Volume 194 — Pennsylvania State Reports

<p>Appeal, No. 147, Oct. T., 1899, by defendant, from judgment of C. P. Butler Co., Sept. T., 1897, No. 24, on verdict for plaintiffs.</p> <p>Appeal from jury of view. Before Gbeeb, P. J.</p> <p>The facts appear by the charge of the trial court and by the report of the case in 190 Pa. 51.</p> <p>At the trial J. T. Hamilton, one of the plaintiffs, testified as follows:</p> <p>“Q. Were there any other features than the frontage on the railroad and being a square that made it specially valuable? A. There was a dumping ground for our refuse, which made it valuable. Q. Did it offer facilities for enlargement or improvement ? ”</p> <p>Objected to as incompetent. It is an attempt on part of the plaintiffs to introduce speculative ideas as to values. The test is, what was the value of this property immediately before entry by the railroad company and what was its value afterwards for any purpose.</p> <p>The Court: We will receive it. Bill of exceptions sealed at request of defendant’s counsel.</p> <p>“ A. This was one of the inducements to purchase the property.”</p> <p>Mr. McQuistion, counsel for defendant: I move to strike that testimony out as incompetent and irrelevant. It is not a question what his purpose was in buying this property.</p> <p>The Court: We will not strike it out now. Bill of exceptions sealed for defendant.</p> <p>“ Q. You may state whether or not that feature of the property has in any way been interfered with by the construction of the Bessemer railroad. A. It has.”</p> <p>. Objected to until the purpose is shown.</p> <p>“ Q. What feature does he refer to ? ” ■</p> <p>Mr. Galbreath, of counsel for plaintiffs: The purpose is to show how the property has been affected by the construction of this road, and the feature referred to is the capacity and adaption of the property for the enlagement and improvement of their works.</p> <p>Mr. McQuistion: Objected to as incompetent, because it has already been shown that the bottling plant works are not in any way interfered with by the railroad company; that the buildings stand there untouched, and in no way interfered with on part of the railroad company, and damages cannot be assessed on the theory that injury has been done to the bottling plant; that is not interfered with. At most all done on the part of the railroad company was to take and occupy half an acre of unoccupied land; and enlargement of the works is not an element of damages in this case. The test in this case is, what was the value of that entire property at the time it was invaded by the railroad company, and what was its value immediately after, and it is immaterial as to what the witness on the stand intended to do with the property.</p> <p>The Court: The question for determination is as to the diminution of the property from what it was before the taking, and what it was after the taking; this question is asked for the purpose of showing market value of the property; it strikes me it would be competent for that purpose, and we will receive it. Bill of exceptions sealed for defendant. [16]</p> <p>“ Q. I will now ask you what facilities that lot afforded at the time of the construction of this railroad, for improvement and extension of the business.”</p> <p>Objected to as incompetent; the question is what was the actual market value of the property for any purpose at the time of the appropriation.</p> <p>The Court: T think we will receive that. Bill of exceptions sealed for defendant. [19]</p> <p>“ Q. You may state whether or not your property located as it was when the railroad was built, since building the road, affords facilities for enlargement on the north side.”</p> <p>Objected to as incompetent. It is an attempt to introduce speculative ideas that some time in the future he might build.</p> <p>The Court: The question is as to its depreciation in value. I think we will receive this. Bill of exceptions sealed for defendant. [20]</p> <p>Albert Hamilton, one of the plaintiffs, testified as* follows:</p> <p>“ Q. What facilities do these separate portions offer since the construction of this road for improvement or enlargement ? ” Objected to as incompetent and irrelevant.</p> <p>The Court: We will receive it. Bill of exceptions sealed for defendant.</p> <p>“Q. Will you state what was the fair market value of your property at the time of the construction of this road in August, 1896 ? A. Seventy-five thousand dollars. Q. Will you state what was the fair market value of the property immediately after the construction of the road and as affected by it? A. We would have been glad to have taken $45,000.”</p> <p>Cross-examination:</p> <p>“Q. It was unoccupied ground? A. There were no buildings on it. Q. You were not making any particular use of it at that time? A. No, sir. Q. The railroad company has not invaded any building of the plant ? A. No, sir. Q. It has not diminished the productive power of the plant? A. No, sir. Q. You are making just as many bottles there now as before the railroad went through, or could make them? A. Yes, sir. Q. You are not deprived of a crossing in going over? A. We have not been yet. Q. You think the property has been depreciated in your opinion $30,000? A. Yes, sir. Q. In making up this opinion of yours as to the damage, you have taken into consideration the fact that you are deprived from building thereon? A. Yes, sir. Q. And taking into consideration your property has been injured by fire? A. Yes, sir. Q. And taking into consideration that you are deprived of the future enlargement of your plant ? A. Yes, sir. Q. I am asking you how much damages do you claim in this opinion of yours, to wit: $30,000, for being deprived of the future enlargement of the plant on that unoccupied ground ? A. I think that would be $15,000. Q. How much damages for being deprived of the unoccupied ground? You say $15,000 is one item ; what other items enter the damages ? A. The unsalability of the property if we would offer it. Q. How much for that? A. Fifteen thousand dollars. Q. How do you make up the balance ? A. We have lumped our damages; the extra cost of building on the east and managing two plants ; the increased cost of running two plants; the increased cost of running two plants on two sites instead of one. Q. How much do you allow for that ? A. That was in my estimate. Q. How do you make up the other $15,000? A. For the loss of frontage on the Pennsylvania railroad. Q. How much do you claim for that ? A. We figure that at about $50.00 a foot front, which would be about $6,000. Q. How do you make up the balance of $9,000 ? A. General inconvenience ; you might say, the inconvenience of having two separate glass houses.” [21]</p> <p>Mr. McQuistion: Defendant moves the court to strike out the entire testimony of Albert Hamilton, as speculative, in that he bases his estimate of the damage sustained, to wit: §80,000; on being deprived of the future enlargement of the plant on the unoccupied ground §15,000, and §6,000 for being deprived of the frontage on the Pennsylvania railroad, and §9,000 for the inconvenience of operating the plants when enlarged.</p> <p>The Court: We will refuse the motion. The use for which it is being used is certainly an element in the case. Bill of exceptions sealed for defendant. [22]</p> <p>L. P. Walker, a witness for plaintiffs, testified as follows: “ Q. Do you have knowledge of the value of this property in dollars and cents as a glass plant? A. No, sir. Q. At the time of the occupation of this land by the railroad company in August, 1896, what was this property as a whole most valuable for? A. For a manufacturing establishment. Q. And wliat amount would you say, of the market value, has been decreased by reason of the construction of the road? A. One is, increased danger by fire, and another, the frontage on the West Penn, and cutting off part of the plant; they could never increase without passing and repassing under the road. Q. And in addition would you add the land actually occupied by the company? A. Yes, sir.”</p> <p>Cross-examination:</p> <p>“ Q. If the plant is not touched; its buildings not in any way impaired, and making just as many bottles with the railroad track there as before; then you would not say that the plant of itself is damaged ? A. I understand it is not impaired except from danger from fire. Q. That danger from fire can be very easily remedied? A. Yes, sir, by spending money. Q. By an iron roof? A. Yes, sir. Q. Now then, what would you say the unoccupied land prior to the appropriation per acre was worth in August, 1896 ? A. I could not say. Q. The danger of fire it only a possibility ? A. Yes, sir. Q. If there never would be any fire then your whole theory would be wrong ? A. There is danger by fire every time a train goes by. Q. The damage the fire might do the property, you don’t know ? A. No, 1 don’t know how far it would go. Q. How much do you attribute to danger by fire in that damage of that twenty-five per cent in dollars and cents ?_ A. At least one third of that percentage would be on account of fire. Q. How much would you attribute for frontage ? A. Ten per cent. Q. That was not occupied at the time the railroad was laid out? A. They possibly. would have increased their plant. Q. If they didn’t occupy it then you would be wrong ? A. It would not be so valuable. Q. That is only a paper roof? A. Yes, sir. Q. Where do you make up your balance? A. The ground cut away and depriving them of the extension of their plant. Q. What did you attribute for being deprived of the future enlargement of their plant ? A. At that same rate, it would be ten per cent. Q. Then if you never build another plant, there would be no ten per cent in that? A. It has deprived him of the privilege. Q. Couldn’t lie build another plant there if he wanted to? A. Yes, sir. Q. Just as much and have more frontage on the Pittsburg and Western? A. Yes, sir. Q. Your estimate of twenty-five per cent is based upon the possibility of fire some time in the future and of being deprived of the future enlargement of the plant if he should desire to build one, and being deprived of the frontage? A. Yes, sir. Q. If he ever wanted to build there? A. He might use it if he didn’t want to build there.”</p> <p>Mr. McQuistion : Defendant moves the court to strike out the testimony of the witness as incompetent and irrelevant, being speculative, for the following reasons: (1) Because the witness bases his estimate of the damage sustained upon the probability that the plaintiff will, some time in the future, enlarge his plant on the unoccupied ground on the east side' of the right of way; (2) because lie bases his estimate of the damage in part on the possibility of a fire some time in the future ; (3) because the plaintiff has been deprived of the few feet of frontage that was unoccupied at the time of the appropriation by the railroad, and for the further reason that he does not give the market value of the land taken’; hence the testimony is incompetent, speculative and contingent, and for those reasons should be stricken from the record.</p> <p>The Court: We refuse the motion. Bill of exceptions sealed. [24]</p> <p>The court also refused to strike out the testimony of W. F. Rumberger, Joseph Hartman and W. J. McKee, which was of a similar nature to that of L. P. Walker. [25-27]</p> <p>The court charged as follows :</p> <p>This is an action of the plaintiffs, James T. and Albert Hamilton, owners of about four acres of land situate in Butler borough, on which there is a plant for the manufacturing of bottles, against the Pittsburg, Bessemer & Lake Erie Railroad Company, to recover damages on account of the taking and appropriating by the said railroad company defendant of about half an acre of said land. The entire lot of the plaintiffs is bounded on the north by the West Penn railroad, and on the south by the Pitts-burg and Western railroad, with a frontage on the W est Penn railroad of 506 feet, where its furnaces, warehouses and buildings are located. The piece of ground taken is forty-five feet wide and 448 feet long at one side, and 516 feet at the other side. It runs diagonally through the plaintiffs’ land, starting at or near the southwest corner and coining out at the northeast corner, where it takes about sixty-four feet of the frontage on the West Penn railroad. It cuts the land in two pieces, one piece on which the bottle plant is located contains one and fifty-nine one hundredths acres, and the other on which there are no buildings containing one and ninety-three one hundredths acres, leaving the latter piece without any frontage on the West Penn railroad. It does not touch any of the plaintiffs’ buildings, but runs within six or eight feet of their warehouse, and leaves the piece on the west side, where the buildings are, in a wedge shape, with but little ground in the rear of the buildings.</p> <p>This appropriation was made in August, 1896, and the defendant company now has its road constructed and is running cars over it from Pittsburg to Erie. The road through the plaintiffs’ land is on steel trestles about thirty feet from the ground. The defendant company takes this land under the right of eminent domain, a right reserved by our state in the conveyance of land originally to the inhabitants; that is, a right to retake it in case it is needed for public improvements, and every one who holds lands in Pennsylvania holds it upon tins implied condition, but the constitution of the state, however, requires that when land is so taken fair and just compensation shall be made to the owner thereof by the state or its agent taking it. Tbe plaintiffs and the defendant company have not been able to settle this question of compensation themselves, and the matter has come into court for a legal determination and settlement by a jury. The plaintiffs allege that on the-account of the taking of this land and the way it was taken, with a railroad built thereon and in active operation, they are injured to the extent of $30,000 ; that the market value of their property was $75,000 before it was taken; that it was not worth more than $45,000 after taken, and their damages should be the difference between these two amounts, $80,000.</p> <p>The defendant company does not dispute the plaintiffs’ right to compensation for their injuries and land taken, but disputes the amount claimed, so your duty is to determine the amount the defendant company should pay them. The law has laid down a rule that the measure of damages in a case like this is the difference between the market value of the whole property invaded, for any purpose, as unaffected by and immediately before the construction of the railroad and its market value'for any purpose immediately after, and as affected by such construction. The burden of proof is upon the plaintiffs to show the amount of their damages. This they must do by the preponderance of the evidence, and from the evidence you must determine the amount of damages and make your verdict accordingly. [Then the first question for you to consider is, what was the market value of the property as a whole immediately before, and what it was immediately after, the taking and as affected by it. James T. and Albert Hamilton both testify that its market value was $75,000 before it was taken in August, 1896, and that the whole property after this was not worth more than $45,000, therefore their injuries under the rule of law for the determination of such damages, if they are correct,'are $30,000. They are the only witnesses on part of the plaintiffs who attempt to fix the value, either before or after. A number of other witnesses are called, who state they have no knowledge of the value of such a glass plant, and are unable to give an estimate in that respect, but say they have knowledge of the market value of real estate in the vicinity of this property, and they fix the decrease in value at from twenty to thirty per cent of the market value. You will recollect the several witnesses and their testimony, therefore, I will not name them or repeat their statements. You were upon the ground and have personally examined it, and the buildings thereon; you have heard descriptions of the property, testimony as to the adaptability of the land for the purposes for which it is used. Peculiar adaptability to some particular use is an element which may very materially increase the market value of land, and this fact will be carefully considered, but not so far as any speculative element may appear. You will carefully consider every element in the case which will shed light on the true market value of the land at the time of taking, what circumstances, facts or elements would come into the mind of a person contemplating the purchase of this piece of ground as a whole before the land was taken, and what would he consider after he had knowledge of the appropriation for the purpose of constructing the railroad, after constructed and in operation. He would properly consider the amount of land taken, how and where taken, the disadvantages on account of its being taken, the disadvantages, if any, of the land being cut in two, the risks from fire incident to the lawful operation of the road, and as to this there are two theories upon which the claimant for damages can properly argue, such risk is material evidence in his favor. First, he can claim the danger is so imminent that no man of common prudence would maintain his building in such close proximity to the railroad. In that case he is entitled to the cost of removal of his building and its reconstruction in a safe place. Second, if the danger is not great, either from the fireproof character of the structure or its distance from the railroad, yet it can still be said there is some risk from fire by reason of the lawful operation of the road; he can claim that that fact depreciates the market value of the land entered upon; in the first case it is the loss of the improvement, in the second a disadvantage in the use. Damages in this regard cannot be assessed or recovered in this proceeding as a distinct, separate and independent item of damages that may accrue from fire: it can only be considered in so far as it would detract from or depreciate the market value of the property. Risks of loss by fire on account of careless and negligent operation of the trains and engines on the road cannot be here considered; this is the subject of an action when the loss occurs.] [10]</p> <p>[The defendant company in talcing this ground has the right, should it at any time desire, to malee a fill where its trestles now stand, and in such case the plaintiffs can get no additional damages, unless it takes more land. Should it do so the law will require it to provide a crossing at some point for the plaintiffs to pass over or under from one piece to the other.] [15]</p> <p>[You will carefully consider the situation and shape of the ground as. left by the defendant company, the advantages or disadvantages it may give the plaintiffs in operating, using, maintaining or enlarging their glass plant; this is an element in determining the market value which you have a right to consider, but you cannot consider profits which might be made by an enlargement of the plant, as that would be speculative and improper.] [11] You have a right also to consider the special benefit the road is or will be to the land. [This kind of a case differs a little from other damage cases; it is not possible for either side to furnish witnesses who can make a cor-, rect estimate of the damage only so far as the real value of the land taken is concerned. Where there is a dispute as to coal or timber an estimate can be made of the amount of coal taken or timber taken, and a calculation made from the facts, but in this case, gentlemen, you will have to determine very largely from your own judgment and your own opinion, and from the judgment and opinion of witnesses who have testified in the case. These witnesses who testified here are not testifying as to facts, but when they give their estimates they give them upon their judgment, upon acquaintance with the land, upon their knowledge of values in the neighborhood, and upon their knowledge of the value of property and the business for which it is being used. You will notice, gentlemen, that there is a very great difference in opinions of witnesses; we have heard on part of the plaintiff two witnesses who testify that the depreciation of this property is $30,000; we have had a dozen witnesses, perhaps more, who testify that they cannot give to you the real value of this property; that they have not such knowledge of the value of the glass property as will warrant them in making an estimate, but they state from their knowledge of property in the vicinity that they believe it has been depreciated, some say twenty, some say twenty to thirty, and some twenty-five to thirty per cent; you have the difference in opinion, because men differ.] [12]</p> <p>On behalf of the defendant in this case it offered some sixteen or seventeen witnesses; a large number, I think, twelve or thirteen, fix the damages at a lower rate, I think the highest $3,000; Mr. Tracy puts the damages at the lowest; he says $800; J. Q. A. Kennedy, a citizen in the town, says he considers the damages to the glass company the yalue of the land and whatever it would take to put up an iron roof and siding on the building next to it, and he puts the value of the land at $900 per acre. You have this difference; we say to you that we have every reason to believe that each of these witnesses has been honest in his judgment and in his opinion as given you, but men’s opinions and judgments differ.</p> <p>[Now, gentlemen, you have been taken upon the ground and your opinion in this case, as far as you have knowledge, is recognized as good and safe as any other one whose knowledge is not greater as to values and circumstances, and the testimony of witnesses, who may be in this respect called expert witnesses, is only to aid you in coming to a conclusion; you saw the property ; you have a statement as to the amount of ground taken and you saw the buildings; you have a statement as to the situation and convenience and so on; you saw where the railroad company has constructed its trestle work and running cars and have knowledge of the division of the land and have testimony as to the amounts of ground contained in each piece, and have testimony as to the use of the ground by the plaintiffs, and have also testimony as to what ground is needed and necessary to the plaintiffs in the maintenance and keeping up of their business; you take all that and come to a conclusion as near as you can as to what was the real value of this property before it was taken in August, 1896,] [13] then you come next to consider what was its value after the railroad company had taken and constructed its road, the market value, I mean; what the property is worth in the open market where all can bid on it.</p> <p>[The plaintiffs claim that this land has been greatly depreciated ; one reason given is that it divides the land and makes it inconvenient and leaves the amount for buildings too small; another reason is that it has taken away part of the frontage on the West Penn railroad; another reason is that the piece cutoff has no frontage on the West Penn railroad; another reason is that there is danger or risk of fire, all reasons spoken of by most of the witnesses in their testimony. Now these matters have been mentioned by these witnesses; the first thing, gentlemen, for you to consider is, how much do these witnesses know about what they are testifying; what knowledge have they? You have a right to weigh the testimony of each witness and consider whether or not he has knowledge; you have a right to consider whether or not he is able to make an estimate that would be fair and just and right, and you have a right to consider whether or not the witness would be influenced in any way.</p> <p>Before the act allowing parties to testify a party could not testify in his own behalf, but the law permits them to testify and it is right they should ; it is your duty in considering their testimony to consider their knowledge; are they interested in yout verdict? Would that interest influence them in their testimony? When you consider the rest of their witnesses, you have a right to consider what knowledge they have and consider whether a witness who testifies that he does not know the value of the property, whether or not he is a qualified witness to determine the amount of depreciation. The law allows us to admit them, but leaves to you the duty of weighing their testimony and considering whether or not the fact that they do not know the value of the property, whether they would in that event be competent to determine how much the depreciation is. Now, gentlemen, take all these things; so far as fire is concerned, you cannot consider that as a separate item of depreciation or separate item of damages ; you can only consider what effect that would have upon a purchaser were he contemplating the purchase of this property as a whole ; what would a reasonably intelligent purchaser who has knowledge of the business and has knowledge of the running of railroad trams reduce the value of the property on account of the engines passing over and along as it passes here ? Now, gentlemen, in the consideration you would only have a right to consider what damages occurred and accidents took place from the careful operation of the railroad ; if the workmen on the train were negligent and threw out fire and sparks when they should not do it, or if the railroad company was negligent and did not put on good, safe spark arresters and sparks came out on that account and burned tbe buildings, tbe owners here could then collect for that negligence and for that loss in an action brought then, therefore, on that account, yon cannot consider in this case the damage that would occur from negligence on the-part of the railroad company; only such damage as will occur when the railroad company has put on the proper appliances, and when the workmen on the railroad have used due diligence and care in operating the engines and road. You will have to determine this question of fire from your own knowledge and judgment and reason as to what is likely to occur if the railroad company does what it ought to do.] [14] Another question ; you have a right to consider the disadvantage, if any, that the plaintiffs will suffer on account of the road cutting through the land as it does; you have a right to consider the advantage the railroad is to the land; it would not do for you to say that the railroad company gives no special advantage to the plaintiffs; that is a fact for you to consider from the testimony ; if these plaintiffs have no special benefit from this railroad over and against wliat their neighbors have, then consider that fact.</p> <p>Now, gentlemen, you will appreciate that this is an important case, and you will take the evidence by both parties here for what you honestly consider it worth ; you will take into mind the buildings as you saw them and as they are described to you, and carefully sit down as auditors, as you have only one duty to perform, and tliat is to fix the amount of damages, and make an honest audit between tbe plaintiffs and defendant and return a verdict accordingly. You will allow no prejudice to interfere with you; try this case exactly as between two neighbors or two men you never saw; make an honest effort, if yon can, to get at the value of tbe buildings and the depreciation of the value, giving to the plaintiffs a full, just and fair compensation for the damages they have suffered, and you will give to the defendant company every fair consideration, every fair advantage and make out your verdict fairly and justly and honestly; allow no prejudice, allow no feeling, allow nothing to interfere with you. You sit hero as judges of the facts; you occupy an important position; hero are two important companies unable to agree ; you are called in as disinterested persons, as discreet persons ; you have seen the grounds and beard the charge of the court as to the law and the argument of the different parties as to the facts, and it is now for you, under your oaths as men, to carefully sit down in your jury room and give-the case such a careful, fair, unprejudiced examination as will be fair and just to both parties. The plaintiffs here have their land taken; the law recognizes they must have just compensation. The defendant company says it is willing to give just compensation; it is not contending that it ought not to pay compensation, but there is a difference as to the amount of that compensation; and they have brought together all the facts and surroundings and laid them before you, and it is for you to take them up and decide them as between two brothers.</p> <p>Verdict and judgment for plaintiff for $10,800. Defendant appealed.</p> <p>Errors assigned among others were (10-15) above instructions, quoting them; (16,19-22,24, 25-27) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 33, Oct. T., 1899, by defendant, from judgment of C. P.No. 2, Allegheny Co., July T., 1897, No. 753, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before White, 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>[The defendant company has not undertaken to explain how this accident could occur in any other way — by any witness, I mean; at least no witness that I remember giving testimony. It would be incumbent on the defendant company to remove this evidence of imperfect machinery, or negligence, by showing in some way how that accident could occur without any negligence on the part of the defendant company. I do not remember of any witness trying to explain it. It will not do for the jury to imagine something. You can only decide this case upon testimony. It will not do for you to imagine that it could have occurred in some other way.] [2]</p> <p>[What the plaintiff is entitled to recover must be solely by way of compensation: you cannot increase the damages by way of punishing the defendant company. You can only allow, by way of compensation to the plaintiff, what he has expended or may expend, for his loss of earning power, the pain that he may suffer, — purely compensation is the measure of damages in this case.] [4]</p> <p>Plaintiff’s second point and the answer thereto were as follows :</p> <p>The defendant company was bound to use reasonable care in the construction and maintenance of its poles and wires along the highways; it must use reasonable care in selecting poles, wires, feeders and other apparatus used in the construction of its system for propelling ears over its tracks by electricity, and if improperly constructed, or constructed and put in place in a careless and faulty manner, which carelessness and faulty construction resulted in the injuries to plaintiff, without negligence upon his part, he is entitled to recover in this action such damages as will compensate him for his pain and suffering, amount expended by him for medicine, nurses and medical attendance and loss of time and earning power. Answer: Affirmed. [6]</p> <p>Verdict and judgment for plaintiff for $7,657.75. Defendant appealed.</p> <p>Errors assigned among others were (2, 4, 6) above instructions, quoting them.</p> <p>There was evidence of negligence sufficient to submit the case to the jury.</p> <p>The court erred in its instructions as to damages for pain and suffering: Goodhart v. R. R. Co., 177 Pa. 15.</p> <p>cited on the question of damages: Baker v. Penna. Co., 142 Pa. 508; Kyle v. Southern Electric Light & Power Co., 174 Pa. 570; Smedley v. Ry. Co., 184 Pa. 620.</p>

Appeal, No. 9, Oct. T., 1899, by defendants, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1896, No. 286, on verdict for plaintiff. Trespass for injuries to land. Tbe facts are sufficiently stated in tbe opinion of tbe Supreme Court. The court refused to give binding instructions for defendants. Verdict and judgment for plaintiff for $2,187. Defendants appealed. Error assigned was in submitting the case to tbe jury.

<p>Appeal, No. 36, Oct. T., 1899, by-defendant, from judgment of O'. P. No. 2, Allegheny Co.-, Oct. T., 1897, No. 1000, on verdict for plaintiff.</p> <p>Trespass to recover damages for the death of plaintiff’s husband, alleged to have been caused by the act of defendant in furnishing liquor to the deceased while intoxicated. Before White, 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>[In a case of this kind the burden of proof is on the plaintiff, and it must be established to the satisfaction of the jury that the death resulted from the liquor obtained at the defendant’s saloon; in other words, that that must be the direct, or what in law is called the proximate cause of the death. If the death resulted from any other cause, any intervening cause, the selling of the liquor would not be the proximate cause; but there may have been several little incidents occurring, or little things occurring after the sale of the liquor, and if these are also the result of the sale of the liquor they would simply be as links in tire chain of causation, and be related back to the original cause.] [7]</p> <p>A saloon keeper is responsible not only for his own acts, his own personal acts, but he is responsible for the acts of his barkeeper. . . .</p> <p>I may refer, gentlemen, to the language of our acts on the subject. The act of 1887, which is the general license law authorizing the courts to grant licenses to parties to sell liquor by retail, prohibits, absolutely and unqualifiedly, the sale of liquor, or giving it away, because the language is, “ shall not sell or give away ” liquor on an election day, or on the Sabbath clay, or to a minor; and further, “ to any person of known intemperate habits.” That is a positive prohibition. If a man is known to be of intemperate habits ;.if that is well known and the saloon keeper knows it, he cannot sell to that man if he comes into his saloon perfectly sober. It is an utter prohibition against selling to a man of that kind. Very frequently they may say that he is sober; if he is a man of known intemperate habits they cannot sell him one glass of beer, or any other kind of liquor. The law is an absolute prohibition. Further than that, “or a person visibly affected by intoxicating liquors. ”</p> <p>[You have seen to-day and yesterday on the stand here the ideas of some witnesses. They all say the man showed signs that he had been drinking but yet he was not drunk.] [8]</p> <p>There is not much controversy as to what occurred after these parties left the saloon. The main controversy here is as to whether the deceased got liquor in this saloon and whether he was visibly affected by intoxicating liquor at the time he got liquor, and whether the death was the result of the liquor obtained in the saloon. Those are the matters in controversy. If you believe the testimony on the part of the plaintiff’s witnesses, he was under the influence of liquor when he first came into the saloon, and he got a number of drinks there of whiskey and beer, and was very much under the influence of liquor— some of them say drunk, absolutely drunk — and it was in consequence of that that he got into this altercation and quarrel ivith the man in the saloon. Now, there are some witnesses for the defense who say that he was perfectly sober, although one of them, this man Pratt, a witness for the defense, says that he could see that he had been drinking when he came in. If he showed visible signs of being affected by intoxicating drinks, it would be unlawful to sell him, a drink after that. The defendant says he sold him one glass of beer. His barkeeper says that he did not sell him any, and a man by the name of Murphy, who had previously been a barkeeper, said that he was not there at all. One witness said he was not certain whether he got it from the regular barkeeper or from Murphy.</p> <p>[Now, gentlemen, where witnesses contradict each other, you Avill closely scrutinize the testimony, because what a witness says is for the jury; you will not take it from me; and the weight that you will give to any testimony is altogether for the jury — you will, therefore, closely scrutinize the testimony; the manner of a witness giving testimony on the stand; the appearance of that witness, whether he has any interest in the case. Of course the defendant is deeply interested in this case, and that is a matter to be considered by the jury as to his testimony. It is very seldom, I presume, that a saloon keeper or a bartender will admit that he violated the law.] [9]</p> <p>I say you take all this into consideration, to determine whether the deceased, John Roach, got liquor in that saloon when he was visibly affected by intoxicating liquors. If he did, then that was a violation of the law. He may have got liquor elsewhere. No difference about that.</p> <p>[A man may get liquor at a dozen different saloons ; if one man sells him one glass of liquor when he is visibly affected by intoxicating liquors, he is responsible the same as if lie had sold him all the liquor, because every one who sells liquor to contribute to his intoxication is responsible for all the consequences — every one of them.] [6]</p> <p>If you find from the evidence, gentlemen, that liquor was sold to Mm in that saloon, when he was visibly affected by intoxicating liquors, then you pass to the next question: W'as his death the result of that liquor ? Did he get into that quarrel because he was drunk or under the influence of liquor? Did everything that occurred after that relate back to that liquor ? Was he under the influence of liquor all the time, so that in his quarreling and in his running or trying to escape, inconsequence of being under the influence of liquor he lost his life ? If so, then the liquor would be the proximate cause of his death. I may refer to the points of the defendant’s counsel at this point.</p> <p>Verdict and judgment for plaintiff for $5,000. Plaintiff appealed.</p> <p>Errors assigned among others were (6-9) above instructions, quoting them.</p> <p>In determining what is proximity of cause, the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act: West Mahanov Twp. v. Watson, 116 Pa. 850; Ry. Co. v. Trich, 117 Pa. 390; Hoag v. R. II. Co., 85 Pa. 293; Penna. R. Co. v. Hope. 80 Pa. 373; Bradford v. Boley, 167 Pa. 512.</p> <p>Appellant was responsible if his furnishing intoxicating drink to the deceased was the proximate cause of his death; that is, that the death was the natural and probable consequence of the negligence of defendant, such a consequence as under surrounding circumstances, might and ought to have been foreseen as likely to flow from his act: Penna. R. Co. v. Kerr, 62 Pa. 353.</p> <p>If appellant furnished the deceased with intoxicating drink, when visibly affected, it follows under this rule that it was an unlawful and negligent act, if he was a man of known intemperate habits or visibly affected by intoxicating drink: Fink v. Garman, 40 Pa. 95; Taylor v. Wright, 126 Pa. 617; Davies v. McKnight, 146 Pa. 610; Littell v. Young, 5 Pa. Superior Ct. 205.</p> <p>The question of proximate cause where the facts are disputed is for the jury; where they are undisputed, the court may determine it: Bunting v. Hogsett, 139 Pa. 363; Hoag v. R. R. Co., 85 Pa. 293; Pass. Ry. Co. v. Trich, 117 Pa. 390.</p>

Appeal, No. 77, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1896, No. 879, on verdict for plaintiff. Trespass for slander. Before Stowe, P. J. The court charged in part as follows: [The defendant in this case is charged with having alleged or said that the plaintiff was guilty of perjury.

Appeal, No. 93, Oct. T., 1899, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1899, No. 849, on case stated. Case stated to determine the marketable title to real estate. From the case stated it appeared that James B. Linhart died August 20, 1889, seized of the premises in question which were disposed of in his will as follows: “ Item 4th.

Appeal, No. 55, Oct. T., 1899, by plaintiff, front judgment of C. P. No. 8, Allegheny Co., Aug. T., 1897, No. 585, on verdict for plaintiff. Assumpsit to recover tolls. Before McClung-, J. At tbe trial the defendants disputed tbe amount demanded, because tbe rates charged were unreasonable, and sought to set off certain payments of other tolls which they alleged were unreasonable, excessive and illegal, and which they also alleged bad not been voluntarily paid by them.

<p>Appeal, No. 54, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1896, No. 721, on verdict for defendant.</p>

<p>Appeal, No. 56, Oct. T., 1899, by-defendant, from judgment of O. P. No. 8, Allegheny Co., Aug. T., 1897, No. 593, on verdict for plaintiff.</p>

<p>Appeal, No. 52, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1897, No. 586, on verdict for plaintiff.</p>

<p>Appeal, No. 53, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1897, No. 590, on verdict for plaintiff.</p>

<p>Appeal, No. 40, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 3, Allegheny County, Nov. T., 1896, No. 721, on verdict for defendant.</p>

<p>Appeal, No. 44, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny County, Aug. T., 1897, No. 587, on verdict for plaintiff.</p>

<p>Contract — Municipal contract — Co nut,ruction of reservoir.</p> <p>Where a contract with a borough for the construction of a reservoir provides that the reservoir should be built according to definite plans and specifications stated in the contract, but contains no covenant as to results, the contractors are entitled to recover their retained percentages, if they have complied with the terms of the contract, although the reservoir itself may not be water tight. The fact that the contract provided that “the work contemplated .... is the construction of a water tight reservoir,” does not impose upon the contractors the responsibility of making it water tight, because they had no discretion.</p> <p>Where a contract with a borough for the construction of a reservoir provides that the contractor shall be paid upon estimates made by the borough engineer, and the last estimate made by the engineer showed a certain amount due, less the percentage retained until the completion of the reservoir, the contractors are entitled to recover their retained percentage without any further estimate, if the jury find, as the contractors contend, that the contract was in fact, complete at the time the last estimate was made.</p> <p>Where an arbitration clause in a municipal contract made the decision of the engineer final and conclusive, and it appears that the contractors had fully performed their contract according to its terms, and that a defect in the completed structure was not due to any fault of the contractors, the municipality has no right to invoke the arbitration clause.</p> <p>Contract — Evidence—Question for jury — Credibility of witness.</p> <p>Where a ease depends upon oral testimony, such testimony must bo submitted to the jury, as the question of credibility of witnesses is solely for them.</p> <p>In an action against a borough to recover a balance alleged to be due upon a municipal contract, where plaintiffs and their witnesses testily that the contract in every particular had been performed, and the borough denies that the contract was completed and fully performed, but offers practically no testimony in favor of its contention, it is for the jury to determine whether the testimony on the part of plaintiffs is true, and the court cannot take the ease from the jury and direct a verdict in favor of the plaintiff.</p>

<p>Appeal, No. 71, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1899, No. 710, on verdict for plaintiff.</p> <p>Assumpsit on a contract. Before Slagle, J.</p> <p>The court charged in part as follows:</p> <p>The parties agree, that, one day in 1895, Dr. Johnson, the defendant, met the plaintiff upon the street; that he had some growth upon the side of his face or on his nose, and that he asked him to treat him. That he went the same day to Dr. Burgoon’s office and there the conversation occurred, on which the case turns. There is no dispute that Dr. Johnson asked Dr. Burgoon what he would charge for treating him, and that he, at the same time, suggested to him that it was not customary for physicans to charge each other for personal services. They all agree to that. They both agree, further, that Dr. Burgoon told him he would treat him if he would give him a certificate, in case of cure, to that effect; that Dr. Johnson replied it was not professional to do so, that he could not do that because it was not professional that he should do it. Dr. Burgoon says that he then replied to him, “ Well, then, don’t.” At that point comes the difference between Dr. Burgoon and Dr. Johnson, as to what was said. Dr. Burgoon says, “You can give me a certificate in case you are cured, or $5,000.” Dr. Johnson says that nothing was said about the $5,000; that there was no contingency at all upon the question of his giving a certificate, but that he declined to give a certificate because he said it would not be professional for him to do so. There comes a difference between them. Then, Dr. Burgoon says, that when he said, “Well, if ycra don’t want to give a certificate, don’t;” that Dr. Johnson said, “Go ahead,” or, after consideration, he said, “Well, go ahead.” He did not say whether he would accept one of the contingencies or the other, but that lie told him, “ Go ahead.” That was his proposition. Therefore you have a right to infer that he was to go ahead upon the proposition of Burgoon, that he would give him a certificate or pay him $5,000. But Dr. Johnson says that, after saying that he could not give a certificate, Burgoon said, “ Well, then you can speak kindly of me in your profession or practice,” and that he said he would; that upon that Burgoon said he would charge him for the medicine and make no charge for the services, if he would speak kindly of him in case he was cured. Now, you. see, there is the difference. Dr. Johnson says that he simply agreed to speak kindly of him in case he was cured, and that he had since that done so in quite a number of cases to prominent persons whom he was attending or with whom he had an opportunity to speak; that he had spoken of this cure and spoken kindly of Dr. Burgoon, and therefore had complied with his contract. Now, if the contract is as Dr. Johnson testifies, then the plaintiff would not be entitled to recover, because he had agreed to perform this cure for the payment of the medicine, and upon the promise that Dr. Johnson would speak kindly of him. If, however, you find that the contract was as Dr. Bur-goon testifies; that is, that he was to give him a certificate or $5,000, then the obligation was not complied with. It is admitted that Dr. Johnson was cured. He says, partially by his own action and partly by Dr. Burgoon, but he refused to give him this certificate. . . .</p> <p>The first question for you to determine is whether or not the contract was as claimed by Dr. Johnson, or whether it was as claimed by Dr. Burgoon. If you believe or find that it was as testified to by Dr. Johnson then your verdict should be for the defendant; if you find that it was as claimed by Dr. Bur-goon then the plaintiff is entitled to recover something, but not the $5,000 mentioned in the bargain, because, as stated by the counsel, in a contract like that the law regards the arrangement for the paying of a sum of money in that way as a penalty, and the law does not favor penalties. The law simply regards a man as entitled to that which he has justly earned; that he is entitled simply to compensation, and is entitled to nothing by way of penalty. [In our judgment this contract would make the $5,000 condition a penalty, and therefore it cannot be recovered.] [1]</p> <p>[There was another question raised by counsel as to whether or not the measure of recovery should be the value of the certificate or the value of the services. Well, the value of the certificate is of a character which cannot be ascertained. Therefore, we do not think it is to be considered in determining the case, because in the very nature of it it is incapable of any estimation. It would simply be conjecture. Therefore the plaintiff would be limited in his recovery to the value of the services rendered, and no more, and we so instruct you in this case. If we are wrong we can be corrected, but you will take it and determine it in that way, as to the value of the services.] [2]</p> <p>Verdict and judgment for plaintiff for $225. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p> <p>The cases as far back as the case in 1 Salk. 170, are to the effect that if one agrees to do one of two things, and fails to do one, then the other must be performed: Barkworth v. Young, 4 Drewry, 1; Sedgwick on Damages, sec. 423; Wilkinson v. Colley,-164 Pa. 35.</p> <p>The error of the court was in first concluding that the $5,000 was a penalty, and then in deciding that if it were a penalty the measure of damages was the value of the services, thereby altogether setting aside the contract, and saying that the services were to be recovered on a quantum meruit.</p> <p>— The $5,000 was a penalty: Streeperv. Williams, 48 Pa. 450; Matthews v. Sharp, 99 Pa. 560; Clements v. R. R. Co., 132 Pa. 445; Kunkel & Jordan v. Wherry, 189 Pa. 198.</p>

Appeal, No. 103, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1898, No. 104, on verdict for plaintiff. Assumpsit for goods sold and delivered. Before McClung, J. The facts appear by the charge of the court, which was as follows: This case really, when reduced to its elements, is a very simple one.

Appeal, No. 83, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1897, No. 196, on verdict for plaintiffs. Assumpsit to recover rental for gas reserved in an oil and gas lease. Before Kennedy, P. J. The material portions of the lease and the facts of the case are set forth in the opinion of the Supreme Court. Defendant’s points and the answers thereto were as follows: 1.

<p>Appeal, No. 76, Oct. T., 1899, by defendant, from judgment of C. P. No. 2, Allegheny County, July Term, 1897, No. 288, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Shaeer, J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Defendant’s first point and the answer thereto were as follows :</p> <p>1. The uncontradicted evidence showing that — at the time the collision occurred between the car and the wagon on which plaintiff was riding — a board pile from twelve to sixteen feet square and from ten to twelve feet high stood within a few feet of defendant’s track, and between the approaching car and the wagon as it drove down towards the crossing of defendant’s railway; that when' plaintiff’s horses got within three or four feet of the track plaintiff stopped, stood up on his wagon, could see down along the tracks for at least a quarter of a mile, looked, but saw no car; that he never looked again for an approaching car, but sat down upon his wagon, tried to drive on and across the tracks, but was unable to go forward because of the inability of his horses to draw the loaded wagon — the wagon being stuck; that he then backed his wagon from ten to fifteen feet; that at this point he could have seen down along the tracks for a distance of a quarter of a mile had he turned his eyes in that direction, but without looking' he'started up his horses, passed behind the board pile and drove out upon the track with a spurt, and before he could get over the first track upon which he entered the collision between the ear and wagon occurred — the facts - hereinbefore recited appearing under the uncontradicted evidence, plaintiff was guilty of negligence which contributed to the injuries complained of, and he cannot recover in this action. Answer: Refused. [1]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned among others was above instructions, quoting them.</p> <p>Plaintiff was guilty of contributory negligence: Penna. R. Co. v. Fortney, 90 Pa. 323; Carson v. Federal Street & Pleasant Valley Ry. Co., 147 Pa. 219; Ehrisman v. Harrisburg City Pass. Ry. Co., 150 Pa. 180; Omslaer v. Traction Co., 168 Pa. 519; Schmidt, v. McGill, 120 Pa. 412; Nugent v. Traction Co., 181 Pa. 160.</p> <p>cited Smith v. B. & O. R. R. Co., 158 Pa. 82; Jones Bros. v. Ry. Co., 9 Pa. Superior Ct. 65; Safe Deposit Co. v. Ry. Co., 6 Pa. Superior Ct. 204; Penna. R. Co. v. Barnett, 59 Pa. 264; Me Neal v. Ry. Co., 131 Pa. 184; Ellis v. R. R. Co., 138 Pa. 506; McGill v. Ry. Co., 152 Pa. 331; Whitman v. Penna. R. Co., 156 Pa. 175; Downey v. Pittsburg, etc., Traction Co., 161 Pa. 131; Callahan v. Phila. Traction Co., 184 Pa. 425.</p>

<p>Landlord and tenant — Distress—Bailment—Soda fountain.</p> <p>Whore a soda water fountain has been leased to the proprietor of a drug store, who occupies a leased room, and the lessor of the fountain has not exercised his right to take possession of it before the issuance of a landlord’s warrant, the right of the landlord to distrain is not defeated by the fact that, at the tenant’s request, he had previously appointed an agent to supervise the tenant’s business, if it appears that the landlord did not purchase the'business, but that the tenant remained in possession, continued 1o conduct the business, and at any time could have excluded the landlord and his agent from the store.</p>

Appeal, No. 98, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1896, No. 225, on verdict for plaintiff. Trespass for injury to plaintiff’s horse. The circumstances relating to the accident are fully stated in the opinion of the Supreme Court.

<p>Appeal, No. 108, Oct. T., 1899, by Roger O’Mara, from order of C. P. No. 8, Allegheny Co., Nov. T., 1898, No. 262, overruling exceptions to report of viewers.</p> <p>Exceptions to report of viewers.</p> <p>The substance of the exceptions are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in sustaining exceptions to report of viewers.</p> <p>The case is ruled by Hammett v. Philadelphia, 65 Pa. 146. The other principal leading cases on the subject of local taxation for general purposes are Washington Avenue, 69 Pa. 352, Seely v. Pittsburg, 82 Pa. 360, Craig v. Philadelphia, 89 Pa. 265, and Scranton v. Pennsylvania Coal Company, 105 Pa. 445, in all of which Hammett v. Philadelphia is discussed, approved and followed.</p> <p>A benefit or enhancement of value inuring to all properties in the neighborhood cannot be taken into account as part of the benefits to be assessed against the abutting properties: More-wood Avenue, Chambers’s App., 159 Pa. 36 ; Dawson v. Pitts-burg, 159 Pa. 817; Pittsburg’s Petition, 138 Pa. 401.</p> <p>The abutting properties are not liable, in any event, for the cost of laying of sidewalks on Beechwood avenue, because the ordinance authorizing the improvement does not specify in the title thereof the laying of sidewalks as part of the improvement.</p> <p>The city has, as was its duty to do, already made an appropriation of the money necessary to pay the cost of the improvement of Beech wood avenue, by the issue of bonds to the amount of 1500,000.</p> <p>The ordinance does ordain that the work be done.</p> <p>Appellant in its paper-book argues, that the petition of the property owners was not such a petition as is contemplated by the act of 1891, because it specifies that the pavement is to be macadamized, and because two of the signers stipulated that the city shall not grant a right of way over the street to any street car line. This matter does not appear to have been mentioned in any of the exceptions filed in the court below. The attention of the lower court was not directed to it, nor does it appear to be assigned for error. Under these circumstances it is not necessary to make reply. We ask, however, the attention of this court to the provisions of the Act of May 16,1891, P. L. 75. Ample provision is made for ascertaining whether the “ requisite majority ” “ as required by this act ” have signed:— in other words — whether the petition is a proper one under which to proceed. And this provision is as much for the protection of the city as for the property owners.</p>

<p>Appeal, No. 105, Oct. T., 1899, by Michael Harrison, from order of C. P. No. 3, Allegheny Co., Nov. T., 1898, No. 262, overruling exceptions to report of viewers.</p>

<p>Appeal, No. 106, Oct. T., 1899, by John P. Ober, from order of C. P. No. 3, Allegheny Co., Nov. T., 1898, No. 262, overruling exceptions to report of viewers.</p>

<p>Appeal, No. 110, Oct. T., 1899, by A. B. Ziegler, from order of C. P. No. 3, Allegheny Co., Nov. T., 1898, No.' 262, overruling exceptions to report of viewers.</p>

<p>Contract — Principal and Surety — Agreement to pay mortgage — Indemnity.</p> <p>Where the grantee of land, for a valuable consideration, assumes the payment of a mortgage upon the land, and subsequently the land is sold in foreclosure proceedings, and a judgment for a deficiency in the mortgage debt is recovered against the grantor, the latter has an. immediate right of action against the grantee, although he may not have paid the judgment against him.</p>

<p>Negligence — Master and servant — Ballasting track.</p> <p>In Pennsylvania a railroad company owes no duty to its employees or to the public to maintain a safe footway the length of its i-oadbed.</p> <p>A brakeman in the employ of a railroad company is not entitled to recover damages from the company for personal injuries resulting from a fall between two ties where the ballast had been washed out; nor does the fact that the accident occurred upon a side track or in a yard change the rule.</p> <p>Negligence — Damages — Personal injuries— Carlisle tables — Annuity tables.</p> <p>In submitting the Carlisle tables to a jury in an accident case, the court should carefully instruct the jury that the tables are not conclusive of the plaintiff’s expectancy of life, and are not entitled to serious weight unless by precedent proof the plaintiff has brought himself clearly within the class of selected lives tabulated.</p> <p>Annuity tables are not admissible as evidence in actions for personal injuries.</p>

<p>Wills — Issue devisavit vel non — Credibility of witnesses — Expression of opinion in charge.</p> <p>On the trial of an issue devisavit vel non, where the evidence is contradictory and the case turns almost wholly upon the credibility of the witnesses, an expression of an opinion by the trial judge in his charge, though dangerously close to the line of trespass on the province of the jury, is not a ground for reversing the judgment, if it appears that there was no erroneous statement of the law, no suppression or distortion of the evidence, and no imposition of the judge’s opinion as binding on the jury-</p> <p>In an issue devisavit vel non the judge sits as a chancellor, and must be allowed a very large discretion in his control of the findings.</p>

<p>Appeal, No. 39, Oct. T., 1899, by defendant, from judgment of C. P.No. 2, Allegheny Co., July T., 1896, No. 700, on verdict for plaintiff.</p> <p>Assumpsit to recover commissions on sales. Before ShaEER, J *</p> <p>At the trial, these facts were shown: The plaintiff, a limited partnership association, sold on commissions to E. W. Clark a large quantity of steel for the Wheeling Steel Works. Edmund D. Smith and W. G. Mendenhall, who did business in Philadelphia under the name of Edmund D. Smith & Company, were on the board of. managers of the plaintiff association, and they also represented E. W. Clark & Company. There was evidence that Edmund D. Smith was also the representative of the Wheeling Steel Works of Philadelphia. On October 24, 1890, Edmund D. Smith & Company wrote plaintiff a letter which contained the following passage:</p> <p>“You understand the game. Now play it as though you were moving chessmen. ... We certainly did not expect to keep the Wheeling people in suspense so long, but, then, if we encroach a little on their good nature and they get mad iñ consequence, we look to you to get them out of their ‘ mad.’ At this distance we can stand it with perfect equanimity, but, really, we are sorry for you when you take your trips to Wheeling. But then that is what you are paid for. How do you think Wheeling would like to cancel the order.”</p> <p>In another letter they said:</p> <p>“ We, however, expect to arrange with Mr. Houston to give us specifications for a thousand tons. You will then have to play the Wheeling people along by giving them shipping directions for 500 tons and holding back shipping directions for Lie balance.”</p> <p>In a letter of September 27,1890, to Yandevort & Company, Limited, Smith said:</p> <p>“ Clark’s Steel. In reference to this material, we certainly think it will be to our interest to work the matter so that Clarks may get out with as little loss as possible, and if any converting arrangement can bo made that will help in reducing their loss, it would pay us, in the long run, to sink any small commission we might have in the matter, and would encourage them to future business in this line. We feel that we have just made a start with this firm in handling their steel, as they have handled large quantities of it heretofore, and we know they will appreciate our efforts to get them out with as little loss as possible, and that it will pay us handsomely in the future, in the shape of new business. Any arrangement your fertile brain can work up to this consummation, we will be glad to hear of, and to submit them. If you are as successful in ‘ converting ’ arrangements as you are in ‘ puddling ’ arrangements, the field opened is a large one. We are trying to negotiate a sale to-day on their account with the Lukens Iron & Steel Company for 1,000 tons for October delivery, and are doing our best to get $29.75 Wheeling for this material. We have not succeeded in doing this yet, but are waiting a telegram from them on the subject. Any work we do at this end in the steel business we do not charge Clarks any commission, and we think it is good judgment to waive commission to them on a losing transaction in view of future business.”</p> <p>Other facts will appear from the following portions of the charge of the court:</p> <p>.... This action is founded upon a contract made with the Wheeling Steel Works, which is another corporation of the state of West Virginia, and is not a party to this suit. Ordinarily, of course, there could he no recovery against a defendant upon a contract made by the plaintiff with some other person than the defendant; but where, as is admitted to be the fact in this case, the party with whom the contract was made transfers all its property and business to the defendant, with a contract to pay the debts of the concern, that in Pennsylvania gives a right of action directly against the party who has agreed to pay the debts, and if there is to be any recovery at all, it is admitted here very frankly by the defendants that- they are in that position, having purchased the property and effects of the Wheeling Steel Works, and for the purposes of this case stand in their shoes, so that that question is not now in the case.,. . .</p> <p>The contract here consists, as testified to by the plaintiff and not denied, first, of an oral conversation or agreement between these parties as to the sale by the Wheeling Steel Works to Clark & Company, of Philadelphia, of 5,000 tons of Bessemer steel billets and slabs, and of a letter addressed by Vandevort & Company, Limited, to the Wheeling Steel Works, in which it is stated that it is understood “ that you are to allow us twenty-five cents per ton commission upon this sale,” and the reply of the Wheeling Steel Works to that, stating that they returned the contract for the 5,000 tons of steel. That would be an acceptance of the terms of this letter, and would be an agreement on the part of the Wheeling Steel Works to pay Vandevort & Company twenty-five cents a ton. Upon the face of that contract, and without anything else in the case, I would say that the contract meant that this money was earned and the twenty-five cents per ton was due upon the signing, of the contract.</p> <p>There are, however, one or more circumstances in the case from which you might infer that that was not the proper meaning of the contract — two circumstances, perhaps, to be considered in determining that. In the first place, after this contract was made in June, 1890, Vandevort & Company proceeded to negotiate between the Wheeling Steel Works and the purchasers from them, Clark & Company, in regard to the deliveries, and carried on a very considerable and extended correspondence about that matter, and after the only deliveries were made which were ever made, in fact, Vandevort & Company rendered to the Wheeling Steel Works a bill for commission on steel sold E. W. Clark & Company, 1,512 tons at twenty-five cents, $378, and received payment for that amount. Now, from those two circumstances, from the fact of their carrying on this correspondence afterwards about the deliveries, and in regard to the postponement of deliveries and so on, and the rendering of the bill in this shape, you are at liberty to infer, if you think that was the case, that the contract was not to pay twenty-five cents per ton immediately, or at all events, but that it was contingent upon the delivery of the iron.</p> <p>You heard, however, the explanation of Mr. Vandevort in regard to that. As to the correspondence, he says that it was carried on, as I understood him to say, practically for the accommodation of these parties, because he was here in Pittsburg, and had telephone communication with Wheeling; and Smith & Company were in Philadelphia, and in easy communication Avith Clark & Company, and, as a matter of convenience, they carried on this correspondence along Avith their other correspondence about other transactions and other people, and that it Avas a mere matter of accommodation and convenience to these parties to do that, but that he considered the money earned, as the letter would appear to indicate it was, when the contract was originally made, and that he did not have to depend upon the delivery. As to the rendering of a bill, you heard his statement that he believed he had rendered a bill for the whole amount at first, but that it Avas not customary to call for the payment of the money until the deliveries Avere made, and that then, having received a statement from the Wheeling Steel Works that they had delivered so much, he called upon them by this bill to pay that amount, but he didn’t mean to indicate by that that it was all they owed him at that time; but he didn’t expect them to pay it until they had made delivery, or some equivalent to delivery. ... If you should find that the plaintiff was not to got the money unless the steel was delivered, or unless the defendant received the benefit of the contract, at least, then it would be necessary to consider whether or not, in the absence of delivery, the fact that they had sued and recovered damages for the breach of the contract, would entitle the plaintiff to‘his money in the same manner as if the steel had been delivered. As the contract is in writing here, but the conduct of the parties in regard to it was such as to allow you to infer that it was somewhat otherwise than the writing would by itself appear, to indicate, I will leave it to you to say whether or not under all the evidence the recovery of judgment by the Wheeling Steel Company against Clark &■ Company, thereby obtaining damages for the breach of this contract, whether under all the circumstances thefinoney was then earned.</p> <p>If you are of opinion that under all the evidence, taking the contract as you find it to have really been, that he is not entitled to recover, you will say so and that will dispose of the whole case and you will find a verdict for the defendant. But if you should think that the defendant here, while it did not actually deliver the iron and get paid for it, having recovered the damages for the nondelivery of the iron, is liable under the contract as you should find it to be modified and interpreted by the acts of the parties, then the next question would be whether the defense which is set up by the defendant is a sufficient one, and I have no hesitation in saying to you, gentlemen, as has been stated here by counsel, that this is a new and somewhat difficult question, and I am not at all sure that what we will do in the matter will be right. It is claimed by the defendants, and not denied, in part at least, that this firm or limited partnership of Yandevort & Company, which is the plaintiff in this case, for you will understand it is not Mr. Vandevort himself that is plaintiff, but Vandevort & Company, Limited, that this firm was composed of some six gentlemen; that these gentlemen were all of them managers of the firm, under the limited partnership law; that two of these gentlemen who were managers of this firm, Smith & Mendinhall, were partners in this same business of iron brokerage in which the plaintiff was engaged, and had their office in Philadelphia, and as such were agents for Clark & Company, who bought the steel. And it is contended by the defendant that the mere fact that the brokers for the purchaser were managers of this limited partnership, which was the broker of the defendant, deprives the plaintiff of the right to recover any commission, it not appearing, for one thing, that the defendant knew that Smith & Company were members of this firm which they had employed as brokers. It is further contended by the defendant that this firm of Smith & Company, who were managers of the plaintiff firm, disregarding the duty which it is claimed they owed as members of the firm of Vandevort & Company to the defendant, made representations to the defendant in behalf of their client, the purchasers, Clark & Company, endeavoring to induce them to postpone these deliveries, and that such action was in bad faith and injurious to the defendants, and whether injurious finally or not it was not good faith towards the defendant company, and therefore the plaintiff company, some of whose managers these men were, cannot recover.</p> <p>The remainder of the charge is sufficiently quoted in the opinion of the Supreme Court.</p> <p>The court refused to give binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,205.98. Defendant appealed.</p> <p>Error assigned was refusing binding instructions.</p> <p>-It was the duty of F. F. Vandevort & Company, Limited, to disclose to the Wheeling Steel Works that Edmund D. Smith and W. G. Mendinhall, two of its managers, were acting adversely to them: Meche m on Agency, sec. 952; Frankel v. Wathen, 59 Hun (N. Y.), 543.</p> <p>There is no question that if the agent was acting for both parties there can be no recovery of his commissions : Everhart v. Searle, 71 Pa. 256; Cannell v. Smith, 142 Pa. 25; Rice v. Davis, 136 Pa. 442; Finch v. Conrade, 154 Pa. 330; Mechem on Agency, sec. 643.</p>

<p>Appeal, No. 111, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1898, No. 448, on verdict for plaintiff.</p> <p>Assumpsit to recover storage charges on whisky. Before McClung, J.</p> <p>At the trial it appeared that the warehouse receipts contained the following stipulation, “ Storage and charges payable every six months from date.”</p> <p>J. McF. Carpenter, of counsel for defendant, made the following offer:</p> <p>1 propose to show by the defendant that at the time he made his agreement for the storage of the whisky subsequently stored with the defendant company, he had an agreement with Mr. Bailey, the secretary of the Union Storage Company, and the man who had active charge of the business, by which the terms of the printed certificate to be issued by the storage company were so far modified that the storage charges on the whisky, instead of being payable every six months, were to be payable when the whisky was withdrawn and the tax paid, and that it was upon the faith of this agreement that he stored the whisky with the plaintiff company.</p> <p>Geo. B. Gordon, of counsel for plaintiff: That is objected to as incompetent and irrelevant, as being an attempt to vary the written contract which was subsequently entered into, and consists of the letter and warrants upon which the suit is brought, by mere evidence as to a prior understanding, and further, that it does not constitute any defense to the present action, even if it be taken to be part of the contract.</p> <p>The Court: Objection sustained. Bill sealed. [1]</p> <p>Mr. Carpenter: I propose to show by the defendant that he sold and issued the ordinary warehouse receipt to the purchaser for 610 barrels of this whisky; this evidence to be followed by evidence that said sales were made subject to storage charges on the whisky, in conformity with the arrangement made between the defendant and Mr. Bailey, the representative of the storage company, prior to the storage of this whisky, and that in making the sales, the accrued storage charges to the date of sale were deducted from the price and followed the whisky, so that the same should be paid when the whisky was withdrawn from the warehouse and tax on it paid.</p> <p>■ Mr. Gordon: While counsel for plaintiff does not think that the testimony is relevant or competent, the plaintiff has no desire to collect from the defendant any storage charges on any whisky, the title to which was not in him at the time of the fire, and if the evidence is given here in such shape that the plaintiff may have information as to who the parties were that took the whisky with that understanding, that the storage charges followed, and what particular warrants they were that were so transferred, plaintiff has no objection to the evidence nor to allowing a credit for the amount.</p> <p>Mr. Carpenter: The mere matter of the credits we can easily adjust. But this offer is made, not only for the purpose of getting the necessary credit for 610 barrels, but it is intended to be made the basis of our defense in that respect, that as a matter of fact, the contract between Mr. Bailey and Mr. Speck was, that no storage charges were to be paid, and that there was no stipulation on the part of Mr. Speck to pay storage charges on whisky, until it was withdrawn, whether by him or his customer.</p> <p>Mr. Gordon: I object to this new statement of the offer as being within the court’s prior ruling, and incompetent and irrelevant.</p> <p>The Court: The objection is sustained. We will, of course, allow the defendant to prove that any one else had been substituted as the debtor for this storage, and that, the plaintiff, I understand, does not object to. But as the offer now stands, with the explanation of the purpose, we will have to sustain the objection. Bill sealed. [2]</p> <p>Mr. Carpenter: I now renew the offer to prove the circumstances and conditions under which the whisky was stored with the Union Storage Company, to wit: that before the goods were stored, and as one of the conditions thereof, it was distinctly agreed between the defendant and S. Bailey, who was the secretary and representative of the storage company, that no storage charges would be demanded from the defendant except when the whisky or any portion of it to be stored should be withdrawn by him or his vendees, and that at that time the charges against the whisky withdrawn should be paid by the party withdrawing it; and that it was on the faith of this agreement that the whisky was stored.</p> <p>Mr. Gordon: That is objected to as incompetent and irrelevant, and within the prior ruling of the court.</p> <p>The Court: Are you asking interest here on those storage charges ?</p> <p>Mr. Gordon: From the date of the fire.</p> <p>The Court: The objection is sustained. Bill sealed. [3]</p> <p>Mr. Carpenter: I now offer to prove by the witness on the stand that the method of transacting business, such as he has testified to, was as follows: That upon the sale of whisky the storage charges up to the time of sale were retained out of the purchase price, the purchaser buying subject to the lien of the storage charges; that that was the usual customary method adopted by the trade in transacting said business; that it was well known to the defendant company who knew that there was no personal liability assumed by the defendant except where he would withdraw the whisky from bond and storage.</p> <p>Mr. Gordon: Objected to as incompetent and irrelevant.</p> <p>The Court: Objection sustained. Bill sealed. [4]</p> <p>Defendant’s points and the answers thereto were as follows:</p> <p>,1. Under all the evidence in this case the verdict must be for the defendant. Answer: Refused. [5]</p> <p>2. If the first point be refused under the certificate or ware' house receipt issued by the Union Storage Company, said company acknowledged the receipt of the whisky numbered and described in the certificate, and agreed to deliver the same to the order of the defendant, and as there is no proof of delivery and no evidence which would exonerate the Union Storage Company from responsibility to deliver, the verdict must be for the defendant. Answer: Refused. [6]</p> <p>3. By the terms of the contract between the Union Storage Company and the Liverpool and London and Globe Insurance Company disclosed by the plaintiff’s, statement, the contract was for the insurance of the interest of the Union Storage Company against loss; was not for the insurance of the indebtedness alleged to have arisen between the Union Storage Company and J. J. Speck, and no right to maintain an action against J. J. Speck personally grows out of the contract of insurance above mentioned, and therefore the defendant is entitled to a verdict. Answer: Refused. [7]</p> <p>The court gave binding instructions for the plaintiff.</p> <p>Verdict and judgment for plaintiff for $5,863.13. Defendant appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5-8) above instructions, quoting them.</p> <p>Parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation, though it may have the effect of varying or changing the terms of a written contract: Thomas & Sons v. Loose, Seaman & Company, 114 Pa. 35; Ott v. Oyer, 106 Pa. 6; Walker v. France, 112 Pa. 203; Hoopes v. Beale, 90 Pa. 82; Honesdale Glass Company v. Storms, 125 Pa. 268; Bown v. Morange, 108 Pa. 69.</p> <p>George B. Gordon, with him John Balzell and William Scott, for appellee.</p> <p>The offers were clearly incompetent, as a mere effort to modify a written contract by parol: Wodock v. Robinson, 148 Pa. 503; Hostetter v. Baltimore & Ohio R. R. Co., 11 Atl. Rep. 609; Porter on Bills of Lading, sec. 64; O’Rourke v. 221 Tons of Coal, 1 Fed. Rep. 619; Morrison v. Davis & Co., 20 Pa. 171; Baltimore & Philadelphia Steamboat Co. v. Brown, 54 Pa. 77; Irvin v. Irvin, 142 Pa. 271; Baer’s App., 127 Pa. 360.</p> <p>At all events, the parol understanding was not sufficient to constitute any defense in this case.</p>

Appeal, No. 118, Oct. T., 1899, by John Kevan and Stella K. Bryce, from decree of O. C. Allegheny County, Sept. T., 1898, No. 80, and Nov. T., 1898, No. 52, dismissing exceptions to adjudication. Exceptions to adjudication. John Bryce died August 3, 1888, leaving a widow, Mary Bryce, and four children, viz: Charles K., Robert D., John P. and Tda Bryce.

Appeal, No. 132, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1898, No. 667, on verdict for plaintiff. Assumpsit on a promissory note. Before Stowe, P. J. At the trial the defendant alleged that she was an accommodation maker of the note in suit which had been signed by her and indorsed by her husband.

<p>Appeal, No. 144, Oct. T., 1899, by defendant, from judgment of C. P. No. 2, Allegheny County, July T., 1897, No. 175, on verdict for plaintiff.</p> <p>Assumpsit to recover a deficiency in gross receipts. Before White, P. J.</p> <p>The contract sued upon was as follows :</p> <p>“ This agreement made the 25th day of November, 1889, between the Little Saw Mill Valley Turnpike or Plank Road. Company, party of the first part, a,nd the Federal Street & Pleasant Valley Passenger Railway Company, party of the second part, witnesseth, that the party of the first part hereby agrees that so much of the railway of the party of the second part as is situate on the turnpike or plank road of the party of the first part, and extending from North avenue in the city of Allegheny, Penna., to the present stable of the party of the second part, may be changed to and operated as an electric railway. In consideration thereof said party of the second part hereby guarantees that the gross receipts of the party of the first part from tolls on its entire turnpike or plank road, shall not fall short of what they were for the year ending December 31, 1889, and if that be the case, said party of the second part will each year make up and pay the deficiency to said party of the first part, and said party of the second part, will also bear one half of the expense of keeping in repair that portion of said turnpike or plank road occupied by it, viz., from North avenue to the present stable of said party of the second part, and the above guarantee as to tolls and agreement as to repairs, shall continue so long as the party of the second part shall occupy the turnpike or plank road of the party of the first part, or rmtil such time as said turnpike or plank road shall become open to the public, without payment of toll by condemnation or otherwise; and it is further agreed by said party of the first part that it will keep its turnpike or plank road in as good condition as at present and shall use due diligence in collecting tolls. It is further agreed that satisfactory arrangements shall be made between the parties as to character and kind of rails to be used and manner of laying the same, and this agreement is dependent upon such arrangements being made. It is further agreed that the party of the second part shall at its own expense have the right to change the location of the toll house of said party of the first part, from its present site at or near the stable of the party of the second part, to a lot belonging to, or in the possession of, the party of the second pait, and situate on said turnpike or plank road opposite the mouth of Royal street, and to continue the same on said lot free from rent so long as the said turnpike or plank road remains a toll road.</p> <p>“ In testimony whereof the presidents of said corporations have hereto affixed the seals of their respective corporations, and have also set their hands the day and year aforesaid.</p> <p>“Little Saw Mill Valley Turnpike or Plank Road Co.,</p> <p>“ Hay Walker, Jr., Sec. and Treas.</p> <p>“Federal St. & Pleasant Valley Pass. Ry. Co.,</p> <p>“ D. F. Henry, Pres.”</p> <p>The following is a statement of the deficiency in gross receipts :</p> <p>“ Allegheny, Pa., April 8,1897.</p> <p>“ Federal Street and Pleasant Valley Passenger Ry. Co. Dr. “To Little Saw Mill Valley Turnpike or Plank Road Co.</p> <p>Dec. 31, 1893. To decrease in tolls for year ending Dec. 31, 1893 .... $ 632.70</p> <p>Dec. 31, 1894. To decrease in tolls for year ending Dec. 31, 1894 . . . . . 1,532.20</p> <p>■ Dec. 31, 1895. To decrease in tolls for year ending Dec. 31, 1895 .... 1,662.60</p> <p>Dec. 31, 1896. To decrease in tolls for year ending Dec. 31,1896 ..... 2,601.33</p> <p>“Total . . . ' . . . . $6,428.63”</p> <p>Defendant’s points and the answers thereto were as follows:</p> <p>1. The measure of the power of the plaintiff and defendant company is to be found in their respective charters, and there being no legislative authority granting to either the plaintiff or defendant company power to enter into the alleged contract sued on, such contract, even if made, is ultra vires, and the plaintiff cannot recover in this case. Answer: Refused. [1];</p> <p>2. The alleged contract sued upon in this case was made by the president of the company, without authority from the corporation defendant, or its board of directors, and' was therefore unauthorized and the plaintiff cannot recover in this case. Answer: Refused. [2]</p> <p>3. Under all the evidence in this case, the verdict should be. for the defendant. Answer : Refused. [3]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p> <p>When the legislature of Pennsylvania incorporated the Federal Street & Pleasant Valley Passenger Railway Company, they did not authorize the formation of a guarantee or insurance company.</p> <p>The powers of a corporation are bounded upon all sides by the authority contained in its charter: Thomas v. Railroad Company, 101 U. S. 71; Morawetz on Private Corporations, sec. 192.</p> <p>The powers of a president of a corporation are such only as he derives from the board of directors, or any other authority to which he owes his appointment: Clark on Corporations, p. 495; Potts v. Wallace, 146 U. S. 689; Davis v. Old Colony Railroad Co., 131 Mass. 258.</p>

<p>Appeal, No. 141, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1898, No. 516, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Slag-le, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>cited on the question of contributory negligence: Chartiers Twp. v. Phillips, 122 Pa. 601; Railroad Co. v. Cadow, 120 Pa. 559; Ferguson v. Traction Co., 9 Pa. C. C. R. 147; Gould v. McKenna, 86 Pa. 297; Hannigan v. Navigation Co., 23 W. N. C. 576; Railroad Co. v. Greiner, 113 Pa. 600.</p>

<p>Wills — Gift afincóme.</p> <p>A gift of the income of land is a gift of the land itself.</p> <p>Will — Devise—•“ Family."</p> <p>A devise over in case a daughter should die “ without leaving a family,” is an implied devise to her family if she should leave one.</p> <p>Will — Devise—“ Die without leaving family " — Rule, in Shelley's case.</p> <p>A devise to a daughter of the income of real estate “ as long as she lives, but should she die .without leaving a family” then over, means death without issue or heirs of the daughter’s body, and this refers to an indefinite failure of issue, which creates a fee tail in the first taker, enlarged to a fee simple by tl^e statute.</p>

Appeal, No. 157, Oct. T., 1899, by plaintiffs, from order of C. P. No. 3, Allegheny Co., Aug. T., 1898, No. 574, refusing to take off nonsuit. Trespass for personal injuries for a boy five years of age. At the trial it appeared that on May 6, 1897, Dennis Levin, a boy five years old, got upon the lower step of the front platform of an eleetrie car which was standing in the barn. The front platform of the car was enclosed, half with wood and half with glass.

<p>Appeal, No. 151, Oct. T., 1899, by-defendant, from judgment of C. P. No. 2, Allegheny County, April T., 1898, No. 83, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before White, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>1. It was the duty of the plaintiff, under all the circumstances in this case, when he drove off the inbound track on to the outbound track to let the inbound car pass him, to stop his team and wait until the inbound car had passed him, and then reeross to the inbound track. Answer: Refused. [1]</p> <p>2. The plaintiff was guilty of contributory negligence and therefore cannot recover. Answer: Refused. [2]</p> <p>3. The defendant was not guilty of any negligence, and therefore plaintiff cannot recover. Answer: Refused. [3]</p> <p>■' 4. ■ Under all the evidence the verdict must be for the defendant. Ansiver: Refused. [4]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p> <p>cited Yingst v. Lebanon, etc., St. Ry. Co., 167 Pa. 442.</p>

<p>Payment — Appropriation of payments — Debtor and creditor.</p> <p>A debtor may appropriate his payments as he sees fit at the time he makes them. If he make no appropriation the creditor can make it on one or more of several obligations; if neither the debtor nor the creditor make an appropriation, then the law will make one to the debts oldest in point of time. Where the debtor makes no appropriation the creditor may apply the payment to that item of debt which to him seems least secure.</p> <p>Where a debtor who is liable to a creditor on several obligations assigns to him an interest in a mortgage, and records the assignment, which contains no terms as to the application of the amount, and the creditor accepts the payment and formally notifies the debtor of the appropriation of the payment to a particular indebtedness, the debtor cannot, ten days afterwards, object to such appropriation.</p>

<p>Appeal, No. 7, Oct. T., 1899, by-defendant, from order of C. P. No. 1, Allegheny Co., March T., 1898, No. 461, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the statement and of the affidavit of defense are set forth in the opinion of the Supreme Court.</p> <p>The court made the rule absolute.</p> <p>Error assigned was the order of the court.</p> <p>Different systems of issuing licenses for liquor selling were in force in Allegheny county from 1834 down to 1887, and under each and all of them the county treasurer collected the license fees and was compensated by the state for so doing: Act of March 31, 1856, P. L. 200; April 20, 1858, P. L. 365; April 3, 1872, P. L. 843.</p> <p>The money when paid to the county treasurer was the state’s money, and it was money received and collected by the county treasurer for the state, and being thus received and collected for the state it comes directly under the provisions of the act of 1834, which gives to the county treasurer the commission therein stated. That the commission to be retained was under tbe provision of the act of 1884, is seen from the language of this act of 1887.</p> <p>The further proviso to the act of 1887 intended that the treasurer might have his commissions, not only in cases where he actually paid over the money to the state, or the city under the state’s directions, but on the entire license fees. The act provided that the treasurer was entitled to a commission even on the amount which he received and kept for the use of the county. This was ex majore cautela, and so as to avoid any question of the right of the treasurer, not only to receive his commissions for the township and city, but also for the county itself.</p> <p>In the construction of a statute every part of it must be viewed in connection with the whole, so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. It is not to be presumed that the legislature intended any part of a statute to be without meaning: Com. v. Conyngham, 66 Pa. 99; Holl v. Deshler, 71 Pa. 301; Com. v. McGinnis, 2 Wliart. 117.</p> <p>This line of reasoning is in full harmony with the reasoning of this court and its decision in Philadelphia v. Martin, 125 Pa. 583, where it was held that a comity treasurer, in acting for the commonwealth in the collection of its revenues and accounting for the same, performs distinct and separate duties imposed upon him by law, and in such services lie does not act in Ills capacity as a county officer, but as the officer or employee of the commonwealth, and that, therefore, tbe Act of March 31, 1876, P. L. 13, carrying into effect section 5, article 14 of the constitution, and providing that in any county having over 150,000 inhabitants all legal fees received by county officers shall belong to tbe county, does not require that the compensation received by the county treasurer as commissions for the collection of state revenues shall be paid into the county treasury.</p> <p>To repeal a statute by implication there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together, or be consistently reconciled : Brown v. County Commissioners, 21 Pa. 37; McCool v. Smith, 1 Black, 459 ; Homer v. Com., 106 Pa. 221; Sifred v. Corn., 104 Pa. 179; Williamsport v. Brown, 84 Pa. 438; Com. v. Erie By. Co., 98 Pa. 127; Barber’s Contested Election, 86 Pa. 400.</p>

<p>Church law — Wrongful ousting of preacher from his office — Equity.</p> <p>If, in violation of its own laws, a church ousts a preacher from his pulpit and in effect wrongfully deprives him of his living, he can have recourse to the civil courts for restoration of his rights.</p> <p>When rights of property are in question, civil courts will inquire whether the organic rules and forms of proceeding described by the ecclesiastical body have been followed.</p> <p>Equity — Parties defendant — Church law — United Presbyterian Church.</p> <p>A bill in equity filed by an ordained preacher of the United Presbyterian Church alleging that he had been wrongfully deprived of his office is properly served upon the trustees of the general assembly, a body incorporated under the act of March 22, 1860, by the title of “Trustees of the General Assembly of the United Presbyterian Church of North America,” and when so served the bill will be entertained by a court of equity.</p>

<p>Appeals, Nos. 149 and 150, Oct. T., 1899, by defendant, from judgment of O. P. No. 1, Allegheny Co., March Term, 1898, No. 346, on verdict for plaintiffs.</p> <p>Trespass by husband and wife for personal injuries to the wife. Before Stowe, P. J.</p> <p>At the trial it appeared that on June 28,1897, Tischia Schenkel, forty-four years old, in good health, was struck in the face by the falling of a trolley wire while she was standing at a street corner. After the wire struck her she had convulsions most of the time for seven or eight weeks, after that one in two or three weeks, and some times one or two a week. The last convulsion was only a few days before the trial of the case.</p> <p>None of the physicians on either side would undertake to say whether she would ever entirely recover or not.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[Now you come to the wife. Her services belong to her husband; he has to be paid for the loss of that. She cannot recover anything by reason of the fact that she is not able to work as she could before, because the husband gets paid for that. Yet it will not do to say that notwithstanding the fact that she is seriously injured, she is entitled to nothing. We will have to say to you that from the mere fact that she has suffered in the past, and, if her story satisfies you of its correctness, will suffer pain and inconvenience for a longer or a shorter time in the future, she is at least entitled to nominal damages for the injury that is done to her. In view of those facts you may take in consideration, and ought to take into consideration, the fact that her future life may be more or less annoyed and her happiness and enjoyment interfered with by reason of her physical condition, which prevents her from having those enjoyments that people in good health are accustomed to have, and ordinarily do have. While you cannot undertake to pay her for the injury, for the pain and suffering, you have a right to take into consideration the fact that her future life will be more or less affected by the pain and suffering incident to this accident, and for that, she ought to have some allowance.] [2]</p> <p>[The extent of the verdict depends upon your conclusion as. to the amount of damages that has been done to her, or in other words, to what extent that electricity getting upon her person has brought about the injury that is testified to, and apparently established by the testimony, as far as her condition is concerned. Having passed upon those matters and considered the case carefully, you will render just such verdicts as you may think proper under all the testimony.] [3]</p> <p>The court refused binding instructions for defendant. [1]</p> <p>Verdict and judgment for Henry W. Schenkel for $500, and for Tischia Schenkel for $2,000. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them; (4, 5) that the verdict was excessive and should have been set aside.</p> <p>cited on the question of damages: Goodhart v. Penna. R. Co., 177 Pa. 1; Baker v. Penna. R. Co., 142 Pa. 503.</p> <p>As to excessive verdict, Smith v. Times Publishing Go., 178 Pa. 481.</p>

<p>Contract — Written contract — Construction.</p> <p>Plaintiff sold and delivered a boiler to defendant, and guaranteed it to develop its rated horse power with a certain coal consumption. The-guarantee then continued: “When using the waste heat from your heating furnace the boiler will develop not less than its rated horse power when the furnace is in good working condition.” The evidence showed that the fire box of the boiler was immediately under it, but that the furnace from which the waste heat was to be obtained was about twenty-five feet from the boiler, and was connected with it by a neck which had in it a right angle. When the fires in the furnace were out, cold air would rush from the furnace through the neck to the boiler. This could have been obviated by the use of adjustable dampers in the neck. There was nothing in the contract which gave the plaintiff any control over the furnace and its connections, and certain erasures in the'printed form of contract indicated an intention to exclude plaintiff from any meddling with the furnace. The defendants refused to pay for the boiler on the ground that it had failed to develop the horse power mentioned in the contract. Held, that the defendants were responsible for their heating furnaces, connections and dampers.</p> <p>Trial — Charge of court — Point.</p> <p>A point Which involves a request to decide a question of fact by drawing a double inference is properly refused. Such a question should be left to the jury.</p>

<p>Appeal, No. 175, Oct. T., 1.899, by plaintiff, from judgment of C. P. No. 8, Allegheny Co., May T., 1897, No. 346, on verdict for defendant.</p> <p>Appeal from report of jury of view. Before MoClung, J.</p> <p>The court charged as follows:</p> <p>The principal troublesome questions in this case are questions of law. The city takes one theory as to the ownership of the bed of this street, or the twenty-five feet of it adjoining Mrs. Woodward’s lot, and Mrs. Woodward takes another view. The city says that this was a street dedicated to public use, and that dedication recognized in the deed by which Mrs. Woodward obtained title, and that it was because of that dedication that her title, under any aspect of the case, would be considered in law as going to the center of the street. She admits that view of the case, but says that the act of 1889, with regard to streets which have been dedicated and have not been opened, takes away the right of the public to occupy that street, and leaves her in the same position as if the street had never been dedicated. I am unable, at least for the present, to agree with this latter view, and consequently instruct you that you have to treat this case as if that act of 1889 had no existence ; that is, as if Mrs. Woodward had just the same title that she took when her conveyance was originally made; that her title was just the same when the city opened this street by its ordinance as it was at the time she took it, with respect to the ownership of this street. Under that view of the case it is conceded that there would be no damage here, excepting for the difference in grade and the results of that difference which, the parties concede, amounts to perhaps $65.00 for the filling, $50.00 for the raising of the trees, and $50.00 for the underpinning of the stable, which would make a verdict proper for the plaintiff of $165. This, you will understand, is by the assent of the parties, the court, however, taking the responsibility of ruling the law in this way. They do not assent to this being the correct theory, but assuming that the theory is correct, then your verdict should be rendered for the plaintiff for $165. The objection that the plaintiff has to that verdict is not to what you do, but to what I do in ruling the law as I do. You will, therefore, under this arrangement, render a verdict for the plaintiff for the sum of $165.</p> <p>Verdict and judgment for plaintiff for $165. Plaintiff appealed.</p> <p>Error assigned was the charge of the court.</p> <p>The Act of May 9, 1889, P. L. 178, applies to tlie ease: Quicksall v. Philadelphia, 177 Pa. 301.</p> <p>Both by tlie act of 1889 and by adverse possession, supplanting all the rights and acts of John Watson, and giving good title as against him, the public and all others, the plaintiff is entitled to obtain the value of her property taken.</p> <p>Certainly the limitation of the act of May 9, 1889, does not begin to run until the street is actually offered to the public, and until the application of Watson’s committee in March, 1875, as is clearly shown by Woodward’s testimony, the plan was only a contemplated one.</p> <p>If the contention of the city of Pittsbuig is right, W oodward did not take a fee to the center of the plotted Arabella street, because he did not buy in accordance with a plan. It is true that he bad an easement in the 25x110 feet of ground included in the plotted street, though the fee remained in Watson, but this easement did not ripen into a fee until the street was actually opened.</p> <p>A grantee of land acquires no title in a plotted street until it is opened: Hancock v. Philadelphia, 175 Pa. 124.</p>

<p>Appeal, No. 169, Oct. T., 1899, by-defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1898, No. 80, on verdict for plaintiff.</p> <p>Appeal from report of jury of view. Before Collier, J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Defendant’s point and the answer thereto were as follows:</p> <p>Under all the evidence the plaintiff is not entitled to recover, and the verdict should be for defendant. Answer: Kef used.</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned was above instruction, quoting it.</p> <p>The grade of City Farm Lane was not changed by the ordinance of October 9, 1894: Com. v. Beaver Borough, 171 Pa. 542; 2 Trickett on Penna. Borough Law, sec. 34.</p> <p>There was no change of grade of the street in front of Mrs. Lewis’s lot: Mellor v. Philadelphia, 160 Pa. 614.</p> <p>The case was tried like an action of trespass. Where in an action of trespass brought to recover such damages there is also a claim for injuries alleged to have been caused by negligence in the grading, and the question of a different remedy for the two injuries has not been fully presented, a venire de novo will be awarded in order that it may be determined whether the act of assembly is not inapplicable to part of the damages: Borough of Beltzhoover v. Gollings, 101 Pa. 293.</p> <p>The act of 1878 is very clear in its provisions that the proceeding by viewers shall only be where the “ proper authorities, of any borough change the grade or lines of any street and alley,” etc.</p> <p>There is no denial that a fill was made from the railroad back to the line of Mrs. Lewis’s property. If this work of fillrng up the slope was done by the borough officers or agents it may be liable in trespass: BrMk v. Dunmore Borough, 174 Pa. 395.</p> <p>The defendant must seek redress under the statute for whatever damages he may have sustained by reason of the change of grades : Borough of Beltzhoover v. Gollings, 101 Pa. 298.</p> <p>There is abundant evidence in this case to show beyond all controversy that a change of grade of eighteen inches of City Farm Lane was made under direction of the borough engineer in compliance with the ordinances.</p> <p>Defendant’s claim that, because there was little or no change of grade immediately in front of plaintiff’s property on City Farm Lane, there can therefore be no recovery in this case, is effectually disposed of in the case of Mellor v. Philadelphia, 160 Pa. 621.</p>

Appeal, No. 170, Oct. T., 1899, by-plaintiff, from order of O. P. No. 2, Allegheny Co., Jan. T., 1898, No. 197, refusing to take off nonsuit. Assumpsit to recover money alleged to have been procured through the fraud and artifice of defendants.

<p>Appeal, No. 172, Oct. T., 1899, by plaintiff, from decree of O. P. No. 1, Allegheny County, Sept. T., 1898, No. 527, dismissing bill in equity.</p> <p>Bill in equity for specific performance for the exchange of lands.</p> <p>From the record it appeared that on June 20, 1898, C. H. Bingler executed a contract in writing with C. P. Bowman and Mary Bowman, his wife, by which, it was agreed to exchange certain land belonging to Bingler for certain other lands belonging to Mrs. Bowman. Both Mr. and Mrs. Bowman signed the contract, but it was not acknowledged by any of the parties. Mrs. Bowman refused to carry out the contract, whereupon a bill in equity for its enforcement was filed against her and her husband. The court dismissed the bill on the ground that the unacknowledged contract of a married woman for the sale of her land is not binding upon her.</p> <p>Error assigned was decree dismissing bill.</p> <p>A married woman is emancipated, and her contract requires no different form of acknowledgment from that of an unmarried woman: Reed’s Est., 3 Pa. Dist. Rep. 503.</p> <p>The act of 1893 does not repeal, either in terms or by necessary implication, the provisions of the act of 1770, so far as they relate to the separate acknowledgment of the wife: Whitlinger v. Jack, 16 Pa. C. C. R. 112; Erdelyi v. Bernat, 44 P. L. J. 175.</p>

<p>Appeal, No. 191, Oct. T., 1899, by plaintiffs, from decree of C. P. No. 1, Allegheny Co., March T., 1894, No. 901, on bill in equity.</p> <p>Assumpsit for royalties. Before Stowe, P. J.</p> <p>The facts appear by the former report of the case in 173 Pa. 117, and by the opinion of the Supreme Court, infra.</p> <p>The court decreed “ that the defendants pay to the plaintiffs the sum of $131.19, that being the amount admitted to be due the plaintiffs in the account filed by the defendants for Sterling Double Special Steel manufactured and sold by them under their contract with the plaintiffs, together with interest thereon from February 1, 1896, and that defendant company pay such costs as have accrued in this case prior to the filing of said account on the day of , showing $131.19 due plaintiffs, and it is further ordered, adjudged and decreed that they do not account to the plaintiffs for the steels known as A. W. or Abbott Wheelock Steel, C. Y. Wheeler’s Choice, or C. Y. W.’s Choice Steel, Deck Piercing Projectile Steel, Semi-Armor Piercing Projectile Steel, or any other steels than Sterling Double Special Steel for which it is now deemed they shall pay as aforesaid.”</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 195, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1899, No. 224, on case stated.</p> <p>Case stated in action of ejectment. Before Kennedy, P. J.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p> <p>The record on appeal failed to disclose any certificate by the trial judge of the value of the property.</p>

Appeal, No. 64, Oct. T., 1899, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1898, No. 372, dismissing bill in equity. Bill in equity to rescind a deed. Shafer, J., filed the following opinion : The bill is for the rescission of a deed of conveyance of land on the ground of fraud in the sale. FINDINGS OF FACT. 1.

Appeal, No. 190, Oct. T., 1899, by-plaintiff, from decree of O. P. No. 1, Allegheny Co., Dec. T.t 1898, No. 624, dismissing bill in equity. Bill in equity for partition. The facts appear by the opinion of Collier, J., which was as follows: The bill in this case prays for partition of a tract of land in Mifflin township, Allegheny county, Pennsylvania.

<p>Lease — Goal lease — Mines and mining — Royalties—Entry coal.</p> <p>Where a eoal leasd provides for the payment of a royalty on each and every bushel of coal mined, “the amount of coal so mined to be ascertained and determined from the pay roll” of the lessee, royalties must be paid upon ‘ ‘ entry coal,” which is coal taken out in the process of constructing- entries to reach the eoal and to bring it out, and this is the case, although the lessee does not note on the pay rolls the number of bushels of entry coal mined.</p>

Appeal, No. 183, Oct. T., 1899, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1899, No. 353, on bill in equity. Bill in equity for forfeiture of an oil and gas lease or, in the alternative, for the specific performance of covenants contained in the lease, by sinking additional wells. Frazer, J., found the facts to be as follows: 1.

<p>Lease — Oil and gas lease — Equity—Specific performance — Sinking additional well — Multifariousness.</p> <p>Where a bill in equity to enforce covenants in an oil lease joins as defendants the original lessee and a large number of successive assignees of the lease, and no joint title, possession or liability is averred or shown, and all the alleged trespasses, defaults and’breaches of covenant by the different assignees for a period of seven or eight years are pitched together into hotchpot, and each lessee made liable for the sum total, without regard to the statute of limitations, and whether the alleged injury was done before, or during, or after his interest or possession under the lease, the bill is demurrable for multifariousness and for want of equity.</p> <p>Where a lessee under an oil and gas lease has entered upon land and sunk wells he is entitled, in determining whether he shall sink additional wells, to follow his own judgment. If that is exercised in good faith, a different opinion by the lessor, or the experts, or the court, or all combined, is of no consequence, and will not authorize a decree interfering with him.</p> <p>A bill in equity will not lie by the lessor of an oil and gas lease against the lessee or his assigns, to compel the latter to test part of the leased land not yet drilled, or, upon his failure to do so, to surrender the land to the lessor, unless it is shown that the failure of the lessee to drill amounts to a fraud upon the rights of the lessor.</p> <p>Oil and gas lease — Termination of lease— “ Found or produced in paying quantities.'1'1</p> <p>Where a lease is to continue as long as oil or gas is found or produced in paying quantities, the phrase, “ found or produced in paying quantities,” means paying quantities to the lessee or operator. If oil has not been found, and the prospects are not such that the lessee is willing to incur the expense of a well (or a second or subsequent well as the case may be), the stipulated condition for the” termination of the lease has occurred. So, also, if oil has been found, but no longer pays the expenses of production. But if a well, being down, pays a profit, oven a small one, over the operating expenses, it is producing in “ paying quantities,” though it may never repay its cost, and the operation as a whole may result in a loss. The phrase “paying quantities,” therefore, is to be construed with reference to the operator, and by his judgment, when exercised in good faith.</p>

<p>Will — Probata—Nonresident owner of real estate — Trustee—Conveyance of real estate by substitute trustee.</p> <p>Where the will oí a nonresident owner oí real estate has been duly probated in the state of his domicile, and an exemplification of the probate has been duly filed and recorded in the office of the register of deeds of the county in this state where the real estate is situated, an executor and trustee who had been appointed by a court of the state of testator’s domicile in place of the executors and trustees named in the will, has the power and authority of the executors or trustees named in the will to make conveyances of the real estate in accordance with the directions and provisions of the will.</p>

<p>Executors and administrators — Accounting—Sale of land — Vendor and vendee.</p> <p>Where a vendor of land under articles of agreement dies before he has conveyed the land, his executor cannot be surcharged with the money due and owing on the contract, if it appears that the executor never received any of the proceeds; that there was a mortgage on the land which prevented him from making a good title; that even if legal proceedings had been instituted the vendee was financially unable to pay the money, and that the land remained part of testator’s estate and was sold under an order of the orphans’ court.</p> <p>Mortgage — Judgment—Payment—Scire facias — Reversal of proceeding.</p> <p>Whei’e the Supreme Court reverses a judgment on a scire facías sur mortgage, an execution and sale of the mortgaged premises to the mortgagee which liad taken place pending the appeal, becomes a nullity, and the judgment, execution and sale in no way constitute a payment of the mortgage.</p> <p>Mortgage — Orphans' court — Jurisdiction—Scire facias.</p> <p>After the Supreme Court has reversed the judgment on a scire facias on a mortgage given by a decedent, the mortgagee may abandon his proceedings on the scire facias and prefer his claim in the orphans’ court on distribution of the proceeds of the estate, notwithstanding that, pending the disposition of the case in the Supreme Court, the mortgaged premises were sold under an execution on the judgment and purchased by the mortgagee, the reversal of the judgment rendering the sale void.</p>

Appeal, No. 193, Oct. T., 1899, by plaintiffs, from order of C. P. No. 1, Allegheny Co., Dec. T., 1895, No. 445, overruling exceptions to auditor’s report. Exceptions to report of auditor, John G. MacConnell, Esq. The auditor’s findings of facts and conclusions of law were as follows: In the early part of the year 1875, James Neel and Wm. P. Wampler formed a copartnership for the purpose of carrying on a general lumber business in McKeesport, Allegheny county, Pennsylvania.

Appeal, No. 129, Oct. T., 1899, by defendant, from decree of C. P. Butler Co., March T., 1899, No. 8, granting divorce. Libel for divorce. Before Barker, P. J., of the 47th judicial district, specially presiding. The facts appear by the opinion of the Supreme Court.

<p>Orphans' court sale — Jurisdiction—Title—Lien of decedent's debts.</p> <p>Where a petition to the orphans’ court for an order to sell real estate shows on its face that the debt was on a parol contract eleven years old, the court has no authority to grant the order without an averment, followed by proof, that the debt was still existing in a lawful condition for enforcement at the time when the petition was presented.</p> <p>Ejectment — Evidence—Resulting trust — Orphans' court sale.</p> <p>In an action of ejectment, where the defendant claims title under an orphans’ court sale to his grantor, evidence of a resulting trust in the creditor for the payment of whose debt the sale was made is incompetent and irrelevant.</p>

Appeal, No. 13, Oct. T., 1899, by defendant, from judgment of Superior Court, April T., 1898, No. 42, affirming judgment of C. P. No. 3, Allegheny Co., Feb. T., 1894, No. 514, on verdict for plaintiff. Ejectment for a tract of land in Plum township. Before Kennedy, P. J. The facts are found in the report of this case in 8 Pa. Superior Ot. 164, as follows: This action is brought for the recovery of possession of a piece of land situate in Plum township.

<p>Appeal, No. 79, Oct. T., 1899, by defendants, from judgment of C. P. No. 1, Allegheny Co., June T., 1897, No. 128on verdict for plaintiff.</p> <p>Assumpsit to recover costs of repairs to leased premises. Before Stowe, P. J.</p> <p>The court charged in part as follows:</p> <p>[As you are well aware, the plaintiff leased the premises in question to the defendants for the term of five years; one provision of the lease- was that, at the termination of the lease, they should return the property to the plaintiff in as good condition as they found it, ordinary wear and tear excepted. Well, of course, that provision of the lease is plain enough. They found it in a certain condition, and as tenants they had a right to change it from time to time to suit the emergencies of their business, and as long as they did not interfere substantially with, the freehold so as to destroy the building, the landlord had no right to interfere. He did not interfere in this case with anything that was done; whether he consented to it or not is entirely immaterial so far as the case before you is concerned. The defendants saw fit to go on and make improvements and changes. They had a right to do that under the evidence, because the landlord did not object, and so far as the evidence shows, the changes themselves, if done carefully and in a proper way, were not such as would materially injure the building for the purposes for which it was intended. No complaint is made on that score, but the allegation is that, in making these changes (which we will assume they had a right to make), they did it in such a negligent, careless and unworkmanlike manner that they cut the building to pieces so as to substantially injure it and put it in such shape as to require the repairs, or some of them, that were made subsequently. It is alleged the building was in a worse condition at the time the defendants left it, or when the repairs were made, than it was at the time they took possession.] [6] ....</p> <p>It had been used previous to that time for a brewery and was worn more or less. The defendants’ testimony is that it was then in a very bad condition, unsafe, and that they did make extensive repairs at the time. Those repairs were made, but they were not bound to keep the repairs that may have been made in good condition, but simply to hand the buildings over afterwards to the plaintiff in as good condition as it was when they got possession of it, and previous to the repairs that they had made. They made those repairs, but the contract was to hand the building over, not with the repairs kept in perfect condition, but just as good as it was when Mr. Darlington handed over the property to them.</p> <p>[Now did they do that ? If they did not, to what extent was this property damaged by reason of their treatment of it during the term that they had possession ? They were bound to return it in as good condition as they found it. They were not bound to make repairs under the terms of the lease; they could have left the building stand just as they got it without any repairs. But if they injured the building, if they caused it .to be in worse condition, ordinary wear and tear taken into consideration, than it would have been if they had done what they ought to have done, they are responsible for the condition and are bound to pay the landlord, Mr. Darlington, an amount that would put the building’ in as good condition as it was when they got it. That is all we can say upon the subject.] [7]</p> <p>[The first question is, what was the condition, under the testimony, of the building at the time the defendants got it ? And then, what was the condition at the time these repairs were made by the plaintiff? They were not made against the wishes of tire tenants; that is apparent. They were made previous to the termination of the lease. That is not material, so far as this case is concerned ; they were made with the implied consent of those in possession, and the simple question is, so far as mp.de, were they necessary to put the premises in the condition they were at the time the defendants got possession of them ? If they were, then the plaintiff is entitled to recover a verdict for the fair value of what it cost, not for all he did, nor for what he may have seen fit to do, but for just whatever was necessary to put the building in ihe condition it was in at the time the defendants got possession from the plaintiff.] [8]</p> <p>[It is said there is difficulty in arriving at a conclusion, that this testimony on the part of the plaintiff is not specific. Well, that is a matter for the jury, it is not a question of law. Questions where there are controverted facts are difficult for the jury to determine with any great distinctness, but that is a duty that the law devolves upon the jury to perform. If a man is sued for an injury to another person, it is hard to tell how much he has suffered in body and in estate, and yet we submit those cases to the jury and give them such evidence as we have, and they draw their own conclusion according to the testimony. There is evidence that tends to show damage, more or less, done to these promises. How reliable that may be is for the jury, and the value of it is for the jury.] [9]</p> <p>Verdict and judgment for plaintiff for f1,200. Defendants appealed.</p> <p>Errors assigned among others were (6-9) above instructions, quoting them.</p> <p>There is no breach of a covenant to repair until the term is ended. So long as the tenant is in the occupancy he may repair and thus keep his covenants: Colhoun v. Wilson, 27 Gratt. (Va.) 639; Hoskinson’s Exrs. v. Bradford, 1 Pittsburg, 165; Wood’s Landlord and Tenant, sec. 370; Palethorp v. Bergner, 52 Pa. 149; Sheppard’s Touchstone, 173; Taylor’s Landlord and Tenant, sec. 361.</p> <p>In the present case the whole burden of the charge to the jury is directed to the breach of the covenant that defendants would return the premises to the plaintiff at the end of the term in as good condition as when received. Now the. premises were in much better condition at the end of the term than when received, therefore this covenant was nob broken, and the whole charge was erroneous : 3 Sedgwick on Damages, sec. 990; Williams v. Williams, L. R. 9 C. P. 659.</p> <p>It must be remembered that the repairs were made by the landlord during the continuance of the term. Under such conditions the rule of damages is held to be the injury to the reversion from the want of repairs, and not the cost of the repairs : Taylor on Landlord and Tenant, see. 368; 3 Sedgwick on Damages, sec. 990; 3 Sutherland on Damages, p. 135; Colley v. Streeton, 2 B. & C. 273; Ardesco Oil Co. v. Richardson & Tack, 63 Pa. 162; Earle v. Arbogast, 180 Pa. 409.</p> <p>During the existence of the tenancy the landlord may protect his reversionary interest, and may maintain actions for injuries which would or do affect his interest, whether such injuries be committed by the tenants, undertenants, or by strangers, and whether the term shall have expired or not: Taylor’s Landlord and Tenant, sec. 173; Star v. Jackson, 11' Mass. 519; French v. Fuller, 23 Pick. 104; Baxter v. Taylor, 4 B..& Ad. 72; Bower v. Hill, 1 Bing. (N. C.) 549; Little v. Pallister, 3 Green-leaf, 6; Austin v. Hudson River R. R. Co., 25 N. Y. 334; Geer v. Fleming, 110 Mass. 39; Mayor, etc., of Cartersville v. Lyon, 69 Ga. 577; Anderson v. Dickie, 26 Howard’s Practice, 105; Sparks v. Bassett, 49 N. Y. Super. Ct. 270.</p> <p>In the case of the tenant’s agreement to make repairs, the landlord being out of possession is not in general in a position to make repairs himself. Usually his measure of damages will be the injury to the reversion: 1 Sedgwick on Damages, sec. 210; Turner v. Lamb, 14 M. & W. 412; Payne v. Haine, 16 M. & W. 541. But where the tenant leaves the premises out oí repair the measure of damages is the cost of putting them into repair, and not .the depreciation in value of the property: Clow v. Brogden, 2 Man. & G. 89; Watriss v. Cambridge Bank, 130 Mass. 343; 3 Sedgwick on Damages, sec. 990; Beach v. Crain, 2 N. Y. 86. It was held in Williams v. Williams, Law Reports 9, C. P. 659, that the defendant was liable to pay as much as would put the premises in the same state of repair as when he took them.</p>

<p>Appeal, No. 113, Oct. T., 1899, by plaintiff, from order of C. P. No. 2, Allegheny Co.-, Oct. T., 1897, No. 13, refusing to take off nonsuit.</p> <p>Trespass for personal injuries. BeforeWHiTE, P. J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Error assigned was in refusing to take off nonsuit.</p> <p>cited Corbalis v. Newberry Twp., 132 Pa. 15, Fisher v. Ry. Co., 131 Pa. 297, Lerch v. Bard, 153 Pa. 575, Woelfel v. Ry. Co., 183 Pa. 213, and Gilmore v. Ry. Co., 153 Pa. 32.</p>

Appeal, No. 166, Oct. T., 1899, by defendant, from decree of C. P. No. 1, Allegheny Co., March T., 1898, No. 470, on bill in equity. Held: Commonwealth v. McDonald, 16 S. & 11. 390; Birmingham Boro. v. Anderson, 48 Pa. 253; Schenley v. Pittsburg, 104 Pa. 472. It is true'that acceptance by the public is necessary to fix the right.

Appeal, No. 178, Oct. T., 1899, by-plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1897, No. 734, on verdict for defendant. Assumpsit for money had and received. Before Collier, J. At the trial it appeared that in 1891, Theodore Doerflinger was administrator of the estate of John Wallace, deceased. He was a depositor in the Diamond National Bank, having an individual account and also one as treasurer of the Modern Building & Loan Association.

<p>Railroads — Eminent domain — Damages—Evidence.</p> <p>In an action to recover damages for injuries to land caused by the construction of a railroad, where it appears that the land was divided by a street into two portions, through one of which alone the railroad was constructed, and plaintiffs alleged in court that no injury was done to the other, although their statement claimed damages to the entire property, it is not error to admit evidence that the injury was confined to the portion of the property through which the railroad was laid, that being the injury to the whole, and the verdict barring any further claim.</p> <p>Eminent domain — Evidence—Competency of witness.</p> <p>A witness is competent to express an opinion of the value of the property in condemnation proceedings who has an intelligent comprehension of the subject, and who has obtained knowledge of the value of the property in the neighborhood merely in a general way, by making inquiries, so as to make himself generally informed on the subject, or who obtains his knowledge as a county commissioner, by hearing returns of assessments and putting values on properties.</p> <p>Railroads — Eminent domain — Evidence—Opinion of witness.</p> <p>Wliere a railroad is located through a largo piece of ground situate on the public street oí a large city, the owner may be permitted, in condemnation proceedings, to inquire of a witness as to the value of the land, considering that it was possible to lay it out in lots.</p> <p>In condemnation proceedings, evidence by a third party of the value which a former owner placed upon the land is irrelevant, if it is not offered to contradict previous testimony. The best evidence of the former owner’s estimate of its value is his own testimony.</p>

<p>Appeal, No. 117, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1897, No. 726, on verdict for defendant.</p> <p>Appeal from report of viewers. Before McClung, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial it appeared that plaintiff claimed damages from the defendant for injuries to property alleged to have been caused by the opening of Homewood avenue. The evidence showed that plaintiff’s land was very irregular in shape on the surface. B.. L. McCully, a-witness for plaintiff, ivas asked this question:</p> <p>“ Q. Now, you say you have calculated the amount of grading and removal there that would be necessary to bring the McCombs property, fronting on Homewood avenue, into conformity with the street? How much would that amount to? ”</p> <p>Objected to as incompetent.</p> <p>Mr. O’Brien, of counsel for plaintiff: I mean, now, how mucli grading, not how much in money ?</p> <p>The Court: Under the facts in this case, this would not enlighten the jury any; it would be more likely to mislead than to aid.</p> <p>The objection is sustained, exception for plaintiff allowed and bill sealed.. [1]</p> <p>Another witness for plaintiff testified as follows:</p> <p>“ Q. Where do you live ? A. I live in the twentieth ward, Fair mount avenue. Q. What is your business ? A. Contractor. Q. Do you do grading and filling and that kind of work? A. Yes, sir. Q. Do you know this McCombs property? A. Yes, sir; I have been over it. Q. You have carefully examined it, have you? A. Yes, sir; I went over it with Mr. McCully and examined the points of it preparatory to giving a bid on it. Q. Well, referring back to 1896, when this grade was established, what do you say it would cost to put the McCombs property down into shape with the established grade ? ”</p> <p>Objected to as incompetent.</p> <p>The Court: Under the facts of this case, we think the answer to the question could not enlighten the jury, at least, without leading out to an extent that it is impracticable to go in the inquiry. The objection is sustained, exception for plaintiff allowed and bill sealed. [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.</p> <p>cited Patton v. Philadelphia, 175 Pa. 88, and Darlington v. Allegheny City, 189 Pa. 202.</p>

Appeal, No. 136, Oct. T., 1899, by-plaintiffs, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1897, No. 240, vacating injunction. Petition for attachment. Petition in the nature of supplemental bill to stay injunction. See 189 Pa. 355.

Appeal, No. 161, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1898, No. 126, on verdict for plaintiff. Assumpsit on a parol contract.

<p>Appeal, No. 174, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1892, No. 120, on verdict for defendant.</p> <p>Appeal from road jury. Before Me Clung, J.</p> <p>At the* trial counsel for defendant stated that he desired the jury to go out and see the property of the plaintiff.</p> <p>The Court: Gentlemen, the law requires that you should see the property if a party requests it, and it is very proper in almost every case. There are very few cases where the jury ought not to see property of this sort. You simply go out, however, for the purpose of better enabling you to understand the testimony given here, and to weigh the opinion as to values, and to weigh the value of the opinion as to what is necessary in order to put this property in proper shape. You will simply go out there and get information enough upon the ground to accomplish this purpose, not undertaking to try the case there. The testimony will be delivered after you come in. You will hear the testimony and get a fair understanding of the property as it was at the time the improvement was made, and what the nature of the improvement was, and by seeing the property you will then be able to understand the testimony delivered here to-morrow.</p> <p>Counsel for plaintiff objected to the jury going out on the ground, for the reason that the transformation of the property is such that a view of it will mislead rather than help them.</p> <p>The Court: It having been requested by the attorney for the city that the jury view the property, the objection is overruled. [1]</p> <p>The court charged in part as follows :</p> <p>[If you find that the property of Mr. Zug was worth as much afterward as before and no more, then you simply find a verdict for the defendant. If you find it was worth less, then you find a verdict in favor of the plaintiff for the amount of that diminution in value. If you find, however, that there was an increase in value, then you certify a balance in favor of the city in the amount of that increase. It would be the duty of the court to see that there was no more assessed to him than was necessary to pay Ms share of the improvement. But I might say to you here that it seems to be conceded that you need not go higher in that certificate, if you certify a balance, than about $3,000; that is, although you might find that the benefit was $10,000 or $15,000, you need not go higher than $3,000. Of course if it was less than $3,000 you would certify that less amount.] [6]</p> <p>[Again it is conceded that there was a considerable rise made in the grade of this street, and that there was filling done there. You are given the amount of that filling, and you are given testimony as to the cost of filling. That is not direct testimony for the purpose of enabling you to determine the damages here; it is only for the purpose of enabling you to test the value of these opinions and to ultimately find out what was the effect of this improvement upon that property. If the filling of the property cost $5,000, and the property was $5,000 better after it was filled, of course, the man was not damaged. If it was $10,000 better after the property was filled, he was not only not damaged, but he was benefited, and you might certify special benefits against him. It is only in some such light as this that this matter of the amount of filling on the lot is relevant. And I should say here, in view of the testimony that has been given, that you should not allow any man to speculate off of the city by recovering damages for expenses that he might put upon property which no reasonable man would put there. There has been a suggestion made as to what further filling it would take to put this property up above the street, as it was before. There has been testimony as to that. I admitted that testimony upon the supposition that some witness, at least, in the case, would suggest that that was the proper thing to do; but not only has no witness suggested that that would be a proper thing to do, that it would be anything but a waste of money, but it appears that although seven or eight years have elapsed, and although, under the circumstances, perhaps the owner could well have done it, the owner has not done that filling. Now, under those circumstances, it is for you to say whether it would be reasonable or sensible for any man to put that expense upon the property; and, of course, you cannot put into a man’s pocket money of the general taxpayers for the purpose of enabling him to make expenditures which no reasonable man would make.] [7]</p> <p>[In the present case, in considering it, you have the whole matter before you. This is an appeal from the report of the board of viewers. And in determining this case, you must consider that the city has paid the cost of this improvement, and that Mr. Zug, or Mr. Zug’s property, will not have to pay anything whatever for this improvement unless you certify a balance against him. If you find damages in his favor he then gets the street graded and paved for nothing, and gets these damages in addition. If you find simply a verdict for the defendant then he gets no damages, but he gets the property graded and paved and he pays nothing for it. You will understand that, gentlemen, it is sometimes misunderstood by jurors, and therefore I am specific in it, that you should consider the cost of grading and paving having been paid by the city, and you should now determine whether or not the'city shall recover from him some portion of the cost of grading and paving, or whether in addition to having paid that which would otherwise be assessed to him, it shall also pay him damages.' That is the question before you.] [8]</p> <p>Certificate for defendant for $3,000 upon which judgment was entered. Plaintiff appealed.</p> <p>Errors assigned were (1) in sending out the jury to view the premises ; (6-8) above instructions, quoting them.</p> <p>It was error to send out the jury: Bare v. Hoffman, 79 Pa. 71; O’Brien v. Brown, 3 Clark, 115; Longaker v. Borough of Norristown, 4 Del. Co. Bep. 20.</p> <p>The charge was unfairly favorable to the defendant’s cause and prejudicial to the plaintiff’s cause : Peirson v. Duncan, 162 Pa. 187; Heydrick v. Hutchinson, 165 Pa. 208; Lerch v. Bard, 177 Pa. 197; Herrington v. Guernsey Bros., 177 Pa. 175.</p>

<p>Appeal, No. 186, Oct. T., 1899, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., March T., 1898, No. 2, on verdict for defendant.</p> <p>* Feigned issue to determine the validity of a judgment confessed by George Loeffert and John Loeffert, individually, and also as a firm doing business as George Loeffert & Son. Before Slagle, J.</p> <p>At the trial it appeared that this judgment was for §8,277.38, and had been assigned to the Farmers Deposit National Bank, the use defendant in this issue; that plaintiffs are judgment creditors of George Loeffert & Son, junior to the judgment in issue; that Henry Lenz, the plaintiff in the judgment, is the father-in-law of John Loeffert. It was contended by defendant that the judgment confessed to Lenz was fraudulent for two reasons:. first, because it was confessed for moneys that were not due to Lenz; second, because it was part of a scheme devised by John Loeffert to cheat and defraud the creditors of George Loeffert & Son.</p> <p>Other facts appear from the following portion of the charge of the court:</p> <p>Fraud is never presumed. It must be proved, and it must be proved in a satisfactory manner. It is not necessary, as it is almost always impossible, to bring direct and positive proof of the fraud by the admission of the parties. It is generally to be established by the circumstances surrounding the transaction, and that may be as clear and convincing as positive evidence. You start with the proposition that the judgment attacked is a valid and an honest judgment, and the presumption being that way, it must be overcome by the evidence in the case. There is another matter that must be considered in the first instance, which runs all through the ease, arid that is this : it is not fraudulent for a debtor to prefer one of his creditors. The creditors have no absolute rights to a preference, or to an equal distribution, in the absence of a bankrupt law. The bankrupt laws are passed for the purpose of securing an equal division among creditors of an insolvent debtor; but, aside from that, there is nothing in the law to prevent a debtor from preferring any one of his creditors and giving him superior rights. Therefore, there is nothing that would be fraudulent in that creditor in accepting. That not being unlawful, it would not be fraudulent for a party to say to a creditor, especially an accommodation creditor, “ If anything happens to me I will give you a preference,” because the preference not being illegal, tbe party would have a right to say, “ I will see that you are protected.” There was no bankrupt law in existence at the time that these transactions occurred; I assume that the jury would know that. Commencing then with these propositions, the assumption is that this judgment was valid, and we then come down to a consideration of the questions arising under the evidence, as to the validity of the judgment. As said in the first place, it is alleged that it was confessed for a sum largely in excess of what was actually due to Mr. Lenz. In reference to that, it appears that there was very little, if any, actually due by the firm of George Loeffert & Son to Henry Lenz ; that is, for money actually advanced by him; but he was liable, and admittedly liable, on a large amount of indorsements of promissory notes, which he had given for the accommodation of this firm. That was a liability which the debtors had a right to protect, if they chose, and, therefore, any liability upon indorsements of notes by Lenz, outstanding at the time that this judgment was confessed, would be a valid consideration for the judgment, just as if he had actually paid the money. They could protect him against his indorsements by the confession of judgment, and that would not be fraudulent.</p> <p>It is alleged that the judgment was confessed for a large amount in excess of the actual liability, and right here I may say, that most of the controversy as to positive facts lies between the statement of Mr. Deise, a witness for the plaintiff, on one side, and Mr. Lenz and Mr. Wakefiedd on the other. Mi*. Deise says that in January of 1896, the indebtedness of the firm to Lenz was about $13,000, if I remember right. I do not propose to go into, the testimony at length, gentlemen, and any facts that I state will be simply to illustrate some of the propositions ; without depending upon that alone you want to take all of the facts in the ease and consider them, and I will not go over them. He says, however, that in April of 1896, there was a $10,000 note indorsed by Mr. Lenz. Whether he stated he got the money on that I do not remember. However, he further says, that about the time of this failure there was a large number of entries made on the books, and that they were made at the instance of Mr. Wakefield, the attorney for Loeffert, and who afterwards became the attorney for Lenz. The intimation, if not the assertion, was made by Mr. Deise, that this judgment in excess of that amount, was without any consideration whatever. If this were true, if you would find from the evidence that a large amount of this judgment was without consideration, it would be strong, if not conclusive evidence, that it was a fraudulent transaction. But the testimony on the other hand, on the part of the defendant, is, that this judgment included not only the $13,000 or thereabouts which was due in January, but included also this $10,000, and that, all told, the liabilities to Mr. Lenz at that time were about thirty odd thousand dollars; that when they came to carry out the transaction, there was some notes held by the Farmers Deposit National Bank amounting to $8,830, which the bank insisted should be protected; that Mr. Lenz agreed to give his note for those obligations, and did so, and included that amount in this judgment. Now there is nothing in that, itself, that is fraudulent. Mr. Lenz had a right, if he choose, to assume any obligation to any person else, voluntary, or because of some danger to his son-in-law, Loeffert. Whatever the motive would be, if he took that paper upon himself, there would be nothing fraudulent in including that in a judgment that he was about taking for the other indebtedness to him.</p> <p>The defendant claims that the amount of this judgment was the actual amount of the notes for which Mr. Lenz was liable; for certain notes which he held, signed by John Loeffert, and for a couple of checks that he says he had given him the money for, and this $8,830; and I may say, that the defendant has produced written evidence to a large amount of these claims. As I said, the testimony that the judgment included anything more than the indebtedness of these parties to Lenz depends largely, if not solely, upon the testimony of Mr. Deise; and the testimony of the defendant is corroborated largely by papers, as to the actual indebtedness and liability then existing. There was included in the amount, the notes of John Loeffert, amounting to about $3,450, I believe, which were held at the time by Mr. Lenz. It is claimed that they had no right to include that in the judgment, it not being a debt of George Loeffert & Son. •.But in reference to them the "allegation was, and so testified, that, though the notes were made by John Loeffert, the money went to George Leoffert & Son, and therefore, without regard to the forin of the note, if the money was borrowed by him for the firm, it would be a firm debt, and there could be no question as to that if it was a firm debt. There was also included in the judgment $2,500, which Lenz claimed he had paid for John Loeffert, individually, in a building and loan association, and that, of course, would not be a firm debt. But, there would be no fraud in including in a firm judgment, or in a judgment such as this, which was not only a firm, but an individual judgment against the parties, there would be nothing fraudulent, necessarily fraudulent, in including individual liabilities, because the judgment was confessed by George Loeffert & Son, and also by George Loeffert and John Leoffert as individuals. It was on its face, a partnership and an individual judgment, and, therefore, it would probably be natural that they would put in all of their liabilities; but if the partners choose to put in a partnership judgment, a claim that was only an individual claim, I do not see that that would be necessarily fraudulent. It might be a fact which would be considered in connection with other facts, tending to show the fraudulent character of the transaction. So that, in this ease, if you believe that these amounts were actually due to Lenz, or the amounts for which he was liable, and that the judgment was entered for the actual amount of indebtedness and liability, then there would be nothing to effect the validity of this transaction upon that ground. If, however, you find under the whole evidence that the judgment was confessed for more than was actually due, it would be very strong evidence of an intentional fraud. It would be fraudulent, of course, because it would be an attempt to take something that the party was not entitled to, and, if intended, it would be an actual fraud and would destroy the effect of the entire transaction. But the plaintiff alleges that this judgment was fraudulent for another reason. He says that John Leoffert, who was the managing partner of the firm of George Loeffert & Son, had, for some time prior to the confession of this judgment, devised a scheme by which he would get a large amount of property into his hands, upon credit, and that he then would confess a judgment to Lenz, have it sold out at sheriff’s sale, and thus defeat the just claims of the creditors who had trusted him. This, again, depends largely upon the testimony of Mr. Deise. It may be that the books and papers which he presented sustain him, corroborate his statements, and that you will consider. The fact that John Loeffert had bought a large amount of materials, that he had erected a mill upon property that was actually owned by a third party, spending a considerable amount of money in so doing, and that he had made misrepresentations to persons from whom he bought as to the standing of the firm, would be very strong evidence of his intention to commit a fraud.</p> <p>It seems that he was tried and convicted for obtaining money under false pretense, or property under false pretense, from some of these parties. Just what the facts in that case were you do not know; they were not disclosed, but it appears by the testimony of Mr. Deise that there was a statement made of the condition of the firm, which was changed by Loeffert by inserting certain figures that largely increased the assets of the firm, and that that was used in the banks, and also in dealing with persons who were selling them lumber. The counsel for the defendant here did not attempt to claim that John Loeffert had not committed a fraud in that business. Loeffert, himself, says that he thought he would be able to carry the business through to a success; he says, that even when he got the |10,000 indorsement in April, he still believed he was able to carry on the business. Mr. Lenz says he so represented to him, but Deise says, and the facts would seem to carry it out, that John Loeffert had some scheme in his mind by which he would get a large amount of property upon credit, and Deise says that a part of that scheme was then that he would confess judgment to Lenz for a large amount of money, and have it sold out upon a judgment of that sort.</p> <p>Now here is another place in which you must be careful. It is not sufficient to defeat this judgment of the defendant, to show that John Loeffert had devised a scheme to cheat his creditors. That is one step, of course, a necessary step in the business. You must find, not only that John Loeffert, or George Loeffert & Son, who were the defendants here, but John Loeffert was really the active man, that John Loeffert had devised a scheme to defraud his creditors, but, you must further find, in order to affect this'judgment, that Henry Lenz was a party to that scheme, or bad knowledge of it, and, as is alleged, assisted in it by furnishing him money to keep going while he was collecting this property. Therefore, the testimony that you must most carefully, consider is, not that which proves that John Loeffert was perpetrating a fraud, but that Mr. Lenz knew of it, or was a party to it. Now what is the testimony in reference to that ? That, of course, is a matter that is to be determined, to some extent, by the direct testimony, and, to a certain extent, by applying all of the transactions, both before and after, to the determination of what was the actual fact, as to his knowledge. Mr. Deise says that he and John Loeffert had talked the matter over; John said he could get $100,000 worth of property together, confess judgment to his father-in-law, and that he would keep the creditors out of anything. He further says that matter was talked over by him with Mr. Lenz and with Mr. Wakefield, the attorney in the case; that some of the entries in the books at the close, in order to carry this out, had been made at the instance of Mr. Wakefield, who was acting for Leoffert & Son at that time. That is Deise’s allegations.</p> <p>Mr. Lenz denies that; denies that he ever had any intimation of any such purpose on the part of John Loeffert; that Mr. Deise never spoke to him about it. Mr. Lenz says that Mr. Deise did say to him, in talking about his indorsements, and when he was suggesting that his indorsements ought to be reduced, that Deise said to him he was perfectly safe; that there was plenty of property there; that they were in good condition, but that if anything did happen he would be taken care of. That is what Mr. Lenz says.</p> <p>As I said before, in my preliminary remarks, it would not be fraudulent for a debtor to say to a creditor, especially an accommodation creditor, “ If anything happens I will see that you are protected,” because he would have a right to protect him, and, therefore, he would have a right to say so; but if Mr. Deise informed Mr. Lenz of the purpose of John in getting a large amount of property together, and that when that was done he would confess a judgment to him for the purpose of cheating these creditors from whom lie had obtained this property, that would be fraudulent. There, it seems to me, is the main point in this case ; whether or not you believe Deise that he informed Lenz of John’s purpose and his intention to confess a judgment in his favor in order to get possession of the property, because if he did that, if that was done, it would not matter whether the judgment was confessed for the amount that was actually due, or for which he was liable, which he might honestly confess to him; if it was confessed for the purpose of cheating and defrauding creditors, even though for the actual indebtedness, it would be invalid; it would be a fraud upon creditors which would render the whole transaction void. So that there is the main point, it seems to me, of the testimony, for your consideration.</p> <p>Now, in corroboration of the one or the other, there is a large amount of testimony that will tend, in your minds, to determine which is telling the truth about that matter. As I have said before, I will not pretend to go over it. You have heard it, you will remember it probably as well as I do, and you beard it .fully argued by counsel.</p> <p>It .is claimed, however, that Mr. Lenz is bound by the knowledge of Mr. Wakefield on this subject, and that Mr. Wakefield knew of it. I do not understand that Mr. Lenz would be bound by knowledge of Mr. Wakefield, which was not communicated to him; though he may have been his attorney, if Wakefield was also attorney of Loeffert & Son and knew of the transactions that were being carried on, and was simply employed by Mr. Lenz to take this judgment and enter it up, he would not be bound by any secret knowledge that Wakefield had. But you will observe, further, that Wakefield’s knowledge of this intentional fraud is also dependent upon the statement of Mr. Deise, who says that Mr. Wakefield knew all about it. Mr. Wakefield denies that. He testified as to some interviews that took place in the office on one Sunday, ¿the Sunday preceding the confession of this judgment. Wakefield denies that Deise was there at all that day. He says they sent for him but that he did not come; he did not see him. So that there is a direct conflict of testimony between Wakefield and Deise upon that point. Deise is contradicted in reference to this matter, both by Wakefield and Lenz. If, therefore, you would find that Wake-field had this knowledge, you would probably find that Lenz had it, from the same testimony; but even if Mr. Wakefield did have the knowledge of these schemes by John Loeffert, and did not communicate it to Lenz, Lenz would not be affected by that, if his judgment was honestly obtained, and in an honest amount.</p> <p>Yerdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned among others was that the charge was inadequate and one-sided.</p>

<p>Mines and mining — Use of gas pump in oil well — Injunction—Equity.</p> <p>An injunction will not be granted to restrain the use of a gas pump in an oil well, where it appears that gas pumps have been in constant use in all oil fields except one, to a greater or less extent, since the discovery of oil; that they are only used in wells in territory almost exhausted; that their cost is within the reach of all operators, and, when used by all, none is injured.</p>

<p>Mortgage — Assignment of mortgage — Defense— Consideration.</p> <p>As the assignee of a mortgage takes it subject to all the equities of the mortgagor against the mortgagee, if the mortgage was given without consideration, and was not intended as a gift, the assignee cannot recover upon it. It is immaterial that the assignee was bondsman for the mortgagor’s husband as tax collector, and that the husband has made default in paying over the moneys received as collector, if such liability had been incurred long before, and was not induced by the mortgage or any promise by the mortgagor to give a mortgage.</p>

<p>Heed — Husband and wife — Family settlement — Gancelalion of deed.</p> <p>A wife executed a deed to her husband for land which the husband and wife held jointly, and also for a small tract of land, the title to which was in her name alone. All of this land had been paid for with the money of the husband, and there was a mortgage covering it all. The husband had his life insured in favor of his wife. When he was about to die, an attorney was consulted who advised that the deed of the land should be made to the husband, who' should thereupon execute a will giving all of his estate to his wife for life, with remainder to his children. In consideration o£ the provisions of the will, the wife was to apply the insurance money to the payment of the mortgage and of all other debts of the husband. The wife assented to the arrangement after a full explanation which she perfectly understood, and papers were executed carrying it out. After the death of the husband, the wife took possession of the property, collected the insurance and paid off the mortgage and other debts. About six years after her husband’s death she filed a bill to cancel the deed which she had made to her husband on his deathbed. There was no evidence that the wife had been misled or deceived. Held, that the court committed no error in dismissing the bill.</p>

<p>Appeal, No. 185, Oct. T., 1899, by plaintiffs, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1893, No. 313, on verdict for plaintiff.</p> <p>Appeal from jury of view. Before Evans, J.</p> <p>At the trial it appeared that plaintiff owned a lot which was in a natural depression below the level of the surrounding streets. In the improvement of Wightman street the city raised the grade of the street several feet above the grade of plaintiff’s lot abutting on it.</p> <p>When S. H. Ralston, a witness for plaintiff, was on the stand, he testified as follows :</p> <p>“ Q. Have you made a calculation as to the amount of earth that would be required to bring this ground up to the level of Wightman street? A. Yes, sir, I did. Q. Now what is that amount ? ”</p> <p>Objected to as incompetent and irrelevant.</p> <p>The Court: Objection sustained, exception allowed and bill sealed. [1]</p> <p>“ Q. Can you tell what amount of fill would be necessary to bring this property to, the grade of Wightman street, irrespective of Solway street and Wilkins avenue ? ”</p> <p>Objected to, because it is a question that cannot be answered intelligently, no matter what his opinion may be in reference to it, whether he says yes or no ; he cannot do it without affecting the other streets.</p> <p>The Court: We will hear it at present.</p> <p>“ A. I would not know how to answer that question, put in that way. I could tell how much it would take to fill it to Wightman street, but as to affecting the other two streets, I would not know how to answer that. Q. Could you not give the proportionate amount, judging by the level, as it stands in regard to Wilkins avenue and Solway street, what amount would make this property suitable for building on Wightman street? A. I would think, necessarily, it would have to be filled up to the grade of the other two streets. Q. Why? A. If you didn’t, it would be lower than the adjoining streets.”</p> <p>Counsel for plaintiff, having proved by the witness on the stand and by the figures marked upon the draft which he had proved, the depths of the various portions of plaintiff’s ground below the levels of Wightman street and the other streets, proposed to prove by the witness what those depths amounted to in cubic yards of earth, for the purpose of introducing testimony to show what proportion thereof should be taken into calculation in regard to the value of the front on Wightman street.</p> <p>Objected to by defendant as incompetent and irrelevant, the witness having already stated that he could not give figures without affecting Wilkins avenue and Solway street.</p> <p>The Court: Objection sustained, exception allowed and bill sealed. [2]</p> <p>Plaintiff’s second point and the answer thereto were as follows :</p> <p>In estimating the damage to the plaintiff’s property, the jury have a right to consider the cost of bringing the property to the grade of Wightman street and the increased expense of carrying the foundations of proposed dwellings fronting thereon down to a solid foundation, as bearing upon the market value of said property before and after the improvement. Answer: This point is refused, as it is stated, there being no evidence submitted to you as to the .cost of grading, or bringing the plaintiff’s property to the grade of Wightman street. You could not take into consideration, in arriving at your verdict, what the cost would be, because you do not know it. However, as I have said before, you take into consideration the location of the property immediately as it exists after the fill, the fact that it was below the grade of the street, and any other fact as affected by the change of grade. [3]</p> <p>Verdict aud jugdment for plaintiff for $1,000. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (8) above instructions, quoting them.</p> <p>The appellant’s second point, which is embraced in the assignment of error, carefully guards against the idea that the evidence offered was for the purpose of establishing an independent item of claim, and the whole case seems to have been ruled exactly on the case of Patton v. City of Philadelphia, 175 Pa. 88.</p> <p>Where a street is opened at a grade that leaves the adjoining property in a depression, the expense of putting the property in condition to make use of the street was held in Dawson v. Pitts-burg, 159 Pa. 317, to be one of the elements of damage; and it was proper to treat it as a part of the case for damages for the taking: Righter v. Philadelphia, 161 Pa. 73.</p>

Appeal, No. 6, Oct. T., 1900, by-plaintiff, from judgment of C. P. Indiana Co., Sept. T., 1899, No. 230, on case stated. Case stated to determine the marketable character of real estate. From the case stated it appeared that plaintiff entered into an agreement in writing with defendant for the consideration therein mentioned to sell and convey to said defendant a certain lot of ground, situate in the borough of Indiana, lately the property of Alexander Gilchrist, deceased.

<p>Appeal, No. 325, Jan. T., 1898, by plaintiff, from judgment of C. P. Bedford Co., Feb. T., 1898, No. 266, on case tried by the court without a jury.</p> <p>Ejectment for a lot of ground in Bedford.</p> <p>The case was tried by Bailey, P. J., of the 20th judicial district, specially presiding, without a jury.</p> <p>The parties agreed upon the following facts :</p> <p>1. The common source of title of the parties, plaintiff and defendants, is a deed from James Moore to Hiram Lentz and Mary Lentz, his wife, of the borough and county of Bedford, state of Pennsylvania, dated September , 1843.</p> <p>2. The said Hiram Lentz and Mary Lentz were husband and wife, and they lived together on said property until the death of Maiy Lentz.</p> <p>3. The said Mary Lentz died on March 3, 1873,.and Hiram Lentz, the husband, survived her, and died on June 1, 1895.</p> <p>4. The said Hiram Lentz became indebted to the Bedford Building and Loan Association on June 20, 1875, and on that day judgment was entered against him by the same for the sum of $600, which judgment was regularly revived against him. in his lifetime, and against his administrators after his death.</p> <p>5. By virtue of an execution on said judgment issued, the sheriff levied upon the property described in said deed and sold the same on February 1, 1896, to Alexander King, who conveyed the same by deed dated July 30, 1896, to the plaintiff above stated.</p> <p>6. The plaintiff had notice at the time of sale by the sheriff to the said Alexander King that the defendants claim to own the land in dispute; that the defendants are the children of the said Hiram Lentz and Mary Lentz, and that James Moore was the father of the said Mary Lentz.</p> <p>The court held that Hiram Lentz’s death terminated his interest in the land, and entered judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1) in holding that whatever interest Hiram Lentz held in the land was determined by his death; (2) in directing judgment to. be entered in favor of defendant.</p> <p>If an estate in fee be given to a man and his wife they are neither joint tenants nor tenants in common, for husband and wife being considered as one person in law they cannot take the estate by moieties, but both are seized of the entirety, per tout, et non per my: 2 Blackstone’s Comm. 182; Stuckey v. Keefe, 26 Pa. 399; Lodge v. Hamilton, 2 S. & R. 491; Young’s App., 166 Pa. 645.</p> <p>Nor does the act of 1812, abolishing joint tenancies, apply to an estate conveyed to husband and wife: Robb v. Beaver, 8 W. & S. 107; Diver v. Diver, 56 Pa. 109; Stuckey v. Keefe, 26 Pa. 399.</p> <p>That an estate could not under common-law rule be conveyed to husband and wife as grantees, to hold in any manner except as tenants by entireties, is sustained by numerous authorities : Johnson v. Hart, 6 W. & S. 319.</p> <p>If it was the intention of the grantor to convey a life estate only to Hiram Lentz, he adopted language and form which the law construes to mean otherwise, and where the presumed intention is contrary to law, it must give way: Berridge v. Glassey, 112 Pa. 455.</p> <p>While the habendum may lessen, enlarge, explain or qualify the estate granted by the premises, it never has been held to change the parties or to introduce new ones : Auman v. Auman, 21 Pa. 843; Tyler v. Moore, 42 Pa. 374.</p> <p>It comes to us from the common law of England that in the construction of deeds the intention of the parties is what the law applies itself to and governs; and in order to determine what the intentions of the parties to a deed may be the entire deed must be taken and not a part only: 2 Blacks tones’s Comm. 379; Mitchell on Real Estate & Conveyancing in Penna. 475; Wager v. Wager, 1 S. & R. 374; Wharton v. Fisher, 2 S. & R. 182; Berridge v. Glassey, 112 Pa. 442.</p> <p>Even technical words may be so qualified by the context as to make them conform to the intention of the parties in the executed conveyance: Mergenthaler’s App., 15 W. N. C. 441; Huss v. Stephens, 51 Pa. 282; Criswell v. Grumbling, 107 Pa. 408.</p> <p>The habendum of a deed may lessen, enlarge, explain or qualify the estate granted in the premises: 2 Blacks tone’s Comm. 298 ; Moss v. Sheldon, 3 W. & S. 160; Tyler v. Moore, 42 Pa. 374; Whitby v. Duffy, 135 Pa. 620; Hauft v. Wolverton, 2 Lane. Law Rev. 194.</p> <p>There is no law to prevent a husband and wife from holding different estates in the same property: Bramberry’s App., 156 Pa. 628.</p>

<p>Estoppel — Estoppel in pais — Duty to speak.</p> <p>He who will not speak when ho ought to speak will not be heard when equity demands that he shall keep silent.</p> <p>Assignment for creditors — Payment—Estoppel.</p> <p>An assignee under a recorded assignment who has paid money justly owing one oí the creditors may not recover it back when he has put it out of his power to restore the creditor to his original situation.</p> <p>A person embarrassed financially assigned to an attorney for a bank certain book accounts to secure the payment of a number of his customer’s notes, indorsed by him when he was in good financial condition, and which the bank had discounted. This assignment was not recorded. Subsequently the assignor made a general assignment for creditors, which assignment was recorded. The general assignee permitted the assignee for the bank, who was his attorney, to collect the accounts and pay over to the blink an amount sufficient to cover the notes held by it, lift the notes from the bank and deliver them and the balance of the money to the general assignee, who soon after filed his account in which he charged himself with the assigned book accounts, and took credit for the sum paid the bank. This account was duly confirmed, and no appeal was taken from the decree of confirmation. Held, that the general assignee, five years after, could not recover from the bank the money which he had permitted it to receive from the special assignee.</p>

<p>Will — Devise—Estate tail — Fee simple — Act of April 27, 1855.</p> <p>Where a testator gives to each of his children, after his wife’s death, an equal share of his whole estate for his or her own “ sole and separate use,” except that as to $20,000 worth of property of each child’s share, “ they are only to receive the interest and incomes ” thereof, because he desires that the principal of said $20,000 should be entailed on-each of his children and his legal heirs, each child takes an estate in fee tail, which under the Act of April 27, 1855, P. L. 868, is enlarged to an estate in fee simple.</p> <p>Will — Estate in fee simple — “ Die without issue."</p> <p>Where a testator devises real estate to his children and then directs “ if either of my children die without lawful issue then his or her share reverts back again- to. my estate and becomes part of such estate, and is to be equally divided, the same as the other, amongst all of my surviving children,” each child takes a vested interest in fee simple in his share, if all of the children survive testator; and in such case, if the words “ die without lawful issue’’mean death during testator’s lifetime, then, as all the children survived, the exception has no effect to cut down the fee simple previously given; if they refer to definite failure of issue, then the estate is cut down to a fee tail, which by the act of 1855 becomes a fee simple.</p>

Appeal, No. 168, Jan. T., 1899, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1897, No. 732, on verdict for defendant. Assumpsit for balance of purchase money of real estate. Before Sulzberger, 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. Error assigned among others was the instruction of the court.

<p>Divorce — Desertion—Evidence.</p> <p>On a iibel for divorce by a husband against a wife for desertion, a divorce will be granted where the respondent admits in her testimony that pile left her husband, intending to “remain away from home forever;” that she went away to remote regions, and staid between two and three years.</p>

<p>Appeal, No. 198, Jan. T., 1899, by the city of Philadelphia, from judgment 'of Superior Court, Oct. T., 1898, No. 59, affirming order of Q. S. Phila. County, March T., 1897, sustaining exceptions to report of jury of view.</p> <p>Exceptions from report of viewers.</p> <p>Appeal from Superior Court.</p> <p>The facts as stated in the report of the case in 9 Pa. Superior Ct. 604, are as follows:</p> <p>It appears from the record and evidence that a jury was appointed to consider the damages caused by reason of the opening of Orkney street from Ontario street to W estmoreland street. The jury filed a report, in which after reporting the amount of damages suffered by property owners whose land is taken, they determined the amount of damages to be equal to $4,440, and that the sum of $1,553.24, shall be paid by the city of Philadelphia, and the balance, $2,906.76, shall be paid by property owners for the benefit accruing to them by reason of said opening, in the amount set opposite their names, and a list of such property owners with the amount of .the benefits assessed against each is given. It appears further from the report that a large portion of Orkney street between Ontario street and Westmoreland street had been opened by dedication to the city by the then owners of property and acceptance thereof, long previous to the ordinance of the councils of the city of Philadelphia, approved October 10, 1896, by which the director of the department of public works was authorized and directed to notify the owners of property over and through which the said Orkney street between Ontario and Westmoreland streets will pass. It appeared also that Orkney street as theretofore opened and approved ended in a cul de sac having an opening only on Ontario street and none on Westmoreland street. The grade at Westmoreland street end of Orkney street was about five feet higher than the opened portion, consequently the only access owners and tenants of the houses on Orkney street had was byway of Ontario street. The grade also resulted in water accumulating on Orkney street and forming a pond, which the jury reported rendered several of the houses uninhabitable; and that the street as opened had no sewer, and that the street having been opened and the sewer placed therein substantial benefits accrue to the houses on the theretofore improved portion of the street.</p> <p>Exceptions were filed on behalf of several property owners assigning error, inter alia, that the jury had not found that ex-ceptant’s property abutted on the portion of said Orkney street by the ordinance, and that the assessment of benefits against the premises in question is illegal, because the same do not abut directly upon the line of improvement.</p> <p>The court below sustained the exceptions, holding that the' case is ruled by Verona Borough’s Appeal, 4 Pa. Superior Ct. 608, and Morewood Avenue, 159 Pa. 20. The city of Philadelphia appealed.</p> <p>The Superior Court affirmed the judgment of the court of quarter sessions.</p> <p>Errors assigned was the judgment of the Superior Court.</p>

Appeal, No. 202, Jan. T., 1899, by defendants, from decree of C. P. No. 2, Phila. Co., Sept. T., 1898, No. 781, on bill in equity. Bill in equity to remove a cloud on title.

Appeal, No. 162, Jan. T., 1899, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1898, No. 246, on verdict for plaintiffs. Issue devisavit vel non. At the trial it appeared that on January 21, 1897, Margaret McCaffrey, an unmarried woman about eighty years of age, executed by her mark a paper purporting to be a will. She was at the time boarding with William Miles and his wife, who were the principal beneficiaries under the will.

Appeal, No. 258, Jan. T., 1899, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1898, No. 1450, on verdict for defendants. Trespass for personal injuries. At the trial it appeared that plaintiff, a boy ten years old, was injured by defendants’ wagon, near the corner of Fourth and Marriott streets in the city of Philadelphia, on February 25, 1898, about 4 o’clock in the afternoon.

Appeal, No. 265, Jan. T., 1899, by defendant, from decree of C. P. No. 3, Phila. Co., on bill in equity. Bill in equity for discovery and an injunction. Before McMichael, J. The facts appear by the previous report of the case in 190 Pa. 544. See also Garis’s Appeal, 185 Pa. 497.

Appeal, No. 282, Jan. T., 1899, by defendants, from order of C. P. No. 1, Phila. Co., Sept. T., 1898, No. 440, discharging rule to open judgment. Rule to open judgment entered on bond with warrant of attorney. .

Appeal, No. 435, Jan. T., 1897, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. Term, 1896, No. 925, on verdict for defendants. Trespass for death of plaintiff’s son. The facts appear by the opinion of the Supreme Court. See also Brady v. Prettyman, 193 Pa. 628.

Appeal, No. 389, Jan. T., 1898, by defendant, from order of C. P. Lehigh Co., Nov. T., 1896, No. , discharging rule to open judgment. Rule to open judgment. Before Albright, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was the order discharging the rule. The articles of separation, that are a part of the record, are enforceable in equity and binding upon the parties thereto.

Appeal, No. 279, Jan. T., 1899, by plaintiffs, from decree of C. P. No. 1, Pliila. Co., March T., 1899, No. 1090, on bill in equity. Bill in equity for an injunction to restrain waste. From the record it appeared that plaintiffs were owners of a mortgage on land, the title to which was in William J. Smith, but which was alleged to be owned by Owen Hatton, the defendant.

Appeal, No. 284, Jan. T., 1899, by-defendant, from decree of C. P. No. 2, Phila. Co., Sept. T., 1891, No. 728, dismissing exceptions to master’s report. Bill in equity for an account. This case was in this Court before, and is reported in 184 Pa. 583.

Appeal, No. 252, Jan. T., 1899, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1898, No. 756, on verdict for plaintiff. Trespass for personal injuries. At the trial it appeared that Mary Nicholson, on July 27, 1898, between 8 and 9 o’clock in the morning, fell on a defective pavement in front of 744 South Third street in the city of Philadelphia, injuring herself seriously. The condition of the pavement is described in the opinion of the Supreme Court.

Appeal, No. 290, Jan. T., 1899, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1898, No. 180, refusing to take off nonsuit. Assumpsit for work and labor done. At the trial it appeared tliat plaintiff claimed for work done and materials furnished for the building of six walls at the House of Correction. The defendants who were the contractors with the city denied their liability.

Appeal, No. 314, Jan. T., 1898, by plaintiff, from order of C. P. No. 1, Phila. Co., June Term, 1896, No. 206, refusing to take off nonsuit. Trespass for personal injuries. At the trial the court entered a compulsory nonsuit, Brégy, J., filing the following opinion: This is rather a remarkable case.

Appeal, No. 252, Jan. T., 1898, by-defendant, from judgment of C. P. No. 4, Pbila. County, June T., 1896, No. 1193, on verdict for plaintiffs. Assumpsit for breach of contract.

Appeal, No. 417, Jan. T., 1898, by defendant, from order of C. P. No. 1, Pbila. Co., dismissing exceptions to referee’s report. Exceptions to referee’s report. The referee, E. Hunn Hanson, Esq., in his report, stated the facts as follows : The action was foreign attachment in assumpsit.

Appeal, No. 151, Jan. T., 1899, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1896, No. 489, on verdict for plaintiff. Assumpsit for money loaned. Before Biddle, P. J. The facts are fully stated in the opinion of the Supreme Court. Defendant’s points and the answers thereto among others were as follows: 2. There is not sufficient evidence in this case that Lawrence Bur, defendant’s former secretary, had authority to borrow money from plaintiff.

Appeal, No. 110, Jan. T., 1899, by defendant, from judgment of C. P. No. 8, Phila. Co., Dec. T., 1892, No. 1096, on verdict for plaintiffs. Appeal from report of jury assessing damages for the opening of Rúan street, in the twenty-third ward. In 1848, the land in question was a portion of the tract which was then laid out in lots and sold according to a plan made and recorded by the owner.

Appeal, No. 188, Jan. T., 1899, by-defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1894, No. 388, on verdict for plaintiff. Replevin for two liorses, harness and coach. Before Ble GY, J. The facts are fully stated in the opinion of the Supreme Court.

Appeal, No. 163, Jan. T., 1899, by defendants, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1897, No. 633, on verdict for plaintiff. Trespass for trade libel.

<p>Appeal, No. 203, Jan. T., 1899, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1895, No. 309, on verdict for plaintiff.</p> <p>Trespass for death of plaintiff’s husband. Before Wilt-bank, J.</p> <p>At the trial it appeared that on March 1,1895, the deceased, who was the engineer of the Philadelphia & Reading Railroad Company’s fast express train, known as “The Royal Blue,” from Jersey City to Philadelphia, was killed at Bayonne city, by his train running into a wreck of empty coal cars. It appeared that the coal train, which consisted of a large number of coal cars, started for Jersey City somewhat ahead of the express train. At Bayonne a flagman signaled the coal train to stop. The signal was obeyed with the result that the back part of the train which had parted, piled up upon the forward cars, and a number of cars were precipitated upon the adjacent track. There was no explanation why the flagman had given the signal.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for #8,500. Defendant appealed.</p> <p>Errors assigned were (1) in refusing to admit in evidence release given to the Philadelphia & Reading Railroad Company; (2) in refusing to give binding instructions for defendant.</p> <p>There was no evidence that justified the submission to the jury of the question whether or not an erroneous signal had been given.</p> <p>Even if the jury were justified in finding that in the swinging of the red lamp upon the platform there was a failure on the part of the defendant’s servant to perform his duty, the death of plaintiff’s husband was not the proximate consequence of such failure: Wood v. Penna. R. Co., 177 Pa. 306; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293; Penna. R. Co. v. Kerr, 62 Pa. 353; Harrison v. Berkley, 1 Strobh. 548; Scott v. Allegheny Valley Ry. Co., 172 Pa. 646.</p> <p>There was error in excluding defendant’s offer of the facts relating to the payment to the plaintiff by the Philadelphia and Reading Relief Association, and the release by her of the liability of her husband’s employers : Johnson v. Philadelphia & Reading R. R. Co., 163 Pa. 127; Seither v. Philadelphia Traction Co., 125 Pa. 397.</p> <p>The signal given by the defendant’s flagman was a signal to stop, while it should have been a signal that the train had parted.</p> <p>Whether the signal was made to the engineer and not to the rear portion of the coa.1 train, and whether it was according to the usual course of the business that the engineer should obey that signal, was left to the jury and has been found in plaintiff’s favor.</p> <p>The Philadelphia and Reading Railroad Company was not guilty of negligence and is not a joint tort feasor with respect to the accident which caused the death of plaintiff’s decedent.</p> <p>There is not only no evidence whatever that the coal train was improperly equipped in any manner, or that mingling cars of different sizes and patterns was negligence, but the evidence is uncontradicted that such mingling of the different cars was then the usual practice.</p> <p>The improper signal by the defendant’s flagman was the direct and proximate cause of the death of plaintiff’s husband : Bunting v. Hogsett, 139 Pa. 374 ; Morrison v. Davis & Co., 20 Pa. 171; R. R. Co. v. Reeves, 10 Wallace, 176; Shearman and Redfield on Negligence (5th ed.), sec. 29; Wood v. Penna. R. Co., 177 Pa. 306 ; Haverly v. State Line, etc., R. Co., 135 Pa. 50.</p> <p>The case of Penna. & New York Canal & R. R. Co. v. Lacey, 89 Pa. 458, decided, in 1879, has facts quite similar to those of Penna. R. Co. y. Kerr, and yet this Court in a per curiam failed to follow that case, but followed instead Penna. R. Co. v. Hope, 80 Pa. 373, and held that the case must go to the jury.</p> <p>The present case was properly submitted to the jury: Shear-man and Redfield on Negligence, sec. 55; Oil Creek, etc., Ry. Co. y. Keighron, 74 Pa. 316; Penna. R. Co. v. Hope, 80 Pa. 373; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 127; Oil City Gas Co. v. Robinson, 99 Pa. 1; Haverly v. R. R. Co., 135 Pa. 50; Hoehle v. Heating Co., 5 Pa. Superior Ct. 21; Yoders y. Amwell Township, 172 Pa. 447.</p> <p>There was no error in excluding defendant’s offer of the facts relating to the payment by the Philadelphia & Reading Relief Association: Seither v. Phila. Traction Co., 125 Pa. 397; Johnson v. Phila. & Reading R. R. Co., 163 Pa. 127.</p>

Appeal, No. 213, Jan. T., 1899, by defendant, from judgment of Superior Court, Oct. T., 1898, No. 181, reversing order of C. P. No. 4, Phila. Co., Sept. T., 1898, No. 548, discharging rule for judgment for want of a sufficient affidavit of defense. Appeal from Superior Court. From the record it appeared that the writ was in assumpsit.

Appeal, No. 237, Jan. T., 1899, by plaintiffs, from order of C. P. No. 1, Pkila. Co., March T., 1899, No. 276, refusing to take off nonsuit. Trespass for forcible entry and damage to building.

Appeal, No. 130, Oct. T., 1899, by Eva L. Lea, from decree of O. C. Phila. County, April T., 1898, No. 468, dismissing exceptions to adjudication. Exceptions to adjudication. The facts appear by the opinion of the Supreme Court. Error assigned was the decree of the court.

Appeal, No. 160, Jan. T., 1899, by-Eliza Knowles et al., from decree of O. C. Phila. Co., July T., 1898, No. 23, refusing an issue devisavit vel non. Appeal from register of wills. Ferguson, J., filed the following opinion: The appellants in this ease are two of the sisters of the testatrix, although neither of them or the other surviving sister took any part in the contest, even to the extent of appearing as witnesses in the case.

Appeal, No. 293, Jan. T., 1899, by plaintiff, from judgment of C. P. No. 1, Pliila. Co., March T., 1898, No. 990, on verdict for defendant. Sheriff’s interpleader. Before Brégy, J. The facts are fully stated in the opinion of the Supreme Court. The court gave binding instructions for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

Appeal, No. 295, Jan. T., 1899, by plaintiffs, from order of O. P. No. 2, Phila. Co., June T., 1897, No. 514, refusing to take off nonsuit. Trespass for an alleged wrongful interference with plaintiffs’ work as contractors. At the trial it appeared that plaintiffs were contractors for the East Penn Traction Company, and as such had a contract to dig a trench in the borough of Morrisville, which borough had consented to the excavation.

Appeal, No. 215, Jan. T., 1899, by plaintiffs, from order of C. P. No. 2, Phila. Co., Sept. T., 1897, No. 919, refusing to take off nonsuit. Trespass for personal injuries. Before Pennypacker, P. J. At the trial it appeared that Mrs. Horner, on the evening of August 27, 1897, fell over a fire plug on the sidewalk of Worrell street in the city of Philadelphia. The plug was situated about four inches from the curb, and was of ordinary diameter.

<p>Appeal, No. 299, Jan. T., 1899, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 1312, on verdict for defendant.</p> <p>Assumpsit for salary. Before McCarthy, J.</p> <p>At the trial it appeared that on March 13, 1895, plaintiff was elected solicitor of the defendant company, which was then known as the Contractors Surety, Title & Trust Company. On April 27, he received the following letter:</p> <p>“ Philadelphia, April 27,1895.</p> <p>“ Joseph W. Fitzpatrick, Esq.,</p> <p>“ 110 South Fourth Street:</p> <p>“ Dear Sir: I beg to advise you that at a meeting of the board of directors of the ‘ Contractors Surety, Title and Trust Company,’ held on the 22d inst., it was resolved that the solicitor’s salary shall begin when he is notified that his services are required by the company.</p> <p>“Tours truly,</p> <p>“ James R. Calhoun, Secretary.”</p> <p>On May 6, 1895, he wrote to the company as follows:</p> <p>“ At this time I also beg to notify you of the receipt of a communication from your secretary, dated April 27, 1895, informing me that a resolution had been passed by your body ‘ that the solicitor’s salary shall begin when he is notified that his services are required by the company.’ While this resolution is very broad and indefinite, I accept it if it is the desire of the board to have it remain as it now stands.</p> <p>“ Joseph W. Fitzpatrick.”</p> <p>The company never notified the plaintiff that his services were required, and in the following October the office of solicitor was abolished.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>¡Error assigned among others was (1) in directing a verdict for defendant.</p>

Appeal, No. 326, Jan. T., 1899, by-plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1895, No. 914, making absolute a rule to open judgment. Rule to open judgment.

<p>Municipalities — Discretionary power — Duty to guard dam — Rivers— Damages — Negligence.</p> <p>A municipal corporation is not liable to an action for damages, either for the nonexercise of, or for the manner in which, in good faith, it exercises discretionary powers of a legislative character.</p> <p>Where a river flowing through a park has been made a slack-water navigation by a corporation authorized by statute, with power to erect dams and locks, a city in which is vested the title to the park has no duty, in the absence of statutory requirement, to maintain safeguards above a dam erected by such corporation within the park limits, to prevent boats from drifting over the dam.</p> <p>The city of Philadelphia is subject to no duty to maintain safeguards across the Schuylkill river above the Fairmount dam.</p>

Appeal, No. 360, Jan. T., 1899, by plaintiffs, from decree of C. P. No. 1, Phila. Co., Sept. T., 1897, No. 349, dismissing bill in equity. Bill in equity for an account. Brégy, J., filed the following opinion: STATEMENT OF FACTS. From the evidence heard by me at the trial of this case on September 23, and October 15, 1898, and from the bill and answer, I find the following to be the facts: 1.

Appeal, No. 294, Jan. T., 1899, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1896, No. 343, refusing to take off nonsuit. Trespass for death of plaintiff’s husband. At the trial it appeared that on November 16,1896, John T. Watkins, husband of defendant, was killed by an electric car at the crossing of Market and Thirtieth streets in the city of Philadelphia. The accident occurred at 5 o’clock in the afternoon.

Appeal, No. 343, Jan. T., 1899, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1896, No. 867, refusing to take off nonsuit. Trespass for personal injuries. At tbe trial it appeared that on March 23, 1896, about 4: 30 p. M., plaintiff was struck by a car of defendant at the intersection of Arch and Fifteenth streets in the city of Philadelphia.

<p>Appeal, No. 385, Jan. T., 1899, by plaintiffs, from decree of C. P. No. 1, Phila. Co., Dee. T., 1898, No. 1259, dismissing bill in equity.</p> <p>Bill in equity by subcontractors to compel owners of a building to account for retained percentage.</p> <p>The defendant demurred to the bill.</p> <p>The averments of the bill and the grounds for demurrer are fully stated in the opinion of the Supreme Court.</p> <p>•Errors assigned were in sustaining the demurrer and dismissing the bill.</p> <p>Under the fact stated in the bill appellees have no right to retain the fund. as against appellants and refuse to pay it to anybody: White v. Miller, 18 Pa. 52; Nice v. Walker, 153 Pa. 124; Sample v. Hale, 34 Neb. 220; Landis v. Royer, 59 Pa. 95; Lyman v. City of Lincoln, 38 Neb. 794; Zell’s App., Ill Pa. 532; Adams v. Kuehn, 119 Pa. 76 ; Dreer v. Penna. Co., 108 Pa. 226 ; Delp v. Brewing Co., 123 Pa. 42; Brown v. Trust Co., 174 Pa. 443; Lesley v. Kite, 192 Pa. 268; Lancaster v. Frescoln, 192 Pa. 452.</p> <p>There is no averment in the bill to the effect that the. institution ever agreed with the subcontractors that they would waive the condition precedent» If, however, they had thus agreed, the subcontractors would not become entitled to a fund stipulated to be paid only to the contractors: Geist’s App., 104 Pa. 851; Christmas v. Russell, 14 Wall. 70; Dale v. Land Co., 3 Phila. 328; Pittsburg Terra-Cotta Lumber Co. v. Sharp, 190 Pa. 256.</p> <p>To render a contract between two persons binding in favor of a third it must appear, first, that it was intended to confer an indefeasible interest on the latter; and, next, that defendant might otherwise be made answerable twice for the same default: Yadikin v. Soper, 2 Am. Leading Cases, 142.</p> <p>The provision that “the said final instalment shall not be payable until all the mechanics and materialmen ” acknowledged payment, absolutely precludes recovery by the contractor, Moore v. Carter, 146 Pa. 492, and their assignee can have no higher rights. The clause is either meaningless, or it is for the benefit of the subcontractors, whom it was appellee’s duty to protect: St. Louis v. Von Pliul, 133 Mo. 561; Knapp v. Swaney, 56 Mich. 345; Zell’s App., Ill Pa. 532.</p> <p>The building contract, being recorded pursuant to the act of June 26, 1895, became part of the contract between the contractor and the subcontractors, and the latter are not only subject to the burdens, but entitled to the privileges resulting therefrom : Schroeder v. Galland, 134 Pa. 277.</p> <p>The contention that all the subcontractors should have been joined is without merit. This is a class bill, and is filed on behalf of all the members of the class: Pepper v. Phila., 181 Pa. 566; Wheeler v. Phila., 77 Pa. 338.</p>

<p>Negligence — Street railways — Alighting from street car — Nonsuit.</p> <p>In an action against a street railway company to recover damages for personal injuries, a nonsuit is properly entered where the plaintiff testifies-that at the time of the accident he was a passenger on one of defendant’s, cars; that he stood with one foot oh the lower step and one on the platform of the car, with articles in both hands, and that while in this position, crowded between two men, he fell from the car while it was passing in its mere ordinary motion. .</p>

<p>Appeals — Execution — Supersedeas — Judgment upon scire facias sur mortgage — Act of May 19, 1897.</p> <p>A judgment upon seire facias sur mortgage is a “judgment directing the payment of money” within the meaning of the Act of May 19, 1897, sec. 6, P. L. 68, and an appeal from such a judgment will not act as a supersedeas, unless a bond is entered in double the amount of the judgment and costs.</p> <p>Appeals — Penally for improper appeal — Act of May 19,1897 — Mortgage.</p> <p>Where an affidavit of defense to a scire facias sur mortgage admits the mortgage and the date from which interest was due and unpaid, and claims only that the rate of interest is to be five per cent, and tenders judgment for the amount of the mortgage with interest at five per cent, and the court enters judgment for such amount, but reserves leave to the plaintiff to proceed to trial for the additional interest claimed, an appeal from the judgment is dilatory and vexatious, and the penalty provided by the Act of May 19, 1897, sec. 21. P. L. 72, will be enforced.</p>

Appeal, No. 200, Jan. T., 1899, by-George B. Marble, from decree of C. P. No. 1, Pbila. Co., March Term, 1898, No. 941, on bill in equity. Bill in equity to declare the ownership of an interest in a partnership. Biddle, P. J., filed the following opinion: The complainants allege that: 1.

<p>Appeal, No. 201, Jan. T., 1899, by Clora Markle, from decree of C. P. No. 1, Phila. Co., March T., 1898, No. 941, on bill in equity.</p>

Appeal, No. 139, Jan. T., 1899, by Emma E. Graber, from decree of O. C. Montgomery Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report. The auditor, John M. Dettra, Esq., reported as follows : Emma E. Graber claims the sum of #5,000 bequeathed to her under the will absolutely, and not as a trust. The will reads as follows in reference to this bequest: “ Item.

Appeal, No. 205, Jan. T., 1899, by plaintiff, from judgment of C. P. Montgomery Co., on verdict for defendant. Assumpsit for money had and received. Before Swartz, P. J. At the trial it appeared that on March 16,1889, plaintiff and defendant entered into the following agreement in writing: “ It is hereby agreed by and between James Beatty and N. H. Larzelere as follows, viz: Larzelere is to try the cases of said Beatty against the P. S. V. II.

Appeal, No. 236, Jan. T., 1899, by defendant, from judgment of Superior Court, Dec. T., 1898, No. 123, reversing judgment of C. P. Montgomery Co., Oct. T., 1897, No. 171, in favor of defendant, on case stated. Appeal from Superior Court. The case was reported in 10 Pa. Superior Ct. 227. It appears from the report of the case in 10 Pa.

<p>Trusts and trustees — Resulting trust — Evidence—Equity—Parent and child.</p> <p>The evidence in support of a resulting trust iu land in favor of a son whose father had taken title in his own name, but had permitted the son a certain dominion over the laud, must be clear, precise, convincing and satisfactory. It is not enough that it satisfies a jury, it must also satisfy the mind and conscience of the court sitting as a chancellor reviewing the testimony ; and if it fail in this respect it must bo withdrawn from the jury.</p> <p>Negotiations for the purchase of a farm were carried on by a son; the contract for the purchase of it was signed by him in his own name, but in the body of the contract it was recited that he executed it for his father. He paid the hand money on the contract, $5,000, with his own check, but he received his father’s check on that day for that amount. The price of the farm was $20,000, and the balance of the purchase money was secured by the father’s bond. The son bought the unexpired term of the tenant for a small consideration and entered into possession of the farm. The father expended over $700,000 in improvements contracted for by the son, payment of taxes, purchasing of blooded stock and various other matters on the farm. In the mean time he made declarations to strangers that he had bought the farm for the son, but took the title in his own name that he might keep “tab” on it. The son had no means of his own. The father was amply able and willing to pay. Held, that no trust resulted for the farm in favor of the son.</p>

Appeal, No. 418, Jan. T., 1899, by-Montgomery Insurance Trust and Safe Deposit Co., from decree of O. C. Montgomery Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report.

Appeal, No. 315, Jan. T., 1899, by-Kate S. Passmore, from order of C. P. No. 1, Phila. Co., June T., 1889, No. 438, discharging rule for citation. Rule for citation. The petitioner averred that on May 22, 1889, Levis Pass-more made an assignment for creditors to John N. M. Shinier; that petitioner was a creditor, and that the assignee had never entered security nor filed an account of his trust. The assignee filed an answer to which the petitioner filed a replication.

<p>Appeal, No. 247, Jan. T., 1899, by plaintiffs, from judgment of C. P. No. 4, Pbila. Co., Dec. T., 1896, No. 226, on verdict for defendant.</p> <p>Trespass to recover damages for the alleged obstruction of a watercourse. Before Willson, J.</p> <p>The court charged in part as follows:</p> <p>The plaintiffs say that this stream of wbicli I liave spoken bad an unobstructed course and ran out freely from their premises and further on until the time when the defendant began to fill up bis lot. They say that there was a trunk, sluice, or something of the sort underneath the level of the structure or bed of Forty-sixth street; that that was open, and that the water passed through it on to the property belonging to the defendant, hut that when he began to fill up his lot the water stopped flowing and began to dam up on the west side, the plaintiffs’ side, of Forty-sixth street, and that the damages which they claim to have suffered arose from that cause. If the evidence has satisfied you that that passageway under Forty-sixth street was opened and unobstructed, and that there was a way for the water to flow out and across the defendant’s premises and on to a proper destination, and that the defendant, by filling up his lot, cut off that natural course of the water and prevented the water from flowing away, so that it was dammed up upon the plaintiffs’ premises, then the plaintiffs are entitled to a verdict for whatever is proper compensation for them. On the other hand, [if that passageway under Forty-sixth street was choked up by some other cause, and in consequence of the failure of somebody to clean it out, or by the lapse of time by reason of the rottenness coming to the structure, it became obstructed so that the water could not flow and did not flow — if that was the reason why this water was accumulated upon the premises of the plaintiffs, then they have no right to ask the defendant to pay them a dollar, because in that case the defendant is not at fault, and though it may have happened that about the same time he filled up his lot, that would have nothing to do with the case, provided the obstruction to the flow of the water was an obstruction with which he had nothing to do, was one which arose from the failure of the sluiceway or the trunk under the bed of Forty-sixth street to perform the duty which it was originally designed to do.] [3]</p> <p>So also, gentlemen, if you are of the opinion upon the evidence that, without any co-operation on the part of the defendant, without his contribution to such a result, the stream was intercepted, cut off, below, on the line of Forty-fifth street, for instance, so that there was no way for the water to get out past that point, I say if there was an obstruction there, caused either by there being no pipe or sluice put under Forty-fifth street, or because it did not work to discharge the water which accumu- • lated above, and there was no opportunity for the water to escape — if that was the state of facts and the defendant did not produce that obstruction at that point, then, in my judgment, he was not responsible to the plaintiffs if that was the reason for the accumulation of water upon their premises. [I do not think that the defendant was bound to furnish his lot for a dumping ground, so to speak, for the water which came from the plaintiffs’ lot. I do not think he was bound to allow a pool to form there for the water which gathered on the plaintiffs’ premises, when there was no opportunity for that water to escape. I do not mean to say that if there had been an opening, if there had been a pipe running out from his premises towards the east, which had become temporarily obstructed, and he could have removed that obstruction so that the water would have flowed away, he would not have been bound to do that. I think lie would. But if the escape of that water was cut off by somebody else, by some other cause with which he had nothing to do, which was not trivial in its character so that he could easily remove it, and the accumulation of water upon the plaintiffs’ premises resulted from that cause, or from anything which occurred by reason of bis filling up his premises afterward, I do not think he would be responsible.] [1]</p> <p>I think you understand what Í mean to say to you. The plaintiffs’ right to recover against the defendant rests entirely upon the defendant’s active contribution towards the stopping of the flow of water from the plaintiffs’ premises to points below. What the defendant was bound to give to the plaintiff was simply an opportunity for the water which flowed through the plaintiffs’ premises to flow through his, that is, the defendant’s premises. He was not hound to take care of it; he was not bounds as I have said, to clean it out, and not bound to do anything but simply to allow the water to pass over in a natural way. [And if that was prevented by some other cause, by somebody failing to clean out the duct under Forty-sixth street, or by the creation of some obstacle on the line of Forty-fifth street or thereabouts, wliiob prevented tbe escape of tlie water, and in consequence of any such a ease the plaintiffs were injured, tbe defendant is not responsible.] [2]</p> <p>As to whether or not there was an obstruction of this sluice under Forty-sixth street, the plaintiffs say that the water flowed through freely. The defendant denies it and calls several witnesses to the above point. It is true that the witnesses did not all say that they had examined it carefully, but perhaps what they say, if you think their statements are true, is just as significant. A witness comes and says that he did not examine to see whether there was any pipe or sluice there, hut he says' that at the time he went there, which was, as I understand it, before the filling was done by the defendant, he saw a pool of water on the west side of Forty-sixth street, a considerable pool of water. It is pertinent to inquire, if that is true, bow tbat pool of water got there if tbe sluice was open so that the water could escape on to the defendant’s premises. I do not think, so far as the facts of the case are concerned, that I need dwell any longer upon them. I have aimed simply to state to you general principles rather than analyze the evidence and give it to you in detail. If you should be of the opinion that the defendant had nothing to do with causing the injury to the plaintiffs’ property, that it came from causes over which the defendant had no control, which he did not bring about, that is, [if it came from an obstruction to the waterway under the line of Forty-sixth street, or because there was no waterway on the line of Forty-fifth street, then your verdict ought to be for the defendant.] [4] In that case it would be very unjust to hold him responsible, no matter how serious the injury may have been to the plaintiffs. If, on the other hand, you should be of the opinion that there was a free passage way for this water under Forty-sixth street and under Forty-fifth street, but that the defendant choked it up, prevented the water from escaping by filling up his lot, so that the water could not get away, the plaintiffs would be entitled to a verdict for a reasonable sum, whatever would justly compensate them for their injuries. That would include their reasonable expenses in their efforts to overcome the injury, and about that they have given you certain figures which I need not go over and review in detail. . . .</p> <p>The first question to be taken up is, is the defendant answerable ? Is he liable to the plaintiffs for damages in this case ? That is the first question to be considered. If, after a fair consideration of the case, you reach the conclusion that he is, then you will have to take up the question as to how much the plaintiff should receive, and settle that according to the principles which I have indicated to you. [If, on the other hand, in view of what I have said and in view of what the evidence induces you to believe, you should be of the opinion that the defendant is not answerable in this case, ought not to be held responsible-then your verdict ought to be in favor of the defendant.] [5]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p> <p>The plaintiffs had the absolute right to discharge upon the defendant’s land the waters which by nature rose in, flowed or fell upon their ground: Rhoads v. Davidheiser, 133 Pa. 226; Sharpe v. Scheible, 162 Pa. 311; Wier v. Plymouth, 118'Pa. 566; Martin v. Riddle, 26 Pa. 416.</p> <p>A diversion of a water course without actual injury to a riparian owner legally imports damages, because it is an infringement of a right: Angelí on Water Courses, sec. 135.</p> <p>The diversion of water of an upper riparian owner, to an extent materially lessening its flow, even without actual injury to the lower riparian proprietor, legally imports a damage, as it is an infringement of a right; and if no other damage be established, the party whose right is thus infringed is entitled to nominal damages: Clark v. R. R., 145 Pa. 438; Hogg v. Water Co., 168 Pa. 460.</p> <p>The charge of the learned trial judge was full and adequate, and not misleading; and there is no merit in any of the specifications of error when the language contained in them is construed in connection with the other portions of the charge: Bierer v. Hurst, 155 Pa. 523.</p> <p>Even if it be admitted that there was error in the charge of the learned trial judge, no injury was done thereby to the plaintiffs, because they had failed to show that the defendant was chargeable with anything more than a proper and reasonable use of his lot; and consequently they had failed to establish any right to recover against him: Kauffman v. Griesemer, 26 Pa. 407; Young v. Leedom, 67 Pa. 351; Davidson v. Sanders, 1 Pa. Superior Ct. 432; McMahon v. Thornton, 5 Pa. Superior Ct. 495; Penna. Coal Co. v. Sanderson, 113 Pa. 126 ; Penna. R. Co. v. Marchant, 119 Pa. 541; Del. & Hud. Canal Co. v. Goldstein, 125 Pa. 246; Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209; Miller v. Laubach, 47 Pa. 154; Rhoads v. Davidheismer, 133 Pa. 226 ; Meixell v. Morgan, 149 Pa. 415; Gregory v. Bush, 64 Mich. 37; Horton v. Sullivan, 97 Mich. 282.</p> <p>Even if it be admitted that the defendant had no right to fill in his lot if the flow of water from the plaintiffs’ premises was obstructed thereby, he is, nevertheless, not liable to the plaintiffs, because the filling in was done, not of his own motion, but by order of the board of health: Bierer v. Hurst, 155 Pa. 523; Newark & South Orange Morse Car Co. v. Hunt, 50 N. J. Law, 308; Green v. Mayor, 6 Ga. 1; Rochester v. Simpson, 134 N. Y. 414; Kennedy v. Board of Health, 2 Pa. 366; Phila. v. Provident Life & Trust Co., 132 Pa. 224.</p> <p>Plaintiffs’ right of action is not against the defendant, but against the city, which alone is liable for the obstruction, either because of its negligence in obstructing the natural drainage by opening Forty-fifth street without providing an outlet underneath it, or because of its negligence in allowing the trunk under Forty-sixth street to decay and fall in, so as to create an obstruction there: Conniff v. San Francisco, 67 Cal. 45; Edwards v. Peoria, 66 111. App. 68; Kemper v. Louisville, 14 Bush. (Ky.) 87; Rose v. St. Charles, 49 Mo. 509; Haynes v. Burlington, 38 Vt. 350; Smith v. Alexandria, 33 Gratt. (Ya.) 208.</p>

<p>Appeal, No. 317, Jan. T., 1899, by plaintiff, from judgment of C. P. Montgomery Co., June T., 1898, No. 44, on verdict for defendant.</p> <p>Ejectment for a strip of land in the borough of Conshohocken. Before Weand, J.</p> <p>The jury returned the following special verdict:</p> <p>Michael Redmond being the owner of a tract of land in the borough of Conshohocken sold part thereof to Rose McAdams, his sister-in-law, who commenced to build on her own property,Michael Redmond then consented and agreed that the building of Rose'McAdams from the second story up should extend over the alley way between the properties and into and against Redmond’s house, and it was so built; Redmond knew and consented to this method of building, demanded no compensation and offered no objections thereto until six years afterwards; during the building of McAdams house plaintiff lived in his own house next door. If the court should be of opinion that under these facts plaintiff is entitled to recover, then judgment is to be entered in favor of the plaintiff, otherwise we find for the defendant.</p> <p>The evidence in support of an express agreement is fully stated in the opinion of the Supreme Court.</p> <p>Judgment was entered for defendant on the verdict.</p> <p>Error assigned■ was in entering judgment for defendant.</p> <p>An interest in land arising out of it, whether corporeal or incorporeal, must be in grant; it can pass only by deed; the statute of frauds is applicable to all such interests: Huff v. McCauley, 58 Pa. 206; McGibbeny v. Burmaster, 58 Pa. 332; Hart v. Carroll, 85 Pa. 508; May v. Prendergast, 12 Pa. C. C. R. 220.</p> <p>The evidence was not sufficient to take the case out of the statute of frauds, and should not have been submitted to the jury: Taylor v. Henderson, 38 Pa. 60; Edwards v. Morgan, 100 Pa. 330; Overmeyer v. Koerner, 81* Pa. 517; Poorman v. Kilgore, 26 Pa. 365; Ackerman v. Fisher, 57 Pa. 457; Woods v. Wilson, 37 Pa. 379.</p> <p>Where one encourages another to expend his money and labor in improving land, he will not afterward be permitted to take it from the other, although he has an older and better title for it, and even although his encouragement is given in ignorance of bis own rights: McKelvey v. Truby, 4 W. & S. 323 ; Carr v. Wallace, 7 Watts, 894; Miller v. Miller, 60 Pa. 16; Woodward v. Tudor, 81* Pa. 382; Putnam v. Tyler, 117 Pa. 570; Arnold v. Cornman, 50 Pa. 361; Meason v. Kaine, 67 Pa. 138; Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. 23.</p>

Appeal, No. 281, Jan. T., 1899, by-defendant, from judgment of Superior Court, Oct. T., 1898, No. 78, affirming judgment of C. P. Delaware Co., March T., 1894, No., 154, on verdict for plaintiffs. Appeal from Superior Court. This was an action of trespass to recover damages for the diversion of the waters of a private stream called Ridley creek. The following facts appear by the report of this case in 10 Pa.

Appeal, No. 349, Jan. T., 1899, by defendant, from judgment of C. P. Chester Co., Jan. T., 1898, No. 67, on verdict for plaintiff. Assumpsit on a policy of fire insurance.