Volume 192 — Pennsylvania State Reports

Appeal, No. 120, Jan. T., 1899, by Martba J. Kline, defendant, from judgment of C. P. Blair Co., Jan. T., 1899, No. 80, for want of a sufficient affidavit of defense. Scire facias sur mortgage.

<p> Beneficial associations—Social and beneficial members—Death benefits. </p> <p>A fraternal and mutual benefit association, having two classes of members, social and beneficial, cannot be made liable for death benefits for one who qualified as a social member but paid dues as a beneficial member, with the understanding that if he did not pass the provided medical examination a portion of the beneficial dues were to be applied to his social membership tax and the balance returned to him, but who never underwent examination to determine whether he was eligible to beneficial membership.</p>

<p> Railroads—Contributory negligence—Rule of Carroll v. Railroad Co. </p> <p>The rule laid down in Carroll v. Railroad Co., 12 W. N. 348, that a plaintiff cannot recover if, in spite of what his senses must teach him if he uses them, he steps in front of a moving ti’ain, is sound on principle and will not be relaxed or pared down by exceptions, but it is a rule which, in its nature, is applicable only to clear cases.</p> <p> Negligence—Contributory negligence—Answer to points for charge—Stop, look and listen. </p> <p>In an action to recover damages for a death caused by the negligence of a railroad company, where plaintiff’s testimony does not disclose such a clear case as justifies the court in taking it from the jury under Carroll v. Railroad Co., the defendant is entitled to an absolute affirmance of points which declare contributory negligence if plaintiff did not look and listen, or if he saw the train and went upon the track. A refusal to affirm the points if the jury should find that deceased’s attention was attracted by a train on another road so that he did not see the train which struck him introduces an element of uncertainty which goes far toward abrogating a wise and well established rule.</p>

Appeal, No. 225, Jan. T., 1898, by John C. Kunkel, from decree of O. C. Bedford Co., dismissing exceptions to report of auditor. Exceptions to auditor’s report. The court, Bailey, P. J., of the 20th judicial district, specially presiding, filed the following opinion: At the time of his death, Hon. John Cessna was the owner of 133 bonds of the Bedford Coal and Iron Company, of the par value of $1,000 each.

Appeal, No. 335, Jan. T., 1898, by defendant, from decree of C. P. Fayette Co., Equity Docket, No. 255, reforming deed as prayed for in plaintiff’s bill. Bill to reform deed.

Appeal, No. 155, Jan. T., 1899, by plaintiffs, from decree of O. C. Fayette Co., March T., 1872, No. 57, dismissing petition for citation. Petition for citation on W. H. Playford, trustee, to file an account. The facts sufficiently appear from the opinion of Reppert, J., as follows: Peter Rist, a resident of Fayette county, died intestate in 1861, leaving to survive him a widow, Sarah, and nine children.

Appeal, No. 153, Jan. T., 1899, by plaintiff, from judgment of C. P. Fayette Co., June T., 1898, No. 43, on verdict for defendant on feigned issue. Feigned issue. The case was tried before the court without a jury, under the Act of April 22, 1874, P. L. 109. The facts sufficiently appear by the opinion of Mestrezat, P. J., as follows : FINDINGS OE EACT. 1.

<p>Railroads—Street railways — Grossings — Acts of June 19, 1871, and May 14, 1889.</p> <p>The Act of June 19,1871, P. L. 1360, relating to grade crossings, applies to street railways, and is not affected by the Act of May 14, 1889, P. L. 211.</p> <p>The courts will liberally construe and rigidly enforce the provisions of the act of June 19,1871, relating to grade crossings, whenever cases fairly within its letter and spirit are presented.</p> <p>A grade crossing will not be authorized where the topography of the neighborhood, the surroundings of the crossing and the extent to which the crossing is used and will probably be used establish beyond a doubt the conclusion that it is exceptionally dangerous.</p> <p>The fact that there are other grade crossings in the same city, over which more trains pass than over the crossing in question, is no argument in favor of sanctioning another grade crossing of a dangerous character.</p> <p>In a controversy between a railroad company and a street railway company as to a crossing, the fact that the railroad company has been using the street without authority for the pui’pose of shifting its cars cannot be taken into consideration in determining whether a grade crossing shall be permitted or not.</p> <p>In order to avoid a grade crossing, a street railway company has the right to “ diverge for a short distance” from its route.</p> <p>In a suit in equity under the act of June 19, 1871, to regulate the crossing of a railroad by a street railway, no stay of the preliminary injunction should be granted, except upon tbe condition that precautionary rules and regulations, not less efficient than those embodied in the decree, be faithfully and rigidly observed and enforced, in the meantime.</p>

<p> Eminent domain—Damages—Separate properties. </p> <p>Where a married woman inherits from her husband real estate abutting on a street, and Subsequently purchases adjoining properties which abut on other streets, using the latter properties in the same way that they had been used by their former owners, these several properties will not be considered as one property, in a proceeding to assess damages for injuries caused by the construction of a public improvement in the street in front of the property which was formerly her husband’s, and her damages will be confined to the property fronting on the street in which the improvements are constructed.</p>

Appeal, No. 286, Jan. T., 1898, by plaintiffs, from order of C. P. York Co., Aug. T., 1897, No. 1, making absolute a rule for distribution in partition. Rule to show cause why distribution should not be made in partition proceedings.

<p>Legacies— Payment— Lien.</p> <p>Where a will expressly charges legacies upon property “until paid,” the legacies necessarily remain a lien until actual payment has been made. If under an issue framed by the orphans’ court a jury finds that the legacies have never been paid, any presumption of payment arising from lapse of time will thereby be rebutted.</p>

<p> Negligence—Railroads—Master and servant—Fellow-servants—Engineer and fireman. </p> <p>A railroad company is not liable in damages for the death of a locomotive engineer, in its employ, where it appears that his death was caused by the negligence of a fireman of another train in misplacing a switch.</p>

Appeal, No. 92, Jan. T., 1899, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1896, No. 48, refusing to take off nonsuit. Trespass for personal injuries. Before Livingston, P. J. At the trial it appeared that the plaintiff was employed in the beam house of defendants’ tannery in Lancaster city. On the day of the accident there was occasion to move one of the large stone slabs or tables on which leather was dressed.

Appeal, No. 206, Jan. T., 1899, by defendant, from judgment of C. P. York Co., Aug. T., 1899, No. 11, on case stated.

Appeal, No. 150, Jan. T., 1898, by plaintiff, from decree of C. P. No. 1, Lackawanna Co., June T., 1891, No. 1, on bill in equity. Bill in equity for an injunction. The facts appear by the opinion of the Supreme Court and by the opinion of Gtjnster, J., which was as follows: The very full and carefully prepared report of the learned master makes it unnecessary for us to go into a detailed discussion of all the evidence from which he has found the facts.

<p>Mines and mining—Definition of mine—Act of July 5, 1883—Lateral railroads.</p> <p>Where the size of a coal mining plant is in proportion to the area of coal to be mined and “ a plan of the mining operations to be pursued in the mining of the coal ” has been formulated and followed, the plant, the plan of operation and the area of coal with which they are connected may be designated as a coal mine within the meaning of the Act of July 5, 1883,</p> <p>P. L. 176.</p> <p>Constitutional law—Title of statute—Supplementary act—Act of July 5, 1883.</p> <p>When an act is declared to be a supplement to a former act, if the subject of the original act is sufficiently expressed in its own title and the provisions of the supplement are germane to that subject, the subject of the supplement is sufficiently covered by a title containing a specific reference to the original by its title with the date of its approval.</p> <p>The act of July 6, 1883, entitled “ A supplement to an act entitled ‘ an act regulating lateral railroads.’ approved the fifth day of May Anno Domini one thousand eight hundred and thirty-two, authorizing the owners or lessees of iron ore, or coal mines, to construct latei’al railroads from said mines to any railroad, public road or navigable stream within the county in which such mines are situated,” is not defective in title.</p>

<p>Appeal, No. 96, Jan. T., 1898, by William H. Clouse and George M. Reighard, from decree of O. C. Bedford Co., dismissing petition for specific performance.</p> <p>Petition for specific performance.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>'Error assigned was decree dismissing petition.</p>

<p>Appeal, No. 348, Jan. T., 1898, by-plaintiff, from decree of C. P. No. 2, Pbila. Co., March T., 1898, No. 674, dismissing bill in equity.</p> <p>Bill, in equity for an accounting.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p> Decedents' estates—Written obligation of decedent to his wife. </p> <p>Where a widow holds a plainly written obligation of her husband to herself in his own handwriting, against the integrity of which there is not the slightest suspicion, the paper furnishes its own explanation and she is under no duty of explanation in order to sustain her title to the obligation.</p> <p>Where a check drawn by the decedent to the order of his wife is found among the papers of the wife after her and her husband’s death, and was seen among her papers about a month after her husband’s death, it will be presumed that the cheek was properly in the possession of the widow at the time of her death, and it will constitute a valid obligation in favor of her estate against her husband’s estate.</p>

Appeal, No. 357, Jan. T., 1898, by David J. Chambers, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report.

<p>Appeal, No. 416, Jau. T., 1898, by defendants, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1897, No. 1004, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Finletter, P. J.</p> <p>. This action was brought by Laura Y. Mintzer against the trustees under the will of William Hogg, Jr., for personal injuries received by stepping into a hole in the sidewalk on the southern side of East York street near Jaspar street. Five trustees are appointed by the will, and are named in the summons ; one of them is dead and two are nonresidents. The summons was served on only two of the trustees.</p> <p>The plaintiff’s evidence tended to show that on the evening of October 3,1896, she came from a point beyond Jaspar street, which she crossed, and stepped into a hole in front of No. 1904, which was more than two feet long by more than a foot and a half wide and nearly a foot deep. She excused her failure to see the hole by the statement that the electric light was very poor. The house had been rented to a Mrs. Kress, about the previous Easter, and it was alleged by plaintiff that there were at the time some loose bricks in the pavement, and sweeping and cleaning by the tenants had enlarged the hole. It was repaired immediately after the accident, and it was alleged that the new bricks used in the repair still showed.</p> <p>[The court was asked to allow the jury to view the place that they might see for themselves where the patching had been done; but the request was refused, and defendants excepted to the refusal.] [2]</p> <p>It was admitted that testator had died seized of the property and that defendants, who were before the court, together with William and James Hogg, residents of Worcester, Mass., were trustees under his will, and as such have a legal title to the property. It was not shown that any of the defendants or any of their agents or subagents knew or had notice of the defect.</p> <p>The court charged in part as follows :</p> <p>This action is brought to recover damages arising from an injury which plaintiff suffered in consequence of the negligence of the defendants. There are two questions to be determined by the jury. First, were the defendants negligent; and, secondly, was the plaintiff negligent in such a way as contributed to the injury? No matter how negligent the defendants may have been, if the plaintiff in any degree contributed to the accident she cannot recover.</p> <p>[It was the duty of the defendants to keep their pavement in reasonably good repair.] [1] It was the duty of the plaintiff to exercise reasonable watchfulness under all the circumstances of the case. The questions which the jury are to consider are, first of all, was the brick pavement out of repair; that is to say, were the bricks removed and was there a hole created by the removal of the bricks, or any other matter, touching the want of repair. You will understand that property owners are not responsible for the ordinary unevenness of a brick pavement, but only when the pavement itself is out of repair, or, in other words, when portions of a brick pavement are removed, or when there exists such a condition as is complained of here.</p> <p>Again, if you find that the brick pavement was out of repair, you will determine from the evidence whether it was dangerous or not. You will also determine from the evidence whether the want of repair in the pavement caused the injury complained of by the plaintiff. In this connection it is important for you to consider what knowledge the plaintiff had of the pavement itself—its condition, and its surroundings, and the general locality or neighborhood.</p> <p>If you are satisfied from all the evidence in this case—and I mean the evidence of the defendants as well as for the plaintiff —that the defendants were negligent, then the question arises, was the plaintiff herself negligent? In considering this question the jury will consider, first, her knowledge of the locality, of the pavement itself, and of the hole, and its want of repair. Again, the jury are to take into consideration a very important thing, and that is the time—whether it was daylight or night, or whether there was sufficient light, or what quantity of light was thrown upon the hole itself by the reflection of light in and about the place. Again, the jury will take into consideration all the difficulties and circumstances which might have entered into a consideration of the safety or danger of crossing that pavement, in the plaintiff’s mind, such as the darkness of the night, and the obscurity of the light, and all the attendant circumstances. In this connection I have also to say that the greater the difficulty of seeing clearly, renders the greater care on her part. The wayfarer is bound to consider the difficulties of seeing clearly, as he passes along, just as in ordinary circum3tances lie will consider any question which involves his safety. In this connection it is my duty to say to you that the plaintiff was not bound to exercise extraordinary care. She had a right to assume that the pavement was reasonably safe, and that by the ordinary use of her eyes she could safely walk upon it. Care, under all the circumstances, is all that the law enjoined upon her to exercise.</p> <p>Defendants’ points and the answers thereto were as follows:</p> <p>1. If the accident for which this suit is brought occurred by reason of the defect (described in the evidence) in the sidewalk of the public highway in front of a house occupied by a tenant, the landlords of the house are not liable therefor to the plaintiff. Answer: Refused. [3]</p> <p>2. An owner out of possession, whose house is in the actual occupation of a tenant, is not required to keep a constant supervision of such house and of the highway in front of it; and if a defect occurs in the sidewalk during such occupation by a tenant, by reason of which a person walking on the street is injured, the landlord is not liable to the person injured, unless knowledge or notice of such defect is traced to him. Answer: Refused. [4]</p> <p>3. An owner out of possession, whose house is in the actual occupation of a tenant, is not liable for an accident from a defect in the sidewalk arising during the occupation by the tenant unless he have formal notice from the city to repair the defect. Answer: Refused. [5]</p> <p>5. If the jury believe that the hole in which the plaintiff claims to have fallen was in front of property 1902 York street, under the pleadings and evidence the plaintiff cannot recover. Answer: Refused. [6]</p> <p>6. The defendants, being merely trustees of a legal title, are not responsible in the first instance to plaintiff for her injury from an accident occurring by reason of a defect in the public highway unconnected with the building, no notice having been given them to repair. The responsibility in the first instance is on the city of Philadelphia. Answer: Refused. [7]</p> <p>7. The evidence on behalf of plaintiff showing that at the time 1904 was leased to the tenant in possession at the time of the accident, the defect in the highway was a very minor one, and the hole having been rendered dangerous by sweeping dirt out of it, making it deeper and loosening the bricks, tbe responsibility is upon tbe tenant and not upon tbe trustees defendant. Answer: Refused. [8]</p> <p>8. It appearing in plaintiff’s evidence, if believed, that tbe defect was an obvious one; that it was near an electric light, and that the sidewalk was not obstructed, she is guilty of contributory negligence, and tbe verdict should be for tbe defendants. Answer: Refused. [9]</p> <p>9. Under all tbe evidence tbe verdict should be for tbe defendants. Answer: Refused. [10]</p> <p>Verdict for plaintiff for $7,500 upon which judgment was entered for $4,000, a remittitur having been filed for $8,500.</p> <p>JErrors assigned were (1, 3-10) above instructions, quoting them; (2) refusal of tbe trial court to permit tbe jury to view tbe premises.</p> <p>Tbe appellee moved to quash tbe appeal filing tbe following reasons:</p> <p>1. Tbe record shows that no bill of exceptions was ever signed, sealed, presented to, or allowed by any of tbe judges of tbe court below.</p> <p>2. Tbe record shows that tbe stenographer’s notes of the testimony, charge, and answers to points filed by appellants have not been settled or approved, either by agreement of counsel or by tbe trial judge.</p> <p>3. Tbe stenographer’s notes of trial fail to disclose any request made by appellants to tbe trial judge to reduce to writing and file of record bis charge, or bis answers to points, or that any exceptions to said charge and answers to points were allowed by tbe trial judge, nor is there any certification of tbe trial judge that such request was made.</p> <p>4. Tbe affidavit by appellants’ counsel and certification by a judge who did not try tbe case as to tbe correctness of tbe notes of trial, and as to alleged requests to tbe trial judge not appearing of record, both made without notice to appellee’s counsel, and both made and attached after tbe record bad been filed in this court, are irregular and unauthorized methods of perfecting appeals.</p> <p>It was stated in appellants’ paper-book that a request bad been made to the trial judge to allow the bill of exceptions, but that owing to his illness no certificate could be procured. Under the circumstances Judge McCarthy, another member of the court, signed the certificate.</p>

<p> Vendor and vendee—Incumbrances—Mistake—Evidence. </p> <p>Where one brother agrees in writing to sell his interest in his father’s estate clear of all incumbrances to another brother, the vendee agreeing to assume all debts due by the estate for which the vendor is liable, the testimony of the scrivener who drew the agreement is admissible to prove that it was the intention of the parties that the vendee should assume the payment of a mortgage upon the real estate, and that reference to the mortgage had been omitted in the written agreement by mistake. Declarations and admissions of the vendee, deceased at the time of the trial, are also admissible for the same purpose.</p>

<p> Sheriff's sales—Setting aside—Inadequacy of price—Discretion of court. </p> <p>On an appeal from an order discharging a rule to set aside a sheriff’s sale, the Supreme Court will not consider statements respecting the value of the property sold without clear proof of a flagrant abuse of the discretion which the court below has in case of alleged inadequacy of price.</p> <p> Sheriff's sale—Advertisement—Publication in newspapers. </p> <p>Under the Act of June 16,1836, P. L. 772, sec. 63, relating to the advertisement of sheriff’s sales, an advertisement in each of three successive weeks is sufficient, although.the advertisement may not always have been published on the same day of the week, and there may not have been twenty-one full days between the first publication and the day of the sale.</p>

<p> Will—Legacy—Tested and contingent estates. </p> <p>Testator bequeathed to Ms daughter M. $1,000, to be invested in property two years after his death; to his daughter P. the same sum, to be paid to her two years after M.’s dowry became due; and to his daughter A. the same sum to be paid to her two years after P.’s dowry became due. In a paragraph relating to the bequest to M. he said, “ if she should die before her husband, the above legacy is to go to her second son. ” In a subsequent paragraph he devised a farm to Ms son J. with the instruction that he should not sell or dispose of it while Ms sisters P. and A. remained single or unmarried. In the same paragraph he devised to J. a lot, “ with the privilege of selling for the payment of the within legacies which he is to pay.” A subsequent paragraph was as follows: “ Should any of my said daughters die before they receive their dowries, in such a cáse J. shall be exempted from the payment thereof.” M. survived the testator but died before the expiration of two years from testator’s death. Held, (1) That the daughters are not entitled to receive the legacies bequeathed to them, except on the condition of their surviving the period designated for payment ; (2) that the second son of M. is not entitled to the legacy of M.</p>

Appeal, No. 216, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dee. T., 1895, No. 1220, on verdict for defendant. Sheriff’s interpleader to test the ownership of certain goods levied on by John Henry Willey as the property of Josiah Crowther, and claimed by the plaintiff. . From the record it appeared that the property in dispute was covered by a bill of sale and a lease, each dated October 12, 1895.

<p> Negligence—Contributory negligence—Evidence—Province of court and jury. </p> <p>In an action against a steel company by one of its employees to recover damages for personal injuries caused by a chip of steel from a defective machine striking the plaintiff in the face, the question of the plaintiff’s contributory negligence is for the jury, where it appears that the plaintiff, who was an experienced machinist, had knowledge of the defect in the machine; that this defect caused it to throw chips, not constantly, but only occasionally ; that plaintiff had known of only several instances in three months; that it then gave warning by its irregular action that chips were likely to be thrown; that plaintiff was struck at a point at which, to his knowledge, chips had not been thrown before, and that he had stopped at this point for only an instant.</p>

<p> Negligence—Electric light companies—Live electric light wire—Contributory negligence. </p> <p>In an action against an electric light company to recover damages for personal injuries sustained from stepping upon a live electric light wire which had been left by defendant’s workmen on a pavement, without guard or warning, the question of plaintiff’s contributory negligence is for the jury, where it appears that the accident occurred at 8 o’clock in the morning; that the wire was only three eighths of an inch thick; that it was trodden upon by plaintiff when she was about stepping from a crossing upon the pavement, and that she knew that an electric wire was dangerous, and would not have stepped upon it if she had seen it.</p>

Appeal, No. 9, May T., 1898, by defendants, from order of C. P. Dauphin Co., Jan. T., 1898, No. 17, discharging rule to open judgment. Rule to set aside execution and to open judgment.

<p>Appeal, No. 401, Jan. T., 1898, by defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1897, No. 58, on verdict for plaintiff.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Savtdge, P. J., of the 8th judicial district, specially presiding.</p> <p>At the trial it appeared that on May 4,1896, Ransloe Boone, the deceased, and his wife were driving a single horse hitched to a phaeton from Pottsville to St. Clair. At a point on the road where there was a steep unguarded embankment, the horse kicked his leg over the trace, took fright, became unmanageable and plunged down the embankment. Mr. Boone was instantly killed, and his wife was seriously injured.</p> <p>The court charged in part as follows:</p> <p>[It is contended by the defendant that the absence of a guard rail was not the proximate cause of the accident and injury, and that under the undisputed evidence in the case the court ought to decide that as a question of law. The question is not free from difficulty, but we have concluded that we shall leave the matter with you, and you shall say whether or not, in the event you find that there ought to have been a guard rail there, the absence of it was the efficient cause of the injury complained of. . . .</p> <p>Applying the principle, as we understand it, of Yoders v. Amwell Twp., 172 Pa. 456, we say to you, that if you find it is one of the ordinary and known habits of a horse to kick in playfulness, while in harness, and being driven upon the highway, and you also find that there ought to have been a guard rail there, that the safety of the public demanded it, then no difference how the accident happened, or what took place between the time the horse kicked over the shaft and the time he went over the embankment, the absence of the guard rail was the proximate cause of the injury, and not the kicking of the horse. . . .</p> <p>Whether the absence of the guard rail, if you find such a guard rail was necessary there for the safety of the general traveling public, was the proximate cause of the injury, or whether the kicking of the horse over the shaft was the proximate cause of the injury, will depend upon whether you find it is a common trait of the animal to kick up in playfulness, as they allege this animal did in this case. If it is a common trait of the horse to do so, under circumstances such as these, while being driven upon a public highway, then the absence of the barrier was the proximate cause, and if the barrier was necessary there ought to be a recovery. If you conclude it is not a common trait of the horse to do this, but that this action of the horse was not to be foreseen, not to be anticipated, unlooked for, entirely an accident and not an incident of travel, something that nobody would expect, or that would not ordinarily be expected, if you find that to be so, then the kicking of the horse would be considered the proximate cause of the accident and there could be no recovery. That is the second question you have to pass upon.] [2]</p> <p>Verdict and judgment for plaintiff for $2,000.</p> <p>Frror assigned was (2) portion of the charge as above, quoting it.</p>

Appeal, No. 818, Jan. T., 1898, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1896, No. 663, on verdict for plaintiff. Assumpsit on an alleged parol contract. Before Edwards, J. The facts appear by the opinion of the Supreme Court.

<p> Bond—Payment—Banks—Cashier—Suretyship. </p> <p>In an action by the assignee of a bank against the cashier of the bank and his sureties on his official bond, to recover the amount of certain items of the cashier’s defalcation, where the cashier owed the bank in addition to the defalcation, and it appears that he had been indicted, and that his friends, including the sureties, had raised a large sum of money for the purpose of discharging his entire indebtedness to the bank, and it also appears that the payments made by the sureties were largely in excess of the whole penalty of the bond, and had been actually applied to the extinguishment of the cashier’s debt, and where there was a question whether the amount of the cashier’s indebtedness exceeded the amount of the money thus paid to the assignee, there is no error in submitting to the jury the question whether the bond had been paid or not.</p>

<p>Insurance—Life insurance—Insurable interest—Debtor and creditor— Husband and wife.</p> <p>A wife who owns a policy of insurance on lier own life may assign it to her husband, and he in turn may assign it to a creditor of his own in payment of a valid debt.</p> <p>A creditor may lawfully take out a policy on the life of his debtor in an amount sufficient to cover the debt, with interest, and the cost of such insurance, with interest thereon during the period of the expectancy of life of the assured according to the Carlisle tables.</p> <p>A policy of insurance on the life of a wife was assigned by the wife to her husband and he in turn assigned it to a creditor in payment of a debt of $1,900. The policy was for $5,000, and the wife’s expectancy of life was about twenty-six years. The amount of premiums that the creditor would have been obliged to pay if she had lived out her expectancy would havq been about $4,500. The wife died a few months after the creditor acquired title to the policy. Held, that the creditor was entitled to the whole amount of the policy.</p>

Appeal, No. 372, Jan. T., 1898, by plaintiff, from order of C. P. Bradford Co., Feb. T., 1897, No. 172, refusing to take off nonsuit. Trespass to recover damages for personal injuries.

<p>Appeal, No. 264, Jan. T., 1898, by defendant, from judgment of C. P. No, 1, Phila. Co., June T., 1893, No. 41, on verdict for plaintiff.</p> <p>Trespass for injuries to real estate. Before Biddle, 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>1. Under all the evidence the verdict should be for the defendant. Answer: Refused. [1]</p> <p>2. The plaintiff has failed to show that since April 18, 1892, the date of the previous verdict, there has been any change in the condition of the property of the defendant or any new causes of injury. Under these circumstances the plaintiff is bound by the verdict and judgment in the previous cases between the same parties. Answer: Refused. [2]</p> <p>3. The question of heat coming from defendant’s boilers was tried in a previous action and cannot be made the basis' of damages in this action. Answer: Refused. [3]</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

Appeal, No. 418, Jan. T., 1898, by the Fidelity Insurance, Trust and Safe Deposit Co., from decree of O. C. Pkila. Co., April T., 1898, No. 264, sustaining exceptions to adjudication. Exceptions to adjudication. From the record it appeared that Elizabeth Lathrop, a widow, died a resident of Philadelphia on October 2, 1892.

<p>Appeal, No. 2, Jan. T., 1899, by Helen T. Kirk, from judgment of C. P. No. 1, Phila. Co., March T., 1898, No. 410, on verdict for plaintiff.</p> <p>Issue devisavit vel non.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s first point is given in full in the opinion of the Supreme Court. The fourth point asked instruction that the signature of Dr. Millick invalidated the will.</p> <p>Yerdict and judgment for plaintiff.</p> <p>Errors assigned were (1, 2) refusal of clefendant’s first and fourth points, quoting them.</p>

<p> Municipalities—Powers—Contracts. </p> <p>Any fair, reasonable doubt as to the existence of power in a municipal corporation is resolved by the courts against its existence, and therefore denied.</p> <p>A municipal corporation does not possess, and cannot exercise, any other than the following powers: (1) those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation,—not simply convenient but indispensable.</p> <p>The agents, officers or city councils of a municipality cannot bind the corporation by any contract not within the scope of its powers.</p> <p>As neither principal contractors nor subcontractors have a right of lien on public buildings, or a right to attach money in the hands of a municipality, city councils have no authority whatever, express or implied, to provide a new remedy in the nature of an attachment, lien or trust of any kind whereby subcontractors may enforce payment of their claim out of money due the principal contractor.</p> <p>Councils of a city of the first class may not by ordinance empower the director of public works to retain money due one of the city’s contractors, in order that his creditors, who are not parties to the contract, may proceed by bill in equity, or otherwise against him, and thus have the money applied to their claims.</p>

<p>Appeal, No. 398, Jan. T., 1897, by plaintiff, from decree of C. P. No. 1, Phila. Co., March Term, 1897, No. 1171, dismissing bill in equity.</p>

<p> Practice, O. P.—Trial—Refusal to answer points. </p> <p>It is entirely within the discretion of the trial judge to refuse to read points to the jury, but to state the law to them in his own terms.</p> <p> Mortgage—Failure of consideration—Evidence. </p> <p>On a scire facias sur mortgage for $2,500, where the defendant alleges and the plaintiff admits that only $1,000 was paid to defendant, but the plaintiff avers that the remaining $1,500 was to be applied to the payment of a debt of defendant’s brother, and this is denied by the defendant, and the evidence is absolutely contradictory as to whether the mortgage was read to defendant at the time of its execution, the ease is for the jury, and a verdict and judgment for merely the amount which the defendant actually received will be sustained.</p>

<p> Principal and surety—Failure of some of the obligors to sign bond. </p> <p>The omission of one of several obligors named in the body of a bond to join in the execution of it is no defense to the obligors who do sign.</p> <p> Principal and surety—Appeal bonds—Ejectment in federal court—Improvements. </p> <p>Damages for loss of rentals may be recovered on an appeal bond given in an ejectment case in the federal court; and such damages may include the rental value of a part of the premises in the possession of a tenant under a lease which had expired before the appeal was taken, if it appears that the tenant had paid no rent pending the appeal.</p> <p>In a suit upon an appeal bond in ejectment a claim by defendant for improvements cannot be made for a frame building erected on piles so that it could be removed; nor can allowance be made for repairs, after the institution of the action of ejectment, on an old house, to render it inhabitable.</p>

<p> Assignment for creditors—Auditor—Discretion of court—Appeals. </p> <p>The Supreme Court will not consider an appeal from an order refusing to appoint an auditor to distribute a fund in court, where it appears that the fund was a portion of an assigned estate which had been paid into court to secure the only creditor who had refused to agree to a reassignment, and who, desiring a jury trial, had instituted a suit in another court, which he had discontinued, and had then instituted a second suit in the court into which the fund had been paid, and where the second suit was pending at the time the appeal was taken.</p> <p>The regular practice in such case would have been for the court having custody of the fund, to direct and try the issue in the first instance. If the creditor unduly delays the issue the court may release the fund.</p>

Appeals, Nos. 44 and 45, Jan. T., 1899, by G. Washington Powell and William Gorman, executors of Richard Wistar, deceased, and G. Washington Powell and William Gorman, executors of William Lewis Wistar, deceased, from decrees of O. C. Phila. Co., Oct. T., 1894, Nos. 70 and 71, dismissing exceptions to adjudication. Exceptions to adjudication.

Appeal, No. 57, Jan. T., 1899, by William F. Harrity, assignee, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1896, No. 372, on verdict for plaintiffs. Attachment execution. Before Pennxpacker, P. J. The facts sufficiently appear by the opinion of the Supreme Court. Verdict and judgment for plaintiffs. William F. Harrity, assignee for creditors of Lavinia B. C. Thompson, appealed. Error assigned was in refusing to give binding instructions for garnishee.

<p> Contracts—Gambling contracts—Speculation in stock—Margin. </p> <p>A purchase of stock for speculation, even when done merely on margin, is not necessarily a gambling transaction. If there is in good faith a purchase, then the delivery may be postponed, or made to depend on a future condition, and the stock carried on margin or otherwise, in the mean while, without affecting the legality of the operation. It is only where there is not under any circumstances to be a delivery, as part of and completing a purchase, that the transaction is a gambling contract.</p> <p>An agreement for an actual sale and purchase of stock will make the transaction valid, although it originated in an intention merely to wager.</p> <p>The books of a broker showed on their face that stocks ordered to be bought or sold by a customer were actually bought and sold. The first transaction was an actual purchase, of stock and delivery of certificate to the customer. The close of the transactions two years and a half later showed a large number of shares in the hands of the brokers bought for the customer and of which he demanded delivery, and other shares sold for him which he had in his possession ready to deliver. As to the intermediate transactions the customer testified that it had always been his intention to buy the stocks out and out and pay for them, and that he had the money with which to do it. Held, that the evidence was not sufficient to sustain an auditor’s finding that the transactions were of a wagering character.</p>

<p>Appeal, No. 19, Jan. T., 1899, by Samuel H. Austin, Jr., from order of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 556, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, Francis Shunt Brown, Esq., reported as follows:</p> <p>A. A. Hirst, Esq., presented claim of S. H. Austin, Jr., for $5,830.40. This claimant had dealt with L. H. Taylor & Company for some time, but his account was closed in March, 1895. On October 17, 1895, he paid Taylor & Company $1,000 and ordered the purchase of 200 shares of American Tobacco Company common stock for $9,312.50. On October 31 he purchased 100 shares of Electric Storage Company stock, selling same on that day at an advance of over $400. On November 7 and 11 he purchased in three lots a total of 600 shares of American Tobacco Company common stock, costing about $26,000. On the latter date the Electric Storage Company stock was ordered sold, and $3,000 cash was paid on account. On November 14, two lots of 200 shares each of American Tobacco Company common stock were sold for a total of $18,037.50. On November 18,19 and 20, 1895, the claimant ordered the purchase of three lots of 200 shares each of American Tobacco Company common stock, and paid $3,000 additional on account. On November 26,100 shares of American Sugar Refining Company common stock and 200 shares of American Tobacco Company common stock, and on November 27, 100 shares of the latter stock were ordered purchased, making Mr. Austin’s debit balance $65,328.67. On November 29, 200 shares of American Tobacco Company common stock and 100 shares American Sugar Refining Company common stock were ordered sold. On December 20,1895, claimant’s account is in debit $39,457.10 as against which L. H. Taylor & Company held 1,000 shares of American Tobacco Company common stock and 100 shares of American Tobacco Company preferred stock. This account shows seven or eight completed transactions.</p> <p>After a most careful consideration of all the evidence in this case, having regard to the presumption of regularity, I am obliged to find, from the number and character of the transactions, that this claimant merely intended to gamble upon the rise and fall of the market, and I therefore disallow his claim.</p> <p>On exceptions the auditor reported as follows:</p> <p>It was strongly urged, on the argument of these exceptions, that I erred in ignoring the claimant’s testimony that he bought the stocks as a “ permanent investment,” and that he was a man of large means. The claimant’s testimony as to what he intended to do, however, is strangely at variance with the admitted facts. From October 17, 1895, to the time of the failure, he bought and sold seven or eight lots of stock. His sales would often follow two or three days after his purchases. I am at liberty under the decisions to go beneath the surface and find the real character of the transactions, and it is a stretch of language to say that a man who buys stocks and habitually sells the same a day or so thereafter, is purchasing for “ investment.” At the urgent request of counsel, I heard additional testimony at the time of the argument of the exceptions, to the effect that Mr. Austin was worth $1,000,000, and that he had stated prior to the assignment that he was buying this stock for investment. I find that the claimant was a man of wealth. I am unable to see, however, how his statements as to his intentions are legal evidence. The fact remains that instead of having any stock delivered to him he repeatedly bought and sold, taking the profits thereof. I overrule the exceptions.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 21, Jan. T., 1899, by Harry J. Lex, from order of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 556, dismissing exceptions to auditor’s report. Exceptions to auditor’s report. The auditor, Francis Shunt Brown, Esq., reported as follows : Harry J. Lex claimed $6,242.22. His transactions from April 21,1893, to the time of the assignment covered five pages of L. H. Taylor & Company’s ledger.

Appeal, No. 400, Jan. T., 1898, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1897, No. 858, on verdict for plaintiff. Assumpsit against the makers of a promissory note. At the trial it appeared that the note in suit had been indorsed by George H. Boulter, and had been discounted by the plaintiff. Subsequently Boulter confessed judgment to William P. Datz in trust for the sum of $1,400 for himself and $14,100 for the plaintiff bank.

<p>Appeal, No. 87, Jan. T., 1899, by H. Victoria Ellis, from order of C. P. No. 2, Phila. Co., Dee. T., 1893, No. 595, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The facts appear by the opinion of Sultzberger, J., which was as follows :</p> <p>When this case was before us on the first report of the auditor, the facts did not in all respects tally with those found in his second report, and some of the questions arising on the exceptions to the latter are, therefore, new. As the matter stands now, it appears that on March 21, 1892, Amos Ellis acquired an equitable estate in the premises in question by an agreement of sale between him and the owner, DuPont. On December 22, 1892, he made a contract with Amweg, the builder, to erect a house and stable on the lot, which contract contained the provision that Amweg would, “ as speedily as possible, and without any delay, fully complete the work herein contracted for.” On February 11, 1893, Amweg staked out the location of the building and began to put up outhouses needed in connection with the work. On February 15, 1893, he commenced the actual excavation. On March 1, 1893, Amos Ellis took the legal title by deed dated January 31, 1893, and contemporaneously delivered a bond and mortgage to the Commonwealth Title Insurance and Trust Company, dated February 27, 1893, for $10,000, that sum being needed and used as part of the purchase money of the property. On the same day both deed and mortgage were recorded. The auditor has found that about a week after work was begun, Miss DuPont, the owner, learned of it, and insisted on its being stopped; that Amweg was notified, and promised to cease immediately, and concludes that the work was a continuing trespass until after the settlement of March 1. He also found that “ it has not appeared that there was an intention on the part of the vendor, or even on that of the mortgagee, that any part of the vendor’s lien for purchase money should be kept alive by the mortgage.” His conclusions of law were: First, that the mortgage had precedence, because all the work done prior to March 1 was a continuing trespass; second, that Amweg has no right to a lien, because of noncompliance with the conditions precedent, and the auditor distributed the fund in court in payment of the mortgage in full, and the balance ratably among the subcontractors.</p> <p>Exceptions were filed on behalf of H. Victoria Ellis, as owner, Amos Ellis having, on April 3,1893, conveyed the premises to her; on the part of Amweg, the builder, because of the rejection of his claim; and on the part of the architect and subcontractors because of the award to the mortgagees. Three questions arise on these exceptions: 1. Had the lien of the mortgage precedence over the claims of the contractor, architect and subcontractors? 2. Had the contractor a right of lien? 3. Had the subcontractors a right of lien ?</p> <p>As to the mortgagee’s right: The auditor appeared to be of the opinion that though the mortgage in this case was given for the purpose of paying the amount received therefor on account of the land, which amount was actually paid at the moment of the delivery of the deeds of conveyance and mortgage, yet, because certain formal words had not been used ascribing a specific intention to an act which was in itself the most powerful evidence of that intention, the mortgage could not be classed among purchase money mortgages ; and it was strenuously urged, upon the argument, that no mortgage can be a purchase money mortgage unless it be made to the vendor, and that it cannot be in the name of another unless by the act or deed of the vendor, as no other than the vendor or those representing him can have title to purchase money as such. As early as 1812 the Supreme Court of the state of New York, in the ease of Jackson v. Austin, 15 Johnson, 477, held that where the purchaser gave at the same time with the deed a mortgage to secure the purchase money, although to another than the vendor, the mortgagee was entitled to his lien for a purchase money mortgage. The court held that under the statute which declared that whenever lands are sold and conveyed and a mortgage is given by the purchaser at the same time to secure the payment of the purchase money, such mortgage shall be preferred to any previous judgment which may have been obtained against any such purchaser, that a mortgage of the land described came within the letter of the act. They pointed out that the act probably contemplated cases where the mortgage was given to the seller of the land; but they held that the words of the act not being restricted to such cases, a just and fair construction warrants its application to the present case. An examination of our Pennsylvania statute of March 28,1820, P. L. 141, sec. 1, entitled “An act relative to mortgages,” shows that the statute made no such distinction as was in the mind of the auditor. The words are: “ Provided that no mortgage given for the purchase money of the land so mortgaged shall be affected by the passage of this act, if the same be recorded within sixty days from the execution thereof.” The test is not whether the mortgage for the purchase money is given to the vendor, but whether it is to be used as purchase money. The circumstances of this case are such as to leave no doubt whatever upon the subject. The purchaser had paid $500 to bind the bargain. The vendor would not deliver the deed until $10,000 more was paid on account of the balance of purchase money. Deeds of conveyance and mortgage were prepared. The parties got together on March 1,1893, and the $10,000 of the mortgagee were physically handed over to the vendor, in consideration of which the deed of conveyance was delivered to the mortgagor and the deed of mortgage to the mortgagee. The whole constituted one act, indivisible in fact, and only capable of being split into several by logical subtlety. Any one examining the record to ascertain the owner’s title was confronted with the obvious facts. The law still remains as it was laid down by the Supreme Court in Cohen’s Appeal, 10 W. N. C. 544, decided in 1881. Mr. Justice Gkeen, delivering the opinion of the Court, said that a judgment may be considered as a purchase money judgment, even if not so stated on its face, such statement being unnecessary where in point of fact the lien, whether it be judgment or mortgage, is given for purchase money. On the argument, it was contended that a different principle had been established in the case of Albright v. The Association, 102 Pa. 411. Nothing can be further from the truth. Mr. Justice Clabk, in his opinion, distinctly affirms the decision in Cohen’s Appeal, in the following language: “ It is not even necessary that the lien should disclose upon its face the material fact that it is for purchase money, if, in point of fact, whether it be a mortgage or judgment, it was given for purchase money: ” Parke v. Neeley, 90 Pa. 52; Cohen’s Appeal, 10 W. N. C. 544. We approve the finding of the learned auditor, that the contractor’s entry on the land prior to the delivery of the deed by the vendor was a trespass. Mere articles of agreement do not entitle a purchaser to take possession of land until he complies with their terms. Such compliance did not take place in this case until March 1, 1893. Inasmuch as the lien of the purchase money mortgage attached at the moment of the delivery of the deed, it was impossible for the contractor’s lien to take precedence of the mortgage. The learned auditor was right in awarding to the mortgagees the full amount of their mortgage and interest.</p> <p>As to the contractor’s right: We come, nest, to the question of the contractor’s right of lien. This was contested by the architect Fielding, by the subcontractors, and by H. Victoria Ellis, the mother of the defendant, who was his successor in the title. For reasons assigned in our previous opinion, we are of opinion that the waiver in the tenth clause is not intended to bind the principal contractor. The subcontractors, as will presently be shown, have no standing to contest; and, therefore, the only persons remaining in opposition are Fielding, the architect, and Mrs. Ellis. Fielding’s claim, however, is like Amweg’s—that of a contractor with the owner, and stands on the same footing. We are, therefore, remitted to the plain question, whether H. Victoria Ellis, who stands in' the shoes of her son, Amos Ellis, shall be allowed to overthrow the contractors’ liens. Her rights are precisely the same as those of Amos Ellis, and rise no higher. We have no doubt that, as between Amos Ellis and his contractor, the latter had a right to file a lien for the amount of work he had done, and thus protect himself as far as possible against loss by the admitted insolvency of the owner, and his consequent inability to bring the work to a conclusion, and Amos Ellis ought not to be allowed to put into his pocket the proceeds of the material and labor furnished by the contractor. He is estopped from setting up the contractor’s trespass, because it must be equally imputed- to him, and because, in any event, the permission by Ellis to the contractor to go on with the work after possession of the land, was obtained on March 1, 1893, was a ratification by Ellis of all that had been done before. As against H. Victoria Ellis, therefore, the contractor, Amweg, and the architect, Fielding, are entitled to recover pro rata. We are, therefore, of the opinion that the learned auditor erred in overruling the contractor’s claim.</p> <p>As'to the subcontractors’ right: In our opinion on the first report we instructed the learned auditor that the subcontractors had a right of lien, and he properly followed the ruling. After the proceedings before the auditor were closed, the Supreme Court, in the case of Morris v. Ross, 184 Pa. 241, held that “ a contract for the erection of a building, which provides that ‘ no lien shall be filed against the building by either the contractor or subcontractor,’ and in a subsequent paragraph further provides that the contractor shall give the architect, if required, good and sufficient evidence that the premises are free from all liens and claims chargeable to the contractor, and that the owner shall have the right to retain out of any payment due an amount sufficient to indemnify him against such lien or claim, is prohibitive of the right of the subcontractor to enforce a lien for materials furnished against the premises.” This case is in point, and practically reverses our decision on the auditor’s first report. The claims of the subcontractors must, therefore, be disallowed.</p> <p>The exceptions of H. Victoria Ellis and of the subcontractors are dismissed. The first exception of Mantle Fielding is sustained ; the others are dismissed. The exceptions of the plaintiff are dismissed.</p> <p>And now, December 24, 1898, the report is referred back to the auditor to make distribution in accordance with this opinion.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 79, Jau. T., 1899, by-Frederick J. Amweg, from order of C. P. No. 2, Phila. Co., Dec. T., 1893, No. 595, dismissing exceptions to auditor’s report. Exceptions to auditor’s report. The facts appear by the report of Ellis’s Appeal, ante, p. 321.

<p>Appeal, No. 380, Jan. T., 1898, by city of Philadelphia, from order of Q. S. Phila. Co., certified by the Superior Court.</p> <p>Appeal from the court of quarter sessions to the Superior Court, and certified by the latter court to the Supreme Court.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in entering judgments in favor of claimants, and in making absolute rules for mandamus against the city of Philadelphia.</p>

<p> Promissory notes—Foreign attachment—When suit may be begun after dishonor of note. </p> <p>It seems that, where a note is made payable at a bank, a writ of foreign attachment may issue after bank hours the same day that the note matures and is dishonored.</p> <p> Malicious abuse of process—Foreign attachment. </p> <p>When process issued is legal, the plaintiff is answerable only for a malicious abuse of it, and where the circumstances afford no inference of malice, actual malice must be proved.</p> <p>Where a writ of foreign attachment is issued on the same day that a note matures and is dishonored, and it appears that the preponderance of judicial decision and opinions of text writers supports the right to issue the attachment on such a day, and there is no judicial opinion to the contrary in the state where the attachment issues, and there is no evidence whatever of actual malice, an action for abuse of civil process in issuing the attachment cannot be sustained.</p>

<p> Negligence—Street railways—Grossing streets—Contributory negligence •—Question for jury. </p> <p>A foot passenger crossing a street, especially a wide one with double tracks, does not do his whole duty by a single look before starting. In the space where cars and other vehicles have concurrent rights with his own, he is bound to keep eyes and ears open for new dangers, and to use reasonable care in avoiding them.</p> <p>A woman stopped at the curb of a street, and looked before attempting to cross. The trolley car that subsequently struck her was then approaching at a distance of 185 feet. She stood there “sometime” after looking, and while crossing the track she was struck. The evidence was conflicting as to the speed of the car and its distance from the woman immediately before she stepped on the track. Held, that the question of contributory negligence was for the jury.</p>

<p>Constitutional law — School districts — Boroughs—Title of act—Act of June 1, 1887.</p> <p>Where a general title sufficient to cover all the provisions of an act is followed by specifications of the particular branches of the subject with which it proposes to deal, the scope of the act is not limited, nor the validity of the title impaired, except as to such portions of the general subject as legislators and others would naturally and reasonably be led by the qualifying words to suppose would not be affected by the act.</p> <p>The Act of June 1, 1887, P. L. 285, entitled “ A further supplement to an act approved June 11, 1879, entitled ‘ A supplement to an act for the regulation of boroughs,’ approved April 3, 1851, providing for the adjustment of indebtedness and government of the boroughs, townships and school districts affected by changes of limits of any borough in the commonwealth,” is not unconstitutional as violating the provisions of the constitution relating to the titles of statutes; and the provisions of the act authorizing the court to ascertain the value of the property retained by the old borough and that transferred to the new, respectively, and to decree a money payment by the one having an undue proportion of the former joint property, are sufficiently indicated in the title.</p> <p>The Act of June 1, 1887, P. L. 285, is not unconstitutional as a special and local act regulating the affairs of school districts within the prohibition of section 7 of article 3 of the constitution. The act is neither special nor local.</p> <p> Constitutional law—Presumption in favor of validity of statutes. </p> <p>All the presumptions are in favor of the validity of statutes, and courts are not to be astute in finding objections to them.</p> <p>The restrictions of the constitution upon legislation apply to direct legislation, and not to the incidental operation of statutes, constitutional in themselves, upon other subjects than those with which they directly deal.</p> <p> Constitutional law—Classification—School district. </p> <p>It seems that there is no constitutional objection to the classification of school districts.</p> <p>Chalfant v. Edwards, 173 Pa. 246, commented upon and explained.</p>

<p> Insurance—Fire insurance—Value of property. </p> <p>Where by the terms of a policy of fire insurance on a barn, the insurers are only liable for the “ actual cash value of the property ” at the date of the fire, evidence of the price of lumber and shingles at the date of the fire, while by no means conclusive as to the cash value of the barn, is evidence bearing on the question. In such a case a witness who is not a carpenter may be asked what it would cost to rebuild the barn in the same condition in which it was at the date of the fire. The witness’s qualifications could be ascertained upon cross-examination, and if there was any material</p> <p>change in the cost between the fire and date of trial, this could also be ascertained upon cross-examination.</p> <p>On a policy of fire insurance a letter from the insurance company to the insured demanding a more specific statement of the value and kind of lumber in the building destroyed, and for verified plans of the building, is admissible in evidence for the purpose of showing that the company had called the insured’s attention specifically to his duty under the policy, which it alleged he had not performed, as a condition precedent to a recovery.</p> <p>Where the property insured was an old barn, and the policy provides that the company shall only be liable for “ actual cash value of the property ” at the date of the fire, evidence offered by the company bearing on the cash value of the property at the date of the fire is admissible.</p> <p>Where a policy of fire insurance provides that the detailed statement of loss must be furnished within sixty days from the date of the fire, and it appears that immediate notice of the fire was given; that the company attempted to settle the loss, and then demanded a detailed statement of the loss, which was furnished within thirty days, and then demanded a fuller one, which was furnished one day after the expiration of sixty days, the insured’s right to recovery is not defeated by the fact that the final statement was not furnished within sixty days.</p> <p> Insurance—Fire insurance—Proofs of loss—Evidence. </p> <p>Proofs of loss made out by the insured cannot be received in evidence for the jury, nor be read to them. They are only evidence for the court, that it may determine whether a condition precedent to recovery has been sufficiently complied with to warrant the institution of suit.</p>

<p> Judgment—Subrogation—■Satisfaction. </p> <p>. Judgment was recovered by the sheriff against a defaulting bidder at a sale. The defendant subsequently filed a petition setting forth that the judgment was for the benefit of the widow of the former owner who was a creditor of her husband’s estate, and that she was indebted to the defendant. He prayed that he might be subrogated to the claim of the widow and that the judgment against him be decreed to be satisfied. The guardian of a daughter of the former owner filed an answer from which it appeared that the largest equity was in the daughter, and that the wife’s payments on the judgment against her husband’s estate, if not uncollectible, because voluntary, were barred by the statute of limitations. Held, that there was no error in dismissing the petition for subrogation.</p> <p>Appeals—Act of May 19, 1897—Practice, Supreme Court.</p> <p>Where the attention of the Supreme Court is called to a desire for an opportunity for appeal by the winning party in the court below, in case he should lose on the appeal by his opponent in the Supreme Court, the practice in the future will be merely to reverse the judgment and send the record back to the court below to enter suoh judgment as it should have entered in the first instance. The time for appeal by a different party will then begin to run from such judgment so that no one will be barred without a fair opportunity to be heard.</p> <p>Where the Supreme Court in reversing the court below inadvertently entered judgment for the plaintiff on the verdict, and the time for defendant’s appeal has passed, it will, subsequently on a rule to open or modify the previous judgment, rescind so much of it as gives judgment for the plaintiff, but let the reversal of the judgment of the court below stand, and remit the record of the court below for such judgment as law and justice require.</p>

<p> Assignment for creditors—Partnership—Removal of assignee. </p> <p>Where an assignment for creditors of the partnership and individual property has been made by a partnership and its members, and subsequently another person is substituted in the place of the original assignees, and the estates are so mingled and interwoven that it would be scarcely possible to treat them separately, such substituted assignee may be removed by the court from the administration of all of the estates upon the petition of an individual creditor of one of the partners praying for his removal as to such partner. As his appointment was a unit, his removal should be the same.</p> <p> Assignment for creditors—Misconduct of assignee—Removal. </p> <p>An assignee for creditors will be removed where it appears that he was guilty of waste and mismanagement; that he paid claims which were not legitimate; that he incurred the entirely unnecessary expenditure of a very considerable amount of money for the removal of a costly monument to another locality; that he paid debts which had been contracted by the assignors after the date of the assignment; that he paid very considerable-sums for repairs to the real estate as to some of which it was alleged there were no actual repairs made, and as to others that the amounts paid were excessive and unreasonable.</p>

<p>Soldiers' homes—Pensions—Voluntary payment—Acts- of June 3, 1885, and May 4, 1893.</p> <p>The rule prescribed for admission to the soldiers’ and sailors’ home established by the Act of June 3, 1885, P. L. 62, as amended by the Act of May 4,1893, P. L. 30, that a member of the home who is a pensioner shall pay over to officers of the home half the amount which he draws in excess of $4.00, is not in conflict with the act of congress of February 28, 1883, making void certain pledges, assignments, etc., of pensions.</p> <p>The Act of June 3,1885, P. L. 62, as amended by the Act of May 4,1893, P. L. 30, establishing a soldiers’ and sailors’ home, and by section 7 conferring on the commission in charge “ powers to adopt rules and regulations for its management and government, .... and to formulate rules for the admission of disabled and indigent soldiers not inconsistent with the preceding section,” though not prescribing as a qualification for admission of pensioners that they pay part of their pension money to the home, yet not prohibiting it as such, allows the board to prescribe a rule making such payment such a condition.</p> <p>A rule making it a condition of admission to a soldiers’ and sailors’ home that an applicant shall pay part of his pension to the home does not contravene the constitutional prohibitions against taking the property of citizens without due process of law and without just compensation.</p> <p>Where an applicant for admission to a soldiers’ home signs an agreement to obey the regulations of the home, and before signing there is read over to him a regulation that pensioners shall pay over to the home a certain proportion of their pension money, and after admission to the home he voluntarily pays over the portion of his pension money described by the regulations, he cannot recover such payment from the home. The regulation in question is not an unreasonable one, and does notviolate that provision of the state and federal constitutions which prohibits the taking of property of a citizen without due prooess of law, and without making just compensation.</p>

<p>Appeal, No. 197, Jan. T., 1899, by plaintiff, from judgment of C. P. Lancaster Co., Nov. T., 1894, No. 7, on verdict for defendant.</p> <p>Assumpsit for money had and received. Before Livingston, P. J.</p> <p>At the trial plaintiff offered to prove by Samuel B. Nissley that “ before six years had expired from the passage of the act of 1887, he had an interview with Isaac Brubaker, in the presence of Rebecca Nissley’s husband, H. B. Nissley; that, in that interview, he admitted that he was with his daughter on or about April 1,1873, when she passed title for the property near Landisville, this county, to one John Rohrer, and that, when the purchase money was paid, he, Isaac Brubaker, undertook to act for his daughter and receive the $3,045 of the purchase money, which he admitted at this interview in the presence of H. B. Nissley with a witness that he had never repaid to her.” The offer was objected to by defendant; disallowed and bill sealed for plaintiff. [5]</p> <p>Plaintiff offered to prove by Samuel B. Nissley that Henry N. Eby, execntor of Rebecca Nissley, was notified from time to time to bring suit for the recovery of this claim, and that he refused and neglected so to do, and that he was notified shortly after the death of Rebecca Nissley to bring it.</p> <p>The offer was objected to by defendant, disallowed and bill sealed for plaintiff. [6]</p> <p>Samuel B. Nissley was asked:</p> <p>“ Q. Did or did not he admit to you that these checks represented part of the purchase money of Rebecca’s property, which she had sold to John Rohrer? ”</p> <p>This question was objected to by defendant, disallowed and bill sealed for plaintiff. [7]</p> <p>“ Q. Did he or not admit to you that he drew the money on these two checks; that the money belonged to Rebecca Nissley and that he has never repaid it to her?”</p> <p>This question'was objected to by defendant, disallowed and bill sealed for plaintiff. [8]</p> <p>“ Q. Did he or not admit to you that he was present with lfis daughter at the time the checks were given and was acting for her and received the money for her?”</p> <p>This question was objected, to by defendant, disallowed and bill sealed for plaintiff. [9]</p> <p>Plaintiff offered to prove by A. F. Root that Isaac Brubaker admitted that he had received $5,000 of moneys, belonging to Rebecca Nissley and had lent it for her to J. Hoffman Hershey, for a period of five years, without interest, and that he agreed that he would account and pay to her the interest whenever called upon to do so on the said sum of $5,000.</p> <p>This question was objected to by defendant, disallowed and . bill sealed for plaintiff. '[10]</p> <p>Plaintiff offered to prove, by A. F. Root, that Isaac Brubaker, the decedent, admitted to him, in the presence of Benjamin Root, Sr., deceased, about April 1, 1868, that he had received $5,000 of moneys belonging to Rebecca Nissley, and had invested same for her with one J. Hoffman Hershey, for a period of five years, without interest, in consideration of some advantage to him, Isaac Brubaker; and that he, Isaac Brubaker, said, in the presence of the witness on the stand, that he could, or would, reach into his pocket and pay the interest on this money to his daughter Rebecca Nissley; that this conversation occurred about a mile this side of Salunga; and that this information was not communicated by the witness to any one until more than two years after the death of Rebecca Nissley.</p> <p>This offer was objected to by defendant, as it is thirty years ago, disallowed, and bill sealed for plaintiff. [11]</p> <p>The court charged as follows:</p> <p>[The testimony has been closed on the part of the plaintiff, and there being nothing upon which we can direct a verdict in favor of the plaintiff, we shall have to tell jmu that your verdict should be for the defendant in this case. No evidence has been offered in our judgment to sustain a verdict for the plaintiff. The clerk will take the verdict for the defendant.] [12]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (5-11) rulings, on evidence, quoting the bill of exceptions; (12) charge of the court, quoting it.</p>

Appeal, No. 182, Jan. T., 1898, by defendant, from judgment of C. P. Lancaster Co., June T., 1895, No. 49, on verdict for plaintiff. Assumpsit on promissory notes.

Appeal, No. 102, Jan: T., 1899, by plaintiff, from judgment of C. P. Northumberland Co., Sept. T., 1898,No. 228, on verdict for defendant. Ejectment for a lot of land in Sunbury. Before Sav- .

Petition for writ of habeas corpus. Miscellaneous Docket No. 1, No. 356. The petition of J. McD. Scott alleged as follows : 1. He is a citizen of the state of Pennsylvania, resident in the county of Allegheny in said state; until October 12,1898, he was engaged in the wholesale shoe business in the city of Pittsburg, and on that date he executed and delivered to J. Sharp McDonald a deed of voluntary assignment of all the estate, real and personal, of him, the said J. McD.

<p>Principal and surety—Bond of administrator—Lien of decedent's debts— Act of February 24, 1834.</p> <p>The liability of a surety on a bond given by an administrator who lias been ordered to sell real estate, is within the meaning of section 24 of the Act of February 24, 1834, and in order to recover against the widow and heirs of the surety an action must be commenced, or a copy or written statement of the bond must be filed, within five years after the surety’s death.</p>

<p> Practice, G. P.—Verdict on conflicting evidence. </p> <p>Where there is no controversy as to the law, and the trial court in its instructions fairly submits the case to the jury, the court will not disturb a verdict on conflicting evidence.</p> <p> Practice, G. P.—Trial—Points—Exceptions—Gharge. </p> <p>If a trial judge does not answer points presented to him, but hands them back to counsel with the statement that he believes that he has answered the points in his general charge, it is the duty of counsel if he thinks that the points have not been covered by the charge to except to the action of the court, and thus have the points made part of the record. If this is not done the Supreme Court will dispose of the case as though no prayers for instructions had been presented.</p> <p>The charge of the court in the review of the evidence must not be inaccurate on matters of substance, and must not omit or slur over strong points on either side; but how much detail shall be entered into; how minute the reference to the testimony shall be, and how extended the discussion of it; how far arguments shall be noticed, their true bearing and relevancy pointed out, and the extent to which they are supported by the evidence, must be left largely to the discretion of the trial judge.</p>

<p>Appeal, No. 445, Jan. T., 1897, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1897, No. 501, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit for rent. Judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the affidavit of defense are set forth in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court making absolute a rule for judgment.</p>

<p>Appeal, No. 393, Jan. T., 1898, by M. F. Gulick, from order of Q. S». Northumberland Co., upon petition in election contest.</p> <p>Petition in election contest alleging that eleven illegal ballots were counted by the board of election for M. F. Gulick, for the office of assessor, and that if said eleven ballots had been rejected Theodore Robinson would have had a majority, and he should, therefore, have been declared elected.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The disputed ballots were in the following form:</p> <p>“ A Cross (X ) Markedin the Square at the right of The Name of Each Candidate, Inside the line enclosing the column Indicates a Vote for Each Candidate thus Marked.</p> <p>“ If a Cross (X ) be Marked Within the Circle it will be Equivalent to a Mark Opposite Every Name in the column. Those who do Not desire to Vote a Straight Ticket Must not Mark a cross Within the Circle at the head of the column.</p> <p> </p> <p>Error assigned was the order of the court declaring Theodore Robinson to be duly elected assessor.</p>

<p> Principal and surety—Bond— Construction of bond. </p> <p>In an action against a surety, the obligation of a bond cannot be extended beyond the plain import of the words used.</p> <p> Bes adjudicata—Scope of the rule. </p> <p>The rule that what has once been judicially determined shall not again be made the subject of litigation, extends to every question in the proceeding which was legally cognizable.</p> <p> Principal and surety—Contractor's bond to municipality—Bes adjudicata. </p> <p>Under an ordinance requiring a municipal contractor to enter security for the faithful performance of the contract, the conditions of the contractor’s bond were that he should complete the work in a satisfactory manner, and pay or secure the wages of laborers and the price of materials used. An action was brought on the bond in the name of the city to the use of certain persons who furnished materials. It appeared that the contractor had previously sued the city and recovered a balance on his contract. A general ordinance of the city provided that contractors should give additional bonds to the city for the use of any person who might be aggrieved by their failure to pay for work done or materials furnished, but no additional bond was given. Held, (1) that the bond did not authorize arecovery to the use of laborers and material men; (2) that the action could not be maintained as the matters in dispute had been judicially determined in the action between the contractor and the city.</p>

Appeal, No. 156, Jan. T., 1899, by Andrew J. Myers et al., from order of O. P. York Co., discharging rule to set aside assignee’s sale. Rule to set aside an assignee’s sale. The court discharged the rule, Stewaht, J., filing the following opinion: I am not convinced that this sale should be set aside.

<p>Appeal, No. 11, Jan. T., 1898, by defendant, from orders of C. P. Northumberland Co., Sept. T., 1894, No. 365, discharging certain rules.</p> <p>Rule to show cause why the levy on a testatum fi. fa. to Schuylkill county should not be restricted to certain land in Schuylkill county.</p> <p>Rule to show cause why judgment should not be stricken from the record for want of jurisdiction.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were orders discharging rules.</p>

Appeal, No. 4, May T., 1899, by defendants, from judgment of C. P. Dauphin Co., Sept. T., 1896, No. 292, on verdict for plaintiff. Replevin to determine the ownership of certain brick drying machines. Before Simonton, P. J. At the trial it appeared that plaintiff was a corporation of the state of Illinois.

<p>Appeal, No. 27, May T., 1899, by plaintiff, from order of C. P. Dauphin- Co., Commonwealth Docket, 1898, No. 624, refusing mandamus.</p> <p>Petition by the relator, contractor for the public printing and binding of the commonwealth, for a mandamus, directed to respondent, superintendent of public printing, commanding him to audit and certify a bill for publishing a pamphlet ordered by the general assembly.</p> <p>The case came before the court of common pleas on the petition, answer and testimony. Most of the material facts appear by the opinion of the Supreme Court.</p> <p>The opinion of McPherson, J., was in part as follows :</p> <p>On April 6 the following paper was prepared:</p> <p>“ Harrisburg, Pa., April 6,1897.</p> <p>“ Superintendent of Public Printing and Binding:</p> <p>“ Furnish the following as per resolution approved March 9, 1897, relative to Bulletin No. 17, on Diseases and Enemies of Poultry, etc. Make type pages smaller and double leaded as directed; special paper cover, unc'ut edges, and illustrated as directed by the authors.</p> <p>“Leonard Pearson,</p> <p>“State Veterinarian.</p> <p>“ B.. H. Warren,</p> <p>“ Economic Zoologist.”</p> <p>This paper was delivered by Dr. Warren to Mr. Busch, and by Mr. Busch to the superintendent of public printing, who afterwards signed the following order:</p> <p>“ Harrisburg, Pa., April 12, 1877.</p> <p>“ Clarence M. Busch, State Printer:</p> <p>“You will furnish the following for the use of the Agricultural Department, and charge the same to the Commonwealth in the general account for public printing and binding.</p> <p>“Thomas Robinson,</p> <p>“ Superintendent Public Printing and Binding.</p> <p>“ As per resolution approved March 9, 1897, relating to Bulletin No. 17, on Diseases and Enemies of Poultry, etc. Make type pages smaller and double lead as directed; special paper cover, uncut edges, and illustrated as directed by the authors.”</p> <p>5. No manuscript or other material for the reprint was furnished by Messrs. Warren and Pearson to the superintendent, but all material went directly into the hands of Mr. Busch, and the proof was returned for correction to the authors, and not to the superintendent. The only new material furnished by Dr. Pearson was two water colors, of which plates were prepared and used; the rest of the voluminous additions to the original pamphlet was prepared or compiled by Dr. Warren. He ordered the numerous illustrations, and bestowed much labor and attention upon this feature of the volume. The illustrations are mainly colored lithographs, prepared and printed by a firm in Rochester, New York. The stones upon which the work was done were not delivered to the commonwealth, but remained with the firm and have probably been ground off and used for other printing. The impressions were made by machine, not by hand-press work. The size of the printed page does not correspond with the size prescribed in section 19 of the act of 1876. The page there prescribed contains about 1,900 ems, while the page in the reprint contains only about 1,200 ems. The relator contends that the superintendent was empowered to make this change, but no provision of the statute was pointed out that sustains the contention. Section 20 permits the executive and heads of departments to exercise a reasonable discretion as to the style of execution, but the superintendent is not named in this grant of power.</p> <p>6. The number of pages in the original pamphlet is 128, and it contains thirty-five black and white illustrations, most of them being small. The reprint contains 866 printed pages, and has-103 additional illustrations, of which ninety-five are full page colored lithographs. The cost of 8,500 copies of the original pamphlet was $488.24. The bill now presented is for the sum of $55,662.85, of which $2,325.46 is for composition, press work, stitching, etc., while $53,337.39 is for the work done upon the illustrations.</p> <p>A considerable part of the letter press, and a good many of the illustrations, in the additional matter, are not relevant to the subject, and should not have been allowed to appear in a book on the Diseases and Enemies of Poultry.</p> <p>DISCUSSION.</p> <p>The writ of mandamus can only be used to enforce a clear legal right, for which there is no other adequate remedy. We hesitate to say, that the relator has shown such a right, and upon this ground alone we might refuse relief. If one considers the positive commands of the act of 1876 concerning the method of ordering the work to be done by the state printer, and also concerning the method of doing the work, and if it is their observed that these commands were0 either disregarded or disobeyed by the relator in several particulars, his right to mandamus can hardly be described as clear. He violated the letter of the statute in several respects; and while it is only fair to add. that the excuses for some of these violations may perhaps be equitably sufficient, nevertheless the excuses appeal rather to one’s sense of fairness than to the relator’s legal right under the strict terms of the law. We pass this point, however, for there is another position that seems to us to be decisive of the controversy ; and, if we are correct in the view we take of the matter, the relator has no legal right, doubtful or otherwise, to the money now claimed. Section 20 of the act of 1876 expressly provides “ that the superintendent of public printing and binding shall receive no order for the printing and binding of any papers, documents, blanks or miscellaneous work, unless the same be in writing, signed by the Executive or head of the proper department; the order shall contain a particular description of the work and material, and the provisions of this act shall embrace the chief clerks of the senate and house of representatives.” It is clear from the foregoing findings that the so-called order to the superintendent of public printing, upon which this work was done, is drawn in distinct violation of this provision. The paper is not signed by the executive or by the head of any department, but by two subordinates; and it does not contain a particular, but an obviously inadequate description of the work and material. It simply refers to the pamphlet that is to be reprinted with additions and changes, but does not specify what is to be added or changed. No addition or change is particularly described. The pages are to be “ smaller,” but the new size is not stated; it is to be “ as directed ” by some person not named. The cover is to be “ special,” whatever that may mean; and something (the grammatical connection is obscure), is to be “illustrated as directed by the authors.” The changes and additions permitted by the legislature were in the matter of the pamphlet, but of these there is no indication whatever, except so far as the word “ illustrated ” may be taken to suggest, that prints of some kind are to be used. Not a page of manuscript, not a copy or a description, vague or precise, of a single proposed illustration, accompanied the paper; and there is no particularity otherwise in describing the work that the authors had in view. It may not be necessary that the manuscript of a proposed change or addition should in all cases be prepared, or that the illustrations should be indicated by sketches or drawings, before the superintendent issues Ms order to the public printer; but, in the absence of the manuscript or of the drawings, it is more imperative that “ a particular description of the work and material ” should be furnished to the superintendent. He must have it before he can lawfully proceed. It is impossible to lay down rules for his guidance in determinmg when a description is sufficiently particular. It must be conceded that the situation may sometimes be delicate, requiring tact and good judgment; but he must obey the law, and must guard the interests committed to Ms care, even if friction and difficulty do occasionally arise. It is a violation of the statute to dispense with the positive command that a particular description shall be contained in the order, and in this instance the law was violated.</p> <p>There is force in the relator’s contention that he was not bound to inquire what kind of order came into the hands of the superintendent of public printing, and that the public printer’s concern is simply with the orders that he may receive from the superintendent. It was no part of his duty, he avers, to see that the law was complied with by the persons that gave orders to the superintendent; neither was he bound to exercise a censorship over the manuscript that came into his own hands, and to decide whether it contained irrelevant matter, or was too profusely or too expensively illustrated. We are disposed to agree with this position. If the printer does not know the contents of an order lodged with the superintendent, he is not bound to inquire; the difficulty here is, that the relator had knowledge of the particular paper now being considered. It was delivered to Mm, and he knew that it was signed, not by the head of a department, as required by the act, but by two subordinates, who had no legal power to bind the state by such a paper. He must have known also that it contained no particular description of additions and changes, and he cannot escape the consequences of Ms knowledge upon these two points. He was bound to take note of the commands of the statute, and, so far as he knew that these commands were being disobeyed, it was his duty to refuse compliance. This is the fundamental defect in Ms case, and it is not cured by the fact that he received after-wards a formal order from the superintendent, based upon the illegal paper and merely repeating its contents.</p> <p>It may be seriously questioned also whether the formal order to the relator, signed by the superintendent, did not, upon its face, show that it, too, was not in compliance with the law. The order was not accompanied by the material which the printer was to reproduce, and while (as has been already said) this may not be always necessary, and may sometimes be impossible, it is certainly a desirable practice. Here there was not a line of manuscript, and no indication whatever of the number and character of the illustrations that were to appear in the reprint; but the whole matter was turned over by the superintendent to the authors, mainly to Dr. Warren, who was allowed to do exactly as he pleased. Whatever may be meant by “ a particular description of the work and material,” which the act requires the order to contain, it certainly does not mean that the superintendent may abdicate his functions entirely, and give unchecked discretion to another person. The superintendent must retain control of the transaction, and to this end both manuscript and proof should at least pass through his hands, so that he may know what is being done. Evidence was offered at the trial— and we find the fact to be—that in numerous instances no such practice was followed, but important and expensive books were printed without the slightest supervision by the very officer appointed to exercise control. If this has grown to be a custom, it is an evil custom, contrary to the statute, and should be abolished. It cannot justify one more illegal act.</p> <p>The result of such surrender of the superintendent’s right of control is vividly illustrated in the case before us. Here is a book, beginning in a small pamphlet on “ The Diseases and Enemies of Poultry,” but now enlarged into a portly volume, profusely illustrated and full of irrelevant matter. No doubt the legislature used a loose pirrase when it authorized such additions and changes “ as the authors may deem necessary; ” but they made their meaning sufficiently clear by adding immediately, “ in order to more fully explain this important subject.” It is difficultto understand how the “ enemies of poultry ” in Pennsylvania can be made to include the buzzard, which Dr. Warren assures us “ does not, as some persons affirm, disturb domestic fowls, and rarely .... destroys the eggs of poultry; ” or the Mississippi kite, of which only one specimen has ever been found in the state, and which “ does not visit the poultry yard; ” or the- swallow-tailed kite, which “ feeds principally on grasshoppers, beetles, caterpillars, small snakes, lizards and frogs,” and “ never was known to disturb poultry.” The fish hawk finds a place also, although the author’s opinion is, that “ these birds never touch other food unless they are unable to catch fish .... (and) do not, as some farmers believe, disturb domestic fowls; ” and room, too, is made for the barn owl, although it “never commits depredations in the poultry yard,” and for the long-eared owl, although it “ never disturbs domestic fowls.” These are only samples. The curious will find superfluous information about the blue jay, the shrike, the blackbird and several aquatic birds of the heron family. There are paragraphs about the objectionable habits of the English sparrow, the increase of rabbits in Australia, and the fashion of wearing the plumage of song birds in the head-dress of women. The hibernation of certain mammals receives some attention, while several pages are devoted to the extermination of the bison, the elk, the beaver and the wolf, and the disappearance of the wild pigeon. Rabbits are not usually classed among the enemies of poultry, but they take up two pages of this volume, sandwiched between the squirrel and the fox. There is a vivacious description of a coon hunt, and this part of the volume closes with twenty-six pages' of what may be called a sportsman’s guide to various sections of the state, describing the various haunts of game birds and fishes, and containing some reference to the hotel and railroad accommodations that may be expected. Some of the illustrations exhibit a like irrelevancy, although the examples are not so numerous. One print is á typical example of the scenery along the Susquehanna river, followed by an excellent impression showing the Lewistown Narrows on the Pennsylvania railroad. A scene along an unnamed stream in the mountains probably finds the reason for its existence in the title, “ Where Foxes Rove,” but one is at a loss to imagine why the picture of a trout fisher absorbed in the possibilities of an inviting rapid on Penn’s creek, should have adorned the pages of a book on the Diseases and Enemies of Poultry.</p> <p>There is other desultory and inappropriate matter in the book, but enough has been cited to show that the surrender of the superintendent’s power of control led to a flagrant abuse. The instance is conspicuous enough to exhibit with clearness the possible consequences of relaxing the statutory supervision, and it is for this reason alone that we have referred to some parts of the book. But we do not put the decision in any measure upon the contents of the volume. We rest it wholly upon the facts that the original paper signed by Messrs. Warren and Pearson did not comply with the act of 1876, and that the relator knew (or must be held to have known), that the paper was thus defective. If he has any claim to be paid for this work, he must address himself to the legislature and not to the courts. Of legal right, we think this case is barren; whether he has a moral or equitable claim to the consideration of the commonwealth, is not within our province to decide.</p> <p>Without prolonging the discussion, we conclude that the relator has no legal claim to be paid the account in question, and we therefore direct the prothonotary to enter a decree refusing the mandamus, and awarding costs to the defendant.</p> <p>Error assigned was refusal for mandamus.</p>

Appeal, No. 15, May T., 1899, by plaintiffs, from decree of C. P. Dauphin Co., No. 242, in equity, dismissing bill in equity. Bill in equity against a receiver.

Appeal, No. 18, May T., 1899, by L. K. Porter, from order of C. P. Dauphin Co., June T., 1894, No. 310, dismissing exceptions to auditors’ report. Exceptions to auditor’s report. The auditors, James A. Stranahan, Esq., and Albert Miller, Esq., reported as follows : In considering the claims of attorneys for services, very much testimony was taken before your auditors, as these claims cover a very large portion of the fund for distribution.

<p>Appeal, No. 19, May T., 1899, by J. G. White, from order of C. P. Dauphin Co., June T., 1894, No. 310, dismissing exceptions to auditors’ report.</p>

<p>Appeal, No. 21, May T., 1899, by James Fitzsimmons, from order of C. P. Dauphin Co., June T., 1894, No. 310, dismissing exceptions to auditors’ report.</p>

<p> Escheat—Corporations—Beneficial society—Judgment of ouster. </p> <p>The funds of a beneficial society against which a judgment of ouster has been entered do not escheat to the commonwealth.</p>

<p>Appeal, No. 24, May T., 1899, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1898, No. 252, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Simonton, P. J.</p> <p>Separate actions were brought by the father and by the daughter for a broken arm suffered by the daughter while alighting from defendant’s car, November 15,1897. They were consolidated and tried together in accordance with the provisions of the Act of May 12, 1897, P. L. 62.</p> <p>The facts appear by the opinion of the Supreme Court and by the charge of the court below, which was in part as follows:</p> <p>You have to take the testimony then and consider it carefully and find what is the truth of the matter. Is the account of the accident given by the plaintiff, and by her sister, and by one other witness (so far as it corroborates them) the correct version of the case? Had the car come to a stop before the plaintiff and her sister went out to the platform and undertook to get off, and at the time that the plaintiff was about stepping down to get off did the car start with so much of a jerk, or so much of a suddenness or violence, as to throw her off ? If that was the case, then you might find little difficulty in coming to the conclusion that the defendant was negligent and that the plaintiff was not. If the car had stopped, the plaintiff might have a right to suppose that it would remain standing until she could get off. [On the other hand, if that is not the true version, if the car had not stopped, and if the plaintiff was thrown off because she undertook to get off before the car had come to a stop, then you might ascertain that she ought to have waitfed and that the defendant had done nothing out of the way, nothing but what is done on all occasions;] [1] for if the car had not yet come to a stop the time had not arrived for the plaintiff to get off.</p> <p>You are the judges of the credibility of witnesses; you are to ascertain, where there is" a conflict of testimony, what the facts are; that is especially the province of the jury, and it is one that the court is not bound to meddle with, and not obliged to take any responsibility for; it is for the jury. You heard these witnesses on the one side and on the other, you heard what they said, you saw the manner in which they testified, you can judge from their language and their manner and the statements that they made, what opportunity they had for knowing what really did occur; and you are also to consider, so far as it enters into the case, the bias, if you find any, or the interest, that one witness or another has in the result of the suit. The plaintiff has a direct money interest in it; there is no question about that; the conductor and the motorman may have or may not have pecuniary interest in it; the conductor in this case testified, and it is not disputed, that he is not now in the employ of this company; that he has another job; there was nothing said on that point, I think, as to the motorman, nor did I hear any suggestion that the motorman had done anything that he ought not to have done, unless it be assumed (if the car started suddenly) that he did that. You are to consider that whole matter and determine what the truth is between these parties on the one side or on the other, for the case practically depends on that. If you take the version that is given by the plaintiff, you might very well find a verdict in favor of the plaintiff, [and if you take the version given by the defendant, that the car had not yet come to a stop when the plaintiff undertook to get out, then you might find her guilty of contributory negligence, and in that case she would not be entitled to recover.] [2]</p> <p>Plaintiff’s point and the answer thereto were as follows :</p> <p>1. If the jury believe that when Mable Neff attempted to alight the car had stopped, or was in the act of stopping, or was in such a condition of running or stopping as induced her to think it had stopped or was about to stop, then she had a right to get off, and if the car was negligently operated, and the injury resulted therefrom, then the verdict should be for the plaintiffs. Answer: That is substantially correct. If the car had stopped before she began to get off, or if it was so near stopped that it was practically stopped, then she would have a right to get off, and if under those circumstances the accident occurred from the negligence of the defendant, she would be entitled to recover. [3]</p> <p>Defendant’s point and the answer thereto were as follows:</p> <p>1. If the jury believe that the plaintiff, Mable Neff, did not wait for the car to stop, but got off while it was moving, it was negligence on her part which will prevent a recovery, and the verdict must be for the defendant. Answer: If she failed to wait until the car stopped, and if it was still moving, unless it was so slightly as to be substantially stopped, and she undertook to get off while it was so doing, she would be negligent, and if she was negligent she would have no right to recover. [4]</p> <p>Judgment and verdict for John D. Neff for $300, and for Mable Neff for $1,500.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeal, No. 355, Jan. T., 1898, by defendants, from order of C. P. McKean Co., December Term, 1894, No. 216, refusing rule to open judgment.</p> <p>Petition for rule to open judgment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the refusal of the rule.</p>

<p>Appeal, No. 128, Jan. T., 1899, by plaintiff, from judgment of C. P. Fayette Co., Dec. T., 1898, No. 54, on verdict for defendant.</p> <p>Assumpsit to recover the purchase price of a raft. Before Mestrezat, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[We are of opinion that, under the contract submitted here and under which the plaintiff, Woolsey, claims to recover and claims title to this raft, it was his duty to pay, or to secure the payment of, the balance of the purchase money according to the contract, before he could legally recover or compel Minor to deliver him the raft. It is not disputed, as we have already said, that he didn’t pay the balance of the one half on the first of April, 1897, of the purchase money due on this raft or give a note for the remainder for ninety days as required by this contract. It is our opinion that, not having done that, he is not in a position, and was not in a position, to require the delivery of that raft to him. As we understand the evidence—and it is not disputed—there was no delivery of this raft to Woolsey. It is claimed, however, on the part of Mr. Woolsey that under this agreement when these sticks of timber were taken by Minor to the Monongahela river and placed in the river and put together or rafted, as it is called here, that it immediately became the property of Woolsey and was a delivery under this contract. That is not our construction of this contract; on the contrary, we are of opinion that, in addition to placing the sticks of timber in the river and rafting them, putting them together, that there was yet to be a delivery by Minor to Woolsey. It is not denied that Minor placed his ropes upon this raft and moored it there at the mouth of Georges creek; and it is not denied, further, that Woolsey didn’t take possession of this raft until that Sunday when he did it in the absence of Minor and without his permission. That was not a delivery by Minor to Woolsey.] [3]</p> <p>The court refused plaintiff’s second point recited in the opinion of the Supreme Court [2], refused binding instructions for plaintiff [1] and gave binding instructions for the defendant. [4]</p> <p>Verdict and judgment for defendant.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeal, No. 321, Jan. T., 1898, by Michael H. Moore, from decree of O. C. Lancaster Co., dismissing exceptions to auditors’ report.</p> <p>Exceptions to auditors’ report.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s ■ report.</p>

Appeal, No. 140, Jan. T., 1899, by plaintiff, from judgment of C. P. York Co., on verdict for defendant. Trespass to recover damages for the alleged wrongful sale of plaintiff’s goods. The facts appear by the opinion of the Supreme Court. The court charged in part as follows: [There was no delivery, according to the testimony in this case, of these farm implements.

<p>Appeal, No. 121, Jau. T., 1899, by defendant, from judgment of C. P. Northumberland Co., Feb. T., 1896, No. 188, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Savldge, P. J.</p> <p>From the record it appeared that the action was begun on January 2, 1896, by Nicholas Madara and Mary C. Madara, his wife, in right of Mary C. Madara. The accident occurred on June 80, 1895. On April 19,1898, at the time of the trial the court permitted the following amendment of the record:</p> <p>And now, to wit: April 19, 1898, on motion of J. W. Gillespie and P. A. Mahon, attorneys for plaintiff, the record in above entitled cause be amended and the rights of the said Nicholas Madara and Mary C. Madara, his wife, be consolidated under the style and title of Nicholas Madara and Mary C. Madara, his wife, v. The Sbamokin & Mt. Carmel Electric Railway Company, and that the suit shall be governed hereafter by the provisions of the act of May 8, 1895.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for Mary C. Madara for $1,254.17, and for Nicholas Madara for $795.</p> <p>Errors assigned among others were (1) allowance of the amendment; (7) refusal to give binding instructions for defendant.</p>

Appeal, No. 821, Jan. T., 1898, by John Hertzler et al., from decree of O. C. Lancaster Co., dismissing exceptions to auditor’s report. Exceptions to auditors’ report. The facts appear by the report of Hertzler’s Estate, Moore’s Appeal, ante, p. 531.

<p> Appeals—Stay of execution—Discretion of court—Evidence—Record. </p> <p>In the absence of evidence to the contrary, it will be presumed that an order staying an execution was properly granted; therefore, the Supreme Court will not reverse such an order, where there is nothing in the record or in the paper-books to show the reasons which prompted the action of the court below, or to enable the Supreme Court to determine whether there was any abuse of authority or usurpation of power by the lower court.</p>

Appeal, No. 12, May T., 1899, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket, 1898, No. 248, on bill in equity. Bill in equity for an injunction.

<p> Ejectment—Title—Mortgage. </p> <p>In an action of ejectment it appeared that an owner of a tract of seventy-five acres of land permitted a school board to use one-half acre of it for school purposes. The school district never claimed the title to this half acre, and in subsequently selling the school building which ibhad erected thereon, it expressly restricted the sale to the building itself. The purchaser did not remove the building, and the defendants were in possession of it and the half acre under the purchaser. Before the school district had sold the building and abandoned the lot for school purposes, the grantees of the former owner of the seventy-five acres executed a mortgage of all their right, title and interest in the tract, ‘ ‘ the said right being the fee simple in all the coal and other minerals contained therein. . . . Together with ail and singular the .... reversions and remainders thereof.” Plaintiff claimed under the purchasers at a sheriff’s sale under the mortgage. After the sheriff’s sale the mortgagors never claimed any interest in the half acre lot. Held, that the plaintiff was entitled to recover the half acre lot without any restriction.</p>

Appeal, No. 179, Oct. T., 1898, by defendant, from judgment of G. P. Westmoreland Co., May Term, 1898, No. 538, for plaintiffs on case stated. Case stated to determine the marketable title to real estate. Before Doty, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was in entering judgment for plaintiffs on the case stated.

Appeal, No. 47, Oct. T., 1898, by plaintiffs, from order of C. P. No. 3, Allegheny Co., May T., 1896, No. 129, refusing to take off nonsuit. Trespass for personal injuries. Before McClung, J. At the trial it appeared that about 7 o’clock on May 4,1895, Mrs. Rushton, one of the plaintiffs, while walking on a sidewalk of Federal street in the city of Allegheny, stepped on the covering of a coal hole and, the covering tilting, fell partly into the hole.

Appeal, No. 104, Oct. T., 1898, by- defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1894, No. 756, on verdict for plaintiff. Assumpsit upon a policy of life insurance. Before Kennedy, P. J. The facts appear by the opinion of the Supreme Court. Defendant’s points and thé answers thereto among others were as follows: 9.

Appeal, No. 73, Oct. T., 1898, by plaintiff, from order of C. P. No. 3, Allegheny Co., Feb. T., 1897, No. 587, refusing to take off nonsuit. Trespass. Before Kennedy, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 145, Oct. T., 1898, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1896, No. 807, on verdict for defendant. Trespass for libel. Before Frazer, J. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant, plaintiff appealed.

<p>Appeal, No. 163, Oct. T., 1898, by defendant, from judgment of C. P. No. 3, Allegheny Co., on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Kennedy, P. J.</p> <p>The facts appear by the opinion of the Supreme Court and by the following charge of the court below:</p> <p>The action which you have been sworn to try is for the recovery of damages for injuries which the plaintiff claims to have received in an accident, which accident he also claims occurred through the negligence of the defendant. The defendant is a street car company, operating a line of cars, by means of electricity, between this city and Troy Hill, on the other side of the Allegheny river, part of its route extending through Allegheny city. On the morning of April 8,1897, a car belonging to the defendant was coming to this city from Troy Hill. It was discovered by the employees upon the car, as they supposed, that some of the machinery of the controller upon the front part of the car was out of order, and they so reported to the dispatcher of the company, who boarded the car as it came down Sandusky street, Allegheny city. On its way down the street Mr. Callahan, the dispatcher, endeavored to discover what was wrong with this controller, and investigated it as far as he could, as he says, and tested it in order to find out the trouble. The car approached the railroad crossing on Sandusky street, the railroad crossing of the Pittsburg, Ft. Wayne & Chicago Railroad, and of the West Penn Railroad Company. As it approached this crossing a train belonging to the Pittsburg, Ft. Wayné & Chicago Railroad Company was passing on its way west, crossing Sandusky street, and the safety gates were down. This car then stopped within some twenty-five or thirty feet of the railroad crossing, and while it was so stopped, Mr. Callahan, as he says, continued his efforts to find out what was wrong with the controller. After doing so, according to the testimony on behalf of the plaintiff, he said to the motorman that this controller was all right, and, as is further stated, he told the motorman to turn on the power—at all events, the power came on about that time, and the car started suddenly and rapidly forward, breaking through the safety gate and striking violently the side of the last car belonging to the train, which was a baggage car. Standing in that car was Mr. Todd, the plaintiff in this action. The force of the blow or collision, as Mr. Todd claims and tells you, caused the car in which he was to topple, or careen, I think he called it, caused it to almost topple over, and it rocked back and forth before finally righting itself on the track. He claims also that when the collision occurred, and the car was thrown over in this way, he was thrown backward upon a steam heater, or radiator, or stove, or something in the car, receiving an injury, sustaining a fracture of two of his ribs, and causing an injury to his spine, which has resulted, as he claims, in a permanent disability. He claims that this accident, and the resulting injuries to himself, were caused through the negligence of the defendant company, and he asks compensation in damages by a verdict at your hands. Mr. Todd explains to you that he did not consider the injury at the time at all serious and he continued on his journey. He was, as you will recollect, a brakeman on the Pittsburg, Ft. Wayne & Chicago Railroad, his run being between this city and Crestline, in the state of Ohio. He continued his trip on this day in question, not supposing at the time that he was seriously hurt. But he tells you after he had gone some distance he became sick, and he describes to you the balance of his trip to Crestline. He tells you how he was eared for by being provided with some kind of bed in the mail car, on the empty mail bags, where he rested as well as he could until he reached Crestline. He tells you of his sufferings on the way, and of the medical attendance that he received at Crestline, and that he staid there until Saturday of that week. The accident occurred on a Thursday morning, and on the Saturday following he returned to his home in Sewickley, and he tells you of his sufferings on the way here, and afterwards of the attention, medical and otherwisé, that he received after reaching his home, and since that time. All this has been described and it is not necessary for me to go into the testimony in detail. As I have said, he claims to have been permanently disabled by the accident, and he asks compensation by a verdict at your hands. He has shown by the testimony that he has been unable to work since the occurrence of the accident, except on one trial trip that he took over his old route, which resulted disastrously to him, and he was laid up and was worse afterwards, and that he has been unable to work since that time. According to the testimony of the physicians he is likely to be unable to work in the future. If he is entitled to a verdict at all in this action, he is entitled to compensation for the cash expenditures incurred by him, resulting from the accident, such as doctors’ bills, medicines and extra expenses of nursing. And he is entitled further to compensation for loss of wages, for loss in his earning capacity, which he has already sustained up to the present time, and also the loss, if any, likely to occur in the future. In addition to these' two items I have mentioned, lie is entitled to what you consider a reasonable and proper allowance for the pain and suffering which he has already endured, and is likely to endure, if any, in the future. Those are the elements which go to make up what is known as the measure of damages to which Mr. Todd, the plaintiff, is entitled, if you find that the accident occurred through the negligence of the defendant company.</p> <p>Now, the defense urged upon your consideration is, first, the improbability that this passenger railway car, so much smaller than the railroad coach, and such a difference in weight, should, by striking the railroad car, have caused it to topple over, as claimed by the plaintiff; and they urge on you also the improbability, even if it did, that this serious trouble—it is admitted that the plaintiff is suffering from serious trouble or disease of some kind—was cansed even if the car was thrown over as claimed, that this produced this serious injury to the plaintiff. They further claim and urge most seriously upon you, that the defendant company, under the circumstances, was not guilty of any negligence, even if this passenger car did strike the railroad car and cause the accident and the injuries to the plaintiff, that still the accident was unavoidable upon the part of the defendant; that it could not have been foreseen and guarded against. These, gentlemen, are matters for your serious consideration. If you should find that the accident did occur through the negligence of the defendant company then the plaintiff is entitled to your verdict. But, as I have stated, the defense claims that the accident was unavoidable, that it could not have been foreseen and guarded against by it or its employees. The plaintiff claims that this controller was out of order, as reported by tbe employees of the company, and that if Mr. Callahan, the dispatcher, had taken proper pains, or had adopted any reasonable and proper methods for ascertaining its condition, whether or not it was really out of order, that he could readily have discovered the trouble, and the accident would not have occurred. And they say that he, through his incompetence and failure to make the proper investigation, and reporting to the motorman that the controller and car were all right, instructing the motorman to turn on the power, the accident occurred. This they claim to be negligence on the part of the defendant company, rendering it liable in this action.</p> <p>Now, the defendant company is not bound to furnish the most improved machinery that the most scientific minds, or men of the highest degree of skill, engaged in the business, could suggest, but they are bound to furnish the reasonably best and safest machinery and appliances, and cars, in ordinary use by persons engaged in the business, and versed in the business, and known as such by those having skilled knowledge of such machinery and cars and appliances. [And they are also required to furnish reasonably skilled and competent men to operate the cars, and the machinery and appliances. Now that is just where the plaintiff claims the company failed in its duty, and it is for you to determine whether or not the defendant company did exercise the proper care under the circumstances.] [2] If it did not, the plaintiff is entitled to a verdict at your hands to an amount that will compensate him for the injuries he received, following the rule that I have given you as to the measure of damages. If the accident could not have been foreseen and guarded against by the defendant company, in other words, if it was unavoidable upon their part, then your verdict must be for the defendant. But if it could reasonably have been foreseen and guarded against, then it was the duty of the defendant company to do so, and if they failed in such duty, then the plaintiff is entitled to a verdict. The proper measure of damages is the loss in his earning capacity, or loss of wages that he has already sustained, or is likely to sustain, if any, in the future, and any cash expenditures which he has incurred, or is likely to incur, and also a proper allowance for the pain and suffering which he has endured, or is likely to endure.</p> <p>The defendant has asked for certain instructions :</p> <p>1. The fact that the accident occurred is not in itself proof that the defendant company was guilty of any negligence, and unless the jury find from the evidence that the defendant failed to do something required by ordinary care and prudence, or that it actually did something to cause the accident which an ordinarily careful and prudent person would not have done, then the plaintiff cannot recover in this case and the verdict should be in favor of the defendant. Answer: This point is affirmed.</p> <p>Verdict and judgment for plaintiff for $18,250. Defendant appealed.</p> <p>Errors assigned were (1) inadequacy of charge in failing to instruct the jury that the burden of proving negligence under the circumstances of the case was upon the plaintiff; (2) portion of opinion as above; (3) in failing adequately to correct the statement of the law made by plaintiff’s counsel as to the measure of damages; (4) in failing to give to the jury any proper measure of damages in making up their estimate of the loss of earning power of the plaintiff.</p>

<p>Appeal, No. 51, Jan. T., 1898, by defendant, from decree of C. P. Lehigh Co., Sept. T., 1895, No. 1, on bill in equity.</p> <p>Bill in equity to foreclose a mortgage.</p> <p>The mortgage was executed by the Allentown and Bethlehem Rapid Transit Company, one of the respondents, to the Old Colony Trust Company, the complainant, as trustee, dated March 1, 1894, but not acknowledged and delivered until March 8, 1894. It purports to be given to secure the payment of 200 bonds of the said Allentown and Bethlehem Rapid Transit Company bearing even date therewith, each for the payment of $1,000, making $200,000, 100 of said bonds being payable one year after the date thereof, and the remaining 100 bonds payable eighteen months after the date thereof, with interest on each of said bonds, payable semi-annually, at the rate of six per cent per annum.</p> <p>The mortgage also provides that in ease default shall be made in the payment of said bonds as they become due, or in the payment of the coupons thereto attached for the semi-annual interest when such payments become due, and such default shall continue for ninety days, under the terms of the mortgage, the whole thereof shall become due, and under certain conditions specified in the mortgage, the trustee may proceed to foreclose by suit or otherwise, in such manner as may be authorized by law for the foreclosure of mortgages on real or personal estate.</p> <p>The New York Guaranty and Indemnity Company, one of the respondents, was not served.</p> <p>There was no demurrer filed by either of the respondents to the bill.</p> <p>The case was referred to John Rupp, Esq., as referee.</p> <p>The material portions of the referee’s findings and the exceptions thereto are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to the referee’s report.</p>

<p> Principal and agent—Contract—Alteration of written instrument. </p> <p>An agent of a dealer in gasoline presented to a customer a contract signed by his principal as follows: “We agree to furnish you your supply of 75 gasoline from to bbls. per week, for the year 1895, at 7 cents per gallon.” The customer objected to the contract as it was offered, and the agent then drew a line over the words and spaces “from to bbls. per week.” The customer then signed an acceptance of the contract in duplicate, the agent taking one copy and the customer the other. The principal furnished oil as ordered under the contract, until the price materially increased, when it refused to furnish more than twelve barrels per week, exhibiting a contract in which the words “ one to twelve bbls. per week ” appeared over the erasure, making the contract read to furnish gasoline “from one to twelve bbls. per week.” In a suit by the customer on the contract the defendant did not produce-its copy of the contract, and offered no evidence that the agent had exceeded his authority. Held, (1) that the paper presented by the agent to the customer was not a completed contract; (2) that the contract sued on, and produced by the customer, correctly expressed the agreement, and that the principal was bound by it.</p>

<p> Auditor's report—Conclusiveness of—Appeals—Executors and administrators. </p> <p>Where an auditor finds from sufficient evidence certain facts from which the legal and equitable conclusion that an executor has acted in good faith in the administration of an estate ought to follow, and the auditor so finds as a matter of law, and his findings and report have been confirmed by the orphans’ court, the Supreme Court will not reverse the findings unless manifest error or mistake is made to appear.</p> <p> Executors and administrators—Pledge of securities—Payment. </p> <p>Where an executor having a life interest in securities pledged for a debt pays the debt out of the estate, and subsequently pledges the securities for a debt of his own, and dies before paying the same, his executor may pay the debt out of moneys of his estate, and deliver the securities to the persons entitled to them in remainder.</p>

<p> Eminent domain—Streets—Change of grade—Damages—Value of business—Measure of damages. </p> <p>Where a property has been injured by the change of grade of a street, its valuation must be made immediately before and immediately after the injury is inflicted, and the difference in these valuations is the measure of the damages which the owner may recover.</p> <p>In a proceeding against a city to recover damages for injuries caused by a change of grade to land leased for the purposes of a base ball park, it is improper to permit the jury to take into consideration estimated annual profits of the lessees during the continuance of the lease, or the cost of changes and improvements made in the park three years after the work of changing the grade of an abutting street had been completed.</p> <p> Eminent domain—Land damages—Detention of payment. </p> <p>In a land damage case, the owner of the land is not entitled to damages for detention of payments, where it appears that the detention was caused by his grossly excessive and unreasonable demands, which it was the duty of the officers of the city to resist.</p>