Volume 198 — Pennsylvania State Reports

<p> Bridges—County bridges—County commissioners. </p> <p>The authority of county commissioners to build a county bridge is derived from statutes, and the steps prescribed for this purpose must be pursued with at least reasonable strictness and diligence.</p> <p>Bridges—County bridges—Record—Act of June 18, 1886, P. L. 560, sec. 35.</p> <p>Under the act of June 13,1836, the approval of a bridge as a county bridge by the county commissioners must be entered of record in the quarter sessions. The proper practice is for the commissioners to pass a resolution formally expressing their concurrence in the view that the bridge is necessary and too expensive for the townships, and to file a copy of such resolution in the quarter sessions, the record of which will then show a complete proceeding carrying authority to build. This course is, however, not indispensable in the first instance. If it should become important at any time, a copy of the resolution or even a minute of less formal action, by the commissioners could no doubt be allowed by the court to be filed nunc pro tunc to complete its record. '1</p> <p>Where viewers report in favor of a county bridge, and their report is approved by the grand jury and is confirmed by the court, but no attempt is made to enter of record the approval of the county commissioners for a period of seven and one half years, and then the approval is entered in a proceeding where the bridge had been disapproved by the grand jury, the proceedings are too grossly irregular and defective to be sustained, and will be quashed upon motion of any party having an interest to give him standing.</p> <p>Bridges—County bridges—Irregularity of proceedings—Railroads— Grade crossings—Parties—Act of June 19, 1871.</p> <p>It is the settled policy of the state of Pennsylvania as administered by the Supreme Court, that wherever the subject comes within, its jurisdiction and control, no grade crossing of a railroad over another railroad or a common highway will be permitted, except in case of manifest and unavoidable necessity.</p> <p>The Supreme Court will recognize the standing of a railroad company to object to the construction of a county bridge, where the proceedings to authorize the construction of the bridge are grossly irregular, if it appears that the building of the bridge in the manner proposed will necessitate a grade crossing.</p>

<p>Appeal, No. 60, Oct. T., 1900, by defendants, from decree of C. P. Lawrence Co., Dec. T., 1899, No. 3, continuing preliminary injunction in case of County of Lawrence and The Pittsburg Bridge Company v. Pittsburg & Lake Erie Railroad Company.</p> <p>Appeal, No. 61, Oct. T., 1900, by plaintiff, from decree of C. P. Lawrence Co., Dec. T., 1899, No. 4, dismissing bill in equity in case of The Pittsburg & Lake Erie Railroad Company v. The County of Lawrence, William L. McConnell et al., County Commissioners.</p>

<p>Appeal, No. 62, Oct. T., 1900, by plaintiff, from judgment of C. P. Lawrence Co., June T., 1897, No. 48, for defendant, on case stated in case of Agnew Hartley, administrator of tlie estate of William A. Seaton v. Pam. Phillips.</p> <p>Case stated to determine the liability of a lease. The case stated was as follows:</p> <p>1. On May 7, 1877, William A. Seaton of Marion township, Butler county, Pennsylvania, made, executed and delivered a lease for certain lands in said township.</p> <p>2. On May 7, 1877, William A. Seaton received $115, being a payment of rental made under the terms of said lease, the receipt therefor being indorsed on said lease, and is in the following words and figures, viz:</p> <p>“ Received May 7th, 1877, of E. I. Agnew by W. P. Braham, One Hundred and Fifteen Dollars, first annual payment in full on the foregoing lease.</p> <p>“$115.00. Wm. A. Seaton.”</p> <p>3. On June 27, 1877, E. I. Agnew, under his hand and seal, attested by J. McMichael and W. M. Brown, and acknowledged on June 28, 1877, before W. M. Brown, notary public, executed and delivered the paper hereinafter referred to.</p> <p>4. On May 11, 1885, Agnes J. Phillips and Charles M. Phillips and Jane M. Phillips, his wife, in right of Jane M., Thomas W. Phillips and Pam. Phillips, his wife, in right of Pam., under their hands and seals, attested by John B. Brown and D. B. Kurtz as to the first three names, and Hattie R. Hart, executed and delivered to David Osborne a paper which was acknowledged May 11,1885, by Agnes J. Phillips, Thomas W. Phillips and Pam. Phillips, before John B. Brown, aider-man, and acknowledged June 17, 1885, by Charles M. Phillips and Jane M. Phillips, before Frank M. Ward, notary public, and recorded March 18, 1889, in the recorder’s office of Lawrence county, Pa., in deed book 52, page 824.</p> <p>5. No payment has been made on or under said lease other than the payment of $115 made on May 7, 1877.</p> <p>6. That William A. Seaton has since died intestate and letters of administration were on April 26, 1897, in due form of law, issued to Agnew Hartley, who qualified as administrator, and entered on the discharge of his duties. The said Seaton died on March 20, 1897.</p> <p>7. That on October -27, 1896, said William A. Seaton put the lease in the hands of an attorney with direction to collect the unpaid rentals, but that no action at law was begun in the lifetime of William A. Seaton, and no action was commenced until the present suit was brought, which was May 4, 1897.</p> <p>8. That E. I. Agnew secured and took a large number of leases in the manner set-out and stated in said papers and that he controlled and operated, sold and managed the same and the product therefrom as stated and set out therein.</p> <p>9. That the lease, was never surrendered or delivered to William A. Seaton in his lifetime or to his administrator since his death.</p> <p>10. That the land upon which this lease was situated is in the county of Butler, Pennsylvania.</p> <p>11. That neither E. I. Agnew in his lifetime nor David Osborne after him, ever took any possession or did anything upon the land in pursuance of the lease.</p> <p>12. That Agnes J. Phillips, Martha J. Phillips, Jane M. Phillips and Pam. Phillips, the ladies mentioned as beneficiaries in exhibit “B,” were severally married women for a period long before the making of the writing, exhibit “B,” and before the making of the lease, exhibit “A.” The said Agnes J. Phillips being the wife of Isaac N. Phillips, Jane M. Phillips being the wife of Charles N. Phillips, Martha J. Phillips being the wife of John T. Phillips, and. Pam. Phillips being the wife of Thomas W. Phillips. That the said Pam. Phillips has continued to be and still is the wife of the said Thomas W. Phillips.</p> <p>13. That none of these ladies ever had .any possession or did anything themselves, personally, in reference to the property mentioned in exhibit “ A.”</p> <p>14. If, upon the foregoing facts, the court shall be of opinion that the plaintiff is entitled to recover anything, then said court shall enter judgment in favor of the plaintiff against the defendant for so much as in the opinion of the court he shall be entitled to recover. If, on the other hand, the court should be of opinion that the plaintiff is not entitled to recover, then judgment to be entered for the defendant. And either party shall have the right to an appeal from the judgment entered by the court below to the proper appellate court.</p> <p>The lease referred to in the case stated contained covenants to pay royalties and rentals and to prosecute mining operations, and also various other covenants.</p> <p>The declaration of trust executed by E. I. Agnew on June 27, 1877, contained the following clause:</p> <p>“Now, know ye, that I, the said E. I. Agnew, do hereby acknowledge and declare that all the leases of lands for oil purposes which have been made by me or which have by any persons been assigned, transferred or conveyed to me since said March 15, 1875, and all purchases of or options to purchase oil lands which I may have made either by deed, contract or otherwise since said date, and all and every the titles; interests, claims and estates of every kind and character which I may have acquired or may have or hold by any means whatever in or to any of said lands themselves are held, possessed, occupied and controlled by me in trust for the use of said Pam. Phillips, Jane M. Phillips, Agnes J. Phillips and Martha J. Phillips, their heirs, executors, administrators and assigns, forever, and not otherwise, and I do hereby further acknowledge and declare that all the judgments, debts and claims so as aforesaid purchased by me or assigned to me were purchased with the proper money of said four ladies and held by me only in trust for them, their executors, administrators or assigns, and not otherwise.</p> <p>“And I do hereby further acknowledge that all the money which I have received from the sale of oil, from subletting’ land for oil purposes or from any other sources or by any other means whatsoever, connected with the business hereinbefore mentioned, as well as all the personal property which I have purchased for the purpose of developing any of said land or carrying on said business, is the proper money and property of the said ladies and held by me in trust for them.</p> <p>“ And I do hereby acknowledge and declare that all future purchases of oil lands which I may make or procure and all property and effects of every kind and character and kind whatever, real, personal or mixed, which I may obtain, secure or have, or of which I may become seized or possessed in prosecuting or conducting the said business as hereinbefore mentioned, or as I may hereafter be by them directed and authorized to prosecute or conduct it, shall be by me held in trust for the use of the said Pam. Phillips, Jane M. Phillips, Agnes J. Phillips and Martha J. Phillips, their heirs, executors, administrators and assigns forever. And that I, my heirs, executors,' administrators or assigns, shall at any time or times hereafter upon this request and at their charges convey by deed or otherwise as may be proper to said ladies or to such person or persons as they may direct, all ■ or any part of said property, real or personal, which I may have or hold, at the time of making such request, but nothing herein contained shall be construed to interfere with my transferring, conveying or disposing of all or any part of said property, either real or personal, in my own name and ás my own for the purpose of carrying on the said business as I have heretofore done, or as I may hereafter be directed to do.”</p> <p>The court entered judgment for defendant on case stated,Wallace, P. J., filing the following opinion:</p> <p>This case comes before the court in the form of an action to recover from Pam. Phillips by reason of a certain lease for lands signed and executed by one E. I. Agnew and William A. Seaton, dated May 7, 1877. It comes in the way of a case stated, the facts being agreed upon by the parties. The case takes the nature of a special verdict leaving the questions of laAV arising under the facts to be determined by the court.</p> <p>The first question that we meet is, what is the relationship between the plaintiff and the defendant ? In order to determine this another question arises, what is the relationship between E. I. Agnew and the defendant ? This last question is the main question in our opinion and where the counsel for the parties differ. Agnew signed the lease and made the first payment and thereby undertook to carry out the covenants and become liable on said contract with William A. Seaton for any covenants mentioned and stipulated in said lease. As between Agnew and Seaton there would be no question as to Seaton’s rights.</p> <p>The plaintiff contends that by virtue of Agnew’s declaration of trust dated June 27, 1877, lie became the agent of the defendant in all of these transactions, and that the defendant, by signing the indenture transferred to Osborne in 1885, thereby ratified and accepted ail the business and covenants contained in the agreement made by said Agnew.</p> <p>If the plaintiff is entitled to recover, he must recover by reason of Agnew being an agent of defendant and by her accepting and ratifjdng the acts and covenants of said Agnew.</p> <p>Before going to that question let us look at the relationship between the plaintiff and defendant. The defendant was not a party to the lease; she did not sign it or take anything under it. In other words, there was nothing in the lease or the transaction at the time of the making that would in any way create a privity of contract. Privity of contract is the relationship that exists between two or more contracting parties. It is essential to the maintenance of an action on any contract that there should subsist a privity between the plaintiff and defendant in respect to the matter sued on. We cannot, therefore, say that any such privity existed in this case.</p> <p>Again, defendant never took possession of said lands under said lease or did any other thing with said premises that would vest in her a privity of estate. Privity of estate is that which exists between lessor and lessee, tenant for life or remainder-man or reversioner, etc., and their respective assignees, and between joint tenants and copartners. None of these conditions exist in this case, hence plaintiff cannot recover by reason of any privity of estate. Having determined that neither privity of contract nor privity of estate existed between the plaintiff and the- defendant, then we must determine whether Agnew was an agent or a trustee. Taking the declaration as a whole, we believe that Agnew held the position of a trustee and not as an agent. That he held the position of an active trustee in whom the leasehold was vested and, therefore, was liable as a trustee for the performance of the covenants during the continuance of his active trust.</p> <p>“ Trustees are bound by their personal covenants : ” Hill on Trusts. True, had the trustee in this case been an inactive trustee, with nothing to do but hold the lease for some other person to whom it rightfully belonged, and who was in possession and .charge of said leasehold, then a different question presents itself, but such is not our case. It cannot be that both the trustee in active operation and carrying on business, making contracts and covenants, can be personally bound, and at the same time bind by his acts the beneficiary who has never taken any part, given any instructions or in any way assumed the responsibilty of said business or covenants.</p> <p>Hence we conclude that under this state of facts the beneficiary cannot be held liable for the personal covenants made by the active trustee.</p> <p>There was a great deal of stress placed by plaintiff’s attorneys upon the fact that at the death of Agnew defendant made and executed an indenture to one Osborne similar to the declaration made by Agnew. . This for the purpose of showing ratification of the alleged acts of Agnew as agent. We cannot agree in this way, as we look upon the trust held by Agnew as an administrative trust, and one that in case no action had been taken as to his successor would have -passed to his legal representatives, and henee no privity of estate passed to the defendant at the death of Agnew, as claimed by plaintiff. Even if otherwise it would only have been momentarily, as this deed conveyed all the rights that were in Agnew directly to Osborne to hold in the same relation as trustee as did Agnew in his lifetime.</p> <p>There is another phase of this case, that of coverture, which is raised by defendant, she being a married woman, but as in our opinion the above questions settle the rights of plaintiff and defendant, we will not discuss the question of coverture.</p> <p>Now, March 5, 1900, judgment is entered upon the facts stated in the above case for the defendant.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 82, Oct. T., 1900, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1897, No. 270, on verdict for plaintiff, in case of Mary J. Garner v. Citizens Natural Gas Company. Trespass for personal injuries and loss of personal property. Before Wilson, P. J. At the trial it appeared that the plaintiff occupied as a residence, two rooms on the second floor of Patrick McKenna’s house in New Brighton.

<p>Appeal, No. 1, Oct. T., 1900, by</p> <p>Big Meadows Gas Company, from decree of C. P. Lawrence County, Sept. T., 1894, No. 1, on bill in equity in case of William A. Zahn, Robert Frew, C. W. Bassett, W. C. Connelly, Jr., J. M. Arnold and Charles M. Johnston, Administrator of the Estate of William P. Bennett, deceased, v. E. A. McMillin, J. M. McMillin and the Big Meadows Gas Company.</p> <p>Bill in equity for an injunction and for an account.</p> <p>From the record it appeared that E. A. McMillin and J. M. McMillin owned an interest with the plaintiffs in certain oil and gas leases. The McMillins on January 31, 1893, secured a contract from their cotenants by which they were to take the gas and pay one fourth of all the net proceeds to all the owners. Prior to the execution of this contract the McMillins had an offer from O. C. Redic to purchase the gas and pay the owners one half of the proceeds thereof. This offer they concealed from their co-owners, and on the same day on which they entered into the agreement, they entered into a contract with Redic in accordance with the terms of his offer. After the plaintiffs discovered the fraud, they filed this bill in equity, and on appeal to the Supreme Court a decree was entered that the McMillins should account to the plaintiffs. See 179 Pa. 146, 156. The case was remitted to the common pleas and S. L. McCracken, Esq., was appointed master to state an account.</p> <p>The master found the facts to be as follows:</p> <p>1. After the contract between James M. McMillin and Edward A. McMillin of the one part, and Oliver C. Redic of the other part, was made, being the contract dated January 31,1893, called the Redic contract, Redic began the fulfilment of said contract by the construction of a gas pipe line from the city of New Castle to the gas wells mentioned in said contract. Before the line was completed, the Big Meadows Gas Company, one of the defendants, was organized by said Redic and his associates, and this company completed said pipe line under said Redic contract and has ever since been operating under said contract, obtaining the gas from the 1,000 acres mentioned in that contract, and conducting said gas through said pipe line to New Castle.</p> <p>2. That the total amount which became due from the Big Meadows Gas Company to the McMillins, prior to the decision by the Supreme Court in this case, for gas conducted through said pipe line, under the Redic contract is $25,899.05, and a portion of which sum was collected from the 1,000 acres of leaseholds, and a portion from outside territory, mentioned in contract exhibit “ B,” and that the exact amount of money received from the sale of gas produced on the 1,000 acres cannot be definitely ascertained, nor the amount produced from the sale of gas from the outside territory, and the whole sum of $25,899.05 was paid to the McMillins by the Big Meadows Gas Company for gas, and no part of it consists of moneys paid for drilling wells, packing wells or otherwise.</p> <p>2. That the McMillins have paid out on the 1,000 acres as expenses $5,717.37, out of which they should have a credit of $2,958.68, and on outside territory from which gas was produced, $11,529.12, for the one half of which they should have credit, viz: $5,764.56, making their total credit on $25,899.05 from expenses $8,723.24, and to W. A. Zahn, treasurer, $627.15, amounting in all to $9,350.39 which deducted from the $25,899.05 leaves a balance due of $16,548.66.</p> <p>3. That on or about March 1, 1894, the Big Meadows Gas Company was notified by Chas. M. Thorp, attorney, acting on behalf of plaintiffs, by a letter dated February 26, 1894, addressed to the Big Meadows Gas Company, J. M. Mayne, secretary, that said Redic contract had been made by the McMillins under circumstances which constitute the latter trustees for the owners of said leaseholds, and which in fact made said contract the contract between the owners of said leaseholds and Redic; and also that all payments then or thereafter due from said Big Meadows Gas Company under said contract, should be made to the owners of said leaseholds, through their treasurer, W. A. Zahn; and said company was warned against making any further payments under said contract to the McMillins.</p> <p>4. On June 9,1894, the bill in equity in this case was filed, in which the Big Meadows Gas Company was joined as defendant, setting up that said Redic contract was in fact the property of the owners of said leaseholds, and that all payments under the same should be made to them, and asking for an injunction. restraining the Big Meadows Gas Company from paying any further sums to the McMillins under said contract. Said bill was served on June 9,1894, on the Big Meadows Gas Company and on E. A. McMillin and J. M. McMillin. Oh December 24,1894, the Big Meadows Gas Company filed a cross bill setting forth that they had been sued by the McMillins, and judgment had been obtained for $2,917.28, for moneys due under the Redic contract, and also that fi. fa. had been issued to collect said judgment; and praying that an injunction issue, restraining the McMillins from proceeding further to collect said judgment until the dispute between the plaintiffs and the McMillins should be decided, or until the McMillins should give security, against the claims of the plaintiffs. On January 2,1895, the motion for a preliminary injunction prayed for in said cross bill was argued, and it was ordered that said defendants give bond with surety in $7,500, to indemnify the Big Meadows Gas Company, and said bond being given, the motion for an injunction was refused. The bond was filed January 4, 1895, and thereupon the Big Meadows Gas Company resumed payments to the McMillins, and have since paid the sum of $14,213.05.</p> <p>5. At the time of making said Redic contract, January 31, 1893, there were but two wells drilled on the 1,000 acres, viz: the Wellhouser and Houk wells. Afterwards other wells were drilled on said 1,000 acres for the purpose of increasing the supply of gas, to be supplied under the Redic contract. The McMillins then ceased drilling on said territory and drilled on outside territory, from which gas was produced.</p> <p>The wells on both territories were connected with said line of the Big Meadows Gas Company, and conducted through said line to New Castle without measurement of the amount produced from the different territories, the two productions being intermingled.</p> <p>6. The wells drilled on the additional territory were drilled partly on leases obtained before the making of the Redic contract, and partly on leases obtained after the making of the same, and no itemized account of the expenses of the outside territory was furnished, but the total expenses were fixed by the testimony of E. A. McMillin at $11,529.12.</p> <p>7. After the making of contract exhibit “ A ” in plaintiffs’ bill, plaintiffs took no part in the location or drilling of wells on the 1,000 acres, and left this matter to the McMillins.</p> <p>8. The McMillins never had any agreement or arrangement with plaintiffs by which they were to receive anything for services rendered.</p> <p>In accordance with the foregoing, the master makes the following statement of account:</p> <p>E. A. & J. M. McMillin, Dr.</p> <p>■ To William A. Zahn, Treasurer.</p> <p>To total amount received from Big Meadows Gas Co................$25,899.05</p> <p>By expenses of operations and rentals paid.....'......$8,728.24</p> <p>By cash paid W. A. Zahn, Treas. . . 627.15</p> <p>9,350.39— 9,350.39</p> <p>Balance $16,548.66</p> <p>Interest on balance from July 3, 1896, 2 yrs., 2 mo., 12 days......• 2,184.42</p> <p>Total . $18,733.08</p> <p>On exceptions the master modified his report so as to recommend that seven twenty-seconds of the amount decreed should be retained by E. A. McMillin, as that fraction represented his interest in the leases.</p> <p>Exceptions to the master’s report were overruled in an opinion by Miller, P. J., specially presiding, and the following decree was entered:</p> <p>And now, September 6, 1899, it is ordered, adjudged and decreed :</p> <p>1. That the plaintiffs pay the costs of this proceeding before the master, namely, $340.60, with the right to recover same over against defendants.</p> <p>2. That E. A. & J. M. McMillin retain from the moneys in their hands, for the use of E. A. McMillin, the seventeen twenty-second parts thereof, to wit: $5,960.53.</p> <p>3. That E. A. & J. M. McMillin pay to William A. Zahn, treasurer, the fifteen twenty-second part of the moneys in their hands, viz: $12,772.55, with interest from September 15,1898.</p> <p>4. In case E. A. & J. M. McMillin do not within sixty days from the entering of this decree pay over to William A. Zahn, treasurer, the sum of $12,772.55, with interest from September 15, 1898, as provided in the third paragraph of this decree, then it is ordered, adjudged and decreed that the Big Meadows Gas Company pay to William A.-Zahn, treasurer, the said sum of $12,772.55, with interest thereon from September 15,1898.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 78, Oct. T., 1900, by defendant, from judgment of C. P. Lawrence Co., June T., 1898, No. 47, on verdict for plaintiff in case of Elanor Alice Kroesen, a minor, -by Edward Kroesen, her father and next friend, and Edward Kroesen in his own right, v. New Castle Electric Street Railway Company. Trespass for personal injuries.

Appeal, No. 79, Oct. T., 1900, by defendant, from judgment of C. P. Lawrence Co., June T., 1898, No. 47, on verdict for plaintiff in case of Elanor Alice Kroesen, a minor, by Edward Kroesen, her father and next friend, and Edward Kroesen in his own right, v. New Castle Electric Street Railway Company. Trespass for personal injuries.

<p> Negligence—Damages—Expectancy of life—Life tables. </p> <p>In a damage ease a witness will not be permitted to testify from a table as to expectancy of life, where there is no evidence to show on what the table is based, or from what material it was constructed. Xcmgau v. Penna. R. Co., 194 Pa. 98, followed.</p> <p> Negligence—Natural gas~~Explosion. </p> <p>Where an explosion which occurs in a house supplied with natural gas by one gas company is caused by the negligent mistake of an inspector of another company in opening high pressure valves which he mistook for the valves of his own company, the second company, in a suit against it for damages by the owner of the house, will not be permitted to show that the unsafe condition of the meter and regulator in the house contributed to the accident, or that the first company was negligent in the construction and maintenance of its line.</p> <p>Where two parties are each guilty of negligence contributing to an injury, the tort of the one is no defense to an action against the other.</p> <p> Negligence—Damages—Darning power. </p> <p>In an action to recover damages for personal injuries, it is error for the court to charge the jury that they may allow for loss of earning power, where the plaintiff has offered no evidence whatever as to his earning power, either before or after the accident.</p>

<p>Tax sale—Description of real estate—Assessment—City of Pittsburg—Act of February 24, 1871.</p> <p>The act of February 24, 1871, carefully provides a complete system of registration of real estate in the city of Pittsburg, and is intended to facilitate the assessment of real estate and the collection of taxes, and at the same time to give reasonable protection to landowners against the blunders of negligent officials. The Supreme Court will not relax in any way the plain requirements of this statute.</p> <p>Where a deed is to a grantee in his proper name, and the deed contains an accurate description of the property and the registration in the city engineer’s office is in exact accordance therewith, it is no hardship to require of the delinquent tax collector compliance with the provisions of the law requiring accuracy of description. If, in such a case, a tax lien is filed which omits the middle initial of the grantee, and the land is described as being situated upon a certain street according to a plan named, which plan nowhere appears of record, and the side of the street is not stated, nor any other streets by which the land may be located, a tax sale under the lien cannot be sustained, and a sheriff’s deed following the description of the lien will be rejected in an action of ejeetment by the representatives of the original owner to recover the land.</p> <p> Statute of frauds—Deeds—Description—Parol evidence. </p> <p>A deed must be construed ex visceribus suis; and if the intent is clearly expressed and there is no ambiguity in the description, no evidence of extraneous circumstances can be received to alter the deed.</p>

<p>Appeal, No. 32, Oct. T., 1900, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1899, No. 2., on verdict for plaintiff in case of the Grand Council of Pennsylvania Royal Arcanum v. Katharine S. Cornelius and Katharine S. Cornelius, Executrix of Charles E. Cornelius, deceased.</p> <p>Replevin for seven United States bonds of the aggregate value of $2,500. Before McClung-, J.</p> <p>At the trial it appeared that the bonds in controversy were the property of the plaintiff, but had been in the custody of Charles E. Cornelius before his death, which occurred on October 15,1898. The bonds were seized by the sheriff in the possession of defendant. Defendant did not give any property bond, and the bonds were delivered to plaintiff. It appeared that Cornelius in his lifetime gave three notes to the People’s Savings Bank of Pittsburg, and as security for the third note he fraudulently pledged the bonds in controversy. After his death defendant with moneys of the estate paid off all three of the notes, and received the bonds, but refused to deliver them to plaintiff until she was paid the amount of the third note.</p> <p>Defendant presented this point:</p> <p>Counsel for defendant respectfully asks the court to charge the jury that under all the evidence the verdict of the jury should be for the defendant in the sum of $2,000, being the amount of the collateral note for which the bonds in suit were pledged with the Peoples’ Savings Bank, with interest from December 12, 1898. Answer: Refused. [1]</p> <p>The court charged as follows:</p> <p>[I instruct you that under the evidence in the case and under the conceded facts in the case, it is entitled to recover. That is, that the bonds belong to it without payment of this alleged lien of $2,000, and you will, therefore, render a verdict for the plaintiff with nominal damages, that is, a verdict for the plaintiff in the sum of six and one fourth cents.] [2]</p> <p>Verdict and judgment for plaintiff for six and one fourth cents. Defendant appealed.</p> <p>jErrors assigned were above instructions, quoting them.</p>

Appeal, No. 104, Oct. T., 1900, by defendant, from judgment of O. & T. Allegheny Co., March T., 1900, No. 12, on verdict of guilty of murder in the first degree, in case of Commonwealth v. George W. McMurray, Jr. Indictment for murder. Before Me Clung, J. The circumstances of the killing are fully stated in the opinion of the Supreme Court.

<p> Assignment for creditors—Surcharge—Corporation—Neglect of assignee to sue for stock subscriptions. </p> <p>An assignee for creditors of an insolvent corporation will not bo surcharged with the amount of unpaid stock subscriptions which he did not collect, and which became barred by the statute of limitations, where it appears that he used ordinary care, prudence and diligence in his management of the estate, and as to the stock subscriptions had taken the opinion of counsel, and had been advised that if he had any right to sue on behalf of the company, which was at least doubtful, it could not be exercised until the other assets had been administered, and shown to be insufficient, and it also appears that none of the creditors called upon him to do anything in reference to the unpaid subscriptions.</p> <p>An assignee for creditors is not in any sense an insurer that the debts of his assignor will be paid, or even that the assets in his hands will produce their highest value for such payment. He is bound to use diligence, prudence and reasonable judgment and skill, but using these he is not responsible further. The advice of counsel is evidence of care and prudence.</p>

<p>Appeal, No. 57, Oct. T., 1899, by A. M. Byers, from decree of O. P. No. 1., Allegheny Co., Sept. T., 1899, No. 17, on bill in equity in case of T. Brent Swearingen, Assignee of Fleming Brothers and such others as may become parties hereto, v. The Sewickley Dairy Company, A. M. Byers et al., Stockholders.</p> <p>Bill in equity by creditors against a corporation and its stockholders to enforce the payment of an alleged balance due on stock subscriptions. See next case.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered the following decree:</p> <p>1. That the defendants hereinafter named are respectively liable to the Sewickley Dairy Company and creditors thereof for the unpaid subscriptions upon the capital stock of the said corporation, subscribed for and held by them, in the amounts set opposite their respective names, and that judgments be entered against them for said amounts, and that they be directed to pay the same to T. Brent Swearingen, heretofore appointed receiver by this court in this matter, whose powers are hereby extended, if necessary, to recover these claims.</p> <p>The following are the names of the defendants and the amounts due from them, to wit:</p> <p>■% * # TfJ ifc * $</p> <p>A. M. Byers,.......$2,500.</p> <p>ÍN & # * *</p> <p>Error assigned, amongst others was the decree of the court.</p>

Appeal, No. 7, Oct. T., 1900, by defendant, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1895, No. 445, overruling exceptions to master’s report, in ease of Joseph A. Herron, John L. George and Thomas H. Given, executors and trustees of James Neel, deceased, and Nancy Neel, v. William P. Wampler. Bill in equity for an account against a surviving partner. By agreement the case was referred to John G. MacConnell, Esq., Master, with the following powers and duties: 1.

Appeal, No. 52, Oct. T., 1900, by Jolm Scliusler et al., from decree of O. C. Allegheny Co., April T., 1899, No. 146, dismissing appeal from register of wills in the estate of Adam Schusler, deceased. Appeal from register of wills.

<p>Appeal, No. 115, Oct. T., 1900, by plaintiff:, from judgment of C. P. Butler Co., Sept. T., 1900, No. 64, on verdict for defendant, in case of George K. Marshall v. The Forest Oil Company.</p> <p>Ejectment for oil and gas land in Forward township. Before Gbeeb, P. J.</p> <p>At the trial it appeared that plaintiff claimed under an oil and gas lease from A. H. Knauff; defendant claimed under an oil and gas lease which A. H. Knauff had made to S. S. Reeseman. The lease from Knauff to Marshall was as follows:</p> <p>“ This agreement made and concluded this 28th day of August, 1895, by and between A. H. Knauff, of Forward township, county of Butler and State of Pennsylvania, party of the first part and George K. Marshall, party of the second part:</p> <p>■ “ Witnesseth: That the said first party, for and in consideration of the sum of six hundred and seventy-five dollars to him in hand paid, the receipt of which is hereby acknowledged, and in further consideration of the covenants and agreements hereinafter contained, does covenant and agree to lease, and by these presents, has leased and granted the exclusive right unto the second party, his heirs and assigns, for the purpose of operating and drilling for oil, petroleum and gas, to lay pipe-lines, erect necessary buildings, release and subdivide all that certain tract of land situate in Forward township, county of Butler, State of Pennsylvania (being part of a larger tract of land) bounded and described as follows, to wit:</p> <p>“ On the north by lands of the first party, formerly leased to McQuistion and Marshall; on the east by lands of public road ; on the south by land of Henry Buhl; on the west by lands of same, containing fourteen acres, more or less. The party of the second part agrees to commence operations on the above described part or parcel of land hereby leased within ninety-days from the date hereof, or thereafter pay to the party of the first part a rental of fourteen dollars per month until operations are commenced, payable direct or at the Butler County National Bank, the party of the second part to have and to hold the premises for and during the term of ten years from the date hereof and so long thereafter as oil and gas can be produced in paying quantities by the second party, his heirs and assigns.</p> <p>“ The party of the second part agrees to give the first party the one eighth part of the petroleum or oil obtained from the said premises as produced in the crude state, the said one eighth part to be set apart in the pipe-line running said petroleum to the credit of the party of the first part. First party is'1 to freely use the premises for the purpose of tillage, except such part as shall be necessary for said mining purposes or operating, and a right-of-way from and to the place of operating. Second party to have sufficient water and gas to run the engines and the right to move any machinery, fixtures and buildings placed on said premises by said second party or those acting under him.</p> <p>“ If gas is found in sufficient quantities to be utilized off the premises, the consideration to first party shall be one-eighth for each well so utilized. Second party hereby agrees to drill sufficient wells to protect the lease on the above described property, when operations are commenced to proceed with due diligence.</p> <p>“ All gates and fences to be shut. If second party abandons this lease and moves all his property off, it shall become null and void.</p> <p>“ It is further agreed that the second party, his heirs or assigns, shall have the right at any time to surrender up this lease by paying the rentals, if any then due, and be released from all conditions unfulfilled, then and from that time this agreement shall be null and void and not binding on either party, and the payments made shall be retained by the first party as the full stipulated damages.</p> <p>And now, to wit: June 7,1900, defendant by their attorney, before jury is sworn, move the court, the sheriff having served the writ in this case upon A. H. Knauff and made return that he is in possession of the premises, to add the name of A. II. Knauff to the record as party defendant.</p> <p>“ All conditions shall extend to the heirs, executors and assigns of both parties.”</p> <p>The other material facts in the case relating to the lease and claim of forfeiture are fully stated in the opinion of the Supreme Court.</p> <p>It appeared from the record that the sheriff made a return of an acceptance of service by attorneys for A. IT. Knauff. When the return was made the prothonotary did not add the name of A. II. Knauff as a party. On June 7, the defendant made the following motion:</p> <p>Upon which the court made the following order:</p> <p>It appearing to the court that the defendant company is claiming title to the land described under its lease made by A. H. Knauff, subject to a lease under which the plaintiff claims, the amendment is allowed as asked for before jury sworn. [1]</p> <p>Plaintiff presented these points.</p> <p>1. The plaintiff’s lease has no.t been forfeited by a failure to pay rentals.</p> <p>2. The plaintiff’s lease has not been forfeited by a failure to begin operations.</p> <p>8. The plaintiff’s lease has not been forfeited by a failure to continue- operations with due diligence.</p> <p>4. There has been no forfeiture of the plaintiff’s lease.</p> <p>5. There is no evidence of an abandonment of the plaintiff’s lease.</p> <p>6. There is no evidence of a surrender of the plaintiff’s lease.</p> <p>7. Under all the evidence the verdict must be for the plaintiff.</p> <p>The Court: The points above can all be answered in one answer. Before the plaintiff can recover the possession of the land described in the writ he must convince you from the weight of the evidence that he has fully complied with the covenants in the lease and has done all he promised therein, unless he was released by the lessor, Knauff, or released from some of them by him as claimed by the plaintiff, which is a fact to he determined by you from the evidence. Gentlemen, another question—when Mr. Knauff leased this land to Mr. Marshall he had a right to employ whomsoever he pleased, and Mr. Knauff had not the right to name the men to be employed by him, and if he had prevented the operation of the lease on that account, then he would have stood in the way of Mr. Marshall’s operations and could not have set that up; but the gentlemen talked together and seem to have made some arrangement by which this is out of the case. [2-8]</p> <p>Verdict and judgment for defendant. Plaintiff appealed. ■</p> <p>Errors assigned were (1) order as above, adding A. H. Knauff as a party; (2-8) above points and the general answer, quoting it.</p>

<p> Will—Provision for widow—Life estate. </p> <p>Testator gave all of his estate, real and personal, to his wife “to have and to hold the same to her own use, benefit and behoof forever; the same to be and remain for just and necessary support during the natural life of her my said beloved wife. And in case any of the above bequeathed property should remain at the date of my said wife’s death, I order and direct that the same be divided between my children share and share alike, or if any of them be dead then unto their legal representatives in a legal manner.” The wife mentioned in the will was testator’s second wife, by whom he had no children, the children mentioned being those of. the former wife. After the death of the testator the widow sold the real estate. The children claimed that she had no title in fee simple, and that the price was inadequate. The purchaser subsequently paid the children an additional sum and received from them quitclaim deeds. The widow invested the money which she received in other real estate, and thereafter died. Held, that testator’s children were entitled to the real estate so purchased by the widow.</p>

<p>Appeal, No. 77, Oct. T., 1900, by Elizabetli McKown, from decree of O. C. Allegheny Co., April T., 1899, No. 51,’ dismissing exceptions to adjudication in the estate of James C. McKown, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts- .appear by the opinion of Crawford, P. J., specially presiding, which was as follows:</p> <p>Elizabeth C. McKown, executrix of James C. McKown, deceased, has filed a final account in which she charges herself with assets amounting to $24.00, and taking credit for the payment of medical and funeral expenses, with the costs incident to the settlement of her account, she claims a balance due her as accountant of $279.40.</p> <p>Three exceptions have been filed by the Manhattan Life Insurance Company, a creditor of James C. McKown, deceased.</p> <p>Under the evidence submitted, the only question raised by these exceptions is, whether or not the accountant should be surcharged with the sum of $10,775.52, collected by her as executrix from the Manhattan Life Insurance Company upon a policy issued by that company upon the life of her husband, James C. McKown. The facts of the case are as follows :</p> <p>On April 11, 1883, James C. McKown took out a policy for $10,000 upon his life in the Manhattan Life Insurance Company, payable upon satisfactory proof of death to the “ executors, administrators or assigns ” of said McKown.</p> <p>About a year after this, he took out a second policy for $10,000 in the same company, in which policy his wife, Elizabeth C. McKown, was named as beneficiary. Upon the latter policy, the company paid Mrs. McKown $10,000 after the death of her husband, without contest. James C. McKown died on June 2, 1897. In 1892, and for some time prior thereto, Mr. McKown was in the employ of the Manhattan Life Insurance Company as their agent in Pittsburg, Pa., and continued to act as such up to November, 1893. On October 23, 1893, McKown made a voluntary assignment to his wife, Elizabeth C. McKown, of policy No. 48,614, taken out by him in the Manhattan Company in April, 1883. Mrs. McKown, as her own testimony shows, knew nothing of this assignment until after the death of her husband. At the date of this voluntary assignment to his wife, McKown was largely indebted to the Manhattan Life Insurance Company. At No. 19, May term, 1894, in the circuit court of the United States, western district of Pennsylvania, this company brought suit against McKown to recover for alleged defalcation on his part as their agent, and obtained judgment against him, November 18, 1894, for $28,346.05. In September, 1895, McKown borrowed $400 from the Pittsburg Bank for Savings, and his wife, Elizabeth C. McKown, on the date of September 23, 1895, executed an assignment of this policy of insurance to the bank as collateral security for the loan made to James C. McKown. The bank wrote to the Manhattan Life Insurance Company, under date of October 3,1895, as follows:</p> <p>“ Gentlemen: We have assigned to us as security for a loan, policy No. 48,614, on life of James C. McKown, assigned by him to E. C. McKown, in 1893, and by E. C. McKown to us September 23, 1895.</p> <p>“ Please let me know the surrender value of the same at once by wire, if you will, at our expense.</p> <p>“ Very truly,</p> <p>(Signed) “ Geo. Sheppard, Treas.”</p> <p>In response to this, the bank received, October 4,1895, the following telegram dated from New York:</p> <p>“ Pittsburg Bank for Savings,</p> <p>“ 60 Fourth Ave., Pittsburg.</p> <p>“ Forty-eight six fourteen cash now four hundred sixteen dollars thirty-three cents.</p> <p>“ E. L. Stabler, Actuary.”</p> <p>Following this, notices of the premiums due upon the policy were sent by the Manhattan Company to the Pittsburg Bank for Savings, and between the time of the assignment and the date of his death, in June, 1897, McKown paid seven quarterly premiums upon this policy. The company wrote to the Pitts-burg Bank for Savings, June 5, 1897, referring to the notice of assignment previously sent by the bank, and requested information as to the bank’s claim on the policy, saying they were then informed of McKown’s death, and desired to know the particulars that settlement might be made under the policy to the parties interested. Subsequently, Mrs. McKown paid off the bank’s claim and took a re-assignment of the insurance policy to herself individually. The company having refused payment to her as assignee, she brought suit as executrix of James C. McKown for her own use against the Manhattan Company, at No. 4, May term, 1898, in the United States circuit court for the western district of Pennsylvania. The insurance company undertook to set off, against the policy sued upon, the judgment they had obtained against McKown in his lifetime, but the court denied their right to do so in that action, and instructed the jury to return a verdict in favor of Elizabeth C. McKown, executrix, for the amount due on the policy. The reason of the court for refusing the company’s claim of set-off, and directing a verdict as aforesaid, is given in the opinion filed in overruling a motion for a new trial as follows:</p> <p>“ The stipulation of the insurance company was to pay, after the death of the insured, to his personal representative. The debt sued for had no existence in the lifetime of the plaintiff testator. It came into existence after his death. It is true the policy itself was in existence before, but no debt of. the company under it arose or could have arisen in the lifetime of the plaintiff’s testator. These debts are not due in the same right. One of them is between the plaintiff's testator and the defendant. The other is between the defendant and the plaintiff as executrix. Now, at the moment of the death of the insured, the plaintiff as his executrix became trustee for all the creditors, whose rights to the assets of the estate then became fixed. The decedent’s estate is insolvent, and to allow the set-off claimed here would disturb the course of administration. The motion for a new trial must be overruled.”</p> <p>The action of the court below was affirmed by the United States circuit court of appeals, the cause having been carried there. The records, exhibits and evidence offered before the United States circuit court and the United States circuit court of appeals have, by the agreement of counsel, been submitted for our consideration, so far as the same may be relevant in this proceeding. Mrs. McKown testified on the trial in the United States circuit court that her husband, upon taking out this policy, brought it home and gave it to her to keep, and that she kept it with his other insurance papers in her writing desk. That he said nothing particularly with reference to this policy when he handed it to her, but that she always thought it was her policy. That she had it in her possession until in September, 1895, when she assigned it to the bank as collateral for the loan made her husband. That she never knew until after her husband’s death of the written assignment of October 23, 1893, in which he transferred this policy to her. In the hearing before this court, Mrs. McKown was examined, under objection, however, as to her competency as a witness, and she now says that when the policy was brought to her, her husband said, “ Lizzie, I have taken a policy of ten thousand dollars on my life for you. Here it is. Keep it and take care of it. ” Under these facts, has such a bona fide assignment of this policy been shown as will entitle the wife to hold it against the creditors of her deceased husband ? We do not think so. While, under the Act of April 15, 1868, P. L. 103, an insolvent person may make provision for his family or dependent relatives by taking out insurance for their benefit, two methods are recognized: First, where the beneficiary is named in the policy ;• and second, where a policy previously issued shall be in good faith assigned to any of the class of persons mentioned. It is only where the title of the beneficiary arises by assignment that creditors can contest the rights of the assignee, for only in this class of cases can the question of good faith or fraud be raised: McCutcheon’s App., 99 Pa. 137. In Woolston’s App., 51 Pa. 455, the court says, “ If any indebtedness to any amount be established at the time of a voluntary settlement, it imposes upon those claiming under it the duty of establishing the solvency of a sufficiency to rebut the presumption that such voluntary assignment was covinous.” At the time McKown made this voluntary assignment of the policy to his wife, he was admittedly insolvent. The burden of proof is, therefore, upon her to show the bona fide character of the transaction and to repel the presumption of fraudulent intent as to creditors : Townsend v. Maynard, 45 Pa. 198. In Elliott’s App., 50 Pa. 75, it was held that the assignment of policies of life insurance by a debtor when insolvent in trust for the benefit of his wife is fraudulent and void as against creditors. In the present case, it is not necessary to decide whether or not Mrs. McKown is a competent witness. Even treating her as such, we fail to find in her testimony, when considered with that she gave before the United States circuit court, and all the facts and circumstances shown, sufficient to rebut the presumption of fraud.</p> <p>But it is here argued by accountant’s counsel, that the Manhattan Company received notice of the assignment to Mrs. Mc-Kown by the letter from the Pittsburg Bank for Savings, when this policy was assigned to the bank for the $400 loan. There was certainly nothing in that notice which will operate to es-top the Manhattan Company from presenting any proper claim they may now have as a creditor of James C. McKown’s estate. Their consent to the assignment was not required by their contract, and McKown was at liberty to assign his policy to whom he pleased for a valuable consideration. The assignment to the bank was such, and the company could not object. Neither Mrs. McKown nor her husband, so far as it appears, ever in any way made known to the company the assignment to the wife until after the death of the husband, when the policy was reassigned to Mrs. McKown upon her paying to the bank $200, the balance then due on its note. Our conclusion is, that the assignment of this insurance policy by James C. McKown to his wife is fraudulent and void as to the creditors of his insolvent estate. However, since Mrs. McKown paid off the balance of her husband’s indebtedness to the bank, she may, to that extent, be subrogated to the rights which the bank had under the assignment of the policy. Allowing reimbursement for the $200 and interest on the same from the time it was paid to the bank by Mrs. McKown, and allowing her also the $279.40 due her as accountant, her account will be surcharged with the balance of the $10,775.52 received by her as executrix of James C. McKown upon the judgment recovered against the Manhattan Life Insurance Company. There may be other creditors of James C. McKown, deceased, but if so, they have failed to present their claims at this hearing. Possibly they may ask to be heard before the matter finally passes from the hands of the court. The Manhattan Company being the only creditor now appearing, all we can do at this time is to direct that the balance of the fund in the hands of the executrix be applied to their judgment.</p> <p>On rehearing the court entered the following decree:</p> <p>And now, to wit: October 3, 1899, this matter came on for hearing, upon petition for rehearing, and testimony taken, and upon consideration thereof, it is ordered, adjudged and decreed, that the decree of distribution made in above case, dated May 26, 1899, be amended, by striking out so much thereof as distributes to Elizabeth C. McKown, $221.60, and the Manhattan Life Insurance Company, of the sum of $10,267.02. And it is further ordered and decreed that said sum, viz: $10,488.62, be paid in accordance with the schedule of distribution, unless an appeal be taken herefrom within twenty days.</p> <p>Distribution was made to sundry creditors of the decedent.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 80, Oct. T., 1900, by Margaret M. Atwell, from decree of O. C. Allegheny Co., April T., 1899, No. 51, dismissing exceptions to adjudication in estate of James C. McKown, deceased. Exceptions to adjudication.

<p>Appeal, No. 54, Oct. T., 1900, by defendants, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1897, No. 815, on verdict for plaintiff in case of William F. Patterson y. C. H. Brace and N. C. Brace, trading as Brace Brothers.</p> <p>Assumpsit to recover the price of boilers. Before Stowe, P. J.</p> <p>At tbe trial it appeared that the plaintiff contracted, to furnish and erect for defendants two 125 horse power boilers according to certain specifications, among which was the following :</p> <p>“ There shall be two Horizontal Tubular Boilers of 125 horse power each, the shells to consist of four plates, one on the bottom from head to head and extending up above the fire line, and three plates on the top. All of the best quality of flange steel so designed and braced that they shall be capable of carrying constant working pressure of 120 lbs. These Boilers shall be erected and bricked in upon suitable foundations, ready for pipe connections.”</p> <p>After the boilers had Been manufactured and delivered, defendants claimed that the specifications had not been actually followed. Their defense was summarized in their affidavit of defense as follows:</p> <p>The boilers, for the price of which this suit was brought, are not in accordance with’ said specifications in that the bottom plates of the shells do not extend up above the fire line, but are at least twelve inches below it, so that it would be impossible to properly erect said boilers and brick them in upon suitable foundations without exposing the longitudinal seams and rivets therein to the fire. By reason thereof the said seams would be liable to open and leak, and also to disable said boilers from carrying a constant working pressure of 120 pounds, and there would be consequent danger of explosion.</p> <p>The evidence as to what was the custom of the trade as to the location of a fire line is stated in the opinion of the Supreme Court.</p> <p>Defendants presented the following point:</p> <p>1. Under all the evidence the verdict should be for the defendants. Answer: Refused. [1]</p> <p>2. It being provided in the contract sued upon that “there shall be two horizontal'tubular boilers of 125 horse power each, the shells to consist of four plates, one on the bottom from head to head and extending up above the fire line,” if the jury believe from the evidence that the bottom plates of the shell of the boilers furnished did not extend up above the fire line, and that the defendants for that reason declined to accept or pay for said boilers as not being in accordance with the specifications, the verdict should be for the defendants. Answer: This point is refused. It takes from the consideration of the jury the principles I have been suggesting, the fact of a substantial compliance in effect and value and operation of a machine that does not in literal terms comply with the agreement. The burden of proof in a case of that kind is upon the plaintiff to satisfy the jury that that difference, where it exists, is of no substantial effect. It is for the jury to say whether or not there was a substantial compliance with the agreement; it is not a mere question of literal compliance. [2]</p> <p>8. The burden is upon the plaintiff to show that the boilers furnished by him to the defendants were in accordance with his contract. Answer: Affirmed, with the qualification that a literal compliance is not required. If the plaintiff has satisfied you that in all such respects as there is noncompliance with the contract, such failure to comply in no substantial or material respect affected the durability or fitness of the boilers for the purpose intended and contemplated by both parties, such literal noncompliance will not itself operate as a good defense to plaintiff’s suit. But the burden of the evidence is upon him, and he must satisfy you that such noncompliance was with the consent of defendant, or was immaterial in its effect upon the value and operation of the boilers.</p> <p>Verdict and judgment for plaintiff for $1,889.25. Defendants appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p> Negligence—Evidence—Master and servant. </p> <p>Except in the case of a carrier the rule is uniform, that where recovery is sought on the ground of negligence of the defendant, the burden of proof is on the plaintiff, and in an action against an employer some specific act of negligence must be shown.</p> <p> Negligence—Master and servant—Fellow-servants—Elevator boy and employee in tailoring department of dry goods store. </p> <p>A girl employed in the tailoring department of a dry goods store is a fellow-servant of a boy employed in the same store to run an elevator set apart for the use of employees in going to and from their work and in going from one floor of the building to another as their duties required.</p> <p>To constitute two persons fellow-servants, it is sufficient if they are in the employ of the same master, engaged in the same common work, and performing duties and services for the same general purpose.</p> <p> Negligence—Master and servant—Elevators—Fellow-servants—Evidence ■—Province of court and jury. </p> <p>In an action by a girl employed in the tailoring department of a dry goods store against her employer to recover damages for personal injuries, it appeared that the plaintiff was injured while riding in a passenger elevator provided for the use of employees. The elevator did not fall, nor did it appear that anything connected with it broke or was out of repair. For some reason wholly unexplained, the boy in charge of the elevator failed to stop it at the first floor, and it passed without any slackening of its speed to the basement of the building where it struck the floor with considerable foi’ce, iujui’iug the plaintiff. The elevator had been inspected a few hours before the aecident and found to be in good condition, and was in good condition immediately after the accident. There had been no trouble with the elevator during the preceding year. After the accident a device which acted automatically to check the speed of the elevator if it became too great, was adjusted. The boy in charge of the elevator was eighteen yeax-s old, had been fully instructed in his duties and had operated the elevator three months. Held, that there was no evidence of defendant’s negligence to submit to the jury.</p>

<p> Fraud—Damages—Agency—Option to purchase land. </p> <p>In an action of trespass to recover damages for an alleged conspiracy to defraud, the plaintiff’s evidence showed that the plaintiff had given to the principal defendant an instrument in writing which on its face was a contract of agency to sell land, but which seems to have been considered by the parties as an option. The person receiving the paper joined with him the other two defendants, and the three contracted in writing to give an option on the land to other persons at an advance in price over the agreement with plaintiff, but did not reveal to plaintiff the names of the purchasers. Shortly afterwards plaintiff notified the principal defendant that he had revoked the power to sell the property given to him in the agreement, and thereafter gave an option to another party to purchase the land. The defendants filed a bill in equity against plaintiff for specific performance, which bill was dismissed because the terms of the sale were never fully understood and agreed upon by the parties ; because the terms of the sale were not reduced to writing and signed by the party to be charged; and because the plaintiffs in the equity suit were not in court with clean hands. The evidence in the trespass suit showed that the plaintiff admitted substantially that it made no difference to him who became the purchaser so that he received the sum mentioned in the agreement. The evidence also showed that the principal defendant thought tha.t he had an option under his agreement with plaintiff. Held, that the evidence was not sufficient to establish the charge of conspiracy to defraud, and that a nonsuit was properly entered</p>

Appeal, No. 90, Oct. T., 1900, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. Term, 1897, No. 238, on verdict for plaintiff in case of Christ Waechter v. Second Avenue Traction Company. Trespass for death of plaintiff’s wife. At the trial it appeared that on April 25,1897, plaintiff and his wife were driving a buggy on the west-bound track of de- ■ fendant’s railway on Second avenue in the city of Pittsburg.

<p> Practice, Supreme Court—Assignments of error. </p> <p>The Supreme Court will not consider as a ground for reversal a detached sentence in the charge of the court, where it appears from the charge that the sentence complained of was not expressive of the opinion of the judge, but was a statement of the plaintiff’s contention.</p> <p> Negligence—Loss of boats—Defective moorings. </p> <p>In an action to recover damages for the loss of coal bai'ges and their cargo sunk by a fleet of the defendant’s barges, a verdict and judgment for plaintiff will be sustained where the evidence tends to show that the fleet of the defendant moored at a landing was too large for the stage of the water at the time, and that it was not securely fastened.</p>

<p> Insurance—Life insurance—Forfeiture of policy. </p> <p>Where a policy of life insurance provides for payment of premiums for twenty years, and that a portion of each premium shall be applied to a fund termed the advance insurance fund, and that after the policy has been in force three years and it is legally surrendered at an anniversary of the date of its issue, the advance insurance fund may be withdrawn or exchanged for a paid policy, or may be exchanged for extended insurance, the beneficiary, in an action upon the policy cannot, as an answer to the claim of the company that the policy had been forfeited for nonpayment of premiums, allege that the advance insurance fund was sufficient to extend the face value for more than ten years after the date of the failure to pay premiums, if it appears that the policy had not been surrendered legally at any anniversary of the date of its issue, or at any other timo, and that no request had ever been made to the company for a paid up policy, or extended insurance, or for the withdrawal of the advance insurance fund.</p>

<p>Appeal, No. 108, Oct. T., 1900, by plaintiff, from judgment of C. P. No. 8, Allegheny Co., Feb. T., 1899, No. 383,on verdict for defendants in case of Catharine L. Braun v. First German Evangelical Lutheran Church.</p> <p>Ejectment for a lot of ground in the fifth ward of the city of Allegheny. Before McClung, J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>At the trial the court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was in giving binding instructions for defendant.</p>

<p>Appeal, 101, Oct. T., 1900, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1900, No. 559, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Frederick Stoner v. Mary J. Wunderlich.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

<p> Negligence—Trespasser—Ghild of tender years. </p> <p>A child of tender years, who while trespassing on a freight train is frightened by.the shouts and threatening action of a brakeman, while in the discharge of his duties, so that he jumps from the train while it is in rapid motion, and is injured, may recover damages from the railroad company for the injuries sustained. Cauley v. Pittsburg &c. Ry. Co., 96 Pa. 398, and 98 Pa. 498, overruled.</p>

<p>Appeals, Nos. 106 and 107, Oct. T., 1900, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1896, Nos. 18 and 74, on verdict for plaintiffs in cases of John H. Smith and James M. Burroughs, executors of Joseph Beabout, deceased, v. Oliver L. Blachley, and John McCullough v. Oliver L. Blachley.</p> <p>Assumpsit for money had and received. Before Kennedy, P. J.</p> <p>At the trial it appeared that in 1888, plaintiffs paid to defendant the sum of $8,000 for the purpose of preventing the bringing of an alleged criminal prosecution against them and different members of their family, on the charge of procuring an abortion on the daughter of one of the plaintiffs. The evidence tended to show gross fraud and deception in the transaction itself, but there was no evidence that after the transaction was complete defendaht did anything or said anything to prevent investigation. If the plaintiffs had started an investigation at the time, they could have discovered the fraud. The circumstances under which the fraud was consummated are stated in the previous report of the case, in 188 Pa. 550. Defendant claimed that the action was barred by the statute of limitations, and requested binding instructions in his favor. Such instructions were refused.</p> <p>Verdict and judgment for plaintiff for $5,081. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

Appeal, No. 105, Oct. T., 1900, by-plaintiff, from order of O. P. No. 8, Allegheny Co., May T., 1899, No. 299, refusing to take off nonsuit in case of Mary E. West v. Louis Emanuel. Trespass to recover damages for the -death of plaintiff’s daughter.

Appeal, No. 96, Oct. T., 1900, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1897, No. 149, on verdict for plaintiff in case of James Dyer v. The Pittsburg Bridge Company. Trespass for personal injuries. Before Me Clung, J. At the trial it appeared that plaintiff was injured on March 23, 1897, while he was working for the defendant in the construction of a bridge.

<p>Appeal, No. 148, Oct. T., 1900, by plaiutiff,' from order of O. P: No. 2, Allegheny Co., July T., 1897, No. 637, refusing'to take off nonsuit in ease of Andrew Gray V. Fort Pitt Traction Company and the Consolidated Traction Company.</p> <p>' Trespass to recover damages for personal injuries. Before Fbazeb, J.</p> <p>• The facts appear by the charge of the court which was in part as'follows': '</p> <p>This is an action brought by Andrew Gray against the Fort Pitt Traction Company and the Consolidated Traction Company, lessee, to recover compensation for injuries sustained by plaintiff on June 24, 1896.</p> <p>It appears from the testimony in the case that Mr. Gray was a passenger upon one of the cars of the defendant company. In East Liberty he boarded what is known as a Fort Pitt car, which runs along Center avenue to Liberty avenue, and along Liberty avenue into the business part of the city. That car was followed at some distance by a Bloomfield ear. The Bloomfield cars run out Fifth avenue and across Millvale avenue into Bloomfield, then around onto Penn avenue, and come into the city in that way, running onto Liberty avenue a short distance.</p> <p>When the car upon which Mr. Gray was a passenger arrived at Taylor street it was stopped, Mr. Gray alighting from it. He had a bucket on his left arm, and also had some flowers in his left hand. According to bis testimony, after alighting from the car he took one step toward the pavement, that would be toward the north side of Liberty street, and he says he looked east and also looked west to see if there was a car coming, and he said he saw none; he then turned behind the car from which he had alighted to cross to the south side of Liberty street. As you know each car has a number upon its front and rear ends, and he says he was about opposite the number on the rear of the car, when some one, he thinks it was the motorman upon the Bloomfield car which had stopped some thirty or forty feet behind the car from which he had alighted, but at all events some one called to him to “ lookout.” That he turned his head toward the Bloomfield car and saw it standing there, but kept on walking toward and upon the east-bound track, and almost at the same instant, or within a few seconds afterwards, he was struck just as he had gotten upon the east-bound track by a car coming from the city, and seriously injured.</p> <p>********</p> <p>In this case when Mr. Gray alighted from the car onto the street he was in a place of safety, and it was his duty to remain there or to go to the sidewalk, and wait until the road was clear, or until he could see that it was clear. He says he looked toward the west and he saw no car coming; his view must necessarily have been obstructed by the car from which he alighted; he immediately turned behind the car and started toward the other track, walking between the ear from which he had alighted and the Bloomfield car and walked upon the east-bound track without stopping, looking or listening. Under the law I think he was guilty of contributory negligence and consequently cannot recover in these proceedings. He says he ought not to be held to strict accountability because he was in a place of danger and sudden peril. I am not sure that the doctrine applicable to cases of sudden peril applies in this case, but if it does, he got in that perilous position by his own fault, it was his own act that put him there, and under those circumstances the rule does not apply so as to relieve him from liability for a negligent act. Where a man finds himself in sudden peril through no fault of his own, and does what a prudent man would not do under other circumstances, the law does not hold him to the same strict accountability that it would if he was not in peril, but if the perilous position in which he finds himself is the result of his own act, he is not relieved from exercising ordinary care. According to the testimony of Mr. Gray himself he was not in a place of danger at any time until he got on the east-bound track, and at the time he was called to by the motorman on the Bloomfield car he was in no danger if he had heeded the warning and stopped. He was at that time on the west-bound track, about the middle of it, or at least between the center of it and the south rail, and in no place of danger, if his testimony is true that the Bloomfield car was standing still some thirty or forty feet east of where he was. Under those circumstances, stepping onto the east-bound track without stopping and looking was contributory negligence upon his part, and therefore he cannot recover in these proceedings.</p> <p>•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. 131, Oct. T., 1900, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1898, No. 320, refusing to take off nonsuit in case of Kate Sullivan, in her own right and as mother and next friend of Mary Sullivan et ah, minor children of Timothy Sullivan, deceased, v. The Consolidated Traction Company. Trespass to recover damages for death, of plaintiff’s husband.

<p>Appeal, No. 142, Oct. T., 1900, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1900, No. 473, dismissing bill in equity, in ease of American Clay Manufacturing Company, a corporation of Pennsylvania, v., American Clay Manufacturing Company, a corporation of New Jersey.</p> <p>Bill in equity for an injunction to restrain the use of corporate name.</p> <p>The facts were -substantially as follows :</p> <p>The bill was by a Pennsylvania corporation, doing business in the city of Pittsburg, against a New Jersey corporation of the same name, which began to do business in the city of Pittsburg and maintain an office there after the incorporation of the plaintiff, to enjoin the defendant from infringement upon the right of the plaintiff to the sole and exclusive use of its name and from doing business in the state of Pennsylvania in that name. The plaintiff was engaged in the manufacture and sale of building bricks and had in contemplation the test and purchase of clays suitable to the manufacture of sewer pipe, terra-cotta, fireproofing, etc. The defendant was engaged in the manufacture and sale of fire brick and sewer pipe. The New Jersey corporation was registered under the same name as the Pennsylvania corporation in the office of the secretary of the commonwealth and thereby obtained a license to transact business under that name in Pennsylvania. It established its main office in the city of Pittsburg and carried on an extensive business. Both companies in advertisements, letter-heads, envelopes and all other similar matters used the same name, but after the attention of the New Jersey company had been called to the matter, it added the words “ Of New Jersey ” in red ink under its name. The result of the similarity of names was great confusion between the parties in the matter of telephone address and delivery of mail, and in the making of checks and drafts by their correspondents. It was not alleged that the defendant company chose its name and was incorporated with a fraudulent intention, or with the object of competing with the plaintiff, or for the purpose of inducing the public to purchase its wares under the impression that they were those of the plaintiff.</p> <p>The court, Shaker, J., after finding the facts, delivered the following opinion:</p> <p>The object of the name of an individual, partnership or corporation is the distinction of its holder from all others. It frequently happens, however, that persons or companies have the same name, or names so similar as to be, in effect, the same; and this must necessarily give rise to confusion and annoyance to the parties themselves, and often to persons dealing with them, and sometimes to an unfair and fraudulent advantage to one party and loss to the other, by reason of such confusion in the minds of third persons. In the case of individuals whose names are acquired by usage from their parents and used from infancy, long before their holders entered upon any business, there can usually be no complaint of such an accidental similarity of names, although it may give rise to annoyance and loss. In the case of associations voluntarily formed and named, whether chartered or not, there is an opportunity to avoid such difficulty by refraining from choosing a name identical with or similar to that of associations already in existence. In the case of partnerships this is usually, perhaps always, done by those forming new associations, unless they have carelessly omitted to ascertain the existence of the prior named association, or have adopted its name with a fraudulent purpose. The same may be said of the formation of corporations, with the additional circumstance that the law requires those who desire to be incorporated to give public notice, which includes the name by which they desire to be chartered; and the authorities empowered to grant charters will not allow the use of a name theretofore appropriated. It seems, however, that the law of Pennsylvania does not provide for notice of the proposed registration of a foreign corporation, or enable the registering officer to refuse such registration where the name of the corporation has already been used in creating a domestic corporation. This would seem to be an omission calling for a legislative remedy. There is no doubt, and it is not necessary to cite cases to the effect that, where a name is used, even that of an individual, for a fraudulent purpose, its use will be enjoined, and this notwithstanding the issuance of a charter by the public authorities allowing the use of the name. We know of no case, however, in which it has been held that the use of a name which merely produces confusion in correspondence and inconvenience to the parties and those dealing with them has been made a ground of equitable interference. In every case which has been cited and in which an injunction has been granted, there has been an allegation of fraudulent advantage taken or intended to be taken by the new association over the old. While the circumstances of this case are unfortunate and sure to give rise to trouble to both parties, and we think that the defendant company exercised but little care in its choice of a name, yet, under the circumstances, we do not see that the plaintiff is entitled to a remedy in equity.</p> <p>The bill must, therefore, be dismissed with costs.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 147, Oct. T., 1900, oy plaintiff, from order of O. P. No. 2, Allegheny Co., Jan. T., 1899, No. 522, refusing to take off nonsuit in case of Andrew Bumbear, Jr., by his father and next friend, Andrew Bumbear v. The United Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before White, P. J.</p> <p>At the trial it appeared that plaintiff, a boy about fifteen years old, was injured on July 11, 1898, while riding on the side step of one of defendant’s electric cars. The circumstances of the accident are set out at length in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Natural gas companies—Relaying and repairing of pipes—Boroughs— Act of May 29, 1885, P. L. 29, sec. 12.</p> <p>A dispute which arises from the denial oí the right of a natural gas company to make excavations in a street in order to reach and repair its pipes without paying a certain license fee to a borough, is a dispute within the meaning of the twelfth section oí the act of May 29, 1885, which gives the courts power to define the duties oí natural gas companies as to relaying and repairing their pipes.</p> <p>Where a borough arbitrarily and in a spirit of resentment increases a fee imposed on natural gas companies for a permit to open streets from fifty cents to $3.00 for unpaved and $5.00 for paved streets, the coui’t of common pleas may properly reduce the fee to fifty cents for unpaved and $2.00 for paAred streets.</p>

<p>Appeal, No. 140, Oct. T., 1900, by-defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1898, No. 412, on verdict for plaintiffs in case of James Jones et al., trading as James Jones & Sons v. The Western Assurance Company.</p> <p>Assumpsit on a policy of marine insurance. Before White, P. J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Defendant presented the following points:</p> <p>1. Under all the testimony the verdict must be for the defendant. Ansiver: Refused. [1]</p> <p>2. If the jury believe under the testimony that Captain L. M. Clarke, who was in charge of the boat at the time of the accident, did not use proper care in shoving the boat off, after she had struck the pier, and that Captain Clarke broke the tiller rope, as shown by his own testimony, then the verdict must be for the defendant. Answer: Affirmed as to the first part of the point; refused as to the latter part, about the breaking of the tiller rope, as explained in the charge. [2]</p> <p>3. If the jury believe under the testimony that the owners of the boat abandoned her as a total loss without making any attempt to ascertain the injuries to the boat, or the amount necessary to put the boat in the same condition as before the accident, then the verdict must be for the defendant. Answer : Refused, if the plaintiffs in good faith gave notice of abandonment, honestly believing that tbe cost of repairs would exceed fifty per cent of the agreed value, and the defendant company, in pursuance of that notice, took possession of the boat, raised and repaired it. [3]</p> <p>4. If the jury believe that plaintiffs first agreed to assist in the repair of the boat, as testified to by Captain Daugherty, and then afterwards refused to pay their pro rata of the cost of repairs, the verdict must be for the defendant. Answer: Refused. First, the testimony of Captain Daugherty is controverted ; second, the point ignores the question of abandonment; third, it ignores the question of tender after the repairs were made. [4] „</p> <p>5. The court is requested to charge the jury that if they believe that there was an abandonment by the plaintiff, they can only recover in this suit for their losses in proportion as the sum herein insured, $3,000, bears to the agreed value in this policy, $8,000; that is, they can only recover three eighths of the amount required to put the boat in the condition it was at the time of the wreck. Answer .••Refused. [5]</p> <p>The court charged in part as follows :</p> <p>[If the assured unreasonably refused to join with the defendant in raising that boat when it could be raised and repaired at a less expense than fifty per cent of the agreed value, that is, less than $4,000, then the plaintiffs cannot recover the whole of this policy, and I will say to you that if that is the case here, there can be no recovery at all. [6]</p> <p>Verdict and judgment for plaintiff for $3,540. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

<p> Contract—Attorney at law—Fraud—Account—Equity. </p> <p>On a bill in equity against two attorneys to account for the sum of $8,000, it appeared that the plaintiff had authorized the defendants in writing to exchange certain real estate owned by him for stock in a corporation which he was very desirous of acquiring, and in addition to the real estate to offer the sum of $8,000 for the stock. He agreed in writing to allow defendants as compensation for their services any sum that they might be able to save out of the cash payments of $8,000. The attorneys effected the exchange without any cash payment and retained the $8,000 without revealing to the plaintiff the terms of the exchange. There was no evidence that the agreement had been procured from plaintiff by any fraud or concealment. Reid, that the bill was properly dismissed.</p>

<p> Contracts—Restraint of trade—Partnership—Consideration. </p> <p>An agreement in writing by the retiring member of a partnership not to engage in the same business as the partnership in the same county is valid, and the consideration for such an agreement is sufficient where it appears that the retiring member received for his interest a sum of money ascertained by a method set forth in the partnership articles, and that although he was required by the articles to offer his interest for this sum, his partners were not bound to accept it.</p>

<p> Tenants in common—Agreement by cotenants that one of their number shall buy the land held in common—Estoppel. </p> <p>Where several tenants in common join in a letter directing a mortgagee who is about to foreclose a mortgage on the land held in common, to convey the land absolutely to one of their number on condition that the latter pay the mortgage indebtedness, and a deed is subsequently made in accordance with this direction, the title to the premises passes in the absence of any evidence of fraud or concealment to the grantee, divested of any interest or claim which his former cotenants might have had therein. In such a case parol evidence that the grantee was to hold title for himself and his cotenants, in direct contradiction of the deed and the written direction to the mortgagee, is expressly forbidden by section 4 of the Act of April 22, 1856, P. L. 533; nor in such a case can it be contended that the grantee held the property under a trust ex maleficio not subject to the limitation of the 6th section of the act of April 22, 1856, but within the proviso of the 4th section of that act.</p> <p>It seems that trusts arising ex maleficio which are embraced within the proviso of the 4th section of the act of 1856, are also within the 6th section of that act.</p>

<p>No. 22, Jan. T., 1898. Appeal from C. P. No. 4, Phila. Co.</p>

<p>Appeals, Nos. 68 and 156, Oct. T., 1900, by W. J. Kountz et al., and by Frederick Gwinner et al., ' from order of G. P. No. 2, Allegheny Co., Oct. T., 1896, No. 614, dismissing exceptions to auditor’s report in the matter of the Trust Estate of the Pittsburg Wagon Works.</p> <p>Exceptions to auditor’s report, in the matter of the distribution of proceeds of the sale of real estate of the Pittsburg Wagon Works.</p>

Appeal, No. 151, Oct. T., 1900, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1897, No. 515, on verdict for defendants in case of W. G. Watson & Company v. Henry Lenz and James F. Richards, sheriff. Trespass for an alleged wrongful sheriff’s sale of lumber.

Appeal, No. 152, Oct. T., 1900, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1899, No. 716, on verdict for defendants in case of David H. Irwin et al. v. George W. Gutbrie et al. Ejectment for land in the twenty second ward of the city of Pittsburg. Before White, J. At the trial it appeared that plaintiffs claimed title as heirs of William H. Irwin, deceased.

Appeal, No. 144, Oct. T., 1900, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1900, No. 860, on bill in equity in case of Commonwealth of Pennsylvania ex rel. John P. Elkin, Attorney General, v. Charity Hospital of Pittsburg. Bill in equity to restrain tbe erection of a hospital.

Appeal, No. 157, Oct. T., 1900, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1897, No. 710, on verdict for plaintiff in case of Charles Lippincott & Company v. James R. Scott, assignee of Emma S. Kuhn. Replevin to recover a soda fountain. Before White, P. J. At the trial plaintiffs offered in evidence the following paper: “LEASE CONTRACT. “ This agreement, made this thirteenth day of November, 1893, by and between Chas.

<p> Adverse possession—Marketable title to real estate—Vendor and vendee. </p> <p>Where a person purchases land at a sheriff’s sale and takes a deed from the sheriff, and he and his successors in title hold the land continuously, notoriously and adversely for seventy-two years, a marketable title is acquired, although the defendant in the execution under which the sheriff’s sale was held had no record title.</p>

<p>Criminal law&emdash;Murder&emdash; Threats&emdash;Burglary&emdash;Evidence.</p> <p>/ On the trial of an indictment for the murder of a policeman where it</p> <p>/ appears that the prisoner had threatened to kill the deceased, evidence of a burglai’y which he had committed at' another place than at the place of the killing and prior thereto, is admissible, not for the purpose of fixing the grade of the crime, nor to show that the prisoner was likely to commit it, but because the burglary was connected with the threat, and the evidence tends to show that the killing was intentional, wilful and premeditated. The evidence is also admissible because it tended to show why the policeman was at the house to which the prisoner had fled, and where the killing was committed.</p> <p>On the trial of an indictment for murder of a policeman where it appears that the prisoner, after having committed a burglary at one place flees to a house where he proceeds to commit a second burglary, and while engaged in that shoots the policeman who had followed him from the scene of the first burglary, evidence of the second burglary is admissible, and it is immaterial whether, at the time of the killing, the policeman knew of the second burglary or not./'</p> <p> Criminal law&emdash;Murder&emdash;Common purpose. </p> <p>If a killing is the probable consequence of a crime in which the prisoner and others are engaged, the prisoner is chargeable even though the killing was done by another in the execution of the common purpose.</p> <p> Criminal law—Indictment—Time. </p> <p>It is not necessary except where time enters into the nature of an offense to prove the exact time alleged in the indictment. Any other time may be shown on the trial if it is prior to the finding of the indictment, and within the period prescribed by the statute of limitation.</p> <p>Where an indictment charges a killing on a day named, it may be shown at the trial that the deceased was shot on the day named in the indictment, and that he died of his wound four days thereafter.</p>

<p>Appeal, No. 155, Oct. T., 1900, by-defendants, from decree of C. P. No. 2, Allegheny Co., July T., 1898, No. 381, on bill in equity in case of Edward E. Robbins, assignee for benefit of creditors of James White v. The Westmoreland Coal Company et al.</p> <p>Bill in equity for an account.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p> Brokers—Commissions—Sale. </p> <p>It is always incumbent upon a broker seeking to recover a commission, to prove either that a sale was made to the party whom he procured as a purchaser, or that the purchaser was able and willing to buy, and the failure to make an actual sale was through no fault of the broker or his customer.</p> <p>If the services of the broker, whatever they be, fail to accomplish a sale, and many months after the proposed purchaser has decided not to buy, he is induced by other persons to reconsider his resolution, and then makes the purchase as the consequence of such secondary or supervening influence, the broker has no right to a commission.</p>

<p>Appeal, No. 167, Oct. T., 1900, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1891, No. 533, refusing to take off nonsuit in case of John Reese v. Frank L. Clark.</p> <p>Trespass for personal injuries. Before Collier, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial Eugene McCarthy, a millwright and a witness for plaintiff, being on the stand and having testified that he saw the condition of the furnace, counsel for plaintiff made the following offer: We offer to prove by the witness on the stand that if plaintiff, in moving the bricks, was working on the foundation that had supported the front plate of this furnace, at least four or five feet away from the foundation on which the plate that fell and hurt him was resting, the removal of these bricks from the front foundation would have no effect whatever in causing the falling of the plate.</p> <p>Objected to as generally incompetent and irrelevant.</p> <p>The Court: You may show how he was working and how the location was, and exactly what he did; and then the jury will judge from that whether his act caused it or not.</p> <p>Objection is sustained, and bill of exception sealed for plaintiff. [2]</p> <p>Eugene McCarthy, a witness for plaintiff being on the stand and having testified that he was a millwright, and builder of mills, and fully acquainted with the construction of furnaces, and had seen the condition of the furnace in controversy, and the position of the plate shortly before it fell, counsel for plaintiff made this offer:</p> <p>I want to know whether he, as an expert, knows what was the cause of this falling of the plate, and how it came to fall, what was the cause of the falling of the plate.</p> <p>Objected to as incompetent and irrelevant.</p> <p>Objection sustained and bill sealed for plaintiff. [8]</p> <p>The same witness was asked by counsel for plaintiff the following question:</p> <p>“ If that plate was standing in the- position in which you saw it shortly before the accident, and a person had been stationed to watch the plate, could he have given a person in front of it sufficient notice that the plate was about to fall-—sufficient warning in advance of the fall of the plate to have allowed him a chance to escape? ”</p> <p>Objected to as calling for a mere opinion; and not for any facts within the knowledge of the witness; and also because the witness testified that he did not see the plate on the day of the accident, until after the accident.</p> <p>Objection sustained and bill sealed for plaintiff. [4]</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were (1) refusal to take off nonsuit; (2, 3, 4) rulings on evidence, quoting the bill of exceptions; (5) striking out an opinion of the witness McCarthy.</p>

Appeal, No. 165, Oct. T., 1900, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1900, No. 436, on case stated in suit of St. Paul’s Evangelical Lutheran Church v. Earl P. Gray. Case stated to determine the marketable title to land which the plaintiff had agreed to sell to defendant.

Appeal, No. 164, Oct. T., 1900, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. 812, on verdict for plaintiffs in case of Henry McKnight and William L. Pierce, Executors of Elizabeth O’H. McKnight, v. William C. Denny. Trespass for injuries to real, estate.

<p>• Will—Issue devisavit vel non—Evidence—Opinions of witnesses.</p> <p>\ Allegations of want of testamentary capacity are not sustained by the testimony of witnesses called to express opinions that the testatrix was not fit to do business or make a will, where the opinions are not based upon iacts which sufficiently indicate the disappearance of the intelligence which the testatrix needed to dispose of her property.</p> <p>On the trial of an issue devisavit vel non, two witnesses were physicians who had been sent to examine testatrix by those interested in procuring opinions that her mind was impaired. The first having had a single interview with her, lasting but fifteen or twenty minutes, testified that he could not remember whether he had asked her any questions which she refused to answer, but concluded from her looks and age and because she and her house were unclean, that she was childish and unfit to make a will.</p> <p>The other, as a result of an interview of about the same duration, though unable to recall any question put to her, or whether she had made any reply, thought that she was childish because he had seen her and tried without success, to lead her into conversation. Held, that the evidence was insufficient to sustain a verdict and judgment against the will.</p> <p> Wills—Issue devisavit vel non—Insanity—Delusions. </p> <p>Delusions which are not in any way relevant to the making of a will, and from which the will does not result, cannot be regarded as sufficient to set it aside.</p> <p> Wills—Issue devisavit vel non—Undue influence—Time. </p> <p>Undue influence, however used, must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of making the testament. Solicitations however importunate cannot of themselves constitute undue influence; for though these may have a constraining effect, they do not destroy the testator’s power freely to dispose of his estate.</p>

<p>Negligence—Street railways—“ Stop, look and listen."</p> <p>In an action against a street railway company to recover damages for. personal injuries, it is not enough for the plaintiff to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he drove directly in front of a moving car. ■</p> <p>In an action against a street railway company to recover damages for personal injuries sustained in a collision between a wagon and an electric car, a nonsuit is properly entered where the witness for the plaintiff who saw the whole occurrence testifies that the plaintiff did not look when he turned his horses from the street to the track where he was struck, and the plaintiff’s own testimony as to the distance at which he said he saw the car when he turned, was shown to be incorrect by actual measurement in connection with the highest speed of the ear mentioned by any of the witnesses.</p> <p> Evidence—Jury—False or mistaken witness—Duty of court. </p> <p>When with the. certainty of an infallible mathematical test applied to the testimony of a witness, he is found to be mistaken in a material matter, it would be a travesty upon justice to allow a jury to consider such testimony, and a license to them to render a false instead of a true finding. Such testimony, is either intentionally false or mistakenly so; and in either case the court should instruct the jury to disregard it.</p>

Appeal, No. 70, Oct. T., 1900, by-defendants, from judgment of C. P. No. 2, Allegheny Co., April T., 1898, No. 919, on verdict for plaintiff in case of George L. Holliday v. Jennie Hively et al. Scire facias sur mortgage. Before White, P. J., who stated the facts to be as follows: 1.

<p>Appeal, No. 158, Oct. T., 1900, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1897, No. 627, on demurrer to statement in case of the Youghiogheny River Coal Company v. James H. Hopkins.</p> <p>Assumpsit on a coal lease.</p> <p>The plaintiff’s statement, after sotting forth portions of the lease, the material parts of which are quoted in the opinion of the Supreme Court, continued as follows:</p> <p>That in accordance with the said agreement, the plaintiff entered into the possession of the said demised coal tract, and mined and removed part of the said coal, taking all the ordinary precautions usually taken in mining and removing the said coal, and under the supervision and direction of the defendant in accordance with the provisions of the said lease.</p> <p>That in so mining and removing a portion of the said coal, a part of the surface overlying the same, belonging to Andrew Robertson et al., was necessarily injured and damaged, and at No. 89, December term, 1893, in the court of common pleas No. 1 of Allegheny county, an action for damages was entered by the said Andrew Robertson et al., against the plaintiff herein, the Youghiogheny River Coal Company, wherein it was alleged that the said Robertson et al., were the owners of the surface overlying part of the said Hopkins coal tract, under which part coal had been mined and removed, and damages caused to the said surface, and although the said suit was duly defended by the plaintiff herein a verdict was recovered therein against it, which with costs and expenses, including an appeal to the Supreme Court, amounts to the sum of $3,233.45, with interest from January 14, 1896.</p> <p>That due and formal notice was given to the defendant herein by the plaintiff herein to assist in defending the said claim for damages, as it was the duty of the said James H. Hopkins to do under his hereinbefore recited covenants, and he was further notified that plaintiff would demand reimbursement in case of an adverse decision in said suit.</p> <p>That plaintiff was compelled to pay the amount so recovered against it, and is now entitled to be reimbursed therefor by the said James H. Hopkins under his said covenants, and he is therefore now indebted to the plaintiff, the Youghiogheny River Coal Company, in the sum of $3,233.45, with interest from January 14,1896, as aforesaid.</p> <p>The grounds of demurrer were as follows:</p> <p>1. That under the covenants in the lease set forth in said statement on which said action is founded, plaintiff has no cause of action for reimbursement of the damages and costs recovered against the plaintiff in the said suit of Andrew Robertson et al. against the plaintiff at No. 89, December term, 1893, in common pleas No. 1 of Allegheny county.</p> <p>2. That the statement does not aver that the alleged representations of defendant to plaintiff’s agent, that defendant had the right to take and remove said coal without liability to the owners of the surface for any damage that might result thereto by reason thereof, were omitted from said lease by fraud, accident or mistake. And said representations do not of themselves constitute an agreement, and, as appears by said statement, were not contemporaneous with the execution of said lease.</p> <p>3. The statement does not show what damages were recovered in the said action of Andrew Robertson et al. against the plaintiff, nor the amount of the taxable costs therein, the plaintiff in no event being entitled to recover counsel fees or other expenses from the defendant in the present action, included in the lump sum of §3,233.45, sought to be recovered.</p> <p>4. That the said statement is in other respects uncertain, informal and insufficient.</p> <p>The court sustained the demurre:'.</p> <p>Error assigned was in sustaining the demurrer.</p>

<p>Appeal, No. 159, Oct. T., 1900, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1899, No. 612, non obstante veredicto, in case of Lawrence Casey v. Pennsylvania Asphalt Paving Company.</p> <p>Trespass for personal injuries.</p> <p>At the trial it appeared that the plaintiff, a colored boy, twenty-two years of age, was injured on October 9,1899, while in the employment of the defendant company at its manufacturing establishment.</p> <p>Slagle, J., stated the facts to be as follows:</p> <p>The evidence showed that the cog wheels upon which plaintiff fell were placed against a blank furnace wall and were used to revolve drums inside the furnace. The wheels were about on the level of the second floor of the building in an open space about four feet wide. Around this open space on the second floor was erected a close board fence about four or five feet high, so that access to the open space could only be had by climbing over it. Inside the fence was placed a plank about eighteen inches wide extending alongside the cog wheels. This plank was intended for the use of the engineer in oiling and repairing the machinery. It was not a passageway, as alleged by plaintiff, and ordinarily would be used when the machinery was not in motion.</p> <p>Plaintiff’s employment was in testing the sand as it came from the drums, and his location was on the first floor under and at the end of the open space above mentioned, through which he could see the cog wheels in operation above him. He had been so engaged for several weeks.</p> <p>On the day of the accident, Miller Remaley, who was in the employ of the company and in charge of the asphalt plant as foreman, called on the plaintiff to assist him in putting out a line of hose for the purpose of watering a pile of stone which was on the lower floor near the end of the plank above mentioned, and reaching in height nearly to the plank. The hose was attached to a hydrant on the second floor. Remaley took the end of the hose, climbing over the fence to the plank, walked to the end of it and stepped down to the stone pile, the space being open at that end. Plaintiff then turned on the water and remained on the second floor near the fence. In a short time afterwards the plaintiff climbed over the fence into the open space and immediately fell upon the cog wheels and was injured as described. No one saw him as he fell, and he himself could not clearly explain how the accident happened, • but said he was pulling the hose out.</p> <p>The jury returned a verdict of $5,000 subject to the following question of law reserved :</p> <p>Whether under the undisputed evidence the relation of Miller Remaley to the defendant company was such as to make it responsible for the consequences of his improper order. If the court should be of opinion that the company is not so responsible, then judgment to be entered in favor of defendant notwithstanding the verdict.</p> <p>Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Errors assigned were (1) in taking the verdict subject to the opinion of the court on the question of law reserved; (4) in entering judgment for defendant non obstante veredicto.</p>

<p> Practice—Appeals—Referee's findings of fact. </p> <p>A referee’s finding of fact, based upon sufficient evidence and confirmed by the court below, that the minds of the parties had never met in a contract, will not be reversed by the appellate court, except for manifest error.</p> <p>Practice, C. P.—Set-off—Certificate for defendant—Defalcation.act of 1705.</p> <p>In an action of assumpsit on an alleged contract, a plea of payment and set-off by defendant and a claim for a certificate in his favor do not constitute an admission of the contract, nor estop the defendant to deny it; and the defendant may be entitled to the certificate in his favor although the plaintiff has failed to establish the contract alleged in the statement of claim.</p>

Appeal, No. 127, Oct. T., 1900, by-Porter C. Friend, from decree of O. C. Allegheny Co., June T., 1898, No. 238, dismissing appeal from register of wills in the estate of Rebecca Jane Friend, deceased. Appeal from register of wills, admitting to probate the will of Rebecca Jane Friend, deceased. From the record it appeared that testatrix died on March 25, 1898,- at the age of seventy-two years, leaving the will in question executed on June 10, 1896.

<p>Appeal, No. 419, Jan. T., 1899, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 425, on verdict for plaintiff in case of Thomas H. Heist v. Frederick E. Blaisdell.</p> <p>Assumpsit for breach of contract. Before Audenreed, J.</p> <p>From the record it appeared that plaintiff claimed to recover the value of certain shares of stock in a corporation, which he averred that defendant had agreed to deliver to him as compensation for services. Defendant denied the contract as alleged by plaintiff, and averred that the stock which plaintiff was to receive was to be partly in payment for money loaned, and partly in payment for services rendered; that the money loaned had been repaid with legal interest, and that the present demand was usurious. The evidence was conflicting in character.</p> <p>The court charged in part as follows:</p> <p>Where a man loans money and agrees, in addition, to perform services of an indefinite value, a value which is hard to fix, there he may properly stipulate for some additional compensation for what he is giving under a contract over and above simple interest, and he may recover whatever he has a right to expect under the contract, in addition to simple interest.</p> <p>Yerdict and judgment for plaintiff for $7,500. Defendant appealed.</p> <p>Errors assigned were (1-25) various rulings on evidence and instruction.</p>

<p>Appeal, No. 331, Jan. T., 1900, by defendant, from judgment of O. & T. Cumberland Co., on verdict of guilty of murder in the first degree in case of Commonwealth v. Martin Fry.</p> <p>Indictment for murder. Before E. W. Biddle, P. J.</p> <p>At the trial it appeared that May 19, 1900, the prisoner shot Edward Collins, his brother-in-law, with a heavily loaded gun. The shot was fired across a table, and the distance from the muzzle of the gun to the deceased was about two feet. The court refused to strike out evidence of improper relation between the prisoner and Mrs. Collins.</p> <p>Verdict of guilty of murder in the first degree.</p> <p>On a rule for a new trial Frank Koser testified as follows, as to statements made by John Deckman, a juror, prior to the trial:</p> <p>“ Q. Do you know Mr. Deckman of Shiremanstown who was a juror in the Fry case? A. Yes, sir. Q. What is his name? A. John Deckman. Q. Now, Mr. Koser, what if anything did he (John Deckman) say to you prior to the Fry trial? A. Why he asked the question—I put it to him I guess it was. I told him he was drawn as a juror and he would be here on the murder case. It was something like that. Of course I didn’t say to him that he would be drawn on that, and he replied to me, ‘ Well,’ he says,’ they should hang him without a trial, if guilty.’ Q. What reason did he give? A. The murderer should hang without a trial to save expenses.”</p> <p>George W. Hetrick testified as follows as to statements made by John Senseman, a juror, prior to the trial.</p> <p>“ Q. Do you know Mr. Senseman who was a juror in the Fry case ? A. I am very well acquainted with Mr. Senseman. His name is James Senseman. Q. Where did you meet him? A. Well, the conversation occurred in my brother’s store at Kingston. He was relating to us what he heard and saw on his visit to the neighborhood where the murder occurred. And the conversation which he gave to us people in the store was such that fairly impressed upon my mind and others that this man Fry—”</p> <p>Objection.</p> <p>“ He also said that he heard that they caught Fry at the proper time, as he had already changed his clothing to leave the country. That he was a man of bad character, and from what he learned of the other people, that he was a man that would likely commit a crime of that kind. He expressed himself freely around there different times. He also expressed himself over at the hotel freely before the people in regard to the affair. And I heard a party say down there that he expressed himself so freely,” (objection) “ that he didn’t think he was a fit man to be on the jury. ”</p> <p>Verdict of guilty of murder in the first degree, in pursuance of which the defendant was sentenced.</p> <p>Errors assigned were (1) in not sustaining defendant’s challenge for cause of a juryman, who stated that he believed that he would be influenced in making up his verdict by scruples against capital punishment; (2, 3) in not granting a new trial because of the statements made by a juryman prior to the trial; (5) in admitting in evidence the model referred to in the opinion of the Supreme Court; (6) in refusing to strike from the record the evidence relative to the relations between the prisoner and Mrs. Collins.</p>

Appeal, No. 92, Jan. T., 1900, by John D. McMullin, administrator de bonis non, from decree of O. C. Phila. Co., July T., 1881, No. 83, dismissing petition for a citation in the estate of James Henry, deceased. Petition for citation. From the record it appeared that James Henry died at Philadelphia, December 15, 1880, intestate, leaving a widow and brothers, the latter living in Ireland.

Appeals, Nos. 124, 145, 150, 156 and 157, Jan. T., 1900, by Mechanics’ National Bank et al., from decree of O. C. Phila. Co., Jan. T., 1897, No. 324, dismissing exceptions to adjudication in the Estate of Franklin S. Hovey, Deceased. Exceptions to adjudication.

Appeal, No. 312, Jan. T., 1900, by plaintiff, from order of C. P. No. 2, Pbila. Co., March T., 1900, No. 784, discharging rule for judgment for want of a sufficient affidavit of defense in case of Kidder Elevator Interlock Company v. M. R. Muckle et ah, trading as M. R. Muckle, Jr., & Company. Rule for judgment for want of a sufficient affidavit of defense.

<p> Practice, O. P.—Judgment—Affidavit of defense—Setting aside judgment. </p> <p>Where a rule for judgment has been made absolute by the failure of the court to notice a supplemental affidavit of defense which had been allowed, and which was filed on the same day on which the judgment was rendered, the court may, before the record has been removed to the Supreme Court, correct the error by setting aside the judgment, and ordei'ing a roargument. In such a case if an appeal has been taken and discontinued pending the reargument, no suit can be brought upon the appeal bond.</p>

Appeal, No. 249, Jan. T., 1900, by defendants, from decree of C. P. No. 3, Phila. Co., June T., 1894, No. 1702, in partition proceedings in case of Harriet Palethorp v. Robert Palethorp et al. Bill in equity for partition by life tenant. See Palethorp v. Palethorp, 194 Pa. 408.

<p> Negligence—Gonlributoi'y negligence—Bicycles—Defect in road. </p> <p>In an action against a city to recover damages for personal injuries caused by a fall from a bicycle, a compulsory nonsuit is properly entered where it appears from plaintiff’s own testimony that while riding down a hill he lost his pedal in passing over a gully, and looking down to regain his pedal, struck another gully which was six or eight feet from the first gully, and which he could have seen if he had looked ahead, and was thrown and injured.</p>

Appeal, No. 218, Jan. T., 1900, by defendant, from decree of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 301, on bill in equity, in case of Michael J. McGinniss v. Adam Fink. Bill in equity for an account and to procure the cancelation of a writing. The plaintiff complained in his bill that he and Adam Fink in the month of January, 1895, formed a copartnership trading as M. J. McGinniss & Company, to manufacture upholstery goods in Philadelphia.

Appeal, No. 242, Jan. T., 1900, by defendants, from order of C. P. No. 1, Phila. Co., March T., 1900, No. 759, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Morris Felleman v. Frank G. Cassler and Hugh Brogan. Assumpsit for notes given in payment for a saloon.

Appeal, No. 281, Jan. T., 1900, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1897, No. 1080, refusing to take off nonsuit in case of Henry Born v. Philadelphia & Reading Railway Company. Trespass to recover damages for death of plaintiff’s wife. At the trial it appeared that on the morning of December 23, 1896, plaintiff’s wife and sister were driving in a wagon on a public road towards a crossing of the defendant company.

Appeal, No. 261, Jan. T., 1900, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1900, No. 432, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Solomon Wilde v. Edward deV. Morrell. Rule for judgment for want of a sufficient affidavit of defense. From plaintiff’s statement it appeared that Mother M. Katharine of the Convent of the Blessed Sacrament in March, 1894, was indebted to plaintiff in the sum of $5,000.

<p>Appeal, No. 308, Jan. T., 1900, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1896, No. 2560, M. L. D., sustaining exceptions to auditor’s report in ease of Warren-Ehret Company to use of Victor Paul v. Franldinville Ice Manufacturing Company et al., and W. W. Frazier, Receiver.</p> <p>Exceptions to auditor’s report.</p> <p>From tbe auditor’s report it appeared that in 1895, Samuel Morrison, James Morrison and William J. Blake promoted and organized tbe Franklin ville Ice Manufacturing & Coal Company. The number of shares subscribed for at the time of incorporation was 1901. Of these the Morrisons subscribed for 1,700 shares, and Blake for five shares. Prior to the incorporation an agreement was entered into between the Morrisons and Blake of the first part and the Franklin ville Ice & Coal Manufacturing Company of the second part, by which the parties of the first part agreed to sell to the company a lot of ground for $35,500. Part of the purchase money was to be in cash and the remainder in stock. Blake was the owner of the property, although certain work had been done upon it by the Morrisons. The arrangement between Blake and the Morrisons was that Blake was to be paid $1,000 above incumbrances, and the balance, being part of the cash and all of the stock, was to go to the Morrisons. The conveyance was made by Blake directly to the company. It was claimed that the value of the property was only $16,139.30, and that the work done by the Morrisons amounted to about $4,000. It was alleged that the difference between these sums and the purchase money was profit to the Morrisons. It was not shown before the auditor that any false representation had been made to any one, concerning the property, nor did it appear that any one was induced to subscribe for stock or to give credit upon any representation as to its value. The stock taken by the Morrisons remained in their possession unsold until tbe insolvency of the company. Before the auditor the Morrisons claimed from the fund realized by the sale of the company’s property, payment of a mechanic’s lien and a judgment held by them, and Blake claimed under a mortgage which had been given for his share of the purchase money under the agreement above referred to. The auditor disallowed the claims of the Morrisons on the ground that they were not entitled to recover by reason of the profit they had made by the sale of the land to the company. On this subject the auditor reported as follows :</p> <p>The case of Samuel and James Morrison is very different. They had no ownership in the land. Samuel Morrison had partly put up a building on the land for Blake and James Morrison, according to his own testimony. They were therefore indebted to him for the value of the building, and beyond that value he had no interest in the land.</p> <p>At the time of the sale the building consisted of four unfinished walls. The value of the unfinished building can be approximately arrived at by his own price fixed by him without competition in bidding $4,350, for furnishing all of the labor and material for making a completed building of the unfinished walls and putting up the engine and boiler house complete after the sale to the company.</p> <p>It can be assumed that with control of the board of directors and with no competition he did not bid at a losing price, and it is no unfair conclusion to find that the labor and material for the unfinished walls were worth no more than the labor and material required for completing the building inside and out, and building the two additional structures complete.</p> <p>Part of the cost of labor and material for the building before the sale is included in some of the liens to which the sale was subject—two of these, the Bihlmaier and Wallace and Corr liens, amounting to $354. The estimate of $4,000, owing to him by Blake and James Morrison is, in the opinion of the auditor, all thaff could be claimed as the value of the unfinished buildings. All therefore that Morrison received above that amount was profit.</p> <p>He was a promoter of the company, and subscribed with his brother to a controlling interest in the stock. He was the president and a director, and it was his duty to protect the corporation in the transaction with Blake. Instead of so doing he and his brother caused the company to accept the property at a fictitious price, and with his brother took the balance over Blake’s price as profit, thereby getting most of his stock without paying value for it.</p> <p>There is no evidence that James Morrison had any interest in the land. All that he received was therefore profit.</p> <p>Such a profit by one standing in a fiduciary relation to the company is a fraud on the company and bona fide stockholders, and the fiduciary making the profit is accountable to the corporation for the amount thereof.</p> <p>The auditor allowed the claim of Blake.</p> <p>Exceptions to the auditor’s report were sustained by the court in a per curiam opinion in which the court said:</p> <p>We are not satisfied that any evidence presented impeaches the regularity and good faith of the original sale to the company. In so far as the auditor has come to an opposite conclusion, we think he has fallen into error.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>

<p> Practice, C. P.—Affidavit of defense—Contract. </p> <p>In an action for goods sold and delivered, an affidavit of defense is sufficient, which avers that plaintiff had failed to deliver in the time provided by the contract, certain iron, in consequence of which defendant was compelled to go into the market and purchase iron elsewhere, which it did at an advance of a specified price per ton, and that the loss thus sustained should be set off against plaintiff’s claim.</p>

Appeal, No. 309, Jan. T., 1900, by plaintiff, from decree of C. P. No. 2, Pbila. Co., June T., 1889, No. 404, dismissing bill in equity in case of Samuel Wakeling, Executor of Mary A. Wakeling, Deceased, v. The Presbyterian Church 'of Frankford. Bill in equity for an injunction, to restrain the extension of a church building over land alleged to have been dedicated for burial purposes. The case was referred to Silas W. Pettit, Esq., as master.

Appeal, No. 226, Jan. T., 1900, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 775, refusing to take off nonsuit, in case of Arthur O. Granger v. Fidelity Insurance Trust & Safe Deposit Company. Trespass to recover damages for an alleged illegal sale of collateral for notes.

Appeal, No. 111, Jan. T., 1900, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dee. T., 1898, No. 1092, on verdict for defendant in case of Sarah DeDouglas v. Union Traction Company. Trespass to recover damages for personal injuries. Before Beitler, J. At the trial defendant set up a written release, and proved that it had paid plaintiff 150.00 at the time she signed the release.

Appeal, No. 63, Jan. T., 1900, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1893, No. 453, on verdict for defendant, in case of Walter G. Coburn v. Philadelphia, Wilmington & Baltimore Railroad Company. Trespass to recover damages for personal injuries.

Appeal, No. 92, Jan. T., 1898, by the commonwealth, from decree of O.. C. Piula. Co., April T., 1897, No. 325, sustaining exceptions to adjudication in estate of Sarah Linton, deceased. Exceptions to adjudication.

<p>Appeal, No. 159, Jan. T„ 1900, by plaintiffs, from judgment of Superior Court, Oct. T., 1899, No. 131, reversing judgment of C. P. No. 4, Pliila. County, March T., 1897, No. 564, on case stated, in suit of Waring S. Weed, Charles A. Weed and Sophronius A. Mundy, trading as W. S. Weed & Company v. J. K. Cumming.</p> <p>. Appeal from Superior Court.</p> <p>From the record it appeared that the suit was brought on a policy of fire insurance for $2,500 issued by the defendants and a number of individuals and firms associated without incorporation, as the Philadelphia Fire Lloyds, each firm or individual acting as a separate underwriter for its or his proportion of said insurance, and not one for the other. The separate amount insured by the defendant was $119.04. It was conceded that all of the premiums had been paid, and that the plaintiff had sustained a loss by fire within the terms of the policy. The court of common pleas entered judgment for plaintiffs on a case stated. On appeal the Superior Court reversed the judgment. See 12 Pa. Superior Ct. 412.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Contract—Building contract—Specifications—Elevators—Air cushions— Tests.</p> <p>Where a building contract provides a certain make of elevators and that certain patented air cushions shall be provided, and that the air cushions shall be subjected to certain tests, the contractor may recover for the elevators and air cushions without the test having been made, where it appears that he constructed the air cushions of the depth appearing upon the architect’s plan submitted to him, although the specifications were silent as to the depth of the cushions.</p>

<p>Appeal, No. 165, Jan. T., 1900, by defendant, from decree of C. P. No. 4, Pbila. Co., March T., 1898, No. 1181, on bill in equity in case of John Dickey v. John B. Stevenson, Jr., Appellant; West Brooklyn Land & Improvement Company and Title Guarantee and Trust Company.</p> <p>Bill in equity to compel the reassignment of the stock of a corporation.</p> <p>Willson, J., filed the following opinion: l</p> <p>The plaintiff, John Dickey, and the defendant, John B. Stevenson, Jr., for some years prior to 1888, had been intimately associated in business enterprises, and their relations were of a close and confidential character.</p> <p>On and before June 25, 1888, the plaintiff was the owner of about 200.shares of the capital stock of the West Brooklyn Land and Improvement Company, a corporation created under the laws of the state of New York, and the defendant Stevenson was the owner of eleven shares of the capital stock of the same corporation.</p> <p>On June 21, 1888, the plaintiff transferred to the defendant Stevenson fifty shares of the stock of the said corporation, and on June 25 of the same year a receipt or certificate for the same was written by the defendant Stevenson and delivered to the plaintiff. The paper referred to reads as follows:</p> <p>“ This is to certify that I hold subject to the order of Mr. John Dickey Fifty Shares of Stock of The West Brooklyn Land and Improvement Co. of the State of New York, and One hundred shares of the Stock of The Brooklyn Bath and West End Rail Road Company of said State. In Witness Whereof I have hereunto set my hand and seal this twenty-fifth day of June, A. D. 1888.</p> <p>“ John B. Stevenson, Je. [Seal]</p> <p>“ Witnesses signing:</p> <p>“ E. A. Millae,</p> <p>“ C. M. Mullin.</p> <p>, “50 sh. The West Brooklyn Land and Improvement Co.</p> <p>“100 sh. The Brooklyn Bath and West End Rail Road Co.”</p> <p>Although the foregoing paper refers to certain shares of stock of the Brooklyn, Bath and West End Railroad Company, there is nothing in the controversy which relates to those shares, and no further reference need be made to them.</p> <p>On the face of the document just recited it would appear that the defendant Stevenson took the fifty shares of stock of the West Brooklyn Land and Improvement Company simply as trustee or agent for the plaintiff, and in the absence of anything to the contrary, the presumption would be irresistible that it would be his duty to return said shares to the plaintiff on demand. This, however, he has refused to do, and the bill has been filed for the purpose of compelling him to transfer to the plaintiff said shares, together with any and all increments thereon.</p> <p>Without undertaking to recite all the averments of the bill upon the subject, it is sufficient to say that the plaintiff claims that these fifty shares were transferred to the defendant Stevenson after a sale by him, Stevenson, of the eleven shares of stock of the same company, which he had owned, for the purpose of giving him a status to continue an opposition to a certain policy of the company which he and the plaintiff had formerly opposed. The defendant Stevenson, however, in his answer denies that this was the purpose of the transfer of stock to him, and sets up an entirely different reason for the same. He says that the plaintiff for several years prior to 1888 had had dealings with Irvine C. Beatty & Company, and had invested with said firm some $71,000: that said firm was insolvent, and largely indebted to various persons; that the plaintiff, who was tbe president of the Ninth National Bank of Philadelphia, was claimed by some of the creditors of said firm to be a partner therein, and that the plaintiff was anxious to prevent this claim from coming to the knowledge of the public and of the said bank.</p> <p>The defendant Stevenson also alleges that James E. Mitchell was at that time vice president of said bank, and also a creditor of said firm; that the plaintiff was anxious that said Mitchell should not prosecute efforts to ascertain the facts in regard to the plaintiff being a partner in the said firm; and that to prevent him, Mitchell, from pursuing such investigation, the plaintiff was willing that Mitchell’s claim against said firm should be paid in full.</p> <p>There are many other details connected with these averments set forth in Stevenson’s answer, to which I do not deem it necessary to refer. It is sufficient to say that, in consequence of such state of affairs as Stevenson alleges to have existed, he avers that said fifty shares of stock “ were transferred under an oral agreement that if I succeeded in arranging matters with said Mitchell, and if no claim that plaintiff was a member oí the firm of Irvine C. Beatty & Company, should be established, all of said shares of stock should be retained by me as compensation for my services; but that if I did not succeed therein, and if it was established that plaintiff was in- fact a member of the firm of Irvine C. Beatty & Company, and liable for its debts, I should hold them for his benefit.”</p> <p>In a general way, the testimony of the defendant Stevenson supports his answer, but if the answer is not properly to be regarded as responsive to the plaintiff’s bill, the case would stand before me with the plaintiff and the defendant testifying directly to the opposite of each other, with the evidence of the transaction in writing altogether favorable to the view that the shares of stock in question were held by the defendant Stevenson simply as agent or trustee. In that event there would be, in my opinion, no escape on the part of the defendant Stevenson from the effectiveness of the plaintiff’s claim of title. I am obliged, however, to regard the answer of Stevenson as responsive to the bill. The plaintiff saw fit to set forth in his bill the circumstances under which he alleged that the fifty shares of stock were transferred to the defendant Stevenson, and it seems to me that the answer of Stevenson denying the matters alleged in the bill, and setting forth what he claims to have been the real circumstances under which the transfer was made, is directly responsive to the plaintiff’s case, and cannot properly be regarded as new affirmative matter which he is bound to establish by proofs.</p> <p>I have not considered it necessary in the foregoing statement of the case to set forth in detail the reasons upon which the plaintiff claims that the transfer of stock to Stevenson was made, because of the fact that the receipt or certificate for those shares upon its face indicates that the defendant, by the transfer, acquired nothing but a legal title, while the equitable title remained in the plaintiff; and therefore, if I were of the opinion that the proofs in the ease do not fully sustain the plaintiff’s averment on that subject, I would not consider that for that reason alone the plaintiff had failed to make out his case.</p> <p>The motives which induced the plaintiff to make the transfer are not so important as is the question, what was the nature of the transaction?</p> <p>It will be observed from what has been stated that the defendant’s claim of title rests upon the ground that he undertook to render certain services to the plaintiff which the latter deemed important in view of his relations to the firm of Irvine C. Beatty & Company; that the transfer of the stock to him was made under an agreement that if these services were successful, the shares of stock in question were to be retained by him as compensation for his services. He claims that his services were successful, and that therefore the complete ownership of the stock has vested in him.</p> <p>It is not claimed by Stevenson that the shares were transferred to him as a gift.</p> <p>It becomes necessary, therefore, for me to consider the proofs as they bear upon the question of whether or not the plaintiff’s proofs overcome the case which is stated in the defendant’s answer. It seems to me, after a careful consideration of those proofs, that they do. It is true that the plaintiff was never held to be a member of the firm of Irvine C. Beatty & Company. It is also true that no embarrassment was caused to tbe plaintiff by anything done by the said Mitchell. It appears to me, however, from the proofs in the case, that these conditions were not owing to anything that was done by the defendant Stevenson. On the testimony of Mitchell and of Irvine C. Beatty it not only appears that prior to June 21, 1888, which was the date of the transfer of the shares of stock, had the debts of the firm of Irvine C. Beatty & Company, generally been paid to the extent of about three fourths of their amount, but that Mitchell’s claim against said firm had also been paid to about the same extent, without the intervention of the defendant Stevenson in any way.</p> <p>No effort was made on the part of Mitchell or any other creditor, so far as I can see, to hold the plaintiff liable as a partner in said firm.</p> <p>The plaintiff, in his testimony before me, denies the existence of any such agreement as the defendant Stevenson alleges to have been made in regard to the transfer of the stock. That Stevenson did represent the plaintiff in some way in regard to the affairs of the said firm is no doubt true. This appears from the fact that an assignment of the plaintiff’s claim against the said firm was executed by the plaintiff to Stevenson on February 8, 1888, and,' according to the testimony of Mr. Beatty, Stevenson subsequently endeavored to obtain a confession of judgment from Beatty for the amount that was due to the plaintiff, in which attempt he did not succeed. It is not, however, alleged by the defendant Stevenson that the shares of stock were transferred to him as compensation for efforts to obtain from the said firm the amount due to the plaintiff. In point of fact, neither the plaintiff nor Stevenson, on his behalf, ever received anything on account of such claim. In his testimony Stevenson said that the part which it was understood he was to take in the matter, and for the successful carrying out of which he was to be compensated by the shares of stock in question, was a “ passive ” one, and he claims that having remained passive, and there having been no successful effort made to hold the plaintiff liable as a partner, he is entitled to hold the said shares of stock. I cannot agree with that position. In point of fact, he did not remain passive, according to the testimony of Mr. Beatty. The effort which he made to obtain a judgment in the interest of the plaintiff was one which was calculated, if Stevenson’s allegations are true, to stir up inquiry as to the plaintiff’s relation to the firm, rather than to quiet it.</p> <p>In the face of a clear and distinct recognition by Stevenson in the certificate, which has been hereinbefore incorporated, of the real ownership of the stock in the plaintiff, it seems to me that I ought to be somewhat strict in weighing the grounds upon which the defendant Stevenson now claims to have a complete title to the stock.</p> <p>The presumptions in favor of the plaintiff’s claim arising from the fact that Stevenson certified that he held the stock “subject to the order of Mr. John Dickey,” appear to me to be so strong that I ought to require that the consideration alleged to be the basis for the shifting of the ownership from Dickey to Stevenson should be real and substantia], and not such as might be found in the mere fact that no claim based upon the allegation that Dickey was a partner in the firm of Irvine C. Beatty & Company was made, when it also appears that Stevenson had nothing whatever to do with bringing about such state of affairs.</p> <p>I am of the opinion, upon the proofs submitted, that Stevenson had nothing whatever to do, either with the exemption of the plaintiff from such claim, or with the making of a settlement with the creditors of the firm of Irvine C. Beatty & Company to the advantage of the plaintiff.</p> <p>The answer of the defendant Stevenson, though I regard it as responsive, is, in my opinion, upon all the substantial points of the controversy, met by a sufficient amount of testimony of a contrary character to overcome its effect. It is not supported by any testimony other than that of Stevenson himself. 1 am therefore obliged to come to the conclusion that the plaintiff’s bill has been sustained by the proofs, and that he is entitled to a decree in his favor, directing that the fifty shares of stock which were transferred by him to the defendant Stevenson on June 21, 1888, shall be reassigned and transferred to him, together with all dividends and increments thereon which have accrued since the said date of transfer.</p> <p>A decree was entered in accordance with the opinion.</p> <p>Error assigned was the decree of the court.</p>

<p> Trusts and trustees—Will—Power of appointment—Orphans' court sale. </p> <p>By deed real estate was given to a trustee to hold for the cestui que trust during her life, and after her death to convey the same as she might by her last will limit and appoint among her children. By will the cestui que trust devised the property in trust until the decease of the last survivor of her children, to pay the net income to her children, and after the death of the last survivor to divide the principal in a manner specified among the descendants of her children. By a codicil she excluded a son and his descendants from sharing in her estate, but directed that the son should be paid a specified annuity during his life, and also gave her husband an annuity. After the death of testatrix a petition was presented to the orphans’ court for the sale of the real estate covered by (he deed of trust. The son who had been excluded by the codicil resisted the petition. Held, that the orphans’ court had jurisdiction to order the sale for the benefit of the estate, and as the proceeds of the sale would be held in trust in the exact place of the property sold, the question of the validity of the appointments by the will of the cestui que trust was premature.</p>

<p> Mechanics' liens—Building contract—Waiver of right to file lien by subcontractor. </p> <p>A subcontractor cannot file a mechanic’s lien where in his written contract with the contractor he “ waives all right to any mechanic’s claim or lien against the said premises, and agrees not to file any such claim or lien, and further agrees, for his heirs, executors, administrators, successors and assigns to sign a full, complete and absolute release of all liens, claims or demands whatsoever against said premises for work done or materials furnished therefor under this contract, when thereto requested by the said parties of the second part, their heirs, executors, administrators and assigns.”</p>

Appeal, No. 72, Oct. T., 1900, by the H. C. Frick Coke Company, from order of C. P. Westmoreland Co., Nov. T., 1899, No. 90, approving bond for a lateral railroad in the matter of the petition of Morris L. Painter, for a lateral railroad. Petition for a lateral railroad. The facts are fully stated in the opinion of the Supreme Court. Error assigned was the order approving bond in the sum of 15,000 entered by Morris L. Painter in favor of the H. C. Frick Company.

Appeal, No. 73, Oct. T., 1900, by-plaintiff, from-judgment of C. P. Westmoreland Co., Feb. T.? 1900, No. 63, on verdict for plaintiff in case of the II. C. Frick Coke Company v. Morris L. Painter et al. Appeal from the report of a jury of view in proceedings to condemn land for á lateral railroad.

Appeal, No. 326, Jan. T., 1900, by defendants, from order of C. P. No. 2, Pbila. Co., Sept. T., 1900, No. 146, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of John Crosby et al., trading as Brown Brothers & Company, v. James Dobson. Assumpsit on a written contract to purchase an interest in a mortgage.

Appeal, No 208, Jan. T., 1900, by plaintiff, from judgment of C. P. No 4, Phila. Co., June T., 1899, No. 794, for defendant non obstante veredicto in case of William C. Mayne v. The Fidelity and Deposit Company of Maryland. Assumpsit upon a bond of indemnity.

Appeal, No. 215, Jan. T., 1900, by John Y. Huber, from decree of O. O. Phila. Co., Jan. T., 1900, No. 145, overruling exceptions to adjudication in the estate of Elizabeth E. Abbott, deceased. Exceptions to adjudication.

<p> Negligence—Street railways—Look and listen. </p> <p>Electric street railway companies have not the exclusive use of their tracks, but iu their use their rights are superior to those of the traveling public, and their cars have the right of way. No one is warranted in assuming that if he first reaches the crossing he may go on, and that the whole duty of eare and vigilance is then cast on the motorman. The duty to look for an approaching car is au absolute duty, and failure to do so is negligence per se. This duty is not performed by looking when first entering on the street, but continues until the track is reached.</p> <p>In an action against a street railway company to recover damages for personal injuries, binding instructions for the defendant are proper where the evidence shows that the plaintiff in approaching a street having a double track street railway upon it, checked his horse almost to a stop and looked as he reached the house line of the street, but afterwards gave no further attention to the streetcars, and drove on thirty-two feet, not quickly to avoid danger, nor at an ordinary speed, but slowly to allow a wagon to pass in front of him, and went directly in front of a moving car, which he would have seen if he had looked again.</p>

<p>Appeal, No. 4, Oct. T., 1900, by defendant, from judgment of the Superior Court of Pennsylvania, at No. 40, April Term, 1900, affirming the sentence and judg- .. ment of the Court of Quarter Sessions of Allegheny County, 'March T., 1899, No. 128, in case of Commonwealth y. Edward P. Keary.</p> <p>Appeal from Superior Court.</p> <p>From the record it appeared that the defendant was indicted under the act of May 6, 1863, for illegally selling railroad tickets. A motion to quash the indictment was overruled, the defendant pleaded not guilty and at the trial was convicted. A motion to arrest the judgment was overruled, and the court sentenced the defendant to pay $50.00 fine and costs of prosecution. The Superior Court sustained the judgment. See 14 Pa. Superior Ct. 583.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p> Municipalities—Municipal bonds—Refunding. </p> <p>An issue of municipal bonds, is not invalid because a portion of the proceeds of the issue is to be applied to paying bonds previously issued for an existing and valid debt, although such bonds themselves may not have been lawfully issued.</p>

Appeal, No. 5, Oct. T., 1901, by plaintiff, from judgment of tlie Superior Court, April T., 1900, No. 119, affirming judgment of C. P. No. 3, Allegheny Co., Nov. T., 1899, No. 271, affirming judgment of alderman in case of' Owen McCann, trading as McCann & Company v. Commonwealth to use of Levi Wells, Dairy and Food Commissioner of the Commonwealth of Pennsylvania. Appeal from Superior Court: 14 Pa. Superior Ct. 221.

<p> Corporations—Foreign corporations—Insufficient parties—Stockholders' additional liability. </p> <p>The liability of stockholders of a foreign corporation for the debts of the corporation “ in double the amount of the par value of stock owned by them respectively,” cannot be enforced in this state by a suit in equity in' which some only of the creditors are parties plaintiff, and only one stockholder is a party defendant, and the corporation itself is not a party to the suit either as plaintiff or defendant.</p>

<p> and agent—Elevator—Painting elevator shaft. </p> <p>In an action by a house painter to recover damages for personal injuries from the owners of a department store, binding instructions for defendants should be given where the evidence shows that the plaintiff went to the store immediately after the close of business hours in order to paint the elevator, which he was accustomed to do by standing on the top of the elevator shaft while it was being gradually lowered by the elevator conductor; that immediately befoi'e the accident the elevator boy was just leaving to get his supper, expecting to be gone for a few minutes; that plaintiff objected to waiting so long, and thereupon the boy told him that he might run the elevator himself by pulling the ropes while standing outside of and upon the cage; that he accordingly got upon the top of the cage, the elevator being in good condition, pulled one of the ropes, started the cage upwards, was unable to stop it, and was crushed between the roof timbers and the elevator.</p> <p>In such a case it was not within the scope of the elevator boy’s employment, to ask or to permit the plaintiff to run the elevator; there was no occasion for submitting to the jury to determine whether or not the elevator boy was competent and trustworthy, or whether or not it was proper for him to go at the time he did, or whether there was any breach of duty upon the part of the defendants in allowing him to go to his supper without providing a substitute.</p>

<p>Appeal, No. 195, Jan. T., 1900, by plaintiff;, from decree of C. P. Lackawanna Co., May T., 1899, No. 2, dismissing bill in equity in case of Charles P. O’Malley v. Borough of Olyphant, Stephen Flanagan and Patrick O’Horo.</p> <p>Bill in equity for an injunction. Before Edwards, J.</p> <p>The facts are fully set forth in the opinion of the Supreme Court.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 232, Jan. T., 1900, by Charles P. O’Malley, from order of C. P. Lackawanna Co., Sept. T., 1898, No. 980, confirming report of jurors in the matter of the construction of a sewer in the first sewer district of the borough of Olyphant.</p> <p>Exceptions to report of viewers.</p> <p>The exceptions were filed by Charles P. O’Malley in his own behalf and in behalf of such others of the taxpayers of the borough of Olyphant as might desire to join in the exceptions. The exceptions were as follows:</p> <p>1. The erection and construction of the sewer was illegal, for the reason that the ordinance, under which the said sewer purported to have been constructed was not a valid ordinance of the borough of Olyphant, for the reason that a previous ordinance was in full force in said borough of Olyphant, inconsistent with the terms and provisions of the ordinance under which the sewer was constructed, and had never been repealed.</p> <p>2. The ordinance under which the said sewer was constructed never became operative as a legal ordinance of said borough, for the reason that it had never been recorded in the ordinance book of said borough, as required by law.</p> <p>3. The entire proceedings are illegal and void, for the reason that no petition from a majority of the property owners fronting on the line of the proposed sewer, nor from a majority of the property owners by foot front measurement, was ever presented to the council of the said borough, petitioning for the sewer, as required by law.</p> <p>4. No ordinance was over legally enacted into a law by the corporate authorities of the borough of Olyphant, authorizing the construction of the said sewer.</p> <p>5. The assessment of $2,603.53 upon the borough of Olyphant as a municipality, in this case, is illegal and should be set aside, for the reason that such assessment is an increase of the indebtedness of said borough, and the indebtedness of the borough is now largely in excess of the constitutional limit of two per cent of the assessed valuation of all the taxable property within the limits of the said borough; and its indebtedness cannot be increased to any amount whatever without the assent of the electors of the said borough, and no such assent of the electors has ever been obtained.</p> <p>' 6. The plans and specifications, under which said sewer purports to have been constructed, were never legally adopted by the authorities of the borough of Olyphant, and the same were never made a part of any ordinance, nor recorded in any of the borough books, as required by law. And the said work is illegal, for the reason that the minutes referring to the same have never been approved by the burgess of the borough and the president of the town council.</p> <p>7. The report does not correctly state all the damages, for the reason that, in the construction of the said sewer, without complying with the law, the lands of private persons were entered upon and occupied, and no proceedings were taken or had to secure the right to enter upon the said land under the right of eminent domain, or in any other manner; and the construction of said sewer upon the land of private parties is illegal and void, there being no authority in the law for the same, without proceedings to condemn the land having been previously taken.</p> <p>The exceptions were dismissed in an opinion by Edwards, J., on the ground that Charles P. O’Malley had no standing to file exceptions.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 185, Jan. T., 1900, by-defendant, from judgment of C. P. No. 2, Pbila. Co., June T., 1898, No. 784, on verdict for plaintiff in case of John McCusker v. Pennsylvania Railroad Company. Trespass for personal injuries. Before Wiltbank, J. The facts are fully stated in the opinion of the Supreme Court. The court charged in part as follows: [You are to consider whether the present condition of the plaintiff is due to the later accident and not to the earlier accident.

Appeal, No. 56, Jan. T., 1901, by Jacob Jurkovitz, from order of Q. S. Lackawanna Co., April T., 1899, No. 378, imposing costs in the matter of Contested Election of W. H. Thomas, Constable of the Eighth Ward of the City of Scranton. Rule to show cause why costs in an election contest should not be paid by the city of Scranton. The facts are fully stated in the opinion of the Supreme Court. Error assigned was order discharging rule.

Appeal, No. 224, Jan. T., 1900, by defendant, from judgment of C. P. No. 3, Pbila. County, Dec. Term, 1899, No. 243, on verdict for plaintiff, in case of Jennie Young v. Mercantile Steam Laundry Company. Trespass for personal injuries. Before McMichael, J. The facts are stated at length in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $4,500. Defendant appealed. Error assigned was in refusing to give binding instructions for defendant.

Appeal, No. 298, Jan. T., 1900, by plaintiff, from order of C. P. No. 3, Pbila. Co., June T., 1900, No. 991, refusing rule for judgment for want of a sufficient affidavit of defense in case of I. Wilfred Hart, Assignee of the Poughkeepsie National Bank, v. Robert Anderson. Scire facias sur mortgage. Rule for judgment for want of a sufficient affidavit of defense. The facts are fully stated in the opinion of the Supreme Court.

<p>Appeal, No. 229, Jan. T., 1899, by defendants, from judgment of Superior Court, Oct. T., 1898, No. 95, affirming judgment of C. P. Delaware Co., Dec. T., 1897, No. 230, on verdict for plaintiff in case of Thomas Dutton and Plienettie Alice Dutton, his Wife, v. The Borough of Lansdowne and George W. Statzell.</p> <p>Trespass for personal injuries. Before Clayton, P. J.</p> <p>At the trial it appeared that on December 19, 1895, Mrs. Dutton sustained personal injuries by the breaking of a sidewalk on which she was walking. The defective sidewalk was in front of the premises of George W. Statzell in the borough of Lansdowne.</p> <p>In the court of common pleas, the borough which had been jointly sued with George W. Statzell, presented, among others, the following point:</p> <p>5. Inasmuch as it is the duty of property owners to keep the sidewalks in repair, even if the boardwalk were in the highway, no recovery could be had against the borough where the property owner and the borough are joined in one action, because as between these two the liability of the borough is only secondary. Your verdict so far as the borough is concerned must be in its favor. Answer: I decline to so charge you.</p> <p>The jury returned a verdict for the plaintiffs for $687 against the Borough of Lansdowne upon which judgment was entered.</p> <p>On appeal the judgment was affirmed by the Superior Court.</p> <p>jError assigned was the judgment of the Superior Court.</p>

<p> Negligence—Master and servant—Risk of employment—Reasonably safe method of construction. </p> <p>An employer is not bound to make use of the very latest and best methods of construction, but may conduct his business in his own way, even though it be more hazardous than some other methods that might be devised. So long as the premises are reasonably safe, and the situation is apparent, upon inspection, the employee takes the risk, if he enters the employment.</p> <p>In an action by an employee against his employer to recover damages for personal injuries sustained by slipping on clay steps in defendant’s cellar, it appeared that the passageway in which the accident occurred was constructed by cutting away the solid earth, leaving clay steps and a clay formation upon which to walk. The steps were somewhat irregular, and of a higher rise than is usual. Plaintiff’s averment that the steps were wet and slippery was supported only by his own statement that when he arrived at the hospital his trousers were wet and muddy. Eight or nine witnesses for the defendant testified that the steps and floor were not wet or muddy. The passageway was lighted by one incandescent electric light, which was near the step on which plaintiff slipped. It did not appear that the plaintiff stumbled over any obstruction; he simply slipped. He had been through the passage three or four times shortly before the accident. Held that the evidence of defendant’s negligence was not sufficient to submit the case to the jury.</p>

<p> Trust and trustees—Wills—Spendthrift trust—Support of wife and children—Desertion act. </p> <p>A direction in a will that “all moneysorlegacies herein bequeathed are to be paid to the legatees in person, and to no one else, and shall not be assignable or transferable, nor subject nor liable in any way whatever for any debts or obligations of anyof said legatees, heretofore or hereafter incurred or contracted or created,” creates a strict spendthrift trust, the income of which cannot be attached in the hands of the trustee, by virtue of a warrant of seizure issued by a magistrate under the desertion act for the maintenance of the wife and child of the cestui que trust.</p>

Appeal, No. 231, Jan. T., 1901, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1899, No. 823, on verdict for plaintiff in case of A. McElwee v. Alfred N. Chandler and Arthur S. Chandler, trading as A. N. Chandler & Company. Trespass to recover back purchase money of stock of a corporation.

<p> Oil and gas lease—Royalties—Damages—■Confusion of goods. </p> <p>Where a lessee instead of drilling a well and operating the land in accordance with the lease, drills a well on adjoining property which he controls, in such a way as to drain the oil and gas from under the leased land, the measure of the lessor’s damages is royalties on a portion of the oil produced through the well, ascertained by comparing it with the total production through the well, in the same proportion as the lessee’s land within the circle drained bears to the whole area of drainage, the oil producing capacity of every part of the area being the same.</p> <p>In such a case the rule as to the wrongful confusion of goods should not be applied so as to give to the plaintiff royalties on all of the oil produced through the well, it being possible approximately to determine the amount of oil drawn from the lessor’s land.</p>

Appeal, No. 75, Jan. T., 1901, by-defendant, from judgment of C. P. Delaware Co., Deo. T., 1897, No. 25, on verdict for plaintiff, in case of Sarah K. Devlin, a minor, by her next friend, James K. Devlin and James K. Devlin and Sarah Devlin, his Wife, v. Beacon Light Company. Trespass for personal injuries. Before Hemphill, P. J., specially presiding. The case was previously reported in 192 Pa. 188.

<p>Negligence—Electric railways— Operation of construction car by contractors.</p> <p>Where an electric railway company permits a contractor engaged in ballasting a roadway to operate construction cars in the same block as passenger cars subject to the rules of the company and the orders of the company’s superintendent, the company is liable for injuries to one of its own motormen resulting from the failure of the contractor’s workmen properly to adjust a signal after entering a block. In such a case the plaintiff cannot be charged with contributory negligence in remaining in the service of the company after the contractor was allowed to use its tracks.</p>

<p>Appeal, No. 251, Jan. T., 1900, by-defendant, from decree of C. P. No. 4, Phila. Co., June T., 1899, No. 234, on bill in equity in case of Frederick H. Schell, Executor of Joseph E. Schell, Deceased, v. John H. Deperven, Executor of Henry Deperven, Deceased, Clyde E. Barton and Elizabeth S. M. Barton.</p> <p>Bill in equity for an account.</p> <p>The facts are stated at length in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p> Executors and administrators—Pledging securities of estate—Embezzlement by executor—Tmst and trustee. </p> <p>Testator specifically bequeathed certain stock in a corporation to his two executors as trustees. A, one of the executors, requested!}, a woman, of whose affairs he had charge, to lend a certain sum of money to the estate saying that the estate needed the money, and he agreed to give to her as collateral security some of the stock bequeathed to the executors as trustees. B made the loan and was shown the certificates of stock. The box in which B kept her papers was in A’s office. No assignment of the stock was made at the time. A was a man of good repute and B had no reason to distrust him. About three years afterwards, after B’s marriage, A delivered to her husband, a collateral note signed as executor, and the shares of stock above referred to, together with a warrant of attorney to transfer the same. B had no knowledge at the time she made the loan nor at the time the note was given that there was another executor, nor did the co-executor know anything of the transaction. A did not apply the money borrowed to the use of the estate, and subsequently disappeared. Held, that B was entitled to retain the stock as against the estate until the loan was paid.</p>

<p> Evidence,—Expert witness—Handwriting. </p> <p>An expert witness in handwriting may be permitted to use a diagram for the purpose of illustrating the meaning of his testimony where it appears that without such a diagram he could not make his meaning clear; and counsel in addressing the jury may refer to the diagram. The paper is not to be regarded, however, as a piece of evidence in itself, but simply as an aid to the witness and counsel in intelligently presenting to the jury the theory upon which the opinion of the witness is based.</p> <p>. Promissory notes—Fraud—Evidence.</p> <p>In an action upon a promissory note against executors where fraud is alleged in the making of the note, it is proper to admit in evidence proof that between the date of the note and the death of the testator, plaintiff received and took her interest on a note of much smaller amount, without saying anything about the note in suit.</p>

<p> Bills of exchange—Accept,anee for special purpose—Notice. </p> <p>In an action by a bank against the acceptor of a bill of exchange, a verdict and judgment for the defendant will be sustained where there is evidence that the draft was accepted for the special purpose of enabling the drawer to pay certain freight charges, and the bank discounted it with knowledge of the special purpose for which it had been accepted, and applied the proceeds to the payment of an overdraft by the drawer upon the bank.</p>

Appeal, No. 274, Jan. T., 1900, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1899, No. 986, refusing to take off nonsuit in case of George W. Wilkinson v. H. W. Johns Manufacturing Company. Trespass for personal injuries. At the trial it appeared that plaintiff was injured on January 18, 1898, while engaged in loading one of defendant’s wagons, and that plaintiff had been engaged in this occupation for about seven months.

<p> Will—Issue devisavit vel non—Forgery—Handwriting expert—Befusal of issue. </p> <p>The action of the orphans’ court in refusing an issue devisavit vel non to determine whether a signature to a paper purporting to be a will is a forgery, will be sustained, where the only evidence for the contestant- is the opinion of two alleged experts in handwriting, unsupported by any facts, while the genuineness of the signature is sustained by the testimony of thirty-one intelligent and reliable witnesses who were well acquainted with the decedent, and were familiar with his signature.</p>

Appeal, No. 335, Jan. T., 1901, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1900, No. 1423, refusing peremptory mandamus, in case of Charles J. Field v. Martha L. Robinson, Principal of Keystone Public Schools.

Appeal, No. 253, Jan. T., 1900, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1899, No. 783, refusing to take off nonsuit, in case of WyattS. Miller, a minor, and Robert G. Miller, his father, v. Union Traction Company. Trespass to recover damages for personal injuries.

<p> Executors and administrators—Commissions—Direction in will as to compensation of executors. </p> <p>Where a testator directs his executors to keep his real estate in good order and repair, pay taxes, water rent and interest on incumbrances, and pay to his wife the net rents and income during her life, and further directs that the executor shall be entitled to deduct from the gross income “ for their services as such executors the sum of five per cent thereon,” the executors are not entitled to a commission upon the sale or mortgage of the corpus of the estate.</p>

Appeal, No. 184, Jan. T., 1900, by-defendant, from judgment of C. P. Schuylkill Co., May T., 1884, No. 44, on verdict for - plaintiff, in case of Ann Llewellyn v. William Buechley. Ejectment for a lot of land in the borough of Pottsville. Before Bechtel, J. At the trial it appeared that defendant had a record title from one Jonathan Wynn. Wynn had divided a tract of land containing about seven acres in the borough of Pottsville into lots.