Volume 191 — Pennsylvania State Reports

<p>Appeal, No. 390, Jan. Term, 1898, by the commonwealth of Pennsylvania, from decree of O. C. Phila. Co., July T., 1898, No. 240, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>, At the audit the commonwealth claimed a tax of two per cent upon $917,519.88, under the Direct Inheritance Tax Act of May 12,1897, P. L. 56. The auditing judge, Hanna, P. J., disallowed the claim.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

Appeal, No. 391, Jan. T., 1898, by the commonwealth of Pennsylvania, from decree of O. C. Phila. Co., July Term, 1898, No. 208, dismissing exceptions to adjudication. The same question was raised as in Cope’s Estate, ante, p. 1, and decided in the same way.

Appeal, No. 440, Jan. T., 1897, by the commonwealth of Pennsylvania, from decree of O. C. Phila. Co., Jan. Term, 1897, No. 239, dismissing exceptions to adjudication. Exceptions to adjudication. Before the court in banc.

<p>Appeal, No. 392, Jan. T., 1898, by the commonwealth of Pennsylvania, from decree of O. C. Phila. Co., Jhly T., 1898, No. 216, dismissing exceptions to adjudication.</p>

Appeal, No. 438, Jan. T., 1897, by commonwealth of Pennsylvania, from decree of O. C. Phila. Co., April Term, 1897, No. 527, dismissing exceptions to adjudication. At the audit of the estate the tax was awarded by Ashman, J., in his adjudication reported in 6 Dist. Rep. 499, to which adjudication exceptions were filed by the accountant and sustained by the court in banc.

<p>Appeal, No. 462, Jan. T., 1897, by commonwealth of Pennsylvania, from decree of O. C. Phila. Co., April T., 1897, No. 817, dismissing exceptions to adjudication.</p>

<p>Appeal, No. 463, Jan. T., 1897, by commonwealth of Pennsylvania, from decree of O. C. Phila. Co., April T., 1897, No. , dismissing exceptions to adjudication.</p>

<p>Appeal, No. 464, Jan. T., 1897, by commonwealth of Pennsylvania, from decree of O. C. Phila. Co., April T., 1897, No. , dismissing exceptions to adjudication.</p>

<p> Trusts and trustees—Active trust—Contingent remainder. </p> <p>Where a trust is created by will by a mother in favor of a married son thirty-nine years of age, whose wife is thirty-four years of age, without children, and the will gives active and discretionary duties to the trustees, and gives certain interests to the son’s widow and his sister, and directs that upon the marriage or death of the son’s widow the principal shall go to the child or children of the son living at his death, the trust must be continued to protect the remainders to the son’s children, if he shall have any, and he will not be entitled to the principal of the fund absolutely upon the release to him of the interests of his wife and sister.</p> <p>Taxation—Direct inheritance tax—Decedents' estates—Constitutional law —Act of May 12, 1897.</p> <p>The Act of May 12, 1897, P. L. 56, known as the Direct Inheritance Tax Law, is unconstitutional.</p>

<p>Appeal, No. 169, Jan. T., 1897, by defendant, from judgment of S. C., Jan. T., 1896, No. 156, from judgment and sentence of Q. S. Lycoming Co., Dec. T., 1894, No. 13.</p> <p>Appeal from Superior Court.</p> <p>The case was reported in 4 Pa. Superior Ct. 74.</p> <p>Error assigned was judgment of Superior Court.</p>

Appeal, No. 371, Jan. T., 1898, by Pennsylvania Company for Insurance on Lives and Granting Annuities, from decree of O. C. Delaware Co., Nov. T., 1898, No. , dismissing exceptions to auditor’s report. Exceptions to auditor’s report.

<p>Appeal, No. 217, Jan. T., 1898, by plaintiff, from judgment of C. P. Schuylkill Co., July T., 1896, No. 324, on verdict for defendant.</p> <p>Assumpsit to recover the amount of a worthless check alleged to have been improperly charged against the plaintiff’s account. Before Bechtel, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[As bearing upon the rights of the parties, we say this to you: If you find that Thomas H. Connell gave to James Goodwin, who was then the president of the Schuylkill Electric Railway Company, a check for $4,000 on September 11, 1895, for the use and benefit of the said electric company, which was paid on the order of said Goodwin, and applied to the benefit of said electric company, and that said Thomas H. Connell received the check of W. W. Hess as a consideration of the check he gave Goodwin on September 12,1895, for the same amount, and that the Hess cheek was placed to the credit of Connell and the amount thereof applied to the payment of the Connell check on the order of Goodwin, for the use and benefit of the electric company, and that subsequently William A. Barritt, treasurer of the electric company, directed the Hess check to be charged to and paid out of the account of the electric company, then we think you should find in favor of the defendant, and we so say to you.] [1]</p> <p>Defendant’s first point and the answer thereto were as follows:</p> <p>If the jury find that T. H. Connell, on September 11, 1895, gave to the Schuylkill Electric Railway Company his check on the Government National Bank of Pottsville, for $4,000, to be used for said company, and which said check James Goodwin, president of said company, made payable to his individual order, and being indorsed by him and deposited for collection was paid by the Government National Bank; and if the jury further find that the Schuylkill Electric Railway Company gave to said Connell, in exchange for his check, a check of W. W. Hess, to the order of T. H. Connell, dated September 12,1895, on the Corn Exchange National Bank, for $4,000, which said check, after being deposited by said Connell, was protested for nonpayment on September 16, 1895, and if the jury further find that said check, amounting to $4,000, together with protest fees, $2.81, making a-total of $4,002.31, was, subsequently, by direction of W. A. Barritt, Jr., treasurer of the said Schuylkill Electric Railway Company, charged to his account in said bank, and said check was surrendered to him when the bank book was settled, the plaintiff cannot recover in this case, and the verdict of the jury should be in favor of the defendant. Answer: We have in substance so stated to you. This we affirm. [2]</p> <p>Plaintiff’s fourth point and the answer thereto were as follows:</p> <p>That in order to charge a party with the debt of another, the undertaking to do so must be in writing, and the check given by Hess to Connell, being no debt of the railway company and there being no written undertaking to pay said check by said railway company in writing, the Government National Bank had no right to deduct the amount of said Hess check from the account of the plaintiff, and the verdict of the jury must be for the plaintiff. Answer: This asks us to direct you to find a, verdict in favor of the plaintiff. We have heretofore said to you in this case that we are not prepared to do that, but that it is our purpose to leave you to say what your verdict shall be, and we cannot therefore affirm this point. It is true that when one party seeks to make another liable for the debt of another, and the amount exceeds the sum of $20.00, he must have a writing or memorandum of writing, but we cannot say to you, under the evidence in this case, that this principle of law will prevent a verdict in favor of the defendant, or that it will not, because we think the facts of the case are not such as to enable us to make such statement to you as a matter of law. [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Corporations—By-laws— Check—Estoppel.</p> <p>A check drawn by the treasurer of a corporation without a formal order of the directors as required by the by-laws, and indorsed by the president, is good in the hands of a person without knowledge of the by-laws, where it appears that the president had deposited in the company’s account a sum out of his own moneys sufficient to meet the check, and the company had appropriated this sum to other corporate purposes.</p>

<p>Appeal, No. 284, Jan. T., 1898, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1895, No. 438, on verdict for defendant.</p> <p>Trespass for taking stone. Before Simonton, P. J., of the 12th judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court reserved the following point: “ Under all the evidence in this case, the verdict of the jury must be for the defendant.”</p> <p>Judgment for defendant non obstante veredicto.</p> <p>Errors assigned were (1) in not stating upon the record in the point reserved such facts as would justify a judgment of law thereon; (2) in entering judgment non obstante veredicto upon the point reserved.</p>

<p> Negligence—Street railways—Passenger—Getting on car—Transfer ticket. </p> <p>Where a person, is given a transfer ticket from one electric car to another which is a block distant, to enable him to reach the destination for which he has paid and, while in the cartway approaching the second car which is the proper car for him to take under the terms of the transfer, he is struck within five feet of the car by a piece of the trolley pole which broke while the conductor was turning it from one end of the car to the other, such person is a passenger, and is entitled to recover damages for the injuries sustained, if the railway company is unable to show the extraordinary care which it owes to a passenger.</p>

<p> Mechanics' liens—Affidavit of defense—Gontract. </p> <p>An affidavit of defense to a scire facias sur mechanic’s lien filed by a material manís sufficient which avers that under the building contract the building was to be delivered “free and discharged from all liens and charges whatsoever,” and that a number of lien claims had been filed against the building amounting to a sum specified which was almost double the amount of the contract price.</p>

<p>Appeal, No. 26, Jan. T., 1899, by plaintiff, from order of C. P. Lackawanna Co., Oct. T., 1881, No. 880, refusing a motion to non-pros.</p> <p>Ejectment for a tract of land in Blakely township. Before Archbald, P. J.</p> <p>At the trial it appeared that on July 25,1881, plaintiff instituted an action of ejectment against William I. Pitt for the land in controversy, which suit was duly indexed in “ The Ejectment Index ” according to the Act of April 26,1856, P. L. 532.</p> <p>Pitt had settled upon the land in 1872 and claimed it adversely. In March, 1895, E. A. Heermans, George Waters, Jr., S. W. Eleitz and Frank T. Okell purchased the land from Pitt. Subsequently the plaintiff was permitted to amend the writ so as to add as parties to the record the purchasers from Pitt. The purchasers then took a rule to non-pros the action because it had not been duly prosecuted. This rule was discharged. The case then went to trial, and the court gave binding instructions for the plaintiff.</p> <p>Verdict and judgment for plaintiff.</p> <p>Errors assigned among others were (1) in permitting the amendment of the writ; (4) in refusing to non-pros, and (7) in directing a verdict for plaintiff.</p>

<p>Criminal law—Murder—Threats—Uneommunieated threats—Charge of the court. °</p> <p>On the trial of an indictment for murder, proof of uneommunieated threats made by the deceased may be received as tending to show his motive and intention, and thus giving rise to an inference that in the fatal encounter he was the aggressor/</p> <p> Criminal law—Murder—Evidence—Photograph of the deceased. </p> <p>On the trial of an indictment for murder a full length photograph of the deceased is admissible to rebut testimony that the prisoner was a smaller man than the deceased, where the witness who identifies the photograph and testifies to its accuracy is represented in it, standing by the side of the deceased.</p> <p> Criminal law—Murder—Evidence—Witness. </p> <p>On a murder trial where the district attorney has called a large number of witnesses to the occurrence, it is not error for the court to refuse to direct him to call a witness whose name was on the bill of indictment, where it appears that the testimony of such witness would have been merely cumulative as to the occurrence.</p>

<p> Statute of frauds—Writing not under seal. </p> <p>The statute of frauds is satisfied by a note in writing not under seal, stating the terms of the lease and designating the land, signed by the party called on to fulfil it, and accepted by the other party.</p> <p> Statute of frauds—Delivery of writing. </p> <p>An actual, manual transfer of the instrument in writing required by the statute of frauds is not in all oases necessary.. If the grantee, by formal assent, or unequivocal acts, suoh as entering into possession, treats the writing as in his possession, it is sufficient.</p> <p> Statute of frauds—Memorandum in writing—Landlord and tenant—Extension of term—Eminent domain. </p> <p>Where a lessor indorses on the original lease in his possession an extension of the lease, and signs the same without sealing it, and it is the intention of both lessor and lessee that the indorsement shall operate as delivery, and that no further paper will be executed, and the lessee relying upon the extension thus obtained makes valuable improvements upon the premises, he has such an interest in the property as is subject to injury and damage by public improvements constructed by the city in which the properly is situated.</p> <p>Eminent domain—Condemnation of property for boulevard—Damages— Right to damages—Tenant.</p> <p>Where a city, two or three months alter a tenant has obtained an extension of his lease lor a term of years, surveys a boulevard through the land, and subsequently, and after the tenant has expended a considerable sum in a contemplated improvement, an ordinance is passed adopting the boulevard as surveyed, the tenant is entitled to damages for the compulsory stoppage of his improvement, although he may have, after the date of the ordinance, relet the premises to another party. In such a case the fact of reletting the premises may be important as one mitigating damages, but it does not bar the tenant from asserting a claim for damages. Shaaber v. City of Reading, 150 Pa. 402, distinguished.</p>

<p>Appeal, No. 179, Jan. T., 1898, by defendant, from decree of C. P. Lancaster Co., Equity Docket No. 3, page 211, making perpetual an injunction.</p> <p>Mitchell, J., dissents.</p> <p>Bill in equity for an injunction. Before Brubaker, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree making injunction perpetual.</p>

<p> Negligence—Street railway—Fellow-servant. </p> <p>■■ In an action by a conductor against Ms employer, an electric railway "company, to recover damages for personal injuries, a judgment on a verdict for plaintiff cannot be sustained where it appears that plaintiff had been injured in a collision between his own ear and a ear known as car No. 1; that just before the accident the superintendent of the company summoned in a general way the persons within hearing to aid in replacing a truck on the track of a turnout; that three employees of the company left car No. 1 which was standing on the turnout, and which in their absence moved off the turnout upon the main track and collided with plaintiff’s car, and that the only inference as to the cause of the moving of car No. 1, was that the brake had not been properly adjusted by the motorman, who was a fellow-servant of the plaintiff.</p>

Appeal, No. 382, Jan. T., 1898, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1891, No. 793, making absolute a rule to open judgment. Rule to open judgment. The facts appear by the opinion of the Supreme Court. Error assigned was the order of the court.

<p>Appeal, No. 88, Jan. T., 1899, by defendant,'from judgment of C. P. No. 3, Phila. Co., Sept. T., 1897, No. 215, on verdict for plaintiff.</p> <p>Assumpsit against indorser of a promissory note. Before Finletter, P. J.</p> <p>At the trial it appeared that the note had not been protested, and that no notice of nonpayment had been sent to the defendant. Plaintiff testified that on March 30, 1897, about twelve days before the note became due, the defendant called upon him at his place of business “ and told me that he could not pay that note when it became due. He said that he had met with unfortunate business affairs, and it would be absolutely impossible for him to pay the note or raise the money to pay it in any way. He told me that it would be useless for me to put the note in bank, to have- it protested, as it would be absolutely impossible for him to pay it.”</p> <p>The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for $1,096.33. Defendant appealed.</p> <p>Error assigned among others was refusal of defendant’s point, • which was as follows: “ Under the evidence the verdict should be for the defendant.”</p>

<p>Constitutional law—Injury to private property on franchise—Constitution of 1874, article 16, section 8.</p> <p>Under article 16, section 8 of the constitution of 1874, mere injury to a private property or franchise entitles the owner to just compensation whether there be a taking or not.</p> <p> Constitutional law—Injury to private riparian owners—Bridge—Rivers —Waters. </p> <p>Under the Acts of February 7, 1818, 7 Sm. L. 34, and April 9, 1835, P. L. 127, which conferred upon private riparian owners the right to erect wharves and buildings on the banks of the rivers Delaware and Schuylkill within the city limits, a private right of property therein is conferred upon the owner which cannot be invaded by either the commonwealth or the city without compensation being made.</p>

<p>Appeal, No. 108, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1896, No. 144, on verdict for defendant.</p> <p>Assumpsit. Before Willson, J.</p> <p>It appeared at the trial that Amweg, one of the defendants, was a contractor with the city of Philadelphia for the erection of a boiler house and annex to the boys’ new high school. The contract provided that the city would make the first payment “ when the first floor of joist is on,” and the second “ when the second floor of joist is on, being the sum of #87,807.42.”</p> <p>Amweg’s contract was dated June 13, T895, and of the same date, the Tradesmen’s Trust and Saving Fund Company became his surety in the sum of #68,012.87. conditioned that the said Amweg in all respects should comply with all the terms, conditions and covenants set forth in the said contract.</p> <p>. On December 19,1895, he borrowed from the plaintiff $20,000, and gave the following obligation, which constitutes this cause of action.</p> <p>“ Know all men by these presents,, that we, Frederick J. Amweg, of the city of Philadelphia, and Merchants’ Trust Company, also of said city, are held and firmly bound unto Leon H. Folz, also of said city, in the sum of $20,000, lawful money of the United States of America, to be paid to the said Leon H. Folz, his heirs, executors, administrators, or assigns to which payment well and truly to be made we do bind and oblige ourselves, our heirs, executors, administrators, successors, and assigns, and every of them, firmly by these presents. Sealed with our seals and dated the nineteenth day of December, A. D. 1895.</p> <p>“Now the condition of the above obligation is such that if the above-named Frederick J. Amweg, bis heirs, executors, administrators, and assigns, shall, as soon as he shall receive from the board of public education of the city of Philadelphia, the sum of $37,807.42, being the second payment to be made by the said board of public education to him on account of the contract entered into between the said Frederick J. Amweg and the board of public education for the- building of the annex of the boys’ high school of the city of Philadelphia, dated the sixth day of March, 1895, pay to the said Leon H. Folz the sum of $20,000 out of the above-named sum of $37,807.42, then this obligation to be void, or else to be and remain in full forcé and virtue.</p> <p>“F. J. Amweg, [Seal]</p> <p>“Merchants’ Trust Company,</p> <p>“Joseph R. Rhoads,</p> <p>“ President.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[In my judgment, if it be true, and I see no reason to doubt it, that at a given time after the first payment had been made, Amweg was unable to go on with his contract—if he defaulted, to use a popular expression, in the performance of it, and then the eity, through its agency, the board of public education, went to his surety and said, “ Here, Amweg is not completing his building; the time for the completion of it is near at hand, and we must have the work done; ” and then an arrangement was entered into in good faith (and I see no reason to doubt the absolute integrity of the transaction) with the surety that it should take upon itself the doing of the work which Amweg was unable or unwilling to do and that then it should receive for work done by it independently, by the expenditure of its own money, if it should earn the amount which would come due under the contract according to the proper method provided in the contract for determining the amount, then the Tradesmen’s Trust Company (the surety) was entitled to hold the amount which was subsequently received, as its own, and such a payment was not a payment within the meaning of the bond (that is, the bond of the defendant) to Amweg.] [1] Of course, if there was anything covinous, if there was any color of an attempt to impose upon the plaintiff in that whole matter ; if, in point of fact, this was a mere shift adopted to try to squeeze Folz; if, in point of fact, it was Amweg after all that was doing the work and somebody else receiving the money under the appearance of an independent relation when, in point of fact, there was nothing but an appearance; if there was anything of that sort, my view of the case would be entirely different, [but assuming, as I do in fact in my own mind, that tlic transaction was a genuine one and that Amweg defaulted and the city was obliged to look for somebody to do the work, that it called on the surety and that then entered into an arrangement with the surety to do the work and complete it, and the surety completed the work and expended its own money for the purpose, then the surety became entitled to receive the money and Amweg did not, and in that event the plaintiff has no right of action against the defendant.] [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

Appeal, No. 40, Jan. T., 1899, by plaintiffs, from judgment of O. P. No. 8, Phila. Co., Dec. T., 1895, No. 600, on verdict for defendants. Assumpsit to recover the difference between three promissory notes and the sum admitted to have been received by plaintiffs for the sale of certain collaterals. At the trial it appeared that in July, 1890, the plaintiffs sold to Archimedes Heckman a lot of ground in Washington, D. C., for the sum of $125,000.

<p> Taxation—Exemption—Eleetrie light and power company. </p> <p>The circumstance that a portion of the property of an electric light and power company is reserved for use for its manufacturing purposes in case of emergency or to meet the demands of increasing business does not alter or change its character as being part of the premises used or intended to be used for its essential object. Such portion is still a part of the property which in its entirety, is exempt from local taxation as real estate.</p> <p>The distinction between the manufacturing of electricity and the supplying of it, is, in so far as tax exemption is concerned, without force.</p>

<p>Negligence—Railroads—Grade crossings—“ Stop, look and listen."</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband, killed while driving a wagon over a grade crossing, a verdict for the defendant is properly directed where the only two persons who saw the accident were called by plaintiff and testified that the deceased drove up to the track without stopping; that when the wagon was struck it was in motion crossing the track; that the deceased was pulling the horse in an attempt to stop him, and that he could have seen the train if he had looked before going upon the track.</p>

<p>Liquor laws—Transfer of license—Act of April 20, 1858—“Party licensed."</p> <p>As the Act of May 13, 1887, P. L. Ill, relating to licenses to sell liquor, makes no reference to transfers, they are still governed by the Act of April 20, 1858, P. L. 366, see. 7.</p> <p>Where a person to whom a liquor license has been granted dies or removes in the interval between the granting or awarding of the license by the court and the payment of the license fee, the license may be transferred by the court to another person.</p> <p>The expression, “party licensed,” in the act of 1858 means the person to whom the court has awarded the right to have a license.</p> <p> Statutes—Construction of statutes. </p> <p>Statutes are to be construed so as best to effectuate the intention of the legislature although such construction may seem contrary to the letter.</p> <p>All laws must be executed according to the sense and meaning which they imported at the time of their passage.</p> <p>A remedial statute is to be extended to eases in equal mischief. '</p>

<p>Appeal, No. 377, Jan. T., 1898, by defendant, from, judgment of C. P. Luzerne Co., Dec. T., 1894, No. 275, on verdict for plaintiff.</p> <p>Trespass to recover damages'for death of plaintiff’s husband. Before Woodwabd, P. J.</p> <p>The facts appear by the following portions of the charge of the court:</p> <p>This is an action of trespass brought by Mrs. Keturah Ide, against the township of Lake, in this county, to recover damages for the loss of her husband occasioned, as she alleges, by an accident which occurred on August 30, 1894, which accident she also alleges resulted from the negligence of this township, in permitting a certain boiler to remain on or near the road, which caused fright to this horse, resulting in a runaway which produced injuries causing the death of her husband, seven days after the accident. ... It being admitted that death in this case was caused by the injuries received from the accident which has been detailed to you by the witnesses, .... we come next to this inquiry: Does the evidence in this case satisfy you that the township of Lake by its supervisors was negligent; have they failed to do something which they ought to have done, or have they done something in the premises which they ought not to have done which contributed to and caused the accident which resulted fatally to the husband of the plaintiff? [And this naturally and logically brings us to a consideration next, of what is the relation of the township to its public roads, and what are the duties of the township officers in relation thereto, and in this connection we call your attention at the outset to our statute on the subject. The Act of June 13, 1836, P. L. 556, sec. 6, reads as follows: “ The public roads or highways laid out, approved and entered on record as aforesaid, shall, as soon as may be practicable, be effectually opened and constantly kept in repair, and the public roads or highways made or to be made shall at all seasons be kept clear of all impediments to easy and convenient passing and traveling at the expense of the respective townships as the law shall direct.”] [5] The roads are to be kept in good order and repair, and this is to be done by the supervisors of the township, and the duty thus imposed on township supervisors is an active one. They are not to await the occurrence of an accident or a disaster before making necessary repairs or taking ordinary precautions for safety, but they are, from time to time, to look after the roads in their respective townships, and if possible provide against the possibility or probability of accidents occurring from defects in the highway. Supervisors have an active duty to perform to the public and to the township, and their negligence is imputed to the township; their failure to do what they ought to do is considered in the eye of the law the failure of the township itself. In some cases it may become necessary to prove that the supervisors of any township have bad actual notice, formal notice, of a defect in the highway. In the present case it does not seem to be important to dwell upon that branch of the case, for the reason that there can be no doubt that the supervisor of this township, he who had in charge this department of the township and the roads in it, had full notice and knowledge for many months before this accident, of the fact that the boiler lay where it did, near the roadway. Again, where was this road? How wide was it?' What were the duties of the supervisor in regard to this boiler under all the circumstances of the case ? You are familiar, in a general way no doubt, with the fact that roads in townships are laid out by certain proceedings had in court, based on a petition setting forth the necessity for the road, and then the appointment of viewers to report upon the location, accompanying their report with a diagram or draft, assessing damages, if any, to be paid to the adjoining owners, and upon the filing in court and the final confirmation of this report, the road is said to be established and put in charge of the township authorities. In the present case it seems that in November, 1842, upon petition filed for the purpose, the court appointed viewers to review, vacate and relay a road in Lake township, and, from an examination of the proceedings, it seems apparent that there had been another road which was considered a poor location because it ran over a hilly country, and the idea of this petition seems to have been to have a review of this old road, and if possible have it vacated, and in its stead a new road relaid in Lake township, substantially running in the same direction and reaching the same termini that the old road did. The law requires that upon a report being filed and confirmed nisi, or conditionally, the court shall fix the width of the road, and then another term shall be allowed to pass in order to file exceptions if necessary to the report, before the final confirmation of the road. It appears in the present case, that this fixing of the width of this road by the court, at the time of the first filing of the report of viewers was neglected. It does not appear upon the file itself or upon the record kept by the county clerk that the court did their duty in this respect. It was overlooked by some accident at least, and the width of the road was never fixed by an order of the court, and therefore, it becomes a question in this cafe, and a question of considerable importance as you will readily see, to decide where this road was, or, rather what was the width of this road, in the absence of any decree or order of the court fixing the width, and to this branch of the case we have given considerable attention because the question is not free from difficulty, and is not a customary or usual question in court. We have already stated to you that roads generally are established upon a report of viewers, the width being fixed by the court. W e now say to you that in an old road like this, more than fifty years ago laid out, according to the report, it is competent to show, with a view of fixing the width of the highway, what has been the appearance of things along the route of that road, and what has been the use by the public of the road in question, for a road may be established in some other ways in view of the great length of time which has elapsed. A road may be established in other ways than by the ordinary and usual way of a decree. On this point we are not without authority in this commonwealth, and, although the argument has not been much devoted to it, I consider it my duty to call your attention to the subject. And we say to you that where a road is opened and there is no clear evidence in the record as to its width we may find that a certain space has been dedicated as a road to public use by other circumstances, by other facts ; or, as our Supreme Court have said in the case of Griffin’s Appeal, 109 Pa. 155: “ Dedication is a matter of intention, and when clearly proved is as complete in one day as in twenty-one years. Where there is no opposing proof, long continued use by the public is evidence of an intent to dedicate, but it is by no means conclusive, and always yields to contrary proof of a satisfactory character.” In Commonwealth v. Cole, 26 Pa. 189, the Supreme Court said: “ To prevent any future controversy, it is proper for us to add that the use of the ground by the public as a highway for more than twenty-one years made it a public road just as effectually as though it had been originally laid out and opened by the proper authorities.” In Schenley v. Commonwealth, 86 Pa. 59, the Supreme Court, in speaking of this subject, said: “Nor is it necessary to a dedication that there has been twenty-one years of adverse enjoyment, though it is to the presumption of a grant, when time alone is relied upon to raise it. And whenever there is an actual giving of land for a public highway, accepted by the pub-lie, though, there be no deed, the dedication is complete. The period of twenty-one years of enjoyment, after which a presumption of a grant is made, is fixed from analogy of the statute of limitations, and for the same reason for which it is not per-, mitted to add coverture to infancy.”</p> <p>[The testimony in this case is that, for quite fifty years, the fences have been so located upon the ground in question as to indicate a road varying from forty to fifty feet, as testified to by the witnesses. I think Judge Lynch said it was about fifty, but the most of the testimony is that the road is from forty to forty-five feet. I believe the exact measurement makes it forty feet. And we say to you that in our opinion as a matter of law, if it is the truth of this ease, that for fifty years those fences have remained as they are now, the whole width was the public road at that point, and although only a portion of it was actually driven over by teams or worked by the supervisors, they still had the same authority over the forty feet that they would have had if the road had been laid out properly by an order of the court to that extent.] [6]</p> <p>[We come now to the location of the boiler which it is alleged was the cause of this disaster by frightening the horse and causing him to run away; and while there is a good deal of dispute as to exactly where the boiler did lie with relation to the traveled portion of the road, there is no dispute, as I remember, that the boiler lay within the confines of the fences; that it was not located upon any private property; but that it rested upon the ground covered by the forty feet which I feel bound to say was the road there. Therefore, in my judgment, it is not very material in the present case whether this boiler lay two feet or five feet or ten feet from the track ordinarily used by those who traveled the road with vehicles. It lay within the road, the land dedicated to the public for the purpose and not claimed by any private owner, and used for fifty years in that way; and therefore the boiler lay there in the road or in the land dedicated to the public as a road.] [7] [Now, that being the law of the case, what was the duty of the township and the township supervisors ? Clearly if this was an object calculated to frighten horses and interfere with the ordinary use of the road, the safe use of that road, it would become the duty of the supervisors to have it removed as soon as they had notice of its being there, or as soon thereafter as would be reasonably convenient and possible.] [8] Now, gentlemen, we have thus far dwelt on one point, and that was this: Does the evidence disclose negligence on the part of this township consisting in its failure to remove this obstacle to reasonably safe travel upon that highway? If you do not believe that the township has been negligent under the evidence, that is the end of this case, because the suit is founded upon the alleged negligence of the township. If you find, however, that they were negligent, if you believe the testimony which states that many horses have been frightened by this object, that it was allowed to remain there for many months after notice of these facts to the supervisor, and you find that in this respect the township has been negligent, then you come to another question of great importance in this case. Was the plaintiff himself negligent, did his own negligence contribute in any degree to the happening of this disaster which resulted in his death; because the law is that, no matter how negligent a defendant may have been, if the evidence clearly satisfies the jury that the deceased himself had also been negligent, and that his negligence contributed in any degree to the happening of the disaster, then there can be no recovery of damages, because the courts will not stop to consider or weigh which was the more to blame under such circumstances, but will declare that no recovery in any amount can be had by the plaintiff from the defendant. Now, it is claimed by the defendant in this case that the deceased was a frequent traveler upon this highway; that he knew of the existence of this boiler and its location, and he must have known that it was an object likely to frighten a horse. And we say to you in this connection that if Mr. Ide knew well about the location of the boiler, had been made aware of the fact that it had frightened other horses as well as his own, on former occasions, if that were the fact, then he would be held to a higher degree of care and caution and prudence in driving that road at that point than a man would be who was a stranger to the road and entirely unfamiliar with the danger. Therefore all the evidence bearing upon his knowledge of the facts as they existed there is important for your consideration on this question as to whether he was negligent himself. [Yery much of the evidence in this case upon this subject of concurrent negligence has had reference to the character of this horse which he drove. It seems that this horse was a new one on this route; that formerly Mr. Ide had driven another horse on his monthly trips, and it would seem from the evidence in the case that the horse had been frightened before and on the same day of the accident in question; and it would seem further that he was a horse easily frightened by certain causes, unusual noises or unusual objects. .It is claimed by the defense in this case that they have shown you that this horse, in view of all these facts, was an unsafe horse, not easily controlled, a vicious horse to a certain extent, and that therefore the deceased was guilty of negligence in driving such a horse at all, especially over a road known to be dangerous by reason of the boiler. But, on the other hand, there is a large amount of testimony in this case for you to consider that this horse immediately after the accident or very soon after was found to be an ordinarily gentle horse; that he was driven single, as it is called, and double; that he was driven where cars were, where locomotives were, and driven by the members of a family, one of whom, a young lady, seventeen or eighteen years of age, states that she drove the horse for several months, and carried the mail, I think, twelve miles, without accident or disaster, and the only fault she found with the horse was that he was too slow.] [9] [There is no absolute rule, gentlemen, that the court can lay down to you as a matter of law as to what constitutes a dangerous horse, or a horse that it would be negligent or imprudent to drive.] [10] It has been shown, or said here by counsel, and I think proved to some extent, that horses differ very much; that some horses will frighten at a very small object, and from slight causes, while they will pass what would apparently be a greater cause for alarm without showing any evidence of distress or fright; and it will be for the jury to say whether under all the evidence on this subject, fairly considered, this horse was so unsafe, dangerous and when frightened so uncontrollable, as would make it negligence for his owner to use him upon the ordinary highways of the county, or, to be more definite, upon such a highway as this one was where this boiler was known to be. ■ Do you believe, as honest men acting under the obligations of your oaths, that this was a dangerous, unsafe and uncontrollable horse, and so skittish and fractious and wild that a fairly careful, prudent man would refuse to drive him over the roads and highways of the country ? 'And this point becomes important for your consideration, because it bears directly on this question of the contributory negligence of the deceased, and, therefore, it ought to receive at your hands careful consideration.</p> <p>[We come then to the question of the wagon. It is claimed by the defense and shown that, owing to and as one of the results of a previous runaway by this horse, this wagon had been very much damaged, one wheel broken, spokes broken out which had been hastily and roughly repaired, and that the harness had been torn and been temporarily rearranged and mended, and it is argued that it was negligence on the part of the deceased to use such a wagon under the circumstances, and trust himself in such a vehicle drawn by such a horse over such a road. All that is for your consideration also, when you come to think about this question whether the deceased was negligent himself, and whether his negligence contributed in any degree to the accident which resulted in his death.] [11] When there are two roads between two points, and a man has a horse easily frightened and a wagon that is not entirely safe, and the one road is much safer than the other, a prudent man of course would be bound to take the safe road in preference to the dangerous one. It is claimed here that there was another road that this man might have taken. It is alleged, on the other hand, that the other road was as dangerous, if not more dangerous, than the one he traveled. And all this evidence also is to be carefully considered by the jury in reaching their conclusion as to the contributory negligence of the deceased.</p> <p>There is one other question to which I call your attention. There is some evidence in the case that the boiler was not the cause of the horse’s fright and runaway, but that he had frightened before he reached the boiler, and that the presence of the boiler had nothing to do with his running away, or with the disaster which occurred. Of course, gentlemen, if you are satisfied that that is the truth of this case, your verdict should be for the defendant, because the whole case of the plaintiff is based on the supposition and theory that it was the negligence of the township which caused the accident, or runaway, by leaving the boiler where it was left. If you find the horse frightened at something else, and that the boiler had nothing to do with his fright and nothing to do with causing the accident, the verdict should be for the defendant, because the plaintiff has failed in one of the main points of his evidence.</p> <p>Verdict and judgment for plaintiff for $5,500. Defendant appealed.</p> <p>Errors assigned among others were (5-11) above instructions, quoting them.</p>

Appeal, No. 317, Jan. T., 1898, by defendant, from judgment of O. P. Luzerne Co., Dec. T., 1892, No. 397, on verdict for plaintiff. Appeal from report of jury of view. Before Lynch, J. At the trial it appeared that the borough opened Reynolds street over the plaintiff’s land. The land in question was an eighteen-acre lot, used as farm land. Thirteen witnesses for the plaintiff testified that the plaintiff had been damaged to the extent of from $3,500 to $7,000.

<p>Appeal, No. 135, Jan. T., 1899, by plaintiffs, from decree of C. P. Luzerne Co., Oct. T., 1896, No. 4, on bill in equity.</p> <p>Bill in equity for an account.</p> <p>Albright, P. J., of the 31st judicial district, specially presiding, filed the following opinion:</p> <p>FACTS FOUND.</p> <p>1. By indenture dated June 12, 1872, the said Rev. David J. Waller, who is now deceased, and said Julia Waller, his wife, called parties of the first part, leased and to mine let unto Isaac S. Waterman and Thomas Beaver, called parties of the second part, all the coal in and under certain lands in Plymouth township, in said county, and in consideration thereof said lessees by said indenture covenanted among other things as follows :</p> <p>(V) “ That they will pay to the said parties of the first part the annual rentals and in manner as follows, to wit: the annual rental of nine thousand dollars, payable in equal quarterly instalments of two thousand two hundred and fifty dollars each on the first days of July, October, January and April in each year, except when the said parties of the second part, their heirs, executors, administrators or assigns shall be unable to mine the quantity of coal hereinbefore agreed to be paid for from the lands of said first party, in any one year, in consequence of the occurrence of a serious fault in the mines upon said lands, or of a strike of employees of said second party, or of the destruction of their works by fire or otherwise, and in that event said second party shall not be bound during the continuance of such or other obstruction unavoidable to said business to pay for more coal than by the use of due diligence they are able to mine from said premises of said first party. It being understood that said obstructions shall be removed as soon as practicable by said second parties hereto. Rent to commence and be calculated from April 1, A. D. 1871, to be distrained for by the said parties of the first part, their legal representatives and assigns, if deemed necessary. For which payments well and truly made as aforesaid, being the annual rentals at the rate of twenty-five cents per ton for each and every ton of coal of twenty-two hundred and forty pounds, of a size which will pass over a screen having a five-eighths inch mesh, mined from the demised premises, the said parties of ■ the second part may mine and remove from the premises aforesaid coal as follows, to wit: thirty-six thousand tons of coal of the size aforesaid' annually. All the coal of the size aforesaid mined and removed in any year in excess of the quantity aforesaid shall’be paid for by the said parties of the second part quarterly at the rate aforesaid, and in case less coal is mined than the quantity aforesaid and removed in any year, such deficiency in coal may be mined and removed in any subsequent year during the continuance of this lease without further charge.</p> <p>(5) “ That books of account shall be kept by said parties of the second part in which shall be entered a just and true account of all coal which shall be mined from the demised premises, which books and accounts shall at all times be open and free of access to the said parties of the first part, their legal representatives and assigns, and copies of such books and accounts shall be furnished to said parties upon their reasonable request for the same.</p> <p>(e) “ That the said parties of the second part shall deliver annually to said parties of the first part, their legal representatives and assigns, at the colliery or operation to be conducted upon the demised premises or in connection therewith, one hundred tons of prepared coal at cost of mining for which no royalty shall be charged.”</p> <p>2. Under said indenture said lessees mined and removed coal and paid rent. On June 23, 1877, they assigned to George F. Geisinger and Daniel Edwards an undivided three sixteenths of their rights and estate under said indenture, and on the same day said lessees and their said assigns transferred all their said rights and estate to the Kingston Coal Company, Limited, an association under the act of June 2,1874, composed of said Waterman, Beaver, Geisinger and Edwards. Said association mined and removed coal and paid rent and royalty until September, 1883, when it transferred its rights and estate in said premises to the Kingston Coal Company, a corporation under the laws of this state, incorporated August, 1883. Said corporation mined and removed coal and paid rent and royalty from the time of said transfer to it to the time of the filing of the bill in this case, July 28, 1897, paying to said Rev. David J. Waller during his lifetime, and after his decease to the plaintiffs in this proceeding.</p> <p>3. Said “annual rent” of $9,000 was all paid; $2,250 was paid at the end of each quarter (the first quarter beginning April 1,1871) to the time of the commencement of this proceeding.</p> <p>4. At various periods there was mined an excess of said minimum quantity of 36,000 tons a year; that is, a quantity beyond the aggregate at the rate of 36,000 tons a year calculated to a given period. In this proceeding a quantity not exceeding the aggregate at the rate of 36,000 tons a year is termed the minimum and compensation therefor rent; any quantity beyond that is called excess, and what is owing therefor royalty. The first excess occurred in the first quarter of 1877; the last in the third quarter of 1894.</p> <p>5. All the excess mined before the institution of this proceeding was paid for, but tbe various quantities in excess of said minimum mined during tbe lifetime of Rev. D. J. Waller were not paid for at tbe end of tbe various quarters during which they were produced as stipulated in the lease (first finding), (a) Plaintiffs’ demand is exclusively for various sums alleged to be due as interest on what was owing for excess at the end of several quarters and not paid. It is stated to be a demand for a general balance, charging interest for excess not paid for at the end of the proper quarter and crediting the various sums paid as of the dates when paid, according to the rules governing partial payments, calculating according to the method just stated, there was due plaintiffs on October 1, 1894, the sum of $6,840.</p> <p>6. At or near the end of each quarter the lessees paid the $2,250 rent, or as much thereof as remained unpaid, by check sent by mail, accompanied by a statement; at the end of the quarters the whole of the $2,250 was seldom all still owing; said statements set forth that lessor had been furnished coal above what he was entitled to under the lease, or that money had been paid to or for him during the quarter in question.</p> <p>7. Rev. David J. Waller receipted for such excess in full to January 1, 1889. To make plain the date to which said receipt relates and the receiptor’s understanding respecting excess and sums paid therefor, the following accompanying correspondence is given with the receipt:</p> <p>“ Kingston, Pa., Feb. 8th, 1889.</p> <p>“ Rev. D. J. Waller,</p> <p>“ Bloomsburg, Pa.</p> <p>“ Dear Sir: We enclose herewith our check to your order for $6,078.20, in full payment of coal rent due you to January 1, 1889. We have deducted from the amount due you for royalty $371.35 for coal shipped you in excess of the hundred tons per year to which you are entitled under the lease. We enclose statement of this coal. Please sign and return enclosed receipt.</p> <p>“ Yours very truly,</p> <p>“ D. Edwards, President.”</p> <p>Appended to the letter the following receipt:</p> <p>“ Received Bloomsburg, Pa., Feb’y 9, 1889, from the Kingston Coal Company, $6,078.20 in full payment for coal rent in excess of minimum to be paid under lease of Isaac S. Waterman and Thomas Beaver, dated June 12th, 1872.</p> <p>“ D. J. Waller.</p> <p>“ Bloomsburg, Pa., Feb. 9th, 1889.</p> <p>“ Daniel Edwards, Esq.,</p> <p>“President, &c.</p> <p>“Dear Sir: Your favor covering check for §6,078.20 was most welcome. Please accept my hearty thanks; in looking at the accompanying statement I do not fully understand the last ■item viz. 742.14 tons at 50 cts. I will enclose it. It looks as though it might be an oversight.</p> <p>“ Yours truly,</p> <p>“D. J. Waller.”</p> <p>Statement to which above letter refers:</p> <p>“ Kingston, Feb. 8th, 1889.</p> <p>“ Rev. D. J. Waller in account with the Kingston Coal Company.</p> <p>“1889.</p> <p>“ Jan’y 1, By coal due him under lease to Jan’y 1889, 100 tons per yr., 1775 tons. To coal shipped to him to Jan’y 1, 1889, 2517.14 tons. Balance due Kingston Coal Company, 742.14 tons. 742.14 tons at 50 cents, §871.85.”</p> <p>“ February 12,1889.</p> <p>“Rev. D. J. Waller,</p> <p>“Bloomsburg, Pa.</p> <p>“ Dear Sir: Your favor of 9th inst. is at hand. The statement you return we enclose herewith and desire to say in explanation that the 742.14 ■ tons at 50 cents is charged for coal in excess of the amount due you per year under lease. The lease requires there shall be delivered to you annually at the colliery 100 tons prepared coal at cost of mining. As shown by the enclosed statement you have had to Jan’y 1, 1889, 742.14 tons more than the amount to which you are entitled, and we therefore charged for this difference between the cost of mining and the regular price. We trust this will be satisfactory.</p> <p>“Yours very truly,</p> <p>“D. Edwards.</p> <p>“ General Superintendent.”</p> <p>8. Said receipt was not given under mistake as to any matter of fact. The sum receipted for did pay for all coal mined before January 1, 1889, but as above stated tbe excess was not always paid to the end of each quarter when it was demandable. Facts bearing upon said main statement are these: Rev. Mr. Waller was exceptionally intelligent and capable and attentive regarding business matters; be occasionally called at tbe company’s office and inquired about tbe state of bis account and statements showing its condition taken from tbe books were given to him; such inquiries related to excess, because each quarter be received by mail a statement of coal and cash charged' to him and a check for what was owing on tbe $2,250 rent; be bad access to the books and looked at them sometimes; it is not proved that any false statement was rendered to him or that he ever asked for a statement and was denied.</p> <p>9. The allegations in tbe bill that tbe quarterly statements rendered were false and misleading; that by reason of tbe omission therefrom of excess of coal mined tbe lessor was kept in ignoranpe of such excess, and that tbe conduct of tbe lessees was in fraud of tbe lessor’s rights is not established by evidence ; none of said averments is proved by tbe books, statements or correspondence between tbe parties; no witness has testified to anything material in this reference, except results and inferences from defendant’s books; the assertion that tbe lessees led Rev. D., J. Waller to infer that no excess was mined is rebutted by what is stated in tbe last finding and by tbe fact that on several occasions before February, 1889, be received large sums, not appearing on tbe quarterly statements, and which be knew were paid on excess ($8,000 was thus paid in tbe third quarter of 1883 by tbe coal company, limited, and by defendant, $2,000 in second quarter of 1884 and $6,518.85 in fourth quarter of 1888, tbe advances for which notes of lessor were given, that is $5,000 on December 6, 1884, and $2,000 on May 15, 1885, are also borne in mind. As to said allegations of bad faith tbe answer is responsive to tbe bill and denies said allegations. That denial is not overcome by adequate evidence.</p> <p>10. Rev. David J. Waller knew that payment for the excess was demandable at tbe quarter day next after it was taken out. A contrary view would have to rest on tbe idea that he was ignorant of an important covenant in his indenture, or that be thought that the excess was payable at the pleasure of the lessees or not until the estate granted had expired by the exhaustion of the coal, none of these would be reasonable surmises even.</p> <p>11. The purpose of Rev. David J. Waller was not to exact interest upon what was due for excess, but to accept the principal in discharge of the debt. He either knew when the mining in excess occurred, or as he was aware he might have learned it by inquiry or request for an account. First fact (5).</p> <p>12. The transaction of February 9,1889, was in effect an account rendered by the lessee and accepted by the lessor; it was consummated by the payment of the balance agreed upon; the receipt stands as an acquittance according to its terms. It is a valid answer to the demand for an account as to matters before January 1, 1889.</p> <p>18. After January 1,1889, there was no receipt in full given either by the lessor in his lifetime or by the plaintiffs after his decease; when the defendant on August 11,1894, paid $2,701.99 on excess it desired the receipt therefor to be in full, but plaintiffs refused to sign such receipt; L. E. Waller struck out the word full in the receipt sent by defendant.</p> <p>14. Coal was mined from said lands and rent and royalty paid on the same, from January 1, 1889, to December 81, 1894, inclusive, as follows:</p> <p>MINED. PAID.</p> <p>1st 8,829-11 $2,250.00</p> <p>2d 11,543-15 2.250.00</p> <p>3d “ “ 13,772-11 2.250.00</p> <p>4th “ “ 8,341-11 2.250.00</p> <p>1st “ ’90, 2,594-00 2.250.00</p> <p>2d “ “ 7,819-04 2.250.00</p> <p>3d “ “ 9,585-01 2.250.00</p> <p>4th “ “ 6,770-14 2.250.00</p> <p>1st “ ’91, 6,720-19 2.250.00</p> <p>2d “ “ 11,961-12 2.250.00</p> <p>3d “ “ 2,705-02 2.250.00</p> <p>4th “ “ 2,734-15 2.250.00 1st “ ’92, 3,759-19 2,250.00</p> <p>Amount carried forward. 96,603-34 $29,250.00</p> <p>MUTED. PAID.</p> <p>Amount brought forward. 96,603-34 #29,250.00</p> <p>it ii 2d 9,026-08 2.250.00</p> <p>it ti 3d 10,480-14 2.250.00</p> <p>4th “ “ 9,595-00 2.250.00</p> <p>1st “ ’93 13,002-00 2.250.00</p> <p>2d tt it 11,992-08 2.250.00</p> <p>3d ft a 12,244-01 2.250.00</p> <p>4th ii tt 11,113-18 2.250.00</p> <p>1st “ ’94, 11,555-00 2.250.00</p> <p>2d tt tt 23,259-18 4,951.99</p> <p>3d it ti 18,122-13 4,530.67</p> <p>4th U 9,520-17 2,380.21</p> <p>236,451-11 #59,112.87</p> <p>236,551-11 • #58,752,87</p> <p>diff. 100 tons. diff. #360.00.</p> <p>Plaintiff’s exhibit makes the quantity 92 tous less.</p> <p>There is no allegation or proof that after 1894, and before the filing of the bill any excess over the minimum was mined. The first excess after January 1, 1889, occurred in the second quarter of 1894; the excess was 10,807-18 tons which was paid by the #4,951.99 (#2,701.99 above #2,250) the second and only other excess during this period was on the third quarter of 1894 (9,122-13.tons) which was paid by the #4,530.67. It is a fact that all excess mined from January 1, 1889, to the date of the filing of the bill in this case was paid, and paid at the time the same was due under the covenants in the indenture.</p> <p>15. When the coal company, limited, succeeded Waterman & Beaver there was owing to lessor #1,986.67 ; said company continued the account of its assignor and included said sum in its account. Again when said company, limited, assigned to the Kingston Coal Company the limited company’s books showed #5,210.47 to be owing to the lessor; the Kingston Coal Company carried the sum last named to its books and made it a credit item of the lessor in its account with him; this was known to lessor; by its course of dealing with the lessor the defendant made said indebtedness its own upon sufficient consideration. (It would have been liable under the covenants, but that need not be demonstrated now); said indebtedness entered into said transaction of February 9, 1889, when the receipt in full was given.</p> <p>OPINION.</p> <p>This is a proceeding for an account; the relief prayed is that defendant be decreed to account and second, to pay over the amount found to be owing by it. The answer avers that defendant has fully accounted and owes nothing. No question of jurisdiction has been suggested.</p> <p>A plea of a stated account or of a settled account is a good bar to a bill of account. A stated account properly exists only where accounts have been examined and the balance admitted as the true balance between the parties without having been paid. When such balance admitted is paid the account is deemed a settled account: Br. Eq. Juris. § 658. Pleas are abolished by the equity rules of 1894; all defenses shall be by answer or demurrer. In substance the answer sets up that an account has been settled. The receipt in full of February 9,1889, supports that defense. Conceding that the receipt is not to be regarded as a solemn written contract between parties executed and delivered, but the acknowledgment of a party only (Batdorf v. Albert, 59 Pa. 59); it must be held that the receipt has not been overcome by evidence; the prima facie proof established by it has not been contradicted. The only error concerning the receipt urged by plaintiffs’ counsel is the matter of interest on the excess. The court has found that the lessor did not intend to exact interest. He accepted the principal tendered to him by the check for $6,078.20 in full discharge of the debt. He could waive the claim for interest. As to claims prior to January 1, 1889, the rights of the plaintiffs are the same as the lessor would possess if he were still living and were suing. If the lessor were seeking to recover interest prior to January 1,1889, his position would be that of one who accepted payment of an overdue debt, where no interest was contracted for, and who several years afterwards sued to recover interest. Interest is a legal and uniform rate of damages allowed in the absence of any express contract when payment is withheld after it has become the duty of the debtor to discharge his debt: Kesey v. Murphy, 30 Pa. 340; Minard v. Beans, 61 Pa. 441. Where a balance of an account was paid without any charge for interest the court refused to open the account to support a claim for interest: Consequa v. Fanning', 3 Johns. Chan. 587. The defendant subscribed to the capital stock of a railroad company the amount of subscription to be paid “ in such instalments and at such times as the board of directors might lawfully direct.” Several calls were made by the directors amounting in the aggregate to the precise sum subscribed, which were all paid by the defendant but not at the time designated in the calls, and receipts given. Nothing was said about interest and no claim made for it until after the whole principal had been paid. Held, that an action would not lie to recover interest on the several amounts specified on the calls for the time they remained unpaid after the day designated for payment by the call: Central E. E. Co. v. Moravia, 61 Barb. 180. Where parties themselves settle their accounts (at regular intervals) without charging each other with interest it is not in accordance with law or equity to go behind such settlements for the purpose of allowing interest in favor of one party against the other, such settlements are considered conclusive unless impeached for fraud or mistake: Chandler v. Bank, 61 Cal. 401. Where there is a stipulation for interest it may be recovered even ^fter the principal debt has been paid; but it is otherwise where the interest is recoverable merely as damages or as incident to the debt: Chitty on Contracts, p. 959, note 7c; 11 Am. & Eng. Eney. of Law, 381; Gillespie v. Mayor of New York, 3 Edw. Ch. 512. In the case in hand no interest was contracted for. However, I rest the decision of this point on the fact that lessor did not intend to claim interest for arrearages before 1889; that his receipt is evidence of that fact; his previous dealing corroborates that view.</p> <p>In the bill it is averred that defendant paid said sum in February, 1889, to Eev. David J. Waller, representing the same to be in full of royalty owing for coal produced under the indenture from the date thereof to January 1, 1889; that said representation was untrue. That and every other averment alleging bad faith, and that the lessor was kept in ignorance of the quantity mined, are denied in the answer. I fail to find any evidence supporting plaintiffs’ contention in those regards, much less the amount of proof required to overcome such denial. Such answer is conclusive in defendant’s favor unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness corroborated by other circumstances and facts which give to it a greater weight than the answer, or which are equivalent in weight to a second witness: 2 Story’s Eq. Juris, sec. 1528; Horton’s App., 13 Pa. 67; Burke’s App., 99 Pa. 350; Bailie v. Bailie, 166 Pa. 472. Upon this view of the case also it must be held that the receipt of February 9, 1889, remains unimpeached and uncontradicted. When the bill was filed nothing was owing for coal mined after January 1, 1889. As to that the case is plain. Plaintiffs’ evidence showed that all accruing after the last named date had been paid at the time the various sums fell due.</p> <p>Plaintiffs have shown no right to demand an account. I have found the facts and law in my own language, therefore decline to answer defendant’s requests.</p> <p>CONCLUSIONS OB' LAW.</p> <p>1. Before this bill was filed defendant accounted and paid to the plaintiffs, or to Rev. David J. Waller, deceased, in his lifetime, all its indebtedness demanded or complained of in plaintiffs’ bill."</p> <p>2. Plaintiffs’ bill must be dismissed at their cost.</p> <p>On exception, Albbight, P. J., filed the following opinion:</p> <p>As to facts found:</p> <p>3. This is modified so as to read, “ Said annual rent was all paid to January 1, 1889.” As defendant is to account from that date, all matters relating to such account are left unadjudged.</p> <p>5. This, so far as it relates to payments for excess, is to be taken to be limited to the period ending January 1, 1889.</p> <p>7. This is now corrected by striking out the name “ D. J. Waller” at the foot of a receipt and inserting at that point the following: “ D. J. Waller signed said receipt and sent it to the company with the following letter.”</p> <p>8. Plaintiffs’ counsel have complained of the finding respecting testator’s qualifications; that statement is now modified to read: “Rev. Mr. Waller was exceptionally intelligent and was capable and attentive regarding business matters.”</p> <p>11. As there is to be an accounting for the period since Jan uary 1, 1889, and as payment for excess mined after said date was not made to Rev. Mr. Waller, but to his executors, this finding is restricted to matters occurring not later than January 1, 1889; the court does not now decide the question of interest nor the state of the account since that date.</p> <p>14. This finding relates to amounts and other matters of fact arising since January 1,1889. As there is to be an accounting since said date, these matters need not be decided now. The whole finding is stricken out. However, there is error in certain statements by the court; the present reference to these matters is not to be taken as conclusions of fact, but rather as suggestions. It would seem that the first excess after January 1, 1889, was in the second quarter of 1889; the excess then was 1,873-06 tons, for which there was due on July 1,1889, and not paid then, §468.31 (8,329-11 11,543-95 equals 19,873-06 minus 18,000 equals 1,873-06 at 25 cts.) ; the next excess was in the third quarter of 1889, the excess then was 4,772-11 tons, for which there was due on October 1, 1889, and not paid then, §1,193.12 (13,772-11—9,000 equals 4,772-Al at 25 cts.) ; the next excess was in the second quarter of 1894, when the excess for the whole period from January 1, 1889, to July 1, 1894, was 10,807-18 tons, which was paid by the §4,951.99,’ §2,701.99 above §2,250; the next and only remaining excess to the time of the filing of the bill was in the third quarter of 1894, the excess then was 9,122-13, for which §2,280.67 was due on October 1,1894, and was paid (18,122-13—9,000 equals 9,122-13 at 25 cts.).</p> <p>Rev. David J. Waller died on December 1, 1893; when he received the last instalment of minimum, that is on October 1, 1893, all the coal mined since January 1, 1889, had been paid for to him; from January 1,1889, to October 1,1893,162,779-05 tons, amounting at 25 cents per ton to §40,699.20, had been mined and all the payments aggregated §42,750. But as above stated the §468.31 and the §1,193.12 demandable under the grant on July 1, 1889, and October 1, 1889, respectively, were not paid when the same fell due.</p> <p>OPINION.</p> <p>The court remains of the opinion that the receipt of February 9, 1889, acknowledging payment for excess in full to January 1,1889, is in effect a stated account to the date last named; true, it relates only to the excess, but the accounts shown by both parties establish that the annual rent was paid to January 1, 1889. As saidreceipt is not impeached and there being no doubt that the annual rent was paid to the time of the date of the receipt, it would not be just to require defendant to account as to matters preceding the date of said receipt. However, upon the facts now found relative to matters since January 1, 1889, defendant must account as to coal mined, payments made, and all matters since said date.</p> <p>The court does not now decide, nor is it necessary now to decide, whether defendant is chargeable with interest on the sums due for excess on July 1, 1889, and October 1, 1889; in the proceeding to account further facts may appear bearing on that question. However, the defendant is chargeable with such interest, unless it is found that as to transactions after January 1, 1889, interest was waived.</p> <p>CONCLUSIONS ON LAW.</p> <p>The court now declares the same to be the following:</p> <p>1. The defendant accounted with and paid to Rev. David J. Waller in his lifetime all indebtedness demanded or complained of in the bill that accrued before or on January 1, 1889; said parties settled their accounts to that date; mistake or fraud affecting said settlement has not been shown; as to all claims before that date the prayer of the bill is refused.</p> <p>2. Defendant shall account with the plaintiffs as to all matters alleged in the bill since January 1, 1889.</p> <p>November 7,1898, this matter came on to be heard on exceptions to the court’s findings and was argued by counsel, thereupon it is considered that said conclusion as to facts and law be modified as set forth in the conclusions on exceptions hereto appended; further, the prayer of the bill for an account so far as it relates to matters before and on January 1,1889, is refused, and granted so far as it relates to the period after said date; it is adjudged and decreed that the defendant, within fifteen days from this date, account with the plaintiffs as to coal mined and all transactions since said date under indenture between said Rev. David J. Waller and wife and defendant’s assignors, Waterman & Beaver, made June 12,1872; tbe exceptions save as herein and by said appended conclusions sustained are dismissed.</p> <p>Errors assigned were in dismissing exceptions to the findings and conclusions of the court.</p>

<p>Appeal, No. 61, Jan. T., 1899, by defendant, from judgment of C. P. Luzerne Co., May T., 1895, No. 99, on verdict for plaintiff.</p> <p>Assumpsit on a policy of life insurance. Before Lynch, J.</p> <p>On August 18, 1891, Helene Roberts, an unmarried woman, twenty-seven years old, took out a policy of life insurance in tbe defendant company. On August 19,1891, she assigned the policy to John Welles Hollenback and L. D. Shoemaker, the use plaintiffs, to secure them for certain loans which they had made to her. On November 26, 1892, she died, being still urn married. Proofs of deaths were regularly furnished the defendant showing the death to have resulted from “ peritonitis and septicaemia, the result of abortion.” The company refused payment, and thereupon George A. Wells took out letters of administration on the estate of the assured, and brought suit to the use of the assignees of the policy.</p> <p>The case has been tried three times in the lower court and has been- before this Court on appeal once before, reported in 187 Pa. 166. .</p> <p>The policy provided that it should be void if the insured died in consequence of any violation or attempt to violate any crimr inal law of the United States, or of any state or country in which the insured might be.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>There is no sworn testimony in the case to show when the operation or the abortion was committed, or by whom it was committed. The nearest approach is the testimony of Dr. Crawford, in his deposition, in which he says that when he went into the room where Miss Roberts was lying dangerously ill, he at once recognized from the odor in the room that there had been an abortion, or a miscarriage. But there is no sworn testimony whatever that any person used any illegal means to procure this abortion. I use the word sworn with care, gentlemen. [The testimony rests principally upon the alleged admission of Miss Roberts. This presents two inquiries which should be submitted to you. First, did she make the admissions which have been sworn to? Not whether they are true, but did she make them ? She was not under oath, but very ill.] [5] It is testified to by Dr. Crawford, Dr. Stoeckel, Mrs. Harvey, the mistress of the boarding house, Mr. Whalen, and Mr. Davison, the alderman. It is a question for you to decide, not for the court. Where it is clearly or satisfactorily proved to the jury that an admission or statement was made by a person it should have weight, but you will keep in mind too that all verbal statements or admissions when repeated by another are liable to change, by dropping a word here, or adding one there. The weight of the evidence, indeed all of the evidence submitted, tends to show that this unfortunate woman did make certain statements as to her condition, and as to how it was brought about. [If you conclude, after an investigation of this matter, that she did not make any statements of the kind charged you may stop there. But if you conclude that she did make the statements, or substantially the statements testified to, you will take the next step. Were they true?] [6] There is no sworn evidence whatever that Dr. Dan, as he is called, performed an operation upon this woman, either criminal, legal or illegal. There is the statement which it is alleged Miss Roberts made that Dr. Dan performed the operation. As to this you will inquire. [Take the condition of the woman as she was, as she has been shown to you by the evidence, the state of her suffering and illness. Do you believe from the evidence if she did make the statement it was true, and that it was Dr. Dan at Nanticoke who performed the operation ?] [7] She had been there several times before and he had been unsuccessful, and finally he had made a botch or a bungling job of it, to use the doctor’s words. [No person has testified that he saw the woman in Nanticoke, or how she was able to return to Wilkes-Barre. You will take all these matters in consideration in arriving at a decision. Suppose, gentlemen of the jury, you answer these two questions in the affirmative: First, that the operation had been performed upon her in Nanticoke, and next that such statement is true.] [8] The next question for you to pass upon will be, was there sufficient medical reason for performing the operation ? Because as stated by both gentlemen, and by the doctors, an abortion is simply the premature birth of a child, and there may be many accidental or legal abortions, in other words, abortions which are not criminal. From the evidence in this case do you believe that this woman, unmarried, voluntarily submitted herself to have an abortion performed, without justifiable medical reasons for so doing? The stress of the case is there. Now, what evidence is there upon this question ? At the time Dr. Guthrie examined Miss Roberts, in August, 1891, a year and about three months prior, the organs and parts of the body examined by him were in good condition. So far as appears in the case, from that time up to the time of the unfortunate death, there was no medical or surgical examination of the woman. You have the fact that the woman was unmarried; it has not been disputed that she was pregnant, with child, the foetus being about three months of age at the time of the delivery. It is not necessary to prove by direct and positive evidence that there was a medical necessity for the operation. If you find in the ease indirect and circumstantial evidence which satisfies you that there was no justifiable or good medical reason for it, you should find a verdict in favor of the defendant company. There ,is some medical evidence in the case. Dr. Crawford in his deposition has testified as follows: “ Q. Could the lacerations of the womb as described by Dr. Kirwin have been produced by an abortion other than a criminal abortion? A. Well, perhaps, that may be a hard question to answer. Lacerations of the womb sometimes occur from spontaneous delivery, but usually not at an early period, at full time. Where the foetus is large the womb is sometimes ruptured, but I don’t think that, in delivery at an early date. I would say, however, if it is proper, that the condition, the lacerations that Dr. Kirwin described would correspond fully with the description which she gave to me of the operation that had been produced—the violence that was done to her womb at the time of the operation.” It is not a question of the violence which was done to the womb, or whether she died in consequence. The question is, does the fair weight of the evidence satisfy you that there was a medical reason for this operation ? Again, Dr. Stoeckel testified substantially that she was unable to give an opinion or would not give an opinion. Upon a hypothetical question put to Dr. Guthrie, called by the' defendant, he stated from the facts submitted to him he was unable to give an opinion. Dr. Bullard and Dr. Guthrie gave what in their judgment were conditions existing in a female, pregnant, which would justify or give good medical reasons for an abortion. One, as I remember it, is the presence of Bright’s disease of the kidneys, which as time progresses would probably cause convulsions, and produce the woman’s death. Dr. Bullard spoke of a cancer of the womb, and perhaps both doctors gave as a reason malformation of the pelvis, and perhaps other reasons. Whether these conditions existed in this unfortunate girl at the time of the operation is not given by any of the doctors. Again, gentlemen, suppose you should decide there was an operation performed upon this woman, submitted to by her voluntarily, and without justifiable medical reasons, there' is still another question.- Was the death which occurred the direct result of the operation ? For example, if a woman were to have a criminal abortion performed upon her which injured her very much, she lingered for sometime, then other matters set in, and she died from other causes, it would not void the policy. If void at all for this reason it must be because death is the direct, and not the indirect, result. I think the doctors, so far as they testify upon the subject, practically agreed that death resulted from septicaemia, or blood poisoning, which was the result of the abortion. When was this operation performed ? How long before death ? [Did any other cause, taking in consideration where it was alleged it was performed, intervene, which produced blood poisoning, or septicaemia, and cause death ? If it did, the company will have to pay the amount of this policy. If it did not, you should return a verdict in their favor.] [9]</p> <p>Defendant’s sixth point and the answer thereto were as fol lows:</p> <p>Under all the evidence in the case there can be no recovery on the policy. Answer: The court declines to affirm this point. [4]</p> <p>Errors assigned among others were (4-9) above instructions, quoting them.</p>

Appeal, No. 402, Jan. T., 1898, by defendant, from order of C. P. Clearfield Co., May T., 1898, No. 3, discharging rule to set aside service of bill in equity. Rule to set aside bill in equity. Gordon, P. J., filed the following opinion: This case was heard on the petition and answer, which shows that John H. Kl.oclc, upon whom the bill was served as agent and superintendent of the Belsena Coal Mining Company, defendant, was, in fact, acting in the capacity indicated.

<p> Orphans' court—Jurisdiction—Contest over real estate—Ejectment. </p> <p>While ejectment for real estate as such is the remedy in ordinary cases for heirs and devisees, yet where executors under a power in a will claim real estate, and their claim is disputed by the executors of the widow of the testator, the orphans’ court has jurisdiction to entertain a petition in the nature of a bill in equity for a conveyance, and will not compel the executors of the husband to wait until the real estate is sold and turned into an account by the executors of the wife.</p> <p> Will—Bequest of personalty with power to consume. </p> <p>The rule that a bequest of personalty with power to consume, sell and dispose of carries an absolute and unrestricted title to it, although there is a gift over of what is left to other parties, is not a rule of law, but a rule of construction in aid of discovery of testator’s intent, and it will be applied only where the legatee has used and appropriated the property in an honest exercise of the discretion with which the testator has clothed him. He will not be permitted to make use of the mere form to defeat or evade the true intent, and pervert the gift to a different purpose. Thus, a legatee who has not used or consumed the property during life will not be permitted by will to give it to persons other than those designated by the testator.</p> <p> Testator's intent. </p> <p>The intent of the testator which is to be discovered and carried out means his actual personal intent, not a mere conventional intent inferred from his use of any set phrase or form of words.</p>

<p>Appeal, No. 50, Jan. T., 1899, by plaintiff, from judgment of C. P. Lebanon Co., Sept. T., 1895, No. 242, on verdict for defendant.</p> <p>Assumpsit on a contract. Before Endlich, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p>

<p>Appeal, No. 129, Jan. T., 1898, by Stephen Chappell, from order of C. P. Lackawanna Co., March T., 1897, No. 440, discharging a rule to open judgment.</p> <p>Rule to open judgment.</p> <p>The bond on which judgment was entered was payable to the Lackawanna Trust and Safé Deposit Company, trustee, as security for such sums as might be owing to Creighton & Birch from time to time. Judgment was entered in favor of Creighton & Birch, but afterward the record was amended to make the plaintiff, “ The Lackawanna Trust and Safe Deposit Company, trustee for William Creighton, Mark H. Birch and Benjamin F. Bailey, partners, doing business as Creighton & Birch.”</p> <p>Archbald, P. J., filed the following opinion:</p> <p>Much of the argument in behalf of this rule is answered by Mueller v. Fire Clay Co., 183 Pa. 450, and Cowan v. Plate Glass Co., 184 Pa. 1. The application is by R. A. Blythe and Alexander Nelson, attachment creditors, and Stephen Chappell, a stockholder, and the charge is that the judgment is a fraudulent preference'secured by the plaintiffs' by virtue of the fact that one of their number, Mr. Creighton, was a director of the defendant corporation, an insolvent and failing concern. Without stopping to consider the standing of the attaching creditors to contest the validity of the judgment in this way, we see nothing to question it. The legal principle invoked is well established, but the facts do not bring the case within it. The Scranton Lace Manufacturing Company was incorporated in May, 1891, with an alleged capital of $260,000, subsequently increased within the year to $850,000; a large part of the original subscription—some $100,000—was for the benefit of an English concern which was at the bottom of the enterprise, as we understand, and whose subscription was to have been paid in machinery to be furnished. Owing to the difficulties and expenses connected with this the value of the machinery was ultimately fixed at about $60,000, or as stated in another place $80,000, and a settlement on that basis effected for it. From the start the concern does not seem to have been on a very stable financial footing, and when a change came from the tariff policy of the government in 1893, it was not able to stem the adverse tide. At least, that is what is alleged with regard to it. The plaintiffs, Creighton & Birch, were commission men in New York, dealing in lace curtains, and Mr. Creighton was one of the original stockholders and a director of the company. His firm, by reason of this, no doubt, became the sales agent of the company in the general market. In that capacity, by the condition of the company they were called upon to advance money from time to time, upon the consignments made to them. To secure them in these advances in August, 1895, it was agreed that curtains in course of manufacture and other property at the mill at Scranton should be set aside to them in pledge, and this was done. This course was pursued for about a year, large sums of money being loaned to the company on the strength of it, but sometime in July, 1896, they were advised by counsel that the goods so pledged, being left in the custody of the company, could be seized by any other creditor, and therefore afforded them no security whatever. This being brought to the attention of the directors, a resolution was passed July 27, 1896, authorizing a bond in the sum of $75,000, with warrant of attorney to confess judgment, to be given to the Lackawanna Trust and Safe Deposit Company, trustee, as security for such sums as might be owing to Creighton & Birch from time to time, and upon its execution the goods then held in pledge were released. This is the origin of the bond upon which judgment has been entered and there is nothing in any of it to call it in question. The plaintiffs had a right to prescribe the terms on which they would part with their money, and solvent or insolvent, as the one party had the right to exact, so the other had the right to agree to it. The pressing needs of the company required that some one should so favor them, and had the directors been compelled to look to others less interested, it is doubtful if they would have been able to obtain as advantageous terms, or to stem the tide a fraction of the time that they did. This is all there is to the charge of a fraudulent preference. A preference there was, but it was a perfectly legitimate one, one which no one stockholder or creditor has the right to complain of.</p> <p>All that remains is as to the form of the judgment and the amount for which it was entered. The bond was for $75,000, and was executed as we have seen to the Lackawanna Trust and Safe Deposit Company, as trustee for the benefit of Creighton & Birch. The judgment, as originally entered upon it, was in the name of the latter, they being the beneficial parties. It would perhaps have been a closer following of legal forms to have entered it in the name of the trustee to the use of Creigh ■ ton & Birch, but if there was any error in this it was cured by the amendment subsequently allowed which was entirely proper: Clement v. Commonwealth, 95 Pa. 107.</p> <p>Judgment was confessed for the penal sum named in the bond, execution being directed to issue for the real debt, which was fixed at $62,870.08. As to $54,329.76 there can be no serious controversy. It is satisfactorily shown that this sum was due the plaintiffs for advances made by them upon the strength of the security given them. A balance of their claim, amounting to $8,540.32, is made up of certain notes of the company held by third parties not then due. The evidence, however, is that the plaintiffs, at the instance of the company, assumed to pay their notes, and subsequently did so. It is true that this incidentally was in relief of Mr. Kemmerer, the president of the company, who was an indorser upon them, but he testifies that it was understood when he lent the credit of his name in this way, that he should be protected, and we see no reason why, upon the failure of the company, this understanding should not be carried out in the way it was, Creighton & Birch assuming to pay the notes and protecting themselves therein by means of the bond which they already had. So far as they are concerned it was a further advance to the company in line with others which they had made, for which, if so agreed by the company, they could indemnify themselves as they did. The mere fact that the notes assumed were not yet due does not affect the question one way or the other. A failing debtor may protect as well against a contingent liability as against one already absolute: Braden v. O’Neil, 183 Pa. 462.</p> <p>This fully justifies the plaintiff’s claim in its entirely and there is no occasion for disturbing it in any way. The judgment should be amended however so as to show that $75,000 is merely the penal sum and that the real debt for which the judgment is to stand is $62,670.08, as already stated. With this correction of the record the rule to open is discharged.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 238, Jan. T., 1898, by Emilie Haeberly, from order of C. P. Lackawanna County, March T., 1898, No. 734, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report. Before Edwards, J.</p> <p>E. 0. Newcomb, Esq., auditor, reported the facts agreed upon to be as follows :</p> <p>1. Charles Robinson, August Robinson and William Robinson, on May 13, 1893, entered into a copartnership, under the name, style and title of E. Robinson’s Sons, for a period of five years, which agreement is as follows:</p> <p>“Articles of copartnership, made and concluded this 13th day of May, in the year of our Lord one thousand eight hundred and ninety-three, between August Robinson, party of the first part, Charles Robinson, party of the second part, and William Robinson, party of the third part; all of said parties residing in the city of Scranton, county of Lackawanna, and state of Pennsylvania, are as follows, to wit: (1) The said parties do hereby agree to and with each other to enter into a copartnership, commencing upon the date of this agreement, under and by the name, style and title of E. Robinson’s Sons, and to conduct for the term of five years from the date hereof, the business of carrying on the brewery which has heretofore been carried on under the direction of the said parties, under the name of E. Robinson. (2) Said parties having become the owners, by purchase from their mother, E. Robinson, of all the real and personal property connected with, used in, or belonging to the said brewery property in the city of Scranton aforesaid, do hereby put tbe same into the said partnership, in equal proportions, so that all of the said property, both real .and personal, may be, and they declare the same to be the property of the said partnership and held for partnership purposes. . . . (9) Should either one of the parties hereto die before the expiration of five years from the date of these presents, the business shall be carried on until the full expiration of five years from the date hereof by the surviving partners, together with the personal representatives of the deceased partner, for the benefit of the said surviving partners and the estate of the deceased partners, in equal proportions as the same benefit would accrue had not the said death occurred. ...”</p> <p>2. E. Robinson, the mother of Charles, August and William Robinson, conveyed to her three sons by deed dated May 13, 1893, the brewery property, in which the business of the partnership was transacted, for a stated consideration of §1.00. The said property was acquired, as stated in the articles of co-partnership, fully set forth in the first paragraph hereof, for the purpose of being used as a brewery plant by the said partnership, and was so used until the sale to the Pennsylvania Central Brewing Company.</p> <p>3. William Robinson, one of the said copartners, died September 15, 1893, leaving to survive him a widow, Emilie Robinson, now intermarried with H. H. Haeberley, and a daughter, Edna Robinson, born early in 1893 (before the death of William Robinson), of the body of the said Emilie Robinson, and two daughters, Amelia Robinson, born August 25, 1881, and Lena Robinson, born December 25, 1879, of a prior deceased wife of the said William Robinson.</p> <p>4. Henry Armbrust was duly appointed by tlie orphans’ court of Lackawanna county guardian of the said Lena, Amelia and Edna Robinson, October 28, 1898.</p> <p>5. Edna Robinson, child of said William and Emilie Robinson, died February 12, 1894, unmarried, intestate and without issue. Henry Armbrust is still the guardian of said Amelia Robinson and Lena Robinson.</p> <p>6. The Pennsylvania Central Brewing Company offered to purchase from the said Charles Robinson, August Robinson, Henry Armbrust, guardian of Amelia and Lena Robinson, and Emilie Haeberly, the widow of William Robinson, deceased, the real estate of E. Robinson’s Sons, used in the brewery business, together with the manufactured beer, barrels, hops, malt and material in the brewing business for the price or sum of $950,000, to be paid for in the following manner, namely: One third cash, one third common stock of the Pennsylvania Brewing Company and one third preferred stock, and drawing dividends of eight per cent.</p> <p>7. Said Henry Armbrust, guardian of Amelia and Lena Robinson, petitioned the orphans’ court for leave to convey the interest of his said wards of said property and to join Charles Robinson and August Robinson, and Emilie Haeberly in making sale of said brewery plant, material and personal property used in connection with said brewery business, and after due consideration made, it was decreed authorizing the said guardian to so sell; the said petition and decree are made a part of this agreement of facts as though fully set forth herein.</p> <p>8. On October 7, A. D. 1897, the deed was made to the Pennsylvania Central Brewing Company for the said consideration of $5.00, and other good and valuable considerations, and the following amounts paid therefor:</p> <p>Cash........$376,688</p> <p>Bonds of the Pennsylvania Central Brewing Company...... 90,000</p> <p>Common stock of the Pennsylvania Central Brewing Company.....316,666</p> <p>Preferred stock of the Pennsylvania Central Brewing Company..... 166,700</p> <p>The said deed is recorded in Lackawanna county, and is made a part of this agreement of facts, as though fully set forth herein.</p> <p>9. As shown by the books of the partnership, the cost of the lands, buildings and machinery, included in the sale to the Pennsylvania Central Brewing Company was $219,500 of which amount $77,127.54 had been invested in such lands, buildings and machinery out of the earnings of the firm subsequently to the death of William Robinson. It is left to the auditor to find from the agreed facts and such other evidence as may be submitted to him, what proportion of the $950,000 purchase money may fairly be considered to represent the value of such lands, buildings and machinery.</p> <p>10. On January 28,1896, Charles Robinson and August Robinson conveyed to Emilie Haeberly and Henry Armbrust, guardian of Amelia and Lena Robinson, a certain lot on Seventh street in the city of Scranton, being lots Nos. 9, 10 and part of 11, in block No. 28,132^- feet wide in front, and 150 feet deep, for an express consideration of $1.00 and placed the deed on record April 22,1897, in the recorder’s office of Lackawanna county, without the knowledge or consent of either Emilie Haeberly or Henry Armbrust, guardian. The conveyance was stated to be made to the parties “ in the respective proportions which they would be entitled to take said land under the intestate laws of this commonwealth were the title of the same vested in William Robinson at and immediately before his decease.” The first knowledge of the grantees of the making or recording of this deed was in September, 1897. The building and dwelling house upon said lot was begun during the lifetime of Wfiham Robinson and finished after his death, and the entire cost thereof was paid out of the earnings of the partnership.</p> <p>11. The said dwelling house and lot were wholly paid for by August Robinson and Charles Robinson out of the earnings of the partnership after the death of William Robinson, and the cost thereof, as stated on the books, $35,167.94, was charged against the interest of the said William Robinson and his estate on the books of. the partnership.</p> <p>12. Emilie Haeberly, widow, as aforesaid, and Henry Armbrust, guardian, as aforesaid (said guardian with permission of the orphans’ court, formal decree being made), sold and conveyed tbe said lot and building on Seventh street to Charles Robinson and August Robinson for the consideration of $22,500, cash, by deed dated November 24, A. D. 1897, which said deed is made a part of this agreement of facts as though fully set forth herein.</p> <p>18. In making sale of the interest of William Robinson, deceased, in the brewery, and in selling the said dwelling house and lot, it was understood and agreed between the parties that the interest of the widow and guardian of the minor children of William Robinson in said property could not be determined except by adjudication of some court of competent jurisdiction, and it was agreed that the sale should be made and the questions of proportions or distributions should be submitted to court in some proper manner, and to that end the entire amount of purchase money, stocks and bonds derived from the sale of the brewery property, being one third of $950,000, and the purchase money of the dwelling house and lot, $22,500, were placed in the hands of Charles H. Welles, as trustee, for distribution under the supervision of the court.</p> <p>14. The question whether the interest of the said William Robinson’s estate in the real estate, held as aforesaid by the copartnership, was personal property or real estate, and the proportion of the interests of his widow and heirs in the same was first raised by the representatives of the Pennsylvania Central Brewing Company, in connection with the purchase of the co-partnership property, and they declined to accept title unless Henry Armbrust as guardian should secure the consent of the orphans’ court of Lackawanna county to sell the interests of his wards, without designating the proportion of the purchase money which said wards should be legally entitled to receive; and it was agreed that such consent should be obtained without committing any of the parties to a legal admission or agreement as to the nature of the estate so granted.</p> <p>15. The period fixed by the articles for the continuance of the copartnership has not yet expired; no formal agreement of dissolution has been executed, nor have all of its assets been distributed. All of the firm debts have been paid except a mortgage of $80,000, held by Elizabeth Robinson, and there are remaining assets consisting of real and personal property, and money, notes and judgments due the firm. By the sale to the Pennsylvania Central Brewing Company, above recited, the copartnership divested itself of all the property and appliances necessary for the prosecution of the business for which it was •formed.</p> <p>16. The value of the said lands, buildings and machinery is held by the trustee, and should be distributed in cash and securities in the following proportions: Cash, .48798 per cent. Common stock of the Pennsylvania Central Brewing Company, .36822 per cent. Preferred stock of the Pennsylvania Central Brewing Company, .1938 per cent.</p> <p>17. The above amount of $22,500 is held and should be distributed in cash.</p> <p>18. The trustee has already paid to Emilie Haeberly $50,000 in cash, and $15,000 in bonds, and to Henry Armbrust, guardian, $55,000 in cash, and $15,000 in bonds.</p> <p>19. Since the death of ’William Robinson and of his daughter, Edna, there have been several distributions of profits of the partnership business, all of which have been paid in the following proportions : five ninths to Emilie Haeberly, two ninths to the guardian of Emily Robinson and two ninths to the guardian of Lena Robinson.</p> <p>20. Yery soon after the commencement of the copartnership, at the request of William Robinson, a certain lot, being part of the land conveyed by Elizabeth Robinson- to August, Charles and William, heretofore referred to, was set apart to William for the erection thereon of his residence, and the said William had plans prepared for the erection and construction of said residence, and the same was begun in his lifetime and continued to completion after his death, and, when completed, was occupied by his widow and children. No deed, however, had been given in the lifetime of William, but, after his death, Charles and August, joined by their respective wives, made and placed upon record the deed referred to in the tenth agreement of fact in this case.</p> <p>21. The fifteenth paragraph above is qualified as follows, to wit: That so far as it refers to a mortgage for $30,000 held by Elizabeth Robinson, the same is agreed to by the attorney for Mrs. Emilie Haeberly as an agreement with reference to a fact without any admission of her consent or agreement to the giving of the mortgage or the validity thereof.</p> <p>In addition to the foregoing, I find the following:</p> <p>ADDITIONAL FACTS.</p> <p>22. Coupled with the sale of the brewery plant and its equipment, the parties conveyed the good-will of the brewery business of E. Robinson’s Sons to the Pennsylvania Central Brewing Company, intending thereby to terminate and abandon the business for which the partnership was formed, and since the sale no attempt has been made or purpose manifested to ever resume the partnership business.</p> <p>23. The cost of the real estate so conveyed was $219,500, one third of which, together with the further sum of $22,500, derived from the sale of the dwelling house property of William Robinson, may be fairly considered in the distribution as representing real estate.</p> <p>24. The $30,000 mortgage held by Elizabeth Robinson, mentioned in paragraph fifteen above, is shown by the record to be the mortgage of August Robinson upon property entirely distinct from the brewery plant, and not included in the sale thereof. This mortgage is not shown by the evidence to be a liability of the partnership.</p> <p>As applicable to the foregoing facts, I find the following: •</p> <p>CONCLUSION'S OF LAW.</p> <p>1. So far as tile fund for distribution is composed of stocks and bonds it should be distributed in kind.</p> <p>2. So far as the fund represents real estate, it should be distributed as such to the widow and issue of William Robinson, according to the course of descent.</p> <p>3. As to the share of Edna Robinson, deceased child of William Robinson, the surviving mother, Emilie Haeberly, is entitled to take the same, both real and personal, in fee.</p> <p>4. Emilie Haeberly is therefore entitled to take five ninths of the personal estate absolutely, two ninths of the real estate absolutely and three ninths of the real estate for life.</p> <p>5. Lena Robinson is entitled to take absolutely two ninths of both the real and personal property.</p> <p>6. Amelia Robinson is entitled to two ninths of both real and personal property absolutely.</p> <p>7. Upon the death of Mrs. Haeberly, Lena and Amelia Robinson are entitled to have in equal shares the three ninths of the real estate, held by Mrs. Haeberly for life.</p> <p>8. The percentage of the fund derived from the sale of the brewery plant which should be distributed as real estate is .215725 per cent.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 43, Jan. T., 1899, by plaintiff, from judgment of Superior Court, Jan. T., 1898, No. 26, reversing judgment of C. P. Lackawanna Co., Sept. T., 1895, No. 930, on verdict for plaintiff.</p> <p>Appeal from Superior Court.</p> <p>The case was reported in 8 Pa. Superior Ct. 446, where the facts are sufficiently stated in the following excerpts from the opinion of William W. Porter, J., as follows :</p> <p>The plaintiff, a man of fifty-six years, was a passenger on a closed car of the defendant company. He admits that he took a position on the back platform, with knowledge that there were vacant seals within the car. He stood holding to a metal rod which protected the back, window when a collision occurred The effect of the collision was to throw the plaintiff first forwards and then backwards, causing him to strike the iron dashboard with his back and to fall over the dashboard into the street, whereby he claims to have sustained injuries to his back and to his bladder. The case thus presents a voluntary occupancy of the platform of an electric car by a passenger having knowledge of the vacancy of seats within the car.</p> <p>The defendant company offered no testimony to rebnt the presumption of negligence on its part, but claims that the court below should have instructed the jury for the defendant on the ground of the plaintiff’s contributory negligence.</p> <p>The decision of this case involves two questions. First, was the plaintiff negligent in remaining on the platform, under the circumstances? and second, if so, did his negligence contribute to his injury ? Both of these questions must be determined affirmatively in order to sustain the position taken by the defendant.</p> <p>' ********</p> <p>The electric car and the horse car have points of similarity. They operate upon the surface of streets and carry passengers short distances for low fares. Here their likeness ceases. The electric motor has brought upon the crowded city streets as well as upon many of the country highways, cars and trains with a speed and size approaching those of the steam road; subject in their passage to grade crossings of other cars at well nigh every street corner, and of vehicles and foot passengers at every foot of their course and on every hand; running at short intervals of time and space making collision peculiarly likely; subject to frequent and abrupt starting, stopping and turning and to many switches with possibility of derailment. All of these things make transportation upon the electric car quite as perilous as upon steam roads and leave no room for comparison with the slow, deliberate and easily controlled transportation by horses. Under these circumstances, is the passenger who rides upon the platform of the trolley to be held to the rule applicable to steam roads or to the horse car?</p> <p>********</p> <p>Did the plaintiff’s position on the platform of the car contribute to his injury? He testifies, as do his physicians, that bis injury was caused by striking Ms back upon the platform railing. The character and cause of the physical injury were thus determined by the plaintiff’s own' testimony and that of his witnesses to be due to Ms position on the platform. Had he been witMn the car it cannot be assumed that he would have been injured in the same manner and to the same extent, or that he would have been injured at all. When the plaintiff boarded the car he was accompanied by a friend who took a seat within the car and was uninjured by the collision. Again, the plaintiff’s evidence is that the passengers inside the car were “shook up and scared, and some hurt,” but McAvoy, the plaintiff’s friend, who was in the car and had the better opportunity of knowing what befell the other passengers, says : “ The people that was inside, when they seen them coming, they jumped up and run to the back of the car, it shook them up pretty well in there, some of them was thrown down I think, 1 can’t say for sure.” On all the testimony it seems plain that the peculiar injury complained of by the plaintiff was contributed to, if not wholly caused by, his presence on the platform, and thus convicts him of such contributory negligence as is a bar to recovery.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p> Practice, Supreme Court—Assignments of error—Evidence—Charge of Court. </p> <p>Assignments of error to rulings on evidence are not in conformity with the rules of the Supreme Court, and will not be considered, where no summary or part of the evidence objected to is included in them.</p> <p>It is improper practice to assign as error an excerpt from the charge without including what was said in connection with and qualifying it. •</p> <p>A trial court cannot be convicted of error for commenting upon irrelevant or incompetent evidence, where it does not appear that such evidence was objected or excepted to, or that a motion was made to strike it out.</p> <p> Negligence—Township road—Guard rail. </p> <p>In an action against a township to recover damages for death of plaintiff’s wife, alleged to have been caused by the absence of a guard rail at a dangerous point in the road, evidence is admissible that after the accident the township placed a guard rail at the point in question.</p> <p>In an action against a township for an accident caused by a wagon going over a dangerous embankment where it appears that the course of the wagon was plainly marked by the pole which had dropped to the ground, opinions of witnesses respecting the course of the wagon are not only inadmissible, but of no account.</p> <p>In an action against a township to recover damages for death of plaintiff’s wife alleged to have been caused by the neglect of the “township to erect a guard rail at a dangerous point on a road, where there is evidence that the tugs attached to the whiffletrees of the wagon in which plaintiff’s wife was riding became detached; that the horses became frightened, and that the wagon went over the embankment, the absence of guard rails is merely the remote cause of the injury, and it is error for the court to instruct the jury that, notwithstanding this evidence, the plaintiff can recover if the township was negligent in not maintaining a guard rail.</p>

<p> Contract—Evidence—Burden of proof—Question for jury. </p> <p>In an action to recover a specified sum which the plaintiff alleged that the defendant agreed to pay him for negotiating the sale of certain property, the burden of proving the speoial contract is upon the plaintiff, and if he testifies fully and positively to the making of the contract, and the defendant contradicts him, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.</p> <p>Contract— Consideration— Verdict.</p> <p>Where the defense to an action upon a contract for compensation for services rendered in effecting a sale of property is a denial of the alleged contract, and also that, at the time the services were performed, the plaintiff was in defendant’s employ, and that the services were within the scope of his employment, so that, even if the contract had been made, it was without consideration, a verdict for plaintiff necessarily implies, not only that such special contract had been made, but also that it was for special services rendered for which no compensation was otherwise provided.</p>

<p>Appeal, No. 157, Jan. Term, 1898, c by defendant, from judgment of C. P. No. 4, Phila. County, Sept. T., 1896, No. 808, on verdict for plaintiff.</p> <p>Assumpsit upon a policy of fire insurance, for partial loss by fire. Before Aenold, P. J.</p> <p>The policy was in the sum of $4,000 on a brick dwelling house. There was an explosion caused by the use of benzine, blowing the skylight out of the top of the house, demolishing the heater in the cellar and setting the house afire.</p> <p>The additional facte appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[The rule of law in a case of this kind is this, that a person is not entitled to recover upon a policy of insurance if the loss iff caused by what we call gross carelessness or negligence of the person insured, so that if you are of opinion that the loss was occasioned by the gross carelessness and negligence of Mrs. Bentley in taking into the house an explosive article, of course, the company is not liable, but if the loss occurred by what we call ordinary negligence or carelessness, such as anybody might be guilty of, then that is one of the risks which the policy covers.] [1]</p> <p>The first point for you to determine is, How was this fire occasioned ? Was it occasioned by the gross carelessness or the ordinary negligence of the insured, Mrs. Bentley ? [If it was occasioned by ordinary negligence, she may be entitled to recover in this case.] [2] If it was occasioned by gross carelessness, such as no person should be guilty of, the misfortune is her own and she cannot recover. That is the first point in the case.</p> <p>There is another defense made, that the loss was occasioned, not so much by fire, as by explosion. Now, the policy insures against loss by fire, and does not cover loss by explosion, so that if the loss was all by fire and none by explosion the plaintiff would be entitled to recover if she is not guilty of any gross carelessness, while if the loss was occasioned altogether by explosion and not by fire, then she is not entitled to recover. In other words, the policy covers losses by fire but not losses by explosion. Now, all the testimony in this caso shows that the fire was caused by an explosion. The use of benzine in the house, by sprinkling it over the furniture, caused an evaporation and the creation of inflammable gas, which exploded, and for as much injury was caused by the explosion the company is not liable. Exactly what the proportion is is very difficult to determine by any positive testimony in this case, but you, as jurors, having heard all the case and what the witnesses testified, have a right to say what damage in your judgment was caused by the explosion and what damage was caused by the fire. If the house was blown out, the building in any manner destroyed, it then became a mass of materials and of course, those materials, although burned, were not worth as much as they were in the building. So you will inquire and determine upon the testimony how much of that loss you think was due to the explosion and how much to the fire. I charge you again, that the company is not liable for any loss by explosion, but simply for the loss by fire.</p> <p>The two questions in the ease are these: Is the company exonerated from liability upon this policy by the gross carelessness and gross negligence of Mrs. Bentley in the use of benzine in the manner in which it has been testified she used it ? If you are of opinion that her conduct was grossly careless, and that that was the cause of the fire, of course the company is exonerated, and she cannot recover. [If, however, you believe it was not grossly careless, but simply what we call ordinary negligence, that is one of the risks which insurance' companies insure against, and the company is responsible.] [3]</p> <p>Yerdict and judgment for plaintiff for $2,078.88. Defendant appealed.</p> <p>Errors assigned among others were (1-3) above instructions, quoting them.</p>

Appeal, No. 87, Jan. T., 1898, by Levi L. Fritcb, from order of C. P. Berks Co., dismissing exceptions to auditor’s report. Exceptions to report of auditor, Horace Rowland, Esq. From the auditor’s report, it appears that on April 19, 1894, Tilghman L. Fritch, Manoah L. Fritch and Levi L. Fritch, brothers, made an assignment of all their partnership property, real and personal, to M. S. Long, in trust for their creditors.

<p>Appeal, No. 45, Oct. T., 1899, by the city of Pittsburg, from order of C. P. No. 3, Allegheny Co., May T., 1897, No. 280, sustaining exceptions to report of jury of .view.</p> <p>Exceptions to report of jury of view.</p> <p>The Act of May 22,1895, P. L. 105, authorized all cities in this commonwealth to grade, pave, curb, macadamize and otherwise improve streets, without petition from the property holders, and by section 2 provided for the ascertainment of the damages and the assessment of benefits in the maimer provided by law.</p> <p>On July 15,1897, the councils of the city of Pittsburg passed an ordinance for the paving and curbing of Greenfield avenue, from Second avenue to Curtin avenue. A contract was let, and the work completed at a cost to the city of $17,548.74. On March 6,1897, the court appointed a board of viewers to assess the damages and benefits resulting from the improvement, and they reported assessments against abutting property for special benefits to the amount of $8,456.54, and assessing the balance of the cost, $9,092.20, against the city.</p> <p>Exceptions were filed by some of the property holders assessed for benefits, alleging that the second section of the act was unconstitutional and did not authorize the making of benefit assessment; that it violated article 3, section 6 of the constitution, relating to the revival, amendment or extension of legislation, without republishing the same at length.</p> <p>The exceptions of Mary E. Schenley were as follows: (1) The work done, for which the assessment was made by the viewers, was done in pursuance of an ordinance of the city of Pittsburg, which ordinance was not based upon a petition of the owners of property abutting on the improvement, and no part of the costs of said improvement can be lawfully assessed upon the abutting owners; (2) the appointment of the viewers, and all the proceedings therein, are unauthorized by law, and irregular and void; (3) the property of exceptant is not specially benefited to the amount found by the board of viewers. The lot of exceptant is very steep, and of little value and ought not to be assessed with benefits.</p> <p>The exceptions of the Peebles Subschool district were as follows: (1) The said viewers have assessed upon the property of exceptant benefits to the amount of $305.46, and said property is not benefited to that amount; (2) the ordinance pursuant to which the said improvement was made is invalid and illegal. The said improvement made without lawful authority, and the said viewers had no jurisdiction or power to assess any part of the cost or expenses of said improvement upon exceptant as benefits; (3) the ordinance of the councils of the city of Pittsburg, under which said improvement was made, being No. 533, approved July 11, 1895, of record in ordinance book of said city, in vol. 10, page 379, was not enacted pursuant to the petition of the majority of property owners in interest and number abutting on the line of said improvement, and no notice that such petition had been signed by such majority was given after the enactment of said ordinance, as required by law.</p> <p>The exceptions of M. Flanagan were as follows: (1) The said ordinance under which said improvement was made is illegal, null and void, for want of legal power and authority in the city of Pittsburg, to pass the same; (2) the property of exceptant is situated far above the grade of said avenue, and is not specially benefited by said improvement; (3) said assessment so levied upon the property of exceptant is excessive, unjust and beyond all possible benefit to be derived from said improvement; (4) by reason of said improvement, the said city has been compelled to take other frontage of exceptant, thereby cutting off certain portion of exceptant’s property from said street, and exceptant is entitled to exemption from assessment upon the property so cut off from a frontage on said street; (5) said viewers failed to make a proper award of damages done to said property of exceptant by said improvement, and failed to make any award of damages to exceptant by reason of the cutting off of said property from a frontage on said avenue as above mentioned.</p> <p>Emil Erzman et al. filed similar exceptions.</p> <p>The court sustained these exceptions and set aside the report. From this decree the city appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 16, Jan. T., 1899, by defendants, from decree of C. P» Berks Co., Jan. T., 1899, No. 694, on bill in equity.</p> <p>Bill in equity for specific performance. Before Ermentrout, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree in favor of plaintiffs.</p>

Appeal, No. 24, Jan. T., 1899, by plaintiff, from judgment of C. P. Lebanon Co., June T., 1895, No. 399, on verdict for defendants. Ejectment for a lot of land in Bethel township. Before Air bright, P. J., of the 31st judicial district, specially presiding. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for defendants. Verdict and judgment for defendants. Plaintiff appealed.

<p>Appeal, No. 68, Oct. T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1897, No. 684, on case stated.</p> <p>Case stated on quo warranto.</p> <p>From the case stated it appeared that on April 5, 1862, a corporation, named the Chartiers Cemetery Company, was created by special act of assembly; that immediately after the organization of the company, a certain amount of stock was issued, which was afterwards increased; that on February 15,1893, an informal meeting of some of the stockholders was held, changing ■the number of the board from five to seven, and electing a new board. At a meeting of the so-called new board, O. R. Cooke, plaintiff, was selected as secretary and treasurer, all against the personal protest of J. L. Marshall, defendant, whereupon, on May 4,1894, he, with Moses Chess, organized a new board, wholly ignoring all idea of capital stock and share stock, elected “ associates ” and officers, and Mr. Marshall has ever since claimed to be the lawful secretary and treasurer. The stock board, however, has always since February, 1893, actually controlled the entire management of the cemetery grounds and property, excepting the corporate seal and books of the company, which have always been in Mr. Marshall’s possession. Regular meetings, monthly and annual, have been held by each of the hostile boards to this time.</p> <p>The question involved was whether the Chartiers Cemetery Company had power to issue stock, and whether the plaintiff who had been elected secretary and treasurer by the holders of stock issued by the company was the lawful secretary and treasurer.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 219, Jan. T., 1898, by plaintiff, from judgment of C. P. Northampton Co., May T., 1897, No. 51, on verdict for terre-tenant.</p> <p>Scire facías sur mortgage. Before Yerkes, P. J., of the 7th judicial district, specially presiding.</p> <p>At the trial it appeared that the suit was a scire facias on a mortgage given by Edward F. Stewart to Samuel Fisler, trustee, recorded December 30, 1893.</p> <p>The mortgagor did not appear to defend, and the jury were sworn between the plaintiff and William Laubach, terre-tenant.</p> <p>On December 27,1893, Edward F. Stewart and Margaret H. Stewart, his wife, gave a bond, with warrant of attorney, and mortgage, in the sum of $11,000 to Henry Fulmer, on a property owned by Mrs. Stewart. On the same day, Fulmer entered judgment on the bond. On January 25,1894, Edward F. Stewart confessed a judgment to Henry Fulmer in the sum of $5,500. On January 30, 1897, Mrs. Stewart entered judgment against her husband and issued a writ of execution under which the property described in the mortgage in suit was taken in execution and sold on February 27, 1897, to William Laubach. On February 26, 1897, Henry Fulmer filed in the office of the prothontorary of Northampton county a release of the property described in the mortgage from the lien of his judgment, dated December 27, 1893, and at the same time sent to Edward F. Stewart a duplicate copy of this release. Á few hours after he had received this duplicate copy, Edward F. Stewart returned to Henry Fulmer the duplicate with this indorsement:</p> <p>“ We do not ask for this. We do not wish it. We refuse to receive or accept the same.”</p> <p>“ Witness: (Signed) ■ Margaret K. Stewart,</p> <p>“ F. W. Edgar. Edward F. Stewart.</p> <p>“February 26,1897.”</p> <p>Prior to the sale of the sheriff on the morning of February 27, 1897, public notice was given in the sheriff’s office by counsel for Samuel L. Fisler, trustee, that a release of the judgment had been filed and that in consequence the mortgage in suit would remain a lien upon the property and would not be discharged by the sale of the sheriff. In reply, counsel ■ for Margaret K. Stewart gave notice that the release had been repudiated. Thereupon counsel for Henry Fulmer announced that Henry Fulmer insisted that the release which had been filed of record was valid and that the property about to be sold was released from the lien of his $11,000 judgment. William Laubach was present and heard the notices before he bought.</p> <p>The court instructed the jury to find a verdict in favor of the terre-tenant on the ground that the lien of the mortgage in suit had been discharged by a sheriff’s sale at which the terre-tenant became the purchaser of the property described in the mortgage.</p> <p>Verdict and judgment for terre-tenant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for terretenant.</p>

<p>Appeal, No. 422, Jan. T., 1898, by defendants, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1898, No. 597, on case stated.</p> <p>Case stated to determine what was due under a mining contract and lease.</p> <p>Paragraphs six, eight, nine, eleven and twelve of the case stated are as follows:</p> <p>6. The interest on that $138,333.34 from the several dates of the expenditure of the items thereof to October 14, 1898, is $56,532.06.</p> <p>8. The interest on the items in that $133,333.34 from the several dates of the expenditure thereof to October 14,1898, is $31,174.88.</p> <p>9. The interest on $133,333.34 from the date of the completion of the tunnel for the drainage of the mines to October 14, 1898, is $23,644.45.</p> <p>11. The interest on that proportion of each expenditure for the tunnel from the respective date upon which it was made, which the sum of $133,333.34 bears to the whole cost of the tunnel is $42,756.60.</p> <p>12. The interest on the various deductions from royalties from the respective dates of such deductions to October 14, 1898, is $12,445.05.</p> <p>The other facts appear by the opinion of Arnold, P. J., which was as follows:</p> <p>The plaintiff, being the owner of the Ebervale coal mines, which were full of water, leased them to the defendants on November 19, 1889, reserving royalties, the duty to mine coal (and consequently, to pay royalties) not to begin until the mines should be so far cleared of water as to be workable. In order to drain the mines the defendants agreed to construct a tunnel, which should be the property of the defendants during the continuance of the lease, and on the expiration thereof become the joint property of the parties to the agreement, in the proportion of two thirds to the defendants and one third to the plaintiff. All sums received from other parties for the use of the tunnel, after deducting expenses of keeping it in repair, are to be divided annually between the plaintiff and defendants in the same proportions, that is, one third to the plaintiff and two thirds to the defendants.</p> <p>It was further agreed that in consideration thereof (that is, the construction of the tunnel) the plaintiff would allow the defendants to make monthly deductions from the royalties on coal from the Ebervale lands until the total amount of deductions should reach the sum of $133,333.34, interest being allowed the defendants on their expenditures up to that amount, and charged them on the monthly repayments until the deductions should cease. It was declared to be the intention of the parties that the plaintiff should contribute only $133,333.34, with interest, no matter what the actual cost should be. The construction of the tunnel was commenced on December 31, 1889, and it was completed on October 31,1895, at a total cost of $423,815.35. Deductions of royalties in payment of the contribution of the plaintiff toward the building of the tunnel commenced on November 14, 1895, and continued until October 14,1898, the total amount deducted being $151,388.30. As the date from which interest should be computed on the expenditures was not fixed by the agreement, the parties have, by the case stated, submitted the question to us to determine.</p> <p>The plaintiff contends that it did not become liable for interest until the completion of the tunnel, to wit: October 31,1895, and alleges that it has overpaid defendants $5,710.15, for which it asks judgment.</p> <p>The defendants contend that the plaintiff should be charged with all the interest on the first items of expenditure up to $138,333.34, which were incurred between December 31, 1889, and November 14, 1892, and that so charging it, the plaintiff owes the defendants $27,177.46.</p> <p>The respective calculations are these:</p> <p>Plaintiff’s Claim.</p> <p>The plaintiff asks credit for royalties deducted $150,242 89</p> <p>And interest on the items of deduction from the time when made to October 14,1898 (see paragraph twelve of case stated) . . . 12,445 05</p> <p>$162,687 94</p> <p>The plaintiff admits its obligation to contribute the sum of.......$183,333 34</p> <p>And interest from October 31, 1895, to October 14, 1898 (paragraph nine of case stated) 23,644 45</p> <p>$156,977 79</p> <p>Difference claimed by plaintiff as stated in clause a of case stated..........$5,710 15</p> <p>Defendants’ Claim.</p> <p>The defendants claim from plaintiff its contribution of.......$133,333 34</p> <p>And interest from dates of expenditure of the first items amounting to that sum (paragraph six of case stated) .... 56,532 06</p> <p>$189,865 40</p> <p>Deduct royalties . . ... $150,242 89</p> <p>4nd interest as above ... . 12,445 05</p> <p>$162,687 94</p> <p>Difference claimed by defendants, clause b of ease stated $27,177 46</p> <p>As above stated, the defendants contend that the plaintiff should be charged with the whole of the interest on the first items of expenditure, amounting to $133,333.34. To this the plaintiff answers that if the expenditures are not apportioned, then it should be charged with interest only on the last items of expenditures, amounting to $133,333.34, which were incurred between April 1, 1894, and October 31, 1895, in which case it would be entitled to $1,820.28 from the defendants.</p> <p>By this calculation plaintiff allows its contribution ........$133,333 34</p> <p>Interest from April 1,1894, to October 31,1895, (see paragraph eight of case stated) . . 31,174 88</p> <p>$164,508 22</p> <p>Deduct royalties......$150,242 89</p> <p>Interest as above...... 12,445 05</p> <p>$162,687 94</p> <p>Difference .......... $1,820 28</p> <p>There is another mode of calculation presented in the case stated which seems to us to be more equitable and more in accord with the intention of the parties as gathered from the lease and agreement of the parties. Before stating it we will give our reasons for adopting it. The paper executed by the parties on November 19,1889, is a paper of dual character and purpose. It is a lease of the mines, with the covenants thereunto relating, and also an agreement to construct a tunnel, which tunnel should be the property of the defendants during the continuance of the lease, and after the expiration thereof-the joint property of both parties, the defendants to own two thirds and the plaintiff one third. This division of ownership indicates that it was estimated that the tunnel would cost about $400,000, of which the plaintiff was to contribute only one third, $183,388.84, with interest, no matter what the actual cost should be. It did cost $423,815.35, or within six per cent of the estimate. As the ownership and cost of construction are in such close accord, it seems just and equitable that the interest on the cost of construction should be borne in the same proportion as the cost itself, and, therefore, adopting another calculation presented in paragraph e of the case stated, we make it:</p> <p>Plaintiff’s contribution to cost of tunnel . $133,333 34</p> <p>Interest on its proportion of each expenditure from the date when made (paragraph eleven of ease stated) . . . 42,756 60</p> <p>7 $176,089 94</p> <p>Deducting royalties . . $150,242 89</p> <p>And interest as above...... 12,445 05</p> <p>$162,687 94</p> <p>$ 13,402 0C Difference due to defendants .</p> <p>In regard to the interest, while it is true that interest does not begin to run until default is made in the payment of the principal, yet this is always subject to the agreement of the parties. Here the plaintiff agreed to allow interest on the expenditures, the only matter not being fixed being the date from which the interest was to be calculated. In the absence of such date, as the interest was to be allowed on the expenditures, we think that it was meant that the interest should run from the date when those expenditures were made. As to the contributions of the plaintiff, there was not and could not have been any default, because the defendants were to pay themselves by deducting royalties when and as earned. If none were earned the plaintiff was not bound to contribute. As the tunnel was constructed and the royalties earned, we have a case for the application of the rule for the equation of payments and interest.</p> <p>The contention of the defendants that the plaintiff should be charged with interest on the first $133,833.34 is not reasonable, nor is the counter contention of the plaintiff that it should be charged only on the last $133,333.34. The rule for the equation of interest according to the proportions of principal chargeable to each party for the construction of the tunnel seems to us to be the only sensible solution of the question. We therefore enter judgment in favor of the defendant for $13,402, with interest from October 14,1898.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 298, Jan. T., 1898, by plaintiff, from decree of C. P. No. 2, Phila. Co., Dec. T., 1893, No. 688, on bill in equity. Bill in equity for an injunction. The case was referred to C. Stuart Patterson, Esq., as master, who reported a decree awarding an injunction to restrain the defendant from using the name J. E. Tygert. Exceptions to the master’s report were sustained by the court in banc.

<p>Appeal, No. 31, Jan. T., 1899, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1894, No. 671, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Woodward, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points and the answers thereto were as follows:</p> <p>5. The cause of the accident alleged in the declaration being that the defendant negligently permitted a large tree to stand within the lines of the Main street, although it had become decayed and rotten and dangerous to public travel, and the proof upon the trial being that the said tree was sound and that the accident occurred through the negligent repair of the road, whereby the foundation of the tree was impaired and subsequently undermined by water flowing in the ditch along said .road, there is a fatal variance between the allegations and the facts in the case, and therefore the plaintiff cannot recover. Answer: That raises a question of pleading which is not one of fact, but of law. We decline to affirm that point inasmuch as the declaration sets forth that the tree was dangerous. [1]</p> <p>6. The evidence being undisputed that the plaintiff was upon the street of the defendant at the time of the accident as a motorman employed by the Wyoming Valley Traction Company, and as such employee was at the time running a car by virtue of a license granted the said company by the borough, before he, the plaintiff, can recover damages in this case he must show that he complied with the conditions incorporated in said ordinance on the basis of which the license was granted to the company.</p> <p>7. It was one of the conditions contained in said ordinance that the cars of the said company should not be run at a rate of speed more than eight miles per hour, and there is no evidence that the plaintiff was complying with this provision of the ordinance at the time of the accident, and therefore the plaintiff is not entitled to recover.</p> <p>8. The evidence of the plaintiff himself is that he was running his car at its greatest speed at the time of the accident, which he testified was fifteen miles per hour, and subsequently when given an opportunity to fix a lower rate of speed in correction of his first testimony, he fixed no definite rate of speed below that first given. On this point there is no other testimony. It fails to show a compliance with the ordinance, but shows that the ordinance was violated at the time, and, therefore, he being an employee of the licensee on the highway, his rights can rise no higher than those of his employer, and he cannot recover.</p> <p>9. The evidence establishing the fact that at the time of the accident the car was running at a rate of speed in excess of that allowed by the ordinance under which the traction company accepted its privilege in the defendant borough, the violation of this ordinance bringing the plaintiff to the place where alone the accident was possible, such running of the car was contributory negligence, and the plaintiff cannot recover. Answer: To affirm these points, all bearing upon one question, would be in effect to take the case entirely from the jury, and this we decline to do, and for our further answer to these points we refer to our general charge. [2]</p> <p>Verdict and judgment for plaintiff for $3,162.50. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 122, Jan. T., 1899, by plaintiffs, from decree of C. P. Luzerne Co., March T., 1898, No. 1, on bill in equity.</p> <p>Bill in equity to declare a trust.</p> <p>Edwards, J., of the 45th judicial district, specially presiding, filed the following opinion:</p> <p>Plaintiffs, in their bill of complaint in this case, allege that the defendant, in securing the title to an undivided one half of a certain piece of land situate in the city of Wilkes-Barre, in his own name, was acting for the plaintiffs as their agent, and that by his refusal to transfer the title to them he is a trustee ex maleficio. Defendant, in his answer, alleges that he obtained the said title for himself with the full knowledge and understanding of the plaintiffs. There are many collateral facts and questions requiring our attention. The evidence as to these facts and as to the controlling question in the case demands careful consideration at the hands of the chancellor. To secure a reasonably clear understanding of the matters in dispute we make the following specific findings of facts:</p> <p>1. The title to the land in controversy on December 23,1865, was in George H. Wells. Subsequent conveyances are as follows : 1865, December 28, George Wells and wife to H. C. Perry and D. W. Perry; 1879, September 2, EL 0. Perry and wife to Elenry Mahler; 1879, September 2, Elenry Mahler to Susan B. Perry, wife of H. C. Perry; 1873, June 18, D. W. Perry and wife executed a mortgage in favor of Jacob Holman, on the undivided one half of said land, to secure a debt of $5,226.64, represented by several notes. These notes and mortgages were assigned to M. B. Holman. Proceedings were had upon one of the notes and the D. W. Perry undivided half of the property was sold at sheriff’s sale in 1882, M. B. Holman becoming the purchaser. Thus, according to the title papers, Susan B. Perry and M. B. Holman each was the owner of an undivided half of the property, and were tenants in common.</p> <p>2. After the sheriff’s sale to M. B. Holman, H. C. Perry and Susan, his wife, remained in possession of the whole property. To secure his rights as a tenant in common M. B. Holman brought an action of ejectment to February term, 1884, naming H. C. Perry as defendant. This action is yet pending and not disposed of. For several years no particular effort was made to press the ejectment suit. The transaction which brought about the subsequent dealings between the plaintiffs and the defendant Livingston was the entry of a municipal lien for asphalt pavement against the property in dispute, and the sheriff’s sale which followed. The lien was entered in 1890. Judgment was regularly obtained thereon and the property sold early in 1891 by the sheriff to Susan B. Perry, one of the plaintiffs. The sheriff’s deed bears date of February 24, 1891. To meet the payment of the lien, taxes and cost of sale, Isaac Livingston advanced the sum of $1,053.83 to the plaintiffs on a mortgage dated February 25,1891. This mortgage was paid in January, 1898, by J. R. Perry. At this time, 1891, according to the conveyances, M. B. Holman had title to an undivided one half, Susan B. Perry by deed from Mahler in 1879 had one half, and Mrs. Perry had also a sheriff’s deed for the whole property as the result of the sale on the municipal lien.</p> <p>8. Tim Holman ejectment suit being still open, some preparations were made by the Perrys to defend against it, and a question arose as to the effect of the last sheriff’s sale on the Holman title, and whether the rights of the parties had been in any way changed by that sale. Previous to this time the relations between H. C. Perry and the defendant had been of a very friendly character. They had known each other for years. Livingston had already assisted the plaintiffs by the loan already mentioned. They went together to the office of the Hon. John Lynch to see about the Holman case. Mr. Lynch about that time became judge, and the case went into the hands of John T. Lenahan, Esq. Several years elapsed before anything more was done in connection with the case of a definite character. Finally, in the autumn of 1897, Mr. Lenahan advised Mr. Perry that the Holman title was still valid and was not affected by the sale on the municipal lien, and that the best way out of the difficulty was to buy Holman’s title. Mr. Lenahan said this to Mr. Perry and to Mr. Livingston. It was suggested that Mr. Livingston should buy the Holman title. This was agreed to by the parties and steps were immediately taken to consummate the arrangement. Whether Livingston was to buy the Holman interest for himself or for the Perrys is the real question in the case.</p> <p>4. Holman lived in another part of the state. The defendant had an interview with him which resulted in an option, by the terms of which the Holman interest was to be purchased by the defendant for $1,900. The defendant returned to Wilkes-Barre and on November 5, 1897, he secured a quitclaim deed from the Perrys, releasing any claim they might have to the Holman half. In a day or two the defendant settled with Holman, obtaining from him a deed bearing the same date, viz: November 5, 1897.</p> <p>5. During the week following November 5, 1897, H. C. Perry and the defendant had several interviews. They met on Sunday on the property and discussed improvements and changes. Then and afterwards they discussed the question of insurance, and in Mr. Lenahan’s office there was a dispute between them as to the payment of the charge for asphalt pavement,—whether Mr. Perry should pay the whole of it or only half. There was an interview also in Livingston’s house. These discussions covered a period of four or five days. The amicable relations between the parties then ended abruptly. Mr. Perry refused to have further converse with Mr. Livingston, Perry alleging that Livingston acted for him and his wife in the purchase of the Holman title, with the understanding that the whole property was to be sold and all claims paid, the surplus to go to the Perrys, and Livingston alleging that he bought the Holman title for himself, with full knowledge of the fact on the part of the plaintiffs.</p> <p>6. According to a contract offered in evidence it appears that the plaintiffs, H. C. Perry and Susan Perry, on January 18,1898, sold to Hannah Perry all their interest in the property in dispute, stated in the contract to be an undivided one half, agreeing also to vacate the premises by April 1, 1898, the plaintiffs to have a house on Kulp street free from rent for one year.</p> <p>7. A considerable portion of the testimony relates to the unsettled and unadjusted accounts between the tenants in common. When D.W. Perry and H. C. Perry bought the property in 1865, it is claimed by H. C. Perry that he paid nine tenths of the purchase money, and that D. W. Perry paid only one tenth. It appears also that J. R. Perry, under an agreement with H. C. Perry and wife, built two or three houses upon the property some time in 1886, four years after Holman secured his title at sheriff’s sale. J. R. Perry was to receive the rent of one of the houses until his bill was paid. This account with J. R. Perry is unsettled, and was at one time the occasion of some dispute between the two brothers, J. R. Perry and H. C. Perry. It is evident that there is a long accounting which has not been had, covering a period of probably more than thirty years. For much of this period H. C. Perry and his wife have been in possession of the whole property, receiving rents. Improvements and repairs have been made and taxes have been paid. These accounts between the tenants in common and their equities, as such, cannot be considered in this case. The purpose of this evidence and of the offer of the title obtained by Susan Perry at the sale on the municipal lien was to show that she had a bona fide claim of title to the Holman interest. But it is not necessary to discuss this part of the evidence at any length. We are clearly satisfied that M. B. Holman at the sheriff’s sale in 1882 obtained a good title to the undivided one half of the property which was in the name of D. W. Perry, and that Holman conveyed this same title to the defendant in November, 1897. The state of the accounts between the tenants in common is at present immaterial.</p> <p>8. The foregoing facts are a part of the history of this case. They are not conclusive as to the real contention between the parties, but it has been necessary to narrate them because they lead naturally to the question that controls the case. In obtaining the title from Holman, did the defendant purchase it for himself or for the plaintiffs ? Was he to hold the title in trust for the plaintiffs until the property could be sold, when the defendant would be reimbursed for the money expended by him and the surplus go to the plaintiffs ? Or did he, in good faith and without violation of confidence and trust, procure the Holman interest for his own use ? On this point, after considering all the evidence, we find that the purchase of the Holman interest by the defendant was made with his own money, to secure for himself the title to the undivided one half of the property. While this was done by the defendant from friendly motives and to help the plaintiffs, by substituting the defendant for Holman as Mrs. Perry’s cotenant, or, in other words, by substituting a friend for an adverse antagonist and thereby facilitating the settlement of the ejectment suit, nevertheless, the defendant did not buy said title for the plaintiffs, nor did he in any way become their trustee. Without regard to the rule of evidence defining the quality of testimony necessary to create a trust in land and to defeat a legal title, and even conceding that, owing to the relations existing between the defendant and plaintiffs, there is a burden cast upon him to prove his good faith in the transaction, we are satisfied that the defendant has fairly met this requirement and has established his contention by preponderating testimony.</p> <p>CONCLUSIONS OF LAW.</p> <p>The legal principles applicable to the facts of this case will be incidentally considered in the further discussion of it. We make the following formal finding:</p> <p>The plaintiffs have not made out such a case as entitles them to relief in a court of equity. The bill should be dismissed.</p> <p>Plaintiff’s request and the answer thereto were as follows:</p> <p>As conclusions of law we respectfully ask the court to find that all the prayers of the bill be granted and that defendant be allowed nothing for expenditures made by him. Answer : The request is refused.</p> <p>DISCUSSION BY THE COURT.</p> <p>1. The eighth finding of fact determines this case in favor of the defendant. It is not without careful analysis and consideration of the testimony that we have arrived at this conclusion. The testimony of H. C. Perry and his wife, Susan Perry, is positive in its character. They both testify that the defendant acted as their agent in the purchase of the Holman interest, the arrangement being that the whole property was to be afterwards sold, the debts, including the money paid Holman, to be first paid, and the balance remaining to be paid to the plaintiffs. Husband and wife agree in their version of the interviews they had with the defendant. Both testify that when the defendant suggested that he should buy Holman’s interest for himself, the husband said he would not go into partnership again “if an angel came down from heaven.” The notes of testimony show many such emphatic and positive declarations. The defendant on the other hand is just as emphatic and fervid in his denials and protestations. While they agree on many minor and correlative facts and incidents, they are utterly at variance with each other as to the main contention. The testimony leaves an impression upon the mind that up to the final disruption of their friendly relations, the parties were acting at cross-purposes, each seeming to proceed upon the supposition that there was no misunderstanding of any kind between them. This impression is produced more particularly by the testimony of the parties themselves. The evidence of the parties immediately interested being so contradietoiy, it is our duty to examine the facts and circumstances of the case and the testimony of other witnesses, for corroboration.</p> <p>(a) Friendly relations of the parties. These relations undoubtedly existed, Mr. Perry sought Mr. Livingston’s advice. The latter aided the former in many ways. He gave him material assistance by advancing money to pay the municipal lien and other charges. He accompanied him to the offices of the attorneys. Plaintiffs claim that by reason of these friendly associations they were led to confide in the defendant and permitted him to proceed with the purchase of the Holman title in his own name, but for their benefit, and that he took advantage of their confidence to his own profit. Counsel for defendant insist that friendship, so far from militating against their position, furnishes the strongest corroboration, because a friend became a cotenant instead of an enemy, and that the settlement of the long pending ejectment suit would speedily follow. In our opinion the claim of friendship corroborates one side as much as the other. The acts of both parties are consistent with the amicable relations existing between them. We do not think the evidence establishes such a confidential relation between the plaintiffs and the defendant as the law contemplates for the production of the result claimed by the plaintiffs. But if it did, we are satisfied that the defendant even then has fully met the responsibilities of such a situation.</p> <p>(5) The evidence of J. R. Perry. This witness is the brother of one of the plaintiffs. He and his wife by contract in 1898 secured the title to Susan Perry’s half of the property. So far as the contest in this case is concerned, they have taken the place of the plaintiffs. In his testimony, J. R. Perry corroborates the plaintiffs, especially H. C. Perry, in many particulars. He testifies to declarations by Livingston to the effect that he, Livingston, was desirous of helping H. C. Perry, and that he had advanced money to him to pay off the liens and that the property should be sold to the highest bidder, so that “ Henry ” would know where he stood. This conversation was in 1892, and referred more particularly to the transactions connected with the sheriff’s sale on the municipal lien. There were other interviews, one about 1895, and the other in October, 1897, at each of which defendant said he was anxious to help Henry out of his troubles. There was an unsettled account between the two brothers arising from the building of certain houses on the property. It was the occasion of a dispute between them. Livingston wanted J. R. Perry to make a statement of his account so that the matter might be settled. In the discussion of these accounts at the Octoberv1897, interview, J. R. Perry suggested to Livingston that as he was acting for Henry, he had better buy the Holman title. Livingston replied, “-Why don’t you buy it ? ” Perry said that he did not want to interfere because he, Livingston, was Henry’s friend and should carry the matter through, although he was willing to refund to Livingston the amount to be paid Holman. This is briefly the substance of J. R. Perry’s testimony. It is rightly claimed by the plaintiffs that this testimony is corroborative of portions of their evidence and tends to strengthen their contention.</p> <p>(c) The quitclaim deed of November 5,1897, from the plaintiffs to defendant. Susan Perry had a sheriff’s deed of the property as sold on the municipal lien. This deed on the face of it gave her the title to the whole property. It is true that as between tenants in common their rights remained the same and that the sheriff’s sale inured to the benefit of both, subject to an account between them; but the plaintiffs had evidently considered the subject of the extinguishment of Holman’s title by the sheriff’s sale, and lawyers had been investigating the question. It was important, therefore, that the Perrys should recognize the validity of the Holman title to an undivided one half before anybody would undertake to buy it. The plaintiffs executed the quitclaim deed in the presence of a notary public. Their contention as to this de^d is that Livingston informed them that Mr. Lenahan, their attorney, said it was all right. Outside of the testimony of the parties themselves it appears from the clear testimony of the notary that the quitclaim deed was executed with the usual formalities. Mr. Perry looked over it, having it in his hands for a short time, and after Mr. Perry had left the room the notary explained the contents of the deed to the wife, taking her separate acknowledgment. We cannot avoid the conclusion that the plaintiffs understood the nature of the instrument which they signed. It may be said, from the standpoint of the plaintiffs, that this may be true and still consistent with their claim that Livingston was acting for them, the quitclaim deed being a part of the means necessary to accomplish the object in view. Nevertheless, it appears to us that the obtaining of this deed by Livingston before closing the transaction with Holman is a fact that fits in logically with the defendant’s position in this case. It was the right and the reasonable thing to do under the circumstances, and it is in harmony with the suggestion of Mr. Lenahan, who at that time was the plaintiff’s attorney.</p> <p>(d) The testimony of Judge Lynch and Mr. Lenahan. Both parties rely on the testimony of these two witnesses for corroboration of their respective positions. Judge Lynch’s testimony tends to prove the existence of friendly relations between the Perrys and Livingston in 1891, and Livingston’s apparent desire to help the Perrys in connection with the proceedings on the municipal lien. Mr. Lenahan’s testimony bears more closely on the material point in the case. He testifies to the friendly interest shown by Livingston in the affairs of the plaintiffs. In two important particulars Mr. Lenahan corroborates the defendant. Perry charged Livingston with deceiving him as to Mr. Lenahan’s advice in regard to the quitclaim deed. Following in part is the testimony of Mr. Lenahan on this point: “ I remember Mr. Livingston coming into my office one day and asking me what I thought about his getting that title from the Holmans. I said, ‘ Do that; that is just the thing to do.’ And he went away and came back in a week or two after that and he had the title. I don’t know how long it was after that he had the title and he said to me, 4 Now there is no question about this title, is there ? ’ I said: ‘ Of course there is the lawsuit pending over there yet.’ Mrs. Perry might push it, or Perry, or whoever it was that were the defendants, and ‘ the only way,’ said I, ‘ to prevent any litigation about it would be to get a paper of Mrs. Perry of some kind setting forth that she had no defense in this thing,’ or a deed, something of that kind—something mentioned about a deed or paper. I went away then. He asked me if I would draw it up, I said, 4 No, I am going away. I am going to Tunkhannock.’ I think I had a lawsuit up there. Next thing I knew, one of the Perrys came to me and asked me if I had authorized the drawing of this deed, but I found out that the deed they got from Perrys embraced the whole of the land,—I understood so from someone that it embraced the Holman interest and the other half; some one told me that, I don’t know who told me. Some one told me about it and I said I never authorized such paper as that— to cover the whole property.”</p> <p>On this same subject on cross-examination Mr. Lenahan says : “ Q. In reference to this quitclaim paper whether or not you directed your clerk in the office to go out and get a blank and prepare that deed when you had to go away ? A. I directed him to get some kind of a deed. Q. Mr. Battle ? A. Yes, sir. Q. Your stenographer or clerk? A. Yes, sir. Q. Then if the deed had been for the undivided one half of the property, it would have been in accordance with your instruction ? A. If the deed was for the undivided half, yes. Q. And the reason why you said you had not authorized such a deed was because you understood the deed covered the whole property? A. That is what I was told, yes, sir; I was told by two or three parties. Q. In other words, if the deed that was drawn between them was for the undivided one half, wherein M. B. Holman now claims title under Perry, the remaining one half being left in the parties first named—that is, in H. C. and Susan B. Perry, subject to a mortgage in favor of Isaac Livingston, that would be in accordance with your instructions and understanding? A. Yes, sir.”</p> <p>Another point on which Mr. Lenahan corroborates the defendant is as to the proportion each of the parties should pay of the bill for the asphalt pavement. Perry claimed that Liv ingston should pay half the bill. Livingston in answer said that if that were right the Perrys should account for half of the rent. As to this matter Mr. Lenahan testifies as follows: “ Q. When Perry and Livingston came to your office, after Livingston had bought out the Holman title, did they come there together? A. I remember one evening they came there; they may have been there before. Q. And that was the time when the question was raised as to the interest J. R. Perry had in the property? A. Yes, sir. Q. The purpose of their visit there was to get Isaac Livingston a valid title to one half of that property ? A. They talked there about making arrangements satisfactory all around. Q. Mr. Perry wanted Livingston to pay for one half the asphalt street, did he not ? A. There was talk of that, yes. Q. And Mr. Livingston said he would leave it to you to say whether he should pay half for the asphalt ? A. Here is the way that came up. He said Livingston ought to pay one half that asphalt and I said, ‘Henry, I don’t know, I think you got the better of this thing because between Holman and Livingston,’ I said, ‘if they would pursue you for the rents, the rents would amount to a good deal more.’ I sat down and figured them. I says, ‘You see that will amount to a great deal more than the asphalt.’ I think the whole amount of asphalt was $200 or $300— the whole amount; that is my recollection of it. Q. You decided if Henry insisted that Livingston should pay half the asphalt, he would have to pay Livingston half the rent ? A. Livingston, from the time he bought, and the Holmans, from the time preceding the other. That was submitted to me as matter of equity.”</p> <p>(e) There is considerable other testimony in the case which corroborates the defendant’s contention. Solomon Bacharach, a son-in-law of Livingston, testifies to declarations by Perry as to the purchase of the Holman title by Livingston, and as to the asphalt dispute, which cannot be reconciled with the theory of the plaintiffs. Mrs. Bacharach and Miss Livingston, daughters of the defendant, among other things gave the declaration of Mr. Perry when he said he was glad that Livingston was now a partner of his wife Susan in the property. The testimony of Louis Hartman, a carpenter, is important. The Sunday after November 5, 1897, Mr. and Mrs. Perry and the defendant met on the property. Mr. Hartman was called into the discussion as to the improvements to be made. The conduct and declarations of all the parties on this Sunday are inconsistent with the plaintiffs’ claim. Reference should be made to the incident relating to the insurance of the property, also to the sale of only an undivided one half by the Perrys to J. R. Perry in 1898, and the recital as to their title in the contract of sale.</p> <p>Taking everything into consideration, we cannot fail to conclude that our eighth finding of fact is abundantly warranted by the evidence.</p> <p>The questions of law involved in this case are few. There can be no contention as to the legal effect of the sheriff’s sale on the municipal lien to Susan Perry. The law is well settled. “ If a tenant in common purchases, with his own money, in the name of another or in his own name, the estate in common at a tax sale, the purchase inures to the benefit of all the tenants in common. All that the purchaser can demand from the others is contribution to the expenses by which the common interest has been relieved from embarrassment: ” Tanney v. Tanney, 159 Pa. 277.</p> <p>We have not discussed the operation of the statute of frauds on the rights of parties. The creation of a trust in land must be in writing. A party claiming to come within the exception must have a bona fide claim to the land which is the subject of the trust. “ Where one has a bona fide claim, whether valid or not, to certain land, and is induced to confide in the verbal promise of another that he will purchase the same for the benefit of the former at a sheriff’s sale, and in pursuance of this agreement, allows him to become the holder of the legal title, a subsequent denial of such promise by the purchaser is such a fraud as will convert him into a trustee ex maleficio: ” Wolford v. Herrington, 86 Pa. 39.</p> <p>We have given the plaintiffs the benefit of the principle annunciated in the above case so far as it relates to a bona fide claim on their part to the Holman interest. We do not consider it valid, but this seems to make no difference.</p> <p>Now, therefore, February 4,1899, the above case having been heard in open court in accordance with the equity rules, after due consideration, it is ordered and adjudged that the plaintiffs’ bill be dismissed at the cost of the plaintiffs.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 143, Jan. T., 1899, by plaintiffs, from judgment of C. P. Blair Co., Oct. T., 1897, No. 5, on verdict for defendant.</p> <p>Trespass to recover damages for personal injuries.,</p> <p>The facts appear by the opinion on the motion for a new trial</p> <p>The court charged in part as follows:</p> <p>The defendant denies the right of the plaintiffs to recover in this action from the defendant, for the reason that the persons in charge of the work were not its employees; and, therefore, it is not responsible for their negligence, if they were negligent. It says that it entered into a contract with Cyrus N. Stark to grade and surface the road and lay the tracks upon it at a certain price per lineal foot for the different kinds of work; that it had no control whatever over the mode by which he performed the work; that it had no control or supervision over the work as it progressed; that Stark was only accountable to the company that the work went on and that he fulfilled the specifications mentioned in the contract; that Stark employed all the men, and the company had no control over them and no right to interfere with the manner in which Stark chose to perform his covenant under this agreement.</p> <p>The evidence shows a diligent search and inquiry for the contract, but it cannot be found and is not produced on this trial. Secondary evidence, therefore, on both sides was admitted to prove its contents. The plaintiffs have offered the deposition of C. N. Stark.</p> <p>[In the re-examination by defendant’s counsel this question was put to the witness: “Q. Did this engineer, King, have anything to do with directing the manner of doing the work ? A. No, sir; all the authority he had was to put those grade stakes in and say to me, ‘ There are your grade stakes.’ ”</p> <p>The reply of Mr. Stark to the question put to him by the plaintiffs’ counsel must be considered with his whole testimony; and from it all, we are convinced, that the witness meant by this answer that the work to be supervised by the engineer was the manner of its completion and not the manner of its performance ; that is, the engineers were to supervise the work only so far as to the track and grades to be observed.</p> <p>The plaintiffs having offered this deposition as part of their testimony in chief, admit the truthfulness of the statement of the witness. On the same point, that is, as to the contents of the lost written contract, the defendant has called A. C. Shand, chief engineer of the company, who testifies that he drew the contract; and he corroborates the testimony of Stark in every material point, and states further that the company did not reserve any right or power to control the performance, only that Stark was to grade the track and lay the rails at Hollidaysburg, subject to his approval in every respect, and that the work was to be done in a workmanlike manner. The evidence of these two witnesses is the only evidence on this point that there is in the case; and under it I am of the opinion that Stark was what is known in law as an independent contractor; that is, that he had a right to perform the work, to conduct the performance of it in such manner as he chose, independent of the right of the company to interfere with the means which he employed or with his manner of conducting it, the company having no other jurisdiction over it except to approve or disapprove of it when completed under the contract; and that the defendant company was not liable for his negligence. I am, therefore, obliged to say to you, as a question of law, that inasmuch as the defendant had no right to interfere with Stark or his employees in the means which he chose to employ on his part, their negligence could not and should not be imputed to the defendant company so as to hold it liable in damages for the injury that Mrs. Thomas sustained.] [2]</p> <p>Plaintiffs’ second point and the answer thereto were as follows :</p> <p>If the jury believe that the contract between the defendant and Cyrus N. Stark, for grading the track and laying the rails of the defendant company, reserved to the defendant company control of the manner or means of the performance of the work, then the contractor, Cyrus N. Stark, and his employees or servants were the employees or servants of the defendant company, and the defendant would be liable as the master or employer for their negligent acts, whether there was this reservation of control over the manner or means of performing the work, is a question of fact for the jury; and in determining it, the jury is to consider and weigh all the evidence in the case bearing upon the subject. Answer: This point is declined. I have held in my general charge that there is no evidence in the case of the facts upon which the point is predicated to be submitted to the jury. [1]</p> <p>The court gave binding instructions for defendant. [3]</p> <p>Verdict for defendant.</p> <p>Opinion of Bailey, P. J., of the 20th judicial district, specially presiding, on the motion for a new trial:</p> <p>The proximate cause of Mrs. Thomas’s injury was the upsetting of a plank upon which she stepped while crossing Allegheny street, in the borough of Hollidaysburg. This and other planks placed by its side formed a temporary crossing over the rails. It was uptilted by a loaded cart striking the end of it. The cart was under the control of the employees of C. N. Stark, who had contracted to construct the defendant’s road in Hollidaysburg. It is not alleged that the crossing itself was not reasonably safe for the purpose for which it was made, or that Mrs. Thomas would not have passed over it in safety if the cart wheel had not struck the plank. There was ample space between the end of the plank crossing and the pavement to allow the passage of the cart. Permitting it to get on the plank was the negligence of the person or persons in charge of it, for which the contractor might be liable. The defendant was not their employer. They were servants of the contractor. The relation of master and servant existed between them, and the contractor would be liable for negligence on their part while in his employ. To him only the rule of respondeat superior applies. There cannot be two superiors severally responsible for the same wrongful act: Wray v. Evans, 80 Pa. 102.</p> <p>Notwithstanding the able argument of the learned counsel for the plaintiffs on the motion for a new trial, I continue of the same opinion I entertained at the trial; that Stark was an independent contractor and the defendant was not answerable to the plaintiffs for the negligence of his employees in permitting the cart to be run upon the plank crossing, if there was negligence.</p> <p>The defendant did not reserve in its contract with Stark any control over his employees or the means to be employed by him to do the work he contracted for. It had no control or supervision of the work, except to see that it was completed according to the specifications. • With the men or means employed by Stark to accomplish it, it had nothing to do, except in the event of Stark’s neglect or refusal to prosecute the work with a force sufficient for its completion within the time specified in the agreement, which contingency did not happen. The agreement provided that the engineer of the defendant company might declare it forfeited (among other causes) “ for noncompliance with his directions in regard to the manner of constructing it.” The agreement was not rescinded, and Stark completed the work. It is earnestly contended that by these stipulations the defendant reserved control of the work, and was, therefore; liable for the negligence of the contractor’s employees during its progress. “ Noncompliance with the directions of the engineer ” must be construed in connection with other parts of the contract. It evidently means noncompliance with his directions in such matters as under the agreement he had the right to direct. It does not, either expressly or by inference, give him the right to interfere with the means Stark chose to use to accomplish the work. Such right is not reserved in the agreement, and it was not within the contemplation of the parties that the engineer could compel a forfeiture of the agreement by assuming at his will to give directions in matters over which the agreement did not give him jurisdiction. The right of the engineer was to fix the grades and alignment of the road, to establish the amount of work done each month, to approve the work when completed and to employ workmen in case Stark failed to provide sufficient force to accomplish the work within the specified time. There is nothing in the agreement which even hints at the light of the engineer to control or in any way interfere with the means which Stark might choose to employ in the work. Stark testified that the work was exclusively in his control and that the engineer did not interfere with the means he chose to accomplish it. Stark had the right to and did use whatever means he chose to make the excavations. The defendant or its engineer had no right to direct that they should be made by picks or dynamite. He also had the right to remove the excavated dirt by such means as he saw fit, whether by wheelbarrows, carts or cars or by any other sort of conveyance he chose. The defendant had no concern in such matters, and did not exercise any control over them. We are clearly of opinion that this case comes within the rule laid down in City of Erie v. Caulking, 85 Pa. 247, Reed v. Allegheny City, 79 Pa. BOO, School District v. Fuess, 98 Pa. 600, Painter v. Pitts-burg, 46 Pa. 213, Edmundson v. R. R. Co., Ill Pa. 316, Harrison v. Collins, 86 Pa. 153, and other cases.</p> <p>The provision in the agreement that the contractor shall “ indemnify and save harmless the defendant from payment of all sums of money by reason of all or any such accidents, injuries, damages or hurt that may happen or occur upon or about said ■works,” does not impose any additional liability upon the defendant : City of Erie v. Caulkins, supra.</p> <p>All of the eases cited by plaintiffs’ counsel are clearly distinguishable from this one. It is necessary to refer to only a few of them. In Reynolds v. Braithwaite, 131 Pa. 416, Braithwaite was held responsible for the cutting of Reynolds’s water pipe by a contractor, because “ he was present when it was done and promptly adopted the act as his own.” In the case of Congregation v. Smith, 163 Pa. 561, the injury complained of was the caving in of a sewer which had been constructed by the defendant under a contract with the city of Easton. It appeared from the evidence and it was found by the jury that thé negligence in constructing the sewer was the fault of the direction of the engineer of the ciiy, who directed the manner of its construction and filling up the excavation. It was held that if the contractors followed the directions of the engineer, but in carrying out his directions they negligently did the work, and the injury complained of resulted from such negligence, the contractors would have been responsible. In his opinion Mr. Justice Dean says: “ The plaintiff alleged it was negligence to leave the sheeting and to puddle the filling of the trench; the defendants replied that this was not negligence, but even if it were the city did it, not we. . . . True, if the puddling was negligently done after the engineer directed the contractors to follow that method, and such negligence occasioned the injury, the contractor could not have escaped liability because the city had changed the method.” That case emphasizes the rule that “ when a person contracts with another to do a work for him according to the contractor’s own methods, and not subject to his control or orders, except as to the results to be obtained, the former is not liable for the wrongful acts of such contractor or his servants.” In the case of Homan v. Stanley, 66 Pa. 464, an owner contracted with one person to dig the cellar; with another to do masonry, and the third to put up the structure. Having split up the work, and having made no provision for the supervision or the erection of barriers by either contractor, it was held the owner was personally liable to one who fell in an excavation and was injured. In Improvement Co. v. Rhoads, 116 Pa. 377, the turnpike company continued to take tolls on its road while repairs upon it were in progress, and was, therefore, responsible to the traveler to furnish him a safe road.</p> <p>This motion must, therefore, be denied.</p> <p>Now, December 31, 1898, the motion for a new trial is overruled and judgment directed to be entered on the verdict upon payment of jury fee.</p> <p>Judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

Appeal, No. 227, Jan. T., 1898, by plaintiff, from judgment of C. P. Cumberland Co., Sept. T., 1897, No. 139, on verdict for defendant. Assumpsit on a policy of fire insurance. Before Biddle, P. J., At the trial it appeared that the policy contained the following clause: “ This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void if ... .

Appeal, No. 170, Jau. T., 1898, by defendant, from order of C. P. Cumberland Co., May T., 1898, No. 57, making absolute a rule for judgment for want of a sufficient affidavit of defense. Rule for judgment for want of sufficient affidavit of defense.

<p> Practice, Supreme Court—Assignments of error—Charge of court—Rulings on evidence. </p> <p>When error is assigned to the charge of the court, the part of the charge referred to must be quoted, totidem verbis, and when the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the bill of exceptions or copy the bill in immediate connection with the specification.</p> <p> Criminal law—Murder—Insanity—Evidence—Burden of proof. </p> <p>To convict of murder of the first degree the commonwealth must prove beyond a reasonable doubt the unlawful killing and the fully formed purpose to kill. It need adduce no evidence whatever of the sanity of the prisoner; the law presumes that, and the presumption is conclusive in the absence of evidence to rebut it.</p> <p>The burden of the proof of insanity is with the defense from the beginning, and is never shifted.</p> <p>Insanity as a defense to a charge of murder must be established as any other fact by a fair preponderance of the testimony. A mere doubt as to sanity will not work an acquittal.</p> <p> Criminal law—Murder—New trial—Juror—Discretion of court. </p> <p>The Supreme Court will not reverse an order discharging a rule for a new trial in a murder case on the ground that one of the jurors when examined on his voir dire had falsely staled that he had not formed or expressed an opinion as to the guilt or innocence of the prisoner, where it appears that the trial court had carefully investigated the matter, and found that the allegation was not true. Nothing short of a very clear abuse of discretion would induce the Supreme Court to interfere with the judgment on such a ground.</p>

<p>Divorce—Evidence—Calling party as for cross-examination—Act of May 28, 1887, sec. 5, clause c.</p> <p>In a suit for divorce the respondent may call and interrogate the libellant as if upon cross-examination.</p> <p> Divorce—Adultery—Condonation. </p> <p>In a libel for divorce by a husband against his wife, where each party charges the other with adultery, and the respondent charges and produces testimony tending to show that her husband introduced her to lewd company, knowing it to.be such, and that he condoned her offense by admitting her to conjugal embraces subsequent to the knowledge of her acts of adultery, the case is for the jury and a verdict for the respondent will be sustained.</p> <p> Evidence—Error—Assignments of error. </p> <p>Where a question is objected to, the objection sustained, and the jury is instructed to disregard the question, the asking of the question cannot be assigned for error.</p> <p> Trial—Attachment for witnesses. </p> <p>A party may offer in evidence an attachment for a witness as evidence that he had done his best to get the witness to the trial.</p> <p> Divorce—Evidence—Review. </p> <p>A verdict in favor of a wife on the trial of a libel for divorce by a husband will not be reversed because the wife is permitted to show that her husband had instituted suit against another man for alienating the affections of his wife, and had speedily abandoned it.</p>

Appeal, No. 413, Jan. T., 1898, by plaintiff, from order of C. P. Crawford Co., Nov. T., 1897, No. 5, M. L. D., discharging rule for judgment for want of a sufficient affidavit of defense. • Scire… Held: we think it is under just such circumstances as are recited in this affidavit. Considerable was said in the argument as to the improbability of the truth of the statements in the affidavit of defense, as to their being unable to secure these goods of other firms or parties.

<p>Appeal, No. 359, Jan. T., 1898, by defendant, from judgment of C. P. Erie Co., May T., 1895, No. 226, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Walling, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial, George Miller, a witness for plaintiff, testified:</p> <p>“ Q. You say you were through there the morning after he was hurt? A. Yes, sir. Q. What was the condition of the cars, as to being in the street or not, at that time ? A. I should judge they were in the street, as far as within eight feet of each side of the wheel track. Q. About what distance were the cars apart on the switch? A. I should judge they were about eighteen feet on the track. Q. Which car was nearest the traveled track? A. That I would not say. Q. What trouble, if any, did you have in getting through there ? ”</p> <p>Defendant objected to the question as incompetent and irrelevant.</p> <p>The Court: It is competent for the plaintiff to show that other horses, which were ordinarily safe in the roadway, were frightened at these cars standing there as alleged, in this street, and if it is proposed to show that Mr. Miller’s horses were such horses and were frightened by the cars, and that the ears were then standing in the same position as they were at the time of the alleged accident to Mr. Rusterholtz, the evidence would' be competent. ■</p> <p>Mr. Torry, of counsel for plaintiff: That is what we intend to prove.</p> <p>The Court: To that effect the evidence is admitted, the objection is overruled and an exception is sealed for the defendant.</p> <p>“ A. When I was within about twenty-five or thirty feet my horses refused to go through. Q. How did you get through ? A. I think .1 used the whip in order to get them through. Q. At what did they frighten, why didn’t they go through? A. Because they were afraid of the obstructions, I suppose. Q. At what did they frighten? A. I think it was at the car.” [1]</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>1. If the jury find from the evidence that the horse of the plaintiff was frightened at defendant’s car standing on the north side of Eighteenth street, and shied and plunged to the south as plaintiff rode west over the car works switch, and that when he returned he stood in Eighteenth street within fifteen feet, or thereabouts, of the west side of the said car by the side of his horse, it was his duty to have led said horse past said car at a distance from said car of more than two or three feet, or to have taken some safe road to his home, and having failed to do this he is not entitled to recover, and your verdict should be in favor of the defendant. Answer: There are several elements embodied in this point, some of which involve questions of fact which are for the jury to determine. The point as a whole cannot be affirmed. For instance, it assumes that there was another safe road within plaintiff’s knowledge, which is a question for the jury; as is also the question whether plaintiff should have led or ridden his horse past the cars. [3]</p> <p>2. If the jury find from the evidence that the plaintiff, A. J. Rusterholtz, rode his horse westwardly along Eighteenth street the evening of the alleged accident, that in passing the cars of defendant company standing partly on the north side of said street his horse became frightened at said car, so that he shied and jumped to the south, that he, the said plaintiff, was acquainted with Cranberry street from Eighteenth street to Sixteenth street, and with Sixteenth street from Cranberry street to Raspberry street, and with Raspberry street from Sixteenth to Eighteenth streets on which he lived and did business, that he had been in the habit of using said streets prior to the time of the alleged accident, then it was the duty of the said Rusterholtz, to have gone from Seventeenth street, on which Murphy, the man he had gone to see, lived, northwardly along Cranberry street to Sixteenth street and thence by Raspberry street to Eighteenth street, where he lived, and having failed to do this he was guilty of contributory negligence, and therefore cannot recover, and your verdict must be in favor of the defendant. Answer: Affirmed, provided the jury find that the streets named above aside from Eighteenth street, or any of them over which plaintiff might have reached his home, without passing by the cars in question, were safer than Eighteenth street; and also find that plaintiff had knowledge of such fact. [4]</p> <p>4. If the jury find from the evidence that the natural and probable consequence of the location and situation of defendant company’s cars was to frighten horses passing between said cars, and that plaintiff knew the location and situation of said cars, he was guilty of contributory negligence in riding his horse between them, and your verdict must be in favor of the defendant. Answer: Refused. Whether or not plaintiff was guilty of contributory negligence under all the circumstances of this case is a question for the jury. [5]</p> <p>5. Under all of the evidence in the case the plaintiff is not entitled to recover, and your verdict should be in favor of the defendant. Answer : Refused. [6]</p> <p>8. If the jury find from the evidence that the plaintiff’s horse was frightened at the car or cars of defendant company on either side of the traveled roadway over defendant company’s track in Eighteenth street, when plaintiff passed westwardly along Eighteenth street, so that said horse “shied and plunged to the south,” and that within a few minutes thereafter, upon passing between said cars at the same place, going eastwardly, the plaintiff was riding the same horse, and the horse became frightened a second time at said cars, and threw said plaintiff against one of the cars or on the ground, and thereby said plaintiff was injured, he cannot recover, for the reason that he was guilty of contributory negligence, and your verdict should be in favor of the defendant. Answer: If the jury find from all the evidence that the horse exhibited such fright when plaintiff rode past the cars going west on that evening as to have led an ordinarily prudent man to the conclusion that it would be unsafe to attempt to ride said horse back along Eighteenth street between said cars, then plaintiff was guilty of contributory negligence, and your verdict should be in favor of the defendant. [7]</p> <p>9. If the jury find from the evidence that Eighteenth street, between Raspberry and Cranberry streets, in the city of Erie, was not opened and made a public street by the city pf Erie to the width of fifty feet, but that a traveled way extended from Raspberry street to Cranberry street, over which the track of •defendant company was laid, and that the cars of defendant company did not stand upon a part of said traveled way, then and in that case the defendant is not responsible for the damage complained of by the plaintiff. Answer: This point is declined, in the language in which it is drawn. A street may become a public street without having been formally opened and made a public street by express municipal action. You will remember what has been said to you upon this question in the general charge. [8]</p> <p>10. If the jury find from the evidence that Rusterholtz was told by the former owners of the horse that he rode at the time of the alleged accident that it was dangerous for any one to attempt to ride said horse, and notwithstanding this notice he did ride said horse, and in going westwardly he passed defendant company’s cars and said horse became so frightened that he shied and plunged, then it was the duty of said plaintiff to have returned by some other road to his place of business than by the road leading past defendant company’s cars. And in case the jury further find from the evidence, that Cranberry street was a safe street to travel northwardly to Sixteenth street, and along Sixteenth street to Raspberry street, and thence to Ms place of business-in Eighteenth street, and also that Cranberry street south from Eighteenth street, and Twentieth, or Twenty-first, or Twenty-second, or Brown’s avenue, and Raspberry street, and Cascade street, and Eighteenth street, and thence to Ms home, was a safe and good road for him to travel, then and in that case the plaintiff cannot recover, and your verdict should be in favor of the defendant. Answer: Affirmed, provided the jury find that plaintiff knew of the safe condition of such other streets or any of them by which he might have returned safely to his home without traveling Eighteenth street by the cars in question. [9]</p> <p>11. If the jury find from the evidence that the plaintiff, Rusterholtz, passed westwardly along Eighteenth street, between the cars of the defendant company, on horseback, within half an hour or thereabouts of the time of the accident, and knew of the location and situation of the cars of the defendant company, and then with a full knowledge of the situation and location of the same, returned eastwardly between said cars, riding horseback, upon the same horse, when the plaintiff could have avoided going between said cars by returning upon Sixteenth, Twentieth, Twenty-first, Twenty-second or Twenty-third streets, or Brown’s avenue, the plaintiff was guilty of contributory negligence, and cannot recover. Answer: Affirmed, if the jury find that such streets, or any of them, by which plaintiff might have reached his home without traveling Eighteenth street past the car in question, were in safe condition, and also that plaintiff had knowledge of such condition. [10]</p> <p>18. It appearing from the evidence of the plaintiff that Sixteenth, Twentieth, Twenty-first and Twenty-second streets, and Brown’s avenue, between Cranberry and Raspberry streets, had been opened and traveled for many years preceding the occurrence of the alleged accident; that the plaintiff had lived on the south side of Eighteenth street between Raspberry and Cascade streets since 1892; that Cranberry street is the second street west of Cascade street, and is the western boundary of the city of Erie, and is opened and traveled from Twenty-sixth street on the south to Sixteenth street on the north; that the block from Cascade to Raspberry is 660 feet in length; that the block from Raspberry to Cascade street is 660 feet in length; that the blocks between Eighteenth and Twenty-third streets are 270 feet in width; that the block between Seventeenth and Eighteenth streets is 270 feet in width, the plaintiff was presumed to know the streets were opened and traveled. Answer : You should consider where the plaintiff lived and the length of time he had lived and been in business there, and the nature of his business, and also all the evidence in the case bearing upon this branch of the case, and then determine as a matter of fact, whether or not plaintiff knew that the streets named in this point were opened and traveled. [11]</p> <p>14. If the jury find from the evidence that the plaintiff passed between the cars on Eighteenth street a few minutes before the accident, and when so passing between said cars his horse was frightened, and that at that time Sixteenth, Twentieth, Twenty-first, Twenty-second, Raspberry and Cranberry streets and Brown’s avenue, were traveled public highways, over and along which the plaintiff might have returned home in safety, and if the jury find that the plaintiff returned home on Eighteenth street between said ears, and in doing so his horse was again frightened and the accident thereby occurred, the plaintiff was guilty of contributory negligence and cannot recover. Answer: Affirmed if the jury find that plaintiff had knowledge of such safe condition of the streets above mentioned aside from Eighteenth street. [12]</p> <p>15. If the cars on Eighteenth street caused the horse of plaintiff to take fright and plunge as plaintiff was passing westwardly between them, but a few moments before the time of the accident, that fact was notice to the plaintiff that his horse was afraid of the cars, and if the jury find that the plaintiff returned and passed between said cars after having received said notice and his horse was again frightened by said cars standing in Eighteenth street, the plaintiff was guilty of contributory negligence and cannot recover. Answer: Affirmed if the jury find the conduct of the horse as he passed this car, going west, was such as to lead an ordinary prudent man to the conclusion that it was dangerous to attempt to ride said horse back between said cars. [13]</p> <p>The court charged in part as follows:</p> <p>[Was there another safer road which plaintiff might have taken ón his return ? This is a question of fact for you. Much testimony has been offered upon that subject, many witnesses have been examined, and you should remember all the testimony upon that question. It is contended by the defendant that, when he was at Seventeenth and Cranberry streets, there was a good road north on Cranberry street to Sixteenth street, and then east on Sixteenth street to Raspberry street, and then south on Raspberry street to Eighteenth street; and it is contended it was the duty of the plaintiff to have returned by such route. . . .</p> <p>Whether the other streets, these streets I have named, were in good condition, whether plaintiff knew they were in good condition, whether it was safer for him to go that way, are questions of fact for you to determine. If you find that he did not know Cranberry street was opened from Seventeenth street north to Sixteenth street—there is also some evidence tending to show that a part of Cranberry street between Seventeenth and Sixteenth streets has only been opened to the width of thirty feet, and that there is a turn in the road, and some evidence tends to show that there is a ditch down there—whether that extends into the road or not you will remember from the testimony.</p> <p>Now, in considering the question as to whether or not plaintiff had knowledge of these other streets, consider where he lived, on Eighteenth street between Raspberry and Cascade streets, consider the length of time he had lived there and the nature of the business that he was in. Consider also that he had formerly been in the oil business; and that there is some evidence that at some time, perhaps some years before this, he had worked a piece of ground on the north side of Sixteenth street between Cranberry and Raspberry streets. Now consider all these facts and decide whether or not plaintiff knew of these other streets, provided you find that the other streets were safer than the street he took.] [14]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>.Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (3-14) above instructions, quoting them.</p>

<p> Mortgage—Defense—Satisfaction. </p> <p>On a scire facias sur mortgage, it appeared that defendants hs ,m-chased from plaintiffs a leasehold oil property for $15,500, of which $5,000 was to be paid in cash, the remainder to be secured by a mortgage on the leasehold property. Instead of the cash payment plaintiffs accepted a mortgage on another property of defendants. This mortgage contained a clause stipulating “that when and as soon as five thousand dollars of the indebtedness hereby secured shall have been well and fully paid then and in such event this mortgage is to be satisfied of record.” Subsequently defendants paid the plaintiffs $5,000. Plaintiffs after some delay foreclosed the mortgage on the leasehold property, but did not realize the full amount of their debt. They then issued this scire facias upon the $5,000 mortgage. Held, that plaintiffs were not entitled to make the balance of their debt out of the mortgage in suit.</p>

<p>Appeal, No. 295, Jan. T., 1898, by Rebecca N. M. Nathans, from decree of O. C. Phila. Co., April T., 1897, No. 156, dismissing petition to remove trustee.</p> <p>Petition to remove trustee.</p> <p>By testator’s will the residue of his estate, aggregating some $200,000, was to be held by the Pennsylvania Company for Insurance on Lives and Granting Annuities and a cotrustee, in trust, to pay the income to the widow for life, with remainder over. After the executor’s account had been settled, and the estate had been put into the hands of the trustees, the widow, Rebecca N. M. Nathans, filed a petition setting up that owing to certain matters, occurring between her and said cotrustee, she had lost all confidence in him and feared him, that her health had been seriously affected thereby, and she was advised by her physician that her ill health would continue so long as the worriment caused by his connection with the estate should continue, and she prayed that he be removed as provided by the act of April 9, 1868.</p> <p>The answer of the cotrustee denied the material allegations of the petition, and set up that he had done nothing to cause her ill health.</p> <p>The case was referred to Charles Wetherill, Esq., an examiner, to take the testimony. Upon the coming in of his report, the matter was heard by the court upon petition, answer, replication and proofs, and the petition was dismissed, apparently only because there was another trustee with whom she was satisfied, and hence she need never consult with appellee.</p> <p>The following opinion of the court, Ashman, J., was filed:</p> <p>The petitioner seeks the benefit of the act of April 9, 1868, whereby the majority of the beneficiaries for life shall have the right to elect trustees, and the court upon petition shall remove the acting trustees and appoint others so chosen. The testator’s will created several life annuities and a trust in the residue (which constitutes the bulk of the estate) for the testator’s wife during life or widowhood. The annuities were practically cut out of the estate because sums to secure them could have been set apart, so that the widow was in reality the sole life tenant and was, therefore, within the class of cestuis que trust which the act describes.</p> <p>The unlimited terms of the statute were not meant to preclude the exercise of a reasonable discretion by the court. On the one hand, they do not require in order to justify the removal of a trustee, that fraud or mismanagement shall be shown, because prior legislation provided for such delinquencies: and they do not, on the other hand, tolerate a removal which is intended to gratify a mere caprice. Between these extremes of fraud and sentiment, and perhaps equally distant from both, there is a middle ground, in which an act of this character-may work beneficently. The relation of trustee and cestui que trust is necessarily intimate, and its very intimacy may breed repugnance. Honesty, which in a public official is allowed often to cover a multitude of offenses, is not the sole virtue which should be possessed by a trustee. He should not, because he accounts accurately for the trust funds, affect the language of a cowboy, or what is worse the manners of a petty railroad official. If the beneficiary fears to approach him with entire confidence for information or advice or experience, one purpose of the trust has been frustrated, and a cause for his discharge has arisen which was directly contemplated by the legislature. Indeed no self-respecting trustee would care to continue in a post nominally of confidence in which his every act is viewed with suspicion by the very party whose interest he was seeking to protect. These points were carefully considered in Stevenson’s Appeal, 68 Pa. 101, Marsden’s Appeal, 166 Pa. 218, and Martin’s Estate, 4 Dist. Bep. 219, etc., authorities which show that, to establish harmony between trustee and cestui que trust, and yet cast no slur upon the motives of either, the courts have given a liberal construction to the act. But they have relieved only where there was a real grievance, and a doubt exists in this case whether any such grievance has been shown. The actual break between the petitioner and the respondent appears to have occurred when the respondent demanded a larger compensation than the petitioner believed he was entitled to under the will. It is fair to say that the auditing judge concurred in that opinion, but all the ground for criticism was swept away when the claim of the trustee was recognized as just by the court in banc. The evidence discloses no other adequate reason for the mental suffering of which the petitioner complains. »</p> <p>She alleges that the trustee advised her to relinquish her right in remainder to a small property in which other devisees had a life interest; but the record and other proof conclusively show that he resisted and by suit is now resisting the pretentions of the devisee. She alleges also that he has neglected properly to superintend the business left by the testator. But the trustee gave his attention to -the books and accounts and to the collection of the debts owing in the business and he could not well do more.</p> <p>The business was that of a pawnbroker in which moneys were loaned upon all conceivable chattels, from a darning needle to a diamond brooch and from a coffee pot to a coffin, and it was conducted by a trusted employee who had served the decedent for thirty years, and who knew by a varied experience not merely the values of the goods upon the shelves, but what was the least sum which a borrower could be induced to accept upon the article which he pawned, and what was the highest price which could be extracted from a purchaser when the pledge came to be sold. The respondent was not gifted with these rare attributes, and even if he had been he could have used them to advantage only by standing behind the counter of the pawnshop; and this we think would be an unreasonable requirement.</p> <p>The remaining reasons assigned by the petitioner are founded upon a want of harmony between the respondent and his co-executor, but they are certainly obsolete now. The respondent to avoid delay or annoyance consented that the widow should be paid her allowances by the checks of the cotrustee, in place of the joint cheeks of both trustees, and that the moneys and securities of the trust should remain in the custody of the co-trustee ; and the trust company agreed that the repairs of the real estate and the collection of the rents should be intrusted to the respondent.</p> <p>These considerations, it is true, do not obscure the fact that the feelings with which the life tenant regards the trustee, whether it is a prejudice or not, and whether or not it is based upon a reason which proves to be exaggerated, is deep-seated and destructive of mutual confidence between the parties. The language of her petition and of her testimony is unequivocal and unmistakable in this respect. She says: “I have lost every vestige of confidence in him; I could not believe him; I fear him; I would not go near him; I am afraid of him; I would not believe him on his oath.” But notwithstanding all this, she is not entitled to the severe remedy administered by the act, if neither her interests nor those of the estate are at all affected by the attitude she may choose to assume toward the respondent. In point of fact she has dealt since 1896 exclusively with the cotrustee, and her petition is that it may be made her sole trustee, so that even her personal convenience will not be served by the removal of the respondent. Her mental quiet cannot be seriously disturbed by the retention in the trust of a person with whom she need never come in contact, but who was nevertheless the appointee of her own husband. Her case lacks the essential elements which were present in every instance in which a trustee has been discharged under the act in question. For these reasons we must dismiss the petition.</p> <p>Error assigned was the decree of the court dismissing the petition.</p>

Appeal, No. 205, Jan. T., 1898, by defendant, from judgment of C. P. Lackawanna Co., Noy. T., 1894, No. 207, on verdict for plaintiff. Trespass to recover damages for personal injuries. Before Gunster, J. At tbe trial it appeared that plaintiff was injured on June 27, 1894, by being struck by a trolley car while he was engaged at work in repairing the pavement at a point on Washington avenue in the city of Scranton.

<p> Negligence—Death of children of tender age—Parent and childr—Joint negligence—Master and servant. </p> <p>Where a servant without his master’s authority or consent, express or implied, takes his master’s infant children into a wagon, in which he delivers his master’s goods, and the children are killed by the joint negligence of the servant and a railroad company, the father may recover damages from the railroad company for the death of his children.</p> <p> Negligence—Railroads—Rwnning trains—Grossings. </p> <p>The mere fact that the rumbling of a train may be heard for more than a mile from a crossing will not relieve the railroad company from taking the precautions which are deemed proper and necessary in approaching a crossing.</p>

<p>Appeal, No. 6, Jan. T., 1899, by plaintiffs, from order of C. P. Northampton Co., June T., 1895, No. 67, refusing to set aside nonsuit.</p> <p>Ejectment for a tract of land in Upper Mount Bethel township. Before Schu yler, P." J.</p> <p>At the trial it appeared that on October 19, 1889, Hannah Schmuck, the mother of Martha A. Baldwin, one of the plaintiffs, conveyed the land in dispute to Walter 0. Stier, one of the defendants, for the sum of $1.00. Mrs. Baldwin alleged that at the time of the conveyance her mother was indebted to her, and at her mother’s death on December 8,1892, $847.27 vas still due to her.</p> <p>Mrs. Schmuck died about December 8,1892, leaving her last will and testament, wherein she appointed Walter C. Stier her executor. A short time after Mrs. Schmuck’s death, Mrs. Baldwin commenced an action upon her note in the court of common pleas of Northampton county, against Walter C. Stier, executor of Hannah Schmuck, and April 80,1894, recovered a judgment in said action for $956.44. Upon this judgment the plaintiff caused a fi. fa. to be issued, and all the right, title and interest of Hannah Schmuck, the decedent, in the said tract of land, mentioned in the deed to Walter C. Stier, and now in dispute, was levied upon, and condemned, and subsequently sold by the sheriff under a yen. ex. to the plaintiff in the execution, and the plaintiff in this action, Martha A. Baldwin, for $25.00, for which she afterwards received a sheriff’s deed. Upon this title the above action of ejectment was brought against the defendants.</p> <p>William Nyce, one of the defendants, was lessee of the premises under Mrs. Schmuck in her lifetime, and continued in possession after her death, and was in possession of the premises at the time this action was brought, as lessee under Walter C. Stier.</p> <p>Martha A. Baldwin, one of the plaintiffs, offered to prove by her own testimony that the indebtedness existing during her mother’s lifetime, on which she obtained this judgment, and before the conveyance to Walter Stier by Mrs. Schmuck of the real estate which her mother was then possessed of, for the purpose of showing that the conveyance to Walter Stier by Mrs. Schmuck under which the defendant claims is in fraud of her rights as a creditor.</p> <p>Defendant objected to the offer as incompetent and irrelevant, and for the further reason that the witness is incompetent to testify to anything that took place during the lifetime of Hannah Schmuck.</p> <p>Plaintiffs also offered at this point the deed of Hannah Schmuck to Walter G. Stier, dated October 19,1889, consideration $1.00 and other good considerations, being the property now in controversy described in the writ of ejectment in this case.</p> <p>The Court: I am quite clear, gentlemen, that this witness is not competent. I think her title is adverse to the title of Mrs. Schmuck, and that that excludes her from the witness stand. I therefore sustain the objection to her competency, and if desired, will give the plaintiffs a bill. Plaintiffs except and bill sealed. [2]</p> <p>Theodore Ott, called for plaintiffs, testified: “ Q. Did she (Mrs. Schmuck) speak about this money afterwards that she owed her daughter Mattie ? A. Yes. Q. How often ? A. Well, she wanted to borrow money of me in September, 1892.”</p> <p>Mr. Steele, for defendants: That is after the execution of this deed.</p> <p>The Court: The deed was in 1890.</p> <p>Mr. Kirkpatrick, for plaintiffs: It is connecting the two transactions ; the money she borrowed in 1885.</p> <p>The Court: You are now offering declarations to affect the defendant’s title made by the grantor after she conveyed the property. I admitted your former offer, not without some degree of hesitation, but I admitted it, but simply because it was a declaration of the party in possession of the property made at the time she was in possession. I am not entirely clear that that was competent, but I don’t know of any general rule that goes so far as to say that a party after she has parted with her title to real estate can affect the validity of the title that she has granted by declarations made subsequent to the deed. If there are any authorities to that effect I would like to hear them, but I am very sure that the general principle cannot carry it that far. The objection is sustained and bill sealed for plaintiff. [8]</p> <p>Under objection and exception the court, on motion of defendant’s counsel, struck out the testimony of Theodore Ott as to the declarations of Mrs. Schmuck, after the date of the deed to Walter Stier. [4].</p> <p>The court entered a compulsory nonsuit which itsubsequently refused to take off.</p> <p>Errors assigned were (1) refusal to take off nonsuit; (2-4) rulings on evidence, quoting the bill of exceptions.</p>

Appeal, No. 3, Jan. T., 1899, by plaintiff, from decree of O. P. No. 2, Phila. Oo., Sept. T., 1898, No. 558, on bill in equity. Held: because there was no separate vote upon the several propositions for the increase of indebtedness of the city contained in said ordinance of September 27,1897, but the electors were compelled by the manner of holding the election either to vote in favor of the whole group of propositions submitted to the people by the said ordinance…

<p>Appeal, No. 136, Jan. T., 1899, by plaintiff, from judgment of C. P. Columbia Co., Feb. T., 1895, No. 56, on verdict for defendant.</p> <p>Trespass for personal injuries alleged to have been negligently caused by defendant. Before Herring, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was above instructions.</p>

<p>Appeal, No. 137, Jan. T., 1899, by plaintiff, from judgment of C. P. Columbia Co., Feb. T., 1895, No. 57, on verdict for defendant.</p>

Appeal, No. 246, Jan. T., 1897, by defendant, from' decree of C. P. Elk Co., Sept. T., 1894, No. 5, on bill in equity. Bill in equity for an injunction to restrain a collection of tax upon real estate. Mayer, P. J., filed the following opinion: When this case was before the court on hearing for preliminary injunction from the evidence adduced before us we awarded an injunction to restrain the treasurer of Elk county from selling the lands of the plaintiff.

<p>Appeal, No. 247, Jan. T., 1897, by defendants, from decree of C. P. Elk Co., Noy. T., 1894, No. 1, on bill in equity.</p> <p>Bill in equity to restrain the collection of taxes.</p> <p>Mayer, P. J., filed the following opinion :</p> <p>The Ridgway Light & Heat Company is a corporation duly chartered and organizéd under “ An act to provide for the incorporation and regulation of natural gas companies,” approved May 29, 1885, and is' invested with all the rights, powers and privileges specified in the act. It is authorized by the first section “ to' produce, mine, own, deal in, transport, store and supply natural gas for either light, heat or both or other purposes, and have all the rights and privileges necessary or convenient therefor.” Section 10 of the act provides that “ The •transportation and supply of natural gas for the public consumption is hereby declared to be a public use, and it shall be the duty of corporations, organized or provided for under this act to furnish to consumers along their lines and within their respective districts natural gas for heat or light or for other purposes as the corporation may determine.” And provided, further, “ Any and all corporations that is or are now or shall hereafter be engaged in such business shall have the right of eminent domain for the laying of pipe lines for the transportation and' distribution of natural gas, the right, however, shall not be. exercised as to any burying ground or dwelling, passenger railroad, station-house or any shop or manufactory in which steam or fire is necessarily used for manufacturing or repairing-purposes, but shall include the right to appropriate land upon or under which to lay said lines and locate pipes upon and over, under and across any lands, rivers, streams, bridges, roads, streets, lanes, alleys or other public highways or other pipe lines or across railroads or canals: Provided, In case the pipe lines cross any railroads operated by steam or canals, the same shall be located'under or above such railroad or canal,'and in such manner as the railroad or canal company may reasonably direct; And provided further, That .any company laying a pipe line under the provisions thereof shall, be liable for all damages occasioned by reason of the negligence of such gas company,” etc.</p> <p>The plaintiff is the owner of certain gas rights conveyed to it by several deeds and conveyances in the borough of Johnsonburg and township of Ridgway. In 1892 and 1893, these gas rights were assessed with county, road, school and poor tax in the borough of Johnsonburg and the township of Ridgway, and returned to the county commissioners of said county for collection. The treasurer of said county' advertised for sale these gas rights for the payment of the taxes assessed. The surface of the tracts of land in which the plaintiff holds these gas lights was assessed in the seated list and the taxes paid thereon.</p> <p>The plaintiff has filed its bill in equity against the county of Elk and the treasurer of said county to restrain the sale of these gas rights, alleging that as these gas rights are a necessary and indispensable part of its corporate franchises they are exempt from local taxation.</p> <p>[It is clear from a consideration of the provisions of the act of May 29, 1885, that companies organized under it are public corporations.] [1] In addition to the legislative declaration that the transportation and supply of natural gas for the public consumption is “ a public use ” corporations organized or provided for under the act are required “ to furnish to consumers along their lines and within their respective districts natural gas for heat or light or other purposes, as the corporation may determine.” [They are also invested in the fullest manner with the right of eminent domain and all other powers and privileges necessary for the prosecution of the business for which they are incorporated.] [2]</p> <p>[It may be proper to state here that no evidence has been adduced by the defendant to show that oil exists in said land or that it is oil territory. On the contrary, the ■ evidence of the plaintiff proves that it is not oil territory and that oil has not been discovered upon it, although a number of wells have been drilled.] [3] [The evidence of the plaintiff shows, and there is no contradictory proof that the gas rights in the land assessed are necessary and indispensable to it in carrying out the public purpose for which it was incorporated, and are part of its capital stock upon which it pays a tax to the state.] [4] But it is contended that, as the deeds and conveyances from the several grantors to the plaintiff conveys only the right to drill, miné for, produce and take natural gas, it is an incorporeal hereditament and, consequently, not assessable as land, and the case oí Funk v. Haldeman, 58 Pa. 229, is cited as sustaining this contention. When Funk v. Haldeman was decided it was' questionable what was the character of oil and whether it was to be treated as mineral or not. Chief Justice Woodward says: “Throughout this opinion I have treated oil as a mineral. Until our scientific knowledge on the subject is increased, this is the light in which the courts will be likely to regard this valuable production of the earth. But out of this results the difficulty of a strict classification of a right to take it, as an incorporeal hereditament. If a mineral, it is part of the land; and a right to take land or any part of land is not, strictly speaking, an incorporeal hereditament. Nor is the right to fire bote, or plow bote or turves ; and yet, for the want of a better classification, this is treated in law as an incorporeal interest. To the same head is to be referred these oil rights.”</p> <p>Since the decision in Funk v. Haldeman was rendered the Supreme Court have decided that natural gas is a mineral. In their opinion they say: “ Gas, it is true, is a mineral; but it is' a mineral with peculiar attributes, which require the application of precedents arising out of ordinary mineral rights, with much more careful consideration of the principles involved than of the mere decisions. Water is also a mineral; but the decisions in ordinary cases of mining rights, etc., have never been held as unqualified precedents in regard to flowing, or even to percolating water. Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as mineral ferae naturae. In common with animals, and unlike other minerals, they have the power and the tendency to escape without the volition of the owner. Their “ fugitive and wandering existence within the limits of a particular tract is uncertain,” as said by Chief Justice Agnew in Brown v. Vandergrift, 80 Pa. 147. They belong to the owner of the land, and are part of it, so long as they are on or in it, and are subject to his control ; but when they escape and go into other land, or come under another’s control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas. If an adjoining, or even a distant, owner, drills his own land, and taps your gas, so that it comes into his well and under his control, it is no longer yours, but his. ” Westmoreland N. Gas Co. v. DeWitt, 130 Pa. 249. “ Petroleum oil and natural gas are minerals : ” Mrs. J. Marshall v. A. W. Mellon et al., 179 Pa. 371.</p> <p>Being a mineral it was by the terms of the deeds and conveyances to the plaintiff made divisible, and while the surface of the land was assessed these gas rights could also be assessed.</p> <p>“ Where the surface of lands and the minerals in place thereunder have been severed by the agreement of conveyance of the owner, and the respective divisions have become vested in different owners, the municipal authorities are bound to levy their taxes according to the ownership and value of these divisions. And each owner can be made responsible only for the tax on his interest, whether underlying strata or surface: ” Sanderson v. City of Scranton, 105 Pa. 469; The Delaware, Lackawanna.& Western Railroad Co. v. Sanderson, 109 Pa. 583.</p> <p>[Being of the opinion that as the deeds and conveyances to the plaintiff convey all the gas embraced within the land described in said deed, the question then recurs whether under the evidence these gas rights are exempt from local taxation by reason of the fact that the evidence shows that these gas " rights are necessary and indispensable to the carrying on of the public business of the corporation. The evidence shows that in a considerable portion of this territory there is no gas. In the 484 acres conveyed by Dickinson and wife to the plaintiff the testimony of the superintendent of the plaintiff company is that about two thirds of that territory is not gas territory and is worthless. That in the remaining territory the wells are giving out and the pressure upon them is diminishing by reason of the large consumption, and that it will be necessary to drill an additional number of wells in said territory to enable the company to supply their customers, and in the opinion of all the witnesses, and no testimony has been offered on the part of the defendant to contradict it, the land assessed is indispensable and necessary to enable the company to carry out the purposes of its organization and supply their customers with gas.] [5]</p> <p>[Being of the opinion that the plaintiff is a corporation engaged in a business of a public interest, and that as the evidence shows the gas in the gas rights assessed is essential to the exercise of its corporate franchises for public' purposes the exemption from taxation claimed must be sustained.] [6]</p> <p>The principle which appears to be recognized in all the cases . is that the public works of a corporation, used as such, with their necessary appurtenances, and which are essential to the carrying out of the public purposes of such corporation, are exempt from taxation: West Chester Gas Co. v. Chester County, 30 Pa. 232. The works of gas companies were held not to be taxable, and the same thing was again decided in Coatesville Gas Co. v. Chester County, 97 Pa. 476. InScrantonv. The Scranton Electric Light and Power Co., it was decided that the property necessary to carry out the corporate purposes of a corporation engaged in business of public interest is not liable to local taxation where such property is included in the capital stock which pays, a state tax: 8 Pa. C. C. R. 626. To the same effect is Lancaster v. Edison Electric Illuminating Co., 8 Pa. C. C. R. 631. “A public corporation is one which cannot carry out the purposes of its organization without charter rights from the commonwealth. Railroads, canals and gas companies must have the right of eminent domain in order to perform their functions. Their property, which is indispensable to their charter rights, is represented by their capital stock, and as such is taxed specially by the legislature, and the law will not subject it to duplicate taxation by mere inference: ” Schuylkill Co. v. Citizens’ Gas Co., 148 Pa. 162.</p> <p>But it is contended by defendant that if the assessment of taxes was illegal, a bill for injunction is not the proper remedy that plaintiff should have proceeded in the manner provided by the act of assembly, and appealed from the assessment. This contention is untenable. In case of Banger’s App., 109 Pa. 91, the Supreme Court said: “It was urged that a court of equity will not interfere to restrain the collection of taxes, but will leave the party aggrieved to his remedy at law. This is true where tax is lawfully assessed or where the matters complained of are mere irregularities in the valuation or assessment, but where there is want of power to tax or disregard of the constitution in the mode of assessment, we have no doubt of the power and the duty, of a court of equity to interfere : ” St. Clair School Board’s App., 74 Pa. 256; Wheeler v. City of Philadelphia, 77 Pa. 338; Kitty Roup’s Case, 81* Pa. 211.</p> <p>“ In the case of Moore v. Taylor, 147 Pa. 481, the property had been exempt for a part of a year, but the exemption ceased and it was their assessed. And it was properly held in that case that as the property was liable to taxation the remedy of the party aggrieved was by appeal and that a bill of equity would not lie: ” St. Mary’s G as Co. v. Elk County, 15 Pa. C. C. 11. 411.</p> <p>The house assessed to plaintiff is not exempt from taxation as it is merely used for the convenience of the company and is, therefore, taxable; and as to the taxes upon that the decree enjoining their collection must be refused.</p> <p>[And now, March 27, 1897, this cause came on to be heard and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the county of Elk and the treasurer of said county, the council of the borough of Johnsonburg, its agents and officers, the township of Ridgway, its supervisors, agents and officers, the school directors of the borough of Johnsonburg, their agents and officers, the school directors of the township of Ridgway, their agents and officers, be and are hereby perpetually enjoined and restrained from collecting the county, road, school and poor taxes assessed and levied upon the land of plaintiff described in the bill.] [7]</p> <p>Errors assigned were (1-6) portions of the opinion as above indicated; (7) the decree of the court.</p>

Appeal, No. 140, Jan. T., 1898, by John Barry, from order of C. P. McKean Co., Oct. T., 1897, No. 302, striking off appeal from report of viewers. Appeal from report of viewers. On September 13,1897, the city of Bradford filed its petition in the court of common pleas of McKean county, asking for the appointment of viewers to assess the cost, damage and expense of opening and extending Williams street in the city of Bradford, from Davis street to Rosedale avenue.

<p>Appeal, No. 152, Jan. T., 1899, by defendant, from decree of C. P. McKean Co., Dec. T., 1898, No. 162, on libel for diyorce.</p> <p>Libel for diyorce. .</p> <p>The facts appear by the opinion of Morrison, J., which was as follows:</p> <p>The libellant and respondent in this case are both residents of the city of Bradford, McKean county, having resided there from childhood. They were married February 5,1898, at Limestone, N. Y., and have both resided in Bradford city ever since. The libellant charges that the respondent has offered such indignities to the person of the libellant as to render her condition intolerable and life burdensome, and thereby forced her to withdraw from his house and family on August 27, 1898.</p> <p>The subpoena was awarded and made returnable to December term, 1898, was personally served on the respondent, who employed counsel and caused an appearance to be entered for bim, but did not file any answer. He appeared with his counsel before the examiner who took the testimony, cross-examined the witnesses who testified on behalf of the libellant, and was called and testified in his own behalf. The testimony establishes the marriage, and that the parties cohabited together as man and wife until August, 1898, when she abandoned her husband and home, taking their only child with her, and has since resided with her parents in Bradford city. The testimony shows, from 1894 down to the spring of 1898, an almost continuous course of ill treatment of the wife by the husband; many manifestations of ill temper, profane and vulgar language, calling his wife a liar and a fool in the presence of their friends, charging her with unchastity in the presence of friends and acquaintances, accusing her in the presence of her mother and others, of having communicated venereal disease to him, frequent threats to kill her and threats to shoot her, some of these threats made when he had a revolver in his hand or about his person, and on one occasion knocking her down in their home on Park street. Her evidence, which is to some extent corroborated, charges him with forcing her against her will to have sexual intercourse with him when she was ill and confined to her bed. He was also in the habit of becoming intoxicated, remaining out late at night, drinking intoxicating liquors at their home in company with associates that he brought there. And, in one instance, gambling in their house on Sunday against her protests.</p> <p>When the husband charged his wife with having given him a venereal disease, she, under the advice of her mother, submitted to an examination by Dr. Nichols, and he testified positively that she had no venereal disease. The evidence also shows that the husband consulted Dr. Nichols, at about the same time, and was examined by the doctor, and it is a significant fact that when Dr. Nichols was on the stand the respondent’s able counsel did not ask him whether at the time of the examination the husband was suffering from a venereal disease. From the evidence, the inference is strong that the husband had a venereal disease contracted from some person other than his wife. And he testified that he did not believe his wife ever had a venereal disease, and that he did not doubt her chastity. Yet he had charged her in the presence of their friends with having slept with Dr. Gamble during the summer of 1897, at Conneaut. This charge she indignantly denies, but as to the making of the charge by the husband she is corroborated by a witness. In fact, as to most of the important charges against him, she is corroborated.</p> <p>It seems to us that the proofs brings this case within the principle of Mason v. Mason, 181 Pa. 161, Elmes v. Elmes, 9 Pa. 166, Doan v. Doan, 8 Clark, 7, and Brubaker v. Brubaker, 4 Dist. Rep. 185..</p> <p>We are convinced that the libellant ought to be divorced from the bonds of matrimony which she entered into with the respondent and a decree will be prepared in due form and signed and filed. ■</p> <p>We desire to call the attention to the fact that the respondent did not file any answer and yet he appeared before the examiner with his counsel, cross-examined the libellant’s witnesses and testified in his own behalf. This is not good practice. Under the law and the rules of this court, if he desired to offer testimony'he should have filed an answer raising an issue, and this is so, whether he desired an issue to be tried by the court or by a jury.</p> <p>Error assigned was the decree of the court.</p>

<p> Contract—Belay in fulfilling contract. </p> <p>In an action upon a contract which provides that if there shall be any difficulty as to the work giving satisfaction, the contractor is to make it entirely satisfactory, he is entitled to a reasonable time to make it satisfactory, and if the evidence is conflicting as to the extent of the delay, and as to whether he was given an opportunity to make it satisfactory, the case is for the jury, and a verdict and judgment in favor of the contractor will be affirmed.</p>

Appeal, No. 297, Jan. T., 1898, by defendants, from decree of C. P. No. 4, Phila. Co., June T., 1896, No. 686, on bill in equity. Bill in equity for the cancelation of a policy of life insurance.

<p>Appeals, Nos. 76 and 87, Oct. T., 1898, by South Side Passenger Railway Company and Pitts-burg and Birmingham Traction Co., from decree of C. P. No. 2, Allegheny Co., April T., 1897, No. 552, on bill in equity.</p> <p>Bill in equity for an injunction and for an account.</p> <p>White, P. J., filed the following opinion:</p> <p>The bill in this case was filed March 10, 1897, alleging that the plaintiff company was the owner of the tracks on Second avenue, between the Tenth street bridge and Grant street and Market street, in the city of Pittsburg; that the Second Avenue Passenger Railway Company and the Second Avenue Traction Company have been using these tracks for some years, under a pretended agreement between the Pittsburg & Birmingham Traction Company and the Second Avenue Passenger Railway Company, dated November 9, 1891; that said agreement was never signed by the plaintiff company and is invalid; and praying that these defendants be enjoined from using the said tracks and account for profits.</p> <p>The Pittsburg & Birmingham Traction Company filed a cross-bill, admitting that the tracks belonged to the plaintiff company, and alleging that said agreement of November 9, 1891, was made by the officers of the Pittsburg & Birmingham Traction Company, but without authority, and was never ratified by the stockholders of that company; also, that the said Second Avenue Traction Company has no rights whatever under that agreement, and, if it has, it is using the tracks to an extent and for purposes not authorized by that agreement, and praying that it be enjoined, etc.</p> <p>This contention, therefore, hinges on the validity, or proper construction of that agreement. The different counsel have presented requests for findings of fact, quite numerous and various, and some of them, I think, unimportant. Instead of answering these requests in detail, I shall give all the facts which I deem material as to the points in dispute, which I think will be more satisfactory; and all requests not embraced in my findings shall be considered as refused.</p> <p>FINDINGS OF FACT.</p> <p>1. The Pittsburg & Ormsby Passenger Raffway Company was chartered to construct a passenger railway from Ormsby borough to Market street, in Pittsburg, crossing the Monongahela river at the-Birmingham bridge, at Tenth street, Pittsburg, and along Second avenue to Grant street, and thence to Market street. The road was constructed in 1871, and horse cars were running thereon. In 1874, on a mortgage of that company, its franchises, road, equipment, etc., were sold, and under the purchase at sheriff’s sale a new company was organized, called the South Side Passenger Railroad Company, which took possession and ran the road until 1881, when the Pittsburg & Birmingham Passenger Railway Company was organized. That company bought all the shares of the stock of the South Side Passenger Railroad Company, except five shares, the owner of which is uncertain, and has never appeared objecting to any of the subsequent proceedings, and is not a party to this proceeding. The Pittsburg & Birmingham Passenger Railway Company took possession of the road and ran it until 1889, when the Pittsburg & Birmingham Traction Company was organized, and took, by transfer, all the stock of the Pittsburg & Birmingham Passenger Railway Company, and also all the stock of the South Side Railroad Company, except the five shares above referred to, and has been running the road ever since.</p> <p>2. The organizations of the South Side Railroad Company and the Pittsburg & Birmingham Passenger Railway Company have been kept up, but, as all the stock of those two companies, except the five shares of the South Side Railroad Company, above referred to, is owned by the Pittsburg & Birmingham Traction Company, it has entire control of those two companies; it runs the road, takes all receipts, pays all expenses and owns all the cars. It renders no account to these companies, but assumed and pays the obligations of the road at the time it took possession.</p> <p>3. In 1881 the Second Avenue Passenger Railway Company was chartered, and authorized to construct a passenger railway from Market street in Pittsburg to Glenwood, a distance of five miles, passing along Second avenue. The movers in that enterprise had assurance from W. W. Patrick, president of the Pittsburg & Birmingham Passenger Railway Company, that they should have the use of the tracks on Second avenue, and on to Market street. The Second Avenue Passenger Railway Company completed some of its tracks beyond the Tenth street bridge, and, on January 1, 1883, began running its cars. Under a verbal agreement, without specifying for what length of time, between it and the Pittsburg & Birmingham Passenger Railway Company, it ran its ears on Second avenue, from Tenth street to Grant street, and on to Market street, on a monthly rental of $100, and so continued to run them until the agreement of November 9, 1891.</p> <p>4. The Second Avenue Passenger Railway Company was chartered under the act of 1879, but, after that act was declared unconstitutional, it accepted the provisions of the act of May 14, 1889. After March 4, 1890, it used electricity instead of horse power.</p> <p>5. The Pittsburg & Birmingham Traction Company was chartered in 1889, and had transferred to it all the stock of the Pittsburg & Birmingham Passenger Railway Company, and all the stock of the South Side Railroad Company, except the five shares above stated. On the 9th of R ovember, 1891, that company of the one part entered into the following agreement with the Second Avenue Passenger Railway Company, of the second part.</p> <p>“• Whereas, first party is owner of the right of way and tracks now laid over the following route in the city of Pittsburg, viz.: Beginning on Second avenue at a point opposite the north end of the Tenth street bridge; thence along Second avenue to Grant street; thence along Grant street to Third avenue ,• thence along Third avenue to Market street; thence along Market street to Fourth avenue; thence along Fourth avenue to Grant street; thence along Grant street to Second avenue; and thence along Second avenue to the said point opposite the north end of the Tenth street bridge. And whereas, second party is now running its cars over said tracks and right of way under a rental paid to first party and has, with the consent of said first party, erected its poles and trolley wires so that its cars can be and are run by electric power furnished from its power house on Second' avenue near Brady street. And whereas, second party desires to secure the right to run perpetually its cars over said right of way without paying rent therefor except as hereinafter specified. And whereas, first party is willing to grant to second party such perpetual running right under the terms and conditions hereinafter mentioned. Therefore this agreement witnesseth: The said party of the first part, for and in consideration of the payments to be made, covenants to be performed and kept by the said second party, does hereby agree: First, that it will reconstruct said railway, along the route mentioned, so as to make it a substantial, first class railway, with a rail weighing not less than sixty-five pounds to the yard; said work of reconstruction to be done by contract, the work to be let to the lowest responsible bidder who shall be acceptable to the party of the second part, and the prices to be paid for said work to first have its approval. Second. The said first party will also keep and maintain the said road in good condition, and before the tenth of every month render an accurate account of all sums expended for labor and material in said maintenance, during the month previous, one-half of which cost shall be paid by each of said companies. Third. It will pay said second party one-half the cost of the poles, trolley wires and overhead equipment it has erected along said route, and hereafter second party will maintain and keep in order said poles, trolley wires and overhead equipment, and render an account monthly of said cost of maintenance to first party—first party hereby agreeing to pay second party, on or before the fifteenth of each month, one-half of all sums it has expended during the previous month to keep and maintain said poles, trolley wires, and overhead equipment, in good order, as by the bills rendered.</p> <p>“ The said second party covenants and agrees that in consideration of the payments to be made by the first party, above mentioned, and in further consideration of the agreements made by said first party, for the use of its tracks, that it will—.first, pay to the said first party one-half the cost of reconstructing the track along said route, payments to be made monthly, on or before the fifteenth of each month, for all labor and material furnished on the contracts for doing such work during the month previous. Second. It will furnish all electric power to said trolley wires necessary to move the cars of said first party over said route, free of cost to said first party. Third. It covenants and agrees that it will not during the existence of this agreement extend its lines or make any contracts so that its cars can be run across the Monongahela river to any point reached by the lines of the first party within the corporate limits of Pitts-burg. Nor will it make any agreement with any other company so that the cars of that company can be run from such competing points over the tracks herein mentioned. Fourth. It also agrees that the party of the first part shall have the right to run its cars over the tracks owned by the said second party on the following route, when so desired by said first party, on the payment to said second party of such sums as shall be agreed upon by the superintendents of the companies hereto, not to exceed five cents for each trip made by each car, viz.: Beginning on Third avenue at its intersection with Market street, thence along Third avenue to Ferry street; along Ferry street to Fourth avenue ; along Fourth avenue across Liberty street to Fourth street; along Fourth street to Duquesne way; along Duquesne way to Water street, returning along Duquesne way to Fourth street; along Fourth street across Liberty avenue to Fourth avenue and along Fourth avenue to Market street.</p> <p>“ It being mutually understood and agreed that should the first party allow any other company not its successor or assign to use the track controlled by it on said mentioned route, that a proportionate credit shall be allowed the second party upon its payments made for construction and the payments to be made for maintenance.</p> <p>“ This agreement to be binding upon the parties hereto, their successors or assigns, for nine hundred and ninety-nine years from its date, unless sooner terminated by a violation of its covenants by the party of the second part, when it shall terminate within thirty days thereafter upon due notice given it in writing by said first party.”</p> <p>6. The above agreement was made at the instance of the Pittsburg & Birmingham Traction Company, drawn up by the counsel of E. W. Clark & Co., of Philadelphia, who held the major part of the stock, and was approved by the attorneys of the Pittsburg & Birmingham Traction Company. It was supposed at the time to be for the benefit of both companies. The stock was held by a few individuals, nearly all of whom were consulted and approved of the agreement. It was authorized by the directors of the Pittsburg & Birmingham Traction Company at a meeting in 1891, and, at the annual meeting of stockholders October 11,1892, the president reported the agreement, and the report was accepted and ordered to be filed, without any objection thereto. At a meeting of stockholders in 1896, it was unanimously disapproved.</p> <p>7. The Second Avenue Passenger Railway Company in 1893 and 1894 acquired, by leases, for nine hundred and ninety-nine years, the following passenger railways, all connecting at Glen-wood, namely: Glenwood & Dravosburg Electric Street Railway; Hazelwood, Homestead & Braddock Passenger Street Railway; Greenfield Avenue Railway; Braddock & Turtle Creek Street Railway; McKeesport & Reynoldton Passenger Railway. These connections extended beyond Glenwood, to Wilmerding nine miles, to McKeesport seven miles, to Reynoldton seven miles, to Dravosburg six miles, to Braddock five miles, to Homestead three miles, to Turtle Creek three miles.</p> <p>8. The Second Avenue Traction Company was incorporated in 1894. It purchased all the stock of the railroads mentioned in the preceding finding, except a small portion of the stock of the McKeesport & Reynoldton Railway, and obtained by assignment the leases of the same from the Second Avenue Passenger Railway Company. It also owns all the stock of the Second Avenue Passenger Railway Company, and obtained from it a lease for nine hundred and ninety-nine years, of all its franchises, property and rights whatsoever; and after-wards that company assigned that lease to the Second Avenue Traction Company. The Second Avenue Traction Company owns all the cars running on these roads, and they run without change from Market street to the various termini. In 1891 the Second Avenue Passenger Railway Company ran on these tracks twelve cars. N ow there are forty-seven. The Second Avenue Traction Company has been running its own cars from 1894 till the present time, claiming the right to do so under the agreement of November 9, 1891. It does not run the cars of any other road, nor has it made any arrangement with any other road for that purpose.</p> <p>9. The Second Avenue Passenger Railway Company and the Second Avenue Traction Company have expended over a million dollars in purchasing, leasing and equipping their lines beyond Glenwood, on the faith of the agreement of November 9, 1891, that they could use these tracks for their increased business.</p> <p>10. The Pittsburg & Birmingham Traction Company, desiring to terminate the agreement of November 9, 1891, on April 1, 1897, tendered to the Second Avenue Passenger Railway Company and the Second Avenue Traction Company, $12,855.71, which it claimed was the entire sum that the Second Avenue Passenger Railway Company had paid in repairs to track, etc., under the agreement of November 9,1891. This tender was refused by both companies. The Second Avenue Traction Company claims that the amount was, or ought to be, at least $14,500. There was no tender for the electric power used by the Pittsburg & Birmingham Traction Company.</p> <p>11. The Second Avenue Traction Company does an immense business, far greater than that of the Pittsburg & Birmingham Traction Company, and runs many more cars over the tracks in dispute.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. The South Side Passenger Railroad Company cannot in this proceeding call in question the validity of the charter of the Second. Avenue Passenger Railroad Company; that can only be called in question by another proceeding. The South Side Passenger Railroad Company stood by from 1888 to 1897, without ever raising a question or controverting the right of the Second Avenue Passenger Railroad Company and the Second Avenue Traction Company to run their cars on the tracks in dispute. Of course, it knew and must have known that the cars of the Second Avenue Passenger Railway Company were running on these tracks from 1888, and that the Second Avenue Traction Company was running its cars from 1894, after it had obtained, by assignment, all the rights of the Second Avenue Passenger Railway Company. All the stock of that company, except five shares which are not represented, was transferred to the Pitts-burg & Birmingham Traction Company, and that company also has a lease for 999 years of the entire property of the South Side Passenger Railway Company. That company has, therefore, no substantial or tangible interest in the tracks in dispute which requires a court of equity to interfere between the Pitts-burg & Birmingham Traction Company and the Second Avenue Traction Company. From the long lapse of time and the other circumstances connected with this case, the South Side Passenger Railroad Company is estopped from denying the validity of the agreement of November 9, 1891, or the rights of the Second Avenue Traction Company to run on these tracks. That bill is, therefore, dismissed.</p> <p>2. The more important controversy in this case is raised by the cross-bill of the Pittsburg & Birmingham Traction Company. The contention of that company is that the contract of November 9, 1891, was not authorized by the directors of that company or reported to and approved by a meeting of the stockholders. But the evidence shows that the officers of the Pitts-burg & Birmingham Traction Company were the movers for that agreement. It was sanctioned by the attorneys of that road; it was approved before it was made, by all or nearly all of the stockholders of that company, at least by a very great majority of them, and was reported by the president to the annual stockholders’ meeting in 1892, when no objection whatever was made to it; and it has been carried into effect fully and completely. The tracks were repaired and put in condition as provided in that contract, the payments were made in pursuance of it, and monthly reports have been made in pursuance of that agreement ever since. The road has been in operation under that agreement, without any objection by the Pittsburg & Birmingham Traction Company as to its validity, until this cross-bill was filed, six years after the contract was entered into. Under these facts the Pittsburg & Birmingham Traction Company is estopped from denying the validity of that contract.</p> <p>It raises the question, also, whether the Second Avenue Traction Company has any rights; denying that it is an assign, properly speaking, of the Second Avenue Passenger Railway Company. It appears from the evidence that the Second Avenue Traction Company owns all the stock of the Second Avenue Passenger Railway Company. It also has a lease from that company for 999 years of all its franchises, property and rights of every kind whatsoever, and an assignment from that company also of that lease. This leaves the Second Avenue Passenger Railway Company without any property or rights whatsoever for 999 years. It is virtually out of existence, except in name, for that period of time, and all its franchises, rights and property of every kind, possessed and exercised by the Second Avenue Traction Company, by virtue of the leases and assignments just mentioned. Therefore, the Second Avenue Traction Company, if not technically, is, at least, actually, and to all intents and purposes, the assign of the Second Avenue Passenger Railway Company.</p> <p>8. Another question then arises as to the proper construction of that agreement of November 9, 1891. The contract was made in view of the certain natural increase of business in 999 years between Glenwood and Grant and Market streets in Pittsburg. There is nothing specified in it or limited as to the extent of the user or the number of cars that may be used on those tracks. If the Second Avenue Passenger Railway Company connected with , other railroads at Glenwood it might, doubtless, have hauled their passengers from Glenwood to Grant street and Market street, but, of course, in that event, there would have been a change of passengers and a change of ears at Glenwood; but, by virtue of the leases that were obtained of these other railroads beyond Glenwood, the Second Avenue Traetion Company is now running its cars continuously from Market street to the termini of those various roads, and the question raised by the Pittsburg & Birmingham Traction Company as to the construction of the agreement is, that that is outside the terms of the agreement. The agreement was simply to run the cars from Grlenwood in to Pittsburg. Now, the Second Avenue Traction Company is running its cars continuously from Market street in Pittsburg to those various termini. Let us look at the precise terms of this contract of November 9, 1891. It was evidently based on the idea that the two companies had an equal interest, and would run about the same number of cars, or make about the same number of trips of cars on the tracks in dispute. They were each to pay one half the expenses of reconstructing the railroad; one half the expense of equipping and maintaining the road in good condition ; one half the cost of the poles, trolley wires and overhead equipment then erected; one half the expense thereafter of maintaining them and keeping them in good order; the Second Avenue Passenger Railway Company was not to extend its lines or make any contracts to run its cars across the river to any points reached by the lines of the Pittsburg & Birmingham Traction Company, nor make any agreement with any other company so that its cars could run from such competing points; and the Pittsburg & Birmingham Traction Company agreed that if it should allow any other company, not its successor or assign, to use these tracks, a proportional credit should be allowed the Second Avenue Passenger Railway Company on its half of the expense. These provisions clearly indicate that the parties were dealing on the basis of equal interest. No provision is made for either party extending its lines. That does not seem to have been contemplated. The provision that, if the Pittsburg & Birmingham Traction Company should allow any other company to use the tracks, there should be a proportional deduction from what the Second Avenue Passenger Railway Company should pay, most strongly confirms this view. Considering the terms of the agreement of November 9, 1891, and the circumstances under which it was made, to allow the Second Avenue Traction Company, by virtue of its numerous leases of other roads, to run more cars than the number of cars run by the Pittsburg & Birmingham Traction Company over these same tracks, without paying an increased proportion of the expenses, would be manifestly unfair and inequitable. A just and equitable arrangement would be for the companies to pay the expenses provided for in the agreement in proportion to the number of cars; that is, the number of car trips made by each company over these tracks.</p> <p>Let a decree be drawn in accordance with this opinion, the Second Avenue Traction Company to pay the costs.</p> <p>The court entered the following decree :</p> <p>And now, February 21,1898, this cause came on to be heard upon the issues joined by the bill, answers and replications, as, also, the cross-bill and answers, and evidence being taken upon all of said issues, and the same being argued by counsel, the court do, on due consideration thereof, order and decree as follows:</p> <p>1. The court being of opinion that the South Side Passenger Railway Company, the plaintiff in the original bill, cannot in this proceeding, for the reasons given in the opinion, raise the question of the power of the Second Avenue Passenger Railway Company and the Second Avenue Traction Company to run its cars, respectively, over that portion of Second avenue between the Tenth street bridge and Grant street, or question the validity of the charter of the Second Avenue Passenger Railway Company, or the validity of the contract of November 9, 1891, between the Pittsburg & Birmingham Traction Company and the Second Avenue Passenger Railway Company, the relief prayed for in the original bill must be denied, and that bill is hereby dismissed, at the costs of the plaintiff, but without prejudice to the cross-bill and the relief therein prayed. ' 2. Considering and passing upon the questions raised by the issues under the cross-bill and answers, the court do further decree, for the reasons stated in the opinion, the Pittsburg & Birmingham Traction Company is estopped to deny the validity of the contract of November 9, 1891, between the Second Avenue Passenger Railway Company and the Pittsburg & Birmingham Traction Company.</p> <p>8. The court find that the Second Avenue Traction Company is, to all intents and purposes, and in legal effect, the assign of the Second Avenue Passenger Railway Company under the said contract of November 9, 1891, of the Second Avenue Passenger Railway Company with the Pittsburg & Birmingham Traction Company.</p> <p>4. The contract of November 9,1891, was made on the implied understanding that the two contracting parties would have about an equal use of the tracks between the Tenth street bridge and Grant and Market streets, and each party pay one half the expenses. Since the Second Avenue Traction Company has got control of the roads beyond Glenwood, its use of said tracks is greater than that of the Pittsburg & Birmingham Traction Company, and it should pay a greater proportion of the expenses. And it is now ordered and decreed that the expenses provided for in the contract of November 9,1891, be apportioned and paid by the two companies in proportion to their use of said tracks; that is, in proportion to the number of car trips made by each company over said tracks; which shall include the ears owned or controlled by each company passing over said tracks; and it is further ordered and decreed that the Second Avenue Traction Company settle with the Pittsburg & Birmingham Traction Company on this basis, for the term from January 1, 1896, to January 1,1898, and thereafter every month, or at such other times as they may agree upon. If the parties cannot agree upon the amount due January 1,1898, or upon any period hereafter, or upon any other question arising under this decree, either party may apply to this court for such further order or proceedings as may be necessary. The Second Avenue Traction Company shall pay the costs of the cross-bill, which shall include three fourths of the expenses connected with the taking of testimony.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Appeal, No. 164, Jan. T., 1898, by plaintiff, from order of C. P. Lycoming Co., March T., 1898, No. 476, making absolute rule to set aside judgment.</p> <p>Rule to set aside judgment.</p> <p>From the record it appeared that Jean Saylor-Brown, a creditor presented her petition to the court under the Act of July 9, 1897, P. L. 237, praying for a rule on the plaintiff to show cause why his judgment should not be set aside for fraud. She did not at first file a bond as required by the act, but after the rule was issued, by permission of the court, she filed a bond, nunc pro tunc.</p> <p>Townsend & Longmire, on petition, were permitted by the court to intervene and become parties to the proceedings to inquire into the validity of the judgment, but they never filed a bond.</p> <p>The other facts appear by the opinion of McClure, P. J., of the 17th judicial district, specially presiding, which was as fol lows:</p> <p>By the articles of copartnership Charles C. Case was to contribute $1,000 as his share of the capital stock of Ed. M. Hart & Co. To do this, he borrowed $500 from his father-in-law, the plaintiff, on May 5,1897, and paid the balance June 22, by a negotiable note drawn by Mr. Page to Case’s order, payable four months after date at the West Branch National Bank. This note was indorsed by Case and Ed. M. Hart & Co., discounted by the bank, and the proceeds went to the credit of the partnership. Case was credited with the cash and proceeds of the note as capital and charged with the discount. The note was renewed, October 22, 1897, with like paper signed by Page to Case’s order, indorsed by him and the suspender company, Ed. M. Hart having retired in the mean time, and the partnership name changed to Williamsport Suspender Company.</p> <p>It is unquestionable that the money and credit loaned by Page were obtained by Case for the purpose of meeting his obligation to his copartners, and it is just as clearly proved that he not only failed to disclose this fact to Page, but represented to him that he was borrowing the money for the firm and they would protect him. No security was given Page until the confession of this judgment by Case for the defendant company, which was done without the knowledge of his partner, Keightley.</p> <p>Between the partners the money loaned by Page was Case’s debt, but Page is on a different footing. Each partner is the general agent of the firm and has the power to bind his co-partners by acts done within the scope of the business. He may borrow money for the partnership and give notes therefor in the name of the firm. “ If the lender is informed or has notice that the money is borrowed for the individual use of the partner borrowing, and not for the firm, the partnership is .not liable for any security that may be given therefor in the name of the firm. But if the lender has no knowledge or notiee, at the time of making the loan, the firm will be liable therefor, although the money may have been borrowed for the separate use of one of the partners: ” Mr. Justice Williams in Potter v. Price, 8 Pitts. 136.</p> <p>As we have seen, Page was not informed that the money borrowed was for the individual use of Case, but was told just the contrary, and there was no notice of any fact that ought to have put him on inquiry. It follows that the $500 loaned by Page was a debt of the partnership, and a judgment confessed for that amount would withstand the attack of its creditors.</p> <p>That Keightley, when insolvency came, credited Page with $500 on the books of the firm is not of importance, as that entry would not make the partnership liable for the individual debt of Case. It was no more than a declaration that as between the members of the firm themselves they would consider it a debt of the partnership. To make it a claim which could be enforced by Page they would have to ratify the transaction or assume the debt by positive agreement with him: North Pa. Coal Co.’s App., 45 Pa. 181. Page’s indorsement is another matter. His loan of money was a valid debt of the firm, only because there was no notice to him of the purpose for which the money was obtained and the consequent lack of authority in Case to bind the partnership, nor any circumstance that would have put a reasonably prudent man on inquiry. But when his son-in-law asked him to back the firm in securing a discount in bank he presented a paper on which the name of the partnership nowhere appeared. Instead, it was a note payable to his own order, and Page signed it, thus becoming the accommodation maker, not for the partnership but for Case. If, as we believe, Case said he wanted the money for the firm, this note bore on its face evidence that his statement, if not false, was at least not the whole truth. It was apparent, from the form of the instrument, that it was for some individual transaction of Case’s. When presented to Page the partnership stamp was not on the note in any form. Notice of any fact that ought to put a man on inquiry is sufficient to protect a firm from the acts of a partner within the scope of the business: Potter v. Price, 3 Pitts. 136. Surely here was enough to lead any reasonably prudent man to inquire, why, if I am loaning my credit to the partnership, am I asked to sign a note payable to one of the partners ? And inquiry would have developed that the money to be raised on the paper was to meet Case’s obligations to his copartners, and for that he had no power to bind them. Mr. Page thought he was the indorser for the suspender company, but that cannot effect the law of the case. A man cannot be heard to say he did not know that which by due care he should have known. This loan of credit is not a partnership debt, and the confession of judgment by one partner, without the consent of the other is a fraud on him and the firm creditors: McNaughton’s Appeal, 101 Pa. 550. And this fraud it would seem taints the whole judgment, for a judgment fraudulent in part is void in the whole as against other creditors: Gates v. Johnston, 3 Pa. 52. The only exception to this rule and recognition of partly good and partly bad judgments is, as Judge Arnold points out in Moore v. Dunn & Fell, 147 Pa. 359: “ In cases of judgments held by married women against their husbands in which the excessive part will not be attributed to bad faith, but will be presumed to be a mistake, or included in good faith.” We would be inclined to add this case to the exception rather than hold it within the rule, but our judgment of what the law is must control our personal views of what it should be.</p> <p>And now, to wit: April 9,1898, rule absolute, and the judgment is set aside so far as the Williamsport Suspender Company is concerned, as also the execution and levy upon the partnership assets.</p> <p>Errors assigned were (1) in taking cognizance of the petitions of Jean Saylor-Brown and Townsend & Longmire, which are based on the provisions of the act of July 9,1897, which act is unconstitutional and void; (2) in not dismissing the petitions of Jean Saylor-Brown and Townsend & Longmire, because said act is unconstitutional and void; (3) in taking cognizance of the petitions of Jean Saylor-Brown and Townsend & Longmire, because, if said act is constitutional, said petitioners did not comply with the provisions of said act; (4) in not dismissing the petitions of Jean Saylor-Brown and Townsend & Longmire, because, if said act is constitutional, said petitioners gave no bond, as required by said act; (5) in permitting bond of petitioner, Jean Saylor-Brown, to be filed March 5,1898, as of February 23,1898; (6) in making the following order: And now, March 8,1898, this petition read in open court and upon motion of Hicks & Spencer, attorneys for petitioners, it is ordered that Townsend & Longmire be allowed to intervene in the proceedings now pending to try the validity of the judgment of H. Mudge Page v. The Williamsport Suspender Company, and that they be made parties thereto; (7) in overruling motion to revoke order staying execution of appellant; (8) in making the following order: And now, to wit: April 9,1898, rule absolute, and the judgment is set aside so far as the Williamsport Sus pender Company is concerned, as also the execution and levy upon the partnership assets.</p>

<p> Contract—Extra services—Decedents' estates. </p> <p>Where a decedent in his lifetime agreed to pay plaintiff a certain amount per month for “ board, washing and mending,” the plaintiff cannot recover for extra services incident to the illness of the decedent. Prima facie the contract covered all such household attendance and attention as are usual in families of the same situation and circumstances of life, including the chances and changes of health and sickness.</p> <p> Statute of limitations—Payment—Identification of debt. </p> <p>To take a debt out of the bar of the statute of limitations, the identification of it must be made by the debtor at the time of the promise, or payment or act relied on. An identification by mere inference of the jury from other collateral matters is not sufficient.</p> <p>In an action against an executor to recover for services rendered to the decedent evidence of the receipt of money by the plaintiff with a direction by the decedent to credit it on his account, is insufficient to submit to the jury to determine therefrom if the payment was made on the very debt in suit.</p> <p> Contract—Claim for services—Decedent's estate. </p> <p>In an action against an executor to recover for services alleged to have been rendered to testator, it is proper to exclude evidence of the character of the decedent for punctual payment of obligations, of the income from his farm, of the fact that he kept account books which could not be found after his death, and of his declaration as to what he was going to do when he left plaintiff’s house.</p>

<p>Appeal, No. 408, Jan. T., 1898, by defendants, from order of C. P. Clinton Co., Jan. T., 1895, No. 117, dismissing exceptions to auditor’s report.</p> <p>Exceptions to report of B. F. Geary, Esq., auditor. Maybe, P. J., dismissed exceptions to the report of the auditor.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to auditor’s report.</p>

<p> Beneficial associations—Change of beneficiary—Right tofund—Insurance. </p> <p>An association organized under the Illinois act of June 27,1874, not to do business for profit or gain, but to aid pecuniarily the widows, orphans, heirs and devisees of its members, is notan insurance company. Northwestern Masonic Aid Assn. v. Jones, 154 Pa. 99, followed.</p> <p>Where a member of a beneficial association has a right to change the beneficiary named in his certificate, and he does so, and receives a new certificate upon an affidavit that the first certificate was lost or destroyed, the beneficiary named in the first certificate, or his representative, has no right to claim the fund from the mere fact that he holds the first certificate in his possession at the time of the member’s death.</p> <p>Where H., a member of a beneficial society, after the death of his son P., beneficiary in the certificate, acting on the by-law of the society authorizing change of beneficiary on surrender of the certificate, or, in case of its loss or destruction, on an affidavit setting forth the circumstances, obtained a new certificate, naming his son J. as beneficiary, on an affidavit that the first certificate was lost or destroyed, and that he was unable to obtain it, when in fact it was in the possession of P.’s widow, who had refused to give it up, because P. had bequeathed the same to her, the widow is entitled to none of the fund payable on the death of H., though she and P. had made payments of assessments on the first certificate.</p>

<p>Appeal, No. 288, Jan. T., 1898, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1891, No. 874, on verdict for defendant.</p> <p>Assumpsit for materials furnished and delivered. Before Willson, J.</p> <p>At the trial it appeared that defendant was a contractor and builder. Plaintiffs were roofers, heatermen and tinsmiths who had agreed to furnish material for defendant’s building operations. On October 2, 1891, defendant gave to plaintiffs a note of the Knauff Organ Co., and received from them the following receipt: “Received of Mr. C. D. Busch @980 on account of „ various contracts at Forty-second and Mantua avenue, (Signed) Collins & Woods.” The note was never paid.</p> <p>On November 18, 1891, plaintiffs’ work being finished, calculation was made between them and defendant as to the balance due them, counting in the same the sum for which receipt was given on October 2, represented by this note, and the balance was found to be $883.</p> <p>This balance Busch declined to pay until plaintiffs signed the usual printed form of release of mechanics’ liens.</p> <p>Nothing special appears to have been said by either side about the note.</p> <p>Collins & Woods executed under seal a release, which read as follows:</p> <p>“ Whereas, we, the subscribers, have erected and furnished materials for erecting fifty-nine houses and stores on the lot or piece of ground situate on northwest side of Mantua avenue from Forty-second to Forty-fourth street, belonging to Clarence M. Busch, of this city, and have agreed to release all liens which we, or any or either of us have, or might have, on the said fifty-nine houses and stores by reason of materials furnished or work performed for erecting the same, now these presents witness, that we, the subscribers, for and in consideration of the premises and of the sum of one dollar, to each of us at or before the sealing and delivery hereof by the said Clarence M. Busch well and truly paid, the receipt whereof we do hereby acknowledge, have remised, released, and forever quit claimed, and by these presents do remise, release, and forever quit claim unto the said Clarence M. Busch, and to his heirs and assigns, all and all manner of liens, claims, and demands whatsoever, which we, or any or either of us, now have, or might or could have, on or against the said Clarence M. Busch or his houses and premises, for work done or for materials furnished for erecting and constructing the said fifty-nine houses and stores, or otherwise howsoever. So that he, the said Clarence M. Busch, heirs and assigns, shall and may have, hold, and enjoy the said fifty-nine houses and stores and premises, freed and discharged from all liens, claims, and demands whatsoever, which we, or any or either of us, now have, or might or could have, on or against the same, if these presents had not been made.</p> <p>“ In witness whereof, we have hereunto set our hands and seals, the day of the date written opposite our respective signatures.”</p> <p>Before the maturity of the f1,000 note, and after this release was signed, the Knauff Organ Company failed, and it was discovered that the note could not be collected from it or from any of the indorsers. The plaintiffs were compelled to take up such note and make it good to the party to whom they gave it, and upon demanding payment from Busch, he refused it.'</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p> Promissory notes—Parol waiver of protest —Province of jury. </p> <p>In an action against an indorser upon promissory notes which have not been protested, a verdict and judgment for plaintiff will be sustained, where the jury find upon sufficient testimony that the notes had not been protested in consequence of an oral request of plaintiff not to protest them.</p> <p>After an indorser of promissory notes has requested the holder not to protest his notes, the mere fact that the holder occasionally protests a note to secure attention to its renewal will not defeat his right to recover against the indorser on notes not protested.</p> <p>When a waiver of protest consists of verbal communications, it is the special province of the jury to consider the testimony and ascertain the facts. When ascertained, it is their duty to apply the law under the direction of the court.</p>

<p> Negligence—Borough—Choice of roads.—Question for jury. </p> <p>A person who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination, is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a trial court can say as matter of law that the person using the more dangerous route is guilty of contributory negligence. If the alternative route has dangers of its own, and the dangers of the route actually taken are not so great and obvious as to deter the genera. public and ordinarily prudent and careful people from using it, the question of the contributory negligence of a person injured in using it is a question for the jury.</p>

<p>Trusts and trustees—Contingent estate—Act of April 17, 1869.</p> <p>In order to give a person claiming a contingent interest in a trust estate the right to interfere in the management of the estate, the possession of the interest should be established with at least reasonable certainty, and a proceeding under the Act of April 17, 1869, P. L. 70, should not be sustained when its manifest purpose is not to protect a right, but to establish one.</p> <p>Where a testator bequeaths certain securities to trustees “ in trust for S.’s sole and separate use during her natural life .... at her decease . . . .- to the heirs of her body if she should have any,” and names as trustees two sons of S., and one of the trustees borrows money individually upon securities belonging to the trust estate, and so earmarked, and both trustees execute blank powers of attorney with the acquiescence of the cestui que trust, for the transfer of the securities, and subsequently the trustee who borrowed the money is removed from the trust, the assignee of the securities is not such an owner as to give him standing in the orphans’ court to require the remaining trustees to show cause why he should not file an account, why he should not give additional security, and why he should not be dismissed.</p>

<p>Appeal, No. 246, Jan. T., 1898, by defendants, from judgment of C. P. Bradford Co., Dec. T., 1895, No. 178, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Searle, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $5,687.50.</p> <p>Error assigned was in refusing to give binding instructions for defendant.</p>

Appeal, No. 443, Jan. T., 1898, by plaintiff, from judgment of C. P. Lycoming Co., Sept. T., 1895, No. 102, for defendant non obstante veredicto. Mitchell, J., dissents. Assumpsit on premium notes. Before Metzger, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was in entering judgment for the defendant, non obstante veredicto.

<p> Sale—Contract—Course of dealing—Evidence. </p> <p>The course of dealing between a tradesman and his customer was for the latter to pick out prints and engravings from time to time as invoices of such articles were received, and to have them placed in drawers especially designated as receptacles for his purchasers. No one had access to these drawers except the customer and the salesman. The goods were charged to the customer’s account and were never thei'eafter carried in the general stock. The prices were marked upon the engravings and prints. The customer was in the habit of taking the articles from time to time from the drawers, and a bill was then sent to him for such as he took. No bills were rendered for goods until they had been taken away by the customer. When he died there was a large number of engravings and prints in the drawers. Held, that there was a completed contract of sale when the articles were placed in the drawers, and that his estate was liaole for those whieh. remained in the drawers at the time of his death.</p>

<p> Corporations—Definition of dividend—Contract. </p> <p>A dividend is that portion of the profits and surplus funds of a corporar tion which has actually been set apart by a valid resolution of the board of directors, or by the shareholders at a corporate meeting, for distribution among the stockholders, according to their respective interests, in such a sense as to become segregated from the property of the corporation to become the property of the shareholders distributively. It is a matter of no difference whether the dividend is declared in stock or paid in cash and thereafter converted into stock by the shareholders; in either event it is a distribution of the surplus profits of the corporation.</p> <p>When the means of information as to the facts and circumstances affecting the value of the subject of sale are equally accessible to both parties, and neither of them does anything to impose on the other, the disclosure of any superior knowledge which one party may have over the other is not requisite to the validity of a contract.</p> <p>A contract in writing for the sale of a certain number of shares of stock of a corporation “ including all dividends due or to become due thereon,” carries with it a stock dividend which had been previously declared; and a court of equity will enforce a transfer of the stock represented by the dividend, although the vendor did not know that such a dividend had been declared, while the vendee had knowledge of it, but was silent on the subject.</p>

<p>Appeal, No. 73, Jan. T., 1899, by Charles Barclay, one of the defendants, from decree of C. P. No. 4, Phil a. Co., March T., 1894, No. 1348, on bill of equity.</p>

<p> Contract—Specific performance—Decedents' estates. </p> <p>Decedent contracted to sell land under an agreement by which the purchaser was to raise a loan and apply the money from it to the construction of a building, and to the payment of liens existing upon the property. The time for the performance of the contract was twice extended, and the deeedent and the purchaser acted together in seeking to carry it out. After the expiration of the second extension the purchaser frequently advised with the decedent, acted in a manner under his direction, and was encouraged by him. When he at last succeeded in securing the money, and was ready to consummate the agreement, decedent was unable to attend to business, and shortly afterwards died. Held, that the orphans’ court committed no error in decreeing specific performance of the contract by decedent’s representative.</p>

Appeal, No. 89, Jan. T.,. 1899, by the city of Philadelphia, from order of C. P. No. 4, Phila. Co., June T., 1896, No. 788, dismissing exceptions to report of viewers. Exception to report of viewers. The facts appear by the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to report of viewers.

Appeal, No. 138, Jan. T., 1899, by defendant, from judgment of C. P. Cumberland Co., May T., 1899, No. 40, on case stated in favor of plaintiffs. Case stated.

Appeal, No. 156, Jan. T., 1898, by Parsons borough, from judgment of C. P. Luzerne Co., Oet. T., 1895, No. 491, on verdict for plaintiff. Trespass for personal injury. Before Lynch, J. The facts sufficiently appear in the opinion of the Supreme Court. • •Defendants’ points and the answers thereto among others were as follows: 7.

<p>Words and phrases—Insurance—“ Good health."</p> <p>The term “ good health,” when used in a policy of life insurance, means that the applicant has no grave, important or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the system.</p> <p> Insurance—Representations of good health—Question for jury. </p> <p>An applicant for a policy of life insurance was in good health at the time of the application, but was ill with a cold when the premium was paid and the policy delivered. The cold developed into pneumonia, of which he died three days after the payment of the premium. At the foot of the policy was printed the following provision: “ The policy issued hereon shall not become binding until the first payment due thereon has been actually received by the association or its authorized agent during my life time and good health.” Held, that it was for the jury, under proper instructions of the court as to what constitutes good health, to determine whether he was in insurable good health, within the meaning of the representations contained in the application, at the time the insurance was consummated by payment of the premium.</p>

Appeal, No. 234, Jan. T., 1899, by Harry A. McFadden, executor, from decree of C. P. Blair Co., March T., 1897, Nos. 108 and 113, in distribution. Petition of lien creditor to take proceeds of assignee’s sale of real estate out of court. It appears from the evidence that Archibald McFadden made a deed of assignment of his property, including among other pieces of property one known as the McFadden farm, which was subject to a mortgage of $4,040.

<p>Appeal, No. 267, Jan. T., 1898, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1897, No. 6, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Bailey, P. J.</p> <p>It appears from the “record that this was a joint action of trespass by husband and wife to recover damages for alleged personal injuries sustained by Mary Steel by falling into a ditch claimed to be within the limits of defendant borough. There was evidence tending to show that that section of the street where the accident happened had been accepted by the borough and that the place had not been kept in a reasonably safe condition. Defendant introduced evidence tending to show that the street in question had never been accepted by the borough and that it was not responsible for its condition; also that the plaintiff was guilty of contributory negligence.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for Mary Steel for $1,000 and Bruce Steel for $500. Defendant appealéd.</p> <p>Error assigned among others was refusal of binding instructions for defendant.</p>

Appeal, No. 144, Jan. T., 1899, by plaintiff, from judgment of C. P. Blair County, March Term, 1897, No. 17, on verdict for defendants non obstante veredicto. Assumpsit. Before Barker, P. J., of the 47th judicial district, specially presiding.

Appeal, No. 54, Jan. T., 1899, by Candee & Co., from decree of C. P. Blair Co., Oct. T., 1895, under writs of fi. fas. Nos. 51 and 52, sustaining exceptions to auditor’s report. Exceptions to auditor’s report.