estate. Before Hemphill, P. J. At the trial it appeared that at an orphans’ court sale plaintiff had purchased real estate for $610. The return of the sale was amended so as to show a sale to the defendant.

Appeal, No. 176, Oct. T., 1901, by-defendant, from judgment of C. P. Chester Co., Aug. T., 1900, No. 48, on verdict for plaintiff in case of Horace W. Staats v. John G-. Simpson. Replevin to recover straw to which plaintiff claimed title under a lease.

Appeal, No. 202, Oct. T., 1901,by-plaintiff, from decree of C. P. Chester Co., dissolving preliminary injunction in the case of Linda A. Painter, Executrix of U. H. Painter, Deceased, v. Western Union Telegraph Company. Bill in equity for an injunction. The facts are set forth at length in the opinion of the Superior Court. Error assigned was decree dissolving preliminary injunction.

Appeal, No. 254, Oct T., 1901, by defendant, from judgment of C. P. Delaware Co., March T., 1900, No. 241, on verdict for plaintiffs, in case of Stanley Walton and Alice V. Walton, his Wife, v. The Borough of Colwyn. Trespass to recover damages for personal injuries. Before Johnson, P. J. The facts are stated in the opinion of the Superior Court. The court refused to give binding instructions for defendant, and submitted the case to the jury.

Appeal, No. 130, Oct. T., 1901, by Lawrence Cement Co., from order of Q. S. Northampton Co., incorporating borough of Alliance. Petition for the incorporation of the borough of Alliance. Before Scott, J. Error assigned was in entering decree of incorporation.

Appeal, No. 244, Oct. T., 1901, by-defendant, from judgment of C. P. Northampton Co., June T., 1901, No. 27, on verdict for plaintiff in case of William H. Danner v. William Pless. Assumpsit by payee against maker of a promissory note. Before Schuyler, P. J. At the trial the court rejected the defendant’s offer of evidence, recited at length in the opinion of the Superior Court, and directed a verdict for plaintiff. Verdict and judgment for plaintiff for $269.99.

Appeal, No. 52, Oct. T., 1901, by defendants, from order of C. P. Lehigh Co., Sept. T., 1899, No. 56, discharging rule to set aside execution in case of Andrew Stephens in his own right and in right of his minor child, Florence Stephens, v. Frank R. Addis. Rule to set aside execution. Error assigned was order discharging rule to set aside execution.

Appeal, No. 145, Oct. T., 1901, by plaintiff, from decree of C. P. Montgomery Co., Dec. T., 1899, No. 3, on bill in equity in case of Alexander McCoy v. Edward F. Kane. Bill in equity to declare title in plaintiff to an interest in a mortgage. Weand, J., filed the following opinion: HISTORY OF THE CASE.

Appeal, No. 239, Oct. T., 1901, by plaintiff, from judgment of O. P. Schuylkill Co., July T., 1901, No. 214, on verdict for defendant in case of J. W. Sallade v. The County of Schuylkill. Held: that municipal officers cannot bargain or barter away their rights and duties; they are to act as a deliberative body, and to that end assist each other by their united judgment, wisdom and experience, if any they have. They must meet as a board, and act as a board.

Appeal, No. 149, Oct. T., 1900, by Walter Ballenger, from decree of O. C. Phila. Co., April T., 1889, No. 407, dismissing exceptions to adjudication in estate of James Ballenger, deceased. Exceptions to adjudication. From tbe record it appeared that the case turned on. the con-: struction of the will of James Ballenger, deceased. The material portions of the will are quoted in the opinion of the Superior Court.

Appeal, No. 184, Oct. T., 1901, by defendant, from judgment of C. P. Berks Co., May T., 1894, No. 78, on verdict for plaintiff in case of City of Reading v. Reading and Southwestern Street Railway Company. Assumpsit for costs of repaving street. Before Estdlioh, J. At the trial it appeared that the suit was brought for the cost of repaving a portion of Franklin street in the city of Reading.

Appeal, No. 112, Oct. T., 1901, by defendants, from judgment of C. P. Delaware Co., March T., 1900, No. 578, on verdict for plaintiff in case of C. Frank Williamson v. Thomas R. Tunis, owner or reputed owner and William Eves, Jr., Contractor. Scire facias sur mechanics’ liens.

<p>Set-off — Contract—Evidence.</p> <p>In an action by E. Canfield’s Sons to recover the price of a carload of lumber, it appeared that the defendant bought the lumber through A. E. Canfield who did not represent himself to be a member of the plaintiff firm. The order for the lumber and the bill forwarded in advance of the lumber showed the names of two persons as members of the firm, but not the name of A. E. Canfield. Defendant sought to set off a claim which he had for work on the property of Mrs. A. E. Canfield. It seems that Mrs. Canfield had agreed that a village improvement association should do this work for which she was to pay. The association turned the work over to the defendant. The defendant admitted that, he had no contract with A. E. Canfield or his wife for this work. Held, that there was no error in excluding the set-off.</p>

<p>Master and servant — Presumption of payment.</p> <p>In an action against the estate of a decedent to recover for services, the presumption of payment which ordinarily arises in the case of a domestic servant does not apply where the evidence tends to show that the plaintiff although originally employed as a servant, at fixed wages, was promoted to the position of housekeeper, that she performed all the duties connected with such a position, and in addition tended decedent’s bar, entertained his patrons, did all the buying for the household, and had access to his cash drawer; that no fixed amount of wages had been settled upon, but that the decedent had declared that her services were very valuable to him; that he could not get any one to do as she did for $15.00 or $20.00 per week; that she would be all right when he was gone; that she would be all right some day anyhow, as she would be his.</p>

Appeal, No. 105, Oct. T., 1901, by plaintiff, from order of C. P. No. 3, Pbila. Co., March T., 1901, No. 166, making absolute rule to quash attachment in case of Emma Elizabeth Von Helmold v. George H. Von Helmold, sometimes called George H. Helmold. Rule to quash attachment. The petition for the attachment averred that the petitioner and George H. Von Helmold were married in 1894, and lived together until December 3, 1898, when Von Helmold deserted her.

Appeal, No. 69, Oct. TV, 1901, by defendant, from judgment of C. P. No. 1, Phila. Go., March T., 1898, No. 788, on verdict for plaintiff in case of James W. Shelly v. John Kuestner. Appeal from justice of the peace. Before Bietler, J. jError assigned amongst others was in overruling defendant’s demurrer.

Appeal, No. 212, Oct. T., 1901, by-plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1898, No. 856, refusing to take off nonsuit in case of Predericke Siebelist v. The Metropolitan Life Insurance Company. Assumpsit on a policy of life insurance. Before Biddle, P. J. The facts are stated in the opinion of the Superior Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was the order of the court.

Appeal, No. 4, Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1898, No. 538, on verdict for plaintiff in case of Andrew McPhillips and Charles P. McPhillips, by his father and next friend, Andrew McPhillips, v. Union Traction Company. Trespass to recover damages for personal injuries. Before McMichael, J. At the trial it appeared that on the night of June 8, 1898, plaintiff was injured on Lancaster avenue in the city of Philadelphia.

Appeal, No. 248, Oct. T., 1901, by-plaintiff, from order of O. P. No. 4, Phila. Co., March T., 1899,-No. 463, M. L. D., refusing to take off nonsuit in case of George B. Diemer, to use of John Ferguson v. Philadelphia German Protestant Home for the Aged, Owner or Reputed Owner, and J. V. Bennett and S. W. Rothrock, Contractors. Scire facias sur mechanic’s lien. Before Arnold, P. J. The court entered a compulsory nonsuit which it subsequently refused to take off.

Appeal, No. 29, Oct. T., 1901, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1900, No. 1162, on verdict for plaintiff in ease of Henry Cobb v. Metropolitan Life Insurance Company. Assumpsit on a policy of life insurance. Before Beitler, J. The facts appear by the opinion of the Superior Court. The court refused binding instructions for defendant. Verdict and judgment for plaintiff for $121. Error assigned was in refusing binding instructions for defendant.

<p>School law — Teachers— Vaccination — Injunction.</p> <p>School directors have the power to suspend a teacher because she refused to comply with a regulation of the board requiring teachers to be vaccinated.</p> <p>Equity — Practice, C. P. —Injunction—Dismissal of bill.</p> <p>The court has no power to dismiss a bill in equity at the same time that it refuses a preliminary injunction, where it appeal's that the defendant had not demurred to the bill, nor set the case down for hearing on bill and answer, and that the only matter before the court was the motion for a preliminary injunction.</p>

Appeal, No. 44, Oct. T., 1901, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1896, No. 550, refusing to take off nonsuit in case of Lansdale Trust and Safe Deposit Company v. Harry J. Smith, Defendant, and Joseph Raspin, Garnishee. Attachment execution. Before Biddle, P. J. The facts appear by the opinion of the Superior Court. JError assigned was refusal to take off nonsuit.

Rule to show cause why penalty and damages for suing out appeal merely for delay should not be imposed. The petition for the rule averred that the appellant after taking the appeal took no further proceedings in the matter, filed no assignments of error, prepared no brief for argument, and when the case was called for argument did not appear, and suffered the appeal to be nonprossed.

<p>April T., 1902, No. 1.</p> <p>Petition for rule for habeas corpus in case of Commonwealth ex rel. Alexander Bergman v. William Mc.O. Johnston, Warden of the Western Penitentiary of Pennsylvania.</p>

Appeal, No. 222, Oct. T., 1901, by plaintiff, from decree of C. P. No. 1, Phila. Co., March T., 1900, No. 1324, dismissing bill in equity, in case of Thomas R. Marshall v. John P. Yirden, President, P. S. Eldridge, Treasurer, John B. Merrir, Secretary, representing themselves and others associated together under the joint title, “ The Pilots’ Association for the Bay and River Delaware.” Bill in equity for an account.

Appeal, No. 9, Oct. T., 1901, by plaintiff, from order of C. P. No. 4, Phila. Co., March T., 1899, No. 836, making absolute a rule to set aside judgment in case of T. Elwood Potts v. Albanus A. Harmer and Minnie L. Jones, Garnishee. Rule to set aside judgment entered against garnishee for default in filing answers to interrogatories. The facts are stated in the opinion of the Superior Court. Error assigned was order making the rule absolute.

<p>Contract — Assignment—Performance.</p> <p>A contract may be assigned so as to vest in the, assignee the equitable rights to the proceeds, although the money may not have been due, or his part of the contract performed by the assignor at the time of the assignment.</p> <p>An assignment is valid in equity as an agreement, and takes effect as an assignment when the demands intended to be assigned are subsequently brought into existence.,</p> <p>Principal and surety — Contract—Bond—Assignment.</p> <p>In an action against a surety company on a, bond given to the plaintiff, a trust company, as surety for the performance of a contract, of a builder, where the statement shows that the builder had defaulted and that the plaintiff had caused the work to be finished and paid the bill therefor through the use plaintiff, the defendant cannot on demurrer allege as a defense that as the bond did not contain the words “ successors and assigns,” the surety was discharged by reason of the assignment of the bond to the use plaintiff.</p> <p>Contract — Arbitration clause — Right of trial by jury.</p> <p>If the parties' to a contract provide that any dispute which may arise between them, in reference to the subject-matter of the contract, shall be determined by a person therein named, whose decision shall be final, the parties cannot seek redress elsewhere until the person so chosen has been discharged by having made an award,, or otherwise. But in order to oust the jurisdiction of the court, it must clearly appear that the subject-matter of the controversy was within the prospective submission. The right of trial by jury is not to be taken away by implication.</p> <p>Where a bond is given to a corporation without reference to its successors or assigns, for the faithful performance of a contract of a builder, an arbitration clause in the contract does not apply to a dispute as to whether the bond could be assigned.</p>

<p>Assignment for creditors — Situs of debt — Foreign assignee.</p> <p>Where a Pennsylvania corporation has complied with the laws of Maryland, and is lawfully engaged in business there, and contracts in that state a debt to a citizen thereof, and subsequently the creditor makes an assignment for the benefit of creditors in Maryland, the debt passes as an asset of his estate to the Maryland assignee, and is not subject to subsequent attachment in Pennsylvania. In such a case the Act of May 3, 1855, P. L. 415, requiring the assignments of nonresidents to be recorded within any county where the assignor’s estate is situate within Pennsylvania, has no application.</p>

<p>Appeal, No. 94, Oct. T., 1901, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1898, No. 14, on ease stated in suit of Jacob G. DeTurck and Harry Bassett, trading as DeTurck, Bassett & Company, v. George Woelfel, defendant below; St. Paul Fire & Marine Insurance Company, Garnishee, Appellee, and George It. Willis, Trustee, Claimant.</p> <p>Case stated in foreign attachment.</p> <p>The facts were similar to those in DeTurck v. Woelfel (No. 1), ante, p.</p> <p>Error assigned was in entering judgment for trustee on the case stated.</p>

Appeal, No. 182, Oct. T., 1901, by plaintiff, from judgment of O. P. No. 4, Phila. Co., Sept. T., 1898, No. 449, for defendant non obstante veredicto in case of Mary Alters v. The Beneficial Association of the Journeymen Bricklayers Protective Association of Philadelphia and vicinity. Assumpsit for death benefits. Before Willson, J. At the trial it appeared that plaintiff’s husband, August Alters, died on December 31, 1897.

Appeal, No. 273, Oct. T., 1900, by defendant, from judgment of O. P. No. 1, Phila. Co., Dec. T., 1899, No. 691, on verdict for plaintiff in case of Janette- S. John v. Philadelphia, Appellant, and Union Traction Company. Trespass to recover damages for personal injuries. Before Brégy, J. At the trial it appeared that the plaintiff was injured on December 1, 1899, by stepping into a hole in the asphalt pavement opposite to Broad street station in the city of Philadelphia.

Appeal, No. 12, April T., 1901, by defendant, from judgment of Q. S. Venango Co., April Term, on verdict of guilty in case of Commonwealth v. Israel M. Mintz. Indictment for violating Act of April 11, 1899, P. L. 87. Before Criswell, P. J. At the trial the defendant was convicted of the offense charged in the indictment. He subsequently moved in arrest of judgment on the ground that the act under which he was convicted was unconstitutional.

<p>Negligence — Child of lender years.</p> <p>Injury to a child of tender years is a misfortune without remedy in the absence of negligence on the part of him who caused the injury, but if the latter be guilty of negligence, the heedlessness of danger by the child is no protection to him.</p> <p>In an action to recover damages for injuries to a child seven years old, the case is for the jury, and a judgment and verdict for plaintiff will be sustained where the evidence for the plaintiff, although contradicted, tended to show that if the defendant had watched the movements of the child as she continuously moved from the pavement over the curb and across the street, he could have checked his horse before the accident occurred.</p>

<p>Insurance — Live stock insurance — Assessments—Cancelation of policy.</p> <p>A member of a mutual live stock insurance company is liable for all losses incurred prior to his withdrawal from the company, or the cancelation of his policy. If a receiver of the company is authorized by the court to make assessments, the amount of the assessments and the necessity for making them are conclusively fixed by the decree of the court.</p>

<p>Appeal, No. 160, Oct. T., 1901, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1899, No. 520, refusing to take off nonsuit in case of Michael Graham v. City of Philadelphia.</p> <p>Trespass to recover damages for injuries to a horse, harness and wagon.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Set-off — Judgment—Claim not in judgment.</p> <p>The defendant in a judgment is not entitled to set-off against the judgment a debt not in judgment.</p> <p>Set-off — Judgment—Negligence—Municipality.</p> <p>Where a judgment has been obtained against a city for personal injuries, the city has no right to deduct from the amount of the judgment a sum which it had spent for the maintenance of the plaintiff as a public charge pending the litigation.</p> <p>Where a person petitions for a mandamus to compel a city to pay her the amount of a judgment which she had recovered against the city for personal injuries, and the court awards the mandamus but deducts from the amount of the judgment a sum which the city had paid for the maintenance of the plaintiff as a public charge, and no appeal is taken from this order, and the plaintiff is paid the amount of the order, she may subsequently by second mandamus proceedings recover the amount which had been wrongfully deducted from the judgment.</p>

Appeal, No. 35, Oct. T., 1901, by-defendant, from judgment of C. P. McKean Co., Dec. T., 1898, No. 191, on verdict for plaintiff in case of J. S. Bradley v. P. W. McHale. Assumpsit for breach of contract.

<p>Appeal, No. 134, Oct. T., 1901, by defendant, from judgment of O. P. McKean Co., Dec. T., 1899, No. 191, on verdict for plaintiff, in casé of John Hewitt v. Pittsburg, Shawmut & Northern Railroad Company.</p> <p>Appeal from report of jury of view. Before Morrison, P. J.</p> <p>At the trial plaintiff was asked these questions:</p> <p>“ Q. What kind of land is this through which the railroad runs is it cultivated land?. A. Yes, sir. Q, How does it lie, as to being level or otherwise ? A. On the lower side of the railroad it is flat and the upper side it is a natural grade up to the road; a little descending, ■ just enough to run water off. Q. State whether there are any cuts or fills along this road through your farm. A. Thére are fills; mostly. Q. About how much? A. Somewhere about three feet. They say it isn’t all filled yet. They have been filling all summer long. Q. What effect does this fill have on the surface water running down? A'. If they do what they propose to do — Q. What effect has it now ? A. This spring I couldn’t get in any crop. There is a spring there and it ran all over the whole front — I couldn’t do nothing; I came up to them several times.”</p> <p>Objected to.</p> <p>The Court: He is entitled to show how it is located, and if it does any direct damage to him more than ordinary he is entitled to show it.</p> <p>• Objected to.</p> <p>The Court: He has a right to describe the situation and what the effect of the railroad is on his land, as affecting the value of his land, compared with what it was before the railroad was put there.</p> <p>Offered as tending to show the difference in the value of the farm before and since the railroad was constructed; but not to show any consequential damages, and the plaintiff’s counsel also proposes to show that the occupation by the railroad construction frequently set fires on the land of the plaintiff.</p> <p>Objected to that they can only show what the market value of the land, as a whole, was, before the railroad was there and after it was put there.</p> <p>The Court: How is the jury to know its value without showing the uses that it is put to and what it is used for ? I understand that the plaintiff cannot enhance the value by showing that he desired to make, or did make some peculiar use of the land, that made it more valuable to him than it would be to anyone else; but he can show the general character of the land and show how much less it is worth with the railroad through it than without it; I think he has a right to state if the construction of the railroad flooded his land.</p> <p>Exception sealed for the defendant. [1]</p> <p>M. W. Heinlein, sworn and examined by Mr. Bouton, testified as follows:</p> <p>“ Q. Where do you reside ? A. Farmers valley. Q. Do you know the farm owned by the plaintiff? A. Yes, sir. Q. How long have you known that farm ? A. About twenty years. Q. You are a farmer? A. Yes, sir. Q. Now what in your judgment is the value of the Hewitt farm with the railroad now upon it, less than its value prior to the construction of the railroad ? A. I should think there would be seven or eight hundred dollars difference. Q. How long have you lived there ? A. About twenty years. Q. How near to the Hewitt farm ? A. Between a quarter and a half mile.</p> <p>Cross examined by Mr. Richmond:</p> <p>“ Q. You own the farm adjoining this ? A. No, sir. Q. Very near to it? A. No, sir. Q. How far is your farm from Mr. Hewitt’s ? A. About a good long mile. Q. It is on the same road? A. No, sir; my farm is back from the road. Q. Your father owns a farm near Mr. Hewitt’s ? A. No,.sir. Q. Your father’s estate? A. Yes, sir. Q. Your father’s farm then is very near to Mr. Hewitt’s? A. Yes, sir; about a quarter of a mile or a little over. Q. The land up and down that valley is much of the same character and value ? A. There is more hill on the farm I live on than on Mr. Hewitt’s. Q. Have you any idea of the present value of farm lands in that vicinity? A. Not a great deal. Q. Have you any idea of the value of farm lands in that vicinity a year ago ? A. I don’t think there is any difference. Q. Have you any idea of the value of farm lands in the vicinity of the Hewitt farm now? A. No, sir; I haven’t heard any value on the value of any lairds in there.”</p> <p>Objected to the testimony of the witness that he is not competent and defendant’s counsel asks that the witness’s testimony be stricken out.</p> <p>The Court: I think in view of the question, and the purpose that he was put on the stand for, and the silence of the defendant’s counsel, we have a right to assume that both sides wanted his opinion.</p> <p>Counsel for defendant asks that the testimony of the witness be stricken from the record.</p> <p>The Court: In view of the fact that the witness was put on the stand to testify to the amount of damages to this land, and no objection made and no question raised of his competency, we decline to strike out his evidence.</p> <p>The court charged in part as follows :</p> <p>They ought to pay Mr. Hewitt exactly what he has suffered in damages, and as has been argued to you by counsel, you may add something to that for the delay in paying it. When they took possession of his land and built their railroad on it, they ought to have given him just compensation, and having brought it into this court and delayed it this length of time, it is proper, after you have arrived at a conclusion of how much damage he sustained, to then increase that such an amount as you think just and proper for the delay in paying it. About one year; which increase should not exceed six per cent; it might be less, but it ought not to be more than that. You can make it as much less than that as you see fit, but he is entitled to something for the delay in paying him.</p> <p>If they had sought to save themselves from this and had tendered him an amount which they said was just compensation, before bringing it into court, and he had refused to take it, and they had kept up that tender, he wouldn’t be entitled to anything for the delay if he didn’t recover more than they offered to pay him; but this delay is on account of the action of the railroad company. [7]</p> <p>Yerdict for plaintiff for $742, upon which judgment was entered for $600, all above that amount having been remitted. Defendant appealed.</p> <p>Errors assigned were (1-6) rulings on evidence, quoting the bill of exceptions. (7) Above instructions, quoting them,</p>

<p>Appeal, No. 234, Oct. T., 1900, by-defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1899, No. 10, on verdict for plaintiff, in case of Plenry Rudy, Administrator of Margaret Rudy, Deceased, v. Benner R. Myton, Thomas F. Shipton, Mary P. Shipton and Thomas F. Shipton.</p> <p>Trespass to recover damages resulting from the cutting off of a supply of water. Before Bailey, P. J.</p> <p>From the record it appeared that the suit was originally begun by Margaret Rudy, and that after her death Henry Rudy, her administrator, had been substituted plaintiff.</p> <p>At the trial it appeared that in 1871, Margaret Rudy tapped a standpipe on land which subsequently became the property of defendants, and inserted a lead pipe by which she drew water for her own nse. In 1880 the nse of this water was interfered with, and in 1886 plaintiff at her own expense erected another standpipe. In 1899, the defendants cut off the water flowing to Margaret Rudy’s land.</p> <p>When Thomas F. Shipton was on the stand, the following offer was made:</p> <p>We offer to prove by the witness that at the time that Elmer Croyle, a witness for the plaintiff, testified that he and Mr. Rudy and Mr. Myton had a conversation which he overheard, in which they entered into an agreement that they were to put down these pipes and each one bear one third of the expense and one third of the renewals from that time on, that he was not there, and that there was no such conversation as far as he was concerned; for the purpose of contradicting Elmer Croyle.</p> <p>Mr. Brown: It is objected that the witness is one of the defendants in this case, the party plaintiff, Margaret Rudy, being dead, this witness is incompetent to testify in this issue as to anything occurring prior to her death.</p> <p>The Court: Objection sustained. Testimony excluded. Bill of exception sealed for defendant. [1]</p> <p>When Matthew Rudy, a witness for the plaintiff, was on the stand, the following offer was made:</p> <p>Mr. Waite: We propose to prove the signature of Thomas Shipton to a paper.</p> <p>Mr. Waite: “Q. Mr. Rudy, are you acquainted with the handwriting of Thomas Shipton? A. Yes, sir. Q. Have you seen him write frequently? A. Yes, sir. Q. Have y0u seen him figuring? A. Yes; I have seen him figuring. Q. I show ■you a paper with the name of Shipton written on it? (Paper handed witness.) A. That is Mr. Shipton’s handwriting; those are his figures. Q. Are those his figures on the top of the paper? A. Yes, sir. Q. Who wrote the word ‘ Myton ’ there ? A. Mr. Shipton. Q. Whose handwriting is on the face of this paper, if you know? A. Well, it looks a good little bit like my father’s handwriting. Q. Whose figuring is on the lower left-hand corner of the paper on which the writing is made ? A. Which, this (indicating) ? Q. Yes? A. That is Mr. Ship-ton’s there. Q. The lower left-hand corner? A. Yes, sir.”</p> <p>Mr. Waite: We offer this paper in evidence, for the purpose of showing the expense incident to the erection of the new pipes testified to by the plaintiff’s witnesses, in 1887, to show the division of the expense incurred, as it appears on the paper, equally between the three persons, as it appears in the figures of Thomas Shipton, one of the defendants in this case.</p> <p>Mr; Woods: It is objected:</p> <p>1. That there is nothing on the paper that shows for what purpose it was made.</p> <p>2. The witness.on the stand stated that the paper was in the handwriting of Henry Rudy and it appears to be simply a kind of account for some purpose, the. paper not showing what.</p> <p>3. There is no evidence offered that James Myton ever saw this paper or that it was ever presented to him.</p> <p>4. That the paper is simply a-declaration of Henry Rudy as to something that took place in the lifetime of James Myton.</p> <p>5. That the paper in no way could affect the interest of Benner. Myton, one of the defendants in this case, being the .devisee of James Myton.</p> <p>6. That the paper as far as James Myton is concerned or Benner R. Myton cannot he evidence in this case. They are alleging that one of these parties held the property that he owns under Mr. Frazier and Benner R. Myton holding his property under his father, whatever agreements made between them, if there were any such, were separate and distinct agreements, so far as any evidence in this case is concerned.</p> <p>7. Any declarations or any conversations of Thomas Shipton with .James Myton, he being dead, cannot affect the rights of Benner Myton, his devisee — any conversations with Henry Rudy, I mean.</p> <p>The Court: Objection overruled. Paper received in evidence. Bill of exceptions sealed for defendants. Of course the • indorsement in the handwriting of Mr. Rudy is not evidence. It should be erased. [2]</p> <p>Paper.marked “plaintiff’s Exhibit X, O. E. S., May 16,1900.”</p> <p>Read by Mr. Waite as follows:</p> <p>December 10, 1887.</p> <p>To 5 days cutting and hauling pipes. $ 6.25</p> <p>“ 20 pipes at 50 cts., 10.00</p> <p>“ 17-pipes at 30 cts., 6.00</p> <p>To 8 days’ digging and laying pipes, 10.0,0</p> <p>“ 2 days’ digging, 2.50</p> <p>“ 1 day’s digging, 1.25</p> <p>“ 68 rings, 8.50</p> <p>“ Hauling pip.es logs, 10.00</p> <p>“ 58 meals, 9-66</p> <p>3 J 58</p> <p>“ 19^</p> <p>“ 35.49 35.49</p> <p>“ 27-9() 2.75</p> <p>“ 7.59 Myton, 32.74 Shipton</p> <p>“ Myton’s balance 7.59.</p> <p>Matthew Rudy recalled on behalf of plaintiff.</p> <p>Direct examination.</p> <p>Mr. Waite: “ Q. At the top of the page oh this sheet of paper I showed you is written, ‘Myton’s balance, $7.59.’ Whose writing is that? A. Thomas Shipton’s.”</p> <p>Mr. Brown: I propose to read from the testimony of Elmer Croyle, given on the trial in the equity case, which is not yet disposed of, certain testimony that bears on the question relating to the matters that Mr. Woods offered in evidence, as tending to explain and qualify his answer in that former cross-examination.</p> <p>Mr. Woods: It is objected that Elmer Croyle is a living witness and was put upon the stand and examined. His attention was called to answers that he made on the former trial of this case between the same parties, in equity, where he testified. He emphatically denied ever having made such answers. The defendant having read bis answer on the former trial, as it related to what he denied on the stand to the jury, Elmer Croyle could not be called back now to corroborate his statements, and if he could not be called back to corroborate his statements, they could not offer any testimony that was taken on the former trial to corroborate anything that he denied at that time.</p> <p>The Court: Objection overruled. Evidence received. Bill of exceptions sealed for defendants. [4]</p> <p>The defendants’ points were as follows:</p> <p>3. That if the jury should find that James Myton, Thomas Shipton and Henry. Rudy had an agreement by -which'Henry Rudy could take any portion of the water flowing down said pipes, that it was a mere license or permission granted to Henry Rudy. Ansiuer: The point is not affirmed as stated. If you find that Henry Rudy was acting .as the agent .for his wife, then the permission must be considered as granted to his wife and not to him individually. [6]</p> <p>4. That it is essential to an easement that there should be both a dominant and servient estate, and as there was no evidence of Henry Rudy being the owner of any tenement to which the land of Benner R. Myton was made servient any agreement, if the jury should find there was any with Henry Rudy was a personal license or privilege to Henry Rudy. Answer: Refused. [7]</p> <p>7. That there is no evidence produced by the plaintiff that Benner R. Myton or his predecessors in title had any agreement with Margaret Rudy giving her a right to take any portion of the water flowing down said pipes. Answer: Refused, if you believe from the evidence that Henry Rudy was acting on behalf of and as the agent of his wife, Margaret Rudy. [8]</p> <p>11. That the interest of Mary P. Shipton in the water flowing from said spring being but an easement to take one fourth thereof through pipes laid over or through lands of the said Benner R. Myton neither she nor any of the predecessors could grant the plaintiff any right or use to be exercised therein. That as to Mary P. Shipton, the use of any part of said water . was a mere permission to use, revocable at pleasure, and having given notice of the revocation of her permission, Thomas F. Shipton committed no trespass when he went to the stand pipe and took only the share of the water to which she was entitled under her deed. Answer : Refused. [9]</p> <p>Verdict and judgment for plaintiff for 128.42. Defendant appealed.</p> <p>Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions. (6-9) Above instructions, quoting them.</p>

<p>Equity — Injunction—Preliminary injunction.</p> <p>On a bill in equity to restrain defendants from cutting off a supply of water which the plaintiff had long enjoyed, a temporary injunction was granted to preserve the status quo until final hearing. Held, that as the case was presented by the evidence this was not error, although it appeared that the controlling questions were questions of fact upon winch a difference of opinion was expressed by the witnesses.</p>

Appeal, No. 48, Oct. T., 1901, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1900, No. 20, for defendant non obstante veredicto in case of Fritchey Lumber Company v. B. F. Isenberg Milling Company. Sheriff’s interpleader. Before Bailey, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was in entering judgment for defendant non obstante veredicto. •

Appeal, No. 7, Oct. T., 1901, by defendant, from judgment of C. P. Berks Co., March T., 1900, No. 15, on verdict for plaintiff, in case of John H. Obold v. United Traction Company. Trespass to recover damages for. death of plaintiff’s horse.. Before Endlich, J. The facts appear by the opinion of the Superior Court.. Error assigned was in entering judgment on verdict.

<p>Appeal, No. 102, Oct. T., 1901, by defendant, from judgment of C. P. Berks Co., June T., 1898, No. 15, on verdict for plaintiff, in case of Fannie E. Austrian v. United Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Ermentrout, P. J.</p> <p>The circumstances of the accident are detailed in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Landlord and tenant — Covenant in lease as to power.</p> <p>A lease contained the following clause: “ It is hereby further agreed that said lessees shall have the right and privilege of using twenty-four horse power and no more, this power to include any live steam which they may use for their own business and not otherwise. It being the intent and meaning of above clause that the live steam aforesaid shall be in addition to the twenty-four horse power.” I?eld, (1) that the words “ which they may use for their own business, and not otherwise,” referred to the twenty-four horse power and not to the live steam ; (2) that the effect of the second sentence was to entitle the lessees to twenty-four horse power without regard to the amount of live steam which they used; (3) that the covenant did not require the lessor to furnish live steam sufficient to produce any given pressure or temperature, but only to furnish twenty-four horse power without taking into consideration the live steam.</p> <p>Landlord and tenant — Res adjudieata— Waiver.</p> <p>Where a landlord sues a tenant and recovers an amount less than he claimed, and thereafter the tenant continues to occupy the premises and pay rent for several months, when he again fails to pay, he cannot in an action for the rent, claim that the failure of the landlord to perform a covenant in the lease had been adjudicated in the former suit.</p>

<p>Husband and wife — Antenuptial agreement.</p> <p>The parties to an antenuptial contract are not like buyers and sellers dealing at arm’s length, and while it may not be necessary to show affirmatively that there was a full disclosure of the property and circumstances of each, yet if the provision secui’ed for the wife is unreasonably disproportionate to the means of the intended husband, it raises the presumption of designed concealment, and throws upon the representatives of the husband the burden of disproof. When under such circumstances the representatives of the husband have met this burden of proof, and established by evidence that there was no concealment of any material fact on his part, the agreement must be sustained.</p> <p>When passing upon the reasonableness of a provision for a wife in an antenuptial agreement, the court will consider its adequacy for her maintenance, the relationship of the parties, the known estates owned by each, and the circumstances under which the contract was executed.</p> <p>In a proceeding in the orphans’ court by a widow to enforce her statutory rights in her husband’s estate, notwithstanding an antenuptial agreement, the evidence showed that the paper had been prepared by an attorney at the instance of the deceased, and without consultation with his intended wife. The parties came to the attorney’s office together, no explanation was given by or to either of them, and no statement of any kind was made by either party as to the extent of their property. The woman at first refused to sign the contract, but after some urging by the man, and a statement by him that “he would do as he promised, would make a provision in his will,” she finally signed the contract, which was immediately acknowleged before a justice of the peace. At the time the contract was executed the man was worth $11,000 and the woman $200. The only provision made by the contract for the intended wife, in case she survived her husband, was that she should have out of his estate, the sum of $600 at the expiration of six months from his death. It further appeared that the parties had lived in the same neighborhood for a number of years. Held, that the widow was not bound by the antenuptial contract, and was entitled to her statutory rights in her husband’s estate.</p>

<p>Criminal law — Unlawful cutting of limber — Evidence.</p> <p>On ihe trial of an indictment for the illegal cutting of timber, under the Act of March 29, 1824, P. L. 152, where the case turns upon the position of a boundary line, it is proper to admit testimony that two surveyors, by direction of the owners of two adjoining tracts of land some years prior to the trial, distinctly marked upon the ground the line between the tracts, with regard to the location of which there had previously been litigation, and that the parties had thereafter recognized the line so marked, as the limit of their respective possessions.</p> <p>. On the trial of an indictment for the illegal cutting of timber on the land of another, where the fact is undisputed that the land belonged to a coal company, and the testimony of the prisoner to the effect that he had been misinformed as to the boundary lines by his own vendor, is directly contradicted by the latter, the question whether the prisoner cut the timber under a bona fide claim of right, is a question of fact for the jury. ■</p>

<p>Appeals, Nos. 76, 77, 78, 79, 80 and 81, Oct. T., 1901, by plaintiffs, from judgment of O. P. Blair County, Oct. T., 1899, Nos. 187, 188, 189, 190, 191 and 192, reversing judgment of justice of the peace in case of Tyrone Gas & Water Company, C. H. Dieffenbaugh, Informer, v. Walter Burley, Emory Piper, John K. Ray and W. Fisk Conrad.</p> <p>Appeals from justice of the peace.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Mr or assigned was in reversing judgment of justice of the peace.</p>

<p>Appeal, No. 26, Oct. T., 1901, by plaintiffs, from judgment of C. P. Huntingdon Co., Sept. T., 1899, No. 22, on verdict for defendants in case of the Chicago Building & Manufacturing Company v. W. T. Browning et al.</p> <p>Assumpsit for breach, of contract. Before Baxley, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court charged in part as-follows:</p> <p>[All the associates of the original subscribers were selected by the plaintiff’s agents Sigs worth and-Underhill. None of the defendants had anything to do with that part of the scheme. It was, therefore, in our opinion, the duty of the agents of the “plaintiff to refuse all subscribers who it was known to them were not in such condition financially that their subscriptions, “if made, could be collectible. It was the duty of these agents also to obtain subscriptions only by fair means, and not by misrepresentation, deceit or -falsehood, so that they could not be enforced if the subscribers would not voluntarily pay. The bona fide subscribers had the right .to expect that their associates would be such as could be compelled to bear their share of the burden of constructing this creamery.] [3]</p> <p>[To sustain this contention the defendants allege that many of the subscriptions were obtained by false and fraudulent representations, concealments and deceits, made for the purpose of inducing many of them to subscribe to this agreement, and that at least one of the subscribers was known to the agents at the time they took the subscription to be utterly insolvent and to have no property out of which a collection of his subscription could be enforced.] [4]</p> <p>[This contract is in writing and before you can set it aside for any of'the reasons alleged by the defendants, the evidence must be clear, satisfactory and indubitable, and unless the evidence is of such character, in your opinion, the written contract must stand as binding upon all the parties to it.] [5]</p> <p>Plaintiff’s points were among others as follows:</p> <p>3. No one of the defendants have shown by such clear and satisfactory evidence as the law requires that any fraudulent representations were made by the plaintiff’s agents to induce him to sign said contract as would relieve him from the performance of the contract, and the verdict of the jury must be for the plaintiff. Answer: Refused. [1]</p> <p>4. Under all the evidence in this case the verdict must be for the plaintiff. Answer: Refused. [2]</p> <p>Defendants’ point was among others as follows:</p> <p>9. That the contract is a joint and entire contract and is binding upon all the defendants or it is binding upon none, and that if the jury find from the evidence that it is not binding upon one or more of the defendants, the verdict must be for the defendants. Answer: Affirmed. [6]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned among others were (1-6) above instruction, quoting it.</p>

<p>Negligence — Street railways — Fright of horse — Probable cause — Evidence.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained in being thrown from a frightened horse, the evidence is insufficient for submission to the jury which is in effect that the plaintiff was riding a young horse bareback upon a wide avenue on which were two street car tracks; that he used a carriage bridle with blinders; that the horse had been ridden past street cars the day before without difficulty; that as plaintiff approached a street crossing on the day of the accident the horse became frightened and plunged upon the tracks; that plaintiff turned the horse off the track, or he went from the track independent of the will of the rider, and a car passed him ; that the horse then became unmanageable, ran by the car plunging and leaping around, abreast of and ahead of the car, and when about the middle of the square he suddenly wheeled around, faced the car, reared, then stumbled, aud threw the plaintiff over his head on to the roadway in front of the car which was then a short distance off, but stopped before it reached him; that the car was properly operated and under the control of the motorman all the time, that the gong was sounded at the cross street and several times after passing that street; and that the horse was nervous, excited and frightened before the ear appeared.</p>

<p>■ Negligence — Railroads—Speed of train — Grossing.</p> <p>Proof of excessive speed at a crossing when accompanied by the exhibition of facts showing proper safeguards for the customary and ordinary use of the crossing, is insufficient to take a case to the jury on the question of negligence.</p> <p>In an action against a railroad company to recover damages for the destruction of two horses and a wagon, the evidence is insufficient to submit to the jury which is in effect that plaintiff’s team in attempting to pass over a grade crossing in a populous suburb became stalled on the tracks of the railroad by reason of snow and ice on the planking; that before the horses could be unhitched, a train running at the schedule rate of sixty miles per hour reached the crossing and killed the horses; that an effort was made by the employees of the railroad to give notice to the approaching train by dispatching a man towards it with a red flag; that the crossing could be seen at a distance of some 4,400 feet looking through a tunnel, and that a block signal about seventy-five feet beyond the crossing was set to hold the train, but that the engineer was unable to stop the train after seeing the signal before the point of collision; that the crossing was protected by gates in. charge of a gateman; that no complaint was made of the gates or of the gateman, and that the wagon had ample time to make the crossing before the approach of the train had it not been stalled in the manner described.</p>

<p>Mechanics' liens — Stipulation against liens — Subcontractor.</p> <p>On a scire facias sur mechanic’s lien by a subcontractor, where it appears that a contract executed by the principal contractor, a corporation, and containing a sufficient stipulation against liens had been filed in the prothonotary’s office, the subcontractor cannot be heard to allege that the clause against liens had been written into the contract by an agent of the company without authority from it, and that the copy of the contract had be<?U filed and the work proceeded with, in ignorance on the part of the company, of the insertion of the lien clause.</p> <p>In such a ease the plaintiff is impaled on one of two horns of a dilemma. If his materials were furnished to the building on the faith, and by virtue of the contract as written and filed with the prothonotary, he has no right of lien. If the principal contractor did not proceed with the work under the written contract, then no authority was given to the principal contractor to proceed at all, and no authoi’ity to bind the building by liens could be transmitted to the subcontractor. The principal contractor, by proceeding with the work either adopted the contract, with its interpolation, or else had no contract.</p>

<p>Appeal, No. 262, Oct. T., 1900, by John H. Miller, from order of Q. S. Montgomery Co., Oct. T., 1900, No. 28, dismissing exceptions to report of jury of review vacating a portion of Schuylkill River Road, and confirming their report, In re Vacation of a Portion of Schuylkill River Road in Lower Merion County.</p> <p>Exceptions to report of jury of review.</p> <p>The only question raised by the exceptions was whether the Pencoyd Iron Works was a proper terminus for a public road.</p> <p>The court in an opinion by Swaetz, P. J., held that the Pencoyd Iron Works was a public place at which a public road might, properly terminate, and dismissed the exceptions.</p> <p>Error assigned was. in. dismissing exceptions.</p>

Appeal, No. 223, Oct. T., 1901, by defendants, from order of C. P. No. 2, Phila. Co., Dec. T., 1893, M. L. D., No. 675, discharging rule to withdraw money from court in case of Philadelphia v. Jules Wellens, Owner, etc., and Jules Wellens, Wesley Stead and Theodore F. Miller, Reputed Owner. Rule to show cause why the prothonotary should not pay back to the owner the amount of a municipal lien paid into court.

<p>Attachment execution — Assignment of debt — Practice, G. P.</p> <p>Where a judgment creditor takes from his debtor an assignment of a debt due to the latter, and subsequently without further proceedings under the assignment, issues an attachment execution against the debt assigned, and after a trial on the merits recovers a judgment against the garnishee, and it appears that the rights of other parties had not intervened, and the judgment debtor not only did not object but assisted the plaintiff in the trial, the judgment will not be reversed by reason of the irregularity of the plaintiff in proceeding on the attachment without having first canceled the assignment, or reassigned the debt to the judgment debtor.</p>

Appeal, No. 266, Oct. T., 1900, by-defendant, from judgment of C. P. Berks Co., Aug. T., 1899, No. 122, on verdict for plain-tiffin case.of Annetta H. Crouse v. Daniel H. Miller and Daniel Bittner. Trespass for the alleged wrongful removal of a fence. Before Endlich, J. At the trial it appeared that Daniel H. Miller, a supervisor, removed a fence erected by the plaintiff and alleged to be within the lines of a highway.

Appeal, No. 183, Oct. T., 1901, by defendant, from order of C. P. Lancaster Co., Trust Book No. 18, page 225, awarding peremptory mandamus in case of August Schweers v. H. E. Muhlenberg, Mayor of Lancaster City. Petition for mandamus to compel the mayor to sign a warrant in payment of a claim against the city for paying.

<p>Limited partnership association — Collection of debts by retiring partner —Construction of agreement.</p> <p>Two partners in a limited partnership association purchased the interest of the third partner, and all three signed the following agreement in writing: “December 24, 1895, to go out and collect my $338.78 debts, less discount, and get two per cent for collecting and not to share any profits from to-day or losses. And as soon as it all is collected then to get from firm his said $200, less his share of the losses, out of the $338 debts; also to get $10.00, when I require it, out of my $200.” The outgoing partner collected $238, and not paying it over immediately was arrested and convicted of larceny as bailee. He thereupon paid over the amount collected, and the remaining partners notified debtors not to pay to the outgoing partner, and in consequence he was unable to make further collections. He subsequently sued the remaining partners for the $200 which he was to receive. Held, thatas defendants.had prevented plaintiff from collecting the full amount agreed to be collected by him, they could not take advantage of his failure to collect, in order to prevent a recovery.</p>

Appeal, No. 259, Oct. T., 1901, by plaintiff, from order of C. P. Lehigh Co., Jan. T. 1898, No. 132, dismissing exceptions to auditor’s report in case of James S. Biery, Trustee of Elizabeth P. Steckel, v. Edmund F. Steckel. Exceptions to report of John Rupp, Esq., auditor. The court dismissed the exceptions. Errors assigned were in dismissing exceptions to auditor’s report distributing fund raised by sheriff’s sale.

Appeal, No. 258, Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1899, No. 620, on verdict for plaintiff in case of George W. Spicks v. The Prospect Brewing Company. Sheriff’s interpleader to determine the title to personal property in the St. Albans hotel at Second and Walnut streets, Philadelphia.

Appeal, No. 264, Oct..T., 1901, by plaintiffs, from order of C. P, No. 3, Phila. Co., Sept. T., 1901, No. 1786, discharging rule for judgment for want of a sufficient affidavit of defense in case of James Walter Rickey and William Henry Rickey, trading as The Economic Manufacturing Company v. Harry Tutelman, Nathan Tutelman, William Tutelman and Nathan Faggen, trading as Tutelman Brothers & Faggan. Assumpsit for goods sold and delivered.

<p>Landlord and tenant — Lease—Stipulation as to whole rent becoming due upon lessee's removal.</p> <p>A stipulation in a lease that the rent for the whole term shall become due and collectible by distress or otherwise at the option of the lessors upon the lessee's removal or attempt at removal from the premises, is a valid agreement..</p>

Appeal, No. 22, Jan. T., 1902, by plaintiff, from judgment of Q.'S. Luzerne Co., Sept. T., 1899, No. 771, on verdict of not guilty, in case of Commonwealth v. Plymouth Township. Indictment for maintaining a nuisance in a public road. Before Ferris, J. The indictment charged that the defendant obstructed Harvey’s Creek road by maintaining therein a post and wire fence and certain dwelling houses particularly described.

Appeal, No. 265, Oct. T., 1901, by defendant, from judgment of Q. S. Blair Co., June T., 1901, No. 23, on verdict of guilty in case of Commonwealth v. James H. McCullough. Indictment for embezzlement as tax collector. Before Bell, P. J. The facts appear by the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 83, Jan. T., 1902, by plaintiff, from order of C. P. Luzerne Co., March T., 1900, No. 62, sustaining exceptions to auditor’s report, in case of Harry E. Wagner v. Catharine Hoffman and O. E. Hoffman. Exceptions to report of J. P. Costello, Esq., referee. From the record it appeared that the case originated in a suit before W. Pitt Hunter, a justice of the peace. The justice entered judgment for plaintiff for $150, and the defendant appealed.

Appeal, No. 142, Oct. T., 1901, by plaintiff, from order of C P. Huntington Co., Sept. T., 1900, No. 41, entering nonsuit in case of Commonwealth ex rel. E. O. Heck, D. R. P. Enyeart, J. Brodbeck and F. F. Cummins v. Moses Everts Appeal from justice of the peace in an action for a penalty.

Appeal, No. 233, Oct. T., 1901, by plaintiff, from judgment of C. P. Berks Co., Sept. T., 1898, No. 98, non obstante veredicto in case of City of Reading v. John B. Heilman, Owner, etc., with notice. Scire facias sur municipal lien. At the trial it appeared that the plaintiff claimed to recover upon the lien filed for recurbing under a special ordinance.

<p>Appeal, No. 43, Jan. T., 1902, by-defendants, from judgment of C. P. Luzerne Co., Oct. T., 1900, No. 397, on -verdict for plaintiff, in case of Joseph Menovsky v. Mary Menovsky et al.</p> <p>Feigned issue to determine the ownership of a fund paid into court. Before Ferris, J.</p> <p>The jury returned a verdict for plaintiff for $450 subject to a question of law reserved. On a motion for judgment non obstante veredicto, Ferris, J., filed the following opinion:</p> <p>The trial in the case now before us was upon a feigned issue to determine the ownership of the sum of $600 paid into court by the National Slavonic Society of the United States of America.</p> <p>The material facts as disclosed by the evidence are as follows :</p> <p>1. The society above named was incorporated in Allegheny county in this state on December 21, 1894, under our act of April 29, 1874, for the purpose, inter alia, “ of helping the people of the Slavonian race .... in distress, sickness and death .... and to adopt a constitution and by-laws for the government of the said society, assemblies, schools and lectures not conflicting with the constitution and laws of the commonwealth of Pennsylvania or the provisions of this charter,” etc.</p> <p>2. Pursuant to the powers granted in its charter the society, in May, 1899, adopted a set of general so-called “ by-laws of the supreme assembly,” for the government of the society at large, which for convenience we shall refer to as the “ constitution,” and also a distinct set for the government of “ subordinate assemblies,” which will be referred to as the “by-laws.”</p> <p>3. Section 97 of article 13 of the constitution reads as follows : “ Section 97. The heirs of a deceased member who shall have conformed with the society’s and assembly’s by-laws shall receive from the National Slavonic Society $600 as death benefits.”</p> <p>4. Section 115 of article 16 of the constitution reads as follows: “Section 115. All the assemblies without exception are subject to the by-laws of the supreme assembly, the bylaws of the subordinate assemblies of the N. S. S.”</p> <p>5. Section 1 of article 1 of the by-laws reads in part as follows : “ Section 1. The objects of the assemblies shall be: ‘ (a) The support of its members in case of sickness, casualty, and to assist the families of the deceased by paying them the death benefits.’ ” The article of the “ by-laws ” which is entitled “ object of assemblies ” contains no other statement in relation to the payment of death benefits.</p> <p>6. Section 30 of article 5 of the “ by-laws ” reads as follows: “ Section 30. After the decease of a member, who has conformed to the by-laws of the N. S. S., and after presentation of the official death certificate, as well as the certificate of the assembly, his beneficiary, named in the will of said member, shall receive from the N. S. S. 1600 benefit. In case that he has left no will then his benefit shall be paid to him or to them who are his legal heirs.”</p> <p>7. Section 33 of article 5 of the “by-laws ” reads as follows: “ Section 33. Every member shall have the right to leave his death benefit to whomsoever he desires. Should he leave no will his legal heirs shall receive it. A member upon his admission to an assembly shall make two wills, one for the supreme assembly and the other for the assembly to which he has been admitted. The legal heirs are such as designated by the laws of the state where the deceased resided at the time of his death.”</p> <p>8. John Menovsky having been for fourteen years and still being a member of this society, on October 18,1899, executed in duplicate a designation wherein he directed that of his death benefit $450 should be paid to his brother Joseph Menovsky, the plaintiff in this issue, and made no disposition of the remaining $150, but stated that his funeral expenses should not exceed that sum. Both copies of this designation were delivered to the society, one to the general assembly and one to the subordinate assembly. At this time, and also at the date of his death, John Menovsky had a wife and five children living. It would seem that he with his wife and some, if not all, of his children had, prior to September, 1899, been living together in Plymouth in this county; but on September 9,1899, the family as a household was broken up, the wife and children moving into another house in the neighborhood and John Menovsky, Sr., remaining alone upon the premises they had formerly occupied. The family was never reunited; but, soon after the separation, Joseph Menovsky, the plaintiff, came to Plymouth with his family and, with John Menovsky, occupied the premises where the latter had been living. This was the state of affairs on October 18,1899, when the designation of the brother as beneficiary was executed. The two brothers afterwards went to Bridgeport, Conn., where John Menovsky died on May 9, 1900.</p> <p>These facts, being established by evidence not open to reasonable doubt as to its credibility, and being undisputed, it became the duty of the court to direct a verdict, and clearly entitled the plaintiff to recover as to $450, if under the law the designation of the plaintiff by his deceased brother as the latter’s beneficiary were valid. The court so instructed the jury and directed them to find for the plaintiff for $450, and for the defendants for $150, subject to the reserved point whether there was any evidence in the case under which the plaintiff would be entitled to recover anything.</p> <p>By virtue of his membership in the National Slavonic Society John Menovsky, Sr., acquired the right to name a beneficiary to whom death benefits should be paid. This was a contractual right and became vested in him when he joined the society fourteen years before his death: Thomeuf v. Knights of Birmingham, 12 Pa. Superior Ct. 195, 201. The reciprocal obligation of the society, as set forth in section 33, article 5 of the “by-laws,” was to pay the death benefit to “whomsoever” the member should designate as beneficiary, save only as such designation was restricted by law or by the charter, constitution and by-laws of the society. Section 1 of the act of April 6, 1893, restricts such choice to “ the families, heirs, blood relatives, affianced husband or affianced wife of or to persons dependent upon the member.” It is obvious that the designation of a brother is not prohibited by this statute.</p> <p>It is earnestly and ably argued, however, by counsel for defendants that the constitution and by-laws of the society restrict such designation to a person or persons of the immediate family of the deceased, or to such as would be his “ heirs ” as to personalty in case of intestacy.</p> <p>We are unable to accept that view. In Maneely v. Knights of Birmingham, 115 Pa. 305, the second section of the defendants’ charter was as follows: “ The purposes of this corporation shall be the maintenance of a society for the purpose of benefiting and aiding the widows and orphans of deceased members.” This object was repeated in the 1st article of the constitution. By section 1 of article 19 of the constitution it was further provided that the sum of $1,000 “ shall be paid to such person or persons as the deceased may have designated to receive the same,” etc. A member designated one who was neither widow nor orphan. Upon suit by the beneficiary, the court below refused judgment on the ground of a supposed fatal conflict between the above quoted provisions of the charter and the constitution of the defendant society.</p> <p>Mr. Justice Green, in reversing, said: “ The learned court below held that it was not within the power of the defendant to stipulate for the payment of the benefits to any person other than the widow and orphans who might be designated under article 19 of the constitution. We think this is too narrow and strained a view to take of the 2d section of the charter quoted above. While it is true that the general purpose of the corporation is there stated to be the maintenance of a society for benefiting and aiding widows and orphans of deceased members, it must be observed that this is only the statement of a general purpose. It is only the recital of an object sought to be accomplished, and which doubtless is accomplished in the great majority of eases, even though in exceptional cases the benefits may, by special contract be paid to other persons than the widow and orphans. There is no prohibitory restrictive language excluding from the powers of the corporation the right to contract specially with the member for the payment of benefits to other persons than his widow and orphans.”</p> <p>The rule in Pennsylvania (as stated by Judge McMichael in Jacobs v. Most Excellent Assembly Artisians Order of Mutual Protection, 9 Pa. Dist. Rep. 54) “ seems to be that, unless the words of the charter are clearly prohibitive or restrictive, the contract must be carried out as it was made.”</p> <p>Jn the case at bar we are left in the dark, as far as the evidence is concerned, as to what were the provisions of the constitution and by-laws of the society in question, in force when John Menovslcy, Sr., became a member and when (as held in Thomeuf v. Knights of Birmingham, supra) his contractual right to appoint a beneficiary accrued. The oase has proceeded, however, upon the theory and we think it may be fairly treated as conceded by both parties, that their rights are to be considered and adjudicated on the assumption that the constitution and by-laws in force when the deceased became a member were either the same as those-adopted in 1899 and offered in evidence, or (as argued by defendants’ counsel in commenting upon Bodnarik v. National Slavonic Society, 6 Pa. Dist. Rep. 449), that the earlier com stitution and by-laws stated the object of the society to be “ to assist the families of the deceased ” omitting the words “ by paying them the death benefits.” In either case there is no “ prohibitory or restrictive language ” excluding from the powers of the corporation the right to contract to pay death benefits to “ whomsoever ” the member should designate to receive them.</p> <p>As the applicability of the aot of 1893, is.not, here in question, we conclude that the designation of the plaintiff as the beneficiary to whom death benefits to the extent of $450 should be paid, was valid.</p> <p>The motion for judgment non obstante is, therefore, denied and judgment is directed to be entered on the verdict.</p> <p>Error assigned was in entering judgment, on the verdict.</p>

<p>Criminal law — Embezzlement—Executor—Evidence.</p> <p>On the trial of an indictment against an executor for embezzlement, there is sufficient evidence to sustain a conviction where the testimony is in effect that the estate of the decedent consisted almost entirely of cash ; that the cash had been transferred to the defendant’s account as executor, and a month thereafter was overdrawn; that frequent demands had been made upon the defendant by the representatives of a deceased legatee; that the defendant had made numerous promises of settlement, without ever saying anything of an investment of the funds; that at the trial he claimed that he had invested the legatee’s money with her consent in the stock of a corporation, the certificates of which showed an assignment to the legatee, but the testimony as to the presence of the legatee in the defendant’s office, where she is allegéd to have given her consent, is contradicted by the testimony of her family physician and her son who stated that she was physically unable to be there.</p> <p>Criminal law — Sentence—Assignments of error.</p> <p>On appeal, objection cannot be taken to the legality of a sentence in a criminal ease where there is nothing on the record to show what exceptions had been taken to the sentence, and the assignment of error does not set forth the sentence itself.</p>

Appeal, No. 11, Jan. T., 1902,’by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1899, No. 722, on verdict for plaintiff in case of M. J. Ruddy v. William Repp. Assumpsit for goods sold and delivered. Before Kelly, ,J. At the trial it appeared that the defendant was a school director of the school district of Old Forge. Plaintiff furnished the stone in controversy which was used in the construction of a school building.

<p>Appeal, No. 20, Jan. T., 1902, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1900, No. 650, discharging rule to open judgment in case of D. B. Replogle v. Jane E. Singer.</p> <p>Rule to open judgment.</p> <p>From the record it appeared that on May 14, 1900, plaintiff leased a dwelling house to the defendant. -After several months defendant removed from the premises, and plaintiff thereupon entered judgment against defendant under a warrant of attorney contained in the lease. Defendant claimed that the plaintiff before the lease was signed promised that if defendant would sign the lease he would dig a well and furnish the defendant with plenty of wholesome water. She further claimed that this had not been done. The testimony of the defendant on this subject was uncertain and contradictory. Carpenter, J., filed the following opinion:</p> <p>[The proof as to what occurred at or prior to the execution of the lease upon which judgment was entered in this case is not oí a character to warrant us in opening the judgment.] [1] The judgment, however, is for $88.00 more than the plaintiff is entitled to collect.</p> <p>[And now, May 6, 1901, it is ordered that if the plaintiff, within ten days from this date, file upon record a receipt on account of this judgment for .the sum of .$33.00, then the rule to show cause why the judgment should not be opened, to be discharged, otherwise the rule, as to $33.00, to be made absolute.] [2]</p> <p>Errors assigned were (1, 2) portions of opinion as above.</p>

Appeal, No. 36, Jan. T., 1902, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1902, for defendant non obstante veredicto in case of George W. Potter and Charles M. Potter v. The Scranton Railway Company. Trespass to recover damages for the death of one horse and the injury of another. Before Kelly, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $329.10.

Appeal, No. 87, Jan. T., 1902, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1896, No. 287, on verdict for plaintiff, in ease of Charles Lewin v. Martha Y. Pauli. Trespass to recover damages for personal injuries. Before Carpenter, J. At the trial it appeared that on July 4, 1896, Charles Lewin was injured by falling down a stairway in a house belonging to F. S. Pauli, and in which he rented a room.

Appeal, No. 42, Jan. T., 1902, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1899, No. 859, on verdict for plaintiff in case of Dan Kislinski v. Thomas Gilboy, Bridget Gilboy and Borough of Oliphant. Trespass to recover damages for injuries to land. At the trial it appeared that plaintiff and defendant owned adjoining lots in the borough of Oliphant. The defendant’s lot was below that of the plaintiff.

Appeal, No. 48, Jan. T., 1902, by defendant, from decree of C. P. Lackawanna Co., May T., 1899, No. 1, on bill in equity in case of Ellen C. Kelly v. James F. Donnelly. Bill in equity for an injunction. GtHnster, J., found tbe facts to be as follows : 1. Ellen -C. Kelly, the plaintiff, is the owner of a lot of land situated on the westerly side of Madison avenue, in the city of Scranton. The defendant, James F. Donnelly, is her neighbor.

Appeal, No. 45, Jan. T., 1902, by plaintiff, from order of C. P. Bradford Co., Dec. T., 1899, No. 17 3J, dismissing appeal from justice of the peace in case of Joseph Swain. Appeal from justice of the peace. Before Fanning, J. •. From the record it appeared that plaintiff recovered a judgment-against the defendant for $87.40 before E. A. Thompson, a justice of the peace. It appeared that the justice was elected and resided in Towanda township.

<p>Negligence — Master and servant — Relative duties of employer and employee.</p> <p>The duty of an employee is to use his senses in all that relates to his employment, to exercise attention and care in the selection of material from the mass provided for general use, and to provide with reasonable diligence for the safety of himself and his coemployees in his management of his share of the work to be done.</p> <p>The master does not insure his employees against each other nor is he bound to supervise and direct every detail of their labor. They must exercise their own sense in the selection of material out of the mass provided for them; they must use their own judgment as to the manner of handling it. No employer could bear the burden of legal responsibility for every blunder or neglect on the part of each or all of his employees. The fact that one employee, is more skillful than another, or has had greater experience, and is so deferred to by others, does not change his relation to his employer or to his fellows. Nor does a difference in rank or grade of service change the rule. When the character of the business requires it, the master is as much bound to provide his workman with a reasonably competent foreman as to provide them with tools, but in either case his liability ceases when he has made a suitable selection. He is neither bound to provide the best tools and machinery, nor the highest grade of skill in his foreman, but he is bound to provide that which is reasonably safe and sufficient in both cases, and having done so he has discharged his duty.</p> <p>Negligence — Master and servant — Risk of employment — Machinery.</p> <p>Where an accident results from an unforeseen cause not discoverable in advance of its occurrence, with no visible defect in any part of the machine, and no knowledge of any defect on the part of the men who were constantly using the machineiy, or of the employer, the accident is one of the ordinary risks of the employment .which the servant takes upon himself.</p> <p>Whenever an employee discovers anything affecting the safety of the machinery or tool or appliance, which he is obliged to use, and his judgment based on his experience gives notice of imminent dange'r in using it with skill and care so that it would be reckless to use it, the employer is not liable.</p> <p>Negligence — Master and servant — Risk of employment — Machinery— Choice of appliances.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff while working in a large locomotive works, it is error to submit the case to the jury where the evidence showed that the plaintiff worked under the foreman of the boiler shop ; that the foreman was several removes in rank of employment from the defendants as principals; that it was not shown that he was incompetent; or that the defendants had reason to believe him to be incompetent; that the accident occurred in the evening two hours after the foreman quit work; that in the afternoon, the foreman had ordered the plaintiff to move, by means of a traveling crane, certain material; that in the course of the afternoon a hook used in the work broke; that plaintiff took the broken hook to the foreman to have it fixed, but had been told to go on with his work; that it appeared that the work could have been done either by means of a book in connection with the prane, and the material, or by means of a bolt and a nut attachment, both of which were available to the plaintiff; that on previous occasions the foreman had directed the use of the hook instead of the other appliances; that in the evening after the foreman had gone plaintiff attempted to move a very heavy piece of metal by means of a hook, which he had selected from a number on hand, instead of the bolt and nut attachments; and that the hook which he had selected broke in the progress of the work, resulting in the injuries for which suit was brought.</p>

<p>Appeal, No. 90, Oct. T., 1901, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1900, No. 39, making absolute rule for judgment, for want of a sufficient affidavit of defense, in case of George D. Butler, Executor of George Downing, Deceased, v. Lottie B. Keller.</p> <p>Assumpsit on a promissory note.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court making absolute a rule for judgment, for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 125, Oct. T., 1901, by plaintiffs, from judgment of C. P., Centre Co., Jan. T., 1900, No. 109, for defendant non obstante veredicto, in case of Mike Katch et al. to use of Blubaker Coal Company v. The Benton Coal Company and G. Murray Andrews.</p> <p>Appeals from justices of the peace. Before Love, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict for plaintiff for $1,870.08, subject to questions of law reserved.</p> <p>Error assigned was in entering judgment for defendants non obstante veredicto.</p>

Appeal, No. 181, Oct. T., 19Q1, by Sarab Kennedy, from order- of 0. P, McKean Co.., Oct. T., 1900, No-. 299, discharging rule, touring ejectment in In re. Petition of Sarab Kennedy. Rule to, bring- ejectment within sixty days.

<p>Appeal, No. 55, Oct. T., 1901, by-plaintiffs, from judgment of C. P. Huntingdon Co., Dec. T., 1899, No. 22, on verdict for defendant in case of Storey, Douglass & Brode v. L. S. Henshey, Wm. W. Blake and B. Victor.</p> <p>Feigned issue to determine title to four flat cars. Before Baxley, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for defendants for $621.27. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions to defendant.</p>

Appeal, No. 219, Oct. T., 1901, by-defendant, from judgment of C. P. Blair Co., Jan. T., 1899, No. '91, on verdict for plaintiffs in case of Charles D. Baltzell and J. T. Baltzell, trading as Baltzell Brothers, v. Lucius W. Cook. Assumpsit for rent. Before Bell, P. J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,446.22. Defendant appealed.

<p>Appeal, No. 233, Oct. T., 1900, by defendants, from judgment of C. P. Berks Co., Jan. T., 1897, No. 24, on verdict for plaintiff in case of Joseph Sinsheimer, Samuel W. Sinsheimer and Meyer Sinsheimer, trading as J. Sinsheimer & Son, v. A. S. Hartman and Evan L. Shomo, trading as A. S. Hartman &. Company.</p> <p>Assumpsit for goods sold and delivered. Before Ermentrottt, P. J.</p> <p>At the trial Evan L. Shomo, one of the defendants, denied that he was a party, and this was the main question in the case.</p> <p>When A. S. Baker was on the stand he was. asked this question</p> <p>Mr. Stevens: “Q. You are manager of Dun’s Mercantile Agency in the city of Reading, are yon not ?■ A. Yes, sir. Q. Will you please state whether in March, 1895, you made an investigation for Dun’s Mercantile Agency concerning the firm, of A. S. Hartman & Company with a view of ascertaining who. composed the firm, and what the, indebtedness was ? A. I did, yes, sir, March 3.0, 1895. Q. Will you please state what information yon obtained, first, who comprised the firm? ”</p> <p>Mr. Jacobs: What is the purpose, of the question ?</p> <p>Mr. Stevens: The purpose of the question is to. show that the witness, who is manager of Dun’s Mercantile Agency in the city of Reading, whose business it is to ascertain the membership of all firms and standing of parties engaged in business in and about the city of Reading, county of B erks, made an examination of the affairs of A. S. Hartman & Company; that the firm of A. S, Hartman & Company was- composed of A. S. Hartman, doing business as A. S. Hartman & Company j that the company was nominal, having-been carried, on from the old firm in whose name the labels, trade-marks and good-will were ; that Mr. Hartman was indebted to Evan L. S.homo in the sum of $900 at that time for the purchase of the interest, of G-uldin and Poorman, retiring partners; that Mr. Shomo. did not. at that time hold himself out as a partner, but that- Mr. Hartman held himself out to the world trading as. A. S,. Hartman & Company ; this to be shown by the declarations of Mr. Shorno-</p> <p>The Court: “ Q. By the declarations of Mr. Shomo to yon ? A.. Yes, sir. Q. Yonrreport is made upon those declarations? A. Yes, sir.”</p> <p>The Court (to Mr. Stevens): Do you desire to show that the plaintiffs bad knowledge ?</p> <p>Mr. Stevens: That we cannot show.</p> <p>Mr. Jacobs: Plaintiffs make the same objection as to the former offer.</p> <p>The Court: It not being shown that plaintiffs had any knowledge of it, we will exclude the offer. Exception for defendants. [1]</p> <p>Mr. Stevens: Plaintiffs having offered in evidence letters for the purpose of proving declarations to different parties not connected with plaintiffs’firm and not communicated to the plaintiffs’ firm wherein it is alleged Mr. Shomo declared, during the period from January 15, 1895, up to 1896, that he was connected with the firm as partner, from which the jury will be asked to infer he was a partner, defendants propose to show by the witness that on or about March 30, 1895, he made a statement to Dun’s Mercantile Agency, an agency making reports of the standing and of the membership of firms engaged in business throughout the United States, wherein he stated that he was a creditor of Mr. Hartman, whom he had loaned $900 for the purpose of buying out the interest of Guldin and Poor-man ; that in addition he had individually indorsed Mr. Hartman; that Mr. Hartman intended running the business for himself under the firm name of A. S. Hartman & Company, the old style of the business, the company being nominal, and giving all the information in his knowledge in reference to the affairs of A. S. Hartman & Company; to be followed by evidence that Dun’s Mercantile Agency made reports concerning the membership of the firm of A. S. Hartman & Company and the indebtedness of Mr. Hartman to Mr. Shomo.</p> <p>Mr. Jacobs: Objected to, first, the book or report must be in court, proven; second, it must be followed by proof that it came to the knowledge of the plaintiffs in this case and was in their possession when they sold these goods. Objection excluded. Exception. [2]</p> <p>Verdict and judgment for plaintiff for $1,121.49. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No, 229, Oct. T., 19.Q1, by plaintiffs-,, f-r,om judgment of C. P. Blair Go.,, Oct., T., 1899, No. 1.53,. for defendants,, non obstante veredicto in cas.e of Charles, E>. Baltzell and J.. T. Baltzell,. Jr., trading as Baltzell. Brothers,, v.. Lucius W. Cook.</p>

<p>Equity — Equity practice — Preliminary injunction — Mandatory injunction.</p> <p>On a bill in equity to prevent encroachment on a street where it appears that the defendants have not sought to obtain an advantage by secretly or suddenly changing their status as it was at the time the bill was filed, the court cannot in granting a preliminary injunction make a mandatory order directing the defendants to remove an addition to their house which had been practically completed at the time, and which took the place of a porch previously standing, and encroached less upon the highway than did the porch itself.</p>

Appeal, No. 192, Oct. T., 1901, by defendant, from order of C. P. Berks Co., May T., 1901, No. 33, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Delahunty Dyeing Machine Company v. Pennsylvania Knitting Mills of Reading. Assumpsit for price of two dye machines. The material averments of the statement and affidavit of defense are quoted in the opinion of the Superior Court.

Appeal, No. 218, Oct. T., 1901, by defendant, from decree of C. P. Berks Co., Equity Docket, 1900, No. 766, on bill in equity, in case of Thomas P. Merritt v. Hiram K. Getz, and the Reading Shale Brick Company. Bill in equity and cross-bill to reform a deed.

Appeal, No. 23, Oct. T., 1901, by defendant, from judgment of O. P. Del. Co., Sept. T., 1897, No. 30, on verdict for plaintiff in case of Valentine Zinnell v. Emma C. Bergdoll, Administratrix of the Estate of Louis Berg-doll. At the trial the plaintiff offered testimony which tended to show that on March 1, 1896, he was employed by Louis Berg-doll, Jr., for the term of one year to work on a farm for the wages of $166.66 per month.

Appeal, No. 24, Oct. T., 1901, by plaintiff, from order of C. P. Delaware Co., June T., 1896, No. 2, refusing to take off nonsuit in case of Chester City Presbyterian Church v. Philip Conlin. Scire facias sur mechanic’s lien. Before Johnson, J. The facts are stated in the opinion of the Superior -Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 174, Jan. T., 1900, by defendant, from order of C. P. Delaware Co., June T., 1899, No. 192, awarding mandamus in case of James Watts Mercur v. Media Electric Light, Heat and Power Company. Petition for mandamus. The facts are stated in the opinion of the Superior Court. Error assigned was the order of the court.

Appeal, No. 84, Oct. T., 1901, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1898, No. 255, on verdict for plaintiff in case of Joshua E. Wills v. Thomas Hardcastle. Trespass for libel.

Appeal, No. 87, Oct; T., 1901, by defendant, from judgment of C. P. Chester Co., Oct. T., 1900, No. 30, on verdiet for plaintiff, in case of Thomas F. Byrne v. Montgomery and Chester Electric Railway Company. Trespass for loss of horse. Before Butler, J. The facts appear by the opinion of the Superior Court.- Verdict and judgment for plaintiff for $125. Defendant appealed. Error assigned was in submitting the case to the jury.

Appeal, No. 98, Oct. T., 1901, by Milton E. Conrad, Administrator, from decree of O. C. Chester County, dismissing exceptions to auditor’s report in the estate of Elizabeth G. Hughes, Deceased. Exceptions to report of John B. Kinnard, Esq., auditor. The opinion of the Superior Court states the case. Errors assigned were in dismissing exceptions to auditor’s report.

Appeal, No. 138, Oct. T., 1901, by plaintiff, from judgment of O. P. Chester County, April T., 1900, No. 2, on verdict for defendant in case of Davis Knauer v. D. B. McKoon. Feigned issue to determine title to certain rails. Before Butler, J. The facts appear by the opinion of the Superior Court.

Appeal, No. 129, Oct. T., 1901, by-Thomas W. Patton, Administrator, from decree of O. 0. Bucks County, awarding writ of attachment in the Estate of Cornelius J. Patton, Deceased. Petition for leave to file exceptions nunc pro tunc to auditor’s report. Petition for an attachment against administrator.

<p>Appeal, No. 245, Oct T., 1901, by defendants, from decree of C. P. Chester Co., Equity Docket No. 374, on bill in equity in case of Elwood Webster v. Hopewell Borough, James Redmond, Watson Lawyer, Thompson Hudson, Harvey Groff and William W. Salmon, Council of said Borough, and Edward Philips, Treasurer of said Borough.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court entered the following decree:</p> <p>That the borough of Hopewell, James Redmond, Watson Lawyer, Thompson Hudson, Harvey Groff and William W. Salmon, members of the town council of the borough of Hopewell, and Edward Philips, treasurer of said borough, be perpetually restrained from issuing any order or creating any obligation binding the said borough of Hopewell, or appropriating any money thereof, for the payment of any costs incurred in the proceedings in the court of quarter sessions of Chester county relative to the application to annul the charter of said borough.</p> <p>Error1 assigned was the decree of the court, quoting it.</p>

Appeal, No. 56, Oct. T., 1900, by-plaintiffs, from judgment of O. P. Schuylkill Co., May T\, 1892, No. 284, for defendant non obstante veredicto in case of Joseph Fink and John F. Stoudt v. R. R. Miller and Griffith DeLong. Trespass to recover damages for cutting timber. Before Savidge, J. The opinion of the Superior Court states the case. Verdict for plaintiff for $900. The court entered judgment for defendant non obstante veredicto.

Appeal, No. 136, Oct. T., 1901, by plaintiff, from judgment of C. P. Northampton Co., June T., 1899, No. 31, on verdict for defendant in case of F. C. Austin Manufacturing Company v. H. O. Duerr. Assumpsit upon an alleged contract of suretyship. Before Scott, J. The opinion of the Superior Court states the case. The court gave binding instructions for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

Appeal, No. 201, Oct. T., 1901, by plaintiff, front order of C. P. Northampton Co., April T., 1900, No. 1, refusing to take off nonsuit in case of D. H. Anders v. Central Railroad Company of New Jersey and the Lehigh Coal & Navigation Company. Ejectment for a lot of ground in the borough of South Bethlehem. Before Schuyler, P. J. At the trial it appeared that plaintiff’s title depended upon an alleged deed to Gottlieb Wittman.

Appeal, No. 250, Oct. T., 1901, by plaintiff, from order of O. P. Montgomery Co., June T., 1897, No. 195, setting aside writ of inquiry in case of John B. Stetson v. Isaac R. Rosenberger, Trustee. Motion for writ of inquiry. The opinion of the Superior Court states the ease. Error assigned was order of the court setting aside writ of inquiry.

<p>Appeal, No. 56, Oct. T., 1900, by defendant, from judgment of C. P. Schuylkill Co., March T., 1898, No. 117, on verdict for plaintiff, in case of Ellen Dewald and Benjamin A. Dewald in right of his Wife, Ellen Dewald, v. William Berkheiser and O. J. Aregood, Executors of John Berkheiser, Deceased. Before</p> <p>Assumpsit to recover moneys alleged to have been spent for the maintenance of Sara Berkheiser, widow of John Berkheiser. Before Marr, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court refused binding instructions for defendants.</p> <p>• Verdict and judgment for plaintiff for $1,365.49. Defendants appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for the defendant.</p>

Appeal, No. 68, Oct. T., 1901, by defendants, from order of C. P. No. 1, Phila. Co., June T., 1898, No. 194 J mating absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Welde & Thomas Brewing Company v. William C. Kean, Jr., and John F. Betz-, Appellants, who were sued with ' William Hay, as Defendants. Scire facias sur judgment.

Appeal, No. 246, Oct. T., 1901, by defendants, from order of C. P. No. 1, Phila. Co., making absolute rule for judgment for want of a sufficient affidavit of defense in case of Harry C. Clark v. Stephens S. Price and The Real Estate Trust Company of Philadelphia, Trustee under will of Margaret S. Price, Deceased. Assumpsit for money had and received.

Appeal, No. 251, Oct. T., 1901, by plaintiff, from decree of O. P. June T., 1901, No. 45, granting a divorce in case of Josephine C. English v. Abraham L. English. Libel for divorce. The facts are fully stated in the opinion of the Superior Court. Assignments of error considered by the court were as follows : (1Ó.) The record shows that the court below never considered the master’s report or took any action thereon.

Appeal, No. 23, Jan. T., 1902, by defendant, from order of C. P. Luzerne Co., March T., 1901, No. 18, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of G. F. Wesley v. William H. Sharpe'. Scire facias sur recognizance. Before Halsey, J. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 25, Jan. T., 1902, by-defendant, from judgment of C. P. Luzerne Co., March T., 1899, No. 206, on verdict for plaintiff in case of W. L. Raeder v. C. E. Butler. Assumpsit to recover commissions for the sale of real estate. The opinion of the Superior Court states the case. The court charged as follows : The action is one of assumpsit, and is brought by W. L. Raeder against C. E. Butler.

Appeal, No. 19, Jan. T., 1902, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1900, No. 912, making absolute rule for judgment for want of a sufficient affidavit of defense in case of G. F. Reynolds v. S. N. Callender. Assumpsit to recover tbe contract price of certain shares of stock of a corporation. The facts sufficiently appear by the opinion of the Superior Court.

Appeal, No. 85, Jan. T., 1902, by Factoryville and Abington Turnpike and Plank Road, from order of Q. S. Lackawanna Co., dismissing exceptions to report of jury of view condemning a turnpike road, In re Condemnation of the Factoryville and Abington Turnpike and Plank Road. Exceptions to report of jury of view condemning a turnpike road.

Appeal, No. 18, Jan. T., 1902, by defendant, from order of C. P. Lackawanna County, Sept. T., 1900, No. 913, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mark K. Edgar v. S. N. Callender.

Appeal, No. 54, Jan. T., 1902, by-defendant, from judgment of C. P. Bradford Co., Sept. T., 1899, No. 217, on verdict for plaintiff in case of Athens Car and Coach Company, now to use of C. W. Tidd, Assignee, v. J. L. Elsbree. Assumpsit upon stock subscription.

Appeal, No. 56, Jan. T., 1902, by Silas Hartley, from decree of O. C. Lackawanna Co., order payment of money on estate of Ezekiel Gumaer, deceased. Held: while it need not be declared in express terms, that a charge is intended, that intent must be disclosed by the will itself, and not inferred from the circumstances: Duvall’s Estate, 146 Pa. 176. The intention to create a charge upon land must appear by direct expression or plain implication in the will: Sharp’s Est., Pa.

<p>Habeas corpus — Appeal—Final order.</p> <p>An order in habeas corpus proceedings discharging the relator from the custody of a deputy sheriff is a final order or decree which will entitle such officer to remove the proceedings to the Superior Court for review upon certiorari.</p> <p>Military law — Marine corps — Naval service.</p> <p>It seems that the marine corps is a part of the naval service of the United States.</p> <p>Quaere, whether the enlistment of a minor over eighteen years of age in the marine corps without the consent of his parents or guardian, is invalid.</p> <p>Habeas corpus — Enlistment in army and navy —- Jurisdiction of stale courts.</p> <p>A state court has no jurisdiction upon habeas corpus to inquire into the validity of enlistments into the marine corps of the United States, and to discharge enlisted men from said service, when in the judgment of the court their enlistment had not been made in conformity with the laws of the United States. Tarble’s Case, 13 Wall. 397, followed.</p>

<p>Appeal, No. 18, Feb. T., 1902, by-plaintiff, from judgment of C. P. Sullivan Co., Sept. T., 1900, No. 23, on verdict for defendant in ease of Howard Lyon, trading as the Lyon Lumber Company, v. L. T. Reichard.</p> <p>Issue to determine the validity of a judgment entered upon a judgment note. Before Dunham, P. J.</p> <p>From the record it appeared that the defendant gave to plaintiff a judgment note for $200, and that on July 12, 1900, plaintiff entered judgment on the note. The plaintiff contended that the note was given to secure advances made during the performance of a contract for the hauling of lumber. The defendant contended that the note was special and given as collateral for a particular advancement of $200, which was made at the time of the execution of the note, and that this sum had been repaid.</p> <p>The court charged in part as follows :</p> <p>[So I say to you, gentlemen, if this plaintiff, when this $200 note was taken, took it upon the positive agreement and understanding that it was to be collateral for the $200 bank note which the plaintiff advanced to the defendant, and that plaintiff was to receive and retain out of the money which Mr. Reichard, the defendant, earned during the next four months, at the rate of #50.00 a month, then he would have no right to charge to Mr. Reichard’s account other advancements and still keep this note and apply those other advancements upon his other accounts and retain this note without applying the money to its payment that he had agreed to apply under his contract with Reichard.] [3]</p> <p>[Now, then, all that brings you back to the consideration of what was the contract between these parties at the time this note was given. Was it as testified to by the plaintiff,'or was it as testified to by the defendant ? In ascertaining that question you will consider the recollection each has in reference to it. You will consider their standing. You will consider the reputation, if you know it, of these gentlemen, their manner of testifying, the knowledge they have as to what they testify to, their truthfulness as you believe it to be, and then bring in your verdict as you find from the weight of the evidence that the truth is.] [4]</p> <p>Then the defendant, alleging payment, which is also an affirmative proposition, it is incumbent upon him to establish the payments to your satisfaction by the weight of the evidence. Does the evidence in this case satisfy you of that fact? Does the fact that they went on doing business for four months longer, the fact that this plaintiff made other advancements to the defendant as testified to by him, the fact of the testimony of Mr. Peterman, and all the other facts testified to in the case, satisfy you that that #200 note was taken, under the contract that they entered into there between them at the time it was given, as collateral for the advancement of #200, as claimed and as testified to by the defendant ? If you are satisfied that the evidence establishes that fact, does it also satisfy you that since that time, under the contract that was entered into there, that this note is paid ?] [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>.Errors assigned were (3-5) above instructions, quoting them; in submitting to the jury the question of the consideration for the note in suit as to such matters as were affirmed by the defendant and denied by the plaintiff, the defendant being uncorroborated by any other evidence in the case.</p>

<p>Appeal, No. 9, Feb. T., 1901, by James P. Miller, from decree of O. C. Lycoming Co., Sept. T., 1900, No. 20, dismissing exceptions to auditor’s report in Estate of Abner Fague, Deceased.</p> <p>Exceptions to report of William H. Spencer, Esq., auditor.</p> <p>James P. Miller claimed before the auditor the sum of $194.42 represented by a check which had been delivered to the administrators by the Union Tanning Company. The check had been given in payment of certain oak bark which Miller claimed had been sold to him individually, and not to ■the Union Tanning Company. The auditor found the facts as to this claim to be as follows:</p> <p>“ Prior to the death of Abner'Fague, the decedent, on J une 24, 1900, was the owner of about forty tons of rock oak bark. For a number of years previous, he had been indebted to the exceptant, James P. Miller, which indebtedness was represented by a note or notes, discounted at the Hughesville National Bank, Hughesville, Pa. From the evidence it appears that the proceeds of the first note representing the indebtedness were passed to the credit of James P. Miller, the exceptant, so that the decedent’s liability was primarily to said bank and only secondarily to said exceptant. From time to time this note was renewed and reduced until May 16, 1900, when the last renewal note for $200 was given. On that day, the decedent was at the office of the Muncy Valley tannery, one of the branches of the Union Tanning Company, whither he had gone for the double purpose of securing Miller’s indorsement upon the said renewal note, and of selling his oak bark. The exceptant was then and for years prior thereto had been superintendent of said Muncy Valley tannery. As such it was his business, among other things, to purchase oak bark for the use of the tannery. To him the decedent offered to sell his bark consisting of about forty tons, at $5.50 per ton. The offer was accepted and a contract for the sale of the bark was consummated, delivery to be made to the Muncy Valley Tannery. In June, 1900, and under the direction of Mr. Horton, the president of the said Union Tanning Company, the decedent shipped the bark to the Middlebury tannery of said company in Tioga county. Upon the books of said company the bark was placed to the credit of the decedent, and in July, 1900, a statement of his account, with check for $194.42, the amount thereof, was mailed to him. Before it reached him, he was dead, and the check and statement were returned by his administrators to said company, who returned to them a new cheek to their order for the same amount. This is the check which was included by them in the inventory and final account, and which forms now the ground of exception.”</p> <p>The auditor disallowed the claim, and exceptions to his report by Miller were dismissed by the court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 13, Feb. T., 1902, by plaintiff, from judgment of C. P. Lycoming Co., March T., 1898, No. 434, on verdict for defendant in case of Huber Manufacturing Company v. Daniel Smithgall.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned among others was (7) in refusing binding instructions for plaintiff.</p>

<p>Appeal, No. 55, Jan. T., 1902, by defendant-, from judgment of C. P. Columbia Co., Sept. T., 1898, No. 291, on verdict for plaintiff in case of M. I. Hennessy v. Fannie Anstock.</p> <p>Trespass for injuries to land. Before Little, P. J.</p> <p>Tbe plaintiff’s statement after describing by metes and bounds plaintiff’s lot, declared as follows: “ That the said defendant did on or about September 7, 1898, unlawfully and without right, place, deposit, erect and maintain a certain obstruction, barrier and partition composed of wood and iron, and from said day to the present time has constantly continued, unlawfully and without right, maintained and erected said obstruction and barrier upon and over the land herein above described, and by reason thereof the said Clara Hennessy, during her lifetime, and the plaintiff, as her representative, was and still is injured and damaged to the amount of $500.”</p> <p>The court charged in part as follows :</p> <p>[Now, gentlemen, we will submit as a question of fact for your determination, because you have been down there upon the property and have seen the property yourself, and have heard the testimony, and if you find it is true that the defendant, on or about September 7, 1898, unlawfully and without right, placed, deposited, erected and maintained a certain obstruction or barrier, a partition composed of wood and iron, and from said day to the present has constantly maintained said barrier on and over the land of the plaintiff, and by reason whereof Clara Hennessy was injured and damaged to any amount, we will let that matter as a disputed question of fact for you to determine. We submit that as a question of fact for your determination whether in and upon the close of the plaintiff described in this declaration, Mrs. Fannie Anstock set up an obstruction, and trespassed upon or over the plaintiff’s property. If she did, then the plaintiff will be entitled to such damages as is proved that the plaintiff sustained. . . .</p> <p>Gentlemen, we say to you, although we judge possibly it may be foreign, the way we view the pleading in this case, to say what we are about to say, but we will say the following:</p> <p>Mrs. Hennessy and the owners of her property, as well as Mrs. Anstock, have rights in front of their respective properties. The public has a right to pass over the street, but they have rights in front of their respective properties.</p> <p>No enterprising merchant or showman, in order to exhibit his wares or his show, has any right to set up in front of either of their properties, without permission, a hand board or anything of the kind; and if satisfactory proof is had, damages can be recovered by the owner in front of whose property the thing is set up. If the owner can establish the necessary facts in such instance, an action would lie. . . .</p> <p>Take this case. If you find that the plaintiff has sustained any damage by reason of this obstruction, erected as described in the plaintiff’s declaration, your verdict will be for the plaintiff, in such damages as you find under all the evidence the plaintiff may have sustained.</p> <p>If you find that there was no wanton injury done, only nominal damages to fix a right will be sufficient to be awarded.]</p> <p>Verdict and judgment for plaintiff for $25.00. Plaintiff appealed.</p> <p>Error assigned was the portion of the charge as above, quoting it.</p>

<p>Negligence — Boroughs—Defective sidewalk.</p> <p>When borough authorities direct a material change in a highway they are bound to maintain such a supervision of the work as will protect the public from any danger likely to arise from it.</p> <p>In an action by a woman against a borough to recover damages for personal injuries sustained by a fall at nighttime at a point where a sidewalk had been raised abruptly between seven and eight inches, the case is for the jury where it appears that the condition of the sidewalk was brought about by a change of grade made by an abutting owner in obedience to a borough ordinance, that the burgess had actual knowledge both of the commencement and the completion of the work, and that the president of the town council observed it during its progress.</p> <p>Negligence — Boroughs—Knoioledge of officials.</p> <p>Whatever the distinction between official and unofficial acts, there is no ground, in either law or fact, for a distinction between the personal knowledge of a borough officer charged with the duties of supervision and his official knowledge. There is no line dividing the physical senses or the intellectual perceptions of the individual from those of the officer. When an officer is bound to act upon knowledge, and the law fixes no channel through which it must reach him in order to impose the duty, the knowledge gained by the individual must be imputed to the officer.</p>

Appeal, No. 28, Jan. T., 1902, by defendant, from judgment of C. P. Luzerne Co., J une T., 1897, No. 271, on verdict for plaintiff in case of Mary Wright and Charles Wright, her Husband, v. Lehman Township. Trespass to recover damages for personal injuries. Before Lynch, P. J. The opinion of the Superior Court states the case. Verdict and judgment for Mary Wright for $1,000, and for Charles Wright for $118. Defendant appealed.