Volume 197 — Pennsylvania State Reports

<p> Municipalities—Dedication of central squares—Change of use. </p> <p>The title to spaces left open by the original plans of towns or by subsequent general dedication for similar purposes is in the commonwealth for the benefit of the whole public, and the uniform course of decision has been that central squares in the laying out of towns were meant as much, perhaps primarily more, for public buildings than to secure space, and, therefore, the commonwealth may authorize their occupation in that manner without altering their original use.</p> <p> Municipalities—Erection of courthouse on central square in Wilkes-Barre. </p> <p>The county commissioners of Luzerne county, when authorized by the proper proceedings of the grand jury and the court, have the right to erect and maintain on the public square in the city of Wilkes-Barre upon the location of the present courthouse, a new and enlarged courthouse of sufficient size to accommodate the business of the county.</p> <p>County buildings—Approval of court—Act of April 19, 1895, P. L. 38.</p> <p>Under the act of April 19, 1895, which requires the county commissioners to “submit the plans and specifications” adopted by them for county buildings to the judges of the court of common pleas for their approval, the court of common pleas must pass not only upon the plans, specifications and contracts, but necessarily upon the size, arrangement, cost, location and other details of the buildings. The court must approve of the plan with reference to the location, and if it fails or refuses to do so, the county commissioners have not complete authority to proceed with the building, and they may be enjoined from doing so at the suit of a taxpayer.</p>

Appeal, No. 385, Jan. T., 1898, by-plaintiff, from judgment of C. P. Clearfield Co., Dec. T., 1896, No. 279, on trial by court without a… Held: on assigning said stock to the association and giving additional satisfactory security by bond and mortgage on real estate, for which loan he is required to pay forty cents each month per share ($12.00 on thirty shares) interest; and twenty-five cents each month per share ($7.50 on thirty shares) premium, during the continuance of…

<p>Appeal, No. 237, Jan. T., 1898, by plaintiffs, from decree of 0. P. Cumberland Co., May T., 1893, No. 1, on bill in equity, in case of Cumberland Valley Railroad Company and the Pennsylvania Railroad Company v. Gettysburg & Harrisburg Railway Company, the Philadelphia & Reading Railroad Company, the Hunter’s Run and Slate Belt Railroad Company and Edward M. Paxson, Elisha P. Wilbur and Joseph S. Harris, receivers of the Philadelphia and Reading Railroad Company.</p> <p>Additions to original bill in equity.</p> <p>The additions were in substance as follows :</p> <p>I.</p> <p>1. Refers to the agreement of September 30,1882, and states that under it, from 1884 to July 1, 1891, the parties to it apportioned the earnings from joint business on a mileage basis of twenty-mile blocks.</p> <p>2. Shortly before July 1, 1891, the third and fourth parties to the agreement were merged into the Gettysburg & Harrisburg Railway Company, and that the operating officers of the Philadelphia & Reading Railroad, which had assumed control of the Gettysburg & Harrisburg Railway Company, imposed as to the Cumberland Valley Railroad Company, a division on the basis of fifty-mi Ip. blocks, and as to the Pennsylvania Railroad exacted certain arbitraries thereon set forth.</p> <p>3. That the plaintiffs, in order to do business with the Gettysburg & Harrisburg Railway Company, had to submit to said basis of division and said arbitraries. They do not complain of the fifty-mile block basis so long as more favorable terms are not given to any other party, but assert that the arbitraries exacted are unjust and injurious to both the plaintiffs.</p> <p>4. That the original bill complained of the rates of division exacted but the Supreme Court ruled that plaintiffs were premature in appealing upon that branch of the case and should await the daily operations of the roads and that such daily operation of the roads now show that the division exacted is unjust to the plaintiffs and inequitable under the contract.</p> <p>5. Refers to cknise in the agreement that all traffic tendered is to be received and promptly forwarded by the defendants upon terms as favorable as those given to any other railroad. Avers that the fifty-mile block basis given to the Cumberland Valley and other railroads is more favorable than the arbitraries demanded from the Pennsylvania and which have been insisted upon from July 1, 1891 to the filing of this addition to the oi'iginal bill and are now insisted upon.</p> <p>6. That since the decree for the specific performance of the contract of September 80, 1882, was affirmed, the Gettysburg & Harrisburg Railway Company has been asked to abolish the arbitraries and to adopt a mileage basis for division of earnings but the request has been refused and the arbitraries have been and are now insisted upon. Avers that before July 1, 1891, a large volume of business was exchanged and that since then and now, by reason of the arbitraries exacted, the business could not be competed for. That the arbitraries gave to the Gettysburg & Harrisburg Railway more than its just share under the contract and in consequence thereof less business was exchanged from and after July 1, 1891, and now, than before and the Cumberland Valley Railroad Company lost the traffic it was entitled to on its line between Harrisburg and Gettysburg junction and the profits therefrom that it was entitled to under the contract.</p> <p>7. That since July 1,1891, the earnings should have been apportioned between the plaintiff's and the Gettysburg & Harrisburg Railway on a mileage basis of fifty-mile blocks and such should be the apportionment unless more favorable terms be given to some other party.</p> <p>II.</p> <p>1. Charges that the Gettysburg & Harrisburg Railway Company, since July 1, 1891, has refused to send to destinations all traffic controlled by it, and which it could lawfully send by the lines of the plaintiffs, and that by reason of this breach the plaintiffs have suffered a great loss, and they aver that under the contract there was a fair profit on the traffic exchanged.</p> <p>2. Charges that from the opening of the Gettysburg & Harrisburg Railway to July 1, 1891, close connections were made with passenger trains at Gettysburg junction, and a large passenger traffic was exchanged and large profits made therefrom. This close connection was broken on July 1, 1891, by the Gettysburg & Harrisburg Railway Company, and continued against the protest of the plaintiffs to the filing of the bill, March 4, 1898, thence to the decree in the court below on November 7, 1895, and thence to December 1, 1896, when they were restored. From July 1, 1891, to December 1, 1896, it charged local rates for each passenger by plaintiffs’ lines, although such rates were not charged on passengers from the Philadelphia & Reading Railroad lines, which had through rates and a division of earnings on a mileage basis, when by the agreement passenger and freight earnings should have been apportioned with the plaintiffs on a mileage basis. By reason thereof the passenger business of the plaintiffs with the Gettysburg & Harrisburg Railway Company was greatly lessened, and passenger excursions broken up, and the plaintiffs sustained great loss.</p> <p>3. The refusal of the Gettysburg and Harrisburg Railway Company to apportion earnings from joint business with the plaintiffs on a mileage basis, and the exaction of arbitraries, was and is a violation of the agreement, and injurious to plaintiffs, and the plaintiffs have sustained loss therefrom by reason of the exchange of less business and at a less profit than they otherwise would have had.</p> <p>The prayers were:</p> <p>1. For an apportionment on a fifty-mile block basis unless and until more favorable terms be given to some other party.</p> <p>2. For payment of damages sustained, and for an accounting to ascertain the amount thereof.</p> <p>. 3. For general relief.</p> <p>An answer was filed, and the court, by Biddle, P. J., filed the following opinion:</p> <p>Sur motion of plaintiffs for leave to file additions (by way of supplement) to the bill.</p> <p>The bill in this case was filed on March 4, 1893, and it specifically charged, among other things, that ever since the Philadelphia & Reading Railroad Company obtained control of the Gettysburg & Harrisburg Railway Company, in May, 1891, the last named company had continuously violated the agreement of September 30, 1882, in the following respects :</p> <p>“ 3. It has failed and refused to apportion the earnings of the plaintiffs and the first named defendant from joint business exchanged with that part of the consolidated road, which constituted, before the merger, the Gettysburg & Harrisburg Railroad, to and between the parties on a mileage basis, although a mileage basis had been agreed on between the parties to said agreement, in conformity with its provisions, and continued to be used until the change of control, hereinbefore mentioned.”</p> <p>“ 5. It has failed and refused to apportion to and between the Pennsylvania Railroad Company, the Cumberland Valley Railroad Company and the Gettysburg & Harrisburg Railway Company, on a mileage basis, the earnings from joint business in coal and other freight from and to the Pennsylvania Railroad, and lines controlled by it, passing over the Cumberland Valley Railroad to and from points on the line of the Gettysburg & Harrisburg Railway Company, but has charged specific rates to and from Carlisle on such freight, although the said defendant, the Gettysburg & Harrisburg Railroad Company, has so prorated the earnings from joint business in coal and other freight exchanged with the Philadelphia & Reading Railroad Company and the Philadelphia, Harrisburg & Pittsburg Railroad Company.”</p> <p>These allegations were positively denied in the answer and an issue of fact was thus made up. A large amount of testimony having been taken, the court embodied its conclusions on the subject in the following language under the caption, “ Mileage Basis:”</p> <p>“We are asked by the plaintiffs to decree that the Gettysburg & Harrisburg Railway Company shall apportion upon a mileage basis the earnings arising from joint business exchanged by it with the lines of plaintiffs, and to adjudge the twenty-mile block system to be a proper basis for apportionment. Upon the subject of the division of earnings, the only provision in agreement is that ‘ the earnings from joint business exchanged with the Gettsyburg & Harrisburg Railroad shall be apportioned to and between the parties hereto on such a mileage basis as shall be agreed upon between the parties hereto.’ ”</p> <p>It will be noticed that this applies only to business exchanged with the party of the fourth part and not to business interchanged among the other three parties, and that it does not fix a definite mileage basis. Prior to July 1, 1891, the earnings arising from joint business were divided on a twenty-mile block basis. The testimony in the case is to the effect that this division was inequitable to the Gettysburg & Harrisburg Railway Company and that the said company could not continue to exist under such an arrangement. On June 4, 1891, at a meeting between the representative freight agents of the Cumberland Valley Railroad Company and the Philadelphia & Reading Railroad Company, a memorandum was made of a proposed division of the earnings from freight traffic exchanged between the former company and the Gettysburg & Harrisburg Railway Company, on a fifty-mile block basis, which proposed division was subsequently declared by the general freight agent of the former company to be satisfactory, and it only went into effect on July 1, 1891. The same through rates were continued in force as previously, the only change being in the method of apportionment between the two companies. An arrangement by which “ arbitrarles ” were charged on business exchanged between the line of the Gettysburg & Harrisburg Railway Company and the line of the Pennsylvania Railroad Company also went into effect on the same date. These arbitrarles which were ostensibly “ figured on a basis of fifty miles for all points on the Gettysburg & Harrisburg Railway,” in reality constituted charges on the basis of blocks of 100 miles, and they were intended to give the average charges upon that block system. The division between the Gettysburg & Harrisburg Railway Company and the Philadelphia & Reading Railroad Company was mpon the same mileage block basis. Special arbitrarles for anthracite coal, etc., were also fixed. The above mentioned rates have continued in force ever since. On December 13, 1891, Thomas B. Kennedy, president of the Cumberland Valley Railroad Company, wrote to A. A. McLeod, president of the Gettysburg & Harrisburg Railroad Company, complaining of various alleged infractions by the latter company of the provisions of the agreement of September 30, 1882. Their correspondence on the subject appeal's in evidence. After a careful consideration of all the facts in the case, we are satisfied that the court would not be justified in adjudging the twenty-mile block system to be a proper basis for apportionment of joint earnings, and further, that there is not anything in the bill taken in connection with the evidence which would warrant a decree of any kind in relation to a mileage basis.</p> <p>The decree entered in the case was affirmed by the Supreme Court after a consideration of numerous exceptions filed, yet in face of the above it is now sought to take up the subject anew, and a second time go over the ground covered by the original investigation. There are two proposed additions to the bill, and two corresponding prayers. The first addition and prayer relate to the apportionment of joint earnings between the plaintiffs and the Gettysburg & Harrisburg Railway Company on the basis of fifty-mile blocks, thereby doing away with “ arbitrarles,” whilst the second are for the purpose of obtaining a decree against said railway company for damages arising from various alleged violations of the agreement of September 30, 1882. Much of the matter which composes the first addition arose before the bill was filed, and is covered by the pleadings, evidence and decree. The declared and only purpose of this addition being to reopen the hearing as to “ arbitrarles” and the mileage basis, it cannot be allowed, for the reason that the original bill was proceeded with to final decree, and it was then determined that the “ arbitraries” complained of are not violative of the agreement of September 30, 1882.</p> <p>Neither is the second addition allowable, which is for the recovery of damages, because the bill did not contain either a complaint or prayer in relation to damages, and the insertion of such matter now, after final hearing and decree, would be without warrant in equity practice.</p> <p>It will be noticed that in neither of the proposed additions is there an averment of mistake or imperfection in the bill, or of any accidental omission therefrom, or that the material issues were not clearly defined throughout the litigation.</p> <p>And now, May 3, 1896, the motion for leave to file additions (by way of supplement) to the bill is refused.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 358, Jan. T., 1899, by plaintiff, from judgment of C. P. Erie Co., Feb. T., 1899, No. 114, on case stated in the case of Addyston Pipe and Steel Co. v. City of Corry.</p> <p>Case stated to determine liability of the city of Corry to pay the balance due on a contract for building a sewer.</p> <p>The case stated was as follows:</p> <p>1. That on September 13, 1891, the said city of Corry entered into a contract with William J. Dunn for the construction of a main public sewer in the said city.</p> <p>2. That in pursuance with said contract, the said William J. Dunn did construct the sewer as therein provided, which said sewer was finally completed and put into general public use in said city during the year 1895.</p> <p>3. That the said contract was entered into in pursuance with an ordinance of said city.</p> <p>4. That the total contract price of said sewer amounts to $57,696.02, that being the amount actually called for to be paid by the said city by the terms of the said contract.</p> <p>5. That on September 30, 1891, the date of the contract aforesaid, the total assessed valuation of the said city of Corry was $1,359,096, the total indebtedness of the said city at that time being $122,300, and being in excess of the constitutional limitation; but, that at the present time, the time of bringing' this suit, and since April, 1898, the valuation -of said city is $1,685,077, and the total indebtedness is $98,000 being within the constitutional limit, and if judgment is entered for plaintiff in this case for claim, it will be within said limit.</p> <p>6. The people of said city never at any time, or in any manner, by vote or otherwise, consented that the indebtedness of said city be increased.</p> <p>7. That to provide for the payment of the said sum of $57,696.02, required by the contract aforesaid, the council of the said city caused to be presented to the court of common pleas of Erie county, a petition asking for the appointment of viewers to assess the cost of said sewer upon the property benefited, under and in accordance with the provisions of the act of assembly approved May 16, 1891, P. L. 75.</p> <p>8. That in accordance with said petition viewers were appointed who assessed upon property in the said city the sum of $51,358.41, and upon the municipality a sufficient sum to equal in the aggregate the estimated cost of the improvement. That of said assessment, the sum of $30,000, or about that sum, was assessed upon property abutting upon the line of said improvement, and the sum of $22,000, or about that sum, was assessed upon property not abutting on the line of said improvement.</p> <p>9. After the confirmation of the report of the viewers by the court aforesaid, the said city appropriated for main sewer purposes the sum total of the said assessments against all the property aforesaid, together with such sum from the general revenues of the said city as would equal in appropriation the contract price of the said sewer.</p> <p>10. No separate, special or specific tax was ever levied by the said city for the amount it so appropriated from the general revenues.</p> <p>11. Within six months from the final confirmation of the viewers’ report, the city of Corry entered liens for all assessments remaining unpaid against abutting and nonabutting property.</p> <p>12. That from time to time the said city issued city orders, or warrants, payable out of the main sewer fund appropriated as aforesaid, and payable to William J. Dunn, for the amount due him upon his said contract for the construction of the said sewer.</p> <p>13. Among the orders or city warrants so issued, there were those numbered as follows: Nos. 2230, 2458, 2459, 2460, 3141, 3142, 3143, 3144, 3145, 3146, 3147, 3148, aggregating the sum of $6,000, which warrants were presented for payment on or about the date of their respective issue, and payment refused for lack of funds.</p> <p>14. That in the course of business, and for a valuable consideration, the said orders or warrants were thereafter transferred by said Dunn to the Addyston Pipe Company, plaintiff in this case, which company is the legal owner of the same, and have been for some time.</p> <p>15. That at the time said warrants were issued, there was not in the treasury to the credit of the said main sewer fund, an amount sufficient for their payment, but since that time a much larger sum has been received and paid out on account thereof, and since the bringing of this suit like warrants have been paid out of said main sewer fund without suit brought.</p> <p>16. That after the receipt of said orders said plaintiff presented them to the treasurer of the city of Corry for payment, at which time of presentation there was not sufficient money in the said main sewer fund for their payment. Payment was therefore refused, and the said orders or warrants now in the hands of the said Addyston Pipe Company remain yet unpaid, having never been presented but once.</p> <p>17. That there has been placed in the main sewer fund and applied to the payment of main sewer orders from the general revenues of said city, all sums so appropriated.</p> <p>18. That there has been collected by the said city of Corry from the said sewer assessments about the sum of $45,538, which sum has been applied to the payment of main sewer orders or warrants, given to the said William J. Dunn, none of which payments, however, have been made or applied to the said warrants or orders now held by the Addyston Pipe and Steel Company.</p> <p>19. That upon July 18, 1895, the Supreme Court of Pennsylvania, in the case of Park Avenue Sewer, 169 Pa. 433, decided that assessments levied against property not abutting upon the line of improvement for the cost of which the assessments were made, were illegal. Following such decision the said city of Corry entered into a test case in the nature of a case stated between the said city of Corry, plaintiff, and a piece of land assessed for the cost of said city main sewer, and not abutting upon the line thereof,—Mrs. C. P. Rogers, owner or reputed owner,—for the purpose of determining the right of the city'to collect all assessments for the cost of constructing said sewer levied against nonabutting property and remaining unpaid, in pursuance of an agreement between the city and council for all nonabutting property owners. That said case was argued before Henderson, J., specially presiding, who rendered a decision striking off the lien and holding all assessments levied for the cost of said sewer against nonabutting property void and uncollectible. That thereafter, the said city presented its petition to this court, setting forth the facts recited in the last paragraph, and praying for the appointment of viewers to reassess the uncollected and uncollectible assessments theretofore levied against nonabutting property, said petition being presented in pursuance with the act of June 4, 1897, which petition was dismissed from this court for the reason that no power existed to in any way charge property nonabutting on said sewer with the cost thereof. All of which more fully appears in the record of the said case which is hereby referred to and made a part thereof.</p> <p>20. After the decisions aforesaid no further assessments levied off the line of the said main sewer were paid, nor did the city make further effort to collect the same, and the liens entered therefor have expired prior to the bringing of this suit, and after the decisions aforesaid.</p> <p>21. All of the assessments levied against abutting property by the said city have been collected and applied as aforesaid.</p> <p>22. There remain unpaid assessments amounting to about $6,000, all of which were levied against nonabutting property.</p> <p>23. There are not now, nor will there be hereafter, any funds in the treasury of the said city to the credit of the main sewer fund and there does not now remain, and there will not hereafter be received by the said city any money from any of the main sewer assessments.</p> <p>24. That after the issuing of said orders by the city, transfer of same to plaintiff and demand made for payment, a large amount of money, viz: more than $10,000, was paid into the city treasury on account of said sewer assessments, and has been paid out to sundry holders, not prorating, but in full, some of which were so paid out since the bringing of this suit, to holders, they not having entered suit.</p> <p>25. The only ordinance or resolution relating to the payment of interest on said orders are attached hereto, made part hereof and marked exhibit “D.”</p> <p>26. The Addyston Pipe and Steel Company, plaintiff in this case, has brought this suit upon the city orders, claiming that the city is liable for their pajunent.</p> <p>27. That on April 1, 1895, a committee of the council, to wit: Cogswell, Edwards and Porter, to whom had been referred the matter of the settlement with Wm. J. Dunn, presented to the council of the city of Corry a report or settlement with the said Dunn, which was signed by the said committee, II. N. Seaver, mayor, and C. B. Porter, city clerk, who was also upon the said committee, and also signed by said Wm. J. Dunn.</p> <p>That thereupon, the said report or settlement having been presented to the council, a quorum of which was present, the, same was adopted, as follows: Mr. Thomas moved “ that the report of the committee be adopted.” On roll call all members voted in the affirmative excepting Hammond and Love.</p> <p>That all orders above set forth except the first four, came in the category of the said report, settlement and adoption.</p> <p>28. That on December 6,1892, the city solicitor of the city of Corry presented a report and recommendation to the council of said city, which was unanimously adopted by.the said council.</p> <p>If the court shall be of opinion that, upon the facts herein stated, and the law as applicable thereto, the plaintiff is entitled to recover the amount of said orders, judgment shall be entered against the said city for the sum of $6,000; if he be of the opinion that the plaintiff is entitled to interest in said orders, there shall be added to said amount interest from the date of the respective orders. But, if he be of the opinion that plaintiff is not entitled to recover, then judgment shall be entered in favor of defendant, costs of suit to follow judgment. Both parties hereto expressly reserve the right to appeal from the decision of the said court.</p> <p>The court entered judgment for defendant on case stated.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p>

<p>Appeal, No 359, Jan. T., 1900, by defendants, from order of C. P. Cumberland Co., making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of Patrick Russ v. W. F. Sadler, W. A. Coffey, H. G. Beetem, J. L. Kaufman and J. B. Kaufman.</p> <p>Assumpsit by an accommodation indorser of a promissory note against prior indorsers. Before Biddle, P. J.</p> <p>The note was as follows :</p> <p>“$5,000. Carlisle, Pa., Jan. 24, 1898.</p> <p>“ Thirty days after date I promise to pay to the order of W. F. Sadler, W. A. Coffey, H. G. Beetem, J. L. Kaufman, J. B. Kaufman, at the Commonwealth Guarantee, Trust and Safe Deposit Co., Harrisburg, Pa., $5,000, for value received, without defalcation.</p> <p>“ As collateral security for the payment of this note, and of any other indebtedness or liability on my part to the holder hereof, now incurred or hereafter so to be incurred, while such collaterals remain in their hands, I have deposited herewith $12,500, of bonds of the Greensburg & Mt. Pleasant St. Railway Co., Nos. 1 to 5 inclu. & Nos. 101-115 inclu. which I authorize the holder hereof or his assigns, upon the non-payment at maturity either of this note or of the indebtedness or liability aforesaid, to sell either at the Broker’s Board or at public or private sale, without any previous demand on or notice to me and to apply the net proceeds, after deducting costs of sale, or so much thereof as may be required, to the payment of this note, and any such indebtedness or liability’- as aforesaid, or either of them, at his option, in full or partially, as such proceeds may suffice, holding me still responsible for any deficiency. And at any such sales aforesaid the holder thereof pledgee is expressly empowered to become the purchaser provided he shall be the highest bidder therefor, and all equities, rights and interests of the pledgor or pledgors in said collateral securities shall be divested thereby as fully as if such sales had been made to a bona fide purchaser other than a party hereto. Authority to sell the collaterals specified in this obligation applies with equal force to any which may be added thereto or substituted therefor. Furthermore, I agree, that so often as the market price of these and subsequently deposited securities shall, before maturity of this note fall to a price insufficient to cover its amount, with ten per cent margin added thereto, I will on demand, within twenty-four hours thereafter, deposit with the holder additional security to be approved by said holder, sufficient to cover said amount and margin; and that, in default thereof, this note shall become instantly due and payable precisely as though it had actually matured, and all the foregoing rights to sell and transfer collaterals shall at once be exercisable at my risk in case of any deficiency in realizing proceeds. Due Feb. 23.</p> <p>“W. F. Sadler.</p> <p>“ Endorsed:</p> <p>“ W. F. Sadler.</p> <p>“ Wm. A. Coffey.</p> <p>“ H. G. Beetem.</p> <p>“ J. L. Kaufman.</p> <p>“John B. Kaufman.</p> <p>“ Patrick Russ.</p> <p>“ Pay any Bank, Banker, Trust Co. or order. Endorsements guaranteed.</p> <p>“W. Stuart, Cashier.</p> <p>“ Farmers’ Bank, Carlisle, Pa.</p> <p>“ The within note paid by and for the use of Patrick Russ, Apr. 24th, 1899.</p> <p>“W. Stuart, Cash.,</p> <p>“ Farmers’ Bank, Carlisle.”</p> <p>The affidavit of defense was as follows:</p> <p>That the money borrowed on the note in suit, and for which the said note was given for the use of the Greensburg, Jeannette and Pittsburg Street Railway Company, and applied to the construction and equipment of the said street railway, is an indebtedness of the same, which fact was well known to the plaintiff at the time he became an indorser with the affiants on the said note.</p> <p>That the said plaintiff was a director and officer of the said street railway company at the time said note was made. That at that time and previous thereto, he was the member of a syndicate composed of a number of gentlemen, who had united in the promotion and building of said street railway. That the said plaintiff has received from the said street railway #10,000 of its first mortgage bonds of the par value of #10,000 and 300 shares of its capital stock of the par value of #15,000. That he has only paid on the same the sum of #5,000 and that the affiants are advised, affirm and believe that he is a debtor to the said street railway company to a sum much larger than the amount of said note, at least the sum of #10,000.</p> <p>That they are advised and believe that as the indebtedness created by said note was the indebtedness of the said street railway company, was borrowed for the purpose of promoting its interest and paying its obligations, and this being well known to the plaintiff, who joined with the defendants in this case in raising the money for that purpose, and the said plaintiff further being indebted to the said street railway company in a sum greater than said note, that he is not entitled to recover anything from the defendants in this case.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Practice, O. P.— Parties to action—Suit by joint obligor.</p> <p>A suit by a joint obligor against his eo-obligors on the original obligation for its full amount is irregular. His right is to contribution only and must be sustained by proof that he has paid more than his due share of the joint obligation.</p> <p> Affidavit of defense—Entry of judgment. </p> <p>Where an affidavit of defense makes out a clear prima facie defense, the court on a rule for judgment for want of a sufficient affidavit of defense has no authority to go into the whole matter in detail, and arrive at a conclusion as to a balance due to plaintiff, and enter judgment for an amount not claimed by the plaintiff on the record nor admitted by defendant to be due. This is not the province of a judgment for want of a sufficient affidavit of defense, which must accept the averments of the affidavit as verity. If it is to be overcome, it should be by facts judicially ascertained in the regular wajr.</p>

Appeal, No. 8, Jan. T., 1900, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1898, No. 18, on verdict for plaintiff, in case of S. W. Cummins v. German American Insurance Company of New York. Assumpsit on a policy of fire insurance. Before Bailey, P. J. The facts appear by tbe opinion of the Supreme Court.

Appeal, No. 127, Jan. T., 1900, by defendant, from judgment of C. P. Warren Co., Dec. T., 1898, No. 6, on verdict for plaintiff in case of American Brewing Company v. Melissa Reinsburrow. Scire facias sur mortgage. Before Lindsay, P. J. The facts sufficiently appear by the opinion of the Supreme Court. Error assigned was in refusing defendant’s offer, as stated in the opinion of the Supreme Court.

Appeal, No. 56, Oct. T., 1900, by defendant, from judgment of O. & T. Somerset Co., Dee. T., 1899, No. 8, on verdict of guilty of murder in the first degree, in case of Commonwealth v. Milton Sheets. Indictment for murder. Before Longenecker, P. J. At the trial the undisputed testimony showed that Augustus Glessner was at Berlin on the evening of the 21st of last October, on the way to his home.

<p>Appeal, No. 436, Jan. T., 1900, by plaintiff, from decree of C. P. Union Co., Jan. T., 1900, No. 2, on bill in equity, in case of David Bly v. White Deer Mountain Water Company, White Deer Creek Water Supply Company and James I. Higbee, trading as Higbee Construction Company.</p> <p>Bill in equity for an injunction.</p> <p>Motion for preliminary injunction.</p> <p>Love, P. J., filed the following opinion:</p> <p>This is a bill filed by the plaintiff above named asking for an injunction to restrain the defendants from appropriating a portion of the waters of White Deer creek, for a water supply for the purposes of said water companies. Upon the presentation of the bill a preliminary injunction was granted, and the cause came on for hearing on motion to continue said injunction. The bill alleges that the plaintiff, David Bly, is the owner of a gristmill located on White Deer creek, in Union county; that the mill has been located there for about seventy-five years. With the mill he owns some twelve acres of land, including a dam and water power furnished by said creek. The present dam was constructed and the capacity of the gristmill enlarged about eighteen years ago. The plaintiff is a lower riparian owner and is entitled to the flow of water in White Deer creek for the purposes of his mill, practically unlimited, except for domestic use by upper riparian owners, unless the defendant companies have the right to appropriate a portion of the stream under their charters.</p> <p>The water power furnished by said creek is ample to run the plaintiff’s mill about eight or nine months during the year; the other three or four months the water power is supplemented by the use of steam power.</p> <p>The White Deer Mountain Water Company was chartered September 27, 1899, under the act of April 29, 1874, and its supplements, for the purpose of supplying water to the public in the township of White Deer, Union county, Pennsylvania, and to such persons, partnerships and associations, residing in or adjacent thereto, as may desire the same.</p> <p>The White Deer Creek Water Supply Company was duly chartered, under the provisions of the same act of assembly and its supplements, August 11, 1897, “ for the purpose of the storage, transmission, transportation and supply of water for commercial, manufacturing and other purposes in Kelly township, Union county, Pennsylvania.”</p> <p>The said defendants have entered upon the land of the plaintiff and are constructing a dam on White Deer creek about four or five miles above the plaintiff’s property, for the purpose of taking water from said stream at that point for the purposes set forth in their respective charters. By petition to the court they have limited the amount of water they propose to take to two millions of gallons per day. They have purchased their mains and are digging trenches in which to lay them. The main pipe at the reservoir is sixteen inches in diameter. The defendant water companies contemplate furnishing a supply of water to the public in the borough of Lewisburg, to the borough of Watsontown and the borough of Milton. The borough of Lewisburg is in Union county, and is adjacent to Kelly township in said county and was originally a part of said township. The boroughs of Watsontown and Milton are in Northumberland county. The line between Northumberland and Union counties is the west bank of the Susquehanna river. Watson-town gets its present supply of water from said White Deer creek taken from a point below the plaintiff’s mill. Lewisburg gets its present supply of water from the Susquehanna river. The defendant companies endeavored to agree with the plaintiff, before proceeding to build their dam to take a portion of the water of White Deer creek and entering upon his lands, for the damages he may sustain. But no agreement was effected. They tendered him a bond in the sum of 85,500, which he declined to accept. The plaintiff then filed his bill and obtained a preliminary injunction restraining the defendants from proceeding with the laying of their pipes and appropriating a portion of the water of said stream, and thereby injuring his water power and mill property. The defendants filed the bond in court and presented a petition, limiting the amount of water they proposed to take to two millions of gallons per day, and obtained a rule upon plaintiff to show cause why he should not accept the bond. Whether the notice prescribed by the act of assembly in such case made and provided was given the plaintiff of the presentation of the bond for approval by the court and filing the same therein did not appear at the hearing. That the taking of the water proposed by said defendants from said creek will materially impair the plaintiff’s water power is quite clear from the facts as they appeared. The foregoing are the material facts as they appear from the bill and answer and the evidence taken upon the hearing.</p> <p>The important question raised by the pleadings and evidence, and contended for by the plainti ff, is that as it appears that the defendants propose to use the water taken by them to supply the public in Lewisburg, Watsontown and Milton with water, said boroughs, being outside of the townships of White Deer and Kelly, they have no right or authority under their charter to do so, and therefore have'no right to condemn said White Deer creek and take the waters therefrom for such purpose to the injury of the plaintiff, and therefore should be perpetually enjoined. The question raised involves'the question as to what are the manifest restrictions of the charter rights of the defendants as to the supplying of the public with water’. If the charter rights of the company are so clearly restricted as to prohibit their exercising the right of eminent domain conferred by the charter, then the plaintiff may perhaps have some right to contest the act of the defendants, under the provisions of the Act of June 19, 1871, P. L. 1360. If not so limited by the charter, then the plaintiff has no standing in this proceeding to contest the charter rights of the defendants. The Supreme Court, in the case of Western Pennsylvania Railroad Co.’s Appeal, 104 Pa. 399, in discussing the act of June 19, 1871, as to the right of a private party to inquire into or investigate the charter rights of a company, says: “The act of 1871 contemplates nothing more than it shall be made to appear from the charter that the corporation has the power to do the particular act in eontroversj', and which involves some right of the contestant. But when we get beyond this we assume something with which we have no business in a collateral proceeding; we assume to assert the rights of a third party, the commonwealth, who may or may not, at her own option, insist upon the observance of those rights.”</p> <p>Measured by the rule laid down in that case, do the charters of the defendant companies show that they have the power thereunder to do the particular act complained of, which involves some right of the plaintiff in this case ? If they do, then the plaintiff has no standing in this proceeding to warrant a continuance of the injunction.</p> <p>Under the provisions of the general incorporation act of April 29,1874, paragraph eleven of section 2, as amended by the act of Majr 16,1889, companies may be chartered for the purpose of “ supplying of water to the public or the supply, storage or transportation of water and water power for commercial and manufacturing purposes.”</p> <p>The 34th section of the act of April 29, 1874, defines the powers of companies incorporated under the provisions of the act to supply water to the public, or for the manufacture and supply of gas, or supply of light and heat, and provides for “ supply to the district where located, and such persons, partnerships and corporations residing therein, or adjacent thereto, as may desire the same.” This section also conferred upon water and gas companies exclusive privileges in the district embraced within the charter.</p> <p>Clause three of section 34 of the act of April 29,1874, conferring exclusive privileges, was repealed by the Act of June 2, 1887, P. L. 310, as to water companies. By a supplement passed July 2, 1895, P. L. 432, it is provided as follows: “Corporations heretofore incorporated under the act of assembly entitled ‘An act to provide for the incorporation and regulation of certain corporations,’ approved April 29, 1874, and the supplements thereto, for the supply, storage or transportation of water, and water power for commercial and manufacturing purposes, be and the same are hereby authorized and empowered to determine the character, design and construction of the works, and the use to be made of the water, and power of such companies, in order that the same may be supplied to the public to the best advantage.”</p> <p>It will readily appear that under the provisions of this act the water company is invested with the power to determine the use to be made of the water, in order that the same may be supplied to the public to the best advantage. It is not to the public of the particular district named in the charter. It is a pretty extensive power of discretion or judgment invested in the companies.</p> <p>Could it be held that where a company was chartered for a borough, and had put in its plant, and the boundaries of the borough were afterwards materially enlarged, that the company to supply the additional territory taken into the borough limits would be obliged to have its charter amended in order to supply the additional territory so taken into the borough ? We think that it could not be so held under the powers conferred by the act of April 29, 1874, and its supplements.</p> <p>It is conceded that the charters of the defendant companies empower them, under the right of eminent domain, to appropriate. as much of the waters of White Deer creek as may be necessary for their purposes in the townships of White Deer and Kelly, in Union county.</p> <p>It is in the exercise of this right that the particular act in controversy is being done, that involves the right of the plaintiff complained of. Then what right in these proceedings has the plaintiff to complain that the companies in their judgment may use the water to supply the public elsewhere in adjacent districts, in addition to the public in White Deer and Kelly townships? Were the plaintiff a resident of Lewisburg or Watsontown, and the defendants had entered upon his premises to lay pipe or construct their works, he would no doubt be in a better position to raise the question he now seeks to raise, under the provisions of the act of June 19, 1871. Then whether or not the defendants had the power under their charters to do the particular act that would involve some right of his might be perhaps properly raised in a proceeding of this kind under the provisions of the act of 1871. But we are of the opinion he has no standing to raise the question in this case, and that the provisions of the act of 1871 do not apply. He has a statutory remedy to secure adequate compensation for any injury done to his property by reason of the impairment of his waterpower and mill as used by him, and for any servitude imposed upon his property by the defendants. For the foregoing reasons we are of the opinion the injunction should be dissolved.</p> <p>Although it did not appear that any exceptions were filed to the bond filed by the defendants, only that it was not sufficient in amount, we, under all the evidence, think the defendants should file an additional bond, properly conditioned, in the sum of |2,000, making the sum total of the bond or security filed $7,500, the same to be approved by the court, the plaintiff to have notice of the filing of the same.</p> <p>DECREE.</p> <p>This cause came on to be heard on motion to continue the preliminary injunction at this term and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed, that the defendants file an additional bond in the sum of $2,000, properly conditioned as above indicated, and upon the filing of the same and its approval by the court, the injunction heretofore granted is dissolved and the bill dismissed, the record costs to be paid by the parties, each one half, and each party to pay their own witnesses.</p> <p>Error assigned was decree of the court.</p>

Appeal, No. 341, Jan. T., 1899, by defendants, from order of C. P. Lancaster Co., Jan. T., 1899, No. 24, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of John B. Garman, Administrator d. b. n. c. t. a. of Jonas Good, Jr., deceased, v. Anna B. Glass and Henry W. Glass. Assumpsit to recover charge on land. Rule for judgment for want of a sufficient affidavit of defense.

<p> Insurance—Fire insurance—Covenant to produce books and papers. </p> <p>In an action upon a policy of fire insurance, plaintiff is not entitled to recover where the policy contains a covenant that the insured shall produce to the company when required books, bills, vouchers and other papers, and it appears that the insured made no attempt to comply with the repeated and continued demands of the company for books and papers, until after suit was begun, and then not in accordance with the demand.</p>

<p>Bridges—Rebuilding of bridges—Oounty bridges—Act of May 6, 1897, P. L. 46.</p> <p>A slight variation in the site of a bridge will not make the site a new one, within the meaning of the act of May 6, 1897, relating to the rebuilding of bridges. If in the line of the same highway or accommodating the same public travel in substantially the same place, a new bridge may be on the same site within the meaning of the act, though the piers or the approaches are different, and the bridge at a different angle with the stream.</p> <p>Under the act of May 6, 1897, relating to the rebuilding of bridges, the county commissioners have a discretion as to the rebuilding of a bridge, but such discretion is reviewable by the court on the petition of ten citizens, who have no further voice in the matter than to invoke the review, and the action of the court is final.</p> <p>Keiserv. Comrs., 156 Pa. 315, commented on and explained.</p>

<p>Appeal, No. 168, Jan. T., 1900, by defendants, from judgment of C. P. Lancaster Co., Aug. T., 1899, No, 68, on verdict for plaintiff in case of Jacob Farmer, to use of Samuel B. Nissley, to use of Jacob Rohrer, guardian, now to use of A. G. Hamaker, v. Susanna Fisher and her husband, John K. Fisher, defendants, and Louisa McCauley, terretenants, and all other terre-tenants whoever they may be.</p> <p>Scire facias sur mortgage. Before Landis, J.</p> <p>Landis, J., in an opinion discharging a rule for judgment, non obstante veredicto, stated the facts substantially as follows:</p> <p>On May 4,1865, David Fisher conveyed the property now in suit to Elizabeth Fisher, his wife. This deed was not, however, recorded until 1884.</p> <p>Elizabeth Fisher died in 1878, and her husband, David Fisher, in 1880. They left surviving them one child, Susanna Fisher, who was married to John K. Fisher. Elizabeth Fisher devised part of the land to her daughter in fee and part for life, with remainder to the daughter’s children.</p> <p>On April 1, 1882, Susanna Fisher and John K. Fisher, her husband, mortgaged all of the land to Jacob Farmer, to secure the sum of #2,500, which said mortgage was recorded on April 14, 1882. Subsequently by transfer, this mortgage became vested in A. G. Hamaker, the use plaintiff, and the whole indebtedness still remains unpaid. This mortgage recites that, upon the death of David Fisher, the property described therein descended by virtue of the intestate laws and thus became vested in Susanna Fisher, as his only child. Jacob Farmer, at the time he loaned this money and took the mortgage, did so in good faith. He did not know of the unrecorded deed made by David Fisher to Elizabeth Fisher, his wife.</p> <p>Susanna Fisher died May 12,1897, leaving one child, Louisa McCauley. Susanna had paid the interest on the mortgage up to the time of her death, and afterwards her daughter paid it to April 1,1898. Having failed to make further payments, a scire facias was issued on said mortgage, in which Susanna Fisher and her husband were made defendants, and Louisa McCauley terre-tenant. The sheriff returned this writ nihil habet as to Susanna Fisher and her husband, John K. Fisher, and an acceptance of service by the attorney for Louisa McCauley. An alias scire facias was issued against Susanna Fisher and her husband, John K. Fisher, and Louisa McCauley, administratrix of Susanna Fisher, deceased. To this writ the sheriff also returned nihil habet, and on October 21, 1899, judgment was entered in open court for plaintiff and against the defendants, Susanna Fisher and her husband, John K. Fisher, for want of an appearance, for the sum of #2,725. On September 28, 1899, Louisa McCauley pleaded payment, but on January 11,1900, her counsel withdrew that plea and entered a special plea that “ the mortgage sued upon was not, at the institution of the suit, and never was, a lien upon her land.” The case came on for trial, and on February 6, a verdict was rendered against Louisa Mc-Cauley, as terre-tenant, for the sum of $2,725, whereupon a rule was granted for judgment in her favor non obstante veredicto.</p> <p>Error assigned among others was in entering judgment for plaintiff.</p>

Appeal, No. 104, Jan. T., 1900, by James C. Roller, from decree of O. C. Blair Co., 1899, No. 286, enforcing a charge upon land in the case of estate of William Ilammond, deceased. Petition of representatives of William Hammond, deceased, for citation on Adam Hoover and J. C. Roller to show cause why they should not pay a legacy charged on land. The facts are fully stated in the opinion of the Supreme Court. Error assigned was decree enforcing the charge on the land.

Appeal, No. 331, Jan. T., 1899, by-Annie Y. Cornman, from decree of O. C. Cumberland Co., dismissing exceptions to report of auditor in the estate of Theodore Cornman, deceased. Exceptions to report of J. M. Weakley, Esq., auditor. From the auditor’s report it appeared that on April 1, 1880, the administratrix and heirs at law of William Railing conveyed to Theodore Cornman a tract of land in Middlesex township containing 130 acres and 80 perches.

<p> Auditor—Findings of fact—Review. </p> <p>An auditor’s findings of fact approved by the court below will not be disturbed by the Supreme Court, where no clear error appears.</p> <p> Assignment for creditors—Debtor's exemption—Lien. </p> <p>An assignor for creditors has the right to except from his assignment, property to the value of $300. He cannot, however, exercise this right out of real estate to the injury of a creditor who has a lien for purchase money, or a judgment in which the exemption is waived. If the creditor has acquired no lien on the land or the proceeds, he has no standing to prevent the assignor from claiming the exemption reserved in the deed of assignment. If he desires the benefit of the waiving clause, he must secure it by execution or attachment against the property reserved.</p> <p> Equity—Subrogation—Marshaling assets. </p> <p>The doctrine that where a creditor has a lien on two funds of his debtor, and another creditor has a subsequent lien on only one of these funds, if the prior lien creditor resorts to the fund common to both liens and consumes it, the other creditor shall be subrogated to the rights of the first creditor in the other fund, is a doctrine of purely equitable origin, and will never be decreed where it works an injustice.</p> <p>The creditor’s lien on more than one fund is not the only consideration that moves equity to interpose its powers to enforce the right of subrogation. Before it interferes in behalf of the creditor, he must show that his claim is one of benevolence, that its enforcement will work no injustice to another but will thereby attain the ends of justice, and that its equities are not only equal but superior to that of the contesting claimant. Subrogation never takes place to the prejudice of any other right.</p> <p>S. owning a farm (No. 1) confessed judgment to E. for $4,400, and subsequently confessed another judgmeut to the use of M. for $2,000. Thereafter S. purchased two other tracts (Nos. 2 and 3) upon which he confessed a purchase money judgment for $3,000, afterwards marked to the use of M. and at the same time borrowed on second mortgage on these two tracts $3,500, which mortgage was assigned to the appellees. By reason of failure to revive in time M.’s $2,000 judgment lost its place as second lien on tract No. 1 and by subsequent revival became third lien on that tract. It was also third lien on tracts Nos. 2 and 3. On sale of the three tracts, E.’s judgment was paid out of proceeds of tract No. 1 and M.’s $3,000 purchase money judgment out of proceeds of tracts Nos. 2 and 3. The holders of the mortgage claimed that as the $3,000 judgment was a lien on both funds, it having been paid out of proceeds of tracts Nos. 2 and 3, they were entitled to be subrogated to its rights in the fund arising from tract No. 1. The court below so awarded distribution. Held, to be error; that the mortgage having no lien on tract No. 1 could not be advanced in the order of liens on that tract by the failure to revive the $2,000 judgment; that the equities of the $2,000 judgment were equal if not superior to the mortgage, and that the latter should therefore not be permitted to participate in the distribution of the fund derived from tract No. 1.</p>

<p> Trust and trustees—Creation of trust. </p> <p>Three things must concur to raise a trust. Sufficient words to create it, a definite subject, and a certain or ascertained object; and to these requisites may be added another, viz: that the terms of the trust should be sufficiently declared.</p> <p>When a settlor is possessed of the legal title to the subject-matter of the settlement, he may create a valid trust thereof either by a declaration that he holds the property in trust, or by a transfer of the legal title to the property to a third party upon certain trusts. In other words, he may constitute either himself or another person the trustee. If he makes himself the trustee, no transfer of the subject-matter is necessary.</p> <p>If the declaration of a trust be in -writing, it is not essential as a general rule, that it should be in any particular form. It may be couched in any language which is sufficiently expressive of the intention to create a trust.</p> <p>A father executed a writing in which he declared that he held $2,000 of his daughter’s money, that she was to receive interest thereon during her life, and that at her death the principal should be paid to her children. The payment of one year’s interest was indorsed upon the paper, and the paper was found amongst the father’s effects after his death. Held, that the paper constituted the father a trustee for his daughter and her children.</p> <p> Trust and trustees—Active trust. </p> <p>Testator divided his estate into seven equal parts, and gave five parts to certain living children, and one part to the children of a deceased daughter, and as to the remaining part directed as follows: “ One full seventh share or part thereof I give and bequeath to my hereinafter named executors and the survivor of them in trust, that they or he do and shall put and place the same out at interest and pay over the interest thereof from time to time, when and as the same shall be got in and received unto my daughter S. during the term of her natural life, and after her death the said principal shall go to her heirs and assigns forever.” Held, that S. took an estate for life in trust, and not a fee simple estate.</p> <p> Trust and trustees—Legal and equitable estate—Buie in Shelley's Case. </p> <p>The rule in Shelley’s Case does not operate where an equitable estate for life is followed by a legal estate in remainder.</p>

Appeal, No. 158, Jan. T., 1900, by plaintiff, from order of G. P. Northumberland Go., May T., 1899, No. 431, refusing to take off nonsuit, in case of Hannab E. Kaseman v. Borough of Sunbury. Trespass for death of plaintiff’s husband. Before Mo. Clube, P. J., specially presiding. The facts appear by the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

<p>Appeal, No. 10, Jan. T., 1900, by defendant, from judgment of the Superior Court of Pennsylvania, to No. 87, March T., 1899, upon the appeal of the Commonwealth from the judgment of the Court of Quarter Sessions of York Co., Aug. T., 1898, No. 36, in case of Commonwealth v. George P. Yost.</p> <p>Appeal from Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in reversing judgment of the court of quarter sessions of York county.</p>

Appeal, No. 1, May T., 1900, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1899, No. 446, on verdict for plaintiff in case of Harrisburg Savings and Loan Association v. United States Fidelity and Guaranty Company. Assumpsit upon a bond of suretyship. Before Simon-ton, P. J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 15, May T., 1900, by plaintiff, from decree of C. P. Adams Co., April T., 1900, No. 1, dismissing bill in equity in case of Pius A. Miller, J. L. Butt and John B. McPherson, Trustees, v. David R. Shriver. Bill in equity to cancel a deed. From the record it appeared that on March 25, 1899, E. A. Weaver executed a deed of conveyance absolute on its face of all his real estate to David R. Shriver.

<p>Appeal, No. 17, May T., 1900, by defendants, from decree of C. P. Dauphin Co., Equity Docket, No. 236, on bill in equity in case of George Wahl and James Staples v. Methodist Episcopal Cemetery Association of Williamstown.</p> <p>Bill in equity for an injunction. Before Simonton, P. J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>The court below in an opinion by Simonton, P. J., entered the following decree:</p> <p>And now, April 27, 1900, this cause came on to be finally heard on bill, answer and testimony, and was argued by counsel, whereupon upon due consideration it is ordered, adjudged and decreed as follows:</p> <p>1. That the said, The Methodist Episcopal Cemetery Association, of Williamstown, its officers, agents, servants and employees be and they are hereby perpetually enjoined and restrained from maintaining the property described in the bill of complaint as a cemetery for burial purpose and from burying or permitting the burial of dead bodies therein.</p> <p>2. It is further ordered, adjudged and decreed that the said, The Methodist Episcopal Cemetery Association, of Williams-town, J. W. Durbin, J. H. Hoffman, J. W. Stites, Daniel Bowman, John Hay, Samuel Horwell, Henry Maiden, James Blanning, Owen Thomas, Thomas Warlo, Leah Davis, Albert T. Tilley, John Crozier, Mary Jones, Mary Lewis, Wilhelm Books, Charles Woodman, Mary Motter, Charles Badorf, Joseph Graham, John Ashton, Amelia Falkmeyer, George Sharper and David Jenkins, defendants in the said bill of complaint and owners of lots in the said cemetery association, be and they are hereby ordered and directed to remove, from said cemetery,* within the period of six months from this date, all dead bodies which they have buried or caused to be buried in the tract or piece of land described in the said bill of complaint.</p> <p>3. That the costs of the proceeding be paid by the Methodist Episcopal Cemetery Association of Williamstown.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 183, Jan. T., 1898, by defendant, from judgment of C. P. Centre Co., Jan. T., 1896, No. 165, on verdict for plaintiff, in case of Rose Sternberg Lyon v. Gustave Lyon. Trespass to recover damages for the alienation of a husband’s affections. Before Love, P. J. At the trial it appeared that on December 26, 1893, plaintiff married Moyer Lyon, a younger brother of the defendant.

<p>Appeal, No. 201, Jan. T., 1898, by defendant, from judgment of C. P. Cumberland Co., Nov. T., 1897, No. 57, on verdict for plaintiff in case of Christian Shopp v. The Patrons’ Mutual Fire Insurance Company of Southern Pennsylvania.</p> <p>Assumpsit on a policy of fire insurance. Before E. W. Biddle, P. J.</p> <p>In addition to the facts stated in the opinion of the Supreme Court, it appeared that on September 30, 1896, a storm tore the roof off plaintiff’s barn, and the defendant sent adjusters to the premises, who fixed the amount of the loss at $67.04, and by resolution of the directors this sum was paid by the treasurer to the plaintiff, without, however, any examination of the policy, and under a misapprehension as to the facts. The adjuster testified that the policy was not produced to him, and that if he had seen the policy, he would not have approved the payment.</p> <p>The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for $2,878.80. Defendant appealed.</p> <p>Error assigned among others was in refusing to give binding instructions for defendant.</p>

<p> Partnership—Real estate—Tenants in common—Deed. </p> <p>Where real estate occupied by a partnership consisting of two members is owned as follows, one undivided third by one partner, a second undivided third by the other partner, and the remaining third by the two partners as partnership property, and subsequently a new firm is formed by the addition of another person to whom is given a one-ninth interest in the partnership business, and to whom is conveyed a one-ninth interest in the real estate, the real estate belongs to the three partners as tenants in common, and is not a partnership asset.</p>

Appeal, No. 41, Oct. T., 1899, by defendant, from judgment of Superior Court, April T., 1898, No. 180, affirming order of C. P. Westmoreland Co., May T., 1898, No. 726, discharging rule to open judgment in case of Jeannette Borough v. John Roehme. Before Ster- Appeal from judgment of Superior Court (see 9 Pa. Superior Ct. 33), affirming order of court of common pleas of Westmoreland county dismissing exceptions to report of Luke Lonergan, Esq., commissioner.

<p>Negligence—Railroads—Evidence—Ice pond— Oil.</p> <p>In an action by the owner of an ice pond against a railroad company to recover damages for the destruction of the ice upon the pond, there is no error in giving binding instructions for defendant where the evidence shows that an oil tank car containing 6,000 gallons of oil having been derailed without fault of the defendant, oil from the car ran through a break in the tank at the rate of two gallons a minute, and found its way into a stream flowing into plaintiff’s pond; that defendant used every effort to pump the oil from the ear into another ear without success, and at the end of ten or eleven hours from the time of the accident, opened the valve at the bottom of the tank and let the remaining oil run out.</p>

Appeal, No. 123, Oct. T., 1899, by defendant, from judgment of C. P. Cambria Co., June T., 1897, No. 422, on verdict for plaintiffs in case of John F. Stull et al. v. J. W. M. Stull et al. Ejectment for land in Conemaugh township.

<p> Principal and, agent—Agent acting in dual capacity—Fire insurance. </p> <p>Where a stockholder and director of a corporation owning real estate consents to become the agent of an insurance company, with the understanding that the latter was to insure the real estate of the corporation, and the newly appointed agent thereupon issues a policy on such real estate which is accepted, by the insurance company, the latter company cannot subsequently object that the agent was acting in a dual capacity.</p>

<p>Appeal, No. 21, Oct. T., 1899, by plaintiff, from order of C. P. No. 3, Allegheny Co., May T., 1897, No. 5, refusing to' take off nonsuit in case of Samuel Purdy v. Westinghouse Electric and Manufacturing Company.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

Appeal, No. 75, Oct. T., 1899, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1899, No. 719, on verdict for plaintiff, in case of Frank C. Reed v. A.… Held: and bearing on that is the fact that Loosemore had no personal interest whatever in the matter, and presumably he had no authority from the defendants to make that information, because, as the manager of a store, he would not be clothed with power to make an information binding the defendant firm.

<p> Principal and surety—Bight to collateral—Subrogation. </p> <p>A paying surety is entitled to the benefits of all collateral securities, protective of the debt paid by him which are held by the creditors.</p> <p>Where a debtor enters into an agreement with his creditors, by which he pledges certain specified property as security for the payment of certain enumerated debts, among which debts is a promissory note which an accommodation indorser is subsequently compelled to pay to the person who had discounted the note, the accommodation indorser is entitled to share in the proceeds of the collateral, and his right is not affected by a stipulation in the agreement, to the effect that the agreement should not relieve the indorsers upon the note, and “ that no money paid by said indorsers shall inure to the benefit of any one, excepting,” the person named as having discounted the note. Mitchell and Fell, JJ., dissented.</p>

<p> Gift—Parol gift—Policy of life insurance. </p> <p>A parol gift may be made of a policy of life insurance by a physical delivery of the policy. A written assignment is not necessary.</p> <p>On a bill in equity to determine the ownership of a policy of life insurance, plaintiff claimed title to the policy by a parol gift from her mother. The gift was supported by the testimony of two witnesses whose competency and truthfulness were not successfully assailed. The donor, after her delivery of the policy, declared that she had given it to her daughter and her declaration was sustained by another witness. She also had previously declared her intention to make the gift. Held, that the evidence was sufficient to support the gift.</p>

<p>Appeal, No. 91, Oet. T., 1899, by Philip Engelskirger, from decree of O. 0. Allegheny County, June Term, 1898, No. 218, dismissing appeal from register of wills, in the estate of James Viosca, deceased.</p> <p>Appeal from register of wills.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court, dismissing the appeal from register of wills.</p>

<p> Will—Gift of stock—Corporation. </p> <p>Testator gave all his stock in the Tide Water Pipe Line Company, Limited, to a trustee for his wife, stating that he had faith in the investment being secure and profitable. In a subsequent clause of the will lie direeled the trustee to “ hold the Tide Water Pipe Line Company, Limited, until the death of my wife, and pay to her all dividends or divided profits accruing thereon.” By a codicil he ratified and confirmed his will in all matters, excepting as to the stock he held in the Tide Water Pipe Line Company, Limited, which he gave to his wife absolutely. Testator owned shares of stock of the company, and also certificates of loan. The wife claimed both the stock and the certificates of loan. The certificates of loan of the Tide Water Pipe Line Company, Limited, provided that the holder should receive a share of the profits of the business of the company in lieu of interest; that he should not be liable as a copartner to other creditors of the company, except as to the amount loaned, and that the certificates should be transferable only on the books of the company. The holders of these certificates also had the right annually to name two or more persons shai-eholders of the association, at least two of whom should be chosen by its stockholders as managers for the ensuing year, and, upon the dissolution of the company, they were to receive the full amount loaned by them before the capital was returned to the shareholders. They also had the right to examine the books of the association. Held, that the wife was entitled to the certificates of loan as well as the stock.</p> <p> Trusts and trustees—Executed, trust—Intestacy. </p> <p>Where a testator without children gives all of his estate to trustees to pay the income therefrom to his wife during her life, and after her death to pay one half of the principal to charities, and the other half to certain persons named, and the testator dies within thirty days from the date of his will, the wife is entitled under the intestate laws, brothers of the testator surviving him, to one quarter of the estate free from the trust.</p>

<p> Equity—Specific performance—Contract—Jurisdiction. </p> <p>While a court of equity has no jurisdiction over a bill in equity for the specific performance of a contract, where the prayer is merely for the payment of money, the Supreme Court will not reverse such a decree for want of jurisdiction, where the case was allowed to go to final hearing by defendant without objection.</p> <p>Deed—Medial in deed—Evidence — Adverse possession—Payment of taxes—Lost deed.</p> <p>In a proceeding to determine the marketable title to real estate, the plaintiffs contention that he has a good marketable title is sustained, where the record shows a paper title excepting one deed, oral evidence of the lost deed, a recital of the lost deed in the deed forming the next link in the chain of title, the reeiting deed being duly acknowledged and recorded, the payment of taxes for a period of over thirty years, the payment of municipal liens and other acts of ownership, and the negative evidence that no adverse claim had been known or asserted.</p>

<p>Appeal, No. 353, Jan. T., 1899, by-plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1897, No. 1365, dismissing exceptions to report of referee, in case of Ada P. Blakely, individually, and as administratrix of David Blakely, deceased, v. John Philip Sousa.</p> <p>Bill in equity for an injunction.</p> <p>Exceptions to report of referee, Charles E. Morgan, Esq.</p> <p>The referee found the facts to be as follows :</p> <p>FINDING OF FACTS.</p> <p>1. David Blakely, who was a manager of musical organizations, possessing, as stated in the bill of complaint, “ large experience and great reputation for his success in these enterprises, especially in their organization,” on June 27, 1892, entered into the contract, exhibit “A,” with John Philip Sousa, the defendant, a musician well and favorably known, and of reputation and experience as a leader of bands.</p> <p>Prior .to June 8, 1892, Blakely and Sousa, as appears from the letter of the former to the latter of that date, contemplated entering into an arrangement for the purpose of carrying on together in some manner a musical organization through a corporation to be created. • The latter course, evidently, was not regarded as essential or fixed, and its adoption or rejection was intended to be left to the election of Blakely. In the said letter written by him to Sousa, he says: “ I enclose herewith a draft of the proposed contract between you and me, to be succeeded by a like contract by the company which I am organizing for the purpose of succeeding me in this business. But if for any reason the company referred to should fail of organization, then this individual contract is to remain in force as specified by its terms. I have got in all the provisions that we talked about or that have occurred to me.”</p> <p>On the day of the date of the contract, exhibit “ A,” such a corporation was formed under the laws of the state of New Jersey, called the “Blakely Syndicate,” of which Mr. Blakely was president, and in which defendant became a stockholder.</p> <p>This corporation was abandoned and the defendant’s stock surrendered to Mr. Blakely on or about May 12, 1894.</p> <p>2. The personal qualities of each of the parties, Blakely and Sousa, constituted a potential inducement to the making of the said contract.</p> <p>Blakely relied upon Sousa’s ability as a musical director, and Sousa upon Blakely’s skill, experience, reputation, and success in the organization and management of musical organizations. This appears from the plaintiff’s averment in her bill, where she states that “ prior to the execution of the contract hereinafter recited, said David Blakely was engaged in organizing, owning and managing musical organizations, in which he had gained large experience and great reputation for his success in these enterprises, especially in their organization .... possessed of considerable capital and having the advantage of his experience as business manager of the United States Marine Band and of Gilmore’s Band, both musical organizations of great reputation, he applied himself to the work of effecting the new organization.” In the recital at the commencement of the agreement (exhibit “ A ”) Blakely is described as “ the manager of the late tours of the United States Marine Band.” .</p> <p>Benjamin Stevens testified that he had known Mr. Blakely from about 1892 as manager of Mr. Gilmore and connected in concert enterprises with Mr. Sousa; that he was “ always looked upon as a very brilliant manager.” Mr. Stevens had been a manager and connected with operatic enterprises as such for about eleven years.</p> <p>Abram W. Erlanger, who had been a manager, and had had experience in booking and managing musical organizations in the United States, states that he had known David Blakely for about seven years and had business relations with him in relation to Sousa’s Band, and that he was regarded as, and had, the general reputation of being pre-eminent among managers of musical organizations.</p> <p>3. On May 21, 1895, Blakely, in a letter of that date addressed to defendant, voluntarily, and without consideration from the defendant, promised to make him, from and after August 1, 1895, an equal sharer with himself in the profits of the business, reserving, however, the right to withdraw this concession at any time, and expressly stipulating that it should not be considered “a legal amendment or appendage” to the contract as originally executed. He writes: “ It is not my purpose to meddle with that, or to put it absolutely out of my power to resume its conditions. But I can now imagine no circumstance which will cause me to change the voluntary conclusion to which I have come, that at the time specified you and I will share alike in all the revenues which are derived from the enterprise which we undertook together and have thus far carried forward to an unexpected and gratifying success.”</p> <p>He also on May 7,1896, evidently referring to the same subject, wrote defendant: “ What I have done or proposed to do in connection with the division which I am now making and the surrender which I propose to make of all interest in the royalties coming from the performances of your opera are conditioned upon the continuance of our relation.”</p> <p>On September 10,1896, Blakely and the defendant made the written agreement of that date (exhibit “ F ” of plaintiff’s bill, to renew for three years from August 1, 1897, “ their present contract,” expressly excluding from it the question of the division of royalties upon music provided for in exhibit “ A.”</p> <p>4. On July 81,1895, Blakely wrote the defendant as follows:</p> <p>“ Hereafter the books will be carried on upon the basis of a strict division of profits without regard to salaries, your salary and mine going in as profits, but if it should so happen that the profits should amount to less than your salary of course the difference will be made up to you. But this is practically an impossible event. Let our statements show the profits of our partnership, just the same as in all other like cases. It is hardly fair to take out $12,000 of our margins before considering that we are making any money on the band.”</p> <p>After August 3, 1895, the books of the band show no payment of salary to either Blakely or defendant, but simply an equal division of profits.</p> <p>On August 2,1895, October 24, 1896, and October 30,1896, Blakely wrote to defendant, addressing him as “ My beloved partner,” or “ My dear partner.”</p> <p>5. On September 10, 1896, Blakely and defendant entered into the contract, exhibit “F.”</p> <p>6. On November 7, 1896, Blakely died intestate, and soon thereafter letters of administration upon his estate were duly issued to the plaintiff. Defendant was at this time in Europe. On his return he called upon and notified the plaintiff that he was advised and believed that the contract existing between him and Mr. Blakely was terminated by the latter’s death, and refused to continue as musical director of Sousa’s Band thereunder; and about the same time an oral agreement was entered into by the defendant with the plaintiff that the defendant should continue to lead the band as musical director throughput a tour which had been arranged by Mr. Blakely for 1897 and direct the performances of the engagements made, contracted for, and advertised by Mr. Blakely, the last of said engagements so arranged and contracted for being May 28, 1897. It was then agreed and understood by both parties that the arrangement then made should not prejudice either in the subsequent determination of the meaning and effect of the contract of June 27, 1892, and that of September 10,1896, and. that its purpose was to provide for carrying out the engagements for the band made by Mr. Blakely, for the benefit of both plaintiff and defendant. Under said oral contract the plaintiff was to employ all the members of the band and officers, pay all the salaries, receive all the receipts, pay expenses, and account for and pay to defendant compensation in accordance with the terms of the contract between him and Mr. Blakely as it existed at the time of Blakely’s death. As to the dates and manner of payment to defendant of his share of net profits, the testimony is contradictory and unsatisfactory. 1 find that it was not agreed that he should receive payments on account of the same from time to time before the end of the tour of the band unless and until the tour proved in fact profitable. He was in any event, however, to receive on account of salary from Mi's. Blakely, $115 per week. It was further agreed that the question of the rights of the defendant and the plaintiff to royalties from the sale of defendant’s music should be determined after the contemplated tour was finished, and that in the mean while the proceeds of such sales should be deposited with Vernon M. Davis, Esq., of counsel, for the defendant, as trustee.</p> <p>7. On or about December 26, 1896, the band started out on the tour as arranged by Mr. Blakely, with Mr. Sousa as musical director, Mr. Cliristianer as manager, Mr. Strine as press agent, engaged by plaintiff, with defendant’s approval. At Philadelphia Mr. Sousa drew, at the end of the first week, $215. At Savannah, which was the next place on the tour, he received, at the end of the second week, $215. At New Orleans the defendant received copies of letters to the John Church Company, publishers, of December 26,1896, and March 6,1896 written by Mr. Low. When the band arrived in Memphis, Mr. Cliristianer told the defendant that he had received an order from Low to pay him, defendant, $115 a week and no more, and refused to pay him any more. This occurred on January 20, 1897. Again, at Denver, on February 12, 1897, Christianer refused to pay more than $115. Mr. Christianer was then treasurer of the band. In the mean time, in the first week in February, the defendant consulted Mr. Redding, his counsel, at Chicago, about the matter, and he advised him to take a “ heroic ■ stand,” and when the defendant reached Denver and joined the band, he demanded of Christianer, the treasurer $215 per week for several weeks which had elapsed since the last payment. Christianer refused to make the payment, saying, “ No, I can’t do it, Sousa. Low has told me I can’t do it, and I won’t do it.” Whereupon Sousa replied that he would not go on unless he received $2,500. A statement received that day by Sousa, from Miss Allen, Mrs. Blakely’s bookkeeper, shows that the profits of the tour up to that time were $7,000. After some conversation, Christianer gave him the money demanded, $2,500. At Jackson, Mich., a letter was received by defendant from Mr. Low. Defendant then made another demand on Christianer for $2,500, and received it, Christianer advising Mrs. Blakely by letter received by her bookkeeper, Miss Allen, dated March 19, 1897, of said demand and payment. In consequence of this, Mr. Low wrote letters of March 28, 1897, to Christianer and defendant, respectively, to the effect that the said payments of $2,500 each, were without the authority and approval of Mrs. Blakely, and referring to a telegram to the same effect sent to Christianer by him, directing him to pay Sousa nothing except as instructed in his (Low’s) previous letters.</p> <p>With the defendant as musical director and under the plaintiff’s business management, the band performed the engagements contracted for by Mr. Blakely until April 6, 1897. On April 6, 1897, the defendant ceased further to act under said oral agreement as musical director of the band, hired its members in his own name and for his own benefit and proceeded to give concerts following April 6, for his own profit, using for this purpose the name of the band, the musicians engaged by Mr. and Mrs. Blakely, and the band music or library, without the plaintiff’s consent.</p> <p>8. The plaintiff has received nothing on account of royalties from Mr. Sousa’s musical compositions since her husband’s death; all moneys, however, received from this source to N ovember 1, 1896, were equally divided between Mr. Blakely and defendant.</p> <p>9. Part of the band library is now in plaintiff’s possession, part in storage, and part in the possession and use of defendant, who has not accounted to her for its use.</p> <p>10. On April 1, 1897, Mr. Davis, as attorney for Mr. Sousa, wrote Mi’. Low the letter, in which he stated that the defendant would appear only at places contracted for by Mr. Blakely during his lifetime, and that he did not recognize the claim or right of Blakely’s representatives to contract for his appearance at any time or place.</p> <p>On April 2, 1897, Mr. Low wrote Mr. Davis that if engagements at Yonkers and Newark had been substituted for those made by Mr. Blakely for April 6 and 7, Mr. Sousa must play on those dates in those places or be held responsible for damages to Mrs. Blakely, and that the same course would be pursued with reference to any engagements made for the band by Mrs. Blakely’s representative during the continuation of the contract.</p> <p>On April 5, at Mr. Low’s request Mr. Christianer met him in New York after the return of the band and received from him the letter notifying him that he (Christianer) was discharged by Mrs. Blakely from her employment for acts alleged to be in excess of his authority, contrary to instructions from her and in violation of his trust as her representative, and demanding the surrender to Low, as her attorney, of all contracts, letters, and papers and other property relating to the band received by him as her agent, and an account for all moneys also received while so acting.</p> <p>On April 6,1897, Christianer wrote Low a letter in which he denied that he had done anything to justify the termination of his contract with plaintiff, insisting that he had performed his duties faithfully, asserting his readiness to continue to perform his part of the contract, advising her that “ he would demand an account of the profits of the tour, and payment of the amount payable to him, under the terms of his contract, from January 1, to August 1, 1897, and notifying her that he had placed in his name as trustee at a bank in the city of New York the sum of $8,000, balance in his hands from concerts theretofore given by Sousa’s Band; and that this amount would remain so deposited until his rights under the contract were adjusted “ either amicably or by the court.”</p> <p>On April 7, 1897, the defendant wrote Mr. Low the letter of that date, advising him that he (Sousa) had been informed that Christianer had been discharged and that Strine had been substituted in his place, and that Strine was not acceptable to Sousa as business manager, and on the same day Low replied, representing that Strine was not personally acceptable to Sousa, disclaiming any knowledge by Mrs. Blakely that such was the case, and informing him that Christianer was discharged for “ wilful disobedience and gross breach of trust.”</p> <p>11. The last concert played by Sousa’s Band under the business management of Mrs. Blakeley was at Brooklyn, April 5, 1897. On April 8, 1897, the band played two concerts, one at Bethlehem and the other at Allentown, under the management of Mr. Sousa, who did not account to Mrs. Blakely for the proceeds of same, or for the proceeds of any concert subsequent to that date, nor has he since in any way recognized Mrs. Blakely as representing an interest in the band, nor sent her any communication with reference thereto. In fact, from and after April 6, the business of Sousa’s Band has been conducted by Mr. Sousa as his own in every respect, without recognition of any interest whatever in the estate of Mr. Blakely. No account has ever been settled between them as to any of the performances of the band since Mr. Blakely’s death, although all the proceeds of the concerts given by it thereafter and before April 6, 1897, except $3,000 referred to in Christianer’s letter to Mr. Low, have been paid to Mrs. Blakely, les.s the expenses and salaries, and the amounts referred to, paid to defendant, or obtained by him from Christianer.</p> <p>12. The agreement as to the payment of the royalties to Mr. Davis was not carried out. Before Blakely’s death these had been always paid to defendant by the John Church Company, whose contract was with him, defendant paying Blakely. Mr. Low, after the agreement to deposit was made, notified the Church Company of it and advised them that payments should be made only to the trustee. The church company sent to defendant a copy of this letter and also their reply, informing Low that their contract was with defendant, and declining to pay the royalties to any one else. Thereafter payments of the same were made to defendant and the moneys thus received were retained by him. No portion of them has been paid to Davis, the trustee, nor accounted for to the plaintiff.</p> <p>OPINION.</p> <p>1. At the time of the death of David Blakely, on November 7, 1896, there existed between him and the defendant a contractual relation under the written agreement of June 27, 1892, (exhibit “A”) which was not a copartnership, but an employment of defendant by Blakely as his, Blakely’s, musical director of his musical band, for a specified compensation to be paid by him, for which, in the event of default, he could have been sued at law; Blakely assuming, individually, all risks of loss and the payment of all debts to be incurred, including the salary of §6,000 per annum to be paid defendant.</p> <p>The rule established by the oases to the effect that the right to a division of profits carries with it a presumption of a co-partnership relation, is for the benefit and protection of parties other than those so contracting. There is no legal limit to the power of two or more persons to contract together so as to provide for a division of profits of a business without conferring the rights or imposing the responsibilities incident to a partnership upon them inter sese. See Bindley on Partnership, page 20, and Ryder v. Jacobs, 182 Pa. 624.</p> <p>It is true that where the intent is difficult to ascertain from the language used, a clause providing for a division of profits should be considered and given weight in determining whether the contract was intended to be a copartnership agreement. Such a clause of itself, however, has never been held to be sufficient to impose, as between the parties, partnership liabilities under a contract which in other respects expresses an intent to form a different relation.</p> <p>In a partnership all the partners are principals, and each is agent for all. These conditions are not to be found in the contract between Blakely and Sousa.</p> <p>This will readily be seen upon examination of exhibit “ A.” The intent to contract together as employer and employee is patent upon the language used throughout it. Sousa was to obey Blakely, to be subject to his orders not only in the leadership of Blakely’s Band, but also in relation to musical performances by other organizations.</p> <p>The defendant agreed “ to rehearse and conduct any respectable organization composed of individuals of musical excellence whenever requested by the said Blakely, and to devote his time to the business interests of the said Blakely in this connection by his musical accomplishments and work,” “ and not to engage in any musical or other work not connected with this engagement without the written agreement of the said Blakely.”</p> <p>I have found as facts that at various times after the date of their contract Blakely, in his correspondence with defendant, addressed him as his “ dear ” or “ beloved ” partner, and also once referred to their existing relations as a “ partnership.” Precisely what he meant by the use of these expressions it is difficult to determine. If taken in their literal sense they do not describe accurately the contract relations of the parties as shown by the only evidence before me. As against the unambiguous words of the written agreements and the intent thereby clearly shown, these expressions are entitled to but little consideration.</p> <p>The following are copies of said agreements, exhibit “ A ” and exhibit “ F : ”</p> <p>“ exhibit ‘ A.’</p> <p>“ Whereas Mr. David Blakely, the manager of the late tours of the U. S. Marine Band, is desirous of perfecting a new organization for the purpose of securing high excellence in a military band, and with that view to secure the services- of Mr, John Philip Sousa as its musical director, and said John Philip Sousa is willing, on the terms hereinafter expressed, to accept said employment and position.</p> <p>“ This agreement between said parties witnesseth as follows :</p> <p>“1. It is agreed that the said David Blakely shall be the business manager of the said band, in connection with his assistant managers or agents, and shall perform all acts and duties pertaining thereto, and shall be solely responsible for all expenses connected therewith, the said John Philip Sousa not to be liable in any event for any portion thereof.</p> <p>“2. It is agreed that John Philip Sousa shall be the musical director of the said band, and shall perform all acts and duties pertaining thereto, and that the organization shall be known as Sousa’s Band, or shall have some title chosen by said Blakely with the name of Sousa as a part thereof. Said name shall thereafter be a part of the property of said band, and be owned and controlled by the business manager thereof, or his successors and assigns.</p> <p>“ 3. It is agreed that this contract shall take effect from the date of the acceptance of said Sousa’s resignation as leader of the U. S. Marine Band, and severance of his connection therewith, and continue for the full term of five years thereafter.</p> <p>“ 4. It is agreed that the compensation of the said Sousa for the duties connected with his position as hereinafter mentioned during said period, shall be at the rate of $6,000 per year, from the time of his severance of connection with the U. S. Marine Service until the expiration of this contract, payable monthly by said Blakely, and, in addition thereto, ten per cent of the net profits of the business of the organization during the first year after the date of the organization of the band, and twenty per cent during the remainder of this engagement, also payable by said Blakely. The said net profits to be the remainder of moneys on hand at the expiration of the first year, after deducting all expenses of conducting the band and its business, and including the aforesaid salary of the musical director, and a like annual salary of $6,000 to the said Blakely or his successor as business manager of the said new organization; and the said musical director shall receive twenty per cent of the said so described profits for the remaining years of the duration of this contract, after deducting all expenses, including salaries as aforesaid. And said Blakely will pay for first-class railroad transportation on all tours made by said Sousa in connection with said band.</p> <p>“ 5. The said John Philip Sousa, after the expiration of this contract, shall give the said David Blakely the refusal of his services in a similar capacity for another five years; provided the said Blakely shall agree to pay him as great a compensation as any other manager in good faith offers to do.</p> <p>6. The work of securing the said new organization shall begin as soon as may be after the signing of this contract.</p> <p>“ 7. The number of musicians engaged for concert tours shall not be less than forty-six, unless agreed to by both Blakely and Sousa.</p> <p>“ 8. It shall be the aim and duty of the said Sousa by individual effort, and band rehearsal and practice, and by the preparation and furnishing of music, to make this band equal in executive ability to the band of the Garde Republicaine in Paris.</p> <p>“ 9. The musical direction of the aforesaid organization shall he in the hands of the said John Philip Sousa, and the business management in the hands of the said Blakely as aforesaid, but both shall mutually receive counsel in their respective positions, and especially regarding the preparation of programmes. It shall be the effort of the musical director to make programmes, which, while embodying a good class of music, shall be popular and pleasing, and have regard to business success.</p> <p>“ 10. The salaries to be paid to the musicians shall be paid by the business management, but the director may at all times advise and counsel the business management in this particular.</p> <p>“ 11. The musical director shall conduct as many concerts or other engagements, as are arranged for, or as the men are willing to play, but shall be entitled to one month’s leave of absence in each calendar year, at a time or times when the band is not engaged on the road or otherwise, and the compensation of said Sousa shall not cease or be diminished by reason of such leave or any other cessation of work by said band.</p> <p>“ 12. The musical director shall, whenever able to do so in times of leisure, or when not occupied in conducting the band (except during such leave), rehearse and conduct any respectable organization composed of individuals of musical excellence, whenever requested by the said Blakely; and shall generally devote his time to the furtherance of the business interests of the said Blakely in this connection by his musical accomplishments and work; and in case of any musical compositions by said Sousa during or prior to said period, the profits of the sale or negotiation of any such musical compositions, and all other music now controlled by the said Sousa, or composed by him during or prior to this engagement, including his ‘ Sheridan’s Ride,’ ‘ Ben Hur,’ etc. (already composed), shall be divided equally between the parties of this agreement; the publication of these, if published by him, to be at the expense of said Blakely, said expense to be deducted from the receipts of the sales of said music before any division of profits shall be made.</p> <p>“ 13. The said Sousa, party of the second part, agrees to transfer and deliver, and hereby does transfer to the said Blakely, party of the first part, as aforesaid, the original scores and orchestra music, or copies of the sameof all of his own musical library of band music; and such scores and music, or copies of all music of this class, composed, arranged, purchased, or in any way heretofore acquired, or to be acquired, for the use of said band, during the force of this agreement, shall be the property of the party of the first part, as a part of the permanent library of said band.</p> <p>“ 14. Should, for any reason, the said Sousa return to the government service, or resume his position as leader of the Marine Band, or other organization, or engage in other business, then this contract shall cease and determine. But the said Sousa shall not so return or accept the direction of any other organization not herein specified, or engage in any musical or other work not connected with this engagement, without the written agreement of the said David Blakely.</p> <p>“ 15. It is agreed that both parties to this agreement shall do all that within them lies to make the enterprise heroin contemplated a success, both musically and financially; and, in general, they shall both spare no pains to forward the interests of the business connected directly and indirectly therewith.</p> <p>“ 16. In addition to conducting the concerts arranged for by the business management, the said John Philip Sousa shall conduct at all expositions, watering places, or other reputable engagements arranged for by the said David Blakely.</p> <p>“ 17. It is hereby further understood and agreed that in case of and as soon as the said David Blakely shall have perfected, and there shall have been organized, a stock company for the carrying out of the agreements herein set forth, this contract may be assigned to said company by said Blakely, and in case of its acceptance by said company, and its agreement to carry out its provisions, it shall become the principal in the fulfillment of this contract in the place of the said David Blakely. But in case the said corporation shall not be formed, then it is understood and agreed that this contract shall be maintained intact by and be in full force as to both parties, as herein signed and executed.</p> <p>Referee’s Report. [197 Pa.</p> <p>“ In witness whereof, the parties hereto have signed their names and affixed their seals, in duplicate, this 27th day of June, A. D. 1892.</p> <p>“ David Blakely, [Seal.]</p> <p>“ John Philip Sousa. [Seal.]</p> <p>“ Witness:</p> <p>“ Howard Pew,</p> <p>“ Frank Christianer.”</p> <p>“EXHIBIT ‘E.’</p> <p>“ New York, Sept. 10,1896.</p> <p>“ It is hereby agreed, by the undersigned, that after the expiration of the present contract, August 1,1897, they will renew the same for three years, on a basis of an exact division of the profits of the band, after deducting expenses. It may be continued thereafter on the same basis, but only by mutual agreement, and be terminated by either party at any time, or at the end of any tour made by the band subsequent to the expiration of the new contract.</p> <p>“ The question of the division of royalties shall be an independent one, and shall be discussed and settled purely upon its merits, by amicable mutual agreement; but not before the return of Mr. Sousa from Europe; and whatever may be decided thereupon, shall have no bearing upon the arrangement hereby agreed to regarding the band.</p> <p>“ John Philip Sousa,</p> <p>“D. Blakely.”</p> <p>2. The relation of employer and employee existing under said contract of June 27,1892 (exhibit “ A ”), extended by the subsequent agreement of September 10, 1896 (exhibit “ F between Blakely and the defendant, was terminated by the death of Blakely on November 7, 1896.</p> <p>Blakely’s business qualities, ability and reputation, as well as the musical talent of Sousa, were evidently regarded by both parties as essential to the success of the enterprise, and upon this success depended a portion of the compensation which was to be paid to Sousa, to wit: his proportion of the annual net profits.</p> <p>It is well settled that in cases of employment of a servant by a master, where the personal qualities of each are relied upon and form a part of the inducement to the contract, it is dissolved by the death of either, and does not survive to the legal representatives of either unless the contract between them so expressly provides.</p> <p>In all contracts of this character there is written by the law the condition that they are subject to the continuance of the lives of the parties contracting. It would hardly be contended for a moment that if Sousa had died and Blakely had survived, Blakely could have been compelled to accept in lieu of Sousa’s services, the services of his legal representatives or of any one selected by them.</p> <p>It is equally clear that if plaintiff had declined to continue to conduct the band after Blakely’s death, she could not have been compelled so to do by Sousa, nor would she have been liable in damages for any loss accruing to him because of her refusal. The death of either party to the contract would have brought about its termination: Yerrington v. Green, 7 It. I. 589.</p> <p>The death of an employer who by contract has retained a clerk and salesman in his business for the term of three years at a salary, before the expiration of the stipulated term of service excuses the further performance of the contract; and no action can be maintained against the administrators of the employer for their refusal to employ the clerk and salesman.</p> <p>Chief Justice Ames, who delivered the opinion of the court, says (page 594) :</p> <p>“ The death of the plaintiff within the three years would certainly have been a legal excuse from the further performance of his contract, since it was an employment of such confidence and skill as that of a clerk and agent for sale. On the other hand, this employment could continue no longer than the business in which the employer was engaged and the plaintiff retained. The intestate when living could by the contract have required the services of the plaintiff in no other business than that in which he had engaged him, and with no other person than himself. It would seem, then, necessarily to follow that when the death of the employer put a stop to this business and left no legal right over it in the administrators except to close it up with the least loss to the estate of their decedent, they were by the contract bound no longer to employ the plaintiff, any more than he to serve them.</p> <p>“ The act of God had taken away the master and principal—the law had revoked his (plaintiff’s) agency and stopped the business to which alone his contract bound him—and if he would serve the administrators in winding up the estate, it must be under a new contract with them, and under renewed powers granted by them.”</p> <p>“Any other result than that this contract of service was upon the implied condition that the employer as well as the employed was to continue to live during the stipulated term of employment, would involve us in the strange conclusion that the administrators might go on with the business of their intestate, in which the plaintiff must continue with powers unrevoked by the death of his principal, or that he, with new powers from them, was bound by the contract to serve them as new masters and in a different service, and that they were bound to grant him such powers and employ him for the stipulated time in such service:” Bland’s Administrator v. Um-stead, 23 Pa. 316.</p> <p>Syl.: “All contracts are interpreted with reference to their subject-matter; and therefore a contract to perform certain duties growing out of an existing relation, ceases to be binding when the relation ceases.”</p> <p>“ Where adjoining landowners make an agreement relative to the duty of each in maintaining a partition fence, and one of them dies, his administrator is not bound by the contract for any future repairs.”</p> <p>On page 317 Mr. Justice Lowrie says: “ Neither of the parties binds his executor or administrator in the covenant; and if he had attempted it, we do not see very well how he could have succeeded. . . . Besides this, all contracts must be construed with reference to their subject-matter, and a contract defining an existing relation can have no operation when that relation ceases, for its foundation is gone.”</p> <p>In Dickinson v. Calahan’s Administrators, 19 Pa. 227, the court held: That where a lumber manufacturer agreed to sell to a lumber merchant, lumber to be sawed at his mill during five years, the lumber to be paid for as delivered, and before the expiration of the five years both parties die, the contract between the original parties was merely a personal gelation which was dissolved at the death of either party to the contract. See also Dexter v. Norton, 47 N. Y. 62, People v. Globe Mut. Ins. Co., 91 N. Y. 174, Taylor v. Caldwell, 118 E. C. L. 826 (3 B. & S. 826), Marvel v. Phillips, 162 Mass. 399, Beach on Contract, secs. 227-230, and Smith’s Master and Servant, *218. *</p> <p>In Farrow v. Wilson, L. E. 4 C. P. Cases, 744, the court said: “ Generally speaking, contracts bind the executor or administrator. though not named. Where, however, personal considerations are oí the foundation of the contract, as in cases of principal and agent and master and servant, the death of either party puts an end to the relation.”</p> <p>In Wood on Master and Servant, section 95, “the death of the servant does not deprive his executors from recovery pro rata for services rendered what they were reasonably worth; and when the master dies and the servant continues his period of service and completes it, he may recover the entire sum agreed upon, although the contract is dissolved by the death of either party.”</p> <p>In Commonwealth v. King, 4 S. & R. 109, it was held that even though an indenture of apprenticeship in terms bound the apprentice to his master, his heirs and assigns, without naming his executors, the contract could not be assigned by his executors. See also to the same effect Commonwealth v. Leeds, 1 Ashmead, 405, and Lacy v. Getman, 119 N. Y. 109.</p> <p>It is urged, however, on behalf of the plaintiff, that this contract survives to the plaintiff by its express terms; that the language, “ successors and assigns,” used in clause two in connection with the business manager of the band, Mr. Blakely, the word “successor ” in the fourth paragraph, and the language of the seventeenth paragraph, render the contract assignable even if it be treated as an employment where the personal qualities of each were relied upon at the time it was made.</p> <p>I am unable to adopt this view.</p> <p>The agreement, although very skilfully drawn, evidently was not written by a lawyer, but by a layman who, in selecting the words “successors and assigns,” endeavored to use phraseology which he thought would cover an assignment to a corporation. Nowhere in it do we find the words “executors” or “ administrators,” or any language which indicates that the contract was intended to be treated upon Blakely’s death as an asset of his estate, to vest in his legal representatives or to be assignable by them.</p> <p>In reaching this conclusion, I have considered the fact that before, and at the time» of the execution of the contract of June 27, 1892, both the defendant and Blakely contemplated and expected the formation of a corporation of the character described in clause seventeen, which was actually organized under the title the “ Blakely syndicate ” on the day when the agreement was executed. Blakely was the president of this corporation and Sousa one of its stockholders.</p> <p>On June 8, 1892, Blakely wrote Sousa as follows:</p> <p>“ Dear Sousa: I enclose herewith a draft of the proposed contract between you and me, to be succeeded by a like contract by the company which I am organizing for the purpose of succeeding me in this business, but if for any reason the company referred to should fail of organization, then this individual contract is to remain in force as specified by its terms.”</p> <p>On May 12, 1894, it was agreed in writing by Blakely and the defendant, inter alia, that Sousa should surrender his certificates of stock and the company be abandoned.</p> <p>It was evidently the intent of the parties, by the words referred to, to impart to the contract the quality of assignability, which it would not otherwise have, and at the same time to limit the right to assign to the assignee contemplated by them and particularly referred to, to wit: the corporation mentioned in clause seventeen, and to it alone.</p> <p>With the abandonment of the contemplated scheme of transfer to the said corporation, the right in Blakely to assign lapsed, and the contract became precisely what it would have been if the words “successors and assigns” had not been used at all.</p> <p>8. It is also claimed for the plaintiff that clause two vested in Mr. Blakely and his legal representatives an exclusive right of property in Sousa’s name in connection with musical organizations, and that the defendant was thereby forever deprived of the use of it in connection with any musical enterprise which he might thereafter desire to carry on for his own benefit.</p> <p>The language relied upon is the following: “And that the organization ” (see clause two) “ shall be known as Sousa’s Band, or shall have some title chosen by said Blakely with the name of Sousa as a part thereof. Said name shall thereafter be a part of the property of said band, and be owned and controlled by the business manager thereof, or his successors and assigns.”</p> <p>I have already expressed my understanding of the intent of both parties in the use of the words “successors ” or “successors and assigns,” and have found that they were meant to apply only to the corporation mentioned in clause seventeen of the contract.</p> <p>I am also of opinion that the defendant could not have sold and assigned his name to be used after the term of Sousa’s service, and independently of him, or of his work, in connection with a band with which he was not to be associated or interested in any respect, so as to confer upon Blakely and his legal representatives the exclusive right to it, claimed by plaintiff. Such an assignment could not be enforced, if for no other reason, than that it would be contrary to public policy and enable the assignee to impose upon and deceive the public, inducing attendance upon concerts by the false impression that they were to be given by Sousa, when in fact he would have nothing whatever to do with them.</p> <p>The right of one person to use the name of another, in connection with a business or a manufactured article, doubtless passes under an assignment and sale of good-will, which includes the right to the trade name. It has been repeatedly held that a trade-mark or a trade name, representing an article of commerce or a local business, is property which may be disposed of. But the name of an artist, an author, a musician, or a lawyer has never been regarded as a trade name and, as such, salable; the value of the names of such persons being entirely dependent upon their personal reputation, skill and experience, and indissolubly connected or associated with the owner. There is no property in a trade name merely as such, and separate from that which it represents ; and if what the name signifies to the public is not true, the person using it is not entitled to protection by the courts.</p> <p>In the very recent case of Mary E. Messer v. The Fadettes, 168 Mass. 140, the leader of an orchestra attempted to sell “all her right, title and interest in and to a musical organization or orchestra, together with the name by which it was designated, the 4 Fadette Ladies’ Orchestra.’ ” After the sale the orchestra was continued independently of the purchaser and assignee, who thereupon filed a bill in equity for an injunction to restrain the defendants from continuing to use the name.. This was refused, and the Supreme Court of Massachusetts, in an opinion delivered by Justice Knowi/ton, say:</p> <p>“ So far as Ethel Atwood (the assignor) had any right or ownership in the trade name which designated the organization under her management, it was personal to herself, depending upon her personal reputation and skill, and it was not assignable. . . . The case is not like those in which there is a sale of fixed property and a local business to which the name belongs and whose principal features remain unchanged after the sale. If the use by the plaintiff of the name 4 Fadette Ladies’ Orchestra ’ would have any influence beneficial to herself upon the public who wished to procure the services of such an organization, it would be only to mislead and defraud them by implying that she and such musicians as she employed were the same persons who had formerly gained a good reputation under this name. It is well settled that the courts will not enforce a claim of this kind, which contains a misrepresentation to the public.”</p> <p>In Hughes v. Statham, 4 Barnewall & Cresswell, 187, the agreement was between two attorneys, and provided for a transfer of business, together with use of name. It was held that the portion of the contract relating to the purchaser’s use of the seller’s name was void as against public policy. See to same effect, Dean v. Emerson, 102 Mass. 480, Hoxie v. Chaney, 148 Mass. 592, and In re Swezey, 62 Howard’s Pr. 215.</p> <p>Skinner v. Oakes, 10 Mo. App. 45. The court of appeals in this case say: 44 If an author were to assign to another the privilege of publishing books with his name upon their title page, or if a painter were to sell to another the privilege of placing the former’s signature on pictures painted by the latter, it cannot for a moment be supposed that any court would protect such a supposed right, even as against the original assignor. This point is absolutely clear, both upon principle and authority.”</p> <p>Hegeman v. Hegeman, 8 Daly, N. Y. 1. 44 When, however, the whole pecuniary value of a name .... is derived solely from the personal qualities of the one to whom the name belongs, such as his skill, special knowledge and experience, or from the fact that the article is produced under his personal supervision, which imparts to it a special value, then the right to the name is not transmissible: ” Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. Cas. 523; Kidd v. Johnson, 100 U. S. 617; Dixon Crucible Co. v. Guggenheim, 2 Brewster, 321.</p> <p>4. A further question is presented as to the meaning and effect of clause twelve, it being contended for the plaintiff that Blakely and his legal representatives thereby became entitled to one half of the profits of all sales and negotiations of musical compositions owned or controlled by defendant at the date of the contract, or composed or acquired by him thereafter until its termination, and that this right continues without limitation of time as to all future receipts from the sales of said musical compositions.</p> <p>For the defendant it was argued that Blakely’s right to a share of these receipts terminated with the contract at his death; that under said clause the plaintiff is entitled to no share of profits on music composed or acquired by defendant before Blakely’s death, but sold or negotiated thereafter. I find upon this point in favor of the plaintiff. The language used is as follows: “ And in case of any musical compositions by said Sousa during or prior to said period, the. profits of the sale or negotiation of any such musical compositions and all other music now controlled by the said Sousa, or composed by him, during or prior to this engagement, including his ‘Sheridan’s Ride,’ ‘Ben Hur,’ etc. (already composed), shall be divided equally between the parties to this agreement; the publication of these, if published by him, to be at the expense of said Blakely, said expense to be deducted from the receipts of the sales of said music before any division of profits shall be made.”</p> <p>The right to share the profits of sales or negotiations of the music referred to is without limitation as to duration, and upon Blakely’s death was a part of his estate and vested in his legal representative, the plaintiff; it attached to all musical compositions composed or controlled by the defendant at the date of the agreement, viz: June 27, 1892, and also to all musical compositions composed by him thereafter until the end of his employment by Blakely, which I have found terminated upon Blakely’s death; Blakely expressly assuming the risk of loss of cost of publication.</p> <p>* The twelfth clause of exhibit “ A ” was never modified, nor was the right to a share of receipts from sales of musical compositions, thereby expressly provided for, ever surrendered by Blakely, although that this was contemplated by him in May, 1896, appears from his letter of May 7, of that year.</p> <p>From the agreement of September 10, 1896 (exhibit “ F the subject of the division of royalties was expressly excluded, to be “ discussed and settled purely upon its merits, but not before the return of Mr. Sousa from Europe.”</p> <p>5. I find that under clause thirteen the right of property-in the musical compositions therein mentioned, generally described as the musical library of the band, is in the plaintiff.</p> <p>6. It is also claimed by the plaintiff that she is entitled to an account from Sousa of all transactions of the band since Mr. Blakely’s death to the present time, whether the contract (exhibit “ A ”) be found to have terminated or to be still in force, and whether it be a partnership agreement or an employment of defendant by Blakely; that the defendant having taken and used the band organized and employed by Mr. Blakely, with its assets, and continued the business, must, either as a surviving and liquidating partner or as an employee, account for the profits. It is conceded by defendant that for the period from December 26, 1896, to April 6, 1897, during which he carried out Mr. Blakely’s arranged programme, using his, Blakely’s, contracts, arrangements, band and music, he acted under the oral agreement of December, 1896, referred to in the “ Finding of Facts.” He contends, however, that he was relieved from all obligations to the plaintiff under said oral contract, by her conduct in refusing to pay him on account of his compensation, before the close of the tour, any moneys in excess of his weekly proportion of salary, viz: $116; her discharge, without his consent, of Mr. Christianer as business manager, and appointment of Mr. Strine in Christianer’s place, also without his, defendant’s, consent.</p> <p>Having found as a fact that the oral contract referred to did not include an agreement by plaintiff to pay defendant before the termination of the tour any money in excess of $116 per week, and also that the conduct of Christianer as business manager justified his discharge by plaintiff, I necessarily also find that defendant’s refusal to act further for Mrs. Blakely, and his concerts given after April 6, 1897, on his own behalf and for his own benefit, with the band hired by her, and under contracts and engagements actually made by Mr. Blakely, running to May 23,1897, constituted a violation of his duty to her, assumed by him under said oral contract; that he is accountable to her for all the moneys received by him from the band’s performances during said period, and that she is entitled to her one half of the net profits thereof, as stipulated in said oral agreement.</p> <p>I further recommend that a decree be entered by the court in the form hereto attached.</p> <p>Errors assigned were in dismissing exceptions to the report of the referee.</p>

<p>Appeal, No. 333, Jan. T., 1899, by defendant, from decree of C. P. No. 2, Pliila. Co., March T., 1897, No. 1365, dismissing exceptions to report of referee in case of Ada P. Blakely, individually and as administratrix of David Blakely, deceased, v. John Philip Sousa.</p> <p>Bill in equity for an injunction.</p> <p>Exceptions to report of referee, Charles E. Morgan, Esq.</p> <p>The facts appear by the report of Blakely v. Sousa (No. 1).</p> <p>jErrors assigned were in dismissing exceptions to referee’s report.</p>

Appeal, No. 26, Jan. T., 1900, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1891, No. 198, on verdict for plaintiff, in case of Henry Grow v. The Corporation of the Borough of Pottsville. Trespass to recover damages for injury to lots of ground by reason of the alleged negligence of defendant in permitting fire to be communicated to the lots. Before McClure, P. J., specially presiding.

<p> Bridge—Equity—Injunction—Street raihoay. </p> <p>A bridge company authorized to construct a greatly needed public bridge, and proceeding to construct the same in accordance with its charter, for the use of the general public, will not be enjoined from building the bridge because a street railway company may have inspired the formation of the bridge company for the very purpose of obtaining passage across a ravine otherwise unobtainable because of the objection of property owners. Mestrezat, J., dissents.</p>

<p>Appeal, No. 56, Jan. T., 1899, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1897, No. 143, on verdict for plaintiffs, in case of William B. Milnes, Victoria Reay, formerly Victoria Milnes, John Milnes, Isabella Snyder, formerly Isabella Milnes, Martha Bittenbender, formerly Martha Milnes, George W. Milnes, Lillian Milnes, Thomas B, Milnes and Susanna Milnes v. Samuel G. VanGilder and Mary A. Van Gilder, whose death was suggested, and Harry A. VanGilder, the next in interest substituted.</p> <p>Ejectment for a house and lot of land in Williamsport.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 425, Jan. T., 1898, by plaintiff, from judgment of C. P. Cumberland Co., Nov. T., 1898, No. 100, on case stated in suit of George Edward Mills, Assignee of C. D. Cameron, v. Ella N. Ritter.</p> <p>Case stated to determine liability on a note.</p> <p>The ease stated was as follows:</p> <p>On February 21, 1898, C. D. Cameron executed a deed of voluntary assignment for the benefit of his creditors, to George Edward Mills, the deed being recorded the same day. The said deed conveyed to the said assignee all of the real estate of the said O. D. Cameron, consisting,_ inter alia, of a house and lot situated on West Main street, in the borough of Carlisle, containing thirty feet front, more or less, on Main street, and extending at an even width 240 feet to Dickinson alley, it being the same property conveyed by Margaret Beatty et al. to C. D. Cameron.</p> <p>The said C. D. Cameron, was seized in fee of the said property at the time of his assignment, and had a wife in full life to whom he had been lawfully married and who is still living and undivorced. The wife of the assignor did not join in the deed of assignment.</p> <p>The said George Edward Mills, as assignee, accepted the trust, and entered upon the discharge of his duties, having first given bond approved by the court for the faithful discharge of his duties. An appraisement of the real and personal property of the assignor was duly made and reported to the court.</p> <p>George Edward Mills, as assignee of- the said C. D. Cameron, presented his petition to the court of common pleas of Dauphin county, setting forth the liens against the real estate of the assignor, and stating that the personal estate of the assignor was insufficient to pay his just debts and that the real estate was incumbered with liens to such an extent as to render it difficult to determine whether the same could be sold for enough to pay all of the liens against the real estate of the assignor, and that it was to the manifest interest of all parties to empower the assignee to sell- a part or all of the real estate of the assignor, and petitioning the court for an order of sale, as provided by the act of assembly of February 17, 1876 ; whereupon the court ordered the assignee to expose to public sale inter alia, the above described real estate known as the Beatty'property. The said property was thereupon duly advertised, as required by law, and exposed to public sale and after receiving several bids, was adjourned, the highest and best bid being $8,950, to August 8,1898, at which time the property was again exposed for sale and sold to Ella N. Ritter for $9,400, that sum being the highest and best price bidden for the same.</p> <p>A note payable one day after date was taken by the assignee in part payment for the sum of $1,550, which, upon demand after the same came due, the said Ella N. Ritter refused and still refuses to pay.</p> <p>At the time of the sale an agreement was entered into between the parties that the assignee should convey a good and marketable title, or the agreement to purchase should be void, and any consideration money paid on account of the same refunded.</p> <p>The said Ella N. Ritter, alleging that the dower right of the wife of the assignor is not discharged by the sale of the assignee under the acts of assembly regulating and controlling the sale of real estate by assignees for the benefit of creditors under orders of the court of common pleas authorizing the real estate to be sold for the payment of debts, and that the proceedings had in this case do not discharge the widow’s dower, says that she is not bound by the terms of the sale, and refuses to pay the amount of the note given in part payment of the purchase money.</p> <p>If the court be of the opinion that the dower interest of the wife of the said C. D. Cameron is discharged by the sale under the order of the court, by virtue of the act of assembly of February 17, 1876, or any other act of assembly regulating the sale of real estate by assignees, then judgment be entered in favor of the plaintiff and against the defendant for the sum of $1,550, otherwise judgment to be entered in favor of the defendant for costs.</p> <p>The court entered judgment for defendant on case stated.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p>

<p> Guaranty—Notice of acceptance of guaranty. </p> <p>A guarantor of future credit or advancing is entitled to notice from the party giving the credit, of his acceptance of the guaranty, inasmuch as such notice enables the guarantor to know the nature and extent of his liability, to exercise due vigilance in guarding himself against losses which might otherwise be unknown to him, and to avail himself of the appropriate means in law and equity to compel the other parties to discharge him from future responsibility.</p> <p>A blank order for goods sent out by a manufacturing corporation was filled up by a customer, a guaranty was indorsed on the order, and the order was returned to the corporation. The order contained a stipulation that the same would be considered accepted by the corporation, unless it gave notice to the contrary within thirty days of its receipt at its office. The guaranty was that if the corporation would accept the customer’s order, the performance by the latter of his part of the contract would be guaranteed. The corporation accepted and filled the order, but gave no notice of the acceptance to the guarantor. Held, that the guarantor was not liable.</p> <p> Evidence—Agreement as to depositions. </p> <p>Where an agreement is made between counsel that certain depositions not made in the suit shall be admitted, and subsequently plaintiff suffers a nonsuit, and thereafter a new suit is instituted between the same parties, the depositions cannot be admitted in the second suit, in the absence of any agreement as to their use.</p>

Appeal, No. 103, Jan. T., 1900, by defendants, from decree of C. P. Fayette Co., No. 204, in equity, overruling exceptions to referee’s report in case of Joseph Wolf v. Jasper Augustine, Ross Augustine and Jasper Augustine, executor of Daniel Augustine. Bill in equity for an account. Assumpsit on promissory notes. From the record it appeared that the two cases were referred to John B. Head, Esq., as referee. The referee filed a very lengthy report in favor of the plaintiff.

<p> Practice, Supreme Court—Appeals—Jurisdiction as to amount—Superior Court. </p> <p>The Supreme Court has no jurisdiction over an appeal where the judgment in the court below is for an amount less than $1,500, although the judgment may incidentally settle the right to future sums which will exceed $1,500.</p>

Appeal, No. 200, Jan. T., 1900, by defendant, from judgment of O. & T. Tioga Co., Sept. T., 1899, No. 1, on verdict of guilty of murder in the first degree in case of Commonwealth v. Isaac Birriolo. Indictment for murder. Before Mitchell, P. J. At the trial it appeared that on and before July 5, 1899, the prisoner lived with his wife, two daughters, Angela and Bellamont, and his son, Bibo, in Blossburg, Tioga county.

Appeal, No. 9, Oct. T., 1900, by plaintiff, from judgment of C. P. Cambria Co., Dec. T., 1898, No. 148, for defendant non obstante veredicto in case of Martin Velas v. The Patton Coal Company. Trespass for personal injuries. Before Babkeb, P. J. At the trial it appeared that plaintiff was employed as a “ runner ” of a mining machine, the knives or cutters of which were operated by electricity. Another man called a “ scraper ” was employed at the same machine.

Appeal, No. 10, Oct. T., 1900, by plaintiff, from order of C. P. Cambria Co., Dec. T., 1898, No. 282, refusing to take off nonsuit, in case of Marrotte Benignia v. Pennsylvania Railroad Company. Damages for personal injuries. Before Barker, P. J. At the trial it appeared that for three and one half years prior to September 23, 1898, plaintiff had been in the employment of the defendant as a track layer on a construction train.

Appeal, No. 83, Oct. T., 1900, by defendant, from decree of C. P. Jefferson Co., Sept. T., 1890, No. 2, on bill in equity, in case of Michael J. Hoeh v. Margaret Hoeh. Bill in equity for a reconveyance of real estate. The master, George W. Means, Esq., reported the facts to be as follows : 1.

<p>Appeal, No. 51, Oct. T., 1900, by plaintiff, from judgment of C. P. Venango Co., Nov. T., 1898, No. 78, on verdict for defendant in case of W. J. Kountz, trustee for the persons named in the last will of P. W. Kountz, v. National Transit Company.</p> <p>Ejectment for a lot of land in Oil City. Before Criswell, P. J.</p> <p>At the trial it appeared that the defendant was in possession under a color of title by reason of certain tax deeds. It was not disputed that prior to December 29, 1866, title was in W. H. Adams, who on that day conveyed the lots to J. R. Patterson & Company in fee simple. The deed did not show who composed the firm of J. R. Patterson & Company. The evidence was uncontradicted that J. R. Patterson died on January 18, 1868. On July 19, 1886, judgment was entered on a judgment note bearing date July 23, 1881, purporting to have been given by J. R. Patterson & Company to W. J. Kountz for $3,950. Plaintiff claimed under a sale on execution issued on this judgment. The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned amongst others was in giving binding instructions for defendant.</p>

Appeal, No. 18, Oct. T., 1899, by garnishee, from judgment of C. P. Westmoreland Co., Nov. T., 1897, No. 191, on case stated in suit of Carrie Fritchie v. Miller’s Pennsylvania Extract Company, with notice to the Fidelity and Casualty Company of New York, a corporation, as garnishee. Case stated to determine liability under an employer’s liability policy.

Appeal, No. 334, Jan. T., 1899, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1897, No. 391, on verdict for plaintiff, in case of Adley C. McCune v. Henry M. Lytle. Assumpsit upon an award of arbitrators. The case was tried by the court without a jury under the act of April 22, 1874. Before Rep pert, P. J. The facts sufficiently appear by the opinion of the Supreme Court. Error assigned was the judgment in favor of the plaintiff.

<p>Appeal, No. 14, May T., 1900, by defendants, from decree of C. P. Dauphin Co., No. 260, in equity, in case of Derry Council No. 40, Jr., Order United American Mechanics of Hummelstown, Pennsylvania, by its Trustees, H. Wells Buser, George Spidle and Stauffer Stephenson, v. The State Council of Pennsylvania, Junior Order United American Mechanics, and the National Council of the Junior Order United American Mechanics of the United States of North America.</p> <p>Bill in equity to restrain the collection of a per capita tax levied upon the members of an incorporated beneficial society.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>The court entered a decree enjoining the defendants from levying a per capita tax.</p> <p>Error assigned amongst others was the decree of the court.</p>

<p> Practice—Supreme Court—Paper-books—History of the case. </p> <p>A “ history of the case ” which teems with extracts from the evidence, is argumentative in character, and covers twenty-one pages when two would be sufficient, is a flagrant violation of the rules of the Supreme Court relating to paper-books.</p> <p> Corporation—Officers—Stockholder. </p> <p>Where a stockholder of a c.orporation has parted with his stock, he cannot thereafter maintain a suit against the officers of the company for an alleged illegal appropriation of the moneys of the company as salaries, where it appeal's that he had knowledge of the alleged illegal appropriation before he sold his stock.</p>

Appeal, No. 84, Oct. T., 1899, by defendant, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1896, No: 188, overruling exceptions to master’s report in case of John Kleppner v. D. P. Lemon. Exceptions to report of John S. Lambie, Esq., master. The master found the facts to be as follows: FINDINGS OF FACT. 1. The defendant had notice of the decree of the Supreme Court as made in the case within a very short time thereafter. The date when given is not clearly proven.

<p> Vendor and vendee—Marketable title—Actionfor purchase money—Ejectment. </p> <p>In an action to recover the balance of purchase money for land, which balance was agreed to be paid when the title should be thoroughly tested and proven to be good and perfect, an affidavit of defense is sufficient which alleges that the vendees brought an action of ejectment to test the title to the land, that the defendants in the ejectment suit filed a disclaimer to about one seventh of the land, that the vendees secured a verdict, which on appeal was reversed by the Supreme Court with a new venire, and that the record in the ejectment suit showed that there was nothing to prevent the defendants in that suit from showing on another trial new or additional facts wholly destructive of the title recognized by the Supreme Court.</p> <p> Vendor and vendee—Difference in quantity of land—Equity. </p> <p>Where there is a great difference between the quantity of land sold and the quantity of land to which the vendor had title, equity will relieve the vendee from payment of the whole amount of the purchase money.</p>

Appeal, No. 150, Oct. T., 1900, by plaintiff, from order of C. P. Beaver Co., June T., 1898, No. 178, refusing to take off nonsuit in case of G. W. Bruce v. Penn Bridge Company. Trespass for personal injuries.

Appeal, No. 69, Oct. T., 1900, by-plaintiff, from order of C. P. Beaver Co., Dec. T., 1897, No. 8, refusing to take off nonsuit in case of Henry A. Carnagie v. Penn Bridge Company. Trespass for personal injuries. Before Wallace P. J., specially presiding. At the trial it appeared that the plaintiff, Henry A. Carnagie, was injured on November 19, 1896, while in the employment of the defendant, in removing the false work of a bridge over the Ohio river.

Appeal, No. 2, Oct. T., 1900, by plaintiff, from judgment of C. P. Beaver Co., March T., 1898, No. 220, on verdict for defendant in case of John C. Fricker v. The Penn Bridge Company. Trespass for personal injuries. Before Miller, P. J., specially presiding. At the trial it appeared that plaintiff was employed by the defendant at its works in Beaver Falls in fitting up iron plates preparatory to their being riveted together.

<p>Appeal, No. 68, Jan. T., 1900, by defendant, from judgment of C. P. Lackawanna Co., March T., 1900, No. 256, for plaintiff, on case stated, in suit of Michael P. McCann y. Martha S. McCann.</p> <p>Case stated to determine title to real estate. Before Purdy, P. J., of the 22d judicial district, specially presiding.</p> <p>The question in controversy arose under a devise of land by Patrick McCann to his son Michael McCann. The material portions of the will of Patrick McCann were as follows:</p> <p>“ 8. I give and bequeath to my beloved wife, Margaret, the income of all my real and personal estate- that I shall die possessed of, not otherwise hereinafter disposed of, in this my last will, to have and to hold the same, in lieu of hér dower, for and during her natural life, and at her death, I give and bequeath the said property absolutely to my children, Michael, Frank, Genevieve and Hannah, and Anna Reap, deceased, share and share alike, the children of my said daughter, Anna Reap, named respectively, Michael, Joseph, Frank, Patrick and Aloysius, shall receive their mother’s interest in equal portions, to have and to hold the same to them and their heirs and assigns forever,</p> <p>“ 4. I give and bequeath to my beloved wife, Margaret, the use of my homestead on Swetland street, 14th ward, said city of Scranton, and all the household goods and furniture contained therein for and during her natural life, and at her demise, I give and bequeath the said property to my daughter, Genevieve, on her reaching the age of twenty-one years, absolutely to herself and her heirs and assigns forever.</p> <p>“5. I give and bequeath to my daughter, Genevieve, two lots of land on Swetland street, said city of Scranton, 14th ward,’ together with all improvements, also a lot of land on Pleasant street, said city, 14th ward, together with all improvements thereon, also one lot number (30) thirty in the (16th) sixteenth ward, said city, on Washington avenue, together with all improvements thereon, to have and to hold the same for and during her natural life, possession of the same not to be given her until she has reached the age of twenty-one years, and at her death, I give and bequeath the said property to her next nearest blood relations, share and share alike.</p> <p>“6. I give and bequeath to my daughter, Hannah Belle, on her reaching the ago of twenty-one years, a lot of land on Seventh street, fourteenth ward, said city of Scranton, together with all improvements thereon, also lot of land number (29) twenty-nine on Washington avenue, sixteenth ward, said city of Scranton, together with all improvements thereon, to have and to hold the same for and during her natural life, and at her death, I give and bequeath the said property to her next nearest blood relations, share and share alike.</p> <p>“ 7. I give and bequeath to my son Michael, on his reaching the age of twenty-one years, a lot of land in the eighth ward, said city of Scranton, on Lackawanna avenue, being number eighteen (18), together with all improvements thereon, also a lot of land on Jefferson avenue, ninth ward, said city, being number eighteen, together with all improvements thereon, to have and to hold the same for and during his natural life, and at his death, I give and bequeath said property to his next nearest blood relations, share and share alike.</p> <p>“ 8. I give and bequeath to my son Frank, on his reaching the age of twenty-one years, a lot of land, being number twenty, on Lackawanna avenue, in the eighth ward, said city of Scranton, together with all improvements thereon, also a lot of land on Jefferson avenue, said city, being number nineteen (19), block 73, in the ninth ward, with all improvements thereon, to have and to hold the same for and during his natural life, and at his death I give and bequeath the same to his next nearest blood relations, share and share alike.</p> <p>“9. I give and bequeath to my grandson, Michael Reap, on his reaching the age of twenty-one years, a certain lot of land with improvements thereon, situate on Marion avenue, thirteenth ward," city of Scranton, being number two, to an alley according to Mylert’s addition to said city, block 20, and map of P. M. Walsh, June 12, 1886, to have and to hold the same for and during his natural life, and at his death, I give and bequeath said lot of land to his next nearest blood relations equally.</p> <p>“ 10. I give and bequeath to my grandson, Aloysius Reap, on his reaching the age of twenty-one years, a frame house and lot in block on Marion avenue, in the thirteenth ward, said city, number three and four according to Mylert’s addition, and map of P. M. Walsh, last referred to, said lot extending back to an alley, to have and to hold the same for and during his natural life, and at his death, I give and bequeath said lot with improvements to his, my said grandson’s next nearest blood relations, share and share alike.</p> <p>“ 11. I give and bequeath to my grandson, Joseph Reap, on his reaching the age of twenty-one years, a house and lot on McCann street, in the thirteenth ward, said city, number 1462 and 1460, one thousand four hundred and sixty-two and one thousand four hundred and sixty, as per last mentioned diagram and map of P. M. Walsh, to have and to hold said lot and improvements thereon for and during his natural life, and at his death I give and bequeath said property to the next nearest blood relations of my said grandson, Joseph Reap, share and share alike.</p> <p>“ 12. I give and bequeath to my grandson, Frank Reap, on his reaching the age of twenty-one years, a house and lot, number 1458 and 1456, one thousand four hundred and fifty-eight and one thousand four hundred and fifty-six, in the thirteenth ward, on McCann street, said city of Scranton, as per said map of P. M. Walsh, to have and to hold the same for and during his natural life, and at his death I give and bequeath said lot and improvements thereon, to the next nearest blood relations of my said grandson, Frank Reap, share and share alike.</p> <p>“ 18. I give and bequeath to my grandson, Patrick Leo Reap, on his reaching the age of twenty-one years, a lot of land with improvements thereon, situate on McCann street, in the thirteenth ward, said city of Scranton, said lot is numbered on map and diagram of P. M. Walsh, C. E. above referred to, 1454 and 1452, one thousand four hundred and fifty-four and one thousand four hundred and fifty-two, to have and to hold said lot of land for and during his natural life, and at his death T give and bequeath said lot of land to the next nearest blood relations of my said grandson, Patrick, share and share alike.</p> <p>“ 14. I give and bequeath to my grandsons, Joseph, Frank and Patrick Leo Reap, a lot of land situate in the thirteenth ward, said city of Scranton, on Marion avenue, being number one on Mylort’s addition, and 606 and 604, six hundred and six and six hundred and four on said map of P. M. Walsh, to have and to hold the said lot of land in equal interests, for and during their natural life, and at their death, I give and bequeath the said lot of land to the next nearest blood relations of my said grandsons, Joseph, Frank and Patrick Reap, share and share alike.</p> <p>“ 15. In case any of my said children should die without issue, before my decease, or before reaching the age at which they would inherit under this my will, then the interest of such child shall be divided equally among my surviving children, the same rule shall also apply to my said grandchildren.</p> <p>“16. I authorize and direct my executors in their judgment, to sell at a private sale, all the real estate that I may die possessed of, not otherwise disposed of in this my last will, and give a deed in fee simple therefor, the same as I could have done if living. Also to sell all my personal property, not otherwise disposed of in this my will, at a private sale. Also to receive the income arising from my other real estate before the same shall pass into the possession of the devisees under this my will, and to invest the proceeds of said sale and said income, in good and approved real estate security for the benefit of my said wife, Margaret, and my said children and grandchildren, as provided for in item three of this my last will.</p> <p>“ 17. I give to my daughters, Hannah and Genevieve, at my decease, twenty-five shares each of the Merchants & Mechanics bank stock, of Scranton, Pennsylvania, and in case I should dispose of said stock before my death, then my said daughters are to receive the value of said stock in money.</p> <p>“18. In the event at my death, of my having no blood relatives living, I then give and bequeath all my estate, real, personal and mixed, to the trustees and their successors of the St. Patrick Orphan Asylum, of Hyde Park, city of Scranton, state of Pennsylvania, for the sole use and benefit of the said orphan asylum forever. ”</p> <p>The court entered judgment for plaintiff on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 223, Jau. T., 1899, by defendant, from judgment of C. P. Franklin Co., April T., 1898, No. 276, on verdict for plaintiff in case of Samuel Needy in trust for Mary Needy v. German American Insurance Company of New York.</p> <p>Assumpsit upon a policy of fire insurance.</p> <p>From the record it appeared that the policy of insurance upon which suit was brought contained the following clause: “ In the event of disagreement as to the amount of loss, the same shall as above provided be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expense of the appraisal and umpire.</p> <p>“ This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required. 'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.”</p> <p>The evidence showed that a disagreement arose between the parties, and that each appointed an appraiser.</p> <p>When John P. Boyle was on the stand, the following offer was made by defendant’s counsel:</p> <p>We propose to prove by this witness and others that the witness upon the stand was selected as an appraiser by the defendant; that Mr. Benjamin F. Weity was selected as the other appi’aiser by the plaintiff; that in pursuance of that selection they met together in the borough of Waynesboro to perform the duties of their appointment; that they proceeded to discuss the selection of an umpire, as provided by the terms of the policy; that the insured, Samuel Needy, acting for Mary A. Needy, interfered and prevented the selection of an umpire, thereby hindering and making it impossible to hold the appraisement as provided by the terms of the policy.</p> <p>This for the purpose of showing to the court and jury that the action was prematurely begun, in other words, that at the time this action was brought no right of action had accrued upon the policy; it appearing from the evidence that the defendant company made no question as to its liability upon this policy, except as to the amount of the loss; and it appearing ■further that a disagreement had arisen between the insured and the company as to the amount of the loss.</p> <p>Mr. Bowers: This offer of evidence is objected to (1) because the clause of submission as contained in the policy is revocable at any time by either party, and that the bringing of this suit by the plaintiff was an explicit revocation of the agreement of submission; (2) because the evidence is irrelevant and immaterial to the issue; (3) because Samuel Needy is not the plaintiff in this case nor the insured; (4) because the agreement of submission as signed was when one, William Lanahan, was selected as arbitrator on the part of the defendant company, whereas John P. Boyle was brought on as arbitrator and his name was inserted in the agreement without the consent of the insured or of Samuel Needy; (5) because the defendant company has not shown that the only question was the extent of the loss, the evidence already offered, as well as the pleadings in the case, showing conclusively that other questions were present; (6) because any prevention of the selection of an umpire, even if it had occurred, would not necessarily prevent an award, because the clause in the policy referred to only provides for the appointment of an umpire in case of the disagreement of the two appraisers.</p> <p>The Court: I am of opinion that the clause in this policy providing for the ascertainment of the amount of the loss is revocable at the pleasure of either party. The bringing suit upon the policy was an effectual revocation by the assured, and this he had a right to do at any time after the loss occurred without regard to the questions in dispute and even after two appraisers had been selected.</p> <p>Holding to this view, the objections which go to the irrelevancy of the present offer are sustained. Evidence excluded. Bill sealed.</p> <p>Verdict and judgment for plaintiff for $2,675. Defendant appealed.</p> <p>Error assigned was ruling on evidence as above.</p>

Appeal, No. 225, Jan. T., 1899, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1897, No. 96, on verdict for plaintiff in case of Margaret Henry v. City of Williamsport. Trespass for personal injuries. Before Mayer, P. J., specially presiding. At the trial it appeared that plaintiff, a woman about forty-five years of age was injured about ten o’clock at night on December 12, 1896, by falling on a defective sidewalk.

<p>Appeal, No. 53, Jan. T., 1900, by plaintiff, from decree of C. P. No. 4, Phila. Co., sustaining exceptions to referee’s report in equity in case of John Dick et al. v. Philadelphia.</p> <p>Bill in equity for an injunction. Before Arnold, P. J.</p> <p>The bill in this case was filed by certain owners of property on Woodland avenue, Philadelphia, to restrain the city of Philadelphia from issuing writs of scire facias on municipal claims for paving. It appeared that under certain ordinances passed in 1894 and 1895, Woodland avenue had been paved ■ with vitrified brick. The plaintiffs claimed that this was not an original paving for the cost of which they were liable. By an agreement of the parties the case was referred to Alexander Simpson, Jr., who reported in favor of the plaintiffs, on the ground that a plank road paving constructed by a turnpike company in 1850 was the original paving. Exceptions to the referee’s report were sustained by the court. The material averments of the bill and the facts of the case sufficiently appear by the opinion of the Supreme. Court.</p> <p>Error assigned amongst others was the decree of the court dismissing the bill.</p>

<p>Appeal, No. 196, Oct. T., 1899, by plaintiffs, from decree of C. P. No. 1, Allegheny Co., March T., 1899, No. 4, dismissing bill in equity in case of J. F. Erny, for himself and all other stockholders of The G. W. Schmidt Company, who being interested in the subject-matter of this complaint shall become parties hereto and contribute to the expenses of this suit, v. The G. W. Schmidt Company, George William Schmidt, President, William Grant Wescott, Secretary and Treasurer, George William Schmidt, Mary Theresa Führer, Mary Ann Schmidt, George W. Schmidt, Jr., and Ellen Josephine Schmidt, the directors, of said The G. W. Schmidt Company et al.</p> <p>Bill in equity for an account and a receiver. Before Collier, J.</p> <p>The court filed the following opinion:</p> <p>This is a minority stockholders’ bill, praying for an injunction, for an account and for a receiver.</p> <p>BINDINGS OE EACT.</p> <p>1. The G. W. Schmidt Company was incorporated on October 20, 1896, under the laws of Pennsylvania, with a capital stock of $150,000 divided into 1,500 shares of the par value of $100 each.</p> <p>2. The incorporators of the said company were G. W. Schmidt, Mary Theresa Führer, Mary Ann Schmidt, Geo. W. Schmidt, Jr., and Ellen Josephine Schmidt.</p> <p>8. The said incorporators, being all tbe stockholders of record, were elected directors of the company, and George W. Schmidt was elected president thereof and Wm. G. Wescott, secretary and treasurer, and have continued to be such since the incorporation.</p> <p>4. The stock of the said company was divided among the said incorporators as follows: to George W. Schmidt 1,350 shares, the same being paid for by the transfer to the corporation of the building at No. 339 Fifth avenue, Pittsburg, subject to certain mortgages against it, and the stock of liquor and whiskies in the warehouse of the said G. W. Schmidt, valued at $35,000. The balance of the stock was divided among the other incorporators and was paid for in cash.</p> <p>5. The stock of the defendant company at the time this bill was filed was held as follows :</p> <p>George W. Schmidt, Jr., held and owned 80 shares</p> <p>Mary A. Schmidt held and owned 15 shares</p> <p>Mary A. Schmidt held as pledges of G. W Schmidt..... 177 shares</p> <p>Amount carried forward . 272 shares</p> <p>Amount brought forward . 272 shares</p> <p>Ellen J. Schmidt held and owned 15 shares</p> <p>Ellen J. Schmidt held as unregistered pledges of G. W. Schmidt 222 shares</p> <p>Mary F. Führer held and owned 15 shares</p> <p>Mary F. Führer held as unregistered pledges of G. W. Schmidt..... 210 shares</p> <p>Wilhelmina Laurer held as unregistered pledges of G. W. Schmidt 15 shares</p> <p>The Iron City National Bank hold as unregistered pledges of G. W. Schmidt 50 shares</p> <p>James Callery & Company held as unregistered pledges of G. W. Schmidt 180 shares</p> <p>City Savings Bank held as unregistered pledges of G. W. Schmidt 107 shares</p> <p>George W. Schmidt was the registered owner of 1,325 shares, of which 254 shares were not held by any other party to this suit . 254 shares</p> <p>Total number of shares represented by defendants ... 1,340 shares</p> <p>John D. Brown, Esq., one o£ the plaintiffs as unregistered pledges of G. W. Schmidt, holds a certificate for .... 100 shares</p> <p>Mr. J. W. Arrott, as unregistered pledges of G. W. Schmidt, holds a certificate for 10 shares</p> <p>Mr. J. F. Erny, by transfer October 22,1898, became the registered holder of 50 shares</p> <p>Total shares held by plaintiffs, of which 110 are held by pledges of Schmidt . 160 shares</p> <p>6. The plaintiff, Mr. J. F. Erny, is and was at the time he acquired his stock in the defendant company, the cashier of the German Savings & Deposit Bank, which held a certificate for fifty shares of stock in the defendant company, standing in the name of G. W. Schmidt on the company’s books, which has been pledged by George W. Schmidt to said bank as collateral security for the payment of a certain promissory note. The note being overdue, on or about October 20, 1898, the bank, without calling on said Schmidt for more collateral, or notifying him of the time when and place where it would sell said pledged stock, or giving any notice that it proposed to sell it, at a meeting of the directors privately sold the certificate to its cashier, Erny, for $100.</p> <p>7. On November 22, 1898, the plaintiff, Erny, notified the defendant company in writing to immediately bring suit against George W. Schmidt and all the directors of defendant company to recover the moneys loaned to G. W. Schmidt. No request was made that a meeting of the shareholders be called to consider the matter. On December 3, 1898, the plaintiff filed this bill.</p> <p>8. Prior to the incorporation of the G. W. Schmidt Company, G. W. Schmidt was a large wholesale dealer in liquors, being in business at Nos. 339 and 341 Fifth avenue, Pittsburg. He had been in the liquor business since 1865, in the same city, having succeeded his father, and had acquired a large and extensive trade, extending to many parts of the United States. He had a wide reputation as a dealer in liquors. Besides a limited stock of liquors that said Schmidt had in his store on Fifth avenue, Pittsburg, at the time of the incorporation of the company, he owned a large quantity of whisky stored in various warehouses throughout the United States, comprising about 8,600 barrels, all of standard brands and some of which was very rare and valuable, and not to be obtained in the market. All of this whisky was pledged to various creditors of said George W. Schmidt, chiefly in the city of Pitts-burg, to secure his personal indebtedness, which about equaled the then value of the whisky. The' price of whisky had fallen for several years, and was then lower than it had been for a very long time. It was the expectation of said Schmidt as well as business dealers in whisky at that time, that an early and rapid enhancement in the value of whisky would shortly ensue. This whisky had been a portion of the merchandise and stock in trade which said Schmidt had sold in his business which he had been carrying on at Fifth avenue, Pittsburg. It is not unusual for wholesale dealers in whisky in Pittsburg to carry large quantities of whisky stored in bonded warehouses. The government tax had been paid on part of said whisky. Under normal conditions whisky enhances in value through age from ten to fifteen per cent.</p> <p>■ 9. It was the purpose of the incorporators of the Schmidt Company to acquire the stock in trade and good-will of George W. Schmidt in the liquor business, including the real estate known as the Schmidt Building, wherein said business was conducted, and that the company should succeed, hold and if possible perpetuate the large trade and business formally carried on by George W. Schmidt as a wholesale dealer in liquors and cigars.</p> <p>10. Shortly after the incorporation of the G. W. Schmidt Company, by a bill of sale drawn by the plaintiff, J. D. Brown, Esq., acting as attorney for the company, G. W. Schmidt sold, assigned and transferred his entire stock of bonded and tax-paid whisky to the G. W. Schmidt Company, which was accepted by the company. It was provided in the bill of sale that as part of the consideration, upon sale of any or all of the said whiskies, should the said G. W. Schmidt Company realize any sum or amount, over and above the amount of the hypothecation or loan upon the said goods, or any of them, prior to the transfer, the excess shall bo applied and paid to Mary F. Führer, Mary A. Schmidt, Ellen J. Schmidt and John D. Brown in discharge of indebtedness of said Schmidt due to said parties. The amount of said Schmidt’s indebtedness to said four last named parties was somewhat in excess of $50,000. Said Mary A. Schmidt, Mary F. Führer and Ellen J. Schmidt and John I). Brown, Esq., hold other collateral for said debts of Schmidt to them.</p> <p>11. After the sale of said whisky to the company by Schmidt, and during the period prior to bringing of the suit, the company used for the purpose of its trade about 3,000 barrels of said hypothecated whisky, redeeming the same as the demands of the customers required from the lien of the debts for which it was pledged, by paying the market value of the quantities required to the pledgees hereof. The use of the finer grades among said stock was of exceptional advantage to the company, in giving it an advantage over its competitors in the possession of rare brands.</p> <p>12. The whisky which still remained in the hands of the pledgees unsold when this suit was brought, amounting to about 5,400 barrels, has recently enhanced from twenty to sixty percent in value, and now exceeds in value the debts for which it was respectively pledged, not including the debts to John Brown, Esq., M. F. Führer, M. A. Schmidt and Ellen J. Schmidt. It is possible that the company may realize a considerable equity from the whisky.</p> <p>13. The sums of money which were procured by George W. Schmidt from the company, and which aggregated the sum of $52,213.83 were used as follows: A portion was applied by him to the payment of interest as it matured, from time to time, upon the collateral promissory notes which were held by various banks and individuals to whom the whisky which he had assigned to the company had been pledged as collateral security. A portion was used to pay insurance premiums which matured from time to time, upon policies of insurance covering the whisky so pledged and assigned to the company. A portion was applied by him to pay a portion of the principal and interest on some of his debts, for which whisky was not pledged. A portion was applied by him to pay a part of the principal of the indebtedness for which the whisky assigned to the company had been and was then pledged. About $2,880 was part of the instalment of interest on the first mortgage covering the Schmidt Building, which matured on December 1, 1898, and which had been paid by the company in January, 1897, which part, amounting to $2,880, was charged on the books to G. W. Schmidt. The Schmidt Building had been acquired by the company from George W. Schmidt in October, 1896, subject to the lien of the mortgage thereon. A portion of said sum was used by said Schmidt for various private purposes.</p> <p>The various ends to which said total sum was applied by George W. Schmidt, are duly and accurately shown and stated upon his books of account, which were kept by William G. Wescott, the secretary and treasurer of said G. W. Schmidt Company, at the office of said company.</p> <p>14. The effect of the payment by said Schmidt of part of the principal and interest of the debts for which whisky had been pledged and of the insurance premiums upon the insurance policies covering said whisky, was to save the said whisky from a forced sale by the creditors holding the same, which would have divested the company of any equitable interest which it had or might have therein, and also have deprived it of the advantages of said whisky for the purposes of its business 5 and as the company was a borrower from some of the banks which held said hypothecated whisky, said payment also had the effect of maintaining the credit of the company through the personal credit of George W. Schmidt. George W. Schmidt believed from his long personal experience in the whisky business, that the value of the whisky would greatly advance in value to the advantage of the company.</p> <p>15. The sum of money obtained by Schmidt from said Schmidt Company was procured in various amounts from time to time since the incorporation of said company, upon an open book account. There was no concealment of the fact of the payment of said moneys or the amount thereof, from the stockholders or creditors of said company, and all of the said sums so paid to said Schmidt from time to time were promptly and regularly entered upon the books of said company, and said books were at all times open to the examination and inspection of the officers and directors and all the stockholders thereof. There was no intention or purpose on the part of said G. W. Schmidt or any of the other defendants to cheat and defraud the defendant company or the said plaintiffs. All of the stockholders knew of the said payments and of the general purposes to which said moneys were actually applied by George W. Schmidt, and said payments were acquiesced in and consented to by all of the stockholders of said company, for over a period of about two years.</p> <p>16. None of the defendant directors except G. W. Schmidt had any knowledge or skill in the liquor business, and the management of the affairs of the company devolved with their consent and the consent of all the stockholders upon George W. Schmidt, who had the experience of many years in said business in Pittsburg, and had acquired a reputation for skill in the business.</p> <p>17. There is no evidence that the defendants, Ellen J. Schmidt, George W. Schmidt, Jr., Mary A. Schmidt and Mary F. Führer or either of them knew that George W. Schmidt had pledged any share of stock belonging to him to any person, ex. cepting the shares of stock which he had pledged to Ellen J. Schmidt, Mary A. Schmidt, and Mary F. Führer, respectively, and neither the said J. D. Brown, Esq., or J. W. Arrott or the German Savings & Deposit Bank from whom Erny acquired his stock or any other pledgees of stock belonging to Schmidt ever notified the Schmidt Company that they held any shares of stock in said corporation.</p> <p>18. The assets of the G. W. Schmidt Company are about as follows:</p> <p>Fifth avenue real estate $350,000.00</p> <p>Merchandise approximately $25,000 to 27.000. 00</p> <p>Office rents due..... 2,365.14</p> <p>Braddock real estate 251.18</p> <p>Book accounts, about from $16,000 to 18.000. 00</p> <p>G. W. Schmidt account . 52,213.83</p> <p>Total . $449,830.15</p> <p>That all of said assets, excepting the account due by Schmidt are fully worth the several sums stated.</p> <p>That George W. Schmidt is a bankrupt and that his estate is in course of administration in bankruptcy, and that it does not appear from the testimony what amount will be received by the G. W. Schmidt Company out of the said bankrupt estate, but it is not likely to be any great amount. The schedule filed in the bankruptcy proceedings shows that he has no property applicable to the payment of unsecured creditors.</p> <p>19. The liabilities of said G. W. Schmidt Company are at present as follows:</p> <p>Bills payable......$ 43,309.31</p> <p>First mortgage on real estate . . . 160,000.00</p> <p>Second mortgage, about .... 23,000.00</p> <p>Ground rent, capitalized . . . 1,900.00</p> <p>Ellen J. Schmidt.....1,100.82</p> <p>Unpaid invoices and bills, about . . 6,600.00</p> <p>Debts.......$235,910.13</p> <p>Capital stock ..... 150,000.00</p> <p>Total ....... $385,910.13</p> <p>Of the total amount of indebtedness of this company exclusive of mortgage and ground rent liens, the sum of $33,573.35, about three fifths thereof, is owing to several of the defendants, as follows:</p> <p>Iron City National Bank, . . . $1,800.00</p> <p>City Savings Bank,..... 5,000.00</p> <p>Amount carried forward , , $6,800.00</p> <p>Amount brought forward 6,800.00</p> <p>1,647.80 City Insurance Company</p> <p>230.00 Union Storage Company</p> <p>3,728.55 J. M. Schoonmaker</p> <p>21,266.67 Ellen J. Schmidt</p> <p>$33,673.02</p> <p>That Ellen J. Schmidt is one of the directors and a near relative of Schmidt, and has loaned the said company the said sum of $21,266.67 in various amounts and at different times in good faith, and that the other creditors above mentioned have been made defendants upon their own petitions, for the purpose of defending this suit.</p> <p>20. The withdrawal of said $52,215.63 by the said George W. Schmidt, and the appropriation of said sum by said Schmidt, has not impaired the capital stock of said company.</p> <p>21. One of the plaintiffs, J. D. Brown, Esq., was attorney for the G. W. Schmidt Company from its incorporation until the fall of 1898, and knew that George W. Schmidt was drawing money from the company from time to time, and that the same was charged to him on the books of the company, and did not actively object or interfere therewith.</p> <p>22. There is no evidence that either Ellen J. Schmidt, Mary F. Fuhrer or George W. Schmidt, Jr., knew that George W. Schmidt was insolvent during the period within which he procured from the company the various sums of money in the case.</p> <p>23. That Wm. G. Wescott, secretary and treasurer, and the directors, Ellen J. Schmidt, Mary A. Schmidt and Mary F. Fuhrer, acted in good faith in permitting G. W. Schmidt to practically manage the defendant company and its affairs, and allowing him to use the funds of the company for the purposes to which he applied them, believing it to be for the best interests of the company.</p> <p>24. G. W. Schmidt devoted himself exclusively to the management of the company’s business; the management of the company’s affairs by George W. Schmidt, including the loaning to him of the moneys he obtained for the purposes for which he used them was consented to by all the stockholders through a period of about two years.</p> <p>CONCLUSION OK LAW OK THE COURT BELOW.</p> <p>1. The mismanagement complained of, having been approved and acquiesced in or ratified by all the stockholders of the company at the time the various acts occurred, the plaintiff, Mr. Erny, who purchased his stock after the alleged management had been acquiesced in by the company through a period of almost two years, cannot complain, especially since his predecessor in title participated in the voidable acts: Church v. Citizens St. Ry. Co., 78 Fed. Repr. 526; Brown v. Duluth, M. & N. Ry. Co., 58 Fed. Repr. 889; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Callanan v. Windsor, 78 Iowa, 193; Clark v. American Coal Co., 86 Iowa, 436 ; Cook on Corporations, sec. 730; Parsons v. Hayes, 14 Abbott’s N. C. 419; Wolf v. Shortridge, 8 Dist. Repr. 1; Schilling & Schneider Brewing Co. v. Schneider, 110 Mo. 83; United Electric Securities Co. v. Louisiana Electric Co., 68 Fed. Repr. 675 ; Venner v. Atchison & S. F. R. R. Co., 28 Fed. Repr. 581; Flagler Eng. Machine Co. v. Flagler, 19 Fed. Repr. 468; Dimpfell v. Ohio & Miss. Ry. Co., 110 U. S. 209; Hawes v. Oakland, 104 U. S. 450; Felix Hadley & Co., Ltd., v. Hadley, 77 Law Times Rep. 131.</p> <p>2. The request of the plaintiff to the defendant, the G. W. Schmidt Company, to bring suit against the directors of the company, does not entitle the plaintiff to maintain his bill. In the absence of fraud, the mismanagement complained of might be ratified and approved by a majority of the stockholders.</p> <p>The plaintiff did not request that a meeting of the stockholders be convened to consider the question of bringing a suit against the directors. Since no fraud has been proven and because all of the stockholders acquiesced in tbe alleged mismanagement, and a majority of the stockholders approved it, and plaintiff made no attempt to obtain authority from the cor-' poration to bring suit, his bill must be dismissed: Cook on Corporations, sec. 646, 662, 684; Hawes v. Oakland, 104 U. S. 456; Gamble v. The Queens County Water Co., 123 N. Y. 91; Northwest Trans. Co. v. Beatty, 57 Law Times Rep. N. S. 426; Meeker v. The Winthrop Iron Co., 17 Fed. Repr. 48; Green’s Brice’s Ultra Vires, pp. 662-669; Samuel v. Holladay, 1 Woodward (U. S.), 400.</p> <p>It follows, therefore, if our conclusions of law are correct, that the plaintiff’s bill must be dismissed.</p> <p>Error assigned was the decree dismissing the bill in equity.</p>

Appeal, No. 134, Oct. T., 1900, by plaintiff, from order of O. P. Armstrong Co., March T., 1900, No. 53, refusing to take off nonsuit in case of Pittsburg Sheet Manufacturing Company v. West Penn Sheet Steel Company. Assumpsit on a contract of sale. Before Patton, P. J. The facts are fully stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was in refusing to take off nonsuit.

<p> Evidence—Parol evidence—Omission of part of contract in written instrument—Mistake. </p> <p>A written agreement may be reformed by showing a mistake by the scrivener in failing to insert therein the whole contract of the parties, but the evidence so to reform the instrument must be clear, precise and indubitable.</p> <p>Where one brother agrees in writing to sell his interest in his father’s estate clear of all incumbrances to another brother, the vendee agreeing to assume all debts due by the - estate for which the vendor is liable, the testimony of the scrivener who drew the agreement is admissible to prove that it was the intention of the parties that the vendee should assume the payment of a mortgage upon the real estate, and that reference to the mortgage had been omilted in the written agreement by mistake. In such a ease, however, .the court may properly charge that the evidence to reform the written instrument must be clear, precise and indubitable, and if the court does so charge, and the verdict goes against the vendor, he has no grounds for complaint.</p>

<p> Ejectment—Erauduleni conveyance—Husband and wife. </p> <p>A wife who had secured a divorce a mensa et thoro with a decree for alimony levied on certain real estate and purchased the same at sheriff’s sale, the record tide to which was in G., butwhieh the wife alleged really belonged to her husband and had been conveyed to G. in fraud of her rights. Held, in an action of ejectment by the wife against G., the holder of the title, that she was entitled to recover although the property had been conveyed by the husband prior to his marriage, to P., from whom the husband had taken a purchase money mortgage; it appearing that he assigned the mortgage to G., after the institution of the divorce proceedings without adequate consideration, and that subsequently P. conveyed the property to G. in satisfaction of the mortgage, there being evidence that the husband had transferred all his property beyond the reach of his wife, had confessed a fraudulent judgment to G. covering the equity in other real estate owned by him, and that the assignment of the mortgage and the conveyance by P. to G. was part of the fraudulent scheme to strip himself of his property of which G. was fully cognizant.</p> <p>Mitchell and Brown, JJ., dissent.</p>

<p> Tenants in common.—Purchase of outstanding title. </p> <p>On a bill by the holder of an adverse title against A, B and C, and D their grantee as tenants in common, the court held the title of A, B and C as invalid and their deed to D void, as between themselves as well as against the adverse claimant, but decreed cei'taiu payments to be made by A, B and 0 to D on account of his purchase money. Pending this litigation A, B and C acquired an outstanding title which the court held good, but did not admit D to share. The parties, however, by their conduct for eight years ignored the decree in this respect and treated D as a co-tenant. On a bill then filed by D for a conveyance of his proportionate interest in the after-acquired title, held, that the others were estopped from setting up the decree as a defense.</p> <p>It was competent for the parties to set aside the decree of the court as between themselves, and their conduct amounted to an agreement to do so. It was not required to bo in writing, and the statute of frauds has no applicability. Title did not pass to D by virtue o£ such agreement; but the decree being out of the way title passed under the rule that an outstanding title acquired by a tenant in common inures to the benefit of all his co-tenants.</p>

Appeal, No. 130, Oct. T., 1900, by defendants, from decree of C. P. Jefferson Co., May T., 1891, No. 2, on bill in equity in case of Theophilus Pantall v. D. H. McIntyre et al. Bill in equity for a dissolution of partnership, for a receiver and for an accounting as between the partners.

Appeals, Nos. 40, 41, 42 and 43, by-defendants, from judgment of C. P. Venango Co., Jan. T., 1899, Nos. 35, 36, 37 and 38, on verdict for plaintiff in case of S. H. Simpson v. Emma J. Meyers et al. Ejectment for an undivided one-third interest in land in Cornplanter township. Before Criswell, P. J. At the trial the defendant claimed title under a tax sale.

<p> Waters—Rivers—Boundary—Title to soil between high and low watermark. , </p> <p>, In Pennsylvania wherever a stream is navigable and it is made the boundary of a grant by the state, the title passes to low watermark with the qualification that between high and low watermark the grantee may use the land for his own private purposes, provided that in such use of it, he does not interfere with the public rights of navigation, fishery and improvement of the stream.</p> <p> Waters—Definition of alluvium. </p> <p>Alluvium is a term applied to those accumulations of sand, earth and loose stones or gravel brought down by rivers, which when spread out to any extent, form what is called alluvial land. It is the addition made to land by the washing of the seas or rivers; and its characteristic is its imperceptible increase, so that it cannot be perceived how much is added in each moment of time.</p> <p>A riparian owner has the right to remove and sell sand which has been deposited as an alluvium between high and low watermark on the bank of a navigable stream, provided that he does not interfere with any public right of navigation, fishery or improvement; and if a railroad company, for its own purposes and not for the improvement of the river, erects a structure on the opposite bank in such a way that the direction and flow of the current are changed, and the sand bank is swept away and future alluvium prevented, the riparian owner may in an action of trespass against the railroad company recover damages both for the sand bank swept away, and for the loss of future alluvium.</p>

<p>Appeal, No. 236, Jan. T., 1900, by-defendant, from judgment of O. & T. Schuylkill Co., Nov. T., 1899, No. 1147, on verdict of guilty of murder in the first degree in case of Commonwealth v. Rollis Bubnis.</p> <p>Indictment for murder.</p> <p>At the trial the evidence tended to show that on Sunday, September 24, 1899, at about 7 o’clock in the evening, Joseph Rutskowski was struck on the head by an ax, and that the blow was struck by the prisoner. It appeared that the prisoner was identified with a faction known as the Propreonokus, and that the deceased was a member of a hostile faction known as the Zukus. Eleven members of the Propreonokus, including the prisoner, were jointly indicted for the crime. The evidence showed that immediately before the killing, these men, in the presence and the hearing of each other and of the prisoner, had made threats against the deceased. About an hour before the killing, the prisoner was seen to have an ax in his possession, which he at first attempted to conceal under his coat, but subsequently flourished in a violent manner. When Dr. Davis was on the stand he was asked this question:</p> <p>“ Q. State whether or not a hatchet or an ax would produce such a wound as you discovered on this man’s head.”</p> <p>Objected to because it suggests to the witness an instrument, which is highly improper and incompetent. Admitted. Defendant excepts. Bill sealed. [2]</p> <p>Frank Douches, on cross-examination, was asked this question : “ Do you know that the Stenkiewiczs who were boarding at Rutskowski’s left on account of a difficulty that you had with Rutslcowski ? ”</p> <p>Mr. Bechtel: Objected to as irrelevant, immaterial and incompetent, and not cross-examination.</p> <p>The Court: As the question stands now it is not cross-examination, and we sustain the objection. Defendant excepts. Bill sealed. [8]</p> <p>“ Q. Did not Rutslcowski accuse you, in the presence of three men, of a heinous offense against his wife ? ”</p> <p>Mr. Bechtel: Objected to as irrelevant, incompetent, immaterial and not cross-examination.</p> <p>The Court: The objection is sustained to the question in the form in which it is put. Defendant excepts. Bill sealed. [4]</p> <p>“ Q. Are you not going to get married to Mrs. Rutskowski? ”</p> <p>Mr. Bechtel: Objected to as incompetent, irrelevant and immaterial.</p> <p>The Court: We sustain the objection. We do not see that it is material whether or not he is going to marry the widow. We know of no law prohibiting it. Defendant excepts. Bill sealed. [5]</p> <p>Counsel for the commonwealth asked the witness:</p> <p>“ Q. Did you hear Andrew Coras say anything just before the blow was struck, and whilst he was in company with these two defendants ? ”</p> <p>Mr. Seltzer: Objected to as incompetent and immaterial what Andrew Coras said; that he is not on trial here, and these defendants are not responsible for the declarations of Andrew Coras. Furthermore, the witness has already declared he heard nothing; that he heard talking among themselves, but did not hear it; they did not talk loud enough. They cannot contradict their own witness.</p> <p>The Court: We permit the question. Defendants except. Bill sealed. [6]</p> <p>Eva Sincavago was asked under objection: “ State whether or not you heard Anthony Machulis say anything in reference to the Zulcus ? ’’ Defendant excepts. Bill sealed. [7]</p> <p>The witness Majika was asked this question: “ Every witness in this case that has testified at all to the killing, or the time when the blow was struck, has established the time as between 7 and 8 o’clock. Do you now swear to this jury that you were within thirty or forty feet of where a man was struck down in cold blood, and you did not know anything of it until the next day when you were coming home from work ? ” Question allowed. [9]</p> <p>Frank Sliappell, was asked this question: “ Do you not know it to be a fact that this piece of testimony that you have here given in court is false, and that it was given for the express purpose of counteracting the fact testified to by Mrs. Jane Grow, that the party that struck the match had a white hat, and for no other purpose whatever ? ” Question allowed. [10]</p> <p>The court charged in part as follows.</p> <p>[He (Machulis) heard him (referring to Hollis Bubnis) talk to Frank Wylonis, saying that they would make sausage of him.] [11]</p> <p>[That during the 24th of September threats were made by Rollis and others in the hearing and presence of Matt as to the killing of Zukus, as to making bologna, as to filling the streets with bologna, and threats as to meat being cheap, and other threats of the same or a similar character made by these defendants or their companions, in the presence and hearing of these defendants, all of whom were together that afternoon from the time they left Benders until they reached Blazes later in the day.] [13]</p> <p>[That the next day when Rollis was arrested by the constable and charged with the crime, he manifested no surprise and did not deny the charge; and again at the Shenandoah lockup spoke of the crime without denying or disclaiming any connection with or responsibility for it; and from' these alleged facts the commonwealth’s officers claim that Rollis Bubnis struck the blow, and that Matt aided and counseled by his presence and advice before the blow was struck, and that therefore he and Matt are equally guilty as if he had struck the blow.] [14]</p> <p>The district attorney in his speech to the jury used the following language:</p> <p>“ I say now when I debate the first proposition in this case, that Rollis Bubnis is guilty of murder in the first degree, and I shall prove it to you beyond any peradventure of a doubt.”</p> <p>Mr. Seltzer: The district attorney having stated to the jury as a positive declaration that Rollis Bubnis is guilty of murder in the first degree, I now move that the jury be discharged.</p> <p>The Court: Which motion is refused.</p> <p>Defendant excepts. Bill sealed. [15]</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>JErrors assigned were (1) that the judgment and sentence should be arrested, and the verdict set aside for want of jurisdiction as no venue of the crime charged bad been proved; (2-7, 9, 10) rulings on evidence as above; (11-14) portions of charge as above; (15) ruling as to the district attorney’s speech; (17) that a verdict of murder in the first degree was not warranted; (18) that the charge of the court was inadequate, and too unfavorable to defendant.</p>

<p> Taxation—Capital stock of corporation—Coal on hand. </p> <p>The value of coal which a Pennsylvania mining corporation has on hand in other states, and which it had shipped to such other states for the purpose of sale, and not to serve any permanent corporate purpose, cannot be deducted in determining the value of the capital stock of such corporation for the purpose of taxation.</p> <p> Taxation—Capital stock—Mortgages on foreign property. </p> <p>Unpaid purchase money due to a Pennsylvania corporation for land situated in another state, and sold by the corporation, is to be considered in ascertaining the value of the capital stock of the corporation for the purpose of taxation, although the corporation has taken a mortgage on the property to secure the purchase money.</p>

Appeal, No. 13, Oct. T., 1900, by Lucinda H. Walters, from judgment of Superior Court of Pennsylvania, April Term, 1899, No. 15, reversing tlie decree of the Orphans’ Court of Westmoreland Co., Nov. T., 1895, No. 18, confirming the report of the auditor in the estate of John Walters, deceased. Appeal from Superior Court. Reported in 11 Pa. Superior Ct. 308.

<p>Appeal, No. 122, Oct. T., 1900, by-defendant, from decree'of O. P. Clarion Co., Nov. T., 1898, No. 2, on.bill in equity in case of John Fertig and W. C. Warner, trustees for the National Oil Company, v. S. S. Henne.</p> <p>Bill in equity to compel the satisfaction of a mortgage.</p> <p>Clabk, P. J., found the facts as follows:</p> <p>1. On and prior to May 25, 1898, J. A. Cadwallader, S. S. Henne, C. B. Henne, John A. Henne and H. S. Henne were joint owners of the leasehold properties in question.</p> <p>On August 4, 1896, J. A. Cadwallader executed the mortgage hereinafter referred to on his undivided one third in said leasehold properties.</p> <p>On May 25,1898, the joint owners aforesaid in consideration of $20,000, sold the said leasehold properties to John Fertig and W. C. Warner, trustees for the National Oil Company, and executed an assignment of lease to the said trustees.</p> <p>2. That J. A. Cadwallader, above named, conducted the negotiations in relation to and effected the sale of the leasehold properties aforesaid; and none of J. A. Cadwallader’s joint owners, particularly S. S. Henne, spoke to plaintiffs in regard to said sale, but- acted solely and alone through the said J, A. Cadwallader, .</p> <p>That the $20,000 purchase money was paid by check of John Fertig, treasurer of the National Oil Company, on the Commercial Bank of Titusville, said check having been made payable to “ J. A. Cadwallader and S. S. Henne & Co.,” and was indorsed as shown by the evidence, thus, “ J. A. Cadwallader and S. S. Henne & Co.,” by “ J. A. Cadwallader,” and “ J. A. Cadwallader and S. S. Henne & Co., by S. S. Henne.”</p> <p>That before paying the said check the said bank required the check to bo indorsed in the name of J. A. Cadwallader and S. S. Henne & Co., by S. S. Henne, as aforesaid; that after the said check was so indorsed it was paid by said bank to J. A. Cadwallader. The latter drew checks as follows: To S. S. Henne, $6,666.66; to C. B. Henne, $3,338.33; to H. S. Henne, $1,666.67, and to John A. Henne, $1,666.67.</p> <p>Each of the said part owners received the several sums aforesaid as their interests in the sale of said property and availed themselves of the said J. A. Cadwallader’s acts and declarations. That the defendant since learning of the representations of J. A. Cadwallader has never offered to return the benefits received by him in said transaction.</p> <p>That J. A. Cadwallader acted as the agent of S. S. Henne in negotiating and consummating said sale.</p> <p>That $6,000 of the $6,666.66 retained by J. A. Cadwallader was paid by him at the instance and request of S. S. Henne to the Commercial Bank of Titusville to lift two notes aggregating $6,000, secured by the mortgage aforesaid.</p> <p>3. That $20,000 was the full value of the said leaseholds so sold to the National Oil Company and no allowance or reduction was made or considered by the parties in fixing the purchase price for or by reason of said mortgage.</p> <p>That the joint conveyance of the leaseholds to the trustees of the National Oil Company by the owners thereof, does not mention, except or reserve the interest of S. S. Henne in the said mortgage, nor was anything mentioned in said conveyance making it subject to the lien of or to the payment of said mortgage.</p> <p>4. That at the time of the consummation of the sale and before the delivery of the $20,000 check, the said J. A. Cadwallader, as agent of S. S, Henne, assured John Fertig, one of the trustees of plaintiff company, that the said mortgage would be satisfied of record.</p> <p>That the said John Fertig, trustee as aforesaid, relied on this promise and would not have paid the $20,000, except upon the belief that said promise would be fulfilled.</p> <p>5. That the reason said Cadwallader assured John Fertig of plaintiff company that the mortgage would be satisfied of record appears in the testimony of J. A. Cadwallader on file in this case, and from which we find that the said Cadwallader was given to understand by S. S. Henne, his joint owner, that he would have said mortgage satisfied; and that S. S. Henne told said Cadwallader either when S. S. Henne indorsed the $20,000 check or at the time he was paid his share of the same by Cadwallader that he would have the mortgage satisfied.</p> <p>6. That all of the indebtedness remaining unpaid at the date of the sale to the National Oil Company secured by said mortgage, to wit: $7,500, was paid by J. A. Cadwallader out of the $6,666.66 received by him from said sale, except a promissory note dated April 25, 1898, executed by J. A. Cadwallader and defendant and held by C. M. Loomis for the sum of $1,500. That this note of $1,500 was the last of a “ series ” of renewals of a note executed by said Henne and Cadwallader, dated April 24, 1896, for the sum of $5,000 and given to the said cashier.</p> <p>On October 8, 1898, C. B. Henne, a brother of and former cotenant with defendant in the said leasehold properties, in company with M. J. Heywang, called at the bank of the Oil City Trust Company and stated they wished to pay this note and have it assigned to C. B. Henne, which was accordingly done.</p> <p>That the check of $20,000 was drawn in the manner aforesaid by John Fertig for the purpose of placing the entire sum under the control of S. S. Henne.</p> <p>That S. S. Henne’s indorsing said check and requiring J. A. Cadwallader to pay the two notes, on which S. S. Henne was indorser in the Commercial Bank of Titusville, Pa., one for $5,000 and one for $1,000, both of which were paid May 26, 1898, by said Cadwallader by checks, one of $1,001.67 for the latter note and interest, and one of $4,975 for the former note less a rebate of $25.00 allowed for payment of n.ote before the maturity thereof, all of which was paid out of the $6,666.66 received by Cadwallader from said sale, and allowing said Cadwallader to retain $689.99 out of the purchase money, is strong circumstantial evidence that the said S. S. Henne understood said mortgage was to be satisfied, and that he looked to J. A. Cadwallader personally as sufficient security for payment of the remaining $1,500 note.</p> <p>7. That J. A. Cadwallader received as much of the $20,000 for his one-third interest in the said leasehold estates as S. S. Henne did, notwithstanding S. S. Henne held a mortgage against Cadwallader’s interest for $1,500. If defendant’s contention is true, Cadwallader received $8,166.66 for one-third interest, whereas Henne received $6,666.66 for his one third thereof.</p> <p>8. That J. A. Cadwallader at the date of the sale to the National Oil Company was solvent, but at the date of the conversation in which S. S. Henne, in reply to J. A. Cadwallader’s request, refused to satisfy the mortgage, the said J. A. Cadwallader had presented his petition as a bankrupt.</p> <p>9. The facts (a) that the conveyance does not mention the mortgage; (5) that there was no statement made that the leaseholds were sold subject to the mortgage; (c) that J. A. Cadwallader received the same sum for his one third that the defendant did; (d) that the two notes on which S. S. Henne was indorser for said Cadwallader in the Commercial Bank of Titus-ville, Pa., calling in all for the payment of $6,000 (for which the said mortgage was given to secure him, $. S. Henne, against any loss he might sustain by reason of his indorsements thereof), was required by the defendant to be paid by Cadwallader as aforesaid, the defendant then allowing Cadwallader to retain out of his share of the said purchase money $689.99, is strong corroborating proof of the evidence of J. A. Cadwallader and John Fertig, trustee aforesaid, that the mortgage was to be satisfied.</p> <p>10. The leasehold mortgage executed by J. A. Cadwallader and given to S. S. Henne was given to secure him, S. S. Henne, against any loss he might sustain by reason of his indorsements or of his becoming surety on certain notes of said Cadwallader, therein mentioned or in the renewals thereof. It was given for his, Henne’s, personal indemnity only, and not to provide a fund for the payment of the notes therein mentioned or of such as might be renewed in whole or in part from time to time. In effect, it was to save S. S. Henne harmless from a contingent liability or-loss.</p> <p>11. That the representations to John Fertig that the mortgage would be satisfied, at and before the delivery of the conveyance and assignment, to wit: May 25,1898, were made some months before the $1,500 note became due at the Oil City Trust Company. That J. A. Cadwallader and S. S. Henne, principal and surety, were solvent and able to pay this note at that date. That there was no liability on the mortgage at that date.</p> <p>12. That the $1,500 note aforesaid is a promissory note, with warrant of attorney annexed thereto to confess judgment thereon, bearing date April 25,1898, made by the said J. A. Cadwallader and the said S. S. Henne, who is surety therein for said Cadwallader, payable- to the order of C. M- Loomis, cashier of the Oil City Trust Company, which bore interest from August 24, 1898, which note was the last of “ series ” of renewals of the indebtedness remaining unpaid on the note to the said Loomis, cashier, dated April 24, 1896, for the sum of $5,000, described in said mortgage.</p> <p>That on October 8, 1898, the said $1,500 judgment note was past due. Repeated demands had been made of S. S. Henne, for payment thereof. At the latter date, C. B. Henne, his brother, and M. J. Heywang, his counsel, went to the Oil City Trust Company, paid the said judgment note and had it assigned to C. B. Henne, who was a joint grantor in the conveyance to the National Oil Company.</p> <p>On that date, October 3, 1898, S. S. Henne withdrew $2,000 from his bank account. It is a significant fact that C. B. Henne and Mr. Heywang, the defendant’s counsel, did go to the bank and pay and take an assignment of said judgment note to C. B. Henne without recourse to the holder, C. M. Loomis, cashier, etc. It is fair to infer that such payment and transfer was done by the direction or at the instigation of S. S. Henne or through his counsel; most certainly it was not done voluntarily by C. B. Henne.</p> <p>13. The averment in plaintiff’s bill, “ plaintiffs further aver that one of the notes secured by said mortgage is yet unpaid amounting to about $1,500 ; and that S. S. Henne is endeavoring to assign said mortgage or a part thereof, ” was made under the belief that the note was unpaid in the hands of the Oil City Trust Company.</p> <p>There is no evidence to show that the plaintiff knew at the time of the filing his bill that the note had been paid and assigned to C. B. Henne. This he learned from the testimony of witnesses in the case.</p> <p>14. The answer sets up as new and independent matter, not responsive to the bill, viz: “ that this note and the indebtedness represented and covered thereby is now, as I am informed and believe, held and owned by George W. MacMullen, of Pitts-burg, Pa., for which reason he claims the benefit of the security of the said mortgage. This is denied by the general replication filed in the case. No evidence had been taken to sustain these averments.</p> <p>These facts hence cannot be found. It is a general and loose averment. There is no evidence to show when he got possession of it, whether he paid anything for it, nor is there any evidence to show that he is a bona fide holder thereof for value.</p> <p>15. C. B. Henne took the note after maturity and with notice of the sale of the mortgaged premises to the National Oil Company, and with knowledge that the conveyance to said company did not mention, except or reserve the interest of S. S. Henne in the mortgage, and after J. A. Cadwallader, the agent of S. S. Henne, represented the mortgage would be satisfied. The evidence leaves the note in C. B. Henne’s hands to this day.</p> <p>16. S. S. Henne alleges the $1,500 note is unpaid. He makes no claim that he is damnified or the conditions of the mortgage broken. It is at least a suspicious fact that lie makes no claim to rights as mortgagee.</p> <p>17. That George W. MacMullen is not demanding subrogation in this suit. Neither has S. S. Henne" shown any loss or damage by reason of his being a surety in the judgment note.</p> <p>18. That S. S. Henne is solvent, and the holders of the judgment note have failed to enter judgment and to enforce the collection of the same against the said J. A. Cadwallader or the said S. S. Henne, the makers thereof.</p> <p>19. There is no evidence to show when George W. Mac-Mullen got possession of the note except that at the date of the filing of the answer it is alleged it was in his hands.</p> <p>The conveyance of the leaseholds was recorded in the proper office prior to that, and hence he had notice that when the leaseholds were conveyed the mortgage was also assigned.</p> <p>20. That Samuel Grumbine, Esq., acted as attorney for J. A. Cadwallader, S. S. Henne and the vendors of said leaseholds, and not as attorney for the plaintiffs, in preparing the transfer or assignment, and there is no evidence that the plaintiffs’ trustees or either of them were informed at any time that the assignment of lease was not to affect the interest of S. S. Henne as holder of said mortgage.</p> <p>21. The holder of the said judgment note has failed to pursue his remedy thereon against the makers thereof to insolvency.</p> <p>On the facts as found, the court entered a decree enjoining the defendant from assigning the mortgage and ordering him to satisfy it.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 86, Oct. T., 1900, by plaintiff, from judgment of C. P. Jefferson Co., Nov. T., 1899, No. 50, on verdict for defendant in case of Commonwealth ex rel. v. The Punxsutawney Water Company. Held: that proposition was not accepted. The original intention, as appears by the testimony, was to purchase outright, and consolidate the Punxsutawney corporation with the Lindsey Water Company.

<p> Tax sale—Abandonment of purchase by county. </p> <p>Where a county purchases land at a tax sale, and after the purchase, the land is not charged by the commissioners with county and road taxes in the manner provided by section 5 of the Act of March 13, 1815, but it is assessed as before, and taxes are levied from year to year, and the land is again sold for taxes and purchased by a private individual, the county will be deemed by such assessments and sale to have abandoned its purchase at the earlier sale.</p> <p> Tax sale—Identity of land—Assessments—Province of court and jury. </p> <p>Where land is purchased by a county, and subsequently assessments are made, followed by a second tax sale, the question whether the assessments were on the land which was bought by the county at the first sale, is a question of fact for the jury.</p>

Appeal, No. 49, Oct T., 1900, by Charles C. Campbell as a physician and surgeon, from order of C. P. Mercer Co., Jan. T., 1900, No. 36,… Held: “ If an entry of satisfaction be made upon the record by mistake, by fraud, or by falsely personating the plaintiff, the court where the record is has an undoubted right upon proof of the facts, on notice to the parties, to strike off such improper entry, and such decision is not subject to review on the writ of error.” In Sweeny v.…

Appeal, No. 35, Oct. T., 1900, by plaintiff, from order of C. P. Washington Co., Feb. T., 1899, No. 242, refusing to take off nonsuit, in case of John II. Little v. Robert W. Hazlett, Mary E. Brown, Margaret Grayson and Samuel Hazlett, partners, doing business under the name and style of Samuel Hazlett. Assumpsit on certificate of deposit.

Appeal, No. 48, Oct. T., 1900, by defendant, from decree of C. P. Beaver Co., June T., 1896, ■ No. 2, on bill in equity in case of James L. Orr v. John li. Peters and Frank E. Simpson. Bill in equity for an injunction to restrain assignment of mortgage and to postpone mortgage to complainant’s judgment. Wilson, P. J., found the facts to be as follows: FINDINGS OF FACT. 1. In the year 1880 the defendant, John Ii.

<p>Appeal, No. 149, Oct. T., 1900, by plaintiffs, from judgment of C. P. Washington Co., Feb. T., 1900, No. 144, for defendants on case tried before the court without a jury, in suit of S. M. Brinton, Guardian of Stella and Elsie McGahey, George C. McPeake, Guardian of Arthur Mc-Gahey, v. S. A. Martin.</p> <p>Ejectment for land in North Strabane township.</p> <p>The case was tried by the court without a jury, under the act of April 22, 1874.</p> <p>McIlvaine, P. J., filed the following opinion:</p> <p>FACTS FOUND.</p> <p>The undisputed facts of this case are found to be as follows, to wit:</p> <p>1. The plaintiffs, as well as the defendant in this case, claim title under Thomas McGahey, Sr., who owned in fee simple the land in dispute at the date of his death.</p> <p>2. Thomas McGahey, Sr., died November 14, 1884, leaving a will dated October 29, 1884, which was duly probated on December 10, 1884, and which will be found of record in the office of the register of wills in will book No. 12, at page 10, and which is in the words following, to wit:</p> <p>“ Last will and testament of Thomas McGahey, of N. Strabane tp., Washington Co., Pa.</p> <p>“ Know all men by these presents that I, Thos. McGahey of N. Strabane tp., Washington Co., Pa., farmer, being in ill health and of sound and disposing mind and memory, do mate and publish this my last will and testament, hereby revoking all former wills by me at any time heretofore made. After the payment of all my just debts and funeral expenses I give and bequeath as follows:</p> <p>“ 1st. To my wife her legal dower in the farm on which I now reside. All the household goods and furniture, except as bequeathed below to my daughters, one room, her choice, in the house I now occupy, one cow, and one hundred ($100) dollars annually from each of my daughters.</p> <p>“ 2nd. To my daughters Lizzie and Maggie, the sixty acres of land, more or less, purchased from Vm. Donaldson; also the ninety acres of land, more or less, purchased from John B. Weaver; also two thousand ($2,000) dollars; also two horses and fifty ewes, to be divided equally, subject to the payment of one hundred ($100) dollars annually by each of my daughters to my wife (as above devised), one cow to each, also one bed, bedding and bedstead each.</p> <p>“ 3rd. To my son Thomas the farm on which I now live, consisting of one hundred and ten acres, more or less, subject to my wife’s legal dower (as bequeathed above). This farm to be held by him for his own use during his life; at his death, the same to descend to his children, or in default of children, to his legal heirs. Also all my farming implements and utensils, including spring wagon, buggy and sleigh, farm harness and double set of buggy harness.</p> <p>“ 4th. If any of my children should die without lawful issue the share or shares of such shall be equally divided amongst my then surviving children.</p> <p>“ 5th. I direct the remainder of my personal estate, after having sold all horses, cattle, sheep, hogs, etc., not above bequeathed, to be equally distributed to my wife and three children, share and share alike.</p> <p>“ Lastly, I do nominate and appoint my three children, viz: Thos., Lizzie and Maggie, executors of this my last will and testament.</p> <p>“ In witness whereof I have hereunto set my hand and seal this 20th day of October in the year of our Lord one thousand eight hundred and eighty-four (1884).”</p> <p>3. Thomas McGahey, Jr., the person named in the third parágraph of the will of Thomas McGahey, Sr., died February 8, 1899, intestate, leaving to survive him a widow, Minnie Mc-Gahey, two daughters, Stella McGahey and Elsie McGahey, and one son, Arthur McGahey, the ward plaintiffs in this case.</p> <p>4. Stella McGahey and Elsie McGahey were bom before the testator wrote his will, and Arthur McGahey was born not only after he wrote his will but after the date of his death.</p> <p>5. The land in dispute, being the farm mentioned in the third paragraph of the will, was sold by the administrators of the estate of Thomas McGahey, Jr., for the payment of his debts, to the defendant Samuel A. Martin, who has paid the purchase .money. This sale was regularly made under an order properly issued out of the orphans’ court of this county, and was duly confirmed at No. 15, May term, 1899, of this court, and the defendant was in possession under his deed of conveyance from the administrator at or before the issuance of the writ in this case. The administrators of the estate of Thomas McGahey, Jr., were S. W. McCurdy and C. E. Carothers, and letters of administration were duly issued to them before said order of sale was obtained by them from the orphans’ court.</p> <p>CONCLUSIONS OK LAW.</p> <p>1. Under the facts found we are of opinion that the title to the land hi dispute is in the defendant, and that the plaintiffs are not entitled to recover.</p> <p>In support of this conclusion we submit these considerations :</p> <p>It is apparent that the testator, Thomas McGahey, Sr., did not intend that the children of Thomas McGahey, Jr., should take the land in dispute from him, the 'testator, as purchasers. The language of the third paragraph of his will shows his intention to be to give the land to his son, who could use it for his life, when it was to descend from Thomas McGahey, Jr., to his children, or in default of children, to his legal heirs. The testator did not give the land to the children of Thomas Mc-Gahey, Jr., as remainder-men, and if there were no children living at the death of Thomas McGahey, Jr., then to his legal heirs as remainder-men in place of these children ; but on the contrary he gave the land to Thomas McGahey, Jr., with this implied condition that he was not to sell, but keep it and use it during his life so that it could descend to his children or (oilier) legal heirs if he had no children.</p> <p>Where the intention of the testator is that the second taker shall take not from him, but from the first taker, then the words “children,” “issue,” etc., as well as “heirs” become a word of limitation, and the rule in Shelley’s Case is applicable.</p> <p>In Potts’s Appeal, 30 Pa. 170, the rule is stated in this way: “ Where it appears that the issue is to take by inheritance from the first devisee, the inheritable estate vests as such in the devisee. Any form of words sufficient to show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker, will enlarge the estate for life of the first taker to an estate tail by implication.”</p> <p>In Yarnell’s Appeal, 70 Pa. 341, Mr. Justice Agknew says: “Each of the words, ‘heirs,’ ‘heirs of the body,’ ‘issue,’ ‘children,’ ‘ sons ’ and similar expressions, has been held to be a word of limitation or a word of purchase as the intent of the testator in the particular will has been found to warrant it.”</p> <p>In Haldeman v. Haldemau, 40 Pa. 35, Mr. Justice Strong says: “ Whenever, therefore, in the devise of a remainder to the child or children of the first taker, it is made clearly to appear that those words are used in the sense of ‘issue’ or ‘heirs of the body,’ they are to be treated as describing lineal succession to an entail. Cases are numerous of devises to one for life or for life only, with the remainder to his ‘ son ’ or ‘ first son ’ or eldest son in the singular number, all properly words of purchase, with a devise over in default of issue of the first taker, in which he has been held to take an estate tail in order to let in other sons who, without such construction, would be excluded.”</p> <p>If Thomas McGahey, Sr., in writing his will had in mind when he used the word “ children ” in the third paragraph of his will, Stella McGahey and Elsie McGahey, children of Thomas McGahey, Jr., then born, and he intended to devise an estate in remainder to them individually, what is to become of the claim of Arthur McGahey, the other child, born after the death of the testator. To let him in, the word “ children ” must not be taken as descriptive of certain individuals living when the testator wrote his will or when he died, but must be “ elevated into a generic term embracing the whole line of lineal succession and, therefore, a word of limitation.”</p> <p>In Potts v. Kline, 174 Pa. 515, the court says, using the language of the learned judge who wrote the opinion in the court below: “ The word ‘ descend ’ ordinarily denotes the vesting of an estate, by operation of law, in the heirs immediately upon the death of the ancestor, and its use is referred to in Haldeman v. Haldeman, 40 Pa. 29, as indicative of the character in which the remainder-men are to take, viz: by inheritance from the first taker, and not as a new stock, thus pointing to the first taker as vested with an estate of inheritance and to the construction of the word ‘ children ’ as a word of limitation. If, however, the word is used in the sense of heirs of the body or issue, then the phrase ‘ and if no children ’ imports an indefinite failure of issue: Armstrong v. Michener, 160 Pa. 21, and the first taker has the entire fee.”</p> <p>We are clearly of the opinion that under the law of this commonwealth, Thomas MeGahey, Jr., at the time of his death, was the owner in fee simple of the land in dispute, and that the defendant took a good title from the administrators of his estate.</p> <p>And now, March 17, 1900, it is ordered that this decision be filed, and notice thereof be given the attorneys of record, and if no exceptions are filed, that judgment be entered, as provided by the act of assembly approved April 22, 1874, in favor of the defendant and against the plaintiffs for the land described in the plaintiffs’ praecipe, and for costs.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 111, Oct. T., 1900, by-George W. Roberts, from order of C. P. Washington Co., No. 1036, in equity, reinstating proceedings, to 4iave George W. Roberts declared an habitual drunkard. Petition for an order to reinstate commission, inquisition and the appointment of a committee in proceedings for habitual drunkenness.

Appeal, No. 67, Oct. T., 1900, by defendant, from judgment of O. P. Washington Co., Nov. T., 1899, No. 13, on verdict for plaintiff, in case of Annie Cunningham, Administratrix of James E. Cunningham, deceased, v. Fort Pitt Bridge Works. Trespass for death of plaintiff’s husband.

• Appeal, No. 36, Oct. T., 1900, by defendant, from judgment of O. P. Washington Co., May T., 1899, No. 131, on verdict for plaintiff in case of Laura Hepler, Lavina Amos and Belle Letherman v. Ard M. Hosack. Ejectment for tract of land in West Bethlehem township. Before Taylor, J. The facts are fully stated in the opinion of the Supreme Court.

Appeal, No. 137, Oct. T., 1900, by defendants, from judgment of tbe Superior Court, April T., 1900, No. 125, affirming judgment of C. P. Washington County, Feb. T., 1899, No. 186, on verdict for plaintiff in case of J. Y. Clark v. J. V. H. Cook et al., trading as Cook & Sons. Assumpsit by sheriff to recover expenses of special deputies.Before McIlvaine, P. J. At the trial it appeared that on July 3, 1897, a strike was instituted at the defendants’ mines in Washington county.

Appeal, No. 112, Oct. T., 1900, by defendants, from decree of C. P. Butler Co., Sept. T., 1897, No. 6, on bill in equity in case of Daniel Walker et al. v. Andrew Edmonds et al., directors of Parker TownsKip School District. Bill in equity for an injunction to restrain the collection of a school building tax.

Appeal, No. 135, Oct. T., 1900, by defendants, from order of C. P. Butler Co., June T., 1897, Equity Docket No. 1, dismissing exceptions to auditor’s report in case of S. H. Walker v. Lizzie Gilliland and W. J. Gilliland. Exceptions to account of S. II. Walker, receiver of the co-partnership of S. IT. Walker and Lizzie Gilliland, trading as S. H. Walker & Company. The case was referred to H. E. Coulter, Esq., as auditor.