Volume 20 — Pennsylvania Superior Court Reports

<p>Appeal, No. 60, Jan. T., 1902, by Central Poor District of Luzerne County, from order of Q. S. Luzerne County, June T., 1901, No. 395, making absolute rule to certify settlement of a lunatic, In re Lunacy of John Boyle.</p> <p>Rule to show cause why the central poor district of Luzerne county shall not be certified as the place of legal settlement of John Boyle, a lunatic, and why said poor district shall not reimburse the county of Luzerne for all lawful costs, charges and expenditures on behalf of the said lunatic, etc.</p> <p>Halsey, J., filed the following opinion:</p> <p>The counsel representing the county of Luzerne and the said poor district have agreed upon the facts in this cáse:</p> <p>1. That John Boyle, the lunatic, was tried for murder in the oyer and terminer and acquitted by reason of insanity on June 19, 1891, and thereafter committed to the hospital for the insane at Danville at the expense of the county of Luzerne. That at the time of his commitment, his place of legal settlement was in the central poor district of Luzerne county. 2. That in pursuance of said order, he was taken to the said hospital and there confined up to the present time at the expense of the said county. 3. That no demand was made or notice given to the central poor district of the claim for reimbursement now made by Luzerne county.</p> <p>The rule in this case must be disposed of under the case of Commonwealth v. Burton, 16 Pa. Superior Ct. 218. The payment made by the county of Luzerne was a compulsory one under the Act of June 22,1895, P. L. 270. Therefore, we cannot find as requested by the respondent that it was a voluntary payment on the part of the county of Luzerne. It is not necessary and a prerequisite to the act of 1895, supra, that the lunatic shall have been found to be a poor person under the statutes governing the care and control of the poor, before the county of Luzerne could proceed against the poor district. The statute is general, that where any person shall be committed to the care and custody of any hospital for the insane in pursuance of the laws of this commonwealth by any court or judge, the county from which said person has been sent or committed to said hospital shall be liable to said hospital for his or her maintenance therein and the expenses connected therewith, provided that said county shall, in all cases, have full recourse to recover all expenses incurred in behalf of said person so committed from the parties or persons or poor district properly chargeable therewith under the laws of this commonwealth. It is ruled in the case of the Commonwealth v. Burton, supra, that the commissioners can make an election as to who they shall proceed against in the first instance, whether from parties or persons or poor district properly chargeable therewith. They have selected in this instance to proceed against the poor district.</p> <p>Rule absolute.</p> <p>Error assigned was the order of the court.</p>

<p>Legal advertisements — Rules of court — Rule No. 130 of Luzerne County.</p> <p>Rule No. 130 of the courts of common pleas and quarter sessions of Luzerne county is as follows : “In compliance with the provisions of the Act of February 12, A. D. 1863, entitled ‘ An act relating to the publication of legal notices in Luzerne county,’ the Luzerne Legal Register is designated as a weekly publication in which, in compliance with the said act, shall be published a concise and intelligible abstract of all legal notices required to be published in cases pending in or under process issued out of any of the courts of Luzerne county; provided that the price to be charged for advertising sheriff’s sales shall be $3.00 for one piece of land and $1.50 for each additional piece belonging to the same defendant; and it is further ordered that the trial, jury, argument and certiorari lists and lists of application for liquor licenses be published in the said Luzerne Legal Register.” Held, that the rule was valid.</p> <p>Statutes — Repeal—Legal advertisements — Luzerne county — Acts of February 12, 1863, P. L. 28, and July 30, 1897, P. L. 464.</p> <p>The Act of February 12, 1863, P. L. 28, providing “ that in addition to the publication required by the existing laws of this commonwealth in its several courts in the county of Luzerne, may by rule of court designate one legal jDublication,” etc., is not repealed by the Act of July 30, 1897, P. L. 464, relating to the publication of lists of applicants for liquor licenses. The provision in the former act is for notice of publication in addition to the publications then required by existing laws and can be construed to be in addition to the publications which might thereafter be required by legal enactment. The two acts can stand together without inconsistency or repugnance, and should be so construed.</p> <p>Where the clerk of courts refuses to designate the Luzerne Legal Register as a newspaper for publication for liquor license lists, and refuses to furnish a copy of said list for said paper, and the proprietor of said paper procures the list from another publication and publishes it, but not in time to give the full fifteen days’ notice, and subsequently in a suit by the proprietor of the paper against the county for the cost of the publication of the list, the court enters judgment for plaintiff on case stated, the Superior Court will not reverse the judgment.</p>

<p>Insurance — Mutual insurance — Lost policy — Evidence.</p> <p>In an action by a receiver of a mutual insurance company to recover an assessment levied on a policy which the plaintiff alleged to be lost, the refusal of the court to permit plaintiff to ask a witness whether an application for insurance had been received from the defendant, is harmless error, if error at all, where the record shows that the defendant had already admitted that he liad made such an application.</p> <p>In an action to recover an assessment on a policy of mutual insurance where it appears that the original policy upon which the suit was based, was not to be offered, but that proof of the loss of the policy, and of its contents was to be made, it is not reversible error prior to such proof, to rule out a question to the plaintiff’s clerk whether pursuant to an application the company had issued a policy to the defendants. In such a case where the plaintiff’s clerk testified that she had in her own writing a copy of the written portion of the poney alleged to have been issued to the defendant, she cannot be asked to give the source from which she derived the information embodied in the written portion of the policy which she alleged that she had in copy; nor in such a case where the clerk has testified that the copy of the written portion of the alleged policy was in fact a part of the daily reports furnished by her as clerk, can the daily reports themselves be offered in evidence, since they do not purport to contain a full copy of the alleged policy; nor in such a case can the clerk be asked to state whether a policy “No. 1230 ” was mailed to the defendant, if the question is accompanied by no proof that, if such a policy was mailed, it contained the terms set out in the copy of the policy attached to the statement of claim, upon which the suit was brought, or that it contained a clause imposing liability upon the defendant for the assessment as claimed; nor in such a case can the clerk be permitted to testify that assessments had been paid by the defendant, or on his behalf, on “Policy No. 1230.”</p> <p>In an action to recover an assessment on a policy of mutual insurance alleged to have been lost, an offer to prove the contents of the paper alleged to have been lost is properly overruled, where there is no absolute assertion in the evidence that the policy had been lost, or under what circumstances, and where a witness testifies as to an alleged search made the day previous to the trial in the offices of the plaintiff company but the witness is unable to tell how protracted or thorough a search was made, or whether it was in the morning of the day before, nor is any officer of the company called to prove loss or search in connection with the policy.</p> <p>Practice — Affidavit of defense — Amended, statement— Pleading — Evidenced</p> <p>Where the plaintiff has filed an amended statement, and the court has refused to compel the defendant to file a second affidavit of defense, the affidavit of defense filed to the first statement cannot be held to be an admission of facts subsequently set forth in the amended statement.</p> <p>Insurance — Mutual insurance — Assessments.</p> <p>In an action by the receiver of a mutual insurance company to recover assessments, where there is no proof that the defendant was the holder of the policy referred to in the statement, it is proper for the court to refuse to permit the introduction in evidence of the record of the Dauphin county court directing an assessment to be made, and also to refuse an offer to prove that assessments had been made by the receiver.</p>

<p>Ejectment Statute of limitations — Adverse possession — Recovery of judgment — Change of possession.</p> <p>The recovery of a judgment in ejectment, without surrender, an entry, or the issuing of a habere facias, does not toll the statute of limitations and interrupt adverse possession. Brolaskey v. McClain, 61 Pa. 146, explained.</p> <p>Evidence — Proof of execution of paper — Subscribing witness.</p> <p>Where the subscribing witness to a lease sufficiently identifies the person who signed the lease, and the property-covered by it, although he contradicts himself to some extent in his cross-examination, the question whether or not the lease is sufficiently identified'is for the jury.</p> <p>Evidence — Ejectment—Lease—Abstract of title.</p> <p>Where in ejectment a lease is offered to the plaintiff for the purpose of rebutting a claim which the defendant setup by virtue of an adverse possession of his grantor, and it appears that the lease is not a part of the plaintiff’s title, the plaintiff was not bound to set out the lease in the original abstract of title.</p>

<p>Appeals — Interlocutory order — Order on executor to file account — Executors and administrators.</p> <p>A decree of the orphans’ court directing an executor and trustee to file an inventory and an account, is an interlocutory decree from which no appeal lies.</p>

<p>Corporations — Liability of stockholders for work or labor — Statute of limitations — Acts of April 29, 1874, P. L. 73, and April 17, 1876, P. L. 30.</p> <p>Under sections 14 and 15 of the Act of April 29, 1874, P. L. 73, as amended by -the Act of April 17, 1876, P. L. 30. the. right of action against individual stockholders, for work or labor done for a corporation, arises when the debt becomes due by the corporation, and when suit can be brought against the latter it can be brought at the same time against the former. The statute of limitations therefore begins to run in favor of the stockholders, at the time the debt becomes due by the corporation, and if suit is not brought within six months from that time, the claim against the stockholders is barred.</p>

<p>Partition — Omission of parly — Undivested interest — Sale.</p> <p>When in partition proceedings the name of a party in interest does not appear in the petition, decree and notices, unless it appears by affidavit that his name was unknown and publication made accordingly, his share of the estate will remain undivided or undivested, if there is a sale ordered, unless by some subsequent act or conduct of such party or those claiming under him, it has been ratified.</p> <p>Where a man deserts his wife and child, and goes to another part of the country, where he marries again under an assumed name, while his first wife is living, and has children by his second wife, and many years after he dies, leaving real estate, and such real estate is sold in partition proceedings instituted by the illegitimate children, and it appears that the legitimate child had no notice of the proceedings, and that her name did not appear in the petition, decree and notices, her estate is undivested by the judicial sale. Ratification of the sale cannot be inferred from the fact that about the time of her father’s death, the daughter asked a witness certain questions about her father, when the questions did not indicate that she knew the name under which her father had been living, or that she knew that her father was dead, or that he had any property in which she had an interest.</p> <p>Where real estate of a decedent has been sold in partition proceedings in the orphans’ court in proceedings instituted by the decedent’s illegitimate children on the assumption that they were his heirs, the purchasers at the sale cannot, in an action of ejectment against them by the decedent’s legitimate child, who had not been made a party to the partition proceedings, be heard to allege that a part of the proceeds of the land had been applied to the payment of decedent’s debts, and that the plaintiff could not recover the land in dispute without offering to refund the portion of the purchase money applied to the payment of decedent’s debts.</p> <p>Marriage — Evidence—Admissions by parties.</p> <p>Tim joint admissions by the parties of their marriage is in the nature of direct proof and is competent evidence of the fact of marriage.</p> <p>In an action of ejectment where the plaintiff in order to prove the marriage of her father, produces a witness who testifies that, site was present at a marriage ceremony solemnized by her brother-in-law, clergyman, that the name of one of the contracting parties was that of plaintiff's father, that no marriage certificate liad been given because of lacle of blanks at the time and because of the death of the clergyman shortly thereafter, the court commits no error in telling the jury that they were not to understand that tlie evidence of this one witness established the fact of marriage, but that it was in the nature of direct evidence, and tended to prove a ceremonial marriage.</p>

<p>Appeal, No. 21, Jan. T., 1902, by-defendant, from judgment of C. P. Luzerne Co., Jan. T., 1897, No. 313, on verdict for plaintiff, in case of B. J. Conlan v. Mary Conlan.</p> <p>Ejectment for land in Pittston. Before Halsey, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court gave binding instructions for plaintiff. Defendant appealed.</p>

<p>Appeal, No. 58, Jan. T., 1902, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1901, No. 446, on verdict of guilty in case of Commonwealth v. John W. Bunnell.</p> <p>Indictment for keeping a bawdyhouse. Before Halsey, J.</p> <p>Alexander Dunn swore on behalf of the commonwealth direct examination. By the district attorney: We propose to prove by Mr. Dunn that he is the prosecutor in this case, that he called at the Windsor Hotel and had a conversation with James L. Bunnell in which he, Bunnell, stated that he, together with his brother, were doing a nice business and getting along very well. (Defendant’s counsel objected to as immaterial and irrelevant.) The Court: Preliminarily we will take it. I do not think it is of importance, as yet. Objection overruled, exception noted for the defendant, bill sealed. [1]</p> <p>George Toby was asked these questions : “ Q. What was the general reputation of the Windsor Hotel prior to September 4, 1901, for morality and chastity, good or bad?” (Objected to.) (The Court: Objection overruled.) Exception noted for defendants, bill sealed. 2 “ Q. Good or bad ? A. It was bad reputation. Q. What was it commonly called? A. Well, it was called, so anybody could get a bed there.”</p> <p>James L. Bunnell called and sworn for the defendants and under direct examination. Defendant’s counsel: “ Q. Can you explain why this man became so hostile toward you, feel so toward you as he did apparently because of the troubles of his wife?” (District attorney: We object to the form of the question.) The Court: Objection sustained. Exception noted for the. defendants, bill sealed. [3]</p> <p>District attorney (producing register of hotel), says, I will show you on the register- Defendant’s counsel: I object to this line of argnment by the district attorney and wish to have the stenographer note on the record the argument if he persists in it so that we may have something upon which we may file an exception. The court: Go ahead. Defendant’s counsel: We ask for an exception to the line of argument. The Court: Exception noted for the defendants. [11] The district attorney then, with register still in his hands and producing same to the jury, comments as follows : “Wednesday, June 26,1901, Miss Clara Devery, Nanticoke, Pa. L. 15.” District attorney, explaining to jury, “he,” meaning Alpheus Alden, clerk, “says, L. 15 meant lodging, room 15. R. N. Matthews and wife, Scranton, Pa. L. Room 15.” The district attorney, still commenting, puts the question “ How many beds ?” “ One bed, he said,” meaning Alpheus Alden, “ in that .room.”</p> <p>The court charged in part as follows :</p> <p>[Up to three or four years ago the practice in the trial of cases of this kind, as to the proof whether a particular house was a bawdyhouse or not was obtained from the reputation of the persons frequenting the house, but it is now also to be determined by the reputation of the house. With these two rules in mind, gentlemen of the jury, was this a common bawdy-house'?] [18]</p> <p>[The commonwealth has brought here innumerable persons to show you that they frequented that house for the purpose of fornication. The parties to the crime have testified to the crime of fornication; that they frequented the house and that the crime of fornication was committed by them in that house.] [19]</p> <p>[Innumerable witnesses, persons who reside in the hotel, cab drivers and other persons who have come in have testified that they have frequently seen persons of bad reputation for chastity going into that house at all hours of the day and night.] [20]</p> <p>[That another person was sought out to take the hotel, a man by the name of Knight, that he ran the hotel for some time, from October, until the early part of January, 1901, and that then he was unable to carry it, and possession of the property was taken by the Bunnells.] [21]</p> <p>Verdict of guilty upon which judgment of sentence was passed.</p> <p>Errors assigned among others were (1, 2, 3, 11) rulings on evidence, quoting the bill of exceptions. (18-21) Above instructions, quoting them.</p>

<p>Landlord and, tenant — Construction of lease — Surrounding circumstances —Evidence.</p> <p>Where the language of a lease is not absolutely clear as to the term granted, the circumstances attending its execution and the acts of the parties subsequent thereto, may be scrutinized in ascertaining the intention of the parties.</p> <p>Landlord and tenant — Lease-Right of renewal.</p> <p>Although a covenant for renewal in a lease provides that the new lease shall be subject to the same covenants as the old lease, such a stipulation does not entitle the lessee to have the covenants for renewal inserted in the new lease.</p> <p>Where a tenant holds under a lease giving him possession for a definite term of one year, at the expiration of which he is required to surrender, with the additional “ privilege of rerenting and remaining on said premises at same rental and conditions for any number of years that” he might desire, he exhausts his privilege of rerenting, when he notifies the landlord before the expiration of the first year that he intends to remain in possession of the premises during the year beginning on the date of the expiration of the first year “ at same rental and conditions contained in the original lease.” He cannot during the second year claim the right to continue in possession by notifying the landlord of his intention to re-rent the premises for a third year.</p>

<p>Evidence — Family relationship — Personal identity.</p> <p>Common reputation in a family connection as to who are members of the family is admissible, when no superior evidence is obtainable, or in connection with superior evidence to prove pedigree, legitimacy and marriage. Personal identity must depend almost entirely upon tradition.</p> <p>In an action upon a policy of life insurance a witness may testify to statements made by the insured, where the identity of the person who made the statements with the insured depended, so far as the knowledge of the witness went, upon information which he received from a member of the insured’s family.</p> <p>Insurance — Life insurance — Evidence—Declarations.</p> <p>In an action against a life insurance company on a policy issued on the life of a father in favor of a son, declarations of the insured as to his health, made after the date of the policy, are inadmissible to avoid the policy.</p> <p>Insurance — Life insurance — Misstatements as to health.</p> <p>Where a person warrants in an application for life insurance, that he never had “disease of liver .... spitting or raising blood,” the policy is avoided where the evidence shows that shortly before the policy was issued, two physicians had treated him for liver trouble, and thatlie had consulted one of the physicians about spitting blood. In such a case it is immaterial that the spitting of blood may have resulted from the breaking of certain ribs to which the insured referred in his application.</p> <p>If the liver complaint and the spitting of the blood were of sufficient importance to induce the insured to consult a physician, they were of sufficient importance to be incorporated in the application for insurance so as to put the company upon its guard, and to enable it to make such inquiry and examination as would satisfy it in regard to the character of the disease of the liver and the spitting of blood.</p>

Appeal, No. 6, March T., 1902, by defendant, from order of C. P. Dauphin Co., Jan. T., 1901, No. 545. refusing to strike off judgment in case of Steelton Planing Mill Company v. John C. Kunkle. Motion to strike off judgment entered for want of an affidavit of defense.

<p>Street railways — Passenger—Ejection—Duties to intoxicated passenger.</p> <p>In an action against a street railway company by a passenger to recover damages for wrongful ejection from a ear, a verdict and judgment for plaintiff will be sustained where the evidence shows that the passenger entered the car in a visibly intoxicated condition, having in his possession a ticket to his destination consisting of three severable coupons, that the conductor collected one of the coupons, that when the conductor demanded the second coupon, plaintiff was stupid with drink and asleep and paid no attention to the conductor’s request, although not consciously refusing to produce and surrender the ticket, that thereupon the conductor stopped the car, ami ejected the plaintiff, and that the time of the ejection was half past ten o’clock, at night.</p>

Appeal, No. 29, March T., 1902, by plaintiff, from judgment of C. P. Dauphin Co.. Jan. T., 1900, No. 28, non obstante veredicto in case of Frederick K. Dasher v. City of Harrisburg. Trespass to recover damages to property resulting from the alleged wrongful construction and maintenance of a sewer.

<p>Appeal, No. 7, March T., 1902, by Amanda Shelley, from decree of C. P. York Co., dismissing exceptions to auditor’s report in the assigned estate of Eliza Bair.</p> <p>Exceptions to report of H. C. Niles, Esq., auditor, distributing fund raised by sale of real estate.</p> <p>Bittenger, P. J., filed the following opinion:</p> <p>The exceptions are to the refusal of the auditor to award to claimants and exceptants, Amanda Shelley, $937.76, principal and interest on her share of dower charged on the real estate of Eliza Bair, in the will of Michael Wollet, devising to his daughter, Eliza Bair, the real estate from the sale of which by the assignee the proceeds now for distribution were derived; and also the refusal of the auditor to award to H. H. Pentz $157.14, on his mechanic’s lien:</p> <p>The charge created by the will of Michael Wollet was a dower fund for his widow, the principal to be paid to his children, named in his will, after the death of his widow.</p> <p>The auditor finds that the widow of the testator, Michael Wollet, died prior to 1891. After her death the shares of dower were payable to the children of the testator and became a debt which was discharged by the assignee’s sale: Burk-holder’s Appeal, 94 Pa. 522.</p> <p>The auditor finds that Eliza Shelley’s, the exceptant’s moneys, were among those first payable out of the fund for distribution, if she had not executed a release and delivered it, releasing her claim to her share of dower and the land from the same.</p> <p>In 1891, Eliza Shelley, for the purpose of enabling her mother to make sale of the land to a certain Col. Copeland, executed the release in evidence by signing and duly acknowledging the same. It was delivered to her mother and placed among her title papers, where it remained without any demand for its return, after the mother’s failure to make sale of her farm. In 1894, when Eliza Bair produced her title papers, including the release in question, to attorneys examining her title, with a view to her obtaining a loan on a mortgage from Edwin L. Landell, it was, with her title papers, placed upon record, whereupon said Edwin L. Landell loaned to her, Eliza Bair, the moneys mentioned in the report, without knowledge on the part of the mortgagee that the release as recorded, was intended to have ■any less effect then its appearance on the record book indicated.</p> <p>The mortgage which said Edwin L. Landell took, and upon which the moneys therein mentioned were loaned to Eliza Bair, was taken on the strength of said dower fund being released, and the lands therein described freed from the charge and lien thereof, by Mrs. Shelley, as it appeared, on the record in the recorder’s office, N. S. Ross, Esq., who was investigating the title of Mrs. Bair for the mortgagee, Landell, had this release before him with the deeds, and ordered the deeds and release to be recorded. The counsel for the exceptant strenuously argued that the loan was made on the strength of the value of the farm of Mrs. Bair, without any reliance upon the release on record, which was notice to everyone interested that this charge for dower was released, but we have looked in vain in the testimony for any such evidence.</p> <p>We must hold that Amanda Shelley is estopped by her action from showing that the release was only conditionally delivered, that she received no part of her share of the dower except $50.00, which was paid before her executing the release, and from claiming her said share of dower out of the proceeds of real estate, as against the mortgagee Edwin L. Landell, whose mortgage is not paid in full.</p> <p>As to the exception to the auditor’s refusal to award to H. H. Pentz $157.14 on a mechanic’s hen, it appears the said mechanic’s lien has been satisfied on the record, before the audit was held, and that it still stood so satisfied, and therefore there was no mechanic’s lien which could be recognized by the auditor. The claim on this lien was properly rejected for the reasons stated by the auditor.</p> <p>And now, October 13, 1900, the exceptions are dismissed at the costs of the exceptants, and the auditor’s report is confirmed.</p> <p>Error assigned was the decree of the court.</p>

<p>Practice, G. P. — Affidavit of defense — General denial.</p> <p>. "A general denial in an affidavit of defense of any indebtedness by the defendant to the plainliff in any sum whatever, is not sufficient to prevent judgment.</p> <p>An affidavit of defense averring that (he goods embraced in a book account attached to the statement were never sold and delivered to the defendant as charged, but if they were purchased and delivered they were paid for by him, is argumentative and evasive, and therefore iusullieient.</p> <p>Practice, G. P. — Affidavit of defense — Rent—Landlord and tenant.</p> <p>'Where a statement of claim avers that the defendant contracted with plaintiff for ihe rental of real estate by a verbal contract at a certain rale per mouth, and avers an indebtedness for one month’s rent, an affidavit of defense is insufficient which merely denies that the defendant owed the rent as charged, and does not specifically deny the making of the verbal contract, or aver that the defendant surrendered the lease, and that same was accepLed by the plainliff, or that he paid said tent.</p>

Appeal, No. 25, March T., 1902, by plaintiff, from order of C. P. York Co., Jan. T., 1901, No. 78, discharging rule for judgment for want of a sufficient affidavit of defense in case of Thomas J. Mays v. William T. Patterson and Sarah A. Patterson. Assumpsit by physician for services.

Appeal, No. 28, March T., 1902, by Elmer E. Weaver, from order of Q. S. York Co., refusing an application for a liquor license, In re Application of Elmer E. Weaver for a Liquor License. Petition for a liquor license in the borough of York Haven.

Appeal, No. 31, March T., 1902, by George W. Foreman, from order of Q. S. York Co., refusing a liquor license, In re Application of George W. Foreman for a Liquor License. Petition for a liquor license in the borough of Hanover. The record showed petitions numerously signed in favor of the license, and remonstrances also numerously signed against the license. On the back of the original petition was the following unsigned order: “Jan. 25th, 1902.

<p>Appeal, No. 13, March T., 1902, by Adaline Noel et al., from decree of C. P. Dauphin Co., confirming report of auditor in case of Commonwealth ex rel. Henry C. McCormick v. Anchor Building & Loan Association.</p> <p>Exceptions to report of James B. Ziegler, Esq., auditor, appointed to distribute the assets of the Anchor Building & Loan Association of York, Pennsylvania.</p> <p>On exceptions to the auditor’s report, Weiss, J., filed the following opinion:</p> <p>Another claimant upon this fund is Henry W. Heffener, who was president and a director of the association, and who with other directors, became indorsers on notes given by the association which were discounted by a bank and which he and they were obliged to pay in whole or in part. One of the notes was given April 23, 1894, for $10,000, and another January 7, 1895, for $5,000,.upon which and the renewals, the association paid the discounts to February 29,1896, respectively. The proceeds were received by the treasurer by whom they were applied at the instance of the board of directors to the extinguishment of the outstanding liabilities and to borrowing and withdrawing stockholders.</p> <p>Participation on an equality in the distribution of this fund on the part of Heffener and others, also directors, who made payments upon the judgments obtained against them as indorsers, is resisted by creditors not associated with the managing officers or directors, for the reasons that the moneys borrowed by the association were in excess of the amount authorized by law; that Heffener and others were guilty of negligence in the management of the affairs .of the association in making improvident and insecure loans and in prematuring shares of stock, through which losses Avere sustained and insolvency ensued. It does not follow that because loans were made beyond the amount authorized by law, this class of creditors is excluded from participation in this fund. The borrowiug money was not deflected to improper or unauthorized uses and it must be assumed to be, and doubtless is, among and part of the assets in the hands of the accountant. It is a case of one class of creditors denying the right of another class, which borrowed beyond the amount authorized bylaw, from a share in the fund, AA'hich was increased by the excess borrowed, and there is no known rule that for this reason excludes the latter class from a share in the proceeds or postpones that class to the former class in a scheme of distribution.</p> <p>Nor is the contention tenable that liability ensues because injudicious or insecure investments were made, among others to Boll, the secretary, and Fisher, the attorney, who were also directors of the association. The by-laAvs authorize the employment of counsel whose duty it was to examine titles, make searches, draAV instruments relating to investments and approve the security of deeds, titles, bonds, judgments, etc. Application for a loan by a stockholder was required to be in writing and submitted to a committee of three directors to make report to the board at its next meeting. The manifest and chief duty of this committee was to investigate the value and desirability of the security proposed to be given for the loans, and those made to Roll and Fisher were subject to a like proceeding and scrutiny. It is true that Heffener and the other claimant directors cannot shield themselves behind the report of the committee, but they had a right to believe that the members of the committee reported their best judgment upon the nature and value of the security offered. These claimants might or may have arrived at the same conclusions as the committee. The latter doubtless saw the properties and investigated the kind and nature of the securities. There is no proof that there was wilful disregard of, or indifferent attention paid to, the discharge of their duties. Members of a governing body have a presumptive right to rely upon a report made by a committee of- the body upon matters relating to values of securities for loans, and are protected, when, as in this case, the fault imputable to the members of the committee is an unfortunate result in the exercise of judgment. The presumption is that the other directors informed themselves of the probable accuracy or the values of the securities for loans either from the reports of the committee or their generad knowledge of the subject or both. The report is neither a shield nor a weapon. What the directors did or omitted to do protects or punishes, and the evidence in this case so far as it relates to inadequate security, does not warrant the infliction of pains by way of postponing the claimants to the creditors not connected with the management of the association.</p> <p>If any losses were sustained by aught the attorney employed by the association did or omitted to do in the line of his duty, no deprivation of any right which the claimant directors otherwise had can be visited upon them. The board of directors had authority to employ counsel and they exercised caution in selecting one who was reputed and doubtless was, well versed in the duties intrusted to his care.</p> <p>The employment was of a character with which directors are not familiar and with the nature of which they are not expected to acquire knowledge or attain proficiency. The board had a right to rely upon a report made by their attorney and in acting upon it, merit no exclusion or postponement in this distribution if loss ensued in consequence of any act done in that capacity and in the course of professional duty.</p> <p>Considerable stress is laid in the charge that the series of stock were closed and declared ma’tured before the earnings warranted a foreclosure, and there is scarcely a doubt that loss ensued and probable insolvency was precipitated, if not caused, by prematuring these series of stock. The directors were bound to a diligent observance and exercise of duty in the management of the affairs of the association, and to bring a reasonably intelligent quantum of skill to the discharge of it. They are not insurers against insolvency nor must they be expert accountants nor required to become such. They are not obliged to give, the same time and attention to the management of the business as a person may reasonably be supposed to bestow upon his own affairs. They are not chargeable during the course of conducting the business with the possession of that most dangerous of all kinds of knowledge, usually acquired after the fact. They examined the statements submitted to them by the secretary and counsel who were familiar with matters relating to building associations which disclosed a sufficient accumulation of funds to warrant the closing of a series in lull. They depended upon these officers and confided in their integrity as well as in the correctness of the statements.</p> <p>Apparently the'statements warranted belief in their accuracy. There is nothing to indicate purposed misstatement. The secretary says it happened .that the series were run out too soon by six months or a year, and while he is not a disinterested witness, there is nothing to show misrepresentation. It is altogether probable that the most searching scrutiny on the part of these directors would not have disclosed inaccuracies and they are not chargeable with expert skill nor answerable for not undertaking the likely impossible task for them of verifying the statements. Nothing by way of dishonesty or fraud is imputed in them. They gave time and loaned money or credit to the association. They had, and doubtless merited, the confidence of the business community. They seem to have possessed general business fitness, exercised a diligence fairly commensurate with the character and extent of the business, were strictly honest in their dealings with, and not unfaithful in their conduct of, the affairs of the association. Measured b3rthe standard of their duty, we cannot say that they fell short in the observance of it to an extent sufficient to incur liability. Had they known that the concern was insolvent, or had their duties required such constant attention to, and supervision over, the somewhat complex accounts and affairs as to invite the reasonable conviction that they could and ought to have acquired knowledge of insolvency, or that the manner of conducting the business would necessarily result in insolvency, a different rule would apphn The directors were paid, but the amount was small and altogether disproportioned in amount to the responsibility now sought to be imposed upon them. We do not see that the duties of Heffener, the president, entailed more insight and investigation into the affairs of the association than those of the other directors, and in respect to the matters under consideration, he acted, being also a member of the board, in the capacity of a director. To hold the directors liable in this case? the hard rule, deterrent in its effects, would have to be applied, that they were bound to know from an examination and investigation of the varied securities, resources and liabilities that the association was insolvent. We apprehend that if a cashier of a bank would report to its board of directors that he had money earned in the drawer to pay a dividend, they would not be required to escape liability, to verify the statement by an examination of the notes, securities, discounts and books. To go there and see it in the drawer would not prove that it was an earned product, and it is probably not an indignity to the average bank director to say that such an examination by him would not prove a fruitful contribution towards immunity from insolvency. There is no provision in the acts of assembly governing building associations, nor in the rules relating to this one which imposes greater responsibility upon directors than the rule which we have endeavored to formulate as applicable to the case in hand. Strict integrity and loaning the money paid by the stockholders to the clerk for instalments, fines, interests, etc., who is directed to pay the same to the treasurer, reasonable skill, time and diligence in the management of financial affairs of the association, and care in, and according to the duties imposed, and the usages of, the business, are the requisites to escape liability. That we think the testimony shows was fairly bestowed by the claimant directors. What these directors seem to have contributed to the wreck was a lack of capacity to grasp fully the manifold matters and problems involved and necessary to be comprehended to wind up the various series and affairs of the institution properly, added to the confidence mistakenly placed in the attainments of the secretary and attorney.</p> <p>The influence from all the surroundings is not strained that the shareholders knew the character, reputation and pursuits of those intrusted by them with the management, and while they had a light to expect better results, they cannot convert misfortune unaccompanied with fraud or gross dereliction of duty, into culpability. We are of the opinion that the auditor reached correct conclusions and the exceptions to his report are accordingly overruled and the report confirmed.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 112, April T., 1902, by plaintiffs, from decree of C. P. Beaver Co., March T., 1902, No. 4, on bill in equity in case of Jacob A. Rose et al. v. Beaver County et al. Bill in equity for an injunction. Before Willson, P. J. The opinion of the Superior Court states the case. Error assigned was the decree of the court.

<p>Appeal, No. 113, April T., 1902 by William T. Simmons et al., from order of Q. S. Beaver Co., Dec. T., 1901, No. 2, refusing to appoint overseers of the poor, In re Petition of William T. Simmons et al.</p>

Appeal, No. 235, Oct. T., 1900, by plaintiff, from judgment of C. P. Blair Co., June T., 1899, No. 260, on verdict for defendant in case of Elizabeth McIntosh v. James Condron. Assumpsit on a promissory note. Before Bell, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 66, Oct. T., 1901, by defendant, from judgment of C. P. McKean Co., June T., 1896, No. 322, on verdict for plaintiff in case of Enterprise Transit Company v. Hazelwood Oil Company. Trespass to recover damages for injuries resulting from the drilling of an oil land on plaintiff’s land. Before Morrison, J. The opinion of the Superior Court states the case. Defendant’s points were as follows: 2.

Appeal, No. 122, Oct. T., 1901, by defendant, from judgment of O. P. Lebanon Co., June T., 1900, No. 269, on verdict for plaintiff in case of E. Benjamin Bier-man v. Lebanon Valley College. Assumpsit to recover a balance of salary. Before Ehrgood, P. J. At the trial it appeared that plaintiff claimed to recover $1,380, balance of salary due to him as president of the Lebanon Valley College.

<p>Appeal, No. 42, Oct. T., 1901, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1900, No. 7, on verdict for plaintiff in case of John K. Brumbaugh v. Home Mutual Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before Bailey, P. J.</p> <p>At the trial it appeared that on June 5,1899, G. D. Sparr, president of the defendant company, accepted the application of John K. Brumbaugh, of Penn township, Huntingdon county, Pennsylvania, for insurance on his “ tan baric,” located at his tannery in Lincoln township, near Entriken, in said county, to the amount of $1,000, and June 12, 1899, the company issued its policy No, 2579 to said applicant, which was accepted by him. In consideration for the insurance the applicant paid to the company a cash premium of 11.00, and also $1.25 as a policy fee. He never paid any assessments, as the fire occurred just one month from the date of his application. It was provided in the policy, inter alia, as follows:</p> <p>“ It is covenanted as a condition of this contract, that this company is not liable .... for loss or damage if the assured in the application for the insurance, made any false or erroneous representations, or withholds any facts materially affecting the risk, or any misrepresentation whatever; .... nor for loss or damage if there is prior or subsequent insurance on the property, whether valid or invalid, without the written consent of the company indorsed hereon.”</p> <p>When James S. Wood, Esq., was on the stand he was asked this question :</p> <p>“Q. Mr. Bailey: Mr. Woods, when the fire occurred, did you receive a telephone message from Mr. Brumbaugh ? A. Yes, sir. Q. What did he tell you his loss was ? ”</p> <p>Mr. Lovell: The question is objected to for the reason that the loss has since been submitted in writing, under oath, and cannot be contradicted by verbal testimony of the agent.</p> <p>Mr. Bailey: We propose to follow this by proof of under what circumstances the special agent took advantage of Mr. Brambaugh, and made out this proof of loss.</p> <p>The Court: Objection overruled. Testimony admitted. Bill of exceptions sealed for defendant. [1]</p> <p>The witness: My recollection is that Mr. Brumbaugh told me his loss was $2,500 ; that is my recollection.</p> <p>On cross-examination this witness said: I got that telephone message from Mr. Brumbaugh on the afternoon of July 6. Plaintiff was asked this question:</p> <p>“ Q. Mr. Bailey: Mr. Brumbaugh, just relate to the jury how you happened to sign the proof of loss for the policy taken out in the German American Insurance Company ?</p> <p>Mr. Bailey: I propose to ask the witness how he made the affirmance on the proof of loss of the German American Insurance Company, for the purpose of showing the fraudulent acts on the part of the agent of the German American Insurance Company, that they attempted to take advantage of him, to explain why he made the declarations in the proof of loss, for the purpose of showing that the agent had deceived him; that he told him that he had other insurance, told him all about this policy and also the extent of his loss, in conversation between him and the agent.</p> <p>Mr. Lovell: Objected to because the proof of loss is in writing. and sworn to by the plaintiff in this case, and he has already testified that he is able to read and write, and this cannot be allowed to contradict or vary the written terms of the proof of loss.</p> <p>The Court: We think that the plaintiff may explain to the jury the circumstances under which he made the proofs of loss to the German American Insurance Company; for that reason we sustain the offer, overrule the objection, and seal a bill of exceptions for the defendant. [2]</p> <p>Defendant presented this point:</p> <p>2. That, as the policy in suit contains the condition quoted in defendant’s first point, therefore, if the evidence satisfies the jury that the plaintiff had other insurance on the same property, which he renewed after he obtained the policy in suit, without, the written consent of defendant company to such insurance, and its renewal, indorsed on its policy, the plaintiff violated the above expressed condition of his contract and thereby released the defendant company from all liability for loss or damage thereunder, and the verdict should be for the defendant. Answer: Refused. We do not think the written consent of the company is necessary if it had notice of the other insurance prior to or at the time it issued this policy to the plaintiff. [4]</p> <p>Verdict and judgment for plaintiff for $926.29. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions. (4) Above instruction, quoting it.</p>

Appeal, No. 231, Oct. T., 1901, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1895, No. 4, on verdict for defendant in case of Ephrata Water Company v. Ephrata Water Company. Assumpsit for water rent. Before Landis, J. At the trial it appeared that on February 6,1893, the Ephrata Water Company entered into a contract in writing with the borough of Ephrata to supply the latter with water.

Appeal, No. 133, Oct. T., 1901, by defendants, from order of C. P. Chester Co., Aug. T., 1900, No. 55, on verdict for plaintiff in case of Caroline M. Stephenson v. Pennsylvania Railroad Company. Trespass to recover damages for loss occasioned by burning of plaintiff’s woodland.

Appeal, No. 19, March T., 1902, by New York Underwriters Agency, from order of C. P. Cumberland Co., Sept. T., 1901, No. 108, awarding contribution in case of W. W. Herr v. Greenwich Insurance Company of the City of New York and the New York Underwriters Agency. Assumpsit upon policies of fire insurance.

Appeal, No. 199, Oct. T., 1901, by the president and managers of the Chambersburg and Bedford Turnpike Road Company, from order of Q. S. Bedford Co., overruling exceptions in proceedings to condemn the Chambersburg and Bedford Turnpike Road in Bedford County. Proceedings to condemn a portion of the Chambersburg and Bedford Turnpike Road in Bedford county. The petition -was referred to Frank Fletcher, Esq., as master, and a jury.

Appeal, No. 170, Oct. T., 1901, by defendant, from judgment of C. P. .Chester Co., on verdict for plaintiff, in case of W. Smith Campbell v. Job Sidwell. Trespass for malicious prosecution. Before Hemphill, P. J. The opinion of the Superior Court- states the case. Plaintiff presented these points: 1.

Appeal, No. 238, Oct. T., 1900, by defendant, from judgment of C. P. Schuylkill Co., March T., 1893, No. 269, on verdict for plaintiff in case of Margaret I. Bailey and John P. Bailey v. Mill Creek Coal Company. Trespass to recover damages for injuries to plaintiff’s cellar and house alleged to have been caused by the deposit of coal dirt in a stream on plaintiff’s premises.

Appeal, No. 265, Oct. T., 1900, by E. F. Phillips, from order of C. P. Schuylkill Co., Jan. T., 1897, Nos. 128 and 129, discharging rule to strike off judgments in case of B. W. Fees v. Joel Shadel, Agent. Rules to strike off judgments and vacate proceedings. The opinion of the Superior Court states the case. Error assigned was the order of the court.

Appeal, No. 256, Oct. T., 1901, by defendant, from judgment of C. P. Schuylkill Co., July T., 1901, No. 317, on verdict for plaintiff, in case of Union Safe Deposit Bank v. Thomas H. Strauch. Assumpsit by a bank against an indorser of a check. Before Bechtel, P. J. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $167.20. Defendant appealed. Error assigned was in directing verdict for plaintiff.

Appeal, No. 219, Oct. T., 1899, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T., 1898, No. 1, awarding divorce in case of Martin Kilmartin v. Addie Kilmartin. Libel for divorce. The opinion of the Superior Court states the case. Error assigned was in awarding divorce.

Appeal, No. 155, Oct. 1901, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1899, No. 47, refusing to take off nonsuit in case of Michael McGrane v. Philadelphia & Reading Railway Company. Trespass to recover damages for injuries to real estate. Before Finletter, P. J. The facts appear by the opinion of the Superior Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 158, Oct. T., 1901, by-James D. Scott, Owner, from order of O. P. No. 1, Phila. Co., Dec. T., 1888, No. 334, discharging rule to open judgment in case of City of Philadelphia v. Unknown Owner. Rule to open judgment. The opinion of the Superior Court states the case. Error assigned was the order discharging rule to open judgment.

<p>Appeal, No. 157, Oct. T., 1901, by James D. Scott, from order of C. P. No. 1, Phila. Co., Dec. T., 1877, No. 172, M. L. D., discharging rule to open judgment in case of City of Philadelphia v. Clayton Allen.</p> <p>Rule to open judgment entered on a tax lien.</p> <p>Error assigned was order discharging rule.</p>

<p>Appeal, No. 188, Oct. T., 1901, by-defendant, from judgment of C. P. No. 2, March T., 1900, No. 1094, for plaintiff, on case stated, in case of Commonwealth v. Bailey, Banks & Biddle Company.</p> <p>Case stated to determine liability to mercantile tax.</p> <p>The case stated was as follows :</p> <p>It is hereby agreed by and between the parties to the above entitled cause, that the following case be stated for the opinion of the court in the nature of a special verdict.</p> <p>That subdivision IT, class second, of the act of April 29, 1874, relating to the incorporation of certain corporations for profit was so amended by the act of assembly approved the 3d day of June, 1893, Laws of 1893, p. 288, as to provide for the incorporation of certain corporations for “ the manufacture of iron or steel or both or any other metal or of any article of commerce from metal or wood or both, and the manufacture and production of silverware, plated ware, jewelry, works of ornament and art and pictures, and the buying and selling of such articles.”</p> <p>That by virtue of the provisions of said act of assembly of April 29, 1874, amended as above recited, by act of June 3, 1893, a charter was on the 2d day of March, 1894, duly issued by the commonwealth of Pennsylvania to defendant, authorizing it to engage in the business of “ the manufacture and production of silverware, plated ware, jewelry, works of ornament and art and pictures, and the buying and selling of such articles.</p> <p>That in pursuance of said charter defendant company engaged in said business of manufacturing and producing silverware, plated ware, jewelry, works of ornament and art and pictures, and the buying and selling of such articles at its places of business hereinafter mentioned in the city of Philadelphia, and has conducted such business at its said places of business from the date of its incorporation to the present time, and during said time has not engaged and is not now engaged as a retail dealer in or vendor of goods or merchandise other than those authorized by the said acts of assembly and its charter as aforesaid.</p> <p>That on March 1, 1894, the defendant company paid to the commonwealth of Pennsylvania a bonus of one fourth of one per cent upon the amount of its capital stock amounting to $125 for the privilege of exercising its corporate powers' as required by the act of assembly approved April 29, 1874, P. L. 78, section 44.</p> <p>That from the time of its incorporation to the present time, the said defendant company has annually paid to the commonwealth of Pennsylvania the corporation tax upon its assets and the capital stock duly assessed against it by authority of laws taxing corporations in such cases made and provided, the said annual tax being in various amounts from $2,000 to $2,800 each year, including the sum of $2,822.20 assessed against it for the year 1900.</p> <p>That the board of mercantile appraisers of the county of Philadelphia did, on or about February 26, 1900, make the following assessment against the said Bailey, Banks & Biddle Company for mercantile license tax, to wit:</p> <p>Tax one mill on each dollar of amount sold $1,088 00</p> <p>Additional tax to be paid by each retail dealer ....... 2 00</p> <p>Fees for city of Philadelphia to be paid by each dealer...... 50</p> <p>Total to be paid to city treasurer for license $1,090 50</p> <p>The said tax was assessed in pursuance of the act of assembly of May 2,1899, imposing a mercantile license tax on vendors of or dealers in goods, wares and merchandise; and is assessed in behalf of and for the use of the commonwealth of Pennsylvania.</p> <p>That on May 7, 1900, the said Bailey, Banks & Biddle Company (by their, officer and legal representative) appeared before the said board of mercantile appraisers and protested against the assessment of the said tax, but. the said board refused to strike off the assessment, confirmed the same, and granted an appeal to the court of common pleas for Philadelphia county, which appeal was duly perfected as of the term and number of this case stated.</p> <p>That the said board of mercantile appraisers has furnished to .the treasurer of the county of Philadelphia a certified list of dealers in and vendors of goods, wares and merchandise in said county pursuant to the act of assembly of May 2,1899, aforesaid ; and have included in said list the name of said company defendant, and have assessed against it the said mercantile license tax of $1,090.50, as aforesaid, for the year 1900.</p> <p>It is admitted for the purposes of this case stated that of the sales .of goods, wares and merchandise upon which the said mercantile license tax has been assessed, $259,500 were for goods, wares and merchandise sold by it in its store or salesroom at the corner of Twelfth and Chestnut streets in the city of Philadelphia, but manufactured in a plant belonging to it, located at the southwest corner of Twelfth and Samson streets, and separated from said salesroom by an intervening street; and $828,500 were for goods, wares and merchandise purchased elsewhere and sold in its said store or salesroom as aforesaid; that all of the goods, wares and merchandise so manufactured or purchased and sold were of the character hereinabove described ; and that the defendants are retailers within the terms and meaning of the said act of May 2, 1899.</p> <p>That the said Bailey, Banks & Biddle Company has been obliged to make an annual return to the commonwealth of Pennsylvania pursuant to the laws taxing the capital stock of corporations and the above mentioned sum of $2,822.20, being the capital stock tax for the year 1900, paid by the company to the commonwealth of Pennsylvania was imposed by the commonwealth upon the basis of a certain return, a true and correct copy whereof is hereto attached and made part of this case stated. The defendant company claimed no allowance for the amount of its capital engaged in the manufacturing plant aforesaid, but included the same in its said return.</p> <p>If the court shall be of opinion that defendant is exempt from payment of mercantile license tax upon the goods manufactured and sold and bought and sold by it as aforesaid, then judgment shall be entered in favor of defendant.</p> <p>If defendant is exempt upon sales of goods purchased by it, but not exempt upon sales of goods manufactured by it in its factory and sold at its salesroom as aforesaid, then judgment to be entered for plaintiff for $262.50.</p> <p>If defendant is exempt upon sales of goods manufactured by it, but not exempt upon sales of goods purchased by it, then judgment to be entered for plaintiff for $828.50.</p> <p>If the court shall be of opinion that defendant is not exempt upon sales of goods of either class, then judgment to be entered against defendant for the whole amount of mercantile tax assessed against it as aforesaid, namely, $1,090.50.</p> <p>Either party reserves the right of appeal or writ of error.</p> <p>The court entered judgment for plaintiff on the case stated for $1,090.50. Defendant-appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Divorce — Desertion—Evidence.</p> <p>A divorce should be granted to a husband where it appears from his own evidence that sixteen years before filing the libel his wife voluntarily withdrew from his home, that she subsequently refused his request to return, and thereafter went to reside in a distant state, and that he treated her kindly, and provided all that she needed.</p> <p>Where a wife who has deserted her husband and gone to a distant state is served with a subpoena in divorce while on a visit to this state, and has due notice of the hearing before the master, which, however, she does not attend, either personally or by counsel, the testimony taken in support of the libel is to be taken as verity, and a letter written by the respondent to the master is not entitled to any consideration as evidence in her favor.</p> <p>A proceeding for divorce is subjected in the appellate courts to scrutiny from beginning to end. Particularly is this directed to the testimony in order that the merit or demerit of the application may on the whole be determined.</p>

<p>Account stated — Admission—Statute of limitations — Decedent's estates.</p> <p>The settlement of an account and striking of a balance is a clear admission o£ a precise indebtedness, and the balance so ascertained becomes a new principal. It cannot be re-examined to ascertain the items, or their character, except upon proof of fraud or mistake. An account stated is an answer to the plea of the statute of limitations as to the items of which the account is composed.</p> <p>When parties have had mutual dealings an admission by the defendant of a definite balance due against him is prima facie evidence of plaintiff’s demand.</p> <p>Where a decedent in his lifetime writes to a person with whom he had had a long course of dealing, “I will pay you the balance, $553.07,” and there is no evidence that the decedent had paid this balance, the balance stated will be allowed to the creditor, and the representative of the decedent cannot claim that as the original claim was barred by the statute of limitations, the promise contained in the letter did not clearly and unequivocally identify the debt to which the promise referred.</p>

Appeal, No. 260, Oct. T., 1901, by defendant, from order of C. P. No. 4, Pbila. Co., June T., 1900, No. 1347, discharging rule to open judgment in case of Abraham Hirschlan v. Hyman Krechman and Annie Krechman. Rule to open judgment. Error assigned was order discharging rule to open judgment.

<p>Beneficial societies — Time—Default inpayment of dues.</p> <p>• In policies of life insurance time is material, and this is equally true of stipulations for prompt payment of dues and assessments by members of beneficial societies, and in such associations it is obviously necessary that it should be so.</p> <p>Where the subordinate councils of a beneficial association establish an unincorporated funeral benefit association composed of the different subordinate councils to raise a fund for the payment of funeral benefits, and the by-laws of one of the councils provides that each member shall be entitled to funeral benefits after his death, but that no member who is in default at the time of his death shall be entitled to any funeral benefits, the council cannot be compelled to pay funeral benefits for a member in default, although the council itself has received the funeral benefits from the funeral benefit association.</p>

<p>Appeal, No. 6, Jan. T., 1902, by defendant, from judgment of C. P. Luzerne Co., May T., 1898, on verdict for plaintiff in case of Dennis Brislin, Guardian of James Noonan, v. Kingston Coal Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Insurance — Fire insurance — Contract.</p> <p>A policy of insurance is a contract, and until the negotiations of the parlies have brought them to such a stage where it may fairly be said that they have agreed upon something, no contract exists.</p> <p>Where after the dissolution of a partnership and the death of one of the partners, the surviving partner cancels a fire policy which had been issued to the firm, and directs the insurance agent to issue a new policy in the name of the deceased partner, dating it prior to his death, and covering real estate which had become the property of the deceased, and further directs the agent to send the policy to the agent and attorney for the heirs of the deceased, and the latter refuses to accept the policy as made out, and states that he will call upon the agent in reference to the matter, but never does so, the heirs of the deceased cannot recover from the insurance company for the loss of the premises, inasmuch as no contract existed between them and the insurance company.</p>

<p>Appeal, No. 53, Jan. T., 1902, by .defendant, from judgment of C. P. Luzerne Co., Oct. T., 1898, No. 52, on verdict for plaintiff in case of Simon Duda v. Home Insurance Company of New York.</p> <p>Assumpsit on a policy of fire insurance. Before Ferris, J.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $175. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff on the point reserved.</p>

<p>Evidence — Parol evidence — Written instrument — Mistalce.</p> <p>Where an attempt is made to set aside or reform a written contract o.n the ground of fraud, accident or mistake, the parol evidence must be not only of what occurred contemporaneously with the execution of the document, and induced its procurement, but it must also be clear, precise and indubitable, in order to carry the case to the jury.</p> <p>In an action to recover interest alleged to be due on deferred instalments of purchase money of land, it appeared that plaintiff executed an article of agreement for the sale of land in January, but that the defendant objected to the price, and when the price was reduced, consummated the transaction by signing the agreement in May. The parties did not meet, but acted through a real estate broker. The agreement provided that a certain sum should be paid, and the “ balance in six equal annual payments of five hundred dollars each from the date hereof.” Nothing was said as to interest. The plaintiff contended that the words “ with interest payable yearly ” were omitted from the agreement by mistake. The defendant denied this positively. The broker testified that in January the defendant agreed to pay interest; the broker also testified that he instructed his scrivener to draw the contract in accordance with a memoranda made at the time which was exhibited by the witness, and embraced the words, “ with interest payable yearly,” and that these words were pverlooked by the scrivener by accident or mistake. The defendant was not .present at the time the alleged instructions were given by the brokerj ¿¡or did he ever see the memoranda mentioned. It was admitted that the question of interest on the purchase money was not mentioned after January.- The only-modification of the contract as written in January .was the reduction in price in May. Held that the evidence was insufficient to sustain the plaintiff’s contention that a mistake had been made in the drawing of the agreement.</p>

<p>Appeal, No. 34, Jan. T., 1902, by plaintiff, from decree of C. P. Lackawanna Co., Sept. T., 1901, No. 6, dismissing bill in equity in case of Conrad Schroeder v. Scranton Gas & Water Company.</p> <p>Bill in equity for an injunction.</p> <p>• The facts are fully stated in the opinion of the. Superior Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 4, Oct. T., 1902, by defendant, from judgment of C. P. Northumberland Co., Dec. Term, 1901, No. 55, on verdict'for plaintiff on case of Commonwealth v. D. G. Seiler.</p> <p>Indictment for selling renovated butter without a license.</p> <p>The court charged in part as follows:</p> <p>[Now, I have been asked by council for the defendant, first in a motion to quash and now again in requests to charge, to hold this act of 1901 unconstitutional. With that question you have nothing whatever to do; the constitutionality of the law is never a matter to be submitted to the jury; it is not the province of jurors to answer requests made to the court to charge, and I do not propose to go into the legal questions involved in this request at length. It is sufficient for you to know that I have concluded that the renovated butter act referred to, the act of 1901, is constitutional. I may take occasion later on, in a certain event, to investigate the matter more fully and may reverse my present ruling. However, that matter will make no difference to you in the performance of such work as is submitted to you by the court with relation to this case. In a general way I may say that the act of 1901 seems to me almost in its provisions — its essential features— identical with the oleomargarine act, about which you have heard counsel make statements in their arguments to.the cofirt,' which has been declared by the higher courts constitutional.. In this connection, I refuse all the points upon which I have been requested by counsel for the defendant to charge you.] [18]</p> <p>[It has been contended by the defendant that it was not necessary for him to procure the license mentioned in the act of assemblies unless he intended to deal in renovated butter, and when I .first glanced at the act this evening, when that question arose, I rather leaned to that belief myself; but upon a further examination and reading the several provisions of the act, those relating to that question, more carefully, I have come to the conclusion that it is the intention of the act to prevent the sale of renovated butter without a license; that no one has the right to sell renovated butter without having first procured the license, provided by the act, from the proper department, and it makes no difference whether the sales made are intentional or otherwise — whether there is a guilty knowledge or otherwise — because in a statute of this kind prohibiting the sale of a particular article without a license, or without being marked in accordance with the provisions of the act regulating the sale thereof, the question of intention is not a factor iu the case.] [19]</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned among others were (18, 19) above instructions, quoting them.</p>

<p>Public officers — Succession—Bond.</p> <p>The successor of a public officer is the person or board who at the expiration of tlie term of office or the removal of the incumbent is by law charged with the duties and invested with the powers which to the office appertain.</p> <p>If one of the two overseers of the poor is qualified to act he acts for all until such time as the court of quarter sessions has filled the vacancy occasioned by the failure of the other overseers to qualify. It is only when no person qualifies that the preceding officers continue to perform the duties after the expiration of the term for which they had been elected.</p> <p>Where an overseer after election has failed to qualify, the outgoing overseer should pay what moneys lie has in his possession to his associate overseer who continues in office.</p>

<p>Appeal, No. 16, Feb. T., 1902, by defendant, from order of Q. S. Lycoming Co., March T., 1901, No. 80, dismissing appeal from order of removal in case of Overseers-of the Poor of the Poor District of Shrewsbury Township, Lycoming County, v. Overseers of the Poor of the Poor District of Shrewsbury Township, Sullivan County.</p> <p>Appeal from order of removal of pauper.</p> <p>From the record it appeared that Perry George, the pauper in question, had, in 1897, purchased 200 acres of land in Sullivan county, and in the same year moved into a house which he believed was on the land.</p> <p>Mitchell, P. J., after reviewing the testimony at length, said:</p> <p>From this testimony it is apparent that George had purchased land — the boundaries of which were uncertain; that he had attempted to move upon this land, and believed that he had moved upon it; and that he had resided in the house into which he had moved for a period more than sufficiently long to comply with the requirements of the act.</p> <p>It is equally apparent that whether the house in which he lived the second time was on the land in question or not could only be satisfactorily and conclusively determined by an action of ejectment; and that however the court might determine this question of fact in the present proceeding, such determination would not be binding upon the owners of this land who might at any time, by proper action, secure a determination of their boundary lines exactly opposite to the determination of the court in the present proceeding. How undesirable such opposite conclusions, or the risk of them would be, is apparent.</p> <p>When, however, we pause to consider the reason of the laws governing poor settlements, we are persuaded that the determination in the exact location of the house occupied by George is not necessary in the present proceeding.</p> <p>When the legislature enacted the provision cited above it possibly had in mind that the acquisition of freeholders who dwelt upon their freeholds was of value to any poor district»; and it may also, in providing that the freeholder should live upon his freehold, have intended to certainly secure to the district notice of the residence of a newcomer and an opportunity to inspect and judge of his character; or, it may merely have believed that any one who became seized of a freehold and dwelt upon it was acting in good faith, and so unlikely to become a charge upon the district that his acquisition as a settler was desirable, or at least safe.</p> <p>An inspection of the other provisions of the poor laws in force in Pennsylvania will show that the same intent to secure desirable settlers and provide reasonable notice of the coming of new persons into a district prevades them all.</p> <p>In the present case, George purchases 200 acres of wild land; he attempts to move upon it and believes that he does move upon it; he lives in the house into which he has moved more than the time required to give him a settlement; his possession is open and notorious; he clears part of his purchase, and in every way proves that his intention is to become a bona fide settler on his land, and in every way gives the township an opportunity to know of his intentions and to inquire as to his character and ability to support himself. Even if his attempt to occupy a house actually upon the land purchased was — because of confusion in boundary lines — abortive (and the evidence is quite as strong that the house he occupied was on the land that he purchased as that'it was not), it would seem to us ridiculous to say, that, having occupied a house in one place he did not gain a settlement, while if'he had occupied it from three to five rods away, he would have gained one. How could the difference of location have affected him? How could it possibly have affected the township?</p> <p>The case of Beaver Township v. Rose Township, 98 Pá. 636, cited by the appellant in support of his contention that all the requirements of the statute must be strictly complied with to gain a residence, does not apply to the present case, because in it there was no pretense that the leasehold had been occupied for a year. And the case of Montoursville Boro. v. Fairfield Twp., 112 Pa. 99, does not apply, because in it there was no attempt made to reside upon the freehold in question.</p> <p>The precise question here raised seems never to have been decided in Pennsylvania, but we are certain that where, in the case of the puichase of wild land — the boundaries of which are not definitely ascertained — an attempt is made to reside upon the land and an actual residence is taken up so close to the land in question as to fairly give the community notice of the intention to reside upon the land purchased, as in the present case, the purchaser, by such residence for the period of one year, gains a settlement.</p> <p>Error assigned was order dismissing appeal.</p>

<p>Waters — Fishing—Deed—Trespass—Exclusive right.</p> <p>While at common law an action of ejectment will not lie for the possession of a pool or other piece of water by the name of water only, yet by a grant of a well defined pool or pond there passes to the grantee a right of fishing. When he who makes such a grant is the sole and absolute owner of the pond, and the grant is made without reservation, the right of the grantee to the fishery is exclusive. The proper remedy, under our present system of procedure for any interruption of or intrusion upon such a right, is an action of trespass.</p> <p>Deed — Waters—Pond—Tille—Description.</p> <p>A grant by deed of a tract of land extending across the mouth of the outlet of a pond, and also “all of the said pond and lands adjoining thereto not conveyed in other deeds,” includes all of the land in the entire tract, whether under or out of the water which had not by conveyances become detached from the tract of which tiie margin was a part.</p> <p>Where the owners of a pond have conveyed the pond and the lands thereunder, the riparian rights become severed from the adjacent land, and it is not within the power of such owners subsequently to revive said rights in favor of other land not conveyed by executing a deed calling for the pond as a boundary.</p> <p>Waters — Lake—Adverse possession.</p> <p>Where the title to a lake and the land under it are distinct from that of the shore owner, adverse possession of the one can never give title to or right in the other.</p> <p>Easement — Fishing—Prescriptive right.</p> <p>In an action of trespass for wrongfully fishing in a pond, where it appears that the defendant owns no land near to the pond and makes no attempt to prescribe in a que estate, he cannot eatablish a prescriptive right to fishing in the pond by evidence that he had commenced to fish in the pond in 1802, and from that time down until 1895 he liad fished there quite often in the summer time, sometimes three or four times a week, and had fished all over the pond, that nobody had ever interfered with him until within the year last named, that other persons had always fished there in the same manner, and that prior to 1895 he had never heard of any objection from the owners of the land.</p>

<p>Municipalities — Public officers — Removals—City assessor.</p> <p>The Aet of March 7, 1001, P. L. 20, relating to thegovernmentof cities of the second class, authorizes the removal by the city recorder, appointed by the governor, of a city assessor before the end of the term for which he was elected. The 2d section of the schedule of the act which is a merely temporary expedient, is not in conflict with section 1, article 12, which relates to the permanent form of government for cities of the second class.</p> <p>Constitutional law — Public officers — Abolition of office.</p> <p>The Act of March 7, .1901, P. L. 20, relating to the government of cities of the second class, is constitutional.</p>

<p>Contract — Sale—Time—Waiver.</p> <p>Where the parties to a contract of sale have dealt with the subject-matter of the contract without manifesting any intention to hold each other to a strict compliance with the provisions as to time of performance, they place themselves in a position from which neither can be permitted to recede and rescind the contract wilhout warning to the other and a reasonable opportunity to perform.</p> <p>Where a contract for the sale of hay provides that the purchaser shall furnish cars, and the hay is not delivered at the time mentioned in the contract, and the delay is the fault of both parties, and subsequently the seller notifies the plaintiff of his absolute refusal to deliver the hay, and there? after sells it to another party, the purchaser is not required to do a useless thing and tender cars to receive the hay which the seller had absolutely refused to deliver.</p> <p>Contract — Sale—Evidence—Declaration.</p> <p>Where a seller who has waived the time provided by a contract of sale notifies the purchaser that he will not deliver the goods, he cannot thereafter manufacture testimony for himself by declaring to other parties that he did intend to make the delivery according to his contract.</p>

<p>Appeal, No. 41, Jan. T., 1902, by plaintiff, from judgment of C. P. Bradford Co., Feb. T., 1899, No. 177, non obstante veredicto in case of Charles W. Mitchell v. Allen A. Spaulding.</p> <p>Ejectment for land in Leroy township. Before Dunham, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff subject to questions of law reserved.</p> <p>The court entered judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 47, Jan. T., 1902, by plaintiff, from judgment of C. P. Bradford Co., Dec. T., 1899, No. 241, non obstante veredicto in case of Hanford L. Spaulding v. Charles E. Bullock.</p> <p>Trespass by an alleged lunatic against his committee to recover damages for the sale of personal property, pending traverse of inquisition. See Mitchell v. Spaulding, ante, p. 296.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict for plaintiff for $671.05, subject to question of law reserved.</p> <p>The court subsequently entered, judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment non obstante veredicto.</p>

<p>Appeal, No. 204, Oct. T., 1901, by Harry Cessna, executor of John Cessna, deceased, front decree of C. P. Bedford Co., Feb. T., 1898, No. 1, distributing proceeds of sale in foreclosure proceedings, in case of Girard Life Insurance, Annuity and Trust-Company v. Bedford Coal & Iron Company.</p> <p>Bill in equity to foreclose a corporation mortgage.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of distribution.</p>

Appeal, No. 34, Oct. T., 1901, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1900, No. 132, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of David J. Myers v. Burton E. Kipp. Assumpsit upon a duebill. The duebill is quoted in the opinion of the Superior Court.

<p>Insurance — Fire insurance — Proofs of loss — Province of court and jury.</p> <p>In an action upon a fire insurance policy itis the duty of the court to determine the sufficiency of the proofs of loss as a matter of law, and as a condition precedent to recovery, in the absence of any evidence of bad faith on the part of the insurance company.</p> <p>Where the insured volunteers to furnish proofs of loss, he is bound to furnish such as are sufficient, under the terms and conditions of the policy.</p> <p>Insurance — Fire insurance — Incumbrances—Change of ownership.</p> <p>Where an insurance company has been notified of the entry of a judgment against the insured, and the issuance of execution thereon, it is not necessary for the insured to notify the company of the advertisement for sale of the insured property by the sheriff.</p>

<p>Appeal, No. 261, Oct. T., 1901, by defendant, from judgment of C. P. No. 1, Pbila. Co., Sept. T., 1900, No. 836, on verdict for'plaintiff in case of Morton, Reed & Co. v. Union Traction Company.</p> <p>Assumpsit to recover balance alleged to be due on a building contract. Before Beitler, J.</p> <p>At tbe trial defendant claimed to set off a claim of $5,500 recovered against tbe defendant in tbe United States district court for tbe eastern district of Pennsylvania for tbe negligent killing of one Fetters, an employee of tbe bricklaying contractors for the power house, for which plaintiffs contracted for the metal work. Other facts in tbe case appear by tbe opinion of tbe Superior Court.</p> <p>When Frank A. Hillebrand was on tbe stand, tbe following question was asked:</p> <p>Frank A. Hillebrand, sworn.</p> <p>Mr. Pepper: What do you propose to prove by this witness?</p> <p>Mr. Learning: I propose to prove by this witness that the dropping of the beam was due to the servants of Connery, the subcontractor of Morton, Reed & Company.</p> <p>Objected to as the record of the proceedings in the United States court is the exclusive evidence of liability which the traction company satisfied by payment.</p> <p>Mr. Learning: “ Q. At the time Mr. Fetters was killed, who were you working for? A. Mr. Connery. Q. He was what was known as the Connery Boiler Works, wasn’t he ? A. Yes, sir. Q. You were working at the steel stack situated where? A. Thirteenth and Mt. Vernon, for the Union Traction Company. Q. On the day that he was killed, before dinner time, where were you working ? A. On top of the stack.”</p> <p>Mr. Pepper now renews his objection, and both counsel argue the questions of law in the case.</p> <p>Mr. Learning offers in evidence the record of the proceeding in the case of Fetters v. Union Traction Company, in the United States court.</p> <p>Objected to by Mr. Pepper, for the reason that upon its face it shows the making by the traction company of a payment in respect of which they are not entitled to indemnity under the contract.</p> <p>Objection sustained. Exception to defendant. [1]</p> <p>Mr. Learning: I offer to prove by the witness on the stand, to be followed by other witnesses, that the employees of Connery, the subcontractor of Morton, Reed & Company, were at work on a steel stack which they were constructing, and which was over 100 feet high, and that in the progress of the work it became necessary to move a working platform from a lower to a higher level; that just before the dinner hour on August 26, 1897, Connery’s servants had negligently placed certain beams in an upright position inside the stack, resting upon a plank; that they then went to their dinners and returned about an hour later, climbing up a ladder upon the exterior of the stack and swinging themselves over the top of the stack, dropping themselves upon the plank which supported the upright beams; that one of the beams was thus dislodged and shot downwards, point first like an arrow, passing through a protective platform which was built some distance above the ground, and killing one Fetters, who was a bricklayer, employed by Keen, Frazier & Company; that no officer or employee of the Union Traction Company was present, or was in any way in charge of the work. This for the purpose of showing that Fetters’s death was due to the joint negligence of Connery and the Union Traction Company.</p> <p>Objected to. Objection sustained. Exception to defendant. [2]</p> <p>The court charged as follows :</p> <p>[This matter is a matter of law rather than of fact in the shape in which it is now presented, and I purpose taking the responsibility of directing you to find a verdict for the plaintiffs for the amount of thbir claim with interest. Mr. Pepper will give you a calculation of what that amount will be.]</p> <p>Yerdict and judgment for plaintiff for $1,463.58. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence. (3) Charge of the court, quoting it.</p>

<p>Appeal, No. 12, Feb. T., 1902, by defendant, from judgment of C. P. Tioga Co., Jan. T., 1901, No. 2, on verdict for plaintiff in case of Alexander Smith v. Jackson</p> <p>Trespass to recover damages for personal injuries. Before Niles, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Defendant presented these points :</p> <p>7. If the jury believe from the evidence that the plaintiff had driven over the Wheeler bridge twice a day for three weeks next prior to and including the day of the alleged injury, and knew or ought to have known of the hole therein and its dan- ' gerous character, and that there was at the time of the alleged injury a sufficient and safe space in the roadway of said bridge beyond said hole, over which the plaintiff had formerly safely driven, and at the time of the accident could by the exercise of ordinary care and prudence have safely driven and avoided said hole and the injury complained of, then the plaintiff cannot recover. Answer: As an abstract legal proposition this point' would be affirmed, but we cannot affirm it as stated. In applying it the jury should carefully consider all of the evidence in the case, and whether the evidence of the plaintiff, if believed, in reference to the board being over the hole relieved him in any degree from his duty in looking for and avoiding the hole in crossing the bridge at the time of the accident. You have this question wholly submitted to you and you are to determine under all of the evidence in the case whether the plaintiff was guilty of any negligence in crossing the bridge that in any degree contributed to the injury complained of. If he was he cannot recover in this case. We decline to affirm this point as stated. [1]</p> <p>11. If the jury believe from the evidence that plaintiff knew of the hole in the bridge, and that he could have avoided it by the exercise of reasonable care, but failing to use such reasonable care, drove into, or allowed his horse to step into said hole, and thereby contributed to the injury complained of, he cannot recover. Answer : This as an abstract proposition is affirmed. But in the determination of this question you will carefully consider all of the facts that have- been given in evidence and also determine in how far, if at all, the plaintiff was relieved, from looking for and avoiding the hole in the bridge by reason of the board being nailed over it, if it was so nailed, as described by Wheeler and seen by the plaintiff on the morning of the accident. [2]</p> <p>9. If the jury believe from the evidence that had it not been for the manner the plaintiff was riding on top of a milk can twenty-five inches high, and for his watching a certain woman ■ and looking in the opposite direction from the way he was then going, or either of these, at the time he crossed'the John Wheeler bridge, and at the time and place where the alleged injury is alleged to have happened, that the accident would not have occurred, then your verdict must be for the defendant. Answer: This point we decline to affirm as stated. The facts involved in it are for the jury. If you should find as a matter of fact that his riding on the milk can as described by the evidence and should further find that he was riding backwards at the time of his receiving the injury complained of, and should further find that these acts constituted acts of negligence which contributed to the injury complained of in any degree, your verdict should be for the defendant. But these facts are wholly for you, and as you find so will the case be determined. As we have said several times during the trial, we think that this case is a case peculiarly for the determination of a jury. [4]</p> <p>10. If the jury believe from the evidence that the plaintiff at the time of the alleged accident was then .seated on top of the milk can twenty-five inches high in a spring wagon and was then looking in the opposite direction from the way he was then going, or either of these, and if the jury further find from the evidence, that had plaintiff at the time of the alleged accident been seated in his wagon on an ordinary wagon seat and had been then observing his horse, road and driving, he would not have received the injury complained of, then the plaintiff cannot recover in this case, and the verdict must be for the defendant. Answer : This we decline to affirm. We have substantially answered it in our answer to the foregoing point. Was the plaintiff guilty of any negligence in the mannér in.' which he crossed the bridge? If so, he cannot recover. Whether he was so negligent is a fact for your consideration. and determination. [5J</p> <p>12. Under all the evidence in this case the verdict of the jury must he for the defendant. Answer: This point is refused. We decline to take the case from you. We believe this is a case clearly for the jury. You will apply the legal principles as given to you by the court to the facts that have been given in evidence and render your verdict accordingly. [6]</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned were (1, 2, 4, 6) answer to points. (3) Portions of charge quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 3, Feb. T., 1902, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1900, No. 370, on case stated in suit of Frank F. Stryker v. Lycoming County.</p> <p>Case stated to determine liability of county to constable.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The court entered judgment for plaintiff for $14.30. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Appeal, No. 24, March T., 1902, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1900, No. 133, on verdict for plaintiff, in case of William Whorlpy v. W. L. Karper.</p> <p>Replevin for a crop. Before E. W. Biddle, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $223.29. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff on a question of law reserved.</p>

<p>Appeal, No. 20, Jan. T., 1903, by defendant, from judgment of Q. S. Bradford Co., Sept. T., 1900, No. 25, on verdict of guilty in case of Commonwealth v. A. L. Wickert.</p> <p>' Indictment for forging a promissory note. Before Fanning, P. J.</p> <p>' From the record it appeared that the defendant was indicted for forging the name of David G. Boyer to a-promissory note.Boyer was called by the commonwealth and testified' that he had signed the note. When M. J. Murphy was on the stand, the following question was asked:</p> <p>“ Q. Were you present in my office in February last when the question was asked Mr. .Boyer if he wrote that name to that note? A. I was. Q. What did he say? A. He said he did not. Q. Did you hear me ask him at that time whether or not he authorized any one to sign his name, and what did he say? A. He replied that he did not, in that case. Q. When did he say, at any time in conversation with you, that he first saw or knew of that note? A. When he first saw or knew of it?. Q. Yes, sir. A. Well, it was first — I think it was in January I was in’Philadelphia and subpoenaed' him for February court; that was the first time I had ever seen him, and he said at that time he was very much surprised that Mr. Wickert would do it.”</p> <p>Mr. Mercur: Counsel for defendant now move the court to . strike out all the testimony of the witness relative to the alleged declarations and statements made to him by ... . David G. Boyer, on the ground that they are incompetent to affect the defendant in this case, and that they are irrelevant, immaterial - and hearsay.</p> <p>Mr. Maxwell: We object, that the same is competent-and material and relevant for the purpose offered.</p> <p>The Court: We refuse to strike out the testimony. Bill sealed. [1]</p> <p>F. PI. Sherman was asked this question :</p> <p>“ Q. What if anything did he (Boyer) say to you about the other note ; about Mr. Brewer, or about seeing Mr. Brewer?”</p> <p>Objected to.</p> <p>Mr. Maxwell: This is for the purpose of contradicting and affecting his credibility.</p> <p>Mr. Mercur: We object to it, as incompetent, irrelevant and heai’say.</p> <p>Mr. Maxwell: “ Q. Did Mr. Brewer (Boyer) say to you in that conversation while there that you had better arrest Wick- ° ert before you saw Brewer, as Brewer was a son of a bitch, and • a great friend of the defendants, and he would notify Wickert, if you saw him first, and he would get away? ” .';</p> <p>• Mr. Mercur:.'We object to the question as leading, ineompetent, irrelevant and immaterial to the issue in this case, and as being hearsay, and an atempt to contradict their own witness Objection overruled. Defendant excepts. Bill sealed for defendant. [2]</p> <p>Mr. Maxwell: “Q. Answer the question. A. I went there Q. Just answer the question. A. He did say words to that effect.”</p> <p>M. J. Murphy was asked this question:</p> <p>“Q. Were you in my office yesterday when I was talking with Mr. Boyer in relation to this note and his signature? A. I was. Q. What did he say as to whether the signature to that note, ‘Exhibit 29,’ was in his handwriting or not?”</p> <p>Mr. Mercur: What is the purpose of that ?</p> <p>Mr. Maxwell: This is for the purpose of affecting the credibility of Mr. Boyer as a witness.</p> <p>Mr. Mercur: We object to it, as incompetent,irrelevant and inadmissible.</p> <p>Objection overruled. Defendant excepts. Bill sealed for defendant. [8]</p> <p>Mr. Maxwell: “Q. What is your answer to that? A. He said, and repeated several times that it was not in his handwriting ; that that signature was not in his handwriting; that was his language.”</p> <p>Claude L. Coon, a witness called on behalf of the commonwealth, was asked these questions:</p> <p>“ Q. Were you in my office yesterday when Mr. Maynard and I were talking with this man, David G. Boyer? A. I was. Q. Did you hear some of the conversation ? A. Yes, sir. Q. Did you hear the question asked Mr. Boyer whether or not the signature to a certain note was in his handwriting or not? A. I did. Q. The note in dispute? A. Yes, sir. Q. What was the answer to it? ”</p> <p>Objected to.</p> <p>Mr. Maxwell: This offer is for the purpose of affecting the credibility of the witness, David G. Boyer.</p> <p>Mr. Mercur: We object to it, as incompetent, irrelevant and immaterial.</p> <p>■ Objection overruled. Defendant excepts. Bill sealed for defendant. [4]</p> <p>- Mr. Maxwell: “ Q. What was his answer to it. A. He said it was not his handwriting.”</p> <p>Verdict of guilty upon which, judgment of sentence was passed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions. (5) In overruling a motion in arrest of judgment.</p>

<p>Appeal, No. 14, April T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1900, No. 270, on verdict for plaintiff in case of Harvey A. Lowry for use of W. J. McDevitt v. John M. Clark.</p> <p>Assumpsit on a claim property bond. Before Stowe, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>The court gave binding instructions for plaintiff.</p> <p>• Verdict and judgment for plaintiff for $374.30. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

Appeal, No. 62, April T., 1902, by plaintiff, from order of C. P. No. 1, Allegheny Co., Dec. T., 1900, No. 847, refusing to take off nonsuit in case of B. K. Elliott and George Best, trading as the Elliott Electric Blue Print Company v. Teutonia Insurance Company. Assumpsit on a policy of fire insurance. Before Collier, J. The opinion of the Superior Court states the case. Error assigned was refusal to take off nonsuit.

Appeal, No. 50, April T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny County, Dec. T., 1899, No. 862, on verdict for plaintiff in case of city of Pittsburg v. Trustees of the Third Presbyterian Church of Pittsburg. Scire facias sur municipal claim for taxes. Before Collier, J. From the record it appeared that the city of Pittsburg assessed the vacant portion of a lot owned by the defendant, and that the city took no appeal from the assessment.

Appeal, No. 56, April T., 1902, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1899, No. 225, on verdict for plaintiff in case of Hugh Daly v. M. Dallmeyer. Assumpsit upon a written agreement of employment. Before Frazer, P. J. The facts appear by the opinion of the Superior Court. Defendant’s points were as follows: 1.

<p>Appeal, No. 43, April T., 1902, by defendants, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1899, No. 606, on verdict for plaintiff in case of Julia A. DeArmit, Guardian of Sarah E. Rath, Deceased, v. Charles G. Milnor and Leonard A. Clark, trading as L. A. Clark & Company.</p> <p>Assumpsit to recover a share of rents. Before McClung, J.</p> <p>At the trial it appeared that the defendants who were real estate agents set off a claim for commissions for the sale of the ward’s interest in land.</p> <p>The court charged in part as follows :</p> <p>[The plaintiff here was acting as guardian for a minor, and it turned out that the property had to be sold, or it was known all along that it had to be sold under an order of orphans’ court, and for some reason the orphans’ court required it to be put up at public sale; but the theory of this whole matter, and that is the way it worked out, was that the public sale was for the purpose of securing the purchaser, which these defendants had obtained at $25,000.] [3]</p> <p>Now, if for the purpose of consummating this sale, it was necessary to sell at public sale, but still the purchase was made by the party whom the defendants secured, and the purpose of the parties in making this agreement was carried out, and the defendants acted in good faith, then they would be entitled to their commission in this case.</p> <p>[It is admitted that Dr. Bingaman, the purchaser whom they obtained, did buy the property; that it is said that the defendant, Clark, did not act in good faith. He being employed by the plaintiff and the co-owners of the plaintiff was bound to act in their interest.] [4] It would not interfere with that for him merely formally to bid it in for Dr. Bingaman, the purchaser, Dr. Bingaman being away, if it was understood by all parties. But if he, instead of working for them, undertook to work for the purchaser and to get it at a lower price, or attempted to get it at lower price, then he would forfeit all right to commissions. He says that he was not working in the interest of Dr. Bingaman, and the other parties have nothing definite excepting the fact that he suggested that they might get the property on their hands ; that is, that he did something which had a tendency to warn off bidders and prevent them from bidding it up on him to the price that he was to give for it. He says that that was only a joke ; and if it was, then it goes for nothing. The law looks at these things in a commonsense way. There is only one suggestion that the defendant, Clark, makes here that would seem to work against him ; that is, that he had in his mind the knowledge that they had agreed to take $23,000. It does not matter, as I suggested before, if they had been willing to take ten, if he undertook to play false to them, and to get it down a dollar, then he no longer was entitled to his commission; and if he attempted to get it down again to $28,000 in behalf of Dr. Bingaman, he would forfeit his commission. But he says that he did not do that; and only suggests this as showing that he was working for them to get them the highest price, and that'whilst he allowed the property to be bid up slowly, that everybody knew that he was there to bid the $25,000, and that they were at perfect liberty to bid it up on him, and that it was really simply a consummation of the understanding that was had beforehand, that Dr. Bingaman was to get this property at $25,000, and it is admitted that he did get it..</p> <p>[Now, if Clark acted in good faith, and this result came about as it admittedly did, then he would be entitled to his commission. If he did not act in good faith, then the result would not control his right, but he would forfeit his commission. There is where the pinch of the case is, the question being whether you will credit him with $125, or will not credit him. Whatever you do, you will add interest to the balance that you find due the plaintiff from the time it should have been paid, and render a verdict for the entire amount. By the entire amount I of course mean the balance you find with interest.] [5]</p> <p>Verdict and judgment for plaintiff for $155.75. Defendant appealed.</p> <p>Errors assigned were (3-5) above instructions, quoting them.</p>

Appeal, No. 89, April T., 1902, by defendant, from judgment of C. P. No. 8, Allegheny Co., Feb. T., 1901, on verdict for plaintiff in case of Louis Amshel v. Nicholas Hosenfeld. Assumpsit on a promissory note. Before Evans, J. At the trial it was shown that the note in suit was one of a series of four notes between the same parties for |250 each payable in four, eight, twelve and sixteen months from June 21, 1900.

Appeal, No. 68, April T., 1902, by defendant, from order of C. P. No. 3, Allegheny Co. Aug. T., 1901, No. 329, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of Louis Amshel v. Nicholas Hosenfeld. Assumpsit on a promissory note. Rule for judgment for want of a sufficient affidavit of defense. The facts appear by the'report of Amshel v. Hosenfeld (No. 1), supra, and by the opinion of the Superior Court.

Appeal, No. 87, April T., 1902, by defendant, from order of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 490, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Carlisle & Finch Company v. Iron City Sand Company. Appeal from justice of the peace. Rule for judgment for want of a sufficient affidavit of defense. The material averments to plaintiff’s statement appear in the opinion of the Superior Court.

Appeal, No. 97, April T., 1902, by Harry E. Armstrong, from order of Q. S. Allegheny County, Sept. T., 1901, No. 48, on exceptions to report of commissioner in the matter of the Enumeration of the Inhabitants of Spring-dale Township. Exceptions to commissioner’s report. The following exceptions were filed to the commissioner’s report: 1.

<p>Limited partnership associations — Name of company — Contract—Act of June 2, 1874, P. L. 271.</p> <p>There is nothing in the Act of June 2, 1874, P. L. 271, requiring the word “ Limited ” to be used in the company’s name in a contract under a penalty of a forfeiture of the right to recover thereon.</p> <p>A departure from the strict style of a corporation will not avoid its contract if it substantially appears that the particular corporation was intended; and a latent ambiguity may under proper averments be explained by parol evidence in this as in other cases to show the intention.</p> <p>Insurance — Fire insurance — Proof of loss — Waiver.</p> <p>In an action upon a policy of fire insurance the question of the plaintiff’s being relieved from the duty of furnishing a proof of loss, or the waiver on the part of the defendant of the necessity for the furnishing of the same, does not arise, where it appears that the plaintiff did not avail himself of any alleged waiver, and voluntarily submitted proofs of loss which were the subject of correspondence between the parties.</p> <p>Insurance — Agent—Declarations—Evidence.</p> <p>Declarations of the agent of an insurance company as to matters coming from the company itself, are admissible to bind the company in an action upon a fire poliey.</p> <p>Appeals — Practice, C. P. — Insurance.</p> <p>On an appeal from a judgment on a verdict in favor of plaintiff in a suit on a fire insurance policy, the question whether the policy was not avoided by the stoppage of work in the factory insured for more than ten days, will not be considered by the ap pellate court, where the question was not raised in the court below in such a way as to require the appellate court to pass upon it as a question of law.</p> <p>Insurance — Fire insurance — Proofs of loss — Incumbrances.</p> <p>Where a policy of fire insurance requires that if fire occurs, the insured shall give immediate notice of loss in writing to the company, stating among other things “ all incumbrances” on the property, and the insured fails in his proof of loss to fill in a blank relating to incumbrances, and his attention is called to this failure, and this is unheeded, although a judgment had been entered which was a lien against the property, it is error for the court to leave it to the jury to determine whether it was the duty of the insured, under the circumstances, to furnish the information as to the judgment. Such a question is for the court.</p> <p>Practice, C. P, — Trial—Order of proof — Offer of testimony out of time— Discretion of court.</p> <p>Ordinarily an offer of testimony out of time is an appeal to the discretion of the court, and it is only in extreme cases that the appellate court will interfere in any way with the exercise of such discretion.</p>

Appeal, No. 225, Oct. T., 1901, by defendant, from order of C. P. No. 2, Phila. Co., making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Galena Mining & Smelting Company v. W. W. Frazier. Assumpsit to recover $250, assessment on shares of stock.

Appeal, No. 84, April T., 1902, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1900, No. 703, on verdict for plaintiff in case of Thomas Mc-Caffrey v. David Page. Assumpsit by real estate agent to recover commissions on sale of real estate. Before Evans, J. From the record it appeared that plaintiff, a real estate agent, claimed to recover $280 from defendant as commissions for the sale of said real estate on Liberty avenue, Pittsburg, to Victor Halter.

Appeal, No. 44, April T., 1902, by David K. Clever, from various orders of Q. S. Allegheny Co., Sept. T., 1899, No. 1, in In re Petition for a Public Road in Stowe Township. Petition by taxpayers for a rereview of a public road. Errors assigned were as follows : 1.

Appeal, No. 108, April T., 1902; by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1900, No. 848, on verdict for defendants in case of Charles B. Linderman v. Mary McKenna and Ann Eliza Pit-field. Assumpsit to recover commissions for the sale of real estate. Before Stowe, P. J. The facts appear by the opinion of the Superior Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 25, Jan. T., 1903, by Andrew Cbuya, from order of Q. S. Luzerne Co., License Court, 1902, No. 1291, refusing a liquor license in the matter of application of Andrew Cbuya. Application for a liquor license.

Appeal, No. 48, April T., 1902, by-James Knight and Jesse M. Rush, executors of David Knight, deceased, from decree of O. C. Greene Co., Jan. T., 1899, No. 48, dismissing exceptions to auditor’s report in estate of David Knight, deceased. Exception to report of Joseph Patton, Esq., auditor. The facts appear by the opinion of the Superior Court. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Criminal law — Indictment— Grand jury — Preliminary hearing — District attorney.</p> <p>In the absence of some pressing and adequate necessity it is improper for the district attorney to send an indictment before the grand jury without a preliminary hearing, or the sanction of the court.</p> <p>Where the indictment is sent up by the district attorney without first obtaining the leave of the court, the discretion of the court may be invoked, and is exercisable upon a motion to quash. If the court refuses to quash, this, ordinarily, is equivalent to giving its sanction. If the court sustains the motion to quash, this is tantamount to refusing its approval of the action of the district attorney. In either case the action of the court is not revievvable on appeal, except for manifest and flagrant abuse of discretion.</p>

Appeal, No. 5, April T., 1902, by defendant, from order of C. P. Washington Co., Nov. T., 1900, No. 73, refusing motion to permit jury to view the land in case of John A. Frazee v. Manufacturers Light & Heat Company. Appeal from award of jury of view.

Appeal, No. 93, April T., 1902, by defendant, from judgment of C. P. Washington Co., Aug. T., 1901, No. 24, on verdict for plaintiff in case of Charles H. Trussell v. Western Pennsylvania Gas Company. Appeal from report of jury of view. At the- trial it appeared that the proceeding was instituted to recover damages for the alleged depreciation in value of a farm by the location of a pipe line across it.

<p>Appeal, No. 59, April T., 1902, by John Niebel, from decree of O. C. Allegheny Co., Sept. T., 1900, No. 182, dismissing exceptions to adjudication in Estate of Rosanna Hoerr, Deceased.</p> <p>Exceptions to adjudication. Hawkins, P. J., filed the following opinion:</p> <p>The question involved in this matter is whether or not, after the lapse of twenty-eight years, profit realized on sale of real estate under a written stipulation may be recovered.</p> <p>The facts are these :</p> <p>Philip Hoerr deeded to his brother-in-law, John Niebel, certain property in Pittsburg, Sidney street, in 1873, in consideration of $5,200, which Niebel reconveyed to Hoerr in 1876, the consideration named in the deed being $3,355.89; but in a paper of even date Hoerr stipulated as follows :</p> <p>“ Whereas, John Niebel reconveyed to me the house and lot situate on the south side of Sidney street, and fully described in deed from Philip Hoerr et ux. to John Niebel, recorded in deed book, vol. 325, page 41, for the payment of $3,355.89, due to me on mortgage which I hold against him on said property.</p> <p>“Now, I hereby promise that in case I should, at any time sell said property for more than the said sum of $3,355.89,1 will pay the surplus to the said John Niebel, or his assigns.</p> <p>“And I further promise that should said John Niebel find a suitable purchaser, I will, at any time, convey the property to said purchaser, on payment to me of the said sum of $3,855.89; provided, however, that he shall not ask or demand possession of the same until the first day of April next following the day of such conveyance.</p> <p>“Witness my hand and seal this 27th day of March, A. D. 1876.</p> <p>“ Philip Hoebe. [Seal.]</p> <p>“ Attest: Chas. F. Hoerr.”</p> <p>Hoerr died, August, 1899, leaving a will in which this property was devised to his wife, who afterward died intestate, and the proceeds of a sale in partition amongst her next of kin, amounting to $4,500, having been brought here for distribution, Niebel presents claim for the surplusage under Hoerr’s stipulation. The evidence shows that from 1876 until tire sale in partition, Hoerr and his family occupied the premises, and that presumptively with the knowledge of, but without, so far as appears, consulting Niebel, he made improvements amounting in value to $1,100.</p> <p>Objection is made to the allowance of this claim upon the ground, (1) that the undertaking of Philip Hoerr is without consideration, and (2) that if Niebel ever had any just claim he is barred, both both by laches and estoppel.</p> <p>OPINION.</p> <p>1. It seems clear that the first objection to Niebel’s claim is not well taken. The undertaking by Hoerr being under seal, imparted a consideration ; its date and its contents implied that it constituted part of the contract of reconveyance; and the deeds of 1873 and 1876 show a falling off of consideration, of which this paper furnishes the only explanation. The reconveyance probably grew out of the inability of Niebel to make the deferred payment of purchase money ($3,200), and Hoerr’s undertaking was a method adopted of reimbursing Niebel the cash payment which he had made.</p> <p>2. Nor is the objection of laches well taken ; Hoerr’s undertaking being part of the res gestee, and therefore in the channel of title was as effectual to preserve the lien as if the form of ground rent had been adopted instead. The period of time in which the sale might be made and the excess claimed, was by the very terms of the undertaking unlimited in duration: “ I hereby promise (Mr. Hoerr stipulated) that in case I should, at any time, sell said property for more than the said sum of $3,355.89, I will pay the surplus over to the said John Niebel, or his assigns.” The claim is not an equity staled by lapse of time, but an equity based upon an express promise, whose terms have admittedly never been fulfilled. No explanation has been given why the property was not sold sooner. It may be that the value which was placed upon it by one or the other of these parties was too high to tempt buyers, and certainly the public sale showed a marked depreciation. It is attributed to Niebel as evidence of laches that he procured no purchaser; if this be true, it is equally so of Hoerr, whose undertaking imposed upon him the exercise of the utmost good faith, and it was more his than Niebel’s duty to account for the delay. Hoerr assumed the burthen of the promise, while Niebel was named as beneficiary.</p> <p>3. The conduct of Niebel was not such as to mislead Hoerr to his injury, and could, therefore, work no estoppel. Hoerr’s undertaking was, as has been seen, based on a valuable consideration, and its faithful fulfillment must be presumed to have been intended. Having made improvements on the property without consulting Niebel, he did it at his own risk. The mere fact that Niebel saw them being made would not estop him ; his acquiescence did not mislead, and there is no evidence that Hoerr even knew he had seen them.</p> <p>But the fact is that the improvements were made, and ad* mittedly added their value to the price realized at the sale; and the pivotal question is whether or not credit should be given for them; if so, there is no surplusage on which the claim can fasten. It is maximatie that he Avho comes into court asking, must first do equity. Thus where the true owner, having recovered possession, files a bill for an account of rents and profits, it is the constant habit of courts of equity to allow the defendant credit for the full amount of improvements beneficial to the estate. So if the true owner who has only equitable title to an estate seeks the aid of a court of equity, aid avüI be given only upon terms of making compensation for such improvements : Thomas v. Evans, 26 Cent. Law Jour. 77 and n. So allowance will be made a tenant in common in partition for betterments to part of the estate: Kelsey’s App., 113 Pa. 119. The principles of those cases rule this. Coming into court asking aid, Niebel must concede that measure of equity and justice which he asks. The improvements made were in no sense prejudicial to him; they were made with means in which he had no part, and contributed proportionably to increase the price for which the property sold. It follows that Hoerr’s estate is entitled to credit for them.</p> <p>Error assigned was decree dismissing exceptions.</p>

Appeal, No. 125, April T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., Deo. T., 1901, No. 499, on verdict for plaintiff in case of J. H. Bailey v. W. E. Gibson. Assumpsit to recover the balance of purchase money for oil land. . Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 129, April T., 1902, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1900, No. 460, on verdict for plaintiff in case of D. T. Herlehy to use of Sullivan Johnson et al. v. S. W. Shrader and John Shrader.</p> <p>Assumpsit on a bond.</p> <p>Verdict and judgment for plaintiff for $448.54. Defendant appealed.</p> <p>Errors assigned were portions of the charge.</p>

Appeal, No. 130, April T., 1902, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1901, No. 270, opening judgment in case of J. B. Hill & Sons v. Mary A. Garrison and Foster Garrison. Rule to open judgment. The facts appear by the opinion of the Superior Court.

Appeal, No. 137, April T., 1902, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1900, No. 146, on verdict for plaintiff in case of Ada Z. Boyles v. Monongahela Street Railway Company. Trespass to recover damages for personal injuries. Before Evans, J. The circumstances of the 'accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,500. Defendant appealed.

<p>Criminal law — Evidence-Record—Answer to points.</p> <p>Where on an appeal in a criminal ease the evidence given at the trial has not been certified, the appellate court cannot determine the correctness of answers to points relating to the evidence.</p> <p>Criminal law — Embezzlement—Attorney at law.</p> <p>In Pennsylvania the profession of attorney at law includes much more than the mere management of the prosecution and the defeuse of litigated cases. Unquestionably the professional relation of attorney and client may be established as to the investment of money. Where this relation exists and by virtue of it money is entrusted to the attorney to be paid to a borrower, or otherwise invested, upon satisfactory security being given, he holds it for safe custody pending the consummation of the loan or other investment. This is as much a part of his duty as attorney as in the exercise of his judgment upon the 'legal sufficiency of the security offered. If in the mean time he fraudulently converts the money to his own use, he is guilty of embezzlement as attorney within the true spirit and intent, as well as the letter of the act of 1860.</p> <p>Criminal law — Sentence to county workhouse- County jail — Acts of March 31,1860, sec. 75, P. L. 410, and June 26, 1895, P. L. 374.</p> <p>The Act of June 26,1895, P. L. 374, is a literal re-enactment of section 75 of the act of March 31, 1860, with a clause added by'way of amendment providing that convicts in county jails may be required to perform such labor about the county buildings and upon the grounds and property of the county as the commissioners may specify. The amendment relates solely to the treatment of convicts in county jails and cannot be held to repeal by implication laws which authorized the court of quarter sessions of Allegheny county to sentence to imprisonment in the county workhouse.</p>

<p>Appeal, No. 27, Oct. T., 1901, by-Madge Kessler, from decree of O. C. Pbila. Co., Jan. T., 1890, No. 846, dismissing exceptions to adjudication in estate of John Simon, deceased.</p> <p>Exceptions to adjudication.</p> <p>Ashman, J., filed an adjudication, the material portions of which are as follows :</p> <p>After a gift of his estate real and personal to his wife, Sarah Simon, for life, or during widowhood, the testator gave one seventh thereof to each of his children, William, Rebecca, Emma and John absolutely; one seventh to his executors in trust to pay the net income to his daughter Julia for life, and at her death the principal to testator’s grandchildren in equal shares, subject to the payment of $200 for the admission of his said daughter, if she should desire it, to the Methodist Home, and to the payment of her funeral expenses; one seventh to his executors in trust to pay the net income to his daughter, Eliza, for life, and the principal at her death to her children and issue per stirpes of her deceased children equally; and of the remaining one seventh he gave one third to his granddaughter, Minnie Griffith, absolutely, and two thirds to such of his six children who should then be living, and the issue per stirpes as should be dead, in equal shares; the shares of his daughters, Julia Ann and Eliza, to be held upon the same trusts as their original portions. He provided that if his daughter Rebecca should die possessed of the whole or any part of the share so devised and bequeathed to her, then the same should be held by his executors in trust to pay the net income to her husband for life, and the principal to testator’s grandchildren then living, giving power, however, to his daughter to dispose of her estate in any other way than by will. He gave full power to his executors to sell his real estate.</p> <p>By codicil he provided that, if his son John should die seized of the whole or any part of his share, the said share should go to his said son’s children and issue per stirpes, and, in' default of issue, to his executors in trust to pay the net income of said share to his said son’s wife for life, and the principal at her death to testator’s grandchildren then living, but with full power to his said son to alien his said share. The testator died March 30, 1884.</p> <p>Sarah Simon, the widow and life tenant, died February 9, 1898.</p> <p>The present account is of the amount derived from sales of real estate and awarded by adjudication of the executor's account, to wit: $11,966.45.</p> <p>' William Simon and Sarah Simon, the executors and trustees named in the will, were dismissed in December, 1892, and the Commonwealth Title Insurance and Trust Company was appointed administrator d. b. n. c. t. a. on May 12, 1893. The balance in cash and securities is $9,604.98; income account shows amount due accountant on income account, $61.90; there has been received since filing, $275.98; balance due estate, $214.08.</p> <p>• # * * * * * * *</p> <p>The share of John Simon, a son, was assigned by mesne conveyances to Madge Kessler.</p> <p># i;; #■&***</p> <p>Madge Kessler claimed the interest of John Simon, a son of testator, in the estate, by sundry conveyances, to wit: deed dated October 24, 1888, by John Simon and wife to Julia A. Britton, for one seventh and one sixth of two thirds of one seventh of the estate; deed dated November 24, 1896, from Julia A. Britton to Edward Kessler for the same premises ; deed dated April 15, 1897, from Edward Kessler and Madge Kessler, his wife, to Nicholas J. Fitzgerald, for the same, and deed dated April 15, 1897, from Nicholas J. Fitzgerald to Madge Kessler.</p> <p>It was objected that Julia A. Britton was a married woman, and that her separate deed is void. Charles Britton, her husband, was examined, and admitted that he had not lived with her for nearly thirty years. He alleged desertion on her part. Certificate of the court of common pleas ( C. P. No. 1, December term, 1898, No. 820) was produced, declaring Julia A. Brit-ton a feme sole trader, the petition alleging desertion by the husband for over twenty years. It is not necessary, however, to discuss the validity of the deed, under the findings of fact which the auditing judge thinks are justly deduciblé from the evidence. John Simon, a son of the testator, was a farmer in a small way, who worked a farm which he leased from Charles Waters. In 1888, according to his statement, his rent was considerably in arrears and a levy had been made by his landlord on the stock and other personal property. Thereupon, in the summer of that year, he made a bill of sale of his effects to his sister, Julia A. Britton, and she engaged with the agent of the lessor to pay the rent in his stead. In November, 1)589, she sold the property at public sale, realizing therefrom $1,381.54. She paid to Mr. Shallcross, the agent, $945, as rent, but nothing to John Simon. In October, 1888, Mrs. Britton, when on a visit to Simon, was asked by him if she would consent to hold his interest in the testator’s estate in trust for the benefit of his wife and children and to protect them from loss if he should go into business and fail. He seems to have been moved to this anxiety and to the necessity for some such action by the provision in the codicil of the father’s will that in case of his death without leaving issue his share would ultimately go to testator’s grandchildren, unless he should himself alienate his share. This seems to be shown by the form of his question to Mrs. Britton: “If she could take my interest in the estate and hold it in case anything should happen to me, for the benefit of my wife and children, so that they could get what was coming to me, as father wished by his will.” That this belief was encouraged and was used by Mrs. Britton for her benefit and as a means of misleading him, is evidenced by her answer to Mrs. Simon. The latter asked her: “ What does it mean? Is it really a legal form?” and she replied: “Oh, no! merely a form, that is all; nothing legal in it. It was a form which had no effect. Certainly you will get it all back.. This will make you all right if anything should happen to John.” As a result of this request, a deed was prepared by Andrew J. Maloney, Esq., and was executed in his office by John Simon, and subsequently by his wife, conveying John Simon’s interest to Mrs. Britton. The execution of the paper was marked, if the testimony of the witnesses was true, by some peculiar incidents. A check of a Mr. Bender, for $1,000, being the amount of the consideration named in the deed, was handed by a Mr. Dickinson to Simon, and this check, immediately after the parties left Mr. Maloney’s office, was snatched from the hands of Mr. Simon by Mrs. Britton, who exclaimed, “ That is the way we fixed up Aunt Eliza.” When Simon was asked by counsel, “What did you say to that?” he replied, “ Nothing at all; I thought it was merely a form.” Mr. Bender was put on the stand and testified that in 1888 he was twenty-three years of age; that he did not draw the check; and did not have $1,000 in bank. The wife of Simon testified that the purpose of the conveyance was what her husband had described, and she added that she desired her uncle or father as trustee, to which, however, Mrs. Britton would not listen. Mrs. Britton accompanied her to the office where she joined in her husband’s deed, and told her the transfer was a pure matter of form. When, some eight years after-wards, her husband had been advised by counsel that he had been swindled, Mrs. Simon called on Julia Britton, and, in answer to the inquiry whether she intended to restore the property, the latter replied, “ It just depends on how John acts.” Mr. Dickinson, with whom Julia Britton lived, and who advised and assisted her in these transactions, testified that,''at the time of the execution and delivery of the deed, Mrs. Brit-ton paid to Simon $50.00 and handed back to him a judgment-note for $950 previously drawn by him in her favor. He was unable to say whether this note had not been given in order to secure the payee against the rents which she had assumed, and for whicli she had taken a bill of sale. The existence of the note was not hinted at by any other party except Mrs. Britton, and it was not mentioned by the witness in his examination in chief. The counsel who prepared the deed and witnessed its execution declared that the consideration, $1,000, actually passed between the parties, but in what shape, as in cash or the equivalent of cash, he had entirely forgotten. It was shown that in her lifetime the wife of testator had come into possession of some $7,000 as her separate estate, and had divided it equally among her seven children, but had entrusted the share of John Simon to Julia Britton, who admitted to her sister that it had been so given her that she might with it pay John’s debts.. According to Mr. Dickinson, $700 of this money was so used to his knowledge. With the single statement of Dickinson to the contrary, every item of the foregoing evidence points to the theory that John Simon intended to constitute his sister a mere trustee, with no beneficial interest in herself whatever. The form of the conveyance which he employed is, in a court of equity, immaterial, because equity will so mold the instrument as to accomplish the purpose which was contemplated by the contracting parties. He was a farmer, and apparently unused to business, and was dealing with persons who were unquestionably shrewd. It is unfortunate that Mrs. Britton, who could have cleared up what remains concealed in the case, was not produced as a witness. It was as vital to her side, if its allegations were truthful, that she should give her version of the facts as it was to that of the contestant. The excuse assigned for her nonappearance was 'that she was sick; but the physicians who testified as to her condition differed essentially in their opinions, and one of them declared that he believed she was shamming. Her deposition, taken in October, 1898, was submitted in which she said that the note of John Simon for $950, turned over by her as part of the consideration for his conveyance, was for the payment of his rent and debts, which she had assumed for him, and these rents, she said, amounted to $875. She declared that the moneys so paid by her had been advanced to her by Dickinson.</p> <p>The case then stands in this fashion: John Simon parted with his possession of an interest worth probably $12,000 in his father’s estate for a consideration expressed to be of $1,000, but which was in reality nothing. Under the bill of sale, which he had executed to his sister before the deed which is now in question, Mrs. Britton had realized $1,331. The rent, which her receipt and the testimony of Mr. Shallcross, the agent of the landlord, showed she had paid, amounted only to $945. This left in her hands $385 belonging to her brother. Mr. Dickinson admitted that she made up the $1,000 eonsideration named in the deed by $50.00 cash and her brother’s judgment note for $950, which she relinquished to him. This note, if it existed at all, was either collateral to the bill of sale spoken of by John Simon, or it was mistaken by him for a bill of sale. Its very existence was apparently unknown to everybody but Mr. Dickinson and Mrs. Britton, and it came to Dickinson’s memory as an afterthought. But Mrs. Britton had previously received (a fact which Dickinson himself related), $1,000 from the mother with which to settle the debts of her brother John; and the only proof that she had expended any of the money for that purpose came from Dickinson in the shape of a loose statement that he had himself paid out, at her direction, to John’s creditors, $700, to whom, however, he did not see fit to mention. The relief now sought is not against an unconscionable bargain. Grossly improvident as the sale of an interest worth $12,000 for $1,000, supposing that sum to have been paid, would undoubtedly be, it would be merely evidence of fraud, which, standing by itself, would not be ground for rescinding the bargain: Davidson v. Little, 22 Pa. 245.</p> <p>The relief is asked for on a totally different ground — that a sale was not intended, and that no consideration whatever passed from the trustee to whom the title was transferred. The silence of the grantor during the years which followed the execution of the deed is entirely consistent with the circumstances. There was no occasion for action on his part. He was entitled to no income during the life of his mother, and he believed that the property was safe in the custody of his sister, whose business qualifications he respected, just as his mother did before him.</p> <p>The conclusion of the auditing judge is that the deed was fraudulently procured by Mrs. Britton, and that there was a resulting trust in favor of the grantor. But the title of a purchaser for value from Mrs. Britton, unaffected with notice of the fraud, would be bound to be respected. It is a significant incident that the deed to Kessler was executed almost immediately after a demand from counsel that she should restore the property to John Simon. The letter of the attorney making this demand was written on November 16, 1896, and the deed to Kessler was dated November 24, 1896. Mrs. Britton was then living with Dickinson, and had lived with him for many years previously. Her husband, Charles Britton, was examined at the audit, and testified that she had deserted him thirty years ago, and had remained apart from him ever since. It is worthy of notice that in the deed to Kessler it was recited that “ Charles R. Britton had departed this life in 1889.” Mrs. Britton admitted that the deed was prepared at her instance, and that it was read over to her, but that she had not noticed that recital. She also said, contradicting the evidence of Kessler, whose testimony was that she told him that she desired to avoid the importunities of Simon, that she had sold to Kessler “ simply because Mr. Dickinson wanted to be repaid his money.” Kessler, the grantee, was a son-in-law of Dickinson, and with his wife, Madge Kessler, also lived with him. He testified that he was importuned by Mrs. Britton to buy the share because, as she said, she was annoyed by John Simon; that he was advised by Dickinson and by Dickinson’s counsel to buy ; and that he paid $500 in cash and $500 in a note. On the day of the purchase, he and his wife united in a deed of the . premises to a third party, by whom they were conveyed back to the wife. Every effort was made by the contestants to secure the attendance of Mrs. Madge Kessler at the hearing, and there is no doubt whatever in the mind of the auditing judge, from, the admissions of Kessler himself, which need not be rehearsed, that she was purposely secreted by him in Reading, Pa. At the audit he refused to give her residence. So far from as-. sisting to let in the light upon a transaction in which he and his wife were deeply interested, he did what he could to obscure it. The auditing judge, sitting as a juror, finds that he acted in the matter as an ally of Dickinson. Throughout the occurrences which have been detailed, and those which related to the transfer of another interest hereafter to be noted, the hand of Dickinson was constantly to be seen; and he was the one witness upon whom Mrs. Britton and Mrs. Kessler mainly depended. Kessler and his wife knew that the husband of Mrs. Britton was living, and they accepted Mrs. Britton’s deed without his joinder. It is hard to believe that Mrs. Britton would be willing to sell at the same price a property which she had bought at one twelfth of its real value; but there was at the same time every reason why she should place the nominal title in a third person whom she could control. Mr. Dickinson, who engineered the deed of conveyance from Simon, very appropriately officiated in the conveyance to Kessler, and in his hands both deeds were part of one and the same conspiracy. That Kessler paid any consideration for the conveyance rested on his naked word; he did not produce the check, nor the note, and he did not account for their nonproduction, and he kept his wife back from the witness stand.</p> <p>The Act of April 22, 1856, P. L. 533, which was said by Agnew, J., in Seichrist’s Appeal, 66 Pa. 237, to have torn up parol trusts “ by the roots,"’ expressly exempts from its operation conveyances of land by which a trust or confidence may arise by implication of law. To adapt the language of the judge to this case, it is not the verbal promise of Mrs. Britton to hold the share in trust which governs, but the fact that she obtained the deed by fraud. A trust ex maleficio is only possible of proof in most instances by parol testimony, and if the act forbidding parol trusts can apply to a trust like the present, it will itself become the instrument of fraud: Church v. Ruland, 64 Pa. 432. The 6th section of the act limits the bringing of actions to enforce an implied trust to a period of five years after the trust accrued with the right of entry, but the proviso declares that the limitation shall run only from the discovery of the fraud. In this case there was nothing whatever to set the grantor in pursuit of a'fraud until his accidental interview with counsel; his mother was still in being, and his estate did not vest in possession until her death. The facts are wholly dissimilar from those in Christy v. Sill, 95 Pa. 380, and Barry v. Hill, 166 Pa. 344, etc. In the former of these cases, the plaintiff had notice of the fraud twelve years before he instituted suit, and in the latter the evidence was insufficient to establish a trust.</p> <p>If the claim of Madge Kessler shall be considered as an application to compel specific performance, on the ground that the deed of Simon was in fact an agreement to convey to the grantee his share when awarded (see Carr v. Williams, 10 Ohio, 305, and Munds v. Cassidey, 98 N. Car. 558, where deeds in terms absolute were held to be mere agreements to transfer), the result will be equally adverse to the claimant. Fraud having been shown, the court will not permit the party who perpetrated it to profit. The defendant who resists the application for specific performance, is in the same attitude as if he sought for the rescission of the contract; and in each instance the heavier burden is on the plaintiff. That the court might not rescind the bargain, however, is no reason why it shall not refuse to order its performance. “ Though inadequacy of price is not a ground for decreeing an agreement to be delivered .up or a sale rescinded unless its grossness amounts to fraud, yet it may be sufficient for the court to refuse to enforce performance. It is not uncommon to refuse to enforce for inadequacy and at the same time to refuse to rescind: ” Osgood v. Franklin, 2 Johns. Ch. 23.</p> <p>The claim of Madge Kessler is rejected, and the share in question is awarded to John Simon. The balance, $385, which appears to have been retained by Mrs. Britton, and perhaps a large portion of the $1,000, which had been entrusted to her by the mother for John’s benefit, were probably disposed of in the payment of Simon’s rent which accrued after the date of the bill of sale or judgment note. Mr. Shallcross fixed the arrears of rent to June 15, 1888, at $825. John Simon, however, continued on the premises a year longer and paid no rent himself; but the rent, Mr. Shallcross testified, was fully paid up to January 1, 1890. No receipts for such payment were produced by Mrs. Britton, those presented by her, although dated in 1889, being for rent due in October, 1888. Her counsel claimed that she was entitled to a credit of $585, that amount of goods having been bought at the sale of John’s effects at the farm and turned over to John. The auctioneer declared that Wm. Simon bought them for John’s use. Whether all of the moneys received by Mrs. Britton on her brother's account were actually disbursed by her on his account is in doubt, but the calculation need not be gone into further. **-»****-•*</p> <p>And now, July 19, 1899, the account is confirmed nisi.</p> <p>On exceptions, Penrose, J., filed an opinion, the material portions of which are as follows:</p> <p>We are not convinced, however, that the evidence justified the setting aside of the deed of October 24, 1888, of John Simon and wife and of the deed of December 21,1888, by Rebecca Slack and her husband, to Julia Britton, for the shares, respectively, of the grantors in the estate of their father, the testator. These deeds were duly executed and acknowledged at or about the time of their dates, and appear to have been at once put upon record. They were, it is true, of interests taking effect at the termination of an existing life estate, but the interests were absolutely vested, and subject to no contingency whatever. Such a conveyance in no respect resembles an assignment of a mere expectanejr, as in Lennig’s Appeal, 182 Pa. 485, as to which, as there is no present ownership at the time of the assignment, the latter is treated merely as a contract to convey, if the assignor ever becomes entitled, and subject, therefore, to all the principles which control courts of equity in proceedings to enforce specific performance, with regard to actual and adequate consideration, etc.</p> <p>So far as appears, there was no attempt to impeach the validity of these deeds during the nine years that intervened between their execution and the hearing before the auditing judge, unless a note written in 1896 by counsel then representing John Simon, asking if Mrs. Britton would “ transfer the interest back ” to him, can be so regarded; but to this she promptly replied, by her counsel, A. J. Maloney, Esq., “ that she purchased the interest of John Simon outright, and holds a deed to that effect; that it was not a temporary arrangement, nor for the purpose of protecting against the creditors of Simon, but was an absolute sale,” and there the matter rested until the proceedings in 1899 before the auditing judge. John Simon admits that the conveyance was suggested by himself, his motive being, as he asserts, to protect his wife and children, “ in case anything should happen; ”in other words, as his.testimony discloses, to put it beyond the reach of existing or contemplated creditors. Such a conveyance, it need scarcely be said, though voidable by creditors defrauded by it, is perfectly good as between the parties, and the absence of consideration is wholly immaterial. On the other hand, it was denied on behalf of Mrs. Britton that the conveyance had any such purpose, and it was asserted .that the consideration was the assumption by her of debts of the vendor, followed by their subsequent payment, his judgment note to secure her for such assumption having been surrendered to him at the time of the conveyance.</p> <p>********</p> <p>But it is a fact not to be overlooked in the consideration of the exceptions, that Mrs. Britton, who is the sister of Mrs. Slack and John Simon, was not examined as a witness before the auditing judge, and naturally this led to an unfavorable inference, and created suspicion. Her absence, it is said, was caused by her illness, and an offer was made at a later period, after the testimony had closed and the questions involved had been decided by the auditing judge, to produce her as a witness, her health being then restored; but this was objected to, and the testimony was not taken. We think, under the circumstances surrounding the case, that the question as to the rights of the parties claiming under these deeds should not be decided until we are furnished with all the light that can be thrown upon the subjects involved. Kegularly a proceeding to set aside a deed or to establish a trust is by bill in equity, with the right on the part of the complainant to probe the conscience of the respondent and to avail himself of all admissions in the answer, and with the right of the latter to claim the benefit of a responsive answer. The proceedings in the present case were necessarily of the most informal character, without pleadings of any kind, and with nothing on the record to show that an attack was contemplated. We are not convinced that the absence of Mrs. Britton was with the design of avoiding examination, and not by reason of actual illness; and the distribution of the assigned shares will therefore be suspended until her testimony has been taken before an examiner and submitted to the court, with leave to the parties to apply for further or other order.</p> <p>The exceptions so far as they do not relate to these shares are dismissed, and the adjudication, modified with regard to the order striking out so much of the account as relates to the trust estate, is, except as above, confirmed absolutely.</p> <p>Subsequently the court made the following order:</p> <p>January 27, 1900. We think it preferable instead of appointing an examiner that additional testimony be taken before the auditing judge with the same effect as if upon a motion for a reargument.</p> <p>The adjudication is recommitted to the auditing judge, to enable the parties to produce additional testimony, or for a further consideration thereof by him as justice and equity may require.</p> <p>The supplemental adjudication was as follows:</p> <p>By direction of the court in banc this case came back to the auditing judge to take and pass upon the testimony of two witnesses, Julia A. Britton and Madge Kessler, both of them parties to the record, who were not present at the original hearing. John Simon, the son, had declared that Mrs. Britton had consented to hold his share of the decedent’s estate in trust for the benefit of his. wife and children and had prepared a deed which he executed, which, however, proved to be an absolute conveyance to Mrs. Britton. After the death of the testator’s widow, when the interest of the son vested in possession, his wife was told by Mrs. Britton that it would depend on John’s actions whether she would or would not reconvey the property. At the present hearing Mrs. Britton testified that in 1888 John Simon offered to sell his interest for $1,000, and that she bought it from him at that price by paying $50.00 in cash and giving back to him the judgment note which he had executed in her favor for rent which she had assumed for him, and which she afterwards paid in full by moneys which she borrowed from Mr. Dickinson. On November 1, 1889, John Simon was again in arrears for rent, $530, and through a bill of sale to Mrs. Brit-ton, a sale of his effects were made in her name, which realized $1,331.54. Out of this the rent of $530 was paid and goods amounting to $585 in value were bought for John, which, in connection with orders signed by him, consumed the whole sum. She denied that she had ever received from her mother $1,000 or any other amount with which to pay John’s debts, but asserted, on the contrary, that John had always been a burden to his mother and had persistently called upon her to relieve him from the effects of his improvidence, and had even forged her name to notes which she was compelled to pay.</p> <p>The auditing judge cannot find in this testimony any reason for changing the opinion which he expressed in the adjudication. Against the declaration of Mrs. Britton that John had offered to sell his interest is opposed the declarations of John and his wife that she had agreed to hold his interest in trust, and these in turn are supported by the inherent probabilities of the case. The allegation was that John had agreed to sell an interest worth $12,000 in consideration of the payment of his debt of $950 of rent money and $50.00 in cash; but, on the veiy day in which he made this offer, Mrs. Britton had already assumed this rent for him, so that all present fear on that score was removed and no occasion remained for a sale. There was, however, a strong incentive to declaring a trust for his wife and children. He had so read the will, the language of which, on this point,-was peculiar, as to believe that unless he aliened his share it would not be assured to his issue, and, according to his statement at the time of the conveyance, he desired to protect his wife and children in case anything should happen to him. He probably meant the happening of business reverses. The auditing judge denies that there was anything unlawful in this purpose. The grantor swore that his debts were all paid or secured, and they seem to have been. Certainly a solvent man may, without fraud upon future creditors, make a valid deed of trust by which he relinquishes all title to his property and passes it over in trust for his wife and children for their exclusive benefit. How could a subsequent creditor complain of fraud if, at the date of his credit to the debtor, he was confronted by the record of a deed of trust which showed that the debtor had already conveyed awajr his property ? That a trust was intended by the grantor was shown by his own testimonj'- as to the declarations of the grantee at the time of the execution of the deed, and by the testimony of his wife as to the declarations made afterwards by the grantee. It was also shown by the fact that he conveyed a $12,000 interest for practically no consideration whatever; a circumstance which is entirely reconcilable with the theorj'- of a trust for wife and children, and is entirely repugnant to the theory of a sale.</p> <p>The conveyances through which the title to the share was alleged to have passed to Madge Kessler were found by the adjudication to have been part of a scheme to defraud. The most emphatic proof that they were never intended to- divest the ownership of the property from Mrs. Britton was given by Mrs. Britton herself. At the hearing she was asked this question: “Because you gave him (John Simon) his judgment note and 150.00 in cash, you think you are now entitled to the one-seventh interest in his father’s estate belonging to John? ” and she replied, “Yes, sir; because he sold it to me for that. Q. You think you are entitled to one-seventh interest in this estate, do you? A. Yes, sir. I do indeed. Q. The one seventh belonging to John ? A. Yes, sir. Q. And that it is your property to-day ? A. Yes, sir.”</p> <p>The records of the common pleas, which were not submitted at the original audit, furnish a more solemn admission, and, in the opinion of the auditing judge, are in the nature, of a complete estoppel to Mrs. Britton’s denials of John Simon’s rights. The fund now for distribution is mainly composed of the proceeds of sale of decedent’s realty. In March, 1898, proceedings in partition were begun (C. P. No. 4, March term, 1893, No. 586) by Julia A. Britton v. John Simon, Rebecca Slack et al., reciting that ea ch party was entitled to an interest of one seventh. The master’s report found that the property was vested as alleged in the bill and awarded the purparts accordingly ; the parties accepted service of notice and severally declared that they would file no exceptions and that they approved of the same ; and the court, on October 17, 1893, confirmed the partition and decreed that the title to the purparts in severalty should vest in the respective parties to whom, by the report of the master, they had been allotted. Here, then, in October, 1893, some years after the conveyance to Mrs. Britton, was a judicial award by a master, which was approved in writing by Mrs. Britton, and confirmed by the court, and in which the title to one seventh of one of the purparts was found to be in John Simon. This record was in absolute harmony with the claim of John Simon that he had never sold his interest, and was a distinct confession by Mrs. Britton that she had never bought it. The auditing judge thinks that it concludes the case.</p> <p>*******</p> <p>The auditing judge thinks that the adjudication and decree as written should be confirmed. The filing of this readjudication was postponed at the request and on account of the' sickness of counsel.</p> <p>The court (Penrose, J., absent), entered a decree dismissing exceptions to the supplemental adjudication.</p> <p>Errors assigned were in dismissing exceptions to supplemental adjudication.</p>

<p>Appeal, No. 186, Oct. T., 1901, by defendants’, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1894, No. 1748, M. L. D., on verdict for plaintiff in case of City' of Philadelphia v. Richard Hey et a-1.</p> <p>Scire facias sur municipal lien.</p> <p>Motion for judgment on point reserved.</p> <p>Willson, J., filed the following opinion :</p> <p>These cases all grew out of the construction by the city of a sewer on Main street, from Schur’s lane to Ridge avenue. The contract for the construction of the sewer was made on August 19, 1898. That portion of it which was in front of the properties of the defendants Athow, Ball and the heirs of Righter, was finished on November 11,1893, and the part in front of the properties of the other defendants was finished on May 4, 1894. The assessment bills as to each of the properties was made on May 12, 1894, and the claims for the amount of the bill in each case were filed in this court on November 12,1894. The writs of scire facias on each were issued on November 11, 1899. The cases came to trial on October 2, 1900, and verdicts were directed for the plaintiff under the following agreement :</p> <p>“ And now, to wit: October 3, 1900, after the evidence had been submitted, the parties agreed that the court direct a verdict for the plaintiff in each of the twelve cases for the full amount of the claims with interest, subject to the opinion of the court upon the following reserved point :</p> <p>“ That the sewer was constructed on Main street in front of the properties of the defendants, Hannah Athow, Henry O. Ball et al., and heirs of Michael Righter, on November 11, 1893, and in front of the properties of the other defendants on May 4,1894, and the final completion of the sewer from Ridge avenue to Schur’s lane was on May 4, 1894. That the contract for the construction of the sewer was made August 19, 1893, and'it was designated as being on Main street, from Schur’s lane to Ridge avenue.</p> <p>“ That the assessments were made for the cost of the construction of the sewer on May 12, 1894. That the claims for the assessment were filed on November 12, 1894. The parties agree that the above facts were proven, and consent to the court reserving the point whether, under the facts above stated, the plaintiff is entitled to recover. The ordinances offered in evidence and the special acts of assembly, and the contract for the construction of the sewer to be a part of the reserved point. This agreement and reservation to apply to all of the cases as if made a part of the record of each.”</p> <p>If the law to be applied in determining whether or not the claims filed by the city are valid be that which is contained in the Act of April 16, 1845, P. L. 488, thén none of these claims can be regarded as of value, under Phila. to use v. Beatty, 9 Pa. Superior Ct. 255, for the reason that the claims were not filed within six months from the time of doing the work in front of the properties in question. If, however, the Act of July 26, 1897, P. L. 420, is applicable, then, certainly, they would seem to be good. The act of 1897 makes valid claims filed in the office of the prothonotary “within six months from the making or confirmation of any assessment .... whether said assessment shall shall have been made by foot-front rule or according to benefits.” It was provided, however, “ that assessments under the foot-front rule shall have been made or confirmed within six months after the completion of the work.” By the expression, “the completion of the work,” we understand is meant completion of the whole work covered by the contract, and not such portion of it as was in front of the individual properties. The effect of this, it is obvious, was intended to be that the time within which it is possible that the city can file a valid claim should be a year from the completion of an entire contract. That the act of 1897 is applicable to the city of Philadelphia in cases which fall within its proper application, can no longer be questioned, in view of the decision of the Supreme Court in Dick v. Philadelphia, 197 Pa. 467, a case which went up from this court.</p> <p>. It is, however, contended on the part of the defendants that the act just referred to should not be regarded as controlling the situation in these cases, for the reason that, if it were, it would be retroactive in its character and therefore invalid. It cannot, however, be contended that the legislature has no authority to enact statutes which would be applicable even to the case of liens, like those which are involved in the present controversy. Such cases as the City of Chester v. Black, 132 Pa. 568, and Donley v. City of Pittsburg, 147 Pa. 348, appear to settle, beyond the possibility of successful controversy, that legislation of that character is valid and constitutional. The act of 1897 provides: “ That all municipal claims, where the same are the final assessments made upon any property or properties to pay the costs, expenses or damages, or either of them, of any municipal improvements in any city, borough, township or other municipal division of the state, which have been heretofore, or which shall hereafter be filed in the office of the prothonotary of the court of common pleas in the proper county as liens,” if made according to the provisions of the law, “ shall be and continue to be and remain liens on the respective properties until fully paid and satisfied.” It was thus enacted that all such claims as were filed before the passage of the statute were within its provisions and were validated. Interpreting the act, we should say that it was not intended to carry its operation back indefinitely for the purpose of generally reviving liens which had lost their hold upon properties against which claims had been filed, but only to operate upon cases which were then alive, cases where the liens were still in existence under the definition and requirements contained in the terms of the statute. To give to the law any larger scope than this would be to work great injustice, and such a construction seems to us not to be necessary. In order to determine whether or not a claim or lien was alive at the time when the statute went into effect, it would be necessary to ascertain whether or not the assessment had been made or confirmed within six months from the completion of the entire work ; and, also, whether or not the claims had been filed within six months from the making or confirmation of such assessment; and, also, in our judgment, it would be necessary, in case a lien had been filed as long as five years before the passage of the act in question, that it should have been kept alive by the issuance of a writ of scire facias. In the cases which are before the court, however, the latter question would "not be of any moment. The assessments were made within eight days of the completion of the work, and the claims were filed within six months from the date of the assessment.</p> <p>All the requirements of the act of 1897 were, therefore, complied with, and notwithstanding the fact that, under the law as it existed previously to the passage of that act, the liens had expired and lost their vitality, we must, for the reasons stated, come to the conclusion that they were revived and made operative by the provisions of the act of 1897. It necessarily follows that a new trial in these cases must be refused, and judgments entered upon the verdicts in favor of the plaintiff.</p> <p>On reargument Willson, J., filed the following opinion :</p> <p>In the opinion previously filed (10 Pa. Dist. Rep. 187), the only, reason given for holding that the Act of July 26, 1897, P. L. 420, was applicable to these cases was that the Supreme Court had decided in Dick v. Philadelphia that the statute is operative in this city. In view, however, of the fact that that case, as finally reported (197 Pa. 467), expresses no opinion upon the subject, it becomes necessary for us to consider it as an original question. To aid us in so doing, we have had a reargument of the point.</p> <p>It is needless to say that our duty is simply to put a fair and reasonable construction upon the statute. No doubt, if it applies to the city of Philadelphia, it will introduce new methods and limitations of time affecting municipal claims, which will probably not be regarded as desirable by those who deal in, or lend money upon, real estate. Such considerations, however, cannot have any proper bearing upon the question, in case the only natural and reasonable interpretation of its provisions is such as will make the statute operative in all the municipalities of the commonwealth.</p> <p>After a careful examination of its terms, with somewhat of a disposition, it may be admitted,' to come to a different conclusion, we have reached the opinion that we must regard the statute as intended to apply to municipal claims of all kinds throughout the whole state. To hold otherwise, in our judgment, would twist the law out of its true meaning and bearings.</p> <p>It is argued, on behalf of the property owners, that the statute was only intended to apply to municipal districts other than cities of the first class, but we cannot adopt that view. When the legislature enacted that “ all municipal claims, when the same are the final assessments .... in any city, borough, township or other municipal division of the state,” should have a certain effect, it used the most comprehensive language possible to describe the territory intended to be covered. Such sweeping language leaves no room for excluding cities of the first class. But it is said, in argument, that the provisions of the act relative to assessments are not germane to any condition of affairs existing in this city, but are applicable only to cities and boroughs in which assessments are made, subject to a right on the part of the property owner to object to the same and to be heard before some tribunal upon his objec'tion. It is contended that, for this reason, the .statute should be limited in its application exclusively to. municipal divisions wherein such proceedings are provided for. The argument will not, however, stand the test of examination.</p> <p>In the first place, it should be noted that “ all municipal claims .... in any city, .... filed .... within six months from the making .... of any assessment,” are covered by the scope of the law. Such language cannot be regarded as inappropriate to describe an ordinary condition of affairs in respect of such claims in Philadelphia. On the contrary, it is very apt. No straining is needed to make it apply to actual conditions. Besides this, the application is made closer by the clause, showing that the legislature had in view assessments “ made by the foot-front rule or according to benefits.” The foot-front rule is the ordinary standard upon which municipal officers in this city make their assessments. It may be true, as argued, that the same rule exists in localities where the property owner has the right of objection or appeal, but that constitutes no reason why language of general operation should be limited to one class of cases, exclusive of another to which it is just as appropriate.</p> <p>Assessments are made in all municipalities, including cities of the first class. In some they are fixed and arbitrary; in others they are determined by standards of cost, value or benefits.</p> <p>In all cases, the statute seems to have been intended to give to such assessments, when final, an indefinite life, provided certain steps should be taken, which it is not necessary to enumerate. The intention, whatever it may have been, was embodied in a statute not only general in form, but made doubly so in effect by words that apparently leave no loophole through which any municipality can escape.</p> <p>Upon the grounds thus stated, we base the conclusion previously expressed, viz: that the act of 1897 is applicable to this city and to the cases in hand.</p> <p>With reference to the retroactive bearing of the statute, we desire only to add that legislation of that character is not necessarily beyond the power of the legislature : Grim v. Weissenberg School District, 57 Pa. 433. In matters of taxation, under which class most municipal claims are to be grouped, this is pre-eminently true. Whether the statute under discussion would be allowed to have a retroactive application in cases where a bona fide purchaser had acquired title to property after the lien had expired under previously existing laws, is a question which does not arise in the cases now before us. We should hesitate before adopting such a view.</p> <p>From what has been stated, it follows that the judgments heretofore entered in these cases must stand, and we so order.</p> <p>Error assigned was in entering judgment for plaintiff on the point reserved.</p>

<p>Constitutional law — Title of act — Blooming Grove Park Association— Act of March 28, 1871, P. L. 441 — Killing deer.</p> <p>The act of March 23, 1871, entitled “An act to incorporate the Blooming Grove Park Association,” is not unconstitutional as defective in title. The title of the act gives notice of the inténtion to maintain a park. The word “park” indicates a purpose to do those things which are included in the broadest definition of a “ park.” Adequate protection by expressed provisions preventing and punishing tortious and predatory acts, such as killing deer may reasonably be expected to form a part of the legislation providing for the maintenance of a “ park.”</p> <p>The original meaning of the word “park” in the law was a tract of enclosed land stocked with wild beasts of the chase, enjoyed by the owner through royal grant or by immemorial prescription. In this definition a “ park ” is distinguished from a “ chase ” by the fact that the latter is not enclosed.</p> <p>AVhere the constitutionality of a provision of a statute involves the meaning of a word, if any meaning whether popular or technical will sustain the exercise of the power, it is sufficient. If the strict and legal meaning has the effect of limiting or destroying while some other popular acceptation of the word will support the legislative act, the latter must be resorted to. The popular sense of a technical word, if it has a popular sense broader than the technical one must be adopted, if the effect be not to limit or restrain the general grant of power.</p> <p>All the presumptions are in favor of the constitutionality of statutes, and courts are not to be astute in finding or sustaining objections to them.</p> <p>Constitutional law — Bill of rights — Law of the land — Killing deer— Blooming Grove Park Association.</p> <p>Inasmuch as the provisions of the act of March 23, 1871, entitled “An act to incorporate the Blooming Grove Park Association,” enure to the advantage of the public in the protection of forests and game, a person may be summarily convicted of the predatory acts forbidden in sections 16 and 17 of the act. These sections are constitutional and within the sovereign and police power of the state.</p> <p>Justice of the peace — Summary conviction — Appeal—Certiorari.</p> <p>On an appeal from an order of the court of quarter sessions quashing a summary conviction before a justice of the peace, the Superior Court will reverse the judgment where there is sufficient in the transcript of the justice, the petition for appeal, the motion made to discharge, and the terms of the order of the court, to convict the court below of error in law.</p>

Appeal, No. 15, Feb. T., 1902, by plaintiff, from judgment of C. P. Sullivan Co., May T., 1899, No. 36, on verdict for plaintiff in case of Wheeler H. Plotts v. George D. Warburton and Julius Durkes. Replevin to recover timber.

Appeal, No. 19, Feb. T., 1902, by defendant, from judgment of Q. S. Sullivan Co., Feb. T., 1900, No. 7, on verdict of guilty in case of Commonwealth v. J. G. Scouton. Indictment for libel. Before Mitchell, P. J., specially presiding. At the trial defendant made the following motion: Now, February 26, 1901, counsel for defendant move the court to quash venire of jurors in this ease because the Christian and surname of the jurors are not stated as required by law.

Appeal, No. 4, Feb. T., 1902, by defendant, from judgment of C. P. Tioga Co., Sept. T., 1900, No. 246, on verdict for plaintiff in case of Silas N. Proctor v. Metropolitan Life Insurance Company. Assumpsit upon a policy of life insurance. Before Morrison, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $2,042.88. Defendant appealed. Error assigned among others was in submitting the case to the jury.

Appeal, No. 206, Oct. T, 1901, by-defendant, from judgment of Q. S. Blair Co., Oct. T., 1900, No. 13, on verdict of guilty in case of Commonwealth v. Leslie. Indictment for selling colored oleomargarine. Before Bell, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Error assigned was in directing verdict of guilty.

<p>Insurance — Mutual fire insurance — Assessments—Renewal of policy.</p> <p>Where the by-laws of a mutual fire insurance company provide that the insurance shall cease if an assessment is not paid within thirty days after demand, and it appears that after the expiration of thirty days from the demand upon a member for an assessment the policy of the member expired, and the company issued to him a renewal policy having the same number as the old policy, and practically covering the same property, but without having collected the assessment on the first policy, and thereafter certain of the property insured is destroyed by fire, the insured cannot, in an action to recover the assessment, set off the loss sustained by the fire.</p>

<p>Insurance — Fire insurance — Alienation of title — Cotenants.</p> <p>Where a policy of fire insurance provides that the policy shall become void if the title to the property is sold, transferred or changed, a purchase of the property by one of the devisees of the insured in partition proceedings is such a change of title as will avoid the policy.</p> <p>A policy of fire insurance was issued wherein it was recited that the insured “ obligated himself, his heirs, executors and administrators to pay all such ” assessments as might be made by the board of directors, and whereby the company promised and agreed “ to make good unto the said insured, his heirs, executors, administrators and assigns all such loss or damage not exceeding the sum insured,” as should happen by fire to the property insured between the date of the policy and the date when the policy should be annulled, and w.hich provided that “if the title to the hereby insured property be sold, transferred or changed, or if said property be levied upon or taken into possession or custody under any legal .proceeding, this policy shall forthwith cease and become void.” The bylaws provided that “ the sale of property insured by this company cancels the policy, and the purchaser must make application anew, if he desires insurance.” After the death of the insured one of his devisees purchased the whole properly insured at a sale in partition proceedings. Subsequently the property was destroyed by fire. Held, that there was sueh a change of title as to avoid the policy.</p>

<p>Appeal, No. 15, March T., 1902, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1900, No. 80, on verdict for plaintiff in case of A. Edward Rohrer v. City of Harrisburg.</p> <p>Trespass to recover damages for injuries to real estate. Before Simonton, P. J.</p> <p>At the trial it appeared that plaintiff claimed to recover damages for injuries to real estate by reason of the diversion of water on to it from Fifth street, Harrisburg.</p> <p>When Jacob Hummel was on the stand, the following offer was made:</p> <p>Mr. Hargest: We propose to prove by the witness on the stand that he was supervisor, as he has said, and that as supervisor and from his acquaintance with Fifth street, over what is now Fifth street in the city of Harrisburg, he maintained and kept open and knew of the existence of a gutter on the upper side of Fifth street up to the time it was brought into the city of Harrisburg; to be followed by proof that the gutter has been obliterated and the water thus carried in that way thrown upon the plaintiff; for the purpose of showing the turning of the water upon the plaintiff.</p> <p>Mr. Seitz: This is objected to, if the court please, for the reason that even though the supervisor of Susquehanna township may have constructed and maintained a gutter on the eastern side of Fifth street or the road that is now known as Fifth street,.for the purposes indicated in the offer, he did that merely as a voluntary or gratuitous act, and not because it was his official duty to do so under the law; therefore, it is irrelevant, incompetent and inadmissible.</p> <p>Mr. Hargest: We propose to show that as supervisor of the township he did it officially as supervisor, because otherwise he could not have carried off the water, and also to show that there was a gutter existing there.</p> <p>The Court: I do not suppose that we can determine the liabilities at this stage of the case ; we must get the facts first as I understand.</p> <p>Mr. Seitz : If the court please, I say there is no cause of action here so far as this point is concerned.</p> <p>The Court: We will have to hear the evidence at any rate before we can tell whether there is liability or not. Note an exception for the defendant. We must hear the evidence and determine whether it makes out a liability or not; we cannot decide it at this preliminary stage.</p> <p>“ Q. How long has it been there? A. Ever since I was supervisor. Q. When were you first supervisor ? ”</p> <p>Mr. Seitz : If the court please, I desire to know the purpose of asking the length of time this was constructed. If it is claimed that there is any right by prescription, I want an objection noted.</p> <p>Mr. Hargest: If we can show it far enough back.</p> <p>Mr. Seitz: That is objected to as being irrelevant, incompetent and inadmissible, no right of prescription can be set up against the public.</p> <p>The court: In order intelligently to pass upon the legal questions involved in this case, we must know the facts, and we will receive the evidence and determine afterwards whether it imputes a liability ; if it does not, we will so instruct the jury and if it does, we will leave the fact to be found by the jury. Exception noted for defendant. [2]</p> <p>Verdict and judgment for plaintiff for $550. Defendant appealed.</p> <p>Errors assigned among others were (1, 2) rulings on evidence, quoting the bill of exceptions. (3-7) Various instructions.</p>

<p>Partnership — Judgment note — Practice, C. P. — Evidence.</p> <p>Where a judgment, note has been signed with the firm name which does not disclose the individual names of the partners, the plaintiff may file a formal declaration against the partnership by its title, naming the individual members, and judgment may be thus confessed and entered by the prothonotary in this form.</p> <p>If one partner sign and seal a judgment note in the firm name, with the assent of the other, the latter is as much bound as if he had sealed it himself, and his assent can be proved by “ any of the usual modes of evidence.” His admission or acknowledgment, subsequently, is strong evidence.</p>

<p>Appeal, No. 280, Oct. T., 1901, by defendant, from decree of C. P. Blair Co., Equity Docket B., No. 372, on bill in equity in case of Orlando C. Galbraith v. Rush M. Rutter, defendant, and his assignee, W. W. Rogers’s Business Protective, Collection and Detective Agency and the Pennsylvania Railroad Company, Garnishee.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Deed — Boundaries—Marks upon Che ground.</p> <p>The courses and distances in a deed always give way to the boundaries found upon the ground or supplied by proof of their former existence when the marks or monuments are gone.</p> <p>Where a boundary line in a deed is described as being about a certain number of feet “ to the line of lot recently conveyed to C.,” and it appears that C.’s lot was fenced, and that the grantee understood that he was purchasing only to C.’s lot, the distance mentioned in the deed must give way to the boundaries found upon the ground.</p>

<p>Appeal, No. 75, April T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., September T., 1900, No. 104, on verdict for plaintiff in case of Barbara Clemens v. Metropolitan Life Insurance Company of New York.</p> <p>Assumpsit on a policy of life insurance. Before Collier, J.</p> <p>At the trial it appeared that tbe company claimed that the policy was void by reason of misrepresentations as to occupation and health. There was evidence that at the time of the application the insured was drawing sick benefits from the St. Aloysius Society of St. Michael’s Church.</p> <p>Defendant made the following offer:</p> <p>Defendant’s counsel now proposes to prove by the witness on the stand that he was a member of the committee that awarded the sick relief of this society; that he visited and paid the money to Mr. Clemens, the insured, prior, to the taking out of the policy, as sick benefits.</p> <p>Plaintiff’s counsel objects to the offer as incompetent, irrelevant and immaterial. The Court: Objection sustained and bill sealed for the plaintiff. [3]</p> <p>Defendant’s counsel proposes to prove by the witness on the stand, followed by other witnesses, that the insured, Andrew Clemens, was a member of the St. Aloysius Benevolent Society of the South Side, and during the year 1897, from February 9 up to and beyond the date of the policy in suit, he received sick benefits from said society at the rate of $20.00 per month. This is for the purpose of showing that the insured was not in sound health and that he was aware of the fact. Plaintiff’s counsel objected to the offer as incompetent, irrelevant and immaterial. The Court: Objection sustained; bill sealed for the defendant. [4]</p> <p>Defendant’s points were as follows :</p> <p>2. The insured, having stated in his application that his occupation was laborer in rolling mill, and he had no other occupation, if the jury believe from the evidence that he had not been able, on account of ill health, to follow his occupation for a considerable time before the date of his application and concealed the fact, that constituted a fraud upon the company, the policy thereupon became void, and the verdict should be for the defendant. Answer: Affirmed, if the jury believe that the deceased was in ill health at the time of his application. [1]</p> <p>4. If the jury believe from the evidence that the insured had been receiving sick benefits from the St. Aloysius Society for several months previous to the date of the application, as well as several months thereafter, and concealed that fact from the defendant, that would constitute a fraud upon the company, and the verdict should be for the defendant. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $532.08. Defendant appealed.</p> <p>Errors assigned were (1-2) above instructions, quoting them. (3, 4) Rulings on evidence, quoting the bill of exceptions.</p>

<p>Bond law — Change of grade — Approach to bridge — Bridge.</p> <p>The York county act of February 17, 1860, P. L. 61, “ relating to roads and bridges in York county,” applies only to the persons whose land has been taken, and affords no remedy for consequential injuries to land not taken, caused by the erection of an approach to a county bridge.</p> <p>Where proceedings have been instituted under the Act of May 16,1891, P. L. 75, for the assessment of damages for injuries to land caused by the construction of an approach to a county bridge, and the county commissioners successfully object to the proceedings, upon the ground that the act does not apply, and the landowner then proceeds by an action of trespass and secures a verdict and judgment in his favor after a trial on the merits, the county commissioners cannot object to the judgment on the ground that the plaintiff’s proper remedy was under the Act of May 16, 1891, P. L. 75.</p> <p>Where the erection of a structure in the highway results in the impairment of access to the premises and interference with light, the property owner is entitled to damages for the peculiar injury which he suffers, and it is immaterial that the impairment was a partial and not a total deprivation of access.</p> <p>As the approach to a bridge is part of a highway, it is not improper to speak of such a structure as. occasioning an “ elevation of the grade of the highway.”</p> <p>Where property is injured by the construction of an approach to a bridge in the highway, on which the property is situated, the measure of damages is the difference in the market value of the premises immediately before and immediately after the erection of the bridge as affected by its erection only.</p> <p>Boad law — Practice, C. P. — Taking jury to view the locus in quo.</p> <p>In an action against a county to recover damages for injuries to property by reason of the construction of a bridge, the trial court commits no error, in the exercise of a sound discretion, in permitting the jury to be taken to view the locus in quo.</p>

<p>Appeal, No. 54, April T., 1902, by defendant, front judgment of C. P. Washington Co., Feb. T., 1901, No. Gl, on verdict for plaintiff in case of J. L. May v. George T. Walker and C. M. Slater, trading as Walker & Slater.</p> <p>Assumpsit on a parol contract of guaranty. Before McIlvaine, P. J.</p> <p>At the trial it appeared that the plaintiff claimed to hold ' Walker & Slater, the defendants, liable on their parol contract to stand good for certain stone furnished by the plaintiff to T. J. Kelly, who was a subcontractor under the defendants, for a building which the defendants were constructing. The evidence relating to the parol contract is quoted in the opinion of the Superior Court.</p> <p>Defendants presented these points :</p> <p>2. The agreement relied upon by the plaintiff in this case was a collateral agreement to answer for the debt or default of T. J. Kelly, and not being in writing is void under the statute and cannot be enforced. The plaintiff, therefore, can only recover for material actually furnished to the firm of Walker & Slater, and not for the material furnished to or for T. J. Kelly. Answer: Refused pro forma, and the question of law raised by the point and as therein stated is reserved, with the right to enter judgment in favor of the defendant non obstante veredicto for that part of the plaintiff’s claim that covers the stone furnished to T. J. Kelly. [2]</p> <p>3. Under all the evidence in the case the plaintiff is only entitled to recover for the balance admitted to be due for material furnished to the defendants, and the verdict should be for said balance, to wit: $21.85. Answer: Refused, and the question of law whether there is any evidence in this case to support a verdict in favor of the plaintiff for the stone furnished to T. J. Kelly, the subcontractor of Walker & Slater, is reserved with the right to enter a judgment in favor of the defendant for this part of the plaintiff’s claim non obstante veredicto. [3]</p> <p>Verdict for plaintiff for $226.57, on which the court subsequently entered judgment. Defendants appealed.</p> <p>Error assigned among others was in entering judgment on the verdict.</p>

<p>Appeal, No. 53, April T., 1902, by defendant, from judgment of C. P. Washington Co., Feb. T., .1901, No. 60, on verdict for plaintiff in case of Charles H. Spriggs v. George T. Walker and C. M. Slater, trading as Walker & Slater.</p>

<p>Appeal, No. 31, April T., 1902, by C. F. Baxmyer, from order of Q. S. Allegheny Co., Sept. T., 1900, No. 11, sustaining exceptions to report of viewers in case of West Liberty and Knoxville borough.</p> <p>Exceptions to report of viewers.</p> <p>Errors assigned were (1) in sustaining exceptions. (2) In finding that the court of quarter sessions had not jurisdiction under the general road law of June 13,1836, to lay out a public highway wholly within the limits of the borough of West Liberty and the borough of Knoxville.</p>

<p>Appeal, No. 128, April T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1900, No. 146, on verdict for plaintiff in case of James Curran v. East Pittsburg Borough.</p> <p>Trespass to recover damages for injuries to land caused by the cutting off of a drain. Before Stowe, P. J.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $800. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 80, April T., 1902, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1900, No. 312, discharging rule to set aside summons in case of H. M. Lytle v. Adley C. M’Cune. Trespass to recover damages for slander. The facts appear by the opinion of the Superior Court. Error assigned was order refusing rule to set aside summons.

Appeal, No. 96, April T., 1902, by plaintiff, from order of Q. S. Allegheny Co., Sept. T., 1901, No. 641, refusing to remand an indictment to the grand jury in case of Commonwealth, James Terr}-, Special Agent of the Dairy & Food Commissioner, v. S. B. Charters. Indictment for illegally selling oleomargarine. Petition by James Terry to have an indictment remanded to grand jury.

<p>Appeal, No. 118, April T., 1902, by Mercantile Trust Company, Guardian, from order of C. P. No. 1, Allegheny Co., June T., 1901, No. 687, making absolute a rule for judgment, in case of Emma D. Hunter, Executrix of Robert C. Rowley, v. Firemen’s Relief and Benevolent Association of Pittsburg and Mercantile Trust Company, Guardian, Intervenor.</p> <p>Assumpsit to recover death benefits.</p> <p>Error assigned was in making absolute rule for judgment for plaintiff.</p>

Appeal, No. 22, April T., 1902, by defendant, from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1899, No. 528, on verdict for plaintiff in case of John Shaughnessy v. James Friend, M. A. Friend and the City of Pittsburg. Trespass to recover damages for personal injuries to a wife. Before McClung, J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiffs for $510. Defendant appealed. Error assigned was in submitting the case to the jury.

Appeal, No. 134, April T., 1902, by defendants, from judgment of C. P. No. 3, Allegheny Co., May T., 1899, No. 100, on verdict for plaintiff in case of David V. Ault and Etura K. Ault, his wife, against K. Cowan and Oscar G. Murray, Receivers of the Baltimore and Ohio Railroad Company and the Baltimore and Ohio Railroad Company. Trespass to recover damages for personal injuries.

<p>Railroads — Receivers—Negligence—Judgment.</p> <p>Where a railroad company and its receivers are jointly sued by a passenger for personal injuries sustained while the road is being operated by the receivers, and the railroad company has not been served, and does not appear, a judgment cannot be entered against it on a verdict in favor of the plaintiff.</p>

Appeal, No. 123, April T., 1902, by defendant, from order of Q. S. Indiana Co., June T., 1900, No. 25, affirming order of removal in case of Overseers of the Poor of Young Township District v. Overseers of the Poor District of Blacklick Township. Appeal for order of removal. The court, Harry White, P. J., found the facts to be as follows: The history of this case is very brief.

<p>Appeal, No. 98, April T., 1902, by defendant, from judgment of C.P. Westmoreland Co., Aug. T., 1900, No. 58, on verdict for plaintiff in case of Lydia Carnes and J. W. Gr. Carnes v. Farmers’ Fire Insurance Company.</p> <p>Assumpsit on a policy of fire insurance. Before McConnell, J.</p> <p>At the trial the defendant company claimed that there was a misstatement as to the ownership of the property, and that no proofs of loss were ever furnished. The facts relative to both of these defenses are stated in the opinion of the Superior Court.</p> <p>The trial court charged in part as follows :</p> <p>[There is where one point of conflict is between the defendant company and the plaintiff in this case. It is denied by the plaintiff that he made any representation whatever with respect to the title of this property, or that he was required to make any representations with respect to the title to this property. The agent says that he was given to understand — that he understood from Mr. Carnes that the title was in Mrs. Armstrong. I don’t know that he is very specific about the things that led him to so understand Mr. Carnes. I don’t recall that he just said what words were used by Mr. Carnes. He said several times that he understood from him that the title was in Mrs. Armstrong. But the plaintiff’s contention is that he made no statement with respect thereto, but that on the contrary, the agent himself acted on his own knowledge and without any inquiry from him with respect to the title ; that in fact this same agent had taken out a policy on the same building at some former time and in some other company, and perhaps that Mrs. Mary L. Armstrong was named the owner of the property in that.</p> <p>There is a line of cases which hold that where there has been any deceit practiced upon the company, that the effect of that is to avoid the policy, and the contract here substantially means that same thing. But, on the other hand, it is just as clearly held that the fraud or mistake of an insurance agent, within the scope of this authority, will not enable his principal to avoid the policy of insurance to the injury of the insured who acted in good faith; “ and the fraud or mistake of the agent may be proved by parol evidence notwithstanding it is provided in the policy that the description of the property shall be part of the contract and warranty by the insured.” It would be monstrous if a provision of that kind could be put in a policy, and then, for the very purpose of avoiding liability on the policy, an agent, of his own accord, could put down an untrue statement. If the insured is called upon to answer he must answer according to the fact. There don’t seem to have been any written statement required by this company. In a a great many companies a written application is required and certain things are required to be put in writing by the insured before the application is received. There don’t seem to be anything of that kind required here. But notwithstanding the fact that there is no written application provided for, if the company has the right to rely upon the statement of the insured, in case of its being untrue with respect to the ownership of the property, the insured cannot recover. But he was not required in this case, according to the testimony, to make any written statement. He denies that he made any oral statement with respect to that matter. The agent, however, s&ys that he understood from him that Mrs. Armstrong was the owner of this property. Now there we have a conflict of testimony that' you will have to settle. If on the one hand, the agent acted on his own knowledge and made a mistake about the fact, no matter what provision they put in the policy here, that would not be ground for avoiding the policy. It cannot be that the mistake or the fraud of an agent would work to the injury of the insured if he has acted in good faith and done all that is required of him, and there is no specific agreement calling upon him to make a statement and no actual calling made upon him by the agent who sells the insurance to make a statement. If the agent acts upon his own knowledge, and , not upon any representations made by the insured to induce the insurance, then he has the right to recover. But if, on the other hand, he is called upon for a statement in regard to the matter, and he gives a wrong impression, gives forth a statement that is not true in point of fact, or even if he recklessly made it without knowing what the fact was, then he must take the consequences. So that is all we want to know upon that branch of the case. We have numerous cases of the same import as the one from which I read you a moment ago. In one case that I now have before me there was a written statement required, and in that statement the following appeared :</p> <p>“ Chimneys are constructed from the ground. The title is in the name of the insured, in fee simple, and the building has never been on fire, nor has the applicant suffered loss by fire.”</p> <p>That was the statement that was made, and by the terms of the policy that became a part of the policy. Now, in fact, the chimney was built from the loft, the title to the premises was in the name of the applicant’s wife, and the building had been on fire and the plaintiff burned out once before. All those statements were utterly and absolutely false. Now they were signed, however, by the applicant, and yet the policy in that case was not void, because it was proved to the satisfaction of the court and jury that truthful answers were made to these statements, and that the agent himself wrote down, either through mistake or wilfulness, these wrong answers, these untrue statements; that in fact they were not the statements of the insured at all, and that it was not his act that misled the company, and that the company could not shield themselves behind the blunders or worse of their agent. The syllabus of the case reads :</p> <p>“ The fraud, mistake, knavishness or blunder of an agent done within the scope and powers given him by the insurance company, will not have the effect to allow avoiding the policy to the injury of the insured who innocently became a part}' to the fraud. Where the agent of the insurer has cheated the insured into signing the warrant and paying the premium, and the policy was issued upon the false statements of the agent himself, the insured may prove the fact and hold the principal to the contract as if he had committed the wrong.”</p> <p>So that you see that question is quite a material one to know where the statement in regard to this matter comes from. If the insured, or in this case the person who had the policy taken out, made a false representation, and the company issued a policy on that statement, he cannot recover by reason of the title not being as it is represented in his policy. But if, on the other hand, he did nothing to deceive the company into putting themselves into the position of insurer of this property, and the agent acted mistakenly on his own knowledge, that mistake of his ought not to injure the person who in good faith has taken out the policy.] [4]</p> <p>[The question that we have to look at now is what transpired between the adjuster and Mr. Carnes on this occasion. Was it in effect told him that he could not make out these proofs, but that Mrs. Armstrong, and Mrs. Armstrong alone, could ? Is that the true state of facts ? Is it apparent from the testimony-on that point that the adjuster would not receive these proofs and these statements from Carnes because he was not the assured under this policy? That is one of the things that you will have to consider.] [5]</p> <p>[If the plaintiff Carnes was precluded from compliance with these provisions by the act of the company, or by the agents of the company within the scope of their employment, then they have waived the provisions contained here, and they don’t need to have the information that is stipulated for in this provision.</p> <p>Whether or not that is the state of the facts you will have to determine from the evidence. Whether there is such evidence as indicates that the furnishing of these statements was substantially dispensed with by the act of the company itself, through its authorized agents, you will have to determine from the evidence. If you find that it was dispensed with by them, then it cannot be a matter of defense here upon the trial. They cannot set up their own act here as a matter of defense after a loss has occurred.] [6]</p> <p>[We think the whole of the evidence shows that it was intended for their benefit, and that this mode of using the name of Mary L. Armstrong was a formal matter that was adopted to conform to the requirements of the company. There is no dispute but that this policy was intended for the benefit of the Carnes. [7]</p> <p>Yerdict and judgment for plaintiff for $1,145.83. Defendant appealed.</p> <p>Errors assigned among others were (4-7) above instructions quoting them.</p>

Appeal, No. 103, April T., 1902, and No. 1, April T., 1903, by plaintiff and. defendant, from judgment of C. P. Fayette Co., Dec. T., 1900, No. 222, on verdict for plaintiff in case of George B. Sloane v. Daniel J. Johnson. Assumpsit on warehouse receipts, to recover the value of fifty barrels of whiskey. Before Reppert, P. J. The facts are fully stated in the opinion of the Superior Court.