Volume 196 — Pennsylvania State Reports

<p>Contract — Parol evidence — Release—Receipt in full.</p> <p>A written contract ’ of employment as a superintendent of a clay mine provided “that no interest, right, claim or demand in the clay lease or operation was to vest in the superintendent, but that the relation between him and the owner should be merely that of employer and employee.” Subsequently the superintendent instituted an action to recover one-fifth interest in the clay operation, under an alleged parol agreement made prior to the written agreement. The testimony of the superintendent on this subject was flatly and positively contradicted by the owner and other disinterested witnesses. It also appeared that the superintendent had subsequently to the written agreement and prior to the institution of the suit given the owner a receipt in full of all demands. Held, that it was proper to give binding instructions for defendant.</p>

<p>Corporations — Electric light companies — Municipality—Exclusive privileges — Lighting streets.</p> <p>A grant by a city to an electric light company to supply “ light, heat and power by electricity to persons, partnerships and corporations in the city and territory adjacent thereto, and to erect a plant and poles and necessary .fixtures therefor, and run wires on the same on, over and under any and all streets, alleys and lanes in the said city,” is not in derogation, either expressly or by implication, of the city’s right to furnish street lamps in any part of the city where it was already furnishing them, and hence not in derogation of the city’s right to provide them in any part of the city. Under such a grant the company has no exclusive privilege to furnish street lamps anywhere. The decisions l’elating to the exclusive privileges of water companies are not analogous.-</p>

<p>Appeal, No. 132, Jan. T., 1900, by defendant, from judgment of O. P. Erie Co., May T., 1898, No. 21, on verdict for plaintiff in case of Susan Gibson v. City of Erie.</p> <p>Assumpsit upon municipal bonds. Before Walling, P. J.</p> <p>Tbe facts appear by tbe opinion of tbe court below infra.</p> <p>The court gave binding ffistructions for plaintiff.</p> <p>Yerdict and judgment for plaintiff for $11,041.66.</p> <p>Tbe court refused a new trial, Walling, P. J., filing tbe following opinion:</p> <p>This suit was brought to recover on ten municipal coupon bonds for $1,000 each, issued by defendant January 1, 1887, and being numbered from 31 to 40, inclusive. Said bonds were made payable at tbe Keystone National Bank of Erie, Pa., on January 1, 1907, and each of said bonds contains a clause as follows : “ Redeemable at the pleasure of the city of Erie on and after the first day of January, A. D. 1897.” The proper officials of defendant city in November, 1896, elected to redeem the bonds in suit, and certain other bonds of the same issue, on January 1, 1897, and duly issued a call therefor stating that the city would redeem said bonds on January 1,1897, and that the interest would cease on above date, which call was duly published in three local papers and in two New York city papers, and, so far as possible, the defendant’s city controller notified the original purchasers by letter. It does not appear that the defendant had any knowledge that the plaintiff was the owner of the bonds in suit, or that the plaintiff, who resides a¡t Jamestown, Pa., had any actual notice or knowledge of said call. The plaintiff became the owner of the bonds in suit in 1887, and continued such owner down to the time of the trial of this case, and on September 26, 1887, the plaintiff made a special deposit of the bonds in suit, and $20,000 of other Erie city coupon bonds, in said Keystone -National Bank of Erie for safekeeping, at which time plaintiff took a receipt from said bank as follows, viz:</p> <p>“ Erie, Pa'., September 26, 1?87.</p> <p>“ Received from Mrs. Susan Gibson $80,000 in Erie city coupon four per cent bonds, the same to be held as special deposit, at her risk.</p> <p>“J. I. Town,</p> <p>“ Cashier Keystone National Bank of Erie.”</p> <p>Which bonds remained in said bank until after the failure of the bank, which occurred in June, 1897, and the defendant paid the semiannual interest on said issue of bonds through said bank up to January 1, 1897. The evidence shows that the plaintiff was in the habit of writing to said bank at the end of each six months and each time asking it to send her, or give her credit for, the semi-annual interest on said bonds, which was done. The bank never had any interest in the bonds in question or authority over them, except as such special deposit, and except the special authority which plaintiff gave the bank from time to time to remit her or credit her with the semi-annual interest on said bonds. There is no evidence tending to show that Mrs. Gibson ever gave the bank any general authority to collect interest on - the bonds for her, or any authority whatever to collect the principal of the bonds. The bank never assumed to collect the principal of said bonds, and, so far as appears, neither the city of Erie nor any of its officers had any knowledge that the Keystone National Bank had possession of the bonds in controversy.</p> <p>After the failure of the bank the receiver, owing it would seem to a controversy which had arisen between Mrs. Gibson and the city of Erie, declined to surrender the bonds to plaintiff and she obtained them by a writ of replevin.</p> <p>On December 31, 1896, the defendant deposited $40,000 in said bank for the redemption of the bonds which had been called in, and took a receipt therefor as follows:</p> <p>“Erie, Pa. Dee. 31, 1896.</p> <p>“ Received from the Sinking Fund Commisioners of the city of Erie, Pennsylvania, forty thousand ($40,000) dollars for the redemption at par of Erie city refunding bonds of the numbers and of the issue stated in the attached copy of the official advertisement in regard to same.</p> <p>“ Keystone National Bank of Erie, Pa.</p> <p>“ F. Y. Kepler, Cashier.”</p> <p>The call was for $50,000 of bonds and the defendant had an arrangement with the bank to furnish the balance when needed.</p> <p>The bank paid $31,000 in redemption of such of said bonds as were presented prior to the failure of the bank in June 1897, at which time the remaining $9,000 stood on the books of the bank to the credit of the city. Although I infer that the money had been placed with the general funds of the bank and used for other purposes.</p> <p>After the plaintiff obtained the custody of her bonds she did on January 12,1898, demand payment of the same from the defendant, which was refused, except that the city offered to pay one of the bonds, which plaintiff declined to accept. And this suit was subsequently brought to recover the amount of the ten bonds.</p> <p>At the trial the juiy, under instuctions from the court, found for plaintiff for the $10,000 and lawful interest from the date of such demand. I am still of the opinion that the verdict is correct.</p> <p>The city paid this $40,000 to the bank as its agent. And in the redemption of these bonds the bank was clearly acting as the agent for the city and not the agent of the bondholders: Williamsport Gas Company v. Pinkerton, 95 Pa. 62; and it is also there held that there is no obligation on the holder of the bond to present and demand payment upon the same within a reasonable time. And that such holder could not lose by the insolvency of the bank.</p> <p>The city in the present case was not misled. It had no knowledge that the bank had the custody of plaintiff’s bonds. This depositing of the $40,000 in the bank was not a payment of any of the bonds, and was not so intended. It was placed there that the bank might pay off the bonds for the city as they should be presented. Enough was not deposited to pay all the bonds, and certainly the city did not appropriate it or direct its appropriation to the payment of any particular part of the $50,000 call. There was $40,000 of this call of bonds not held by plaintiff, and had all of such other bonds been presented to the bank it would have been plain duty of the bank to have redeemed such other bonds when presented, although that would have exhausted the deposit and left plaintiff’s bonds unpaid. In fact the bank did expend $31,000 in redemption of such other bonds. How can it then be successfully urged that the remaining $9,000 actually paid that amount of Mrs. Gibson’s bonds; for if the city’s placing the $40,000 in the bank operated as a payment of any of plaintiff’s bonds it paid them all, which is not contended.</p> <p>Had the city found these bonds in the possession of the bank and paid the amount to the bank in redemption of the bonds the case would be entirely different.</p> <p>The fact that the replevin suit, by which plaintiff recovered possession of the bonds from the receiver of the bank had not been terminated when this case was called for trial is not material. The evidence clearly shows that the bonds belong to plaintiff, and she was in possession of them when this suit was brought, and in any event the delivery of the bonds to plaintiff by the writ of replevin gave her a title to them as against .the bank: Stewart v. Wolfe, 5 Cent. Repr. 681.</p> <p>When these bonds were issued the city retained the option of redeeming them on January 1, 1897, and prior to said date the said city properly exercised such option, and' by its own act made the bonds mature on said date. The city called in the bonds and stopped the interest. Therefore, in my opinion, the plaintiff is entitled to recover on her bonds, with lawful interest from the date when demand for payment was made. This result does no injury to the defendant, as plaintiff recovers no interest on her bonds from January 1, 1897, to January 12, 1898.</p> <p>The case of Allentown School District v. Derr, 115 Pa. 439, does not sustain the defendant’s contention, as there the option was that of the bondholder only and of course it could not avail the said school district. Here the city and not the plaintiff was given and exercised the option of maturing the bonds.</p> <p>And now, March 15, 1900, the rule to show cause why a new trial should not be granted in above case is discharged.</p> <p>Error assigned among others was in giving binding instructions for defendant.</p> <p>Municipal coupon bonds payable to bearer are quasi-negotiable in certain particulars, viz: They pass by delivery; the holder may sue in his own name; the transferee for value holds the titles as an original obligee, etc.: Beaver County v. Armstrong, 44 Pa. 63; Whelen’s App., 108 Pa. 205; Kerr v. City of Corry, 105 Pa. 282 ; Mercer County v. Haaket, 1 Wall. 83; White v. Vermont, etc., R. R. Co., 21 Howard, 575; Mayor v. Ray, 19 Wall. >468; Humboldt Twp. v. Long, 92 U. S. 642 ; Roberts v. Bolles, 101 U. S. 119; Ottawa v. Nat. Bank, 105 U. S. 342; County of Wilson v. Nat. Bank, 103 U. S. 770.</p> <p>Possession of bonds is prima facie evidence of ownership: Goodman v. Simonds, 20 Howard, 343; Collins v. Gilbert, 94 U. S. 753; Brown v. Spofford, 95 U. S. .474; Marion County v. Clark, 94 U. S. 278 ; Real Est. Investment Co. v. Russel, 148 Pa. 496 ; Hey v. Frazier, 1 Monaghan, 759 ; City of Elizabeth v. Force, 29 N. J. Eq. 587 ; Duchess County Mutual Ins. Co. v. Hatchfield, 73 N. Y. 226; Cooke v. U. S., 91 U. S. 389; Hubbard v. Tenbrook, 124 Pa. 291; McCracken v. Hamburger, 139 Pa. 326; Robertson v. Hay, 91 Pa. 242; Penna. R. Co.’s App., 86 Pa. 80; Chapman v. Chapman, 59 Pa. 214.</p> <p>The relation between the plaintiff and the Keystone National Bank was that of principal and agent: The Brig Odorilla v. Baizley, 128 Pa. 288; Siemens, etc., Co. y. Horstman, 24 W. N. C.396.</p> <p>Plaintiff had constructive notice of the call for the redemption of the bonds in suit: Short v. Messenger, 126 Pa. 637; Wust v. Erie City Iron Works, 149 Pa. 263 : Bracken v. Miller, 4 W. & S. 102; Reed’s App., 34 Pa. 207, Phila. v. Lockhardt, 73 Pa. 211; Houseman v. Girard B. & L. Assn., 81 Pa. 256.</p> <p>Whenever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it: Herman on Estoppel, 1222; Chidsey v. Porter, 21 Pa. 390; Penna. R. Co.’s App., 86 Pa. 80; Mundorff v. Wickersham, 63 Pa. 87.</p> <p>were not heard.</p>

Appeal, No. 190, Oct. T., 1898, by plaintiff, from judgment of C. P. Greene Co., April T., 1898, No. 175, non obstante veredicto in case of Lena G. Cruzen v. Otho M. Boughner. Assumpsit for purchase money and to determine title to real estate. Before Taylor, P. J., specially presiding. The facts are fully stated in the’opinion of the Supreme Court. Error assigned was in entering judgment for defendant, non obstante veredicto.

<p>Appeal, No. 38, Jan. T., 1900,. by-defendant, from judgment of C. P. Berks Co., June T., 1898, No. 97, on verdict for plaintiff in case of President, Managers and Company of tbe Perkiomen & Reading Turnpike Road v. Berks County.</p> <p>Appeal from jury of view in proceedings to condemn a portion of a turnpike road.</p> <p>At tbe trial Mr. Rothermel, counsel for defendant, proposed to prove by a witness, wbo was the secretary of the plaintiff company, what returns be made to tbe state, as well as to show what the capital stock is worth, and what it was appraised at by the officers of the company who made returns to the state; also what the market value of the shares of stock is according to such returns; this for the purpose of giving the jury the full benefit of all the information that can be had, so that they can arrive at a correct conclusion in fixing the damages between the plaintiff company and the county of Berks.</p> <p>Mr. Hiester: Plaintiffs object to the offer as irrelevant, in view of the fact that only a small portion of the ^property of the plaintiff is taken.</p> <p>Mr. Rothermel: We will add to our offer the fact that the plaintiffs, in opening their case, stated that the turnpike commenced at Collegeville, in the county of Montgomery, and ended at the limits of the city of Reading in Berks county. It is now proposed to go into the entire value of this franchise so as to enable the jury to arrive at a correct conclusion. The evidence is practically the same which has just now been offered.</p> <p>The Court: The proposed evidence could not throw any light upon the value of the 2,200 feet of road which have been condemned. The objection is sustained. Exception for defendant. [1]</p> <p>It is proposed to prove by the witness on the stand that there is an agreement between the East Reading Electric Railway Company and the Reading & Perkiomen Turnpike Company that whenever the said railway company wish to construct a second track on this portion of the turnpike, that the turnpike company is to receive the sum of $1,500 additional to what they have already received by way of compensation from the said railway company. This for the purpose of showing the rights which exist between the said railway company and the said turnpike, and for the further purpose of showing exactly what rights the county of Berks has in case the turnpike is made free from toll and tollgates, for which the county of Berks is asked to pay damages.</p> <p>Mr. Hiester: Plaintiff objects that the proceeding in the court of common pleas between the East Reading Electric Railway Company and the plaintiff, which have been given in evidence by the defendant, shows the rights which have been acquired by the East Reading Railway Company on the property of the plaintiff, and any arrangement between the plaintiff and the railway company made with regard to the time of the payment of damages assessed in that case is irrelevant and immaterial in this issue.</p> <p>The Court: The proposed evid ence is clearly irrelevant and immaterial. Objection sustained. Exception for defendant. [2]</p> <p>Mr. Rothermel: Defendant offers in evidence act of assembly, approved April 12, 1851, P. L. 498, which provides in section 8, that it shall not be lawful for the turnpike company to erect a gate within one mile of the city of Reading, etc.</p> <p>The Court: What is the purpose of the offer ?</p> <p>Mr. Rothermel: The purpose of the offer is to show that according to the provisions of said act of assembly, the turnpike company has no right to keep a gate at the point at which it is located for the purpose of collecting tolls.</p> <p>Mr. Hiester: Plaintiffs object to the offer; first, because there is no evidence that when this tollgate was erected it was erected within one mile of the city of Reading, as the boundaries of the city of Reading then existed at the time of the erection of the tollgate; second, because the charter of the plaintiff and the rights granted thereby cannot be altered by the act of assembly of April 12,1851; third, because the act of the plaintiff in maintaining a tollgate at this point, if unlawful, can only be inquired into by the commonwealth in quo warranto proceedings or other appropriate proceedings; fourth, the offer is generally irrelevant in this proceeding.</p> <p>The .Court: The objections are sustained. Exception for defendant. [3]</p> <p>Verdict and judgment for plaintiff for 18,416.66. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4, 5) rulings on evidence, but not quoting the portion of the bill' of exceptions in immediate connection with the rulings of which complaint was made.</p> <p>cited Montgomery County v. Schuylkill Bridge Co. 110 Pa. 54, Allentown & Coopersburg Turnpike Co. v. Lehigh Valley Traction Co., 174 Pa. 283, and West Chester & Wilmington Plank Road Co. v. Chester County, 182 Pa. 40.</p> <p>cited Montgomery County v. Schuylkill Bridge Co., 110 Pa. 54.</p>

<p>Corporation — Capital stock — Corporate property.</p> <p>A corporation is an entity, an existence, irrespective of the persons who own all its stock; and the fact that one person owns all the stock does not make him and the corporation one and the same person.</p> <p>The shares of the capital stock of a corporation are essentially distinct and different from the corporate property, and the owner of all the stock of a corporation does not own the corporate property or become entitled to manage or control it.</p> <p>Corporation — Collateral attack on charter.</p> <p>■ The existence of a corporation or its right to exercise its corporate franchises cannot be inquired into or attacked collaterally.</p> <p>In an action of assumpsit by a bridge company against a street railway company to enforce the covenants of a written agreement, the defendant cannot set up as a defense the fact that a city had purchased the entire stock of the plaintiff and had continued the corporate existence of ‘the bridge company, without authority in law.</p> <p>Corporations — Pleadings—Admission of corporate existence — Act of June 24,-1885, P. L. 149.</p> <p>In an action of assumpsit where the statement avers that the plaintiff is a “ corporation duly organized and existing under the laws of the state of Pennsylvania,” and there is no denial of this averment in the pleadings, the defendant will- be prevented by the provisions of the act of June 24, 1885, from alleging at the trial, that the corporation had been dissolved by the fact that a city had purchased its entire capital stock.</p>

Appeal, No. 129, Jan. T., 1899, by defendant, from order of C. P. Monroe Co., Sept. T., 1897, No. 42, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of James C. Moore v. The Susquehanna Mutual Fire Insurance Company. Assumpsit upon a policy of fire insurance. The defendant filed the following affidavit of defense: 1.

<p>Deed — Voluntary deed — Equity.</p> <p>The power of a court of equity to set aside a voluntary deed, is of .an exceedingly delicate character not to be lightly exercised, and only to be invoked when the manifest justice of the case requires it.</p> <p>Deed — Voluntary deed — Absence of power of revocation.</p> <p>The absence of a power of revocation from a voluntary deed of trust standing by itself, has no efficacy to authorize either the party who executed the deed, or any court on his application, to revoke the deed. It is only when connected with other circumstances which show that the clause of revocation was omitted by mistake or fraud, or that the object of the deed of trust has failed by reason of the death of the cestui que trust during the lifetime of the grantor, or some other equally strong and urgent cause, that it can be permitted to justify a decree of revocation.</p> <p>Deed — Voluntary deed — Parent and child — Evidence—Presumption.</p> <p>A child may accept a voluntary deed from a parent without being subject to an obligation to make affirmative proof that the grantor was fully acquainted with the character of the act in which he was engaged, and that the conveyance was fair and conscionable.</p> <p>A voluntary deed without clause of revocation by a father to his son will not be set aside where it appears that it was executed without fraud, accident or mistake, and without any duress or undue influence on the part of the son, and that the son had expended for the support and maintenance of his father a sum equal, if not exceeding, the amount in which he was actually benefited by the deed.</p>

<p>Appeal, No. 266, Jan. T., 1899, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1896, No. 574, on verdict for plaintiff, in case of Paul Burger and Ida Burger, his wife, in the right of said Ida, v. City of Philadelphia.</p> <p>Trespass for personal injuries. Before Pennyp acker, P. J.</p> <p>At the trial it appeared that on May 8,1896, at about 5 P. M., Ida Burger while walking over the intersection of Turner street and Erie avenue in the city of Philadelphia stepped on the unpaved surface of a refilled trench and sank therein to her hips. It appeared from the evidence that on April 14, af sewer inlet had been put in at the place of the accident by William B. M. Conklin who had a contract with the city for such work. The provisions of this contract and the circumstances under which the trench was left at the time the contractor quit work are stated in the opinion of the Supreme Court. The court refused to direct a verdict for defendant.</p> <p>Verdict and judgment for .plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned among others was (5) refusal to give binding instructions for defendant.</p> <p>One who contracts with a competent person exercising an independent employment to do a piece of work not in itself unlawful, or necessarily dangerous to others, according to the contractor’s own method, and without his being subject to control except as far as the results of his work, will not be answerable for the wrongs of such contractor, the subcontractor or his servants committed in the prosecution of such work: Painter v. Mayor of Pittsburg, 46 Pa. 213; Hunt v..Penna. R. Co., 51 Pa. 475; Allen v. Willard, 57 Pa. 374; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Reed v. Allegheny City, 79 Pa. 301; Wray v. Evans, 80 Pa. 102; City of Erie v. Caulkins, 85 Pa. 247.</p> <p>To shift the burden of responsibility from the contractor to the city it must be shown as stated in First Pres. Congregation v. Smith, 163 Pa. 561, that there was an interference by the city; that as a result of the exercise of the power reserved the accident happened and plaintiff was injured thereby; that so far as concerned that part of the work the contractor acted merely as agent or servant of the city: Aiken v. City, 9 Pa. Superior. Ct. 502; Wray v. Evans, 80 Pa. 102.</p> <p>The city was under no obligation when it turned over the work to the contractor to see that there was no negligence on his part. So long as he remained in charge of the work the city had no right to interfere: Allen v. Willard, 57 Pa. 374; Borough of Susquehanna v. Simmons, 112 Pa. 384; Thomas v. Altoona, etc., Electric Ry. Co., 191 Pa. 361.</p> <p>The contract was not independent: Sadler v. Henlock, 4 Ellis & Blackburn, 570; Allen v. Willard, 57 Pa. 374; Cincinnati v. Stone, 5 Ohio, 38; St. Paul v. Seitz, 3 Minn. 297.</p> <p>Whether the contract was dependent or independent, the city is still responsible.</p> <p>The case of Painter v. Pittsburg, 46 Pa. 213, was, it may be, in accordance with the greater weight of authority at the time it was decided. It was one of' a line of cases based upon these cases in the English courts reversing the old case of Bush v. Steinman, 1 Bos. & Pul. 404 (1799), and in which the courts went as far towards the one extreme as Chief Justice Eyke, in Bush v. Steinman, had gone towards the other. But since the decision of Painter v. Pittsburg the courts of England, and of nearly every state in this country, have abandoned the position there held by them and adopted a modification of Bush v. Stein - man, asserting the true version of the law to be that when one makes a contract with another for the doing of a certain work over whom, or his agents or servants, he retains no control other than that looking towards the mere results of the work, he is not liable for the negligent acts of the contractor, or his agents or servants, done by them in the actual performance of the work contracted for. and beyond the scope of the principal’s authority under the contract, but if the performance of a duty is enjoined by the statute or the principal is charged therewith at law, or if the performance of a lawful contract necessarily will bring wrongful consequences to pass unless guarded against, and if the contract cannot be performed except under the right of the principal, the law will require the principal at his peril to see that due care is used to prevent harm, whatever the nature of his contract with those he employs.</p> <p>It is a significant fact that every case without exception cited by Mr. Justice Stkong as authority for his application of the law to the facts in Painter v. Pittsburg, has been reversed by the court that handed it down. He relies in the first place upon a number of English cases, and cites Gray and Wife v. Pullen and Hubble, 32 Law Journal Reports, N. S. 265 (decided in the Queen’s Bench, April 16, 1863), at some-length as the latest exposition of the doctrine by the English courts, and he also cites, at very considerable length, the following American cases: Barry v. St. Louis, 17 Mo. 121, Hilliard v. Richardson, 3 Gray, 349, and Blake v. Ferris, 1 Selden, 48, and refers to Pack v,. The Mayor, etc., of N. Y., 4 Selden, 222, and Kelly v. The Mayor of New York, 1 Kern. 432, as cases in which the New York court of appeals has followed its decision in Blake v. Ferris. Now, it happens that the case of Gray v. Pullen and Hubble, supra, is the very case upon which the English cases turn, the court of exchequer chamber having on appeal reversed the Queen’s Bench. The facts in this case were almost precisely similar to those in .the case now before the court.</p> <p>Barry v. St. Louis, supra, was disapproved by the supreme court of Missouri in Welsh v. City of St. Louis-et al., 73 Mo. 71 (1880).</p> <p>The Supreme Court of Massachusetts has, in the cases of Gorham v. Gross, 125 Mass. 232 (1878), Sturges v. -Theological .Education Society, 130 Mass. 414 (1881), and Khron v. Brock, 144 Mass. 516-(1887); more gradually, but none the less surely, receded step by step from the position taken by it in Hilliard v. Richardson, supra, until, in Woodman v. Metropolitan Railroad Co., 149 Mass. 335 (1889), it took its stand flatfooted upon tlie doctrine laid down by the court of exchequer chamber in Gray v-. Pullen and Hubble, supra;</p> <p>The court of appeals of the state of New York as early as 1858, in the case of Storrs v. City of Utica, 17 N. Y. 104, denied the correctness of the application of the doctrine of independent contractorship made by it to the facts in the case of Blake v. Ferris.</p>

<p>Negligence — Master and servant — Breaking of chain — Question for jury.</p> <p>In an action by an employee against his employer to recover damages for personal injuries suffered in the course of his employment by the breaking of a chain, the case is for the jury where the evidence for the plaintiff shows that the chain at the time of the accident was worn and in bad condition, that it had been in use for five years without inspection, that it had broken about three months before the accident, and that the defendant’s superintendent had been notified of its condition.</p> <p>Negligence — Master and servant — Contributory negligence.</p> <p>In an action by an employee against his employer to recover damages for personal injuries caused by the breaking of a chain, the question of plaintiff’s contributory negligence is for the jury where the plaintiff testifies positively that his hands were in a certain position, admittedly a safe one, when the chain broke, while inferences drawn from other testimony in the case plausibly support the theory that the plaintiff’s hands were in another, and an admittedly, dangerous position.</p>

<p>Boom companies — Tolls—Acts of June 22,1883, P. L. 156, sec. 2, May 21, 1889, P. L. 259, sec. 2.</p> <p>Under the Act of May 21, 1889, amending the act of June 22, 1883, relating to boom and logging companies, a boom company is not confined to its statutory remedy for the collection of tolls, by the stoppage of logs, but as such remedy is inadequate owing to the frequent impossibility of stopping logs, it has the additional remedy of an action of assumpsit.</p> <p>The words “ consent to ” in the last line of the proviso of the Act of May 21, 1889, have no other meaning than “ shall.” A boom company is not bound to furnish the means of floating “unless the owner of the timber and logs shall [consent to] pay the tolls provided for in this act.”</p> <p>In an action by a boom company to recover tolls, where the evidence ■ shows that the timber from which the logs were made was grown on defendant’s lands, and a paper filed of record admitted that the logs were floated out of the stream by the defendant, the defendant will not be permitted to allege that the logs were cut by independent contractors who had obligated themselves to pay all the costs of transportation.</p>

<p>Appeal, No. 233, Jan. T., 1899, by plaintiff, from judgment of Superior Court, Oct. T., 1897, No. 215, reversing judgment of C. P. No. 4, Phila. Co., Sept. T., 1892, No. 639, on verdict for plaintiff in case of John J. Keller v. Baltimore & Ohio Railroad Company.</p> <p>Appeal from Superior Court. See 174 Pa. 65, and 10 Pa. Superior Ct. 240.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in reversing judgment of the court of common pleas.</p> <p>When a common carrier receives goods, the question whether the carrier contracts to carry the goods to their destination, or only to deliver them safely to the next carrier at the point nearest or most convenient to the destination is one of fact for the jury: Baltimore & Phila. Steamboat Co. v. Brown, 54 Pa. 77; Phila. & Reading R. R. Co. v. Ramsey, 89 Pa. 475; Keller v. Balt. & Ohio R. R., 174 Pa. 62.</p> <p>There can be no doubt as to the authority of the railroad agent at Belpre, Ohio, to contract to carry these horses to Frankford, whether the company had a line, track or station there or not-: Easton v. Dudley, 45 Am. &. Eng. R. R. Cases, 341; 1 Wood on Railroads (2d ed.), sec. 165; Deming v. Grand Trunk R. R. Co., 48 N. H. 457; Balt. & Phila. Steamboat Co. v. Brown, 54 Pa. 77; Brooke v. New York, etc., R. R. Co., 108 Pa. 515 ; Penna. R. Co. v. Berry, 68 Pa. 277; Clyde v. Hubbard, 88 Pa. 858.</p> <p>This court has held repeatedly that a bill of lading is not such a complete contract as to exclude all testimony of what is not expressed and necessary to a complete contract. It is but a memorandum of contract: Balt. & Phila. Steamboat Co. v. Brown, 54 Pa. 81; Barnhart v. Riddle, 29 Pa. 96; Gould v. Lee, 55 Pa. 108; Centenary M. E. Church v. Clime, 116 Pa. 151; Greenawalt v. Kohn, 85 Pa. 375; Barclay v. Wainwright, 86 Pa. 191; Bown v. Morange, 108 Pa. 75; Harper v. New York City Ins. Co., 22 N. Y. 443; Grandin v. German Ins. Co., 107 Pa. 32.</p> <p>Where a shipment is accepted by a railroad company, and billed to a point beyond the terminus of its line, the company’s responsibility as a common carrier ceases at the terminus of its line, and the company then becomes the forwarding agent of the shipper only: Jenneson v. Camden & Amboy R. R., etc., Co., 4 Am. Law Reg. (O. S.) 234; Penna. R. Co. v. Berry, 68 Pa. 272; Empire Transportation Co. v. Wallace, 68 Pa. 302; Camden & Amboy R. R. Co. v. Forsyth, 61 Pa. 81; Keller v. Baltimore & Ohio R. R., 174 Pa. 62; Watson v. Ambergate, Nottingham & Boston Ry. Co., 15 Jurist, 448.</p>

<p>Negligence — Master and servant — Measure of employers' liability.</p> <p>Employers are not insurers of the lives or safety of their employees. They are liable for the consequences, not of danger but of negligence ; and the unbending test of negligence in methods, machinery and appliances, is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man.</p> <p>In an action against an employer to recover damages for the death of an employee caused, not by a boiler explosion, but by a sudden and unusual escape of steam in great force and large volume from the end of a-boiler, there can be no recovery against the defendant where the evidence shows that he bought the boiler after making extensive inquiries amongst business men, that he paid a higher price for it than many others were offered for, that it was recommended to him as nonexplosive, that it was in general use, that it was operated by a competent engineer, that it was used three years before the accident, and that three days before the accident it was examined by the official inspector who certified that it would stand a working pressure of double the force of that which was on it when the accident occurred.</p>

Appeal, No. 56, Jan. T., 1900, by plaintiff, from decree of C. P. No. 1, Pliila. Co., Dec. T., 1899, No. 369, dismissing bill in equity in case of Joseph A. Meehan v. Frank Owens. Bill in equity to specifically enforce a contract of sale. The facts appear by the opinion of the Supreme Court. Error assigned was decree dismissing bill.

<p>Decedents' estates — Collateral inheritance lax — Charities—Taxation.</p> <p>The collateral inheritance tax upon a charitable bequest is not a tax within the meaning of the constitution and the act of assembly exempting- from taxation purely public charities.</p> <p>The collateral tax is not a tax upon the property or money bequeathed, but a diminution of the amount that otherwise would pass under the will, and hence that which the legatee really receives is not taxed at all. It is that which is left after the tax has been taken off.</p> <p>There is a radical difference between the levying of a tax upon the specific property of a legatee after it has become vested in possession, and imposing a charge or tax upon the right to have the property by way of succession to the estate of a decedent.</p>

Appeal, No. 184, Jan. T., 1899, by-plaintiff, from judgment of C. P. Luzerne Co., Dec. T., 1895, No. 181, on verdict for defendant, in case of the Bay Shoe Company v. H. G. Leeser. Replevin for stock of shoes. Before Lynch, J. At the trial it appeared that the plaintiff was a corporation engaged in the manufacture of shoes at Harrisburg, and that it established and equipped a shoe store at Wilkes Barre, and placed it under the management of the defendant.

Appeal, No. 325, Jan. T., 1899, by B. G. Morrison, from decree of O. C. Warren Co., Sept. T., 1897, No. 8, in sustaining exceptions to auditor’s report, in the estate of Stephen R. Morrison, deceased. Exceptions to report of William C. Neill, auditor. The facts appear by the opinion of Cbiswell, P. J., specially presiding, which was in part as follows: From the evidence it appears that at the time of his death the estate of the deceased was of doubtful solvency.

Appeal, No. 387, Jan. T., 1899, by plaintiff, from judgment of C. P. Chester Co., Jan. T., 1893, No. 57, on verdict for defendant, in case of William E. Ball, Trustee, v. Joseph Anderson, executor of Eber Anderson, deceased. Assumpsit against a stockholder of a foreign corporation.

<p>Appeal, No. 332, Jan. T., 1899, by contestant, from decree of Special Court, Schuylkill Co., as of C. P. Jan. T., 1896, No. 262, in election contest of Thomas H. B. Lyon v. P. M. Dunn.</p> <p>Election contest before special court.</p> <p>Motion to quash appeal.</p>

<p>Appeal, No. 399, Jan. T., 1899, by defendant, from judgment of C. P. Delaware Co., March T., 1898, No. 267, on verdict for plaintiff in case of James Dougherty v. Borough of Norwood.</p> <p>Assumpsit on a borough contract for sewers. Before Clayton, P. J.</p> <p>At the trial it appeared that in 1896, plaintiff contracted in writing with the defendant to construct certain sewers. Plaintiff claimed to recover for alleged extra work for rock excavation in excess of 4,000 feet, and for extra work in constructing the sewer on what is known as the Schuster right of way. Plaintiff claimed that by a parol agreement between himself and the borough engineer, he was to be paid extra for all rock excavation over 4,000 feet, and that the construction of the sewer on the Schuster right of way was to be paid for as extra work. When plaintiff was on the stand he was asked this question:</p> <p>“Q. Did you have any talk with Mr. Harris before you made any bid on this work? A. Yes, sir.”</p> <p>Mr. Johnson: We object to this.</p> <p>“ Q. Mr. Harris was the engineer to the borough? A. Yes, sir. Q. Did you have a talk with him before you made your bid? A. Yes, sir. Q. With reference to the amount of work to be done? A. Yes, sir. Q. What was said? A. Why, he told me what was to be done and how much rock was supposed to be there, and he told me the day before the bids. He came with a paper for these bids. Q. What was on the paper? A. It was a blank to be filled up, and nothing else was on it, only what was put on it. Q. Was there anything said when the sewer was to be built? A. No; he said the Schuster right of way was not to be built. Q. What was said about the rock ? A. He said 4,000 feet of rock.”</p> <p>E. M. Harris, the borough engineer, testified under objection and exception to conversations which tended to support the testimony of the plaintiff. [18-22]</p> <p>Verdict and judgment for plaintiff for $7,536.35. Defendant appealed.</p> <p>Errors assigned among others were (18-23) rulings-on evidence, quoting the bill of exceptions, and (30) portion of the .opinion quoted in the opinion of the Supreme Court.</p> <p>Where a written contract is resorted to by the parties for the expression of their conclusions it will be regarded as expressing their final views, and as absorbing all other parol understandings, prior or contemporaneous: Wharton on Evidence, see. 1014; Harbold v. Kuster, 44 Pa. 392; Wodoclc v. Robinson, 148 Pa. 503; Ellmaker v. Franklin Fire Ins. Co., 5 Pa. 183; Caley v. Hoopes, 86 Pa. 493; Hall v. Phillips, 164 Pa. 494.</p> <p>The borough engineer or surveyor had no authority to hind the borough by any representation or explanation. He was a subordinate agent, employed to supervise the carrying out of contracts, and not to make them: Malone v. Philadelphia, 147 Pa. 416; Fisher v. Boro, of South Williamsport, 1 Pa. Superior Ct. 386; Drhew v. Altoona, 121 Pa. 401.</p> <p>- Every contract entered into by a borough must be authorized by an ordinance duly enacted by the council, presented to the burgess and approved by him, or passed over his veto: White v. Meadville, 177 Pa. 643; Drhew v. Altoona, 121 Pa. 401.</p> <p>Where there is no ambiguity in the terms of a contract, the fact that a party has acted in accordance with a certain construction is not sufficient to make it a construction binding upon him in the future: Hague v. Philadelphia, 48 Pa. 527; Pa. R. R. Co. v. Erie, etc., R. R. Co., 108 Pa. 621; Alexander’s App., 20 W. N. C. 283.</p> <p>The doctrines of ratification or estoppel cannot be invoked to cure the invalidity of unauthorized acts of officers of a municipal corporation : Morawetz on Corporations, sec. 621; City of La Porte v. Gamewell Fire Alarm Telegraph Co., 35 Lawyers’ Rep. Ann. 686; Atlantic City Waterworks Co. v. Reed, 15 Atl. Rep. 10; Dillon’s Municipal Corporations, secs. 445, 447; Borough of Millerstown v. Frederick, 114 Pa. 435; Milford Borough v. Milford Water Co., 124 Pa. 610; Buchanan v. Litchfield, 102 U. S. 278; Litchfield v. Ballou, 114 U. S. 190.</p> <p>Parol testimony will always be received to vary a written contract where there is fraud, accident or mistake: Phillips v. Meily, 106 Pa. 536; Jackson v. Payne, 114 Pa. 67; Phila. & Del. County R. R. Co. v. Conway, 177 Pa. 364; Kendig v. Roberts, 187 Pa. 339.</p> <p>The borough engineer had authority to bind the borough by representation or explanation, and, while he was a subordinate agent, his duty was to supervise the making of the bids and the work, and to give certificates from which payment was to be made. He had full charge of everything. And when-the bor-. ough adopted his view and paid the money, it ratified all acts of his and is bound by the payments: Dillon on Municipal Corporations, sec. 463; Sicilian Asphalt Paving Co. v. Williamsport, 186 Pa. 256; Spencer v. Colt, 89 Pa. 314; Cullmans v. Lindsay, 114 Pa. 166.</p> <p>Prior conversations and correspondence are admitted to explain a contract: West Republic Mining Co. v. Jones, 108 Pa. 55; Iddings v. Iddings, 7 S. & R. 111.</p> <p>A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the scope of the corporate powers: Silsby Mfg. Co. v. Allentown, 153 Pa. 319; Matter of Shiloh Street, 165 Pa. 390; McKniglit v. Pittsburg, 91 Pa. 273.</p> <p>Money voluntarily paid and received under a claim of right, though not strictly demandable, cannot be recovered back: Morris v. Tarín, 1 Dali. 147; Keener v. Bank of U. S., 2 Pa. 237; Natcher v. Natcher, 47 Pa. 496; Real Est. Saving Inst. v. Linder, 74 Pa. 371; Gould v. McFall, 118 Pa. 455 ; Miller v. Hulme, 126 Pa. 277; Taylor v. Commissioners, 3 P. & W. 112.</p>

<p>School law — Meeting of directors — Vacancy—Act of May 8, 1854, P. L. 618, Sec. 8, and Act of April 11, 1862, P. L, 471.</p> <p>A meeting of school directors called by the president following a previous meeting adjourned “to meet at the call of the president,” is not a regular meeting under the act of April 11, 1862, because it is not held in accordance with any standing regulations of the board, nor by adjournment “ to a time and place certain.”</p> <p>Where a school board adopts a time and place for a regular monthly meeting, and subsequently at a regular meeting adjourns to meet on a different day from that specified in the regulation, such meeting is not a regular meeting within the meaning of the Act of May 8, 1854, sec. 8, relating to the absence of directors from meetings.</p> <p>Under the Act of May 8, 1854, sec. 8, which provides that if a school director shall neglect to attend any two regular meetings of the board in succession unless detained by sickness or prevented by absence from the district, the directors shall have power to declare his seat vacant, the directors have no power to declare the.seat vacant at the second of such meetings, although the resolution to vacate the seat was the last thing done before adjournment. The absence cannot be determined or declared until the meeting is actually adjourned.</p> <p>A school director cannot be deprived of his office because of absence from two successive meetings without being given an opportunity to show, if he can, that his absence was caused by sickness or absence from the district.</p> <p>The act being highly penal, in that it permits a few individuals liable to be governed by personal feeling, to oust by summary proceedings the officer duly chosen by the electors to represent them in their school matters, it must be strictly construed and every step in the proceedings must clearly appear to have been regular and within the authority conferred by the statute.</p> <p>School laiu — Ouster of director for absence — Mandamus—Quo warranto.</p> <p>Where there is no contest as to a school director’s original title to his seat under a valid election, but only as to the legality of his ouster for alleged wilful absence from meetings, the remedy of the director is mandamus to prevent his further unlawful exclusion. The remedy by quo warranto against the person chosen to succeed him does not apply.</p>

<p>Reprises — Definition of.</p> <p>The word “ reprises means such deductions as are required to be made from gross income in order to ascertain the clear or net profit; not deductions for bad management or personal short comings of the holder of the land, or from fire or flood or similar casualty, but deductions for burdens incident to the land as such, certainly including taxes, charges and impositions of all kinds which attach to the land itself.</p> <p>Mines and mining — Goal lease — Reprises—Sewer assessment.</p> <p>Under a stipulation in a coal lease that the lessees shall pay to the lessor a stipulated rent, “ clear of, and over and above all taxes and reprises,1' the lessees are bound to pay municipal assessments for the cost of a sewer.</p>

Appeal, No. 435, Jan. T., 1899, by plaintiffs, from decree of C. P. Lackawanna Co., March T., 1899, No. 5, dismissing bill in equity in case of Charles J. Church efc al. v. William W. Winton et al. Bill in equity to enforce a trust. The facts appear by the opinion of the Supreme Court. ¡Error assigned was decree dismissing bill.

<p>Appeal, No. 253, Jan. T., 1899, by plaintiffs, from judgment of C. P. Bradford Co., Deo. T., 1893, No. 331, on certificate for defendants in case of Hiram Frisbie and Horace Kipp, trading as Hiram Frisbie & Co. v. ■James McFarlane, J. Thorne, Samuel Thorne, trading as James McFarlane & Co.</p> <p>Assumpsit for breach of contract. Before Lynch, P. J.</p> <p>The court charged as follows:</p> <p>[There are two vital questions in tins case, well worthy of •consideration by you. The first question is, were these three Alleged firms, Hiram Frisbie & Co., G. W. Kipp & Co. and Kipp ■& Kizer, in fact, one and the same firm?] [1] and the second is, what is the damage? Now, damage means simply compen-' .sation given to one for the actual injury suffered by him.</p> <p>In 1887, James McFarlane & Co. were the owners of a large tract of timber land, containing, so far as this case is concerned, about 5,614 acres, in Sullivan county, and these other gentlemen mentioned, Frisbie, Kizer and the Kipps, were lumbermen. On December 28,1887, James McFarlane & Co. with-cut giving the individual names of the firm, entered into a written agreement with Hiram Frisbie & Co., without also giving the individual names of this firm, by which McFarlane & Co. «old all the hemlock timber on the lands in question at the rate of $1.75 for every cord of hemlock bark peeled by McFarlane & Co. on these lands. There was a certain provision that McFarlane & Co. should peel 4,000 cords the first year, but by a supplementary agreement, entered into on August 4, 1888, that was changed to 2,000, but that is not the question now. Hiram Frisbie & Co. agreed to pay for all the timber the price of f 1.75 per cord. If peeled in 1888, they were to pay one third of the price, as rated by the cord of bark, on or before June 10, 1889, And another third on August 10, 1889, and the last third on November 10, 1889, and they were to make payments in the-same manner in each of the succeeding years. Frisbie & Co. also agreed that they would not, without the consent in writing-of McFarlane & Co., assign this contract or any rates thereof to any parties whatever. Now, the amount of shortage is riot disputed, as I understand it. The shortage for the years 1891 and. 1892 is admitted to be 4,545^^- cords. So that if there were nothing else in the way, the plaintiffs would -be entitled to recover the market value, less 11.75, the price agreed to be paid for the timber. The amount of that is easily figured out, and there is no dispute as to that fact.</p> <p>[First, then, I will call your attention to a few matters propexfor your consideration, and one of them is whether these three-alleged firms were one and the same firm, because you will observe that if they were in fact the same firm, it makes a great-difference in the result here. As I stated on the trial, it is a. fact, and it is the law, that names do not matter, but what was-the fact and truth as to that question ? First, consider that in. the contract of 1887 the individual names are not given. It is-signed “ Hiram Frisbie & Co.” Shortly after this contract was-executed it seems that G. W. Kipp appeared upon the premises- and, as he states, invested some money for an interest in another-firm, the firm of G. W. Kipp & Co., and was to receive a salary for managing the firm of Hiram Frisbie & Co. So far as-the evidence goes, Frisbie did not appear upon the place at all. He was eliminated from the business and from this case at a. very early stage of the ease, so that the people with whom you have to deal are Horace E. Kipp, George W. Kipp and E. FKizer. George W. Kipp and Horace E. Kipp testify now on this trial that George W. Kipp was not one of the firm of Hiram Frisbie & Co. If you believe from this evidence that George W. Kipp was concerned or entitled to the profits of that concern, and liable for the losses, he was a partner, no matter what he testifies to. . That is, if you believe from the evidence that that was the case. The mere fact of saying a man is or is not a partner does not make him a partner nor relieve him from the responsibility of a partner. George W. Kipp was the principal manager of the business. What did Hiram Frisbie & Co. do, if there was no one in that firm but Hiram Frisbie and Horace E. Kipp ? Substantially nothing; because at an early stage in the proceedings the stocking, as I understand it, the cutting of the trees and getting them to a certain place, which you will remember, was let by G. W. Kipp for Hiram Frisbie & Go., as he says, to Patrick Dorsey, or Dorsey Bros., so that you have Dorsey stocking and G. W. Kipp & Co., or Kizer, manufacturing and selling. What Frisbie & Co. did is pretty hard to discover, if the firm consisted simply of Hiram Frisbie and Horace E. Kipp.] [2]</p> <p>Nest, you have another firm, or alleged firm, concerned in this matter, of Kipp & Kizer. You will remember what they testified to as to that. Now, the two Kipps and Mr. Kizer have substantially testified here, although I do not pretend to give their words — that is for you to remember, and all these facts are entirely for you to pass upon and settle — the two Kipps and Kizer now testify that they were not financially interested in the firm of Hiram Frisbie & Co. It is alleged, and you have heard the„ testimony here, that at a former trial of this same case in this court they did testify that they were interested as partners in the firm of Hiram Frisbie & Co. Now, you are to decide that question, and in reaching your conclusion you will consider the appearance of the witnesses upon the stand, their interest in the case, if you find that they have such an interest, their contradictions in material matters, and whether they were interested financially in the firm of Hiram Frisbie & Co. is a material question in this case. And in arriving at your conclusion as to that, you will consider the sort of men they are, their business ability and intelligence, and whether they fully understood the questions and answered, knowing what they said. If they did at a former tidal answer, with a full knowledge, that they were financially interested in the firm of Hiram Frisbie & Co., it ought to have very great weight with you in determining now whether they were members of the firm of Hiram Frisbie & Co. Several of the persons who testified here, you will remember, admit that they are financially interested in the result of your verdict. They are competent witnesses under the present law of this state, but yon must scrutinize their testimony with care, because we all know, and the law recognizes the fact, that financial interest sometimes will swerve unconsciously a man in giving his testimony. There are very many other matters which it is unnecessary for me to go over. I simply call your attention to -what seems to be tbe pith of this branch of the case.</p> <p>Certificate and judgment for defendants for $9,836.82. Plaintiffs appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them; (3) that the charge was inadequate and misleading; (4) in refusing to strike off judgment.</p> <p>If the general effect of a charge has a tendancy to mislead, it is cause for reversal, though no particular portion of the charge be clearly erroneous: Washington Mutual Fire Ins. Co. v. Rosenberger, 3 W. N. C. 16 ; Peirson v. Duncan, 162 Pa. 187; Erie City Pass. Ry. Co. v. Schuster, 113 Pa. 412; Bughman v. Byers, 21 W. N. C. 494; Phila., Wilm. & Balt. R. R. Co. v. Alvord, 128 Pa.„42; Armstrong v. Hussey, 12 S. & R. 316; Musselman v. East Brandy-wine & Waynesburg R. R. Co., 2 W. N. C. 105; L. Y. R. R. Co. v. Brandtmaier, 113 Pa. 610.</p> <p>A judgment must follow the verdict: Moser v. Mayberry, 7 Watts, 12; Nelson v. Lloyd, 9 Watts, 24; Donnelly v. Graham, 77 Pa. 274; Murdy v. McCutcheon, 95 Pa. 435; Corcoran v. Trich, 20 W. N. C. 372.</p> <p>One of two partners sued jointly has a right, where both have been served, to insist that the plaintiff shall take his judgment against both defendants or neither: Willard v. Graham, 1 W. N. C. 241; Carson v. Carson, 25 W. N. C. 358.</p>

<p>Appeal, No. 76, Jan. T., 1900, by plaintiffs, from order of C. P. Bradford Co., Dec. T., 1898, No. 331, discharging rule to strike off verdict and judgment in case of Hiram Frisbie and Horace Kipp, trading as Hiram Frisbie & Co. v. James McFarlane, J. Thorne, Samuel Thorne, trading as James McFarlane & Co.</p> <p>Rule to strike off verdict and judgment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court discharging the rule.</p> <p>A judgment must follow the verdict :• Moser v. Mayberry, 7 Watts, 12; Nelson v. Lloyd, 9 Watts 24; Donnelly v. Graham, 77 Pa. 274; Murdy v. McCutcheon-, 95 Pa. 435; Corcoran v. Trich, 20 W. N. C. 372.</p> <p>This amendment was not necessary for the trial of the case, because the case had already been tried. It was simply an amendment to confirm the judgment obtained by the unwarranted action of the defendant’s counsel, which power they cannot legally exercise, in that manner: Loew v. Stocker, 61 Pa. 847; Rehfuss v. Gross, 108 Pa. 521; Com. v. Dillon, 81* Pa. 44; Patton v. Pittsburg, etc., Ry. Co., 96 Pa. 169; Fischer v. Penna. R. Co., 2 Pa. C. C. R. 245.</p> <p>Another reason why this judgment against these appellants cannot be sustained is the rule which requires that when an amendment has been allowed in the names of the parties, after the jury has been sworn, they must be resworn according to the amended condition of the record as was held in Maffitt v. Rynd, 69 Pa. 380.</p> <p>G. W. Kipp and E. F. Kiser had notice of the filing of the supplemental ' affidavit of defense, an opportunity to answer and defend, and attempted to do so. It is not the case of taking judgment against a party not served with process, or condemning him without an opportunity of being heard.</p> <p>It may be as a general rule that the defendant in an action has only to do with the legal party plaintiff. But to this rule there are many exceptions. It is the policy of the law to avoid multiplicity of suits, when the rights of the parties can be determined in a single one, to sustain verdicts and judgments, when a case has been tried on its merits: Armstrong v. Lancaster City, 5 Watts, 68 ; Memphis, etc., R. R. Co. v. Wilcox, 48 Pa. 161; Chambers v. Davis, 3 Wharton, 40; Patton v. Pittsburg, etc., Ry. Co., 96 Pa. 169.</p> <p>This court in many cases has treated the record as amended, when it should have been in the court below: Waite v. Palmer, 78 Pa. 192; Shryock v. Basehore, 82 Pa. 159.</p> <p>The court below after verdict or after judgment, while the record remains with it, has power to make the record conform to what was really tried before and found by the jury: Parks v. Boynton, 98 Pa. 875 ; Gold v. Scott, 5 Pa. Superior Ct. 269 Trego v. Lewis, 58 Pa. 469; Wampler v. Shissler, 1 W. & S. 365; Shamburg v. Noble, 80 Pa. 158; Fritz v. Heyl, 8 W. N. C. 374.</p> <p>Parties to an action, whether plaintiffs or defendants, may be struck out or added, whenever such amendments are necessary to a trial on the merits : Rangier v. Hummel, 37 Pa. 130.</p> <p>Statutes relating to amendments are liberally construed in furtherance of trials upon the merits: Fidler v. Hershey, 90 Pa. 363.</p>

<p>Appeal, No. 99, Dec. T., 1900, by P. S. Newmyer, assignee, from order of C. P. Fayette Co., Dec. T., 1895, No. 245, discharging rule to prosecute attachment in case of Slingluff, Johns & Co. v. J. G. Sisler.</p> <p>Rule to prosecute attachment with effect and put the same .at issue to try the question involved therein.</p> <p>From the record it appears that the writ was issued on October 11, 1895, and was served personally the same day. October 15,1895, on petition of the defendant a rule was granted on the plaintiffs to show cause why the attachment should not be ■dissolved, and November 1,1895, the defendant moved to quash the writ, which rule was discharged and motion to quash denied and refused November 8, 1895, after having been argued by ■counsel and fully considered. March 21, 1896, a second petition on behalf of the defendant was allowed to be filed, praying, inter alia, for a rule on plaintiffs to show cause why the attachment should not be dissolved, on which, April 14, 1896, the •court ordered and directed that the prayer of the petition of defendant for a rule to show cause why the attachment should not be dissolved be refused, from which order an appeal was taken to the Supreme Court, where the appeal was quashed, and again, August 27, 1897, the defendant made motion and presented reasons to quash and dissolve the attachment, whereupon the court denied and dismissed the motion because the reasons assigned had been considered by the court on two former applications to quash and dissolve the attachment. On April 11,1898, the defendant appealed from the foregoing and other orders to the Supreme Court, alleging, inter alia, error in refusing to dissolve the attachment. On October 19,1899, the judgment was affirmed. On February 12, 1900, the court discharged the present rule.</p> <p>Error assigned was the order of the .court.</p>

Appeal, No. 387, Jan. T., 189&by defendants, from order of C. P. No. 3, Phila. Co., June T., 1898, No. 244, refusing an interpleader and making absolute^ a rule for judgment for want of a sufficient affidavit of defense, in case of John Barnes, trading as John Barnes & Co., to use of S. J. D. Meade, v. Max Bamberger, Julius Sondheim and Morris Bamberger, trading as L. Bamberger & Co. Assumpsit for goods sold and delivered. Rule for'interpleader.

<p>Appeal, No. 412, Jan. T., 1898, by defendants, from order of C. P. No. 1, Pbila. Co., March T., 1897, No. 591, discharging rule to open judgment in case of Ethelinda Blauvelt v. Frank P. Kemon and George Rowe-</p> <p>Rule to open judgment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court discharging rule to open judgment.</p> <p>Any alteration of a contract by the principal parties without the assent of the surety is fatal to its validity as against the surety: Bensinger v. Wren, 100 Pa. 500.</p> <p>A surety for the completion of work to be performed by the principal where, by the terms of the contract the principal is to be paid by instalments, is discharged if the principal is paid faster than the contract provides :■ Fitzpatrick v. McAndrews, 12 Pa. C. C. 353.</p> <p>The appellant also submits that the charges that the plaintiff has made for finishing and completing the work are so grossly excessive as almost to amount to a fraud.</p> <p>In an application to open a judgment entered upon a warrant of attorney, a wide discretion must necessarily be exercised by the court below, and on appeal the Supreme Court will only reverse where this discretion has been abused.</p> <p>The facts of this case are almost similar to those in Barclay v. Deckerhoof, 151 Pa. 379.</p> <p>The alleged overpayments were for extra work.</p>

<p>Arbitration — Reference—Appeals—Objection to referee — Act of May 14, 1874, P. L. 166.</p> <p>After a case has been referred under the act of assembly of May 14,1874, it is too late after the case has reached the Supreme Court to object either to the form of the report or to the fact that the referee was not “authorized to act as attorney in the Supreme Court,” as required by the act of 1874.</p> <p>Mechanics' liens — Apportionment—Separate blocks of houses.</p> <p>There is nothing in the statutes to.prevent a material-man from filing a separate claim against each block or sub-block of houses, if they are so different in size, material or in location that he can readily know to which block “ the several items of his demand ” were furnished.</p> <p>Mechanics' lien — Reference—Computation of judgment.</p> <p>Where proceedings upon three separate mechanics’ liens are referred to a referee, and the report of the referee specifies the amount of material f urnishéd on the credit of the buildings embraced in each claim, the amount of the apportionment, and the amount of the general credit on the whole claim, sufficient data is furnished from which the judgment on each sci. fa. may be computed.</p> <p>Arbitration — Conclusiveness of report of referee — Review.</p> <p>A referee’s findings of fact supported by sufficient testimony and confirmed by the court below will not be reversed by the Supreme Court, except for clear error. ,</p>

Appeal, No. 282, Jan. T., 1898, by the Fidelity Insurance Trust & Safe Deposit Company executor and trustee, et al., from decree of O. C. Phila. Co., dismissing exceptions to adjudication in the estate of William Harper, Jr., deceased. Exceptions to adjudication awarding $12,000 and interest thereon from decedent’s death to claimant. The facts appear by the opinion of the Supreme Court. Error assigned was in dismissing exceptions to adjudication.

Appeal, No. 430, Jan. T., 1899, by Elizabeth Vandyke et al., from decree of O. C. Phila. Co., Jan. T., 1882, No. 231, sustaining demurrer to petition for review in the estate of Thomas Finley, deceased. Demurrer to petition for bill of review. The facts appear by the opinion of the Supreme Court. Errors assigned were (1, 2) in hearing and considering the demurrer; (3) in sustaining the demurrer.

Appeal, No. 101, Jan. T., 1900, by J. G. Sisler and G. W. Newcomer, from order.of O. P. Fayette County, Dec. T., 1899, No. 293, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of Commonwealth to use v. J. G. Sisler and G. W. Newcomer. Rule for judgment for want of a sufficient affidavit of defense. The facts appear by the opinion of the Supreme Court, and by the report of Slingluff v. Sisler, ante, p. 121.

<p>Appeal, No. 113, Jan. T., 1900, by defendant, from judgment of C. P. Fayette Co., March T., 1898, No. 381, on verdict for plaintiff in case of Daniel Sturgeon and Walter W. Laughead v. James M. Hustead.</p> <p>Ejectment for land in Georges township. Before Taylor, J., of the 27th judicial district, specially presiding.</p> <p>The facts appear by the charge of the court which was as follows:</p> <p>There are two separate actions of ejectment brought here both of which you are to determine by agreement of counsel, the first, wherein Daniel Sturgeon and Walter W. Laughead are plaintiffs against James M. Hustead at No." 381, March term, 1898, whereby they seek to recover an undivided interest in about 120 acres of land situate in Georges township, Fayette county; and also, the same plaintiffs against H. C. Frick Coke Company, a corporation, at No. 382, March term, 1898, whereby the plaintiffs seek to recover an undivided interest in the Connellsville coking vein of coal which underlies this tract of land.</p> <p>Now, gentlemen of the jury, as these cases have developed upon the testimony, it will not be necessary for you to consider tliis testimony as we intend to direct a verdict here which you will return after we have concluded our remarks and answered the points which counsel on both sides have 'submitted. It strikes the court, that, while an action of ejectment is an equitable actjon, the parties under the testimony introduced upon the one side and the other, rely principally upon what is called the legal or paper title, and, in disposing of these cases we will dispose of them along the line of the legal principles that we think apply under the law and the decisions to the question raised here; and that is relating to descent. What has been said by counsel that this would be a hardship and that, if we had any doubt as to how we ought to decide the case, we should settle the doubt by applying the equities in the case, we think hardly applies to these cases. There has been eliminated from the cases any defense, while they introduced some evidence along that line, of adverse possession, or any equitable defense, which makes, particularly an equitable defense in an action of ejectment, an equitable action. So I say that the parties here are depending on the one side and the other upon their legal titles, or paper titles, which they have to the contested interest in this tract of land and in the coal.</p> <p>It appears, gentlemen of the jury, that many years -ago one David Smith owned this tract of land, and that it was sold by him, or by his administrators at his death, to Joshua Davis, and that Joshua Davis thereby became the owner, by purchase, as it would appear, of this 120 acres of land, and died intestate seized of the same on February 20, 1816, leaving to survive him, Catherine Davis, his widow, two daughters, Kezia Davis and Sarah Davis, his father, James Davis, and three brothers and three sisters.</p> <p>On the death of Joshua Davis, the title to his real estate vested in his two daughters, Kezia and Sarah, subject to the life estate of the widow. Kezia Davis having died in 1833, unmarried and without issue, her interest became vested in her sister, Sarah. Afterwards Sarah Davis married Isaiah Custer on February 11, 1840, and had a son born on May 27, 1841, named James Davis Custer, who died August 18, 1841, unmarried and without issue. Sarah Davis Custer, the child’s mother, died June 2,1841, leaving to survive her her husband, Isaiah Custer, and her child, James Davis Custer. On the death of Sarah Davis Custer, the title to this land vested in her child, James Davis Custer, subject to the life estates of the widow of Joshua Davis and the surviving husband of Sarah Davis Custer.</p> <p>All parties agree, at least it would seem, that the title had vested in James Davis Custer, on Ins mother’s death on June 2, 1841.</p> <p>The important question now is, in whom did the title vest after the death of James Davis Custer on August 18, 1841? And that is the question of vital interest in this case.</p> <p>James Davis Custer died without leaving any issue, or brothers or sisters of the whole blood, or their déscendants, but he left his father surviving, and under section 5 of the Intestate Act of April 8, 1833, P. L. 318, the estate would have vested in him if he were not excluded by section 9 of the act, which provides: “ That no person who is not of the blood of the ancestors or other relations from whom any real estate descended or by whom it was given or devised to the intestate, shall, in any of the cases before mentioned, take any estate of inheritance therein,” etc.</p> <p>This being a descended estate, and the father not being of the blood of the ancestor from whom the estate descended, he is not capable of taking any estate of inheritance in this land.</p> <p>Under section 6 of the intestate act, the father and mother must be competent to take an estate of inheritance therein. The father here is not competent to take an estate of inheritance in the land, not being of the blood of the ancestor from whom it descended; and we cite McWilliams et al-. v. Ross, 46 Pa. 369, and Intestate Act of April 8, 1833, P. L. 318.</p> <p>Section 7 provides: “In default of all persons hereinbefore described, the real and personal estate of the intestate shall descend to and be distributed among the next of kin of such intestate.”</p> <p>In the present case there was a default of all persons described in the sections preceding section 7, competent to take an estate of inheritance in this land, consequently the estate must be distributed among the next of kin of the intestate, James Davis Custer, subject to the condition, however, in section 9, that they must be of the blood of the first purchaser.</p> <p>“ The case provided for by section 7 is in default of issue, and of full brothers and sisters and their descendants, and of father and mother competent to take an estate of inheritance; then it shall go to the next of kin generally, if an original estate, and to the next of kin of the line of the first purchaser if a descended estate;” and we quote: McWilliams et al. v. Ross, supra.</p> <p>Who then is contemplated by section 9 as being the “ ancestors or other relations?”</p> <p>In a case of pure descent in order to discover who those “ ancestors or other relations ” are, it is necessary to ascend to the first purchaser, to him who first acquired the estate to his family. He is the perquisitor, and from him the inheritable blood is to be derived: Lewis v. Gorman, 5 Pa. 166, and cases cited; Hart’s Appeal, 8 Pa. 36; Parr v. Banlchart, 22 Pa. 297; 4 Kent’s. Com. p. 406.</p> <p>The next question presented is, who are the next of kin of the intestate, James Davis Custer, of the blood of the ancestor?</p> <p>Under the intestate act of 1833, the next of kin are to be ascertained by the rules of the civil and not of the canon law: McDowell v. Addams et ah, 45 Pa. 430.</p> <p>By the civil law, the computation is from the intestate up to the common ancestor of the intestate and the person whose relationship is sought after, and then down to that person, reckoning.a degree for each person, both ascending and descending. By this mode the intestate is taken as the terminus a quo, and the propinquity to him of any collateral relative is determined by the sum of the degrees in both lines to the common ancestor: McDowell v. Addams et al., supra; 4 Kent’s Com. p. 413.</p> <p>■ Apply this rule to the case in hand: Prom the intestate, James Davis Custer, to his mother, Sarah, is one degree; from Sarah, the mother, to her father, Joshua Davis, is the second degree; from Joshua Davis to his father, James Davis, is the third degree; and from James Davis to his sons and daughters is the fourth degree. And thus it appears that James Davis, the great-grandfather of the intestate, is the next of kin of the intestate, and entitled to this estate, because his relationship to the intestate is, one degree nearer than that of the great-uncles and great-aunts of the intestate, namely, the brothers and sisters of Joshua Davis, the perquisitor of the’estate.</p> <p>Having traced the title to James Davis, the great-grandfather of the intestate, on his death, September 10, 1850, intestate, the estate descended under the intestate act of 1833, to his children and their descendants, the issue or descendants of any deceased child taking by representation the parent’s share. This being the case, the issue or descendants of Kezia Smith and Hannah Nixon, who died prior to the death of their father, James Davis, would be entitled to their parent’s share of this estate.</p> <p>The issue of Kezia Smith would be entitled to the one sixth of the estate, the issue of Hannah Nixon would be entitled to one sixth, and the three sons, David, Zachariah and Samuel Davis, and the daughter, Mary Miller, living at the time of the death of their father, James Davis, would each be entitled to one sixth of the estate.</p> <p>From the foregoing conclusions it is manifest that the plaintiffs, representing part of the interests of the descendants of Kezia Smith and Hannah Nixon, are entitled to recover whatever shares they have the legal titles thereto, and that, if the points of the plaintiff be correctly computed, would be of the coal described in the writ, and the same of the land.</p> <p>Gentlemen of the jury, we will direct a verdict to be entered and the prothonotary to take your verdict for the land and coal in dispute described in the writ in that amount in each case.</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p> <p>The intestate act of 1833 does not expressly provide for lineal ascent of land beyond the father and' mother of the intestate.</p> <p>The act of 1833 reduces the common-law heir’s share of the inheritance, where he is one of a class of kindred, of equal degree of consanguinity to the intestate, but recognizes his right to inherit and does not exclude him therefrom except only in favor of certain expressly enumerated classes of statutory heirs, to wit: the intestate’s father and mother under section 5, and his brothers and sisters of the half blood, and their' issue, under section 6, subject, however, to the restriction in section 9.</p> <p>In the 7th section of the act, the words “descend-to ” should receive their technical common-law construction, and are to. be referred to real estate, while the words “be distributed among ” are to be referred exclusively to personal estate.</p> <p>In the 7th section of the act the words, “next of kin” should be construed according to the nature of the property to be transmitted, and differently as to real and personal estate; as to realty, signifying next of kin competent to take an estate ' of inheritance therein from the perquisitor; but, as to personalty, signifying the nearest kindred, generally, to the intestate, without any distinction of blood : Johnson v. Haines, 4 Dallas, 64; Preston v. Hoskins, 2 Yeates, 545; Cresoe v. Laidley, 2 Binn. 279 ; Bevan v¡ Taylor, 7 S. & R. 397; • Clayton v. Clayton, 3 Binn. 488 ; Bradford v. Bradford, 6 Wharton, 244; Bender v. Dietrick, 7 W. & S. 284; Rupp v. Eberly, 79 Pa. 1415 McDowell v. Addams, 45 Pa. 430; 2 Blackstone’s Com. 208 ; Jenks v. Backhouse, 1 Binn. 96 ; Rigler v. Cloud, 14 Pa. 361; Cochran v. O’Hern, 4 W. & S. 95; Young v. McIntyre, 6 W. N. C. 252; McMasters v. Negley, 152 Pa. 303 ; Shippen v. Izard, 1 S. & R. 222; Simpson v. Kelso, 8 Watts, 247-252; Roberts’s Appeal, 39 Pa. 417 ; Broad Top Coal & Iron Co. v. Riddlesburg Coal & Iron Co., 65 Pa. 435; Baker v. Chalfant, 5 Wharton, 477.</p> <p>As a consequence of our examination of the act of 1833, we hold that on the death of James Davis Custer in 1841, the fee of the land in dispute descended to his three great-uncles and one living great-aunt, and that the plaintiffs not being entitled to claim anything through or under the great-uncles and great-aunt, have no lawful title to any portion of the land described in the writs : Curren v. Taylor, 19 Ohio, 36; Bingham on Descent, pp. 1, 2.</p> <p>If Joshua Davis had died either before or after the passage of the act of 1833, leaving no widow or lineal descendants, his estate in this land could not have passed to his father, James Davis in fee, as against his brothers and sisters; they would have succeeded to the fee, subject to a life estate in the father. As the father, James Davis, could not take an estate of inheritance in this land from his son, Joshua, the perquisitor, as against his own children, so, therefore, he could not take an estate of "inheritance therein from his great-grandson, James Davis Custer, as against those children; and so James Davis Custer’s next of kin, who were competent to inherit it from Joshua, to wit: Joshua’s three brothers and one living sister succeeded to the estate, and their title is now vested in us: Baker v. Chalfant, 5 Wharton, 477; Hart’s App., 8 Pa. 32; Fister’s Est., 2 Woodward’s Decisions, 323; Danner v. Shissler, 31 Pa. 289; May v. Espenshade, 1 Pearson, 139; Ranch’s App., 113 Pa. 98 ; Parr v. Bankhart, 22 Pa. 291; Montgomery v. Petriken, 29 Pa. 118 ; Roberts’s App., 39 Pa. 417; Eby’s App., 50 Pa. 311 ,* Kinney v. Glasgow, 53 Pa. 141; Davis’s Est., 9 W. N. C. 479; Kiegel’s App., 12 W. N. C. 179; Perot’s App., 102 Pa. 235 ; Lynch v. Lynch, 132 Pa. 422; Henszey v. Gross, 185 Pa. 353.</p> <p>Though the intestate act of 1833 does not expressly provide for lineal ascent of lands beyond father and mother, by implication it does provide for such further ascent where such lineal ancestors are decedent’s next of kin under the rules of the civil law.</p> <p>The act, as to all estates capable of being conveyed or devised, does not recognize the right of the heir at common law to inherit as such in any case provided for by the act, but allows him to take only when the person who would have been such heir comes within the description of persons or classes entitled to take under some particular section of the act, and then only because he, as an individual, falls within the specified class.</p> <p>The words “ descend to ” in the 7th section of the act should be construed in harmony with the evident intent and meaning of the act taken as a whole.</p> <p>The words “next of kin” in said section should be construed according to the ordinary legal acceptation of that term, subject to such modification as would evidently result from an application of the rules laid down in other sections of the act, and none other: Hood on Executors, 506.</p> <p>By the rules of the civil law degrees of kinship re computed by continuing up from the propositus to the common ancestor and down to the person whose degree is sought to be ascertained. Hence, if living, the common ancestor is always nearer of kin than any of his descendants outside of the direct line of the propositus : McDowell v. Addams, 45 Pa. 430, Nicholv. Hal],' 28 Pitts. L. Journal, 239; 4 Kent’s Com. 405.</p>

<p>Appeal, No. 100, Jan. T., 1900, by plaintiff, from judgment of C. P. Fayette Co., Dee. T., 1898, No. 53, on verdict for plaintiff in case of Everil F. Springer v. J. H. Somers Fuel Company.</p> <p>Trespass for wrongful entry. Before Reprert, P. J.</p> <p>The facts appear by the charge of the court which was as follows:</p> <p>This is an action for damages brought by Everil F. Springer against Joseph H. Somers and Charles W. 'Somers, doing business as the J. H. Somers Fuel Company, to recover for injuries which the plaintiff alleges he has suffered in his real estate at the hands of the defendants.</p> <p>In 1875, L. M. Speer and wife conveyed to Everil F. Springer a tract of land situate near the borough of Belle Vernon, in this county, containing some thirty-seven acres, and it is this land which the plaintiff alleges was injured by the mining operations of the defendants. As I recall the testimony, the defendants went into the possession of the coal under this tract of land along about 1892, and prior to the time the defendants went into possession of the coal under the land in 1892, their predecessors in the title were N. J. Johnson, S. S. Robinson and D. A. Robinson, doing business under the style of the Cleveland Coal Company.</p> <p>The deed from Speer and wife conveyed this land to Springer, excepting and reserving thereout and therefrom, the six feet of river vein of coal, so there were two estates in this land, the one owned by Springer which included everything except the six feet or river vein of coal, and the estate in the coal, which, prior to 1892, it seems was owned by the Robinsons and thereafter was owned by the J. H. Somers Fuel Company up until about November 1, 1899.</p> <p>The estate in the coal was not accompanied by what are known as mining rights; there were no mining privileges accompanying the grant of the coal; they simply had the title to the six feet or river vein of coal without any mining privileges whatever. Prior to the vesting of the title to the coal in the J. H. Somers Fuel Company, what is known in mining language as the main entry or tunnel was driven under the Springer land and extended under that land, as I recall the testimony, for about 850 feet. This main entry was about six feet wide and eight feet high; the tunnel or main entry was driven by Johnson and Robinson and had been constructed and was in operation at the time the J. H. Somers Fuel Company succeeded them in the ownership of the coal. So you will bear in mind that the present defendants are not liable for any damages which accrued by reason of the construction of this main entry, because they did not construct it. If any damage was done to that property by reason of the driving of this main entry, then those who drove it are liable and not those who succeeded them in this title. So we tell you that if by the driving and construction of this tunnel any damage were done to that property, that damage cannot be recovered as against these defendants, because they did not construct the tunnel or main entry. It seems that through this tunnel or main entry there has been taken out since the time of its construction, coal from adjacent and other tracts of land in the neighborhood, and.it is for the use and occupation of this main entry in the transportation of this coal from adjoining and other tracts of land that this action is brought; the plaintiff claiming that thereby his estate in the land has been damaged; that the use and occupation of this main entry is a trespass and a wrong as against him.</p> <p>Now, it appears that prior to the time that the J. H. Somers Fuel Company obtained title to this coal, it had been mined to á considerable extent; as I recall the testimony, there have been no mining operations conducted in the Springer coal by the J. H. Somers Fuel Company; that all the coal that has been taken out from under the Springer land was taken out prior to their obtaining the title ; the last coal, as I recall the testimony, was some five or six acres which were taken out by Johnson and. Robinson, but since that, no mining operations have been conducted under the Springer land; and all of the coal under the Springer land except the ribs and pillars, in some places possibly amounting, as says a witness, to some twenty-five or thirty per cent óf the total body of the coal, has. been taken out.</p> <p>The tracks which were used for mining the coal under the Springer land, with the exception of the track in this main entry, have been taken up; and the testimony is, that under the present conditions, it would not be profitable to mine any further quantity of the Springer coal, and that none has .been mined, at least, since 1892. And the question then arises in this case whether or not under those conditions, the present owners have any right to make use of the space there in the Springer coal as a road way, to transport coal from adjacent tracts of land ; that is the question in the case. Now the law as I understand it generally, in a case of this kind, ife this: that while the purchaser and owner of the coal is in good faith mining out his coal, his right to the use of the space made vacant by his workings as they progress, cannot be obstructed or interfered with by the owner of the surface : the purchase and ownership of the coal, however, does not give him a perpetual right of way under another’s land; • after his workings in the coal have practically ceased, be cannot use those workings for the purpose of reaching' and transporting adjoining or other coal. Now, if the workings in this mine have ceased and had practically ceased at the time this main entry was constructed, and if this main entry is not being used for the purpose of transporting the coal under this tract, and mining operations are not being carried on in good faith under the Springer tract, and if this main entry is not used and has not .been used and was not constructed for the purpose of being used in connection at least, with the workings under the Springer land, then these defendants would not have the right to maintain this entry or tract, or use it for the purpose of transporting coal from adjoining or other tracts of land. They would be trespassers and they would have no right there under these circumstances and under the law, as I understand it.</p> <p>Now, if that is the case, and if you should so find, then your verdict should be for the plaintiff, and it would be necessary for you to ascertain the amount of damages which the plaintiff has sustained by reason of the wrongful trespass, if you should find that those people are making use of that entry wrongfully.</p> <p>There has been a great deal said in regard to damages, and perhaps it would be as well to read you the definition of compensatory, exemplary and nominal damages. Compensatory damages are such damages as measure the actual loss and are allowed as amends therefor. ’ Exemplary, punitive or vindictive damages are such damages as are in excess of the actual loss and are allowed in theory when a tort is aggravated by evil motive, actual malice, deliberate violence, or oppression or fraud. Such damages are sometimes called “smart money.” We will say right here, there is nothing in this case, gentlemen, that would warrant or justify vindictive or punitive damages. Of nominal damages, the definition is, a trivial sum awarded where a mere breach of duty or infraction of right is shown with no serious loss sustained.</p> <p>The plaintiff alleges that for some seven years these defendants have been making use of this way through his land for the purpose of transporting coal from adjoining and other tracts of land, and there has been some'testimony as to the.amount of coal that has gone through. I do not think it is material whether 100 bushels of coal or 100,000 or 1,000,000 have been ■taken through this main entry; it is not a question of how much coal has been taken through this main entry or heading’; it is not a question of how much the privilege of taking this coal through the main entry would be worth to these defendants. This is not a case of recovering tolls or of recovery for the value of the privilege; that it is not what this plaintiff is here for, and what he would be entitled to recover would not be measured by the advantages which the defendants have made or had out of this right of way, or out of this main entry ; that has nothing to do with the case, and does not affect the case in the slightest degree. What this plaintiff is here suing for is for an injury done to him by the transportation of coal through this entry, and what the defendants have made or lost is entirely immaterial in the consideration of that matter.</p> <p>There has also been considerable discussion as to the vindication of the law and the vindication of a man’s rights in this case. Now, as I understand the law, it is as follows: An injury, legally speaking, consists of a wrong done to a person, or in other words, the violation of his right. For the violation of every right there is a remedy; where, therefore, there has been a violation of a right, the person injured is entitled to an action ; that is, he can sue; if he is entitled to an action, he is at least entitled to nominal damages. Such damages are given in order to vindicate a right which has been invaded. There is where the vindication of the law comes in and there is where a redress for the invasion of a man’s right comes in; it is the right to bring an action and to maintain it, and that is all the vindication the law requires; that is the vindication the invasion of his right requires if there is nothing else in the case. In such cases, damages are given, that is, nominal damages, to vindicate a right which has been invaded. If nothing but a right has been invaded, then nominal damages is all that he should be allowed, and such further damages are awarded as are proper to remunerate him for any specific damages which he has sustained; and it is upon this principle that a person may sustain an action of trespass for the unauthorized entry on his land, although he shows no actual specific damage to have accrued to him; for instance, I go across your land, possibly I do you no actual damage in the way of injury to your crops or by an injury to your soil, and yet you have a right to a verdict against me, because I am a trespasser and I have trespassed on you, but while you have a right to a verdict, the measure of damages would be the amount of injury you will sustain resulting from the wrong complained of.</p> <p>Now, in this case, the wrong complained of is the transporta- ' tion, during the period of ownership of this coal by the defendants, of other coal through this main entry; there was some testimony in regard to damages sustained, by various witnesses, and I am very frank to say to you, gentlemen of the jury, that in the opinion of the court, the plaintiff neither by himself nor by any of his witnesses, has shown that any substantial damages accrued to him, or were done to his property by reason of this trespass, or by the running of this coal through that main entry. I fail to see in the testimony where the running of the coal through this entry from adjoining or other tracts of land, has caused any substantial or actual damage to the estate of this plaintiff; as I recall the testimony, plaintiff was not able to state in what particular any injury had been done to him, and the basis of the estimates made by the other witnesses in his behalf, it seems to the court, were not such as would entitle them to your consideration. Foi instance, take the testimony of Mr. Linn; he makes the estimate upon the value which this privilege was to the defendants; that it was worth that much to the defendants to be allowed to run their coal through this main entry. That is not the question in this case, and so with the other witnesses, and we do not think that the testimony in this case shows that any substantial injury has been done to this plaintiff by the trespass of which he complains, but it is a question for you, gentlemen of the jury, to ascertain whether or not a trespass has been actually committed upon him, or upon his land; if so, then you should allow him, at least, nominal damages; but in the opinion of the court, if you should come to the decision that a trespass has been committed against him, you should allow him nominal damages only.</p> <p>The jury found a verdict in favor of the plaintiff for nominal damages.</p> <p>Error assigned was in instructing the jury to find nominal damages only.</p> <p>An invasion of right being shown, the law holds injury to be a probable result, and therefore gives judgment against the wrongdoer. In other words, it presumes some damage to have resulted from the wrong: 1 Sedgwick on Measure of Damages (7th ed.), p. 75.</p> <p>The appellant considers that the authorities make it clear that he is entitled not only to compensatory damages adequate to the profit the defendant has made out of his trespass upon the appellant’s lands, but to exemplary damages : 2 Sedgwick on Measure of Damages (7th ed.), pp. 328, 324; Wheatley v. Chrisman, 24 Pa. 298; Pittsburg, etc., Ry. Co. v. Lyon, 123 Pa. 140; Reynolds v. Braithwaite, 131 Pa. 419; Williams' v. Es-ling, 4 Pa. 486.</p> <p>was not heard, but in his printed brief said: For tbe purposes of this case, it may be conceded that where there is an invasion of a right the law implies damage, but where the law implies the injury it also implies the lowest or nominal damage: Pastorius v. Fisher, 1 Rawle, 27 ; Ripka v. Sergeant, 7 Watts & Serg. 9.</p>

<p>Landlord and tenant — -Lease of wall for advertising purposes — Holding over.</p> <p>In an action to recover rent for several years in arrears under the lease of a wall for advertising purposes, the case is for the jury where the evidence shows that the view of the wall from the street had been obstructed by a structure on neighboring property, that the lessees had given notice of an intention to quit if the obstructions were not removed, that the obstructions were not removed, that the lessee ceased using the wall shortly thereafter, and that the lessors accepted compensation for the use of the place from other parties. In such a case a verdict and judgment against the plaintiff’s claim will be sustained.</p>

<p>Corporations — Municipal tax on stock — Receivers—Action against nonresident stockholder.</p> <p>A tax assessed by the city of Baltimore under the laws of Maryland against the stock of a Maryland corporation owned by a citizen of Pennsylvania and enfbreed against the receivers of the corporation, may, when paid by such receivers, become by statute a lien against the stock, but the decree of the court in such proceedings does not raise a cause of action in personam against the Pennsylvania stockholder.</p>

<p>Sewers — Assessments of benefits — Acts of March 27, 1865, P. L. 791, June 15, 1871, P. L. 391 and May 16, 1891, P. L. 75.</p> <p>Under the acts of June 15,1871, and May 16, 1891, viewers, in ascertaining damages for property taken for a sewer, have no authority to assess benefits generally, without regard to the cost of the sewer. The act of 1891, is an affirmative and supplementary act, which, cannot be held to intend an implied repeal of the act of 1871. It must be read in view of the general system already existing, which allowed the assessment of land damages.for other improvements, but not for sewers.</p>

<p>Banks and banking — Set-off—Deposit—Promissory note.</p> <p>Where anote given by a depositor to a bank is not due at the time of the failure of the bank, the depositor may, after the note becomes due, set off the amount of his deposit against the note.</p> <p>Partnership— Set-off — Joint claim.</p> <p>A joint claim may be set off by one of the owners in an action against him for his own proper debt, provided he has the express assent of his co-partners, and there are no third interests to be prejudiced.</p> <p>Partnership — Set-off—Banks and banking — Deposit—Promissory note.</p> <p>Where a deposit in a bank at the time of the bank’s failure is the property of two partners, and subsequently one of the partners assigns his interest in the deposit to his copartner, the latter may set off the deposit against a note held by the bank of another partnership of which he is a member.</p>

Appeal, No. 100, Jan. T., 1899, by-Thomas F. Yoglesong, from decree of O. C. Cumberland Co., refusing issue devisavit vel non, in estate of Thomas F. Voglesong, deceased. Petition for issue devisavit vel non.

<p>Appeal, No. 124, Jan. T., 1899, by defendants, from judgment of C. P. Lancaster Co., May T., 1895, No. Ill, on verdict for plaintiff, in case of John H. Derr v. Ella D. Ackerman, John Ackerman and Irwin Ackerman.</p> <p>Transcript of proceedings before a justice of the peace to re-over the possession of real estate bought by the plaintiff at sheriff’s sale. Before Livingston, P. J.'</p> <p>The facts appear by the report of the case in 182 Pa. 591.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

Appeal, No. 68, Oct. T., 1898, by defendant, from judgment of C. P. No. 1, Allegheny County, March T., 1897, No. 684, on case stated in the suit of O. R. Cooke v. James L. Marshall. Case stated on quo warranto. The facts appear by the original report in 191 Pa. 315.

Appeal, No. 85, Oct. T., 1899, by defendant, from judgment of O. P. No. 2, Allegheny Co., Oct. T., 1897, No. 689, on verdict for plaintiff, in case of James W. Wilkinson v. Louisa C. McCullough. Assumpsit by real estate broker for commissions. The facts appear by the opinion of the Supreme Court. The court refused to give binding instructions for defendant and submitted the case to the jury. Verdict and judgment for plaintiff for $1,094. Defendant appealed.

Appeal, No. 162, Jan. T., 1900, by defendants, from decree of C. P. Luzerne Co., May T., liOO, No. 1, continuing preliminary injunction in case of G. J. Clark et al. v. Borough of Luzerne. Bill in equity for an injunction. The bill was as follows: 1. Your orators are residents, electors and taxpayers of the borough of Luzerne, in said county. 2. The defendants above named, in addition to said borough, are the burgess and members of the town council of said borough. 3.

<p>Negligence — Contributory negligence — Province of court and jury— Railroad.</p> <p>In order to justify the court in treating the question of contributory negligence as one of law, not only the facts but the inferences to be drawn from them must be free of doubt. If there is doubt as to either, the case must go to the jury.</p> <p>The whole duty of one about to cross the tracks of a steam road at grade is not in all cases confined to his stopping, looking and listening for the approach of a train. He must stop at a proper place, and when he proceeds he should continue to look and to observe the precautions which the danger of the situation requires. He should stop again if thei’e is another place nearer the tracks from which he can better discern whether there is danger. But whether the place at which he stopped was the proper place at which to stop, and whether there is a second place at which he should stop, are questions of fact for the jury, and not matters of law for the court.</p> <p>The rule that one who goes in front of a moving train which he must have seen if he looked should be held guilty of negligence, is in its nature a rule applicable only to clear cases where the conclusion to be drawn from facts and circumstances is irresistible.</p> <p>Plaintiff while driving a two-horse buggy on a country road approached agrade crossing of a railroad which was atan oblique angle. About 600 or 600 feet from the crossing and on the side on which the train approached, the tracks were in a cut of considerable depth. When plaintiff was about 176 feet from the crossing, he stopped, looked and listened par-' ticularly in the direction of the cut. Neither hearing nor seeing a train he proceeded to go on, and after he had gone about twenty feet, a boy who was riding with him drew down a side curtain and looked up the tracks, and reported that no train was in sight. His horses at this time were on a slow trot, and so continued until the crossing was reached. The diagonal crossing was forty-five feet in length, and going in the direction in which the plaintiff drove, the left hind wheel of a wagon was about three feet beyond the tracks before the right hind wheel was clear of them. The plaintiff knew nothing of the approach of the train until he was about in the middle of the crossing, and then only by observing the flash of the headlight on the ground between his horses. The right hind wheel of the buggy was struck after the left hind wheel was clear of the tracks. No notice was given by whistle or bell or otherwise of the approach of the train, which was running on a down grade at the rate of forty-five or fifty miles an hour. The place at which the plaintiff stopped was the usual place of stopping to look and listen for the approach of a train by those who used the highway. It was the best place from which to observe the approach of a train, as between that place and the crossing the view was obstructed by an embankment. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 57, Jan. T., 1900, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 672, dismissing bill in equity in case of the National Bank of W est Grove v. George H. Earle, Jr., and Richard Y. Cook, managers of the plans for the reorganization of the affairs of the Chestnut Street Trust and Saving Fund Co., of the Chestnut-Street National Bank of the SingerlyPulp Co., and of William. M. Singerly and John G. Johnson.</p> <p>Bill in equity to remove trustees and for discovery.</p> <p>Defendants demurred to the bill. George H. Earle, Jr., and. Richard Y. Cook also filed answers.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Frror assigned was in dismissing the bill.</p>

<p>Partnership — Continuance of firm after death of member — Dissolution.</p> <p>Stipulations in articles of copartnership for the continuance of the firm after the death of a member, and until the consent of all the partners is given to a dissolution, are valid and binding, and on the death of an individual partner will prevent a dissolution.</p> <p>It is not a fraud, actual or constructive, upon creditors 'for a debtor to enter into a partnership agreement in a banking business for the term of ten years with a stipulation that the death of a member during that period should not work a dissolution, but that his interest should remain in the partnership, his representatives, however, to have no voice or control in the management.</p> <p>Partn ership — Disso lution — Findings of fact.</p> <p>It is error for the court to find as a fact a parol agreement between the surviving partners and representatives of a deceased partner for a dissolution of the partnership, where the evidence discloses merely propositions from both sides for settlement not acceded to by either, and no conclusion reached.</p>

<p>Appeal, No. 285, Jan. T., 1899, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1898, No. 748, on verdict for plaintiff, in case of the Land Title and Trust Company v. Northwestern National Bank.</p> <p>Assumpsit to recover the amount paid on a check, the indorsement of which was forged.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $5,376.74. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p> <p>A bank cannot be presumed to have knowledge of the handwriting of indorsers, and the liability of the bank is a liability arising out of the implied terms of the contract between the bank and its depository: Robarts v. Tucker, 16 Adol. & Ellis (N. S.), 560; United Security, etc., Co. v. Central Nat. Bank,-185 Pa. 586; Bank of England v. Vagliano Brothers, L. R. 1891, Appeal Cases, 107.</p> <p>While we do not question that as between the depositor and the bank paying the check, the bank is not permitted to charge against the account of the depositor the amount of a check paid upon a forged indorsement when issued and presented in the-regular course of business, and also that the bank so paying such checks is entitled to recover from the party presenting it the amount thereof if the claim be made with due diligence, it is equally well settled that in either of these cases the right of recovery may be barred by proof of negligence in the plaintiff, or such act outside of the ordinary course of business as to take the case out of the ordinary rule. The facts connected with the issue of this check do take it out of that ordinary rule: Iron City Nat. Bank. v. Fort Pitt Nat. Bank, 159 Pa. 46; Myers v. Southwestern Nat. Bank, 193 Pa. 1; Rick v. Kelly, 30 Pa. 527; Ritchie v. Summers, 3 Yeates, 531.</p> <p>Money paid by a bank upon a forged indorsement of a check to order, can be recovered by it if it proceeds promptly upon discovery of the fact of the forgery : McConeghy v. Kirk, 68 Pa. 200; Chambers v. Union National Bank, 78 Pa. 205 ; Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46; Onondaga County Savings Bank v. United States, 64 Fed. Repr. 703; Turnbull v. Bowyer, 40 N. Y. 456; State Bank v. Fearing, 16 Pickering (Mass.), 533; Howe v. Merrill, 5 Cushing (Mass.), 80.</p> <p>The check upon the appellee was not indorsed by the party in whose favor it was drawn.</p> <p>The action of the appellant was not induced by anything known to it, done by the appellee.</p>

Appeal, No. 262, Jan. T., 1899, by-defendant, from order of C. P. Schuylkill Co., May T., 1898, No. 412, discharging rule to open judgment in ease of Commonwealth. ex rel. the Borough of Shenandoah v. Mary Mel-let. Rule to open judgment. The facts appear by the opinion of the Supreme Court. Error assigned was the order of the court.

Appeal, No. 263, Jan. T., 1899, by defendant, from decree of C. P. Schuylkill Co., Nov. T., 1898, No. 17, discharging rule to open judgment in case of Commonwealth ex rel. the Borough of Shenandoah v. Mary Mellet. Rule to open judgment. The facts appear by the opinion of the Supreme Court. Error assigned was the order of the court.

<p>Appeal, No. 48, Oct. T., 1898, by Joseph W. Craig, from decree of C. P. No. 2, Allegheny County, July T., 1897, No. 828, on bill in equity in case of George Westinghouse v. The German National Bank of Pittsburg and Joseph W. Craig.</p> <p>Bill in equity to compel surrender of certificate of stock.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>The court below entered a decree that the 500 shares of stock mentioned in the bill were the property of . George Westinghouse and ordered that the same should be delivered to him.</p> <p>Error assigned was the decree of the court.</p> <p>The bank did not know of Westinghouse’s ownership, and the bank was justified in making the loan upon the faith of the certificates and thereby became a pledgee of them, for value, with the rights of a bona fide purchaser thereof: Wood’s App., 92 Pa. 879; Dovey’s App., 97 Pa. 153; Miller v. Pollock, 99 Pa. 202; Penna. R. Co.’s App., 86 Pa. 80; Souder v. Columbia Nat. Bank, 156 Pa, 374; Burton’s App., 93 Pa. 214; Gilbert v. Erie Bldg. Assn.,. 184 Pa.. 554 ; McManus v. Laughlin, 186 Pa. 498.</p> <p>Craig, even when only a guarantor, had parted with something of value to him, and had acquired an interest in the fuel gas stock, just the same as an innocent purchaser or pledgeefor value, and with exactly the same rights: Dovey’s App., 97 Pa. 153; Miller v. Pollock, 99 Pa. 202; Jones on Pledges-(1st ed.), see. 127; Bispham’s Eq. (5th ed.) secs. 335, 337;. Forest Oil Co.’s App., 118 Pa. 145; Kerns v.' Swope, 2 Watts,. 75; Jaques v. Weeks, 7 Watts, 261; Meals v. Brandon, 16 Pa, 220; Mulliken v. Graham, 72 Pa. 484.</p> <p>Where one of two parties must suffer from the wrongful act of a third person, the party who clothes that third person with power to perpetrate the wrong must suffer rather - than the innocent party who is deceived and imposed upon : Penna. R, Co.’s App., 86 Pa. 80; Garrard v. Haddan, 67 Pa. 82; Burton’s App., 93 Pa. 214.</p> <p>Craig having paid the debt for which the fuel gas stock was pledged is the lawful holder of that stock apart from the-form of the note or notes which represent the debt: Jones v. N. Y. Guaranty, etc., Co., 101 U. S. 622; Shrewsbury Savings. Institution’s App., 94 Pa. 309 ; Read v. Doak, 22 U. S. Appeals, 669; Spencer v. Clarke, L. R. 9 Ch. Div. 137 ; Rice v. Rice, 2 Drewry, 73 ; Bispham’s Eq. (5th ed.) sec. 40; Basset v. Nos worthy, 2 Leading Cases in Equity (White & Tudor), 1,</p> <p>On the undisputed testimony in this case, thePittsburg Meter Company stock was pledged by Westinghouse-with A. J. Lawrence & Company, as further collateral for moneys due. Clearly therefore Lawrence had no right to rehypothecate the stocks: Act of May 25, 1878, P. L. 155; Cook on Stockholders, sec. 471.</p> <p>A subpledgee in order to hold the pledge discharged of the equities, must have advanced money upon the faith of the apparent ownership of the stocks by the original pledgee and -not only without express notice of the fact that the person pledging to -him .is not the owner, but without being aware of -any such circumstances as would suggest inquiry and the burden is upon him to prove affirmatively all the facts necessary to establish his right to hold the stock: Ashton’s App., 73 Pa.-162; Petrie v. Clark, 11 S. & R. 388; Depeau v. Waddington, 6 Wharton, 220; Altoona Second Nat. Bank v. Dunn, 151 Pa. 232; Royer v. Keystone Nat. Bank, 83 Pa. 248; Kirkpatrick •v. Muirhead, 16 Pa. 117 ; Ryman v. Gerlach, 153 Pa. 197; Leiper’s App., 108 Pa. 377; Colonial Bank v. Cady, L. R. 15 Appeal Cases, 267 ; Fisher v. Brown, 104 Mass. 259 ; Williamson v. Brown, 15 -N. Y. 354; Denny v. Lyon, 38 Pa. 98; Wood’s App., 92 Pa. 390; Souder v. Columbia Nat. Bank, 156 Pa. 374; Merchants’ Nat. Bank v. Livingston, 74 N. Y. 223; Gould v. Farmers’ Loan and Trust Co., 23 Hun, 322; Jones on Pledges, -512; Cook on Stocks and Stockholders, sec. 473; Myers v. Merchants’ Nat. Bank, 27 Abb. New Cases, 266; Gould v. Cent. Trust Co., 6 Abb. New Cases, 381.</p>

<p>Appeals — Certiorari.</p> <p>An appeal in name may be a writ of error or a certiorari in legal effect, and it is necessary in every case to look into the record and determine at the outset whether what is called an appeal is such in fact, ór is a writ of error or a certiorari.</p> <p>Appeals — Certiorari—New jurisdiction — Judicial abuse.</p> <p>Where a-new jurisdiction is created by statute and the court or judge 'exercising it proceeds in a summary method or in a new course different from the common law, a writ of error does not lie, but a certiorari.</p> <p>Certiorari — Testimony—Opinion of the court.</p> <p>On a certiorari neither the testimony nor the opinion of the court below is brought with the record into the appellate court.</p> <p>Appeals — Road law — Act of May 16, 1891, P. L. 79 — Certiorari.</p> <p>Under the act of May 16, 1891, no appeal lies from a decision of the ■court of common pleas determining whether a public improvement was petitioned for by a majority in interest and number of owners of property ■•abutting on the line of the proposed improvement; and on certiorari the ■Supreme Court has no authority to go into the evidence in the case and review the findings of fact that a proper majority had petitioned for the improvement.</p>

Appeal, No. 19, Jan. T., 1900, by-defendants, from judgment of C. P. No. 3, Pliila. Co., Dec. T., 1897, No. 417, on verdict for plaintiff in case of William Ricks v. Patrick H. Flynn, Michael Coffey, John M. Sharp and Michael Connoly, trading as P. H. Flynn & Co. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $6,240. Defendant appealed.

<p>Appeal, No. 314, Jan. T., 1899, by defendant, from judgment of C. P. Blair Co., March T., 1898, No. 71, on verdict for plaintiff in case of Bessie K. Davis v. Township of Snyder.</p> <p>Trespass to recover damages for personal injuries. Before Bell, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[If the weight of the evidence satisfies you that there was negligence on the part of the supervisors in failing to have a guard rail at that particular point, you will go on and inquire further in the line which I will hereafter indicate. On the contrary, if the weight of the evidence fails to satisfy you that there was negligence on the part of the township authorities in not putting a guard rail there, you would stop right there and find for the defendant, but, if you find there was negligence in that absence of a guard rail, the failure to put a guard rail there, in view of the circumstances, then you go on and inquire, in the second place: Was the negligence of the defendant the proximate cause of the injury ? If it was not, then your verdict should be for the defendant, because the township is only liable in the event that its negligence — that is, the negligence of the township — was the proximate cause of the injury.] [1]</p> <p>[Proximate, as an adjective, is opposed to remote. By proximate is meant immediate, but proximate does not exactly mean first in the order of time, but as an incident of the general occurrences culminating in the accident. It may not have its origin in the negligence of the defendant, but in the negligence of someone else other than the plaintiff; but still, if the negligence of defendant was the dominant, controlling factor of the accident, then that negligence would be deemed the proximate cause and the injury the natural and probable consequence of such negligence.</p> <p>In the case of Maxatawny Township v. Bitting, 177 Pa. 218, the rule is laid down that the injury must be “ such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer and likely to flow from his act; ” and then such negligence is proximate cause. Now, keeping in view the definition of proximate cause which I have given you, you will consider the facts of this case. It is claimed on the -part of the defendant that the proximate cause was the sewer pipe being there. Now, if that was the proximate cause, then the township' would not be liable, according to the evidence in this case, because there is no evidence as to how long the sewer pipe was there. It may be, if there had been evidence that the sewer pipe had been there for some considerable time, even two or three days, that it would have been the duty of the supervisors to see that it was gotten out of that place, but, as there is no evidence óí how long the sewer pipe was there, if the accident was caused by the sewer pipe, as the proximate cause, the township could not be held liable for this particular accident. As I said, the defendant claims that the sewer pipe was the proximate cause. If this is so, your verdict should be for the defendant, but you will recollect that, in my definition of proximate cause, I said that proximate cause did not necessarily mean the first of the general occurrences which culminated in the accident. Undoubtedly the sewer pipe, if you believe the evidence of the plaintiff herself, did frighten the horse, and that was the start of all the misfortunes. But, as I said before, it does not necessarily follow that the first start of a series of events is the proximate canse. The proximate is the dominating cause, the principal cause of the injury.] [2]</p> <p>[It is claimed on the part of the plaintiffs that the sewer pipe was only a mere incident; and, if this is so, then the sewer pipe matter should be dismissed from your minds entirely. If it is a mere incident in the sense that a piece of paper would be an incident — a horse frightening at a piece of paper in the road; but if the road is good and level, as a general rule, no harm is done, because in a few minutes one gets his horse under control. And the plaintiffs claim here that the sewer pipe w*as a mere incident, that the dominant cause of the injury, the proximate cause, was the failure on the part of the defendant to have a guard rail there. And if you are satisfied from the weight of the evidence that that was the dominant and principal cause of the injury, you would dismiss entirely the server pipe incident from the case.] [3]</p> <p>[Another way of determining what was the proximate cause of the injury is this: Were the supervisors of Snyder township negligent in not placing a guard rail at this particular place ? And if they were, should they have seen that, in the absence of a guard rail, if a horse frightened at that particular place, the probabilities were that there would be an accident, and that the horse or buggy, each or both, would go into the river? If that was the probable result of the negligence of the defendant in not placing a guard rail at this point, then the absence of a guard rail would be the proximate cause of the accident, and not the incident to the general accident, to wit: the horse frightening at the sewer pipe.] [4]</p> <p>[Now, if you find that the absence of a guard rail was not the proximate cause of the injury, you stop right there and find for the defendant. But if the absence of a guard rail, the negligence on this behalf on the part of the defendant, was the proximate cause of the injury, then you go on and inquire in the next place, was the plaintiff free from contributory negligence which contributed, in the least, to produce the injury?] [5]</p> <p>[In the definition which I gave you of the duties of supervisors, I said they were to provide roads which are reasonably safe for ordinary travel, by ordinary vehicles, drawn by horses of ordinary docility, driven by drivers of ordinary skill and judgment; and if accidents occur partly because of the negligence of the township authorities and partly because of want of ordinary skill and judgment on the part of the driver, then the township would not be held liable, because the law has no scales with which to weigh the negligence of one and the other and determine which is most negligent, and put the responsibility on the most negligent.</p> <p>It is argued on the part of the defendant in this case that Miss Blanche Kocher, who was driving, did not do, under the circumstances, what a person of ordinary prudence and judgment would have done; 'that she pulled the horse hard and pulled on the right line, and that she whipped the horse with the line. It is argued on the part of the defendant that she should have spoken to the horse and possibly he would have gone past, and that she^should have taken the whip and whipped him past.</p> <p>If there was any contributory negligence on the part of Blanche Kocher, the driver, such contributory negligence would be imputed to the other occupant of the buggy, Miss Bessie, and would likewise be imputed to the owners of the buggy, the two Kocher brothers, of whom I may speak at the conclusion of this charge. If you are satisfied from the Weight of the evidence that there was want of ordinary skill and judgment on the part of Miss Blanche Kocher in driving that horse, under the circumstances, it would bar the plaintiff’s right to recover, and your verdict would be for the defendant. But, at the same time, in determining what is ordinary skill and judgment, you will remember that you are to determine not what is ordinary skill and judgment if the party would have a half day’s notice, but what is ordinary skill and judgment under the circumstances. Mrs. Davis says that all was over like a flash, and it is a well known fact that even the most prudent man, when suddenly thrown in a place of danger, may make some mistake of judgment which he would not make if he had ample time to think it over. And if the defendant township, by its negligence in failing to erect a guard rail at this point, placed the plaintiff in a position of sudden danger, that fact should be considered by the jury in determining whether or not the plaintiff was guilty of contributory negligence. If you are satisfied by the weight of the evidence that the plaintiff was guilty of con-tributary negligence, that Miss Blanche Kocher was guilty of contributory negligence, stop right there and find. for the defendant; but, if you find for the plaintiff on this question of contributory negligence and also on the preceding questions that I have submitted to you, you will go on and assess the damages.] [6]</p> <p>Verdict and judgment for plaintiff for $2,026.36. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p> <p>Where the facts are undisputed or admitted, the question of proximate or remote cause becomes a question of law for the court to decide, and he cannot shift the responsibility by leaving it to the jury: West Mahoney Township v. Watson, 116 Pa. 344; Bunting v. Hogsett, 139 Pa. 363 ; Behling v. Southwest Penna. Pipe Lines, 160 Pa. 359; Willis v. Armstrong County, 183 Pa. 184; Heister v. Fawn Township, 189 Pa. 253; Jackson Township v. Wagner, 127 Pa. 184; Dixon v. Butler Twp., 4 Pa- Superior Ct. 333; Trexler v. Greenwich Twp., 18 Pa. 214; Schaeffer v. Jackson Twp., 150 Pa. 145.</p> <p>The sewer pipe caused the accident: Schaeffer v. Jackson Twp., 150 Pa. 145; Chartiers Twp. v. Phillips, 122 Pa. 601; Jackson Twp. v. Wagner, 127 Pa. 184; Herr v. Lebanon, 149 Pa. 222; Worrilow v. Upper Chichester Twp., 149 Pa. 40; Kieffer v. Hummelstown Borough, 151 Pa. 304; Heister v. Fawn Twp., 189 Pa. 253; Card v. Twp. of Columbia, 191 Pa. 254.</p> <p>Plaintiff was guilty of contributory negligence: Heister v. Fawn Twp., 189 Pa. 253 ; Schaeffer v. Jackson Twp., 150 Pa. 145 ; Keeley v. Stanley, 27 W. N. C. 363; Winner v. Oakland Twp., 158 Pa. 405; Aiken v. Penna. R. Co., 130 Pa. 380; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293 ; King v. Thompson, 87 Pa. 365; Hayman v. Penna. R. Co., 118 Pa. 508; Barnes v. Sowden, 119 Pa. 53.</p> <p>The defendant’s negligence was for the jury: Burrell Twp. v. Uncapher, 117 Pa. 353 ; Bitting y. Maxatawny Twp., 177 Pa. 213; Boone y. Twp. of East Norwegian, 192 Pa. 206.</p> <p>The sewer pipe was not the cause of the accident: Boone y. Twp. of East Norwegian, 192 Pa. 206; Cage v. Twp. of Franklin, 8 Pa. Superior Ct. 89 ; Ilabecker v. Lancaster Twp., 9 Pa. Superior Cb. 553 ; Closser y. Washington Twp., 11 Pa. Superior Ct. 112; Cage v. Franklin Twp., 11 Pa. Superior Ct. 533.</p> <p>There was no contributory negligence : Sprowls y. Morris Twp., 179 Pa. 219; Kitchen v. Union Twp., 171 Pa. 145; Mellor v. Bridgeport, 191 Pa. 562; O’Malley y. Boro, of Parsons, 191 Pa. 612.</p>

<p>Appeal, No. 125, Jan. T., 1899, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1896, No. 19, on verdict for plaintiff, in case of Hiram S. Worden v. Mary Connell.</p> <p>Assumpsit on a building contract. Before Purdy, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned were (1-4) the rulings on evidence referred to in the opinion of the Supreme Court; (5-12) portions of charge referred to in the opinion of the Supreme Court.</p> <p>The plaintiff’s claim was for work and labor done under a contract. Our defense was that the work was not done in accordance with the terms of the contract. The question of performance and of the value of the work was for the jury and not for the court, and in order to determine that question, both sides should be heard: Crawford & Moyes v. McKinney, 165 Pa. 611; Miller v. Phillips, 81 Pa. 218; Smith v. Brady, 17 N. Y. 173.</p> <p>cited Shaw v. Lewistown, etc., Turnpike Co., 3 P. & W. 445, Rugg v. Moore, 110 Pa. 237, Lovell v. St. Louis Mutual Life Ins. Co., Ill U. S. 264, Clark v. Philadelphia & Reading Coal & Iron Co., 40 Leg. Int. 140, Dubois v. Del. & Hudson Canal Co., 4 Wend. (N. Y.) 285, Hall v. Rupley, 10 Pa. 231, Moulton v. Trask, 9 Metcalf (Mass.), 577, Fletcher v. Cole, 23 Yt. *114, Moorhead v. Fry, 24 Pa. 37, and Groves v. Donaldson, 15 Pa. 128.</p>

<p>Appeal, No. 4, Jan. T., 1900, from j sdgment of C. P. No. 1, Phila. Co., June T., 1899, No. 374, on verdict for plaintiffs, in case of William M. Anderson and William P. Adams, copartners, trading as Anderson & Adams, v. National Surety Company.</p> <p>Assumpsit on a contract. . Before Brégy, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendants’ points among others were as follows :</p> <p>1. A party who avails himself of the act of an agent must, in order to charge the principal, prove the authority under which the agent acts. The burden of proof lies on him to establish the agency and the extent of it. Acts done by the alleged agent are not proof of his authority to act for the principal: Hays & Wick v. Lynn, 7 Watts, 525; Moore’s Executors v. Patterson, 28 Pa. 505. Answer : Refused. [9]</p> <p>2. There is not evidence in this case such as is sufficient to show G. H. Taylor to have been an agent of the defendant company legally authorized to enter into a contract with the plaintiffs such as is here sued on, and nothing said or done by him is to be considered by the jury as binding the defendant in this action. Answer: Refused. [10 ]</p> <p>3. There is no evidence of any authority in G. H. Taylor, the general agent of the defendant corporation, to make the contract set up by the plaintiffs in this action: 12th St. Market Co. v. Jackson, 102 Pa. 271. Answer: Refused.</p> <p>Verdict- and judgment for plaintiffs for 13,322.31. Defendant appealed.</p> <p>Errors assigned among others were (5, 6) in submitting the question to the jury as to what was the contract; (9-11) above instructions, quoting them.</p> <p>Taylor denies absolutely that he ever had a conversation with Anderson or Adams of the purport stated, and such parol testimony, if admitted, would certainly contradict, vary, alter and modify the written contract presented by Taylor in the letter of September 10, 1898, such contract being altogether unambiguous in its terms, and there being no claim of fraud, misrepresentation, accident or mistake, which alone would justify the admission of such testimony: Collins v. Baumgardner, 52 Pa. 461; Rearieh v. Swinehart, 11 Pa. 233; Dickson v. Hartman Mfg. Co., 179 Pa. 343; Corcoran v. Mut. Life Ins. Co. of N. Y., 179 Pa. 132; Halberstadt v. Bannan, 149 Pa. 51.</p> <p>Taylor’s authority was denied by the appellants; the court below took the consideration of all the facts bearing on the question from the jury, assuming there was no proper controversy about it. The rule is that whoever deals with an agent constituted for a special purpose, deals at his peril when the agent passes the precise limitations of his power: Edwards v. Dooley, 120 N. Y. 540; Odióme v. Maxcy, 13 Mass. *179; Mechanics’ Bankv. Schaumburg, 38 Mo. 228; Stewart v. Woodward, 50 Vt. *78; Mundis v. Emig, 171 Pa. 417; Noble & Hall v. Lycoming Fire Ins. Co., 91 Pa. 387; Union Refining & Storage Co. v. Bushnell, 88 Pa. 89; Williams v. Getty, 31 Pa. 461.</p> <p>The responsibility of the appellants was a conclusion of facttobe deduced from circumstances by a jury rather than assumed by the court: Jordan, v. Stewart, 23 Pa. 248; Nicholson v. Golden, 27 Mo. App. 132; Fisher v. Harrisburg Gas Co., 1 Pearson, 122; Langenheim v. Anshutz Bradberry Co., 38 W. N. C. 505; 12th St. Market Company v. Jackson, 102 Pa. 269.</p> <p>A principal is responsible for the acts of his agent, within the apparent scope of his authority, although there may be as between the principal and agent, a restriction upon that authority: Williams v. Getty, 31 Pa. 461; Hill v. Nat. Trust Co., 108 Pa. 1; Balt. & Phila. Steamboat Co. v. Brown, 54 Pa. 77; Harrington v. Bronson, 161 Pa. 296.</p> <p>Under the evidence in this case, the court below could not do otherwise than to admit parol testimony as to the terms of the contract and then leave it to the jury to decide what those terms were: Holt v. Pie, 120 Pa. 425.</p>

<p>Appeal, No. 20, Jan. T., 1900, by W. L. Watson et al., executors, from decree of O. C. Luzerne County, No. 398 of 1894, sustaining exceptions to account, in estate of Thomas Waddell, deceased.</p> <p>Exceptions to account.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>The court sustained exceptions to the account, and surcharged the executors with 136,662.25.</p> <p>Error assigned was the decree of the court.</p> <p>In pursuance of the testator’s explicit directions, the executors operated the colliery, pending sale thereof, in a workmanlike manner, and did with the property, in all respects, what a prudent man would do with his own under like circumstances.</p> <p>It is the will of the testator and not the will of even a majority of the legatees that should govern the action of executors. The minority would still have a right to demand that the executors carry out the will on pain of surcharge if loss followed their failure to do so.</p> <p>The measure of a trustee’s duty in the management of the trust estate is good faith and the exercise of common skill, prudence and caution: Bartol’s App., 182 Pa. 407; Webb’s App., 165 Pa. 330; Neff’s App., 57 Pa. 91; Semple’s Est., 189 Pa. 388.</p> <p>He will not be surcharged with the amount of a loss arising from a mere error of judgment: Lancaster’s Est., 18 Phila. 10; Naglee’s Est., 52 Pa. 154; Old’s Est., 176 Pa. 150; Pleasonton’s App., 99 Pa. 362; Williams’s App., 73 Pa. 249; Getz’s Est., 12 Phila. 143; Stewart’s Est., 110 Pa. 425; Dillebaugh’s Est., 4 Watts, 177; Bartol’s App., 182 Pa. 407; Knight v. Lord Plimouth, 3 Atkyn, 480; Semple’s Est., 189 Pa. 388; Springer’s Est., 51 Pa. 342; Rowth v. Howell, 3 Yes. 565; Calhoun’s Est., 6 Watts, 185; Webb’s Est., 165 Pa. 330; Doyle’s Est., 2 Del. Co. Rep. 196; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Kentucky Central R. R. Co. v. Gastineau, 83 Ky. 119.</p> <p>There was no negligence in the mere fact that the executors conducted operations until a sale of the colliery was arranged. As to this they had no discretion: Dillebaugh’s Est., 4 Watts, 177; Doyle’s Est., 2' Del. Co. Rep. 196; Weigand’s App., 28 Pa. 471; Naglee’s Est., 52 Pa. 154; Pulpress v. African M. E. Church, 48 Pa. 204; Perry on Trusts, 511; Hill on Trustees, *488; Williams’s App., 78 Pa. 249.</p> <p>It would have been idle for the executors to apply to the orphans’ court for directions as to how they should run the colliery, and their failure to do so is no evidence of negligence: Act of May 19, 1874, P. L. 207; Lafferty’s Est., 3 Pa. Dist. Rep. 453; Odd Fellows Savings Bank’s App., 123 Pa. 356; Old’s Est., 176 Pa. 150.</p> <p>A trustee is not required to be infallible in his judgment, nor to possess the power of anticipating events not generally looked for: Cridland’s Est., 132 Pa. 479; Old’s Est., 176 Pa. 150 ; Jack’s App., 94 Pa. 367; Williams v. LeBar, 141 Pa. 149.</p> <p>A sale was a primary object of the testator.</p> <p>Mere waiting in the delusive hope of a rise in price and better conditions of the coal market is a speculation of the rankest sort, and no executor or trustee, especially he who sees all properties about him constantly decreasing in value, is justified in delaying to sell where the will imperatively demands a conversion : Merkel’s Est., 131 Pa. 584; Leslie’s App., 63 Pa. 355 ; Chambersburg Savings Fund Assn.’s App., 76 Pa. 230.</p> <p>Without express authority conferred by the will, a trustee may not embark the general assets of the estate in a business authorized to be continued: Burwell v. Cawood, 2 How. (U. S.) 560; Wilcox v. Derickson, 168 Pa. 331; McArdle v. West Phila. Title & Trust Company, 7 Pa. Superior Ct. 328; Shinn’s Est., 166 Pa. 121; Ex parte Richardson, 3 Maddock, 138.</p> <p>The executors were not authorized by the will nor the law tspend any of the general assets in the mining operations: Mc-Neillie v. Acton, 4 De G. M. & G. 744-749; Smith v. Ayer, 101 U. S. 320 ; Burwell v. Mandevill, 2 How. 560; Ex parte Garland, 10 Vesey, 110; Wilcox v. Derickson, 168 Pa. 331; Mc-Ardle v. West Phila. Title & Trust Co., 7 Pa. Superior Ct. 328; Ferry v. Laible, 32 N. J. Eq. 791.</p>

<p>Appeal, No. 307, Jan. T., 1899, by-plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1897, No. 332, sustaining exceptions to report of referee in case of Robert Betham v. Philadelphia.</p> <p>Exceptions to report of referee, Robert W. Finletter, Esq.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court in an opinion by McMichael, J., sustained exceptions to the report-.</p> <p>Errors assigned were in sustaining exceptions to referee’s report.</p> <p>It will not be pretended that a court of equity would have restrained the defendant from prosecuting the work of draining the lands and building the sluice, and it is respectfully submitted that for its negligent acts in so doing whereby the innocent plaintiff has been made to suffer, the city should be held liable: Allentown v. Kramer, 73 Pa. 406; Torrey v. Scranton •City, 133 Pa. 173; Blizzard v. Borough of Danville, 175 Pa. 479.</p> <p>It is respectfully submitted that it is immaterial whether the city had authority or not. This is an action in tort and not upon a contract. The city undertook to perform the work and did it negligently. By what authority can the city be held exempt from the consequences of its wrong? Jones on Negligence of Municipal Corporations p. 35; N. Y., L. E. & W. R. R Co. v. Haring, 47 N. J. Law, 137 ; Hutchinson v. Western & Atlantic R. R. Co., 53 Tenn. 634; Salt Lake City v. Hollister, 118 U. S. 256 ; Dillon on Municipal Corporations, sec. 976.</p> <p>Aside from all other questions it is respectfully contended that the liability of the city in this case may be founded directly upon the broad words of the constitution, article 16, section 8: Butchers’ Ice & Coal Co. y. Philadelphia, 156 Pa. 54; In re> Walnut' Street Bridge, 191 Pa. 158.</p> <p>The so-called “ public work ” was not a sewer, surface or otherwise, as claimed by the appellant. It was not. a part of the sewerage system of Philadelphia, nor was it connected,, directly or indirectly, with said system. It was in no-sense a “public work ” within the legal definition, of the term.</p> <p>The construction of the sluice was not within the scope of' the municipal authority: Grant v. Erie, 69 Pa. 420 ; Carr v.. Northern Liberties, 35 Pa. 324; Fair v. Philadelphia, 88 Pa.. 309; Pittsburg v. Grier, 22 Pa. 54; Philadelphia v. Collins, 68 Pa. 106 ; Philadelphia v. Gilmartin, 71 Pa. 148; Allegheny, City v. McGlurkan, 2 Harris, 81; Salt Lake City v. Hollister,. 118 U. S. 256 ; First National Bank y. Graham, 100 U. S. 699;. P. W. & B. R. R. Co. v. Quigley, 21 Howard, 202; Merchants Nat. Bank v. State Nat. Bank, 10 Wall. 604; Thayer v. Boston, 19 Pickering, 511; North Penn. R. R. Co. v. Stone, 3 Phila. 421; Winpenny v. Philadelphia, 65 Pa. 135 ; N. Y., L. E. & W. R. R. Co. v.. Haring, 47 N. J. Law, 137; Hutchinson y. Western & Atlantic R. R. Co., 53 Tenn. 634; Greenwood v. Town of Westport, 60 Fed. Repr. 560 ; Dillon on Mun. Corp. (4th ed.) sec. 89; Thomson y. Lee County, 3 Wall. 327;. Thomas v. Richmond, 12 Wall. 349; Dalrymple v. Wilkes-Barre, 2 Luz. Reg. 39; Wimer v. Worth Township, 104 Pa. . 320 ; Shroder y. Lancaster, 6 Lan. Bar. 201; Charles River-Bridge y. Warren Bridge, 11 Peters, 544; Perrine v. Chesapeake & Delaware Canal Co., 9 How. 172.</p> <p>The authority having been granted to the Meadow Company in express terms, it alone has authority to construct and. maintain the works: Phila. v. Ward, 174 Pa. 51.</p> <p>In the absence of an obligation upon the city to plan, construct and maintain the work, the city would not be required to-do it; nor would it be liable if after having constructed the-work it permitted it to become valueless for the purpose of its-construction: McDade v. Chester, 117 Pa. 414; Cavanagh v.. Boston, 139 Mass. 426; Wheeler v. Essex Public Board, 39' N. J. Law, 291; Smith v. City of Rochester, 76 N. Y. 506.</p> <p>The work could lawfully be done by the city only in the exercise of the police power vested in the municipality as a political subdivision of the state : Scott v. Philadelphia, 81 Pa. 86; Rutherford v. Maynes, 97 Pa. 78 ; Wurts v. Hoagland, 114 U. S. 610; Tidewater Co. v. Coster, 3 C. E. Green, 518; O’Reiley v. Kainkakee Valley Draining Co., 32 Indiana, 169; State v. Blake, 7 Vroom, 447 ; State v. Newark, 3 Dutch. 194; Dillon on Mun. Corp. sec. 975 ; Elliott v. Phila., 75 Pa. 347 ; Boyd v. Ins. Patrol, 113 Pa. 270; McDade v. Chester, 117 Pa. 414.</p> <p>If not in the exercise of police power, the work was done as a mere volunteer without authority in relief of the Meadow Companj'-, under whose control it had remained as a completed work for many months prior to the accident: Wharton on Negligence (2d ed.), sec. 438; Curtin v. Somerset, 140 Pa. 70; First Congregation v. Smith, 163 Pa. 561.</p>

<p>Appeal, No. 308, Jan. T., 1899, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T.,1897, No. 333, sustaining exceptions to report of referee in case of •James O’Neill v. Philadelphia.</p>

<p>Appeal, No. 219, Jan. T., 1899, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1898, No. 245, on verdict for defendant in case of Julius Smith, Administrator of the Estate of Harry L. Smith, deceased, v. The Northwestern Mutual Life Insurance Company.</p> <p>Assumpsit on a policy of life insurance. Before Lyons, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>We say to you that, under the uncontradieted evidence in this case, the answers to these two questions, first, “ When did you last consult a physician, and for what? ” Answer: “ Costive bowels, ten months ago; ” and the second question: “Have you had since childhood any of the following diseases or disorders, spitting or raising of blood?” Answer: “No,” were untruthfully made; that the answers were material to the risk, and that by reason of the untruthfulness of these answers, the plaintiff cannot recover in this action the amount of the policy declared upon, and your verdict must be for the defendant.”</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was (4) portion of the charge as above.</p> <p>The case was for the jury: Wall v. Royal Society of Good Fellows, 192 Pa. 577; Penn Mut. Life Ins. Co. v. Mechanics’ Savings Bank & Trust Co., 38 Lawyers’ Annotated Rep. 1; Corcoran v. Mutual Life Ins. Co., 183 Pa. 443; Howard Express Co. v. Wile, 64 Pa. 201; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 396; Keatley v. Travelers’ Ins. Co., 187 Pa. 197; Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250; Dietz v. Metropolitan Life Ins. Co., 168 Pa. 504; Smith v. Metropolitan Life Ins. Co., 183 Pa. 504; Hermany v. Fidelity Mut. Life Assn., 151 Pa. 17.</p> <p>The answer of the insured violated his warranty: Wall v. Royal Society of Good Fellows, 179 Pa.-355; Mengal v. Northwestern Mutual Life Ins. Co., 176 Pa. 280; U. B. Mut. Aid Society v. O’Hara, 120 Pa. 256; Lutz v. Metropolitan Life Ins. .Co., 186 Pa. 527; March v. Metropolitan Life Ins. Co., 186 Pa. 629.</p> <p>Even if it be assumed that his answer was not deliberately false, yet having knowledge of the hemorrhage, it cannot be claimed that his answer was full and fair: American Union Life Ins. Co. v. Judge, 191 Pa. 484; March v. Metropolitan Life Ins. Co., 186 Pa. 629; Lutz v. Metropolitan Life Ins. Co., 186 Pa. 527.</p> <p>It is idle to submit evidence to the jury when they could justly find only in one way: North Penna. R. R. Co. v. Commercial Bank, 123 U. S. 727; Eister v. Paul, 54 Pa. 196; Schempp v. Fry, 165 Pa. 510; D., L. & W. R. R. Co. v. Converse, 139 U. S. 469 ; Angier v. Eaton, Cole & Burnham Co., 98 Pa. 599; Mengel v. Northwestern Mutual Life Ins. Co., 176 Pa. 280; Meyer-Bruns v. Penna. Mutual Life Ins. Co., 189 Pa. 579.</p>

<p>Appeal, No. 62, Jan. T., 1900, by William F. Kitchin, from order of C. P. Berks Co., May T., 1896, No. 45, discharging rule to mark judgment to use of W. F. Kitchin and to stay execution in case of Mary C. Brumbach, now to the use of John Swavely v. James B. McLean, administrator of Adam Johnson, deceased.</p> <p>Rule to mark judgment to use of W. F. Kitchin and to stay execution.</p> <p>The facts appear'by the opinion of the Supreme Court.</p> <p>Error assigned was the order discharging the rule.</p> <p>The assignee of a mortgage takes it discharged of the equities of persons not parties to it of which he has no notice: Mott v. Clark, 9 Pa. 399; Bigley v. Jones, 114 Pa. 510.</p> <p>The act of April 9, 1849, puts the assignment of a mortgage upon equality with deeds for the conveyance of land, and it is nowhere regarded as an appendage to the mortgage: Pepper’s App., 77 Pa. 373.'</p> <p>It is a principle of general application that one who purchases from another not in possession is charged with knowledge of the claims of him who is in possession: Jones on Mortgages, sec. 476;'</p>

Appeal, No. 78, Jan. T., 1900, by Elizabeth Anna Christie, from decree of O. C. Franklin Co., overruling exceptions to auditor’s report, in the estate of Marion Carstensen, deceased. Exceptions to report of Irvin C. Elder, Esq., auditor. The facts appear by the opinion of John Stewart, P. J., which was as follows : The testatrix, Mrs. Marion Carstensen, gave her entire estate in trust, directed its- conversion, and gave the income therefrom to her husband during his life.

<p>Appeal, No. 88, Jan. T., 1900, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., March T., 1898, No. 1289, on verdict for defendant in case of Alan H. Reed and George K. Reed, trading as Jacob Reed’s Sons v. Charles C. Harrison.</p> <p>Assumpsit to recover 100 shares of stock of the Lehigh Valley Railroad Company. Before Willson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant. Plaintiffs appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p> <p>The court erred in directing a verdict for defendant, and in not directing a verdict for plaintiff.</p> <p>The promise was to do an act at a definite time if notice had been given ; not to do an act at any time when notice was given: Benninger v. Hankel, 61 Pa. 343; People v. Blanding, 63 Cal. 333 ; Brown v. Wilkinson, 15 M. & W. 391; Lord Ranelagh v. Melton, 2 Drewry & Smale, 278; Brooke v. Garrod, 59 Eng. Ch. R. 61; Campbell v. London & Brighton Ry. Co., Eng. Cli. R., 578; Kynaston v. Mackinder, 47 L. J. Q. B. 76; Johnson v. Stanton, 2 B. & C. 621; Wickens v. Steel, 2 C. B. N. S. 488; Nesbi't v. Godfrey, 155 Pa. 251.</p>

Appeal, No. 403, Jan. T., 1899, by-plaintiffs, from judgment of C. P. Clearfield Co., Sept. T., 1898, No. 117, on judgment for defendant, in case of Adeline Williams, Lydia Beightol, Esther Ann Maride and McClain Beam, by his committee, Henry Hoover, v. Nathan Beam. Ejectment for an undivided four fifths of a tract of land in Cooper township. Before Gordon, P. J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 85, Jan. T., 1900, by defendants, from order of C. P. Clearfield Co., Sept. T., 1892, No. 166, sustaining exceptions to report of referee in case of J. A. Dixon and Eve, bis wife, v. Sidney Fuller, W. C. Pentz and H. L. Dunlap. Ejectment for a tract of land in Sandy township. Exceptions to report of referee. The referee, W. B. Bigler, Esq., reported as follows: CONCLUSIONS OF FACT. 1. On September 2,1869, Jas.

<p>Appeal, No. 186, Jan. T., 1899, by Lydia Stough, from decree of O. C. Erie Co., Sept. T., 1898, No. 29, dismissing exceptions to auditor’s report in the estate of George Stough, deceased.</p> <p>Exceptions to report of E. L. Whittelsey, Esq., auditor.</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>The relation of George Stough to the appellant was that of trustee to cestui que trust.</p> <p>The agreement signed by all the appellees excepting William, and agreed to by him by parol, is a valid, subsisting agreement, entitling the appellant to her claim: Shartel’s App., 64 Pa. 25; Ford’s Est., 185 Pa. 420.</p> <p>Where a person accepts a devise which is coupled with a direction by the testator that a sum certain shall be paid by the devisee to a third party, he thereby becomes subject to a personal liability to pay the said sum, which may be enforced against him in an action of debt instituted by said third party.</p> <p>The statute of limitations will, in such case, preclude recovery against the devisee when more than six years have elapsed since the death of the testator before suit is brought: Etter v. Greenawalt, 98 Pa. 422; Headley v. Fenner, 129 Pa. 542.</p> <p>There can be no doubt that the money was paid by his brothers to George and by George to his sisters, merely for the convenience of the parties and in receiving and' paying the same he was merely acting as the agent: Hostetter v. Hollinger, 117 Pa. 606; Fleming v. Culbert, 46 Pa. 498.</p> <p>The fact that George Stough took receipts from his sisters, as executor, for the money paid them to apply on their legacies, would not bind him as executor unless the will of John Stough imposed this duty upon him: Fross & Loomis’s App., 105 Pa. 258.</p>

Appeal, No. 338, Jan. T., 1899, by defendants, from judgment of Superior Court, No. 1, Feb. T., 1899, affirming judgment of C. P. Union Co., March T., 1896, No. 22, on verdict for plaintiffs in case of Estella D. Silliman et al. v. William Whitman & Sons. Appeal from Superior Court. From the record and the opinion of the Superior Court it appears that the main question in the case is as to the ownership of a tramway constructed on the land of the plaintiffs.

<p>Wills — Perpetuities. •</p> <p>Testator left to survive Mm one cMld, a son, eight grandchildren, issue of the son, and seven great-grandchildren, being grandchildren of the son. He gave his estate in trust to his executors for the purpose of accumulation until the time of final distribution. During the interval they were to pay certain designated annuities and bequests to grandchildren. He then directed as follows : “ Then after the death of all my grandchildren and the youngest grandchild living of my son has become twenty-two years of age ; then all my real estate shall be sold at public sale .... and the proceeds along with all the personal property I own shall be converted into money by my executors, to be divided among the lawful heirs of my son, share and share alike according to law, not taking into consideration any bequests and payments I otherwise have made.” Held, that the rule against perpetuities was violated and that the son took the estate absolutely.</p>

Appeal, No. 232, Jan. T., 1899, by plaintiff, from judgment of C. P. Lancaster Co., May T., 1894, No. 57, on verdict for defendant in case of Louis E. Ryder v. William M. Jacobs. Assumpsit for services as salesman. Before Livingston, P. J. The facts appear by the charge of tbe court, and by tire report of the case in 182 Pa. 624. The court charged as follows: This is an action brought by Louis E. Ryder, plaintiff, against William M. Jacobs, defendant.

<p>Constitutional law — Amendment—Approval of governor — Article 18 of the constitution of 1874.</p> <p>Under article 18 of the constitution of 1874 relating to amendments, an amendment of the constitution proposed byjoint resolution of the general assembly need not be submitted to the governor for his approval or veto.</p> <p>The 26th section of the 3d article of the constitution -which provides that “ every order, resolution or vote ” of the two houses shall be submitted to the governor for his approval or disapproval refers merely to legislation, and has no reference to the action which the two houses take in performing their part of the work of creating amendments.</p> <p>Article 18 and the 26th section of article 3 are not inconsistent with each other, and both may stand and be fully executed without any conflict. One relates to legislation only, and the other relates to the establishment of constitutional amendments. Each one contains all the essentials for its complete enforcement without infringing at all upon any function of the other.</p> <p>Constitutional law — Amendments—Publication—Cost of publication.</p> <p>The secretary of the commonwealth cannot allege as ground for refusing to publish a proposed amendment to the constitution as provided by article 18 of the constitution that no appropriation had been made to defray the cost of publication.</p> <p>' It is not absolutely necessary that the publication of an amendment shall be made three months before the general election which follows next after the amendment was agreed to by the two houses.</p> <p>The provision ic article 18 as to the publication of a proposed amendment three months before the next general election should be regarded as merely a directory provision where strict compliance with time limit is not essential.</p> <p>Where the secretary of the commonwealth has neglected or refused to publish a proposed amendment until after the general election next following the session at which the amendment was proposed, he may be mandamused to make publication for three months prior to the succeeding general election at which members of the legislature are voted for.</p> <p>Where a thing is to be done on or before a certain date, and a literal compliance as to the date becomes impossible without fault of the power ■which created the duty, the thing may be done or the act performed as soon as it becomes possible to be done after the time fixed has passed.</p>

<p>Contracts — Illegality—Defense.</p> <p>True it is that an illegal contract will not be executed; but when it has been executed by the parties themselves, and the illegal object of it has been accomplished, the money or thing which was the price of it may be a legal consideration between the parties for a promise express or implied, and the court will not unravel the transaction to discover its origin.</p> <p>Contracts — Illegality—Principal and agent — Liquor laws.</p> <p>While the law will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property, belonging to his master, he is bound to turn it over to him and cannot shield himself from liability therefor, upon the ground of the illegality of the original transaction.</p> <p>An agent who has sold whiskey for his principal and collected the proceeds thereof, cannot make defense against his principal, on the ground that the liquor was sold without a license.</p> <p>Principal and agent — Evidence to establish agency.</p> <p>It is not correct to say that there is no evidence to establish the fact of agency of the defendant to sell whiskey for the plaintiff, where the quantity of whiskey delivered shows that the defendant could not have bought it for his own use, where the accounts of plaintiff could only be explained by the fact of agency, and two witnesses testify positively that the defendant was agent for.plaintiff.</p>

<p>Will — Devise—Rule in Shelley's case.</p> <p>A devise to a son for life, and “ if he has no son living at the time of his 'death, then to his heirs and legal representatives ” creates in the son, under the rule in Shelley’s case, an estate in fee simple if he dies without leaving a son living at his death.</p>

<p>Appeal, No. 16, Jan. T., 1900, by W. H. M. Oram, from decree of O. C. Northumberland Co., Dec. T., 1898, No. 3, directing sale of real estate in the Estate of John B. Douty, deceased.</p> <p>Petition for decree to sell real estate.</p> <p>The facts appear by the opinion of Savidge, P. J., which was as follows:</p> <p>John B. Douty died in 1873. By his will he first provides for his widow, giving her, inter alia, an annuity of $1,200. She died in 1894. He next gives his sister, Elizabeth Lewis, an annuity of $600, which upon her death goes to her son, William Lewis. He then bequeaths to each of the four children of William H. Douty, $15,000, to be paid to them as they become of age. The sums so bequeathed to be collected by his executors from the proceeds and income of his estate as soon as convenient after his death, the interest to be used, if necessary for the maintaeance and education of said legatees during their minority. Then follow legacies of $3,000 to each of four children of William R. Kutzner and to another Kutzner child a legacy of $3,500.</p> <p>Following this are certain specific bequests of real and personal property. He then devises to his executors the residue of his estate, real and personal, in trust inter alia, for the following purpose : “ To invest so much of my estate as in their discretion may be necessary to secure the payment of the widow’s annuity and the annuity of Elizabeth Lewis and her son William.” The residuary clause provides that upon the youngest Douty child reaching its majority, all the remaining portion of the estate “ hereinbefore conveyed ” to the executors shall be by them conveyed, share and share alike to the Douty children.</p> <p>Elizabeth Lewis died in 1877 and in 1897 William Lewis conveyed his interest in the Lewis annuity to the Douty children for the sum of $5,000.</p> <p>There has been paid on account of the Lewis annuity $3,065.33. No fund has ever been set apart to meet this annuity. As we understand, no part of the Douty or Kutzner legacies have been paid. The personal estate is exhausted and there is left only the real estate described in the petition, consisting of several properties in the borough of Shamokin, alleged to be of the aggregate value of $37,000.</p> <p>We are of the opinion that by reason of the blending of the real and personal estate, in the residuary clause of the will all the annuities and legacies are a charge on the realty: Blake’s Estate, 134 Pa. 240. The residuary clause was almost identical with that of the Douty will: Davis’s Appeal, 83 Pa. 348; Cook v. Petty, 108 Pa. 138.</p> <p>We are of the opinion that the testator intended that, first of all the annuities should be paid and are clear that these are entitled to consideration before the legacies are to be looked after. By the legacies is meant the specific bequests to the Douty and Kutzner children.</p> <p>Whether the assignees of the Lewis annuity being persons interested in the estate as legatees, can have more than the amount invested by them in the purchase of the same, with interest, is not material to the present controversy.</p> <p>After the annuity is provided for we believe that the balance of the estate, real and personal, not disposed of by specific bequests should be divided pro rata among the Douty and Kutzner legatees.</p> <p>However, this is not very material to the present inquiry, as we are not now distributing the estate but determining only whether the real estate ought to be sold by the executor and the proceeds brought in for distribution.</p> <p>If the assignees of the Lewis annuity are entitled only to the money they have put into the purchase, there is no reason why the estate should not be promptly settled.</p> <p>If they are entitled to the annuity, to wit: #600 per annum during the balance of William Lewis’s life, then, according to the will, the real estate should be disposed of and so much of the decedent’s estate “ as may be necessary to secure the payment of the annuity ” should be invested by the executor. In any event we cannot see how the Lewis annuity should stand in the way of settlement of the estate.</p> <p>It is contended that the legacies of the Kutzner children, the petitioners, are barred by the statute of limitations. We do not believe that the statute of limitations or presumption of payment has run against them. Because:</p> <p>1. The executor is the trustee of the estate for the legatees.</p> <p>2. The legatees named in the will have, prima facie, a right to have the estate settled and an account filed.</p> <p>3. This question can properly be raised only on distribution.</p> <p>4. The petition alleges a demand upon the executor, which is not denied by the answer, and the presumption is that the demand was made in time.</p> <p>As to the estate described in the petition the rule is made absolute and the executor is ordered to make sale of the same so that after the Lewis annuity has been provided for, the balance of the estate may be distributed according to the provisions of the will of the decedent.</p> <p>Error assigned was the decree of the court.</p>

<p>Mortgage — Judgment on scire facias — Evidence.</p> <p>In an action of ejectment where it appears that the plaintiff had formerly-been the owner of the land which she had mortgaged, and that the defendants had bought the land from a purchaser at a sheriff’s sale in foreclosure proceedings, the plaintiff will not be permitted to offer in evidence testimony to the effect that the mortgage had been paid, that the judgment had been entered against her for the want of a plea because she was too poor at the time to defend the case, and that the defendants had notice of these facts before they bought the property.</p>

<p>Appeal, No. 32, Jan. T., 1900, by Charles S. Purves, from decree of O. C. Phila. Co., April T., 1898, No. 532, dismissing exceptions to adjudication, in the estate of Alexander Purves, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the' opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p> <p>The “ surrounding circumstances,” are vital elements in determining what was the contract: Postlethwaite’s App., 68 Pa. 468; Follweiler’s App., 102 Pa. 581.</p> <p>An action will lie against the estate of a decedent for breach of an agreement, to make provision by will for one who, at the request of the promisor, has performed services for him: Walls’s App., Ill Pa. 460; Eichelberger’s Est., 170 Pa. 242 ; Thompson v. Stephens, 71 Pa. 161.</p> <p>The promise, if any was made in the press copy of the letter, was too vague and uncertain to be enforced.-</p> <p>A promise to leave “the business ” does not include the assets thereof.</p> <p>There was no proof of an acceptance by the appellant of the alleged letter, nor of any action by him on the faith of the same.</p>

<p>-Electric railBailroads — Location—Injunction—Act of April 4, 1868-~é)a/y — Act of June 19, 1871.</p> <p>Where a railroad company regularly incorporated under the act of April 4, 1868, locates its road over private land parallel to a turnpike road' ¡ nd between the termini of two passenger railway eompa'nies, the court will not enjoin the construction of the railroad because of an alleged intent to evade a former decree of the court by which the construction of a passenger railway on the turnpike road between the two termini was enjoined, where the evidence does not sustain the allegation of an intent to evade the former decree.</p> <p>Where a railroad company appears to be proceeding regularly to possess itself, of its roadbed by virtue of power- conferred upon it by the act of assembly under which it was incorporated, in the absence of proof that its action was taken for the purpose of evading and defeating a former decree of the court or to do some illegal act, equity cannot interfere with the exercise of the statutory rights which it possesses.</p>

<p>Appeal, No. 130, Jan. T., 1900, by plaintiffs and defendants from decree of C. P. Blair Co., No. 329, Equity Docket B, on bill in equity in case of Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company and the Altoona and Beech Creek Terminal Railroad Company.v. Altoona and Beech Creek Railrood Company, Lessors and Henry Snyder, Constable.</p> <p>Bill in equity for a decree of forfeiture of a lease.</p> <p>The facts appear by the opinion of Love, P. J., which was as follows:</p> <p>This is a bill in equity filed by the plaintiffs, alleging that they were duly incorporated and organized and existing as such companies under the laws of the commonwealth of Pennsylvania, and also that the defendant railroad company is duly incorporated and organized and existing under the laws of Pennsylvania.</p> <p>That Samuel P. Langdon is the president of the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company. These allegations in the bill are admitted. The bill further alleges that the principal stockholders of the Altoona and Beech Creek Railroad Company and owners thereof are Andrew Kipple, W. L. Shellenberger, S. J. Wesley, W. S. Lee, W. J. Heinsling, Geo. S. Adams and the estates of William and John Loudon. That these said parties just named, January 5,1893, entered into an article of agreement with Samuel P. Langdon, agreeing to transfer and deliver to him sixty per cent of the capital stock of the Altoona, Clearfield and Northern Railroad Company and that said parties being unable to comply with their agreement Samuel P. Langdon had brought suit against them to recover damages therefor, claiming the sum of $200,000. The bill further alleges that the defendants in said suit frequently sought him to make a compromise of said suit, and to lease to him the Altoona and Beech Creek Railroad, and as an inducement to said Samuel P. Langdon, proposed to lease to him said railroad upon favorable terms, provided that the litigation pending against said parties, or said suit be dropped and marked settled of record, and also that he, the said Langdon, would pay certain pay rolls and outstanding bills of said railroad company and charge them against the rent he covenanted to pay. That to this said Langdon agreed that a lease was executed December 8, 1897, between the said Altoona and Beech Creek Railroad Company, and Samuel P. Langdon, and practically the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company, and the Altoona and Beech Creek Terminal Railroad Company, to he chartered and organized. That on December 8, 1899, under the lease there would have been due for rent the sum of $1,200, but that it had been overpaid by the lessees, by the payment of pay rolls and outstanding bills of the lessor. The bill further sets forth, that the lessor issued a landlord’s warrant, and levied upon a lot of ties, i'ails, etc., to collect the rent alleged to be due, on or about December 19, 1899; also that by virtue of a clause in the lease, that the lessor on or about December 12, 1899, served a notice upon the lessees terminating the lease, and then by the prayers in the bill asks that the lessor be restrained from collecting the rent by distress, and also to be enjoined and restrained from terminating the lease.</p> <p>To this bill the Altoona and Beech Creek Railroad Company demurred, and also filed an answer, and also filed a cross-bill, which in substance sets forth the same facts alleged in the.answer and prays for affirmative relief. The plaintiffs in the original bill also filed an answer to the cross-bill.</p> <p>The answer to the original bill denies the allegations contained in the bill that the defendants to the suit brought by S. P. Langdon sought him to secure a compromise of the same, and that they as the principal stockholders and owners of the Altoona and Beech Creek Railroad Company, sought to lease him their road, on favorable terms in order to effect a settlement of said suit. It also denies the allegations that the pay rolls and outstanding bills of their company were to be paid by S. P. Langdon and deducted from the rent provided for in the lease, and alleges that said bills to the amount of about $800 were agreed to be paid by Langdon in addition to the rent reserved in the lease. In the cross-bill the plaintiffs therein allege that, at or about the time the lease was being negotiated and executed, S. P. Langdon represented that he had made arrangements financially to construct the Pittsburg, Johnstown, Ebensburg and Eastern Railroad from Johnstown to Ramey, and also to proceed to construct the Altoona and Beech Creek Terminal Railroad, from Juniata, the terminus of the Altoona and Beech Creek Railroad to Altoona, and to make the connections provided for in the lease, and that the work would be commenced in a few weeks from the date of the execution of the lease, and that he expected to have them completed during the year of 1898. And that he has failed to keep or perform the covenants in the lease in that particular, and that he was not then and has not been and is still unable to perform his covenants as provided in said lease, and prays that the lease be declared null and void and that the property be decreed to be turned over to the lessor. The answer filed to tbe cross-bill denies these allegations. The foregoing are in substance the principal allegations of fact, and denials thereof contained in the bills involved in this controversy.</p> <p>CONCLUSIONS ON NACT.</p> <p>The Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company, and the Altoona and Beech Creek Terminal Railroad Company are both duly chartered under the laws of the commonwealth of Pennsylvania. It is so admitted. The former company of which Samuel P. Langdon is president, contemplated and still contemplates the construction of a railroad from Johnstown via Ehensburg to a point in Clearfield county near Ramey, the present terminus of the Altoona and Philips-burg Connecting Railroad. The Altoona and Beech Creek Railroad Company is duly chartered under the laws of the commonwealth, and has constructed and has in operation a railroad from Juniata borough in Blair county, to a point named Dougherty in Cambria county. The line of the road as constructed and operated is about fifteen miles in length. The Altoona and Philipsburg Connecting Railroad Company has a road constructed and in operation, from Philipsburg, Centre county, to Ramey in Clearfield county, a distance of about thirteen miles. The distance from Ramey, the present western terminus of the Altoona and Philipsburg Connecting Railroad to Dougherty, the present northwestern terminus of the Altoona and Beech Creek Railroad is about seventeen miles. [Between Dougherty and- Ramey there has not been any railroad constructed, and there is none in process of construction. The contemplated route of the Altoona, Beech Creek and Terminal Railroad is from the present terminus of the Altoona and Beech Creek Railroad at Juniata borough to Altoona, a distance of about two miles. Said road has not been constructed and is not yet in process of construction. There has been nothing done toward the construction of the Pittsburg, Johnstown, Ehensburg and Eastern Railroad from Johnstown to Ramey, except a survey of a route. Whether said survey has been properly adopted does not appear.] [12] This was and is the status of the railroads and railroad companies who became parties to the lease, which gives rise to the controversy in this case, at the time of its execution. The Altoona and Beech Creek Railroad Company executed its lease December 8, 1897, to Samuel P. Lang-don and his assigns, the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company and the Altoona and Beech Creek Terminal Railroad Company, not yet chartered, of which the following is a copy:</p> <p>“ This agreement made this eighth day of December, A. D., 1897, between the Altoona and Beech Creek Railroad Company of the first part, and Samuel P. Langdon of the city and county of Philadelphia, state of Pennsylvania, party of second part.</p> <p>“ Whereas, the party of the second part is interested as a promoter and otherwise in a certain railroad company, recently incorporated in the state of Pennsylvania, known as the Pitts-burg, Johnstown, Ebensburg and Eastern Railroad Company, which has, among other things, for its object and purpose the building and completion of a railroad from Ramey, Pennsylvania, the present terminus of the Altoona and Philipsburg Connecting Railroad to the Baltimore and Ohio Railroad at Johnstown, Pennsylvania, which it is to the interest of the party of the first part to have built, and the said party of the first part is desirous of aiding the said party of the second part to secure the completion of said road from Ramey, Pennsylvania, to Johnstown, Pennsylvania, as aforesaid, thereby making a new through line from Pittsburg, Philadelphia and New York to Altoona.</p> <p>“And, whereas the party of the second part has secured the Altoona and Philipsburg Connecting Railroad by agreement under date of October 20,1897, and the same assigned to Pitts-burg, Johnstown, Ebensburg and Eastern Railroad under date of November 5, 1897.</p> <p>“Now therefore for the consideration of the sum of $1.00, lawful money of the United States of America, and other valuable considerations paid to the said party of the first part by the party of the second part the receipt of which is hereby acknowledged ; and the further consideration of the promotion by the said party of the second part of the railroad aforesaid the parties hereto have agreed as follows:</p> <p>“ First. The party of the' first part hereby leases its railroad franchises, real estate, rolling stock, equipment and personal property of said company to the party of the second part or his assigns, the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company, its successors or assigns, and the Altoona and Beech Creek Terminal Railroad Company, a corporation to be hereafter organized under and by virtue of the laws of Pennsylvania for the term of nine hundred and ninety (990) years from the date hereof, at an annual rental of six hundred ($600) dollars, together with the state tax on the capital stock of the party of the first part, payable quarterly or every three months from the date hereof: and in addition to the said rental of six hundred dollars, the said party of the second part, his executors, administrators and assigns, hereby agree upon the completion and operating of said proposed railroad, to pay and yield annually unto the party of the first part, its successors and assigns, one per centum of the gross earnings of the said railroad extending from Ramey to Altoona. And the party of the first part also agrees to accord to the party of the second part its mutual co-operation in the extension of its line to connect it with the said projected railroad, and also the contemplated extension into the city of Altoona.</p> <p>“Third. In consideration of the premises, the said party of the second part hereby agrees to promote, to' the best of his ability, the building and completion of the lings of railroad from Ramey to Johnstown and into the city of Altoona aforesaid.</p> <p>“ Fourth. Upon the failure of the party of the second part, or his assigns, to comply with any and all of the terms and conditions of this lease, then and in that event this lease to fully cease and terminate upon thirty days’ notice in writing to the party of the second part, or his executors, administrators and assigns, who hereby agree to surrender peaceable possession of all the rights, privileges, property and franchises contained herein.”</p> <p>The second paragraph in this lease, omitted above, contained provisions relative to a sale of the railroad projects in contemplation and is not material in this controversy.</p> <p>The Altoona and Beech Creek Railroad Company, lessors, on or about December 12, 1899, served a notice in writing upon Samuel P. Langdon, and the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company, and the Altoona and Beech Creek Terminal Railroad Company, assignees of said lease forfeiting and terminating said lease under the provisions of the fourth paragraph thereof. The defendant company (lessor) claimed the right to forfeit the lease because of nonpayment of rent. Whether or not there was rent due and unpaid was one of the disputed facts in the ease. [We think the weight of the evidence establishes the fact, that Samuel P. Langdon assumed and agreed to pay as part consideration of said lease, in addition to the rent reserved, outstanding bills of the Altoona and Beech Creek Railroad Company to the amount of $800, and while the evidence shows that Samuel P. Langdon or the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company paid about $1,200 of outstanding bills of the defendant company, yet it would leave rent due and unpaid December 8, 1899, under the lease the sum of about $800.] [13]</p> <p>[The weight of the evidence shows that at the time of the execution of the lease, that Samuel P. Langdon represented that he had arrangements made to proceed witli the.construction of the Pittsburg, Johnstown, Ebensburg and Eastern Railroad from Ramey to Johnstown and make the connections contemplated and provided for in the agreement of lease, and that while there is no time fixed in the agreement within which said roads were to be constructed, yet Samuel P. Langdon represented that they would be constructed during the summer and winter of 1898. But as yet they have not been constructed and there was no evidence of any immediate prospects of their construction.] [14]</p> <p>June 25, 1898, the Altoona and Beech Creek Railroad Company, at the suggestion of Samuel P. Langdon, president of the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company, authorized the mortgaging of their road for $150,000, and an increase of capital stock of $50,000, to aid the lessees in building an extension of their road to a point to connect with the Pittsburg, Johnstown, Ebensburg and Eastern Railroad providing bonds be issued to Langdon pro rata for every two miles of extension constructed. Langdon wanted $100,000 of the bonds as soon as the construction was put under contract. Because the Altoona and Beech Creek Railroad Company would only issue bonds pro rata as work progressed, Langdon declined or did not accept the proposition of aid so made, and nothing was done.</p> <p>[Samuel P. Langdon testified that he had been doing all he could and still was using his best endeavors to arrange to have the roads mentioned in the lease constructed, but failed to give any data as to the efforts he was making in that behalf. He testified he had spent some $3,000 or $4,000 for surveys of the Pittsburg, Johnstown, Ebensburg and Eastern Railroad, that he had spent about the same amount in traveling back and forth from Philadelphia to New York and had spent about $5,000 in organizing the Altoona, Beech Creek and Terminal Railroad Company, and had spent for some grading done thereon in October, 1899, $485. These statements of expenditures were made simply in the lump. He stated he had vouchers showing expenditures, and at the adjournment said he would produce them at final hearing; this he did not do, and as the burden was on the plaintiffs to legally show moneys expended, the evidence falls short of establishing the amounts claimed to have been expended. The same was the case as to the evidence that the running expenses and repairs to the Altoona and Beech Creek Railroad exceeded the gross receipts by about $1,500.] [15]</p> <p>About December 18, 1899, the defendant company, lessor, issued a landlord’s warrant and distrainer for the rent alleged to be in arrear and unpaid, and levied upon some railroad ties and rails of the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company, at or near Juniata borough which had been placed there with a view of being used in the construction of the Altoona, Beech Creek and Terminal Railroad.</p> <p>[The plaintiffs in the bill alleged that a part'of the consideration for the lease was the settlement of a suit pending in the court of common pleas of Blair county, of Samuel P. Langdon v. W. L. Shellenberger et al., who were the principal stockholders of the Altoona and Beech Creek Railroad Company. The suit was brought against them as individuals and not against the company or against them as stockholders thereof. The plaintiffs offered no evidence in chief in support of said allegations, and the weight of the evidence shows that the settlement of said suit had nothing to do with the consideration of the lease.] [16]</p> <p>Under the foregoing facts, the questions that arise are as follows, viz:</p> <p>1. Whether the Altoona and Beech Creek Railroad Company had the right to distrain for the rent due and in arrears and levy upon the property of the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company for the purpose of collecting the same.</p> <p>2. Whether the Altoona and Beech Creek Railroad Company, lessor, had the right to forfeit the lease under tlie provisions of the fourth paragraph thereof? And third, under the pleadings, the defendant company raises the question as to whether the lease is void, because made with other railroad companies without any connecting lines of railroad, directly or indirectly, and is the defendant therefore entitled to affirmative relief prayed for in the cross-bill filed ?</p> <p>As to the question of the right of the lessor company to dis-train for the rent alleged to be due, we are of the opinion that the process of distress was not available. The railroad companies, lessees, being public corporations, are not subject to such process, and the defendant company, lessor, upon the argument conceded that it had no such right, and that the warrant of distress and levy made thereon were illegal. The company was therefore liable to be enjoined from proceeding under the warrant of distress.</p> <p>Had the defendant corporation,, lessor, a right to terminate the lease under the provisions of the fourth paragraph thereof? If there was any failure upon the part of the lessees to perform the conditions thereof, then the right to terminate is accrued and the lessor had the right to terminate it as provided in the lease.</p> <p>[We have found that there was rent due and in arrears at the time the notice of forfeiture was given, which was a failure upon the part of the lessees to comply with the provisions of the lease. And while the lease does not fix any time within which the contemplated connecting railroads should be constructed, yet the evidence shows that the understanding of the parties was that they would be constructed within a year or more from the date of the execution of the lease. And as there was no definite time fixed in the lease, the law and equity would require that part of the contract to be complied with within a reasonable time. It would be of great interest to the Altoona and Beech Creek Railroad Company to have the connections provided for in the lease made. It would enhance the value of its road; then the rental, upon the completion of the connections was, as provided in the lease, to be one per centum of the gross earnings of the road from Ramey to Altoona, in addition to the |600 per annum; then, when the understanding of theparties at the time of the execution of the lease was that the connecting roads would be built during the summer and winter of 1898, and another year has elapsed since it was understood the roads would be built, and nothing has been done, and there is no immediate prospect of anything being done practically in relation thereto; then is not the lapse of over two years, under the conditions of the lease, a reasonable time for the promotion of the enterprises, and at least to have the probability of their speedy completion, in some sound tangible shape ? We think it is, and therefore under the evidence in this case so hold.</p> <p>It is urged by the lessees that they have used their best efforts to secure financial aid to make practical progress toward the construction of the connecting roads. Up to this time, however, they have failed. They further urge as against the forfeiture of the lease, that they have expended moneys in making surveys of the contemplated route of the Pittsburg, Johnstown, Ebensburg and Eastern Railroad, and in traveling to New York from Philadelphia and back, and in organizing the Altoona and Beech Creek Terminal, assume that the lessees did expend money hi surveying the route from Ramey to Johnstown, for the Pitts-burg, Johnstown, Ebénsburg and Eastern Railroad Company. It was done in the interest of that company, and was not, on -account of the lease having been made, and the lessor company is not a stockholder in the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company. The same may be said as to the traveling expenses to secure funds for the construction of the Pittsburg, Johnstown, Ebensburg and Eastern Railroad. The same may be also said as to the money alleged to have been expended in the organization of the Altoona and Beech Creek Terminal Railroad Company, one of the lessees. So that there does not appear from the evidence, any expenditure of money on the part of the lessees except snch as was to promote the advancement of the roads they, if constructed, would own and control, and in which the lessor company had no direct interest, that would raise- an equity against the termination of the lease, and surely any moneys expended to advance their own personal corporate interests conld raise none.</p> <p>On the other hand would it be equitable to have the property and franchises of the lessor, under the facts as found, tied up at a mere nominal rent for a period of 990 years, or for an indefinite period, without the prospect of the contemplated connecting roads being constructed, and the principal consideration and rental, to wit: (one per centum of the gross earnings provided for in the lease) to fail ?</p> <p>We think not. We are, therefore, for this reason, also of the opinion that the lessor company had a right to terminate the lease.] [17]</p> <p>It is urged on part of the defendant company that the lease is void because ultra vires and against public policy, on the ground that at the time of the execution of the lease, the Altoona and Beech Creek Railroad did not connect with any road owned or controlled by the lessee or his assigns, and does not now connect with any, either directly or indirectly.</p> <p>It is very fully supported by authority that corporations established for purposes quasi public, such as railroads, canals, etc., to which the right of eminent domain and other extraordinary privileges are granted in order to enable them to accommodate the public, may not, without distinct legislative authority, make any alienation, absolute or conditional, either of the general franchise to be a corporation, or of the subordinate franchise to manage and carry on its corporate business, without which, its function to be a corporation can have little more than a nominal existence. They cannot thus devolve- upon others, duties, privileges and poAvers which were conferred upon them for the public advantage; and all contracts and transactions by which this is attempted are ultra vires and void. See 27 Am. & Eng. Ency. of Law (1st ed.), p. 384, and cases cited.</p> <p>Pierce on Railroads, page 514, states the general principle as follows: “ Corporations having by reason of their objects, or the extraordinary powers conferred upon them, certain public obligations, are not permitted to enter into contracts which disable them from performing their public functions. Thus a railroad corporation cannot as already seen, without legislative authority, transfer by deed, mortgage, lease, or other agreement, its railroad and franchises, or assume the ownership or management of some other like enterprise. Such a transfer may have the effect to substitute a scheme different from that for which authority was obtained, to put the management into the hands of persons other than those intended, and to combine enterprises which the legislature presumably thought it prudent to keep separate. Such arrangements are generally held void as against public policy, and involving a breach of public duty. They are also treated as ultra vires; but they should not be confounded under that term with ordinary business transactions which may not be necessary or incidental to the express powers of a corporation.”</p> <p>The same principles are laid down as the general rules of law, in Angelí and Ames on Corporations, section 191 and notes, and Redfield on Railways (5th ed.), c. 22, 644.</p> <p>It is true that under the Act of April 23, 1861, P. L. 410, and the Act of February 17, 1870, P. L. 31, railroad companies are authorized to purchase stock in other railroads, and, by the act of 1870, are authorized to lease or become lessees of other railroads, but provides: “ That such road or roads so embraced in any such lease, assignment, contract or guarantee, shall be connected, either directly or by means of intervening line, with the railroad or railroads of said company or companies of this commonwealth so entering into such lease, assignment, contract or guarantee, and thus forming a continuous route or routes for the transportation of persons and property.”'</p> <p>Thus it will be readily seen, that by virtue of legislative authority, the power to lease and the power to become lessees, must be of railroads that connect directly or by intervening roads so as to form a continuous route for the transportation of persons and property.</p> <p>It is unnecessary to discuss .the power conferred under said acts of assembly as they have been fully construed by the Supreme Court in the case of Pittsburg & Connellsville R. R. Co. v. Bedford & Bridgeport R. R. Co. et al., 81* Pa. 104. That case as well as the case of Yan Steuben v. Central R. R. Co., 178 Pa. 368, hold that a railroad lease made without clear and specific authority is against public policy and utterly void, and fully recognize and affirm the general rule above laid down by the authorities cited.</p> <p>[So, it being unquestioned that the parties to this lease have no connecting line of road, directly or by intervening lines and have no continuous route for the transportation of persons or property, the lease is, therefore, under the great weight of authority, void as against public policy.] [18]</p> <p>Is the defendant company entitled to affirmative relief? It filed a cross-bill, and asks that the lease be declared void and that the property be restored to it.</p> <p>[The plaintiff urges that if the contract is ultra vires yet the lessor being a party to it cannot ask for affirmative relief. That the courts will not lend their aid to parties to a contract in which they are both equally guilty, if exceeding their authority in the making of it. While this proposition may be true in many instances, yet where the contract is not that of an ordinary business transaction, but is one that is not only beyond the power of the contracting parties to make, but is against public policy, and involves the shifting of duties and obligations, due the public and imposed by the grant of the charter upon a corporation, to others, we think the courts have the power to annul the contract and regulate the parties to the status occupied before entering into the contract. If public policy says you cannot make such a contract, because you cannot shift the duties, responsibilities and obligations placed upon you by the grant, — then public policy can, with equal force, say that you again assume the duties and obligations imposed by your charter to the public.</p> <p>And as we have found'that there have been no such equities shown by the plaintiffs in the bill as would stay the hand of a court of equity, in placing the parties to the lease in the same status respecting their several properties as they were before its execution, we think the defendant may be entitled to affirma tive relief.] [19]</p> <p>In accordance with the foregoing we make the following decree :</p> <p>This cause came on to be heard at this term and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decree as follows, viz :</p> <p>[That the Altoona and Beech Creek Railroad Company and Henry Snyder, the defendants, be and are hereby, perpetually enjoined and restrained from any proceeding upon said process of distress to collect rent alleged to be due, and the property levied upon is hereby released from said levy and distress, this without prejudice to the right of said lessor to lawfully sue and recover any rent due, if such right exists under the lease.</p> <p>It is further ordered, adjudged and decreed, that the lease in question be and is hereby declared null and void, and that the Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company and the Altoona, Beech Creek and Terminal Railroad, lessees, surrender possession of the railroad property and franchises leased and mentioned in said lease, to the Altoona and Beech Creek Railroad Company, lessor, within twenty days from the filing of this decree.</p> <p>. It is further ordered, adjudged and decreed, that each of the parties to this suit pay one half the costs thereof, that is the plaintiffs pay one half and the defendants pay one half.] [20]</p> <p>Errors assigned among others were (12-20) portions of opinion as above, quoting them.</p> <p>Under the circumstances as presented in this case, a court of equity ought not to decree a forfeiture of the lease: Livingston v. Stickles, 7 Hill (N. Y.), 258; Estabrook v. Hughes, 8 Neb. 496.; Wick v. Bredin, 189 Pa. 88; Thompson v. Christie, 188 Pa. 249; Steiner v. Marks, 172 Pa. 404.</p> <p>In the application of the law under the plea of ultra vires in this case, the court gives the plea the same force and effect as it would were the state interposing its power to forfeit the charter. This is error. The application of the law is entirely different when corporations interpose this,defense between themselves, to avoid liability, or rescind contracts which they have deliberately entered into: Camden & Atlantic R. R. Co. v. May’s Landing, etc., R. R. Co., 48 N. J. Law, 567 ; Hawkes v. Eastern Counties R. R. Co., 1 De G. M. & G. 760 ; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Steam Nav. Co. v. Weed, 17 Barb. (N. Y.) 378; Cary v. Cleveland, etc., R. R. Co., 29 Barb. (N. Y.) 36.</p> <p>Executed contracts will not be disturbed under plea of ultra vires: Monument Nat. Bank v. Globe Works, 101 Mass. 58; Parish v. Wheeler, 22 N. Y. 509; Thomas v. West Jersey R. R. Co., 101 U. S. 71; Bradley v. Ballard, 55 111. 413; Black v. Del. & Raritan Canal Co., 9 C. E. Green (N, J.), 456 ; McElroy v. Minnesota Percheron Horse Co., 71 N. W. Repr. (Wis.) 652; Wright v. Pipe Line Co., 101 Pa. 206; Lestapies v. Ingraham, 5 Pa. 81; Boyd v. American Carbon Black Co., 182 Pa. 210; Camden & Atlantic R. R. Co. v. May’s Landing. & Egg Harbor City R. R. Co., 48 N. J. Law, 530; Trenton Mutual Life & Fire Ins. Co. v. McKelway, 1 Beas. 133.</p> <p>The lease was properly forfeited: Munroe'v. Armstrong, 96 Pa. 309 ; Brown v. Vandergrift, 80 Pa. 142; Pittsburg & Connellsville R. R. Co. v. Bedford & Bridgeport R. R. Co., 81* Pa. 104; Grantz v. Penna. R. Co., 41 Pa. 147; Piula. & Erie R. R. Co. v. Catawissa R. R. Co., 53 Pa. 20.</p> <p>Railway leases are void unless authorized by express law: 5 Thompson’s Commentaries on the Law of Corporations, secs. 5, 880; Van Steuben v. Central R. R. Co., 178 Pa'. 367 ; Hampe v. Pittsburg, etc., Traction Co., 165 Pa. 468; 4 Thompson’s Commentaries on the Law of Corporations, secs. 5, 355; Thomas v. West Jersey R. R. Co., 101 U. S. 71; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S. 1; Manchester & Lawrence R. R. Co. v. Concord R. R. Co., 47 Am. & Eng. R. R. Cases, 360.</p>

<p>Contract — Consideration—Cause of action — Amendment.</p> <p>In an action of assumpsit plaintiffs averred in their original statement that having an option on defendant’s land, they did certain work in testing it for coal; that they afterwards, with others, took a deed for the land and gave a mortgage to secure the purchase money; that subsequently defendant promised to pay them a certain sum in consideration of the loss which they had sustained in testing the land, but that this sum was not to be paid until defendant had collected the mortgage. In the amended statement it was averred that the promise was made in consideration that plaintiffs would render 'continuing services to discover coal. This last averment was not sustained by the proofs. The uncontradicted testimony for the defendant was that another person had advanced all the money that had been expended in testing, and that such person had subsequently bought plaintiff’s interest in the land, and had paid them a sum more than the amount which they claimed from defendant. Held, that plaintiffs had 1)0 cause of action against defendant.</p>

<p>Appeal, No. 434, Jan. T., 1899, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1897, No. 19, in answers to foreign attachment in case of Winthrop Company v. Winfield A. Clinton.</p> <p>Foreign attachment.</p> <p>Rule for judgment on answers.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in entering- judgment against garnishees üpón their answer.</p> <p>The undoubted intention of the testator was to protect his son Winfield from his own improvidence and to secure to him an income “ for his use and support during all the term of his natural life.” He thus created a spendthrift trust: Keyser v. Mitchell, 67 Pa. 473; Stambaugh’s Est., 135 Pa. 585; Vaux v. Parke, 7 S. & W. 25; Smith v. Savidge, 4 Pennypacker, 320.</p> <p>As Winfield A. Clinton, under the provisions of the will, can go into a court of equity and demand of the executors payment of the income when the same falls due, an attaching creditor is entitled to whatever income is due and payable to the debtor, there being no provision exempting the same from execution: Girard Life Ins. & Trust Co. v. Chambers, 46 Pa. 485 ; King’s Est., 147 Pa. 410; Park v. Matthews, 36 Pa. 28.</p> <p>The cardinal rule for the construction of wills is that the intent of the testator must be gathered from the will itself. Where the language of the will is clear and unambiguous, a doubt suggested by extrinsic evidence of the testator’s circumstances at the time he wrote the will cannot be permitted to affect its construction: Sponsler’s App., 107 Pa. 95 ; Baker & Wheeler’s App., 115 Pa. 590; Rouser’s Est., 8 Pa. Superior Ct. 188; Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Overman’s App., 88 Pa. 276.</p>

<p>Judgment — Marking judgment to use — Evidence—Competency of witness — Party dead.</p> <p>Where the record of a judgment against two defendants shows that the judgment had been marked to the use of a son of one of the defendants in the latter’s lifetime, and the evidence of disinterested parties shows that the judgment was marked to the use of the son to keep it alive, and that the father was not indebted to the son, the son cannot avail himself of the judgment. In such a ease, the father being dead, the son is not a competent witness.</p>

Appeal, No. 170, Jan. T., 1900, by John Krug, from decree of O. C. York Co., sustaining exceptions to auditor’s report in the estate of Agnes Krug, deceased. Exceptions to auditor’s report.

Yol. cxcvi — 32 Appeal, No. 309, Jan. T.,T899, by-Lizzie J. B. Waller, executrix, from decree of O. C. Lycoming Co., dismissing exceptions to auditor’s report in estate of Benjamin S. Bentley, deceased. Exceptions to report of J. L. Meredith, Esq., auditor. The facts appear by -the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to auditor’s report.

Appeal, No. 209, Jan. T., 1899, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1897, No. 105, on verdict for plaintiffs in case of James H. Kane and Charlotte Kane, his wife, v. City of Philadelphia. Trespass for personal injuries. Before WTltbank, J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff, James H. Kane, for $271.25 and for Charlotte Kane for $940. Defendant appealed.

Appeal, No. 404, Jan. T., 1899, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1895, No. 8, M. L. D., on verdict for plaintiff in case of Samuel K. Sankey v. Henry H. Burton-, Administrator et al. Scire facias sur mechanic’s lien.

<p>Appeal, No. 408, Jan. T., 1899, by defendants, from judgment of C. P. No. 4, Phila. Co., June TV, 1897, No. 1600, on verdict for plaintiff, in case of Wilkinson Manufacturing Company v. John Welde, James J. Hitschler and Welde & Thomas Brewing Company.</p> <p>Assumpsit on a written contract.. Before Alnóld, P. J.</p> <p>Plaintiff recovered a verdict for $3,500. The court ordered a new trial unless plaintiff would remit all damages in excess of $2,000 and interest. Plaintiff filed a remittitur and defendant appealed.</p> <p>Error assigned among others was in admitting in evidence the contract produced by defendant and offered by plaintiff.</p> <p>For the plaintiff to prove a contract, under objection, different materially from the one sued on, was altogether without warrant of law. He called at the opening of the trial for any contracts that the defendants had in their possession and got the contract which they had actually signed. The plaintiff then saw that it was materially different from the one he had declared on, and as the defendants objected to its admission under the pleadings, could easily, and should, have amended his statement. He did not so amend. At the proper time the defendants asked for a nonsuit. This was refused, and they, of course, could do nothing further.</p> <p>A few years ago if the same objection had been made, any court of this commonwealth would certainly have granted the nonsuit. A variance between the allegata and probata was then considered fatal. In later years there has, however, grown up the doctrine that any such variance is cured by verdict, and that unless objection is made to the variance at the trial, it cannot be taken advantage of in the appellate court.</p> <p>There is no .case though in which it has been held that such a variance is anything else but fatal to the plaintiff’s case when the variance has been called to the attention of the court, and objection taken to the admission of proof that is not anywhere within the pleadings. The defendants upon their pleadings went to meet- the issue as to whether or not they had ever signed the contract declared on, an issue which, if it had'been .decided in their favor, would have entitled them to a verdict, and yet the court below by its action takes away from them the possibility of obtaining that right; takes away from them the point which they had in their favor because the plaintiff had declared on the wrong contract, and leaves them on the pleadings practically without a defense. Had the plaintiff amended, the defendants could then have pleaded surprise, and had an opportunity to amend their plea and meet the issue presented by the new declaration.</p> <p>An amendment by the plaintiff has always been held to entitle the defendant to a continuance in order to meet the issue presented by the new declaration. But here the court allowed a virtual amendment without an actual amendment, such as would give the defendants the right to a continuance, in order that they might prepare to meet the new issue presented by the amended declarations.</p>

Appeal, No. 414, Jan. T., 1899, by plaintiff, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1898, No. 1058, on demurrer to surrebutter in case of William D. Allen v. Colliery Engineers’ Company. Assumpsit for breach of contract.

<p>Appeals — Interlocutory order.</p> <p>An order sustaining in part exceptions to an auditor’s report, and referring the matter back to the auditor, is an interlocutory and not a final order.</p> <p>Ships and shipping — Enrollment—Mortgage—Corporation.</p> <p>A corporation may enroll a ship which it owns in a port in which it transacts its business, although such port is not the home port of the corporation, and a mortgage on the ship enrolled in the same port in which the ship is enrolled, will give a valid lien upon the ship.</p> <p>Receivers — Compensation— Counsel fees — Steamships.</p> <p>Where receivers of a steamship company sell vessels of the company upon which maritime liens have been fixed prior to the receivership, they cannot diminish the fund due to the owners of such liens by retaining an allowance for receivers’ commissions and counsel fees. For such allowances they must look to the other property of the company.</p> <p>Maritime liens — Supplies and repairs — Credit of owner — Contract.</p> <p>A maritime lien for repairs and supplies to a vessel cannot be acquired where it appears that the repairs and supplies were furnished upon the credit of the owners, and not of the vessel.</p>

<p>Wills — Trust and trustees — Long continued possession of land.</p> <p>In a proceeding to obtain possession of land purchased at sheriff’s sale, it appeared that in 1762 the owner of the land died leaving a will by which he gave twenty pounds a year for the maintenance of a free school in a township, the same to be paid by his executor, or the successor of such executor. Testator gave all his land to his executor with power to appoint a successor, “ said land to be kept by his executors, one after another, without sale in tail for ever; the said succeeding or the surviving executors to give security for the payment of ye said twenty pounds a year.” The land remained in the family of the first executor by devise from father to son for 120 years, each holder paying £20 a year. Valuable improvements were made upon the land, and no claim was made by the township other than for the £20 a year. Held, that in 1896, the successor in title to the first executor had a right to the possession of the land subject to the ehai’ge of £20 a year upon it.</p>

<p>Appeal, No. 233, Jan. T., 1898, by plaintiffs, from judgment of C. P. Schuylkill Co., March T., 1896, No. 355, on verdict for defendants in case of William F. Wildermuth, Administrator d. b. n. of Elijah Wildermuth, deceased, v. John W. Long, Jeremiah Long and Solomon Boyer, Executors of Benjamin Boyer, deceased.</p> <p>Assumpsit for purchase money of land. Before Lyons, P. J., of the 41st judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were in giving binding instructions for defendant.</p> <p>An instrument purporting to convey all the grantor’s right, title and interest in certain lands, the description of which is immediately followed by habendum and general warranty clauses, is not a mere quitclaim deed, but a conveyance of the land itself : Evenson v. Webster, 53 N. W. Repr. 747; Laughlin v. Tips, 28 S. W. Repr. 551.</p> <p>This property was purchased by Genslinger; he paid the entire consideration, and Boyer was in possession, through his tenant, at the time of the purchase, representing the property to be his.</p> <p>One of the purchasers from a person in possession is entitled to rely on the fact that such person has an absolute deed in his own right, and he is not bound to make further inquiries: Fargason v. Edrington, 49 Ark. 207; Lance v. Gorman, 136 Pa. 200.</p> <p>It is not the office of a habendum in a deed to enlarge the estate granted by the operative words in the deed.</p> <p>It is true that lands in Pennsylvania are assets for the payment of debts of the decedent, but an administrator as such, except under the circumstances mentioned, has no control over real estate of the intestate.</p> <p>The only interest conveyed by the deed in the property was the right, title and interest of Benjamin Boyer therein (whatever that was) and the deed does not purport to sell or to convey anything else.</p>

Appeal, No. 95, Jan. T., 1898, by defendant, from judgment of C. P. Lackawanna Co., June T., 1893, No. 610, on verdict for plaintiff in case of William Von Storch v. Currington Von Storch. Ejectment for a tract of land in Scranton. Before Arch-bald, P. J. At the trial plaintiff showed a good paper title in himself. ■ Defendant claimed that the plaintiff Held the legal title by aparol trust for Ferdinand Von Storch, his heirs, etc., through whom the defendant claimed.

Appeal, No. 446, Jan. T., 1899, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T.,‘ 1891, No. 494, on verdict for defendant in case of Joseph H. Grunster, assignee, in trust for the benefit of creditors of the Scranton City Bank v. William H. Jessup, Theodore G. Wolf and Everett Warren, Executors of B. H. Throop, deceased, and Ellen B. Jessup, sole heir and legal representative of Albert Beardsley, deceased. Assumpsit on a bond of suretyship.

Appeal, No. 27, Jan. T., 1900, by defendants, from decree of C. P. Lackawanna Co., May T., 1899, No. 5, granting an injunction in the case of Olyphant Sewage-Drainage Company v. Borough of Olyphant and P. J. McNulty, Burgess. Bill in equity for an injunction. The facts appear by the opinion of Edwards, J., which was as follows: EACTS. 1. The plaintiff is a corporation organized under the Act of June 10, 1893, P. L. 435.

<p>Appeal, No. 364, Jan. T., 1899, by N. N. Betts, cashier, from order of C. P. Bradford Co., May T., 1899, No. 379, making absolute rule to open judgment, in case of John Howie, to use of N. N. Betts, Cashier, y. Evan Lewis.</p> <p>Rule to open judgment entered on a judgment note.</p> <p>^ From the record it appeared that the note was for 13,500. Evidence for the defendant tended to show that he was an old man, ignorant of writing, and that he had signed the note on the statement made to him by the plaintiff, John Howie, for whose accommodation he signed it; that the note was for $300; that the note was originally made out for $300, and had been raised by Howie to $3,500. The note contained these words: “ This note shall be subject to the same rules governing commercial paper, as to equities.” The note was under seal. No evidence was offez’ed by the use plaintiff.</p> <p>The court made the rulo absolute.</p> <p>Error assigned was in making the rule absolute.</p>

<p>Ejectment — Former ejectment — Evidence—Record.</p> <p>In a second action of ejectment between the same parties, and for the same land, it is proper to refuse to admit in evidence an agreement filed in ' the first action for the settlement of that action where it appears that such agreement had by the consent' of all the parties been stricken from the record.</p> <p>Ejectment — Second ejectment — Statute of limitations — Act of April 13, 1859, P. L. 603.</p> <p>Where a verdict was rendered in an ejectment case on January 5,1872, and on March 13, of the same year the court refused a rule for a new trial, but judgment was not entered until twenty-two years afterwards, when the jury fee. was paid and judgment entered by the clerk, the bar of the statute requiring the second ejectment to be brought within a year, ran from March 13,1872, and a second ejectment could not be brought twenty-seven years thereafter. In such a case the entry of the judgment by the clerk was a mere ministerial act, the ease having been “ decided ” within the meaning of the act of April 13, 1859, when the court refused a new trial.</p>

<p>Statute of limitations — Negligence—Personal injuries — Constitutional law.</p> <p>Where a personal injury was suffered on September 3, 1892, an action to recover damages for the injuries instituted on September 21, 1897, is barred by the Act of June 24, 1895, P. L. 236. Rodebaugh v. Philadelphia Traction Company, 190 Pa. 358, followed and reaffirmed.</p>

<p>Contract — Preliminary dealings — Written contract — Evidence — Presumption.</p> <p>Where parties to an offer and acceptance show either by express words, or by their action that they regard the arrangement as preliminary only, and to be put into final shape thereafter, and subsequently they execute a formal instrument in writing, the latter is the only contract, and the preliminary steps, however elaborate, go into the category of mere negotiations leading up to the final result. This is always the presumption of the law where a written conLraet is made.</p> <p>Where a person submits the substance of an agreement to the directors of a corporation, and the directors notify the party of the acceptance of the proposal, and subsequently a written contract is executed embodying some provisions that were not in the proposal or the acceptance, the written contract will be presumed to be the real contract between the parties.</p> <p>Contract — Building contract — Dispossession of owner by contractor.</p> <p>A building contractor, even though the contract time for the delivery of the building had not arrived, has no authority to dispossess the owner of his premises, or to interfere with his possession further than is necessary to enable the contractor to complete his work; and this is the case although the owner may have been guilty of a breach of a covenant in the contract.</p>

<p>Will — Irregular execution of testamentary paper — Statute of wills.</p> <p>An instrument in any form whether a deed poll or indenture if the obvious purpose is not to take place till after the death of the person making it, operates as a will.</p> <p>Testatrix left a will regularly probated by which she gave her estate principally to her relatives. After her decease her executors found in her safe deposit box an envelope not sealed, containing five bonds and four stock certificates. On the envelope was this indorsement: “June 21, 1897. Six Bonds for my brother Johns three daughters, also one for my nephew John Beard, to be sold after my death. P. H. P. Harrison.” Pecuniary legacies of a similar amount with the pi’obable proceeds of the bonds, were given to the same legatees by the probated will. The person who wrote the indorsement on the envelope testified that it was written at the instance of the testatrix, that it was signed by her, and that with her own hands she selected the securities from other packages contained in her private box, and herself placed them in the envelope. The stock certificates were treated as bonds because they bore a fixed rate of interest at four per cent payable at fixed days in February and August of each year. Held, that the indorsement on the envelope was a valid codicil to the will, and that the court committed no error in awarding the securities in the envelope to the persons named in the indorsement in addition to the pecuniary legacies given to them by the will.</p>

<p>Appeal, No. 58, Jan. T., 1900, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1892, No. 590, on verdict for plaintiff in case of W. W. Peniston v. John Y. Huber Company.</p> <p>Assumpsit on a contract of employment. Before PennvPACKER, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part at follows:</p> <p>[It is the duty of an employee to give obedience to reasonable directions given him by the employer about the performance of his duties.] [2] [I think we get, perhaps, the clearest idea of what was the difficulty between these parties, from a portion of the testimony of the plaintiff himself. He tells us : “ Mr. Huber wanted me to change from the second story of the building at Eleventh and Ridge avenue and come down to the first floor of the main building, and have simply that office, and I told him no; that we ought to have the agents’ department where it was, and that the small office on the ground floor, the rent did not amount to anything; it wasn’t more than, probably eight by ten feet; ” and that was what brought matters to a crisis.</p> <p>He further testified when he was asked:</p> <p>“ Q. Did he tell you to go down to the first floor? A. Yes, sir. Q. He directed you to do it, did he ? A. Yes, sir; and I declined. Q. You refused? A. I declined, because he had made a previous arrangement to have that second floor, and to have that department there, and I felt I had a partner’s interest in it, instead of a position as a clerk.”</p> <p>I think that gives us a clue to the difficulty. The plaintiff was insisting that under this agreement his rights were those of a partner, and that, therefore, he was entitled to determine questions of that character, and the employer took the other view, that he was called upon to decide questions of location and questions of the general conduct and management of that business, and that this was a contract of employment, and not one of partnership. I have instructed you that in his view of it, the employer was in the right, and that the employee was in the wrong. This was a contract of employment.</p> <p>Then the question arises as to whether or not that was a reasonable direction to give to an employee. If you look further in this case you can see many reasons why it may have been important that the work should be done in the room where the work was commenced on the first floor. This, you remember, was only one portion of the business. It may well have been in the conduct of his business that the employer needed that room for some other purpose. You have had it testified before you that a few months later than this occurrence the weight of the material in the upper floors of the building broke through the floors, and the whole thing was precipitated ’ below. This is a matter which a man knowing the general needs'of the business might well take into consideration.</p> <p>You have also heard that the president of the company was a man who was in ill health, and that it was difficult for him to mount the stairways. He may well have considered that it was important for him to have the business conducted where it would be convenient for him to supervise it. But without going into any conjectures about it, if it was a reasonable order which the employer gave then it would be the duty of the employee to obey it; if he did not, and he refused, he could well be discharged.] [3]</p> <p>I take it, if you had a kitchen girl, and she insisted upon doing her cooking in the parlor because there happened to be more room in the parlor, you would feel that she might be properly discharged from that employment.</p> <p>You may, for the purposes of this case, consider the president of the company as acting for the employer. There is no evidence to show us what was the authority conferred upon the president, but, ordinarily, he is the executive officer of a corporation, and that was an inquiry which the employee was not called upon to make. The directions of the president were the directions of the defendant. [It appears that the employer, Mr. Huber, asked the plaintiff here for the surrender of the written contracts which had been made with the customers. Was that a reasonable demand for him to make? You will remember that the large amount of capital necessary for the conduct of this business was supplied not by the plaintiff, but by the defendant, and the contracts were made with the defendant, and the funds were to come from him.</p> <p>It appears that the plaintiff had been carrying those contracts around in his pocket. It does not need to look very far into it, it seems to me, to say that that was not a very safe nor a very desirable place to have the contracts. It is a question for you as to whether or not a demand for those papers, which were right at the foundation of the business, was a reasonable demand.] [4]</p> <p>If the plaintiff was not discharged, or if he was properly discharged, under the terms of the contract, which provides that there should be an ascertainment of the profits at the end of every three months and a payment to the plaintiff of his proportion of them, he would be entitled, if you are able to ascertain from this testimony, as to what his proportion of the profits was for the first three months, because three months had passed. To that sum he would be entitled, less the $20.00 a week which, it is conceded, had been paid to him.</p> <p>If he was discharged without sufficient ground — if he was improperly discharged by his employer — then he would be entitled to receive what would compensate him for the loss he would have because of the failure to carry out the terms of the contract. At the expiration of the two years, in addition to one third of the net profits, he was to have one third of the value of the plates, copyrights, and stock. He has testified to' you that those plates were, in his judgment, at the time of the alleged breach, worth about $20,000. He tells you there was stock there worth from $1,000 to $2,000, and he further testifies to you that upon one of these books, “ The Prince of Peace,” if I remember correctly, there had been sales amounting to 55,000 copies, and he estimates the profits upon each of those copies at fifty cents. If I have made that calculation correctly, that would amount to $27,500, and taking his view ' of it, if you find the facts his way and should believe the plaintiff’s testimony in this respect, he would be entitled to such sum as would compensate him for what would be the value of one third at the expiration at the two years, less the sum of $20.00 per week.</p> <p>You are told, however, by Mr. Evans that there was no profit at all. He states that in a very general way, but his statement was that there was no profit upon any of these books, and Mr. Huber has testified to you that the business was conducted at a loss; that there was a loss upon each of the books; and that with respect to “ The Prince of Peace,” the loss extended to the sum of $11,000.</p> <p>In ascertaining the value you may get some aid from the fact that, at a period some months later than this, the Huber company sold out this business for $100,000. But that light is a very imperfect light, for the reason that that sum represented the whole business, including this department, and as to what was the value of the rest of the business we have no knowledge.</p> <p>[There was also some evidence of an attempt at settlement between these parties, in which the suggestion was made of $10,000 in stock, and it was rejected for the reason, perhaps, that it is more or less problematical as to what was the value of the stock, although there is evidence that the stock of this company at the time was worth $125,000.] [5]</p> <p>Verdict and judgment for plaintiff for $8,000. Defendant appealed.</p> <p>Errors assigned were (2-5) above instructions, quoting them.</p> <p>Plaintiff was property discharged: Libhartv. Wood, 1 W. & S. 266 ; Matthews v. Park Bros., 146 Pa. 384; Elliott v. Wanamaker, 155 Pa. 67; Stevens v. Crane, 37 Mo. App. 487; Tullis v. Hassell, 54 N. Y. Superior Ct. 391; Maynard v. Lumberman’s Nat. Bank, 11 Atl. Repr. 529; Hyatt v. Johnston, 91 Pa. 196.</p>

<p>Appeal, No. 60, Jan. T., 1900, by plaintiff from judgment of C. P. No. 4, Phila. Co., Sept. T., 1898, No. 28, on verdict for garnishee in case of Rufus E. Hilliard v. Frederick Enders, trading as Enders & Company.</p> <p>Issue between plaintiff and garnishee on answers to interrogatories in foreign attachment. Before Arnold, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned (1-4) rulings on evidence referred to in the opinion of the Supreme Court; (5-8) in submitting to the jury the question of the priority between the attachment and the assignment; (10) in not directing a verdict for the plaintiff.</p> <p>An exemplified record is never admissible in lieu of the original excepting in cases where a statute requires the instrument to be recorded or expressly makes the copy evidence: Wharton on Evidence, secs. Ill, 115; Penrose v. Wolf, 33 Legal Intell. 298; Wendell v. Abbott, 43 N. H. 68; Wharton on Evidence, secs. 108, 117; State v. Wells, 11 Ohio Rep. 261.</p> <p>Any conclusion of the jury as to the time when the bond was filed was mere conjecture; and in such a case it is the duty of the court to withhold the question from the jury: Howard Express Co. v. Wile, 64 Pa. 201; First Nat. Bank v. Wirebach, 106 Pa. 37 ; Sidney School Furnishing Co. v. Warsaw School District, 122 Pa. 494.</p> <p>The act of 1855 as construed by the court is unconstitutional: Corfield v. Coryell, 4 Wash. C. C. 371; Slaughterhouse Cases, 16 Wall. 36; Cole v. Cunningham, 133 U. S. 107; Blake v. McClung, 172 U. S. 239; Morgan v. Neville, 74 Pa. 53 ; Rothermel v. Meyerle, 136 Pa. 250; Clark v. Toby Valley Supply Co., 14 Pa. C. C. 344; Cofrode v. Gartner, 79 Mich. 332; Paine v. Lester, 44 Conn. 196; Ward v. Morrison, 25 Vt. 593; Ward v. McKenzie, 33 Texas, 297.</p> <p>Secondary evidence is admissible to establish the execution of a paper where the subscribing witness is out of the jurisdiction of 'the court: Burton v. Driggs, 20 Wallace,'125; Hayward Rubber Co. v. Duncklee, 30 Vt. 29 ; Woods v. Burke, 67 Mich. 674; Mitchell v. Jacobs, 17 111. 235.</p> <p>In Pennsylvania it has been held that the giving of the bond is not a condition precedent, and a sale by the assignee without giving it is good: Dallam v. Fitler, 6 W. & S. 323; Heckman v. Messinger, 49 Pa. 465.</p> <p>The learned trial judge left to the jury to determine as a matter of fact, whether the assignment was recorded in Vermont before or after the issuance of the foreign attachment. He charged as a matter of law, that if it was so recorded, the garnishee was entitled to a verdict. In bis charge he followed five decisions of this court, so holding the first decided in 1887, and last in 1897 : Bacon v. Horne, 123 Pa. 452 ; Smith’s App., 117 Pa. 30; Long v. Girdwood, 150 Pa. 413 ; Wing v. Bradner, 162 Pa. 72; Deni v. Pennsylvania R. R. Co., 181 Pa. 529.</p> <p>The act of 1855, is a recording act, meant to secure notice by recording in Pennsylvania, to the citizens of Pennsylvania, of assignments affecting property whose situs is therein.</p> <p>If the act of 1855, be unconstitutional because it accords to citizens of Pennsylvania rights different from those to the citizens of others states, it cannot operate in favor of a citizen of another state to defeat an assignment otherwise clearly valid: Weber v. Samuel, 7 Pa. 499; Speed v. May, 17 Pa. 91; Law v. Mills, 18 Pa. 185; Blake v. McClung, 172 U. S. 239; Green v. Van Buskirk, 5 Wall. 307; Cole v. Cunningham, 133 U. S. 129 ; Smith’s App., 104 Pa. 388; Loftus v. Farmers’, etc., Nat. Bank, 133 Pa. 112.</p>

<p>Negligence — Railroads—Contributory negligence — “ Stop, ten." , look and lis-j</p> <p>The court can treat the question of contributory negligence as one of law only in clear cases, and when the inferences to be drawn from are free from doubt.</p> <p>Where a person driving a two-horse team approaches a grade crossing where there are six tracks, and where there is only a narrow opening between standing cars, and stops, looks and listens at a place where the public using the highway in the same manner usually stopped, the question whether he should have stopped again, or whether without stopping he should have seen the train which struck him in time to avoid injury, is a question for the jury and not for the court.</p>

<p>Public o fficers — Municipalities—Cities of the third class — Tax Receiver— Acts of May 4, .1871, P. L. 539, May 23, 1874, P. L. 230 and May 23, 1889, P. L. 277.</p> <p>When the city of Wilkes-Barre incorporated under the special act of May 4, 1871, became, by appropriate proceedings, a city of the third class under the general acts of May 23,1874 and May 23, 1889, the person holding the office of tax receiver, an office created by the act of May 4, 1871, was entitled to continue in office until the end of his termj although such office was not elective.</p> <p>Not decided whether the office of tax receiver in the city of Wilkes-Barre is abolished after the expiration of the term of the present incumbent.</p>

<p>Appeal, No. 245, Jan. T. 1899, by defendant, from order of C. P. Luzerne Co., May T., 1897, No. 969, entering judgment against him for want of a sufficient affidavit of defense in case of William A. Smith, Charles E. Canyle and Robert R. Smith, trading as William Alexander Smith & Co., assigned to David Perkins and John S. Jenkins, now assigned to John S. Jenkins v. Elisha A. Coray.</p> <p>Scire facias to revive judgment.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The affidavit of defense was as follows :</p> <p>E. A. Coray, defendant above named, being duly sworn says: I have a just and full defense to the above stated action, the nature and character of which is, that the writ of scire facias issued has been fully paid. I hold the receipt of David Perkins acknowledging full satisfaction as far as his interest was concerned, given to me during his lifetime. He has been dead for some time, about three years now past. Since his death, to wit: in June, 1896, John S. Jenkins obtained from his widow and executrix an assignment of the interest of said David Perkins, without recourse, without paying any consideration for the same. Further, the said John S. Jenkins never at any time paid any consideration out of his own property for the said judgment. I arranged the settlement with Wm. Alexander Smith & Company, and caused the assignment to be made to said Perkins and Jenkins in my own interest, and for my own purposes, the said John S. Jenkins being at the time my confidential friend and trustee. Moreover, the said Jenkins has in his hands other matters which he holds as my trustee, and as to which I am now seeking a settlement, and as I verily believe upon a full settlement he will be found largely in my debt, instead of my being indebted to him.</p> <p>The supplemental affidavit of defense was as follows:</p> <p>E. A. Coray, defendant above named, being duly sworn says: In addition to the matters stated in my former affidavit of defense, I further state that before the judgment above mentioned in favor of Wm. Alexander Smith & Company, had been assigned to David Perkins and John S. Jenkins, I had made settlement of the said judgment with said Wm. Alexander Smith & Company. I had previously given to said David Perkins and John S. Jenkins a judgment to cover all indebtedness to them or either of them then existing or that might afterward arise in our transactions, the said Perkins being my brother-in-law and the said Jenkins acting as before stated as my confidential agent and conducting my business for me. Neither of them furnished either funds or property of theirs in the settlement with said Smith and Company, but what was paid was paid wholly out of my own property. Inasmuch as this Smith and Company judgment was a prior lien to theirs, I deemed it desirable to have this judgment assigned to them, instead of having it satisfied, when I had made the settlement with Smith and Company. And it was accordingly so done upon the distinct understanding that whenever I desired the said judgment should be satisfied by them of record. In pursuance of this understanding, the said David Perkins gave me a receipt and acknowledgment of satisfaction, so that I could have the same placed on record whenéver I pleased. The said Jenkins, being my confidential agent, and ready to enter satisfaction whenever I wished, as I understood, I did not deem it necessary to have a corresponding receipt and acknowledgment of satisfaction from him.</p> <p>Among the securities and property which, as I stated in my former affidavit, had been placed in his hands as trustee, I now specify the stock of the Spring Brook Railway Company of which I was the owner, and placed in his hands as trustee for me; and which, in violation of the trust he accepted, he converted to his own use, thus taking from me property which I deemed worth $100,000.</p> <p>I also placed in his hands the stock of the Rush Brook Coal Company which represented a coal property which I purchased from John Jermyn for $75,000. A portion of this stock he delivered to me, but he has in his possession, or has converted to his own use, another portion thereof, to the value of $27,000, which he refuses to deliver up to me. The property of the said railway company and the said coal company is situate in the county of Lackawanna, and upon the discovery of his breach of trust and endeavor to defraud me, I filed in said county a bill in equity for account and settlement, which is now pending. I therefore repeat, that instead of my being indebted to him in any amount, he is largely indebted to me, as I expect to be able to show upon a proper legal investigation.</p> <p>The copy of the receipt and ackowledgment of satisfaction of David Perkins is as follows:</p> <p>U William Alexander Smith & Co., assigned to David Perkins and John S. Jenkins, vs. In the Court of Common Pleas of Luzerne > County. No. 14, June Term, E. A. Coray. 1887.</p> <p>“ Now, May 4, 1892, by payments heretofore and now made, I hereby acknowledge that I have received from E. A. Coray full satisfaction of my interest in the above stated judgment, debt, interest and costs, the same being the equal undivided one half thereof. And I further hereby authorize the prothonotary of Luzerne county to enter upon the record full satisfaction of my entire interest in the above stated judgment. Witness my hand and seal this 4th day of May, A. D. 1892.</p> <p>“ Da vid Perkins, [seal.]</p> <p>“In presence of witness, H. A. Laycock.”</p> <p>I therefore submit that, first, the plaintiff never had a legitimate right to claim a single dollar from me on account of this judgment; and second, that if he had had at any time, a right to claim the amount of the judgment against me, such claim is overbalanced by my legitimate claims aforesaid against him.</p> <p>Error assigned was in making absolute a rule for judgment.</p>

Appeal, No. 244, Jan. T., 1899, by defendant, from order of C. P. Luzerne Co., Dec. T., 1896, No. 748, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of David Perkins and John S. Jenkins, now assigned to John S. Jenkins v. E. A. Coray. Scire facias'to revive judgment. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 391, Jan. T., 1899, by-defendant, from judgment of C. P. Luzerne Co., Oct. T., 1896, No. 580, on verdict for plaintiff in case of Catharine E. Lonzer v. Lehigh Yalley Railroad Company.</p> <p>Trespass for death of plaintiff’s husband. Before Edwards, J.</p> <p>At the trial it appeared that Michael Lonzer, plaintiff’s husband, was killed on January 20, 1896, while working as a locomotive engineer on one of defendant’s trains. The accident occurred near Hazelton, and was caused by a subsidence of the track. This subsidence was due to the sinking of the land over mine workings from which the coal had been removed. Plaintiff was running his train at the time of the accident at the rate of about twenty-five miles an hour. There was evidence that three weeks prior to the accident a notice had been placed on the assistant train master’s bulletin board that, “ All trains will run slow between Sugar Loaf Switch and South Sugar Loaf, account track settling.” There was evidence that running slow meant eight to ten miles an hour. Deceased’s fireman testified that Lonzer had a copy of the order in his possession, and had showed it to the witness. The court submitted the case to the iui'y-</p> <p>Yerdict and judgment for plaintiff for 13,000. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p> <p>Where there is no real controversy as to the facts it is not error to withdraw the case from the jury: Gardner v. McLallen, 4 W. N. O. 435 ; Holland v. Kindregan, 155 Pa. 156 ; Wells v. New England Mutual -Life Ins. Co., 191 Pa. 211.</p> <p>The matter of knowledge on the part of the deceased was properly submitted as a question of fact to the jury: Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190; Hawley v. Northern Cent. Ry. Co., 82 N. Y. 370; Patterson v. Pittsburg & Connellsville R. R. Co., 76 Pa. 389; Penna. R. Co. v. Zink, 126 Pa. 288.</p> <p>An employee who continues to use a machine which he knows to be dangerous takes upon himself the risk of injury therefrom ; but this rule is inapplicable if the risk does not threaten immediate danger, and the employee continues in the employment in pursuance of a promise of the employer to remedy the defect: Brownfield v. Hughes, 128 Pa. 194; Penna. & N. Y. Canal & R. R. Co. v. Mason, 109 Pa. 296; Bennett v. Standard Plate Glass Co., 158 Pa. 120; Denning v. Midvale Steel Co., 192 Pa. 182; Kansas City, St. Joseph & Council Bluffs R. R. Co. v. Flynn, 78 Mo. 195; Whittaker v. Delaware & Hudson Canal Co., 126 N. Y. 544; Ford v. Fitchburg R. R. Co., 110 Mass. 240 ; Reed v. Burlington, etc., Ry. Co., 72 Iowa, 166.</p>

<p>Appeal, No. 18, May T., 1900, by defendant, from judgment of C. P. Dauphin Co., No. 91, Commonwealtli Docket, 1900, on case stated in the case of A. G. Knisely, Treasurer of the County of Dauphin, for the use of the Commonwealth of Pennsylvania, v. David W. Cotterel.</p> <p>Appeal, No. 182, Jan. T., 1900, by plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1900, No. 475, refusing preliminary injunction in case of Edward B. Wood et al. v. William S. Yare et al.</p> <p>Case stated and bill in equity to determine the constitutionality of the mercantile license tax act of May 2,1899.</p> <p>The facts appear by the opinion of the Supreme Court, and by the opinion of Simonton, P. J., in No. 18, May term, 1900, which was as follows:</p> <p>This is a case stated in which the parties agree that defendant is a retail vendor or dealer, subject to the mercantile license tax imposed on vendors and dealers in goods, wares and merchandise by the Act of May 2,1899, P. L. 184, and that everything prescribed by the act has been done to fix his liability to a tax of $18.40, for which amount it is agreed that judgment shall be entered against him if the court be of opinion that the act is constitutional, otherwise judgment to be entered in his favor.</p> <p>The act in question is entitled, “ An act to provide revenue by imposing a mercantile license tax on vendors of or dealers in goods, wares and merchandise and providing for the collection of said tax ; ” and section 1 enacts “ that from and after the passage of this act each retail vendor of or retail dealer in goods, wares and merchandise shall pay an annual mercantile license tax of one mill additional on each dollar of the whole volume, gross, of business transacted annually. Each wholesale vendor of or wholesale dealer in goods, wares and merchandise shall pay an annual mercantile license tax of $3.00, and all persons so engaged shall pay one half mill additional on ■ each dollar of the whole volume, gross, of business transacted annually. Each dealer in or vendor of goods, wares and merchandise at any exchange or board of trade shall pay a mercantile license tax of twenty-five cents on each thousand dollars’ worth, gross, of goods so sold.” The 2d section defines the terms “ wholesale dealer ” and “ retail dealer.”</p> <p>Defendant’s principal objection to the act is that as the 1st section taxes retailers at a different and higher rate than wholesalers it is repugnant to section 1, article 9 of the constitution, which ordains that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax and shall be levied and. collected under general laws.”</p> <p>We think it important at the outset to determine what is the subject of the tax. It is called in the title and in the several sections a “ mercantile license tax,” a “ mercantile tax ” and a “ license tax.” The title declares that the purpose of the act is to provide revenue. The retailer is to pay one mill and the wholesaler one half mill on each dollar of the whole volume, gross, of business transacted annually. It seems to have been consideredin Williamsport v. Wenner, 172 Pa. 173, thatalicense tax to be paid by defendant, graduated by the amount of his annual sales, was “ a tax on the defendant’s property estimated by the volume of his annual sales.” But the case did not require a determination of this point, and we venture to think that if it had been carefully considered the tax would have been found to be on the business measured by the amount transacted. Manifestly a tax levied on the property generally of all the merchants in a city estimated by the amount of their annual sales in their business could not be “ uniform on the same class of subjects.” But if the class of subjects is their sales or business, such a tax would be uniform. By this act the amount of a retailer’s tax is to be “ one mill on each dollar of the whole volume, gross, of business transacted annually.” The volume of business measured in dollars fixes the amount of the tax, and this seems to determine that it is a tax on the business and not on the property of the vendor or dealer. It certainly is not a tax on his property generally, for it need not appear whether he owns any property or not, neither can it be a tax on the money invested, for manifestly his gross sales will not measure or determine the amount of money invested during or at the end of the year.</p> <p>In Reading R. R. Co. v. Penna., 15 Wall. 284, a tax on the gross receipts of a railroad company derived from interstate transportation, which had been decided in this court.by the late President Judge Pearson to be. unconstitutional, because a tax on interstate commerce and business, was, reversing the court below, decided by the Supreme Court of Pennsylvania and the Supreme Court of the United States to be a tax on the property of the company. But later, in a similar case also from this court, the above decision was overruled and the decision of Judge Pearson that the tax was on the business was affirmed: Philadelphia and Southern Steamship Co. v. Pennsylvania, 122 U. S. 327.</p> <p>In Kittanning Coal Co. v. Commonwealth, 79 Pa. 100, a tax “ at the rate of three cents upon each and every ton of 2,240 pounds of coal mined or purchased ” by coal companies was decided to be a tax, not on the coal mined, but on the franchise or right of the company to mine measured by the amount of its business.</p> <p>In Philadelphia Contributionship for Insurance, etc., v. Commonwealth, 98 Pa. 48, the tax imposed by section 10 of the Act of June 7, 1879, P. L. 118, of three per cent upon the annual net earnings or income of the corporations therein mentioned, was decided, to be a tax, not on the money and receipts of such corporations but on their franchises, the amount of the net earnings or income being used simply as a measure of the amount of the tax. Mr. Justice Stekbett, delivering the opinion of the court, said: “ There is an obvious difference between a direct tax on the property of a corporation and a franchise tax, measured by its earnings, which, proximately at least, represent either the value of the franchise granted or the extent of its exercise. The distinction has been repeatedly recognized by both federal and state courts.” The doctrine of this case was reaffirmed and applied in Com. v. Lake Shore, etc., R. R. Co., 150 Pa. 234, where it was decided that a tax on net earnings or income of trust companies, under section 27 of the act of June 1,1889, was a tax, not on property, but on the franchises of the companies. In Society for Savings v. Coite, 6 Wall. 594, where cei’tain corporations were required to pay annually a tax equal to three fourths of one per cent on the total amount of their deposits, it was held that this was a valid franchise tax, and not a tax on property, and in Provident Institution v. Mass., 6 Wall. 611, the same doctrine was declared.</p> <p>On the analogy of these and many like cases that might be cited, we are of' opinion that the tax in question here is a tax, not on the property of the dealers or vendors, but on their business transacted during the preceding year measured by its volume in dollars.</p> <p>This brings us to the question of classification; and the question is, whether the business of vendors or dealers of goods, wares and merchandise may be classified into the business of retail dealers, and the business of wholesale dealers. If the classification be legal the taxes are uniform on the same class; for, as was said by Chief Justice Agnew in Kittanning Coal Co. v. Commonwealth, supra, “ by classification inequality between persons, natural or artificial, can be avoided. It is clear, therefore, that the moment we concede the power to classify, we have disposed of the question of uniformity, for then all that is required by the constitution is uniformity of taxes among the members of the class. Now the power to classify is not only retained in clear language, but was held by the court to be continued in the case of Kitty Roup v. The City of Pittsburg, 81* Pa. 211. This power was possessed under the constitution of 1790, had been exercised in numerous laws, and existed when the new constitution was framed and adopted.” And citing Kitty Roup’s case, Mr. Justice Clakk said in Com. v. Delaware Division Canal Co., 123 Pa. 623: “ The moment we concede the power to classify we have disposed of the question of uniformity, for then all that is required by the constitution is that the taxes shall be uniform upon the members of a class. Classification for purposes of taxation, as a general rule, is a matter for the legislature; it is the uniformity of taxation, according to that classification, which is for the courts.”</p> <p>The legality of classification for purposes of taxation has always been recognized. Speaking before the adoption of the present constitution, Mr. Justice Shabswood said, in Durach’s Appeal, 62 Pa. 494: “ In the legitimate exercise of the power of taxation, persons and things always have been and may constitutionally be classified. No one has ever denied this proposition. To hold otherwise would logically require that all the subjects of taxation, as well persons as things, should be assessed, and an equal rate laid ad valorem. Practically no more unequal system could be contrived.”</p> <p>The power to classify has been freely exercised under the present constitution. In Kittanning Coal Co. v. Com., supra, it was held legal to form for taxation a class of corporations having the right to mine, purchase or sell coal. The subject of classification is there fully discussed, and the conclusion is reached that without the power to classify taxation could not be made uniform. There is also a very full discussion of the subject in Com. v. Delaware Division Canal Co., supra, where it is said that “the power to impose taxes for the support of the government, subject to the limitations of the constitution, still belongs to the legislature; the selection of the subjects, their classification, and the methods of collection are purely legislative matters. When the action of the legislature, with respect to these matters, is not repugnant to the constitution, it would certainly be a case of the grossest inequality, which would call for the intervention of the courts : Kelley v. City of Pittsburg, 85 Pa. 170. It may be conceded, however, that classification should be made according to some reasonable, practical rule, drawn from experience, wliicli would prevent a gross inequality in the burdens of taxation.” Many instances of classification are given by Mr. Justice Clark, writing the opinion in this case, and among others he says : “ Some classes of corporations are taxed upon net earnings or income; others upon capital stock, the value thereof to be ascertained by their annual dividends or in a certain event upon the actual value of their shares ; others upon their gross receipts; insurance companies upon the gross amount of their premiums ; coal and mining companies at a specific sum for every ton of coal mined,” etc.</p> <p>In Com. v. Edison Electric Light Co., 145 Pa. 131, manufacturing corporations were, for the purpose of taxation, divided by the Supreme Court into two classes. And in Com. v. Sharon Coal Company, 164 Pa. 304, the court says: “It has been settled that the legislature can, without making the revenue statute obnoxious to the constitution, classify corporations for purposes of taxation; may sever a small class from a larger one; might subject one class to taxation, and leave others untaxed: Commonwealth v. Germania Brewing Co., 145 Pa. 85, and the cases there cited. . . . And in Commonwealth v. Delaware Division Canal Co., it was decided that a different basis of taxation may be adopted on mortgages and loans held by individuals and those held by corporations.” In the Brewing Company case, it was decided that corporations manufacturing intoxicating liquor or illuminating gas might be legally taxed as one class, while other manufacturing corporations were exempt from taxation. In this case a very full discussion of the subject of classification will be found in the opinion of the court below by Judge McPherson, on which the judgment was affirmed by the Supreme Court. The subject is also discussed and elaborated in Commonwealth v. Delaware Division Canal Co., supra, in the opinion of Mr. Justice Clark, to which we refer.</p> <p>In Williamsport v. Brown, 84 Pa. 438, the division of real estate in one ward of a city into three classes for the purposes of taxation was upheld, the court saying: “ The power to classify the subjects of taxation still remains under the new constitution : Kittanning Coal Co. v. Com., 79 Pa. 100.” In Pittsburg v. Coyle, 165 Pa. 61, it was decided that where a municipality has the power to impose a tax on brokers, it may tax merchandise brokers and real estate brokers without taxing other classes of brokers, and such a tax does not violate the constitutional provision that taxation shall be uniform. In this case Mr. Justice Gbeen, delivering the opinion, refers to and quotes from “the very able opinion by Judge McPhebson of Dauphlin common pleas, in the case of Commonwealth v. Germania Brewing Co., 145 Pa. 83,” with approval of the principles of classification there laid down.</p> <p>In the light of these examples of valid classification, we do not see how it can be doubted that vendors or dealers in goods, wares and merchandise can legally be classified into wholesalers and retailers, or that wholesaling can be taxed at one rate and retailing at another. It is reasonable to presume that wholesalers sell in larger quantities at smaller profit in proportion to the amount of capital involved, and that therefore a smaller tax rate on the gross amount of their sales brings to the state a relative proportion of their actual profits. We have not been referred to, and we do not know, of any case in which classification for purposes of taxation has been decided unconstitutional; we have a number of cases, beginning with In re Washington Avenue, 69 Pa. 352, in which failure to classify has led to unconstitutional taxation.</p> <p>The last sentence of the 1st section seems to introduce a third class composed of certain members of the two principal classes. We do not stop to' consider whether this is a legal class or not. The two classes include all dealers or vendors, and if the subclass cannot stand this sentence becomes inoperative without invalidating the rest of the act.</p> <p>It is also argued that the act is unconstitutional and void because by section 3 mercantile appraisers in cities of the first class are to be appointed by the auditor general and treasurer of the city for three years, when in all the other counties of the state they are to be appointed by the county commissioners. It is claimed because of this that the tax is not levied and collected by general laws. We do not consider it necessary to discuss this point at length. If it be well taken, the whole system of state taxation of personal property is void. The general revenue acts of 1889 and 1891, under which millions of tax on personal property are "annually collected, provide that in cities coextensive with counties, the duties in relation to those taxes, which in the other counties of the state are to be performed by the comity commissioners, are to be performed by the board of revision of taxes. Section 3 of this act is the same as section 3 of the Act of April 20, 1887, P. L. 60, relating to appointment of mercantile appraisers. The duties of mercantile appraisers as well as the subjects and rate of taxation are the same in all the counties of the state, and the fact that the number of appraisers and term of their office and the appointing power differ in Philadelphia county from the other counties in the state does not, in our opinion, tend in the slightest degree to destroy uniformity in the taxation or to make the taxation act either local or special. It is drawn in this respect on the same lines as prior mercantile tax acts and as the general revenue acts taxing personal property, and is a general law.</p> <p>It is also contended that section 10 of the act, which provides that the commissions and fees of treasurers and the fees and mileage of appraisers “ shall be and remain as provided in the acts of assembly now in existence,” is repugnant to section 6» article 8 of the constitution, which provides that “no law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only.” We are unable to see any force in this objection. The section does not revive, amend or extend the provisions of any former act. The laws referred to in section 10 are “ existing laws,” and therefore they are not “ revived.” The matters to which they relate are to “ remain the same as now fixed ” by the laws, therefore they are not “ amended.” They all relate to the imposition and collection of a mercantile tax, therefore, their provisions are not “ extended.” The laws referred to simply remain as parts of a general system, all of which not inconsistent with the later acts are not repealed by it: Clearfield County v. Cameron Township Poor District, 135 Pa. 86. If section 10 were unconstitutional, it would simply drop out of the act without materially affecting its operation.</p> <p>It is also argued that sections 4 and 5 of the act, which authorized the auditor general to prepare proper blanks, upon which dealers are required to make return of the amount of their sales and 'authorize him- on refusal to make returns to examine their books and papers in order to ascertain the amount of their sales, are repugnant to the 9th and lOthsections of article 1 of the constitution of Pennsylvania and to the fourth and fifth amendments and the 1st section of the fourteenth amendment of the constitution of the United States. Tins objection seems to be somewhat belated. All the powers conferred by these sections and other powers' — from the point of view of the defendant — still more objectionable have been vested in the auditor general of Pennsylvania at all times since the passage of the act of 1811, relating to the settlement of public accounts: 5 Sm. Laws, 228; 2 Brightly’s Purdon (12th ed.), p. 1743. This act and its several supplements and the successive revenue acts imposing taxes on individuals and corporations have continuously conferred on the auditor general authority to prepare blanks, to be filled up and sworn to by individual taxables and officers of taxable corporations, and hundreds of millions of dollars of taxes have been assessed and collected on such returns; and the act of 1811 authorizes the auditor general to imprison for contempt persons failing to'furnish him the information demanded. See Commonwealth v. Edgerton Coal Co., 164 Pa. 303. We do not therefore feel called upon to enter into a discussion of the constitutionality of these sections.</p> <p>After a full and careful consideration of all the objections to Jb.e constitutionality of the act, and the arguments of the learned counsel in support of the objections, we are not convinced that it is in any of its provisions repugnant to the state or federal constitution. Judgment is therefore directed to be entered in favor of plaintiff against defendant for $18.40.</p> <p>Error assigned in No. 18, May term, 1900, was judgment for plaintiff on case stated.</p> <p>Error assigned in No. 182, January term, 1900, was decree refusing preliminary injunction.</p> <p>The act of assembly taxes the property of the appellant, and is unconstitutional, because it is in violation of section 1, article 9 of the constitution of Pennsylvania : Allentown v. Gross, 132 Pa. 319; Williamsport v. Wenner, 172 Pa. 173.</p> <p>When the legislature never intended to exempt dealers or vendors of goods, wares or merchandise at any exchange or board of trade from taxation, but to tax them, and to tax them as a separate class, any judicial effort to destroy that class and make its members part of another class, to which the legislature did not intend them to belong, and to tax them at a rate that the legislature never sanctioned, is an exercise of legislative and not judicial power, and cannot be sustained: Com. v. Potts, T9 Pa. 164; Philadelphia v. Barber, 160 Pa. 123; Warren v. Charlestown, 2 Gray (Mass.), 84; Kittanning Coal Co. v. Com., 79 Pa. 100; Wheeler v. Philadelphia, 77 Pa. 338.</p> <p>That the exclusion of the merchandise vendors of the city of Philadelphia from the provisions of this statute makes the act in question a local law, is declared in the following decisions: Morrison v. Bachert, 112 Pa. 322; Weinman v. Wilkinsburg, etc., Pass. Ry. Co., 118 Pa. 192; Ayars’s Appeal, 122 Pa. 266; Opening of Ruan Street, 132 Pa. 257; Paving of Wyoming Street, 137 Pa. 494; Pittsburg’s Petition, 138 Pa. 401-435; City of Scranton v. Whyte, 148 Pa. 419; Safe Deposit & Trust Co. v. Fricke, 152 Pa. 233 ; Philadelphia v. Westminster Cemetery Co., 162 Pa. 105; Chalfant v. Edwards, 173 Pa. 246.</p> <p>The act of assembly of May 2, 1899, is unconstitutional because it is in violation of the 7th section of article 3 of the constitution: Morrison v. Bachert, 112 Pa. 321; Wheeler v. Philadelphia, 77 Pa. 338 ; Opening of Ruan Street, 132 Pa. 257; Paving of Wyoming Street, 137 Pa. 494; Morrison v. Bachert, 112 Pa. 322; Weinman v. Wilkinsburg, etc., Pass. Ry. Co., 118 Pa. 192; Ayars’s Appeal, 122 Pa. 266; Pitts-burg’s Petition, 138 Pa. 401-435; City of Scranton v. Whyte, 148 Pa. 419; Safe Deposit & Trust Co. v. Fricke, 152 Pa. 233; Philadelphia v. Westminster Cemetery Co., 162 Pa. 105; Chalfant v. Edwards, 173 Pa. 246.</p> <p>The act provides one system for assessing and collecting mercantile license tax within cities of the first class and another system for the counties composing the rest of the state. This is local legislation: Davis v. Clark, 106 Pa. 377; Paving of Wyoming Street, 137 Pa. 494; Scranton School District’s App., 113 Pa. 176 ; Scranton v. Silkman, 113 Pa. 191; Weinman v. Wilkinsburg, etc., Pass. Ry. Co., 118 Pa. 192; Chalfant v. Edwards, 173 Pa. 246 ; Ayars’s App., 122 Pa. 266.</p> <p>The act is unconstitutional because it discriminates in favor of dealers or vendors at any exchange or board of trade as against dealers or vendors who conduct the same business elsewhere, and in this particular violates article 9, section 1 of the constitution of this commonwealth, and the fourteenth amendment, section 1 of the constitution of the United States: Oil City v. Oil City Trust Co., 151 Pa. 454; Chaddock v. Day, 4 Lawyers’ Rep. Ann. 809; Loftin v. Citizens,’ Nat. Bank, 85 Ind. 346; Williams v. Cammack, 27 Miss. 210; Amer. Union Express Co. v. City of St. Joseph, 66 Mo. 675; Hale v. City of Kenosha, 29 Wis. 599 ; Norris v. City of Waco, 57 Texas, 635; Youngblood v. Sexton, 32 Mich. 406 ; Commissioners of Ottawa Co. v. Nelson, 19 Kan. 234; State v. Rolle, 30 La. Ann. 991; New Orleans v.-Davidson, 30 La. Ann. 555; Weeks v. Milwaukee, 10 Wis. 242; Banger’s App., 109 Pa. 79; Cope’s Est., 191 Pa. 21; Knisely v. Cotterel, 3 Dauphin Co. 120.</p> <p>The provisions of the act, in so far as they authorize the county treasurer to issue subpoenas and attachments to compel the attendance of citizens and the production of private books and papers, are contrary to article 1, section 9 of the constitution of the commonwealth, and to the fourth and fifth amendment to the constitution of the United States : Boyd v. United States, 116 U. S. 616; Horstman v. Kaufman, 97 Pa.- 147; Counselman v. Hitchcock, 142 U. S. 547.</p> <p>The act offends against article 3, section 6 of the constitution: Donohugh v. Roberts, 11 W. N.-C. 186 ; Barrett’s App., 116 Pa. 486; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627; Perkins v. Phila., 156 Pa. 554.</p> <p>The act of May 2, 1899, is not prohibited local legislation: Sugar Notch Borough, 192 Pa. 355; Sharpless v. Phila., 21 Pa. 164; Speer v. School Directors, etc., of Blairstown, 50 Pa. 158; Com. v. Smith, 4 Binney, 123; Penna. R. Co. v. Riblet, 66 Pa. 164" Bartley v. Patton, 19 Phila. 496; Mayer v. McCamant, 20 Phila. Repr. 236; Jadwin- v. Hurley, 10 Pa. Superior Ct. 104; Jermyn v. Scranton, 186 Pa. 601; Com. v. Del. Div. Canal Co., 123 Pa. 594; Durach’s App., 62 Pa. 491; Com. v. Durkin, 109 Pa. 138; Wheeler v. Phila., 77 Pa. 338; Williamsport v. Wenner, 172 Pa. 173 ; Hadtner v. Williamsport, 15 W. N. C. 138; Lloyd v. Smith, 176 Pa. 218 ; Seabolt v. Commissioners of Northumberland County, 187 Pa. 318; Com. v. McCandless, 21 W. N. C. 162 ; Com. v. Sellers, 130 Pa. 32; Bartley v. Patton, 19 Phila. 496.</p> <p>The classification for purposes of taxation in the act of May 2, 1899, is a valid exercise of legislative power: Com. v. Sharon Coal Co., 164 Pa. 304; Fox’s App., 112 Pa. 337; Com. v. Del. Division Canal Co., 123 Pa. 620; Pittsburg v. Coyle, 165 Pa. 61; Com. v. Clark, 10 Pa. Superior Ct. 507 ; Kittanning Coal Co. v. Com., 79 Pa. 104; Roup’s Case, 81* Pa. 211; Durach’s App., 62 Pa. 494; Bell’s Gap R. R. Co. v. Penna., 134 U. S. 237.</p> <p>The act of May 2, 1899, is not invalid by reason of the provision authorizing the county treasurer to issue subpoenas or attachments to compel the production of books and papers: Fox’s App., 112 Pa. 337; Com. v. Del. Div. Canal Co., 123 Pa. 594; Durach’s App., 62 Pa. 491; Bartley v. Patton, 19 Phila. 496; Krug v. Behringer, 6 Pa. Dist. Repr. 770; Page v. Williamsport Suspender Co., 191 Pa. 511.</p> <p>The act is not in contravention of article 3, section 6 of the constitution of this commonwealth, by reason of section 10 of said act providing that certain commissions and fees shall' be and remain as now fixed by existing laws: Searight’s Est., 163 Pa. 210; In re Greenfield Avenue, 191 Pa. 290 ; Pinkerton v. Penna. Traction Co., 193 Pa. 233.</p> <p>If the plaintiff’s contentions were all well founded, they would simply go to certain separate portions of the act and the validity of the remaining sections would not be thereby impaired: Page v. Williamsport Suspender Co., 191 Pa. 512; Fox’s App., 112 Pa. 337; Sanderson on Statutes, 215.</p>

<p>Appeal, No. 44, Jan. T., 1900, by plaintiff, from order of C. P. Luzerne Co., May T., 1899, No. 862, discharging rule for judgment against garnishee, in case of Charles H. Reynolds, Executor, etc., of A. H. Reynolds, deceased, v. Abram Nesbitt, Assignee, etc., Garnishee of Lloyd W. Williams, now deceased, A. Brockenbrough, Ancillary Admr.</p> <p>Rule for judgment against garnishee.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule.</p> <p>This cause was begun, proceeded and ended under the foreign attachment act of June 18, 1886, Purdon’s Digest, 929, et seq. By this act the proceedings, effect and object of the writ and the nature of the proceedings were changed considerably if not entirely from those under the prior acts. Purdon’s Digest, 932, pi. 18, provides that the property attached shall be bound to answer and abide the judgment of the court, unless the person in possession shall give security therefor. Purdon’s Digest, 935, pi. 35, et seq., provides that the defendant may dissolve the attachment by giving recognizance in double the amount with sufficient surety for the payment of the debt; the defendant may appear and defend without dissolving the attachment, so that the lien of the attachment is without limitation, if not dissolved by recognizance. See Neely v. Grantham, 58 Pa. 440, and Price on Liens, p. 307.</p> <p>Writ of foreign attachment served the same day, but before writ of fieri facias has the precedent lien: Jaffray’s Appeal, 101 Pa. 583; Warner’s App., 13 W. N. C. 505. Death of defendant in a fieri facias does not abate the writ or discharge the lien: Fitch v. Ross, 4 S. & R. 563; Act of February 24, 1834, P.. L. 77, secs. 26, 27, 28; Purdon’s Digest, page 594, pi. 124, et seq.</p> <p>All actions, petitions and legal proceedings survive death of parties, except those enumerated in the act (Ulshafer v. Stewart, 71 Pa. 170; McCollough v. Wilson, 21 Pa. 436), so that whether the case at bar be a proceeding in rem or in personam the proceedings were not abated by defendant’s death. Foreign attachment is certainly a legal proceeding.</p> <p>The death of Williams in 1892, dissolved the attachment issued in 1890: Willing v. Bleeker, 2 S. & R. 224; Farmers’ and Mechanics’ Bank v. Little, 8 W. & S. 207; Hays v. Lycoming Fire Ins. Co., 99 Pa. 621; 1 Trickett on Liens, sec. 426; Bushel v. Commonwealth Ins. Co., 15 S. & R. 182.</p>

Appeal, No. 73, January T., 1900, by defendant, from judgment of C. P. Luzerne Co., June T., 1887, No. 226, on verdict for plaintiff in case of Mary Kerrigan, Administratrix of J ames Kerrigan, v. Calvin Pardee, Administrator. Assumpsit for coal mined. Before Halsey, J. The facts appear by the opinion of the Supreme Court. At the trial W. F. Dodge was asked this question : “ Q. You have made measurements of breasts from time to time? A. Yes, sir, I have.