Volume 190 — Pennsylvania State Reports

Appeal, No. 218, Jan. T., 1898, by-defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1897, No. 759, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit upon a promissory note. Rule for judgment for want of a sufficient affidavit of defense.

<p>Evidence — Receipts—Estoppel.</p> <p>Receipts are open to explanation between the original parties and others not acting to their injury upon the faith of them, but, to the extent of such action and any consequent injury, the persons who give the receipts will be conclusively estopped from disputing the validity of their own writings made for the purpose of being shown to induce action.</p> <p>Where contractors guarantee a material man for materials furnished to a subcontractor, and require the subcontractor to submit to them receipts from the material man before they will make payments to the subcontractor on their own contract with him, the receipts are conclusive in favor of the contractors; and in an action on the guaranty the contractors may show that, relying upon the receipts, they made payments to the subcontractors, which otherwise they would not have made.</p>

Appeal, No. 398, Jan. T., 1898, by defendant, from judgmentof 0. &. T. Susquehanna Co., April T., 1898, No. 1, on verdict of guilty of murder of the first degree. Indictment for murder. At the trial before Searle, P. J., a motion to quash the array of grand jurors was made for the following reasons : 1. The grand jurors that found the indictment were not a lawful body, nor were they selected and drawn from the jury wheel according to law. 2.

Appeal, No. 399, Jan. T., 1899, by defendant, from judgment of O. & T. Susquehanna Co., April T., 1898, No. 1, on guilty of murder of the first degree. Indictment for murder. Before Seable, P. J. The facts appear by the report of Commonwealth v. Eagan, ante, p. 10. Error assigned among others was in admitting the confession made to the district attorney.

<p>Appeal, No. 26, Oct. T., 1898, by defendant, from order of C. P. No. 1, Allegheny Co., Sept. T., 1892, No. Ill, dismissing exceptions to referee’s report.</p> <p>Bill in equity for an account between partners.</p> <p>Exceptions to report of referee.</p> <p>The referee, Thomas Patterson, Esq., reported the facts to be as follows:</p> <p>1. Sebastian Delp and A. Edlis entered into partnership in the business of barbers’ supplies on July 16, 1888, business to commence September 1, 1888, and to continue for the term of five years from that date.</p> <p>2. Under the provisions of this agreement Delp was to contribute book accounts and sundries to an undetermined amount, cash amounting to $2,000, and within eighteen months after entering on business to add to the contributions thus made enough further capital to raise his subscription to $15,000. Delp was not to give any personal attention to the business, which Edlis was to direct as business manager, as his contribution to the business against Delp’s capital. Edlis was further' to have the right to draw $20.00 per week out of the profits, but Delp was not to draw anything until the end of five years. At the expiration of this period the profits were to be divided. Edlis, however, was to have no interest in the capital which had been contributed by Delp, but the latter was to receive it back on final settlement.</p> <p>3. Delp’s contribution of $2,000 was made at about the time agreed on, and he also turned in the stocks and accounts as provided by the agreement, but at the end of eighteen months lie had not contributed the full amount of $15,000. All his contributions to that date, after deducting profits and amounts withdrawn, amounted to the sum of $7,563.18.</p> <p>4. The total contributions of Delp during the entire continuation of the partnership amounted to the sum of $10,834.29.</p> <p>5. During the period of the partnership Delp withdrew, largely for merchandise purchased by him from the firm, the sum of $1,840.98.</p> <p>6. During the same period Edlis withdrew the sum of $4,616.28, and was credited with amounts turned in to the sum of $248.59, leaving his net withdrawals $4,367.69.</p> <p>7. Of these withdrawals the sum of $3,460 was withdrawals of $20.00 per week on account of profits as stipulated for in the agreement.</p> <p>8. In addition to the $20.00 per week Delp had arranged with Edlis that the latter might draw some $900 additional in the same manner; the amounts thus drawn aggregated $907.67, making, with the weekly withdrawals, the aggregate above noticed.</p> <p>9. On several occasions during the continuance of the partnership Edlis requested Delp to pay up the arrears of his subscription to the capital, representing that the business was hampered for the lack of money.</p> <p>10. To these requests for money on the part of Edlis, Delp excused himself on the ground, that he had not means at hand to comply with the request, but that he would' attend to it as soon as possible.</p> <p>11. The books show that down until the fire the business was conducted at a profit. On February 24, 1889, the profits then appearing were $294.32, and on August 1,1891, $5,331.99.</p> <p>12. The business was restricted by reason of insufficient money at the disposal of the firm; a larger business would have been done and presumably greater profits earned if the capital had been fully paid up.</p> <p>13. On January 12, 1892, the place where the business was conducted was destroyed by fire and the contents of the building almost entirely destroyed.</p> <p>14. Immediately after the. fire the remaining stock was appraised by the insurance company at about $6,000.</p> <p>15. The remaining stock, the books of account, and the insurance policies were delivered by Edlis to Delp, shortly after the fire.</p> <p>16. Delp died on April 19,1892, and letters of administration on his estate were taken out by Anna E. Delp, the present plaintiff.</p> <p>17. After the appointment of the receiver, the insurance policies, books, accounts and assets generally in the hands of Delp were transferred to the receiver.</p> <p>18. Edlis collected a number of accounts due the firm. These he used in part in paying debts of the concern and the balance he turned over to the receiver.</p> <p>19. The receiver has filed no final account, but in the proceedings before the referee has filed a statement showing a balance now in its hands of $5,871.29, subject to the charges for commissions and services, and there has also been filed with the referee an agreement of counsel that the referee’s findings upon the account in this case shall be paid, as far as applicable out of these funds.</p> <p>20. The balance shown by the receiver’s statement, viz: $5,871.29, is the amount left of the stock, book accounts, insurance, and assets generally, after paying all debts of the concern.</p> <p>The referee’s conclusions of law were as follows :</p> <p>1. The first question raised by the record, and the one most earnestly pressed by counsel for defendant, is the measure of damages which should be awarded to Edlis by reason of Delp having failed to contribute the capital agreed upon, viz: $15,000, within the term of eighteen months after the date of the articles of association. It is strongly urged by counsel for defendant that this is a case in which the profits which might or could have been earned by employing the additional capital should be the measure of the loss. The general rule is well settled that profits which might have been earned in certain contingencies cannot be allowed as damages for the reason that they are too speculative and remote. It is also well settled that' an exception to this rule exists where the profits are directly within the contemplation of the parties at the time the contract is made, and it may be fairly presumed that they would have been earned but for the breach. The case here, it seems to the referee, is within the rule and not within the exception. The profits are not immediately and directly' a matter of deal so as to make the failure to contribute to the capital responsible for the loss of any definite profits. The partners undoubtedly contemplated profits,' but they do so in a general way, and not as immediately and directly flowing from any particular operation. If the rule were, that one failing in his contractual duties to the partnership might be charged with profits, it would be difficult to see why a failure to'render services to the firm should not be measured in the same way. But it has been held that the utmost penalty for failing to give the services specifically agreed on, is to be charged in an accounting with the value of'those services: Marsh’s Appeal, 69 Pa. 35; Clarke v. R. R. Co., 136 Pa. 415: If then the failure of one of the firm to perform the duties which he has directly undertaken, is compensated for by charging him the amount which it would have cost to hire some one else to do the work, it seems clear that the failure to pay the full amount of capital is compensated for by charging against the party-the market value of the money unpaid, viz: its legal interest. This seems to have been the rule adopted in this state. In Brown’s Appeal, 89 Pa. 139, interest was refused upon an overdraft of one of the partners. In Gyger’s Appeal, 62 Pa. 79, interest was allowed on a partnership account, although it was stated, as a general rule, that such interest would not be allowed until after balance struck. It was there stated “ that there is no general rule established, but that the allowance or refusal of interest depends upon the circumstances of each particúlar case.” These cases, and the others which are referred to in the opinion’ therein, seem to establish the-principle that the highest compensation which can be allowed a firm for an account due it by one of the partners, is interest on the balance. See also Story on Partnership, sec. 331. The referee accordingly concludes that the profits which might have been earned had Delp contributed the full capital as agreed upon cannot be charged against him as damages for his breach of the articles of partnership, for the reason that such damages are speculative, contingent and remote.</p> <p>2. The defendant’s counsel have urged, as alternative to the question considered above, that if Delp’s interest in the firm cannot be charged with the loss of profits which would have been earned on a full contribution of the capital, Edlis, at least, should be allowed to recover a fair compensation for his services, on the theory that the consideration having failed, he is entitled to a quantum meruit. Whatever the rule may be elsewhere, it is settled in this state that compensation to a partner must always rise from a special agreement, and this, no matter how hard the facts they make it: Gyger’s Appeal, supra. “ The reason is that the partner is but attending to his own affairs. The .rule is inexorable, as much so as that between parent and child. Were it otherwise, we might have a contest between the partners upon the settlement of every partnership account as to the value of their respective services: ” Lindsey v. Stranahan, 129 Pa. 635. The referee accordingly concludes that Edlis has no claim, in this accounting, for the value of services rendered to the firm over or beyond that fixed by the articles of partnership.</p> <p>3. It is further contended by defendant that Delp’s estate should be charged with the value of goods, to the difference shown between the appraisement made by the underwriters of the salvage from the fire, and the proceeds of these goods shown by the accounts of the receiver.</p> <p>The appraisement was $6,000, and the proceeds of the goods sold by the receiver was $934.37. The difference, or $5,065.63 should be charged to the Delp estate, as property received and unaccounted for. The mere difference in the appraisement of the goods and the amount they realized at receiver’s sale is not sufficient to create a presumption that the goods were purloined or destroyed by the parties having them in charge. The only evidence on the subject tends to show a delivery by the administratrix of what she received from her husband. But in the absence of any evidence it would be an unfair and harsh rule which would charge the depository of goods with their depreciation in value between the time of an appraisement and a sale considerably later. The referee accordingly concludes, that there is no ground for charging the Delp estate with the difference in amount between the appraisement of the salvage, made by the insurance adjusters, and the amount for which the goods subsequently sold at receiver’s sale.</p> <p>4. It is contended by the plaintiff’s counsel that Edlis should be charged with the amounts withdrawn by him as found above. This amount consists of the $20.00 a week which he drew on account of profits, and the $900 which he sets up in his answer he drew in addition to the $20.00 per week, with the consent of Delp. It seems to the referee that this contention on the part of the plaintiff arises from a misconception of the true meaning of the articles of agreement. Delp represented the capital in the enterprise. Edlis was without means. The articles provided: “ The said A. Edlis is to participate in equal shares, one-half in the profits of said barber supply business, in the end of five years. The said A. Edlis to have the right to draw out of said business twenty dollars weekly out of the profits, to the amounts of one thousand and forty dollars yearly. Said Delp shall not draw anything until the end of five years.” Edlis was to draw his allowance “ out of the profits; ” but profits ascertained at what time ? Clearly, it would seem, as the business went along and showed a profit or loss. This would appear to be the purpose in putting the annual amount of $1,040. This arrangement was evidently intended to give Edlis an allowance for his daily living during the continuance of the business. At the end of the term, in the division of the profits, he was to be charged with this amount in order to equalize the accounts between the partners. It would hardly be reasonable to assume that the parties intended that, even though the business showed a profit each year, yet if at the end of the period a loss was encountered which wiped out the profits, that this contingency should make Edlis a debtor to Delp in the amount of something over $5,000, which he had used in support of himself and family during this time. Nothing but a clear expression of such an intent would justify such an inference. The instrument is inartificially drawn, but, construed in the light of the circumstances of the parties, it seems to the referee that Edlis was justified in drawing his allowance out of profits actually earned at the time. The evidence shows, and the referee has already found, that the business was conducted at a profit down until the termination of active operations by the fire. As to the additional amount of some $900 which Edlis has drawn in addition to his weekly allowance, his answer sets up the following explanation of this matter: “That defendant drew from the receipts of said business, during the continuance of said partnership, about $900 more than the amount which he was entitled to draw, as set forth in said written articles of co-partnership, but that by oral agreement made between said Sebastian Delp and respondent, said Sebastian Delp agreed with the respondent that he, respondent, should draw the sum of $900 in excess of the amount stipulated in said written agreement, and respondent further says that there is no indebtedness from him to said partnership.” This would seem to be responsive to the bill, in explaining fully the partnership arrangement upon which the bill is based: Eaton’s Appeal, 66 Pa. 488; Cresson’s Appeal, 91 Pa. 168. Furthermore, these averments are corroborated by the uncontradicted testimony that Delp had access to the books, and that the withdrawals of Edlis were known and acquiesced in by him. The referee accordingly concludes that there is nothing due from A. Edlis to the partnership, or to the plaintiff in this proceeding, upon the accounts of A. Edlis & Co.</p> <p>5. The only remaining conclusion is as to the form of the account to be drawn up. As appears by the receiver’s statement, there is on hand with it, the sum of $5,871.29, which is the balance, after the conversion of all the partnership assets, and payment of all the partnership debts. Adding interest on the payments withheld by Delp, from March 31,1890, to January 12,1892, would make the additional sum of $790, so that the gross amount thus reached would be $6,661.29. As this does not equal the amount of capital contributed by Delp, there are no profits, and the balance in the hands of the receiver must be awarded to the plaintiff, as repayment on account of the contributions of her intestate. As this becomes really a distribution of the funds in the receiver’s hands, the agreement of counsel having obviated the necessity of awaiting a final account, the costs should be paid out of this fund.</p> <p>The referee accordingly returns herewith the form of a decree, awarding the moneys in the hands of the Safe Deposit and Trust Company, .receiver, less costs, expenses and commissions to be deducted on the final account of the receiver, and also less thie costs of this proceeding, to the plaintiff.</p> <p>The referee’s report on exceptions was as follows:</p> <p>After careful consideration of said exceptions and hearing the argument of counsel therein, the referee adds the following supplemental findings of fact to those already given, in order to present.on the record fully the matters upon which the questions of law are raised.</p> <p>1. The $2,000 to be paid in cash by Delp was not contributed until December 29, 1888, instead of September 1, of that year, as agreed upon.</p> <p>2. The contributions made by Delp, as noted in the fourth finding of fact in the original report at $10,834.29, were the gross or aggregate contributions made by him, without deduction for any withdrawals made.</p> <p>3. The fifth finding, in which the withdrawals made by Delp are noted, should be corrected, that about two thirds of the amounts withdrawn were for cash or the equivalent of cash.</p> <p>4. To the ninth finding is added the further fact that on one occasion when Edlis was demanding from Delp the contribution of his capital he threatened suit unless his demand was complied with.</p> <p>5. The seventeenth finding is altered, as requested by defendant’s counsel, by adding that there is no direct evidence in the case as to whether or not the property delivered to the receiver by Mrs. Delp, administratrix, was or was not all the goods which had been received by Sebastian Delp on account of the firm. The finding which the referee has made that all the goods received by him were delivered by his administratrix to the receiver is based upon the presumption of innocence, as discussed in the conclusions of law, and not upon any direct evidence of the fact.</p> <p>Errors assigned were in .dismissing exceptions to referee’s report.</p> <p>In such a case as this, where profits are the immediate subject of contract, a breach of such contract gives the party damaged the right to recover such profits: 1 Sedgwick on Damages (7th ed.), 163; Hunt v. Oregon P. Ry. Co., 1 L. It. A. 842; Taylor Mfg. Co. v. Hatcher, 3 L. R. A. 587; Gale v. Leckie, 2 Starkie, 107; McNeill v. Reid, 9 Bingham, 68; United States v. Behan, 110 U. S. 338; 2 Bates on Partnership, sec. 780; 1 Collyer on Partnership, 331; Glover v. Tuck, 24 Weud. 153 ; Richards v. Todd, 127 Mass. 167; Davidson v. Thirkell, 3 Grant’s Ch. 330; Buckmaster v. Gowen, 81 111. 153; Bindley on Partnership, *563.</p> <p>Edlis is entitled to compensation for his services, and his damages are the value of his services, just as if the contract had been rescinded at the time of dissolution. This theory of damages is sustained by the case of Richards v. Todd, 127 Mass. 167.</p> <p>In stating the account, Delp must bo charged with the full amount of salvage shown to have come into his hands, and credited with the amount shown by him to have been delivered to the receiver.</p> <p>Where an injury consists of a deprivation of money, the compensation established by the business practice of many generations is the current rate of interest ; and such is the measure of damages adopted by the law. The profits which might have been made are too conjectural to be considered: Sedgwick on Damages (8th ed.), sec. 179; Greene v. Goddard, 9 Met. 212; Marsh’s App., 69 Pa. 35; Clarke v. R. R. Co., 136 Pa. 415; Brown’s App., 89 Pa. 139; Krapp v. Aderholt, 42 Kansas, 247; Davidson v. Thirkell, 3 Grant’s Ch. 330.</p> <p>But the appellant is not entitled to damages at all as against Mr. Delp, because (a) the failure to pay the capital strictly in accordance with the agreement was acquiesced in by the appellant in such manner as to estop him from claiming damages, (Jo) by the agreement to dissolve the partnership without any reservation of a claim for damages the appellant waived such claim if he ever had any: Herman on Estoppel, sec. 1063.</p>

Appeal, No. 196, Jan. T., 1898, by the Land Title and Trust Company, from decree of O. C. Phila. Co., Oct. T., 1897, No. 269, sustaining exceptions to adjudication. • Exceptions to adjudication.

Appeal, No. 277, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Phila. County, Jan. T., 1898, No. 277, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit for plastering and furnishing the material for fifty-two houses.

<p>Railroads — Land damages — Special use of property — Charge of the court —Business profits — Risk from fire.</p> <p>In proceedings against a railroad company for damages for land condemned, where the tendency of plaintiffs’ evidence is to swell damages by reason of the special use of the property as a bottling plant, it is not error for the court to explain to the jury that the question is not as to the value of the property in the market solely as a bottling plant, but also whether its market value for any purpose has been depreciated by the construction of the railroad.</p> <p>In condemnation proceedings against a railroad it is error to admit evidence as to the expectation of future profits based upon an estimated saving from the construction of additional buildings which the plaintiffs had contemplated erecting upon the land.</p> <p>As to risk from fire, incident to the lawful operation of a road-, there are two theories on which the claimant for damages can properly argue such risk is material evidence in his favor: (1) He can claim the danger is so imminent that no man of common prudence would maintain his building in such proximity to the railroad. In that case he is entitled to the cost of removal of his building and its reconstruction in a safe place. (2) If the danger be not great either from the fireproof character of the structure or its distance from the railroad yet, if it can still be said there is some risk from fire by reason of the lawful operation of the road, he can claim that that fact depreciates the market value of the land entered upon. On either theory the value of the contents of the building at the time of the construction of the road is immaterial.</p> <p>In condemnation proceedings against a railroad the plaintiff cannot be asked whether the construction of the railroad will be beneficial to him as an owner. The inquiry must be limited as to whether it will be beneficial to the land.</p>

Appeal, No. 107, Jan. T., 1898, by defendants, from judgment of C. P. No. 8, Phila. Co., June T., 1895, No. 36, on verdict for plaintiff. Scire facias sur mechanic’s lien. Before Gordon, J. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for SI,971.08. Defendants appealed.

Appeal, No. 319, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1897, No. 432, refusing to take off nonsuit. Trespass for personal injuries. Before Biddle, P. J. At the trial it appeared that on July 22, 1897, plaintiff was injured by being struck by a limb which defendant and his workmen cut off while engaged in trimming a tree.

<p>Sheriff's interpleader-Fraudulent convey anee — Father and son — Evidence — Question for jury.</p> <p>On a sheriff’s interpleader where the plaintiffs, who are executors, claim the property under a bill of salo made by the defendant in the execution to Ms father, the testator, the burden is upon the plaintiffs to establish title, and if the defendant introduces evidence tending to show that at the date of the bill of sale and for some time prior thereto the son was greatly harassed by his creditors whose urgent demands ho was unable to meet, and that the sale was resorted to for the purpose of protecting his property from seizure and sale by his creditors, and not with the view of effecting a bona fide transfer of title from the son to Ms father, the case is for the jury.</p>

<p>Beneficial associations — By-laws—Beinsiatement of member.</p> <p>A by-law of a beneficial association which provides that “the executive committee shall have power to reinstate a delinquent member at any time within a year, upon satisf actory evidence of good health and upon payment of all delinquent premiums,” does not give a delinquent member a legal or equitable right to reinstatement against the will oí the executive committee. Though the application for reinstatement be made in timo and the member be ready and willing to fully comply with all the terms and conditions oi the by-law, the committee is not bound to grant the application.</p>

Appeal, No. 120, Jan. T., 1898, by William L. Kennedy, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report. Held: that the interest of a child surviving the testator was vested subject to becoming divested by the death of such child without leaving children or issue of a deceased child.

<p>Appeal, No. 337, Jau. T., 1899, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1896, No. 45, on demurrer to statement.</p> <p>Assumpsit upon a foreign judgment.</p> <p>The record showed that the suit was upon a judgment confessed in the circuit court of the first judicial district of the state of Maryland. The record accompanying the statement contained merely the docket entries, showing the entry of the original judgment and two revivals thereof. To the record was attached the following certificate:</p> <p>“ I hereby certify that the foregoing are true short copies of the original judgment rendered in the circuit court for Dorchester county, in the state of Maryland, and the subsequent renewals thereof bj writs of scire facias and judgments thereon at the above entitled terms, and also of the subsequent docket entries in said case, and that there is no entry or proceedings in said court to show that the said judgment or any part thereof hath been paid or satisfied.</p> <p>“ In testimony whereof I hereunto subscribe my name and affix the seal of the circuit court for Dorchester county this 6th day of June, A. D. 1896.</p> <p>[Seal] “ Charles Lake,</p> <p>“ Clerk, Circuit Court for Dorchester Co.”</p> <p>Defendant demurred to the statement because “ the plaintiff’s statement does not set out a. full and complete exemplification of the record of the circuit court for the first judicial district of the state of Maryland, for Dorchester county, which is claimed to be the basis of the plaintiff’s cause of action. The procedure act of 1887, requires the statement to be accompanied by copies of notes, contracts, etc., and which said act has not been complied with by the plaintiff in his statement filed in this cause of action, and is therefore defective in this particular and also that the said statement is in other respects uncertain, informal and insufficient.”</p> <p>The court sustained the demurrer and entered judgment in favor of the defendant.</p> <p>Mror assigned was in sustaining the demurrer.</p> <p>This record certainly meets the requirement enunciated by Justice Mitchell in the case of Smith, Kline & French Co. v. Smith, 166 Pa. 563.</p> <p>The case of Mink v. Shaffer, 121 Pa. 280, certainly sustains appellant’s view of this case. The defendant has had his day in court, the record shows two appearances and is therefore conclusive against him: Moore v. Fields, 42 Pa. 467 ; Wetherill v. Stillman, 65 Pa. 105 ; Potter v. Hartnett, 148 Pa. 15.</p> <p>The exemplification of record accompanying the statement filed in this case is certified “ to be true short copies ” of the original judgment in Maryland, and the “ subsequent renewals thereof ” and of the “ docket entries.” The “ short copies,” as appears by an inspection of the record certified, are nothing but the docket entries of the proceedings in the foreign court, in proceedings on a judgment over twenty years old. No distinction can be drawn between the record of a judgment confessed, and of any other proceeding in court. The judicial construction placed upon the act of 1887, above quoted, requires a full record to accompany the statement in every case where such record is the basis of the action.</p>

<p>Appeal, No. 125, Jan. T., 1898, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1897, No. 215, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Clayton, P. J.</p> <p>At the trial it appeared that on the evening of November 23, 1896, between 8 and 9 o’clock, Mrs. Nudd was injured by falling into a hole in Burmont road immediately south of Baltimore avenue. The evidence tended to show that the hole was eighteen inches deep and two feet wide, and that it had continued for a long time without light or guard.</p> <p>Other facts appear by the charge which was as follows:</p> <p>So far as the traveled way is concerned, it is the duty of the borough authorities to keep it in a reasonable condition. Now, by the traveled way we mean the part of the road that the borough has laid out and provided for public travel. If, for instance, the borough authorities, or the authorities that preceded the formation of the borough, macadamized this road or any part of it, that part of it it was their duty to keep in good, safe, traveling condition. But there is not, I suppose, a country road in the state that is entirely safe outside of the traveled way.</p> <p>There are gutters, places subject to every freshet, where every rain may cause them to become dangerous. There are washouts and places of that sort, so that it would seem to be almost impossible to keep it entirely free from danger, but the traveled way must be kept reasonably safe. If you shall find, in the first place, that at the place where this accident happened that the road was a suburban one in a rural district, then the law applicable to a country road will apply to this place and the law applicable to a country road is that the traveled way, the way that is open for the public to travel upon, must be kept in good condition. That does not apply to sidewalks and the stumps and the trees and the bushes that grow along the side of the road that have not been open for public travel. If you find, therefore, from the evidence in this case, and it seems to me that the weight of the evidence would seem to so indicate, that this was a road in a rural or country district and not in the built-up part of the borough, then I charge you that unless this obstacle, this dark place, was within the lines of the traveled way, within the lines of the part of that road which had been opened by the authorities for the public to ride, walk or travel upon, there can be no recovery; especially, unless there was actual notice. If, upon the other hand, you find that this obstacle, this dangerous place, was within the. lines of the road laid out by the public for the people to walk and ride over, then I charge you there may be a recovery if you find that the place was dangerous and that the borough was negligent or had notice of the obstruction; if the borough had no notice of this dangerous place, there can be no recovery against it. Even then there can be no recovery unless you find that there was no negligence upon the part of the plaintiff. Now, gentlemen, it is my duty to say to you that the law requires every traveler traveling along a road at night, especially if by a road that the traveler is not familiar with, to observe not only great caution but extraordinarily great care. It requires the traveler to use his eyes, and if he can see to avoid danger, it requires him to feel his way and go carefully, especially if it be upon a road which he is not familiar with. A failure to observe care in walking over a road hi the night-time, especially if it is dark, the failure to use due care, is in itself negligence, and the law says that if there is any negligence upon the part of the plaintiff that contributes to the accident there can be no recovery. Now, gentlemen, I have given you the law that governs the case, and it will be for you to apply the facts. The first question for you to consider will be, was this dangerous place within the lines laid out by the public for the people to travel upon ? If you find that it was, then you will proceed to the second question, did the borough have notice of this dangerous place? Notice maybe of two kinds, first, constructive notice where the dangerous place has existed for a sufficient length of time under all circumstances to convey notice to the authorities whose duty it is to be on the alert, to look out for dangerous places. It is impossible for me to give you any rule as to what is sufficient notice. It will depend on all the circumstances of the case. Of course, the duty of the highway department of the borough is to have a general supervision over its remote and unbuilt-up parts and especial supervision over those parts which are built up, a general supervision such as a supervisor would have, and if by any accident there is a dangerous place, if the borough knows it or ought to know it, it must put it in repair. The second question, therefore, after you have passed the first and found that this accident occurred within the limits of the traveled way prepared for the people to walk and ride over, then the next question will be had the borough notice of this dangerous place. And that notice may be constructive, that is to say, if it has existed for a sufficiently long time to be generally noticed. That would be sufficient considering where it was, the position that it was in; it being in the rural part of the borough, considering all that, and making due allowance, then the next question would be as to actual notice. I cannot say that there is any actual notice in this case. It will be for you. [There is some evidence that there was actual notice that the sidewalk was out of repair, but the witness cannot say whether the notice applied to this sidewalk or the part nearer to Father O’Brien’s church, but he says there was a written notice given. The writing has not been produced and therefore we cannot say positively as to what part of the sidewalk it referred to. I say, therefore, there is some evidence of actual as well as constructive notice though the evidence is not very satisfactory or clear.] [2] If you come to the conclusion then that the borough had notice; that they knew or ought to have known under the circumstances that this dangerous place was in existence; and one of the circumstances that bear upon that is the evidence that originally this was covered, this hole was originally covered or nearly covered by a sidewalk. Now I do not say that is so. But one of the witnesses, or two of them, say so. I think there are two witnesses that testified as to that. I think one of the witnesses testified that such a sidewalk was there when the culvert was put across the street and the mouth entered upon the plank. If it was in that condition then it would be safe. You must consider all these parts of the testimony. The sidewalk seems to have been abandoned, and it does seem to me that it would have been better if the borough had entirely removed that sidewalk and not left any remains of it there at all. They should either have a sidewalk there or have none, but I don’t know that that has much to do with the case. It is certain, however, that them are some remains of a sidewalk there and when that sidewalk was there it was then of course a part of the traveled way of the street. Then I say if you come to the conclusion that this was in the traveled way, that the borough had notice and that it was a dangerous place, and that the plaintiff without any fault upon her part fell into it and was injured then there can be a recovery. There is evidence that when the light was burning this dangerous place could be easily seen even during the night-time. Now if we had evidence that the light was burning on the night when the accident occurred that would be a complete defense, because, as I said a moment ago, man or woman must preserve his or her life or limbs — they are not infants under the charge of guardians, they have no guardians to watch over them and see that they do not stumble over a stone, and it is their duty to use the greatest vigilance if they are traveling at night to avoid danger, and if by the use of their faculties they can avoid going into danger they must do it. So I say to you, gentlemen, if we had any evidence that this light was in good order upon the night when this accident happened it would be a complete bar to the recovery here, if it had given sufficient light for any one to see the danger, and the weight of the evidence is that it would do it. [Unfortunately for the borough, they seem to have known that this light was often out. The policeman says he so informed the authorities; he says he told them that the light was frequently out, and that by striking the pole the light would go out. Therefore the facts seem to be established that the light was not burning when the accident occurred, and if we had no notice that the borough knew it was often out that might be a circumstance that would relieve the borough; but if the borough knew that the light guarded a dangerous place then it would be evidence of negligence upon their part to allow it to remain in that condition.] [8] Still there could be no recovery unless the dangerous place is within the traveled roadway of the borough— unless it is in the traveled way there can be no recovery. [We have no positive evidence how much of the thirty or forty feet of the street was within the usual traveled lines; we have no very clear or satisfactory evidence in regard to that. We have the evidence that the macadamized part of the road came up or nearly up to the mouth of the culvert. That is about all the evidence that we have upon that point.] [4] We have also evidence that there had been a sidewalk there that covered the dangerous place. Now, gentlemen, if you should get over all those points, that is to say, if you shall find that this dangerous place was within the lines of the traveled lines of the street, and that the borough had notice of it and that the plaintiff was not negligent but used all the care that a person in a dark night and in a dangerous place should use, then you will come to the question of damages.</p> <p>Defendant’s point and the answer thereto among others were as follows:</p> <p>Under the evidence the verdict must be for the defendant. Answer: That point is declined. I leave the question for the jury. [1]</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p> <p>cited on the question of negligence : Monongahela City v. Fischer, 111 Pa. 9; Auberle v. McKeesport, 179 Pa. 321; Canavan v. Oil City, 183 Pa. 611; Burns v. Bradford City, 137 Pa. 361; Lohr v. Philipsburg Borough, 166 Pa. 246.</p> <p>Cited on the question of contributory negligence: Carlisle v. Brisbane, 113 Pa. 644 ; Township of Crescent v. Anderson, 114 Pa. 648; Dean v. Penna. R. Co., 129 Pa. 514.</p> <p>cited as to tlie negligence of the borough: Corbalis v. Newberry Twp., 132 Pa. 9; McCue v. Knoxville Borough, 146 Pa. 580; Biggs v. West Newton Borough, 164 Pa. 341; Readily v. Shamokin Borough, 137 Pa. 92; Gschwend v. Millvale Borough, 159 Pa. 257.</p> <p>Cited as to contributory negligence: Carlisle v. Brisbane, 113 Pa. 544.</p>

<p>Appeal, No. 285, Jan. T., 1898, by plaintiff, from decree of C. P. Delaware Co., March T., 1897, No. 1, dismissing bill in equity.</p> <p>Bill iii equity for an injunction.</p> <p>The first and second paragraphs of the bill alleged that plaintiff is the executor of Thomas A. Biddle, deceased, and that decedent devised his land to his executor in trust, etc. The third and fourth paragraphs were as follows :</p> <p>3. That recently the Wayne Water Works Company, a corporation existing under the laws of the commonwealth of Pennsylvania, having its principal office at Wayne, in the township of Radnor, have entered upon said land and have laid a pipe or pumping main, about twelve inches in diameter, across the same, extending from the Eagle road on the south to the line of lands of the Wayne Company on the north. Said pipe is part of a pumping main extending from the pumping station of the defendant company in Wayne to their reservoir lying to the north of the plaintiffs ’ lands.</p> <p>4. That the said defendant had no warrant or authority under the right of eminent domain, by consent of plaintiff, or otherwise, to enter upon said tract of land and lay the said pipe or pumping main across the same, and the plaintiff is informed and believes and therefore avers that it was not necessary for the successful operation of the waterworks of the defendant company nor for the purpose of supplying water to the community described in the charter of the defendant company, that the said pipe or pumping main should be laid upon or across the lands of the plaintiff and that the defendant company at a slightly increased expense could have laid the same entirely in the public highways and upon the land on which its reservoir is built.</p> <p>The facts appear by the opinion of Clayton, P. J., which was as follows:</p> <p>The first, second and third paragraphs of the plaintiff’s bill are found to be true. The fourth paragraph of the defendant’s answer is also found to be true. The defendant corporation is vested with the state’s right of eminent domain to enter upon such land as may be necessary for the purpose of construction and operating its works. It also has power to lay pipes upon the public streets and highways subject to municipal regulations. In the exercise of this power the defendant condemned a specific part of the plaintiff’s land, describing the land taken by metes and bonds. There is no evidence that the defendant has taken more land than is absolutely necessary for the purpose of laying its pipes of suitable dimensions in the most direct route to their works. Before taking the land the defendant complied with the conditions of the law by filing a description of its condemnation and giving a bond with sufficient security, approved by the court, for the payment of all damages which might be sustained by the plaintiff. Bond was filed November, 1894, and was in the sum of $3,000. Subsequently, and before the filing of this bill, the defendant proceeded to lay its pipes upon the condemned land, taking no more than was necessary. On May 6, 1895, the plaintiff presented his petition to the court for the appointment of viewers according to law to assess his damages. The viewers met, heard all the testimony in strict pursuance of their appointment, and filed their report November 5, 1895. From this report the plaintiff has appealed, and an issue was duly framed to try the question as to the amount of the damages, which issue is still pending and undetermined. The chief issue between the parties is the question of necessity, the plaintiff alleging that another route should have been adopted as the least expensive to the company and the least injurious to the plaintiff. The route adopted is the most direct. There is no allegation or proof that the company has exercised its authority wantonly, corruptly or capriciously, or that the rights of the owners of the land which it has taken were trifled with or unreasonably disregarded. The whole question, therefore, is whether the route adopted is fairly a reasonable one, for we hold that the discretion of the company in adopting its routes, and in condemning the plaintiff’s property, can only be restrained or controlled by the court where the condemnation or exercise of the state’s right of eminent domain has been exercised in an unreasonable manner. We are of opinion that under the evidence in this case, and the facts proved, a court of equity will not undertake to control the discretion of the corporation. See Lodge v. P., W. & B. Railroad, 8 Phila. 345, New York & Erie Railroad v. Young, 33 Pa. 175, and Williamsport, etc., R. R. v. Phila. & Erie R. R., 141 Pa. 406. The authorities cited by the plaintiff virtually announce the same principle. In Jarden v. R. R. Co., 3 Wharton, 502, the court says that it is well settled where lands are sought to be taken for public nse it must appear that they are reasonably necessary for the purpose of the corporation. We are of opinion that the question of necessity in the present case is first to be decided by the corporation, and where there is nothing unreasonable in the location and condemnation the courts will not interfere. The allegation npon the part of the plaintiff is that it wonld have been cheaper for the company to have condemned, or to have laid their pipes upon Engle avenue, and then run up the Radnor road, and from the Radnor road diagonally up to the reservoir. Counsel for plaintiff has fallen into an error in his supposition that the laying of this pipe npon a public road wonld not be an additional servitude npon the land occupied by the road. So far as the occupation of a street of a borough or of a city is concerned, this may be admitted, because the streets of a city are originally intended partially for that purpose; but with a public road this is not the case. The owners of the land upon which the pipe is laid, although occupied by the road, would be entitled to claim damages, because upon a vacation of the road there would be an injurious easement upon tbeir land. We are, therefore, of the opinion that the exercise of this state’s right of eminent domain by the company is reasonable exercise of their power. But this is not the only difficulty in the way of-recovery. The plaintiff is too late in invoking the power oí a court of equity. The location was made, the lands condemned, security given, and the pipe actually laid before the filing of the bill. If the plaintiff had intended to raise this question he should have filed Ms bill at once, npon receiving notice of the condemnation. He cannot be permitted in equity to lie by and choose two remedies, and after be has exhausted one, had Ms damages assessed, Ms issue framed, and his case ready for trial, to then ask for an injunction to undo all that has been don© and compel the defendant to remove the improvements it has already constructed. The plaintiff’s bill is therefor© dismissed with eoste to the defendant.</p> <p>Mrr&r assigned wm the deere® of tin© court.</p> <p>Th® fegMete® has made a clear distinction in the right conferred upon the railway companies and in that conferred upon water companies: Act of May 16, 1889, P. L. 226; Act of February 19, 1849, sec. 10, P. L. 79; Anspach v. ft. R. Co., 5 Phila. 491.</p> <p>The court erred in dismissing the plaintiff’s bill on the ground that the laying of the pipe in the highway would have imposed an additional servitude.</p> <p>The court erred in finding that the plaintiff was too late in invoking the power of a court of chancery: Gould v. Langdon, 43 Pa. 365; Semple v. Cleveland & Pittsburg R. R., 172 Pa. 369; Bispham’s Equity, sec. 288; Liverpool Wharf v. Prescott, 7 Allen (Mass.), 494; Thayer v. Bacon, 3 Allen (Mass.), 163; Proctor v. Machine Co., 137 Mass. 159; Laverty v. Moore, 33 N. Y. 658; Reed v. McCourt, 41 N. Y. 435 ; Kincaid v. Dormey, 51 Mo. 552.</p> <p>cited Northampton Co. v. Lafayette College, 128 Pa. 138; N. Y. Cent. & H. R. R. R. v. Metropolitan Gas-Light Co., 5 Hun, 201; Tracy v. R. R., 80 Ky. 259; Wadhams v. R. R., 42 Pa. 303 ; Semple v. R. R., 172 Pa. 369.</p>

Appeal, No. 5, Jan. T., 1899, by Mary E. Beaumont, administratrix, one of the defendants, from order of C. P. Chester Co., April Term, 1898, No. 60, making absolute a rule for judgment for want of a sufficient affidavit of defense. Scire facias sur mortgage.

<p>Appeal, No. 404, Jan. T., 1898, by Henry Ritter et al., from decree of O. C. Bucks Co., overruling exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor reported as follows:</p> <p>The parties agree on the following facts which are admitted in evidence with the same force and effect as if the same had been duly proved before the auditor:</p> <p>1. Abraham Ritter died on October 29, 1892, unmarried and without issue.</p> <p>2. Decedent left to survive him one brother, Henry Ritter, and two sisters, Catharine, intermarried with Aaron Oberbeck, and Mary, intermarried with William Ruffner, his next of kin and heirs at law.</p> <p>8. Abraham Ritter in his lifetime made his last will and testament in writing, dated August 29,1892, which will, since his death, has been duly proved and admitted to probate in the office of the register of wills for the county of Bucks, where the same remains duly on file, and the same is admitted in evidence.</p> <p>4. Mary E. Tettemer, one of the legatees mentioned in said will, died on July 20, A. D. 1897, intestate, leaving to survive her a son, Edgar T. Tettemer, and a husband, Enoch Tettemer, and letters of administration upon her estate were duly granted by the register of wills of Bucks county, to Albert K. Kilmer.</p> <p>5. Said Mary E. Tettemer was a servant and housekeeper of the testator for eighteen years continuously and immediately prior to his death, but no relation by blood or marriage.</p> <p>CONCLUSIONS OF LAW.</p> <p>Abraham Ritter by his will provided inter alia as follows:</p> <p>“ Sixth. — All the rest residue and remainder of my estate, consisting of money, stocks, bonds and other securities, I give, devise and bequeath to John Swope, Sr., to have and to hold the same in trust as follows :</p> <p>“ In trust to invest the same on good securities and receive the annual income or profit therefrom and to pay the same annually less all proper costs and charges to said Mary E. Tettemer during the lifetime of my brother Henry Ritter. And in trust upon the death of the said Henry Ritter to pay and deliver the sum of |500 to my sister, Mary Ruffner, and to pay and deliver the remainder of said trust fund and securities to the said Mary E. Tettemer absolutely; it being my intention that the said Mary E. Tettemer shall have the income only of the residue of my estate during the lifetime of my brother Henry Ritter, any rule of law to the contrary notwithstanding.”</p> <p>Mary E. Tettemer, the cestui que trust, is dead. Henry Ritter is still living. The trustee has filed his account, showing the amount of the fund in his hands, and your auditor has been appointed to make distribution thereof.</p> <p>The testator gave to Mary E. Tettemer, first, the income of the residue of his estate, and, second, the balance of the principal from which said income was to be derived, after the payment out of the same of the legacy of $500 to Mary Ruffner, upon the death of his brother, Henry Ritter. It is contended by the heirs at law that the interest of Mary E. Tettemer in the income was a contingent one only because of the employment by the testator of the words “ to pay,” and his failure to made any substantive gift of the same to her, and therefore that as to the income arising after the death of the cestui que trust the testator died intestate. No such intention on his part is discoverable from the will and none is to be presumed.</p> <p>It is said in Ghess’s Appeal, 87 Pa. 862, “No doubt it is the general rule that a legacy is to be deemed vested or contingent just as the time when it is to take effect shall appear to be annexed to the gift or the payment of it. Where there is no substantive gift, and it is only implied from the direction to pay, the legacy is contingent. But this rule is, of course, subject to the necessary exception that a contrary intention is not to be collected from the words or circumstances.” In McClure’s Appeal, 72 Pa. 418, the Supreme Court, referring to Bayley v. Bishop, 9 Ves. 6, says: “The mode or form of the bequest seems to be regarded by Vice-Chancellor Wigbam as immaterial. The gift of a legacy under the form of a direction to pay at a future time, or upon a future event, is, in his opinion, not less favorable to vesting than a simple and direct bequest of a legacy at a like future time, or upon a like event. The question is one of substance and not of form; and in all cases it is whether the testator intended it a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies; and the answer to this question must be sought for out of the whole will, and not in the particular expressions only in which the gift is made. Leeming v. Slierratt, 2 Hare, 14.”</p> <p>Is there to be found in the will of Abraham Hitter any evidence of such an intention ? He directs the trustee to invest the principal on good securities “and to pay over the income annually to Mary E. Tettemer.” The payment, while directed 'to be made annually, is to be made immediately upon its receipt by the trustees. Such is the plain inference to be drawn from the testator’s langiiage. The provisions in reference to the payment of the income is not a direction to pay at a future time or upon the happening of some future event. Further, applying the rule laid down by the court in McClure’s Appeal, supra, the legatee’s interest in the income must be considered a vested one, in the absence of evidence of any intention on the part of the testator to attach any condition precedent to the bequest.</p> <p>In Little’s Appeal, 81 Pa. 192, the testator gave the entire income of his estate, consisting wholly of personalty, during the life of his daughter Elizabeth, or while she should remain unmarried, to Ms two daughters, Mrs. Martha J. Little and the said Elizabeth, the former to receive one third and the latter two thirds. The language of the will was, “ I direct that two thirds of the income of my estate bo for the use of my daughter Elizabeth, and given to her so long as she remains unmarried, and the remaining one third to be paid to my daughter Martha Jane Little.” Min. Little died before the marriage of Elizabeth, leaving to survive her a husband and children. The Supreme Court hold that Mrs. Little had a vested interest in the one third of the said income, which, upon her death, passed to her legal representatives, for the lifetime of Elizabeth, or so long as she should remain unmarried. Tour auditor is of the opinion that the interest of Mary E. Tettemer was a vested one. The legacy of 0500 to Mary Kuffner is not payable until after the death of Henry Ritter. The income thereof, under the ruling in Tittle’s Appeal, belongs to the legal representative of Mary E. Tettemer. The trustee must therefore retain so much of said fund until it becomes distributable under the terms of the will, collecting and paying over the income thereof in the mean time to the estate of Mary E. Tettemer.</p> <p>But what disposition is to be made of tbe balance of the fund held by the trustee ? Is it to be held until the time indicated by the testator as the termination of the trust, or is it now payable to those to whom it belongs ? The trust was created for the sole benefit of Mary E. Tettemer. It does not appear why the testator fixed the death- of his brother Henry as the time for the payment to her of the principal. Henry had no interest whatever in the provision. The testator clearly expressed his intention to give Mrs. Tettemer the income during the life of Henry Ritter and the balance of the principal, after the payment of Mrs. Ruffner’s legacy, at Henry’s death. As Mrs. Tettemer had a vested interest in the income, her legal representative would be entitled to receive it so long as the trust continues. But how long shall the trust continue ? The purposes for which it was created have been accomplished. “ It matters not what may be the nominal duration of an estate given by will to a trustee. It continues in equity no longer than the thing sought to be secured by the trust demands: ” Koenig’s Appeal, 57 Pa. 855. It is a general principle that a simple or passive trust cannot continue the legal estate in the trustee, except for a proper and useful purpose, such as the law will regard and protect, and as soon as the purpose fails or ceases to exist, the legal estate becomes' executed in the cestui que trust. In the former case, equity preserves the trust to give effect to the donor’s right of dominion over his property, and 'in the latter, in favor of public policy, permits it to fall as useless : Freyvogle v. Hughes, 56 Pa. 228; McBride v. Smyth, 54 Pa. 250; Rife v. Geyer, supra; Dodson v. Ball, 60 Pa. 492. “ An active trust having no object to accomplish for the benefit of the cestui que trust clearly will not be continued for the mere benefit or pleasure of the trustee. The object of the testator having failed or ceased, the law will execute the use: ” Ogden’s Appeal, 70 Pa. 508, and cases there cited. Your auditor thinks that this trust, except as to the legacy of $500, terminated at the death of Mary E. Tettemer, and that the balance in the hands of the trustee is now distributable.</p> <p>It is further contended by the heirs at law that the interest of the cestui que trust in the principal as well as the income is contingent for the reasons already stated, and that therefore she had no inheritable estate to transmit. This contention, in the opinion of your auditor, cannot be sustained. It was undoubtedly the intention of the testator that Mary E. Tettemer should have not only the income, but part of the principal of the residue of his estate. There is nothing in the will evidencing any purpose to incumber the gift of the principal with any condition precedent. It is true that the time for its payment is fixed at the happening of a future event that is certain to occur, but there is nothing in the language used by the testator warranting the conclusion that he intended to bestow his gift upon the legatee only in the event of her living to receive it. “ The vested or contingent character of an estate is not to be tested by the certainty or uncertainty of obtaining the possession, for that would make its character depend, not upon the terms of its creation, but on the form of the result, nor by the defeasibility or indefeasibility of the right of possession, for many estates are vested without possession as well as with it and yet are defeasible. If there be a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate : ” Manderson v. Lukens, 23 Pa. 31. The rule is well established that “ where a person bequeaths a sum of money, or other personal estate to one for life, and after his decease to another, the interest of the second legatee is vested, and his personal representatives will be entitled to the property, though he dies in the lifetime of the person to whom the property is bequeathed for life: ” Linnard’s Estate, 8 W. N. C. 536. When the enjoyment of the entire fund is given in fractional parts at successive periods, which must eventually arise, the distinction between the time annexed to the payment and the time annexed to the gift becomes unimportant. In such cases it is well settled that all the interests vest together. Thus a legacy to one for life and to another at his death goes to the legal representatives of the latter, should he not live to take it: McGill’s Appeal, 61 Pa. 51.</p> <p>Your auditor therefore concludes as to the balance of the residue (1) that the trust has terminated, and that the principal is now distributable, and (2) that Mary E. Tettemer had a vested interest therein and that said fund must be paid to her administrator.</p> <p>Exceptions to the auditor’s report were dismissed in an opinion by Yebkes, P. J., which was as follows :</p> <p>It may be gathered from the will and evidence that the testar tor, when he died in October, 1892, without issue, and unmarried, left surviving him one brother and two sisters, his next of kin and heirs at law. He also had a servant or housekeeper, Mary E. Tettemer, who had lived with him a number of years. Whether any other persons lived in his household does not appear. Mary E. Tettemer, who has since died, and before the brother, Henry, left a son, Edgar T. Tettemer. The testator gave his farm, and tools, and implements thereon to his brother for life, then to Mary E. Tettemer during her natural life, and at her death to her son Edgar T. Tettemer, his heirs and assigns absolutely. To his sister, Mary E. Ruffner, he gave $1,000, and to his other sister, Catharine Oberbeck, $10.00.</p> <p>The conviction forces itself upon one’s mind after reading the will, that the testator having his primary purpose to secure his brother in the possession of his farm property as it then stood without molestation as to the stock thereon during life, when he came to select the ultimate beneficiaries of his estate, regarded more kindly the Tettemers than he did either of his sisters. What was the reason for this does not appear, and is not material when the main fact is so conspicuous. The contention before the auditor arose over the sixth clause, the purpose of which was to dispose of “ all the rest, residue and remainder ” of the testator’s estate. This he gives to a trustee for investment in securities, during the lifetime of his brother Henry, not for the benefit of Henry, but for the benefit of Mary E. Tettemer, who is to receive the entire income, including the interest upon or out of the sum of $500, which he directs to be ultimately paid to Mrs. Ruffner. For some reason not clearly apparent, he designed that during the lifetime of his brother Henry, Mrs. Tettemer should receive the benefit from $500 more than she was to have when Henry should die. In some way, possibly, he expected this provision would benefit Henry. It is hard to conceive any other purpose in reason. Presumably he was informed of the legal consequences of the gift to his sister and housekeeper of the income of' an estate accompanied by an immediate gift of the principal to be paid at a future time. He sought to arrest any effort on her part to seize the immediate possession through setting aside the trust, by creating a trust in the $500 for her benefit. And the declaration that his intention was that she should have the income only of the residue of his estate during the lifetime of his brother, “ any rule of law to the contrary notwithstanding.” Did this qualification defeat the immediate vesting oí the estate? We are of the opinion that it did not. Whether it would operate to postpone the payment directed in the trust is immaterial since Mrs. lettemer, for whose benefit the trust operated, did not raise the question. But that the intention was to at once give her an absolute estate, subject to a suspension of payment or delivery, there can be little doubt. The testator declared that Mrs. Tettemer was not only to have the remainder of the trust fund absolutely but contemplated and provided for a bodily delivery of the actual securities to he?» and also failed to make any other provision for a residue of Ms estate. The fixed amounts lie bequeathed to Ms sisters indicated a purpose to limit their share of his estate, and the gift in fee of the farm to Mrs. Tettemer’s son showed equally the object of the final resting place of Ms estate. The other matters referred to in the argument are but incidental to the main question and need no comment. If the learned auditor be right upon this main question there would appear to be no one to question tbe detail or consistency of his method of distribution. It is needless to add anything further to the very clear report of the learned auditor.</p> <p>And now, to wit; December 5, 1898, the exceptions are dismissed and the report of tbe auditor is confirmed.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p> <p>The heir or next of kin has a prima facie title, which can be divested only fey a written deed or will 66 manifesting a purpose to that effect; ” Kane’s Est., 185 Pa. 5441 Wengexd’s Est., 148 Pa. 615; Chess’s App., 87 Pa. 862; Sheaffer’s App,, 8 Pa, 38.</p> <p>In Sheets’s Est,, 52 Pa. 257, the Court held that if a testator gives an absolute interest either in lands or personalty, and afterwards unequivocally shows that he meant the donee to take a less estate, the prior gift will be so restrietad.</p> <p>Tk© cfoetrm© announced above in Sheets’s Estate Isas teen closely followed fey a line of unbroken authorities clown to the present days Krebs’s Est., 184 Pa. 222; Mwdy’s Est., 185 Pa. 8S®> % Byms’s Est., 186 Pa, 4©4 ; Barger’s App., 190 Pa. 2S9; Reek’s App., 78 Pa. 435; Woelpper’s App., 126 Pa. 575; Handy’s Est., 182 Pa. 68.</p> <p>Testator declares in unmistakable terms that she shall have the interest only until the death of Henry, and then he gives her the principal absolutely. Which implies a higher estate ? Keene’s App., 64 Pa. 269.</p> <p>Now, if the testator had known that Mrs. Tettemer would have been dead when Henry died, he could not have directed his trustee to pay and deliver the principal to her: McClure’s App., 72 Pa. 418; Bartholomew’s Est., 155 Pa. 314; Little’s App., 81 Pa. 192.</p> <p>Where the capital does not vest until a certain time a direction to apply the income in the mean time has invariably been considered as a mere provision for maintenance, and not as accelerating the vesting of either the capital or income, and the right to the income ceases when the right to .acquire the capital ends: Wakefield v. Dyott, 4 Jurist, N. S. 1098; Comport v. Austen, 12 Simon, 218; Pleasanton’s App., 99 Pa. 363; Lumberman’s National Bank’s App., 13 W. N. C. 191.</p> <p>cited Little’s App.,' 81 Pa. 190; Roberts’s App., 59 Pa. 70; Schriver v. Cobeau, 4 Watts, 130; McGill’s App., 61 Pa. 51; Silknitter’s App., 45 Pa. 365; Koenig’s App., 57 Pa. 352; Freyvogle v. Hughes, 56 Pa. 228; Dodson v. Ball, 60 Pa. 492; Ogden’s App., 70 Pa. 501.</p>

Appeal, No. 144, Jan. T., 1898, by James C. McFarland, from judgment of C. P. No. 3, Phila. Co., June T., 1896, No. 827, on verdict for plaintiffs. Assumpsit against a partnership. The facts appear by the opinion of the Supreme Court. The court gave binding instructions in favor of the plaintiffs. Verdict and judgment for plaintiffs for $2,063.94. James C. McFarland appealed. JError assigned was the instruction in favor of the plaintiffs.

Appeal, No. 124, Jan. Term, 1898, by defendant, from judgment of C. P. No. 4, Phila. County, March T., 1897, No. 118, on verdict for plaintiff. Ejectment for land in Philadelphia county. At the trial it appeared that Albert Enyard, Edward Enyard and William Enyard owned the land in controversy as tenants in common. William died on April 2, 1897. Two days after his death his widow purchased the land at a sheriff’s sale had under proceedings to collect arrears of ground rent.

Appeal, No. 123, Jan. T., 1898, by defendant, from judgment of C. P. No. 4, Phila. County, June T., 1896. No. 814, on verdict for plaintiffs. Trespass for death of plaintiffs’ father. Before Willson, J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiffs for $2,106. Defendant appealed. Error assigned among others was in refusing to give binding instructions for defendant.

Appeal, No. 212, Jan. T., 1898, by the Philadelphia Dental College, from order of May 6, 1898, dismissing exceptions to amendment of charter. Exceptions to amendment of charter.

Appeal, No. 305, Jan. T., 1898, by Morris P. Clayton et al., from decree of C. P. No. 3, Phila. Co., March T., 1897, No. 783, dismissing exceptions to auditor’s report. Exceptions to the report of Robert W. Finletter, Esq., auditor. The facts appear by the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Equity — Injunction—Interference with alley.</p> <p>On a bill for an injunction to restrain defendants from interfering with plaintiffs’ use of an alley, in the rear of the premises occupied by them under a lease, it appeared that plaintiffs by their lease had “ the privilege of a passageway in the rear leading into ” a street. After the date of the lease defendant acquired title to the lot occupied by plaintiffs, and also to the adjoining lot, for the purpose of erecting thereon a large office building. Before work was begun, defendants wrote plaintiffs’ attorney that during the progress of the work the alleyway would be preserved intact, and a clear passage through it afforded to plaintiffs. To this the attorney replied that his clients were pleased to receive the information and would rely upon defendants’ assurance that they were to have the unobstructed use of the alley. While the alley was necessarily changed in appearance above and underneath, during the progress of the work, it was not obstructed, but was maintained at its full width, and in a condition for plaintiffs’ constant use. Held, that the court committed no error in refusing an injunction.</p>

Appeal, No. 14, Oct. T., 1898, by defendants, from order of C. P. No. 2, Allegheny Co., Jan. T., 1899, No. 289, on petition for mandamus. Petition for mandamus. The facts appear by the opinion of the Supreme Court. Error assigned was the order of the court.

Appeal, No. 397, Jan. T., 1899, by defendant, from judgment of O. & T. Lancaster Co., April T., 1898, No. 144, on verdict of guilty of murder of the first degree. Indictment for murder. Before Livingston, P. J. The facts appear by the opinion, of the Supreme Court. Verdict of guilty of murder of the first degree on which judgment of sentence was passed. Errors assigned sufficiently appear in the opinion of the Supreme Court.

Appeal, No. 420, Jan. T., 1898, by Edgar J. Klotz et al., front decree of O. C. Lehigh Co., Nov. T., 1898, No. 1, dismissing exceptions to auditor’s supplemental report. Exceptions to report of auditor, J. Dillinger, Esq. The facts appear by the opinion of the Supreme Court. Error assigned was the decree of the court.

<p>Appeal, No. 16, May T., 1899, by defendant, from judgment of O. & T. Dauphin Co., Sept. T., 1898, No. 258, on guilty of murder of the first degree.</p> <p>Indictment for murder.</p> <p>At the trial it appeared that on August 26,1898, the prisoner killed his wife. The manner of the killing is fully described by the trial judge in his opinion refusing a new trial.</p> <p>The court charged in part as follows:</p> <p>Counsel suggest, or at least did in their opening — counsel for the prisoner — that they intended to give evidence on the question of the mental condition of the defendant with a view of reducing the grade of the offense. It is difficult for me to see how it could properly have that effect. If at the time this act was commited the prisoner was insane, if he was in the condition of mind that would excuse the man because he was not conscious of the nature of the act, it would then be your duly to acquit him on that ground. It would be your duty to say that you did acquit him on that ground, because, if his mind was in the condition that he was not responsible for what he was doing, he would not be responsible for manslaughter any more than he would be for murder. The important thing for you, however, gentlemen, is to' determine whether this prisoner at the time he committed this offense did it wilfully, deliberately and premeditately. If he did he was guilty of murder in the first degree, unless you find that the' state of his mind was such that at the time he was not conscious of the nature of the act, and therefore irresponsible.</p> <p>.... As we have already attempted to explain to you, gentlemen, if this prisoner was of unsound mind to such an extent that he was not conscious of the nature of the act he was committing, then you ought to acquit him on the ground of insanity.</p> <p>Verdict of guilty of murder of the first degree.</p> <p>On a motion for a new trial Simonton, P. J., filed the following opinion:</p> <p>There was no substantial controversy as to the facts on the trial of the case. The prisoner killed his wife by knocking her down with his fist from a bench on which she was standing picking grapes, placed his knee on her breast as she lay, took a clasp knife out of his pocket, which, according to the testimony of one of the witnesses, he had some difficulty in opening, and with it cut her throat, severing the jugular vein and causing her death in a few minutes.</p> <p>One of the reasons suggested why a new trial should be granted is that the court did not fully instruct the jury as to their rights to find a verdict of murder of the second degree. The court was not asked at any stage of the case either orally or in writing to give such instructions: Commonwealth v. Zappe, 153 Pa. 501; Commonwealth v. Nevling, 98 Pa. 322; at foot of page 337; Kehoe v. Traction Company, 187 Pa. 486. The testimony, including that of the prisoner himself, showed that his crime was a brutal, savage murder, of the kind that induced our predecessors in the administration of the criminal law to charge in the indictment that the accused was “ instigated by the devil,” and naturally it did not occur to either the counsel for the prisoner or the court that it was anything else than murder of the first degree, unless the prisoner was insane when the act was committed. The jury were, therefore, not in terms instructed that they might find the prisoner guilty of murder of the second degree; they were instructed, with reference to the facts of this case, what must be found to constitute murder at common law; that there are two degrees of murder; that there must be a wilful, deliberate and premeditated killing to render the prisoner guilty of murder of the first degree; and that they were to determine from the evidence whether it makes out a case of murder of the first degree or not; that all killing not murder of the first degree, if murder at all, is murder of the second degree, and that before they could convict of murder of the first degree they must be satisfied that the killing was wilful, deliberate and premeditated, with an explanation of the meaning of these terms.</p> <p>The distinction between what the court may and may not say bo the jury as to the degree of murder is stated in McMeen v. Com., 114 Pa. 800, where Mr. Justice Paxson, at page 305, delivering the opinion of the Court, said: “ The learned judge told the jury that murder by poison was murder of the first degree. In doing so he was merely repeating the act of assembly defining the offense. It is true, the jury have the power even in the case of murder by poison to convict of the lesser grade of crime. So they have the power in such a case to acquit altogether in the face of the clearest evidence. In either case it would be a disregard of their duty and of their oaths. If the learned judge had said to the jury, as in Rhodes v. Commonwealth, 48 Pa. 396, that they must convict of murder of the first degree or acquit altogether it would have been error. But he did not. He plainly told the jury what the law was, and then in the last paragraph of this charge said to them: If you find him guilty of murder you must also say in what degree. The charge of the learned judge upon this point was not so strong as in the latter case of Shaffner v. The Com., 72 Pa. 60; where the court instructed the jury in a case of murder by poison that ‘ if you are convinced that he is guilty of the crime it is murder in the first degree as declared by the act of assembly, and it is your duty to say so without regard to the consequences to the prisoner.’ This ruling was affirmed in this Court in a careful opinion by Mr. Justice Agnew, in which the previous case of Rhodes v. Com., and Lane v. Com., 59 Pa. 371, were considered. The distinction is between a proper statement of the law and a binding instruction. The latter is held to be error, though the case be never so clear.” We think the instructions given to the jury in the case before us were within this distinction.</p> <p>Another reason suggested why a new trial should be granted is that the court instructed the jury that it was difficult to see how the mental condition of the prisoner could reduce the grade of the offense ; and if they found him not of sound mind, so as to understand' the nature of the act he was committing, and that it was wrong he should be acquitted.</p> <p>This instruction was given with reference to the appeal of counsel to the jury to find the prisoner guilty of manslaughter only, in view of the testimony on the question of his sanity.</p> <p>We have not been referred to, nor have we been able to find, any case in Pennsylvania that decides that there is a grade of insanity that, while not sufficient to load to the acquittal of a prisoner charged with murder, is sufficient to lower the degree of the crime. There are cases deciding that there is such a grade of intoxication. And in Jones v. Com., 75 Pa. 403, language was used by Agnew, C. J., delivering the opinion of the court, at page 408, which might seem to give some color to the idea that in this respect insanity and drunkenness are alike, but both in law and in reason there is a manifest distinction between them. One is voluntary, the other involuntary; and as it has been said frequently if drunkenness were a defense, every intending murderer would drink in order to escape the consequences of his crime, and there never could be a conviction for homicide if drunkenness avoided responsibility. What is decided in Jones v. Com., supra, was, that intoxication is not an excuse for crime, but if it deprived the intellect of power to think and weigh the nature of the act, it may prevent the conviction of murder in the first degree; and the reference to insanity in the opinion was merely incidental. And in Nevling v. Com., 98 Pa. 322, the Court found it advisable to qualify Jones’s case, and to say that it “ was based upon the peculiar facts exhibited by the testimony, and was limited to the inferences which naturally arose from them; *’ the case being that the accused pleaded guilty and it became the duty of the court to determine the degree ; and he was given the benefit of the doubt whether under the facts he was in a condition of mind, not because of insanity, but of intoxication, to deliberate when the crime was committed.</p> <p>We have referred to but one case in which it has been held that there may be a grade of insanity that, while not sufficient to acquit, may reduce the degree of the crime: Andersen v. State, 43 Conn. 514; 21 Am. Rep. 669. But a consideration of the reasoning in this case will, we think, lead to the conclusion that it ought not to have much weight. The same view is tentatively presented in 1 Whart. & Still. Med. Jurisp. sec. 200, but no decisions are cited to sustain it. In United States v. Lee, 4 Mackey, 489, 54 Am. Rep. 293, it is held that there is no grade of insanity sufficient to acquit of murder, but not of manslaughter. Merrick, J., delivering the opinion of the court, said of a request for instructions: “ It rests upon the idea that there is a grade of insanity not sufficient to acquit the party of the crime of manslaughter, but yet sufficient to acquit him of the crime of murder. The law does not recognize any such distinction as that in the forms of insanity. The rule of law is very plain, that in order that the plea of insanity shall prevail there must have been that mental condition of the party which disabled him from distinguishing between right and wrong in respect to the act committed. Now, if the prisoner was so far capable of distinguishing between right and wrong as to be guilty of the crime of manslaughter, he surely was capable of distinguishing between right and wrong in respect of the crime of murder of the identical party. There can be no recognition of the doctrine that a man is incapable of distinguishing between right and wrong, so as to determine that the case is not a case of murder, and yet capable of distinguishing between right and wrong, so as to be guilty of manslaughter. There is no such doctrine and nothing in the books that favors such an idea.”</p> <p>In all the cases in our own state in which insanity has been pleaded, it. has been as a defense, and not in mitigation of the degree of guilt. The courts do not ask the jury to undertake the impossible task of discriminating between degrees of insanity so as to find a prisoner incapable of forming a deliberate and premeditated intent to kill, while he has still so much sanity that he is a person of sound memory and discretion, as he must be to be guilty of murder even in the second degree. If he is not a person of sound memory and discretion, if he cannot understand the nature of his acts and discern between right and wrong with relation thereto, he is entitled to be acquitted; if his memory is sound and he can so discern he is fully responsible.</p> <p>The doctrine that in extreme cases intoxication may lessen the grade of the crime is merely a slight relaxation of the severe but necessary rule, that drunkenness is no excuse for crime, because it is a voluntary condition, and therefore, if it were an excuse, crime in many cases could not be punished. And the same humane impulse inspires the doctrine, that insanity, if shown to exist, being involuntary, may be pleaded, not in mitigation, but in excuse.</p> <p>In conclusion we may say, that in any view of the case, it does not seem easy to understand how the prisoner could be prejudiced by an instruction to the jury that if insane he ought to be acquitted, instead of an instruction that he might be convicted of murder in the second degree, even if insane.</p> <p>Believing that no injustice was done the prisoner at the trial, and with the satisfaction of knowing that if there were it will be corrected in the court of last resort, the motion for a new trial is overruled, and the district attorney is permitted to move for judgment upon the verdict.</p> <p>On motion of the district attorney, defendant was sentenced to be hanged.</p> <p>Error assigned was the portion of the charge quoted above.</p> <p>The charge is in conflict with the law as laid down in the cases of Rhodes v. Com., 48 Pa. 396, Lane v. Com., 59 Pa. 371, Shaffner v. Com., 72 Pa. 60, and Act of March 31, 1860, P. L. 382, sec. 74.</p> <p>Where there is evidence of insanity admitted, as in this case, we think the jury should have the right to consider it in fixing the grade of the crime as well as for acquittal: 1 Wharton & Stillé’s Medical Jurisprudence, sec. 200; 1 Wharton’s Criminal Law (9th ed.), sec. 47; Jones v. Com., 75 Pa. 403; Andersen v. State, 43 Conn. 514; 21 Amer. Rep. 669.</p>

Appeal, No. 145, Jan. T., 1898, by David Starr, from decree of O. C. Schuylkill Co., March T., 1897, No. 18, overruling exceptions to adjudication. Exceptions to adjudication. Dunn, P. J., filed the following adjudication: From the evidence we find the following facts: The decedent died on September 6, 1888, having made his last will and testament, dated August 24, 1883, and duly probated on September 17, 1883, leaving his widow, Sarah Starr, to survive him, but no issue.

<p>Easements— Ways— Obstruction.</p> <p>Where one party has a right of way through land of another to a public road, the latter is not justified in closing it by the fact that there is another way to such road.</p> <p>Ways~Easement — Bights of purchaser at sale — Equity.</p> <p>Where a continuous and apparent servitude is imposed by an owner on one part of his land for the benefit of another, a purchaser at private or judicial sale takes subject to the servitude.</p> <p>Where the vendor of a tract of land laid out a road from such tract through other land belonging to him, to a public road, and fenced it on both sides, and such road remained an open and visible way for twenty years, a purchaser of the tract through which it lies takes subject to the easement.</p> <p>Where a right to a way is not doubtful, but is clearly shown, equity has jurisdiction to compel the keeping open of the way, before a decision on the question of the right to the easement is had on the law side of the court.</p> <p>On a bill m equity to restrain interference with a road, if the testimony is such that, if submitted to a jury, the only finding could be in favor of the existence of the road, a court of equity has jurisdiction to enter a decree forbidding any obstruction of the road. The law does not offer an adequate remedy.</p>

<p>Accumulations — Trusts and trustees — Act of April 18, 1858.</p> <p>Where a testator gives a portion of his estate to trustees to hold and invest and the income thereof to reinvest during the lifetime of his only child and to pay a portion of the income to such child, and after the death of the child to pay all of the estate in the hands of the trustee at that timo to the child or children of such child, the direction to accumulate is illegal and void under the Act of April 10, 1853, P. L. 503, and the entire income will go to testator’s child absolutely as his next of kin.</p> <p>The Act of April 18,1853, P. L. 503, relating to accumulations, does not apply to a ease where neither the persons who are to take the principal from which the income is to be accumulated nor the persons who are to take the accumulated income can be ascertained until the time for distribution designated by the testator. In such ease, the gifts are contingent, and the said accumulations go to the next of kin under the intestate act.</p>

Appeal, No. 47, Jan. T., 1899, by plaintiffs, from decree of C. P. Schuylkill Co., Oct. T., 1898, No. 162, dismissing bill in equity. Bill in equity for an injunction. From the record it appeared that Calvin W. Brower had been appointed warden of the Schuylkill county prison, and that Elizabeth Brower had been appointed matron of the same by the county commissioners.

Appeal, No. 46, Jan. T., 1899, by-defendant, from judgment of C. P. Schuylkill Co., March T., 1898, No. 475, on verdict for plaintiff. Assumpsit on a promissory note. The facts appear by the opinion of the trial court on the rule for judgment non obstante veredicto. Defendant’s points and the answers thereto were as follows: 1.

Appeal, No. 236, Jan. T., 1898, by plaintiff, from judgment of Superior Court, Nov. T., 1896, No. 182, affirming judgment of C. P. No. 2, Phila. Co., Dec. T., 1895, No. 1247, on case stated. Appeal from Superior Court. The case was reported in 7 Pa. Superior Ct. 112, where the facts are fully stated. Error assigned was in affirming the judgment of the com* mon pleas.

Appeal, No. 213, Jan. T., 1898, by defendant, from judgment of C. P. No. 3, Pliila. County, Dec. T., 1896, No. 131, on verdict for plaintiff. Trespass for personal injuries. Before McMichael, J. The facts appear by the opinion of the Supreme Court. Defendant’s point and the answer thereto among others were as follows: Under all the evidence your verdict must be for the defendant. Answer: Refused. [1] Verdict and judgment for plaintiff for $2,500. Defendant appealed.

<p>Appeal, No. 349, Jan. T., 1898, by-defendant, from judgment of O. and T. Montgomery Co., June T., 1898, No. 79, on verdict of guilty of murder of the first degree.</p> <p>Indictment for murder.</p> <p>The facts appear by the opinion of the Supreme Court, and by the opinion of Weand, J., on motion in arrest of judgment and for a new trial, which opinion is as follows:</p> <p>After a trial lasting twelve days the defendant was found guilty of murder of the first degree, and now moves in arrest of judgment and for a new trial. As the motion in arrest of judgment is based upon the same reasons which, inter alia, are also urged as reasons for a new trial the motions will be considered together.</p> <p>The unlawful killing of Emma Kaiser was proved beyond dispute. The evidence against the defendant was both direct and circumstantial. The direct testimony which proved his presence at the time and place of killing was that of Benjamin Hughes who identified him as being in the vicinity of the place of murder; of Elizabeth DeKalb to the same effect, and to whom Clemmer admitted his guilt and gave the murdered woman’s watch to be thrown away, and of Charles O. Kaiser, Jr., the murdered woman’s husband, who swore that Clemmer fired the fatal shot. Kaiser had been previously tried, convicted and sentenced for complicity in the crime. The circumstantial evidence consisted in evidence of Clemmer hiring a horse and driving in the direction of the murder with Elizabeth DeKalb, the identification of the horse near the place; the finding of Mrs. Kaiser’s watch at Pottsville where Elizabeth DeKalb testified she dropped it at Clemmer’s request; letters from Clemmer to Elizabeth DeKalb urging her not to testify and he would save her and not to turn him down, admissions and expressions of Clemmer to various persons showing knowledge of the murder, etc.; his presence at Norristown after Kaiser’s arrest and his efforts to procure counsel for him; his flight from the state and change of name, with various other circumstances showing guilt.</p> <p>If Elizabeth DeKalb’s testimony was to be believed there could be no possible doubt of the prisoner’s guilt. She was corroborated in a material part by the evidence of Benjamin Hughes whose testimony if believed completely destroyed the prisoner’s defense. Thirty-eight reasons are assigned for a new trial. They refer to the competency of McDowell as a jury commissioner, to the filling of the jury wheel, to the competency of jurors, the competency of witnesses,"the admission of testimony and the charge of the court, detached sentences of which are assigned and which do not give full weight to the charge as a whole. During the trial every ruling possible was made in defendant’s favor, and the jury were told what was necessary to convict. The evidence was overwhelmingly against the prisoner, but we have gone all over the reasons for a new trial carefully in order that no injustice might be done him.</p> <p>Four grounds are assigned in support of the first reason :</p> <p>1. The claim is made that John H. McDowell, one of the jury commissioners who assisted in filling the jury wheel and drawing the jury therefrom for June term, 1898, was not a legally elected jury commissioner and that thé array of jurors should for that reason be quashed. McDowell was elected in 1894 and re-elected in 1897. He was elected only twice, and consequently was not “re-elected more than once in any period of six years.” The prohibition is only against a re-election more than once in said period. If the legislature had intended that a jury commissioner should serve only one term in six years the most appropriate language would have been “not elected more than once,” etc. Re-elected is a term that can bear but one meaning, i. e., to elect again — that is he shall not be again elected twice in six years. Webster’s Dictionary defines re-elect, to elect again. The Century Dictionary defines it, re-elect, to elect again. Re-election —election a second time for the same office, etc. When we say that A has been re-elected twice we mean that he has been elected three times — the word re-election referring to his second election. In speaking of B as having served as recorder for eighteen years we say that he has been re-elected five times. The period from which re-election is computed in all eases commences from the end of the first election. In this case therefore the six years during which John H. McDowell could not be re-elected dates from the expiration of his first term and he has been re-elected only once.</p> <p>But even if we are in error in our construction of the act the right to this office cannot thus be attacked collaterally. McDowell is a de facto jury commissioner and before the office can be declared vacant or his election declared illegal he is entitled to a hearing and the remedy is by quo warranto at the instance of the commonwealth. As a jury commissioner de facto as against all parties but the commonwealth he is a jury commissioner de jure: Campbell v. Com., 96 Pa. 344; Shartzer v. School District, 90 Pa. 192; Gregg Township v. Jamison, 66 Pa. 468; Com. v. Yalsalka, 181 Pa. 17.</p> <p>2. The array of jurors for March term, 1898, was quashed by the court because of an irregularity in the method of selection and not because of any objection to the jurors themselves. At the same time the court directed that the names remaining in the jury wheel be taken therefrom and that 800 names be placed therein to serve for the balance of the current year. In pursuance of this order the names were taken from the wheel and de posited in a sealed envelope which remained unopened in the custody of the clerk of the jury commissioners until brought into court during this trial. The judge and two jury commissioners then refilled the wheel from names selected from the body of the county, not using the paper’s on which the names of those taken from the wheel had been written. It happened that amongst the names thus deposited were a number who had been placed therein at the filling of the wheel in January,'1898, but none of whom except one had served as a juror during 1898. The first filling of the wheel was on January 12, 1898, and the second on April 20 and 21,1898. The first term of court in 1898 was the March term, beginning first Monday of March; the second term was June term, beginning first Monday in June.</p> <p>It is now contended that, because the names of some of those who had been taken from the wheel had again been selected and deposited, the whole selection and filling was illegal. It was not' pretended or shown, but on the contrary it was disproved, that the names taken from the wheel were again bodily put back or that the ballots were again used. On the contrary each commissioner and the judge came with new lists made up without reference to those who had been selected in January. It was in every sense a new selection from the body of the county, even if some names were the same as had been before deposited. The case of Kell et al. v. Brillinger, 84 Pa. 276, did not present the same facts for in that case after the names had been taken from the wheel they were divided amongst the commissioners and again redeposited. That was not a new selection. In the present case 800 names were again prepared irrespective of those that had been taken out and were deposited alternately as required by law. The persons whose names were taken from the wheel by direction of the court were not ineligible. The commissioners were required to make a new selection only and not to adopt the first one. If they had decided that the names taken from the wheel could not again be used in a new selection it would not have been from the body of the county, and if such is the law, in some counties with a sparse population if the array should be quashed more than once in any one year, there might not be enough persons subject to jury duty. In Com. v. Baranowski, 6 Pa. C. C. Rep. 157, Judge Pershing in quashing an array and directing a refilling ordered that the names of those men in the jury wheel should be excluded in the new selection, but afterward concluded that such action was in contravention of the act which requires jurors to be selected from the whole qualified electors of the county, and he revoked his former order. This reason is therefore overruled.</p> <p>8. When the jury commissioners and judge met to take out the names from the wheel and again fill it, the wheel was produced and the sheriff was obliged to be present to unlock it. The names were then taken out by the sheriff or commissioners, but certainly in the presence of the judge and commissioners, and under their supervision and direction. We do not see any irregularity or impropriety in this, even if we admit that the sheriff removed the names. The essential act was to empty the wheel. This was done by direction of and in presence of the jury commissioners, and by no possibility could this defendant be injured by such action.</p> <p>4. This reason is partly disposed of by our ruling on the second reason. John P. Jones had served as a petit juror at March sessions, and by mistake his name was again placed in the wheel at the refilling. He had been drawn and served as a juror at March sessions before the array was quashed, but was not drawn for the June term at which this case was tried. The requisite number of jurors were drawn and appeared at tbe June term and defendant, therefore, had no cause of complaint, for he was not injured in his challenges. The act of assembly forbids the return to the wheel of the name of any person who may have served as a juror during the year in which such service shall be rendered, and provides a penalty on the officer who shall intentionally do so, but this is a matter of which the defendant cannot complain as it did not curtail his challenges. A defendant has no right to any particular jurors, nor can he complain that a less number of qualified persons were summoned: Buchanan v. Com., 5 Central Rep. 738 : Holland v. Com., 82 Pa. 306; Foust v. Com., 33 Pa. 338. If this reason should sustain a challenge to the array, then the placing of the name of any one unqualified person in the jury wheel would always be a ground for challenge. Considering the difficulty of selecting 1,000 names, as is now done in Montgomery county at the beginning of each year, it would be almost impossible not occasionally to make a mistake arising from change of residence, death, noncitizenship and other causes. This view of the law would make it absurd, and we cannot sustain the view of defendant’s counsel.</p> <p>Five grounds are assigned in support of the second reason tor a new trial:</p> <p>First. This ground is not sustained by the fact and the record. The second bill of indictment was sent before the grand jury by leave of court, and the first bill was quashed before commencement of the trial on the second bill, the reason assigned being that the first bill was found by a grand jury composed of the array which had been quashed. In Smith v. Com., 104 Pa. 339, it was ruled that the pendency of an indictment is not ground for a plea in abatement to a second indictment, charging substantially the same offense.</p> <p>The second, third, fourth and fifth grounds under second reason are precisely the same as those advanced under the first reason. The same reasoning applies, and the second reason is overruled.</p> <p>The third, fourth, fifth, sixth, seventh and eighth reasons are based upon the qualifications of the jurors named therein upon the ground that they were of those deposited in the jury wheel in January, and again deposited in April, none of them having served during the year. We have already disposed of this matter in ruling under the first and second reasons.</p> <p>Ninth. The offer complained of in this reason was to prove a matter having no possible relation to the case on trial. The act offered to be proved was something which, if true, occurred long after the murder, and had no possible connection with it. It was an attempt to contradict a witness on an immaterial and foreign matter brought out by the defense. If a witness be cross-examined as to a matter irrelevant to the issue, the party cannot discredit him by proving that he has testified falsely in relation thereto; a party who cross-examines a witness as to a collateral fact is bound by his answers : Griffith v. Eshelman, 4 Watts, 51; Wright v. Cumpsty, 41 Pa. 102; Hildeburm v. Curran, 65 Pa. 59.</p> <p>Tenth. The defendant had written several letters to the witness DeKalb cautioning her to keep silent and he would prove her innocence. These ietters showed that defendant desired the witness not to testify and contained other matter which could be construed into a knowledge of the crime. They were clearly evidence against the defendant and were admissible for various reasons. In one of them he said he was in great danger, and they all referred to her arrest in connection with the murder and were of such a character throughout as to show his complicity in the crime charged against him and in fact were admissions of guilt.</p> <p>Eleventh. When Charles O. Kaiser, Jr., was called as a witness he was objected to as incompetent upon the ground that he had been found guilty of murder in the first degree and sentenced to be hanged. Kaiser was a willing witness in the sense that he was willing to testify, although it would implicate himself. He was allowed to testify, and this is assigned as error. Whatever may have been the status of this witness before the passage of the act of 1887 we think that under said act he was competent. The object of the act itself and those which preceded it relating to the competency of witnesses was to render all persons competent except a certain class designated in the act of 1887. Before the passage of the enabling acts a defendant in a criminal proceeding amounting to a felony was incompetent as a witness. This was not by statute but a common-law disqualification — our criminal laws did not refer to the subject and in Com. v. Shaver, 8 W. & S. 338, Judge Kennedy said, “ It has unquestionably been clearly settled that the conviction of a person of an infamous crime, renders him incompetent to be a witness thereafter,” and the offenses which disqualify a person to give evidence, when convicted of tlxe same, are treason, felony and “ every species of the eximen falsi — such as forgery, perjury,” etc. In Schuylkill Co. v. Copley, 67 Pa. 386, Judge Agnew also says, “Infamous crimes are treason, felony, and every species of the crimen falsi, such as forgery, perjury,” etc. It will therefore be seen that the disqualification followed any conviction of felony whether murder, robbery, burglary and also perjury. When the legislature passed the act of 1887, it had knowledge that a conviction for certain offenses disqualified the person convicted as a witness. In order to distinguish between offenses that would hereafter disqualify and those that would not, the act specifies those in which persons are not competent and all other persons shall be fully competent. As perjury was an infamous crime, disqualifying as a witness, its retention in the act of 1887 as the one disqualification clearly evidences the intention to remove the disqualification in all other cases of conviction. At common law murder was no more an infamous crime than treason, felony or forgery. “ It is the infamy of the crime, and not the nature or mode of the punishment, that destroys competency: ” Schuylkill Co. v. Copley, 67 Pa. 386; Com. v. Shaver, 3 W. & S. 338. In Com. v. Barry, 8 Pa. C. C. R. 216, the defendant was indicted for an assault with an intent to kill, and offered himself as a witness. The record of his conviction and sentence for manslaughter was then offered in evidence for the purpose of impeaching his credit as a witness. In ruling on the subject Judge Arnold said: “ Under the old law the prisoner would not have been compelled to testify in any case. His conviction and sentence for a felony would have excluded him as an infamous person, etc. The objection to competency having been removed, by the development of the common law as well as by statute, the previous conviction and sentence of a witness may now be shown to affect his credibility.” The object of all evidence is to develop the truth — under the old law the parties most cognizant of the fact were excluded, but time and experience has demonstrated that the best way to elicit the truth is to allow all persons to testify (except in enumerated cases), and allow the jury to pass upon the credibility of the witness. If defendant’s contention is correct then, if Kaiser had been willing to admit his own guilt and Clemmer’s innocence, he would have been excluded. The result of such ruling shows its impropriety; and if a conviction of murder disqualifies so also could a conviction for larceny, robbery, forgery, or any felony. Such lias not been the view taken by the courts since the passage of the act of 1887, for at least in this court convicted felons have been brought into court to testify without objection. It is strenuously urged that in law Kaiser was civilly dead because of his conviction and sentence. This doctrine has no place in the jurisprudence of Penn' sylvania. In 3 Am. & Eng. Ency. of Law (1st ed.), p. 27.", it is thus defined: Civiliter mortuis — civilly dead. The legal punition or extinction of a person’s rights and capacities among his fellow members of society. — Abbott’s Law Diet. A man is said to be civilly dead when he has been attainted of treason or felony, etc. He must be attainted before he is incompetent as a witness. A conviction of a felony without attainder does not destroy the competency of a witness : Skinner v. Perot, 1 Ash. 57. In Pennsylvania there can be no attainder by legislation, for by the constitution it is expressly provided, sec. 18, art. 1, Declaration of Rights, “ No person shall be attainted of treason or felony by the legislature.” By sec. 10, art. 1, Constitution of the United States, it is provided that “No state shall pass any bill of attainder.” If there is an attaint it must therefore follow from the conviction. As the act of 1887 prescribed the qualification of witnesses, it removed the disqualification imposed by the common law, and thereafter all persons are witnesses except those convicted of perjury. In England and most of the United States the disqualification of infamy is removed by statute, leaving the fact of conviction to be proved for the consideration of the jury upon the sole question of credibility. Such is the present state of the law in California, Colorado, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, Vermont, Virginia and Wisconsin: 10 Am. & Eng. Ency. of Law (1st ed.), p. 612. The doctrine is odious and not in harmony with the more advanced humane ideas of modern society. We no longer treat criminals with the rigor of olden times but as human beings subject to punishment, but without the unreasonable consequences which followed conviction in the earlier ages. The basis of the exclusion of an infamous witness Avas the unreliability of his testimony, but that a man on the threshold of the grave, Avith every inducement then to speak the truth, should be disqualified, although the jury might believe him truthful, because he has been comdcted of a crime, has not been declared to be the law by any court in this state, and we are unwilling to adopt such a doctrine, except in the cases especially designated by the legislature.</p> <p>Twelfth. Certain shoe marks Avere discovered on the ground Avhere it was alleged the murder had been committed. The commonwealth AA'as endeavoring to show the condition of the ground as illustrating how the murder had been committed. It was claimed that Clemmer and Kaiser had committed the murder and, as bearing on the subject, Kaiser’s shoes having a peculiar patch on the soles, were offered in evidence and compared with the marks on the ground. Kaiser identified the shoes as those he had on that night, and the marks on the ground compared with those on the shoes. It was part of the res geste, and it Avas the duty of the commonAvealth in the interest of the defendant to show the fact. The defendant contended that he was not present; and the testimony therefore as to Kaiser’s being out of the wagon was in his interest. In any view however the evidence was competent and should not have been withheld by the commonwealth: Hollinshead v. Allen, 17 Pa. 288; Com. T. Pope, 103 Mass. 440.</p> <p>Thirteenth, fourteenth and fifteenth. These reasons relate to the policies of insurance on the life of the murdered woman, and to recover which it was alleged the murder was committed. The commonwealth was endeavoring to prove a motive for the crime. Clemmer had told Elizabeth DeKalb that their object was to obtain this insurance money. When the commonwealth alleged that Clemmer and Kaiser had conspired to insure Mrs. Kaiser and then kill her it was certainly competent to prove the fact of insurance as bearing on motive.</p> <p>Sixteenth. This evidence was admitted to contradict the prisoner and to prove his connection with Elizabeth DeKalb at a certain place in reference to a wagon alleged to have been stolen by her and which wagon was the one driven by Kaiser on the night of the murder.</p> <p>Seventeenth, eighteenth, nineteenth and twentieth referred to the policies of insurance, the admissibility of which testimony has been passed upon in our ruling.</p> <p>Twenty-first. This testimony related to the presence of the prisoner after the murder and the knowledge of his employer as to his whereabouts. It was competent for that purpose, but if incompetent worked no harm to defendant.</p> <p>Twenty-second. The evidence of Mr. Brunner was to contradict the defendant as to his presence in Norristown on the night of the murder and his actions on that occasion. It was important as testing his credibility and his desire to shield Kaiser. Mr. Brunner was not counsel for Clemmer.</p> <p>Twenty-third. Frank S. Mancill had been a witness in the ease of Com. v. Kaiser-and had testified as to the time he had arrived at the place of Mr. Dettra on the night of the murder. On the trial he fixed a slightly different time, and the commonwealth was allowed to call his attention to the discrepancy by asking him as to his testimony in the Kaiser case. We see no error in this.</p> <p>Twenty-fourth. The testimony of Elizabeth DeKalb was that the murder was to be committed as if done by highway robbers. That the newspapers stated this theory in one issue on the morning after the murder and the next day stated that the theory was doubted. That Clemmer had read the papers next day and became alarmed and made preparations for flight. When arrested in Newark he at once produced to the officer clippings from the record relating to the murder. This evidence bore strongly on his subsequent actions and flight and was corroborative of Elizabeth DeKalb’s statement of what Clemmer had told her of the murder — its plan and how it was to be made to appear as a robbery.</p> <p>Twenty-fifth. Mrs. Hazzard had seen Kaiser drive past her house in the direction of the scene of the murder followed by another carriage which she described. The object and effect of her testimony was to show that Clemmer had driven past her house after Kaiser — other testimony showing the kind of carriage he had taken.</p> <p>Twenty-sixth. Criticism is made of the expression used by the court, “Yet by these letters Clemmer advises her not to go upon the stand, to stand mute, not to give him away.” We were calling the attention of the jury to the effect of the letters and not to the exact language. The letters were read to the jury who could not mistake the words and meaning used in them. In one of the letters he asked her “ not to turn him down.”</p> <p>In Mann v. Cowan, 8 Pa. Superior Ct. 30, it is said, “A trial judge is not held to a literal and verbatim statement of the testimony of a witness. It is only necessary that he should give correctly the substance of the testimony. If a serious mistake in quoting testimony is made by the judge, counsel should call his attention to it immediately after the charge.” In ordinary parlance “ turning him down ” and “ giving him away ” have the same significance.</p> <p>Twenty-seventh. In instructing the jury as to their duty we called their attention to the testimony of certain witnesses as to the time mentioned by them and said: “ Here is where probably you may have some trouble in remembering the testimony of the different witnesses, but because you have this difficulty would be no reason why you should not arrive at a correct conclusion. It is your duty to examine all this testimony and reconcile it in the best manner possible. You are only required to reconcile that which is material to the case and which is necessary to point unerringly to the guilt of this defendant, and when you have done that to the best of your knowledge and ability, then you have discharged your duty under the law.” The jury are here in effect told that immaterial testimony, which did not unerringly connect defendant with the murder need not prevent a conclusion; in other words, to exclude that which was irrelevant or not bearing on the guilt or innocence of the defendant and. which did not show his guilt unerringly. Why should the jury reconcile testimony not material or which did not point to his.guilt conclusively ? It was simply saying to the jury, immaterial testimony need not be considered, nor any testimony that does not point unerringly to Iris guilt. It was greatly in favor of defendant, for it confined their consideration alone to that which was necessary to convict. If the evidence claimed to establish guilt was contradictory it must be reconciled before there could be a conviction. If it did not have that tendency it need not be reconciled.</p> <p>Numbers twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three and thirty-four refer to answers to points and to the charge. After reviewing our answers to points and the charge we see no error on the matters here complained of.</p> <p>Thirty-fifth. Elizabeth DeKalb testified that Clemmer had told her of the murder on the same night; that she assisted in burning his bloody cuffs and washing his bloody clothes; that he gave her Mrs. Kaiser’s watch which she took to Bethlehem and Pottsville, and other facts which showed that she was at least an accessory after tide fact. It was necessary to say that she was implicated in order to explain the reason why she should be corroborated and the effect of her testimony as an accomplice, and besides the instruction was given in answer to defendant’s thirteenth request for instruction.</p> <p>Thirty-sixth. In tins instruction we simply called the attention of the jury to the watch and pistol as independent facts in the ease without passing upon their effect, leaving that to the jury. The place where the pistol was found and the finding of the watch in Pottsville were significant' facts to be considered by the jury in determining how and by whom the murder was committed. Elizabeth DeKalb’s presence in Pottsville and the finding of the watch there were facts which taken in connection with the other testimony were important.</p> <p>Thirty-seventh and thirty-eighth. Complaint is made that the court did not explain the prisoner’s ease as fully and explicitly as that of the commonwealth. We endeavored to give the prisoner the benefit of every doubt and repeatedly told the jury of their duty to recall all the testimony and not rely alone upon that referred to by the court. It would be almost impossible without reading the entire notes for the court to refer to every circumstance. We tried to recall the prominent points for and against the prisoner, and if the preponderance was in favor of the commonwealth it was because there were so few in favor of the prisoner. His defense consisted of his own unsupported assertion that he was not at the scene of the murder and there was nothing for the court to dilate upon. Considering the length of time taken in the trial of this case, the volume of testimony and the number of witnesses, it is of course easy to say that all matters were not recalled to the jury. This is not unusual in trials of this character, but unless serious omissions are made or unless the court unfairly presents the ease against the prisoner it should not be good cause for a new trial. The fact that thirty-eight errors have been assigned shows how diligently counsel have sought for flaws, but of this we do not complain.</p> <p>And now, October 4,1898, the motions in arrest of judgment and for a new trial are both overruled, and on motion of the district attorney the prisoner will be brought up for sentence.</p> <p>Verdict of guilty of murder of the first degree on which sentence was passed. The prisoner appealed.</p> <p>—In Montgomery county and in every other county of the state, as far as counsel have been able to ascertain, until the election of McDowell in 1897, it was always considered that a jury commissioner was ineligible to succeed himself: Taylor v. Delaney, 2 Caines’s Cas. (N. Y.) 151; Com. v. Grant, 2 Woodward, 879.</p> <p>It is contended that the redepositing of 200 names in the jury wheel of said county taken from those whose names had been removed by order of the court is contrary to the provisions of the Act of March'18, 1874, P. L. 46: Kell v. Brillinger, 84 Pa. 276; Brewerv. Inhabitants of Tyringham, 14 Pick. 196; Swan’s Case, 16 Mass. 220.</p> <p>The sending of the bill of indictment upon which the defendant was convicted before the grand jury while the bill found at March term, 1898, was pending, was error.</p> <p>The fact of infamy was not the only reason why a. criminal sentenced to death was incompetent to testify at common law. That furnished the only reason why a criminal sentenced for a term of years was incompetent; but in the case of a sentence of death there was an additional reason for holding the convict incompetent. Upon a capital conviction of felony, the defender was civilly dead as far as his present rights were ascertained: Crane v. Reeder, 21 Mich. 24; Avery v. Everett, 110 N. Y. 317 ; Reg. v. Webb, 11 Cox’s Crim. Cas. 133; St. Louis, I. N. &. L. Ry. Co. v. Harper, 6 S. W. Rep. 720; Foster v. State, 45 Ark. 328; State v. Franks, 28 S. E. Rep. 908; Davis v. State, 38 Md. 15; The Queen v. Payne, L. R. 1 Crown Cases Reserved, 349; Shay v. Com., 36 Pa. 305; Staup v. Com., 74 Pa. 458.</p> <p>for the commonwealth, were not heard, but argued in their printed brief-: Where one comes to office by color of title his acts cannot be questioned by the public, and his acts are good as to strangers: Cornish v. Young, 1 Ash. 153 ; Riddle v. Bedford County, 7 S. & R. 387; Keyser v. McKissan, 2 Rawle, 139; McGargell v. Hazleton Coal Co., 4 W. & S. 424; Clark v. Com., 29 Pa. 129; Gregg Twp. v. Jamison, 55 Pa. 468; Shartzer v. School Dist., 90 Pa. 192; Campbell v. Com., 96 Pa. 344; King v. Phila., 154 Pa. 160; Com. v. Valsalka, 181 Pa. 17.</p> <p>. The filling of the wheel was in every sense a new selection from the body of the county, even if some names were the same as had been before deposited: Kell v. Brillinger, 84 Pa. 276; Com. v. Baranowski, 6 Pa. C. C. R. 157; Com. v. Lippard, 6 S. & R. 395; Foust v. Com., 33 Pa. 338; Buchanan v. Com., 5 Cent. Rep. 733; Rolland v. Com., 82 Pa. 306.</p> <p>The pendency of an indictment is not ground for a plea in abatement to a second indictment charging substantially the same offence: Rosenberger v. Com., 118 Pa. 77; Wharton's Crim. Pleading & Practice, sec. 390.</p> <p>Charles O. Kaiser, Jr., was a competent witness for the commonwealth : Wharton’s Crim. Evidence, sec. 363; Meredith v. Thomas, 4 Kulp, 505; Com. v. Barry, 8 Pa. C. C. 11. 216; Com. v. Shaver, 3 W. & S. 338; Schuylkill Co. v. Copley, 67 Pa. 386; Bickel v. Fasig, 33 Pa. 463; Com. v. Minor, 89 Ky. 555; Comhs v. Com., 25 S. W. Rep. 590; Com. v. Murphy, 3 Clark, 290; Skinner v. Perot, 1 Ash. 57; Steel v. Young, 4 Watts, 459; Willingham v. King, 23 Fla. 478; Dade Coal Co. v. Haslett, 83 Ga. 549 ; Werner v. State, 44 Ark. 122.</p> <p>On the trial of a capital offense evidence of motive is always admissible: Carroll v. Com., 84 Pa. 107; Campbell v. Com., 84 Pa. 187 ; Hester v. Com., 85 Pa. 139; McManus v. Com., 91 Pa. 57; Sayres v. Com., 88 Pa. 291; Erb v. Com., 98 Pa. 347.</p>

<p>Appeal, No. 126, Jan. Term, 1898, by defendant, from judgment of C. P. No. 4, Phila. County, Dec. Term, 1895, No. 816, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Willson, J.</p> <p>At the trial it appeared that on Sunday morning, July 28, 1895, plaintiff, while riding a horse, was injured in the manner described in the opinion of the Supreme Court.</p> <p>Defendant’s point and the answer thereto were as follows :</p> <p>Upon all the evidence in this case the verdict must be for the defendant. Answer: Refused.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Error, assigned was above instruction, quoting it.</p> <p>To render the defendant liable in this case it must appear by the evidence that the negligence, if any, of the defendant, must have been the sole efficient cause of the injury, and if the jury find from the evidence that this accident to the plaintiff was caused by his uncontrollable and runaway horse, or from this cause concurring with the defendant’s negligence, then the verdict must be for the defendant: Schaeffer v. Jackson Twp. 150 Pa. 145; Chartiers Twp. v. Phillips, 122 Pa. 601; Willis v. Armstrong County, 183 Pa. 184; Gillmore v. Federal St., etc., Pass. Ry. Co., 153 Pa. 31; Schnur v. Citizens’ Traction Co., 153 Pa. 29.</p> <p>One is not chargeable with negligence if there is not want of time to form a judgment or to act in the most judicious manner: Hestonville, etc., R. R. Co. v. Kelley, 102 Pa. 115; Brown v. French, 104 Pa. 604; Sandford v. Hestonville, etc., R. R. Co., 136 Pa. 84; Sekerak v. Jutte, 153 Pa. 117; Floyd v. Phila. & Reading R. R. Co., 162 Pa. 29; Donahue v. Kelly, 181 Pa. 93; McManigal v. South Side Pass. Ry. Co., 181 Pa. 358.</p> <p>Plaintiff was not guilty of contributory negligence: Gillmore v. Federal St., etc., Pass. Ry. Co., 153 Pa. 31; Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Omslaer v. Pittsburg, etc., Traction Co., 168 Pa. 519.</p> <p>The motorman of the car of the defendant was guilty of negligence : Yoders v. Amwell Twp., 172 Pa. 447; Schnur v. Citizens’ Traction Co., 153 Pa. 29; Citizens’ Pass. Ry. Co. v. Foxley, 107 Pa. 537; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Aiken v. Penna. R. Co., 130 Pa. 380.</p>

Appeal, No. 138, Jan. T., 1898, by-plaintiffs, from decree of C. P. No. 3, Phila. Co., March T., 1896, No. 1266, on bill in equity. Bill in equity to establish a resulting trust. Before Fenlet-TER, P. J. The facts appear by the opinion of the Supreme Court.

<p>Receivers — Corporations—Rights of creditors.</p> <p>Receivers of private corporations have no authority to interfere with the legal rights of creditors.</p> <p>Receivers — Corporations—Landlord and tenant — Distress—Receiver's sale —Lien on fund.</p> <p>Where a receiver of a private corporation goes into possession of real estate leased by the corporation, and the goods upon the premises arc subsequently sold by the receiver under an order of court, the landlord has a lien on the fund raised by the sale for the rent which had accrued under the receivership. In such a case the fund should not be reduced by any part of the expense of the receiver’s commissions or counsel fee, although the landlord may be charged with part of the cost of an audit, if an audit was necessary to adjudicate conflicting claims.</p> <p>Where a receiver of a private corporation enters into possession of premises leased by the company, and collects rent from a subtenant, the landlord should, in equity, receive the entire amount so collected; but where the receiver mingles it with the general fund which he used in conducting the business, and the landlord takes no steps to have the court direct such money set apart in payment of the rent, and it becomes impossible to identify it, the landlord will not be entitled to priority for such rental in the distribution of the fund raised by the receiver’s sale of the property of the insolvent company.</p>

<p>Appeal, No. 292, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 718, for defendant, non obstante veredicto.</p> <p>Ejectment for land in the Twenty-seventh ward of the city of Philadelphia.</p> <p>At the trial the court instructed the jury as follows:</p> <p>Upon the writings in evidence, which are undisputed, the question whether the interest of James G. Magee under the declaration of trust by William H. Horn is realty or personalty is reserved, and a verdict directed for the plaintiff, subject to a, just proportion of the amount due the trustees.</p> <p>Subsequently the court in the following opinion by Arnold, P. J., directed judgment for defendant, non obstante veredicto :</p> <p>The holders of several mortgages of a large tract of land which were overdue, and on which default had been made in the payment of interest, agreed among themselves to appoint four trustees to carry into effect their desire to realize upon the mortgages, and to that end did irrevocably give them full and absolute power as trustees without reference to the owners of the mortgages (1) to become the assignees of their interest in the mortgages, (2) to foreclose the mortgages, and (3) if at the sheriff’s sale the real estate should bring a price satisfactory to three of the four trustees, to let the property go to the bidder, but (4) if the sum bid was not satisfactory, the trustees were to purchase the real estate, hold the same, raise by temporary loans such money as might be necessary to purchase an outstanding interest of one sixteenth held by another person, and the costs, fees, city improvements, taxes and other legal charges; to raise by mortgage or other incumbrance on the real estate all moneys necessary to pay off the aforesaid temporary loans and pay the taxes, city improvements and other legal charges that might thereafter become due on the real estate, and thereafter to sell the real estate at private or public sale. The extreme length of time fixed for a public sale was twenty-one months, but it was provided that the offer obtained for the same at that time should be satisfactory to at least one of the trustees. Upon any sale, the money less legitimate expenses should be divided among the parties according to their respective interests. This agreement was not recorded. Suit was brought upon the mortgages, the real estate was sold at sheriff’s sale on November 5,1894, and bought by the trustees, the sheriff’s deed being made to the defendant, who is one of the four trustees. He executed a deed of trust in accordance with the agreement above mentioned, which was not recorded. In September, 1895, the plaintiff, who was a judgment creditor of James G. Magee, one of the parties who held an interest in the mortgages, and also under the declaration of trust, purchased the interest of his debtor in said property (said to be seventeen two hundred fifty-sixths) at sheriff’s sale, where it was sold as if it were real estate, and brought this action of ejectment to recover said interest as real estate. At the trial the trustee, the defendant in tills action, testified that he would accept $150,000 for the property, and that the incumbrances against it amount to something over $20,000. He also testified that he had tried to sell the property at public sale, and the highest amount bid was inside of $100,000, that he has tried to sell the property, and does not think it a good time to push it now. A verdict was directed for the plaintiff, subject to a just proportion of the amount due the trustees, reserving the question whether the interest of James G. Magee, under the declaration of trust, is realty or personalty.</p> <p>Upon due consideration we are of the opinion that the interest of James G. Magee is personalty and not real estate. There are many reasons for this. It is a share in the proceeds of the land when sold and not an interest in the land itself. There is an interest and right of the other parties to the agreement to have it carried out. Mutuality is a sufficient consideration for the agreement, which, by its terms, was made irrevocable. The parties desire money and not land. Their interests in the beginning were money interests secured by mortgages, which are personal property, and they mutually agreed that their interests should so continue until the mortgages could be converted into money. The trustees have an interest for advances which is superior to the rights of any of the parties, and they are entitled to be paid before division of the proceeds is made. If any part of the property should be taken out of the trustees’ hands without paying the incumbrances, they would be deprived of the security given by the agreement. While the case is not exactly a partnership, yet it is akin to it, and some of the principles of partnership law may be applied to it. Real estate of a partnership is personalty as between the partners and their creditors so long as the partnership continues and there are creditors to be paid, although in conveying it the forms required for conveying real estate must be followed. One partner cannot convey the firm interest in it. It is true that a man cannot by a mere declaration convert his land into personalty so as to defeat mortgages, judgments and other incumbrances, and change the course of distribution in case of intestacy; but if a trust is created, either by deed or will, with an absolute direction to sell and distribute the proceeds among creditors or other persons, equity considers that as actually done which has been directed to be done, in order to accomplish the lawful intent of the grantor or testator: Foster’s Appeal, 7-4 Pa. 891; Du Bree v. Albert, 100 Pa. 483; Leaf’s Appeal, 105 Pa. 505. In Kramer v. Arthurs, 7 Pa. 165, it was decided that a joint stock company to deal in land is essentially a partnership, and land purchased by it as an article of trade, is not subject to judgment and execution at the suit of a separate creditor. The interest of a partner is not the estate of a tenant in common in the lands, but a resulting interest in the proceeds. It is not bound by a judgment for his separate debts. Kramer v. Arthurs and Du Bree v. Albert were actions of ejectment for interests in partnership real estate. The case of Hunter v. Anderson, 152 Pa. 386, is very much like that before us. Their creditors joined in appointing a trustee to buy in a debtor’s property and sell it for the benefit of the creditors as early as possible, by public or private sale, and it was held that the interest of the creditors was personalty and not realty.</p> <p>The remedy of a creditor of one of the parties entitled to the proceeds is by attachment sur judgment.</p> <p>Judgment for defendant on the point reserved.</p> <p>Error assigned was in entering judgment for defendant on the point reserved.</p> <p>The interest of James G. Magee was realty and not personalty.</p> <p>Whenever actual sale is necessary to make conversion none takes place until such sale: Peterson’s App., 88 Pa. 397; Dray-ton’s App., 61 Pa. 172; Miller’s App., 60 Pa. 404; Nagle’s App., 13 Pa. 260; Stoner v. Zimmerman, 21 Pa. 394; Anewalt’s App., 42 Pá. 414; Brook v. Badley, L. R. 3 Chan. Appeal Cases, 672; Foster’s App., 74 Pa. 391.</p> <p>The deed worked a conversion: Fletcher v. Ashburner, 1 White & Tudor’s Leading Cases in Eq. 1118; Allison v. Wilson, 13 S. & R. 380; Foster’s App., 74 Pa. 391; Jones v. Caldwell, 97 Pa. 42; Evans’s App., 63 Pa, 183 ; Hunter v. Anderson, 152 Pa. 386.</p>

<p>Contract — Building inspection — Covenants.</p> <p>Where the owner agrees by a writing duly acknowledged and recorded to convey land, and to lend money to the grantee to aid him in building houses upon a certain number of lots into which the land is to be divided, the agreement providing that the houses shall be “ built ten feet back from the line of the street,” and there being no covenant that thereafter houses shall not be built on the ground in a different manner, the stipulation as to the building line is personal and for the benefit of the grantor only; it is fully performed when the money advanced by the grantor has been repaid and his interest in the property has ceased, and one who subsequently becomes the owner of one of the lots has no standing to maintain an injunction against the owner of another lot to restrain him from erecting a new building over the line stipulated in the agreement.</p>

<p>Statute of frauds — Guaranty—Building contract.</p> <p>Where a builder in consideration of advances by a corporation signs an agreement in -writing to convey ground rents to the corporation and to furnish the bond of a surety company guaranteeing the completion of the buildings on the land out of -which the ground rents issued, the bond of the surety company given in pursuance of the agreement is not rendered invalid by the fact that the agreement signed by the builder was not signed by the corporation which made the advances.</p> <p>Guaranty — Completion of building contract — Ground rents.</p> <p>Where advances have been made for a building operation, in consideration of the conveyance of ground rents on the land to be improved and of the furnishing of a bond to insure the completion of the buildings, the measure of damages in an action upon the bond is the difference in the market value of the ground rents if the buildings had been completed, and their value with the buildings in the incompleted state in which they were left.</p>

<p>Appeal, No. 370, Jan. T\, 1898, by defendant, from judgment of C. P. No. 1, Phila. Co., Deo. T., 1893, No. 337, M. L. D., on verdict for plaintiff.</p> <p>Assumpsit on a building contract. Before B EÉGY, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>If the plaintiff had come here with a certificate of the architect that the work had been done to Ids satisfaction, he having so much on account, and the balance being so much, why, of course, there would he no trouble about it. There would probably be nothing for us bo try. [But the plaintiff' comes here without a certificate of the architect, as required by the contract. He has not got it, hut he says: “ I have received all the money on this contract except $1,950, and I ought to have that, notwithstanding the fact that I have not got the certificate of the architect, because 1 did the work. I did it to the satisfaction of the architect and he improperly is holding back that certificate.” Now, if that is true, of coarse the plaintiff is entitled to recover. He is hound to show you either the certificate or that the architect improperly holds hack the certificate, — and when I say improperly holds hack, I mean that the terms of the contract have been fulfilled, in that the architect was really satisfied, and either through fraud or for some other improper motive refused to give the certificate.</p> <p>Now, the plaintiff claims that he has shown you that. He says: “ I am entitled to the certificate, in the first place, because I did tiie work. I am entitled to it, in the second place, because the architect was satisfied. Not only was he satisfied, but he said he was satisfied. And, thirdly, I am entitled to it because the keeping of it back is a fraudulent thing; ” that it is a fraud to get out of paying the money; that Mr. Wade, the architect, and Mr. Sharp, the builder, have practically conspired together to keep this man out of the certificate that he is entitled to, and thus deprive him of his money. And hi pursuance of that theory they claim that they have shown to you that Mr. Wade not only was satisfied and said he was satisfied, but when the formal demand was made he did not pretend to give any reason at all for not doing it, and that the reason given by Mr. Sharp in the affidavit of defense is a fraudulent reason — is a false reason — because, as a matter of fact the reason given by Mr. Sharp why he should not pay this — that there was a long delay in the completion of the work by this plaintiff here, in that the work was not finished within a certain time after the structural iron work was done, and that the structural iron work was done on the 30th of June, whereas they show you that in another case, where he bad sued for the structural iron work, he said that the structural iron work was not done on the 30th of June, but was done in September some time, and that was done to defeat the structural iron man. In other words, when the structural iron man sues for his money he says he did not complete it until the 30th of September, and when the other man sues he swears that he did not complete it until the 30th of June, and therefore that there is a conspiracy somewhere to keep him out of his money. Now, I say if this is a fraudulent keeping away from this man of his certificate, then he can recover, and if it is a keeping of it away without any reason after the architect is satisfied, the plaintiff can recover without it.] [8] But, if the withholding of that certificate is an honest exercise of judgment on the part of the architect because he was not satisfied with the work done by the plaintiff, then the plaintiff cannot recover. There is nothing will excuse the nonproduction of that architect’s certificate, except you believe it is fraudulently withheld, or you believe he was really satisfied and is doing it from what has been called caprice — that is, without any well-founded reason.</p> <p>Now, as to the extra work, which amounts to $1,271, as claimed, of that, $530, it is admitted in the affidavit of defense, is properly chargeable at those figures. The affidavit of defense admits that it is extra work, and under" any circumstances your verdict should be for the plaintiff for $530, whatever you might do about the claim on the contract. If you think that ought to ' be allowed, then you may allow this in addition. If you think that should not be allowed, then he is entitled, anyhow, to $530, as that is admitted. The two items in dispute are items of $42.00 for the arches, and 1698.80 for the patching. [Under the contract, extra work should not be allowed as extra work unless it was ordered in writing by Mr. Wade, the architect, and notice was given by the architect ten days after the completion. That particular item I will also read to you in another connection a little further on. It is claimed here that orders have been produced for those two items of work — arches and patching- — and I suppose there is no doubt of the fact that the orders are produced. If the other requirement of the contract has been complied with, then these would be proper charges — the requirement, I mean, of notice — because there does not appear to be any attack upon the propriety of the prices charged. Now, as to the items of patching and arches, it is said by the defense that there is no evidence that these are extras, and are not part of the original contract. You have heard the evidence. It is for the plaintiff to satisfy you, when he charges extra work, that the items he charges for are extra work, and as all the evidence on that subject has been on the part of the plaintiff, with no contradiction of it, you are to say whether there is evidence here on the part of the plaintiff that this was extra work. In that connection take the patching. You will remember what Mr. Henry said about that yesterday and the order itself, which was certainly patching, and the fact which occurred later on in the correspondence or argument between them, that the only objection made to paying them was that they wanted to see whether they could not charge it to some one else, or whether the people who caused this patching ought not to pay for it themselves. And you will also remember the testimony with respect to the arches and the reason wky they had to be changed, and you will consider whether that was part of the original contract or whether it was extra.] [10]</p> <p>[Now, gentlemen, there is really very little else for me to say. There is not much evidence in the case. If you can once grasp what the real question in the case is, it is not a very hard case for you to settle. It simply gets down to the fact whether, as far as the main contract was concerned, this pla'ntiff here has satisfied you that the certificate which he was required by the contract tó produce has been withheld from him improperly, and when I say improperly I mean for reasons of fraud or an attempt to cheat him out of his money, or for the other improper reason, and that is, that the architect was really satisfied, but withheld it unreasonably, capriciously, without any exercise of judgment at all, but simply to do the man wrong. In that case, if you believe that, the nonproduction of the certificate does not prevent the plaintiff from recovery.] [9] And let me put equally prominent before you that if the certificate was -withheld by the architect, as far as you can find from the evidence and the letters and all those things which are before you, in pursuance of honest judgment on his part, or in pursuance of an exercise of honest judgment on his part, that it ought not to be given, then that is a good defense, because, gentlemen, we do not make contracts here. We enforce contracts that people have made, and they cannot come into court and say, “ O, well, I ought not to have made that kind of a contract.” They must do their complaining before they come into court. We hold them to what they did. Here the plaintiff said, “I am satisfied to dp the work, and will do it on those conditions; that I cannot have my money until I present to you, the owner, a certificate of the architect that I have done my work right, and he is satisfied.” Now, that is what this plaintiff agreed to, and he could not get out of it unless he shows one or the other of the reasons I have called to your attention. If the architect, in the exercise of his honest judgment, withheld that certificate, that is the end of the plaintiff’s case as far as this contract is concerned, and it is not for you to say, “ 0, well, he ought to have given it.” They agreed that he should settle that, but, of course, the agreement carries with it that he should settle it honestly.</p> <p>[As to the extra work, if it was extra work, and done according to order, and that applies only to the patching and arches, because the other things are admitted, and therefore simplifies me case very much — the patching and changing of the arches were done according to order, and that the other item about giving notice was complied with,] [11] then he is entitled to recover for that, if it was extra work. If it was not extra work, and if it was not done according to order, and if he did not give notice, then, of course, he cannot recover.</p> <p>Verdict and judgment for plaintiff for $4,028.47. Defendant appealed.</p> <p>Errors assigned among others were (8-11) a,hove instructions, quoting them.</p> <p>cited as to the fraudulent or capricious withholding of architect’s certificate: Whelen v. Boyd, 114 Pa. 228; Badger v. Kerber, 61 111. 828; Singerly v. Thayer, 108 Pa. 291.</p>

<p>Principal and agent — Trial—Review.</p> <p>In an action upon a guaranty alleged to have been made by defendants’ agent, where the defendants at the trial deny the guaranty and permit the trial judge without objection to assume in his charge that the authority of the agent was not disputed, the defendants on appeal will not be permitted to allege such assumption as error.</p> <p>Statute of frauds — Guaranty of the debt of another.</p> <p>Where a firm of private bankers have in their possession a number of farm mortgages with blank assignments from the mortgagee, a loan company, of which one of the firm is the president, a parol guaranty given to a purchaser of the mortgages by the firm, is not a guaranty of the debt of another within the statute of frauds.</p> <p>Guaranty — Mortgage—Foreclosure—Record.</p> <p>Where private bankers give a guaranty to a purchaser of farm mortgages on lands in a distant state, and subsequently institute foreclosure proceedings, and without the purchaser’s knowledge or consent buy in the lands for him, and receipt on the record for him, the record of the foreclosure proceedings does not affect the obligation of the bankers as guarantors of the debt. In such a case the record determines only that the mortgagor owed the amount for which he had pledged his land; it determines nothing between the parties to other contracts guaranteeing the payment of the money unless they were by their own consent parties to that suit.</p> <p>Principal and agent — Guaranty—Evidence—Question for jury.</p> <p>In an action upon an alleged guaranty given to a purchaser of farm mortgages, the ease is for the jury where the evidence for the plaintiff tends to show that the agent of the vendors went to the plaintiff and solicited her to buy the mortgages and orally guaranteed them, but the evidence of the plaintiff as to the guaranty is directly contradicted by the agent.</p>

<p>Appeal, No. 323, Jan. T., 1898, by defendant, from judgment of C. P. Scbuylkill Co., May T., 1896, No. 71, on verdict for plaintiff. •</p> <p>Trespass for personal injuries. Before Endlich, J., of the 23d judicial district, specially presiding..</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $10,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>cited Philadelphia & Reading R. R. Co. v. Spearen, 47 Pa. 304 ; fjestonville, etc., Ry. Co. v. Connell, 88 Pa. 520; Chilton v. Central Traction Co., 152 Pa. 425; Funk v. Electric Traction Co., 175 Pa. 559; Kline v. Electric Traction Co., 181 Pa. 276; Pletcher v. Scranton Traction Co., 185 Pa. 147.</p>

Appeal, No. 405, Jan. T., 1898, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1891, No. 164, on verdict for plaintiff. Scire facias sur mortgage.

Appeal, No. 105, Jan. T., 1899, by defendants, from decree of C. P. Lackawanna Co., May T., 1896, No. 4, on bill in equity. Bill in equity for an account. It was not disputed by the defendants that the written agreement between them and the plaintiff dated May 9,1890, was that pianos were to be consigned to them by plaintiff to be sold or leased. From the bill, answer and evidence Gunsteb, J., found the following facts: 1.

<p>Constables — Sale—Advertisement—Act of March 20, 1810, sec. 11.</p> <p>A constable’s sale of personal property under the Act of March 20,1810, 5 Sm. L. 167, see. 11, is not invalid by reason of the fact that one of the three advertisements required by the act was posted in a ward other than that of the residence of either the defendant in the execution or the constable.</p> <p>Where there is no evidence of fraud or collusion a constable’s sale will not be set aside because the execution creditor was the only actual bidder, and the goods were struck down to him at a sum far below their value.</p>

<p>Deed — Rescission—Evidence—Fraud—Findings of fact.</p> <p>The Supreme Court will not reverse a decree dismissing a bill in equity filed to secure the cancelation of a deed given by a client to an attorney at law, where the court below finds upon sufficient evidence that the consideration for the deed was a fair one, and that there was no fraud, concealment or oppression .in the transaction.</p> <p>Attorneys'fees — Contracts—Fairness—Cancelation of instruments — Reasonableness of consideration.</p> <p>A contract for an attorney’s fee for $7,000, contingent on success in a suit to recover land worth from $10,000 to $12,000, the client being otherwise without means, and the parties dealing at arms’ length, is not unconscionable, especially where the case was twice carried to the Supreme Court, and extended over some seven years.</p> <p>In 1889 the alleged owner of land, whose title was being litigated, conveyed an undivided half to his attorney for fees, for $5,000, and in 1891 conveyed a one-quarter interest for $2,000, with an agreement that he was to be paid in addition $16.00 a month until the litigation was finished, which made the total consideration about $2,800. In 1897 the owner conveyed a half interest for $6,000, claiming that the deed for the quarter interest was invalid. Held, that notwithstanding the owner testified the land was worth $50,000, it is not shown that the deed of the one-fourth interest was unfair as to its consideration, so as to authorize its cancelation.</p>

Appeal, No. 346, Jan. T., 1898, by James Nicholls, from decree of C. P. Lackawanna Co., Sept. T., 1897, No. 433, dismissing petition to restore a lost deed. Petition to restore a deed alleged to be lost. Archbald, P. J., filed the following opinion: This is a proceeding to restore a lost deed under the several acts of assembly relating to that subject.

<p>Vendor and vendee — Deed—Description in deed, — Marks on ground.</p> <p>The quantity of land and courses and distances in a deed must always give way to boundary lines determined by clearly established monuments, natural or artificial, existing in or on the ground.</p> <p>A deed of land reserved -‘all that portion within the coal measures .... sitúale, in the east corner.” The land was described as being bounded on two sides by the lands of other owners, naming them, “ and on the remaining sides by the outcrop of the conglomerate roclt containing-about four and one-half acres and known as the Oakley coal bed.” Before the deed was executed neither vendor nor vendee knew the exact location of the outcrop of the conglomerate rock. The vendee supposed that three acres would cover the land intended to be reserved. The vendor estimated it at four and one half acres. If the outcrop of conglomerate rock was taken as the boundaries of two sides, the tract reserved covered eighteen acres. The evidence showed that the outcrop ol conglomerate rook was a well defined permanent natural monument, on the ground, plainly visible, with the exception of a short distance where it was covered with earth. Held, that the vendor and his grantees under the reservation were entitled to all ihe land to the outcrop of conglomerate rook.</p>

Appeal, No. 42, Jan. T., 1899, by-defendants, from decree of C. P. Lackawanna Co., Sept. T., 1898, No. 2, on bill in equity. Bill in equity for an injunction. Gttnster, J., filed the following opinion: FACTS. 1.

Appeal, No. 368, Jan. T., 1898, by defendant, from judgment of C. P. Berks Co., Sept. T., 1898, No. 150, on case stated. Case stated to determine the marketable title to real estate. From the case stated it appeared that Richard Shoup died on November 22,1896, leaving a will by which he directed, inter alia, as follows: “Item 2.

<p>Negligence — Railroads—Contributory negligence — “ Stop, look and listen.”</p> <p>A person who crosses over one railroad track through an opening between standing cars, a,nd fails to stop and look when he emerges from the opening and before stepping on the next track, at which point he could have seen a train approaching on the track, is guilty of contributory negligence, and if he is struck and injured as ho steps upon the track, he will not be entitled to recover damages from the railroad company.</p>

<p>Judgment — Opening judgment — Bond and mortgage — Parol evidence to vary written instrument.</p> <p>A general liability upon a bond accompanying a mortgage given for purchase money of real estate may be restricted by proof of a contemporaneous oral agreement but for which the property would not have been boughs nor the instrument in question executed, and by virtue of which there was to be no personal liability upon it, but the amount thereof was to be collectible alone out oí the property conveyed.</p> <p>Where a woman executes an agreement to purchase land and covenants to give “ a mortgage on the said premises,” and subsequently executes a mortgage and a bond without any restriction as to liability, and judgment is entered upon the bond, the judgment will be opened where the defendant testifies that she was induced to sign the bond, only upon a parol agreement that her liability should be restricted to the land purchased.</p>

<p>Appeal, No. 67, Jan. T., 1899, by defendant, from order of C. P. Berks Co., March T., 1898, No. 149, discharging rule to open judgment.</p> <p>Rule to open judgment.</p> <p>The court discharged the rale filing the following opinion: Mrs. Kate Oberly, a married woman, defendant, on March 29, 1898, duly executed and delivered to her daughter, Ida E. Oberly, now Ida E. Witman, then unmarried, a judgment bond for the sum of $1,066. Said bond contained the usual confession of judgment clause, and was entered in the prothonotary’s office of Berks county the day following its execution and delivery. The bond called for the payment of $16.00 monthly until such a time when the defendant could pay the $1,606 in full. In accordance with the provisions of this bond she made several payments to her daughter without any objection or contest. On June 8,1898, she presented h©r petition for a rule to $kow cause why judgment should not be opened, alleging, as the grounds thereof, the following reasons: (1) incapacity to execute said bond, she being a married woman; (2) want of consideration; (3) fraud upon the husband; (4) Fraud, accident, mistake, covin, conspiracy practiced upon defendant by the plaintiff’s husband and by the plaintiff herself. Neither of these grounds are.sustained by the depositions.</p> <p>Since the passage of the Act of June 3,1887, P. L. 332, and the Act of June 8, 1893, P. L. 344, the power of a married woman to contract is so general that her inability is the exception rather than the rule: Koechling v. Henkel, 144 Pa. 215. A judgment confessed by a married woman is now presumably valid. If she claims protection under her condition of marriage she must show affirmatively, not only her marriage, but also the presence of those circumstances which relieve her from liability: Stahr v. Brewer, 186 Pa. 623; Abell v. Chaffee, 154 Pa. 254. The act of 1893 provides that a married woman shall have the same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed, and either in possession or expectancy, and may exercise said right and power in the same manner and to the same extent as an unmarried person. She may, in the same manner and to the same extent as an unmarried person, make any contract in writing or otherwise which is necessary, appropriate, convenient or advantageous to the exercise or enjoyment of the rights and powers granted her by the act; but she may not become accommodation indorser, maker, guarantor or surety for another, and she may not execute or acknowledge a deed or other written instrument conveying or mortgaging her real property unless her husband join in such mortgage or conveyance. The execution of the bond in question is, therefore, not prohibited by the act. Nor is the bond void for want of consideration. Being under seal, it imports a consideration. The want of a consideration is not a defense to the bond. Where the obligor, with a capable will, without fraud or duress, executes and delivers a bond to the obligee, it is a gift of the money mentioned in it, and its payment may be enforced: Burkholder v. Plank, 69 Pa. 225; Hinney v. Phillips, 50 Pa. 382. The alleged fraud upon the husband has no existence in fact, nor is he a factor in this proceeding. Should the sale be made upon the judgment of the wife her property, and her property alone, can be sold. The interest which the husband may have therein would not pass at sheriff’s sale. That the husband was kept in ignorance of the execution of the bond is of no consequence. There was no fraud, for the wife, having the right to execute, and the plaintiff the right to receive, neither was bound to inform the husband of that fact. The allegations of fraud, accident, mistake, covin, and conspiracy practiced upon defendant by the plaintiff’s husband and by the plaintiff herself are also unsupported by the testimony. It is unnecessary to discuss the testimony in all its varied aspects. A great deal of its details might have been omitted with profit to the defendant and with consideration to the reputation of all the parties concerned. The statement of the defendant that she was induced to sign this by the declaration of the suitor of the plaintiff that he would take her away, take her to Atlantic City without being married, and that this was the inducing cause of her making this bond, is too absurd either to be advanced or considered. Besides, even if made, it came from the person, not to whom the bond was delivered, but one who was an outside party, and the person against whom redress is sought must be a party to the act of duress : Lester v. Union Manufacturing Co., 1 Hun, 288. Besides, the making of the alleged threat is denied by both the plaintiff and Wit-man who is alleged to have made it. On the contrary, it sufficiently appeal’s from the testimony that the bond was a gift by the defendant to her daughter, made in contemplation of her daughter’s approaching marriage. The defendant was the owner of building association shares valued at $1,000. She has a life estate, under her father’s will, netting her between $45.00 and $50.00 a month, and an admitted interest of $1,100 in property No. 1187 Oley street. She has a husband with regular employment, and two children. Therefore, the making of the bond and its payment will not impoverish her or be an unfair advancement to her daughter. She had in contemplation the transfer of the building association shares but finally concluded to give the daughter the bond. A meeting before the attorney who drew up the bond was arranged. There is nothing to show that the donor was incompetent to make the gift or which raises suspicion of fraud or undue influence on the part of the donee.</p> <p>Ohe gift was the voluntary and intelligent act of the donor, which she had a right to make to her daughter: Yeakel v. Mc-Atee, 156 Pa. 600.</p> <p>As to the facts alleged by the defendant in her petition we have only her own testimony, and for this reason, if there were no other, this judgment could not be opened or set aside. Nothing is better settled than that it requires more than the testimony of the defendant to move a chancellor to open a judgment. The unsupported testimony, on oath, of the defendant admitting the execution of the instrument with a knowledge of its provisions, but alleging fraud in the procurement and use of it, which is directly opposed by the testimony, on oath, of the plaintiff, is insufficient to warrant the opening of the judgment or to be submitted to the jury on the trial of an issue awarded: English’s App., 119 Pa. 533; Oppenheimer v. Wright, 106 Pa. 669.</p> <p>In arriving at this conclusion, we have not overlooked the doctrine laid down in Worrall’s App., 110 Pa. 349; Greenfield’s App., 14 Pa. 489; Miskey’s App., 107 Pa. 611, wherein it was held that a transaction between persons in a confidential relation •is regarded with jealousy and solicitude, and if there be found any trace of undue influence or unfair advantage, redress will be given to the injured parly, and that where the question agitated is a gift the rule is more stringent than where the advantage flows from a contract of mutual arrangement. But these authorities hold that “ There is nothing in the relation of parent and child, or other near relation, to preclude one from accepting a benefit from the other in the shape of a gift, or of a contract upon more advantageous terms than would have been granted to a stranger, and the fact that such a gift has been conferred or contract made will not warrant an inference that it has been procured by undue influence. Unless there is something suspicious in the circumstances, or the nature and the amount of the gift is siich that it ought not to have been accepted, even if freely tendered, the donee will not be called upon to show that the transaction was in all respects fair and honest, and in no respect tainted by fraud or undue influence.”</p> <p>If we hold that this burden was incumbent upon the owner of the bond to show the fairness and legitimacy of the transaction, the evidence clearly indicates that she has accepted this burden and has shown that the giving of the bond was without duress and in pursuance of an intention repeatedly declared by the mother to give her the f1,000 in contemplation of marriage. It would seem to have been more of an afterthought to contest the giving of the bond, but the gift having once been freely and voluntarily executed, remained irrevocable.</p> <p>Defendant having failed to sustain her case, the rule is discharged.</p> <p>Error assigned was the order of the court.</p> <p>cited Brawdy v. Brawdy, 7 Pa. 157; Renwiok Bros. & Go. v. Richardson, 5 Pa. Superior Ct. 202; Fisher v. Holbrook, 7 Pa. Superior Gt. 647; Rhodes v. Bate, L. R. 1 Chan. App. Cases, 252 ; Huguenin v. Baseley, 14 Yesey, 273; Yeakel v. McAtee, 156 Pa. 600 ; Bond v. Bunting, 78 Pa. 210; Walsh’s App., 122 Pa. 177; Powell’s App., 98 Pa. 403 ; Glidden v. Strupler, 52 Pa. 400 ; Radford v. Car-wile, 13 W. Va. 572; Wells v. Bunnell, 160 Pa. 460; Elkin v. Timlin, 151 Pa. 491; Nugent v. Wolfe, 111 Pa. 471; Close v. Zell, 141 Pa. 390.</p> <p>was not heard but cited in his printed brief: Jenkintown Nat. Bank’s App., 124 Pa. 337; Applebee’s App., 126 Pa. 385; Worrall’s App., 110 Pa. 349; Burkholder v. Plank, 69 Pa. 225; Wells v. Bunnell, 160 Pa. 460.</p>

<p>Appeal, No. 197, Oct. T., 1898, by plaintiffs, from order of C. P. Butler Co., Sept. T., 1897, No. 27, refusing to take off nonsuit.</p> <p>Trespass for injuries to an oil well.</p> <p>On a motion to take off a compulsory nonsuit, Greer, P. J., filed tbe following opinion:</p> <p>This is a motion to take off a compulsory nonsuit, entered by the court, on which an argument was heard March 11, 1898. The plaintiffs allege that the defendant company, whom they employed to shoot an oil well, did it negligently and shot it at the wrong place, thereby impairing and destroying it, and that they are seriously injured, and bring this action to recover damages to compensate them for their loss. The proof shows that immediately before the agent of the defendant company put in the shot lie had the bailer run to the bottom of the hole which indicated that it was clear of obstructions; that he then put in the shell and loaded it with nitroglycerine, lowered it in the well and fired it, the plaintiffs claiming 200 feet or more above where they had directed it to be fired. No one knows exactly where it was exploded, but the testimony would indicate over 1,000 feet down and some 200 feet or more above the point desired.</p> <p>This is an action for damages on account of negligence, and the law makes it the duty of the plaintiffs to prove negligence. In this I am of opinion the plaintiffs utterly failed, and for that reason it was taken from the jury and a compulsory nonsuit entered.</p> <p>The plaintiffs allege it was the duty of the shooter to run a measuring line and discover the actual location of the shot when fired. This may be true, but they offered no proof to show he did not do so. When he fired the shot all spectators left the ground, to get out of danger; the shooter was alone and no one knows what he did. Since that time he has met his death at this most hazardous business, and was not in court to inform the jury what he did. If he ran a measuring line we have a right to presume he fired the shot at the point desired and fired it properly. We have no proof whatever to the contrary. The hole was clear when the bailer passed down and up, and he would have been justified in believing it was still clear for the short time in which he was preparing and lowering the shell, and I think that his duty did not require him to take any further precautions. However, we have no evidence that he did not take all the precaution known to the business or in his power; to hold otherwise would be upon presumption only.</p> <p>Now, March 19, 1898, on due consideration, the motion to take off the nonsuit is refused and the prothonotary is directed to enter judgment for the defendant.</p> <p>Error assigned was in refusing to take off nonsuit.</p> <p>This case belongs to a class of cases in which the presumption of negligence arises out of the happening of the event causing the injury or damage. The maxim res ipsa loquitur applies: Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497; Jaggard on Torts, sec. 265.</p> <p>The maxim res ipsa loquitur has no application in the ease of an accident which is claimed to have happened through the negligence of the defendant, where the cause of the accident is known to a certainty: Long v. Penna. R. Co., 147 Pa. 343; Fleming v. Pittsburg, etc., Ry. Co., 158 Pa. 130; Buck v. Penna. R. Co., 150 Pa. 170; Stearns v. Ontario Spinning Co., 184 Pa. 519; Penna. R. Co. v. Barnett, 59 Pa. 259; McKee v. Bidwell, 74 Pa. 218; Baker v. Fehr, 97 Pa. 70; Phila. & Reading R. R. Co. v. Heil, 5 W. N. C. 91; Goshorn v. Smith, 92 Pa. 435; Penna. R. Co. v. Fries, 87 Pa. 234; Allison Mfg. Co. v. McCormick, 118 Pa. 519.</p>

Appeal, No. 110, Jan. T., 1898, by David Sulzberger, from decree of C. P. No. 2, Phila. Co., Sept. T., 1893, No. 1017, dismissing petition to open decree of dissolution. Petition to open a decree dissolving a beneficial association. The facts appear by the opinion of the Supreme Court. Error assigned was dismissal of petition.

Appeal, No. 302, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Pbila. Co., Dec. Term, 1897, No. 1242, refusing to take off nonsuit. Trespass to recover damages for personal injuries. Tbe court entered a nonsuit on the ground tbat the action had been barred by the act of June 24, 1895. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 364, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Phila. Co., December T., 1897, No. 662, refusing to take off nonsuit.</p> <p>Trespass for personal injuries.</p> <p>The facts sufficiently appear by the opinion of the Supreme Court.</p> <p>The court entered a nonsuit on the ground that the action was barred by the Act of June 24, 1896, P. L. 236.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 8, May T., 1899, by defendant, from judgment of Superior Court, March T., 1898, No. 47, from judgment of C. P. Dauphin Co., Jan. T., 1898, No. G7, in favor of defendants, on case stated. Appeal from the Superior Court. The case was reported in 7 Pa. Superior Ct. 491, where the facts fully appear.

Appeal, No. 98, Jan. T., 1899, by Mary Frances Lehr, from decree of O. C. Franklin Co., dismissing exceptions to auditor’s amended report. Exceptions to auditor’s report.

<p>Wills — Probate—Signing at end of will — Detached papers.</p> <p>Testator executed a formal will and shortly afterwards a formal codicil and deposited both will and codicil in a trust company where they remained unchanged until his death. After testator’s death two tin boxes were found in the vaults of a bank, on the outside of one of which was pasted a small paper containing the following words: “In case of my death I want this box given to my attorney, S.” The paper was signed at the end with testator’s name. Within the box were various envelopes containing securities and other papers, and on the back of some of the envelopes was the testator’s name. On the backs of other envelopes were names of persons and institutions preceded in some cases by the words “ This is to go to — .” None of these directions on the envelopes were signed by the testator. S., the person who was named in the paper pasted on the outside of the box, was testator’s attorney, who had prepared the formal will and codicil which testator had executed, and he was one of the executors nominated in the will. The will and codicil were entirely inconsistent with the directions indorsed on the envelopes. There was no proof that the direction on the back of the box had been signed -by the testator after the date of the will and codicil. Some of the papers contained in the box bore dates later than the will and the codicil. The other box containing only old daguerreotypes, silverware and jewelry had on it a paper on which were written directions to whom it was to be given. Held, that the writing on the back of the box and the indorsements on the envelopes were not testamentary in character, and that the only papers entitled to probate were the will and the codicil.</p>

<p>Road law — Paving—Original paving.</p> <p>The cartway and sidewalks of a street sixty feet wide were originally paved at the expense of the owners of land abutting upon the street. The pavements were thirteen feet wide and the cartway thirty-four feet wide. The city subsequently increased the width of the street to eighty feet, and by an ordinance directed the repaving of the street. The pavements were. increased to a width of fifteen feet, and the increased width was taken from the west side, thus compelling the owners of property on that side to make a new foot pavement. The city filed a lien against the owners for the cost of work on “the widened portion of the street,” disregarding the fact that in the new work there was only about five feet of original paving in the cartway. Held, that, although the city in a proper proceeding might have sustained a lien for the five feet of original paving, it was not entitled to judgment on the lien as filed.</p>

<p>Wills — Probate—Issue devisavit vel non — Forgery—Evidence—Declarations of testator.</p> <p>In an issue devisavit vel non, declarations of the decedent, whether made before or after the date of a will, are not in themselves sufficient either to establish the execution of the will, or to overcome the testimony of the subscribing witnesses. They are admissible only for the purpose of corroborating the direct proof of its execution, and their admission should be carefully guarded, and their effect as corroborative evidence clearly defined.</p> <p>Where a will attacked on the ground of forgery is dated in December, and its execution is proved by a number of witnesses, declarations of the decedent made in the preceding October as to the existence and provisions of another will, and her satisfaction with the same, are inadmissible.</p> <p>Where an alleged will is attacked on the ground of forgery, declarations of decedent made five years before her death, and before the date of the execution of the alleged will, that she intended to make a will disposing of her property in a certain way, are inadmissible.</p> <p>Practice, Supreme Court — Assignments of error.</p> <p>An assignment of error alleging that the court erred in admitting certain evidence, without setting forth the evidence, is not in compliance with the rules of the Supreme Court, and will not be considered.</p>

<p>Appeal, No. 343, Jan. T., 1899, by plaintiffs, from decree of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 708, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of Arnold, P. J., which was as follows:</p> <p>The plaintiffs seek to limit or restrain the defendant in the use of an alley between the property owned by the plaintiffs and defendant, and to prevent the defendant from using the sidewalk in front of plaintiffs’ house for loading his wagons with bread before starting out to deliver the same to his customers. Complaint is also made by plaintiffs that noise is caused by the defendant in loading his wagons at an early hour in the morning, disturbing the plaintiffs in the peaceful enjoyment of their property. The house owned and occupied by the plaintiffs, No. 1235 Locust street, and the house owned and used by the defendant for business purposes, a bread bakery, No. 1233 Locust street, were erected by two brothers in the year 1829. The plaintiffs are the children and heirs of one of the brothers, and the defendant is the successor in title of the other. When the houses were built an alley three feet wide was left open between them. This alley is built over at the second story of the houses, and the soil of it belongs to each house in equal parts, the division line running through the center of the alley. There does not appear to be any mention in the deeds or covenants in relation to the alley. Both houses were used as residences until the year 1868, when John Junker, the father of the defendant, bought one of the houses and altered it into a bakery and shop for the sale of bread. He continued in the business until 1884, when his son, the present defendant, bought the business, and has continued it since that time. The business has increased in volume, and in 1893 the defendant bought the property on the opposite side of St. James street, which is in the rear of his property on Locust street. The bread baked in the St. James street property is carried across into the Locust street property, where it is assorted, placed in baskets and carried out through the alley, and then loaded in the delivery wagons. Some idea of the extent of the business is given by his testimony, that he employs ninety persons, has twenty-nine wagons and twenty-seven push carts, pays $1,000 a week in wages, and uses 200 barrels of flour a week. He uses one oven in the Locust street property and eight in the St. James street property. The wagons are loaded in the morning, beginning about half past four, and occupying about an hour for that purpose. The plaintiffs and their witnesses say that the process of loading is conducted with great noise and confusion, disturbing them in their sleep, and that bad smells are caused by the number of horses kept standing in front of the plaintiffs’ as well as the defendant’s property while loading the wagons. Witnesses for the defendant, one of them his next door neighbor, say that there is no excessive noise and that it has no effect on them.</p> <p>Concerning the alloy, I clo not find that the plaintiffs have any legal ground of complaint. The use of' it is not defined, limited or restricted by any covenant, and it therefore depends upon custom and the needs of the parties entitled to use it. That it was first used as an alley between dwelling houses is no reason why it should always continue to be so used. The gradual change of a neighborhood from residential to business purposes is constantly going on, and the appurtenances, such as alleys and ways, may be used by the owners of the property when they are diverted to business purposes, with the same freedom as when they were-used for residences. Nor is there any restriction upon the volume or extent of the use of the way, so long as other parties entitled to the use are not excluded from it. Both parties may use it freely and fully, but neither can appropriate the entire use to himself or exclude the other from his proper share of it. Neither can one of them, without the consent of the other, make it appurtenant to other property than that to which it originally appertained. The important question in regard to the alley in this case is this: Has the defendant made it appurtenant to his other property ? ' Has he surcharged it, so to speak ? If he makes a thoroughfare of it he is making an excessive use of it. The defendant denies that he so uses it. He says that he uses his Locust street property not only as a bakery, but as a place of assorting and packing his bread, and claims a legal right to do so. On due reflection and consideration of the evidence, I find that the defendant is using his Locust street property and alley just the same as any other person would use it in the conduct of a business. His wares are brought to the Locust street store, assorted and packed there and carried out through the alley to the wagons. If, instead of baking bread, he bought it and had it delivered in his store, he might lawfully deliver it to his customers by way of the alley. So would he if he kept a milk house instead of a bakery. While the bill contains an allegation that flour barrels are placed in the alley, yet there is no evidence to sustain this allegation. I, therefore, find that the defendant is not chargeable with an unlawful use of the alley.</p> <p>The complaint as to the use of the plaintiffs’ sidewalk for the purpose of loading defendant’s wagons is more substantial. I visited and viewed the property so that, besides the testimony of the witnesses, I had an oenlar demonstration that injury has been done to the tree boxes in front of plaintiffs’ property by the shafts of the defendant’s wagons. The wagons have two wheels and are loaded from the front, the horses’ heads being turned directly towards the sidewalk. Then the wagons are loaded from the plaintiff’s sidewalk as well as the defendant’s. If this were done occasionally, or on some extra occasion, it might be submitted to and would not be a good cause for interference by a court, but when it is done continually, day after day, then it becomes an appropriation of the plaintiffs’ property by the defendant for the purposes of his business, an invasion of the plaintiffs’ right of property, and a ground for intervention of a court of equity. As to the smell caused by the horses, 1 do not find that to be such as to call for an injunction. The defendant has a right to load his wagons in front of his own property, and standing horses will cause smells which have to be endured, because they cannot be prevented. As to the noise, while the evidence is nearly in equilibrium between the parties, and I do not find against the defendant in that regard, yet a neighborly feeling should induce the defendant to regulate his employees so that his business should be conducted with as little noise as possible. There does not appear to be about the business of a bakery anything which should cause disturbing noises to people in the neighborhood, and as his business is more active at a time when other people are in bed, he should endeavor to avoid all unnecessary noise which would disturb them in their slumbers, otherwise he may be subjected to an indictment, and, on conviction, to an injunction which may seriously interfere with his business.</p> <p>Unless exceptions are filed within ten days, a decree will be entered in accordance with this adjudication.</p> <p>The following decree was entered:</p> <p>And now, July 16, 1898, this cause came on to be heard at this time, on^ exceptions filed both by plaintiffs and defendant to the adjudication of the equity trial judge, and was argued by counsel, and thereupon upon consideration thereof the said exceptions were- dismissed, and it is ordered, adjudged and decreed :</p> <p>1. That the defendant is not chargeable with the unlawful use of the alley or passageway between the premises of plaintiffs and defendant, and the injunction prayed for in respect thereof is refused.</p> <p>"2. That the defendant, Jules Junker, his agents, servants and employees be and they hereby are perpetually enjoined and restrained from continually using the sidewalk in front of premises No. 1235 Locust street, in the city of Philadelphia, for the purpose of loading the wagons used by him in his business.</p> <p>3. That the injunction prayed for in the third prayer of the bill is refused as not sustained by the evidence.</p> <p>1. That each party pays his own costs and that the record costs be divided equally between the parties.</p> <p>Error assigned was the decree of the court.</p> <p>The character and extent oí a use is fixed by the user by which it was gained: Washburn on Easements, 117; Kirkman v. Sharp, 1 Wharton, 323; McCallum v. Germantown Water Co., 51 Pa. 10.</p> <p>If a man has a right of way over another’s land he cannot enlarge or extend it to other closes, and this, whether it be by user or by deed: Shroder v. Brenneman, 23 Pa. 348; Kirkham v. Sharp, 1 Wh. 323; Lewis v. Carstairs, 6 Wh. 207.</p> <p>Defendant should be enjoined from disturbing the plaintiff by excessive noises : Sanderson v. Penna. Coal Co., 86 Pa. 401; Bellamy v. Wells, 60 L. J. Ch. 156; Bartlett v. Marshall, 11 W. It. 251; Mott v. Shoolbred, L. R. 20 Eq. Cas. 22; Rex v. Russell, 6 East, 427; Rex v. Cross, 3 Campbell, 224; Benjamin v. Storr, L. R. 9 C. P. 400 ; Harris v. Mobbs, L. R. 3 Exch. Div. 268; Wilkins v. Day, 12 L. R. Q. B. D. 110.</p> <p>Among the cases in which injunctions have been granted by the lower courts in Pennsylvania for noise arising from a proper and legitimate business are : Dennis v. Eckhardt, 3 Grant, 390; Wallace v. Auer, 10 Phila. 356; Harrison v. St. Mark’s Church, 3 W. N. C. 384; Briggs v. Yottler, 1 W. N. C. 272; Ladies’ Decorative Art Club’s App., 22 W. N. C. 75.</p> <p>—Defendant contends that the use of the alley may be such as the premises may reasonably be put to from time to time, so long as it does not interfere with the plaintiffs’ nse, and is not made appurtenant to any other property: Dark v. Johnston, 55 Pa. 164; Gunson v. Healy, 100 Pa. 42; Jamison v. McCredy, 5 W. & S. 129; Greenmount Cemetery Co.’s Appeals, 4 Atl. Rep. 528; 4 Sharswood & Budd’s Leading Cases in the American Law of Property, 212; Holt v. Sargent, 15 Gray, 97; Mc-Elhone v. McManes, 118 Pa. 600; Herman v. Roberts, 119 N. Y. 37; Klaer v. Ridgway, 86 Pa. 529; Lewis v. Garstairs, 6 Wh. 193; Watson y. Bioren, 1 S. & R. 227: Ehret v. Gunn, 166 Pa. 384.</p> <p>It is admitted that for twenty-nine years before bill filed this • alley was used for business purposes, with the knowledge of plaintiffs. From this the law implies a grant of the right so to use it: Gehman y. Erdman, 105 Pa. 371; Lewis y. Carstairs, 6 Wh. 193.</p> <p>The complaint that defendant uses the street in which to stand his wagons while loading is easily disposed of. Every business man is compelled to do this, and his right to do so temporarily is settled by Welsh v. Wilson, 2 Cent. Rep. 739; Price y. Grantz, 118 Pa. 403; Cox’s App., 11 W. N. C. 571; Pittsburg, etc., Ry. Co. v. Cheevers, 149 111. 430; Jacksonville, etc., R. R. Co. v. Thompson, 26 L. R. A. 410 ; Inhabitants of Charlotte v. Pembroke Iron Works, 8 L. R. A. 828; Brother-ton Bros. v. Reynolds, 164 Pa. 139.</p> <p>It is well settled that he who lives in a populous city must expect to endure the noises and other discomforts thereof, and cannot be heard to complain: Tipping v. St. Helens Smelting Co., 116 E. C. L. R. 608; Rhodes v. Dunbar, 57 Pa. 287; Iiuckenstine’s App., 70 Pa. 102; McCaffrey’s App., 105 Pa. 253; Elverson’s App., 41 Leg. Int. 418.</p> <p>Plaintiffs’ right is disputed upon every ground \ipon which it is placed and has not been established at law: Quinn’s App., 10 Cent. Rep. 350; Rhea v. Forsyth, 37 Pa. 503; City of New Castle v. Raney, 130 Pa. 546.</p> <p>Defendant has expended large sums in the enlargement of this highly necessary business, and would suffer a most grievous injury, while plaintiffs would gain but little, if anything, by the grant of an injunction, the delay in applying for which is unreasonable : Richards’s App., 57 Pa. 105.</p>

<p>Appeal, No. 256, Jan. T., 1898, by plaintiffs, from decree of C. P. No. 4, Phila. Co., March T., 1897, No. 376, on bill in equity.</p> <p>Bill in equity to compel the payment of subscriptions to the stock of a corporation.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Frror assigned was the decree of the court dismissing the bill.</p>

<p>Appeal, No. 231, Jan. T., 1898, by William L. Sheafer, one of the plaintiffs, from decree of C. P. Schuylkill Co., July T., 1898, No. 4, on bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Error assigned was in refusing the injunction.</p> <p>cited Com. v. Councils of Pitts-burg, 41 Pa. 278; Parkinson v. City of Parker, 85 Pa. 313; Williamsport v. Com., 84 Pa. 501; Galena v. Corwith, 48 111. 423; Act of April 18, 1895, P. L. 36; Paving Co. v. Philadelphia, 164 Pa. 477; City of Erie v. Reed, 113 Pa. 468 ; Douglass v. Com., 108 Pa. 559; Chandler v. Gardner, 2 Pa. C. C. R. 407: Biltz v. Ashland Borough, 3 Pa. C. C. R. 412.</p>

<p>Tmsts and trustees — Accounts—Estoppel—Review.</p> <p>Where a testamentary trustee states an account and submits it to the cestui que trust, a young man twenty-three years of age, with business experience, who examines it, and indorses his approval thereon, and the account is filed and confirmed, and the cestui que trust accepts part of (he principal, and continues to receive the income from the remainder of the estate for five years, without objection, the account will not be opened on the ground that excessive commissions had been allowed to the trustee.</p> <p>Trusts and trustees — Commissions—Investments.</p> <p>The Supreme Court will not reverse a decree of the orphans’ court allowing a trustee commissions somewhat in excess of five per cent, where it appears that the trust estate amounted to a little-over $30,000; that, for the purpose of securing the highest rate of interest, the sum was divided into fifty-seven good investments, made without any loss or expense to the estate, and produced an excess of annual income over the usual rate of interest larger than the whole allowance to the trustee, the accomplishment of which required unusual care and vigilance on the part of the trustee.</p>

<p>Eminent domain — Damages—Evidence— Culm.</p> <p>In a statutory proceeding against a railroad company to recover damages for culm taken by the company under the right of eminent domain for ballast, filling, excavations and embankments, evidence is admissible that, at the time it was taken, culm was used generally for the purpose of grading streets and railroads, and for other like purposes, and that the owners of culm piles gave the material away, and were glad to get rid of it Without expense to themselves.</p> <p>Eminent domain — Damages—Proof of actual loss — Evidence.</p> <p>On the trial of an appeal from the report of a jury of view appointed to assess damages for property taken under the right of eminent domain, it is proper for the court to charge that the plain tiff is not entitled to a verdict without proof of actual loss.</p>

<p>Appeal, No. 411, Jan. T., 1898, by defendant, from judgment of C. P. Lackawanna Co., March T., 1895, No. 202, on verdict for plaintiff.</p> <p>Feigned issue to determine the ownership of certain bonds. Before Searlb, P. J., of the 35th judicial district, specially presiding.</p> <p>The defendant having filed an account and an auditor having been appointed to distribute the money in his hands, Margaret J. Callendar claimed $10,000, the value of certain bonds mentioned in a certificate, a copy of which will be found in the opinion of the Supreme Court. The directors and assignees disputed her claim. She th¿n asked for an issue to determine the matter, which was awarded by the court.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial plaintiff proposed to prove by her own testimony that subsequent to the time she received the certificate marked plaintiff’s exhibit “ A,” she had a conversation with Mr. Stone in which she asked him as to the security of the bonds she had parted with to the Olyphant Trust Company; that Mr. Stone assured her that the bonds would be all right; that they would be returned to her at any time or the equivalent of them; that at that time Mr. Stone requested her on behalf of the trust company to take as a full payment for the bonds stock of the Olyphant Trust Company, which she declined; that this conversation took place before the payment of the interest of $150 in January, 1895 ; for the purpose of showing that Mrs. Callendar personally talked with Mr. Stone, the treasurer of the company, and to show a recognition by the executive official of the trust company of this certificate subsequent to its delivery.</p> <p>Defendant objected to the offer as irrelevant, immaterial and incompetent.</p> <p>The Court: The objection is overruled, the evidence admitted and bill sealed for defendant.</p> <p>“ Q. State when and where you had the conversation with M. J. Stone, treasurer of the Olyphant Trust Company. A. Mr. Stone called at our house one evening. Q. When ? A. Sometime in October before the assignment; sometime after October 1; I cannot remember the time exactly. Q. Was it before the payment of the $150 interest ? A. Yes, sir. Q. Now, what was the conversation that took place between Mr. Stone and you at the time referred to? A. I asked Mr. Stone regarding the safety of those bonds. Mr. Stone asked me if I would take stock in the Olyphant Trust Company for those bonds, which T positively refused to do. Mr. Stone assured me that those bonds were perfectly safe and that they would be returned to me, or their equivalent in cash, at any time 1 wished, with six per cent interest. Q. Was that all the conversation that took place at that time between you and Mr. Stone ? You think that was all? A. Yes, sir.” [1]</p> <p>Plaintiff offered in evidence plaintiff’s exhibit “ B,” being the pass book of which the witness has testified. The purpose of the offer is to corroborate plaintiff’s testimony that $150 interest on the bonds was hers, and for the further purpose of showing Mrs. Callendar to have been a depositor in this trust company, and as corroborative of her evidence of her dealing with the trust company, she having testified that all the entries in this book were made by Mr. Stone in his handwriting.</p> <p>Defendant did not object to the book for the latter purpose, but for the purpose of establishing any legal liability upon this bank by the alleged credit of $150, which is, under the plaintiff’s theory, three months’ interest upon the certificate, lie objected to that, because the certificate had not been established, although admitted in evidence, satisfactorily, so as to justify this credit and charge the bank with it as a legal liability.</p> <p>The Court: The objection is overruled, offer admitted, exception noted for defendant and bill sealed. [2]</p> <p>S. N. Callendar called by defendant as if upon cross-examination.</p> <p>Plaintiff objected to the witness being called as for cross-examination ; as he is not a party to this case, and also that it is calling a husband to testify against his wife.</p> <p>The Court: The objection is sustained, exception noted for defendant, and bill sealed. [8]</p> <p>Defendant proposed to show by M. J. Stone, the witness on the stand, that a matter of a couple of weeks or so after the bonds were put up as collateral to a note of Mr. Stone, and upon the visit of Mr. Krumbauer, the superintendent of banking for the state, in the presence of Mr. Callendar, Mr. Krumbauer said that he didn’t think the safe at Olyphant was a safe place for bonds, and Mr. Callendar suggested that he would keep them for the bank at his box in the safe deposit vaults in the city of Scranton, and that they were delivered by the witness to Mr. Callendar as the vice president of the bank for this purpose.</p> <p>Plaintiff objected to this for the reason that the declarations to Krumbauer by any of the directors, not in the presence of the plaintiff, are not testimony, and the offer is immaterial and irrelevant.</p> <p>The Court: The objection to the conversation with Krumbauer is sustained. The offer as to delivery of the bonds for safe keeping to Callendar is allowed, exception noted for defendant and bill sealed. [4]</p> <p>The court charged in part as follows:</p> <p>[You will find next, whether she authorized her husband to deliver these bonds in July to Mr. Stone. If she did not, and had no knowledge of it, and he had no power to deliver those bonds as her agent — and remember you must find that lie had such power from the evidence in the case, then the taking of the bonds by her husband and delivering them to Mr. Stone was a fraud upon her; he had no right to do so, and Stone knowing, as lie admits upon the stand, that the bonds were hers, taking them under such circumstances, he took no title to them at all, and if he transferred them into the possession of the bank, through their finance committee, as collateral security for an antecedent debt, if you find that as a fact, the bank by such transfer took no title. While they had by such transfer the actual possession of them by their being given into the hands of her finance committee, if they were, they took no title, and had no right to hold them as against Mrs. Callendar. But if, on the other hand, she authorized such transaction by her husband, it would confer upon the bank the right to hold them as collateral security for this transaction.] [5]</p> <p>It appeal's, I think, that almost all the directors, if not quite all, have been upon the witness stand, and all of them with the exception of Mr. Stone and Mr. Callendar deny any knowledge whatever of this receipt, and have only such knowledge as was given by the books of the bank, so far as the testimony in this case is concerned, and what transpired at the meetings of the directors and finance committee. But the treasurer of the company, it appeal's was the manager of the whole concern; the books were kept by him; and it appears by the testimony in the case that he not only sold these bonds to the bank, the directors supposing them to be in their possession, and he claims relieved himself from the payment of his stock subscription by the cancelation of his note, hut that he also afterwards upon the books of the hank transferred them to S. N Callendar, to relieve him perhaps from his stock subscription, I do not remember exactly, and charged the amount of the bonds back to himself.</p> <p>[All this testimony is for the purpose of showing the true inwardness of the entire transaction, hut so far as its legal aspects are concerned we instruct you again, that as far as the plaintiff in this case is concerned, she is not chargeable with any of the transactions between her husband and Stone except what was done with her knowledge and consent;.] [6]</p> <p>Plaintiff’s point and the answer thereto among others were as follows:</p> <p>1. The defendant company, having received from the plaintiff the bonds in question and having sold the same and received the proceeds, is estopped from setting up any want of authority on the part of W. J. Stone, treasurer, to bind the company by the certificate given plaintiff. Answer: That point is affirmed. [7]</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>2. Under all the evidence in this case the verdict must be for the defendant. Answer: That point is refused. [8]</p> <p>3. If the jury believe that S. N. Call end ar loaned the bonds in suit to M. J. Stone who pledged them with his note to the trust company, and subsequently sold them to the trust company for the note (or a portion of it) which was canceled, the verdict must be for the defendant. Ansioer: That point is refused. [9]</p> <p>Verdict and judgment for plaintiff for $10,000. Defendant appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5-9) above instructions, quoting them.</p> <p>Any person whose interest is adverse to the party calling him as a witness may be compelled to testify as if under cross-examination, as we understand the act of 1887, and the person need not be a party to the record: 3 Jones on EUdence, sec. 820; Jackson v. Liteh, 62 Pa. 455.</p> <p>The questions which defendant’s counsel desired to ask the witness were intended to elicit facts which were res gestee in relation to the direct examination, and therefore permissible: Markley v. Swartzlander, 8 W. & S. 172; Bank v. Fordyce, 9 Pa. 275.</p> <p>A party is entitled to bring out every circumstance relating to a fact which an adverse witness is called to prove: Bohan v. Avoca Borough, 154 Pa. 409.</p> <p>The husband may act as agent of the wife: 1 J ones on Evidence, sec. 262.</p> <p>As these were negotiable bonds, payable to bearer, a sale and delivery of them for a valuable consideration transferred the title to a bona fide bondholder: 1 Randolph on Commercial Paper, sections 12,159 and 327 ; Carpenter v. Rommel, 5 Phila. 34; 2 Randolph on Com. Paper, sec. 560; Gardner v. Gager, 1 Allen, 502; Lord v. Ocean Bank, 20 Pa. 384; Smith v. Hine, 179 Pa. 203; Appleton v. Donaldson, 3 Pa. 381; Maynard v. Bank, 98 Pa. 250; Appeal of the Liggett Spring & Axle Co., Ill Pa. 298.</p> <p>Knowledge is not to be imputed to the principal where the agent is the author of the fraud in the transaction: Gunster v. Illuminating, Heat & Power Co., 181 Pa. 327; Trust Co. v. Bank, 185 Pa. 586.</p> <p>cited Harrisburg Bank v. Tyler, 3 W. & S. 376; Bissell v. First Nat. Bank of Franklin, 69 Pa. 415; Zeigler v. First Nat. Bank of Allentown, 93 Pa. 393; National Bank of Bedford v. Stever, 169 Pa. 581.</p>

Appeal, No. 69, Jan. Term, 1899, by Benjamin Avery Brown, from decree of O. C. Lackawanna County, dismissing exceptions to auditor’s report. Exceptions to auditor’s report.

<p>Equity — Adequate remedy — Betrayal of confidence — Fraud—Specific perfórmame — Personal property.</p> <p>The rule that jurisdiction in equity will not be entertained to decree a ° J. specific performance respecting goods, chattels, stocks and other tilings of a merely personal nature is limited to oases where a compensation in damages will furnish a complete remedy. Where the wrong is a betrayal of confidence equity will decree restitution, which may be enforced specifically against the wrongdoer.</p> <p>A court of equity will sustain a bill to recover stock which it is alleged had been fraudulently obtained by one who stood in a confidential relation to the true owner of the stock.</p> <p>Equity — Equity practice — Findings of fact — Review.</p> <p>The findings of a judge sitting as a chancellor, on conflicting evidence, will not be reversed, except on clear evidence of mistake. An apparent preponderance of testimony against the findings is not sufficient to lead to a reversal, if there is testimony, whieh, if believed, will warrant them. They are not conclusive upon the appellate court, but they will not be disturbed, except for error whieh clearly appears.</p>

<p>Wills — Evidence—Testamentary intent.</p> <p>Extrinsic collateral evidence is always competent to show that a paper was written and executed with testamentary intent.</p> <p>Wills — Publication—Acknowledgment.</p> <p>Where an instrument, proved to have been executed, is, by its terms, to take effect after the maker’s death, no evidence of publication or acknowledgment on his part that it is a will is necessary.</p> <p>Wills — Form of will — Probate.</p> <p>Ten years before her death, decedent duly signed at the end thereof the following paper: “I this day, the 18th of December, 1888, give all my property real and personal to R. and V., but I am to have the use of all so long as I live and I to pay all the taxes and keep up repairs and after my death R. and Y. is to have full and free use of all my property, for value received.” The paper was never delivered to any one, but remained in the exclusive possession of decedent. At her request, a few days before her death, she had it read to her, and then, by her direction, it was put away in a safe place. Held, that the paper was properly admitted to probate as a will.</p>

Appeal, No. 199, Jan. T., 1898, by defendant, from judgment of C. P. Northampton Co., June T., 1896, No. 53, on verdict for plaintiff. Trespass to recover damages for death of plaintiff’s husband. Before Schuyler, P. J. At the trial it appeared that Levi Werst, the husband of the plaintiff, was a car inspector in the employ of the Central Railroad Company of New Jersey.

<p>Waters — Water course — Defined channel — Riparian rights — Diversion of stream — Percolations.</p> <p>Water that is in the earth and finds its way through the soil by percolating or seeping, and has not a defined flow in a stream either under ground or above the ground, is absolutely the property of the man who owns the land in which that water is found; but where there is a defined stream, whether over or below the surface, the upper owner has no right unreasonably to divert the water to the injury of a lower owner.</p> <p>An upper riparian owner has the right to use the water for household purposes and .for watering stock, and also for manufacturing and other purposes, to an extent that is not unreasonable, bearing in mind the size of the stream.</p>

Appeal, No. 71, Jan. T., 1899, by Richard M. Reilly, from decree of O. C. Northampton Co., dismissing exceptions to auditor’s report. Exceptions to the report of Frederick Green, Esq., auditor.

Appeal, No. 75, Jan. T., 1899, by • Richard Heckscher, from decree of O. C. Northampton Co., dismissing petition for an order to compel a trustee to account. Held: upon the authority of Keene’s Appeal, 60 Pa. 504, and the apparent restriction in the Act of April 17, 1869, P. L. 70, of the right thereby secured to personal property, that the owner of a contingent interest in real estate had no right to an account.

Appeal, No. 94, Jan. T., 1899, by plaintiff, from judgment of C. P. Northampton Co., Fob. T., 1895, No. 145, on issue to determine what was due upon a judgment. Issue to determine what was due upon a judgment. Before Schuyler, P. J. At the trial it appeared that on March 4, 1895, defendant gave plaintiff a judgment note for $1,322.08, upon winch judgment was duly entered.

<p>Appeal, No. 108, Jan. T., 1899, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1897, No. 348, on verdict for plaintiff.</p> <p>Assumpsit for breach of written contract. Before Mayer, P. J., of the 25th judicial district, specially presiding.</p> <p>At the trial it appeared that on October 8,1895, plaintiff and defendant entered into a written contract by which the former agreed to stock a large number of logs for the latter. The defense was that the defendant was injured "by the improper way in which the work was performed.</p> <p>The court charged in part as follows:</p> <p>The principal controversy in the case grows out of the failure on the part of the plaintiff, as alleged by the defendant, to fully perform his part of the agreement. And it is alleged by the defendant that in consequence of that he has suffered a large amount of damages, which he alleges more than overpays the balance that is due the plaintiff under the contract. The plaintiff claims something over $5,000 due him under the contract, which the defendant alleges that by reason of the failure on the part of the plaintiff to carry out the full terms of the contract he is damaged to the extent of what would more than cover the balance claimed to be due Cosgrove under the agreement, and this is the principal controversy between the plaintiff and the defendant. In the first place, Cummings alleges that a quantity of the logs that were to come to the mill were broken by means of the slide; that as they came down over the slide the logs were broken and could not be manufactured into lumber on the mill, and in consequence of that he lost this broken and damaged lumber, and that Cosgrove should respond to him in damages for the loss of the broken and damaged lumber. Now in order to take this lumber from this tract of land, it being proved that the land was -very steep, it was necessary to erect a slide. [This slide was erected by Cosgrove on the land and the logs were taken down the slide into Pine creek and from there run into a gut and from there to the mill pond. Now if the slide was carefully and properly erected, Cosgrove would not be responsible in case some of the logs were broken and damaged in their descent to the mill, because there could be no other possible way by which logs could have been delivered from the tract and run down to the mill.] [10] If, however, the slide was carelessly and negligently constructed, and by reason of that the logs were damaged and broken, Cosgrove would be liable to respond to the defendant in damages for whatever logs were lost or damaged by reason of the careless or negligent construction of the slide. Whether the slide was properly and carefully constructed or negligently and carelessly constructed will he for the jury to determine under the evidence. There is another item of damage claimed, the loss of the logs in the stream. It appears, and the evidence shows, that when the logs came down the slide they ran into Pine creek, and Cosgrove, according to the testimony, erected head-gates at the end of the gut, and the logs were taken out of Pine creek and put in the gut and from there taken down to the mill pond. [And it is alleged by Cummings that sometime in January, 1896, there was a flood in the stream and that about 25,000 feet of the logs were carried down the stream and lost; and also in June, 1896, another flood occurred in the stream by reason of which 125,000 feet of logs were lost, and went down the stream.] [11] Now whether or not the plaintiff should be charged with the loss of these logs will depend entirely on the view the jury take of the evidence in the case. [Cummings was hound to keep the mill pond of the mill in such a condition as to the quantity of logs in it that Cosgrove could be enabled to put tbe logs in there as they were needed at tbe mill, and Cummings was bound to run the mill during that time and manufacture the logs into lumber so that Cosgrove could go on with the contract and deliver the logs into the mill pond. And if at any time the mill pond was in such a condition or was so full of logs by reason of the mill not running that Cosgrove could not deliver tbe logs into tbe gut and into tbe pond, by reason of which tbe logs went away, Cummings could not charge Cosgrove with the logs that went off.] [7] But if tbe mill was at all times in such a condition that Cos-grove could run the logs into the gut and into the pond, and be kept them in the creek, and by reason of the floods they were lost to tbe defendant, then be would be liable to respond in damages for whatever logs were gone; unless from the testimony in tbe case you believe that Cummings undertook to become responsible for tbe logs being in the stream. According to the testimony of the two Welshanses the mill pond was full, and they desired to get the logs through the gut into the mill pond, and they went to Cummings after the mill was shut</p> <p>down and stated that the mill pond was full and that they desired to put the logs in. According to their testimony Cummings stated that the logs were paid for and that he would be responsible for the logs in case they were carried away. Cummings, however, denies that any such conversation took place. He alleges he had no such conversation with either of the two Welshanses, and he never at any time became responsible for the logs put into Pine creek. The evidence shows that Cos-grove was notified by Cummings at various times not to put the logs into the creek, and written notices have been exhibited in evidence on the part of the defendant showing that Cosgrove had notice from Cummings that lie should not put the logs into Pine creek. [If Cosgrove, after the notices were received and the mill pond was not in condition to receive the logs, allowed them to remain in the stream and they were lost, he would be responsible, unless the jury find that from the evidence the mill pond was not in a condition to receive them or that Cummings assumed to be responsible for the loss of them when he was called on to make room for the logs as testified to by the two Welshanses.] [8]</p> <p>There is another item of damage claimed by the defendant, and that is the failure on the part of Cosgrove to fully perform his portion of the contract. It is alleged by the defendant that a quantity of timber and logs were left upon the tracts of land which he failed to cut and deliver under the agreement. Now the general rule is where a party enters into a contract to do work for another it is incumbent upon him at the trial of the case, where the suit is brought on the contract, to show that he fully performed his part of the agreement. The defendant is not bound to fulfil his covenants unless the plaintiff shows that he fully performed the contract on his part. But the strictness of this rule has been modified, and the rule as modified is [that where there has been an honest endeavor on the part of the party to perform his agreement or, in other words, where there has been a substantial performance on the part of the party to the contract to do the work, and the other party has received the benefit of his labor, then he would be entitled to recover the contract price, deducting from that whatever would fully reimburse and compensate the other party for damages sustained by reason of the other party not having fully performed bis. part of the contract.] [9] And it will be for the jury to determine, under the evidence, whether Patrick Cosgrove has substantially performed his part of the agreement. If the evidence in this case shows that he has not substantially performed his part of the contract then it would be a bar to a recovery on his part, because as we have already said to you he must show that he fully performed his agreement before he could compel the defendant to pay the money which he has stipulated to do. And the question of his performance or nonperformance or substantial performance is a question of fact which we submit to you under the testimony. The evidence on the part of the plaintiff is that he fully performed that part of bis agreement.</p> <p>Plaintiff’s seventh point and the answer thereto were as follows :</p> <p>If the jury find from the evidence that plaintiff negligently placed a large number of logs in Pine creek; that the same were carried away by a rise in said creek and lost, then he is responsible to the defendant for the value thereof, less the cost of delivery as per contract. Answer: Whether or not the plaintiff is liable will depend on the view the jury takes of the evidence under the instructions we have given in our general charge. [3]</p> <p>Verdict and judgment for plaintiff for $4,653.53. Defendant appealed.</p> <p>Errors assigned among others were (3, 7-11) above instructions, quoting them.</p>

<p>Appeal, No. 78, Jan. T., 1898, by defendant, from judgment of C. P. Lycoming Co., June T., 1897, No. 270, on verdict for plaintiffs.</p> <p>Trespass for death of plaintiff's father. Before Reed, P. J., of the 54th judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s fourth point and the answer thereto were as follows :</p> <p>If the jury believe from the evidence that when Edward Bailey, the deceased, came to the Narrows he adjusted the halter straps attached to the two horses tied together around his body in such a manner that he could hot readily free himself from said horses in case of said horses becoming unmanageable, or g’oing over the embankment, and so led said horses whilst seated alone in said buggy and driving at the same time the horse hitched thereto, and was jerked or dragged from said buggy over said embankment by reason of having said halter straps so adjusted around or over his body, he was guilty of contributory negligence, and the plaintiffs cannot recover. Answer : If you find that the accident occurred in the manner described in the point, then the conclusion stated would follow and your verdict should be for the defendant.</p> <p>Defendant’s seventh point was as follows :</p> <p>Under all the evidence, the plaintiffs are not entitled to recover.</p> <p>This point was reserved, and the case submitted to the jury, who returned a verdict for plaintiffs for $2,000. Subsequently the court entered judgment for plaintiffs on the verdict.</p> <p>Errors assigned were in not giving binding instructions for defendant and in entering judgment for plaintiffs.</p> <p>It is difficult to see how the case in hand can be distinguished from the case of Hill v. Tionesta Township, 146 Pa. 11.</p> <p>Where an accident happens in consequence of conspicuous defects which were perfectly manifest, and the injuries sustained in the way that might have been expected, there can be no recovery, for the reason that, “ a man is as much bound to avoid a known danger on a public highway as anywhere else: ” Hill v. Tionesta Twp., 146 Pa. 11; Forks Twp. v. King, 84 Pa. 280; Crescent Twp. v. Anderson, 114 Pa. 643; Mueller v. Ross Twp., 152 Pa. 401; Winner v. Oakland Twp., 158 Pa. 405.</p> <p>No one having seen the occurrence, and there being uo evidence as to what caused the deceased to go over the embankment, his death cannot be imputed alone to the negligence of the defendant, in the absence of such proof: Schaeffer v. Jackson Twp., 150 Pa. 145; Peaslee v. Town of Chatham, 69 Hun, 389.</p> <p>The testimony of G. W. Crumm and Fred M. Crumm, as to the statements made by John Bailey, immediately after the occurrence, was part of the res gestee: Coll v. Easton Transit Co., 180 Pa. 618.</p> <p>cited on the question of contributory negligence: Altoona v. Lotz, 114 Pa. 238; Borough of Easton v. Neff, 102 Pa. 474; Mill Creek Twp. v. Perry, 20 W. N. C. 359 ; Humphreys v. Armstrong Co., 56 Pa. 204; Penna. R. Co. v. White, 88 Pa. 327; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 605.</p>

<p>Appeal, No. 127, Jan. T., 1898, by defendant, from judgment of C. P. Lancaster Co., June T., 1897, No. 54, on verdict for plaintiff.</p> <p>Assumpsit upon a policy of fire insurance. Before Livingston, P. J.</p> <p>The property insured was a stock of merchandise contained in a building which was partly brick and partly frame. A clause in the policy provided that “ in any matter relating to this insurance no person unless duly authorized in writing shall be deemed the agent of this company.” Other facts appear by the opinion of the Supreme Court.</p> <p>At the trial, Albert Garrett, president of the defendant company, was asked this question by defendant’s counsel:</p> <p>“Will you state whether at the time of the insurance of Mr. Landes in your company, John Haldeman was an agent of the company?”</p> <p>Plaintiff' objected for the reason that defendant issued the policy in which it set him forth as its agent and it is estopped from denying it.</p> <p>The Court: Disallowed; defendant excepts, and bill sealed. [1]</p> <p>J. T. Nitrauer, secretary of the company, was asked by defendant’s counsel:</p> <p>“ What is the rate of premium for goods insured in a building which is half brick and half frame ? ”</p> <p>Plaintiff objected.</p> <p>The Court: You cannot show any other premium except that which you have in your policy. Disallowed; defendant excepts, and bill sealed. [2]</p> <p>Plaintiff having testified that his stock was worth $3,777, was asked by defendant’s counsel:</p> <p>“ You make this $3,777 ? Shortly before the fire, within a few months before the fire, did you offer this store for sale to any one ? ”</p> <p>Plaintiff objected.</p> <p>The Court: It is not cross-examination.</p> <p>“ Q. When Mr. Garrett came to see you in regard to the fire, did he ask you ‘How can you make a statement of goods totally destroyed, when you have no cash account, no merchandise or sales account ? ’ Did he ask you that question? ”</p> <p>Plaintiff objected.</p> <p>The Court: This is not cross-examination, any conversation he liad with Mr. Garrett. Bill sealed for defendant. [3]</p> <p>Joseph H. Cassell being called by defendant, defendant proposed to ask the witness whether at different times between September, 1896, and the date of the fire (January 12, 1897) Landes offered to sell out his store for $3,000 or $3,500, and whether shortly before the fire Landes said his stock was considerably reduced and that he had not put in any new goods up to the time of fire, to show that the amount of claim was far in excess of his own offer to sell.</p> <p>Plaintiff objected, and the question was disallowed. ■</p> <p>“Q. Did you see his stock and what was its condition?”</p> <p>Plaintiff objected. Disallowed; defendant excepts.</p> <p>“Q. Within two weeks before the fire did you see the stock in the store?”</p> <p>Plaintiff objected. Disallowed; defendant excepts, and bill sealed. [4]</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>2. The plaintiff in his application for insurance having answered “ yes ” to the question “ Do you keep merchandise and sale accounts?” and in signing said application; making all the statements warranties on the part of the insured, if the jury believe from the evidence that “ yes ” was not a true answer then the verdict of the jury must be for the defendant. Answer : This we must leave to the jury, because you will remember he swears at that time he did keep accounts and quit it later. So that does not show he did not tell the truth at that time, and they can only require it of the time this application was made. [6]</p> <p>3. The plaintiff’s answer to the question, “ Are the stoves, pipes, flues and chimneys well constructed, secure and sound?” being in the affirmative, the jury should be instructed to find from the evidence that the fire originated from the box, as constructed around the stove in the cellar, and the verdict must be for the defendant. Answer: We cannot give you any such instructions. It is not our duty to say where the fire originated. You will find from the evidence where it originated and whether it originated negligently or not. We shall refuse the point. [7]</p> <p>4. If tbe jury believe that Landes, tlie plaintiff, was guilty of negligence in keeping a wooden inclosure around the stove or heater without tin or pipe crocks, he cannot recover. Answer : In that if the jury find he was negligent, and the fire took place from that, then he would not be entitled to recover. [8]</p> <p>5. The policy of insurance, line forty-seven, sets forth as follows : “In any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company.” The evidence shows that Hal deman had no written authority to act as agent of defendant company, and hence no act of his is binding on said company. Verdict must be for the defendant. Answer: Wo must refuse that for the reason, that this compan}r ratified his examination of this application, approved it, and issued the policy on that approval ; and a subsequent ratification is equivalent to prior authority. The ratification, say our Supreme Court, of an unauthorized act (suppose it had been entirely unauthorized) of an agent has l.he same effect upon the rights of the parties as if it were done upon authority. So when the company adopted this application placed by him in their possession, and issued a policy on it, it was as good an authority to the party insured, as if he had written authority under seal. It made it its act. [9]</p> <p>6. The indorsement on the policy in suit being an exact copy of the. insured’s application, made for the latter’s protection (and not a warrant on the part of the company of any of the facts therein contained), is not an acknowledgment on the part of the company that John" Haldeman was acting as its agent. Answer: We refuse to affirm that point, and say for the reason we have given you in answer to the others, its act in issuing the policy was binding upon it if he had no authority at the time he took the application. It approved it, ratified it. [10]</p> <p>7. If the jury believe that plaintiff kept no merchandise or sale accounts, having answered “yes” to that question in his application, he cannot recover. Answer: That we have already answered by saying that he swore on the stand here that at the time he made the application he did keep books of the kind here mentioned. So we refuse to answer that point in the affirmative. [11]</p> <p>9. If plaintiff, in his application, gave the description of the building as brick, 18x50, when the testimony uncontradicted of H. C. Gemperling, the owner, is that the store property was partly brick, 18x28, and frame 18x22, with a frame scullery attachment 12x14, it was such a misrepresentation as will not entitle him to recover: 100 Pa. 847. Answer: That we answer in the negative. The evidence shows it was a brick building with a frame attachment, so stated by the witnesses. [12]</p> <p>10. John Haldeman not being the agent of defendant company, as provided for in line forty-seven of the policy, his acts cannot be held to be binding on the company. Answer: That we refuse. We have already answered that. [13]</p> <p>Verdict and judgment for plaintiff for $2,098.46. Defendant appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions ; (6-13) above instructions, quoting them.</p> <p>An insurance agent whose powers are limited to receiving and forwarding applications, and delivering policies sent to him, on payment of the premiums, has no authority to waive the conditions of the policy: Pittsburg & Steubenville R. R. Co. v. Gazzam, 32 Pa. 340 ; Greene v. Lycoming Fire Ins. Co., 91 Pa. 387; Pottsville Mut. Fire Ins. Co. v. Fromm, 100 Pa. 347; Smith v. Ins. Co., 24 Pa. 320.</p> <p>The defendant contends that the learned court ought to have permitted it to have shown that the rate of premium would have been higher had Landes correctly described the building in which his merchandise was stored: 1 Biddle on Ins. sec. 531; Commonwealth Mutual Fire Ins. Co. v. Huntzinger, 98 Pa. 41 ;■ Heron v. Phoenix Mutual Fire Ins. Co., 180 Pa. 257.</p> <p>The answers of Landes were clearly misleading as to the character of the building: Eilenberger v. Protective Mutual Fire Ins. Co., 89 Pa. 465.</p> <p>Haldeman was the agent of the defendant: Mentz v. Lancaster Fire Ins. Co., 79 Pa. 477.</p> <p>Alterations or changes that do not increase the risk will not vitiate the policy: Wood on Fire Ins. sec. 243; Williams v. People’s Fire Ins. Co., 57 N. Y. 274; May on Ins. sec. 237.</p> <p>Where the agent of an insurance company erroneously describes the property in an application for a policy of insurance prepared by him and signed by the insured, the company cannot, in case of loss, defend by reason of the misdescription: Susquehanna Mutual Fire Ins. Co. v. Cusick, 109 Pa. 157; Armenia Ins. Co. v. Paul, 91 Pa. 520; May on Ins. sec. 166 ; Stauffer v. Manheim Mut. Fire Ins. Co., 150 Pa. 531; Graybill v. Penn. Twp. Mut. Fire Ins. Co., 170 Pa. 75.</p> <p>The authorities are manifold that a substantially correct description of the insured building is all that is required, especially when an agent of the company takes the risk and writes the application : Meadowcraft v. Standard Fire Ins. Co., 61 Pa. 91; Carr v. Hibernia Ins. Co., 2 Mo. App. Rep. 466; daughter v. Ins. Co., 43 U. C. C. B. 121 ; Wilkins v. Germania Fire Ins. Co., 57 Iowa, 529; Medina v. Builders’ Mut. Fire Ins. Co., 120 Mass. 225; Chase v. Hamilton Mut. Ins. Co., 22 Barb. 527; In re Universal Non-Tariff Fire ins. Co., L. R. 19 Eq. Cases, 485.</p>

<p>Equity — Jurisdiction—Discovery—Possession of personal property — Lunacy — Husband and wife.</p> <p>A bill in equity will lie by the committee of a lunatic for discovery and delivery of possession of deeds and other muniments of title, certificates of stock, negotiable securities and other personal property having special and peculiar value which is not adequately represented by market prices, against the husband of the lunatic where he denies her title, or there is reason to apprehend that he will deal with the property in any way adversely to her interest. The removal of the record of the lunacy proceedings to the Supreme Court by an appeal from an order of commitment for contempt will not prevent the filing of the bill, and it is immaterial that the bill is filed in the same court and of the same term and number as the lunacy proceedings, where that practice is required by the rules of court.</p> <p>Lunacy — Committee—Trust company — Act of May 9, 1889.</p> <p>In the absence of specific restriction in its charter, a trust company, by virtue of its general powers under the Act of May 9, 1889, P. L. 159, to “ execute trusts of every description,” must be presumed to have corporate capacity to act as a committee of a lunatic.</p> <p>Equity — Lunacy—Discovery—Possession of securities — Husband and wife — Preliminary injunction.</p> <p>On a bill in equity by a lunatic’s committee against the husband of the lunatic, for discovery and the delivery of securities which the husband had in his possession in a box in a trust company, the court in granting a preliminary injunction should not go further tiran to direct that the box should be opened in the presence of both parties; that only such securities should be delivered to the committee as the husband admitted to be the property of the lunatic; that he should be enjoined from selling or removing the securities in dispute unless security be given that they shall be forthcoming, and that defendant should be permitted to remove such securities as are not claimed by the committee, and that after such removal the trust company should be enjoined from permitting the defendant to have access to the box, except in the presence of the committee.</p> <p>Lunacy — Practice, G. P. — Notice—Next of kin — Order for application of income.</p> <p>Where an application is made by a committee of a lunatic for payment of expenses out of the lunatic’s estate, it is better practice to give notice to the next of kin, or parties standing in close relation to the lunatic.</p> <p>In making an order for the application of the estate of a lunatic for the payment of expenses, the principal of the estate should be sacrificed only to necessity, and such necessity should be determined in each specific instance by the court itself, having before it all the circumstances, including the nature and value of the property, the age, condition of health and situation in life of the lunatic, the effect of loss of accustomed comforts, the prospect of increasing infirmities, etc. It is the duty of the court to see that the future comfort of the lunatic should be made as secure as the circumstances permit, and for that purpose to keep present expenses within reasonable bounds. Commissions, fees and charges of all kinds should be allowed only on the most moderate scale of compensation.</p>

<p>Appeal, No. 376, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dee. T., 1897, No. 913, on verdict for defendants.</p> <p>Trespass for persona] injuries. Before Beitler, J.</p> <p>At the trial it appeared that plaintiff was employed as electrician by S. Faith & Company and was sent by his employer on November 9, 1897, to the hotel building of the Boothby Hotel Company to fix an incandescent lamp in the boiler room. He entered the boiler room, carrying a lighted candle, climbed a wooden horse, extracted the cut-out which connects the light with the ceiling, brought it down and took it into the engine room. When he got there, he found that the fuse had blown in the cut-out. He then put a new fuse wire into it, came back to the boiler room and went up the ladder again. Finding that his reach was not satisfactory he started down the ladder. When about half way down his candle blew out. He continued his descent without relighting the candle, and stepped into boiling water which in the mean time had overflowed from a well, through the alleged negligence of the engineer of the Boothby Hotel Company.</p> <p>The court directed a verdict in favor of the defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was the above instruction.</p> <p>This case is directly ruled by Ely v. Railway Co., 158 Pa. 283.</p> <p>Inferences of fact are for the jury. Contributory negligence must be such that without it the accident would not have happened: Railroad Co. v. Greiner, 113 Pa. 600.</p> <p>No one can he charged with carelessness where he omits todo that of which he has no time to judge. Such an act or omission, if faulty, will be called a mistake, but it is not carelessness : Brown v. French, 104 Pa. 604; Baker v. Northeast Borough, 151 Pa. 234; Sprowls v. Morris Township, 179 Pa. 219; Stoughton v. Gas Co., 159 Pa. 64; Lee v. Woolsey, 109 Pa. 124; R. R. Co. v. Jones, 128 Pa. 308; Owens v. Ry. Co., 155 Pa. 337.</p> <p>It is usually for the jury to say whether it is contributory negligence for a person to walk in the dark without a light. This must especially be the case where the party had a light which has gone out, and where he can get another only by walking in the dark after one: Howett v. R. R. Co., 166 Pa. 607 ; Merriman v. Pliillipsburg Borougli, 158 Pa. 78; Smith v. Wildes, 143 Mass. 556.</p> <p>Under no circumstances was it the duty of the plaintiff to anticipate the negligence of the Booth by Hotel Company in neglecting to pump its well out: Fredericks v. II. R. Co., 157 Pa. 116; R. R. Co. v. Hummed, 44 Pa. 375; Shearman and Redfield on Negligence (5th ed.), sec. 90; Vanesse v. Coal Co., 159 Pa. 403; Reeves v. R. R. Co., 30 Pa. 461; Brown v. Lynn, 31 Pa. 510; Bruch v. Pliila., 181 Pa. 591; Schall v. Cole, 107 Pa. 7 ; 2 Thompson on Negligence, 1172, sec. 18; Grimmelman v. Union Pacific Ry. Co., 70 N. W. Rep. 90; Totten v. Phipps, 52 N. Y. 354; Sylvester v. Maag, 155 Pa. 225: Smith v. Wildes, 143 Mass. 556 ; Kinchlow v. Elevator Co., 57 Kan. 374 ; Pender v. Raggs, 178 Pa. 337 ; Dillon v. Light Co., 179 Pa. 482.</p> <p>The negligence which was the proximate cause of the plaintiff’s injuries was the overflow of the hot water from the well: Warren v. Kauffman, 2 Phila. 259; Shafer v. Lacock, Hawthorn & Co., 168 Pa. 503; Hydraulic Works Co. v. Orr, 83 Pa. 332; Schilling v. Abernethy, 112 Pa. 437; Scott v. Dock Co., 3 Hurl. & Colt. 596; Byrne v. Boadle, 2 Hurl. & Colt. 722 ; Rose v. Transportation Co., 20 Blatchford (U. S.), 411; Cummings v. Furnace Co., 60 Wis. 604; Volkmar v. Railway Co., 134 N. Y. 418; Graham v. Badger, 164 Mass. 42; Mulcairns v. City of Janesville, 67 Wis. 25; Railroad Co. v. Rainbolt, 99 Ind. 551; Dougherty v. Railroad Co., 81 Mo. 325; Seybolt v. Railroad Co., 95 N. Y. 562; Lowery v. Railway Co., 99 N. Y. 158; Railway Co. v. Rosenzweig, 113 Pa. 535; Johnson ” Bruner, 61 Pa. 58.</p> <p>The doctrine of sic utere tuo ut alienum non lsedas has often been applied in Pennsylvania, and rules this case: Stephens, Jackson & Co. v. Martins, 23 W. N. C. 475; Gas Co. v. Murphy, 39 Pa. 257; Rogers v. Phila. Traction Co., 182 Pa. 473; Jones v. Ry. Co., L. R. 3 Q. B. Cases, 736 ; Heaven v. Pender. L. R. 11 Q. B. Div. 503.</p> <p>It is the duty of the master to warn a servant of any danger known to the master: Shearman and Redfield on Negligence (5th ed.), sec. 185; Crowley v. Cutting, 165 Mass. 436; Schall v. Cole, 107 Pa. 7 ; Smith v. Tube Co., 183 Pa. 485; Rummell v. Dilworth, 111 Pa. 343.</p> <p>That the plaintiff, although paid by S. Faith & Compan}', was the fellow-servant of the Boothby Hotel Company’s servants when temporarily acting with them was decided in Wischam v. Rickards, 136 Pa. 109; Flower v. Penna. R. R. Co., 69 Pa. 210.</p> <p>Plaintiff being the fellow-servant of the hotel company’s servant, the company was not liable: Pawling v. Hoskins, 132 Pa. 617 ; Ingram v. Lehigh Coal, etc., Co., 148 Pa. 177.</p> <p>Conceding the contention of appellant that the proximate cause of his injury was the overflow of the drain well, such overflow was not due to the negligence of his employers, S. Faith & Company: Sykes v. Packer, 99 Pa. 465; Kohler v. R. R. Co., 135 Pa. 346; Brown v. Barnes, 151 Pa. 562; Ely v. Ry. Co., 158 Pa. 237; Nuss v. Rafsnyder, 178 Pa. 397.</p> <p>Appellant was not working at the time of his injury in a service within the contractual duties of S. Faith & Company at the Boothby Hotel, but was then engaged in a common employment with the servants of the Boothby Hotel Company: Wischam v. Rickards, 136 Pa. 109.</p> <p>The appellant was guilty of contributory negligence in completing his descent of the ladder without a light when a lighted candle was in the possession of a fellow-workman within ten feet of him in the same room. Appellant thereby assumed the risk of the dangers enveloped in the darkness : Wilkinson v. Fairrie, 1 Hurl. & Colt., 633.</p>

<p>Wills — Life estate — Power to sell — Mortgage.</p> <p>Where a testator gives his wife the income of his property during her life or her widowhood with a power to sell real estate “ for the payment of my debts and purposes of my estate,” without any liability on the part of the purchaser to see to the application of the purchase money, and authorizes his widow to continue his business for her sole use, she has no power to mortgage the real estate for a longer period than her own life to raise money to pay interest on a mortgage, to pay taxes or to assist her in conducting the business ; and if she does so and the mortgagee knows or has the means of knowing that the money is not to be used to pay the testator’s debts, or for the purposes of his estate, he will take no title to the real estate by purchase in foreclosure proceedings on the mortgage; and an assignee of the mortgagee who has taken it without any declaration of no set-off is in no better position than the mortgagee.</p> <p>A release of part of the bond covered by a mortgage which was ultimately decided to be void, in consideration that the mortgage should be valid as to the remainder of the property is a contract looking to the abatement of possible litigation and to repose, and as such, is both substantial and valid as a consideration.</p>

<p>Appeal, No. 386, Jan. T., 1898, by I-Iiram DeWalt, from judgment of Superior Court, affirming order of court of quarter sessions of Philadelphia Co., granting a retail liquor license. .</p> <p>Appeal from Superior Court.</p> <p>The case was reported in 8 Pa. Superior Ct. 521.</p> <p>Error assigned was in affirming the order of the quarter sessions.</p> <p>The record showing that the case involves the construction of the constitution of the United States and of Pennsylvania, no special allowance was necessary: In re Melon Street, 182 Pa. 397.</p> <p>The retail liquor saloon or dram shop is a common nuisance: Mugler v. Kansas, 123 U. S. 623; Crowley v. Christensen, 137 U. S. 86!</p> <p>The retail liquor saloon or dram shop exists only by permission of acts of legislature: Youngblood v. Sexton, 32 Michigan, 106; State v. Hipp, 38 Ohio, 206 ; Crowley v. Christensen, 137 U. S. 86; Toledo, etc., Ry. Co. v. Jacksonville, 67 111. 37 ; Lake View v. Rose Hill Cemetery Co., 70 111. 192.</p> <p>Acts of legislature creating, permitting or attempting to reg'ulate the retail liquor saloon or dram shop, are unconstitutional and void: Mugler v. Kansas, 123 U. S. 623; Stone v. Mississippi, 101 U. S. 814.</p>

<p>Appeal, No. 406, Jan. T., 1898, by plaintiffs, from decree of C. P. No. 4, Phila. Co., June T., 1895, No. 1208, on bill in equity.</p>

Appeal, No. 409, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 1, Phila. County, Dec. T., 1896, No. 210, on verdict for defendants. Assumpsit to recover ground rent. Before Brégy, J. At the trial plaintiff’s counsel made the following offer: “1 offer to prove as a fact that this ground rent has neven been paid off and extinguished.

Appeal, No. 423, Jan. T., 1898, by defendant, from judgment of C. P. No. 2, Phila. Co.. June T., 1895, No. 281, on verdict for plaintiff. Assumpsit on a promissory note. Before Pennypacker, P. J. At the trial it appeared that an action was brought against the indorsee on the following note: “ $1,500.

Appeal, No. 9, Jan. Term, 1899, by George Immendorf et al., from decree of O. C. Phila. Co.. Oct. Term, 1897, No. 549, dismissing exceptions to adjudication. Exceptions to adjudication. The auditing judge, Ferguson, J., filed the followiug opinion : The facts of this case as they appeared from the evidence were that Frederick Iminendorf had a license for a tavern at No. 1103 Passyunk Road, which ran for the term of one year from June 1,1896.

<p>Insurance — Life insurance — Payment of premium — Condition precedent.</p> <p>Where a policy of life insurance provides that the policy shall not be binding until the first premium shall have been paid, and it appears in an action upon the policy that the company had received nothing from the insured except a worthless check, the policy should uoL be admitted in evidence, and a judgment of nonsuit against the plaintiff is properly entered.</p>

<p>Appeal, No. 28, Jan. T., 1899, by plaintiff, from decree of C. P. No. 1, Phila. Co., June T., 1897, No. 1420, sustaining demurrer to bill in equity.</p> <p>Bill in equity for an account.</p> <p>The averments of the bill are set forth in the opinion of the Supreme Court.</p> <p>The court sustained the demurrer of the defendant.</p> <p>Plaintiff’s exhibit “ A ” attached to bill is as follows:</p> <p>“ Agreement made this 5th day of March, A. D. 1897, between John Laughlin and James J. Kane, as follows:</p> <p>“ Whereas said John Laughlin has purchased at sheriff’s sale lot of-ground and buildings east side of Frankford avenue, below Stella avenue, used as a livery stable, and said James J. Kane is now in possession and desires to remain; And whereas said James J. Kane is indebted to said John Laughlin in various sums including two certain judgments now entered of record and certain costs, etc., paid to sheriff at time of sheriff’s sale, and also the sum of two hundred and thirty-five dollars payable to the Best Plan Building and Loan Association;. now this agreement witnesseth that the said James J. Kane has paid the said John Laughlin the sum of three hundred dollars in cash and agrees to pay the sum of. two hundred dollars per month on the fifth day of each and every month until the amount of eleven hundred and sixty-five 84-100 dollars is fully liquidated, and then, within one year thereafter, to pay the sum of one thousand dollars every year until the judgments above mentioned are fully paid and satisfied, said James J. Kane to pay at least one thousand dollars on account of said judgments within eighteen months from this date. Said James J. Kane is to assume and pay ground rent, building association dues, taxes, water-rent, and keep the buildings in good order and repair during his occupancy.</p> <p>“ The said John Laughlin agrees to convey the said premises to said James J. Kane as soon as the total indebtedness is fully-paid, and it is hereby expressly agreed and understood that in case the said James J. Kane shall not make the payments herein agreed upon or shall fail in the performance of any other of the agreements, covenants and promises herein contained, then this agreement shall become null and void without any notice to said James J. Kane, and no waiver (express, implied or constructive) of any of the rights and privileges herein contained shall be binding upon said John Laughlin unless agreed upon in writing.</p> <p>“If said James J. Kane shall violate any covenant or condition herein contained then this agreement shall absolutely determine at the option of said John Laughlin and without notice to said James J. Kane being required or necessary, and when this agreement shall be so determined any attorney may appear for said James J. Kane in an action of ejectment to be brought by the said John Laughlin, in any competent court, for the recovery of the premises and damages for the detention thereof, and therein confess judgment against said James J. Kane for which this agreement or a true copy thereof shall be a sufficient warrant. And the said John Laughlin may issue thereon all necessary writs or process for recovering possession of said premises and damages for detention and costs. No determination of this agreement shall release the said James J. Kane from liability for the breach of any covenant therein contained.</p> <p>“Witness our hands and seals the day and year aforesaid.</p> <p>“Witness:</p> <p>“F. P. Buckley.</p> <p>( James J. Kane. [Seal] ) John Laughlin. ' [Seal] ”</p> <p>Error aligned was decree sustaining demurrer.</p> <p>Equity has jurisdiction: Johnston v. Price, 172 Pa. 427; Kirkpatrick v. McDonald, 11 Pa. 387; Brush Electric Co.’s'App., 114 Pa. 574; Wesley Church v. Moore, 10 Pa. 273; Bierbower’s App., 107 Pa. 14; Harper’s App., 109 Pa. 9; Drake v. Lacoe, 157 Pa. 17 ; Biddle v. Bank, 2 Parsons’ Sel. Eq. Cases, 52; McQueen’s App., 104 Pa. 595; Blood v. Savings & Loan Co., 164 Pa. 95; Maffit’s Administrator v. Rynd, 69 Pa. 387 ; Russell v. Southard, 12 How. (U. S.) 139; Sweetzer’s App., 71 Pa. 264; Kinports v. Boynton, 120 Pa. 306; Mortland v. Mortland, 151 Pa. 596 ; McGinn v. Benner, 180 Pa. 396.</p> <p>cited Kane v. Traction Co., 186 Pa. 145; Greenfield’s Est., 14 Pa. 496; Penna. R. Co. v. Shay, 82 Pa. 198; Hoffman v. R. R. Co., 157 Pa. 195; Frauenthaks App., 100 Pa. 291.</p>

Appeal, No. 49, Jan. T., 1899, by Louisa Mueller, from decree of Ó. C. Phila. Co., July T., 1898, No. 75, dismissing exceptions to adjudication. Exceptions to adjudication. Ashman, J., the adjudicating judge, stated the facts to be as follows: It was sought to charge the widow as executrix with the value of the unexpired lease of the saloon at 1108 Sansom street. The decedent, it was shown, was in business at the time of his death as a saloon keeper.

<p>Wills — Trusts and trustees — Discretion of trustee — Spendthrift trust.</p> <p>Testator directed as follows: “ I direct my trustees to pay to eacli of my sons as they respectively attain twenty-one years of age five thousand dollars ; and on their attaining twenty-five years of age I empower my trustees to pay or transfer to them respectively such further sum or property as slial 1 together with the amount theretofore received by them from myself as an advancement or under this will amount to the half of their share in my estate; the same being divided into as many shares as there are children or the issue of deceased children. This power is to be exercised either in the whole or partially and from time to time as my trustees shall deem proper looking to the habits, condition and circumstances of my said sons respectively. The residue of the share of my sons shall be retained b}' my trustees ” upon a strict spendthrift trust. If a son died without issue the share “ held in trust” was to be a part of the residue of testator’s estate. A son died without issue after the age of twenty-five without the trustees having exercised adversely their discretion to pay over to him one half of his share. Held, that the share over which the trustee had the discretionary power passed to the son’s estate, and was payable to his executrix.</p>

<p>Appeal, No. 577, Jan. T., 1896, by Albert E. Kruse, from decree of O. C. Montgomery Co., Oct. T., 1896, No. 101, overruling exceptions to auditor’s report. Before Green, Williams, Mitchell, Dean and Fell, JJ., on argument.</p> <p>Exceptions to report of auditor, Montgomery Evans, Esq.</p> <p>The facts appear in Baeder’s Estate, ante, p. 606, and in the opinion of the Supreme Court.</p> <p>The court held that Henry H. Baeder did not take an absolute interest in the advancement of one half of the estate under the fifth clause of his father’s will, and that, therefore, the attachment execution issued against Henry did not bind said half in the hands of the trustee.</p> <p>Errors assigned were in dismissing exceptions to auditor’s amended report.</p>

<p>Appeal, No. 564, Jan. T., 1896, by Emily Baeder Shirk, from decree of O. C. Montgomery Co., Oct. T.,1896, No. 101, overruling exceptions to auditor’s report.</p>

<p>Appeal, No. 101, Jan. T., 1899, by defendant, from decree of C. P. Fayette Co., No. 293, in equity.</p> <p>Bill in equity for an injunction, to restrain the construction of a bridge.</p> <p>The facts were stated by Kennedy, P. J., of the 6th judicial district, specially presiding, in an opinion on a motion to dissolve a preliminary injunction, as follows:</p> <p>The purpose of this bill is to have the defendant enjoined or restrained from tbe construction of an abutment or approach on Main street, in the borough of Connellsville, to a new bridge proposed to be erected by it, the defendant, across tlie Youghiogheny river, near tlie site of the present bridge owned and operated by it across the said river.</p> <p>An act of the legislature of Pennsylvania, entitled “ An act to authorize Isaac Meason and Zachariah Connell, their heirs and assigns, to erect, build and maintain a toll bridge over the Youghiogheny river at Connellsville, in Fayette county,” was passed March 15, 1800. By the first section of this act, the said Isaac Meason and Zachariah Connell, their heirs and assigns, were authorized “to erect, build, support and maintain a good and substantial bridge over and across the Youghiogheny river at Connellsville near where the Great Road leading from Philadelphia to Uniontown crosses said river, and that the property of said bridge when built shall be and the same is hereby-vested in the aforesaid Isaac Meason and Zachariah Connell, their heirs and assigns, forever.” The first section thereof also containing the provision: “ That nothing in this act shall extend to authorize the said Isaac Meason and Zachariah Connell, their heirs and assigns, to erect or build a bridge in the manner in this act before mentioned on any private property without consent of the owner or owners thereof, or to erect the same in such manner as in any way to interrupt or injure the navigation of said river or the passage over the ford across the same near where said bridge may be erected.” Other provisions, conditions and restrictions appear in said act of assembly, which, however, are immaterial to this controversy. The present. Main street in the borough of Connellsville constitutes a part of the “Great Road” mentioned in this section, and is sixty-feet in width, the driveway being thirty-six feet wide and the balance of said street being used as sidewalks.</p> <p>In pursuance of the authority therein granted the grantees proceeded to erect and construct a bridge at Connellsville across the river, selecting the termini for the same at the bank of the river on either side thereof.</p> <p>By an act of the same legislature entitled “ A supplement to an act to authorize Isaac Meason and Zachariah Connell, their heirs and assigns, to erect, build and maintain a toll bridge across the Youghiogheny river at Connellsville, in Fayette county, passed March 15, 1800,” approved April 17, A. D. 1861, the then owners of said bridge were granted a charter of incorporation under the name, style and title of the Youghiogheny Bridge Company, and as such have continued to maintain and operate the bridge, at the point named, as constructed, from that date down to the present time.</p> <p>On October 17, 1898, at a regular meeting of the council of the borough of Connellsville, being a municipal corporation, by resolution, accepted an agreement presented by the Youghiogheny Bridge Company, which provided among other things as follows: “ That the said party of the first part (the borough of Connellsville), for the consideration hereinafter mentioned, hereby agrees to grant by ordinance duly enacted to the said Youghiogheny Bridge Company the right and privilege to erect, construct and maintain a bridge for the puipose of public travel in Main street in said borough, said bridge to be so constructed as to leave the said Main street at least eighteen feet in width from the southern curb as at present established to the said bridge, and bridge to occupy the remaining portion of said street, including the sidewalk on the northern side, and to extend east on said Main street no farther than 163 feet from the eastern curb on Water street as at present established.” In consideration of which the Youghiogheny Bridge Company (this defendant) agreed to erect, construct and maintain the bridge in accordance with certain details and specifications mentioned in said agreement, and to give bond in the sum of fifty thousand dollars ($50,000) for the faithful performance of the covenants thereof. This agreement was signed by the president and secretary of the council of the said borough, and also by the president and secretary of the bridge company, and the bond in pursuance thereof was executed by the said bridge company, bearing date the same day, to wit: October 17, 1898. The necessity or materiality of said bond is not apparent, inasmuch as no obligation or liability was assumed thereby on the part of the bridge company, in addition to the covenants contained in the article of agreement.</p> <p>The regular meetings of the council of said borough are held on the first and third Mondays of each month. The next meeting of said council, after that of October 17,1898, should have occurred on November 7,1898 ; no meeting, however, was held upon that day. A special meeting was held on November 10, 1898, the only notice of which given, as appears by the testimony, was by a policeman of the borough notifying verbally sucli members as he saw, of the proposed meeting. It does not appear what members were even thus notified. At the meeting held on November 10, 1898, according to the minutes thereof, which have been offered in evidence, there was not a full attendance, at least two of the members of said council being absent. According to the same minutes, the following action was taken, in reference to the agreement with the bridge company:</p> <p>“ On motion of Mr. Hyatt, seconded by Mr. Bishop, that an ordinance be granted to the Youghiogheny Bridge Company. Motion carried.”</p> <p>This is all the action taken by the council, as appears by the minutes. It was testified to, however, that the ordinance marked exhibit “ G ” was passed at this meeting. The first section contains this provision: “ Be it ordained by the authority of the town council of the borough of Connellsville, and it is hereby ordained by the authority of the same, that from and after the passage of this ordinance, the Youghiogheny Bridge Company shall have the right and privilege to erect, construct and maintain a bridge for the purpose of public travel in Main street in said borough, such bridge to be so constructed as to leave said Main street at least eighteen feet in width from the southern curb, as at present established, and to extend no further east on said street than a point one hundred and sixty-three (168) feet from the .eastern curb of Water street as at present established.” It is not necessary to mention here oilier provisions of this ordinance, as they are not material to this controversy.</p> <p>It appears by the testimony that this ordinance was passed, as before stated, on November 10, and was presented to the burgess of the borough on or about November 15, by the clerk of council, when he promptly vetoed the same, giving his veto message to the clerk of council on or about November 17. .</p> <p>The next regular meeting of council occurred on November 21, at which meeting the veto message was, constructively, at least, in possession of clerk of council. On that day, and prior to the meeting of council, the burgess called at the place of business of the clerk of council, and obtained from him his veto message, for the purpose of making some immaterial corrections in the wording or punctuation. He did not, however, withdraw his veto of the ordinance, but taking the paper, he made the unimportant correction, returned it to the clerk, as he, the burgess states, on the same day, within half an hour after obtaining the paper from the clerk, placing it in the same place from which the clerk had taken it to hand to the burgess.</p> <p>There is a conflict in the testimony as to the time the paper was returned to the clerk, he (the clerk) testifying that it was not returned on the same day that it was obtained by the burgess, but be says that he found it in the place from which he had taken it to hand to the burgess on tbe day following. This conflict does not seem to be very material, as tbe burgess did not withdraw bis veto message, but only obtained the paper from the clerk for the purpose of making this immaterial correction therein. It was therefore in tbe possession of tbe proper officer of the council for the purpose of presentation to that body at its regular meeting of November 21. It does not seem to be tbe duty of the burgess to present in person the veto message to that body. His duty is performed when be presents it to the proper officer of council, the clerk in this instance, whose duty it should he to present it to council, at their next regular meeting. It appears from the testimony, however, that while not read at the meeting on November 21, the veto message was actually presented at the next regular meeting thereafter, which was beld on December 5, 1898, at which meeting it was read, but no action taken thereon. Subsequently the clerk of council published the ordinance as having been passed on November 10, appending the note which appears at the foot of exhibit “ G,” signed by himself as clerk, stating that the burgess had not returned tbe ordinance together with his reasons for not approving the same, to the council, at its next regular meeting, after the ordinance had passed, and therefore it had become of full force and effect, as if signed and approved by the said burgess.</p> <p>Water street in said borough runs parallel with tbe Youghiogbeny river, near to the bank thereof, and almost at right angles to the bridge proposed to be constructed and to Main street. Tbe terminus and approach to tbe bridge upon tbe Connellsville side, as heretofore constructed and maintained, is the bank of tbe river between the same and the western line of Water street. A large portion of Water street is occupied by tbe tracks of tbe Baltimore & Ohio Railroad Company, leaving about eighteen feet between the eastern line of said tracks and tbe eastern curb of Water street free for carriages, vehicles and other travel over the same. The proposed new bridge, if built, will have an overhead crossing of the tracks of the Baltimore & Ohio Railroad, being elevated upwards of twenty feet above the same, and after crossing Water street meets Main street, at a very great elevation above the present grade thereof, requiring the building of an abutment at its commencement near Water street, upwards of ten feet in height, and occupying with solid masonry the entire northern half of said Main street to a point 163 feet -from the eastern curb line of Water street, at which point the approach of the bridge and the abutment so erected meets the present grade of Main street. The abutment so to be built will occupy to the lot line or property of those abutting on Main street, entirely shutting off such abutting owners from access to Main street at its present grade, or as at present used.</p> <p>One of the plaintiffs, Thomas R. T. Orth, is the owner of property on the southeast corner of Water and Main streets, and his property is therefore affected by the abutment or approach of the bridge so to be built. Other plaintiffs in the bill are the owners of property on Water street, but none of them own property abutting on Main street, adjacent to the approach of the bridge.</p> <p>It is not necessary to consider here further the details of the plans and specifications for the erection of the approach to the bridge, it being sufficient to state that the approach, with its abutment and columns or pillars, will occupy the whole northern half of said street from a point near Water street to a point 163 feet therefrom, and up to the property or lot line of those abutting on Main street, and thereby interfering with and preventing access and use of Main street as at present constituted.</p> <p>The foregoing facts as stated are all admitted, or clearly established by the testimony, and are found as facts for the purpose of this ease.</p> <p>This bill was filed on January 5, 1899, and an ex parte preliminary injunction granted, which after a partial hearing had thereon January 6, 1899, was continued until further order. Subsequently, on January 11, the case came on for hearing, upon a motion to dissolve the preliminary injunction before granted, and upon motion of defendant’s counsel to dismiss the bill. At this hearing the burgess presented a paper asking leave to withdraw from tbe suit and to discontinue the same so far as lie was concerned, and at the same time filed another paper, in writing, stating that he had withdrawn his veto of the ordinance in question, and agreed that it should be of as full force and effect as if he had approved the same. This case must now he considered as if he wore no longer a party plaintiff thereto. Testimony was taken at the hearing, showing in detail the plans and specifications for the building of the bridge, so far as the same are material to this controversy, and reciting also tbe his tory hi reference to the alleged passage of the ordinance, exhibit “ G,” and proceedings in reference thereto.</p> <p>The court continued the preliminary injunction theretofore awarded.</p> <p>Error assigned was the above order of the court.</p> <p>The borough council of Connellsville gave municipal consem to the work by the resolution of October 17, 1898. No ordi-. nance was necessary: Draper v. Springport, 104 U. S. 501; Wiles v. Hoss, 114 Ind. 371; Fazende v. City of Houston, 34 Fed. Rep. 95; Fanning v. Gregoire, 18 How. (U. S.) 524; City of Alton v. Mulledy, 21 111. 76; Western Saving Fund Soc. v. Phila., 31 Pa. 175; Clark v. Corporation of Washington, 12 Wheat. 40; Hamilton v. Newcastle & Danville R. R. Co., 9 Ind. 359; Ross v. City of Madison, 1 Ind. 281; Bellmeyer v. Marshalltown, 44 Iowa, 564; Chattanooga v. Geiler, 13 Lea, 611; Wheeler v. Chicago, 24 111. 105; Moore v. City of New York, 73 N. Y. 238; Polk County Savings Bank v. State, 69 Iowa, 24; Scofield v. City of Council Bluffs, 68 Iowa, 695; Bucroft v. City of Council Bluffs, 63 Iowa, 646; Higlit v. Munroe Co., 68 Ind. 576 ; Seibrecht v. New Orleans, 12 La. Ann. 496; Straus v. Ins. Co., 5 Ohio St. 59; Hayward v. Davidson, 41 Ind. 212; McOaho v. Fountain Co., 46 Ind. 380; Burnett v. Abbott, 51 Ind. 254; Gordon v. Dearborn Co., 52 Ind. 322; Jackson Co. v. Applewhite, 62 Ind. 464; Jennings Co. v. Verbarg, 63 Ind. 107.</p> <p>Tbe idea tliat tlie power of eminent domain, so far as necessary to render available and serviceable the grant of any corporate right to erect and maintain any toll bridge or highway, is not necessarily carried by the grant itself finds no support in the law. The right of eminent domain is always carried by implication with every such corporate grant: Arnold v. Bridge Co., 1 Duvall, 372 ; Young v. Buckingham, 5 Ohio, 485 ; Plecker v. Rhodes, 30 Gratt. 795 ; Day v. Stetson, 8 Maine, 365 ; Young v. McKenzie, 3 Ga. 31; State v. Maine, 27 Conn. 641; Lang-don v. City of New York, 93 N. Y. 129; Williams v. City of New York, 105 N. Y. 419; Monongahela Bridge Co. v. Kirk, 46 Pa. 129.</p> <p>No new servitude would be imposed by the new structure upon other land for which Orth might maintain a bill until his damages had been paid or secured: Rafferty v. Central Traction Co., 147 Pa. 579; Trickett on Borough Law, 545, note 2.</p> <p>■ Passing ordinances in relation to the opening and improvement of streets is the exercise of legislative, not judicial, power: Wiggin v. Mayor, etc., of N. Y., 9 Paige, 16; Higginson v. Inhabitants of Nahant, 11 Allen, 530 ; Pitts., etc., Ry. Co. v. Point Bridge Co., 165 Pa. 37.</p> <p>Plaintiffs are proper parties to maintain this bill: Penna. R. Co.’s App., 115 Pa. 514; Thomas v. Inter-County St. Ry. Co., 167 .Pa. 120.</p> <p>The company has no valid charter authorizing it to occupy Main and Water streets in the borough of Connellsville, with the abutments, etc., of their bridge: Philadelphia v. River Front R. R. Co., 173 Pa. 334; Case of The Phila. & Trenton R. R. Co., 6 Wharton, 25; Barker v. Hartman Steel Co., 129 Pa. 551; Com. v. Rush, 14 Pa. 186.</p> <p>If the appellant company had valid legislative authority for its occupancy of said streets, the municipality, by valid and legal ordinance, has not given its consent to such company: Taylor Avenue Case, 146 Pa. 638 ; Lehigh Coal & Nav. Co. v. Inter-County'Street Ry. Co., 167 Pa. 126.</p>

<p>Mechanics' liens — Stipulation against filing liens — Recording contract— Attachment execution — Payment.</p> <p>An attachment execution by a judgment creditor of a contractor for the erection of a building cannot be sustained against the owner as garnishee where it appears that the building contract which prohibited the filing of any liens had not been recorded in the prothonotary’s office, and, before the attachment a subcontractor had filed a lien which the owner had paid, thereby leaving no balance due the contractor. In such a case the lien filed was valid, and the owner had a right to pay it, without reference to the attachment.</p>

<p>Divorce — Adultery—Evidence —Confessions—Letters to and from eo-respondent.</p> <p>A divorce will be granted on the libel of a hnsbund against his wife charging adultery, where the husband testifies to a confession made to him by his wife, and his testimony in this regard is corroborated by three other witnesses, who testified that she had admitted the intimacy charged in the libel, and also admitted that she had so confessed to her husband, and where letters between the respondent and co-respondent, properly identified, show on their face enough to establish an unlawful intimacy.</p>