Volume 199 — Pennsylvania State Reports

Appeal, No. 858, Jan. T., 1900, by plaintiff, from judgment of C. P. Chester Co., Jan. T., 1899, No. 4, on verdict for defendant in case of Cidney Y. Peirce, Executrix and Trustee of Joshua N. Peirce, Deceased, v. Isabella E. Peirce. Assumpsit for use and occupation of a house.

<p>Appeal, No. 28, Jan. T., 1901, by F. X. Haser, from judgment of C. P. Delaware Co., Dec. T., 1898, No. 5, on verdict for plaintiff in case of the Delaware County Trust, Safe Deposit and Title Insurance Company v. John P. Volkhardt, George Wiegand, Emil O. Haas, David Traub and F. X. Haser et al.</p> <p>Assumpsit on a promissory note. Before Johnson, P. J.</p> <p>The facts are stated at length in the opinion of the Supreme Court.</p> <p>The court directed a verdict for plaintiff subject to points of law reserved. The jury returned a verdict for plaintiff, on which the court subsequently entered judgment.</p> <p>Error assigned among others was in entering judgment on the verdict.</p>

<p>Appeal, No. 272, Jan. T., 1901, by defendant, from decree of C. P. No. 1, Phila. Co., .March T., 1896, No. 1210, on bill in equity in case of James A. Bunting, Samuel J. Bunting and Charles A. Bunting, Executors of the Estate of Susanna L. Bunting, Deceased, v. James A. Bunting, John B. ■M. Showed, Appedant, and Mary M. Bunting, and James A. Bunting, Executors of the Estate of J. Ridgway Bunting, Deceased.</p> <p>Bid in equity for a partnership accounting.</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>Appeal, No. 290, Jan. T., 1900, by John Rulil, from decree of O. C. Phila. Co., April T., 1891, No. 279, awarding redistribution in the Estate of Sophia Yung, Deceased.</p> <p>Petition for bill of review.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree:</p> <p>The decree heretofore made on the adjudication of account of administrator is vacated and set aside, and it is ordered and decreed that adjudication be opened, and of the balance for distribution shown adjudication, one third thereof, or $832.61, is awarded to Johann Kreb, nephew; one sixth, or $416.36, to Christina Kreb, grandniece; one sixth, or $416.30, to Daniel Groh, grandnephew; interest from June 1, 1891.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 334, Jan. T., 1900, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1900, No. 130, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Johann Krebs, Christina Korb and Daniel Groh v. John Ruhl and Henry Kunzig, Appellant, and William Ruhl. Assumpsit on a bond of an administrator.

Appeal, No. 300, Jan. T., 1900, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 635, refusing to take off nonsuit in case of Luke Kehoe v. Philadelphia. Trespass for injuries to real estate.

Appeal, No. 74, Jan. T., 1901, by plaintiffs, from judgment of C. P. Berks Co., June T., 1899, No. 35, on verdict for defendants, in case of Francis H. Bright and Helen C. Bright, by their Guardian, the Pennsylvania Trust Company, v. John A. Esterly and Thomas A. Willson. Ejectment for land in the city of Reading.

<p>Appeal, No. 346, Jan. T., 1900, by plaintiff, from order of C. P. Berks Go., April T., 1899, No. 64, refusing to take off nonsuit in case of Ella Kupp v. Herman F. L. Rummel.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Ebmentbout, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Negligence—Contributory negligence—Railroads—“ Stop, look and listen ”—Province of court and jury.</p> <p>In determining the question of the contributory negligence of a plaintiff in a grade crossing case, it is not only necessary to consider the plaintiffs conduct, but also that of the defendant. Both parties have the right to be at the crossing, and each has the right to act with the belief that the other will exercise his right at the place, in the manner and way his duty requires him to do. The duty of the company at a grade crossing is to run the locomotive at a rate of speed, not dangerous to pedestrians exercising due precaution. The pedestrian is justified in believing that the railroad employees will perform their duty in this respect, and can act on this belief without any imputation of negligence. If the locomotive approaches the crossing at such a reckless rate of speed as to prevent the traveler on the highway from protecting himself by the use of sight and hearing, in the position he has placed himself, and which would have been safe had the defendant used the care demanded of it, the plaintiff cannot be charged with negligence.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing, the case is for the jury where the evidence for the plaintiff, although contradicted in every essential point, is in effect that the plaintiff approached the crossing on a very foggy morning before daylight, that she stopped about twenty feet from the track, from which point on a clear day she could have seen an approaching train for two hundred and fifty feet, that she looked and listened but saw and heard nothing, that she then proceeded slowly, and when in the act of stepping on the track was struck by a locomotive which was running very fast and approached the crossing without giving any signals.</p>

<p> Equity—Pleading—Specific charges—Parties—Municipal contracts— Bribery. </p> <p>A bill in equity to rescind a municipal contract on the ground of the bribery of the councilmen who awarded it, should not be dismissed for want of speeificness in designating the parties guilty of the fraud, where it appears from the bill that the total number of councilmen was thirty-two, and it is averred that “ certain members of councils ” entered into the unlawful arrangement, that the said “ certain members ” were twenty-seven in number (twenty-six of whom were defendants) and the bill sets forth the names of those voting and awarding the contract with a further averment that “ the said majority of council ” awarded said contract pursuant to the corrupt and unlawful arrangement, and that three councilmen naming them were paid a sum stated for their vote and for their services in inducing other councilmen to vote for the contract.</p> <p>Public policy requires the closest scrutiny to be given the official acts of municipal authorities and when they are procured by fraud the court should not hesitate to declare them void. While the pleadings charging official corruption should be specific and sufficiently certain to aver the fraudulent conduct and the parties charged therewith, yet the court should not be astute in detecting insufficiency and thus shielding the accused official from disclosing his official acts. If they tend to criminate him, he can protect himself; and until he asserts his right to do so, his accuser should be granted every facility to investigate his conduct. Per Mestkezat, J.</p>

Appeal, No. 262, Jan. T., 1900, by defendants, from judgment of C. P. Lycoming Co., Deo. T., 1898, No. 268, on trial by court without a jury in the case of Mary H. DuFour and William M. DuFour v. N. B. Bubb and Fred M. Allen. Ejectment for a house and lot in Williamsport.

Appeal, No. 164, Jan. T., 1900, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1896, No. 692, on verdict for defendant, in case of Benjamin W. Hughes v. H. R. Leonard, P. R. Foley and W. G. Ritner, trading as Leonard, Foley & Company. Trespass to recover damages for personal injuries. Before Audenried, J. The facts appear by the opinion of the Supreme Court. The court directed a verdict in favor of defendants. Verdict and judgment for defendants.

<p> Equity—Injunction—Labor unions—Apprentices </p> <p>An employer who requires that his workmen shall not be members of labor unions, and who has a contract with his apprentices by which they covenant not to join labor unions, may maintain a bill in equity for an injunction to restrain persons with a knowledge of these facts from enticing his apprentices to break their covenants and to become members of a union.</p>

Appeal, No. 121, Jan. T., 1901, by-defendant, from judgment of C. P. Chester Co., Jan. T., 1900, No. 57, on verdict for plaintiff in case of Florence C. Owens v. Benjamin W. Haines, Executor of Marshall Shaw, Deceased. Ejectment for a lot of ground situate on the southeast corner of Market and Walnut streets in the borough of West Chester.

Appeal, No. 19, Jan. T., 1901, by George B. Jones, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in the Estate of Mary Jones, Deceased. Exceptions to the report of John J. Pinkerton, Esq., auditor. The facts are stated at length in the opinion of the Supreme Court. Error assigned was decree dismissing exceptions to auditor’s report.

Appeal, No. 233, Jan. T., 1900, by defendant, from judgment of C. P. Wyoming Co., Oot. T., 1899, No. 131, on verdict for plaintiff in case of Lorenzo E. Girton and Maud Girton v. The Lehigh Valley Railroad Company. Trespass for personal injuries. Before Dunham, P. J. At the trial it appeared that on July 24, 1899, Maud R. Girton, the wife of L. E. Girton, was injured while crossing the tracks of the defendant company at Ransom station.

Appeal, No. 71, Jan. T., 1901, by plaintiff, from decree of C. P. Berks Co., Equity Docket, 1900, No. 784, refusing a preliminary injunction in the case of Charles A. Mory v. Oley Valley Railway Company and Borough of Boyertown. Bill in equity for an injunction. Motion for preliminary injunction.

Appeal, No. 205, Jan. T., 1900, by-defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1895, No. 548, on verdict for plaintiff, in case of Alexander Morrow v. Delaware County and Philadelphia Electric Railway Company. Trespass to recover damages for personal injuries. Before McMichael, J. The facts are fully stated. in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $8,000. Defendant appealed.

Appeal, No. 69, Jan. T., 1901, by plaintiff, from order of C. P. Centre Co., Jan. T., 1901, No. 121, refusing writ of peremptory mandamus in case of Commonwealth ex rel. John P. Elkin, Attorney General, for use of the School District of Patton Township, v. James E. Barnett, State Treasurer of the Commonwealth. Petition for peremptory mandamus.

<p> Equity—Equity pleading—Responsive answer—Corporation. </p> <p>An answer in equity of a corporation, sworn to by an officer on his personal knowledge, is entitled to the benefit of the equity rule that a responsive answer is evidence, only to be overcome by the testimony of two witnesses, or of one witness with corroborating circumstances, and is not to be regarded as mere pleading.</p> <p> Equity—Equity practice—Want of equity—Corporation. </p> <p>Although a bill in equity against a corporation by its general manager for discovery and an account might be dismissed because of want of equity due to the fact that the plaintiff had all the facts within his own knowledge, yet if the case has been referred and the question of jurisdiction has not been raised until a large amount of testimony has been taken, the court will not dismiss the bill, but will endeavor to reach an end of the controversy.</p> <p> Equity—Accounting—Corporation. </p> <p>On a bill in equity by the general manager of an insurance company against the company for an account, where it appears that the plaintiff under his agreement with the company was entitled to a percentage of gross premiums less expenses, and certain disputed items are entered in his books as expenses, such items should be charged against the plaintift in the accounting.</p> <p> Corporations—Insurance companies—General manager—Contract. </p> <p>Where the general manager of an insurance company was entitled under his contract with the company to “ twenty per cent of all gross premiums received by the company ” less expenses, etc., and it appears that the course of business was for the agents to deduct their commissions first, and the company only to receive in cash the premiums after such deduction, and it also appears, that the defendant had agreed that “ the gross premiums ” should be considered for the purpose of determining plaintiff’s commissions, the total amount of premiums, without any deduction of agents’ commissions; the defendant cannot set up a usage of the business that “ gross premiums ” meant the total premiums less agents’ commissions. .</p> <p>Where a general manager of an insurance company was compensated by a percentage of the premiums less expenses, an allowance made to an agent in the settlement of a dispute about premiums collected, is an expense chargeable to the manager.</p> <p>Where a general manager of an insurance company who is also a director has the management of the business of the company “subjectto the control and direction of the president and board of directors,” and receives as his compensation a percentage on the gross premiums, he commits a gross violation of his duty to his employer, in keeping the board of direction dead locked, thus making his own powers as manager absolute and irresponsible.</p>

<p>Appeal, No. 177, Jan. T., 1900, by plaintiff, from decree of C. P. No. 1, Phila. Co., June T., 1897, No. 1326, on bill in equity in case of William Kane v. Schuylkill Fire Insurance Company.</p> <p>Bill in equity for an account and discovery.</p> <p>See Kane v. Schuylkill Fire Insurance Company (No. 1), ante, p. 198.</p> <p>Before the referee it was claimed that the taxes on the Schuylkill Fire Insurance Company should not he included in the expenses which plaintiff was obliged to pay under his contract of employment. It appeared that it was the plaintiff’s practice to charge the taxes against the company, and not as expenses. On this subject the referee reported as follows:</p> <p>It appeared from Mr. Balfour’s cross-examination that he, as treasurer of the company, was the only person who drew or could draw checks upon the deposit account of the company, which was kept in the Quaker City National Bank, and that the checks showed on their faces the purposes for which they were drawn, as for fire losses, taxes, etc. A number of sample checks were produced before the referee. It was argued from this that as Balfour knew that the checks were drawn to pay taxes from the bank account of the company, he must have known that Kane was not paying the taxes as he did other “expenses of the company, and that, therefore, he must have known and acquiesced in Kane’s practice of charging these taxes against the company. The argument does not, however, convince the referee. Mr. Balfour’s practice in thus signing checks is not inconsistent with his belief and expectation that the amounts would be charged in the books against Kane’s commissions.</p> <p>Up to April, 1897, the relations of the parties were entirely friendly; no cause of difference had developed; Mr. Balfour reposed entire confidence in Kane, and left all the details of the business to him. Neither party seemed to have any thought that any difference of opinion existed between them.</p> <p>' The referee has concluded, as matter of law, that the words “ all expenses ” in this contract, includes the annual taxes paid by the company, and is further of opinion that the evidence of a usage or custom contrary thereto, or of any waiver of a right arising by virtue of that contract, must be sufficiently clear and distinct to enable the referee to find something equivalent to a new agreement upon the subject. Such is not the case here, and the referee accordingly is of the opinion, and so concludes, that the legal effect of the contract between the parties was not varied by any contrary usage, custom or waiver.</p> <p>Exceptions to the referee’s report were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to referee’s report.</p>

Appeal, No. 194, Jan. T., 1900, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1898, No. 418, on bill in equity in case of Henry L. Gantt v. The Cox & Sons Company. Bill in equity for an account.

Appeal, No. 62, Jan. T., 1901, by plaintiff, from order of C. P. Northampton Co., June T., 1899, No. 27, refusing to take off nonsuit in case of Amanda E. Savitz v. Lehigh & New England Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Before Schuyleb, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 87, Jan. T., 1901, by defendants, from judgment of C. P. Northampton Co., Feb. T., 1901, No. 51, on trial by court without a jury in the case of The Freemansburg Building & Loan Association, to use of Jacob B. Kemerer and J. Stewart Shick, Assignees of the said The Freemansburg Building & Loan Association for the benefit of creditors, v. Henry C. Watts, Administrator of Sarah A. Watts, Deceased, and Henry C. Watts.</p> <p>Scire facias sur mortgage.</p> <p>The case was tried by the court without a jury, under the act of April 22, 1874.</p> <p>Scott, J., filed the following opinion:</p> <p>Sarah A. Watts became the holder of ten shares of stock in this building association on November 23,1896. She borrowed therefrom $1,000 February 22, 1897, and in addition obtained a similar loan on April 26, receiving in the aggregate $1,800 as the.net amount, less premiums paid. To secure the payment of this sum she had previously executed with her husband, a bond and mortgage, dated November 30, 1896, the time application was made for the money.</p> <p>The condition of the obligations provided for the payment “ of the just sum of two thousand dollars in equal monthly instalments of ten dollars each on the fourth Monday of each and every month during the time the said principal sum remains unpaid according to the act of assembly and the terms and provisions of the constitution and by-laws of said association, and interest thereon payable in like monthly instalments of ten dollars.” The mortgage stipulated that the first instalment of principal and interest should commence on December 28,1896. The certificate for the ten shares of stock was assigned to the association as collateral security, subject to the continuing liability of the assignor to pay the dues. The mortgagor made default at different times in her engagement, but paid $225 as interest altogether on the loans. She paid also the further sum of $265, the appropriation of which, whether to mortgage indebtedness or the stock account, is the subject-matter of this dispute. The building association became insolvent, and made an assignment December 11, 1899. Neither prior to this last mentioned date, while the right of express appropriation existed in both, nor since, was any notice given by either that these payments would be applied in any particular manner. As the insolvency of the association dissolved the ordinary contract relations of membership (Strohen v. Franklin Saving Fund & Loan Association, 115 Pa. 273), the liability of a borrowing stockholder is measured by the usual rules enforced between creditor and debtor. The assignee of the mortgagee may recover the amount actually loaned with interest, less the sum actually paid on account of it (Strohen v. Franklin Saving Fund & Loan Association, 115 Pa. 273), or appropriated to the debt before knowledge of insolvency: Quein v. Smith, 108 Pa. 331. Payments made on the stock are not afterwards to be applied to the mortgage, for others’ rights have intervened: York Trust, etc., Company v. Gallatin, 186 Pa. 158. Equitable distribution of the appreciated value of the stock in that series is then to be made among the shareholders. The burden is upon the debtor, as in all other cases, to prove a discharge from any part of his indebtedness.</p> <p>Stock payments before insolvency are not ipso facto a partial discharge of the mortgage debt. “ It is true according to former decisions, the mortgagor may apply his payments on the stock to the mortgage debt, a license to do so being implied in the nature of these building loan transactions. The building association may also apply them by virtue of the terms of the assignment of the stock which is taken as collateral security. But in order to effectuate application of payments on stock to the debt, it requires an act of appropriation by one or the other of the parties: ” Spring Garden Association v. Tradesmen’s Loan Association, 46 Pa. 495.</p> <p>In the plaintiff’s association, article 6, section 2 of the bylaws required a borrowing member to transfer to the corporation one share of stock as collateral security for every loan of $200, “ and the interest on all loans shall be paid monthly from the time of bidding for the same.”</p> <p>“ Each stockholder is held by his contract to compliance with all the by-laws and “ to pay punctually his monthly dues, fines and interest: ” Article 5, section 4.</p> <p>By article 3, entitled dues and fines, “ each stockholder for each and every share of stock shall pay .... the monthly contribution or sum of one dollar .... until the value of the whole stock in the series shall be sufficient to divide to each, and every share of stock the sum of two hundred dollars.”</p> <p>The accounts kept with defendant’s intestate by the association and the entries in the pass-book retained by her, are made up under the respective designations of “dues,” “interest,” “ extra,” “ fines.” As this controversy relates to the sum of $265, paid and credited under this first stated heading, the meaning of which is defined by the by-laws above cited, of the association, to embrace stock payments, there is little room for discussion of the question of appropriation to the debt itself, irrespective of other evidence. Proof of payments made by defendant in any case will not be sufficient to apply them to the loan. “ Presumptively they were for fines and dues: ” Selden et ux. v. Reliable Savings & Building Association, 32 P. F. Smith, 338.</p> <p>It is the contention of the defendant that the recitals in the bond and mortgage which are hereinabove set forth, constituted at the inception of the contract, an appropriation to the discharge of the loan by the debtor of the monthly dues when paid: York Trust, etc., Co. v. Gallatin, 186 Pa. 150.</p> <p>The provision of the bond in that case expressly stipulated that “ all money heretofore paid or hereafter to be paid by me into the association on the stock I now hold in the same, shall be taken and considered as payments on and in liquidation of this bond.” The chief justice said, “ It is difficult if not impossible to conceive of language more positively expressive of appropriation: ” p. 159.</p> <p>The obligation of this defendant provided for repayment of the loan in equal monthly instalments of $10.00 each, and interest thereon to the same amount, “ according to the act of assembly and the terms and provisions of the constitution and by-laws of the said association.” The apparent effect of this written stipulation alone without other considerations and relation to the by-laws is to require the payment of $10.00 each month directly on the debt, and $10.00 interest in addition to payment of $10.00 as dues under the by-laws on the stock which she held. If these were the contract relations, there is nothing to imply that all money paid monthly in said amounts should be credited to the debt, when1 there is another open account demanding similar payment, nor is there anything in the written engagement which then makes particular appropriation of it; certainly not, in any event unless both accounts are satisfied each month in full, for when no more than $10.00 was paid (besides interest) whether this was received on the mortgage debt or on the stock is the very proposition in controversy, which the defendant must solve by proof. The requirement to make monthly payments of $10.00 on the stock, under article 3 of the by-laws, is just as obligatory as the provision for repayment of the loan, and no more than $10.00 was ever paid monthly and credited as “ dues.”</p> <p>The condition of the mortgage, however, by reference incorporates by-laws of the association into the contract. They contain no provision respecting the manner in which the loan shall be repaid, except as implied from article 3, in line with the general business methods of such corporations. The borrower “ shall secure the payment of said loan with legal interest by satisfactory bond and mortgage,” and for each loan of $200, transfer one share of stock as collateral: Article 6, section 2. Each stockholder for every share held shall pay “ the monthly contribution or sum of one dollar until the value of the whole stock in the series shall be sufficient to divide to each and every share of stock the sum of $200: ” Article 3. Under this plan of liquidation, all payments, without special directions otherwise in a particular case, are made on the stock, and when the whole value of that series (not the aggregate payments made thereon), is worth for distribution to the holders $200 on each share, the mortgage is satisfied, and the debt extinguished, as the association holds the certificate. If this were not done, the value of the stock could never equal the loans, and if the payments were not applied to the shares, the assignments as collateral would add nothing to the security. The only interpretation that seems admissible to the condition of the mortgage that the loan shall be repaid in equal monthly instalments of $10.00, according to the provisions of the by-laws, is that payments shall be made on the stock, until the loan is discharged by making the stock equal in value to the debt. Without evidence at least of a different purpose this would be an express appropriation by the contract itself, of the monthly dues to the stock instead of to the loan. In York Trust Company v. Gallatin, supra, a similar provision of the by-laws substantially was written in the condition of the bond, and not made part of it, as here by reference. It was assumed and practically held that in the absence of the additional clause of specific appropriation, payments made other than interest were upon the shares. The evidence furnished by the ledger account of the corporation and the entries in the pass-book received by the defendant, is convincing proof that this arrangement was mutually adopted and accepted during the three years of membership.</p> <p>The decedent became the owner of her shares in November, 1896. The loans were not effected until February and April following, but by the terms of the mortgage the first instalment of principal and interest was to commence December 28. Her account with the association opens in November, and she is charged $10.00 in the “ dues ” column, but nothing for interest, and payment of the same is credited. In December a charge is made of $10.00 for dues and $5.00 interest, and so entered and paid each month until June, after the last $1,000 had been received. From December to May but $1,000 stands in the “ loan ” column of the monthly account after which time the additional $1,000 appears. As $5.00 only was charged monthly until June for interest, because only half the loan had been actually received, if the entry under the head of “ dues ” had been charged and paid as an instalment on the mortgage debt eo nomine, the proportionate appropriation would have been $5.00 also, instead of $10.00, the amount of stock dues.</p> <p>The item paid in November, before the defendant was a-borrower at all, was necessarily a stock payment. From that time to the end, the entries of debit under the designation of dues, follow exactly the account begun in November, when she was not a debtor. As no additional monthly charge of $10.00 was ever entered or paid, it is clear the parties did not contemplate that the debt was to be satisfied in any way other than by payment of the monthly dues on the stock. If the debt itself was to be treated as discharged pro tanto by the amount of monthly dues, why should interest be paid for several years on the original principal sum ? If the contract itself did not make this appropriation, the association, with the acquiescence of the debtor, did. The aggregate sum in dispute was charged as monthly dues on the stock and so paid.</p> <p>The amount for which plaintiff is entitled to judgment appears in the following statement:</p> <p>Defendant received on two loans, $1,800.00</p> <p>Interest on $900 from February 22, 1897 to November 13, 1898,...... 93.30</p> <p>Interest on $900 from April 26,1897 to November 13,1898,...... 83.55</p> <p>Total,....... $1,976.85</p> <p>Credit interest paid to November 13, 1898, 225.00</p> <p>Balance, . ...... $1,751.85</p> <p>Interest to February 11, 1901, 236.50</p> <p>$1,988,35</p> <p>Fines imposed before assignment and unpaid, . 13.80</p> <p>$2,002.15</p> <p>Upon payment thereof the debtor may demand reassignment of the stock and participate in distribution with other creditors of the insolvent corporation.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 256, Jan. T., 1900, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1899, No. 237, on verdict for defendant in case of Sidney Holmes v. Union Traction Company. Trespass to recover damages for personal injuries.

Appeal, No. 229, Jan. T., 1900, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1899, No. 467, on verdict for defendant in case of Jacob J. Simmons v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Beitler, J. At the trial it appeared that on October 14, 1897, plaintiff while driving a one-horse wagon approached a grade crossing of defendant’s road.

Appeals, Nos. 217 and 311, Jan. Term, 1900, by plaintiff and defendant, from judgment of C. P. Northampton Co., Nov. T., 1897, No. 31, on verdict for plaintiff in case of Crown Slate Company v. Albert O. Allen. Assumpsit to recover for an alleged wrongful overpayment, and for assessments on stock. Before Schuyler, P. J. The facts appear by the opinion of the Supreme Court. At the trial Alfred Doney was called and sworn for plaintiff.

Appeal, No. 55, Jan. T., 1901, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1900, No. 57, on verdict for defendants in case of Charlotte Kostenbader v. William J. Kuebler, Charles E. Kuebler and Frank A. Kuebler. Ejectment for the Star Hotel in the city of Easton.

<p> Insurance—Accident insurance—Proof of death. </p> <p>Where a beneficiary under an accident insurance policy sends proofs of death to the company by a person who is employed merely as a messenger, and without any other authority real or apparent to act for the beneficiary, and the company returns the proofs of death to such person with notice to him to furnish additional proofs, and the latter sends back to the company the proofs of death, but does not inform the beneficiary of the notice to furnish additional proofs, the company cannot, after the expiration of the time specified in the policy within which proof of death must be made, and after it has retained the proofs returned to it until the trial, be heard to say that the proofs had not been furnished in time.</p> <p>An accident insurance policy issued to a physician contained the following clause: “This policy covers septic poisoning resulting from accidental incision or abrasion of the cuticle and the simultaneous infection thereof while insured is performing a surgical operation or autopsy.” The insured died of septic poison. On the day the insured died a notice was sent to the company that death was due to “ septic meningitis, due to infection from operating on a case of septicaemia.” Subsequently proofs of death and affidavits were sent to the company stating that the insured was infected while examining a patient, giving specific details. At the trial it was shown that the examination and manipulation described in the affidavits came under the head of surgical operations. Held, that the proofs of death were sufficient.</p>

<p> Negligence—Street railways—Collision between car and wagon—Contributory negligence. </p> <p>In an action against a street railway company to recover damages for personal injuries, the evidence showed that plaintiff drove a two-horse team, drawing a load of hay from a hotel yard out upon a street forty feet wide from curb to curb. The defendant had two tracks upon the street, and a space of more than twelve feet was left upon each side between the curb and nearest rail. When the plaintiff drove out of the yard, he stopped his team with the front wheels resting in the gutter; he was upon the east side of the street, intending to go north. He looked up, and saw a car approaching from the north, coming upon the south-bound track which was the one most distant from him. He testified that he thought the car was far enough away to permit him to drive across both tracks before it reached him. He, therefore, started his team to go directly across, and when his front wheels were on the south-bound track, the wagon and car collided, causing the injury to plaintiff. There was nothing to put the motorman on notice of any impending collision, until the horses had actually stepped upon the track upon which the car was approaching. Held, that plaintiff was guilty of contributory negligence, and could not recover.</p>

<p> Attorney at law—Negligence. </p> <p>An attorney at law who has properly drawn an agreement of sale and has given proper advice in reference to it, cannot be held liable because the agreement was not carried out, where it appears that the attorney had nothing whatever to do with the negotiations leading up to the agreement, or with the subsequent transactions .between his client and the vendees.</p>

Appeal, No. 308, Jan. T., 1901, by Katie Doorly et al., legatees under the will of George J. Kaiser, from judgment of Superior Court, No. 22, Feb. T., 1900, reversing decree of O. C. Lycoming Co., March T., 1899, No. 24, refusing a writ of partition in the estate of George J. Kaiser, deceased. Petition for partition. The facts are fully stated in the opinion of the Supreme Court. Error assigned was the judgment of the Superior Court,

Appeal, No. 86, Jan. T., 1901, by plaintiff, from order of C. P. Clinton Co., May T., 1898, No. 107, refusing to take off nonsuit in case of Chester Prouty v. Charles Kreamer. Assumpsit on a contract for the sale and delivery of logs. Before Mayer, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 234, Jan. T., 1900, by plaintiff, from order of C. P. No. 4, Phila. Co., March T., 1900, No. 89, refusing mandamus in case of Commonwealth ex rel. Michael O’Rourke v. Charles E. Davis and others, constituting the department of education under the act of June 1, 1885.</p> <p>Petition for mandamus.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to award mandamus.</p>

<p>Appeal, No. 17, Jan. T., 1901, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1899, No. 880, dismissing bill in equity in case of The Hale & Kilburn Manufacturing Company v. William M. Norcross.</p> <p>Bill in equity for an injunction.</p> <p>Sulzberger, J., filed the following opinion:</p> <p>This cause came on for trial on bill, answer and proofs on November SJ2, 1899, and was duly heard on that day and on the following day.</p> <p>The plaintiff prayed for an injunction commanding defendant to assign to it certain letters patent, and also restraining the defendant from assigning to any other person the said letters patent, applications therefor or licenses thereunder.</p> <p>The substantive averments on which this prayer for relief is based are as follows: That the plaintiff is a maker of car seats, that in September, 1887, it employed the defendant as foreman of its machine shop at a salary of $25.00 a week; that on January 1, 1888, his salary was increased to $1,650 per year; 'that on December 31, 1888, he asked for a further increase which was granted in consideration of his oral agreement with the plaintiff to exercise his best efforts and his inventive faculties for the purpose of devising new constructions and making improvements in the articles made by the plaintiff, and particularly in car seats, and that he would assign all such new constructions or improvements as he might devise or invent to the plaintiff without further consideration, for its sole benefit and advantage. That the defendant left plaintiff’s employment on May 31, 1899. That of defendant’s inventions during his employment he assigned to plaintiff patent No. 436,313, applied for December 12, 1899, and issued September 9, 1890, and patent No. 605,124, applied for July 23,1897, and issued June 7, 1898. That other inventions of the defendant during his aforesaid employment have been patented for the defendant’s benefit without the plaintiff’s knowledge or consent as follows: Patent No. 551,326, applied for October 4, 1894, issued December 10, 1895, for reversible car seats; patent No. 610,719, applied for April 7, 1898, issued September 13, 1898, for improvement in car seats; patent No. 623,255, applied for January 11, 1898, issued April 18, 1899, for improvement in car seats; and patent No. 623,256, applied for June 20,1898, issued April 18, 1899, for improvement in car seats. That the plaintiff has demanded the assignment of the last-named four patents tendering to defendant reimbursement for cost and expenditures, but the latter refuses to assign. That the defendant has applied for patents on other inventions made during his employment with the plaintiff and to the benefit of which by assignment plaintiff is entitled. But that the defendant refuses to disclose to plaintiff what such inventions are. That the defendant intends to assign the patents issued to him or grant licenses thereunder to business competitors of plaintiff.</p> <p>The defendant by his answer denies the oral agreement to invent and assign on which the bill is based. He explains that the patents by him assigned to plaintiff were for inventions made by Mm at the plaintiff’s special request at its shop, in the time paid for by it, with its materials and with the aid of its workmen; and that the patents were applied for and assigned at the plaintiff’s request and expense.</p> <p>He further avers that for the other inventions and the patents therefor taken and retained in his own name he used his own time, materials and money, and that the plaintiff has no right in them.</p> <p>He denies that the plaintiff ever requested an assignment of the letters patent last referred to or ever tendered reimbursement for cost and expenditures. He further denies any present intention to sell or assign or grant licenses.</p> <p>The important question of fact in dispute is whether the agreement of December 31, 1888, was made, as alleged by the plaintiff.</p> <p>The claim of the plaintiff is that the agreement was oral, that it was made on a day not precisely fixed, but a little earlier than January 1, 1889, at the plaintiff’s building, 48 and 50 North Sixth street, in Mr. Kilburn’s office in the rear of the store, and that there were present the defendant, Henry S. Hale, Cheyney Kilburn, Artemus Kilburn and J. Warren Hale, the latter being the officers of the company. All of these parties testified except Cheyney Kilburn, who died in 1894.</p> <p>The evidence of J. Warren Hale on this particular point is:</p> <p>“Mr. Norcross asked for this increase of salary, and stated that if we would give him $2,000 a year he would devote his best efforts to improving our car seats and other things manufactured by the concern, and if any patents were obtained he would assign them to the company.” The engagement was for one year from January 1, 1889.</p> <p>Mr. Henry S. Hale’s narrative is as follows :</p> <p>“Mr. Norcross said that if we would pay him $2,000 a year, he would use his best efforts to improve our car seats and other articles of machinery, and so forth, and if he succeeded in getting up anything worthy of a patent, he would assign the same to us free of charge, or words to that effect. We also agreed, at that time, that he wasn’t to be charged for any lost time, and he was not to charge us for any overtime.” It was about Christmas time, the last days of December, 1888.</p> <p>Mr. Artemus Kilburn was the superintendent of the manufacturing department, though not an officer of the company. His recollection of the conversation is as follows:</p> <p>“ Mr. Norcross came in and said to my brother, ‘ Mr. Kilburn, I want my wages raised.’ He asked him how much. He wanted $2,000 a year. It was agreed to pay him the $2,000 a year with the understanding that he should do his very best to make all improvements possible for our interest. My brother said it didn’t make so much difference what we paid him, if he only worked for us, and he agreed to do the very best he could, and if he made any improvement in car work, or any work about our place, worthy of being patented, he would get it patented and assign it over to us.”</p> <p>On cross-examination it appeared that this witness had on a prior occasion, to wit: on July 12, 1899, narrated the statement of Norcross as follows: “ He said, ‘ Mr. Kilburn, I want $2,000 a year; then I will do the very best I can for you, if I get that money, in the way of making improvements.’ ” This was all that took place.</p> <p>The testimony of the defendant on this subject is as follows: “ Q. Did you ever have any conversation with any other person than Cheyney Kilburn in reference to the increase to $2,000 a year? A. No, sir. Q. Was he the only person there? A. Yes, sir.”</p> <p>The Court: “ Q. Did you ever have any conversation with Cheyney Kilburn in the presence of witnesses who have been here and testified that they heard a conversation about your increase of wages to $2,000; or after you had had your talk with Cheyney Kilburn did they come in and have the thing resumed to them by W. Kilburn—did any such thing happen ? A. No, sir; I was not present in that office at that time that they state. Q. Nor at any other time when such a conversation or anything like it happened ? A. No, sir. ...”</p> <p>The testimony of the defendant thus flatly contradicts that of four witnesses produced by the plaintiff. There was nothing in the manner of any of the witnesses which gave the impression that any of them intended to falsify the facts. The events described had happened about eleven years before the hearing, and the liability to error from defective memory was therefore considerable. In coming to a conclusion as to what really happened all the circumstances must be carefully considered.</p> <p>The defendant, Norcross, was originally employed by the plaintiff company in September, 1887, at the rate of $1,650 per annum, as the foreman of the machine shop. The engagement for the plaintiff was made by its president, Cheyney Kilburn, who died before this controversy arose. The purpose for which he was employed is definitely fixed by the fact that the defendant came to the plaintiff by answering the latter’s advertisement in the Public Ledger of September 13,1887, which was as follows: “Wanted, in a machine shop, runs all small iron work, a thoroughly experienced machinist to take charge of about twenty men. Must possess first-class mechanical ideas, and be able to make his own tools. . . .”</p> <p>On September 21, 1887, the defendant saw Mr. Cheyney Kilburn, the president, and this occurred: “ I told him 1 could fill the position. He asked me what wages I would want. I told him to commence with, I would want $1,650 a year. He said, ‘ We will pay you that.’ ” He commenced his work on September 26.</p> <p>At this point we come upon the means of testing the value of the memory of the respective witnesses.</p> <p>J. Warren Hale testified positively, as if from knowledge, that the defendant was engaged in September, 1887, at $25.00 a week, and that commencing January 1,1888, it was increased to $1,650 a year.</p> <p>At the time in question the witness was secretary of the company.</p> <p>Henry S. Hale, who at that time in question was treasurer of the company, testified on this subject apparently from an inspection of the records, because he says that defendant’s salary in the fall of 1887, was ‘ according to our records, $25.00 per week.” The salary was increased on the following January to $1,650 per annum.</p> <p>All this was flatly contradicted by the defendant’s evidence, and yet in cross-examination no question was asked him on the subject, he was not confronted with the evidence of the records in their possession, nor was he asked in any way to qualify or explain. The reasonable inference is that after hearing his evidence the plaintiffs found that their testimony on this head was erroneous.</p> <p>Of itself this might not be of the greatest importance, but, unfortunately for the plaintiff, it tends to show that one of the witnesses, J. Warren Hale, labors under an infirmity of memory and that another, Henry S. Hale, testified to the effect of records on insufficient examination and with too little care.</p> <p>The third witness to the alleged agreement, Artemus Kilburn, gave an account of what happened on July 12, 1899, and another at the hearing on November 22, 1899.</p> <p>On the second occasion he remembered that the defendant had said, “ if he made any improvement in ear work, or any work about our place, worthy of being patented, he would get it patented and assign it over to us.”</p> <p>On July 12, only a little more than four months before, he did not say anything about patents or their assignment.</p> <p>Upon these three witnesses the plaintiffs’ case rests, and such slips invite caution in the examination of their testimony.</p> <p>The defendant had been employed by Cheyney Kilburn, the president of the company, as foreman of the machine shop at $1,650 a year. He was a competent and faithful man, the shop was increasing in size, and about fifteen months afterwards, about Christmas, 1888, he asked for an increase of wages to $2,000 a year. The natural thing for him to do was to address himself to the president who had employed him and who attended to such matters, and he says that he made his request of Cheyney Kilburn in the machine shop, and that it was promptly granted. That was the ordinary and probable course of events.</p> <p>In contrast with this plain story the plaintiffs’ evidence brings all the members of this family corporation into a conclave of some solemnity. Cheyney Kilburn, the president; J. Warren Hale, the secretary; Henry S. Hale, the treasurer; and Artemus Kilburn, the superintendent of the factory, are alleged to have been there. No explanation is given whether this was or was not a formal meeting of the company or its directors, nothing is said as to how the defendant came to be invited into this meeting or whether be was there uninvited, no reason is given why an employee should suddenly face the whole board to make a request which was quite in the common order of things and is usually addressed to a man’s direct boss. Moreover, the description of the interview is to the last degree vague and unsatisfactory. No rational account is given of the order in which the persons talked nor of the words that were used.</p> <p>If this was really an act done by the company or the board, the fact should have been noted in the minutes.</p> <p>It was not so noted, and the only explanation given is the remark of a witness that to enter such matters would have overcrowded the minutes. There is, however, not the slightest evidence that on any other occasion the company or the board considered an employee’s claim for higher wages. The amount of the increase was not so considerable as to take it out of the ordinary rule.</p> <p>In view of all these considerations, it seems likely that the defendant is telling the story as it really happened, and that the plaintiffs’ witnesses are narrating as facts impressions on their minds derived partly from knowledge gained at the time from their president, partly from an examination of the records, and partly from talking the matter over among themselves.</p> <p>Their testimony, moreover, when carefully scrutinized does not mean as much as is claimed by the bill. If we assume for a moment that the express contract averred by the bill is not proved then the relations of the parties were clearly ascertainable according to the rule laid down by the Supreme Court of the United States in 1843 in the case of McClurg v. Kingsland, 1 Howard, 202. There it was held that if a person employed in the manufactory of another, while receiving wages, makes experiments at the expense and in the manufactory of his employer, has his wages increased in consequence of the useful result of the experiments, makes the article invented and permits his employer to use it, no compensation for its use being paid or demanded, and then obtains a patent, these facts will justify the presumption of a license to use the invention.</p> <p>. And the rule has been adhered to in the later oases: Solomons v. U. S., 137 U. S. 343; Dalzell v. Deuber Watch Case Mfg. Co., 149 U. S. 315. ■</p> <p>With the requirements of this rule the defendant has more than complied. The complaint is that he has not deprived himself of all rights to inventions made by him at his own expense, in his own time and in his own place.</p> <p>In order to find that a man made such an agreement as that alleged the evidence should be clear and precise. Indeed, one wonders why the plaintiff did not put in writing a contract so farreaching and important. Yet no one appears to have made even a minute or other note in writing at the time.</p> <p>Again, when the words of the plaintiff’s witnesses are fairly interpreted, they seem to import that the defendant promised to devote his best efforts to their work, and if patents resulted, he would assign them to the company. Such a promise as this is fully performed when the plaintiffs get all the patents resulting from the defendant’s continuous labors at their factory.</p> <p>The conduct of the plaintiff throws some further light on the matter.</p> <p>It appears that one of the patents under discussion was taken out on December 10, 1895, and that the plaintiffs knew about it soon after, and yet took no steps to assert the right which they now claim. After the defendant had given notice that he would leave, the plaintiffs offered him a sum of money for one of these patents in dispute, they say $1,000, he says $5,000.</p> <p>Though the plaintiffs say that their inaction, as well as their action, in this matter was attended with protests of their right to have assignments, we cannot ignore the significance of the facts. The plaintiffs’ claim, in short, looks much like an afterthought developed by the defendant’s leaving their employment and the fear .that he would go with a rival house which might profit by his work.</p> <p>We are not satisfied that the contract as averred in the bill has been proved, and therefore think that the bill should be dismissed at the costs of the plaintiff.</p> <p>And now, this tenth day of August, 1900, it is ordered that the prothonotary notify the parties or their counsel of the filing of this opinion, and if no exceptions are filed thereto within twenty days from September 1 next, a decree will be entered in accordance herewith.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was in dismissing the bill.</p>

Appeal, No. 356, Jan. T., 1900, by defendant, from judgment of C. P. No. 3, Phila. County, Dec. Term, 1899, No. 337, on verdict for plaintiff, in case of Hugh Sweeney v. Union Traction Company. Trespass to recover damages for personal injuries. Before McMichael, J. The circumstances of the accident are stated in the opinion of the Supreme Court. Defendant presented, inter alia, the following points: 1.

Appeal, No. 296, Jan. T., 1901, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1899, No. 268, dismissing bill in equity in case of Daniel S. Lindsay, Trustee, v. The Union Surety and Guaranty Company. Bill in equity for an account. Audenried, J., found the facts to be as follows: On April 9,1898, Frank S.'Zane bought from John Meighan a tract of land in the city of Philadelphia for $31,300. Upon this he purposed to erect sixty-four houses.

<p>Appeal, No. 293, Jan. T., 1900, by defendant, from decree of C. P. No. 1, Phila. Co., Sept. T., 1899, No. 498, dismissing exceptions to adjudication in case of Elizabeth J. Lyons v. J. Harry Lyons and Samuel Simpson.</p> <p>Bill in equity for an account.</p> <p>Bbegy, J., filed the following opinion:</p> <p>I find the facts to be :</p> <p>1. At the time of the failure of the Keen-Sutterle Company, a corporation of the state of New York, in January, 1896, the defendant J. Harry Lyons was its secretary and principal clerk, largely assisting in the management of its business and familiar therewith and with its customers.</p> <p>2. The said J. Harry Lyons, having become guarantor of some commercial paper of one of the creditors of said company, the risk of his being obliged ultimately to pay the same or part thereof, precluded him from going into business on his own account, and he was compelled to utilize his abilities and experience in employment by others upon a salary.</p> <p>3. In consequence thereof, upon the said failure, the plaintiff, being the mother of the defendant J. Harry Lyons formed a partnership with the defendant Samuel Simpson, trading as Samuel Simpson & Company, wherein the plaintiff and the said Samuel Simpson were to be and were interested in equal shares for the purpose of carrying on the same business of importing and selling goat skins and other merchandise at No. 429 North Third street, Philadelphia, and in which partnership the defendant J. Harry Lyons was to be and he was employed by the firm as agent and manager of the said business upon a salary.</p> <p>4. The said partnership terminated, and the defendant J. Harry Lyons retired from the management of the firm about March 18, 1899, when it had accumulated a large amount of undivided profits. A short time previous thereto the defendant Samuel Simpson had begun to set up that the defendant J. Harry Lyons and not the plaintiff, was the person entitled to said one half of the profits of the said business, always admitting, however, that he, the defendant Samuel Simpson, was entitled to only one half part thereof, and refused to furnish the plaintiff or the said J. Harry Lyons on account of the said business, or permit them to have access to the books thereof, or to pay either of them any moneys on account thereof, although he had a large amount of said profits in cash in bank.</p> <p>5. That the defendant Samuel Simpson caused the Importers and Traders’ National Bank of New York, who subsequently had obtained a judgment against the defendant J. Harry Lyons, to issue thereon an attachment execution against the plaintiff as garnishee, to enable him,-the said Samuel Simpson, to longer retain said moneys.*</p> <p>CONCLUSION ON LAW.</p> <p>As a consequence of the foregoing findings of fact, it follows that the plaintiff is by law entitled to an account, and the following decree is made:</p> <p>And now, to wit: May 22, 1900, it is ordered, adjudged and decreed as follows, to wit:</p> <p>That the plaintiff Elizabeth J. Lyons was a partner with Samuel Simpson in the business mentioned in the said bill, carried on by Samuel Simpson & Company in Philadelphia, from February 14, 1896, to March 18, 1899, and was by virtue thereof entitled to one half of the net profits of that business, and that the plaintiff is entitled to an account of all the said partnership dealings and transactions between them, and to payment of what shall appear to be due her upon that account.</p> <p>And it is further ordered, adjudged and decreed that it be referred to Benjamin Daniels, Esq., Master, to take an account of all the said partnership dealings and transactions between the plaintiff and the defendant Samuel Simpson, from February 14, 1896, to March 18, 1899, inclusive, and that what upon taking the said accounts shall appear to be due from either of the said parties to the other, be paid by the party from whom to the party to whom the same shall be certified to be due.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 26, Jan. T., 1901, by Mathias Seddinger, trustee, from decree of O. C. Phila. Co., removing trustee, in the Estate of Jacob G. Neafie, deceased. Petition to remove testamentary trustee. The facts appear by the opinion of the Supreme Court. Error assigned was the decree of the court.

<p>Appeal, No. 32, Jan. T., 1901, by defendants, from judgment of C. P. No. 4, Phila. Co., June T., 1897, No. 501, on verdict for plaintiff in case of Clara E. Uhler, Executrix and trustee under the will of Taylor M. Uhler, Deceased, v. John K. Cowen and Oscar G. Murray, Receivers of the Baltimore & Ohio Railroad Company.</p> <p>Assumpsit for rent.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The following point was reserved :</p> <p>It is agreed by the counsel representing the plaintiff and the defendant that the jury shall render a verdict in favor of the plaintiff for 11,665.35, subject to tbe question reserved as to whether the plaintiff is entitled to recover, in view of the notice which was served by the city upon the plaintiff, a copy of which was sent by the plaintiff to the defendant, in view of the fact that the city did not actually take possession of the property until March 15, 1898, and did not enter security for the protection of the owner of the property until J anuary 18, 1898.</p> <p>In case the point reserved is decided in favor of the plaintiff, judgment will be entered for the full amount of the claim. In case the point reserved is decided in favor of the defendant, a judgment will be entered in favor of the plaintiff for $485.40.</p> <p>The court entered judgment for plaintiff on the point reserved.</p> <p>Error assigned was in entering judgment for the plaintiff on the point reserved.</p>

Appeal, No. 14, Jan. T., 1901, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1896, No. 63, on trial by court without a jury in ease of John Kelly v. Union Traction Company. Trespass for personal injuries. The ease was tried without a jury under the act of April 22, 1874, by Pennyj'Acker, P. J. The facts appear by the opinion of the Supreme Court. Judgment for plaintiff for $7,500. The defendant appealed.

<p>Appeal, No. 339, Jan. T., 1900, by plaintiff, from decree of C. P. No. 4, Phila. Co., March T., 1896, No. 1051, dismissing bill in equity in case of Frederick H. Treat for himself and such other certificate holders of the defendant company as may join herein v. The Pennsylvania Mutual Life Insurance Company.</p> <p>Bill in equity for a receiver.</p> <p>Audenbied, J., filed the following opinion :</p> <p>The plaintiff’s bill prays that a receiver be appointed to take charge of the books and assets of the defendant company, to recover all amounts due it, to pay its obligations, and generally to perform such matters and things in connection with the continuance or dissolution of such corporation as may seem requisite and proper to the court.</p> <p>No injunction is asked to restrain the officers of the corporation from meddling with its affairs. To this extent the prayer for relief is defective. The appointment of a receiver is always a mere incident to the injunction commanding those in possession of property to refrain from interfering with it: Schlecht’s Appeal, 60 Pa. 172.</p> <p>The ground upon which relief is sought is that the officers and directors of the defendant are fraudulently mismanaging its property.</p> <p>It is unnecessary to consider the question raised by this allegation since the bill is fatally defective in that it fails to join as a party the insurance commissioner of Pennsylvania. Clause 10, section 5 of the Act of April 4, 1878, P. L. 20, Purd. Dig. p. 1037, is mandatory on this point. It provides that “ the commissioner shall be made a party to any proceedings instituted for the purpose of closing up the affairs of any company, when the same shall not be in the name of the commonwealth.”</p> <p>The reason of this provision is not difficult to find. The legislature has cast upon the department, of which the insurance commissioner is the head, the duty of supervising and regulating the business of all insurance companies operating in this state. He may examine their affairs and in the light of his examinations suspend from business those whom he believes to be insolvent or unworthy of confidence. As the credit or solvency of an insurance company may often depend on the results of such litigation as that before us, it is indispensable to the satisfactory performance of his duties and the proper working of his department, that the commissioner of insurance should have full notice of such proceedings by being made a party thereto on the record. And this is not only in cases where he proceeds himself in the name of the commonwealth to prevent a violation of the insurance laws, but in all cases.</p> <p>Opportunity has been given the plaintiffs to bring in the insurance commissioner as a party to this cause, but as they have refused to do so, we are constrained to dismiss their bill. A decree may be prepared in accordance with this adjudication.</p> <p>Error assigned was the decree of the court dismissing the bill.</p>

Appeal, No. 8, Jan. T., 1901, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1899, No. 804, on verdict for defendant in case of J. B. Van Sciver Company v. Mina McPherson. Replevin to recover goods sold to defendant in reliance upon a false representation. Before Wiltbank:, J. The “Statement of the Question Involved” was as follows: Rescission of sale on ground of fraudulent representations made by vendee to vendor.

<p> Criminal law—Murder—Insanity. </p> <p>To convict of murder of the first degree the commonwealth must prove beyond a reasonable doubt the unlawful killing and the fully formed purpose to kill, and it need adduce no proof whatever of the sanity of the prisoner; the law presumes that, and the presumption is conclusive in the absence of evidence to rebut it. If the accused alleges insanity, he must establish it by fairly preponderating evidence, or the presumption of sanity which the law raises stands unshaken. There is no middle ground which the law recognizes; nor does a doubt of sanity reduce the grade of the crime to murder of the second degree. From the very nature of the mental disease there can be no grading of it by degrees so as to accord with a degree in crime. Either the offense of defendant is wholly excused, because the jury is satisfied by the preponderance of evidence of his irresponsibility, or he is guilty, because the evidence fails to so satisfy them.</p> <p> Appeals—Assignments of error—Evidence. </p> <p>Assignments of error to the exclusion of testimony which do not quote the testimony excluded, will be disregarded.</p> <p> Criminal law—Murder—Insanity—Juror—Voir dire. </p> <p>At a murder trial it is improper to ask a juror, sworn on his voir dire, the question : “ Have you any opinion or prejudice against the prisoner’s plea of insanity where the insanity is due to an alleged injury of the head ? ”</p> <p>In Pennsylvania, a person charged with murder who sets up the defense of insanity must establish his insanity by a preponderance of evidence. The rule adopted by the Supreme Court of the United States in Davis v. United States, 160 U. S. 469, that if from all the evidence the jury have a reasonable doubt of the prisoner’s insanity they must acquit, is not the law in Pennsylvania. A failure to charge the jury in accordanc# with the rule of the federal courts, does not impinge the federal constitution by depriving the prisoner of his life without duo process of law.</p>

<p> Negligence—Railroads—Infant—Duty of parents. </p> <p>Iu an action against a railroad company to recover damages for the death of plaintiff’s son, a boy nine years old, it appeared that the accident occurred at a point where a highway crossed defendant’s tracks at grade at the end of a station platform. The plaintiff’s house was on one side of the railroad, and his shop on the other side. Immediately before the accident the boy had been sent by his mother from the house to the shop tol get some money to pay for groceries. The boy went to the station plat-1 form where he met a companion. At this point there were two tracks, one being the main track, and the other a switch. A train standing on the main track in front of the station, moved out to go north. The boys ran on the platform after the train, and when they reached the end of the platform at the highway endeavored to cross the railroad at the same speed immediately in the rear of the moving train. The deceased was struck and killed by a train going south on the switch. A newsboy waiting for papers coming on the train that caused the accident, and a passenger intending to take the train, testified that they heard no signal, and that the engine when approaching the crossing could not be seen from the plat-from by reason of the departing train. They also said that the train was moving at a pretty good speed. Two other witnesses said that they did not observe any signal givén. This teátimony was contradicted by four of the crew of the incoming train, and another witness. Meld, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p> Public officers—County commissioners—County treasurer—Surety. </p> <p>A county commissioner may legally become a surety on the official bond of a county treasurer.</p> <p>A county commissioner is not a councilman, burgess or a director or trustee or manager of a corporation within the meaning of the 66th section of the penal code of March 81, 1860.</p> <p>Rot decided whether a county is a corporation within the meaning of the act of March 81, 1860, sec. 66.</p>

<p> Road law—Vacation of street—Dedication. </p> <p>Where ground covered by a street is conveyed to the city of Philadel-1 phia “ to have and to hold .... to the same extent and to the same effect as if the said street had been opened by a decree of the court of quarter sessions for the county of Philadelphia upon proceedings had for that purpose under the road laws of the commonwealth of Pennsylvania,” the deed gives to the city the same power over the street, that it has over a street opened by adverse legal proceedings, and the right of the city to narrow or vacate such a street by ordinance of councils and action of the board of surveyors is beyond doubt, and the liquidation or payment of damages is not a prerequisite to a legal vacation.</p> <p>Where a person buys land fronting on a street without notice that his grantor had by an unrecorded deed dedicated the street to public use, and it appears that the street as originally opened and as described in the deed of dedication was forty feet wide, the city by ordinance of council and by action of the board of surveyors, and without payment of damages may plot the street on the city plan as of the width of thirty feet, and the owner cannot by a bill in equity enjoin the city from so doing. For any injury he may sustain by reason of the narrowing or vacation, he has an adequate remedy at law.</p>

<p> Trusts and trustees—Voluntary trust—Irrevocable trust. </p> <p>Where a voluntary trust is an active one, and by its express terms irrevocable, and there has been no failure of the purpose of the trust, and it is not shown that the deed was procured by fraud or imposition, or executed under a misapprehension of the facts or of the law, the settlement will be sustained and enforced in favor of the beneficiaries.</p>

<p>Appeal, No. 43, Jan. T., 1901, by plaintiff, from decree of C. P. No. 4, Pbila. Co., June T., 1900, No. 225, dismissing bill in equity in case of Annie R. Potter v. Fidelity Insurance, Trust & Safe Deposit Company and George Van Hook Potter.</p> <p>Bill in equity for the cancelation of a deed. Willson, J., filed the following opinion:</p> <p>A very brief review of the facts of this case about which there is no real dispute, will be sufficient to set out the ground of the controversy, and to show the question to be considered.</p> <p>Annie R. Potter and George Van Hook Potter, the plaintiff and one of the defendants respectively, were married on June 26, 1895. Up to the day of their marriage he was possessed of an estate of considerable amount, in the neighborhood of $75,000, which he had inherited from his father. This was all personal property. Upon the day of the marriage, prior to the ceremony, and without the knowledge or consent of his wife, Mr. Potter executed a deed of trust to the defendant, the Fidelity Insurance, Trust & Safe Deposit Company, of all the said estate in trust to pay the income to himself during his life, “ so that the same shall not be assigned or anticipated by him, nor be subject to or liable for the debts, contracts or engagements of the said George Van Hook Potter, and without any liability to execution, attachment, warrant or legal process of any kind.” This deed was, according to its express provisions, irrevocable.</p> <p>It was further provided in the deed that upon the death of the said George Van Hook Potter, the trustee should transfer the whole of the property of the estate to such persons as he might nominate by his last will and testament, and in default thereof should transfer the same unto the issue of the said George Yan Hook Potter, in equal shares, per stirpes, and if no issue were then living to transfer the said property to Mary E. Potter and Blanche Yan Hook Potter in equal shares. No provision was made in the deed for the then intended wife of Mr. Potter.</p> <p>The bill was filed for the purpose of setting aside the said deed on the ground that having been made, as it was, in anticipation of the marriage, it was a fraud upon the marital rights of the plaintiff, and should be declared to be inoperative.</p> <p>It does not seem to me that the question which is concerned in this case can in any way be affected by the consideration of any other matters than those which arise out of the state of facts which has thus been recited. The question is purely a legal one. There is no doubt that it is well settled that when a woman, in anticipation of an intended marriage, without the knowledge of her intended husband, executes a transfer or conveyance of her property in such a way as to deprive him of all benefit in it, and her of her control over it, such a transaction will be declared to be a legal fraud upon him.</p> <p>Duncan’s Appeal, 43 Pa. 67, was an instance of that character. There a married woman, two days before her marriage, executed a deed of trust, without the knowledge of her intended husband, conveying her property to her half-brothers, in trust, to pay the income to her during life, and to her heirs after death, and in case of her death without issue, then to her half-brothers, etc. After the marriage the husband filed a bill to annul the deed. A decree to that effect was made in the lower court, and it was affirmed in the Supreme Court.</p> <p>Lowrie, Chief Justice, speaking for the court, said: “ Common candor forbids that so important a change in his intended wife’s circumstances, and her power over her estate should be made -without his consent, and equity sternly condemns it as a fraud upon his just expectations. This principle of equity has stood the test of experience too long to be open to dispute now.”</p> <p>Robinson v. Buck, 71 Pa. 386, is another ruling of a similar character.</p> <p>There are other cases which can be found in the books in which the same doctrine is laid down. It undoubtedly, in the first instance, grew out of the more absolute dominion which a husband possessed over his wife’s property than exists at the present day, but, as in the case already cited, the doctrine still stands notwithstanding the great enlargement which has come to a woman’s rights over her own property, and the greater assimilation in those rights to the dominion which a man can exercise over his own estate. No case, however, has been cited, and we have not been able to find any, in which that doctrine has been applied to the same degree or with the same rigor to the case of a wife asking to have a conveyance made by her husband before marriage, and in anticipation of marriage, set aside.</p> <p>Baird v. Stearne, 15 Phila. 339, is a case which was tried in this court, in which a man who had once been married, and who had three children, made a deed of trust in favor of himself for life, and the remainder to his children, a few days before he announced his engagement to a lady who subsequently became his wife. After his death, she filed a bill in this court for the purpose of setting the same deed aside so as to enable her to take'that interest in her husband’s estate which she would have been entitled to if he had died intestate, and that relief was afforded to her. The opinion of the court was written with the customary virility of the former' president, Judge Thayer, and the relief which was afforded was based, not upon there being any intentional fraud perpetrated upon his wife, but upon the ground that the deed made under the circumstances narrated was a fraud in law. It will be observed, however, that the relief which was given in that case was given after the death of the husband. The question arises for consideration here whether the plaintiff, Mrs. Potter, is entitled to any other relief than that, or whether she is entitled to have the deed of trust made by her husband set aside and the property which was covered by it replaced in his hands for such uses as he may see fit to make of it. It is, of course, quite apparent that if the possession and control of the property be again vested in him he might the next day execute another deed of like terms, just as he might, in the exercise of the full dominion over his estate, which every man possesses, give it away. See Ellmaker v. Ellmaker, 4 Watts, 91, and Lines v. Lines, 142 Pa. 149.</p> <p>That may he said with additional force in this case because all the property which was covered by the deed of trust was personal property. It is, however, urged upon the part of the plaintiff, that, while this may be true, she yet had the right, which any wife would possess, of attempting by persuasion and proper influence to induce her husband to make such use of his property as would be for their mutual benefit, and would give to her greater enjoyment than she can presumably derive out of his control over the income of the property which is held by the trustee. It does not seem to me, on reflection, that that sort of influence which a wife might exert over her husband, is a substantial right which ought to be protected by a court of equity. It has a little too much of the element of sentiment and romance in it to bring it within the scope of a solemn court. The thing which the remedy of the law should seek to protect for the wife’s benefit is an interest in the property to be enjoyed at the time when the death of the husband might impose upon her circumstances of dependence and need, when the customary support and protection of her husband are removed. To place the full control of an estate of personal property in the hands of a married man, particularly if he were of a spendthrift disposition, might in many cases be a very serious calamity to his wife. Even if he were not a spendthrift, the ordinary risks of business, and the uncertainties of investment would necessarily imperil her ultimate interest in his property. These are considerations which, in a case like the present, are entitled to weight, when the question arises as to whether a wife should be permitted to set aside a deed of trust which her husband has deliberately made, and which, if it continues to operate, will presumably preserve the corpus of the estate during his lifetime. I do not intend by anything which I have just said to intimate that Mr. Potter is a spendthrift, or that ho would in any unworthy or unmanly way dispose of his property, if he had it in his control, to the disadvantage of his wife. The case must be treated on general grounds, and with reference to questions which may frequently arise in this class of eases.</p> <p>I am unable to discover any ground upon which Mrs. Potter can successfully claim that any of her marital rights which need to be protected have been violated, or that she has been in any way defrauded within the meaning of the principles applicable to the case, by the making of the deed of trust in question, or by its subsequent operation. Under that deed as it stands, her husband derives the income which accrues from securities belonging to the estate. That income can be used, and no doubt is, for the comfort and advantage of the plaintiff in due proportion. As has already been said, if he had the entire corpus of the estate in his possession she could have no legal control over its disposition, and any actual or controlling interest in it could only come to her upon his death; and that, too, only with reference to such portion of the corpus of the estate as might then remain.</p> <p>This court has already ruled, in the proceeding which was instituted by Mr. Potter himself, that as to him the deed of trust referred to is irrevocable, and I feel constrained to hold in this case that at the present time, and under existing conditions, the plaintiff cannot successfully attack the validity of the deed.</p> <p>In coming to this conclusion, I, of course, do not intend to decide that the plaintiff would have no right, upon the death of her husband preceding her own death, to ask that the deed of trust should be annuled to the extent of enabling her to take that share of the principal of the estate which would belong to her under the intestate laws, if no such deed of trust had been made. In my opinion she undoubtedly would have that right, but I think that until that time shall come she has no ground upon which she can successfully attack the validity of the deed in question. It is therefore my conclusion that the plaintiff’s bill must be dismissed with costs.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 25, Jan. T., 1901, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1898, No. 490, refusing to take off nonsuit in case of William Chambers in his own right and as father and next friend to William Chambers v. Michael J. Carroll, Eugene H. Carroll and Peter F. Carroll, trading as H. C. Carroll & Son.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

Appeal, No. 127, Jan. T., 1901, by E. W. Mulligan, Executor of Isaac Everitt, deceased, from order of C. P. Luzerne Co., Dec. T., 1894, No. 108, refusing an issue, in case of People’s Savings Bank v. J. H. Mosier. Rule for an issue. The facts appear by the opinion of the Supreme Court. Error assigned was order refusing issue.

<p> Auditor—Findings of fact—Illegitimacy. </p> <p>An auditor’s finding of illegitimacy based upon sufficient evidence, and confirmed by the court below, will not be reversed by the Supreme Court.</p>

Appeal, No. 299, Jan. T., 1901, by defendant, from decree of C. P. Chester Co., No. 360, in equity on bill in equity, in case of George W. Kearney v. The Borough of West Chester. Bill in equity for an injunction.

<p> Conspiracy—Evidence—Declarations—Preliminary proof . </p> <p>To make the declarations of an alleged conspirator admissible in evidence against his co-conspirators, there must be preliminary proof of the joint purpose and action, not necessarily conclusive, but sufficient to submit to the jury on that fact; and the declarations so admissible must have been made during the pendency of the conspiracy.</p> <p>Sometimes for the sake of convenience the acts or declarations of one are admitted in evidence before sufficient proof is given of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent stage of the cause. But this rests in the discretion of the judge, and is not permitted except under particular and urgent circumstances.</p> <p>Declarations of an alleged conspirator when offered generally as to all the conspirators, and without any separation being made, are inadmissible against the party making them.</p>

<p> Boroughs—Ordinance—Excavations in highways—Reasonable borough ordinance—Water companies. </p> <p>A borough ordinance is not unreasonable which prohibits any person from making excavations in a highway until he has obtained a permit from the borough authorities, paid a fee of $3.00, given a bond to properly fill up the excavation, and submits to take the lines from the borough surveyor, paying the costs and expenses therefor.</p>

Appeal, No. 36, Jan. T., 1901, by defendant, from judgment of C. P. Chester Co., April T., 1899, No. 35, on verdict for plaintiff in case of Benjamin Irwin v. William S. Harris. Trespass for wrongful conversion of money.

<p> Negligence—Master and servant—Railroads—Trespass by employee outside of line of duty. </p> <p>For a wilful or intentional trespass by an employee outside of the line of his duty under his employment it is settled that the employer is not responsible, even though it be committed while the servant is in the exercise of his employment. But in the latter case, its wilful and separate character must appear.</p> <p>In an action against a railroad company where the plaintiff, an intending passenger, declares as for an unprovoked assault upon him by the conductor as he was about to enter a train, and the defense is a total denial of the assault, a verdict for the plaintiff will be sustained, notwithstanding the declaration as for an unprovoked assault, where there is evidence that what the conductor did was not only in the course of his employment, but in the supposed performance of his duty in the orderly management of the passengers leaving and entering its train.</p>

Appeal, No. 371, June T., 1898, by Ezra Meyer, purchaser, from order of C. P. Lebanon County, June T., 1898, No. 137, making absolute a rule to set aside a sheriff’s sale, in case of The Fidelity Building and Loan Association of Lebanon, Pa., v. John Uhler. Rule to set aside sheriff’s sale.

Appeal, No. 338, Jan. T., 1901, by defendant, from judgment of C. P. Lebanon Co., March T., 1899, No. 43, on verdict for plaintiff, in case of William E. Lenich v. C. Grove Beaver, Kate E. Kase and Lizzie B. Heilman, Executors of Anna B. Beaver, deceased. Trespass for personal injuries. Before Ehrgood, P. J. At the trial it appeared that on November 8, 1898, defendant’s workmen began to make an excavation in an unpaved sidewalk to lay a cinder foundation for a brick pavement.

Appeal, No. 64, Jan. T., 1901, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1897, No. 180, on verdict for plaintiff in case of Matilda Fahrig, Administratrix of Frank E. Fahrig, Deceased, v. Eugene Schimpff. Assumpsit to recover the amount of a bid at an administrator’s sale.

Appeal, No. 206, Jan. T., 1900, by Mahala Wengerd Cornelius from decree of O. C. Franklin Co., refusing an issue devisavit vel non in the estate of Lydia Wingert, deceased. Appeal from register of wills.

Appeal, No. 43, Oct. T., 1901, by defendant, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1899, No. 103, on bill in equity in case of Abel E. Walker v. Wesley J. Walker. Bill in equity to declare a trust in real estate. Sharer, J., found the facts to be as follows: 1. The plaintiff is seventy-eight years old; is, and for some time has been, in somewhat feeble health; is a man of very little education; and has lived for the past forty years or more in McKeesport.

Appeal, No. 68, Jan. T., 1901, by plaintiff, from order of C. P. Bradford County, Dec. T., 1899, No. 254, refusing to take off nonsuit, in case of Matt Fitzwater v. T. M. Fassett. Trespass to recover damages for loss of cattle. Before Dun-ham, P. J., specially presiding.

Appeal, No. 97, Jan. T., 1901, by defendant, from judgment of C. P. Bradford Co., May T., 1900* No. 56, on case stated for plaintiff in case of A. C. Blackwell, Guardian of Eugene B. Scouten, v. Charles W. Scouten. -Ejectment case stated to determine title to real estate.

Appeal, No. 85, Jan. T., 1901, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 1899, No. 555, refusing to take off nonsuit, in case of Robert Rogers v. City of Williamsport. Trespass for personal injuries. Before Reed, P. J., specially presiding.

Appeal, No. 340, Jan. T., 1901, by plaintiff, from decree of C.' P. No. 4, Phila. Co., Dec. T., 1899, No. 1377, dismissing bill in equity in case of James Madden, Administrator of Stephen Madden, v. The Penn Electric Light Company and the Philadelphia Electric Company. Bill in equity for a receiver and for an accounting. The court sustained a demurrer and dismissed the bill. Error assigned was in dismissing the bill.

<p>Appeal, No. 13, Jan. T., 1901, by Emma L. Diver, Marian M. Darlington, Maria C. Lippincott, Josephine M. Kramer, Adeline C. Kohler, Anna C. Foulke and Carrie M. Karsner, from decree of O. C. Phila. Co., Oct. T., 1897, No. 79, dismissing exceptions to adjudication in the estate of John Kohler, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that John Kohler, by will dated October 11, 1853, republished by codicil dated February 23, 1866, gave part of his estate in trust for his son, John F. Kohler, for life, with remainder to “such person or persons as would be entitled thereto if my said son John F. Kohler had survived his wife and died intestate, and possessed thereof and in such shares and proportions as such person or persons would in such case be entitled by law.”</p> <p>John Kohler died August 8, 1868.</p> <p>John F. Kohler died September 12, 1900, having survived his wife, and by his will, dated May 28, 1897, gave his entire estate to his “ adopted daughter Esther P. Kohler Keen.”</p> <p>By order of the court of common pleas of Bucks county, dated September 9, 1889, upon proceedings duly had, it was decreed that, “ the said Esther P. Keen, an adult person, shall have all the rights of a child and heir of the adopting parent, John F. Kohler, and be subject to the duties of such child, and that she shall assume the name of Esther P. Kohler Keen.”</p> <p>The auditing judge (Ashman, J.), found that said adopted daughter was the “ person ” who, upon the death of her father, “would be entitled by law,” and awarded the fund to her. Exceptions to this finding were dismissed by the court in banc.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 336, Jan. T., 1901, by plaintiffs, from order of C. P. No. 3, Phila. Co., June T., 1898, No. 145, refusing to take off nonsuit in case of George S. Price, a minor, by' his father and next friend, George S. Price, and said George S. Price in his own right, v. John F. Betz.</p> <p>Trespass for personal injuries.</p> <p>At the trial it appeared that in May, 1897, defendant erected a temporary platform on the sidewalk of Willow street in front of his property for the purpose of taking down a wall condemned by the building inspectors. One of the posts of this platform was near the curb. On Willow street there was a railroad track on which freight trains were operated. On May 21,1897, the plaintiff, a boy about fourteen years old jumped on a moving freight train for the purpose of stealing a ride, and while standing with one foot on the step of the car and one on the bumper, struck the post near the curb, and was injured.</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>Appeal, No. 341, Jan. T., 1900, by plaintiffs, from decree of C. P. No. 1, Phila. Co., March T., 1898, No. 586, dismissing bill in equity in case of the Mifflin County National Bank, Bhrst National Bank of MahanoyOity, Atlantic City National Bank; George M. Brisbin, lately trading as the Houtzdale Bank; Harry Cessna, Executor of John Cessna, Deceased; Farmers and Mechanics’ National Bank of Woodbury, N. J., v. Fourth Street National Bank of Philadelphia; Guarantee Trust and Safe Deposit Company, Assignee for the benefit of creditors of Robert Hare Powel & Co., and Robert Hare Powel’s Sons & Co., and John C. Bradley, Robert Hare Powel, De Yeaux Powel and Henry B. Powel, lately trading under the firm names of Robert Hare Powel & Co., and Robert Hare Powel’s Sons & Co.</p> <p>Bill in equity for an account.</p> <p>Brégy, J., found the facts to be as follows :</p> <p>This is a bill filed by a number of the creditors of Robert Hare Powel & Company, and of Robert Hare Powel’s Sons & Company, to recover for their own benefit a sum of 125,123.79, which was on deposit in the Fourth Street National Bank of Philadelphia, to the credit of Robert Hare Powel & Company on August 27, 1887, that being the date of the assignment for the benefit of creditors of the two Powel firms. It also being alleged that the assignee for the benefit of creditors refuses to bring suit to recover the amount.</p> <p>The answer of the Fourth Street National Bank claims that the deposit was held as collateral security for a loan of $90,000 made to Robert Hare Powel’s Sons & Company, and denies the right of plaintiffs to recover it. First, because they are not judgment creditors; second, because the claim is barred by the statute of limitations; third, because of the laches of the plaintiff.</p> <p>I find the facts to b'e as follows:</p> <p>1. That on August 27, 1887, the firms of Robert Hare Powel & Company and Robert Hare Powel’s Sons & Company made an assignment for the benéfit of creditors to the Guarantee Trust & Safe Deposit Company; that John C. Bradley, Robert H. Powel, DeVeaux Powel and Henry B. Powel were all members of both firms. One of the firms was in the coal business, the other in the iron business.</p> <p>2. That at the time of the assignment, to wit: August 27, 1887, there was a deposit of $25,128.79 in the Fourth Street National Bank, defendant, to the credit of the firm of Robert Hare Powel & Company.</p> <p>3. That of the plaintiffs the following are creditors of the firm of Robert Hare Powel & Company: Mifflin County National Bank to the amount of $13,961.99; First National Bank of Mahanoy City to the amount of $4,000 ; George M. Brisbin et ah, trading as the Houtzdale Bank, to the amount of $11,719.29; Atlantic City National Bank to the amount of $4,100; Farmers’ and Mechanics’ National Bank of Woodbury to the amount of $3,659.91; Central Banking Company, Mt. Union, Pa., to the amount of $2,781.94; Harry Cessna, executor of John Cessna, to the amount of $2,009.37, and the remainder are creditors of Robert Hare Poweí’s Sons & Company.</p> <p>4. That the assignee has neglected to bring suit against the Fourth Street National Bank, although requested to do so.</p> <p>5. Immediately after the assignment, the counsel for the assignee called on the cashier of the Fourth Street National Bank, defendant, and was informed by the cashier that the bank had made a loan of $100,000 to Robert Hare Powel’s Sons & Company (afterward reduced by a payment to $90,000), and that there had been a promise made by W. W. Kurtz, who applied for the loan, “ that they would keep a balance of $25,000 m bank, which would go towards the liquidating of these debts, and that balance was to be kept there until the notes were paid off in full,” and showed him the papers they had claiming the deposit should go toward paying the notes. After that no claim was made by the assignee.</p> <p>6. The first knowledge the plaintiff had of the fund in the Fourth Street National Bank was about three years prior to the filing of this bill.</p> <p>7. None of the plaintiffs are judgment creditors of Robert Hare Powel & Company, but their claims have been proved and allowed by the auditor of the assignee’s account of Robert Hare Powel & Company.</p> <p>The court held that the statute of limitations barred the claim and accordingly dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 363, Jan. T., 1901, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1900, No. 167, on verdict for plaintiff in case of Annie E. Stork v. Philadelphia. Trespass to recover damages for injuries to a dwelling house. At the trial it appeared that plaintiff’s house stood on Eighteenth street about fourteen feet south from the south building line of Pennsylvania avenue in the city of Philadelphia.

Appeal, No. 45, Jan. T., 1901, by-plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1899, No. 511, on verdict for defendant in case of James Cole v. City of .Philadelphia. Appeal from award of jury of view. Before Brúg-y, J. At the trial plaintiff made various offers to prove that by means of the possession of Thomas Robertson, his predecessors in title and his own possession, he had title by adverse possession to the bed of Fifty-fifth street.

Appeal, No. 41, Jan. T., 1901, by plaintiffs, from order of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 1012, discharging rule for judgment for want of a sufficient affidavit of defense in case of Charles L. Hamilton, Wilbur F. Hamilton and Edwin E. Hamilton, trading as W. C. Hamilton & Sons, v. William S. W. Kirby and Frank H. Hawkins, trading as Kirby & Hawkins. Assumpsit for breach of contract.

<p>Appeal, No. 20, J an. T., 1901, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1898, No. 706, on bill in equity, in case of Columbia Avenue Saving Fund, Safe Deposit, Title and Trust Company et al., Executors, v. William Sidebottom and M. M. Gillam.</p> <p>Bill in equity for contribution.</p> <p>The bill averred that plaintiffs’ testator, Edwin F. Partridge, and the defendants were partners, and that Partridge had contributed more than his share to the partnership enterprise. The bill prayed for an account and contribution.</p> <p>The case was tried before Sulzberger, J., whose first finding of fact was as follows :</p> <p>1. On or about May 1, 1898, Edwin F. Partridge and the defendants, William Sidebottom and Manly M. Gillam, made and entered into a joint adventure or copartnership with each other to trade in the stock of a certain corporation, known as the Tachytype Manufacturing Company. It was agreed that each of the said parties was to furnish one third of the capital required to carry out said agreement, and receive one third of the profits or bear one third of the losses therefrom; and that any advances by any one of the parties on account of sums due by or from the other or others should be repaid, with interest.</p> <p>This finding of fact was not only supported by evidence but by the following statement in the answer of defendants.</p> <p>In consideration of this payment, and at Mr. Partridge’s request, the officers of the Tachytype Company issue 2,000 shares of .stock, which are now held by him for sale. When they shall have been sold, the proceeds of such sale are to be first applied to the redemption of the collateral note account, marked “No. 4,” and when these notes are canceled and the collaterals now deposited therewith are returned to Mr. Edwin E. Partridge, the profits arising from the sale of the shares of stock remaining are to be divided into three equal parts, one part to Mr. Manly M. Gillam and one part to Mr. Sidebottom.</p> <p>The court entered a decree in favor of the plaintiffs.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 12, Jan. T., 1901, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T., 1894, No. 502, appointing trustee in the case of Guarantee Trust and Safe Deposit Company of Philadelphia v. Walter Scott et al. Petition for the appointment of a trustee.

<p>Appeal, No. 52, Jan. T., 1901, by defendants, from judgment of C. P. No. 4, Phila. Co., June T., 1896, No. 142, on report of referee in case of Hanson H. Haines v. Abbie H. Dearborn and Frank Craven, Executors of George E. Dearborn, deceased.</p> <p>Assumpsit to recover purchase price of a farm.</p> <p>The case was referred tc Alex. Simpson, Jr., Esq., as referee, from whose report it appeared that from April 2, 1895, to March 17, 1896, a series of letters passed between Hanson H. Haines, plaintiff and George E. Dearborn. It was claimed that in these letters there was a contract for the sale by Haines to Dearborn of a farm referred to in the letters as the “ Barnes Farm,” situated in Cecil County, Maryland. In a letter dated April 8, 1895, the price fixed for the farm and certain personalty was 19,000, and no variance from this price was made or suggested in any of the later letters. During the course of the correspondence Haines constantly averred a contract which Dearborn did not deny. Dearborn’s sole cause of postponement was lack of ready cash, and he constantly promised that as soon as he got the cash in bank he would pay for the farm.</p> <p>In a letter of April 2, 1895, and many thereafter, the land was spoken of as the “ Barnes Farm.” In that of April 3,1895, reference was made to the deed to plaintiff therefor lately recorded. In that of April 9, 1895, the title was stated to be the one acquired by order of the court on a first mortgage sale and duly recorded. In that of October 3, 1895, the farm was located in Cecil county. In that of December 5,1895, the farm was stated to have been leased from S. A. Barnes for a period expiring March 26, 1896, and then occupied under that lease. And the whole correspondence indicated that it was in the state of Maryland, and was occupied by the farmer referred to, and by S. A. Barnes, Hathaway and Kelly.</p> <p>In addition the referee found as a fact that the Barnes farm, which was accurately described in the deed tendered and referred to in the correspondence, had been known by that name in Cecil county for at least fifty years.</p> <p>The referee held that a contract was established and that the land was sufficiently described. He awarded in favor of plaintiff for the sum of $9,000 with interest from April 26, 1895.</p> <p>Exceptions to the referee’s report were dismissed by the court.</p> <p>Errors assigned were in dismissing exceptions to referee’s report.</p>

<p> Municipal contract—Damages—Responsibility for injuries to properly. </p> <p>Where a municipal contract provides that the contractor shall indemnify the city against any suits for damages or injuries received or sustained by any party or parties by or from the contractor, his agents or servants in performance of the work under the agreement, and that certain moneys shall be retained by the city until “all such suits or claims shall have been settled,” and the contract also stipulates that the city shall provide the contractors a width of right of way sufficient for construction, and shall be responsible for the payment of damages for such right of way, the city cannot retain the amount of damages awarded to pi'operty owners for injuries to property which resulted from the work done, but without negligence on the part of the contractors.</p>

<p>Appeal, No. 91, Jan. T., 1901, by defendant, from judgment of Superior Court, Oct. T., 1900, .No. 107, reversing judgment of C. P. No. 4, Phila. Co., Dec. T., 1899, No. 578, on case stated in suit of Kate McNally v. The Metropolitan Life Insurance Company.</p> <p>Appeal from the Superior Court.</p> <p>Orlady, J., stated the facts to be as follows :</p> <p>On July 14, 1887, Mary R. Snee made a signed application to the defendant company for $500 insurance on her life, which was accepted by an indorsement thereon, and a policy without date was issued and delivered to her. On July 28, 1899, she died intestate and without issue, leaving to survive her a husband, Andrew Snee, who took out letters of administration on her estate.</p> <p>The company paid the amount of the policy to Andrew Snee, the administrator, upon his making proofs of her death in the form required by the company, and surrendering to it the policy and premium receipt book. In the answer to the ninth question in the application for insurance, “ Name, etc., of person to whom benefit is to be paid,” there is written the name “Katie R. Dougherty.” In the case stated, it is agreed that: “ 6. The plaintiff, Kate McNally, was formerly Kate Dougherty, and as such is named in the application aforesaid. She was a niece of • the said Mary R. Snee. ... 2. The premiums upon the said policy were paid by the said Mary R. Snee and by her husband, Andrew Snee.”</p> <p>In announcing the death of Mary R. Snee, the plaintiff gave 'notice to the defendant as follows: “ Several years ago she took out a policy for $500 in your company, and it has always been understood that I, Kate Dougherty, was the beneficiary of the same. If such proves to be the fact I desire to protect my claim. It is possible that the husband of the said Mary R. Snee (Andrew Snee). may present a claim. If it is found that he is the beneficiary, then my claim should not be recognized; but if I am the beneficiary I hope you will give my claim your kind consideration.” The defendant subsequently proceeded to pay the amount due under the policy by a check drawn to the order of Andrew Snee and Kate R. Dougherty (Kate McNally) jointly, but this was not acceptable to the claimants. It was withdrawn, and payment was then made to Andrew Snee as “the duly appointed administrator.”</p> <p>The appellee frankly states the case to be as follows : “ The only question for decision, therefore, is as to the company’s right to make choice of a payee when the application names a beneficiary.” The policy provides that, “ In consideration of the representations and agreements in the printed and written application for this policy, .... and in consideration of the payment to the company .... doth hereby agree to pay to the person or persons designated in Condition Fifth herein . . . .” which is in the following words, to wit: “ Condition, .... Fifth. The production by the company of this policy and of a receipt for the sum assured, signed by any person furnishing proof satisfactory to the* company that he or she is the beneficiary or an executor or administrator, husband or wife, or relative by blood or connection by marriage of the assured shall be conclusive evidence that such sum has been paid to and received by the person or persons lawfully entitled to the same, and that all claims and demands upon said company under this policy have been fully satisfied.” The policy and a receipt signed by Andrew Snee, administrator, were produced by the defendant and are made part of the case stated.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 60, Jan. T., 1901, by Mary Van Beil, Annie F. Thorne and the Fidelity Insurance Trust and Safe Deposit Company, Executor of Emma Sherburne, deceased, from decree of O. C. Phila. Co., Jan. T., 1882, No. 458, sustaining exceptions to adjudication in the estate of Albert Forepaugh, deceased. Exceptions to adjudication.

<p>Appeal, No. 42, Jan. T., 1901, by-plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 951, dismissing bill in equity in case of the Nerve Pood Company v. John Robertson and William S. Moorhead.</p> <p>Bill in equity for the rescission of a contract of sale.</p> <p>From the record it appeared that on June 15, 1895, John Robertson assigned to plaintiff letters patent and a trade-mark for a patent medicine known as “ Robertson’s Nerve Food.” He also assigned and transferred to plaintiff at the same timé the good will of the business previously carried on by him, and also certain personal property. The plaintiff entered into possession and conducted the business until October 2T, 1899, when it tendered back to Robertson an assignment of the letters patent and trade-mark, and the business as it then was, and a bill of sale of the personalty. Robertson refused to accept them. The plaintiff on December 4,1899, filed a bill in equity averring fraud and misrepresentation on the part of Robertson at the time of the sale. The court in an opinion by Penny-packer, P. J., held that the plaintiff was guilty of laches, and dismissed the bill.</p> <p>Error assigned' was decree dismissing the bill.</p>

Appeal, No. 348, Jan. T., 1901, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1900, No. 78, on verdict for defendant, in case of Clement S. Foster v. Union Traction Company. Trespass for personal injuries.

Appeal, No. 125, Jan. T., 1901, by John T. Robbins, from decree of O. C. Phila. Co.,' Oct. T., 1881, No. 423, dismissing exceptions to adjudication in the estate of John Robbins, deceased. Exceptions to adjudication. From the record it appeared that John Robbins died on April 27, 1880, leaving a will by which he devised certain real estate to his wife for life. He further directed as follows : “Item 12.

Appeal, No. 287, Jan. T., 1901, by-plaintiff, from order of C. P. Luzerne County, March T., 1894, No. 230, dismissing exceptions to report of referee in case of Frank P. Crotzer v. Matilda L. Bittenbender, widow and administratrix of F. T. Bittenbender, deceased, L. K. Derby, guardian of Theodore, Joseph L., Fred E. and Rhoda Bittenbender, heirs and legal representatives of F. T. Bittenbender, deceased, P. W. Burns, D. W. Kingsbury and William Ritter.

<p>Appeal, No. 128, Jan. T., 1901, by-plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1897, No. 1187, on verdict for defendant in case of Mary Tuckaehinsky by her father and next friend David Tuckachinsky, v. The Lehigh and Wilkes-Barre Coal Company.</p> <p>Trespass for personal injuries. Before Ferris, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned -was in giving binding instructions for defendant.</p>

<p>Appeal, No. 322, Jan. T., 1900, by-plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1897, No. 48, on verdict for defendant in case of Thomas Cisney v. The Pennsylvania Sewer Pipe Company, Limited.</p> <p>Trespass for personal injuries. Before Bailey, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant. Plaintiff appealed.</p> <p>Errors assigned were in giving binding instructions for defendant.</p>

Appeal, No. 178, Jan. T., 1900, by defendant, from judgment of O. & T. Sept. T., 1899, No. 20, on verdict of guilty of manslaughter in case of Commonwealth v. Jesse C. Harmon. Indictment for murder. Before Cbawfobd, P. J. At the trial the court charged in part as follows: [You have also the testimony of a great many witnesses as regards the reputation of both these parties, that of Jesse C. Harmon, the defendant here, and that of Ezekiel Hewitt, the deceased.

Appeal, No. 133, Jan. T., 1901, by plaintiffs, from decree of G. P. Cumberland Co., June T., 1900, No. 9, dismissing bill in equity in case of Carlisle & Mount Holly Railway Company v. The Philadelphia, Harrisburg & Pittsburg Railroad Company. Bill in equity for an injunction. The facts appear by the opinion of the Supreme Court. The court dismissed the bill. Error assigned was in dismissing the bill.

<p>Appeal, No. 124, Jan. T., 1901, by plaintiffs, from judgment of C. P. Lackawanna Co., March T., 1901, No. 710, for respondent on quo warranto, in case of Commonwealth ex rel. John P. Elkin, Attorney General, v. James Moir, Recorder of the city of Scranton.</p> <p>Quo warranto to determine the right of respondent to the office of recorder of the city of Scranton. Before Arch-bald, P. J.</p> <p>The respondent filed an answer, and the commonwealth demurred to it. The court entered judgment on the demurrer in favor of the respondent.</p> <p>Error assigned was in entering judgment for respondent.</p>

<p> Executors and administrators—Right of administrator to finish contract —Wages, </p> <p>An administrator is vested with a sound discretion as to whether or not he will complete building contracts of an executory character, and if he acts as a cautious and prudent man would act under similar circumstances, and in good faith, he will not be surcharged, although the consequence may be bad.</p> <p>If the administrator proceeds to complete such contracts, he becomes personally liable for all debts contracted after the death of the decedent, with the right of recourse to such estate of the decedent as was embarked in such business, but such recourse cannot affect, the liens of the debts contracted by the decedent in his lifetime.</p> <p>Where an administrator continues a building contract of a decedent, and the amount of the decedent’s debts at the time of his decease exceeds the amount to be distributed, the debts contracted by the administrator cannot be paid out of the fund, and this applies to wages claims as well as to ordinary debts.</p>

Appeal, No. 78, Jan. T., 1901, by plaintiff, from judgment of C. P. Northampton Co., Sept. T., 1898, No. 2, on verdict for defendant in case of Hattie Ohl, by her mother and next friend, Kate Ohl, v. Bethlehem Township. Trespass for personal injuries.

Appeal, No. 57, Jan. T., 1901, by plaintiff, from judgment of C. P. Lycoming Co., Sept. T., 1899, No. 94, on trial by the court without a jury, in case of Annie E. Updegraff v. Henry C. McCormick and Jacob Weaver, Executors of William Weaver, Deceased. Ejectment for lots of land in the borough of Montoursville.

Appeal, No. 155, Jan. T., 1901, by plaintiff, from order of C. P. Sullivan Co., May T., 1897, No. 47, refusing to take off nonsuit, in case of Reuben H. Brewer v. The County of Sullivan. Trespass to recover damages for personal injuries.

Appeal, No. 162, Jan. T., 1901, by plaintiffs, from judgment of C. P. Fayette Co., Sept. T., 1900, No. 1, on verdict for defendant, in case of Annie H. Miller et al. v. Silas L. Dean et al. Ejectment for land in South Union township. For the facts see 175 Pa. 599. The court refused plaintiff’s request for binding instructions in their favor. ...... Verdict and judgment for defendant. Plaintiff appealed. Error assigned among others was refusal of plaintiffs’ request.

<p>Appeal, No. 25, Oct. T., 1900, by plaintiffs, from judgment of C. P. Forest Co., May T., 1899, No. 19, on verdict for defendant, in case of H. J. Jennings, .'Committee of J. B. Jennings, v. W. J. Bloomfield, E. Pequignot, A. J. Carnahan and M. S. Carnahan.</p> <p>Ejectment for land in Harmony township.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The plaintiff presented the following point:</p> <p>8. Under all the evidence, the verdict of the juiy will be in favor of the plaintiff. Answer: Refused.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>.Error assigned among others was answer to above point, quoting it.</p>

Appeal, No. 22, Oct. T., 1900, by plaintiff, from judgment of O. P. Beaver Co., June T., 1897, No. 407, on verdict for defendant in case of Mary Jane Kennedy v. The Forest Oil Company, a Corporation, and J. V. Kelly, W. C. Kelly and Henry Cooper, trading as the Raccoon Oil Company. Ejectment for a tract of land in Hopewell township. Before Wilson, P. J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for defendants. Plaintiff appealed.

Appeal, No. 18, Jan. T., 1901, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1898, No. 653, on verdict for plaintiff in case of James P. Newton v. The Vulcan Iron Works. Trespass for personal injuries. Before Lynch, J. At the trial it appeared that plaintiff was employed as a molder in defendants’ foundry at Tamaqua, and while at work on May 10, 1897, in lowering a mold into a pit, was injured by the breaking of the crane chain.

Appeal, No. 320, Jan. T., 1900, by defendants, from judgment of C. P. Columbia Co., May T., 1897, No. 143, on verdict for plaintiff, in case of the General Fire Extinguisher Company, a corporation incorporated under the laws of the State of New York, v. The Magee Carpet Works, Owner and Reputed Owner and the Bloomsburg Carpet Works, Contractor. Scire facias sur mechanic’s lien. Before Dunham, P. J., specially presiding.