Volume 195 — Pennsylvania State Reports

Appeal, No. 361, Jan. T., 1899, by Rbinewalt S. Beaumont et al., from decree of O. C. Chester Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report. Mary E. Beaumont, widow, and Margaret'E. Beaumont (now Lapp) and Elbert W. Lapp, guardian of Rhinewalt S. Beaumont, children of Theodore Beaumont, deceased, petitioned the court below for a citation to compel Rush Beaumont, executor of Eber Beaumont, deceased, to file an account.

<p> Trust and trustees—Active trust—Net income—Will. </p> <p>A trust to pay the net income of realty to the cestui que trust involves the exercise of discretion by the trustee and constitutes an active and continuing trust.</p> <p>A gift of real and personal estate to a trustee to pay the “ net rents and income thereof” to a daughter “ during the term of her natural life,” and at her death the principal to her children, but if she died “ without having lawful issue ” to testatrix’s brothers, with power in the trustee to sell a part or all of the realty creates an active trust, and the daughter does not take a title in fee simple to the land, but her interest in the estate is nothing more than a right to have from the trustee while she lives the net rents and income thereof.</p> <p>Ejectments for land in Phcenixville. Before Hemphill, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendants.</p>

<p>Fraudulent convey anee—Execution—Ejectment— Sheriff's sale.</p> <p>After a levy upon real property in possession of a debtor he cannot, with a view to defeat the execution creditor, transfer the possession even .to the real owner, who must pursue his title by an ejectment against the purchaser at the sheriff’s sale.</p> <p>Where a mortgagee claims that the mortgage covered a particular lot, although it did not so appear on the face of the mortgage, the mortgagor cannot, by a confession of judgment in ejectment and proceedings thereunder, deliver possession of the lot to the mortgagee so as to defeat the right of an execution creditor of his own who had already levied upon the lot.</p>

<p>Appeal, No. 265, Jan. T., 1898, by plaintiff, from order of C. P. Lackawanna Co., June T., 1889, No. 437, refusing to take off nonsuit.</p> <p>Ejectment for coal in Lackawanna township.</p> <p>From the record it appeared that on September 15, 1894, plaintiff filed of record an affidavit and prsecipe for the removal of the cause to Pike county under the Act of April 14, 1834, P. L. 395. The court refused the application. On September 19, 1894, the case was tried in the absence of the plaintiff, and a verdict and judgment was entered in favor of defendant. On appeal it was reversed by the Supreme Court. See 170 Pa. 432, and 178 Pa. 290. On September 21, 1897, the case was again called for trial, and the plaintiff not appearing a nonsuit was entered. The court subsequently refused to take off the nonsuit, Edwabds, J., filing the following opinion:</p> <p>This ease was on the trial list last September term, and was regularly called. The defendants were present demanding trial. The plaintiff declined to go on with the case and a nonsuit was thereupon allowed as provided by act of assembly. A rule was subsequently granted to take off this nonsuit. Before the non-suit was ordered, the plaintiff by his counsel filed a paper objecting to the jurisdiction of the court, and claiming that a trial by this court would be coram non judice and of no avail, and specifying the reasons why the court had no jurisdiction. The paper filed ends thus: “ For these reasons, the plaintiff understanding that a trial in this court would be coram non judice and void, he declines to appear and go to trial in this court.”</p> <p>The reason assigned for the want of jurisdiction is that the plaintiff on September 15, 1894, filed his election to remove his cause to Pike county under the provisions of the Act of April 14, 1884, P. L. 395. On the argument of the rule to take off the nonsuit the only ground assigned was the want of jurisdiction. Our answer to the argument is to be found in the case of Felts v. The D., L. & W. R. R. Co., 170 Pa. 432, the same case that is now before us. It will be seen at once that we are asked to sit in judgment upon the decision of the Supreme Court in this case. It might be a pleasant variation of judicial work for a court of common pleas to exercise appellate jurisdiction over the judgments of our Supreme Court; but, with becoming modesty, we shall allow the appellate tribunal itself to change or modify its own judgments, whenever it feels called upon to exercise that high privilege.</p> <p>The rule to take off the nonsuit is discharged.</p> <p>¡Errors assigned were (1) in assuming and exercising jurisdiction over the case after it had been regularly removed to the court of common pleas of Pike county under the provisions of the act of assembly of April 14, 1834, P. L. 395; (2) in proceeding to call the case for trial, and entering judgment of non-suit against the plaintiff; (3) in refusing to set aside said judgment of nonsuit.</p>

<p> Husband and wife—Agreement to separation. </p> <p>Where a wife suggests a separation to her husband, and after consultation with her brother-in-law, and after she has actually separated from her husband, dictates the terms of a formal article of separation under which she receives $1,000, and no fraud, coercion or concealment is shown on the part of the husband, and as far as the testimony discloses the wife knew as well as the husband what property he had at the time of the separation, she will not be permitted, on the death of her husband, twenty-six years after the date of separation, to claim any portion of an estate of $60,000, of which the husband died possessed, but as to which there was no evidence of his possession at the date of the separation.</p>

<p>Appeal, No. 165, Jan. T., 1899, by-defendant, from decree of C. P. No. 4, Pbila. Co., June T., 1893, No. 267, on bill in equity.</p> <p>Bill in equity for transfer of stock.</p> <p>From tbe record it appeared that the case was referred to John A. Clark, Esq., as referee.</p> <p>On May 21,1898, the referee notified counsel that his report was ready to be filed. On July 1, 1898, the defendant settled with the plaintiff in accordance with the terms of the decree recommended by the referee. On July 11, 1898, neither party having filed exceptions, the referee filed his report in which he recommended the following decree:</p> <p>This cause came on to be heard at this term, and was argued by counsel, and thereupon, upon a consideration thereof, it is ordered, adjudged and decreed that a new certificate for seventy shares of the capital stock of the defendant be issued by the defendant and delivered to the plaintiff, the said certificate to be in the name of the plaintiff as administrator d. b. n. c. t. a. of the estate of Charles II. Baker, deceased, or as trustee under the will of the said Charles II. Baker, and to pay the amount of the dividends declared thereon since the last payment of dividends to the last predecessor in title, or in the alternative, that the defendant pay to the plaintiff the value of the said seventy shares of stock at the time of the transfer, namely, $246.00 per share, with interest from January 10, 1891, being the date of the demand upon the said defendant.</p> <p>No action was taken by the court until February 25, 1899, when the decree recommended by the master was entered with these words added: “ that each bear its own record costs, and that the defendant pay the referee’s fee of fifteen hundred dollars.”</p> <p>Error assigned was the decree of February 25, 1899.</p>

Appeal, No. 291, Jan. T., 1899, by plaintiff, from order of C. P. No. 2, Pbila. Co., Sept. T., 1896, No. 748, refusing to take off nonsuit. Assumpsit upon an implied warranty of title in the sale of bank stock. At the trial it appeared that on November 14,1890, John JR. Baker, Jr., presented to the Philadelphia National Bank, the plaintiff, a power of attorney to transfer to himself seventy shares of stock standing in the name of his grandfather, Charles H. Baker.

Appeal, No. 161, Jan. T., 1900, by defendant, from order of C. P. Chester Co., Jan. T., 1900, No. 60, discharging rule to open judgment. Rule to open judgment. The facts appear by the opinion of the Supreme Court. Error assigned was the rule to open judgment.

<p> Practice—Trial—Evidence—Construction of words of witness—Province of jury. </p> <p>The sense of words in connection with what the parties intended to express by them is exclusively for the jury £0 determine. The judge may not put a legal interpretation on oral words, and make it a matter of positive direction. It is the province of the court to expound the meaning of an instrument, but not of words uttered of which there can be no tenor. It is the province of the jury who hear and observe the witness to determine the meaning of what he says.</p> <p>A garnishee promptly notified the defendant of the service of the writ of attachment. Subsequently judgment was entered against the garnishee and the money collected. In an action by the defendant against the garnishee, which was a trust company, the attorney for the former testified that he had talked with the trust officer of the garnishee as to the attachment, and had told him that he would give him data for answers to interrogatories. He did not testify affirmatively that the trust officer, who was dead at the time of the trial, had promised to notify him when interrogatories were filed. On cross-examination he said: “I relied upon his promise that he would give me information when anything occurred, and I would give him that information at the proper time.” The court construed the testimony of the attorney as sufficient to establish negligence on the part of the trust company, and gave binding instructions against it. Held to be error. Mitchell and Fell, JJ., dissent.</p> <p> Attachment execution—Duty of garnishee to defend. </p> <p>If a garnishee wishes to relieve himself from liability for the funds attached in his hands, he must act in good faith to the debtor, and by using the information in his possession, “ contest every inch of ground ” to prevent a recovery of judgment by the attaching creditor.</p>

<p>Appeal, No. 320, Jan. T., 1899, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1899, No. 320, sustaining demurrer.</p> <p>Trespass for libel.</p> <p>The statement averred that the defendant was a member of an association of wholesale produce dealers known as the Philadelphia Produce Credit and Collection Bureau, and that about March 1,1899, defendant sent to various members of said association the following communication :</p> <p>“For Exclusive Use of Philadelphia Produce Credit and Collection</p> <p>Bureau.</p> <p>REPORT OF INDEBTEDNESS. eobm b.</p> <p>Philadelphia, March 1,1899.</p> <p> To the Philadelphia Produce Credit and Collection Bureau: </p> <p>You are hereby notified that the parties named below have failed to pay their accounts, which were due and payable with us at 12 o’clock noon this Wednesday, March 1, 1899.</p> <p> </p> <p>Yours truly,</p> <p>WM. WEINERT & CO.</p> <p>Plaintiff denied that he was indebted, and averred that the communication had been maliciously sent in order to coerce him into paying the amount claimed. He also averred that by reason of the communication he was refused supplies by all of the members of the association either for credit or cash.</p> <p>The defendant demurred to the statement. The court sustained the demurrer.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 148, Jan. T., 1899, by defendants, from judgment of C. P. Delaware Co., Dec. T., 1897, No. 469, on verdict for plaintiffs.</p> <p>Assumpsit for debts contracted by a limited partnership association. Before Clayton, P. J.</p> <p>From the record it appeared that plaintiffs alleged that defendants were liable as general partners for the debts which had been contracted by the Parkmount Mills Company, Limited. The claim was based on an alleged defective certificate filed on July 22, 1897. The schedule annexed to the certificate was as follows:</p> <p>“ Schedule of the property contributed by the partners to the Parkmount Mills Company, Limited, in accordance with the foregoing certificate, at valuations approved by all the members thereof:</p> <p>2 Horizontal boilers (60 horse power each) $1,650 00</p> <p>1 Upright boiler 800 00</p> <p>1 Corliss Engine (100 horse power) 8,000 00</p> <p>6 sets 60,/ carding machines 10,000 00</p> <p>Amount carried forward $15,450 00</p> <p>Amount brought forward $15,450 00</p> <p>4 self operating mules 612 spindles each 5,000 00</p> <p>100 witch looms Woods make $95, each 9,500 00</p> <p>3 warping mills 300 00</p> <p>3 bobbin winders 350 00</p> <p>6 spooling frames 450 00</p> <p>5 twisting machines at $575 2,875 00</p> <p>2 shearing machines 750 00</p> <p>1 cloth dyer 1,000 00</p> <p>2 fulling mills at $125 each 250 00</p> <p>2 cloth washers at $125 250 00</p> <p>1 Gessner steam press 1,000 00</p> <p>1 wool picker 90 00</p> <p>1 willow 70 00</p> <p>Shafting, pulleys and hangers, 2,000 00</p> <p>4 dye kettles at $40 each 160 00</p> <p>Fire apparatus, viz: Worthington pump and</p> <p>automatic sprinklers 1,500 00</p> <p>Steam heating apparatus 500 00</p> <p>Manufactured goods at mill:</p> <p>247 pieces worsted at $20 4,940 00</p> <p>153 pieces woolens at $9 1,377 00</p> <p>Raw stock and yams:</p> <p>10,327 lbs. dyed wool worth .32 per lb.</p> <p>10,628 lbs. cotton worth .08 per lb.</p> <p>15,241 lbs. worsted yarn worth .60 per lb.</p> <p>Said ray stock and yarns being estimated</p> <p>for the purpose of this valuation at 12,188 00</p> <p> WWoo </p> <p>“James M allison. John S. Butter worth.</p> <p>“ William Burnley. Francis J. Butterworth.</p> <p>“John E. Burnley. Mary B. Walker.</p> <p>“ Recorded in the office for recording of deeds in and for Delaware county, Pennsylvania, in Limited Partner Book No. page 336, etc.</p> <p>“Thos. D. Young,</p> <p>[Seal] “ Recorder of Deeds.”</p> <p>There was nothing in the certificate or schedule which showed that the property contributed was liable for the debts of a prior limited partnership association which had expired by limitation.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[Now, let me repeat to you, the 'members of the firm, the members of the firm that immediately preceded the present partnership, had no individual property in the assets of that firm until its debts were paid or amply secured. When the debts are all paid what is left they may divide among themselves, and then, and not until then, does it become their property; until, therefore, there was a settlement of the affairs of the firm that immediately preceded the present association, there was no individual property in these gentlemen unless the affairs of that firm were settled.] [15]</p> <p>[I say to you, gentlemen, as a matter of law, if you find that these gentlemen (the defendants) instead of having the affairs of the old firm settled and its debts ascertained or paid or secured, if instead of doing that you find they simply put the ass'ets of the old firm into the new one unsettled, with its debts unpaid, your verdict should be for the plaintiff. The law will not recognize it. Why? Because the property is subject to the debts of the firm. ■ It is not such property as the law recognizes can be put into a special partnership and set apart for special security for the debts of the new firm.] [16]</p> <p>Verdict and judgment for plaintiff for $1;052.71. Defendants appealed.</p> <p>Errors assigned among others were (15, 16) above instructions, quoting them.</p>

Appeal, No. 347, Jan. T., 1899, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1896, No. 589, on verdict for defendant. Trespass for personal injuries. Held: and it is the only theory on which any recovery can be had, if any can be had at all. That theory is met by two propositions.

<p>Appeal, No. 149, Jan. T., 1899, by defendants, from judgmént of C. P. Delaware Co., March T., 1898, No. 18, on verdict for plaintiffs.</p>

<p>Appeal, No. 393, Jan. T., 1899, by-defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1897, No. 549, on verdict for plaintiff.</p> <p>Issue to determine the validity of a confessed judgment. Before McMichael, J.</p> <p>The court charged as follows:</p> <p>On June 12, 1896, James L. Leeds, who seems to have been in business, and the owner of certain machinery, assigned it to a Mr. John H. Scott, for value. We have not been told the history of the transaction in full, but it appears from the papers that there was a bill of sale from Leeds to Scott. On November 13, 1896, Scott assigned, transferred and set over unto Howard D. Adams and his assigns, “ All my right, title and interest in and to the above bill of sale.” And it appears, I believe, from the testimony, that Adams paid Scott, by a cashier’s check, $6,000. There was with that bill of sale a list of machinery and goods transferred. James L. Leeds, by paper which bears date November 14, assigned to Howard D. Adams, for a valuable consideration as stated in the assignment, the same goods, machinery and so on that Scott had assigned, and Leeds was paid the sum of $2,000. That made $8,000, and that has been treated all through this case as a loan of Adams to James L. Leeds. That seems to be the interpretation put upon the transaction, as far as it went, by both counsel; treated as a loan from Adams to James L. Leeds, who was then trading, I believe, as James L. Leeds. After those bills of sale which transferred Scott’s interest and transferred Leeds’s interest, transferred the whole interest in the property, and perhaps paid Scott, if he was a creditor .... we do not know about that .... immediately after that was done, Adams, who was the owner of the machinery, leased it to Leeds at a rental. That lease provided that Leeds should pay Adams $1,620 a year —$185 a month—and that was to continue from year to year. And it provided for several remedies that Adams was to have in case, first, rent was not paid; and, second, if Adams re-entered to take possession of his property and did not find enough there. The clause as to the amount to be paid was that Leeds agreed to pay Adams for the use of the same (that is, the machinery) $1,620, and then there wore various covenants about taking good care of it, not removing it, etc.; and it was also provided that, “ if Leeds desires to purchase said leased property, Adams agrees to sell the same for the sum of $8,000.” That was in the lease. That is, Adams, who had the right of property by bill of sale, leased it to Leeds at a fixed rental of so much a year, divided into monthly payments, and gave Leeds the option to purchase. The next matter that occurred between Leeds and Adams at that time, November 14, 1896, was that Leeds gave Adams a judgment note for $8,000, dated Philadelphia, November 14, 1896 : “ Pay to the order of Howard, D. Adams $8,000.” Then follows the warrant, as we call it, for an attorney to enter that up. And at the same time he gave the judgment note, an agreement was entered into by Leeds and Adams, which is in writing, which is here. It recited the assignment of the bill of sale executed by Leeds on November 14, 1896, the consideration that Adams had become the owner of the machinery, and so on. And it recited the agreement of the lease, and the covenants of the lease are cited (some of them), and the judgment note. And then comes ■ the following, to which I call your attention: “ The said Howard D. Adams, in the event of there not being said amount of property on said premises, shall have the right to enter judgment on said note, and recover the difference between the value of the property on said premises and said sum of $8,000. And said Adams agrees that he will not enter said judgment note unless the said James L. Leeds shall be sued, or unless the said Howard D. Adams shall re-enter and there shall not be found upon said premises property to the value of $8,000.” And then Leeds agrees that he will not confess judgment to anybody else. And the agreement recites that, “ At the end of one year from date, and at any time thereafter during the continuance of this agreement, the said James L. Leeds shall have the right to repurchase the machinery, lumber, goods and fixture hereinbefore referred to upon the payment to the said Howard D. Adams of the sum of $8,000, together with any and all rentals due for any year or portion of the year for which settlement has not been made. Now, as I have said, those were the agreements between Leeds and Adams, and, if I recollect aright, those were made about November, 1896. About March, 1897, Henry C. Elliott came into the firm, or, speaking accurately, formed a partnership with James L. Leeds. The firm name was James L. Leeds Company. Henry C. Elliott came into that firm. As to the exact date of that, there seems to be some doubt. The articles of copartnership are dated March 18; the payment of money seems to have been subsequent thereto, part of it, at any rate. Afterwards, on October 26, 1897, James L. Leeds and Howard D. Adams canceled the former judgment note, canceled the lease and agreement, and James L. Leeds executed a judgment note, that is, signed a judgment, “ James L. Leeds Company, James L. Leeds,” that was dated Philadelphia, October 26, 1897: “ One day after date we promise to pay to the order of Howard D. Adams $8,000 without defalcation,” and so on, with a warrant of attorney to confess judgment with commissions, and so on. And,' upon that, execution was issued, but not immediately. It was not entered up, I believe the record shows, until the third period of November; executed October 26, execution issued November 3. Under that writ of fieri facias the sheriff seized all the firm property, I presume, but at any rate all he was directed to, all the firm property of James L. Leeds Company, and, besides that, what are called attachment executions were issued direct to the various debtors of the firm of James L. Leeds Company. Then the legal history of the case begins, which I will make as short as I can to explain it. Then Mr. Elliott came in, and upon his affidavits and depositions, and so on, the court below, our court, determined that the judgment should be open, as it is called, and that a court and jury should decide the merits of the controversy. The execution was set aside. The court above, it so appears on the record, said that the liens of the writs, as it is called (that is, the grasp upon the firm’s goods) should have been retained until the court and jury settled this matter, but affirmed us in opening the judgment; and that is the way it comes before you. Now, gentlemen of the jury, that, without deciding all the testimony—though I will have something to say about some of the papers hereafter—is the history of the ease, as I understand it, as it comes to you. Now, I shall, because I should think you should know, give you the general principles of law, and then shall endeavor to show how those principles should be applied. And first of all—■ for it is of great importance—I desire to call your attention very briefly to what the law is in relation to the liability of an incoming partner for the debts which were contracted before he came into the firm, or by the other partner before the partnership was formed. The rule is that an incoming partner is not by presumption of law liable. He is, however, liable if he assumes the debt, and the burden of proof, as it is called, is on the one that asserts that he is liable ; that is, to restate it, an incoming partner is only liable for the debts contracted before he came in, if it be proved to the satisfaction of the jury by competent evidence that he assumed the obligation or debt. I do not intend to give all the nice distinctions, but that is the general rule, as I suppose business men know, but it is the law of Pennsylvania, as I understand it.</p> <p>The second general principle which I desire to call your attention to is that a partner (and I propose to call your attention to many things that he may do) may confess a judgment for a firm debt which will bind the firm’s assets, but he may not —he has no power to—confess a judgment for a debt which has not been assumed by the firm. Now, that seems to be, and I think is, the law, and with those two simple and general maxims of the law before you, which are sound, good common sense, and business doctrine too, as well as the law, you will come to the decision of" the questions of fact in this case; first of all, remembering that an incoming partner is not liable for a debt contracted before he came into the firm, or before the partnership was formed; and also remembering that a man may confess judgment, but only for a firm debt—I mean, confess a judgment which will bind firm assets. So we come to the questions of fact which I shall leave to your determination. [The first question of fact which you will have to determine is, did the new firm, James L. Leeds and Henry C. Elliott, assume that which was an existing debt of James L. Leeds ? If they did not, or if there was no assumption of that debt, your verdict ought to be for the defendant. If, however, they did,—if you are convinced by the evidence that they did assume that debt,—then the partner, James L.JLeeds, had a right to confess a judgment for it, and it was an existing obligation of the firm, with the- qualifications that it had been a business debt, and that he could not, in fraud of the rights of his partner, and of the creditors of the firm, vary the obligation.] [2]</p> <p>********</p> <p>Now, gentlemen of the jury, the question being for your determination whether Elliott assumed the debt or loan which Leeds owed Adams, you must look at all the testimony, you must look at all the circumstances surrounding the formation of the partnership. You must look and see whether, first, there was any assumption by words by Elliott of that debt; second, if there was no such assumption, whether you are convinced by the evidence that he did assume that debt. You are to look at the books, and particularly those entries which have been called to your attention. You may recollect there are two or three entries in the books, and the headings and style of the entry may be of great assistance to you in determining those important questions. You are to look at the payments by Mr. Elliott to' Mr. Adams. You will recollect that at first they were called interest, and afterwards changed to rentals. And the receipts, and how those receipts are made. You will scrutinize carefully the conflicting testimony—if it is in conflict—of Mr. Elliott and Mr. Leeds in that regard, and though I have gone over the testimony carefully, I do not propose to endeavor to analyze it for you. It may be that it will be necessary for you to consider quite carefully—you have heard the testimony read —whether Mr. Elliott knew of the loan, for I think in his testimony he says he knew of the loan—that is, that there was of Leeds to Adams—and whether Mr. Elliott, by his words or deeds, agreed that the firm thereafter should be responsible for that. The Supreme Court has said in one or two cases that the payment of interest by the new firm, though an item of testimony to be left to the jury, is not controlling. You may consider it with all the other elements of the case in coming to the conclusion whether or not the new firm or Mr. Elliott himself assumed the old debt. I need not go over that further. The question is one on which there has been a good deal of testimony. There are the entries in the books, the statements, the letters and the oral testimony and the depositions. It may be that you will take the view of the one side or the other. That is your duty, to decide upon the testimony. While the construction of written papers is for the court, yet the whole testimony, I think, in this case, must be submitted to you. I cannot say that I have formed an opinion—whether the mere statement on the books, the heading, “ Howard D. Adams, capital account,” and what comes after it, or, on the other side, the proved statements by Elliott on behalf of the firm, in which a loan is spoken of of the same .amount, controlled it. You must decide those questions. Of course, if there is any question of interpretation of any paper, which shall have been called to my attention by counsel, by points or otherwise, it will be my duty to determine it, but I leave the whole evidence to you to determine the ease upon that evidence. That is certainly one of the controlling questions in the case. For if that debt was not assumed, then the action of Mr. James L. Leeds in canceling the lease, in canceling the old judgment note and the agreement, was a fraud on the rights of his copartners and of the creditors, and he had no right to it. [If it was for an existing firm debt, a debt which had been assumed by his other partner, and the obligation was not varied, and that, too, I think you have got to determine as a question of fact, then he had a right to do it, the question involving many considerations.] [1]</p> <p>Plaintiff’s points and the answers thereto among others were as follows:</p> <p>4. If the jury believe from the evidence that the said James L. Leeds made and confessed the judgment note which is the subject of this suit for a valid subsisting debt of the firm, or for a debt which originally being an individual indebtedness had been assumed by the firm, then the verdict should be for the plaintiff. Answer: That is affirmed. [4]</p> <p>9. If the jury decide from the evidence adduced before them that the firm assumed the payment of the indebtedness due to-Adams they will render a verdict for the plaintiff for the amount of the judgment note., including the attorney’s commission provided for therein, together with legal interest on the principal sum of the judgment note to date of verdict. Answer: That is affirmed. [5]</p> <p>Verdict and judgment for plaintiff for $9,530.67. Defendants -appealed.</p> <p>Errors assigned were (1, 2, 4, 5) above instructions, quoting them.</p>

Appeal, No. 405, Jan. T., 1899, by Elizabeth Petterson, from decree of O. C. Phila. Co., dismissing exceptions to adjudication. Exceptions to adjudication. Ashman, J., filed the following opinion: The testator left surviving him a widow, but no known heirs or kindred, and by his will he devised and bequeathed his property to strangers. In electing to take against his will, the widow claimed the entire estate.

<p> Principal and surely—Judgment—Opening judgment—Laches. </p> <p>Where a judgment was entered against a surety in 1898, and in 1898, on a scire facias to revive, he filed an affidavit of defense which was adjudged insufficient, and in 1899 he took a rule to open the judgment, alleging the same matters which he had set up in his affidavit of defense, and it appears that he had knowledge of such matters in 1894, but took no steps to open the judgment, and his conduct was otherwise inconsistent with the defense which he alleges, the court commits no error in refusing to open the judgment.</p>

Appeal, No. 389, Jan. T., 1899, by defendant, from judgment of C. P. No. 4, Pkila. Co., March T., 1895, No. 1107, on verdict for plaintiff. Assumpsit upon a contract. Before Arnold, P. J. The court charged as follows: The plaintiff claims the balance due him for a certain brick drying machine. There does not appear to be any dispute as to any of the items except as to certain things called pallets, or iron shelves, upon which the bricks were put to be dried.

<p>Appeal, No. 221, Jan. T., 1899, by the Charter National Bank of Media, from decree of O. C. Delaware Co., dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Corporations—Suit by stockholder to enforce corporate right—Equity— Pleading.</p> <p>In a suit in equity by a stockholder in Ms own name to enforce a corporate right, there must be averred and proved an actual application to the directors, and a refusal by them to bring suit or to allow plaintiff to do so in the corporate name, and where misconduct of the directors themselves is alleged, the bill must show an effort to secure plaintiff’s rights through meetings of the corporation.</p> <p>A bill in equity by a stockholder of a leased railroad against the lessee company alleging false and erroneous accounts rendered by the lessee to the lessor, is demurrable where it does not appear that the complainant received any permission to sue iu his own name, or made any effort to obtain such permission, and where it does not appear from his bill that he ever communicated any fact either to the directors or shareholders of the lessor, whereby it appeared that any of the accounts were erroneous or false in fact. A mere averment (hat as the lessee owned a majority of the stock of the lessor, a,ml elected its officers who allowed themselves to be “kept in absolute ignorance of its business,” is insufficient.</p> <p>In an equity suit brought by a stockholder of a leased railroad without permission of his company against the lessor and (he lessee, alleging fraud and collusion between the officers of the two companies, the complainant cannot avoid the remedy provided by an arbitration clause in the lease by charging (hat not only would the officers of both companies eollusively select referees favorable to the lessee, but that the referees so selected would “ decide any dispute which has heretofore, or may hereafter arise in favor of the lessee without regard to the facts involved.”</p> <p> Railroads—Lease—Arbitration clause. </p> <p>An arbitration clause in a railroad lease which provides that in case of dispute each party “ shall select a referee of experience and skill in railway management, and the said referees shall select another of like skill and experience,” is lawful, and is not rendered illegal by the fact that the lessee is the owner of a majority of the stock of the lessor company.</p> <p> Railroads—Lease—Fraud—Equity. </p> <p>A railroad lease executed after the lessee had acquired the majority of stock of the lessor, and ratified with knowledge of that fact by a large majority of the other stockholders, and not questioned by snch other stockholders during a period of more than twenty-seven years, will not be sot aside by a court of equity on complaint by a single stockholder or even a considerable minority, where the specific causes of complaint set out do not clearly appear to be fraudulent, even though so charged in general terms, and are quite as consistent with the exercise of an honest but different judgment.</p> <p> Equity—Laches—Corporation—Railroads—Lease. </p> <p>A stockholder of a leased railroad who has filed a bill in equity, without permission of his company, is guilty of laches where it appears that the lease which he attacks was made in 1870; that he did not acquire stock until 1892; that he did not file his bill until 1898, and that during the whole period from 1870 to 1898, the management of the lessee road had been satisfactory, so far as app'ears, to all parties except the complainant.</p>

<p> Appeals—Paper-books—Failure to print evidence. </p> <p>When an appellant fails to print a portion of the evidence, and the appellee objects to the omission, and the court is without the means of knowing whether the omitted testimony is material or not, the decree or judgment of the court below will be affirmed.</p> <p>Where counsel agree that certain of the evidence need not be printed, the following form may be used: “ Here the plaintiff (or defendant) gave evidence tending to prove,” etc., specifying the subject of the omitted evidence distinctly and in positive terms.</p> <p> Appeals—Equity practice—Statement of errors. </p> <p>The equity rule requiring an appellant to file in the court from which the appeal is taken a statement of errors alleged to have been made by the decree appealed from, is not a mere formality, but will be enforced.</p> <p> Partnership—Dissolution—Liquidating partner—Accounting. </p> <p>Where a partnership has been dissolved and one of the partners has liquidated the business, he is bound to state an account to his copartner, although the latter may have been guilty of acts and fraudulent representations which had seriously injured the former.</p>

Appeal, No. 280, Jan. T., 1899, by defendant, from judgment of C. P. No. 4, Pbila. Co., Sept. T., 1894, No. 876, on verdict for plaintiff. Appeal from jury of view. Before Arnold, P. J. At the trial it appeared that plaintiff owned a lot of ground on Eighteenth street about fourteen feet south from the south building line of Pennsylvania avenue. A dwelling bouse was erected upon tlie lot.

<p>Appeal, No. 166, Jan. T., 1899, by defendant, from judgment of C. P. No. 4, P-hila. Co., June T., 1897, No. 1688, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Ahdenried, J.</p> <p>At the trial it appeared that in 1897, Thomas Henry started a building operation and employed the plaintiff as a carpenter on the work. William R. Chapman made a contract with Henry by which he undertook to do the brick work supplying the material as well as the labor. Plaintiff was injured by the fall of the scaffold which was alleged to have been overloaded with brick. The circumstances of the accident are stated in the charge of the court, infra.</p> <p>When John B. Sellers was on the stand he was asked the question:</p> <p>Mr. Page: “ Q. I read to you as follows: ‘ You did not tell him (Jordan), or anybody else, or John Chapman, that Coates told you that the scaffold was not safe? A. No, sir; but they tried to get me to say that I said so.’ Is that true or not? ”</p> <p>Objected to, it appearing that the plaintiff was not present. Objection sustained.</p> <p>Mr. Page: My purpose is simply to contradict Mr. Biggard.</p> <p>The Court: I do not think that is a material point. Exception noted for defendant. [8]</p> <p>The court charged in part as follows:</p> <p>On the morning of July 3, Coates went to work on a house known as No. 5512 Woodland avenue. At this time he was engaged in the construction of a bay window there, and about half past nine o’clock, as he was kneeling on a piece which runs across the bay window, somewhat lower than the cornice, finishing the cornice of the bay, he heard a noise, and immediately there crashed down upon him a scaffold, which had fallen over, loaded with a large quantity of bi'ick. This scaffold and trestles which had supported it, falling over on Coates, pinned him fast across the cornice. The other workmen, hearing his cries, and knowing, of course, what happened, hurried to his assistance, freed him and carried him to the second floor. Thence he was removed to a patrol wagon and taken to the Presbyterian hospital. After lying there nine hours, and being treated by the hospital physician, he was taken to his brother’s house, and from there removed to his own house. His injuries have been described to you. His scalp was wounded, two bones of his right arm were broken, his left leg was bruised, and his back was bruised and sprained, the muscles being injured and the ligaments said to have been sprained. The scaffold whose fall occasioned his injuries had been erected by the employees of Mr. Chapman, that is, the bricklayers whom he had hired to do the work which he had contracted for with Thomas Henry. The particular work in which these men were engaged, and for the purpose of enabling them to finish which this scaffold had been constructed, was the carrying up of the party wall between Nos. 5512 and 5510 Woodland avenue. That, you will recall, had been built to the height of five feet above the third floor, and it being impossible for men standing on the footboard laid across the rafters to build any higher, the scaffold had been put up, some said by a colored man, who was called here as a witness, but according to the statement of Mr. Sellers, it had been constructed by him. It ran the length of the house from front to back, from forty-five to fifty feet long. It was supported on trestles, and these trestles rested at one end on the ledger board which had been laid on the third floor joist by the carpenter, for the purpose of keeping them in place, and at the other end on a twelve inch wide board one inch thick, which had been laid parallel to the ledger board, four and a half or five.feet out from it toward the middle of the house, running across the joists just like the ledger board did. On these trestles were laid pieces of board laid in sixteen feet lengths. [These boards were said, and it is not disputed, to have been brought to that operation by. Mr. Henry for the purpose of being used in roofing the houses. The bricklayers had helped themselves to the boards and used them in building the scaffolding.] [1] [Before the bricklayers arrived on the morning of the accident (and as I recollect the testimony, they got there about 9 o’clock), the defendant’s hod carriers had, as the witnesses said, loaded the scaffold; that is, they had deposited on it such bricks as they thought were needed to start the bricklayers who were to work there, and keep them supplied until the wall was finished. I do not think that in regard to any of the facts which I have mentioned to you there is any dispute. As I understand the testimony of the witnesses, what I have just gone over is pretty clear and well established.] [2] There is some dispute, however, as to just how the scaffold, or rather the trestles which supported it, were stayed in the center part of the building. It is contended on behalf of the plaintiff that at the time of this accident, as well as at the time when this scaffold was erected, there was open in the center of the building, where the accident happened, a well hole, in which it was intended to build a stairway. It was intended here, as I understood the evidence, to construct a square staircase in which the steps run transversely across the building; and it was said by the plaintiff’s witnesses, and they were all agreed on this point, that at the time the scaffold was constructed and at the time the accident happened, this well hole, which was open, was six feet ten inches across, measured with the length of the building. They say that this well hole was spanned by the ledger board, laid originally by the carpenters, and on tire other side by the one inch thick board which the bricklayers had laid there to support the trestle; and the plaintiff’s witnesses, all agreeing on this point, testified that there was a trestle placed over the well hole, supported, not by any rafters, of course, because there were no rafters there, but supported only by the ledger board 'and the one inch board which paralleled it.</p> <p>Now the testimony of these witnesses is doubted by the defense, and an attempt has been made to contradict them. [The theory of the defense is that this well hole, instead of being six feet ten inches wide, lengthwise with the building, was in fact only three feet six inches; and instead of there being a trestle resting on these two boards at a point over the well hole, there was no trestle there. The trestles that supported the scaffold, théy have fixed at points on either side of the opening left for the staircase. The testimony in support of that contention seems to be that of Mr. Sellers and Mr. Jordan. But whoever they were, and there were several witnesses called by the defense on this point, their testimony was based on measurements made by them three or four days subsequent to the hapj>ening of the accident. It may well be that their measurements were correct, and they are doubtless telling you the truth when they come here and tell you that they found the well hole to be of such dimensions as they have described when they took the witness stand. And yet it does not necessarily follow from what they said that at the time of the accident, and at the time the scaffold was put up, the well hole was of that size; because it has been testified by other witnesses, one of' whom I think was David Biggard, and the other Yernon Biggard, the carpenters, that as soon as the party wall had been completed, the carpenters, who got to work on the first working day—whether that was the 5th of July or 6th of July is immaterial—acting under orders from the superintendent of the buildings, put in certain joists or rafters So as to make the well hole smaller, for by that time it was said the positions of the staircase and the newel post about which the stairs were built were so accurately defined that that part of the third floor could be finished to that extent. 1 take it, gentlemen, that there is really no conflict of evidence on this point, although, as I say, the question of the exact size of this well hole has been called in dispute by the defense.] [3]</p> <p>The question of what were the facts in regard to the construction of the scaffold is a question which you must determine. What were the facts ? How was that scaffold built ? Was it supported by trestles which at this point, in the center of the building, rested on this board only an inch thick, spanning space of almost seven feet? Or was it supported, as it was argued by counsel for the defense, by several trestles at this point standing on these strips or boards, which, however, instead of lacking support beneath them, rested at these places on several rafters? You will have to determine that question of fact. Having determined that, direct your attention to the question whether the construction which you shall find to have existed there was a negligent construction, whether it was a fair and workmanlike manner of building a scaffold. Determine whether a scaffold built in that way is constructed with that degree of care and attention which every man of prudence, sound judgment and common sense would exhibit for the safety of others, that the law' requires, to that every man is bound to in performing every act in life. Then consider whether, in view of such construction as you may find to have really existed there, it was a reasonable and prudent thing for the defendant to have permitted his employees to load the scaffold to the degree to which it was loaded; was there more of a load; were there more bricks deposited on this scaffold than a reasonable, prudent man, careful of the safety of those around him, would have deposited there or permitted to be deposited or left there by those under his control and in his employ? If the construction was faulty in that it failed to comply with those requirements which prudence and common sense would have exacted from one building such a scaffold under the-circumstances existing there, then there was negligence on the part of the defendant. If there was a heavier load deposited on that scaffold than a reasonable, prudent person, under the circumstances would have considered safe to put there, taking into consideration his duty to see that no harm came from his acts to other people, that is, that he was not doing that which there was reason to expect would result in their harm, then there was negligence on the part of the defendant. Of course, as I have told you on other occasions, no man is bound to answer for negligence in the abstract. I may be just as careless as I please, as neglectful of my duties toward others as I please, but if my negligence and carelessness does not result in any harm, no one can recover damages from me. It is for the consequences of his negligence that a man answers, not for the mere fact that he has not done what a reasonable, sensible man would have done in his position. So that even if you find there was negligence in respect to the particulars I have pointed out to you, you would have no right to give a verdict here to this plaintiff, and against the defendant, unless you believe that such negligence as you find to have existed, if you discover there was negligence here, actually resulted in the injuries that the plaintiff complains of. One .of the questions, therefore, for you to determine is, was the fall of that scaffold due, as alleged by the plaintiff, to the breaking of the insufficient board which it is said the defendant used in the construction of it? Was it brought about by the loading of the scaffold with a weight of bricks too great to be supported by the trestle resting on the one inch board? If there was negligence in these particulars, if the fall of the scaffold was brought about by such negligence, and the fall of the scaffold, without any contribution to these consequences' from tbe negligence or carelessness of the plaintiff, hurt and injured the plaintiff in the way he has testified, then the plaintiff is entitled to a verdict, and under no other circumstances.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them; (8) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 342, Jan. T., 1899, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1897, No. 1310, on verdict for plaintiffs.</p> <p>Assumpsit on a contract. Before Brégy, J.</p> <p>From the record it appeared that the action was brought to recover $2,060 for legal services at $50.00 per day in examining certain patents for the defendant. The claim was based upon a contract. Notice was served upon the defendant to produce the minute-book, but this notice was disregarded. C. Hartman Kuhn, president of the company, testified that he had employed the plaintiffs, and that his action in doing so had been approved by the directors in the regular course of business, and that he believed that a resolution of approval had been offered and adopted.</p> <p>The court gave binding instructions for plaintiffs.</p> <p>Verdict and judgment for plaintiffs for $2,232.</p> <p>Errors assigned among others were in giving binding instructions for plaintiffs.</p>

Appeal, No. 336, Jan. T., 1899, and cross-appeal No. 363, Jan. T., 1899, by plaintiff and defendant, from judgment of C. P. No. 2, Pbila. Co., Sept. T., 1895, No. 184, on verdict for plaintiff. Assumpsit to recover commissions on sale of steel plates. Before Sulzberger, J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,954.08.

Appeal, No. 881, Jan. T., 1899, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1899, No. 75, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit upon a bond of indemnity. The material averments of the affidavit of defense are set forth in the opinion of the Supreme Court. Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 398, Jan. T., 1899, by-defendant, from judgment of C. P. No. 4, Pbila. Co., March T., 1899, No. 287, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Willson, J.</p> <p>At the trial it appeared that plaintiff was injured while a passenger on a train of the defendant on February 24, 1899. The defendant offered no testimony, but presented this point:</p> <p>There is no sufficient evidence in the present case that the plaintiff’s earning capacity has been reduced by the accident, and no damages on that ground should therefore be awarded her. Answer: I cannot answer that point affirmatively, as I understand it to be put. I suppose it is based upon the point which counsel made in the argument, that you have not been told by any witness just how much diminution there had been from the income of keeping a boarding house by reason of the injury. Well, you have not. Perhaps it would have been more satisfactory if you had been informed somewhat upon that point. Still, there is evidence, as I remember it, in the case, that there was a diminution of the business, and, I think, I must leave the question to you, with the caution which I have already given you, that you should be sure that you are just and reasonable in your conclusions, and not led into any excessive, wild, or unreasonable figures or any unreasonable judgment on the subject.</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p> <p>Error assigned was answer to above point.</p>

Appeal, No. 896, Jan. T., 1900, by plaintiffs, from decree of C. P. Lackawanna Co., Sept. T., 1899, No. 7, on bill in equity. Bill in equity for an injunction.

Appeal, No. 394, Jan. T., 1900, by defendant, from order of C. P. Lackawanna Co., Sept. T., 1897, No. 15, overruling exceptions to referee’s report. Trespass for personal injuries. The case was referred to M. J. Martin, Esq., as referee, who found the facts to be as follows: FINDINGS OF FACTS. 1.

<p>Will— Construction.</p> <p>Testator directed as follows: “I give and bequeath all my messuage, lands, tenements and hereditaments .... to my dear wife Trade Weber for life, and after her death, to my granddaughter Minnie Weber of Hyde Park said county and State, I give and bequeath the sum of two hundred dollars to be paid to her on attaining the age of twenty-one years, if living at that time. But if not living my will is that the said sum of two hundred dollars shall sink into, and become and be part of the residue of my personal estate.” Testator further directed that after the death of his wife “his messauge, land, tenement and hereditaments” should be appraised and divided into three equal parts for his three children, naming them. Held, that the granddaughter Minnie took no interest in testator’s lands.</p>

Appeal, No. 210, Jan. T., 1899, by-Mary Estella Powell, from decree of O. C. Pliila. Co., dismissing exceptions to adjudication. Exceptions to adjudication.

<p>Appeal, No. 298, Jan. T., 1899, by defendants, from decree of C. P. No. 1, Phila. Co., March T., ^898, No‘ *B76, 011 in</p> <p>Bill in equity for an injunction to restrain defendants from maintaining fences across Wheatsheaf lane.</p> <p>The facts are stated in the opinion of the Supreme Court. The court granted the injunction prayed for by the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 340, Jan. T., 1899, by plaintiff, from judgment of O. P. No. 4, Phila. Go., June T., 1892, No. 865, on verdict for defendant in suit of Ellen Carpenter v. Pennsylvania R. R. Co.</p> <p>Trespass for an alleged unlawful obstruction of Tacony road by the erection of a board fence across the entire width of the road. Before Audenbied, J.</p> <p>At the trial it appeared that under the ordinance of March 29, 1887, the department of surveys was authorized “ to revise the lines and grades of the city plan along the line of the Philadelphia and Trenton Railroad from Tacony street to Pennypack creek, so that all grade crossings of the said railroad may be avoided.” In April, 1890, the bureau of surveys revised the plans by striking off Tacony road, and confirmed a new plan on which it was omitted. The defendant subsequently erected the fence of which plaintiff complained.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Bailment—Warehouse receipts—Act of September 24, 1866.</p> <p>The Act of September 24, 1866, P. L. (1867) 1363, relating to warehouse receipts is in derogation of the common law, and establishes an exception to the general course of business, which is conducted on the presumption that title to personal property accompanies possession, and to bring a case within the exception, all the requisites of the statute must be shown to exist.</p> <p>Under the act of 1866, a warehouse receipt must be one issued by a bona fide warehouseman, and the mere holding himself out to the world or general repute is not sufficient if he is not such in fact.</p> <p>A warehouseman within the contemplation of the statute must be another than the owner of the goods.</p> <p>Where a corporation engaged in importing and dealing, receives goods from a ship by virtue of its possession of the bill of lading, and stores the goods in its own name in a portion of its own building which it uses under another name as a warehouse for its own goods and the goods of others, and receipts are issued by the assumed warehouse to the corporation and by it delivered to the true owner for the goods received under the bill of lading, such warehouse receipts will not avail against a person who received possession of the goods for a valuable consideration without knowledge of the claim of the real owner.</p>

<p>Appeal, No. 442, Jan. T., 1899, by defendant, in suit of John W. Walker v. City of Philadelphia, from judgment of C. P. No. 3, Phila. Co., March T., 1895, No. 262, on verdict for plaintiff.</p> <p>Trespass to recover damages for loss of wife’s services. Be-for McCarthy, J.</p> <p>At the trial plaintiff’s counsel made the following offer: Mr. Mackey: 1 offer in evidence the whole record of the case of John W. Walker and Mary Walker, his wife, in right of the said Mary Walker, against the city of Philadelphia, C. P. No. 3, June term, 1894, No. 76, to be followed by proof that John W. Walker, the present plaintiff, is the husband of Mary Walker, who was the plaintiff in this action, and that the right of John W. Walker to recover in the present suit depends upon the same circumstances, the same accident, as that of the record introduced, for the purpose of showing that the negligence of the city of Philadelphia in the particular premises has been adjudicated by this court.</p> <p>Objected to. Objection overruled. Exception for defendant. [1]</p> <p>The father testified that he had agreed to pay his daughter for the services rendered her mother, “ Whatever her services were worth.”</p> <p>The daughter in her testimony said, that she was a dressmaker, that she stopped her work on the day her mother was injured and had never resumed it, and that her father told her, that “ If I would give up my work and attend to his house and nurse my mother, if ever in after life he was able to pay me he would do so.” She also testified, as to the value of her services, that she was making $15 to $20 per week.</p> <p>The court, in charging the jury, quoted this testimony, and used the language in commenting upon it set forth in the 9th specification of error.</p> <p>The court charged the jury in part as follows:</p> <p>It seems, according to the plaintiff’s statement, that while Mrs. Walker was walking she stepped into an opening or depression in the sidewalk between the premises 535 and 537 Richmond street, whereby she injured her left leg and sustained serious and permanent injuries.</p> <p>[You are not required to pass upon the question of negligence in this case. You are not required to determine whether the city of Philadelphia was negligent or whether the accident to Mrs. Walker was the result of her negligence, for the reason that the question of negligence has already been determined in the suit which was brought by Mr. and Mrs. Walker in her right against the city and tried, I believe, in this court in 1895, in which, as appears by the record that has been offered in evidence in this case, she recovered a verdict of $6,000. The issue of negligence was directly passed upon in'that case, and must now be regarded as adjudicated. Any conclusions which a court or jury must evidently have arrived at in order to have reached a judgment or verdict rendered will be fully concluded, and hence I say, for the purposes of this case it has been judicially determined that the city of Philadelphia was negligent, and as a result of .that negligence that Mrs. Walker, the wife of the plaintiff, was injured.] [4]</p> <p>The principal question, therefore, for you to determine in this case, if you believe the testimony of Mr. Walker and his witnesses, is the question of the damages ; that is to say, what ought he to receive.</p> <p>[The husband is entitled to recover the moneys he has expended or become liable to pay for medical care and attendance upon his wife during her illness, and for the loss of her services while unable to attend to her domestic duties.] [5]</p> <p>[I will not refer to any more of the details of the testimony on this subject. If you believe the testimony of the plaintiff’s witnesses, there is no doubt that he has been put to expense for medicines and for physicians’ bills, and that he made an agreement with -his daughter to pay her for the services which he requested her to render to her mother. I say that if you believe that testimony, the plaintiff has been put to considerable expense, and will have to pay for other things, and he is entitled to recover for those expenses.] [9]</p> <p>The city’s attorney contends that this suit was compromised by the plaintiff, John W. Walker, through his counsel, in 1895, and that, acting in his behalf, it was discontinued, of record by them. The plaintiff alleges, however, that he never authorized Mr. Sanders or Mr. MacBride, or either of them to compromise his claim against the city, or to discontinue his case. It will be for you to decide whether his counsel or either of them, had authority to compromise their client’s case.</p> <p>1 charge you, as a matter of law, that an attorney has no authority to compromise a suit without the authority or sanction of his client. If a compromise is unauthorized, it is void, and authority to compromise a case cannot be inferred from the bare relationship of attorney and client. Persons dealing with an attorney at law respecting his client’s business may justly infer that he has all the power implied by the relation, but not that he has the power of a general agent to compromise and release debts. There must be some proof of agency beyond that implied by the relation, or a ratification, to bind the client by acts of his attorney not within the scope of his duties as an attorney. The question for you will be, do the facts and circumstances in this case indicate that these attorneys, or either of them, had power to compromise Mr. Walker’s suit with the city?</p> <p>* -Z- * * # -*■</p> <p>The question for you to decide, after considering all of the testimony carefully and weighing it deliberately, is whether or not the plaintiff in this case, John W. Walker, authorized his counsel to settle the suit that had been commenced in his name against the city, and whether he authorized them to discontinue that suit. Of course if you believe that he authorized them or either of them to settle and discontinue his suit he cannot now recover in this action.</p> <p>[On the other hand, if there was no compromise effected, if the suit was settled and discontinued without any authority or sanction on his part, then the plaintiff is entitled to recover in this action for the expenses to which he has been put, for the medical attendance, for the medicines, for the services rendered by his daughter to his wife at his request, and for the loss of his wife’s services.] [11]</p> <p>The points which were presented by counsel for the defendant which were refused by the- court, were as follows :</p> <p>1. The jury must find for the defendant. Answer: Refused. [2]</p> <p>2. In the absence of an agreement with his daughter as to amount of compensation to be paid to the daughter for the nursing and care of Mrs. Walker, there can be no recovery against the city of Philadelphia by the plaintiff, John W. Walker, for the services rendered by the daughter, Frances Walker, to her mother, Mary Walker, wife of plaintiff, John W. Walker. Answer: Refused. [3]</p> <p>Verdict and judgment for plaintiff for $6,500. Defendant appealed.</p> <p>Errors assigned among others were (1) ruling on evidence, quoting the bill of exceptions; (2—5, 9—11) above instructions, quoting them.</p>

<p>Appeal, No. 367, Jan. T., 1899, by plaintiff, in suit of City of Philadelphia v. John W. Walker, from decree of C. P. No. 3, Phila. Co., March T., 1895, No. 262, on bill in equity.</p> <p>Bill in equity for an injunction to restrain the prosecution of the suit of John W. Walker v. City of Philadelphia, C. P. No. 3, Phila. Co., March T., 1895, No. 262. See preceding case.</p>

Appeal, No. 189, Jan. T., 1899, by Mary Hayes, from order of C. Exceptions to report of William F. Solly, auditor. From the record it appeared that on January 18,1897, Mary Hayes filed a petition in which she averred that she was the owner of a tract of land situated in Gwynedd township, and that a mortgage for $3,000 had been created thereon by Henry G. Williams to William T. Smith, which mortgage had been assigned to Edward A. Armstrong.

<p> Negligence—Railroads—Defect in overhead bridge. </p> <p>■ In an action against a railroad company to recover damages for personal injuries sustained by a fall on an overhead bridge alleged to have been caused by a hole in the footwalk, a charge is fatally defective which merely states to the jury that if the defendant was guilty of negligence the plaintiff could recover, without any instructions as to the degree of care required of the defendant in keeping the bridge in repair.</p> <p> Trial—Charge of the court—Inadequate charge. </p> <p>A judgment on a verdict for plaintiff in a negligence case will be reversed, where the court in the charge makes prominent and conspicuous the testimony of the plaintiff, without adverting in any way to the defendant’s testimony, which if believed by the jury might have resulted in a different verdict.</p> <p>Where in a negligence case there is conflicting evidence as to the defendant’s negligence, a judgment for the plaintiff will be reversed where the court in the portion of its charge relating to damages assumes the defendant’s negligence, and uses language from which the jury would infer that their only duty was to assess the damages.</p>

Appeal, No. 396, Jan. T., 1899, by-plaintiffs, in suit of George Foote and Benjamin Foote, a minor, by his father and next friend George Foote v. American Product Company, from judgment of C. P. No. 4, Phila. Co., June T., 1898, No. 1013, on verdict for defendant. Trespass for personal injuries. Before Willson, J. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for defendant.

<p> Wills—Probate—Issue devisavit vel non—Undue influence—Presumption —Evidence. </p> <p>Where the proponent of an alleged will has occupied a confidential relation to testatrix, but is her only surviving relative, the same presumption of undue influence does not arise as in the case of one who is a stranger to the blood.</p> <p>On the trial of an issue devisavit vel non the case is for the jury, W'here it is uncontradicted, that thoe proponent occupied a confidential relation to the testatrix, a woman eighty-eight years old, and was her only surviving relative, and the evidence for the proponent tends to show, that the testatrix dictated a memorandum to a third person, in the presence of proponent, and that proponent, at the request of testatrix, gave the memorandum to an attorney who wrote the will, that the same attorney, afterward prepared a codicil, on information received from proponent, and sent it to testatrix by a notary, in whose presence testatrix read the paper, and then executed it, without any representations being made or inducements presented by any one.</p>

<p> Contract—Evidence—Parol evidence. </p> <p>Where a contract in writing shows upon its face that it is not the whole contract between the parties, and does not purport to be a complete agreement, parol evidence is admissible to show what was the whole contract and the same then becomes all parol.</p> <p>Where a letter confirming an order for machines refers to a conversation, parol evidence is admissible to show, that in the conversation referred to, the defendant warranted the machines not to be an infringement on the patents of certain other machines mentioned in the conversation.</p> <p> Evidence—Letter—Declarations. </p> <p>A letter addressed by plaintiffs to defendants relating to the subject-matter of the litigation is admissible in evidence, notwithstanding the fact that it contains declarations of the plaintiffs in their own favor.</p> <p> Warranty—Contract—Infringement of patent. </p> <p>Where a seller of machines warrants them as not infringing other patented machines, the purchaser has a right to return the machines as soon as the infringement is judicially ascertained, and what the value of the machines might be without the part covered by the patent of the other machine, is not material.</p> <p> Appeals—Pleading—Trial on merits. </p> <p>The Supreme Court will not reverse a judgment on a verdict where the case has been properly disposed of on its merits, and the record shows no objection made at the trial to an alleged defect in the pleadings.</p>

<p> Trial—Erroneous statement of fact in charge. </p> <p>A manifestly erroneous statement of fact in the charge is ground for reversing a judgment on a verdict.</p> <p>On the trial of an issue to determine whether a judgment note given by a husband to his wife in payment for a business is valid or not, a judgment on a verdict against the wife will be reversed, where the trial judge in his charge states to the jury that there was evidence that the wife started the business in her own name with money given to her by her husband, when as a matter of fact the testimony was that she started the business with money given to her by her father.</p> <p> Frauc|—Judgment—Discretion. </p> <p>On an issue to determine the validity of a judgment, where the question of fraud is squarely raised, considerable latitude should be allowed in the admission of evidence. Such a case is to be determined by the jury under all the evidence submitted, and in passing upon the question of fraud the proper latitude should be allowed.</p>

<p>Appeal, No. 246, Jan. T., 1899, by plaintiff, from judgment of Superior Court, Oct. T., 1898, No. 66, reversing judgment of C. P. No. 4, Pbila. Co., on verdict for plaintiff in suit of Worthington v. Schuylkill Electric Railway Co.</p> <p>Appeal from Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court, and the report of the case in 10 Pa. Superior Ct., 117.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 192, Jan. T., 1899, by plaintiff, from judgment of C. P. Chester Co., April T., 1898, No. 58, on verdict for defendant, in suit of Jonathan Wenger v. E. Vinton Phillips. Trespass for malicious prosecution. Before Hemphill, P. J. At the trial it appeared that in May, 1897, the plaintiff procured the arrest of defendant for obtaining goods by false pretenses. This prosecution, however, was not pushed at the time.

<p> Griminal law—Receiving stolen goods—Larceny. </p> <p>The mere proof of an unexecuted agreement entered into after a larceny had been committed, to participate in the sale of the goods known to have been stolen, is not in itself sufficient to sustain a conviction for receiving stolen goods.</p> <p> Griminal law—Practice—Gharge of court. </p> <p>A conviction on a criminal indictment will be reversed, where the trial judge states as an established fact in the case, a matter which was the subject of the most serious controversy at the trial, and upon which the guilt or innocence of the defendant, in the minds of the jury, to a great extent depended.</p>

Appeal, No. 441, Jan. T., 1900, by plaintiff, from judgment of C. P. Lebanon Co., March T., 1898, No. 172, on verdict for defendant in suit of Claudius Leonard v. Adolph Herrmann, trading as Herrmann, Aukman & Co. Trespass for personal injuries. Before Ehrgood, P. J. At the trial it appeared that plaintiff was employed by defendant in operating a freight elevator. On August 13,1897, plaintiff was injured while operating the elevator.

Appeal, No. 180, Jan. T., 1899, by Byron Carpenter, from decree O. C. Wyoming Co., refusing to set aside orphans’ court sale of real estate. Petition to set aside orphans’ court sale.

<p>Appeal, No. 28, Jan. T., 1900, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1898, No. 717, on quo warranto in case of Commonwealth ex rel. John R. Jones, District Attorney of Lackawanna County, v. Frank L. Dickert.</p> <p>Quo warranto to determine title to office of poor director.</p> <p>Tbe facts appear by tbe opinion of Edtvabds, J., which, was as follows:</p> <p>This proceeding is instituted for the purpose of inquiring into the title of F. J. Dicker to the office of director of the poor of the Scranton poor district. The writ of quo warranto issued in the beginning against F. L. Terppe, who resigned while the action was pending. By proper procedure, under the act of assembly, Air. Dickert was substituted as respondent, he having been appointed to fill the vacancy caused by the resignation of the commonwealth, plaintiff, and F. J. Dickert, respondent.</p> <p>It appears that Mr. Terppe was appointed poor director by the president judge of our court of common pleas, for the term of three years, from the third Friday of March, 1896. The appointment was made March 23,1896. Mr. Terppe, after serving sometime, resigned his office on December 14, 1898, and his resignation was accepted on the same day. Thus the territory formerly known as the south ward of the borough of Scranton was left without representation on the poor board. In other words, there was a vacancy. On March 2, 1899, F. J. Dickert was appointed to fill this vacancy. An examination of the legislation relating to the Scranton poor district leads us to the conclusion that the regular term of the representative from the south ward ended March 17, 1899, so that there were only fifteen days of the term remaining when Air. Dickert was appointed. He is now holding over until his successor is duly appointed, or elected, as the law might be determined on this question. This brief statement shows the status of the case and the pleadings as they are now before us.</p> <p>The legislation creating the Scranton poor district, as it is now called, and regulating its affairs, is comprised in seven different acts of assembly, or supplements. "We shall only refer to two. The consideration of the others is not material in the discussion of this case. The act creating the poor district was passed April 9, 1862, P. L. 352, under the title of “An act to authorize the erection of a poor house by the borough of Dun-more, borough of Scranton and township of Providence, in the county of Luzerne.” The only part of this act requiring our attention is to be found in section 3, providing for the filling of vacancies. It is in these words: “ And in case of a vacancy occurring in the board of directors of the poor of said boroughs and township, by death, resignation or othérwise, it shall be the duty of the court of quarter sessions of the county of Luzerne to appoint a suitable person to fill such vacancy for the unexpired term of the director causing the same.”</p> <p>. A supplement was passed March 16, 1866, P. L. 230, having the following title : “ A further supplement to an act entitled ‘ An act to authorize the erection of a poor house by the borough of Dunmore, borough of Scranton and township of Providence, in the county of Luzerne,’ approved the 9th day of April, A. D. 1862.” Section 2 of this supplementary act provides: “ That hereafter wherever any vacancy shall occur in the board of directors, created in pursuance of the act to which this is a supplement, whether such vacancy occur by the expiration of the term of office, or otherwise, the same shall be filled by the appointment of the president judge of the court of common pleas in and for the county of Luzerne, at a regular term of said court, upon the petition of at least twenty freeholders from that portion of the district comprised within said act, in which the vacancy occurs; that all acts and parts of acts inconsistent herewith be and the same is hereby repealed.”</p> <p>It is clear that the supplement transfers the power to fill vacancies from the court of quarter sessions of Luzerne county to the president judge of the court of common pleas, and provides how the president judge may be moved to fill a vacancy, to wit: by petition. Does the section quoted do more than this ? What is meant by the peculiar legislative expression of a vacancy occurring “ at the expiration of the term ” when the organic law of the district provides for the election of poor directors by the people at regular periods? We shall endeavor to answer this question in the further discussion of the case.</p> <p>The first important question raised by the relator refers to the constitutionality of the supplement of 1866. It is claimed that the supplement is unconstitutional because it violates the constitutional amendment of 1864, which provides that no bill shall be passed by the legislature containing more than one subject which 'shall be clearly expressed in the title. More than 'thirty years have elapsed since this supplement was placed upon the statute book. It came before Hand, J., for construction in 1884. Under it poor directors have been appointed since 1866, but during all these years no attack has been made upon its constitutionality. The question is now raised for the first time. A few general principles must at all times be kept in view in considering the constitutionality of a statute. All statutes should be construed so as to sustain them rather than ignore them. One section, of a statute may stand the test of judicial scrutiny while another section may fail. Contemporaneous construction of a statute and long acquiescence in the operations of its provisions will often save it from the destructive attack of the strict constructionist. But we need not rely particularly upon these general principles in this case, because we are of the opinion that the supplement of 1866 fairly meets the requirements of the constitutional amendment of 1864. The axrthorities sustain us in this position. In Allegheny County Home’s Case, 77 Pa. 77, the following title of an act of assembly, passed in 1871, was considered sufficient: “ An act providing for an equitable division of property between the county of Allegheny and the city of Pittsburg.” We can do no bettor than repeat the language used by the court in this case : “ The course of decision in this court has been intended to carry out the true intent of the amendment of 1864, as to the title and subject of bills, instead of resorting to sharp criticism, which must often bring legislation to nought. The amendment of 1864 was in substance proposed in the constitutional convention of 1837-1838, and rejected, because it was feared it would render legislation too difficult and uncertain and lead to.litigation. It will not do, therefore, to impale the legislation of the state upon the sharp, points of criticism, but Ave must give each title, as it comes before us, a reasonable interpretation, ut res magis valeat quam pereat. If the title fairly gives notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. ' It need not be an index to the contents, as has often been said. But on the other hand, it should not mislead or tend to avert inquiry into the contents, as was held in the case of the Union Passenger .Railway Company, decided at Philadelphia in 1873. In view of this current of decision we cannot say that this title is too vague or is misleading. It substantially, though without particularity, described the subject of the act and its purpose.”</p> <p>The subject is further discussed in State Line and Juniata Railroad Company’s Appeal, 77 Pa. 429. In 1870 the legislature passed “ An act to incorporate the State Line and Juniata Railroad.” Supplements were passed in 1871 and 1872. In this case the rule is laid down that where the legislation in the supplement is germane to the subject of the original bill, the object of such supplement is sufficiently expressed in the title. Paxson, J., found on investigation that from 1864 to 1875 about fourteen hundred “ supplements” and “ further supplements” were passed by the legislature. He says: “ This is important, not only as showing the extent of the interests to be affected by our decision, but also as exhibiting the uniform construction placed upon this section (amendment of 1864) by the legislative and executive departments of the government. While we are not bound by their construction, it is nevertheless entitled to weight, and should always be treated with respect. In view of this unbroken current of legislation, we are constrained so to treat this question as not to obliterate from our statute book a large number of acts under which important and costly improvements have been commenced, and rights have become vested. The construction now claimed for this clause of the constitution, if adopted by this court, would unsettle the business of the state to an extent beyond the capacity of any one to define. That we are not bound to do so is sufficiently clear both upon reason and authority.”</p> <p>Another authority especially applicable in the present case is that of In re Pottstown Borough, 117 Pa. 538, where the subject is fully discussed. See also to the same effect a case recently decided: Rodgers’s Petition, 192 Pa. 97. As already set forth, the act of 1862 is entitled “An act to authorize the erection of a poor house by the borough of Dunmore,” etc. Does not this title give such notice of the subject of the act as would reasonably lead a person interested to an inquiry into the body of the bill? What would he expect to find? It is within common reason that he would expect to find provisions for the erection of buildings, for the election or appointment of poor directors, for the filling of vacancies in the various offices and for many other matters necessary for the government and regulation of a poor house. We are clearly of the opinion that the title is sufficient, and that the supplementary act of 1866, containing a provision in section 2 as to the filling of vacancies, which provision is properly germane to the subject of the original act, is not unconstitutional.</p> <p>The second question to be considered involves the right of the president judge of the court of common pleas of Lackawanna county to appoint a poor director when there is a vacancy. The act of 1862 lodged this power in the court of quarter sessions of Luzerne county. The supplement of 1866 made a change in this particular and authorized the president judge of the common pleas of Luzerne county to fill vacancies. The relator contends that the president judge of the court of Luzerne county should continue to exercise this right, if the supplementary act is constitutional, and that all appointments made by the president judge in our county are void. This contention is not well founded. A slight examination will show that the proposition is without reason to sustain it. Territory or men once made the objects of legislation, remain subject to the laws imposed, however the manner by which they are designated, may be changed: Parsons v. Winslow, 1 Grant, 160. When the supplement of 1866 was passed, Lackawanna, as now territorially constituted, was a part of Luzerne county. The subsequent formation of Lackawanna county did not operate to repeal special laws in force in Luzerne. The changing of the name of the municipality which covered the territory in the new county did not abrogate the laws applicable to this territory : Lackawanna Co. v. Stevens, 105 Pa. 465. Whatever the law said must be done by the courts or the judges of Luzerne county is bound to be done by the courts or judges of Lackawanna county, after the formation of the latter county, as to matters within its territorial limits. Any other conclusion would lead to endless confusion. Our own court, excepting the writer of this opinion, is on record on this question. It is fully discussed by Günsteb, J., in the case of the appeal of John Gibbons et al., directors, etc., No. 523, April term, 1893. It, therefore, appears manifest to us that the president judge of Luzerne county has no power to fill a vacancy in the office of poor director of the Scranton poor district. It is well known that Judge Rice .exercised the power very unwillingly and only by general consent, and with the expectation of remedial legislation relating to the poor district, He finally refused to make any appointments. Since then the appointments have been made by the president judge of our own court, who undoubtedly has the power under the supplement of 1866 to fill all vacancies in the poor board.</p> <p>The third question relates to the interpretation of the second section of the supplementary act of 1866. It provides for an appointment to fill any vacancy “ whether such vacancy occur by the expiration of the term of office or otherwise.” Respondent’s counsel claims that this provision wipes out the provision for the election of poor directors by the people of the several districts for regular terms as provided in the original act and substitutes the appointive for the elective system. The supplement of 1866 has a repealing clause. The strongest argument in favor of this position is to be found ha the case of Com. ex rel. Snover v. Stewart, 6 Law Times, N. S. 159. It is there decided that the clear intention of the legislature was to abolish the elective system and that no other meaning can be deduced from the words used. We have reached the opposite conclusion and will proceed to give our reasons therefoi'.</p> <p>1. The original act provides for the election of poor directors. They are to be elected from certain districts and for stated terms. Numerous provisions are made for the regulatioia of the elections. The same act, in section 3, provides for the filling of vacancies caused by “death, resignation or otherwise.” Thus, the act contains legislation, inter alia, on two distinct subjects, to wit: the election of poor directors and the filling of vacancies.</p> <p>2. The subject of the second section of the supplementary act relates to the filling of vacancies only. The section has no reference whatever to the election of poor directors. It studiously avoids any mention of the word “ election.” If the intention was to abrogate the elective method, the legislature should have said so. A few words to that effect would have been sufficient. It could have enacted that the section providing for the election of poor directors as set forth in the act of 1862 is repealed and that hereafter the directors shall be appointed by the president judge, and then proceeded to provide for the filling of vacancies. By the very terms and words of the section, the legislation refers to only one of the subjects contained in the original act, and according to a well known rule of interpretation, all other subjects are excluded and they cannot be brought in by judicial construction,</p> <p>3. A vacancy occurring “ by the expiration of the term of office,” when the office has been once filled and when the law provides for the election of a successor, is a curious anomaly, and can exist only under certain exceptional conditions. If the framer of the supplement intended by it to abolish the system of electing poor directors, we would characterize the attempt as a clumsy effort to secure legislation by a species of legerdemain. We cannot for a moment believe that the legislature intended any such result. It is reasonable to think that the intention was to substitute one method of filling vacancies for another. As to the meaning of the word “ vacancy,” we are not without some authority. The question was very learnedly and elaborately discussed in the case of Walsh v. Commonwealth, 89 Pa. 426. In that case there was no dispute as to the ordinary signification of the word as applied to an office. An office which had been once filled and became vacant on account of the death or resignation of the incumbent created a vacancy. This was a plain proposition requiring no argument to sustain it. But the Supreme Court went further and decided that the word “ vacancy” “ aptly and fitly describes the condition of an office when it is first created and has been filled by no incumbent.” The conditions confronting the court in the Walsh case induced them to extend the legal signification of the term “ vacancy” beyond the popular conception of its meaning. In the absence of peculiar conditions, the common acceptation of the use of the word must prevail. An office that has an incumbent elected for a regular term, the law providing for the election of his successor, cannot become vacant because of the expiration of the term. There may be a failure to elect at the proper time, or, the director elect may fail to qualify and a vacancy may exist for those causes, but not merely and specifically because the term has expired.</p> <p>4. It is our duty now to examine more particularly the phraseology of the second section of the supplementary act of 1866. It is claimed that the purpose was to change the elective system of securing poor directors, and in this connection our attention is called to the fact that by the terms of the supplement the petition for the appointment must be signed by twenty freeholders from the proper district and the appointment must be made at a regular term of court, whereas under the original act the filling of vacancies was not hedged in with these important formalities. This argument has no weight. The appointment of a poor director to fill a vacancy is important enough to require a petition signed by twenty freeholders, and it is entirely proper that the appointment shall be made at a regular term of court, so that the people interested in the appointment should have an opportunity to be heard. Under the act of 1862 vacancies were filled by the judges of the quarter sessions without petition at any time in open court or in vacation. The safeguards surrounding the filling of vacancies as provided in the supplement of 1866, cure the defects in the act of 1862, and are consistent with the construction we [fiace upon the law. Regardless of the object which the framers of the supplement had in view our duty is clear. We must ascertain the meaning of the act from the act itself. When the language of an act is plain and admits of only one meaning, the task of interpretation is easy. “ Where the words of a statute are plainly expressive of an intent, not rendered dubious by the contest, the interpretation must conform to and carry out that intent:” Bradbury v. Wagenhorst, 54 Pa. 182. Judges have no right to mold the language of a statute in order to carry out an unexpressed purpose or to meet an alleged convenience, nor can they alter the clear meaning of words even if the legislature may not have contemplated the consequences of using them. ' Looking at the words of the supplement, we find that the vacancies to be filled may occur by expiration of the term of office or otherwise. According to the original act, the vacancies would occur “ by death, resignation or otherwise.” The word “ otherwise” in the supplement is broad enough to cover vacancies by death and resignation. It also covers vacancies by removal of the incumbent from the district and by failure of a director elect to assume the duties of his office. But how can there be a vacancy caused by the expiration of the term? We know of only one way and that is, the failure of the electors of any particular district to elect a poor director at the proper time. The term has expired. No successor has been elected. Thereupon the president judge, according to the supplementary act, appoints a director for the full term, or for the unexpired portion of it. The legislature may as well have said that a vacancy could occur by nonelection as to say it could occur by expiration of tbe term. Unless we give the phrase this meaning, we would be compelled to hold that the legislature intended to abolish the elective system provided by the act of 1862, without the use of any words indicating such an intention. Such an alternative would be subversive of all rules of interpretation.</p> <p>Recapitulating the conclusions we have reached, they - are briefly as follows:</p> <p>1. The supplementary act of 1866 is constitutional.</p> <p>2. The president judge of the court of common pleas of Lackawanna is the proper authority to fill vacancies in the poor board.</p> <p>3. In case there is a vacancy the appointment is for the unexpired part of the whole term of three years, and in case of a failure to elect a poor director, a vacancy exists by reason of the expiration of the term and the appointment is for the full term.</p> <p>4. The supplementary act does not change or modify the system of electing poor directors provided by the act of 1862.</p> <p>5. F. J. Dickert, the respondent in this case, was appointed to fill a vacancy and is, therefore, rightfully in office until his successor is duly elected or appointed.</p> <p>The foregoing naturally ends the discussion necessary for the disposition of the present case. But we cannot avoid commenting upon the complications that will surely arise in the future. It is questionable whether under present conditions it is possible to hold a valid election for a poor director in any of the districts described in the act of 1862. For thirty-three years the poor directors have been appointed and not elected. During this period the lines of election districts and wards have been changed and the integrity of the old poor districts, especially as to the machinery for holding elections for poor directors, has been destroyed to a great extent. A part of a district cannot elect a poor director. Spasmodic attempts have been made to elect a poor director from the old south ward, but as far as we can now see, although the question is not before us, there could not have been a valid election. There has not been in existence for several years for the purposes of an election a political division of territory answering to the district known as the south ward. It may be that the president judge must continue to exercise the undesirable perogative of appointing poor directors until new legislation relieves the situation and brings the poor district out of its present chaotic condition. The energies of the parties interested in the solution of this question should be directed to the legislature and not to the courts. We understand that there are now four vacancies in the poor board. These must be filled by appointments in the usual way as the law now stands, because there have been no elections. According to the information filed in this case, Mr. Murphy claims to have been elected from the south ward in 1898. While we cannot consider this question in these proceedings, nevertheless it is manifest that there could have been no valid election at that time, because the machinery for holding an election in the south ward, even by combining together several of the present wards and election precincts, was not in existence. In addition to this the proper period for holding an election in that district, if such an election could have been held, was in 1899. These suggestions are made tentatively and are not to be considered binding on parties now or hereafter interested in poor board matters.</p> <p>We enter judgment in favor of the defendant and direct the county to pay the costs.</p> <p>Frror assigned was in entering judgment for defendant.</p>

Appeal, No. 59, Jan. T., 1899, by plaintiffs, from decree of C..P. Lackawanna Co., June T., 1893, No. 6, dismissing bill in equity in suit of John Jermyn and Joseph J. Jermyn, copartners, trading as Jermyn & Co., v. Elliott, McClure & Co. Bill in equity for an injunction to restrain the mining of coal, and for a decree for value of coal taken and penalty.

Appeal, No. 31, Jan. T., 1900, by-defendant, from order of Oyer and Terminer, Fayette Co., Sept. T., 1899, No. 3, dismissing petition for commission to inquire into the prisoner’s insanity, in case of Commonwealth v. Mark Thomas Hays. Indictment for murder. Petition for the appointment of a commission to inquire into the prisoner’s insanity. The facts appear by the opinion of the Supreme Court. Error assigned was the order of the court.

Appeal, No. 47, Jan. T., 1900, by National Building and Savings Association No. 2, from order of C. P. Berks Co., Nov. T., 1899, E, D. No. 4, making absolute rule to show cause why a fund in court should not be paid to a trustee in bankruptcy, in case of Albert Ferguson et al. v. Darius P. Greth. Rule to show cause why a fund realized from a sheriff’s sale of real estate of Darius P. Greth should not be paid to Lewis T. Pry, trustee in bankruptcy.

<p> Will—Fee simple estate—Prohibition of alienation except by will. </p> <p>Where an estate in fee simple is devised, and the testator attempts by a condition in the will to prevent its alienation except by will, the estate in fee simple passes to the devisee, and the condition against alienation is void as is also a condition against liability for the devisee’s debts.</p> <p>Testator having given his son a fee simple estate in land directed in a subsequent clause in his will that the estate should not be liable* for his son’s debts, and that his son should not “ sell and dispose of any part thereof, that the same shall go and vest in his heirs, unless he shall devise the same by his last will and testament, which he is authorized and empowered hereby to do.” Held, (1) that the condition against alienation was void, and that the son took an absolute estate, in fee simple; (2) that the devise in fee with condition that it shall not be liable for the debts of the devisee, was as repugnant to the estate as a condition not to alien.</p>

Appeal, No. 161, Jan. T., 1899, by defendants, from decree of C. P. Carbon Co., Oct. T., 1897, No. 1, on bill in equity, in suit of J. M. Dreisbach v. David Ross et al. Bill in equity for an injunction, to restrain a sale of electric light poles and wires thereon situated in the borough of Lehighton to the borough.

Appeal, No. 406, Jan. T., 1899, by Frank G. Hemingway, from decree of O. C. Northampton Co., refusing an issue devisavit vel non. Appeal from register of wills. The facts appear from the opinion of Schuyler, P. J., which was as follows: This is an appeal from the decision of the register admitting to' probate a paper purporting to be the last will of the decedent.

Appeal, No. 304, Jan. T., 1899, by Adelaide Filbert Geiser, from decree of O. C. Franklin Co., in partition proceedings in the matter of the Estate of Thomas J. Filbert, Sr., Deceased. Petition for partition.

<p> Boroughs—Municipal indebtedness—Vote of electors—Two per cent limit —Ratification. </p> <p>A vote of the electors of a borough authorizing the council to create an indebtedness for the express purpose of liquidating a floating debt which had been contracted in excess of the two per cent limit without a vote of the electors, is such a recognition and ratification of the debt, as makes it enforceable against the borough.</p> <p>The power of a borough council to create debt without a vote of the electors authorizing it, is exhausted when the aggregate indebtedness reaches the two per cent limit.</p> <p> Boroughs—Municipal indebtedness—Levying of tax—Certificate—■Notice. </p> <p>A borough will not be permitted to deny its liability upon bonds on the ground that no tax had been actually levied or assessed for their payment, as required by article 9, section 10 of the constitution, where the record shows that the statement filed by the borough authorities in the office of the clerk of the quarter sessions, as required by law, in advance of the issue, declared unqualifiedly that such a tax had been levied. The holders of the bonds are held to knowledge of what the statement contains, but beyond that they are not bound to inquire.</p>

<p> Contract—Municipal contract—Use of material excavated. </p> <p>Where a municipal contractor has two contracts for grading streets, under the first of which he was to receive a certain amount for each cubic yard excavated, and all of the earth taken out, which by the terms of the contract was to be deposited on the street covered by the second contract, which street required considerable filling, and the city wrongfully prevents the contractor from going on with the first contract, the contractor is entitled to recover the value of the earth which he was prevented from getting, and he may prove its value by showing what he had been obliged to pay in the market for similar material to take the place of that withheld from him. The case is the ordinary one of a vendor refusing to deliver goods sold, and the vendee going into the market to supply himself and suing for the difference in price he was compelled to pay.</p>

<p>Appeal, No. 409, Jan. T., 1899, by defendant, George W. Stewart, from order of C. P. No. 4, Phila. Co., March T., 1899, No. 581, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia to use of Thomas J. .Rose Brick Manufacturing Co. v. George W. Stewart and tbe Equitable Trust Company.</p> <p>Assumpsit on a bond.</p> <p>From tbe record it appeared that George W. Stewart entered into a contract with the city of Philadelphia to erect a school building. He gave a bond to secure laborers, subcontractors and material men. In this bond the city was named as tbe obligee, and tbe Equitable Trust Company was tbe surety. Tbe Tbomas J. Rose Brick Manufacturing Company furnished materials for the. use of the school building. The condition of the bond is quoted in the opinion of the Supreme Court.</p> <p>George W. Stewart filed an affidavit of defense in which he averred:</p> <p>That the suit is brought upon a bond executed by the defendant as set forth in the said statement. I was compelled to give said bond before I was permitted by the board of education of the city of Philadelphia to proceed with the work under my contract with the city for the erection of the schoolhouse at the northeast corner of Sixteenth and Cayuga streets.</p> <p>Said bond was executed and delivered by me to the city of Philadelphia not voluntarily, but because of the refusal of the board of education, under the ordinance of March 30, 1896, set forth in said statement, to permit me to do the work under said contract until I gave that bond. I am advised by counsel and aver that the said ordinance is ultra vires, and that all proceedings thereunder, including the bond given by me and my codefendants in this case, are null and void.</p> <p>I further aver that in part payment for the work and materials furnished by the use plaintiffs to the said building, and for the value of which claim is herein made, I executed and delivered to Thomas J. Rose, who indorsed it, to the said plaintiffs a promissory note for $1,600, upon which suit was brought in court of common pleas, No. 4, December term, 1898, No. 275, and judgment recovered December 30, 1898, for $1,633.74, and I am advised by counsel and aver that as the said note was so given and accepted in payment on account of the debt due by me to said plaintiffs, which is the basis of the claim herein, said plaintiffs are not legally entitled herein to judgment therefor.</p> <p>That plaintiffs have brought suit and obtained a judgment against deponent for the balance of their claim herein, said suit being in this court to September term, 1898, No. 764, in which suit was brought for the book account, a copy of which is contained in the statement of claim in this case and credit given for the amount of the note hereinbefore referred to, and judgment obtained for the balance. And deponent is advised by counsel, believes and respectfully submits to the court, that plaintiffs cannot have two personal judgments for the same debt.</p> <p>All of which I will prove upon a trial of the cause.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense. Arnold, P. J., filing the opinion of the court.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 390, Jan. T., 1900, by Nathaniel B. Light, from order of C. P. Lebanon Co., June T., 1897, No. 304, setting aside sheriff’s sale to him in case of Jacob L. Light, Assignee, et al. v. D. W. Zeller et al. Rule to set aside sheriff’s sale. The grounds upon which the sale was set aside were stated by Erhgood, P. J., as follows: It is not denied that the property in question was sold for a grossly inadequate price.

Petition for mandamus to be directed to the judges of the court of common pleas of Lackawanna county. S. C. Miscellaneous Docket No. 1, No. 381. Petitioner filed a bill in the common pleas against one Jenkins for an account and settlement, as plaintiff’s agent.

<p> Negligence—Street railways—Duty of motorman as to children. </p> <p>In an action for personal injuries to a child six years and eleven months old, where the motorman testified that when he was “ fifty or sixty yards away, maybe more than that,” he saw children in the road on both sides of the track and only a few feet from it; and that he knew a schooihouse was' there; seeing the children in the road was notice to him that it was recess, or at least that the school was not in session. These circumstances imposed upon him the duty of at once getting his car under special control. Whether he did all that was reasonably proper for that purpose was a question for the jury.</p> <p>Cases o£ this kind where it is for the court to direct a verdict are confined to those in which the uncontested evidence leads to the conclusion that the child ran in front of the car so quickly and under such circumstances that the motorman had no reasonable ground to apprehend such action and no time after it to avoid the collision.</p> <p> Negligence—Evidence, Declarations—Street railways. </p> <p>In an action against a street railway company for personal injuries, the admission in evidence of a conversation with the motorman is not erroneous, where the whole conversation testified to amounted to no more than a question by the motorman whether the witness had heard the bell ring, and the witness replied that he had not.</p>

Appeal, No. 248, Jan. T., 1899, by plaintiff, from decree of C. P. Lebanon Co., dismissing bill in equity in case of Jacob H. Grove v. Emma G. Kase. Bill in equity for a reconveyance. Tlie facts appear by tlie opinion of McPherson, P. J., specially presiding, wbieb was as follows: This ease was heard upon bill, answer, replication and testimony. We find the facts to be as follows : 1. Tlie plaintiff and defendant are brother and sister.

Appeal, No. 429, Jan. T., 1898, by plaintiff, from judgment of C. P. Lebanon Co., Dee. T., 1895, No. 72, on verdict for defendant, in case of Harrisburg Foundry & Machine Works v. Lebanon City. Assumpsit on a contract for the purchase of a steam road roller. Before E. W. Biddle, P. J., specially presiding.

<p>Appeal, No. 204, Jan. T., 1899, by defendants, from judgment of C. P. Schuylkill Co., May T., 1892, No. 246, on verdict for plaintiff, in case of F. S. Snayberger, Administrator of Henry'Fahl; Deceased, v. Sybilla Fahl and Joseph Fahl aud Isaac Hoffmeister.</p> <p>Ejectment for land in West Brunswick township. Before Lyons, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Error assigned among others was in not giving binding instructions for defendants.</p>

Appeal, No. 54., Jan. T., 1900, by-plaintiff, from order of C. P. Berks Co., Deo. T., 1899, No. 70, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Lewis T. Fry, Trustee in Bankruptcy of the Estate of Darius P. Greth, v. Pennsylvania Trust Company. Assumpsit by a trustee in bankruptcy to recover a fund alleged to represent an unlawful preference. Rulé for judgment for want of a sufficient affidavit of defense.

<p>NègZigence-Mc~ster and servant-Machinery-Nonsu~t.</p> <p>In an action by a boy sixteen years old against his employer to recover damages for personal injuries, a nonsnit is properly entered where the evidence shows that the plaintiff had operated the macbine at which ho was injured for five or six months; that he bad been instrncted by his predecessor in the work to which he was assigned; that the condition of the machine was the same when he received his injury as when his predecessor operated it; that the danger in working the machine was obvious, tbat the injury could have been avoided by a temporary suspension of the operation of the machine, and that there was notlnng in the case which authorized aa inference that tbe defendant failed in any respect to discharge the duty of furnishiug a reasonably safe machine.</p>

Appeal, No. 374, Jan. T., 1899, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. T., 1897, No. 733, dismissing bill in equity in case of Robert W. Finletter, Receiver of tbe Acetylene Light, Heat & Power Company, v. Katharine P. Appleton et al. Bill in equity to enforce payment of money alleged be due on stock not full paid. The facts are fully stated in the opinion of the Supreme Court. Error assigned was decree dismissing bill.

<p>Appeal, No. 375, Jan. T., 1899, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. T., 1897, No. 733, dismissing bill in equity, in case of Robert W. Finletter, Receiver of the Acetylene Light, Heat & Power Company, v. Joseph S. Keen, Jr.</p>

Appeal, No. 243, Jan. T., 1899, by defendant, the city of Philadelphia, from order of C. P. No. 3, Phila. Co., Sept. T., 1890, No. 589, dismissing exceptions to report of referee. Appeal from jury of view. Exceptions to report of referee, Hampton L. Carson, Esq. From the referee’s findings of fact it appeared that on April 30, 1849, Richard Peters conveyed a lot of ground to Frederick Osterheldt.

<p>Appeal, No. 876, Jan. T., 1899, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. T., 1897, No. 733, dismissing bill in equity in case of Robert W. Finletter, Receiver of tbe Acetylene Light, Heat & Power Company, v. William S. Perot, Jr.</p>

<p>Motion for reargument.</p>

<p>Appeal, No. 66, Jan. T., 1900, by Carrie H. Bruckman, from decree of O. C. Berks Co., April T., 1897, No. 60, dismissing exceptions to adjudication in the estate of George W. Bruckman, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 87, Jan. T., 1900, by Carrie H. Bruckman, from decree of O. G. Berks Co., April T., 1897, No. 60, dismissing exceptions to inquisition in partition in the estate of George W. Bruckman, deceased.</p>

<p>Appeal, No. 425, Jan. T., 1899, by .plaintiff's, from order of O. P. No. 4, Phila. Co., March T., 1897, No. 968, refusing to take off nonsuit in case of Melville Morris and Sarah Jane Morris, his wife v. City of Philadelphia.</p> <p>Trespass for' personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 428, Jan. T., 1899, by plaintiff, from decree of C. P. No. 4, Pliila. Co., Dec. T., 1888, No. 617, dismissing petition for bill of review filed by Anna M. Buck, executrix of James Buck, in case of James Buck v. Daniel Buck. Petition for bill of review. The facts appear by the opinion of the Supreme Court. Error assigned was decree .dismissing petition for bill of review.

Appeal, No. 444, Jan. T., 1899, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1899, No. 155, refusing to take off nonsuit. Trespass for personal injuries. Before McMichael, J. At the trial it appeared that on January 26, 1899, the plaintiff went to a large department store owned by tire defendants to make a purchase.

Appeal, No. 42, Jan. T., 1900, by plaintiffs, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1896, No. 739, on verdict for defendants, in case of Pennsylvania Oil Company, to use of Howard Terry, assignee for benefit of creditors of Pennsylvania Oil Company, v. Pure Oil Company. Replevin for certain goods consisting of horses, wagons, tanks, etc., alleged to constitute all the working assets of an oil plant.

Appeal, No. 49, Jan. T., 1900, by plaintiffs, from judgment of C. P. No. 1, Pliila. Co., Sept. T., 1899, No. 497, on demurrer for defendants, in case of William Howard and Christiana Howard, his wife, v. Union Traction Company and Philadelphia Suburban Gas Company. Trespass for personal injuries. Demurrer to statement.

<p>Appeal, No. 29, Jan. T., 1900, by defendant, from judgment of C. P. Schuylkill Co., July T., 1896, No. 822, on verdict for plaintiff in case of James Gibbs and Curtis S. Brooks, trading as Brooks & Gibbs v. School District of Girardville.</p> <p>Assumpsit on quantum meruit for work performed and material furnished in the construction of a basement of a schoolhouse, prior to the rescission of a contract between the plaintiffs and defendant to construct the schoolhouse. Before Hjenning, J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>The defendant presented, inter alia, the following point:</p> <p>20. That under all the evidence in this case the verdict of the jury must be for the defendant. Answer: This we decline. The question is-one of fact for you to determine.</p> <p>Verdict and judgment for plaintiff for $8,411.21. Defendant appealed.</p> <p>Frror assigned among others was above instruction, quoting it.</p>

<p>Motion to strike off order remitting case to Superior Court. Appeal 321, Jan. T., 1899, from decree of O. C. Berks Co.</p> <p>From the record it appeared that on February 26, 1900, the ■court ordered that the case should be remitted to the Superior Court. Subsequently the appellees presented a petition to strike off this order, in which petition they averred that by the decree appealed from, the sum of $952.89 was awarded to Maria Jennings, and the sum of $645.79 to Dr. Chester B. Jennings, making a total amount involved of $1,598.68. They claimed that the two amounts taken together gave to the Supreme Court jurisdiction over the case.</p>

<p> Divorce—Cruel and barbarous treatment—Adultery—Evidence. </p> <p>A decree in divorce will bo granted to a wife on her testimony alonej where such testimony makes out a olear case of cruel and barbarous treat-1 ment, and the husband although represented by counsel at the hearings, makes no denial whatever of the charges against him. !</p> <p>A decree in divorce should be granted to a wife where she testifies without contradiction from her husband, to repeated acts of personal violence; that her husband had a foul venereal disease; that he was constantly telling her of his own adulterous practices; that he grossly insulted her by proposing that she should have illicit intercourse with other men, and that by a long continuance of his indignities to her person making her life intolerable, he had compelled her to withdraw from his house and seek refuge, with her parents.</p> <p>If a husband has a venereal disease during the continuance of the marital relation and there is no explanation of it or evidence that his wife had communicated the disease to him, it must be regarded as evidence of illicit connection with other women than his wife.</p> <p>Mitchell and Fell, JJ., concur on the second ground of divorce (adultery) only.</p>

<p> Decedents' estates—Exclusive jurisdiction of orphans' court—Creditors. </p> <p>The orphans’ court has exclusive jurisdiction to ascertain the amount of the testator’s estate as well as to make a distribution of it. A creditor, therefore, is required to enforce his rights to any money or property of the decedent’s estate in this tribunal, and is precluded from seeking them elsewhere.</p> <p>Where an executor who was also a legatee has voluntarily paid out moneys of the estate to a bank to which, it is alleged, the estate was not indebted by reason of the failure of the bank to protest certain notes upon which the testator was indorser, but to which the executor was personally indebted, and the executor has subsequently filed an account showing such payments, which account was duly advertised, and adjudicated and confirmed without objection, an administrator d. b. n c. t. a. appointed after discharge of the executor, cannot by a bill in equity in the common pleas compel the bank to pay over to him the moneys alleged to have been wrongfully received by it.</p> <p> Equity—Bill—Amendments—Aiipeals. </p> <p>The Supreme Court will not reverse a decree dismissing a bill in equity because the plaintiff was refused permission to amend his bill, where it appears that the amendments proposed would not have availed him.</p>

<p> Executors and administrators—Will—Power of sale—Power to lease. </p> <p>While a bare power to sell real estate given to an executor does not authorize him to take possession of, and lease the real estate and collect the rents in the interim, without the consent of the heirs, yet such power may be implied when the provisions of the will are of such a character as to indicate that such was the intention of the testator.</p> <p>Where testator makes a joint bequest to his widow and daughter of one third of the rents and profits of his real estate, “after the expenses of keeping in good repair of said real estate and the expenses, if any, of collecting the rents, shall be deducted from the entire rents and profits,” and gives to his executors a general power oí sale, without liability of the purchasers for the appropriation of the purchase money, with direction that the interest of the wife and daughter should be secured in the real estate sold, the executors will, iu the absence of any nomination oí a trustee in the will, be considered to have the power to lease the real estate and collect the rents, and after they have exercised such power for five years with the consent of all parties in interest, their right to do so cannot be questioned.</p>

<p>Appeal, No. 311, Jan. T., 1899, by-defendants, from decree of C. P. Luzerne Co., May T., 1894, No. 2, on bill in equity in case of the Greek Catholic Church of Wilkes-Barre v. The Orthodox Greek Catholic Church.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of Dunham, P. J., specially presiding, which was as follows :</p> <p>For some years prior to 1887 there had been considerable emigration from Austria and the central portion of Europe to the coal fields of the United States. Quite a number of these immigrants settled in Wyoming valley in and around Wilkes-Barre, Kingston and other places where coal mining operations were being carried on. These immigrants who came from Hungary, Galicia and the western portions of Russia, that settled in and around Wilkes-Barre, naturally brought with them the desire to have some place of worship established where they might attend and worship God, according to the forms and manners that they had been accustomed to in their native countries. While all these people did not speak the same language or at least the same dialect, yet there was such a similarity in their various dialects, that most of them could understand each other; all or nearly all speaking the Slavonic language, though of course in different dialect according to the region from which they might come.</p> <p>These people had been accustomed to attend church and undoubtedly were members of such churches in there native country, where the mass and all the services in the church were conducted in the language familiar to them. These services were very much like those of the Roman Catholic Church except that in the Roman Catholic Church a considerable portion of the services is conducted in the Latin language.</p> <p>It was quite natural that these people should desire a church established where the services should be conducted in a language understood by them, and, in fact one like in all respects to those they had been in the habit of attending. Under these conditions and circumstances we naturally would expect to find these members of the Slavonic race combining together to build a church and procure a pastor therefor, where they might attend and worship God according to manner and in the way they had been accustomed to, and it is virtually admitted by all parties to this controversy that this is exactly what took place, the real controversy being as to what church or form of religion they had been accustomed to, or at least as to what church or denomination they intended and supposed they established. There being many things in this case that are admitted by both parties to the controversy, it will probably be better to state first those matters that are not in dispute, and upon which all are agreed; so having these facts to start upon it will probably be easier to ascertain the facts as to those matters about which there is a controversy.</p> <p>There is no question but what John Kosek, a member as we understand of tbe Slavonic race, residing in Wilkes-Barre, who had resided there for some time and been in business, dealing with members of that race, understanding their language and having' the confidence of the Slavs generally, was requested by a very large number of these people to procure for them a church, where they might meet and hold religious services according to the forms and in the manner they had been used to holding them in the old country; that in pursuance of said request to him, John Kosek did on August 31, 1887, enter into articles of agreement to purchase two lots of ground in Wilkes-Barre for the purpose of having a church and parsonage for these people, and upon August 28,1889, received two deeds for the same in his own name as trustee without expressing in any manner for whom or for what purpose he was trustee; that upon these two lots while it was held by John Kosek, either under the articles of agreement or under the deed to him as trustee, there were erected a church building and a house or residence for the priest or pastor; that John Kosek died intestate some time in February, 1890, having a title to these two lots in him as “ trustee; ” that John Kosek and his estate were reimbursed for the money advanced by him in the purchase of these lots and in aid of the construction of the church and parsonage by money raised by subscription principally among the members and congregation of the church so built and established and contributed for the purpose of building the church and parsonage and procuring title to the same and the lots upon which they were built; that upon petition to the court of common pleas of Luzerne county, Elizabeth Kosek, widow of John Kosek, deceased, was appointed trustee in place of John Kosek, deceased, and upon May 8, 1890, she as said trustee, conveyed the two lots upon which the church and parsonage were situated to “Michael Jevesak, Michael Pevowarniek and Arthur Pevowarniek, trustees, in trust for the use and benefit. of the Greek Catholic Church of Wilkes-Barre, Pennsylvania; ” that upon the completion of the church and parsonage the congregation or some one for or on behalf of them, sent to Hungary and obtained a pastor who took charge of the church and parish and remained as the priest or pastor for a period of about two years; that upon this pastor’s leaving, whose name was Rev. Alexander Dzuby, he was succeeded by Rev. Nicholas Stetsovitch, who remained in charge for a period of about ten months, and that then the congregation was without a pastor for some months, or until some time in December, 1892, or January, 1893, when Rev. Alexis Toth took charge of the church and congregation as pastor, who has continued as pastor up to the present time; that since Rev. Toth became the pastor of the church, a petition was presented to the court of common pleas of Luzerne county to No. 964, October term, 1893, setting forth, “ that the petitioners are trustees for the Greek Catholic Church of Wilkes-Barre, Pennsylvania, and held as such trustees, certain church lots in Wilkes-Barre, Pennsylvania, and that it is the wish and desire of the congregation known as the Greek Catholic Church of Wilkes-Barre, Pennsylvania, to have the lots conveyed to the petitioners and to the Right Rev. Nicholas, Bishop of the Aleutian Islands and Alaska, with jurisdiction over the United States, of San Francisco, California, as trustees for the St. Mary’s Russian Greek^Orthodcgs Catholic Church oFWilkesBarre, Pennsylvania,” which is the proper name of said Greek Catholic Church of Wilkes-Barre, Pennsylvania, and praying for a decree accordingly.</p> <p>On September 18, 1893, the court did make a decree in accordance with the requests in the above mentioned petition. It is undisputed and practically admitted by the defendants, that Rev. Dzuby and Rev. Stetsovitch who were priests or pastors of this church during the first three years of its existence, belonged to the United Greek Catholic Church, which acknowledged the pope as the spiritual head of the church upon earth.</p> <p>It is also unquestioned that when Rev. Alexis Toth came to America and first held service in this church for Rev. Dzuby, lie was also a member of the United Greek Catholic Church and acknowledged the pope as the earthly head of the church or the head of the church upon earth.</p> <p>It is also undisputed that before Rev. Toth became pastor of the church and prior to the acceptance of this congregation and church under the jurisdiction of the Bishop Nicholas, Bishop of the Aleutian Islands and Alaska, with jurisdiction over the United States, and before the decree of the court mjrking Bishop Nicholas one of the trustees] the Rev. Toth and Bishop Nicholas Acquired trustees of the church property and the officers of the societies of St. Peter and Rome and St. John the Baptist, to sign a renunciation of their belief or connection with the “ United Greek Catholic Church,” of which the following is an extract:</p> <p>“ We, the undersigned, trustees of the Annunciation Church, and inhabitants of the City of Wilkes-Barre, State of Pennsylvania, and also we, the officers of the following societies, viz, St. Peter and Paul, St. Nicholas and St. John the Baptist of the same church and city, humbly beseech your eminency that you kindly accept us and our church in your protection and your spiritual jurisdiction, and thereupon we, as Uniates with this writ declare:</p> <p>“ 1. That we renounce the United Church and religion and that we wish to return to the same church and religion to which church our ancestors belonged, and to the very church of our Lord Jesus Christ, such as the Orthodox Greek Catholic Russian Church.</p> <p>“ 2. That we reject all new inventions of the Roman and United Church, such as the primacy of the pope and his infallibility, and the doctrine of Purgatory and the Immaculate Conception of the Blessed Virgin and all the errors which are cast away by the only one Holy Catholic and • Apostolic Church. Further we confess the creed of Nicea Constantinople, without any heretical additions ‘ and son ’ (doctrine of Holy Ghost) ; also we confess that only what our Saviour, Jesus Christ, his Saint Apostles and the Saint Fathers of the church and the seven Universal Councils taught, which doctrine is taught only by the Holy Orthodox Greek Catholic Russian Church at present time, from which church our ancestors, not by their own fault, but through severe persecution, were compelled to abandon. Therefore we return to our Very and Holy Mother, the Orthodox Greek Catholic Russian Church, and thus subject ourselves spiritually to your Eminency and Holy Synod of Russia. We beg and desire from our hearts that you mercifully accept (us) in your Orthodox Greek Catholic Church.</p> <p>“3. We hereby grant and deliver to the jurisdiction of your Eminency, our church property, parsonage; . . . . also all documents in relation with the said church to the amount of ten thousand dollars, and the keys of the said church.”</p> <p>The foregoing was not only signed by the trustees and officers, of said societies, but also by those persons who were tó be taken into the Orthodox Greek Catholic Russian Church. It is also undisputed and acknowledged by all parties to this controversy that the United Greek Catholic Church is an organization separate and distinct from the Orthodox Greek Catholic Russian Church, and that its doctrines, tenets, rules, etc., are the same as the Roman Catholic Church, except in some matters of discipline, both acknowledging the pope as the ecclesiastical head of the church and acknowledging the authority of the bishops appointed by him. While the Orthodox Greek Catholic Russian Church differs in many respects in its faith, doctrines, tenets, rules, etc., from the United Greek Catholic Church, and acknowledges as its spiritual or ecclesiastical head “ the Synod of Russia, consisting of bishops appointed by the czar of Russia.”</p> <p>That these two separate and distinct churches have existed and had these marked differences in their beliefs and government for a long period of time.</p> <p>Practically the foregoing are undisputed facts from which we must now pass to consider evidence offered by both parties as bearing upon these facts, in order that we can arrive at a proper and just conclusion as to what ought to be done to deal out equity and justice to the parties to this controversy. .</p> <p>There has been a very great amount of evidence given by a large number of witnesses on the part of the defendant to show that the actual belief and religious convictions of these witnesses are and always have been in accordance with the faith, belief and practice of the Orthodox Greek Catholic Russian Church. A large majority of these witnesses have testified that the teachings of Rev. Toth and the conduct of the services by him, are exactly the same as those of Revs. Dzuby and Stetsovitch, and the same as those of the priests where they attended in the old country. These witnesses as well as most of the congregation called by the plaintiffs, have shown very great ignorance in regard to wliat they really believe or as to what is the difference between these two warring churches in matters of faith or teachings, and we are compelled to feel that they have shown so little knowledge of the matters they testify to, as to entitle their testimony upon these points to very little weight upon matters of church doctrine or belief or as to the forms of service.</p> <p>Again much evidence has been given in the way of church history and from the writing of learned, able and competent men as to the conflicts between the Greek Church proper and the Roman Catholic Church, and also as to the history of the United Greek Church and of the countries where these United churches are located, and it has .been most'ably contended by counsel for the defendants that these members of the United churches are kept in ignorance of the fact that the church acknowledges the pope as its ecclesiastical head, and adheres to-all the dogmas of the Roman Catholic Church, and that they,, the lay members, suppose they belong to the Orthodox Greek Catholic Russian Church. It would be exceedingly interesting as a historical question, to go into this church history and attempt to trace the history of these churches from the earliest period down to the present, and to ascertain the real facts as to-the schisms and controversies, but we do not feel that it could throw any light upon, or in any way assist in deciding the present controversy. It is enough for us to know that at the time this church was begun there was a “ United Greek Catholic Church,” having regular creeds, organizations and all that pertains to any denomination of Christians, and that there was also at the same time, an Orthodox Greek Catholic Russian Church in same condition as to creeds, etc.</p> <p>It is a matter of no consequence as we view the case, as to when, how, or under what circumstances these denominations, were organized, and we certainly have no more desire than we have the legal right to attempt to interfere and decide or even intimate which is in the right or which is the older or in any way express an opinion upon these rival organizations.</p> <p>From the evidence of Rt. Rev. Bishop O’Hara, Rt. Rev. Bishop Hoban and the clergymen called, who testify intelligently and understanding^, it is very evident, as well as by a careful reading of the petition of the trustees, officers of the societies of St. Peter and St. Paul and St. Nicholas and St. John the Baptist,, and members of the congregation of this church, that the churches to which a very large proportion of the congregation belonged before coming from Hungary and Galicia were United Greek Catholic churches and that tins church prior to the time Rev. Toth took charge of it, was presided over by a United Greek Catholic priest .and was to all intents and purposes, a United Greek Catholic Church.</p> <p>Counsel for the defendants have argued most ably and elo-¶ quently that we ought to respect the religious beliefs and opin-\ ions of the members of the church organization as to theirS beliefs, and as to which church they belong and are in harmony / with. ~y</p> <p>We feel, however, that church members who cannot see any difference in the services, mass, etc., as conducted by Rev. Toth, a member of the Orthodox Greek Catholic Russian Church and in his teachings of doctrines, and the services and teachings of doctrines of Revs. Dzuby and Stetsovitch and the priests in Galicia and Hungary who were United Greek Catholics and acknowledged the pope as the head of the church on earth, are not very liable to have their religious sentiments or beliefs greatly outraged by attending church under priests of the United Greek Catholic religion.</p> <p>Then, too, so far as we are concerned, who are unable to read the thoughts and workings of the mind, we know of no way of ascertaining the sentiments, beliefs and religion of any set of men or any congregation, except by finding to what church they belong and to what confession of faith they give their adherence, and then by articles of faith and belief and by the discipline or other constitution of such church, ascertain to what church they properly belong and what is their authorized belief.</p> <p>The deed from Elizabeth Kosek, trustee to Mike Jevesak, Andrew Pevowarnick and Michael Pevowarnick is to them asj trustees of the Greek Catholic Church of Wilkes-Barre, Pa.,| and successors. Under this deed these men might be trustees I of the United Greek Catholic Church or they might be trustees of the Orthodox Greek Catholic Church so far as the deed is concerned. By its wording it does not particularly indicate which of the parties to this controversy was intended.</p> <p>This then is a case where from the writing creating the trust, we are unable to discover what particular form of worship was intended or to which of the two churches the name of Greek Catholic Church is to be applied. And therefore according to doctrine laid down by Lord Eldon in AttomfiylGsiLgi’alr v. Pearson, 3 Merivale, 353, affirmed or approved in Presbyterian TlongregatnnrvrTohnston, 1 W. & S. 9, McGinnis v. Watson, 41 Pa. 9, Sutter v. Trastees of Reformed Dutch Church, 42 I Pa. 508, and Roshi’s Appeal, 69 Pa. 462, that “when a house is \ Vreated for religious worship and it cannot be discovered what was the nature of the worship intended by it, it must be implied from the usage of the congregation; and that it is the fluty of the court to administer the trust in such manner as best to establish the usage, considering it a matter of implied contract with the congregation.”</p> <p>Again, in App v. Lutheran Congregation, 6 Pa. 201, cited with approval in Roshi’s Appeal, 69 Pa. 462, by Justice Sharsvvood, Justice Burnside says: “ I approve of the doctrine of Lord Eldon in the case of the Attorney General v. Pearson, 3 Merivale, 400, that it is the duty of the court to decide in favor of those whether a minority or majority of the congregation who are adhering to the doctrine professed by the congregation, and the form of the worship in practice, as also in favor of the government of the church in operation with which it was connected at the time the trust was declared.” We must look to the forms and usages of the congregation of this church prior to the controversy, to ascertain what was meant by the words the deed, to the trustees creating them trustees of the “ Greek Catholic Church of Wilkes-Barre, Pa.”</p> <p>As it is incumbent upon us to carry out the intention of those who established this trust, viewing this controversy in the light of the above authorities, what do we find ? And what do these plain directions require us to do ?</p> <p>At the time the deed was taken by John Kosek for this church and parsonage property, August 28, 1899, the church had been completed and there was a regular pastor in charge.</p> <p>Services were being held in the church and the congregation were united and satisfied. All, or nearly all at least testifying that these services were being conducted and that the pastor was ¡teaching the doctrines believed and held by them and the same as taught by their pastors in their native country. Who then was the pastor in charge of this church and parish and to what church did he belong ? And what religion or doctrine did he teach ? The reply to this is not difficult. There is no dispute upon the point as to who was the pastor, none as to what church he belonged and verjr little that has any weight or is entitled to consideration as to the doctrines he taught.</p> <p>The pastor was the Rev. Alexander Dzuby, and he belonged to the United Greek Catholic Church, and he undoubtedly taught the principles and dogmas of the United Greek Catholic Church.</p> <p>So when John Kosek accepted the deed for this property as trustee, the plain inference is that he held it first in trust to protect himself for the money advanced by him, or in other words to secure the repayment of his money, then after that in trust for the church organization, that was actually in existence at that place and conducting regular religious services, not for some other denomination, that had no existence as a church organization, had no pastor and was not conducting any religious services.</p> <p>Again, at the time the deed was made by order of court from Elizabeth Kosek, widow of John Kosek and his successor in the trust, May 8, 1890, who was pastor of the church? Was he a member of and what religion or denomination did he teach ? To this we make the same reply as was made to the former question in regard to deed to John Kosek, trustee. Rev. Alexander Dzuby was pastor, teaching the same as he did on August 28, 1889.</p> <p>It seems to us that it is too plain for argument, that at the time these trusts were created, they were created for the Greek Catholic Church of Wilkes-Barre, Pa., as it was then being cony ducted, and that in this all were satisfied until converted or changed by the very accomplished Rev. Toth. We are confirmed and strengthened in our belief that this trust was originally for the Greek Catholic Church as the United Greek Catholic Church by the action taken by Rev. Toth when he came to visit this congregation in December, 1892. The first thing he did or required of this congregation and the trustees, was to renounce their belief in the doetrinces and dogmas of the “ United Greek Catholic Church.”</p> <p>Surely men need not renounce allegiance or belief in something that never existed. Had they never been members of that church, they certainly would never have been required to renounce allegiance to it or to renounce a belief in its doctrines and dogmas. Then, too, in this very renunciation it begins with the assertion, “we as Uniates,” etc. This means, we as members of the “ United Greek Catholic Church.” So every defendant or nearly so has declared over his own signature that up to the time of Rev. Toth’s taking charge of the church, he had been a member of the United Greek Catholic Church. Again Rev. Toth says, they were held or considered as Uniates.</p> <p>Then too this petition to Bishop Nicholas in effect admits that the churches to which they who signed it and their ancestors belonged in their native country were not Orthodox Greek Catholic Russian churches but “United” churches, ■when they say “which doctrine is taught only by the Holy Orthodox Greek Catholic Russian Church at present time, from ■which church our ancestors, not by their own fault, but through •severe persecution, were compelled to abandon,” admitting thereby that their ancestors had abandoned the Holy Greek .Orthodox Church.</p> <p>Believing that the evidence clearly shows that the United Greek Catholic Church was.the church organization or denomination that was in possession of the church property at the time the trust was originally created, and that they continued in .possession of the property up to the time that it was surrendered (by a portion of the congregation who renounced this belief or sect and joined the Orthodox Greek Catholic Russian Church) to the Orthodox Greek Catholic Russian Church, we ■feel constrained to restrain these defendants from interfering with the members of the United Greek Catholic Church, who have remained true to the faith of those in possession at the time the 'deeds were made to John Kosek and also to Mike Jevcsak, Michael Pevowarnick and Andrew Pevowarnick, trustees, etc., in their possession of the church property and in conducting services therein in accordance with the rules and under the forms of the United Greek Catholic Church.</p> <p>. % % # ^ *</p> <p>Now, July 20, 1899, this cause came on to be heard on bill, answer and testimony, and after full argument by counsel, upon due and careful consideration, it is ordered, adjudged and decreed :</p> <p>I That the defendant, Rev. Alexis Toth, be restrained and perpetually enjoined from preaching or in anywise officiating as pastor in tbe church mentioned in plaintiff’s bill and from occupying or using the said parsonage, and from intermeddling in any manner with the spiritual or temporal affairs of the said congregation unless he shall be regularly made and appointed as pastor thereof by or under the authority of the “ United Greek Catholic Church.”</p> <p>That the other defendants be strictly enjoined from permitting the said Rev. Alexis Toth in anywise to officiate as minister or pastor thereof without the consent of the same authority, and from interfering with or obstructing the proper functions of any regular priest or minister of the United Greek Catholic Church, whom the proper authorities of that church may appoint as pastor of the said church and congregation, and that the defendants pay the costs incurred, neither party, however, to file any costs for the attendance of witnesses.</p> <p>Error assigned was the decree of the court.</p>

<p>Lunacy—Traverse of inquisition—Persons aggrieved,"—-Act of May 8, 1874, P. L. 122.</p> <p>The right to traverse an inquisition of lunacy which is confined to “ persons aggrieved ” by the terms of the Act of May 8, 1874, P. L. 122, Purd. D. 1272, pi. 16, includes only persons related to the lunatic by blood or marriage, and persons having an interest in his estate. A person having a right of action against the lunatic for a tort, has no right to traverse the inquisition.</p> <p>Proceedings in lunacy are not conclusive upon strangers, and the fact of lunacy is no defense in an action for the recovery of compensatory damages for a tort in which wrongful or malicious intent is not an essential element. .</p>

<p>Negligence—Railroads—Grade crossings—“ Stop, look, listen"—Questions of fact—Conflict of testimony.</p> <p>In an action against a railroad company to recover damages for personal injuries, where there is conflicting testimony as to whether the plaintiff in approaching a grade crossing in a country district, stopped, looked and listened at a point about fifteen feet from the crossing, and there is also a conflict in the testimony as to whether any signal was given by the train as it approached the crossing, and where the charge of the court was adequate, fully referring to the facts of the case and entirely correct in its legal aspects, submitting to the jury fairly the two questions of fact of the negligence of the defendant and the contributory negligence of the plaintiff, the verdict of the jury on these two questions of fact is obligatory upon the court and should not be disturbed.</p> <p>Trial— Charge—Points.</p> <p>The court is not bound to permit words to be put into the charge by points so drawn by counsel as to make them the words of the court, where they are in fact the words of counsel drawing the points, and especially when there are woven into the points thus prepared facts and conclusions not justified by the testimony.</p>

Appeal, No. 79, Jan. T., 1900, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1895, No. 680, on verdict for defendant in case of Commonwealth to use of S. F. Shelly v. William Walter, Sheriff, and John S. Oberrender et al. Assumpsit upon sheriff’s official bond. Before Lynch, J. At the trial it appeared that on May 31, 1894, the sheriff levied upon a stationary engine and boiler and other property situate at the culm bank of the Reynolds Coal Company.

Appeal, No. 95, Jan. T., 1900, by plaintiff, from order of C. P. Luzerne Co., June T., 1889, No. 107, refusing to take off nonsuit in case of the Lauer Brewing Company v. Robert P. Riley, Andrew Crossen, now represented by his executor, James P. Gorman and John Carr. Assumpsit upon a bond.

<p> Will—Construction—Next of kin. </p> <p>Testator devised his estate to his executor mostly for the benefit of his only child, a son. He then directed as follows: “ At the death of my said son, all my estate will go to and immediately become vested in his lawful children, then living, and the issue of any that may be dead, such issue to take their parent’s share by representation, and in ease he shall die leaving no children or issue as aforesaid, then all my estate shall go to and immediately become vested in my next of kin, then living, share and share alike, including issue born to my brother B. and his second wife.” By another clause in the will he directed his executor to transfer to his sister M. a note of M.’s son, and further directed that “ this shall be considered as the only share she is to have out of my estate.” Testator’s son died shortly after testator, intestate and without issue. At the time of testator’s death his sister M. was living, and also numerous nephews and nieces of deceased brothers and sisters, and also grandnephews and grandnieces. Held, that the sister M. was excluded from participation in the residue of the estate and that the estate should be distributed to his nephews and nieces living at the death of the son, to the exclusion of grandnephews and grandnieces.</p>

<p> Will—Construction—Next of kin—Exclusion. </p> <p>Where testator directs that a note of his sister’s son shall be given to his sister, and that “ this shall be considered as the only share she is to have out of my estate,” the sister is excluded notwithstanding the fact that testator directs that if his only child shall die leaving no children or issue, all his estate should go to and immediately become vested in his next of ldn then living, and she is his next of kin.</p>

Motion of appellee for a nonsuit. S. C. January T., No. 420. The motion was as follows: The appellee, by his attorney, W. F. Sadler, respectfully moves the court for a nonsuit in this case, under Rule 39, for the reason that the paper-book of the appellant is not prepared as prescribed by the rules of court. Of thirty-three findings of fact by the auditor, but sixteen have been printed by the appellant.

Appeal, No. 388, Jan. T., 1898, by plaintiff, from judgment of C. P. No. 4, Pliila. Co., Sept. T., 1896, No. 167, on verdict for defendant, in case of Ellen C. Corbin, mother and surviving parent of William S. Corbin, deceased, v. City of Philadelphia. Trespass for death of plaintiff’s son. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

<p> Negligence—Master and servant—Defect in building. </p> <p>The dangers incident to a business itself are assumed by the employees when they enter upon their work; but danger from an opening in the floor or other defects in the building are incident to the place where the business is conducted, and should be guarded against by the employer.</p> <p>In factories or other institutions in which numbers of working people of all ages and capacities of intelligence are assembled, the duty obviously rests on the employer of seeing that the structure where the operators are assembled and the machinery prepared for their use are fit for the work.</p> <p>In an action by a girl employed in a factory against her employer to recover damages for personal injuries, the case is for the jury where the evidence shows that the defendants permitted the girls in the room where plaintiff worked to hang their coffee bottles on a steam pipe in the corner of the room ; that plaintiff while hanging a bottle on a pipe, broke through the floor, and was injured; that when defendants leased the premises there was an opening in the floor at the place where plaintiff was injured about two feet square which at their request was closed; that this opening was closed by placing over it boards without any support or joists ; that more than a year before the accident another employee had broken through the boards; that the opening had then been again closed by a board which looked like a packing box lid; and that plaintiff: had no knowledge of the prior accident.</p>

<p>Appeal, No. 351, Jan. T., 1899, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1899, No. 760, on answer to interrogatories in case of Importers and Traders National Bank of New York v. J. Harry Lyons, defendant, and Samuel Simpson, individually, and trading as Samuel Simpson & Co., garnishee and appellant.</p> <p>Attachment execution.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment against the garnishee.</p>

Appeal, No. 132, Jan. T., 1899, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1897, No. 305, on verdict for plaintiff, in case of Peter Coleman v. Pennsylvania Railroad Company. Trespass for personal injuries.

Appeal, No. 224, Jan. T., 1899, by-defendant, from judgment of C. P. Lycoming Co., March T., 1895, No. 510, on verdict for plaintiff, in case of Phoebe Koch v. City of Williamsport. Trespass for personal injuries. Before Mayer, P. J., specially presiding. At the trial it appeared that plaintiff was injured on the night of July 4, 1895. At the time of the accident she was riding in a conveyance in the city of Williamsport.

<p>Appeal, No. 300, Jan. T., 1900, by plaintiff, from order of C. P. Clinton Có., Sept. T.,1896, No. 127, dismissing appeal from award of arbitrators and refusing to take off nonsuit, in case of Erick L. Peterson v. Pennsylvania Railroad Company and William Couvert and E. K. Bauer.</p> <p>Trespass for personal injuries.</p> <p>From the record it appeared that after the case had been placed at issue the defendants obtained a rule of reference which resulted in an award of $1,650 against the Pennsylvania Railroad Company and a finding’ of no cause of action as to the other two defendants, Couvert and Bauer. It appeared that Couvert was a locomotive engineer, and Bauer was one of a crew engaged in shifting cars in a yard where plaintiff was engaged as a carpenter in repairing a car. The averments of the statement were in effect that the accident was caused by the negligence of Couvert and Bauer and other employees of the railroad company.</p> <p>The Pennsylvania Railroad Company appealed from the award of arbitrators paying all the costs including the defendant’s costs. Instructions were given to the protlionotary that such payment was not intended to relieve plaintiff from payment of costs if he should appeal from the award. Subsequently plaintiff appealed from the award, but refused to pay defendant’s bill of costs. A rule was afterwards taken to strike off the plaintiff’s appeal as to Couvert and Bauer, and on November 18, 1898, this rule was made absolute.</p> <p>The case came on for trial, and resulted in a nonsuit. Before the motion made for nonsuit, plaintiff asked leave to file an amendment to his statement setting forth that the cause of the accident was the fact that the railroad company had not provided proper signals to give notice that cars were about to be run in the yard and had not placed a sufficient number of men on the train which caused the accident to maintain and control it. The court refused to allow the amendment and subsequently overruled a motion to take off the compulsory nonsuit.</p> <p>Errors assigned were (1) in striking off the appeal as to Couvert and Bauer; (2) in refusing amendment; (3) in refusing to take off nonsuit.</p>

Appeal, No. 319, «lan. T., 1899, by defendants, from order of C. P. Lycoming Co., June T., 1899, No. 142, discharging rule to open judgment, in case of Patrick Cosgrove v. Charles J. Cummings et al. Rule to open judgment. From the record it appeared that on August 11,1897, Patrick Cosgrove brought suit against Charles J. Cummings, John Heilman and Ella R. Cummings. Subsequently the pleadings were so amended that Charles J. Cummings was made sole defendant.

<p>Appeal, No. 368, Jan. T., 1899, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1897, No. 14, on verdict for defendant, in case of John Foreman v. Pennsylvania Railroad Company.</p> <p>Trespass for personal injuries. Before Bailey, P. J.</p> <p>At the trial it appeared that plaintiff was a postal clerk in the employ of the United States post office department, and that on February 22,1897, the train on which he was traveling in the performance of his duties left the main track on account of a switch which had been negligently left open by a brakeman, and ran into a siding and collided with a loaded car. The plaintiff was permanently injured.</p> <p>Plaintiff presented among others the following points:</p> <p>1. The plaintiff was a postal clerk, and if the jury believe he was not employed in railroad work, or work which railroad employees were required to do, he was a passenger, and does not come under the head of quasi employees, and does not come under the act of 1868. Answer: Refused. [1]</p> <p>2. It was the duty of the defendant to provide proper appliances, suitable machinery, and implements for the use of their employees, and if the jury believe the signal at the switch was in ordinary use by the defendant company, and that its use where the accident occurred, would have prevented the accident, and that the defendant was negligent in not providing a suitable signal at the switch at the point where the accident occurred, the plaintiff is entitled to recover, if they believe he has been injured. Answer: Refused. [2]</p> <p>The court charged in part as follows:</p> <p>[The absence of signals was presumably well known to all employed upon it, and especially to those in charge of this train as they passed over the road daily for a long time before the accident, and it does not appear that a complaint was ever made to the company of the absence of signals or a suggestion that they ought to be placed at the switches. The plaintiff himself passed over the road almost daily for more than a year, and must have noticed the absence of signals. He made no request that the switches be supplied with them. We are therefore obliged to instruct you that the plaintiff cannot recover and that your verdict must be for the defendant.] [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2, 4) above instructions, quoting them.</p>

<p>Motion for the allowance of an appeal from tbe Superior to the Supreme Court. Superior Court, October Term, 1899, No. 148.</p>

<p>Appeal, No. 240, Jan. T., 1897, by defendants, from judgment of C. P. Luzerne Co., ITeb. T., 1897, No. 101, on quo warranto, in case of I). A. Fell, Jr., District Attorney, v. Thomas J. Gilligan et al., School Controllers of the Pitts-ton City School District.</p> <p>Quo warranto to determine the title to office of school controllers of the city of Pittston.</p> <p>From the record it appeared that the board of school controllers of the city of Pittston, consisted of two members from each of the eleven wards of the city, and was elected under section 41 of the Act of May 23, 1874, and the supplemental act of June 16, 1891. The plaintiff claimed that these acts were uneoustituti onal.</p> <p>The court entered judgment of ouster.</p> <p>■ Error assigned was the judgment of the court.</p>

Appeal, No. 17, Jan. T., 1900, by plaintiff, from order of C. P. Erie Co., May T., 1899, No. 56, dismissing petition for mandamus in case of School District of the City of Erie v. Clinton B. Smith et al., Commissioners for the County of Erie. Petition for mandamus to compel the county commissioners to furnish plaintiff with the annual county assessment.

<p>Appeal, No. 131, Jan. T., 1898, by defendants, from judgment of C. P. Lackawanna Co., Jan. T., 1898, No. 105, on quo warranto, in case of Com. ex rel. John R. Jones, District Attorney, v. George H. Shires et al.</p> <p>Quo warranto to determine title to office of school controllers of the city of Scranton.</p>

Appeal, No. 39, Jan. T., 1900, by plaintiff:, from order of C. P. Lackawanna Co., Nov. T., 1899, No. 351, discharging rule for mandamus, in case of Commonwealth ex rel. Washburn, Williams & Co. v. Esdras Howell, Controller of the City of Scranton. Rule for mandamus. From the record it appeared that the board of controllers of the school district of the city of Scranton had drawn a warrant in favor of Washburn, Williams & Company upon the treasurer of the school district.

<p>Appeal, No. 350, Jan. T., 1899, by William J. McAuliffe, guardian of John Joseph Clark, from decree of Superior Court, Oct. T., 1898, No. 8, affirming a decree of the Orphans’ Court of Phila. Co., Jan. Term, 1895, No. 154, in the estate of John Joseph Clark, a minor.</p> <p>Appeal from Superior Court. See 10 Pa. Superior Ct. 423.</p> <p>From the record it appeared that the guardian claimed credit for the sum of $12.00 paid to the City Trust Safe Deposit & Surety Company for becoming his surety upon the bond which he was required by law to give as guardian. The orphans’ court disallowed the claim, and the decree of the orphans’ court was sustained by the Superior Court.</p> <p>Error assigned was the’ decree of the court.</p>

Appeal, No. 357, Jan. T., 1899, by plaintiffs, from judgment of C. P. Centre Co., April T., 1895, No. 425, on verdict for plaintiffs in case of David Rothrock, Admr., d. b. n. c. t. a. of Plenry Rothrock, deceased; for the use of David Rothrock, John Rothrock, Thomas Rothrock and Anna R. Long v. Henry Rothrock, Jr., with notice to John Woods, George Garbrick, Sallie J. Kelley, William Kelley and George Kelley, terro-tenants. Scire facias sur mortgage.

<p>Appeal, No. 214, Jan. T., 1899, by plaintiffs, from decree of C. P. Centre Co., Aug. T., 1895, No. 64, dismissing bill in equity in case of E. J. Frost and George W. Fairer, Executors of A. 0. Moore, deceased, v. Louisa Bush.</p> <p>Bill in equity to enforce a resulting trust.</p> <p>The facts appear by the opinion of Alchbald, P. J., specially presiding, which was as follows:</p> <p>BINDINGS OE EACT.</p> <p>1. Daniel G. Bush in his lifetime was a resident of Bellefonte, Centre county, Pennsylvania, and the owner of several valuable pieces of real estate there. One of them, the Bush House, consisted of a large four-story brick hotel with storerooms and places of business under it, and a brick stable and outbuildings in the rear, altogether of the value at the time of his death of $35,000 to $40,000. Another, know as Bush’s arcade, was a three-story brick building, comprising a business block on the principal street of the borough and consisting of seven storerooms together with a large number of offices and private rooms, the land alone being worth about $12,000, and the building some $10,000 more. The occasion for separating these values will appear later. The third piece was also a business property upon the same street and consisted of a three-story brick building known as the McClain block of the value of $10,000; and the fourth was a brick residence on Spring street of the value with the land on which it was situated of $3,000. Notwithstanding this large amount of property, Mr. Bush at the time of his death was insolvent and his estate when settled paid but ten per cent of his general indebtedness, but this does not fairly represent the ratio of his property to his indebtedness but was due to the fact that his real estate just mentioned was sold soon after his death at sheriff’s sale.</p> <p>2. One of the principal items of Mr. Bush’s indebtedness was a loan of $30,000 from the “ Philadelphia Contribution-ship for the Insurance of Houses,” secured by a mortgage dated June 7,1879, and duly recorded, which covered the four pieces of property described above and being those in dispute between the parties. This debt was still further secured by insurance. policies on the several buildings assigned to the company, those on the Bush arcade which figure specially in the case, amounting to $10,400. ■</p> <p>3. Another large item of indebtedness was that due to A. C. Moore. Mr. Bush, with three others, had gone bail for the Beaver Mills Company, and default having been made the sureties were called upon to meet the obligation. Suit was brought by Mr. Moore to enforce it in the United States circuit court for the western district of Pennsylvania, to September term, 1872, against Bush, Blanchard, Armstrong and Taylor, the sureties, and judgment was recovered September 13,1880, for $16,602.72. This judgment was the next lien after that of the mortgage to the contributionship company and was revived from time to time and the lien continued and preserved down to September 26, 1891, when judgment was' entered for $22,957, the amount of the debt and accrued interest.</p> <p>4. On September 23, 1886, D. G. Bush died, having previously made his will in which, after directing the payment of his debts and funeral expenses, he devised the residue of his estate, real, personal and mixed, to his widow, Louisa Bush, the defendant, and to his children, to each the share which he or she would be entitled to under the intestate laws of this commonwealth. He also appointed Mrs. Bush his executrix and a few days after her husband’s death she proved the will and took out# letters.</p> <p>5. On January 9, 1887, three months and a half after Mr. Bush’s death, the building on the arcade property was destroyed by fire, in consequence of which on January 19, ten days later, the contributionship company, the holder of the mortgage, resolved to call in the loan after applying the insurance money in reduction of it, and so notified Mrs. Bush, the executrix. On receiving this notice Mrs. Bush was very much distressed, and upon consultation with her attorney, Judge Love, he advised her to go and see Jacob Tome, a distant relative of hers and a man of great wealth, and see whether he would not take up the mortgage. She did this and Mr. Tome agreed to take it and thereupon on the application of Mrs. Bush the contributionship company, on February 18, 1887, assigned the mortgage and transferred the arcade policies together with $2,100 of insurance money already collected thereon, to Mr. Tome, he paying them the sum of $30,700, the debt and interest due. Judge Love assisted as counsel in affecting the transfer and his expenses to Philadelphia for the purpose were paid by Mrs. Bush out of the funds of the estate in her hands.</p> <p>6. Two months later, on April 13,1887, Mrs. Bush, as executrix, confessed judgment in an amicable seire facias on the mortgage in favor of Jacob Tome, the holder, for $31,585, being tbe debt and interest due on the face of the mortgage, $30,966 and two per cent attorney’s commission, $619. On the same day a lev. fa. was issued and the mortgaged property was advertised for sale by the sheriff April 25, some twelve days later. On the latter date it was put up for sale aud struck off to Judge Love as attorney for Jacob Tome, at a bid of $26,000 which was satisfied by him in the name of Mr. Tome as a first lien creditor by receipting on tbe judgment tbe amount of the bid less $178.95, tbe costs of sale, the amount applied upon the judgment in this way being $25,821.05.</p> <p>7. On April 27, 1887, the sheriff of Centre county duly executed and acknowledged iu open court a deed hi pursuance of the sale to Jacob Tome for the land covered by the mortgage; and on May 16, following, Mr. Tome executed and delivered to the defendant Louisa Bush a deed in fee for the same land, she at the same time executing a mortgage for $30,000 in return, payable in four years with interest semi-annually. The consideration named in the deed from Mr. Tome was $40,000 but this was a mistake, tbe real consideration being $30,000, the full amount for which the return mortgage was given. The deed and mortgage were recorded together August 6,1887. After Mrs. Bush had obtained title to tbe property in tbis way Mr. Tome, for the purpose of assisting her to rebuild that which had been burned down, loaned ber an additional $15,000 which was secured by a second mortgage on all the property conveyed to her. With this and other money of her own she rebuilt the arcade building.</p> <p>8. After receipting upon his judgment the sum of $25,821.05 the proceeds of the sheriff’s sale, Mr. Tome applied the insurance money in his hands, $10,400, to the satisfaction of the unpaid balance, and on May 1, 1887, turned over the rest of it, $4,478.23, to Mrs. Busb as executrix, who later accounted for it in ber final account filed November 25, 1891. This money was subsequently distributed to creditors and $2,492.90 of it was paid to Mr. Moore upon his judgment debt.</p> <p>9. The purchase of the mortgage in question by Jacob Tome was made at the instance of Mrs. Bush for the manifest purpose of having it in friendly hands and relieving her from the immediate pressure of a threatened foreclosure by the contributionship company. The estate of her husband was hopelessly insolvent and she had no means or resources as executrix with which to work off the indebtedness or relieve the estate from its embarrassment or save the real' estate from an ultimate sale, notwithstanding the value of the real estate, some $60,000 to $65,000, the liens against it, including the Moore judgment and others presently to be referred to, amounted to about $53,000 or $54,000, or, crediting the insurance money on the mortgage, say $43,000, leaving no. great margin of salvage in case of a forced sale such as was bound to follow. All these circumstances must be taken into consideration in judging of the conduct of the parties now called in question.</p> <p>10. In bringing the mortgaged property to a sale, becoming the purchaser of it, and subsequently conveying it to Mrs. Bush, the purpose of Mr. Tome was to let Mrs. Bush, his relative, have the benefit of whatever value there might be in the property over and above what he had to give for it and this no doubt was also Mrs. Bush’s expectation; but that there was any attempt, so far as Mr. Tome was concerned, to hinder, delay or defraud any of the creditors of D. Gr. Bush, I cannot find. He held the mortgage from February 18 until April 23, nearly two months, before doing anything upon it; the amicable action and confession of judgment to which Mrs. Bush as executrix agreed was no more than he could have obtained had a scire facias issued and adversary proceedings been had, and there would have been more costs made; the sale by the sheriff was after the recognized advertisement of ten days under the old statute of 1705; it was at a regular sales day and was openly and fairly conducted in the presence of a large concourse of people; Judge Love, as attorney for Mr. Tome, was instructed by him before the sale if anyone bid a fair price for any of the properties to let it go, and the pieces were accordingly put up separately and substantial bids made upon each; after the bidding had reached a certain point in this way the bids were lumped together and the property put up as a whole and after still further bidding was struck off to Judge Love at $26,000, a large price under the circumstances, and one nearly sufficient to satisfy the mortgage. I cannot from any or all of this draw an inference of fraud.</p> <p>11.- So far, however, as Mrs. Bush is concerned the case is different. About ton days before the lev. fa. was issued Judge Love had a conversation with W. M. Walker, sheriff of the county, in which he stated that the property was to be sold and wanted to know what poundage he would take. Sheriff Walker was himself a creditor of D. Gr. Bush, having a judgment of $900 of the date of September 7,1886, and upon this inquiry expressed his surprise that the estate was in such shape. Judge Love stated that the sale was simply for the purpose of changing the title and would go at a nominal figure; that Mr. Bush with a party of other gentlemen had gone on a bond in the circuit court and had been left in the lurch. Sheriff Walker then spoke of his own judgment and Judge Love told him that Mrs. Bush would give her individual obligation for that and for the judgment of Jonathan Harper, another creditor, so that neither of them would be interested in the sale. The question of poundage was not disposed of at that time but later on upon similar representations the sheriff agreed to take $125. A few days before the sale Sheriff Walker, Mr. Harper and his attorney, Mr. C. M. Bower, met Mrs. Bush at Judge Love’s office, and she there gave them her individual obligation for their claims. It was again stated at that time that the sale was for the purpose of avoiding some claims that were pending in the United States circuit court in which Mr. Bush with Mr. Armstrong and Mr. Blanchard had been bail for the Beaver Mills Company, and which it was considered were not entitled to the same protection as the claims of homo creditors; and the purpose given for paying off the judgments of Sheriff Walker and Mr. Harper was so that they would not be interested to bid at the sale, although there was no agreement that they should not do so. The matter referred to in this conversation as pending in the United States court was the claim of A. C. Moore. The facts so found are sworn to both by Sheriff Walker and Mr. Bower in such detail that I cannot escape finding them. There is no evidence however that Mr. Tome personally knew of the purchase of these judgments by Mrs. Bush or the purpose of it, and he took no p art himself in either.</p> <p>12. A. C. Moore of whom mention has been made, was a resident in his lifetime of Norfolk, in the state of Virginia, where he died in January, 1892, leaving a will and appointing E. J. Frost and George W. Fairer, the plaintiffs, as his executors. He had business interests, however, in Williamsport, Pennsylvainia and resided there at one time, and he was frequently there in that connection. Soon after the sheriff’s sale Judge Love as attorney for Mrs. Bush, met him in the city at the Park House, and endeavored to effect a compromise of his claim offering him $2,500 to settle. He also met him a'second time at the same place soon afterwards, on the 16th or 17th of May, 1887, in the same endeavor. On each occasion Mr. Moore was informed that the sale had taken place and of the purchase of the property by Mr. Tomé and of the insolvent condition of the Bush estate, but he refused to accept the offers made him.</p> <p>13. There is no evidence that Mr. Moore actually knew of the purchase of the property by Mrs. Bush nor of the intent and endeavor on her part by means of the sheriff’s sale to cut off his -judgment, but he might with reasonable diligence have known of it at any time within six months or a year thereafter if not immediately. He had direct notice of the sheriff’s sale which divested the title of D. G. Bush within a month after it took place, and the fact that notwithstanding it Mrs. Bush continued in possession of the property, rebuilding the part of it which had been burned down was, of sufficient significance to put him on- inquiry as to how she held it; her deed from Mr. Tome was recorded August 6, following, which was further notice of her claim; and as a creditor of D. G. Bush who was dead and whose estate under the law might be settled at any time within a year, in the reasonable prosecution of his claim against it, he was called upon to look into the condition of the estate and particularly the disposition of the great bulk of it such as had taken place ; and there is nothing to suggest that the facts on which the plaintiffs rely were not as readily discoverable immediately after the transaction as they are now.</p> <p>14. In April, 1894, the plaintiffs as executors of A. G. Moore, deceased, under ancillary letters granted by the register of wills of Lycoming county, issued a fi. fa. on his judgment in the United States circuit court, a levy was made on the land in dispute, an inquisition held, and a marshal’s sale subsequently made July 17, 1894, at which the plaintiffs became the purchasers. A marshal’s deed was duly executed and delivered to them in pursuance of the sale October 12, following. At the sale notice was given on behalf of Mrs. Bush that she was the owner of the property.</p> <p>15. On May 4, 1895, the present bill was filed. This was more than five years after the time when with a reasonable diligence A. C. Moore in his lifetime or the plaintiffs as his executors after his death could have discovered the fraud which is now set up to affect the legal title of the defendant.</p> <p>CONCLUSIONS OB' LAW.</p> <p>The law applicable to the foregoing facts is as follows:</p> <p>1. As stated at the head of this report the purpose of the bill is to impress upon the legal title a trust in favor of the plaintiffs as to the land in dispute. It recognizes the legal title as well vested in the defendant by virtue of the sheriff’s sale to Jacob Tome and the sale conveyance by him to the defendant, but asserts that that title is affected with a trust in favor of the estate of A. C. Moore by reason of the defendant’s fraud. See Silliman v. Haas, 151 Pa. 52. ®</p> <p>2. The court has jurisdiction in equity of a bill of this character on the ground both of the trust and the fraud, although an action of ejectment would also lie.</p> <p>8. The trust on which the plaintiffs rely was not an express but a resulting trust arising ex maleficio by reason of the alleged fraud.</p> <p>4. There, was nothing to prevent Jacob Tome if he so desired from becoming the owner of the mortgage held by the contributionship company, the mortgagees, foreclosing it, purchasing the property and reselling it to Mrs. Bush, giving her the whole benefit of it if he chose, provided it was done without any collusion or fraud. But he was affected with knowlledge of any fraud or want of good faith on the part of Mrs. Bush through the knowledge of Judge Love who was his agent, as well as the agent of Mrs. Bush, in the transaction.</p> <p>5. In her capacity as executrix Mrs. Bush was called upon to manage for the best interest of creditors and others concerned so long as there was any chance to do so. But when there was no wa_y of averting a.foreclosure of the mortgage and a sale of the property she had the right to look to her own protection as widow and devisee. There was nothing to preclude her, therefore, by reason of her position as executrix from becoming a purchaser either through herself or another at the sheriff’s sale of the property in dispute provided the sale was not brought about by her procurement and her purchase was made without effort or intent to defraud creditors or others interested.</p> <p>6. Mrs. Bush had the right to purchase the judgments of Sheriff Walker and Jonathan Harper even though it might have the effect of removing these parties from the number of probable bidders at the coming sheriff’s sale, and this could not of itself be set up to affect the validity of the sale unless the purchase was made with a fraudulent purpose. But having been made with the avowed intention of cutting off the judgment of A. C. Moore and having that practical effect, it was a fraud upon him and a resulting trust accrued in his favor in consequence.</p> <p>7. The declarations of Judge Love as to the purpose of the sheriff’s sale are not as against Jacob Tome to be taken as evidence that such was Mr. Tome’s purpose, and are only evidence of it as against Mrs. Bush because they were repeated in her presence. But as already stated Mr. Tome was affected with notice of Mrs. Bush’s purpose and is chargeable with connivance in it, because of the knowledge of Judge Love who was his agent also in the transaction.</p> <p>8. By the 6th section of the Act of April 22, 1856, P. L. 532, “No right of entry shall accrue or action ba maintained .... to enforce any implied or resulting trust as to realty, but within five years after .... such .... trust accrued .... unless such .... trust shall have been acknowledged by writing to subsist by the party to be charged therewith within the same period; provided that as to anyone affected with a trust by reason of his fraud, the said limitation shall begin to run only from the discovery thereof, or when with reasonable diligence the party defrauded might have discovered the same.”</p> <p>9. The act so quoted is a statute of repose and not of limitation, and as such does not have to be specially pleaded, but advantage may be had of it at any time.</p> <p>10. More than five years having elapsed since A. C. Moore, the party defrauded, in his lifetime, and the plaintiffs, his executors, after his death, could with reasonable diligence have discovered the said fraud, the trust resulting therefrom is barred by the statute and the present bill to enforce it cannot be maintained.</p> <p>11. The bill should be dismissed with costs.</p> <p>On exceptions the court filed an opinion which was in part as follows:</p> <p>The real question in the case and the vital one in my view of it is entirely aside from this and is involved in the finding that Mr. Moore with reasonable diligence could have discovered the fraud perpetrated upon him within six months or a year after the sheriff’s sale; and that he in his lifetime, or his executors upon his death, were bound to bring the present bill within the period of five years thereafter. I do not see that much can be profitably added to the arguments heretofore advanced for that position. It is said that “ whatever is notice enough to excite attention and to put the party on his guard and call for an inquiry, is also notice of everything to which it is afterwards found that such inquiry might have led: ” Swift v. Smith, 49 U. S. App. 181. In my judgment there was abundance here to put Mr. Moore upon his inquiry. If there was not I do not know what would. He knew of the sheriff’s sale right after it occurred and could not fail to notice Mrs. Bush’s continued possession notwithstanding it. Her acts of ownership which followed were open and positive. She rebuilt the arcade and leased and collected the rents of the other property. Had there been no foreclosure preceding this, or had Mr. Moore, notwithstanding its public character, had no actual knowledge of it, her acts might have been equivocal and inconclusive, but in the face of the sale they could not be. That sale in effect divested her husband’s title and transferred it to Mr. Tome. How then was she there, was a natural inquiry, and to any one who expected to challenge her title, a necessary one. Had it been made it could not have failed to lead at once to all that has now been disclosed. Her deed was” on record; her possession was open and notorious; it was not in the line of her duties as executrix, which the sheriff’s sale had brought to an end. By that sale the judgment of Mr. Moore was divested of its lien, and within six months after it, the year which the executrix had in which to make her first settlement of the estate expired. All these circumstances combine to establish that Mr. Moore as a creditor and a lien creditor at that, in the exercise of reasonable diligence in following up the collection of his judgment debt, was bound to look into the question of Mrs. Bush’s continued possession ; and had this line of inquiry been pursued there could have been but one result.</p> <p>In Norris v. Haggin, 136 U. S. 386, the plaintiff filed a bill to charge the defendants who were at one time his attorneys with having fraudulently procured from him while mentally incapacitated a mortgage on valuable property which they subsequently foreclosed. He regained his mental faculties in 1869 and consulted an attorney at that time with regard to the case but did not file his bill until 1884 some fifteen years later. In dismissing the bill it was held that as the facts which constituted the alleged fraud were open and could not fail to have been discovered by any sort of inquiry or investigation, as soon as the plaintiff was mentally competent, there was no room for the suggestion that they were only discovered a year or two before suit brought. “ The acts which constituted the fraud as alleged in the bill,” says Miller, J., “were open and public acts. The note and the mortgage were recorded in the proper public office of the proper county. The possession of defendants was obtained by judicial proceedings which were open to everybody’s examination and which were probably known to the entire community.” There was, it is true, the superadded circumstance that the plaintiffs by consulting counsel in 1869 must have known at that time of the intent of the defendant to hold the property adversely, but the other facts alluded to, many of which are suggestive of the case in hand, are also considered of significance as the quotation from the opinion shows. In Scranton Gas & Water Company v. Lackawanna Iron & Coal Company, 167 Pa. 136, an action was brought for water alleged to have been surreptitiously taken in excess of that allowed by an existing contract extending through a period of some ten years. In response to the plea of the statute as to all over six years, the plaintiffs set up that they did not know of the, taking, but it was held that this under the circumstances could not avail them. “What an owner might know if he was personally present by himself or his employees on the surface of his possessions,” says Williams, J., “ho is bound to knowunless his attention is diverted by the fraudulent artifices of the wrongdoer. Silence or concealment will not prevent the running of the statute: Sankey v. McElovey, 104 Pa. 265. The question in any given case is not what did the plaintiff know of the injury done him, but what might he have known by the use of the means of information within his reach with the vigilance the law requires of him.” While this decision may not be strictly in line with the present question it borders on it as does the other cited, and shows to what extent the_ courts will enforce the doctrine that the means of knowledge and the duty of inquiry amount to notice of all that either would have revealed.</p> <p>These observations cover all that there seems to be any occasion to discuss. The exceptions are numerous but they,are principally directed to the two questions which have been touched upon. The new point made that the amicable scire facias and the levari facias which followed it contained no description of the premises and that the sheriff’s sale inconsequence conveyed no title, is readily disposed of. This is not the forum in which to inquire into the legality of the sale, and just as soon as the plaintiffs seek to turn the case into a trial of titles by such a suggestion, they put themselves out of court.</p> <p>This case came on to be heard upon exceptions to the findings of fact and conclusions of law heretofore made from the evidence; and thereupon on due consideration thereof and of the arguments of counsel the exceptions are overruled; and it is thereupon ordered, adjudged and decreed that the bill of complaint be dismissed and that the plaintiffs pay the costs.</p> <p>Error assigned among others was decree dismissing bill.</p>

<p>Insurance—Life insurance—Identity of dead body—Province of jury—• Evidence.</p> <p>In an action against a life insurance company whore the only question at issue is the identity of a dead body with that of the insured, the ease is for the jury where both parents of the insured declare an absolute identity of the dead body with the person of their son; the coroner identifies it from photographic pictures taken in life and well authenticated, and the absence of teeth in the jaws of the skeleton head correspond with the vacant spaces in the jaws of the deceased.</p> <p> Insurance—Life insurance—Proof of death. </p> <p>Proof of death is sufficient where a claim is duly made to the insurance company within the proper time, in which the death of the insured by murder is alleged as having occurred at a specific time.</p>

<p>Appeal, No. 431, Jan. T., 1899, by plaintiff, from judgment of C. P. Blair Co., June T., 1897, No. 59, on verdict for defendant, in case of Keziab Elder v. R. A. Hamilton and Teutonia Building & Loan Association.</p> <p>Ejectment for a tract of land in- the city Altoona. Before Bell, P. J.</p> <p>At the trial it appeared that on September 17, 1894, plaintiff executed and acknowledged a deed for the land in suit to the board of church extension of the United Presbyterian Church of North America. On May 7, 1894, the board of church extensions conveyed the land to R. A. Hamilton. On January 23, 1895, Hamilton executed a mortgage of the land to H. H. Stone for $2,000. On January 31, 1895, Hamilton executed a second mortgage of the land to the Teutonia Building & Loan Association for $600. All of these deeds and mortgages were duly recorded. In 1897, Stone entered judgment upon the bond accompanying Ms mortgage, and at the ensuing sheriff’s sale, the Teutonia Buildmg & Loan Association bought in the land.</p> <p>The plaintiff offered to prove by her own testimony that she is the wife of Thomas Elder and the grantor in the deed offered in evidence by the defendant to the board of church extension of the United Presbyterian Church of North America and was the owner in her own right of the property therein described and for a .part of wMch this suit is brought; that said deed was not signed by her voluntarily and of her own free will and accord but that she was ooerced, compelled and threatened into signmg the same by her husband, Thomas Elder, who threatened to kill her if she did not sign the deed; that R. A. Hamilton acted as agent for the board of church extension of the United Presbyterian Church of North America, and D. Clare Good, Esq., acted as attorney. Both of these parties were fully aware of the witness’s reluctance to signing the deed, and frequently importuned her for that purpose, and threatened to bring suit against her husband and herself unless she signed and delivered the deed; that under the combined influence of her husband and these people she consented to sign the deed, but expressly told them at the time that she was signing the same, that it was not of her own free will and that she did not want to sign the deed; that when she appeared before the notary public to acknowledge the same, he asked her, “ Is this your deed ? ” She replied, “ This is the deed I signed, but I was forced to sign it. It wasn’t my deed.” Thomas Elder, her husband, was present, standing by, within sight and hearing. D. Clare Good, the attorney, and R. A. Hamilton aforesaid were also within hearing, as was also Edmund Shaw, Esq., her own attorney; they were all fully aware that she was forced and coerced into signing and acknowledging the deed by their intimidation and the threats of the husband.</p> <p>This evidence is to be corroborated by other witnesses, to be followed by proof that the mortgagee, Harry Stone, had knowledge of these facts, and further, that the defendant in this case, who purchased at the sale of said mortgage, also had notice of this defense-prior to said purchase.</p> <p>Mr. Dively: The offer on the part of the plaintiff to prove that the officer who took the acknowledgment of Mrs. Elder did not examine her separate and apart from her husband is objected to as irrelevant and incompetent for the reason that the act of the officer is a judicial act, and oral testimony cannot contradict the testimony of a notary public as against the bona fide purchaser without notice; an offer can only be contradicted as against a purchaser who was consenting to the fraud or duress.</p> <p>The Court: The objection is sustained. [1]</p> <p>Mr. Dively offered mortgage book, volume 45, page 650, mortgage from R. A. Hamilton to the Teutonia Loan and Building Association, made January 1,1895, penal sum, $1,200, real debt $600, recorded on February 2,1895, in the recorder’s office, etc.</p> <p>Objected to at this time for the following reasons;</p> <p>1. It ought to have been put in evidence, if relevant, as part of the defendant’s case.</p> <p>2. This mortgage is irrelevant in these proceedings; it is a second mortgage and the defendant did not claim title to this property under this mortgage, but on the contrary claimed title to the property under the mortgage given to Harry Stone by R. A. Hamilton, and upon which the sale was made ; it is therefore objected to as being irrelevant.</p> <p>The Court: The objection is overruled and an exception noted for the plaintiff’s counsel and bill sealed. [2]</p> <p>The Court: As to the first objection to the offer of the mortgage in question, it may be sufficient to say that that is a matter within the discretion of the court as to the order in which the proof is offered. And as to the opening up of the defendants’ case, the circumstances under which the defendants’ case was opened up are about as follows: After the defendants had closed their testimony, the plaintiff made an offer of evidence which is on record, and the defendants made an objection to said offer of the plaintiff, wherein it was set out that the second mortgagees of R. A. Hamilton were entitled to the benefit of the recording act as to such second mortgagees. Counsel for the plaintiff, at the time, denied the existence of such a second mortgage ; and I myself suggested that it was not in evidence yet, and it might be erroneous for the court to rule on the effect of the second mortgage, as it was not in evidence ; and upon the counsel for the defendant, stating that theré was such a second mortgage, I allowed the defendants to open up their testimony and let it in, so that the court could rule squarely on the legal question presented. And in allowing this second mortgage to be admitted in evidence, I said to the attorneys for the plaintiff that they could amend their offer, if they desired to offer proof that the Teutonia Building and Loan Association, before they took the second mortgage, had notice of the alleged illegal acknowledgment of Mrs. Elder’s deed ; but the counsel for the plaintiff said they had no proof that the Teutonia Building and Loan Association had any notice of the illegal acknowledgment, before giving tins order. So much for my ruling on the admission of this second mortgage of R. A. Hamilton to the Teutonia Building and Loan Association, out of order.</p> <p>Then we come to consider the plaintiff’s offer of proof. Assuming that the plaintiff can prove what the offer contains —and in this ruling we are bound to assume that they can prove it—and the case would stand this way; Mrs. Elder executed a deed to the Presbyterian board which, as to her, was void because of the illegal acknowledgment, and was void as regards all persons who had notice of the defective or illegal acknowledgment. Now we must assume, in accordance with the terms of the offer, that R A. Hamilton, the grantee of the Presbyterian board, had notice. We must likewise assume that H. H. Stone, the first mortgagee, had notice. And as to Hamilton and Stone, Mrs. Elder could object to her own deed, but after Stone had placed his mortgage on record, to wit: after February 2, 1895, the Teutonia Building and Loan Association put the second mortgage on record. If they had no notice of any irregularity or illegality by Mrs. Elder, as to them, her deed to the Presbyterian board is a good deed, because they have put their mortgage on record, and there is a chain of paper title on record on which they have relied. Then an execution is issued on the Stone first mortgage, and the Teutonia Building and Loan Association, the second mortgagee to protect their second mortgage, buy in the property for the sum of $2,600, as shown by the execution No. 65, March term, 1897, offered in evidence. The sheriff appropriates this amount to pay off the Stone mortgage in full and only appropriates the balance of $51.74 to the Teutonia Building and Loan Association. Now if we assume as we must in the ruling that the Teutonia Building and Loan Association had no notice prior to their purchase at the sheriff’s sale, of the illegality or irregularity in the acknowledgment of the deed by Mrs. Elder to the Presbyterian board, it seems to me that being the second mortgagee, they are protected by the recording act. I am inclined to think—although I am by no means positive on that point and subsequent reflection may cause me to change my mind—but I am inclined to think that under such circumstances the Teutonia Building and Loan- Association, having loaned their money on the faith of a recorded paper title without notice when they loaned their money and put their mortgage on record, are protected by the recording act to a certain extent; that the law would not compel them to lose the money which they paid on the Stone mortgage. Even if they had notice prior to such payment that there was some illegality in the Stone mortgage, or even if they had notice that the Stone mortgage was void, I am inclined to think, although I am by no means positive about it and may change my mind on that point, but I am pretty well satisfied that the law would not allow the second mortgagees now in possession to be put out of possession on ejectment by Mrs. Elder, under the circumstances as the offer shows them to exist. The mortgagee has a rig'ht to the possession of the mortgaged premises, and the mortgagee being in the possession of the mortgaged premises was entitled to pos-' session of the same till the mortgagor paid off the debt and then he would have to surrender them, and the same rule would apply to the predecessor in title of the mortgagor.</p> <p>Now, assuming everything to be proven that is offered to be proven in the offer of testimony made by the plaintiff’s counsel here, we have the case of a mortgagee, to wit: the Teutonia Building and Loan Association, in possession and the predecessor in title of the mortgagor bringing a suit in ejectment against the Teutonia Building and Loan Association. What would equity dictate under the circumstances ? Would it not dictate that before Mrs. Elder could put the Teutonia Building and Loan Association out of possession, she must tender to the Teutonia Building and Loan Association the amount of money which, in good faith, the defendants, without any notice or any complaint on her part, invested in this mortgage ?</p> <p>Now, there is no allegation that she has made any such tender, and, until she does make such a tender, I am inclined to think, or to put it stronger, I do think, that the defendants can remain in possession as mortgagees in possession. If we carry out the argument of the plaintiff’s counsel to its legitimate effect, the second mortgage of the Teutonia Building and Loan Association was not divested by that sale, because, to carry out the argument of the plaintiff’s counsel to its logical effect, 'that was a void sale, conveying no title. And if it was a void sale, it could not divest the second mortgage,' and the only effect it would have, if the first mortgage was void, would be to make the second mortgage a first mortgage.</p> <p>Mrs. Elder could have prevented this contingency, if her deed was fraudulently obtained from her, by promptly bringing a bill in equity for the cancellation of the deed which she made to the Presbyterian board; and when that bill in equity was once filed it would be notice to the world; and if she saw fit not to do so and run the risk of her grantee mortgaging the property, it does not lie in her mouth to complain as to this illegal acknowledgment until she pays off, or tenders payment of the mortgage which was given in good faith without notice.</p> <p>It seems to me that Mrs. Elder should tender to this Teutonia Building and Loan Association the money which they advanced without notice of her complaint as to the title, before she can bring suit.</p> <p>The offer of the plaintiff is, therefore, rejected and a bill is sealed for the plaintiff.</p> <p>The second mortgage, that of R. A. Hamilton to the Teutonia Building and Loan Association, is admitted and a bill sealed for the plaintiff.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) ruling on evidence, quoting the bill of exceptions; (3) in giving binding instructions for defendant.</p>

<p>Appeal, No. 82, Jan. T., 1900, by</p> <p>defendants, from decree of C. P. Blair Co., Equity Docket “ B,” No. 822, on bill in equity, in case of Tyrone Gas & Water Company v. Borough of Tyrone et al., Councilmen.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of Bell, P. J., which was as follows:</p> <p>FINDINGS OF FACT.</p> <p>The plaintiff water company was chartered" by act of assembly of March 10, 1865, P. L. appendix 1866, page 1147. Said act gave said company “ the exclusive right to provide, erect and maintain all works and machinery necessary, or proper, for making and introducing into the borough of Tyrone a sufficient supply of gas, and raising and introducing a sufficient supply of good and wholesome water from the Sinking Run, or some other convenient source.”</p> <p>The defendant borough was incorporated July 27, 1857, under the‘Act of April 8, 1851, P. L. 1851, page 320, entitled “ An act regulating boroughs,” and generally known as the general borough act. Up to, and prior to 1869, or 1870, said borough had taken no steps to supply itself and its citizens with water. About January 1, 1870, the plaintiff water company did introduce water into said borough by laying pipes through the street. Formal consent so to do was not asked from, or given by, said borough, but said borough proceeded to avail itself of the water so introduced for fire protection, and caused fire plugs to be attached to said water pipes, the said water company providing “ tees ” for same at such points as the borough authorities indicated. The borough seems to have paid the water company the yearly rate of $2.00 •for each of said plugs from the start. Just how such rate was fixed at the outset, does not appear, but the minutes of a meeting of the borough councils, held July 25, 1875, show the following : Motion of Mr. Conrad that $2.00 per annum for each fire plug to be paid the gas and water company for use of water was agreed to.</p> <p>As the inhabitants of the borough increased, and as said borough widened its borders, the water company increased its facilities to accommodate the increase in population and territory, by enlarging its pipes and extending same into new streets. The minutes of the borough council show that such extensions were requested in several instances, and on one occasion (May 6, 1889), when the water company had refused to extend after “repeated efforts,” the light and water committee was instructed to confer with the solicitor to learn what could be done in the matter. Councils seemed to have been moved to so act because “ the people in that section of the town ” claimed that they did “ not have proper fire protection,” and threatened to “ refuse to pay light and water tax if this protection is not given.” As said borough increased in population and territory, said water company likewise placed additional “ tees ” in their water pipes, for additional fire plugs, at points indicated by the borough authorities.</p> <p>The Act of April 16, 1875, P. L. 1875, page 55, authorized boroughs, after first submitting the question to a popular vote, to levy and collect an annual tax to be exclusively expended “ for the purpose of purchasing, erecting and maintaining such fire plugs and • hydrants, .... as may be required to supply the said boroughs with a sufficient supply of water'for the ex-tinguishment of fires, cleansing the streets, and other public purposes, .... and defraying the expenses in making all necessary attachments to gas and water mains.” The language of the act, as well as the proviso at its end, shows that it was only to apply to boroughs which were to be supplied by water companies.</p> <p>The borough of Tyrone availed itself of this act and annually thereafter, until 1899, levied and collected a “ gas and water tax.” A portion of the money so raised was paid to the plaintiff water company for water for fire protection and other public purposes. All of the tax expended for water was so applied.</p> <p>In the latter part of 1895 or 1896, said water company expended a large sum of money in enlarging its plant. A large new reservoir higher up Sinking run was built and enlarged mains laid therefrom.</p> <p>On September 1, 1898, said water company duly accepted the provisions of the constitution of this commonwealth and the provisions of an act, entitled “ An act to provide for the incorporation and regulation of certain corporations,” approved April 29, 1874, and the supplements thereto. Iú 1896 the capital -stock of the water company was increased from $20,000 to $100,000, and the indebtedness was increased from $25,000 to $60,000. It is probable, although there is no-affirmative evidence, that a part of such increase was necessitated by the expensive improvements mentioned in the preceding paragraph.</p> <p>After said improvements were made, the supply of water was reasonably ample for the needs of Tyrone. During the greater part of the year it was ample and it was only in times of drouth that the company had to enforce any'regulations against the wasteful use of water.</p> <p>In January, 1899, the plaintiff water company sought to raise the rate to be paid by the borough for fire protection. The borough councils deemed the advanced rate to be exorbitant. This controversy about such rate resulted in the water company turning the water off of some six fire plugs in the business portion of Tyrone.' The borough councils turned on the water in said plugs and placed a policeman over them to prevent the water company from interfering with them. I attach but little importance to this controversy as affecting the legal question now for decision. If it be urged on the part of defendants that such action indicated a purpose on the part of the water company to sever any contract relation which existed with the borough, it can be likewise urged, with equal force, on behalf of plaintiffs, that the occurrence demonstrated the fact that the water company had been giving the borough fire protection, and that the borough was dependent on the water company for such fire protection. If the rate, proposed to be charged, was exorbitant, the borough could have invoked the aid of this court to determine what was a reasonable rate, under the provisions of clause 7, section 34 of the Act of April 29, 1874, P. L. 1874, page 93, which provides “ that the charges shall be decreased as to the court may seem just and equitable,” in cases of disputes as to “ charges ” by water companies for “ water so furnished.” Shortly after said dispute had thus culminated in the water company attempting to turn off water from fire plugs, and the borough keeping it on by the display of force, the borough councils, by the passage of the ordinances referred to in plaintiffs’ bill, undertook to supply itself and its citizens with water from a new plant to be erected and owned by the municipality. Plaintiffs then brought this action to restrain the municipality from so doing. These are all the facts deemed necessary to be found in order to arrive at a just decision of the legal questions involved. Some of these facts are likewise found, perhaps in some instances more specfically and in detail, in the answers to plaintiffs’ and defendants’ requests for findings of facts, which said requests and our findings, are herewith filed and made a part of this opinion.</p> <p>LEGAL DISCUSSION.</p> <p>Counsel for the defendants cite, and rely on, Lehigh Water Company’s Appeal, 102 Pa. 515. If the dicta of Mr. Justice Paxson in that case were now the legal doctrine governing similar cases, judgment most probably would have to be entered for defendants. Judge Paxson, in that case (102 Pa. 528), said:</p> <p>“The third ground of objection is wholly without merit. By constructing waterworks of its own the borough will not destroy the franchises of the plaintiff company. It may impair their value, and probably will do so, but of this the company have no legal cause of complaint. The granting of a new charter to a new corporation may sometimes render valueless the franchises of an existing corporation; but unless the state, by contract, has precluded itself from such new grant, the incidental injury can constitute no obstacle.”</p> <p>But iii White v. City of Meadville, 177 Pa. 643, the Supreme Court, in effect, decide that the above cited remarks of Judge Paxson are mere dicta, and confine the authority of said case of Lehigh Water Company’s Appeal to the questions therein specifically decided.</p> <p>That the trend of judicial decision is now turned in a somewhat different direction, from the course mapped out in said case of Lehigh Water Company’s Appeal, can readily be seen by comparing the remarks of Mr. Justice Dean in White v. City of Meadville, supra, with the hereinbefore recited utterances of Judge Paxson.</p> <p>Judge Dean shows that municipalities have no inherent right to erect waterworks. That by legislation they, are authorized to procure water for public purposes in two methods, either by erecting their own plant, or by contracting with a water company. When they have adopted the one method they have provisionally exhausted their power, and can only conditionally resort to the other method. As to the mischief and injustice which would result from a contrary ruling he says (177 Pa. 651) :</p> <p>“ Here then, plainly, were two distinct methods by which the municipality could supply its citizens with water; by putting either method in operation, the same end was accomplished, that is the supplying of the citizens with water; there is no repugnancy in the provisions of the two acts, on the assumption that one, or the other alone will be adopted to effect the purpose; there will be a decided repugnancy in their operation, if both be put to work at the same time to effect that purpose. If anything be manifest, it is, that if two water mains be laid side by side in the same street, equally accessible to the householder on each side, conveying double the quantity needed, with double sets of hydrants, pumping stations, offices, salaries and expenses, one or the other must be abandoned. No community will pay double for any article of necessity or luxury. If the property owner must, by compulsory taxation, support the municipal system, he will not voluntarily support the private corporation system; such a conflict of interests will inevitably bankrupt the system which depends on the voluntary patronage of the public. We hesitate to assume, every court is bound to hesitate long before assuming, the legislature intends, by grants to distinct corporations for public purposes, there shall arise such conflict in the exercise of the franchises as will result in the practical destruction of property of any citizen without compensation.”</p> <p>Again (177 Pa. 653) :</p> <p>“ A municipality, in its beginnings, is perhaps not financially strong, or its debt may approach the constitutional limit so closely that it cannot borrow; nevertheless, the low state of its financial condition does not render less urgent the necessity of a water supply; it can obtain it in but one way, by contract with those who have the money and are willing to invest their private capital in the construction of waterworks; the legislature knew capital would not be invested in such an enterprise if in the future it were liable to confiscation by competition with a public enterprise operated from a municipal treasury, capable of replenishment from the pocket of the taxpayer. That fact suggested clause 7 of the corporation act; the municipality will not be forever poor; the time will come when it will be of financial ability to own and operate its own works; the very fact of having a supply of water on an investment of private capital has tended to stimulate its growth, and to largely appreciate the value of taxable property.”</p> <p>Judge Dean then proceeds to point out that the municipality can purchase the plant of the water company by paying a reasonable price therefor; that the right to so purchase is provided for by the legislature, and the method of determining what is a reasonable price is within the supervision of the court. After distinguishing the case of Lehigh Water Company’s Appeal, supra, he virtually overrules the kindred case of Howard’s Appeal, Millvale Borough, 162 Pa. 374. As to said last mentioned case he says:</p> <p>“It was a mistake. We are now glad of the opportunity of correction, especially so, because the example of Millvale borough seems to have misled other municipal corporations to adopt the same course of action. Luzerne Water Company v. Toby Creek Water Company, 148 Pa. 568, also cited by defend-, ants was a controversy between two rival companies, and the power of the municipality did not come in question.”</p> <p>The case of Centre Hall Water Co. v. Centre Hall Borough, 186 Pa. 74, cited by counsel for defendants, is not in conflict with White v. City of Meadville, from which the foregoing quotations were made, but is clearly distinguishable. In the Centre Hall case,, the water company never had any exclusive privileges, but sought to obtain same by accepting the new constitution after the borough began work on a municipal plant. At no time during the incorporation of the borough was any fire protection afforded and the water companies’ pipes were too small to afford adequate protection, even had fire plugs been attached. There was no pretense of a contract express or implied. Metzger v. The Borough of Beaver Falls, 178 Pa. 1, and Wilson v. Rochester Borough, 180 Pa. 509, are kindred cases to White v. City of Meadville, supra.</p> <p>Of all the cases cited by counsel, Gas & Water Company v. Borough of Downingtown, 175 Pa. 341, in its facts is the nearest akin to the present case. In that case, as in this one, the respective borough was chartered under the general borough law; the respective water company had an exclusive franchise. The Downingtown Water Company accepted 'the provision of article 16 of the constitution; the Tyrone Water Company accepted the provisions of the constitution and also of the corporation act of 1874. The borough of Downingtown, claiming that by so doing the water company had lost its exclusive franchise, undertook to build a municipal water plant. The Supreme Court restrained the borough from so doing, Mr. Justice Fell in his opinion, saying:</p> <p>“ At the time of the passage of the act ” (the act incorporating the water company) “ the borough had failed to exercise the power conferred upon it to establish waterworks. The borough was a mere agency of the state for governmental purposes; its charter was not a contract within the protection of the prohibition against laws impairing the obligation of contracts, and it had no vested rights to its powers and franchises. The agency was revocable: City of Erie v. Erie Canal Co., 59 Pa. 174; Philadelphia v. Fox, 64 Pa. 169. The legislature had the power to take away the right of the borough to construct waterworks and confer it upon another. Its power over the subject-matter was absolute, and it exercised it by creating a corporation and conferring upon it the power which it had previously conferred upon the borough. It thus created a new agency and conferred upon it privileges which were in terms exclusive of all other agencies. The water company accepted the grant of power which the borough had failed to execute, together with its privileges, and made expenditures and completed its works. The exclusive privilege was the inducement for the expenditure of money in the construction and operation of the works. The purpose was to protect the company and to secure it the exclusive enjoyment of its franchises, not for all time and against all parties, for the borough could at any time ele'ct, under legislation, to which the charter was expressly made subject, to purchase the works. . . . The grant of an exclusive privilege to the water company is expressed in words that are clear and unequivocal. If we look beyond the words of the act, it is manifest that the object in making the privilege exclusive was to induce the expenditure of capital for the needed work by securing the company from the ruinous effect of competition. It could not have been expected to do this by excluding private competition, which there is little reason to anticipate, and leaving it exposed to the only competition which it had reason to fear, that of the borough.”</p> <p>Counsel for defendants sought to distinguish said Downing-town Borough case from the present, inasmuch as the Downingtowu Water Company only accepted article 16 of the constitution, whereas the Tyrone Water Company accepted the entire constitution, as well as the provisions of the corporation act of April 29, 1874, and its supplements. This, say counsel, put the Tyrone Water Company on the same footing with water companies chartered after the adoption of the constitution. Clause 3, section 34, of said Act of April 29, 1874, P. L. 1874, p. 94, did give gas and water companies an ex-elusive privilege, subject, however, to the right of the municipality to purchase, but it is argued that such exclusive franchise, so far as regards water companies, was abrogated by the Act of June 2, 1887, P. L. 1887, p. 812, which act is a supplement to said corporation act of April 29, 1874. Hence, say counsel, there ceased to be any legislation giving water companies thereafter any exclusive franchises. When, in 1893, the Tyrone Water Company accepted the provisions of the constitution and the said legislation, it was put on the same footing as if it had been chartered in 1893, and lost its exclusive franchises. Luzerne Water Company v. Toby Creek Water Company, 148 Pa. 569, is cited in support of this legal proposition. In this case, the opinion of Judge Rice (then president judge of Luzerne county) was affirmed by the Supreme Court in a per curiam opinion. With all due deference to Judge Rice, I respectfully submit that his said opinion lacks the convincing force with which he usually clinches his judicial reasoning. The title to said act of June 2, 1887, to my mind is misleading. But waiving this question, and, assuming that said case is authority on the precise question it does decide, it must be remembered that Mr. Justice Dean, in White v. The City of Meadville, supra, intimates that the doctrine of said case of Luzerne Water Company v. Toby Creek Water Company, is to be confined to private corporations, not municipalities. Moreover, there was no question of equities in said case; both corporations were chartered after the passage of the act of 1887 (opinion of Judge Rice, 148 Pa. 570) ; neither had any superior equity; the corporators of each knew when they invested their money, or ought to have known, that such investment was not' made on the faith of an exclusive privilege.</p> <p>But it seems to me a different question arises in the case of a corporation, chartered prior to said act of April 29, 1874, and accepting the provisions of the constitution after- the enactment of said act of June 2,1887.</p> <p>Section 26, Act of April 29, 1874, Purd. Dig. 413, sec. 38, provides as follows: “ Any corporation or corporations for any of the purposes named and covered by the provisions of this act, heretofore created by any special act, or acts, or in existence under the provisions of any general law of this commonwealth, shall be entitled to all the privileges, immunities, franchises and powers conferred by tins act upon corporations to be created under the same, upon filing in the office of the secretary of the commonwealth, a certificate .... accepting the provisions of the constitution and of the act. . . .</p> <p>The argument of counsel for plaintiffs, that said act, just recited, required no surrender of privileges, therefore no privileges were lost, does not strike me as being of sufficient force to sustain their contention. Iuforentially, at least, there was to be a surrender of old privileges, as a consideration for the obtaining of the new. The reasoning of Judge Reeder in Wallace v. Lehigh Water Co., 1 Northampton County Reports, 117, on this point, seems to be satisfactory. One object of said act doubtless was to obtain uniformity, as respects corporations of the same class; all old corporations were to be as if chartered immediately after the passage of said act of April 29, 1874; this would put all corporations in existence at that time, on an equal footing. But, to go a step further, as counsel for defendants seek to do, and hold that after the passage of the amendment of June 2, 1887, corporations chartered prior to April 29,1874, could only accept the new constitution at the expense of the surrender of their exclusive privileges in to to, would tend not to uniformity, but to diversity in two ways; first, such old corporations would not, knowing this fact, accept the constitution; second, if they did there would be an incongruity in the rights of corporations which existed prior to the passage of said amendment of June 2, 1887; and the older corporations would be at a disadvantage, as compared with those chartered between April 29, 1874, and June 2,1887. The water companies chartered between said two dates had an exclusive franchise (Act of April 29, 1874, P. L. 1874, sec. 34, p. 93 ; Purd. Dig. p. 955, sec. 4) subject to the right of the municipality to purchase (Purd. Dig. p. 955, sec. 8) ; said corporations certainly were under the protection of the proviso in section 10, article 16, of the constitution, requiring that “ no injustice shall be done to the corporation ” by legislation altering, or annulling charters. But to adopt the contention of defendant’s counsel is to deny to the Tyrone Water Company, chartered in 1867, and going into business in 1870, a privilege, namely, said constitutional protection, which a water company chartered on April 30, 1874, enjoys. This would not be uniformity, but diversity, and the junior company would have the advantage of the senior.</p> <p>It might be allowable to go a step further and treat said amendment of June 2,1887, as unconstitutional, as respects all water companies in existence prior to its passage ; first because said amendment as to such old companies amounted to confiscation without compensation and violated the spirit of the decision of the United States Supreme Court in Dartmouth College v. Woodward, 4 Wheaton, 712; second, because all of said old companies are within the protection of the Pennsylvania constitutional provision requiring that “ no injustice shall be done to the corporators.” But I prefer to put my ruling on the (to my mind) safer, surer, and more conservative ground that the legislative intent, in the passage of said acceptance section of the act of April 29, 1874, was to put all old corporations accepting the constitution on a par with corporations chartered immediately after its passage, say on April 30, 1874. This construction tends to carry out the legislative purpose—namely, uniformity as to the rights, privileges, and obligations of.corporations of the same class—as of the same date of charter, and protects the rights of the corporation, while it renders it amenable to the corporation act of April 29, 1874.</p> <p>In this connection, it will be observed that the new charter, issued by the governor to the water company, made no mention of the water company being subject to any supplements ; it only, by its terms, mentions the act of-April 29, 1874, without specifying that the corporation is subject to said act and its supplements. This indicates that the commonwealth, speaking through its governor, attached but little importance to said supplements.</p> <p>Most certainly the Tyrone Water Company when it accepted the provisions of the constitution of this commonwealth, and the provision of an act entitled “ An act to provide for the incorporation and regulation of certain corporations,” approved April 29, A. D., 1874, and the supplements thereto, did not mean to give away its birthright for a mess of potage. It thereby subjected itself to the general legislation governing water companies; it thereby rendered itself amenable to legislative control; it thereby, in effect, said its chartered rights should be no greater than those of a water company chartered on April 30, 1874. But did it intend that its said chartered rights should be less than those of said last named company ? It accepted the constitution in the same sentence by which it rendered itself amenable to legislation, and did not such acceptance bring it within the protection of the consitution which prohibits virtual confiscation without compensation ? Pennsylvania Railroad Gompany v. Duncan, 111 Pa. 353 and Pennsylvania Railroad Company v. Miller, 132 U. S. 75 (the Filbert Street cases) do not conflict with this conclusion just indicated. The decision of said cases turned rather on the right of the legislature to alter a remedy; that such alteration is not unconstitutional is held in numerous cases.</p> <p>LEGAL CONCLUSIONS.</p> <p>When the Tyrone Water Company, plaintiff, on September 1, 1893, accepted the provision of the constitution and of the act of April 29, 1874, and its supplement, it put itself on a par with like water companies chartered immediately subsequent to the passage of said act. It lost its exclusive franchise granted it by its charter, but it gained, in lieu thereof, the exclusive privilege given to water companies by clause 3, section 34, of said Act of April 29, 1874, P. L. 1874, p. 94. But, at the same time it rendered itself amenable to clause 7, of the same section of the same act, which provides a method whereby municipalities can purchase the plants of water companies. Said acceptance of the constitution, moreover, brought said Tyrone Water Company within both the scope and the protection of section 10, article 16 of the constitution which is as follows:</p> <p>“ The general assembly shall have the power to alter, revoke, or annul any charter, of incorporation now existing, and revocable at the adoption of this constitution, or any that may hereafter be created, whenever in their opinion, it may be injurious to the citizens of this commonwealth, in such manner, however, that no injustice shall be done to the corporators.”</p> <p>This conclusion works no injustice to either the water company or the borough. When the water company was incorporated, it took the charter subject to the provisions of the constitutional amendment of 1857, which reads as follows:</p> <p>“The legislature shall have the power to alter, revoke or annul any charter, of incorporation hereafter conferred by, or under any special, or general law, whenever in their opinion it may be injurious to the citizens of the commonwealth; in such manner, however, that no injustice shall be done the corpora-tors.”</p> <p>The water company then ought not to be heard to complain of the legislation of 1874 (hereinbefore referred to), allowing the borough to purchase, since, from its very inception, it was subject to such legislation. On the other hand, the borough has no true ground for fault finding, since, by the fundamental law of the land, the constitution itself, the confiscation of franchises without compensation to the corporators, is prohibited. And the remarks of Judge Dean, in White v. City of Meadville, 177 Pa. 643, and Judge Fell in Downingtown Gas & Water Company v. The Borough of Downingtown, 175 Pa. 341 (hereinbefore cited) are convincing to the effect that the construction of a municipal water plant, in competition to a water company’s plant already occupying the same ground, and supplying the same nee'ds, is a virtual confiscation, without compensation, of the property of the latter company. The borough of Tyrone, therefore, has no right to construct a municipal water plant; if said borough desires to own its own waterworks, it must buy out the water company, in accordance with the provisions of said hereinbefore recited clause 7, section 34, act of April 29,1874, P. L. 1874, p. 95.</p> <p>The same legal conclusion is arrived at by following out the legal reasoning of Mr. Justice Dean in White v. Meadville, supra, and in Carlisle Gas, etc., Company v. Carlisle Water Company, 188 Pa. 51, and of Mr. Justice Fell in the Downingtown Water Company case, supra. In all of said cases it is held that boroughs have nd inherent vested rights to construct waterworks; their power so to do depends on legislation. In said Carlisle Water Company case, Mr. Justice Dean, after referring to White v. Meadville, and kindred cases, sums up the matter thus:</p> <p>“ In all these cases we held that by the present legislation on the subject, a municipality was authorized to adopt one of two methods to supply itself with water. 1. It could construct and operate its own works by municipal taxation; or, 2. It could contract with a private corporation to construct works and to supply the municipality with water.” j</p> <p>“We further held that it could not adopt both methods and have them in operation at the same time ; the selection of one was necessarily, under the law, a final rejection of the other as long as the first continued the supply according to law.”</p> <p>The facts in this case show that the borough of Tyrone adopted the method of obtaining a supply from the plaintiffs’ water company ; this precludes them from the other method, construction of municipal works, except provisionally by purchasing the water company’s plant. True, there was no express contract as in the case of White v. Meadville, supra, but there was an implied contract, and the Downingtown water case, supra, is persuasive, at least, that an implied contract is as binding as an express one. The Tyrone Water Company supplied fire protection to the borough, when the credit of that municipality was so low that it could only market its bonds at ninety cents on the dollar to provide the wherewithal to purchase fire plugs. Then as the borough increased in population and territory, the water company likewise increased its plant to supply the increased needs, and extended its pipes to give additional fire protection. True, plaintiffs can only show two or three specific requests by the borough authorities for such increase of plant, or extension of pipes. But, the action of the borough in levying a water tax under the provisions of the Act of April 16,1875, P. L. 1875, p. 55, is persuasive, at least of such contract, and also that the borough had adopted the method of supplying itself with water through the medium of a water company. And did not the acceptance of such facilities, extended and made possible, by the water company, amount to an implied contract? Would it not be inequitable to allow the borough, in its comparative strength, to repudiate the implied contract? Would it not now be especially and peculiarly inequitable to allow the borough now to so repudiate the water company since said company, as late as 1896, with the knowledge of the borough and without any protest or warning from the municipal authorities, expended large sums of money in enlarging its plant, so as to meet the wants of the growing town of Tyrone ? And the borough is not prejudiced by making it pay a reasonable price for the water company’s plant. It would have to expend large sums of money to duplicate said works, and then the result would be that, by building a municipal plant, the value of the private plant would be destroyed; it would be useless destruction of property without adequate compensation from any standpoint you view the transaction. It is no answer to aver that the water company asks an unreasonable price for its plant. Under the legislation hereinbefore cited, the matter of a reasonable price is within the control of the court, and such court would endeavor to see that no injustice was done to the borough in case of a purchase, just as an effort is now made to prevent the borough disregarding the just rights of the water company.</p> <p>There is no allegation, much less proof, that the water company failed to provide a reasonable adequate supply of water, both for fire protection and to supply the citizens. The only allegation is that, when the water company and the borough authorities disagreed as to the yearly rate for fire protection, the water company turned off the water from some six fire plugs. Grant that this was a wrongful act on the part of the water company, the borough authorities, under the proviso to clause 8 section 34, Act of April 29, 1874, P. L. 1874, 94, had ample means of redress through the courts. The water company had no desire to cease furnishing the borough with water; it was only an effort on its part to show that it “ meant business,” to use a slang term. The boi’ough authorities, in turn, by their actions indicated a purpose on their part neither to pay the advanced rate, nor to dispense with the much needed water supply.</p> <p>And the very fact that the borough authorities forcibly turned on the water again and kept it on by show of force, to my mind, demonstrates, beyond question, that the borough was dependent on the water company for fire protection, and had been so for years. When the water company undertook to use the plant, as if it were private property, the borough authorities said, in effect, “No, you cannot do that; the public needs fire protection, and such fire protection it must have from your plant; your works are public property, and we will not permit you to do with them as you please.” Does not this indicate, at least, an implied contract on the part of the borough of Tyrone to accept its water supply from the plaintiff water company ?</p> <p>DECREE.</p> <p>On December 28, 1899, this cause came on for final hearing, testimony was taken and the matter was argued by counsel. And now, January 24,1900, after due consideration, the injunction- heretofore granted is hereby made perpetual, the borough of Tyrone, defendant, to pay the costs.</p> <p>Same day exception noted for defendants.</p> <p>Error assigned was the decree making injunction perpetual.</p>

Appeal, No. 86, Jan. T., 1900, by Hale M. Arm'itage, from decree of O. G. Huntingdon Co., Dec. T., 1899, Nos. 284, 285, overruling exceptions to auditor’s report, in the estate of John Armitage. Exceptions to auditor’s report. The facts appear by the report of J. F. Sehock, Esq., auditor, which was as follows: John Armitage made his will, dated November 17, 1856, and died before the 2d day of May, 1857, his said will having been proven on that day.

<p> Payment—Receipt—Evidence. </p> <p>A mere informal receipt although stated to be “ in full ” is not conclusive, but is susceptible of explanation.</p> <p>Payment—Discharge—■ Accord and satisfaction.</p> <p>Payment of part of a debt due without a release under seal although received in full satisfaction, will not discharge the debt.</p> <p>A solicitor of a building association which had agreed to lend money to a person to pay a debt to another building association gave the borrower a check to the order of the second association “ in full” of claims against the borrower. The amount represented by the check was less than half of the amount of the debt. The borrower was given the check and he handed it to the secretary of the association to whom he was indebted, the secretary receiving the check without noticing that it was in full of all claims. The solicitor of the first association taking the borrower’s statement as correct that the other association had been paid in full, permitted his own association to take a mortgage without ascertaining whether the mortgage of the other association had been satisfied. There was no evidence of an agreement by any one in behalf of the association to whom the borrower was first indebted to accept the partial payment as a full payment of the debt. On a subsequent sale of the boi'rower’s land the fund realized was not sufficient to pay both mortgages. Held, that the first mortgage should be paid in full before anything should be paid on account of the second.</p>

Appeal, No. 275, Jau. T., 1899, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1894, No. 264, on verdict for defendant, in case of A. S. Myers v. William P. Litts. Trespass to recover damages for the alleged wrongful removal and sale of stock and farming implements.

<p> Negligence—Master and servant—Laundry. </p> <p>A woman of full age cannot sustain a judgment and verdict in her favor against her employer for damages for an injury to her hand received while working at a mangle in a laundry, where the evidence shows that she worked at the mangle three or four days before she was injured, that before she did any work she received proper instructions, and that the only thing to be guarded against was lack of care and attention on her part.</p> <p> Negligence—Master and servant—•Machinery. </p> <p>In an action by an employee against an employer to recover damages for personal injuries sustained at a mangle in a laundry, the charge that the machine was unsuitable and unsafe cannot be maintained by mere evidence that at times it jerked or jarred, without any evidence that the jerking-or jarring of the mangle had any relation to plaintiff’s injury.</p> <p>The absence of a guard on the mangle was not a defect where there was no evidence to show that a guard would have added to its safety, or that guards were in ordinary use on such machines at the time of the plaintiff’s injury.</p> <p>Whatever is according to the general, usual and ordinary course adopted by those in the same business, is reasonably safe within the meaning of the law. The test is negligence and negligence cannot be imputed from the employment of machinery in general use.</p> <p> Negligence—Master and servant—Presumption of negligence. </p> <p>As between employer and employee the mere happening of an accident from which negligence could be inferred raises no presumption of negligence against the employer. A specific act of negligence must be shown.</p> <p> Negligence—Master and servant—Defective machine—Promise to repair. </p> <p>In the absence of proof of defects which added to the danger of the operation of a machine, a promise by the employer to fix it, imposes no liability upon him.</p>

<p>Appeal, No. 5, Jan. T., 1900, by Mary L. Schieffelin, Executrix of Edward Schieffelin, deceased, from order of C. P. No. 1, Phila. Co., June T., 1891, No. 873, dismissing exceptions to auditor’s report, in case of Advance Beneficial Order v. Penn Safe Deposit & Trust Company and Josiah R. Adams.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, Charles N. Mann, Esq., reported as follows:</p> <p>There were two corporations, both known by the name of the Penn Safe Deposit and Trust Company, and both affiliated with the Spring Garden National Bank. The first was incorporated under the name of the Penn Safe Deposit, Trust and Insurance Company by a special act of assembly, approved April 3, 1872, appendix to P. L. 1873, page 1067, and will hereafter be designated as the old trust company, to contradistinguish it from the trust company whose funds are before the court for distribution, and which will hereinafter be designated as the new trust company.</p> <p>Prior to May, 1889, the old trust company’s name was changed to that of the Penn Safe Deposit and Trust Company. Its capital was $100,000, and in May, 1889, all its stock was owned by the Spring Garden National Bank. It liad at one time owned part of the real estate upon which the bank building was erected and had constructed at a cost of less than $40,000 eight safe deposit vaults therein. By virtue of sundry resolutions of the board of directors, the value of these vaults was increased to $100,000, and in May, 1889, were carried at that value on its books. This trust company conveyed its real estate together with the vaults, to the National bank in fee, but entered into an agreement with the National bank providing for the use of the vaults by the trust company, except so much thereof as the National bank should require for its own use, which was one of the eight vaults. With this state of facts in existence, Lewis E. Pfeiffer, on behalf of himself and his associates, entered into negotiations with the officials of the Spring Garden National bank to purchase the charter of this trust company, and offered $10,000 for it, which was accepted, whereupon the following agreement was executed:</p> <p>“ Memorandum of agreement made this 21st day of May, 1889, between Francis W. Kennedy of the first part, and Lewis E. Pfeiffer of the second part, witnesseth that the said party of the first part agrees to sell and deliver to the said party of the sec- ■ ond part all of the capital stock of a corporation known as the Penn Safe Deposit and Trust Company, incorporated under the name of the Penn Safe Deposit, Trust and Insurance Company by act of assembly approved April 8, 1872; said stock to be sold and transferred without any dividends for the price or sum of $10,000; that with the transfer of said stock the original minute book and stock certificate book, and a sworn copy of the ledger account up to January 1, 1874, shall be delivered to the party of the second part, and all other books and papers of the said corporation shall be placed on special deposit with the Spring Garden National Bank, subject to inspection by the party of the second part, his heirs, executors, administrators or assigns whenever it may be necessary to protect him or them from any liability of the present corporation; and the said Francis Kennedy further agrees to save harmless the party of the second part, his heirs, executors, administrators or assigns from any liability of the present corporation. No assets of the corporation shall be transferred to the party of the second part, but only the full number of the shares of stock, so as to vest in the party of the second part all of the franchises of the said corporation. And in consideration of the said transfer the said party of the second part agrees to pay the party of the first part the sum of $10,000 on the 21st day of May, 1889.”</p> <p>In pursuance of this agreement, Mr. Pfeiffer paid to the-Spring Garden National Bank the $10,000, and the National bank transferred to him and his associates all the stock of the trust company.</p> <p>By decree of the court of common pleas, No. 3, for the county of Philadelphia., No. 763, of June term, 1889, made September 16, 1889, the name of the old trust company was changed to that of the “Philadelphia Finance Company.”</p> <p>It will be observed that the agreement between Mr. Kennedy and Mr. Pfeiffer of May 21,1889, among other things, provided that “ no assets of the corporation shall be transferred to the party of the second part, but only the full number of the shares of stock, so as to vest in the party of the second part all the franchises of the said corporation.” Under this reservation the assets of the old trust company were conveyed to Robert C. Thomas in trust “ for the same uses and purposes as the said assets were held and enjoyed by the said Penn Safe Deposit and Trust Company. And on the further trust to reconvey and assign all of said assets to a corporation to be created, of which corporation the corporators are to be Charles F. Heaton, Frank Brenton, Edgar A. Leslie, William M. Taylor and George W. Scouler, whether known by said name of Penn Safe Deposit and Trust Company or by whatever name they may adopt, to be held by this said new corporation precisely as said assets are now held by the present corporation known as the Penn Safe Deposit and Trust Company, of which H. G. Sickel is president.” The above conveyance is dated May 21, 1889.</p> <p>It was originally intended that the new corporation provided for under the foregoing trust should be capitalized at $100,000, and the stock subscribed for by the Spring Garden National Bank. Mr. Kennedy was advised, however, that to obtain the benefit of the provisions of the Act of May 9, 1889, P. L. 159, the capital of the new trust company would have to be not less than -$125,000, as is required in that act.</p> <p>To make up this capital the right to use the vaults was assumed to be worth $100,000, although the certificates filed in connection with the incorporation of the new trust company are silent on the subject. No one was willing to subscribe for the remaining $25,000 of capital stock, whereupon the following scheme was devised to raise the same. A promissory note for $25,000, to the order of the Spring Garden National Bank, payable on demand, was signed by the directors of the National bank as individuals, and then sitting in their capacity as directors, they ordered that the amount of the note should be passed to the credit of the new trust company on the books of the National bank. This was done, and thereupon the five corporators named in the conveyance to Robert C. Thomas in trust as aforesaid, signed the certificate for the incorporation of the new trust company, and three of them acknowledged it and swore to the truth of the contents thereof. Among other things, it sets forth that the capital was $125,000, divided into 1250 shares, of the par value of $100, and $12,500, being ten per centum of the capital stock, had been paid in cash to the treasurer ; that each of the five corporators had subscribed for 250 shares, and they were chosen directors for the first year. This certificate was dated September 27, 1889, and acknowledged and sworn to the same day.</p> <p>The five corporators named in the certificate of incorporation were clerks in the bank, and were mere figureheads having no interest in the intended corporation, and in executing the certificate acted for the National bank.</p> <p>The certificate was advertised and presented to the governor of the state, who, on November 8, 1889, issued letters patent thereon. The new trust company was organized November 16, 1889, and certificates for the 1250 shares of stock issued, 1090 shares to the Spring Garden National Bank, and twenty shares each to the eight directors of the trust company. The 160 shares issued to the directors were issued as stock to qualify them to act as such directors. It did not belong to them, but was owned by the National bank, and, with the certificate for the ninety shares issued to the National bank, was transferred in blank.. The trust company then drew a check for $25,000 against the credit for that ’amount in the National bank, which arose from the promissory note aforesaid. This note was then indorsed by the National bank “ without recourse, ” and with the 160 shares of directors’ qualification stock and the ninety share certificate issued to the National bank, in all 250 shares, transferred in blank as aforesaid, deposited in the treasury of the new trust company, where it was found by the accountant.</p> <p>The assets of the new trust company at the time of its organization, in November, 1889, nominally aggregated $142,767.84, of which $100,000 was the assumed value of the right to use the vaults, $25,000 was the directors’ promissory note, and the balance made up of Sun Fire Insurance Company and sundry items carried as cash. The liabilities, including capital of $125,000, necessarily equaled the assets, the balance being made up of a profit and loss account of $1,935.55.</p> <p>On April 1, 1890, Robert C. Thomas, in execution of the trust provided for in the conveyance to him of May 21, 1889, exhibit B, as aforesaid, conveyed to the new trust company “ all and singular the assets, all the safes, vaults, bonds, mortgages, and securities of every kind herein assigned to me to and for the only proper use and behoof of the said The Penn Safe Deposit and Trust Company so incorporated as aforesaid on November 8,1889, its successors and assigns forever, to be held and enjoyed by the said company precisely as the assignor to me by the within paper held them.”</p> <p>The claim of the estate of Edward Schieffelin is based upon a certificate of deposit of the old trust company, of which the following is a copy:</p> <p>“ Penn Safe Deposit & Trust Company,</p> <p>“ 12th and Spring Garden Streets,</p> <p>“ No. 984. “ Philadelphia, July 19, 1887.</p> <p>“ This is to certify, that Ed. Schieffelin of Alameda, California, has deposited with the Penn Safe Deposit & Trust Company for safekeeping, package said to contain neither Cer-</p> <p>tificates of Stock or Loans, registered or coupon bonds, or money, but only one hundred thousand dollars ($100,000), of United States four per cent coupon bonds valued at one hundred and twenty seven thousand dollars for which the sum of dollars has been paid to this company.</p> <p>“ In consideration whereof, the said deposit is to be safely kept by this company for the period of one year, and on the expiration thereof, or sooner, if demanded by the said depositor, it shall be returned to him in good order upon the surrender of this certificate, and the identification of depositor, if required. In case of loss of deposit, the liability of the company to be limited to the above valuation. This certificate is not transferable except by assignment endorsed hereon, and approved by the company. If the whole or any of this deposit, shall be withdrawn before' the expiration of said period, no portion of the charge shall be returned; and if continued longer, it shall be deemed a renewal of the deposit on same terms, for which a like rate shall be chargeable.</p> <p>“ Registered July 19, 1887.</p> <p>“ W. M. T. Francis W. Kennedy, Pt.”</p> <p>In the margin:</p> <p>“ This certificate must be surrendered on the withdrawal of the deposit.”</p> <p>In 1881 or 1882, Mr. Schieffelin deposited the $100,000 United States coupon bonds with Francis W. Kennedy for safekeeping. Some time prior to July, 1887, Mr. Kennedy used these bonds as collateral security for loans. A day or two- prior to July 19,1887, Mr. Scbieffelin, who was a resident of California, called upon Mr. Kennedy and asked that his bonds be put in the Safe Deposit Company and a certificate issued to him therefor. Mr. Kennedy asked him to call again which he did. In the mean time, Mr. Kennedy, using the facilities of the National bank, paid off the loans for which the bonds were held as collateral, and put them in a safe deposit box in the vaults of the trust company. Upon Mr. Schieffelin’s calling, he was taken in and shown the safe deposit box with his bonds in it, and with the aid of a clerk in the bank he checked them off in accordance with a list he had, and found them all on hand. Thereupon the certificate of July 19, 1887, was issued to Mr. Schieffelin and he left within a day or two afterwards. In a few days afterwards, Mr. Kennedy again borrowed money on these coupon bonds as collateral security, and they never came back again into the custody of either the old or the new trust company. The use of these bonds was made without the knowledge of any of the officials of either the old or the new trust company, except Mr. Kennedy. After the failure of the new trust company in May, 1891, these bonds were sold, and the loan for which they were collateral security paid. The sale realized a surplus of about $7,300; Mr. Kennedy added enough to make it up to $7,500 and through his attorney, this sum was paid over on or about July 1, 1891, to the attorney of Mr. Schieffelin.</p> <p>In February, 1892, Mr. Schieffelin brought suit in the United States circuit court to No. 269, October sessions, 1891, against the old trust company by its new name of “ The Philadelphia Finance Company,” and declared on the certificate of deposit of July 19, 1887, as aforesaid.</p> <p>On March 15, 1892, plaintiff recovered judgment on this action against the defendant for want of an appearance. On March 29, 1892, this judgment was by agreement stricken off and an affidavit of defense filed. The case was then pleaded to issue. On March 1, 1895, an order was filed to mark the case discontinued, ended and settled, and the clerk’s costs paid.</p> <p>On or about January 31, 1894, the old trust company paid Mr. Sehieffelin $14,500 in compromise settlement of its liability under the certificate of deposit of July 19, 1887, as aforesaid, whereupon Mr. Sehieffelin executed a release of which the following is a copy:</p> <p>“Know all men by these presents that I, Edward Schieffelin of California, in consideration of the payment of the sum of fourteen thousand five hundred dollars, do hereby remise, release and forever discharge, the Philadelphia Finance Company its successors and assigns, heirs, executors and administrators of and from all, and all manner of actions and causes of action, suits, debts, dues, accounts, bonds, covenants, agreements, judgments, claims and demands whatsoever in law or equity, which against the said Philadelphia Finance Company I ever had, now have or which my heirs, executors, administrators or assigns or any of them hereafter can, shall or may have or by reason of any cause, matter or thing whatsoever, from the beginning of the world to the date of these presents, against Francis W Kennedy or any other party other than the Philadelphia Finance Company.</p> <p>“ In witness whereof I have hereunto set my hand and seal the thirty-first day of January, in the year of our Lord one thousand eight hundred and ninety-four.</p> <p>“ E. SCHIEFEELIN, [L. S.]</p> <p>“ Signed, sealed and delivered in the presence of</p> <p>“ John S paehawk, Jr.”</p> <p>. By the agreement of May 21,1889, as aforesaid, Mr. Kennedy individually agreed to save harmeless Mr. Pfeiffer and his assigns from any liability of the old trust company. The new trust company never in any way confirmed or ratified the action of Mr. Kennedy in making this indemnification agreement.</p> <p>CONCLUSIONS.</p> <p>In deciding upon the merits of this claim, it must be determined :</p> <p>1. Whether there was any written agreement on the part of the Penn Trust Company to pay the claim.</p> <p>2. If there was no written agreement, whether there was any implied obligation or contract which warrants the claim being paid out of the present fund.</p> <p>The first written agreement in the matter is the contract which Kennedy made with Pfeiffer and his associates when he sold them the old charter, and agreed that he would be responsible for the debts of the old Penn Trust Company.</p> <p>Your auditor is of opinion that no right to a dividend from the present fund can arise by reason of this contract; it was a personal undertaking of Kennedy with Pfeiffer to be responsible for any outstanding liabilities of the old company. When the new company was formed it never in any way ratified or confirmed this action on the part of Kennedy and never became liable for its fulfillment. Nothing was done to change the contract from what it purports to be- upon its face, a personal undertaking on the part of Kennedy. The claimant cannot therefore maintain his claim that this contract was an obligation of the new company and inured to his benefit.</p> <p>Kennedy might be considered a promoter of the new corporation, and as such his actions were not binding upon the proposed corporation, unless something was done by the corporation after it had been formed, to indicate an acceptance of them. , In the words of Pepper & Lewis in their Digest of Decisions of Pennsylvania, volume 3, page 4825, “where a proposition is made to the promoters of a corporation, who, with other individual members, accept the offer, prior to incorporation, it is not a sufficient acceptance to bind the corporation.”</p> <p>If this contract is not binding, it remains to inquire whether there was anything in the written assignment of the assets to the new company which created an obligation to pay all the debts and obligations of the old company.</p> <p>The contract of assignment express^ states that the assets should be held in precisely the same way in which they were held by the old trust company; this cannot be construed to mean that the new company pledged itself to pay all debts due by the old company that might be outstanding whether they knew of them or not, and no matter what their amounts. This assignment can mean nothing more than that the new com-' pany took tbe assets subject to any liens that then existed against them in the hands of the old company. Whether this contract was valid, as the assets were being paid to the new company as a subscription to its stock, it is immaterial to decide, as this claim was not a lien, and this is not an attempt to follow the assets and to recover them or their value back again. „</p> <p>There was not, therefore, in the opinion of your auditor, any written agreement on the part of the new company to pay the debts of the old company.</p> <p>The second question must therefore be considered. Was there any implied promise on the part of the new company, when they took the assets of the old company that they would assume all debts?</p> <p>If the argument of counsel for the claimant is correct, it is immaterial that these assets were of small value, though appraised, for the purpose of forming the capital of the company, at a very high figure. If their argument is sound, the new company became liable for every debt, no matter how large, by the fact that they took these assets, and it is of no moment whether the assets were large or small. This position your auditor does not think sound ; if a properly authorized person attempted to recover back the assets for the benefit of all the creditors of the old company it would then be a question as to whom these assets or their value belonged, but no such claim is presented here; the claimant does not contend that he is entitled to the value of the assets transferred; he relies entirely upon the implied promise or trust that is to be created for his benefit by the receipt of the assets. Your auditor therefore considers this question only.</p> <p>It must first be noticed that the claimant was not injured by the assignment of these assets to the new company. He retained his claim upon his certificate against the company which issued it, and he pursued that corporation after it was purchased by Pfeiffer and his associates, and his claim was recognized and settled.</p> <p>The claimant has not established that he had a lien upon the assets transferred, nor that any equities existed which in any way created an implied trust for his benefit. That this is true is shown by an examination of the facts of this case. Witnesses speak of Pfeiffer and his associates having purchased the old charter, but this phraseology does not 'represent what was really done. Pfeiffer and his associates continued the old corporation; they purchased all the stock and continued in business, merely changing the name of the corporation and its management. There was, therefore, nothing in this sale which in any way affected the rights of Schieffelin or Ms claim against the company. The corporation had a perfect right to dispose of any or all of its assets wliich were held at that time, provided .they did not defraud their creditors by so doing, and if Pfeiffer and his associates, after they undertook the management of this corporation, substituted assets far more valuable than those which had been passed over to Kennedy, the claimant would have no right to complain, nor could he say that he had any right or claim in the old assets that were transferred. Until the claimant has shown that he was defrauded by reason of the transfer of the assets to the new company, he has no right to follow those assets, nor to ask that the corporation who received them be held liable to him in any way. So far as the evidence discloses, the change of management of the corporation that had issued the certificate of deposit may have been of the greatest benefit to the claimant, and if those new managers substituted cash for the questionable assets that were transferred, the advantage to Mm was unquestionable. The evidence leaves us in ignorance as to these facts. The claimant cannot, therefore, be said to have established Ms case.</p> <p>It must also be noticed that when an implied contract is asked to be enforced in equity it is only in accord with equitable principles that an examination should be made of the circumstances under which it is claimed that the contract was made. If this is done in this case, it is very clear that the present claimant is striving to take advantage of a fraud, for if the new company impliedly promised to pay all the old debts, they could only have done so because Kennedy fraudulently concealed this Schieffielin liability, and thus tricked them into assuming its burden. The real value of the assets transferred was an inadequate consideration for such a contract, and it is not contended by the claimant that the new trust company would have agreed for a moment to pay this claim had they known of its existence. A contract formed in such a way could not be enforced against the present innocent creditors, even if the evidence warranted a finding that such a contract had an existence.</p> <p>Your auditor is therefore of opinion, after carefully considering the facts of this case, that no contract, either express or implied, exists for the benefit of this claimant, and no equities are shown in his favor that warrant an award from the present funds.</p> <p>The court without filing an opinion dismissed exceptions to the auditor’s report.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

Appeal, No. 235, Jan. T., 1899, by defendant, from judgment of Superior Court, Jan. T., 1899, No. 17, affirming judgment of C. P. Bradford Co., Dec. T., 1893, No. 172, on verdict for plaintiff in case of William Little, administrator of George S. Barker, deceased, v. A. C. Fair-child and George Grace. Appeal from Superior Court.

<p> Negligence—Railroads—Grossings—Stop, look and listen. </p> <p>A woman at night on the sidewalk of a public street approached a railroad crossing where there were four tracks, but at which there were no safety gates and no watchman. She waited until a train passed, backing on the track nearest to her ; and before starting she saw that the sidewalk was clear and the only train in sight was on the third track, having passed over the sidewalk, and was standing with its rear car twenty feet from the sidewalk with the engine at the other end. When she reached the second track she stopped and looked, and the sidewalk being still clear and the train not in motion, she started forward the second time, and when close to the third track or directly on it the car was suddenly struck by the engine and projected on to the fourth track, where it struck the woman and inflicted the injuries which proved fatal. Held, that the question of the deceased’s contributory negligence was for the jury.</p> <p>‘ Negligence—Contributory negligence—Position of sudden peril.</p> <p>Where a person, without fault on his part, is suddenly placed in a position of difficulty or danger he is not bound to the use of the best judgment in his efforts to extricate himself.</p>

<p>Appeal, No. 440, Jan. T., 1899, by plaintiff, from decree of C. P. No. 8, Phila. Co., Sept. T., 1899, No. 1105, dismissing bill in equity in case of George E. Potts v. city of Philadelphia, Samuel H. Ashbridge, Mayor, Abraham L. English, Director of Public Safety; John M. Walton, Comptroller; the Philadelphia Electric Company, the Brush Electric Light Company, the Southern Electric Light and Power Company, the Manufacturers’ Electric Company, the Diamond Electric Company, the Suburban Electric Company, the Germantown Electric Light Company, the Poweltown Electric Company, the Wissahiclcon Electric Light Company, and the Kensington Electric Company.</p> <p>Bill in equity for an injunction.</p> <p>The bill averred that complainant was a citizen and taxpayer of the city of Philadelphia. The bill further averred as follows :</p> <p>The director of the department of public safety, prior to November 20, 1899, advertised for proposals for furnishing electric arc lights during the year 1900 to the said city of Philadelphia.</p> <p>That in answer to said advertisments for proposals, the electric companies, defendants, submitted bids covering the sections of said city set forth in the following schedule:</p> <p> </p> <p>In addition to the foregoing bids, the defendant, the Brush Electric Light Company, submitted a bid for all lights south of Allegheny avenue, between Delaware and Schuylkill rivers, at thirty cents per light per night, and north of Allegheny avenue, between Delaware and Schuylkill rivers, and all of the city west of the Schuylkill river at thirty-one cents per light°per night. This last-mentioned bid covered all the public electric arc lights in the said city.</p> <p>With the exception of the Kensington Electric Company all of the companies bidding to furnish electric lights are owned and controlled by the defendant, the Philadelphia Electric Company, through ownership by it of the majority of the 'stock of the said several companies, the management and direction of each of said companies being controlled and directed by the Philadelphia Electric Company. That the several bids of the companies controlled by the Philadelphia Electric Company were fraudulent and collusive, and made in the manner and form in which they were submitted for the purpose of giving an appearance of competition when in point of fact there was none. That it was known to the officials of the city of Philadelphia that the Brush Electric Light Company’s plant was insufficient to enable it to comply with its bid to supply the entire city of Philadelphia, and that it could not be made sufficient for the purpose of complying with the bid within the limited time, and that to enable it to comply with its bid, the plants of the other bidders controlled by the Philadelphia Electric Company would have to be used. That the city officials well knew at the time of the making of said bids that it was the intention of the Philadelphia Electric Company to use the plants of such other bidders for the purpose of complying with the bid of the Brush Electric Light Company.</p> <p>• The plaintiff charged that it was well known to the parties making said bids, and to the department of public safety, that there was no real competition for said electric lighting except as between the companies controlled by the Philadelphia Electric Company on the one hand and the Kensington Electric Cbmpany on the other, and that the bids of the underlying companies controlled by the Philadelphia Electric Company were fixed at the prices therein set forth to falsely and fraudulently give the appearance to the blanket bid of the Brush Electric Light Company of being lower, when in truth and in fact the Kensington Electric Company’s bid of twenty cents per light per night is lower within the district bid for than the bid of the Brush Electric Light Company of thirty cents per light per night over the same district.</p> <p>That the department of public safety imposed unreasonable and onerous conditions in the matter of bidding by increasing the amount of deposit money required to accompany each bid from $5,000, as heretofore, to the sum of $10,000, and this when the department well knew that there were but two competitive bidders, and that the Kensington Electric Company for the last seven years, within substantially the same district embraced within its present bid, has furnished the city of Philadelphia with the electric lighting therein to the satisfaction of said city.</p> <p>That the defendant Abraham L. English, director of the department of public safety, has accepted the blanket bid of the Brush Electric Light Company, and awarded to it the contract for electric arc lighting of the streets of Philadelphia for the year 1900.</p> <p>The plaintiff prayed relief as follows :</p> <p>1. That by preliminary, and, after hearing, by final injunction, the court restrain the said defendant, Samuel H. Ashbridge, mayor of the city of Philadelphia, and Abraham L. English, director of the department of public safety of said city, from signing a contract, and John M. Walton, controller, from countersigning said contract with the Brush Electric Light Company for supplying electric arc lights to the entire city of Philadelphia for the year 1900, in accordance with its bid as aforesaid.</p> <p>2. That it be decreed that the several bids submtted by the Brush Electric Light Company, the Southern Electric Light and Power Company, the Manufacturers’ Electric Company, the Diamond Electric Company, the Suburban Electric Company, the Germantown Electric Light Company, the Powelton Electric Company, and the Wissahickon Electric Light Company were fraudulent and collusive, and null and void.</p> <p>8. That it be decreed that the lighting of the public streets of the city of Philadelphia with electric lights appertains to and is under the supervision and control of the department of public works, and does not appertain and is not under the supervision and control of the department of public safety, and that the advertising for proposals and the awarding of contract for electric lighting by the director of the department of public safety is illegal and void.</p> <p>4. That by preliminary, and, after hearing, by perpetual injunction, the said defendant, the Brush Electric Light Company, -be restrained frOm entering into a contract with the city of Philadelphia for furnishing to said city electric lights for the year 1900 in accordance with its bid, and from performing said contract.</p> <p>. 5. Further relief.</p> <p>The defendants, except the Kensington Electric Light Company, demurred to the bill.</p> <p>The court in an opinion by McMichaee, J., sustained the demurrer and dismissed the bill.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 412, Jan. T., 1899, by plaintiff, front decree of C. P. Erie Co., Sept. T., 1899, No. 4, dismissing bill in equity in case of tbe American Telegraph and Telephone Company of Pennsylvania v . Millcreek Township and Richard H. Arbuckle, J. P. Zaun and Mathias Hartleb, road commissioners. Bill in equity for an injunction.

<p>Appeal, No. 102, Jan. T., 1900, by plaintiff, from decree of C. P. Erie Co., Nov. T., 1898, No. 3, dismissing bill in equity in case of Ralph W. McDonald and FlaviaM. Rossiter, heirs at law of K. C. McDonald, v. John C. Sturtevant.</p> <p>Bill in equity for a reconveyance of land.</p> <p>From the record it appeared that the land in controversy had been devised by George B. McDonald to Carson McDonald, subject to the life interest of the testator’s wife. McDonald appointed defendant, together with testator’s wife, executor of his will. Defendant claimed the land under a deed absolute on its face from Carson (K. C.) McDonald.</p> <p>The facts as to the execution of this deed were found by Walling, P. J., to be as follows:</p> <p>3. That said Carson McDonald appears to have been of a roving disposition and to have resided away from home most of the time subsequent to his father’s death. He was a dentist by profession and had worked thereat in several different states. He visited his home in Conneautville in August, 1886, at which time he was a man about twenty-seven years of age, of good education and ability. He was without means and desired to procure sufficient money to proceed to New Mexico and to establish himself there in the profession of a dentist. At his request, his mother, said Kasiah McDonald, called upon Mr. Sturtevant, above defendant, to endeavor to procure the said necesaary means. The said Carson McDonald and defendant appear to have had several interviews upon the subject, which resulted in the defendant paying to said Carson McDonald, on August 13,1886, the sum of §300, at which time said Carson McDonald made, acknowledged and delivered to defendant a special warranty-deed for three pieces of land in Erie county, one of which was situate in Erie city, one in Girard borough and one in Girard township; which deed recites a consideration of §200, and which deed included all the real estate of which his father had died seized in Erie county, and which deed was duly recorded in the recorder’s office of Erie county on August 13, 1886. At the same time he executed and delivered to said Sturtevant a deed covering his interest in the land belonging to his father’s estate in Crawford county, the consideration named in said last deed being §100.</p> <p>It is claimed by plaintiffs that the said §300 was loaned by said defendant to said Carson McDonald and that the deeds above referred to were given to secure defendant for such loan, and that at the same time the defendant executed and delivered to said Carson McDonald a writing, in which it was stipulated that the said Carson McDonald was to have five years’ time in which to redeem said lands by repaying said §300, with interest at eight per cent.</p> <p>This contention is emphatically denied by the defendant, who contends that he purchased outright the interest of the said Carson McDonald in said lands in Erie and Crawford counties for the said sum of §300.</p> <p>The answer and evidence of defendant being responsive to that of plaintiffs, and there being no other evidence directly upon this point, T decline to find that the defendant gave to said Carson McDonald any defeasance at the time of receiving said deed. It is not alleged that any such paper was ever acknowledged or recorded.</p> <p>4. Carson McDonald immediately thereafter wentto New Mexico, where he established himself in business and remained several years and afterwards returned to Pennsylvania, where he continued to practice his profession in different places. Tie was taken sick in the summer of 1892 and died at Conneautville after a protracted illness, on January 23,1893. It does not appear that he ever made any claim to said real estate after the date of said deeds, and it is not alleged that he ever paid or offered to pay to said defendant the said §300, or any part thereof. The evidence tends to show that ho continued in somewhat straitened circumstances financially up until his death.</p> <p>5. In August, 1886, the real estate in Erie county belonging to the widow and heirs of said George B. McDonald was worth about $8,000, and the interest therein conveyed by the said Carson McDonald to defendant by said deed was a one-quarter undivided interest in said lands, subject to the life estate of the said Kasiah McDonald, she being at that time a woman fifty years of age, in good health and with a life expectancy of about twenty-one years. That the said A. Lincoln McDonald had died intestate, unmarried and without issue, on September 24, 1885, before the making of said deed, and that the said George E. McDonald died thereafter, on March 28, 1890. The evidence tends to show that the said Carson McDonald left surviving him a widow, but no children, and that his widow has since died, so that the said plaintiffs are his only heirs at law.</p> <p>6. That the consideration of $200 named in said deed for the interest of the said Carson McDonald in the said lands in Erie county was inadequate, but there is no evidence of any fraud, concealment or misrepresentations of any nature, or that the said defendant used any undue means to procure said conveyance for said land, and there is no evidence of any confidential relation existing between the said defendant and the said Carson McDonald, or that he was or had ever been his confidential friend or adviser.</p> <p>- 7. That on February 2, 1892, the said defendant joined with the other parties in interest in a conveyance of the lot in Erie city belonging to the said George B. McDonald estate, from which the said defendant received as his part of the consideration therefor by reason of the interest therein which he had acquired from the said Carson McDonald the sum of $273 net, and that before filing this bill the plaintiffs demanded a conveyance to them of the interest which the said defendant had acquired from the said Carson McDonald, at which time they offered to repay to defendant any balance that might be his due on account of the said original consideration or alleged loan, and the said defendant declined to make a reconveyance thereof.</p> <p>8. There is no evidence that the estate of George B. McDonald owed any debts on August 13, 1886, or that it was then, or has been at any time since, necessary for the said executors to make sale of any portion of tbe said real estate to carry out the provisions of said will.</p> <p>9. That about the year 1890 the said plaintiff, Ralph W. McDonald, secured a loan from above defendant, and gave him as security therefor a deed for his interest in the said lands, at which time the defendant gave him a written defeasance, which was neither acknowledged nor recorded, and some years thereafter the said Ralph W. McDonald paid said loan and said defendant reconveyed to him the lands so held as security.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. That the said defendant, as executor of the estate of George B. McDonald, was not a trustee for any of the lands belonging to said estate, except as to such lands as it was necessary for the executors to sell to carry out the provisions of the will, and that, as to the land in question, he was not a trustee for the said Carson McDonald, and that his being an executor of said estate, and thereby a trustee of the personal estate, did not prevent his acquiring by purchase from the said Carson McDonald the latter’s interest in the real estate devised to him by his said father, upon such terms as might be actually agreed upon between the parties.</p> <p>2. That the deed excuted by the said Carson McDonald and delivered to the said defendant on August 13, 1886, for his interest in said lands in Erie county, including the lands in controversy, vested in the said defendant all of the interest of the said Carson McDonald therein.</p> <p>3. That even conceding that there was such a defeasance as claimed on behalf of plaintiffs, it would not now change the legal rights of the parties, as such defeasance would be inoperative under the Act of June 8, 1881, P. L. 84.</p> <p>4. That even had the relations of the parties and the surrounding circumstances been such as to have rendered said conveyance voidable at the time it was made, yet there was such laches on behalf of the said Carson McDonald and above plaintiffs as to the cause a chancellor, at this late day, to decline to order a reconveyance of said lands.</p> <p>5. That the plaintiffs are not entitled to the relief prayed for or any part thereof, and that their bill in above case should be dismissed at their costs.</p> <p>Error assigned was decree dismissing the bill.</p>