Volume 2 — Pennsylvania Superior Court Reports

Appeal, No. 94, April T., 1896, by defendant, from judgment of Q. S., Butler Co., March Term, 1896, No. 39, on verdict and sentence against defendant. Charge for violation of liquor law. The indictment charged, first, keeping a house where liquor is sold; second, selling and giving away liquors; third, selling less than one quart of liquor; fourth, selling and giving away more than one quart; fifth, selling spiritous and vinous liquors.

Appeal, No. 82, April T., 1896, by plaintiff, from order of C. P. Clarion Co., Nov. T., 1895, No. 129, discharging rule for judgment for want of sufficient affidavit of defense. Assumpsit to recover tbe sum of $529, with interest from April 13,1893, being the value of two flat bottom boats alleged to have been procured by defendant and sold by him without authority from plaintiff, the owner.

Appeal, No. 65, April T., 1896, by defendant, from judgment of C. P. Cambria Co., June Term, 1895, No. 516, on an issue tried by the court without a jury. Agreement of counsel and decree of court framing issue. Before Barker, P. J., without a jury; judgment for plaintiff for $681.50.

Appeal No. 5, Feb. T., 1897, by J. B. Wright, from the decree of Q. S., McKean Co., sustaining the exceptions to and setting aside the report of viewers. Exceptions to report of road viewers. A petition was filed by sundry inhabitants of Otto township praying for the appointment of viewers; the viewers were appointed who made their report which was confirmed nisi and the road ordered opened fifty feet wide.

Appeal, No. 47, Nov. T., 1895, by plaintiff, from order of C. P. 3, Phila. Co., Sept. T., 1895, No. 238, discharging rule for judgment for want of a sufficient affidavit of defense. Rule for judgment for want of sufficient affidavit of defense.

Appeal, No. 82, Nov. T., 1896, by Williams A. Shoemaker, an attorney at law, from the decree of the court of O. & T. of Phila. Co., suspending appellant from his office of attorney for the period of one year. Rule to show cause why William A. Shoemaker should not be disbarred from practice as an attorney. Before Thayer, P. J., Arnold and Willson, JJ.

Appeal, No. 63, Nov. T., 1896, by petitioner, from decree of Q. S. Chester Co., refusing a retail liquor license. Petition and bond for retail liquor license. Before Hemp-hill, J. Samuel J. Babb, the appellant, on January 27,1896, filed in the court below, a petition and bond, in proper form, for a license to sell vinous, spirituous, malt and brewed liquors by retail at his hotel in the Borough of Oxford.

<p>Criminal law — Indictment—Surplusage—Practice, Q. S.</p> <p>Every objection to any indictment for any formal defect, apparent oil the face thereof, should be taken by demurrer or on motion to quash such indictment before the jury is sworn and not afterwards.</p> <p>Where the indictment charged forgery in apt terms, but in addition to the words necessary to charge such misdemeanor the word “feloniously” was inserted, such word maybe rejected as surplusage, it being apparent on the face of the indictment that the crime would not amount to felony. The mistake of the pleader cannot avail after verdict on motion in arrest of judgment. ‘</p>

Appeal, No. 66, Nov. T., 1896, by defendant, from judgment of O. & T. Schuylkill Co., Jan. Sess., 1896, No. 225, on verdict of guilty of assault and battery, upon indictment for murder. Indictment for murder. Before Albright, P. J., specially presiding. The defendant, Adams, was indicted for murder, and the trial resulted in a conviction for assault and battery. Additional facts sufficiently appear from the opinion of the Superior Court.

Appeal, No. 2, March T., 1897, by petitioner, from the decree of Q. S. Cumberland Co., refusing a distiller’s license. Petition of appellant for a distiller’s license under provisions of act of assembly approved June 9, 1891, P. L. 257. Before E. W. Biddle, P. J. Tbe opinion of tbe court below, refusing a license, was as follows : The present petitioner is the lessee of what is known as the Newville Distillery, the owner of which is E. P. Huntsberger.

Appeal, No. 72, Nov. T., 1896, by George W. Kerns & Bro., petitioners from the judgment of Q. S. Philadelphia Co., refusing bottler’s license. Petition for a bottler’s license. The petition was duly presented and bond filed.

Appeal No. 13, Jan. T., 1897, by J. J. Brown et al., remonstrants, from decree of Q. S. Columbia Co., Feb. Sess., 1896, No. 25, granting a restaurant license. Application of J. R. Fowler for a restaurant license in the town of Bloomsburg in the Bloomsburg Opera House owned by petitioner and another. The petition and bond were in due form. Remonstrance was filed by J. J. Brown and others, setting forth: First.

Appeal No. 17, March T., 1896, by Matilda Martin and Obediah Jacobs, from the order and .decree of C. P. Adams Co., sustaining exceptions to auditor’s report in the matter of the assigned estate of George Smith and wife. Rice, P. J., and Willard, J., dissent from the opinion of the court so far as the same reverses the action of the court below in distributing the proceeds of the sale of lot No. 1.

Appeal No. 25, April T., 1896, by defendant, from judgment of C. P. Somerset Co., Sept. T., 1891, No. 318, on verdict for plaintiff. Appeal by defendant from judgment of justice of the peace, entering judgment for plaintiff for $93.05. It appears from the record and the evidence that suit was brought by plaintiff to recover for a carload of lumber.

Appeal, No. 26, April T., 1896, by defendants, from judgment of C. P. Warren Co., March T., 1895, No. 79, on verdict for plaintiff. Trespass. Before Noyes, P. J. Verdict for plaintiff for 1300.

Appeal, No. 14, March T., 1896, by plaintiffs, from judgment of C. P. Perry Co., Noy. T., 1894, No. 8, on a verdict for defendant. Replevin to recover fifty-eight flood logs. Before Lyon, P. J. Verdict for defendant. The actual or alleged value of the logs does not appear from the paper-books.

Appeal, No. 63, April T., 1896, by Edward Campbell, from decree of C. P. Fayette Co., Dec. T., 1887, No. 83, ordering appellant to pay over a certain portion of moneys collected by Mm as an attorney at law. Rule on Edward Campbell to show cause why he should not pay over certain moneys collected by him as attorney for the plaintiff in the above entitled cause. Before Pobteb, J., specially presiding. Rule absolute as to $249.62.

<p>Appeal, No. 27, April T., 1896, by defendant, from order of C. P. Crawford Co., May T., 1879, No. 204, striking off a rule of reference and an amicable submission to a legal arbitrator under the provision of the act of April 6, 1870.</p> <p>Rule to strike off rule of reference. Before Henderson, P. J.</p> <p>The facts are stated by the opinion of the Superior Court as follows:</p> <p>The defendant entered a rule to have arbitrators chosen under the compulsory arbitration law. The plaintiff, by paper filed, thereupon elected to have a “ legal arbitration ” under the provisions of the local act of April 6, 1870, P. L. 948. On the day appointed for choosing the arbitrator the parties filed a paper agreeing “ that William G. Trunkey shall be a legal arbitrator under the act of assembly.” The arbitrator was sworn and took the testimony in the case but died before making an award. Upon application of the plaintiff, the court then struck off the rule of reference, and from this order the defendant appealed.</p> <p>Errors assigned were (1, 2) striking off rule of reference.</p>

<p>Practice, O. P. — Affidavit of defense — Violation of ivritten contract.</p> <p>A written contract, simple in form, plain and unambiguous in terms and clear in intent had been executed, and performance by the plaintiff acquiesced in by defendants. In a suit on the written contract the affidavit of defense set up the following defenses:</p> <p>An antecedent oral agreement for which the written contract was substituted, as alleged, after objection and upon alleged threat of breach of the oral contract by the plaintiff; and execution induced by a statement made by plaintiff to one defendant that the other defendants, who had previously signed, were satisfied with the terms of the written contract, the affidavit also alleging damages for the breach of the oral contract as a set-off to the sum sued for under the written contract. Held, (1) that the affidavit was insufficient as not alleging such fraud as would warrant avoiding the written contract, and (2) that if the case had been on trial and the plaintiff had offered this written contract in evidence and defendants had made an offer embodying the facts alleged in the affidavit of defense the court could not have received the evidence.</p>

Appeal, No. 29, April T., 1896, by plaintiff, from judgment of C. P. Erie Co., Nov. T., 1894, No. 168, upon demurrer. Foreign attachment in assumpsit against heirs of C. B. Curtis to recover the amount of |432. Judgment for defendants on demurrer.

Appeal, No. 45, April T., 1896, by C. F. Bingaman, from decree in distribution of C. P. No. 1, Allegheny Co., March T., 1890, No. 30. Exceptions to auditor’s report and distribution thereon as modified by the court.

Appeal No. 16, April T., 1896, by defendant, from judgment of C. P. No. 1, Allegheny County, June T., 1894, No. 994, on verdict for plaintiff. Trespass for injuries to dwelling house caused by continued maintenance of defendant’s incline plane. Before Slagle, J. Verdict for plaintiff for $613.86.

Appeal, No. 70, April T., 1896, by-defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1894, No. 368, on verdict for plaintiff. Trespass for negligent maintenance of board walk. Before McCltxng-, J. Verdict for plaintiff for $1,000. The evidence, though conflicting, tended to show that the borough of Osborne had constructed on the side of one of its streets a board sidewalk.

Appeal, No. 31, April T., 1896, by defendant, from judgment of C. P.-No. 1, Allegheny County, June Term, 1894, No. 683, on verdict for plaintiff. Trespass for libel. Before Stowe, P. J. Verdict for plaintiff for $600. On December 4, 1893, tbe Pittsburg Times, a daily newspaper published in the city of Pittsburg, received and published the following article from its correspondent at Washington, Pa. -: Excitement Over Alleged Witchcraft at Washington.

Appeal, No. 18, April T., 1896, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1894, No. 823, refusing motion for attachment for contempt. Motion to have attachment issued against defendant to compel him to comply with decree of court.

Appeals, Nos. 20, 21, April Term, 1896, by Rose White, William M. Granger and. J. P. Cappeau, from decree of C. P. No. 3, Allegheny Co., May T., 1892, No. 680, allowing damages and assessing benefits for the opening of Bellefield avenue in the city of Pittsburg. Report of jury of view awarding damages and assessing benefifs.

<p>Appeal No. 20, April term, 1896.</p>

Appeal, No. 79, April T., 1896, by defendant, from judgment of C. P. Washington County, Aug. Term, 1893, No. 175, on verdict for plaintiff. Assumpsit on a policy of fire insurance. Before McIl-VAINE, P. J. Verdict for plaintiff for $600.

Appeal, No. 75, April T., 1896, by defendant, from judgment of C. P. Washington County, Nov. Term, 1894, No. 146, on verdict for plaintiff. Appeal from award of viewers. Before Taylob, J. Verdict for plaintiff for $193.35. This is a proceeding on appeal from the award of viewers appointed to ascertain and report the damages sustained by the plaintiff on account of the location and construction of defendant’s pipe line along a public road traversing his land.

Appeal No. 33, April T., 1896, by the Commonwealth of Pennsylvania, from judgment of Q. S. of Lawrence Co., No. 10, Dec. Sess., 1894, quashing indictment against Chas. F. Moore, defendant. Indictment for willfully damaging the property of a livery stable keeper. Defendant was convicted but motion in arrest of judgment was sustained: 4 District Reps. 649.

Appeal, No. 30, April T., 1896, by defendant, from judgment of C. P. Armstrong Co., No. 29, June T., 1894, in favor of plaintiff. This was an ejectment for forty-nine acres of land in Armstrong county. On the trial, before Rayburn, P. J., the plaintiff offered in evidence a deed of John George and others to David Baker, the defendant, being a quitclaim deed for the interest of the grantors. Objected to.

Appeal, No. 50, April T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 571, for plaintiff. Assumpsit for goods sold. Verdict and judgment for plaintiff for $355.97. The facts as stated by the opinion of this court are as follows: Prior to April 15, 1892, the North American Construction Company, a corporation of Pennsylvania, was engaged in the manufacture and sale of electrical supplies in the City of Pitts-burg.

Appeal, No. 67, April T., 1896, by Elmer Allen, the defendant, from judgment of C. P. No. 1, Allegheny Co., No. 815, Sept. T., 1895, entering judgment for the plaintiff, the commonwealth of Pennsylvania, for use of Maud Bell Scott and all others entitled to intervene plaintiff, for want of a sufficient affidavit of defense.

<p>Appeal, No. 51, April T., 1896, by defendant, tbe Consolidated Gas Co., from judgment of C. P. No. 2, Allegheny Co., No. 231, Oct. T., 1893, for Milton F. Prichard, plaintiff, for $200.</p> <p>Appeal No. 52, April T., 1896, by defendant, the Consolidated Gas Co., from judgment of C. P. No. 2, Allegheny Co., No. 229, Oct. T., 1893, for Kate Prichard, plaintiff, for $50.00.</p> <p>Appeal No. 53, April T., 1896, by defendant, the Consolidated Gas Co., from judgment of C. P. No. 2, Allegheny Co., No. 230, Oct. T., 1893, in favor of Arthur H. Prichard, Norman A. Prichard and George M. Prichard, by their father and next friend Milton F. Prichard, plaintiffs, for $75.00, to be equally divided between them.</p> <p>These were three suits tried together at the same time before one jury for trespass for personal injuries.</p> <p>The facts as stated by this court were as follows:</p> <p>The plaintiffs resided together as a family on Smallman street, Pittsburg, and in their separate actions, tried before one jury by consent, recovered verdicts as damages for injuries resulting from inhaling illuminating gas which had escaped from the company’s pipes.</p> <p>On January 11, 1893, Mrs. Pritchard and the children were taken sick, the next day the other members of the family were affected in a similar manner. The illness was ascertained to be caused by the escape of artificial gas into the house. In the street in front of the plaintiffs’ home were several natural gas lines, one other illuminating gas line, a city water main and a sewer.</p> <p>When the cause of the trouble was discovered the other gas companies occupying the street inspected their lines and ascertained that their respective pipes were in proper condition. On January 21, the defendant company uncovered its line of pipe on 30th street about two hundred feet from plaintiff’s home, broke the main and plugged it. Little more of the place of leakage is known, but the fact was clearly proved that plugging the pipe of defendant in 30th street stopped the escape of gas in the plaintiff’s house on Smallman street.</p> <p>This system had been down about twenty years, but for about fifteen years had not been used for supplying gas to customers on the square on which plaintiffs lived.</p> <p>No further examination was made to determine the cause or location of the leak.</p> <p>Errors assigned were answers to defendant’s points as follows :</p> <p>1. If the jury believes that the system of inspection in use by the Consolidated Gas Company is the system in general use by other artificial gas companies throughout the United States, and that the system is a reasonable one, as well as the only one practicable, the verdict must be for the defendant. Answer: The 1st point is refused. There are additional questions for the jury to consider. Where a gas company used the system of inspection in general use and that system is a reasonable one as well as the only practicable one, it cannot be held to be guilty of negligence therefor. [1]</p> <p>2. If the jury believes that no notice was given to the defendant until Saturday evening, January 21, 1898, and that the defendant company proceeded to get ready to cut and did cut its main on the following morning and the gas was thus shut off. and removed, the verdict must be for the defendant. Answer: Refused. [2]</p> <p>3. If the jury believes that in the exercise of reasonable diligence and upon inquiry in the neighborhood the plaintiffs could have found that the defendant company had a large gas holder and a main in Smallman street in front of their houses and that they did not use their reasonable diligence and did not make inquiry in the neighborhood, such failure constitutes contributory negligence on their part, and the verdict of the jury must be for the defendant. Answer: The 3d point is refused as put. It is affirmed so far as damages occurred after the jury may find the plaintiffs should have ascertained that the defendant gas company has a main in the street and have notified the' defendant company. [3]</p> <p>4. Under all the evidence the verdict of the jury must be for the defendant. Answer: The fourth point is refused. [4]</p>

Appeal, No. 57, April T., 1896, by defendant, the Consolidated Gas Co., from judgment of C P. No. 2, Allegheny Co., No. 428, Oct. T., 1893, from Mary J. Com-stock, plaintiff, for $175. Appeal, No. 58, April T., 1896, by defendant, the Consolidated Gas Co., from judgment of C. P. No. 2, Allegheny Co., No. 427, Oct. T., 1893, in favor of plaintiff, Sadie Susan Com-stock, a minor, by her mother and next friend, Mary J. Comstock, for $300. Trespass for personal injuries.

Appeal, No. 4, April T., 1896, by defendant, from judgment of C. P. No. 1, Allegheny County, Sept. Term, 1894, No. 177, on verdict for plaintiff. Trespass for killing plaintiff’s child. Before Slagle, J. Verdict for plaintiff for $750.

Appeal, No. 22, April T., 1896, by plaintiff, from judgment-of C. P. No. 2, Allegheny Co., Jan. T., 1892, No. 538, on verdict for defendant. Assumpsit on promissory note for $500. Before Ewing, P. J. Verdict for defendant.

Appeal, No. 73, April T., 1896, by plaintiff, from judgment of C. P. No. 3, Allegheny County, November T., 1892, No. 164, on verdict for defendant. Sci. fa. sur mecbanic’s lien. Before Kennedy, P. J., wbo gave binding instructions to the jury to find for the defendant. Nicholas Wolf, owner of land in McKeesport, contracted with Thomas White for the erection of a building thereon. White made a subcontract with John W. Waters, the plaintiff, for the stonework.

Appeal, No. 83, April T., 1896, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1895, No. 198, on verdict for defendant, finding him entitled to a certificate. Wickham, J., dissenting. Assumpsit to recover $747.07 upon an accepted seven days sight draft for rails sold. Before Magee, J. Yerdict for defendant, finding him entitled to a certificate for $209.34. •The following facts appear from the pleadings and evidence.

Appeal, No. 80, April T., 1896, by defendant, from judgment of C. P. Washington Co., Aug. T., 1893, No. 96, on verdict for plaintiff. Assumpsit on lease. Before McIlvaine, P. J. Verdict for plaintiff for $159.10. Tbe following facts were stated in tbe opinion of tbe Superior Court.

Appeal, No. 8, April T., 1896, by defendant, from judgment of C. P. Somerset Co., on verdict for plaintiff. Trespass for accident on sidewalk. Verdict for plaintiff for $775.

Appeal, No. 28, April T., 1896, by plaintiff, from order of C. P. Lawrence Co., Dec. T., 1894, No. 9, on rule for judgment for want of a sufficient affidavit of defense, entering judgment for portion of the claim only. Rule for judgment for want of a sufficient affidavit of defense. Before Wallace, P. J. Judgment for part of plaintiff’s claim for $138.08.

Appeal, No. 14, April T., 1896, by defendant, from judgment of C. P. Clarion Co., Aug. T., 1894, No. 228, on verdict for plaintiff. Assumpsit on fire policy. Before Clark, P. J. Verdict for plaintiff for $865.06.

Appeal, No. 86, April T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. Term, 1895, No. 247, on judgment for plaintiff. Assumpsit to recover license fee on street railway poles. Before White, J. Judgment for plaintiff for 1798.60. The facts sufficiently appear in the opinion of the Superior Court. Error assigned was in finding that defendant company is liable and entering judgment against defendant.

Appeal, No. 101, April T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1895, No. 1030, on case stated. Case stated. Before White, J. Judgment for plaintiff for $243.10. And now, June 28, 1895, this case is submitted to the court for its decision, and the following facts are agreed upon: First.

Appeal No. 44, April T., 1896, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1895, No. 180, in favor of the plaintiff on case stated. Case stated. Before Slagle, J. Judgment for plaintiff for $500.

Appeal, No. 5, May T., 1896, by Mariou Township, Butler Co., Pa., from decree of Q. S. Armstrong Co., No. 15, June Sess., 1894, certifying said Marion township as the last place of legal settlement of Margaret Christy, a lunatic.

Appeal, No. 90, April T., 1896, by Fuller Hogsett and Morgan H. Bowman, from decree of Q. S. Fayette Co., Sept. Sess., 1892, No. 3, road docket, erecting a county bridge over Youghiogheny river from Apple street in the borough of Connellsville to Trader’s alley in the borough of New Haven.

Appeal, No. 24, April T., 1896, by defendant, from judgment of C. P. Armstrong Co., March T., 1892, No. 344, on verdict for plaintiff. Trespass for malicious prosecution. Before Rayburn, P. J. Verdict for plaintiff for $200.

Appeal, No. 72, April T., 1896, by Langenheim & Cochran,- plaintiffs, from judgment of C. P. No. 2, Allegheny Co., No. 126, Jan. T., 1894, in sci. fa. sur mechanic’s lien against the Anschutz-Bradberry Co., owner, and H. S. McAllister, contractor, defendants, ordering nonsuit. Sci. fa. for materials amounting to $848.95 furnished in the construction of an addition to an iron foundry.

Appeal, No. 78½, April T., 1896, by defendant, from judgment of Q. S. Warren Co., Sept. Sess., 1895, No. 7, sentencing defendant in prosecution for forgery.

Appeal, No. 43, April T., 1896, by W. M. Laird, from order of C. P. Beaver Co., setting aside sheriff’s sale of real estate of Charles K. Brown, sold on lev. fa., Sept. T., 1895, No. 56, at suit of the Twin Cities Building and Loan Association.

Appeal, No. 7, April T., 1896, by defendant, from judgment of C. P. Butler Co., Sept. T., 1895, No. 113, for plaintiff. Assumpsit for balance due on settlement by defendant as surviving partner of the partnership business of the late firm of O’Neil & Davis. Before Greer, P. J. Judgment for plaintiff for 1203.84. On the trial the following agreement was filed: Agreement to submit the case to court, and the following facts agreed upon by the parties : First.

Appeal, No. 100, May T., 1896, by defendant, from judgment of C. P. Butler Co., June T., 1895, No. 62, for plaintiff. Assumpsit for moneys due. Yerdict and judgment for plaintiff for $102.50. On the trial, before Greer, P. J., defendant offered to show what the present value of a share of stock in thé Portersville Creamery Co. was. Objected to. Rejected.

Appeal, No. 32, May T., 1896, by plaintiff, from judgment of C. P. Armstrong Co., June T., 1894, No. 200, for defendant. Replevin for two rafts of logs. Yalue of $225. Yerdict for defendant. The facts are stated in the opinion of the Superior Court as follows: About the 18th of November, 1893,1. D. Doverspike, the appellant, had some dealings with William T. Jewart, as to -the purchase of certain timber.

Appeal, No. 87, April T., 1896, by defendant, from judgment of Q. S. Butler Co., Dec. Sess., 1896, No. 28, convicting defendant for selling liquor without a license. Defendant was indicted for selling liquor without a license. On the trial Charles Mitchell, among other things, testified: Q. It was the same prescription, was it? Objected to. By the Court: State how many prescriptions you had?

Appeal, No. 98, April T., 1896, by plaintiff, from judgment of C. P. Butler Co., Sept. T., 1895, No. 68, for defendant. This was an action of assumpsit by one cotenant of an oil well against one of his fellows to recover one eighth of the cost of operating the oil lease and pumping said well.

Appeal, No. 42, May T., 1896, by defendants, from judgment of C. P. Crawford Co., May T., 1894, No. 49, for plaintiff. Assumpsit on obligation under seal. Verdict for plaintiff for $580. The facts as stated in the opinion of the Superior Court are as follows: The Bartholomay Brewery Company is a corporation of the state of New York with its principal place of business at Rochester.

<p>Appeal, No. 6, April T., 1896, by plaintiffs, from decree of C. P. Butler Co., Sept. T., 1895, No. 8, dismissing bill in equity against defendant.</p> <p>Bill in equity by plaintiffs in which they prayed the following relief:</p> <p>1st. That the defendant be perpetually enjoined and restrained from engaging in the business of drilling water wells, directly or indirectly, within the borough of Evansburg aforesaid, or in the neighborhood thereof.</p> <p>2d. That an account be taken of the damages plaintiffs have sustained by reason of defendant’s violation of his contract aforesaid, and that the defendant be decreed to pay the amount of said damages to plaintiffs when the same is ascertained.</p> <p>3d. Such equitable relief as the circumstances of the case require and which to justice and equity appertain.</p> <p>4th. That the defendant be decreed to pay the costs of this proceeding.</p> <p>Plaintiffs alleged purchase of well drilling machinery from defendant for $550 upon the express agreement and undertaking on the part of the defendant that he would not engage in the business of drilling water wells in the borough of Evans-burg, Butler county, or in the neighborhood thereof. The whole transaction was verbal.</p> <p>The facts are sufficiently stated in the opinion of the Superior Court.</p> <p>The court below, Greer, P. J., issued the following decree:</p> <p>July 15, 1895, case called, witnesses sworn and examined in open court. Held for consideration, July 18, 1895. The weight of evidence in this case does not establish the contract alleged by the plaintiffs in their bill, to wit: That the defendant promised and agreed not to engage in the business of drilling water wells in the borough of Evansburg or in the neighborhood thereof. Therefore the bill is dismissed at the cost of the plaintiffs.</p> <p>Error assigned was, among others, dismissing plaintiff’s bill.</p>

<p>Appeal, No. 9, April T., 1896, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1894, No. 85, on verdict for plaintiff.</p> <p>Appeal from award of viewers. Before Rayburn, P. J.</p> <p>At the trial it appeared that this was a proceeding to recover damages for injuries to land caused by the construction of a pipe line. The plaintiff testified that he had lived upon the land for ten or eleven years. He explained to the jury the quality of the land, the structures upon it and the character of the work of the defendant in laying its pipe line. He also testified as to the condition of the ground as it was left after the completion of the work. He was finally asked this question:</p> <p>Q. What was the value of your farm there before this gas line went through it ?</p> <p>Mr. Buffington: That is objected to, the witness not having shown himself competent to answer the question.</p> <p>The Court: He has testified he is the owner of the property. We will overrule the objection and give you an exception and sealed bill. [1]</p> <p>The witness testified that the construction of the line made a difference of $1,000 in the value of his farm.</p> <p>Plaintiff further testified as follows:</p> <p>Q. Mr. Galbraith, how is the land through which this pipe line runs suited for building purposes — that is, for laying out in lots?</p> <p>Mr. Buffington: The question is objected to as irrelevant.</p> <p>The Court: Yes.</p> <p>Mr. Patton: You can state if this farm is ripe for building purposes.</p> <p>Mr. Buffington: The question is objected to as incompetent.</p> <p>The Court: We will overrule the exception and give you an exception and sealed bill. • [2]</p> <p>Joseph Atkinson, a witness for plaintiff, testified that he lived for fifty-one years within half a mile of the plaintiff’s land. He testified as to ridges and depressions on the land after the construction of the pipe line. He also knew of sales of land made in the neighborhood. He was finally asked this question :</p> <p>Q. Have you taken into consideration the actual damage done to the surface in the construction of this line, including the injury to the fences and trees and the depreciation of the value of the farm as a whole by the entry and appropriation of Mr. Galbraith’s land by this gas company, — what would you say the damage would be ?</p> <p>Mr. Buffington: That question is objected to as incompetent. The witness not having shown sufficient knowledge to answer the question.</p> <p>The Court: We will overrule the objection and give you an exception and sealed bill. [8]</p> <p>A. Why, if the property was my own I would not take $1,500 and have that there and have it in the shape it is in and keep it there, that is the condition the line is in, the condition of the buildings.</p> <p>David Wallace, a witness for the plaintiff, testified as follows:</p> <p>Q. Now you can state, Mr. Wallace, what the condition of it is as to ridges and depressions.</p> <p>Mr. Buffington: That is objected to.</p> <p>The Court: We think that is a little far distant from the time the trench had been dug and filled up.</p> <p>Mr. Patton: We offer to follow it by testimony of Mr. Galbraith that he has not interfered with the route of the line since, that it has not been interfered with by any person since.</p> <p>Mr. Buffington: That is objected to.</p> <p>The Court: We will overrule the objection and give you an exception and sealed bill. [4]</p> <p>Mr. Patton: You can state how the place is as to depressions and ridges.</p> <p>A. Well, a proportion of the land is in ridges, and then there are places where it is kind of sunk low, you know.</p> <p>Robert Miller, a witness for tire plaintiff, was permitted under objection and exception to testify as to the value of the land. The substance of Miller’s testimony is stated in the opinion of the Superior Court. [5]</p> <p>Under objection and exception the testimony of L. W. Patterson was admitted as to the value of the land. [6]</p> <p>When Thomas Patterson, a witness for plaintiff, was on the stand, he testified that he lived about a mile and a half from the land, and knew it nearly all his life. He stated that he knew the general value of the land as well as any other property. He was finally asked this question:</p> <p>Q. Now, I wish you would state what was the actual damage done to the surface of this land of Mr. Galbraith’s in the constructing of the line, including the injury to fences and the depreciation of the value of the farm as a whole by the entry and appropriation of tins strip of land through this farm.</p> <p>Mr. Buffington: The same objection to the same question to the last witness.</p> <p>The Court: The same ruling. [7]</p> <p>Mr. Patton: What would you fix the damages ?</p> <p>A. Well, if I was going to buy the land I could fix the damage ; I would make at least 11,500.</p> <p>When Thomas Montgomery, a witness for plaintiff, was on the stand he was asked this question:</p> <p>Q. Mr. Montgomery, you have been a farmer in this county? A. I have been from my childhood. Q. You have owned a good deal of land in Armstrong county ? A. I have had several pieces. Q. Did you at any time make a visit to this land in dispute ? Did you at any time go over this land where this pipe line goes through? A. Yes, sir, I went there by order of court as a viewer. Q. Did you make an examination of the land down there? A. We looked over the land when the line went through, not over the whole farm. Q. But you looked through it when the line went through? A. Yes, sir, went over the ground. Q. Are you acquainted with the value of land in Armstrong county? A. Well, that is most too much; I have been about as much as many people; it is pretty hard for a man to be acquainted with the value of all the land in the county. Q. You have a general idea of the market value of land ? A. I think as good as the general farmer. Q. Now, will you state what in your opinion was the injury done to Mr. Galbraith’s land by the depreciation of its value, of the farm as a whole, by this pipe line running through it? A. We made a written report of that-</p> <p>Mr. Buffington: We object to the question as incompetent and irrelevant; the witness has not shown sufficient knowledge to justify his answering the question proposed.</p> <p>The Court: We will overrule the objection and give you an exception and sealed bill. [8]</p> <p>Mr. Buffington: Aside from the question he should be directed by the court to give his answer unbiased by any influence that rests in his mind from the view.</p> <p>The Court: We will instruct the witness as you request. Mr. Montgomery, you have been asked the question in reference to the damage sustained by Mr. Galbraith’s property on account of the pipe line passing through it. Now, we have been requested by counsel for the defense here to instruct you that in giving your answer you are not to be influenced in any way by the influence brought upon you or by any of the viewers or that occurred in your deliberations in the view.</p> <p>Mr. Patton: Now, just state what Mr. Galbraith’s, damage was there, in your opinion.</p> <p>A. Why, my opinion is that I made it $500, that is my best recollection and I won’t be sure without having the paper whether I made that for running from the bend from the tow path through the farm, or whether that was through the farm and the part on the tow path separate. I could not answer that; I had thought they left a very dirty, mean job, and they ought to pay for it; if they had cleaned up the work and left it decent I believe I would not have made it so heavy.</p> <p>Phillip A. Lloyd, a witness for defendant, was asked these questions:</p> <p>Q. Plow long have you been in the gas business? A. Ever since the Philadelphia Company started, eleven years ago. Q. What has been your business with regard to pipe lines ? A. The first year or two I laid the biggest lines to Murraysville; since then right of way and claim agent. Q. Have you been actively in the field during the eleven years ? A. Continuously. Q. Going almost all the time? A. In all counties contiguous to Allegheny. Q. You have attended the settlement of claims for the company ? A. Yes, sir. Q. Have come in contact with farmers and farms all along the line, building lots and everything ? A. Between eight and nine hundred of them. Q. Are you familiar with the character of gas as to its lasting qualities in. the field, what is the duration of gas fields ? A. Some fields hold out longer than others. Q. Are you familiar with them? A. Yes, sir, I am familiar with them. Q. Just state what the character of the fields are.</p> <p>Mr. Patton: What is the object of that?</p> <p>Mr. Buffington: We want to show the probable lasting qualities of the Armstrong county field for which this pipe line was constructed.</p> <p>Mr. Patton: It is objected to as incompetent and irrelevant and too indefinite.</p> <p>The Court: If you can put a specific time on it which you use it we will let you show that.</p> <p>Mr. Buffington: As an estimate for the jury, as a basis. We propose to prove by Mr. Lloyd as an expert, the probable time which this easement will be used by the company.</p> <p>Mr. Patton: It is objected to as incompetent and irrelevant and too indefinite.</p> <p>The Court: We will sustain the objection and give an exception and sealed bill. [11]</p> <p>The court charged in part as follows:</p> <p>[Joseph Atkinson, another witness on behalf of the plaintiff, testifies that he has lived in the neighborhood there for fifty years, that he knows this land, that he knows the value of lands in the neighborhood, and he states that the damage to this property by reason of the pipe line going through it was $1,500.] [12]</p> <p>[Robert Miller is called on the part of the plaintiff; he testifies to seeing the pipe line laid, as to the ridges, some places there was some ground piled up upon it — he gives you a description of that as far as he saw it; but he also testifies as to the value of the land and the damages; he states that he is acquainted with the value of land in the neighborhood, and that he estimated the damage which this plaintiff has sustained by reason of the company going through his land at the sum of $1,000.] [13]</p> <p>[Thomas Montgomery, who had been one of the viewers in this case, comes upon the witness stand and describes what he saw there when he went over the land, where this pipe line was laid, and that he places the damage at 1500.] [14]</p> <p>[James B. Donglass, another of the viewers, is called, who states that he is acquainted with the value of lands in this county, that he was present upon the ground where this pipe line had been laid, and that he estimates or places the damages at 11,000.] [15]</p> <p>[Dr. T. H. Allison, another of the viewers, is called; he testifies that the property was damaged to about the sum of $800. You will recollect what he stated as to the means by which' he arrived at that estimate; it was on account of the proximity of the pipe line to the buildings, he said that was the basis upon which he places a considerable amount of this estimate of damages which he gives before you.] [16]</p> <p>Verdict and judgment for plaintiff for $887.50. Defendant appealed.</p> <p>Errors assigned were, (1-11) rulings on evidence, quoting the bill of exceptions; (12-16) above instructions, quoting them; (17) that the charge was misleading.</p>

Appeal, No. 17, April T., 1896, by defendant, T. M. McDonough, from judgment of. C. P. No. 1, Allegheny Co., No. 323, Dee. T., 1888, committing defendant for contempt for nonpayment of costs in equity suit by W. H. Duff, plaintiff. Reeder, J., dissents. This was a bill in equity for the conveyance of real estate and a cancellation of deeds. The case was referred to John D.. Shafer as master, whose report appears on former appeal in this case in Duff v. McDonough, 155 Pa. 10.

Appeal, No. 40, April T., 1896, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1892, No. 65, for plaintiff. Assumpsit on oral contract of employment. Verdict for plaintiff for $950. The court below, Miller, P. J., specially presiding, charged the jury: The plaintiff, N. P. Nye, was and had been for some years prior to September 28, 1890, a locomotive engineer.

Appeal, No. 35, May T., 1896, by Overseers of the Poor of Plumcreek Twp., from decree of Q. S. of Armstrong Co., June Sessions, 1895, No. 2, dismissing appeal from the order of removal of paupers from the borougb of Elderton to the township of Plumcreek. Appeal from order of removal of paupers from borough of Elderton to township of Plumcreek. Before Rayburn, P. J. Appeal dismissed.

Appeal, No. 41, May T., 1896, by defendant, from judgment of C. P. Armstrong Co., March T., 1895, No. 125, on verdict for plaintiff. Appeal from award of jury of view assessing damages for the tailing of a right of way for a natural gas pipe line under right of eminent domain.

<p>Appeal, No. 36, April T., 1896, by defendants, from judgment of O. P. Armstrong Co., March T., 1892, No. 88, on verdict for plaintiff.</p> <p>Scire facias to charge real estate, of which defendant was alleged to have died seized, with tbe payment of a debt reduced to judgment after bis decease. Before Raybtjrn, P. J.</p> <p>Tbe following facts are stated in tbe opinion of tbe Superior Court.</p> <p>“ Andrew Bott by bis deed dated tbe 24th day of February, 1881, conveyed to his daughter, Mary Jane Murdock, bis farm, situated in Perry township, Armstrong county, Pa., containing one hundred acres, which he had purchased from Michael Shakely, and all the horses and cattle belonging to him then upon the farm, in consideration of the sum of $1,500. The deed also contains these stipulations : “And it is further agreed by the parties hereto that the second party stand security for about five hundred dollars to Michael Shakely and fifty dollars to George Shakely; ” also “ said first parties to this agreement reserving their maintenance on or from the above farm during them natural life.” As between the parties thereto this was a good conveyance and whether the purchase money named therein was actually paid or not was based upon a good and valid consideration. So far as the evidence shows, it seems to have included all the property of the grantor.</p> <p>Andrew Bott died April 5, 1882. Suit was brought in the common pleas of Armstrong county to No. 78 December term, 1886, by Michael Shakely against J. S. Guthrie, administrator c. t. a. of Andrew Bott, deceased. Upon the trial of this suit, a verdict was rendered, December 21,1891, in favor of the plaintiff for $788.76; and on the 26th of December, 1891, judgment was entered on the verdict, and the same day a scire facias was issued to No. 88 of March term, 1892, at the suit of the plaintiff and against the defendants in the court below, as they appear on the records here. Issue was joined between the plaintiff and Belle Gibson, A. B. Gibson and M. B. Gibson upon the plea “that jrrdgment No. 78, December term, 1886, upon which the scire facias was issued was not at the time of the issuing of said scire facias a lien upon the land owned or belonging to these defendants.” Upon the trial of the issue, a verdict was rendered for the plaintiff and against the defendants for $880.94, a rule to show cause why a new trial should not be allowed was granted and on the 28th of October, 1895, in an opinion filed, was discharged by the court below. Judgment was entered upon the verdict and an appeal taken by Belle Gibson, who claimed the real estate conveyed by Andrew Bott to Mary Jane Murdock, as the alienee of the latter.</p> <p>The court gave binding instructions for plaintiff (1) and refused same to defendants. [4] Defendants’ third and fourth points were refused, said points being to the effect that the con•veyance of Andrew Bott to Mary Jane Murdock was valid and not fraudulent as to the plaintiff. [2, 3]</p> <p>Verdict and judgment for the plaintiff for $880.94. Defendants appealed.</p> <p>Errors assigned were, (1) binding instructions for plaintiff; (2, 3) refusal of defendants’ third and fourth points, reciting same; (4) refusal of binding instructions for defendants.</p>

Appeal, No. 66, April T., 1896, by plaintiff, from judgment of C. P. Armstrong Co., Dec. T., 1893, No. 263, on verdict for defendant. Trespass for obstructing right of way.

Appeal, No. 92, April T., 1896, by defendant, from judgment of C. P. No. 3, Allegheny County, November Term, 1892, No. 246, on verdict for plaintiff. Assumpsit on fire insurance policy. Before Kennedy, P. J. At the trial it appeared that plaintiff owned a house in Oak-dale. His father lived in Washington, Pa., and a few days before the date of the policy sent an agent named Hughes to Oakdale to see his son about insurance.

Appeal, No. 61, April T., 1896, by-defendant, from judgment of C. P. No. 1, Allegheny County, March T., 1895, No. 258, on verdict for plaintiff. Appeal by defendant from judgment of alderman in favor of plaintiff.

Appeal, No. 62, April T., 1896, by plaintiffs, from judgment of C. P., Indiana Co., March T., 1880, No. 71, on verdict for defendant. Ejectment for tract of land sold for taxes as unseated land. Before Greer, P. J., of the 17th judicial district, specially presiding.

<p>Appeal, No. 71, April T., 1896, by plaintiff, from judgment of C. P. Washington Co., Nov. T., 1894, No. 28, on verdict for defendants.</p> <p>Trespass for obstructing plaintiff’s user of the waters of a certain spring. Before McIlvaine, P. J.</p> <p>It appeared from the pleadings and evidence that: The borough of Coal Centre obtained by grant from one Crothers the right to use a certain spring located on his land. This land had been previously owned by one Jackman. Prior to the bringing of this suit water had been running for many years through a pipe over another route; this pipe passed through plaintiff’s land and plaintiff’s predecessor in the title (Thomas Piper), had the use of the water as well as the borough. The borough ou obtaining the grant from Crothers abandoned and cut off the old pipe and, through defendants acting as its agents, prevented plaintiff from reconnecting the old pipe at the spring, which is the trespass complained of against plaintiff’s alleged easement claimed by adverse user.</p> <p>Defendants, acting for the borough, contended that the prior use of the old pipe was a permissive one subject to revocation by the owner of the spring, and that neither the use of the water by the borough nor by Piper, the plaintiff’s predecessor in the title, nor by plaintiffs themselves, had ever been an adverse one, but under a license revocable at will by the owner of the spring. It was conceded that there had been an open notorious user of the water both by the borough and the plaintiff and its predecessor in the title. The question turned on whether this use was permissive or adverse and hostile. The court below left the question of adverse user to the jury under the evidence and with proper instructions as to the law governing such use, instructing them: “ If you find that at the time this pipe was disconnected the plaintiff only had a privilege and not a right —a revocable license — then of course you will find for the defendants.”</p> <p>The defendants’ points, all of which were affirmed and which affirmance was not assigned for error, were as follows :</p> <p>The defendants’ counsel respectfully request the court to charge the jury as follows :</p> <p>1. The borough counsel having purchased from J. B. Crothers the use of the spring in question, it is necessary for the plaintiff in order to establish a right to the water of the spring as against the borough, to show that the plaintiff or its predecessors in title had acquired such right as against Crothers. Answer: Affirmed.</p> <p>2. If the use of the water of this spring made by Thomas D. Piper, plaintiff’s predecessor in the ownership of its house and lot, was not accompanied by a claim on his part of a right to continue such use, but was recognized by him as being a mere permissive privilege, then such use, even though continued for more than twenty-one years, Avould not give to Mr. Piper any permanent right. Answer: Affirmed.</p> <p>3. If the use of the water by Thomas D. Piper was permissive, and. not under a claim of right, down to the date of his death in 1880, then even though the user by subsequent owners may have been under claim of right, such user will not establish a right in the plaintiff, because it had not been continued for the period of twenty-one years prior to the diversion of the water from the pipe through the plaintiff’s premises. Answer: Affirmed.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>JErrors assigned were:</p> <p>(1) In refusing the 9th point of the plaintiff, and in the answer made to the same, which was as follows :</p> <p>. 9. If the jury believe the testimony of Alfred Shutterly that L. E. Smith, J. R. Gregg and the other persons named by him, recognizing the right of Thos. Piper to the water from the spring with which his pump log was about that time connected by a lead pipe, entered into an agreement with said Piper whereby they acquired from him the right or privilege of using the surplus water from his pump log, then the continued use by them or the public as their successors, at the public fountain below Piper’s place, under said agreement, could not mature into a right which would justify the defendants either at their own volition or by direction of' the borough of Coal Centre, in depriving the plaintiffs as the successors to Piper’s said right, or its tenants in said Piper property, of the first use of said water, and in so doing the defendants were guilty of a trespass, and the verdict should be for the plaintiff. Answer: Refused, the defendants do not claim title by adverse possession, they justify under the grant from Crothers of date February 17, 1894, and the fact that the plaintiff had no legal title to the use of the water but only a revocable license.</p> <p>(2) In admitting the notes of the testimony of James Ward offered by defendants; in overruling plaintiff’s objection thereto, and in allowing said notes of testimony to be read in evidence to the jury, which offer, exception and notes so read were as follows:</p> <p>L. P. Frye, recalled:</p> <p>Q. Did you subpoena James Ward? A. Yes, sir. Q. When? A. Tuesday, one week ago. Q. In what condition is he? A. His foot is in bad order; not able to walk. Q. He is not here? A. No, sir; similar to tbe way he was last term of court.</p> <p>Defendants’ counsel present certificate of Dr. Letherman, sworn to on tbe 23d of November, 1895.</p> <p>Counsel for defendants offer tbe official notes of the testimony of James Ward, who was a witness on tbe former trial of tbis case before tbe same court, and whose testimony was taken by S. C. Clarke, official stenographer of tbe said court, and ask that tbe stenographer be permitted to translate that testimony to tbe jury from bis notes.</p> <p>Objected to for tbe reason that tbe notes of testimony are incompetent as evidence in tbe case. It not appearing that the circumstances come within tbe provision of the act of 1887, or any other law of tbe commonwealth, that entitles tbe notes to be read.</p> <p>Tbe Court: Tbe testimony of Mr. Frye that tbe witness bad been subpoenaed, and tbe sworn certificate of tbe physician that Mr. Ward is unable to be at court, so account for the absence of tbe witness as would prevent tbe court from issuing an attachment for him, and tbe objection is therefore overruled, and tbe notes of testimony admitted as asked for in tbe offer; exception for plaintiff and bill sealed.</p> <p>(Testimony of James Ward at former trial read by the stenographer from bis notes.)</p> <p>(3) In refusing plaintiff’s offer of evidence when Margaret Moore was oil the stand and in sustaining defendants’ exception thereto, which was as follows :</p> <p>Margaret Moore, recalled:</p> <p>“ Q. Mrs. Moore, when you were here as a witness at tbe former trial of tbis case you were examined, I believe? A. Well, I believe so. Q. You stated, or testified, at that time about tbe privilege which Mr. Piper claimed to have secured from Colonel Jackman for the use of tbe water? A. Yes, sir, privilege or right of way. Q. State whether or not you used tbe word privilege, or any other language, by which you intended to convey tbe impression</p> <p>“ Objected to as incompetent.</p> <p>“ Tbe witness being called, and tbe notes of her testimony at the former trial having been read in part relating to a particular question and tbe word ‘ privilege ’ used by her, tbe plaintiff offers to prove by her that the word privilege was not used in any technical sense, or for the purpose of conveying the impression that it was a license for the use of the water to which she referred, but that, being an unlearned woman, the right to which she referred was a right or privilege of a permanent kind indicating an ownership in the water with the right to usé it; that such was the effect of the language of Mr. Piper to her, to which her testimony then related.</p> <p>“ Objected to as incompetent and irrelevant, and not rebutting.</p> <p>“ Objection sustained; exception for plaintiff and bill sealed.”</p> <p>(4) In overruling plaintiff’s offer to prove by John McNeil the contents of the notice of the watering trough, and in sustaining defendants’ objection to the same.</p> <p>(5) The court erred in refusing to allow plaintiff to prove by John Parshall in accordance with its offer the admission and statement of Mr. Hornbake, as burgess of the borough of Coal Centre, and in sustaining defendants’ objection thereto, which offer, objection and ruling of the court thereon were as follows:</p> <p>John Parshall, recalled:</p> <p>“ Plaintiff offers to prove by the witness that he had a conversation with Mr. Hornbake, at the time the acting burgess or representative of the borough of Coal Centre, about the time that the new pipe line was laid under the direction of the borough around the road to the spring in controversy, in which conversation Mr. Hornbake told him that their intention was only to lay the pipe in the spring on a level with the pipe which carried the water to the Beneficial Association property, and that there was no dispute of their right to use the water in common with the borough from this spring. The purpose is to show an admission of the parties under whom the defendants in their defense claim to have been operating and whose directions they were carrying out in asserting a higher and better right than that which the chief burgess of the borough said they claimed.</p> <p>“ Objected to as incompetent and irrelevant.</p> <p>‘‘ Objection sustained, exception for plaintiff and bill sealed.”</p> <p>(6) In portion of charge,'reciting same: [Adverse possession, as I have already said, or title by adverse possession, presupposes that there was a grant originally made, and that the person who enjoys the right had acted in such a way, for twenty-one years, as to say to the owner of the spring, I have a right to this water against you and I am using this water because I have a right to use it against you. An adverse, exclusive and uninterrupted enjoyment of this water for twenty-one years, if made under a claim of right, with the knowledge and acquiescence of the owner, would afford a conclusive presumption of a grant or right. Now, that is where the case turns.] [6]</p>

<p>Liquor law— Club .sales.</p> <p>An unlicensed sale of liquor, under guise of club distribution, would be clearly unlawful and the law will look through all disguises and so pronounce it.</p> <p>Where however a bona fide organization with a selected membership made up of reputable persons, really owning its property in common, and formed and carried on for purposes to which the furnishing of liquor to its members without profit was merely incidental, and where such club is not a scheme to evade the license law, the fact that the club members are able to procure and pay for liquor on the premises does not constitute an illegal sale thereof.</p> <p>The purpose of the club system is to distribute the advantages, comforts and luxuries of the club among members so there shall not be unequal contributions to the treasury which purchases them. Members are all owners of the property when purchased in equal shares and if a division were then made, each would then be entitled to an equal share of the liquor, but one consumes his share and that of the others who do not drink liquor and he puts back into the common treasury the value of the others’ shares; therefore, although by consumption the division is not equal, yet it is made equal by the contribution to the treasury, that has neither lost nor gained, consequently the distribution is equitable. Such contribution does not constitute a sale. There is no element of bargain, only a method of distribution of the common property.</p> <p>Practice, Superior Ct. — -Assignments of error — Rule XVII.</p> <p>Where an assignment of error relating to the admission or rejection of testimony is so drawn that it does not show the testimony adduced or proposed to be adduced under the offer admitted or rejected, but merely discloses a question propounded and objected to and admitted or refused, it is not in conformity with rule XYn. and will be disregarded.</p> <p>Practice, Superior Gt. — Assignments of error — Unanswered question.</p> <p>Even where the objections to questions asked, which are overruled, are well taken, yet when the witness did not in point of fact answer such questions the error in overruling the objection, as it did no harm, is not proper ground for assignment of error.</p> <p>Practice, Q. S. — Improper remarks by counsel.</p> <p>The prosecuting attorney in criminal cases is so far counsel for the defendant that he ought not to permit himself nor be permitted without correction, if objection is promptly made, to assert in his closing argument to the jury the existence of criminating facts of which there is no evidence in the case.</p> <p>Practice, Superior Gt — Remarks by counsel — Improper assignment of error.</p> <p>An assignment of error for “permitting ” improper remarks by counsel is not sustained by the record where the record does not affirmatively show that the court “permitted” the counsel to make the remarks or that the judge’s attention was called to them at the time they were made or at any time when he could have prevented or counteracted their harmful effect, or that he was asked to do anything concerning them.</p> <p>An assignment will not be sustained when neither of the methods recognized in Com. v. Weber, 167 Pa. 153; Holden v. Pa. R. R., 169 Pa. 1, and Com. v. Windish, 176 Pa. 167, for bringing the remarks of counsel upon the record, so that the action of the trial court with reference thereto can be reviewed by the appellate court, was adopted.</p>

Appeal, No. 102, April T., 1896, by defendant, from judgment of C. P. Butler Co., June T., 1896, No. 1, on verdict for plaintiff. Rice, P. J., Beaver and Orlady, JJ., dissent.

<p>Appeal, No. 93, April T., 1896, by P. T. Witherop et al., from decree of C. P. Crawford County, Feb. T., 1896, No. 130, dissolving the Titusville Oil Exchange.</p> <p>Petition of tbe Titusville Oil Exchange for permission to surrender all -the powers contained in its charter and for a decree for the dissolution of the said corporation.</p> <p>The facts are sufficiently disclosed by the petition, answer and decree of the court, which are set out in full, and by the opinion of the Superior Court.</p> <p>PETITION.</p> <p>The petition of the Titusville Oil Exchange respectfully represents :</p> <p>That it is a corporation of the first class, organized and duly incorporated under the provisions of the General Corporation Act of Pennsylvania of April 29th, 1874, and the supplements thereto, with a capital stock of §40,000, divided into shares of the par value of §100 each.</p> <p>That, at a meeting of the stockholders of the said corporation, duly convened on the first day of February,, 1896, at the principal office and place of business of said corporation in the City of Titusville, County of Crawford and State of Pennsylvania, of which meeting due notice had been previously given, according to the Constitution and By-Laws, and as directed by law, it was resolved by a majority of the meeting of the corporators and members of the Titusville Oil Exchange to apply to this Honorable Court for a decree for the dissolution of the said-corporation, your petitioner; and the President and Secretary and Board of Directors were instructed by said resolution to present a petition for such decree.</p> <p>Wherefore, your petitioner, herewith presenting a full and true account of the President, Secretary and Treasurer and Board of Directors, of all their transactions with the said corporation, and showing to the Court that the prayer of its petition may be granted without prejudice to the public welfare, or the interests of the corporators and members, prays the Court that it will approve the accounts of the said Officers and Directors and for permission to surrender all the powers contained in its charter, and that the Court will make a decree for the dissolution of the said Corporation.</p> <p>Your petitioner further prays that notice of this application be given by publication in “Titusville Herald ” and “Advance Guard,” two newspapers published in the County of Crawford, and of general circulation therein, in accordance with the Act of Assembly in such case made and provided, once a week for three weeks prior to the time fixed for hearing, the same being the County in which the principal operations of the corporation are conducted, and in which its principal office is located.</p> <p>And your petitioner further sets forth that no taxes are due or alleged to be due to the Commonwealth of Pennsylvania, the Corporation being of the first class and not subject to taxation,, as appears by the certificates of the Auditor General filed herewith.</p> <p>And the time of hearing this application be fixed for the first Monday of March, 1896, at ten i’clock A. M.</p> <p>John Fertig, John J. Carter, Prest.,</p> <p>B. F. Kraeeert, E. C. Hoag,</p> <p>E. T. Roberts, Roger Sherman,</p> <p>Joseph Seep, J. H. Caldwell.</p> <p>C. E. Martin, Secy.</p> <p>ANSWER TO THE PETITION PILED POR DISSOLUTION OP THE SAID TITUSVILLE OIL EXCHANGE, A CORPORATION.</p> <p>We, the undersigned corporators, and stockholders of the said corporation, in behalf of ourselves and such other stockholders, corporators and members of the said Titusville Oil Exchange as may hereafter wish to join us, for answer to the petition filed for dissolution of the said corporation, say:</p> <p>First. That the resolution, alleged in the petition to have been passed February 1, 1896, by a majority of the meeting of the corporators and members of the Titusville Oil Exchange, for a decree for -the dissolution of the said corporation, was not passed, as we believe and expect to be able to prove, by a majority of the votes of the stockholders, corporators and members of the said Oil Exchange legally entitled to vote at the said meeting upon the question; but the vote so taken and counted was illegal, fraudulent and void and not a correct and true expression of parties legally entitled to vote at the said meeting; that the said meeting was held in the spacious assembly room or hall of the Oil Exchange, and there was a large attendance of stock-holders, and other persons not stockholders, corporators or members of the Titusville Oil Exchange present; that the Chairman refused to put a motion made and seconded to have the vote taken by roll call, but appointed two tellers openly and avowedly in favor of the dissolution of said corporation (one of whom, as we are informed, is not a citizen of the United States) instead of appointing disinterested persons, or a teller from the number in favor of dissolution and one from those opposed thereto. The said tellers so appointed distributed tickets or ballots through the audience, printed on one‘side “ For dissolution ” and no tickets or ballots either in blank, or printed “ Against dissolution ; ” that they passed the hat around through the audience and received ballots from those present, and it would be impossible for tbe tellers or anyone to state whether all who voted were stockholders and corporators of the said corporation and members of the said Oil Exchange entitled to vote at said meeting or not. And we, the respondents, believe and expect to be able to prove that there were ballots or votes received and counted from persons not legally entitled by law and the by-laws of the Titusville Oil Exchange* the said corporation, to a vote at said meeting; and that the result as reported by the tellers, was unfair and unjust, and that a correct vote of those legally entitled to vote at the said meeting would, as we believe, have shown a majority against the passage of the said resolution.</p> <p>Second. The business of the said corporation and the management of its property has for some time past been so conducted and managed, through the influence of the persons attempting to have the said corporation dissolved, as we believe and expect to be able to prove, in such a manner as to make as poor a financial showing as possible, for the purpose of depreciating the value of the stock in said corporation and purchasing it at greatly reduced value and for the purpose of getting a controlling interest, having the said corporation dissolved, its property sold at a time of great financial depression and bidding it in, in their own interest, at a low price and much less than it is really worth; that many of the stockholders subscribed and paid for their stock with the understanding and expectation that the Oil Exchange Building would be constructed and used for public or semi-public purposes ; and we aver that the dissolution of the said corporation and the sale of its property would be prejudicial to the public welfare and the interest of its stockholders ; that the account of the President, Secretary, Treasurer and Directors of the said corporation filed with the petition herein, and which the Court is asked to approve, is not a correct showing of the financial condition of the said corporation as it exists or ought to exist; that the Commercial Bank, John J. Carter and others have rooms leased in the building owned by the said corporation, and that the account does not show any rent collected or paid by them to the said corporation; and that if the business of the said corporation was properly managed, without any prejudicial influence from those seeking for its dissolution, ’that liberal annual dividends could be paid on the capital stock of the said corporation, to the great advantage of all the stockholders, and they will be greatly prejudiced by the dissolution of the said corporation.</p> <p>P. T. Wither op,</p> <p>M. B. McMannus,</p> <p>M. Stewart,</p> <p>L. L. Shattuck,</p> <p>J. A. Dower,</p> <p>W. H. Wood,</p> <p>W. M. Henderson,</p> <p>Geo. A. Chase,</p> <p>The Second National Bank oe Titusville, Pa.</p> <p>By W. O. DbLong,</p> <p>Assistant Cashier.</p> <p>L. E. Andrews,</p> <p>E. O. Emerson,</p> <p>Taylor Tibet,</p> <p>C. B. Friedman,</p> <p>Loamis L. Shattuck,</p> <p>N. B. Barnsdall,</p> <p>J. P. Thomas,</p> <p>John Lammers,</p> <p>James Purtill,</p> <p>A. J. Thompson,</p> <p>Edgar Hale,</p> <p>W. P. Love,</p> <p>F. P. Brown,</p> <p>DECREE.</p> <p>And now, to wit; the 9th day of March, 1896, the petition of the Titusville Oil Exchange corporation for a decree for the dissolution thereof having been duly presented, and proof having been made that notice of such application has been duly given by publication according to law, and it appearing by the proper certificates of the auditor general, filed, that all taxes payable and due the commonwealth of Pennsylvania have been paid, and it further appearing that the prayer of the said petition may be granted without prejudice to the public welfare or the interests of the corporators, it is ordered, adjudged and decreed that the said corporation be, and the same is hereby dissolved, and all and singular its powers, franchises and privileges be, and the same are hereby extinguished and determined: Provided that this decree shall go into effect upon filing a certified copy thereof, and recording the same in the office of the secretary of the commonwealth.</p> <p>And it is further ordered, adjudged and decreed that the accounts of the directors and officers of the said corporation, herewith filed, be, and the same are hereby approved and confirmed. [lj</p> <p>Error assigned was entry of the decree dissolving the Titus ville Oil Exchange.</p>

Appeal, No. 88, Nov. T., 1896, by defendants, from judgment of C. P. N. 1, Plaila. Co., March T., 1896, No. 687, in favor of plaintiff for want of a sufficient affidavit of defense. Assumpsit to recover the price of nineteen carloads of lumber. Judgment for want of a sufficient affidavit of defense. Damages assessed for $954.01. It appeared from the record that no bail for costs was given in tills case and a rule to quash was filed.

Appeal No. 25, Nov. T., 1896, by Alfred Hoegerle, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1895, No. 849, in favor of plaintiff for want of a sufficient affidavit of defense. Assumpsit to recover $591 for services. The docket entries disclose the record as follows: Other facts appear from the opinion of the Superior Court. Errors assigned were, (1) entering judgment for plaintiff; (2) entering judgment for amount admitted.

Appeal, No. 2, Nov. T., 1896, by defendant, from judgment of C. P. No. 4, Pbila. Co., Sept. T., 1895, M. L. D., No. 918, in favor of plaintiff for want of a sufficient affidavit of defense. Sci fa. sur mechanic's lien. This was an amicable sci. fa. issued on a mechanic’s lien claim for material alleged to have been furnished to houses which Henry Close was erecting for George W. Hancock, under contract of March 30, 1895.

Appeal, No. 105, Nov. T., 1896, by defendant, from judgment of O. P. No. 8, Phila. Co., June T., 1895, No. 642, on verdict for plaintiff. Assumpsit for machinery sold and delivered. Before Fin-letter, P. J. It appeared from tbe evidence tbat the plaintiff claimed to recover $218 balance due for certain file machines delivered under defendant’s written order; also $73.79 for extra work and material.

Appeal, No. 109, Not. T., 1896, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1893, No. 275, on verdict for plaintiffs. Assumpsit to recover money due as per agreement. The facts in this case briefly stated from the evidence, are as follows: Mr. Daly, the defendant, was the executor of Thomas Costigan, deceased. He filed three accounts.

Appeal, No. 106, Nov. T., 1896, by defendants, from order of C. P. No. 4, Phila. Co., March T., 1896, No. 881, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit to recover proceeds of policy of life insurance from assignee thereof.

Appeal, No. 33, Nov. T., 1896, by Mary J. Carroll, from judgment of C. P. No. 3, Phila. Co., Dee. T., 1894, No. 264, in favor of plaintiff. Sci. fa. sur mortgage. In the matter of the distribution of funds arising from sheriff’s sale. This was an action originally begun in the court below upon a mortgage given by Thos. J. Carroll to one Josephine Clare for $1,000 under date of January 18, 1884, and assigned on December 4, 1893, to Joseph Wasserman, the plaintiff below.

Appeal, No. 53, Nov. T., 1896, by defendant, from judgment of O. P. No. 3, Pbila. Co., March T., 1895, No. 291, on verdict for plaintiffs. Assumpsit on contract to deliver scrap tin.

Appeal, No. 57, Nov. T., 1896, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T.,-1894, No. 816, in favor of plaintiff, on case stated. Case stated as to distribution of a benefit fund. Tbe action in tbe court below was assumpsit, begun by Rosina B. Wolpert, wife of Gustav F. Wolpert, deceased, to recover the balance of a benefit fund alleged to be due her from the defendant society.

<p>Taxation — Exemption—Cemetery company — Municipal assessments.</p> <p>The exemption from taxation accorded to a cemetery company under act of May 29, 1840, P. L. 569, does not extend to a municipal charge or assessment for water pipe made against such cemetery company.</p> <p>The right of a municipality to recover from church and cemetery properties their proportionate share of the cost of water pipe and pavement improvements is settled, and is not changed by the fact that a cemetery company was incorporated before the amendment to the constitution of 1856, P. L. 1857, p. 811, which is adopted in sec. 10, art. XV. of the constitution of 1874.</p>

Appeal, No. 58, Nov. T., 1896, by defendant, from judgment of C. P. No. 8, Phila. Co., Sept. T., 1895, No. 790, on verdict for plaintiff. Trespass against agents of common carrier for goods lost in transit.

Appeal, No. 93, Nov. T., 1896, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1895, No. 348, in favor of plaintiff for want of a sufficient affidavit of defense. Assumpsit to recover the sum of $346, with interest.

Appeal, No. 1, Nov. T., 1896, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1892, No. 376, on verdict for plaintiff. Trespass for the killing of plantiff’s cows. It appeared from the evidence that certain of plaintifPs cows wandered on to defendant’s railroad and were killed.

<p>Appeal, No. 120, Not. T., 1896, by-defendant, from order of C. P. No. 2, Pbila. Co., June T., 1896, No. 651, making absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Reeder, J., dissents.</p> <p>Assumpsit on a promissory note.</p> <p>The facts sufficiently appear in the opinion of the Superior Court.</p> <p>Error assigned was, making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Evidence — Parol agreement to contradict a promissory note.</p> <p>In all the cases sustaining exceptions to the rule which excludes parol evidence to contradict or vary a written contract, no case goes to the length of ruling that such evidence is admissible to change the promise itself, without proof or even allegation of fraud or mistake.</p> <p>Evidence of an alleged oral agreement that a promissory note was to be renewed at maturity if it proved inconvenient for the maker to pay the same is inadmissible.</p>

Appeal, No. 138, Nov. T., 1896, by defendant, from order of O. P. No. 4, Phila. Co., March. T., 1896, No. 208, making absolute rule for judgment for want of a sufficient affidavit of defense. Assumpsit on a promissory note. This action is brought to recover the sum of $250, the amount of a certain promissory note, together with interest from maturity, and $2.06 protest charges thereon.

<p>Practice, G. P. — Limited power of court to open judgment.</p> <p>Every court has power to open a judgment in order to give the parties a hearing or trial. In the case of judgment by confession or default there is no limit of time to the exercise of this power, but in the case of judgments entered adversely, after a hearing or trial, it is settled that it cannot be done after the end of the term at which they are entered.</p> <p>Practice, G. P. — New trial — Record.</p> <p>Where a motion for a new trial is granted the reasons should appear of record.</p>

<p>Appeal, No. 47, Nov. T., 1896, by plaintiffs, from judgment of C. P.No. 3, Pbila. Co., Dec. T., 1892, No. 409, on verdict for defendants.</p> <p>Assumpsit to recover rent under a written lease.</p> <p>The facts sufficiently appear from tbe opinion of tbe Superior Court.</p> <p>Plaintiffs’ points and answers thereto were as follows :</p> <p>1. In tbe absence of any agreement to tbe contrary, it is tbe duty of tbe tenant to seek the landlord for the purpose of surrendering leased property. Answer: Refused. [11]</p> <p>2. It was tbe duty of tbe defendants to surrender tbe property to tbe plaintiffs immediately upon tbe expiration of the term on November 3,1889, if they desired to terminate tbe tenancy; and if the jury believe from the evidence, that for sometime after the 3d of November, 1889, the defendants kept upon the premises some kettles, malt and bottles, or other property belonging to them, which they subsequently moved, and that they left these things there without any agreement on the part of the plaintiffs that in so doing they would not be liable for rent, then the defendants would be liable for rent, and the verdict should be for plaintiffs. Answer: Refused. [12]</p> <p>3. Where the tenant holds over after the expiration of a lease for a definite term, the landlord has a right to consider him as a tenant for another term under the conditions of the former lease; and the intentions or motives of the tenant in holding over can have no bearing or effect upon the right of the landlord to consider the holding over a continuation of the tenancy. Answer: Refused. [13]</p> <p>4. It was the duty of the defendants under this lease expiring at a definite time, to wit, on November 3,1889, to remove all their property on or before that time; and if the defendants did not so remove their property, but left the whole or part of it upon the premises after November 3, 1889, then the plaintiffs had a right to consider that defendants had exercised their option, as contained in the lease, of renewing the tenancy for a further term of three years, from the said 3d of November, 1889, and had a right to hold defendants liable for rent. Answer : Refused. [14]</p> <p>5. Under the terms of the lease in this case, neither the defendants nor their property had any lawful right upon the premises at any time after November 3, 1889, except by permission of the plaintiffs, or by the exercise of the option given to defendants to renew the term; and if the jury believe from the evidence that property of the defendants was on the premises after that date without permission of plaintiffs, and that the defendants, or their servants were there after that date, even though for the purpose of removing the property of defendants, the defendants would be liable for the rent for the entire term, as claimed by plaintiffs, and the verdict should be for plaintiffs. Answer: Refused. [15]</p> <p>The court charged the jury as follows:</p> <p>The contract between these parties was in writing, and every detail which was necessary to protect the rights and interests of each party was set out elaborately. The term was defined; the time it was to begin was defined, and the amount of rent payable monthly, or otherwise, and there was in addition to that a restriction that the tenant, no matter how profitable he might find it, had no right to sublet any portion of the premises in question, and in addition to that, there was a stipulation that at the expiration of the term the defendants, if they thought proper, might occupy the premises for three years more. This was a stipulation entirely in their favor; it was a stipulation which conferred no advantage or benefit upon the landlord; all that might arise from a stipulation of that kind inured to the benefit of the tenant, and he had up to the last minute of that three years a right to exercise or not to exercise that privilege which the lease gave him. Therefore, you will understand that so far as he was concerned, it was not necessary to secure his rights and secure a lease that he should enter into any arrangement or contract with the landlord. It was not necessary for him to express to them or to any one a desire to continue that tenancy, because he had a legal right to do so without regard to the landlord or without regard to any contingency whatever.</p> <p>It also appears from the lease and the evidence in the case that the rental of $80.00 a month was an exceedingly profitable arrangement for the landlord, because it appears that afterwards, with the intense desire, as her counsel said, to do good to the defendant, she could not get more than 15, 18 and $20.00 a month, so that you see it was an important matter both for the landlord and tenant. So far as the tenant was concerned, it was doubtless, in his mind, a matter of interest to him to have it for three years, and even to pay $30.00 for a property which could not afterwards be rented for much more than half.</p> <p>[It appears from the evidence that at the expiration of this term, on the 4th of November, he sent the money, $60.00, and the key. Now, so far as that was concerned, the minute the landlord received that money and the keys were tendered to her, from that minute the right and interest of the defendant, the tenant, ceased in those premises, no matter how profitable it might become to him to retain them, from that minute he ceased to have any legal right to retain and enjoy the premises for a day after three years. So that you will understand that the letter, azid the check azid the keys indicated exactly the disposition which the tenazit had in relation to his right to occupy the preznises from that tizne onward. It is certain, if there at all, that he was there as a trespasser, azid was there under no right which the lease gave him.] [1]</p> <p>[It appears from the evidence of the plaintiff that during the last year of the tenancy, nearly the whole of the last year, the business or purpose for which the tenant had leased the property stopped. There was no longer any busiziess of the kind for which the tenant had rezited the preizzises being dozie upon the premises. The defendant has told you that it was about a year, azid gave you the reason and explanation for his coziduct during that year.</p> <p>Mr. Adams, the witness for the plaintiff, says that the business establishment had ceased two or three znoziths before, the plaintiff herself does not pretend to say that the regular business of znalting or making beer, or whatever was znaziufactured there, was carried on at all from August until Noveznber.] [2] [You are asked to simply infer from the fact that they were on the preznises, removing a portion of the property which the tenant had there, that after the month of November the business of that establishment was going on as usual azid in regular order. The evidence is entirely to the contrary of that fact.] [3] There does not appear to be any evidence which would show that from August until the expiration of the term there was any business conducted upon these premises by the defendant.</p> <p>[The tenant’s rights ceased, as I have said, whezi he sent her the letter and the keys. There seems to be sozne mystery about the keys and the possession, but certain it is that the landlady of this property very soon after Noveznber occupied it and exercised all the rights of ownership over the property, but it does not appear in evidence at what particular time she received the keys and entered upon the premises and exercised these rights of ownership. The defendant has said, so far as that is concerned, that he sent the keys, the letter, and the money, and that was not denied by Mrs. Cairns or Dr. Caims. They had opportunity to deny that the keys and money were sent in the letter, but they have not denied it, and both of them were ex-aznined as witnesses.] [4]</p> <p>There seems to- have been unnecessary stress placed upon the letter which accompanied the check, and so far as that is concerned, you would likely more readily believe that the man who wrote the letter would recollect its contents better than two people who read it six years ago. So far as that is concerned, the witness Young said that he dictated the form of the letter. The defendant, Mr. Genois, who is a business man, and seemed to be intelligent as a witness, also testified to that. But what was the necessity for a form of letter which simply said, “ enclosed please find a check for $60.00 for rent due? ” What necessity for form was there ? What necessity for deliberation with his friends ? Surely any one, even if unaccustomed to business of that kind, if he desired to send a check, could easily have said, “ enclosed please find check.” It needed no special form, and I refer to this fact as being corroborating to some extent of the -defendant’s evidence as to what was in the letter. In the first place, he wrote it; in the second place, he wrote it after deliberation with a friend, and after that friend had arranged the subject-matter and the contents of that letter; and it is for you to say whether the simple statement, “enclosed please find check,” required such deliberation. And in this respect I desire to call your attention to the fact that the people who wrote both letters, including Mr. Young, who aided in the preparation of the form of the letter, but did not say that he read it, and a member of this bar Avho also said that he read it, had entirely forgotten every word in it. Neither Mr. Young nor Mr. Ingram can tell you a single word in that which they both deemed an important letter, and yet you have the plaintiff and her son here swearing to every identical word in that letter.</p> <p>It is for you to say, gentlemen of the jury, what importance you attach to testimony of that kind. [It is in eAÚdence that some of the defendant’s property remained on the premises after the termination of the lease, after he had said that the lease and the term was ended. All that I have to say about this matter is tins, that where the property of a tenant remains on the premises, he has a right, at any time, to go back and take possession of his property, if the owner of the premises does not object, and simply going back for that purpose, no matter whether it occupies a day, a month, or a year, if he goes back simply to remove his property, it gives him no right, it gives the landlord no right.] [5] The landlord has a right to refuse, after the termination of the lease, to permit the tenant to go upon the premises for any purpose, and may regard him as a trespasser. Of course, if he gives permission to enter upon the premises, that is another matter, and it neither concludes the tenant nor the landlord.</p> <p>[Therefore, I say that unless you find from the evidence that the tenant remained in possession after the 4th of November peaceably and properly, as he was before, as a tenant, occupying it either as a dwelling or for business purposes, unless there is something in the evidence to show that he so occupied it, or intended to so occupy it, the fact that he was there for a month does not preclude him, and the landlord derives no advantage from that, so far as tli’is case is concerned.] [6]</p> <p>[In order to conclude that he was there in the performance of his ordinary occupation, there must be evidence to satisfy you of that, and I do not recollect any evidence in this case which would indicate that for a month before and a month after the lease expired, the tenant was pursuing his ordinary business and occupation on those premises. The evidence as to that seems to indicate that he was there for the purpose of removing his property, and if the jury so believe, then, the occupancy of the place, after that date, has no effect upon this case.] [7] In that event, [the question then arises, upon what does the plaintiff base her claim? It is based upon the conversation which she says she had with the tenant in August, and it is contended that in that conversation there was a statement or agreement to take the place for the three following years.] [8] I have already said to you that up until the end of the three years the right of the tenant to occupy it for the following three years was unquestioned, and it could not be questioned by any one, and he was not required to say anything about his desire or intention to occupy the premises after that.</p> <p>[Now, what was the language exactly, upon which the plaintiff contends that this agreement was entered into ? She said, in August: “ Are you going to remain ? ” And he said: “ I am going to remain after my term.” Now, that is the whole of it. If I have not stated the evidence fully, counsel will correct me; but that is almost a literal statement of the conversation upon which this contract was based: “ Are you going to remain after the term?” And he said: “I am, I intend to remain.” Now, gentlemen of the jury, what does that indicate? It simply indicates his intention to remain. Bnt does it indicate a settled purpose on his part, confirmed by an agreement which binds both parties ? Because you will recollect that it required an agreement which was binding upon both the tenant and the landlord to extend that lease for three years.] [9] And it is for you to say what the purpose and intent of any conversation is. Assuming that she could recollect it distinctly, are you prepared to say that that was a formal and regular agreement on his part, which bound both him and her ? It is not a thing that any tenant may say a hundred times : ■“ I intend to remain.” Certainly, no one would dream of asking him to be responsible fox the occupancy of the place for three years, by saying: “ I intend to remain.” An intention is not an agreement. It was his right not only to have an intention to remain, but he had a right to express it, and state it to any one who chose to ask him or interfere with his business, and the landlord derives no more right from a mere intent of that kind, than would a stranger who came to him and asked him if he intended to continue the business after the expiration of the three years.</p> <p>In order to ascertain whether a contract, binding upon both parties, exists, you must consider the circumstances under which it arises. In this case, the tenant has denied that any such conversation ever occurred, and the landlady has sworn to just what I have said.</p> <p>Now, you will consider what this was. It was an agreement if the plaintiff has a right that the tenant would be bound for 11,080, whether he could use the premises or not. In other words, it was precisely the same agreement which existed when he first entered upon the premises. Now, when these parties arranged about that they had a very formal and strict writing drawn up, in which each expressed their intention and purpose, which contained, as I have already said, a restriction that the tenant, no matter how profitable it might be to him, had no right to rent the whole or any portion of the premises to another, and when the parties entered into that arrangement, they certainly believed it to be an important matter. Now, it is contended that all that responsibility, risk, and everything else was assumed in a momentary conversation: “Do you intend to remain after the term?” And the simple answer: “I intend to remain.” Of course, it is for you to say whether, where the parties were so particular in the first instance in dealing with each other, when it came to a renewal of the responsibility, and it was precisely the same obligation, whether they would not use the same formal writing or something which would indicate a contract that was binding upon both of the parties, and one which could not be subject to misapprehension as a loose conversation could be. Why all that was necessary to make it binding upon both of the parties would be to write upon the back of the lease: “ This lease is renewed.” They were intelligent and both knew what they were doing, it was not even necessary to go to a lawyer, to have the contract or renewal drawn by him. All that would have been required would be to indorse upon the lease: “ I agree to take within premises for three years more,” or something of that kind. It is for you to say whether parties who dealt so strictly with each other in the lease, when they came to renew that lease, would not take more pains, at least take that care which was necessary to make it a binding contract. Because, after all, there is no use of a writing except that it cannot be contradicted, it remains one and the same forever. An oral contract or a conversation between parties may be varied simply as their interests call for variations of that conversation.</p> <p>Gentlemen of the jury, perhaps I have said too much to you upon the subject, because it has already been fully discussed by counsel; and [all that I have to say in conclusion is that, unless you are satisfied from the evidence that the conversation related here became and was a contract between the parties, and that it was intended at the time to be such, and that at that time they were to renew the lease for three years, your verdict must be for the.defendant.] [10]</p> <p>Verdict for defendants. Plaintiff appealed.</p> <p>Errors assigned were, (1-10) in portions of the charge, reciting same; (11-15) answers to plaintiffs’ points, reciting same.</p>

Appeal, No. 8, March T., 1896, by W. A. Susong, from decree of C. P. Franklin Co., distributing balance appearing upon the first and final account of the assignee for the benefit of creditors of D. H. Wenger and wife. Exceptions to auditor’s report distributing balance of assigned estate.

<p>Partnership — Equity of partners and creditors.</p> <p>The equity of creditors must be worked out through, the medium of that of the partners.</p> <p>Partnership — Effect of death or transfer.</p> <p>In the absence of an agreement a legal dissolution is effected by death of a partner or the transfer of a partnership interest.</p> <p>Partnership — Transfer of shares —Liability for pre-existing debts.</p> <p>The transfer of a partner’s interest or shares in an unincorporated banking association and a continuance o£ the business without any separation of past from future liabilities, or discrimination between past and future profits will not make the new concern liable for pre-existing indebtedness of the bank. The creditors of the former firm or firms which may have con stituted the banking association have no claim attaching to the partnership effects which have passed to the succeeding partnership; the latter firm may sell unhampered by any lien or trust in favor of the creditors of the former firm or assign for the benefit of creditors, and in that case the only persons entitled to participate in the distribution are the creditors of the firm to which the property belonged at the time of the assignment.</p> <p>Partnership — Transfer of shares of unincorporated bank.</p> <p>The facts that the interests of parties are represented by shares of stock which are transferable like shares of a corporation, and after such transfer the business is conducted as before, without separation or distinction made' between past and future liabilities, does not change these rules. The stockholders in such a bank have the rights and responsibilities of, and in their relation to the public and to each other are, general partners.</p> <p>The mere continuance in business and voluntary payment of certain obligations contracted by the old firm would not, of itself, bind them for .all such claims.</p> <p>Partnership — Continuing business — Assignment for creditors — What creditors participate.</p> <p>The articles of an unincorporated banking association provided for representation of the partner’s interests, by shares of stock and for continuation of business without liquidation on transfer of a partner’s shares under prescribed conditions, etc., but did not contain any agreement which bound the new firm, created whenever a change of membership occurred, to pay past debts and to indemnify the retiring member against them. Held, that upon an assignment for creditors, the creditors entitled to share in the distribution were those who had at (he time the assignment was made a clear legal title as creditors of the firm, which was the then owner oE the assigned estate, and that creditors of prior firms were relegated against the individual partners composing the firm at the time their liability was created, which was fixed by the last transfer of all the shares of any one partner whether to a new partner or to another member of the firm. ■Christy v. Sill, 131 Pa. 492, followed.</p>