Volume 200 — Pennsylvania State Reports

Appeal, No. 21, Jan. T., 1901, by defendant, from judgment of C. P. Luzerne Co., June T., 1898, No. 103, on verdict for plaintiff in case of John. Kennedy v. Alden Coal Company. Trespass to recover damages for the death of plaintiff’s son, Before Lynch, P. J. At the trial it appeared that on December 24, 1897, Thomas Kennedy, son of the plaintiff, was killed by the fall of a cage in-a shaft in defendant’s colliery.

Appeal, No. 284, Jan. T., 1900, by Margaret Pentz, from decree of O. C; Clearfield Co., overruling exceptions to auditor’s report in the estate of Andrew Pentz. Exceptions to auditor’s report. The auditor, J. B. McEnally, Esq., filed the following report: Andrew Pentz, the testator, died February 10, 1898, aged eighty-seven years. He was married early in life and raised a family of six children. His wife died about 1877 or 1878.

Appeal, No. 289, Jan. T., 1900, by plaintiff, from order of C. P. Clearfield Co., Sept. T., 1897, No. 102, refusing to take off nonsuit in case of C. S. McCormick v. W. Z. Sener. Assumpsit for contribution. At the trial it appeared that plaintiff and defendant owned judgments against J. H. Bierly. . By agreement with each other they purchased Bierly’s real estate at a sheriff’s sale as equal tenants in common, and largely paid for the same by receipts on their judgments.

<p> Evidence—Parol evidence—Contract—Contemporaneous agreement. </p> <p>In an action of equitable ejectment brought by the vendors of real estate against vendees in possession, under a written agreement of sale, for the recovery of balance of purchase money, parol evidence is inadmissible in the absence of fraud, accident or mistake, to the effect that contemporaneously with the execution of the written agreement a verbal agreement was made by the agent who sold the land that the vendors should build an electric railway to the land, which verbal agreement was not carried out.</p>

Appeal, No. 93, Jan. T., 1901, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1900, No. 159, on judgment for defendant in case of W. S. Blair v. S. B. Boring and David Reams. Assumpsit on a bond. Before Gordon, P. J. At the trial it appeared- that H. J. Schetting had leased a certain hotel property, situate in the borough of Du Bois, from S. B. Boring.

Appeal, No. 429, Jau. T., 1899, by Pennsylvania Company for Insurance on Lives and Granting Annuities and Henry T. Kendall, Assignees, from order of C. P. Lebanon Co., Sept. T., 1893, No. 169,… Held: or both. That this will ever occur has not been established. The insolvency of the estate is beyond doubt. A surcharge upon the real estate account will not benefit the excepting creditors.

Appeal, No. 437, Jan. T., 1899, by Archibald Rogers, from order of O. P. Lebanon Co., Sept. T., 1893, No. 169, sustaining exceptions to auditor’s report In re Assigned Estate of Robert H. Coleman. Exceptions to report of George B. Schock, Esq., auditor. The facts appear by the opinion of the Supreme Court, and the report of Coleman’s Assigned Estate (No. 1), ante, p. 29. Error assigned was in sustaining exceptions to auditor’s report.

<p>Appeal, No. 310, Jan. T., 1900, by plaintiff, from decree of C. P. Del. Co., Sept. T., 1899, No. 196, dissolving injunction in case of John B. Hannum v. Media, Middletown, Aston and Chester Electric Railway Company and the Philadelphia, Morton and Swarthmore Street Railway Company.</p> <p>Bill in equity for an injunction.</p> <p>Before Johnson, P. J.</p> <p>From the record it appeared that the Media, Middletown, Aston and Chester Electric Railway Company was incorporated to construct an electric railway from a point in the township of Middletown to the boundary of the city of Chester. By virtue of certain extensions and municipal consent it claimed the right to construct branches in the city of Chester. The plaintiff, a property owner in the city on the line of one of the branches, filed a bill in equity to enjoin the construction of the branch in front of his property on the grounds, among others, that the company had not obtained the consent of all the property owners in the township through which its trunk line ran, which was admitted, and because the extension in front of his property did not connect with the trunk line of the company and no valid extension completed the connection, the extension over which the connection would be made requiring the use of more than 2,500 feet of tracks of the Union Railway Company, a company the line of which was constructed and in operation. The defendants set up that in the municipal grant to the Union Railway Company, the city of Chester had annexed to its consent a stipulation that it reserved the right to grant permission to any other railroad company to run over the tracks of the Union Company, which stipulation had been accepted by that company, and that this stipulation gave it the right to use the tracks of the Union Company for a distance of more than 2,500 feet.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Constitutional law—Title of statute—Execution—Act of May 24, 1878, P. L. 134.</p> <p>The Act of May 24, 1878, P. L. 134, entitled “A further supplement to an act entitled ‘ An act relating to executions ’ approved June 16, 1836, providing that one justice of the peace, alderman or magistrate shall act where two are now required,” is not unconstitutional by reason of any defect in its title.</p> <p>Execution—Proceedings to obtain possession of real estate—Acts of June 16, 1836, P. L. 755, April 9, 1849, P. L. 527, and May 24, 1878, P. L. 134.</p> <p>The Act of May 24, 1878, P. L. 134, amending the act of June 16,1836, and providing that one justice of the peace shall act where two were before required, did not amend the act of April 19,1849, providing for the recovery of possession by vendees at orphans’ court sales, and if proceedings to obtain possession of real estate are instituted under the latter act, but before one justice of the peace only, the proceedings are void for want of jurisdiction.</p> <p> Husband and wife—Estate by entireties—Tenancy in common—Parol partition—Married women. </p> <p>Where a deed made in 1878 to a husband and wife states that the wife “ has absolutely to and for her own right in fee simple the undivided one half part or portion," and the husband survives the wife and subsequently the whole of the land conveyed is sold for the payment of the husband’s debts as the property of the husband, evidence is admissible, in proceedings to obtain possession, to show a parol partition between the husband and wife by which a portion of the land was set off in severalty to the wife.</p> <p>Whether a conveyance to husband and wife which prima facie creates an estate by entireties, will create a tenancy in common, if such be the actual intent, not decided.</p>

<p>j. Municipal liens—Sewers—Foot front rule—Assessments—Affidavit of defense.</p> <p>On a scire facias sur municipal lien for a sewer, an affidavit of defense is sufficient which avers that the claim was made under the Act of May 23, 1889, P. L. 312, by which the assessments are required to be “ equal upon all the front feet of the lands along which the séwer runs,” but that in fact a large proportion of the land liable to assessment in front of which the sewer ran was not assessed at all, wherefore the assessment on which the claim is founded is illegal and void.</p>

<p>Appeal, No. 3, Jan. T., 1900, by plaintiff, from judgment of C. P. Juniata Co., Sept. T., 1899, No. 44, on verdict for defendant in case of Isaac N. Sieber v. Adam J. Pettit.</p> <p>Trespass to recover damages for tbe alienation of a wife’s affections. Before Lyons, P. J.</p> <p>The court charged in part as follows:</p> <p>[The first important question for you to determine is, did the defendant commit adultery with the plaintiff’s wife, or have sexual intercourse with her? There is no witness in the case who testifies that he or she saw the act committed. It is rare that such proof can be furnished in cases of this kind on account of the secret character of the offense, and, therefore, the law allows it to be established by proof of facts and circumstances from which the intercourse may be inferred, and it is by the latter kind of evidence that the plaintiff has endeavored to prove the fact of the adultery of the defendant with his wife. He has introduced testimony of witnesses tending to prove the existence of facts and circumstances from which you are asked to infer the guilt of the defendant. In order to establish his guilt in this way you must be satisfied by 'a preponderance of the evidence that these facts and circumstances must be such as to satisfy a reasonable and just man, beyond a reasonable doubt, that the adultery was committed, and you are therefore to weigh all the evidence in the case carefully and scrutinize it with that degree of caution which the importance of the case demands.] [1] "Were the circumstances relied upon to fasten this alleged offense upon -the defendant such that a reasonable man would infer that the defendant had committed adultery with the plaintiff’s wife ? I shall not call your attention specially to the evidence on the one side or the other. You will recollect it for yourselves and give it such weight as in the exercise of your best judgment it is entitled to receive, and in doing this you will take into consideration the interest that the witnesses may have in the case, the apparent candor of the witnesses, the character of the witnesses for truth and veracity, their bias, their feeling in the case, their friendship or animosity towards the parties, and you will thus weigh and scrutinize the testimony of the large number of witnesses who have testified in your hearing, so that when you have done, you will have faithfully sought for the truth and render such verdict as will satisfy your minds that you have done justice between these parties.</p> <p>Quite a number of circumstances are relied upon by the plaintiff to establish the defendant’s unlawful relations with his wife. .1 shall not attempt to call your attention to all of them; I do not know whether I could do so if I did. They have been commented upon by the counsel upon the one side and the other. I believe you have paid strict and careful attention to the testimony in this case and therefore by the exercise of your mental powers recollect it all, weigh it carefully and sift it so you may find what .the truth is.</p> <p>[The first circumstance relied upon by the plaintiff in this case was the visit of the defendant to the plaintiff’s house and his family. Was there anything wrong in that? Was there anything in the fact that he and his wife called at the house of the plaintiff during their earlier acquaintance and sat there and discussed the sermons of the day and conversed about religious topics, and that kind of thing? Would you infer that the defendant had a guilty mind and heart when he went to that house for that purpose under the testimony in this case ? That is a question for you. You are to determine that under all the evidence in the case.] [3] [Perhaps not in order, but as I recollect it, the plaintiff also relies upon the circumstances of the defendant meeting the plaintiff’s wife in her vacant house upon the corner of Sixth and Market streets, hi the borough of Port Royal, if I recollect the location correctly. You have heard the testimony as to that. How did he come there? What did he go there for ? Is it true as testified by this plaintiff’s wife that in that house he asked her to take a seat beside him on the stairway; that he put his arms around her and that he there in a short time had sexual intercourse with her for the first time ? Do you believe that ? Does the evidence satisfy you that this is true ? Now weigh all the surrounding circumstances carefully, all the evidence in relation to it, the testimony of the other witnesses who say they saw him go there, his own admission he was there, his’ denial of any improper motive or act while there, and aE that take into consideration, in determining whether or not that is true.] [4] [Then the meeting in the vacant house of the defendant down on Second street. You recollect the testimony of the witnesses who saw him go in there and who saw her come along with her bucket of water and go into the house. Was it true that she went in there to meet this defendant for the purpose of illicit intercourse, or is it true as the defendant alleges, that she was there to see him in regard to the endorsement of notes for her, I do not recollect all of it, what she called there for ?] [5] [Then as to the meetings in the alley in the rear of the residence of the plaintiff and his wife, at the time of day it is alleged they met there, and there is a circumstance there in the case that I feel it is my duty to call to your attention, because it is unusual, and that is the testimony of Charles Koontz, who went upon the witness stand and described the meeting which he observed between the defendant and the plaintiff’s wife, testifying he saw her go in the night and call for Mr. Pettit three times, and not until the third call did she get an answer, and then stopped, without telling anything further about it, and when pressed upon cross-examination he said that Mr. Pettit not only answered but in substance said to this plaintiff’s wife that he had not time to do what she wanted and that she said then and there, “ If you haven’t time now I will take you into court where you will have to take time,” and that is a significant fact. If that witness was placed on the stand to leave the impression upon the court and jury that the circumstances were as first detailed by the witness and he was then dropped, it was leaving a false impression upon the jury’s mind and upon the mind of the court. Now, I say to you, wherever that occurs in a case it is your duty to scan all the evidence carefully, and the evidence of every witness, and be satisfied of the truth before you base a verdict upon it. The witness who will conceal a part of the truth does an injustice to himself and to the administration of justice. . He is as much to tell that which makes for one side as he is that which makes for the other, and it is the duty of the party who puts him upon the stand to have him disclose the Avhole truth, that no injustice may be done.] [6]</p> <p>[Now then, gentleman, taking into consideration the testimony in regard to the meeting jn the granary: How did they come to be there? What was their purpose? Was this consistent with innocence, or does it impress you that there was a guilty intent in meeting there ? Also consider all the evidence in regard to the fact that the defendant delivered goods to the house of the plaintiff’s wife, as to his entering the door, what they heard afterwards, what they did. Was it true or were they mistaken? Was the latch upon the door faulty? Consider all the facts and circumstances in regard to that. Weigh them carefully.] [7]</p> <p>[You have heard the testimony of the witnesses as to the visits of the plaintiff’s wife to the store of the defendant. How was that ? What was her purpose there ? Did she go there for the purpose of buying goods ? Did she go there for the purpose of seeing the defendant to get him to indorse notes to aid her in her financial embarrassment, or did she go there for the purpose of gratifying her passions and to satisfy the lust of this defendant ? How was it ? What were the circumstances as detailed by the witnesses ? That you must look at.] [8]</p> <p>You must take into account the credibility of the witnesses, the probability of the truthfulness of their stories, and thus weigh the fact as to each circumstance relied upon in the whole case. [And the same as to the meetings at the warehouse, and in the alley down near Mr. Groninger’s, and in the woods south of the Tuscarora creek, and over at the east side of the river, in the river bridge. In all these instances what was the motive ? How did they come to meet there ? Was it at the solicitation of the defendant, or was it, as the defendant alleges, that this plaintiff’s wife dogged his footsteps from day to day; that she met him at every corner that she could; that she was importuning him for one thing and another; that first he indorsed notes for her; that then she wanted him to let her have the wheat that he had purchased at judicial sale and the straw he had taken from her land, and remove the judgments which he had entered against her on the docket. Look at all the circumstances. Will they explain why this woman was there, why she was seeking the presence of the defendant, why she was talking to him, why she was interviewing him, because so far as I recollect it, but you must recollect it for yourselves, the testimony shows that the plaintiff’s wife sought out the defendant, not that he was seeking her except at their own dwelling. How then is the proof of the matter ? Is it true in point of fact, as testified to by one witness in corroboration of the defendant’s evidence, that he tried to avoid her ? Mrs. Groninger, I believe it was, testified that she observed her go and place herself on the highway and seated herself there and stayed there until he came along with his cows and he did not stop but that he drove his cows rapidly past her and she had to run to keep up with him. Is that the conduct of a man who is seeking his paramour to gratify his lusts upon her person? If you believe that testimony, what interest had this witness in the case ? Had she any ? Was there any motive to tell what was not true? There, you will find some of the means by which you must weigh all the evidence in the case.] [9]</p> <p>[Then, again, I call your attention, to the testimony of the witnesses as to what occurred in Philadelphia at that hotel. Did the defendant plan and plot the trip that they might go there for the purpose of mutual gratification and enjoyment of each other ? The mere fact that they went to the hotel and that the defendant registered his own name and that of this plaintiff’s wife would not of itself prove that there was any guilty conduct on their part. If it is true, as alleged, that this plaintiff and his wife asked that they go together to Philadelphia, then there is no significance in the fact that they stopped there, so far as I can judge, and their names were properly registered. If they had registered under assumed names and had represented themselves as other persons than what they really were it would then have been strong evidence that there was a guilty intent. Again, if it is true, and you should so find, that this was not a reputable house, the evidence is for you to say whether it is or not, is there any evidence that the defendant knew that it was a disreputable house ? If he stopped at a place of that kind and did not know it, that would be no evidence to convict him.</p> <p>Judge Bucher: He said he had been there before.</p> <p>The Court: He swears to that. But so far as to its being an immoral house I fail to see that the evidence justifies that fact. However, I submit it to the jury to say whether it was or not. You are the judges of the facts. Whether the witness understood the questions when they were propounded to him as to the character of the house is for you to determine. You will recollect that. What his appearance was on .the stand, whether he understood the language used, and the answers he gave, is all a matter for you.] [10]</p> <p>Now, then, I say to you, that you should consider all the evidence in the case before you come to a conclusion. I have not adverted to all the evidence of the plaintiff or defendant, nor perhaps called your attention to all the circumstances in the case, but you will remember it and consider all of them, and consider the conduct of the parties.</p> <p>[Is it true that at an early period when this gossip was going the rounds of Port Royal that this plaintiff was informed of the talk of the neighborhood and the charges of undue intimacy between the defendant and his wife ? Is it true, as testified to by Mr. Kiester, that he informed both Mr. Seiber and his wife at their urgent request why they were not invited to a picnic on a certain date ? Is it true, in point of fact, that Mr. and Mrs. Pet-tit visited the house of the plaintiff and his wife and requested that she desist from visiting his store and coming there, or meeting or speaking to him ? Do you believe the testimony of Mrs. Pettit and Mr. Pettit as to what occurred at that time ? Do you believe the testimony of what occurred at the house of Mr. Petit on the evening when the Reverend Lloyd and Mr. Wisehaupt were there, when this plaintiff’s wife charged him with having kissed her in the store upstairs and that he vehemently denied it? Now you should weigh, all tins testimony on the one side and the other, just as carefully on the one side as the other, and scrutinize it, so that you can determine how the fact is and let your verdict be accordingly.] [11]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-11) above instructions, quoting them.</p>

<p>Appeal, No. 214, Jan. T., 1900, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1898, No. 1456, on verdict for plaintiff in case of Elizabeth G. Reading v. Anna Reading Gazzam.</p> <p>Trespass to recover damages for the alienation of a husband’s affections. Before McCarthy, J.</p> <p>Plaintiff’s statement of claim was as follows:</p> <p>Anna Reading Gazzam, the defendant above named, has been summoned to answer Elizabeth G. Reading, the plaintiff, in a plea of trespass, in which the plaintiff claims from the defendant the sum of $100,000, the ground of which complaint is as follows:</p> <p>Whereas, the said plaintiff is a good, true, faithful and honest woman, of good name, fame, credit and esteem amongst all her neighbors and others to whom she is known the whole of her life. That she was married January 30, 1872, to R. Charlton Reading. That there was born of the union Adda Sproul Reading, May 10, 1874; R. Charlton Reading, third, born August 13, 1878; and Elizabeth Grier Reading, born April 12, 1881, said three children being still living. That the father, R. Charlton Reading, was born June 8, 1845, and until about the year 1890 lived with his family and continued to their support. That about that time, or shortly thereafter, he became associated with the said defendant, Anna Reading Gazzam, and began neglecting his family, and that the said Anna Reading Gazzam, the defendant, is a single woman. She, the said Anna Reading Gazzam, persuaded him, the said R. Charlton Reading, to stay at various hotels throughout the country with her, commencing in the year 1892. In August, 1893, he visited the White Mountains with the said defendant for a month, and they visited various other places during that year in company with each other. In the latter part of the year 1893, the defendant, Anna Reading Gazzam, sailed for Europe, and upon her return in 1894, was met at the dock in New York by the said R. Charlton Reading, who brought her to Williamsport, Pa., the home of the plaintiff, and stayed there at a hotel for ten days. Before coming to Williamsport the said R. Charlton Reading spent about two weeks with her, the said Anna Reading Gazzam, in the city of New York, after which she came to Williams-port, stopping at a hotel, where the said R. Charlton Reading took his meals with her, had her rooms decorated with flowers, and, at least in one instance, was seen in such a position with her as to warrant the conclusion that improper relations existed between the said R. Charlton Reading and the said defendant, Anna Reading Gazzam.</p> <p>During the entire year 1895 he was with her almost continuously, neglecting his family, and in June, 1895, spent five days in the house of the defendant at Philadelphia. In July, 1895, they went to Spring Lake, N. J., and attended the governor’s ball in company with each other at Sea Girt, and on July 29,1895, left for Hot Springs, N. C. On September 3,1895, they returned to Washington, D. C., and on November 5 left for Alexandria Bay, N. Y. On September 13, 1895, left for Montreal, Canada, returning October 16.</p> <p>They were in constant correspondence by letter when he was not present with her. A sample of the correspondence is quoted in a letter from the defendant to the said R. Charlton Reading, reading as follows:</p> <p>“ How much I would like to have you here just now to comfort me, but the conventionalities which you justly recognized when here, I foresee must deprive me largely of even my cousin. Yet they cannot altogether—in fact I find myself looking to see you soon again. And now good-night. A thousand times good-night, to coax away the solitude.</p> <p>“ Affectionately</p> <p>“ Your Cousin,</p> <p>“Anna.”</p> <p>In the summer of 1896, the said defendant spent in company with the said R. Charlton Reading, the husband of the plaintiff, several weeks at Lake Minnawaska or Lake Mohunk.</p> <p>On January 12, 1899, the said R. Charlton Reading gave notice by letter to his family that he would no longer support them, and that they would have to take care of themselves.</p> <p>And the said defendant by her acts aforesaid and by sundry other acts not herein specifically set forth, contrived and wickedly intended to deprive the said plaintiff of the society and affection of her said husband, and also to withdraw from her the support to which she is entitled from her said husband, to hurt her good name, and bring upon herself and'her family great scandal and infamy by thoroughly alienating the affections of the plaintiff’s husband, depriving her of that support and affection to which she is justly entitled. By reason of which premises the said plaintiff is not only deprived of the comfort and society of her said husband and much hurt and injured in her estate, but is also drawn into such great shame, scandal, and infamy, and remains so much disturbed and disquieted in mind, that she has suffered great and irreparable damage. Thereupon she brings this suit.</p> <p>In addition to the letters quoted in the opinion of the Supreme Court, and the facts therein stated it appeared that the defendant was the divorced wife of Joseph M. Gazzam, that her maiden name was Reading, and that plaintiff’s husband who bore the same family name was a distant cousin.</p> <p>The court charged in part as follows:</p> <p>Gentlemen, I will call your attention to some of the testimony that has been offered on behalf of the plaintiff in this case.</p> <p>In the first place, certain witnesses, Mr. Stephen McCandless and Mr. William Emory, were called in order to show the social position that the plaintiff occupied in the city of Williams-port. Mr. McCandless said that he resides in Pittsburg ; that he is a son of the late Judge McCandless, of the United States district court; that he is a member of the Allegheny county bar, and was clerk of the United States district court for many years. He knew Mrs. Reading before she was married and has known her since. He knew her family, knew her father and her mother. Her father was the clerk of the United States circuit court for the western district of Pennsylvania, and her mother was sister of Judge Robert C. Grier, a judge of the supreme court of the United States. Her family held a good social position in Pittsburg, and removed to Williams-port about 1867.</p> <p>Mr. Emory, who lives in Williamsport, said that he was acquainted with Mrs. Reading ;, that he has known her twenty-eight or thirty years; and that he knew her before her marriage. He said that he also knows R. Charlton Reading. He has known the family ever since, they have lived in Williams-port, and he said that the social position of Mrs. Reading in the city of Williamsport is very good, and unexceptional in its character.</p> <p>Certain witnesses were called by the plaintiff to show the estate possessed by the defendant. Mr. H. Gordon MeCoueh, who is the secretary of the Fidelity Insurance, Trust and Safe Deposit Company of this city, said that the company is the administrator de bonis non cum testamento annexo of the will of John G. Reading, the father of Mrs. Gazzam, and that the company holds securities amounting in the aggregate to about $75,000. He said that Mrs. Gazzam has only a life estate in this property, and no power to will it.</p> <p>Mr. William S. Wallace said that he kept the accounts of the estate of Jolm G. Reading. In June or July, 1892, the executor of the will of Mr. Reading turned over to the Pennsylvania Company for Insurances on Lives and Granting Annuities, of this city, and the Philadelphia Trust, Safe Deposit and Insurance Company, of this city, in cash and securities, $750,000; $375,000 in each trust, one half in cash and one half in securities. The income of this sum of $750,000, under the will of her father, is paid to Mrs. Gazzam for life.</p> <p>Mr. Nelson C. Denney, who was employed in the trust department of the Philadelphia Trust, Safe Deposit and Insurance Company, said that that company is a trustee for Mrs. Gazzam under the will of her father, John G. Reading; that her net yearly income from that particular trust is about $18,000, but that sum does not include the income that may be received by that company from the Fidelity Company.</p> <p>It was admitted by counsel for the defendant that the income from the Pennsylvania Company, as trustee under the will, amounts to about the same as that which is paid to Mrs. Gazzam by the Philadelphia Company, so that I think it will be proper for you to assume that her income is from $36,000 to $40,000 a year.</p> <p>Mrs. Gazzam, who was called by the plaintiff as for cross-examination, said that she has a home in Cornwall; that it did not cost $100,000; that it was to have cost $50,000 ; that she never had the time or strength to look into the bills.</p> <p>So much for the social position of the plaintiff, and so much for the estate belonging to the defendant.</p> <p>I will next call your attention to the testimony of the two' daughters of the plaintiff, because it may have a very important bearing on this controversy.</p> <p>Miss Adda Sproul Reading, who is a daughter of the plaintiff and of Robert Charlton Reading, and .who lives in Williams-port, was twenty-six years old on the 10th of the present May. She has one brother and one sister. The brother is Robert Charlton Reading, who was twenty-one on the 13th day of last August, and her sister, Elizabeth G. Reading, whom you have seen, was nineteen on the 12th day of last April. Pier father will be fifty-five years of age on the 8th day of J une. He was married on June 30, 1872. In 1891 he commenced to go back and forth to Philadelphia, and told them at times that he was at Mrs. Gazzam’s; that he had gone to see her about her divorce. ' He went back and forth. That continued in 1892 and 1898. In 1895 he left home and was away three months; then came home and stayed three days, and went away again for ten days. From that time he was gone at different times, sometimes two days and sometimes a week, and oftener much longer. In 1898 he came home just before Christmas, and on January 1, 1899, he left home and the witness has never seen him since. She was asked what sort of a feeling existed between her father and her mother prior to the time he began absenting himself, and she said it was “ just as pleasant as could be.” She said that her father remained away different lengths of time; sometimes two or three days, and sometimes for longer periods. His manner towards her mother grew worse and worse, more and more discourteous, until finally, at the table he would not speak to her; he would not offer her anything; he would put what there was in front of him to serve on a plate and push it in her direction, but never speak to her. She began to keep account in 1897. Sometimes she put it down and sometimes her mother put it down, but in 1897 the witness put down every time her father left and every time he came home. She said that he went away on May 18,1897, and came home on July 16; went away on July 19 again and came home on October 12; went away on the 18th again and came home on December 28; went awáy on January 14, 1898, and came home on January 17; left on June 22 and came home on July 11; left on August 16 and came home on the 31st; left on September 24 and was away until December 23; left on January 1, 1899, and she has never seen him since. She was asked whether Mrs. Gazzam paid a visit to Williamsport in 1894, to which she replied yes; she stopped at the Updegraf Hotel and was there at least a week. Mr. Reading, her father, was in Williamsport at the same time,. In relation to the question of money contributed to support the family, she said there was not sufficient contributed by her father; that her mother had some money of her own which she has since spent in keeping the family up. She said that her mother used all she had, every dollar. She said that her brother is now at Princeton College. Prior to 1891 or 1892 her father supported the family comfortably, and that it was about 1895 that the support began to fall off so badly. From 1895 a bill never came in that he paid, or any money that he sent, that was not most grudgingly given. He wrote no letters to her mother. Very often he would send with the bills a letter to the witness, but sometimes it would have no beginning and sometimes he would say, “Adda, enclosed find so much, R. C. Reading.” Sometimes there was no signature; sometimes there was only a blank sheet of paper with the check. These remittances were sent-from Cornwall-on-the-Hudson, and some from New York. She could not tell the exact date that her father was made president of the Williamsport Gas Company, but he was president of that company about seven years. She did not know what his salary was. He supported his family from what he got out of that situation, with some assistance from her mother. She was told that his salary was $2,700 a year. In 1894 she visited Mrs. Gazzam at the hotel in Williamsport, having gone down at her father’s request. She only called on her once. As to Mrs. Gazzam’s relationship, she said she is a fifth cousin once removed, which makes it, she thought, a tenth cousin. Her father ceased to visit his family in Williamsport on January 1,1899, which was the last time she ever saw him. She could not tell where he has been since January 1, 1899, up to the present time. On January 1, 1899, he left bills that were not paid, and after July 1, 1898, he failed to support his family. He has not written to her except one letter, Si the beginning of the year 1899, in which he said he would have nothing more to do with them and would give them nothing more to support them.</p> <p>On redirect examination she said that her father gave a notice by letter in January, 1899, that he would make no further contributions, and that he left a considerable amount of bills unpaid. He left a bill for himself, a trifling doctor’s bill. She did not know how long it had been standing, but he left it for them to pay. It was not even with their physician.</p> <p>Elizabeth Grier Reading, the younger daughter, said that she was nineteen years old on the 12th of last April, and she recollected the visit of Mrs. Gazzam to Williamsport in November, 1894; that she stopped at the Updegraf Hotel, which is one of the principal hotels in the city; that her father was in Williamsport at that time, and occasionally stopped a few minutes at the Reading home. She did not know where he went, but she was in the room at the hotel once, and saw him there in Mrs. Gazzam’s room. She said: “ I was in one room that looked like her bedroom. And there was another room that was a sort of a sitting room. They were private rooms. I went in unexpectedly and did not announce my coming, and there was Mr. Reading and Mrs. Gazzam. They were sitting on a very small lounge, and he had his arm around her, and she was leaning on him.”</p> <p>On cross-examination she was asked whether she saw Mrs. Gazzam after that, and she said she saw her once, at the hotel. She was asked whether she visited her after that; whether after she saw this thing she went to the hotel and visited her, and she said: “ 1 didn’t think anything of it. I visited her little girl. Q. You did not think anything of it? A. No; I was only thirteen then, and I did not know any better. Q. Did you tell your motherwhat you saw? A. Idid afterwards. Q. How long after? A. I really don’t remember. Q. You can tell us whether it was years or months. A. It was months, or probably days. Q. So it made so little impression on you that you did not even tell your mother, although you were a young woman of thirteen years old ? A. No, sir; it did not. Q. What you saw then, that you have now detailed, made so little impression that you did not even think of repeating it for months ? A. It made a great impression, for I remember it distinctly. Q. But it did not make enough impression on you as being anything noticeable for you to mention it to your mother? A. I did it a few days afterwards. Q. I thought you said months ? A. I said months, or probably days, I do not suppose it was more than three clays, perhaps. Q. How many days after you saw it was it that you went to the hotel and visited Mrs. Gazzam? A. The next clay. My father requested me to go there to see her. Q. Won’t you tell us whether you think it was three clays, or whether you think it was months? A. I said three clays. Q. You are sure it was days, now? A. I am positive of it.”</p> <p>That incident, gentlemen, may be a very important one for you to consider in arriving at your conclusion in this case. I will here call your attention to the fact that Mrs. Gazzam, the defendant, emphatically denied that any such scene ever took place. You cannot believe both of these stories, and it is for you to say which one of those witnesses is telling the truth in regard to that particular incident.</p> <p>Mr. Elmer, who kept the hotel at Cornwall-on-the-Hudson, was called. He has kept an hotel there for about twenty-eight years, and knew Mrs. Gazzam and knew Robert Charlton Reading. He became acquainted with them first in 1895, when they came to Cornwall for accommodations as guests. He did not remember how long they stayed there in that year, but they stayed some time. They next came on June 22, 1896, then went away and came back in October. They stayed there the first time that year probably a month or so. They rented their rooms by the week. They next came in 1897, April 17, and left on December 4. He said then that it was Mrs. Gazzam that he referred to as leaving on December 4. He did not know exactly the length of time Mr. Reading was there during that time, but he was there most of the time. They did not come back the next year. The party was composed of Mrs. Gazzam, her daughter, Mr. Reading being there the greater part of the time, and a gentleman who was a tutor. Once they had a young lady for a governess, when they first came. The daughter of Mrs. Gazzam was a small girl. When they first came they had five rooms. Mr. Reading’s room was across the hall, across a narrow hall. He had a room right over their room on the second visit. Under the rules of the hotel the house was kept open until the greater number of the guests had retired, as a general thing about 11 o’clock, sometimes a little later than that. Then the house was closed up and he attended to that matter in person. The daughter of Mrs. Gazzam, and Mrs. Gazzam herself, used to call Mr. Reading Cousin Charlie. They seemed to be together just the same as if they were always acquainted, and always had been together. They used to be out quite late at night, sometimes 12 or 1 o’clock, generally alone, as far as he knew. He would not like to say definitely just how late they had been out, but he could remember as much as after 1 o’clock, but he would not like to say any later than that. In pleasant weather that occurred almost every night, that they were out sitting on the piazza. The witness said that he used to see to the house himself, the last one, and he remembered one night that he did not know they were out and he locked the door, and that seemed to annoy Mr. Reading very much, so he thought he took the key after that, but he told him he would leave it open for him if he wished. After that they could come in when they pleased without disturbing him. He was asked whether he ever saw Mr. Reading in the bedroom of Mrs. Gazzam, or coming out of it, and he said he was often there. During the daytime he had often seen him in her bedroom, and in the evenings he would go in and out, of course. Mrs. Gazzam’s daughter had the room next to her. Mrs. Gazzam occupied the room alone. He saw Reading and Mrs. Gazzam drive out frequently together for long drives. They used to drive sometimes in the evenings. Mrs. Gazzam was building a house at Cornwall. The witness said that his house was a first-class, highly respectable hotel and that he had maintained that reputation for a good many years, as his guests have all been selected since he built the house, and he takes care that nothing improper should be going on in his house. ' Mrs. Gazzam’s bedroom and her daughter’s bedroom were connected together. The maid’s room and the daughter’s room, and the governess’s room and Mrs. Gazzam’s room were all connected together on one side of the hall. He was asked whether the bedroom that Mrs. Gazzam occupied was not also a sort of sitting room in which Mrs. Gazzam had her desk, and did whatever business she had to attend to, and he said, yes, that he saw not only Mr. Reading, but other people who had business with her and called upon her, go in and out of that room, and that that applied to all the different visits she made to his house. He said that Mrs. Gazzam registered in her own name, and that she commenced to build her residence in 1897. It was rather a large house, and they were a great many months building it. Mrs. Gazzam used to attend to most of the business in connection with the builders and the workmen that were there, when they came to the house. He did not know what Reading was doing, but he was supposed to be looking after it. After the house was finished Mrs. Gazzam occupied it as her residence, as far as he knew. He never saw Reading there during the year 1899, that he remembered, nor did he ever see Reading there during 1900. The last time he remembered to have seen Reading was about the time that the house was completed, or just after that.</p> <p>Then came the testimony of the two detectives, who were called for the plaintiff, one of whom was Louis A. Newcombe, who keeps a detective agency. In 1897, before going up to Cornwall, he sent his assistant, Mr. Ward, there. Mr. Ward was at that time an operator, but he is now Mr. Newcombe’s manager. It was about the 1st or 2d of September, when the witness arrived at Cornwall and he stayed there a week. He and Mr. Ward occupied rooms directly across the hall, in what Mr. Elmer calls his old house, from the room occupied by Mrs. Gazzam. From this room it was easy to observe anything that transpired in Mrs. Gazzam’s room, that is, such as going in and coming out of any of the occupants. Mrs. Gazzam occupied the front room, the young miss occupied the room leading out of Mrs. Gazzam’s room in the rear, the man Reading occupied a room somewhere in the top of the house, and just where the maid had her room he did not know. He said:</p> <p>“We could see from our room, and from being out on the porch in the evening or any time during the day, Mrs. Gazzam and Mr. Reading together. For instance, Mr. Reading, perhaps, would go off in the morning somewhere, and come back and be with her on the veranda or perhaps hr the yard. They would be talking together. Then they would go to ride in the afternoon. In the evening he was invariably up in her room, sometimes with the door open, sometimes with the door closed. You could see sometimes from the veranda or piazza before the shades were pulled down, and then, after the shades were pulled down, of course you could not see anything. The maid would come to her room sometimes when Mr. Reading was in there; at other times she would not come. On one occasion, I think it was perhaps the Sd or 4th of September, we noticed that Mr. Reading was acting rather queerly, or as if he was ill. Fie came and sat down in her room in a chair, and from our room we could observe very plainly that she was pouring something from a bottle on his head, or rather shampooing it, so I took it for granted that he had a headache or something of that kind. Later in the evening he would go off; then the maid would come back in the room and the room would be closed up, the light put out, and then perhaps as late as 1 o’clock the maid would very quietly leave Mrs. Gazzam’s room and proceed to her quarters, wherever they were. I think she would lock the door from the outside, but I am not quite positive on that point. In the morning Mrs. Gazzam’s maid would come there and enter the room, and we could not, of course, see anything then. We were there two Sundays. We got there on a Saturday night, aiid we were there one Sunday—yes, we were there two Sundays, and left, I think, the next Tuesday. We were there about ten days. Mr. Reading would be in and out of the room. I remember one night going by the windows and glancing in, and I saw them examining a large book which was on a pedestal or a table, or something of that kind, and they were in conversation. Then, at other times, they would sit there, she in one chair and and he in another, and one night she was out on the piazza, and he went and sat at the extreme end of the piazza, where he was listening to the music. She didn’t go out that way that night. There seemed to be a little difficulty between them. I saw her crying, and her appearance was not what it ought to be. She had on an old filthy wrapper, and her hair was all amuss. In the daytime they would be out riding. Mrs. Gazzam would be in her room or out on the porch. Mr. Reading was away some of the time. In the winter of 1897, after Mrs. Gazzam obtained rooms at the Fifth Avenue hotel, I saw Mr. Reading enter the hotel, and also saw him, from diagonally across, from the hotel on the other corner, sitting at the window of her room, which was on the top floor on the northeast corner of the Fifth Avenue hotel.”</p> <p>The witness could not tell whether that was her bedroom as he had never been in it. He saw Mr. Reading there late in the evening, as late as ten o’clock, in her room. He could see Mrs. Gazzam and Mr. Reading. Mrs. Gazzam’s child was a young miss of fourteen, he thought. The maid was colored. He had seen Mrs. Gazzam drinking out of a bottle on several occasions at Cornwall and on one occasion in New York on the street, on the corner of Twenty-third street and Broadway. He said that Mr. Reading had a bottle in his pocket on the occasion in New York, and that he reached around this way and handed it to her, and she took a drink out of it. That was the night they went to the Lyceum theatre. He saw that once in New York and several times at Cornwall. Mr. Reading carried the bottle in New York. He never saw her take a drink at Cornwall except in her room. He was asked: “ Did you see him drinking in her room? A. No, sir; I don’t think I ever did. I am positive I never saw him take a drink in that room.”</p> <p>As to the hotel register at the Fifth Avenue hotel the witness said that Mrs. Gazzam was registered there, and her daughter, Miss Gazzam. He did not think the maid was registered, but thought it said, “ and maid.” He said that Reading was not staying at the hotel at that time, but that “ that was singular to us, for the reason that he was not registered there, and still we would take him into the hotel, and not see him come out on several occasions. They were there for a month or more. I have not the exact date.”</p> <p>The daughter's room at the Fifth Avenue hotel, the witness said, was in the rear of the mother’s, and directly opening into and communicating with her mother’s room. The daughter was a young girl at least fourteen years of age. He saw Reading there quite late at night, 10 o’clock, or after 10, perhaps. He saw the hotel maid go in and out, and also saw men in the room whom he did not know, but supposed they were there about the contracts for the house, as they looked to him like salesmen. The witness occupied the same room at Cornwall afterwards that Mrs. Gazzam had occupied, and he said that it was an old-fashioned house and the room was perhaps twenty feet square with a fire place and two windows front and one window on a little angle which led on to the side piazza. The door leading to the room occupied by the miss would be directly in the rear of the room. He could not tell what Reading was doing at Cornwall, whether he was superintending the building of Mrs. Gazzam’s house or not. He never saw the door between the daughter’s room and Mrs. Gazzam’s room locked, but he saw it closed and never open of an evening.</p> <p>Mr. Elmer was recalled and was asked who paid Reading’s bills at Cornwall. He said, “ Until the last year, Mrs. Gazzam paid the bills. The last season he was there Reading said he preferred to pay them himself.”</p> <p>The other detective, Frank W. Ward, was then called. He is a private detective connected with Newcombe’s Detective Agency in New York, and was assigned to look after the movements of Mrs. Gazzam and Reading. He went to Cornwall about August 17, 1897, and remained until August 28. He noticed that Mr. Reading and Mrs. Gazzam were together a great deal of the time. He noticed that they had their meals together, went driving together, sat in the room talking together, sat on the porch together, in fact, were nearly always together. He very seldom saw one without the other. He saw Reading in Mrs. Gazzam’s room every night, and one night in particular he stayed in her room until the hotel closed, about a quarter of eleven. They used to ride together, usually in the afternoon, sometimes in the morning. He said, “ I remember one evening, I suppose about half past nine, they had been sitting on the porch, and Mr. Reading got up and went inside and got a red shawl and threw it over his arm and they strolled out on the grounds in the rear of the house. It was a very dark night, and there was no moon, no stars or anything, a black night. This was out in the lawn back of the house. There was a large lawn. I suppose five hundred yards of ground in the rear of the house. I could not tell whether they sat on a bench or not, but there were benches there. They remained out there from 9:30 up to the time the hotel closed at 11 o’clock, when they were still out. I didn’t see them come back.”</p> <p>The witness was asked whether he ever saw Reading give Mrs. Gazzam any special attention, and he said: “I remarked it on nearly every occasion I saw them together. Mr. Reading was in the habit of treating her in what you would call a mannerly way, I suppose. He would open the carriage door for her and help her in and help her out, and wait for her at breakfast, and push her chair in under her as she sat down, and pull it out probably as she left the table. He would get the rocking chairs for her when she would go out on the porch, and acted like a man that thought a good deal of the lady. I saw them on the evening that Mr. Newcombe referred to, when he said that she poured some substance on Mr. Reading’s head and rubbed it and cared for him, that evening that he appeared to be ill. I saw them on the evening Mr. Newcombe referred to when the little difficulty appeared to have arisen between them, and Mr. Reading walked away a.nd sat at the other end of the porch for probably an hour. Mrs. Gazzam sat by herself, with no one about her at all. I saw them in New York. I saw them come out of the Fifth Avenue hotel together and walk to the corner of Twenty-third street and then Mr. Reading took this bottle from his pocket and handed it to Mrs. Gazzam and she took a drink and returned it, and they got on the car and rode to Fourth avenue, and entered the theatre together. That was all I saw of that incident.”</p> <p>He said that they went directly from the hotel to the theatre, but he could not say whether they went directly from the theatre home to the hotel or not. He was asked whether he saw any of the people who were working on the house at Cornwall come over to the hotel, and he said he never saw a soul come there. Referring to Mrs. Gazzam’s room in the hotel, he was asked whether he did not see the appliances in it that would be in a place in which business was transacted, and he said not. “ Q. Was there.a desk there? A. I don’t remember seeing any desk. Q. Weren’t there business papers all over the room and tables ? A. No; no business papers that I ever saw. Q. What is the latest hour you say you ever saw Mr. Reading coming out of Mrs. Gazzam’s bedroom at Cornwall ? A. I should say about half past ten.”</p> <p>The plaintiff called one other witness, to whose testimony I will direct your attention, James Greenleaf Sykes, who lives in New York and is in the decorating and furnishing business. He said that he had business relations with Mrs. Gazzam, had the contract for decorating and furnishing Mrs. Gazzam's new house at Cornwall-on-the-Hudson, and first met her in January, 1897, at the Fifth Avenue hotel, in her room there. He had an introduction to her, and his business was to obtain work and carry out Avork in decorating and furnishing people’s houses. Subsequently he went to Cornwall. He did not go there for any length of time, but went there very many times, just up and back the same day. In some cases he stayed over night, or one or two nights in one or two cases. He knew both Mrs. Gazzam and Reading. He saw them sometimes once a week, and other times once in two or three weeks. He had supervision of the work under his contract. He had never seen Mrs. Gazzam until he was introduced to her at the Fifth Avenue hotel, and Mrs. Gazzam introduced him to Reading at Cornwall. He did not know whether Reading was married or not, but thought he was not. He had no idea that he was married, as Reading never spoke of his family. Reading was always very attentive, as any gentleman should be to an invalid, and as the Avitness always intended to be and always was himself. “ His behavior was not any more attentive than my own was in Mrs. Gazzam’s presence. I always had a thought for her, a care for her, for, aside from being a business friend, she is a personal friend, and I value her friendship. She was an invalid from the time I commenced to know her, and required constant attention from the people around her. Everyone had a thought for her.”</p> <p>The witness saw nothing whatever in the conduct of Mr-Reading towards Mrs. Gazzam other than what he would put to the score of what a man would do in the way of attention to a sick woman. He was always a gentleman, as any man naturally would be under the same circumstances. The house was about two years and a half in building. The last of the work done by the witness was finished in November and December a year ago, 1898. He said that Mr. Reading took a considerable part in superintending the building and looking after it as he was Mrs. Gazzam’s manager. At the Fifth Avenue Hotel the witness was accustomed to go into Mrs. Gazzam’s room. She had a desk and her own things about her there. He was asked, “ You did not think there was any impropriety about it or you would not have done it ? ” and he answered “ Not the slightest. Q. When you saw Mrs. Gazzam you always saw her in that room ? A. I always saw her there. Q. .Had she papers there in connection with the business? A. All about the room.”</p> <p>He was asked whether Mrs. Gazzam walked around every day, and he said that she did with great difficulty; that she had a very serious heart trouble.</p> <p>I believe that I have directed your attention to all of the testimony on the part of the plaintiff except the letters. Your attention has been called to about nine letters, written by defendant to Charlton Reading, and it is important that I should say something to you about them, because the allegation has been made on behalf of the plaintiff that these letters demonstrate that Mr. Reading was the paramour of the defendant, and that they have a damning effect; on the other hand, the allegation on behalf of the defendant is that these letters were written by a poor, sickly, invalid woman, in a friendly and cousinly way, to one whom she had known from her childhood. It will be for you to consider these letters carefully in connection with all the other testimony in the case, and to say what you find in them, whether you can find any support whatever for the allegations of the plaintiff, or whether you will find they were written in the way and manner in which the defendant’s counsel say they were written, that is, by a woman who was sick, and by a woman who was always accustomed to use poetical allusions in writing.</p> <p>You will remember that all of these letters were found at Williamsport, in the drawer of a bureau belonging to Mr. Reading, and that they were not locked up or concealed in any manner. I believe they were found there by his daughter. . . .</p> <p>It now becomes my duty to call your attention to the testimony offered on behalf of the defendant. Before referring to the testimony of Mr. Pigott and Mrs. Gazzam, let me remind you that Miss Nina A. Page, from Wisconsin, was called, and said that she became intimate with Mrs. Gazzam in 1892, in September; she helped her to take care of her little daughter. She saw Charlton Reading while she was a member of Mrs. Gazzam’s family, and saw Mrs. Reading and her son and younger daughter when they called. She said that the children came to play on one occasion with Mrs. Gazzam’s daughter, and that Mrs. Reading was present at a luncheon given by Mrs. Gazzam, which was the first social function she gave after she was able to be up. In the summer of 1898, Miss Page went with Mrs. Gazzam to New York. They were there two or three days, and in Brooklyn for a little time, and from there went to Long Island, then to Nyack-on-the-IIudson, then to the White Mountains, stopping at Newport on the way. They went to the Maple Wood Hotel in the White Mountains. The party consisted of Mrs. Gazzam, her daughter, her maid, Mr. Reading, and Miss Page. Reading joined the party at Nyack, and took them to the mountains. He was with them for about three weeks. The conduct of Mr. Reading and Mrs. Gazzam was simply that of a friendly relation, such as any gentleman would give to a lady who was a member of the party. Mrs. Gazzam’s health was bad during the preceding fall and winter. She was confined to her bed when the witness first went to her. At Christmas time she was able to go down to the parlor to superintend the final arrangements for the Christmas tree. Her health improved slowly, but she was essentially an invalid. She was supposed to have nervous prostration. She was able to work a little with her mind when she was not bodily exhausted. She saw people in her room. One half of her bed was not disturbed, and she often kept her papers there. She worked late into the night. The friends who called always saw her in her room.</p> <p>Mr. Melville B. Sherwood, who lives in Cornwall, and who is a gardener for Mrs. Gazzam, and has been since early in 1897, first saw Reading in 1896. The witness said that Reading was superintending Mrs. Gazzam’s business in building the house in the early part of 1897, and he spent every day during the daytime in his duties, and that the house was a mile and a half from the Elmer House. Reading continued there until December 20, 1898, and has never been there since. During the winter of 1897 and the spring of 1898, Reading boarded across the road from the Elmer House, at a place called Vogt’s. Mrs. Gazzam was not there during that time, but came about once a week to visit the place. She usually got there about noon, and went back in a train about 5 o’clock, generally accompanied by her daughter. The contractor did not finish his» contract, and Mr. Reading superintended the finishing, that is to say, the interior of the house, work connected with the electric light plant, and, in fact, everything connected with the house, more or less, as well as the place outside. Mr. Reading was a practical man, and got along all right and finished the work up. There was trouble with the electric light plant. First the plant was too small and had to be enlarged. This was done under Mr. Reading’s superintendence. The witness saw Mr. Reading from time to time with Mrs. Gazzam. Their conduct was perfectly straight, open, and above board in every way. He saw Mrs. Gazzam at the Elmer House once or twice, and when he went there he saw her in her bedroom. Her desk was in there.</p> <p>John L. Couser, whose home is also at Cornwall-on-the Hudson, and who is a carpenter, testified that he knows both Mrs. Gazzam and Charlton Reading. He said that Reading went after him to do some work at Mrs. Gazzam’s house on March 2, 1898. He procured a number of mechanics and took charge of them for Mr. Reading and under his supervision. He worked under him until he left, and Mr. Reading was there nearly the whole time, almost every clay. Pie said that Reading gave orders in regard to anything that he wished altered or done. The building had been completed by other contractors, but their work was not satisfactory and Mrs. Gazzam had this work done over: The witness started with three or four men and had as high as fourteen until some time in May, when a majority of the men were gone. He kept on a few more under Mr. Reading’s direction. The majority of the men were through in the latter part of June, when Mrs. Gazzam came there.</p> <p>Charles H. Blood, a witness for the defendant, testified that he lives in New York, and had been acquainted with Mrs. Gazzam since the fall of 1895, when he went to the Fifth Avenue hotel to take charge of her daughter. During that time the architect was selected and they commenced to build the house. “ I became her secretary and finally superintendent for her until Mr. Reading took charge. That was during the summer of 1896 that I was in charge, when there began to be difficulty with the architect and contractors. I continued the superintendency until Mr. Reading took charge on July 1, 1897. When in Cornwall the witness lived at the Elmer House. Mrs. Gazzam was there. Wherever Mrs. Gazzam went he went. The party at the Elmer House consisted of Mrs. Gazzam, her daughter, her maid, and the witness. Reading came to Cornwall about 1897. “ There had been a power house, a brick power house, which was not large enough, and I had been studying the matter for a month and I could not see the solution of it, and Mr. Reading came on the ground and said, ‘ Yes; I know how to settle that,’ and Mrs. Gazzam seemed disposed to have Mr. Reading take charge of it, which I was very glad to have him do, and he took it off my shoulders. I left Cornwall on the afternoon of June 30, 1897, and have never been in her employ since. I have been up to Cornwall a number of times visiting her, and have been with her to different places, assisting her, but never in her employ. I have visited her several times a year, and saw Reading there up to the time he left. Whenever I was there I saw him. When she was not able to have the reception room at the Elmer House, she had to take what was Mr. Elmer’s dining room in the winter as her bedroom. Her daughter’s room led out of that room. The door was never closed to my knowledge. When Mrs. Gazzam had the apartment on the left, everything had to be done in her bedroom. I never have seen anything but what was perfectly proper between Mr. Reading and Mrs. Gazzam. I have seen them all day long and all the evening until 11 o’clock at night. I have always considered Mrs. Gazzam as an invalid and never free from pain. She was unable to go up a flight of even five steps without stopping. I cannot conceive of her going out with her daughter, maid, and possibly any one else without some one to look out for her baggage and other things.”</p> <p>Then came Dr. Barcus, a physician and graduate of the Jefferson Medical College, of this city, who lives here, and who was first called to see Mrs. Gazzam as her physician about eight years ago. She was then suffering with neurasthenia and palpitation of the heart. The doctor said that neurasthenia is a great pain around the heart; a nervous affection of the heart and muscles. He said that she was confined to her bed for several years, and he treated her until she was able to get out of bed, and then he treated her on and off until the present time. He accompanied her on the European trip in 1893 and 1894, and continued with the party a little over six months. He said that Mrs. Gazzam has orders from him, if at any time she has palpitation of the heart, whether she is on the street or in a theater or anywhere else, to take her medicine, which is a little brandy and water, half and half. She is suffering from palpitation of the heart, and when she has to climb a step, or when she talks too much, her heart begins to beat very fast and she becomes exhausted sometimes. She cannot take charge of a party in traveling, and she would not be able to go about baggage rooms, looking after her trunks and other things.</p> <p>Mr. William H. Schofield, who lives in New York city, was then called. He said that Mrs. Gazzam is a cousin of his mother’s—a cousin of his once removed. He sold her the tiling and fireplace work and mantels for her place at Cornwall, and met Charlton Reading there as Mrs. Gazzam’s superintendent. He said that Reading had general superintendence of the work as it was progressing there, and he regularly called upon the witness at his office in New York with some message from Mrs. Gazzam or some instructions in regard to the contract. At the house Reading had general superintendence of the work, and would criticise any portion and request changes. The conduct and demeanor of Mr. Reading and Mrs. Gazzam towards each other was always that of a lady and gentleman. In August and September of 1899, the witness escorted Mrs. Gazzam and a party to Lake George and Lake Mohonk and returned to Cornwall. He went simply to attend to the work of traveling, as Mrs. Gazzam considered she was not able to attend to it herself, such as looking after the luggage, procuring tickets, and things of that sort.</p> <p>Mrs. Mary Reading Sanford, a cousin of the defendant, was then called. She said that her father was Judge James M. Reading, of Illinois; that she visited Mrs. Gazzam in 1895, at 2126 Walnut street, in Philadelphia—visited her twice—and visited her in Cornwall last summer % that she met Charlton Reading there in 1895, as he was there looking after the suit, or the business in relation to the Fidelity Company. In relation to the conduct and demeanor of Mrs. Gazzam and Charlton Reading, she said it was just as a gentleman should act.</p> <p>I will now direct your attention to the two letters that were produced by the plaintiff and offered in evidence by the defendant, from Mr. Reading to his wife and daughter, one written on January 9, 1899, and the other on January 12, 1899. On January 9, at 2:30 p. M., he wrote to his wife and said:</p> <p>“ My ability to pay being very limited, I cannot exhaust all my money paying debts contracted by you and the children. Considering my own condition of health and knowing I am liable in the near future to give out, I must provide for such an emergency. Unless you can see your way clear to pay these bills yourself, or are willing to see the merchants and others lose their money, you had better be very careful about having anything charged.”</p> <p>The letter to his daughter mentioned a number of bills which he had paid while he was in Williamsport, amounting to 1502.73. That letter was written on January 12, 1899, in which he said:</p> <p>“ I am in New York trying to find something to do. As to being able to pay any more bills of any amount in Williams-port, I cannot see my way clear. There is bound to be an end of this bill business and somebody will have to go without their money. The end might as well come now as later. As to any mail that comes to the house addressed to me, you are at liberty to open or do as you wish with it. There is certainly nothing that can interest me. As yon all seem to be able to run things in your own way, I wish you success.”</p> <p>The letter is signed by It. C. Reading and is addressed to Miss Adda S. Reading.</p> <p>Gentlemen, I believe that I have called your attention to all of the defendant’s testimony that has any important bearing upon this case, except that of Mr. Pigott and Mrs. Gazzam. Mr. Pigott’s testimony may have an important bearing in your opinion. He is a lawyer and a member of the Philadelphia bar, and was assistant secretary of the Fidelity Trust Company of this city from 1891 until 1894, and was secretary until 1898 when he resigned. He knew Mrs. Gazzam and he knew Charlton Reading. He became acquainted with Mrs. Gazzam in 1892, in the latter part of July. The Fidelity Company had been appointed administrator of the estate of John G. Reading, Mrs. Gazzam’s father, and she sent a note to the Fidelity Company requesting that whoever was to be in charge of the estate should" come to see her, as she was an invalid in bed. In consequence of that he went to see her, and from that time he has known her well. He became acquainted with Charlton Reading sb ortly afterwards, having seen him a few days after he first saw Mrs. Gazzam. Immediately after the appointment of the Fidelity Company as administrator, litigation was commenced by that company as administrator, and steps were taken to secure an accounting from Joseph M. Gazzam of his acts as attorney in fact under a letter of attorney given to him by the decedent, John G. Reading, and also an accounting under a certain contract which was made in the lifetime of the decedent with Gazzam. A bill in equity was filed. There were certain questions in that litigation which required evidence to support them, namely, as to the mental incompetency of Mr. Reading a short time before his death, and Mr. Charlton Reading was employed for the purpose of helping in getting the data on which to bring this suit. That was done under the advice of counsel. “ For a period of probably two years, Mr. Reading was off and on in Philadelphia in connection with that business. He did a large amount of work, some of which was very important to the litigation. Whenever he had any information to give us he came down to see us. If we wanted him we sent for him. He was practically in the employ of the Reading estate. He was the president of the Williamsport Gas Company, and we bad no hesitancy in calling upon him for his services in that connection. He had to go over the books of the decedent, which were at Mrs. Gazzam’s residence, and I recollect it took him quite awhile to do that, the books being in very poor shape, and there being a very considerable amount of information to be extracted from them. When I first met Mrs. Gazzam she was in bed, and I think for a period of about six months she was in bed. After that she was well enough to be out of bed, but she has never, to my knowledge, during my acquaintance with her, been other than an invalid. She transacted business perfectly with me at the time. It was only her physical condition, and that did not weaken her to such an extent that she could not talk with me more or less. There were occasions when, as I recollect it, the interviews were short on account of her weakness. These interviews took place at 2126 Walnut street. She was not in a condition to come to the Fidelity. They took place in her bedroom in the third story. The estate of John G. Reading held 9,000 out of 10,000 shares of the preferred stock of the Williamsport Gas Company. The Reading estate held the absolute control of that company, elected the directors and officers, and dictated its policy. The directors were Mr. Charlton Reading, Mr. John G. Reading, and some others. Charlton Reading’s official connection with the Williamsport Gas Company began in the fall of 1892. There was a special meeting of the board held. Mr. Gazzam resigned, and Mr. Charlton Reading was elected as president in his place, at a salary at first of $2,500, and subsequently it was increased to $2,700. He was not engaged at that time in any other business, to my knowledge; not any actual business of any kind. He was elected at the request of Mrs. Gazzam. The question as to who should act as president of the Williamsport Gas Company came up very shortly after the inception of the Fidelity’s duties in regard to the Reading estate. Mr. Joseph M. Gazzam had been the president, but by reason of his wife’s divorce from him, and of his discharge as executor, it was not deemed wise that the Williamsport Gas Company should be managed by him. Mr. Gazzam acquiesced in that view and resigned. Mrs. Gazzam suggested to us a short time after we undertook the management of the estate that we should elect Mr. Charlton Reading as president. I had inquiries made which satisfied me that he was a proper man to be elected, and we then elected him. Reports were made to me every month, and I kept a very close eye on the operations of the gas company until some time in the fall of 1898, when the Reading estate sold its stock to a purchasing syndicate, one of the conditions being that the purchasers should name new officers and that Mr. Reading should resign, which he did. During his presidency, from 1892 until the fall of 1898, certain absences were authorized.”</p> <p>Mr. Pigott testified that Mr. Reading consulted him on several occasions with reference to the propriety of his going away from Williamsport, and he was authorized by Mr. Pigott from time to time to leave Williamsport, in connection with Mrs. Gazzam’s business. Mrs. Gazzam wanted him to accompany her to certain places, and Mr. Pigott authorized that it should be done. His going to certain places also applied to his going to Cornwall in connection with the building of the house. After the lot was bought, Mrs. Gazzam consulted Mr. Pigott two or three times with reference to the plans and the contract with the architect, and she also consulted with Mr. Charlton Reading on the same point. Mr. Pigott was present at two or three of these conferences, at the Fifth Avenue hotel, and also at the Elmer House at Cornwall, at which Mrs. Gazzam and Mr. Charlton Reading were present. Those conferences were held in her room, on the first floor at Cornwall, and on the top story at the Fifth Avenue hotel.</p> <p>I have reserved the testimony of Mrs. Anna Reading Gazzam, until this moment, because I think it my duty to refer to it copiousty. As I have already said to you, this is a very serious charge that you have to deal with, a tremendous charge, the alienation of a married man’s affections, stealing him away from his home and family, and breaking up that home; and this defendant, who is charged with these grave offenses, is entitled to have your attention directed to everything that she has to offer by way of defense.</p> <p>She testified that she is the daughter of the late John G. Reading, who died in 1891; that she has only one child, a daughter, Antoinette Elizabeth, whose age is now seventeen, and who lives with her at her home in Philadelphia, where she has always resided with her mother except when they have been traveling; that sbe has only one uncle who survived her father, and he resides in Maryland, not very far from Washington, and is an elderly man. According to her testimony, she thinks she is about a third cousin, as near as she knows, to Charlton Reading. Another cousin of the same connection told her so. She has known Charlton Reading all her life, although for years she saw nothing of him, but the families were very intimate. His elder sister was one of her mother’s most intimate friends; in fact, they were very much more intimate than some branches of first cousins brought up together as first cousins. She is the first cousin of John G. Reading, Jr., but the only time she has seen him since her father’s death was when she sent for him as soon as she felt able, to give him one or two momentoes her father had left him. He had been in the habit of visiting there at times for a short time, but he never came to see her after her father’s death except on this one occasion. He went to Mr. Gazzam instead of coming to her. At the time of her father’s death she had no near male relative with whom she could consult. Her elderly uncle was far away and was unable to come. She applied for her divorce early in 1891, and the decree was held over until 1892. At that time she was confined to her bed, suffering from extreme heart exhaustion, and for two years had not been able to arise from her bed. She said that was the summer when her physician, Dr. Barcus, gave her treatment that began to get her out of bed. It was a very slow process. Afterwards her health gradually improved. When the name of Charlton Reading was brought up to her room, she had just been talking with her counsel in regard to the divorce matter, and was obliged to send her regret that she was unable to see him. He sent word that he would be in the city for a few daj's, and he called again in about two days. She said:</p> <p>“ He came up to me at that time and asked me what was this trouble that he heard of? Was it true I was getting a divorce ? Mr. Reading asked me if this were true, if I was getting a divorce, and I said, yes. He seemed kindly interested and asked me what the trouble was, and I think I showed him a copy of the evidence. He asked me when the decree would be given, and I told him on the following clay. He said, how strange that he should happen there just the day before the decree; he thought it fortunate, that some one should be there, some friend of mine. He asked me if I had any relatives that would be there, and I said, no. I knew nothing about it, not that it made any difference at all. He said he thought it would be better, that there were many unjust things being said concerning me, and he would like to see this for himself and be able to speak by the boards for one of his own family and name. He asked if had any objection to his .going there. I said certainly not. He went, and called upon me again, I think, in a day or two, and told me a friend of his had stated to him, that as Mr. Gazzam was to be asked to resign from the presidency of the gas company, perhaps he could obtain it. He told me he had nothing to do for three or four years; that in every way he was very unhappy; he was almost at the point of despair ; he was just about leaving this- part of the country if not the world; that his family were very unkind to him; that he had been ill for a year from a fall on the back of his head, and if I could give this to him by my influence with the trust company, it would help him very much. I did so. I used my influence with some little trouble, as Mr. Pigott has said. Finally, the situation was obtained. The tears rolled down Mr. Reading’s cheek when he spoke of his cousin, my father, and he offered, with a great deal of gratitude, to do anything for me that a relative might do, seeing how much I was alone and I needed him. I did not expect to be able to use that offer so soon, but in a very short time afterward a question arose about the placing of the estate in a trust company, and Mr. Reading said to me when he left to return home, that he would come at any moment to my assistance. He said if I would send him a telegram which would reach him some time in the afternoon, he could take the midnight train from Williamsport, and he could be here in the morning, and I should not hesitate to call upon him at any time; therefore, after a few days I wired him to attend to a matter which had to be settled, I was told by my counsel, in three days. Mr. Reading took the midnight train, as I said, and attended to the matter, and was out among the trust companies all day for one or two days, and finally placed it in the Fidelity. After that he returned to Williamsport. Some time during the early part of the summer he had taken my little daughter and her governess to his sister’s, Mrs. Remington, who lived near Williams-port, in order that the child might remain in the country for the summer, and later he brought her back to me with the governess. I rather think that Mr. Reading was one of the first ones who told me that the equity suit was needed to be brought. I didn’t know the necessity of it. He offered his assistance and gave it at all times, in regard to data concerning the suit. I think the first trip that I made at all was to New York in the early part of 1893, probably the spring of 1893. I went there with the assistance of another cousin, who met me and helped me in New York. Mr. Reading was not there. I remained in New York and went from there to the seashore, trusting to just ourselves (a lady was with me), but we did not get through very safely. Q. Do you recall where you went in the summer of 1893 with a party? A. We went from Nyack. We were just about leaving Nyack when I sent for Mr. Reading. We went from Nyack to Newport, I think that was the first stop, and we remained there for one day, and I think we went to Boston and remained a day there, and then we went to the WMte Mountains, to the Maplewood Blouse. The party was composed of my friend, Miss Page, my daughter and maid. Miss Page was the daughter of one of my physicians, and was assisting me with Antoinette; she was teaching her a little. She and Antoinette and the maid and Mr. Reading were of the party. In the White Mountains we accidentally met the Richeys of Trenton, who were distant relatives ; I think probably about as nearly connected as Charlton Reading. Mr. Augustus G. Richey was a lawyer, and was an intimate friend of my father’s, and one of the executors named in my father’s will, and he had been intimately associated with my father in business transactions. We stopped at the Maplewood Blouse. We started about the 1st of August, and we must have been altogether on the trip, I imagine, about three weeks probably. I returned to New York a few days in advance of the 2d of September, because I was to sail on the 2d of September with my physician for Europe. The party to Europe was made up of Dr. Barcus, my physician, Miss Schofield, the daughter of my cousin, the Rev. J. H. Schofield, and my child, and we crossed without any maid. No one else joined the party, but my cousin was called home on account of illness and the doctor was also obliged to leave me. I was absent from the country a little over a year. I sailed for Europe on the 2d of-Septen> her, and returned in the latter part of October or November. I went to the Murray Hill Hotel, in New York city, and from there to Philadelphia for a few days, and from there to WiP liamsport. When I returned I had planned to visit two of my eldest family relatives, my aunt, in Illinois, the wife of Judge Reading there, the widow of my father’s brother, Judge Reading, of Illinois, and this cousin I have alluded to before, Mrs. Remington, near Williamsport. I was very, very much overcome and prostrated by the journey home from the effects of the sea voyage. I was met in New York by Mr. and Mrs.' Watson, of Philadelphia, also some of my cousins, the Schofields, and Mr. Charlton Reading. I had not apprised him of my return or of the vessel I would take, but he had learned it through the trust company, and said he was afraid no one would be there to help me through the custom house, etc., and see after my luggage or meet me. I remained in New York a week or two longer, trying, as soon as I was able, to look at lots in that vicinity.”</p> <p>She then paid a visit to Williamsport shortly after her return from Europe, and she was told by her counsel that it had been testified to by Elizabeth Reading that on a certain occasion she went to an hotel where the witness was staying, and entering the room saw the witness and her father sitting on a sofa, and that his arm was around her; and she was asked to state whether or not such a thing occurred, and she said it had not. After she left Williamsport she returned to Philadelphia, and remained there throughout the winter until it was time to leave the next summer. In the summer of 1895 she went to Spring Lake, where she remained three or four weeks during the month of July. The party there was composed of her daughter; a young friend of hers, her maid; and herself. The young frjend was Miss Coldburn. They stopped at the Monmouth House. Charlton Reading was not there. She said: “ I found the air disagreeing with me-so much that I must change to the mountains. I then sent for him, asking him if he could take me and he replied immediately that he could. He came-a day or two, possibly two'or three'days before we left, and arranged for our departure, and took us.- It was about .the'1st of August that we left ther'e. - W e went-first tó the'.mountains southward/ and then as that disagreed, northward until we reached finally Canada. We passed through Washington and visited my uncle for half a day, the one who was then still living. From there we went to the St. Lawrence.”</p> <p>She was asked whether she went to a ball at Spring Lake with Mr. Reading, and she said: “Idid. We went to the governor’s ball and I took some friends of mine who were living at Spring Lake. The Rev. Doctor Willit’s daughter was to meet me there and some other friends. An evening or two before we went, the young people thought they would enjoy going, so we went over to Sea Girt f o'r a little while in the evening. The ball was held in the Beach Hotel at Sea Girt. The party was not dissolved until I was located the following fall for my winter quarters.”</p> <p>In the following fall her winter quarters were in New York city, in the Fifth Avenue Hotel, but she first visited Cornwall that fall. She was at Cornwall three or four weeks. She purchased a property there in February or March. “ While in Cornwall the air seemed to suit me so well I concluded to look for a lot there. There was a lot that I liked very much, but I said, however, that I had no idea of taking any ground of any extent at all, that I was not able to look after it, being a woman alone, but the location was very desirable. Mr. Reading was looking at those lots with me, and he said, ‘ Oh, you won’t have very much trouble with the ground; if you need advice of any kind I can give it to you.’ My little daughter liked the location very much and I thought over it through the winter, and in the latter part of the winter concluded to buy it if I could. I found that I could buy it, and did so. I bought it in the early part of 1896. I commenced immediately with the architect concerning the plans. He had promised to hurry it for me. I think the ground was broken that spring and the foundations were slowly progressing through the summer of 1896. There were many difficulties. They began very soon. In September of 1896 my first difficulty was with the architect in the great delay of the contract being submitted to me. That delayed the foundation until late in the fall. Mr. Reading was in Cornwall about that time. That was in the latter part of 1896. He criticised some things about the foundation, but I paid no attention to his criticism. Some time later I regretted that I had not listened sooner. He returned to Williamsport and had nothing to do with the construction of the house, as I remember, until the early part of 1897. Early in the summer of 1896 I visited my relatives in the west, Judge Reading’s family, the aunt that I have alluded to before, and the rest of the family. I made the trip without Mr. Reading, some of my cousins there being kind enough to meet me at Chicago, cousins that live beyond Chicago. When I returned I found very great difficulty with my horses and coachman. There was a stable already upon the place that I was building, and I thought it just as well to have my own horses and coachman that summer, as I should be needing to go constantly back and forth between the Elmer House and the place that I was building, and I might as well, I thought, keep my own horses in the stable that I had there, and have them always at my command. So I bought horses without the aid of Mr. Reading in New York, the previous spring, and had arranged with a man at Cornwall who had lived upon this place with the family who lived there before I bought the place. I felt he was acquainted with the place. It was something I was entirely unaccustomed to, the charge of a country place. The coachman’s report was terrifying in regard to the horses. In my dismay I sent for Mr. Reading. He came, and I told him that I felt that I had been cheated in the horses. I didn’t know which way to turn about it, but I thought he could return them or have them returned in some way through the man from whom I purchased them. We tried to imagine that the horses were better, tried them some little time longer, but they were not. After that my health became very much run down at the Elmer House. I was obliged to leave for a little while. I sent for Mr. Reading to take the party to Lake Mohonk. Mr. Blood, my daughter’s tutor, was to have joined us in the summer, but he was unable to do so, on account of having been poisoned by a poisonous vine. It was that fall that Mr. Reading criticised something about the foundation, and I paid no attention to it. In 1897 matters were showing themselves wrong. The foundation was not going as it should. I asked Mr. Reading to put his practical superintendence upon it. He came and took the superintendence of the house on a salary, as has been mentioned, of $50.00 and $100, with different arrangements as to paying his board. That arrangement continued until he left. He superintended it through the summer of 1897, and in the fall of 1897 the house was still in the midst of incompletion. I went to New York with my daughter for her education. Mr. Reading remained at Cornwall upon the construction of the house. I was in New York from December 1, 1897, and didn’t go back to Cornwall until I was able to get into a part of the house on the 1st of the following June. During those six months from December, 1897, to June, 1898, Mr. Reading was at Cornwall superintending the building, and I was at New York, at the Fifth Avenue Hotel, with my daughter and maid, and the tutor visited there during the day to teach her. During the early part of that period I did not go to Cornwall so frequently, as I recollect it. Later I found it necessary to go oftener, as the decorators were at work. I generally found something wrong when I arrived. Mr. Reading lived during that time in Cornwall at a boarding place that was rather less expensive than the Elmer House, across the street, a small boarding house. The name was Vogt. I stayed at Cornwall during those visits a few hours between trains, long enough to overlook the work, but not over night. I do not remember staying there at night at any time between December, 1897, and June, 1898. I think possibly my daughter and myself remained there a night, occupying the same room, one night before the house was finished. Q. When you went up to Cornwall to stay in June, 1898, where did you go? A. To my own house. The house was far from being completely finished. The work on the house and its belongings and the work of improvement was going on. It was scarcely finished by the 1st of January, 1899. From the time we went up there to live in the house until the following winter the work that was going on was the finishing of the interior, painting, finishing the walls, furnishing, upholstery work, and outside work. There was trouble in getting electric light. Mr. Reading had charge of all the work of finishing up. There was also some grave question about an artesian well. Mr. Reading left there in December, 1898, I should think some time before Christmas. The work was scarcely finished; it had dragged very much. My confidence had been shaken in Mr. Reading, and I complained to him at times. At that time, in fact, a little before that, Mr. Reading had received his payment from the sale of the Williamsport Gas Company, a commission he received from the sale. Q. Prior to that time you had been served with a writ in this case ? A. Yes, sir.”</p> <p>Her attention was called to the two letters that Mr. Reading wrote to his wife and daughter, and she said she never knew anything of their contents until that moment, and never knew the letters had been written until after they had been received, and she heard through a member of the family that they had been written. She continued: “ You asked me about my difficulties with Mr. Reading before he left. I should like to add that among other things, I found that he was not working for my interest. He was very much incensed, apparently, at a firm in New York who had been discovered by their own accounts to be defrauding me, but in their presence, when they came together, I found that he would not stand on my side, and yet he had the evidence in writing. That was one of my complaints.”</p> <p>Then her attention was called to the fact that it had been testified to that she had bought Mr. Reading a suit of clothes, and she said: “ I never presented him with that suit of clothes. I had just paid him a bill—paid him for some services that he had rendered me. He remarked as he received the money or the check, that he would now get himself with it a suit of clothes that he had long been wanting. I think he said he had never had an afternoon suit; he never had any money left for his clothing; he would now have a suit that he wanted.”</p> <p>She was asked whether, at the last time she saw Mr. Reading, in December, 1898, or at any prior time, she had any idea he was going to leave his family, and she said, “ Certainly not.” Her attention was called to these letters that she had written, and she said that she was in the habit of writing, possibly using quotations in rather a flowery way at the time, and in a friendly way, to all her friends, ladies, cousins. “ I would make little quotations from my favorite poets sometimes to fit in a little occasion.” As a matter of fact, about that time she had just finished writing a volume of poems, and she said her pen was in that style.</p> <p>On cross-examination she was asked whether she had not a number of first cousins, and her attention was directed to their names, the children of her father’s brothers, and she admitted that she had such cousins. She said that Charlton Reading “ came to me just the day before I was obtaining my divorce, and before the decree was given. After that he came in two or three days and asked for his position. After that, I think, he was still in the city. He may have called again. He took my daughter, I believe, to Williamsport. Then he came to place the trust for me in the Fidelity. In the fall of 1892, Charlton Reading was assisting me in the equity suit. I was not preparing the suit in person, but I gave any assistance that the Fidelity Company asked, as far as I could. Mr. Charlton Reading came to my house and looked in my father’s papers, and looked over different account books, and many details that I cannot recall now. This was the equity proceeding against Joseph M. Gazzam by the Fidelity Trust Company.”</p> <p>She was asked again as to the trip to the White Mountains, and she said : “ Charlton Reading was sent for to be our escort. I sent for him to act as our escort. I think we were in the White Mountains about two weeks. We were away on the whole trip, I suppose, nearly a month, in getting there and in returning to New York, and to my father’s old home in Flemington, where the old graveyard is. I asked Mr. Reading to take me there before sailing. I wished to see that that was taken care of before I sailed. He took me there for that purpose, with my child and maid.”</p> <p>She was asked whether, as a matter of fact, Mr. Reading took all his meals at the hotel while she was in Williams-port, and she said, “ Certainly not; not that I am aware of. Q. Didn’t he decorate your room with flowers daily ? A. No, sir; he did not decorate my rooms with flowers daily, but he had three or four pots of chrysanthemums in the room. I passed his house in the evening and his vestibule was decorated with very pretty pots of chrysanthemums, and when I reached my room I found a welcome there of three or four pots of chrysanthemums.”</p> <p>She was asked who went with her to the Hot Springs of North Carolina, and she replied, “ Miss Colburn, my daughter, my maid, and Mr. Reading. We remained there until about September 1,1895 ; went from there to Washington, where we remained a day or two. Mr. Reading was with us. Then we went to Alexandria Bay, on the St. Lawrence. Q. In going to Alexandria Bay, on the St. Lawrence, you passed through Williamsport, in company with Mr. Reading, didn’t you ? A. I did. Q. You did not stop? A. The train stopped twenty minutes or more, I think, and Mr. Reading was looking for his son at the-station. Q. What time of night was it? A. I don’t remember; it was in the night. Q. What time did he join you in the beginning of 1896 ? A. That was the summer I sent for him on my arrival at Cornwall to take care of the horses for me. Q. That was the time you had difficulty about the horses and coachman? After you got through with the difficulty with the horses and coachman you went to Lake Minnewaska with him, didn’t you ? A. To Lake Mohonk. I didn’t go to ■ Lake Mohonk until later; he returned home. Q. He went home and then came back and took you to Lake Mohonk, didn’t he? A. Yes, sir. Lake Mohonk is not very far from Lake Minnewaska, up in New York state. Q. What business had he remaining three weeks at Lake Mohonk after having taken you there? A. He was waiting to receive this contract from my architect. It was expected daily. Finding writing did little good, I began to telegraph to the architect, and at last it did not arrive until after Mr. Reading left. That detained him from day to day longer than he would have stayed. Q. Where did he go from Lake Mohonk ? A. I suppose he returned to his home. He did not come back for me. My daughter’s tutor joined us there, and he brought us down to Cornwall. That was in the fall of 1896. In the winter of 1896 and 1897 I went to New York, to the same hotel, the Fifth Avenue. Daring that time I suppose Mr. Reading was in Williamsport.”</p> <p>She said that the house was given over to an architect for his part. “ I found that the architect was not carrying out his contract. I dismissed him, as I was obliged to do with some of the other contractors. I was obliged to have the other contractors supervised, as I found that they were not carrying out their agreements. For instance, when Mr. Reading came there, he had to have some change made in the foundation of the walls, and the drainage that they had agreed to put there, on examining the walls, he found it had not been put in, one very special and main drain from the house. In many matters of that kind, things needed supervision that it had not received from the different contractors. Q. Did you make a contract with them that it should be done subject, to the supervision of Charlton Reading? A. Certainly not. I understood that it was allowable to have a superintendent. At any rate, a superintendent was necessary, and they raised no objections. The contractors raised no objections. Q. Did you pres'ent a gold watch and chain to Charlton Reading ? A. I did. Soon after he first assisted me, attending to my trust matters, I saw that Mr. Reading pulled out a watch that made me a little sorry to think that a relative of mine of his age was not better fixed than that, and I thought it better, rather than to offer my cousin money, who had not been regularly under my employ, to express my gratitude in that way. That was during, I think, the first summer he came to me. Q. When was it you gave him the diamond scarf pin ? A. I did not give him what I would call a diamond scarf pin. I think I gave him some kind of a pin that had some small setting, I suppose. I do not recollect when that was. That was some time later. ■ It was just as I have been accustomed to giving those things to my relatives occasionally. Mr. Reading had told me, after my kindness to him in obtaining this position and support for his family, that I could call upon him as one of my nearest relatives of the name to do anything for me where I needed a relative to do for me, and I sent for him and paid his expenses. Of course, I would not allow him, out of his salary, to pay the expenses of a trip, but I never offered him money for that that I remember.”</p> <p>Verdict and judgment for plaintiff for $25,000. Defendant appealed.</p> <p>Error assigned was in submitting the .case to the jury.</p>

<p>Appeal, No. 329, Jan. T., 1900, by David D. Lupton et al., from order of C. P. Phila. Co., March T., 1900, No. 836, refusing application fora charter in In re Roofing & Sheet Metal Contractors’ Association of Philadelphia.</p> <p>Application for charter.</p> <p>Error assigned was in not approving charter in the form presented.</p>

<p>Appeal, No. 332, Jan. T., 1901, by defendants, from judgment of C. P. Lehigh Co., Sept. T., 1900, No. 13, on verdict for plaintiffs in case of George E. Stiles and John M. Hall, Receivers of the Dimes Savings Bank of Willimantic, Conn., v. William C. Seaton et ah, trading as Seaton & Baines, and Frank M. Trexler, trustee in mortgage executed by Seaton & Baines.</p> <p>Replevin for certain machinery. Before Albright, P. J.</p> <p>At the trial it appeared that on July 17, 1895, John L. Walden acting for the Dimes Savings Bank of Willimantie, Connecticut, entered into the following contract with Seaton- & Baines :</p> <p>“Exhibit ‘A.’</p> <p>“ Agreement by and between John L. Walden, of the city of Willimantie, town and county of Windham, and state of Connecticut, and William C. Seaton and Henry C. Baines, both of the city of Allentown, county of Lehigh, state of Pennsylvania, partners in business under the firm name of Seaton & Baines, and having their office and principal place of business in said city of Allentown.</p> <p>“Said John L. Walden, in consideration of two thousand dollars, received by him of said William C. Seaton and Henry C. Baines, agrees to rent, and said William C. Seaton and Henry C. Baines agree to hire the following articles of personal property, to wit:</p> <p>“ 20 spinning frames, of 108 spindles each,</p> <p>8 spinning frames, of 93 spindles each,</p> <p>7 short spinning frames, of 72 spindles each,</p> <p>2 spinning frames, of 108 spindles each,</p> <p>8 organzine doublers,</p> <p>4 reels,</p> <p>8 winders,</p> <p>1 organzine doubler,</p> <p>(all of said machinery having been manufactured by the W. G. & A. B. Morrison Company of Willimantic, Connecticut), for the monthly rent of five hundred dollars ($500), payable without demand, on the 17th day of each month next hereafter, at the office of said John L. Walden, in said town of Windham; and it is further agreed that if said rent shall be promptly and fully paid whenever the payments shall amount to the sum of nine thousand eight hundred and eighty dollars and seventy cents ($9,880.70), said property shall belong to said William C. Seaton and Henry C. Baines.</p> <p>“ And in consideration thereof the said William C. Seaton and Henry C. Baines, agree to use said property carefully and not to underlet, sell, or assign any interest in said property or in this lease, nor to remove it, or suffer it to be removed, or any part thereof, from the top floor in the West End Silk Mill, so-called, situated on Twelfth street, in said city of Allerrtown, without the written consent of said John L. Walden endorsed hereon.' And if default shall at any time be made in the payments of rent, as aforesaid, or if any of the agreements herein be violated, then this lease shall become void, and said William C. Seaton and Henry C. Baines, shall, without notice, forthwith return said property in good condition, ordinary wear only excepted, to the place of business of said John L. Walden, in said town of Windham, or to any place which he, his assigns, or representatives, may direct, and they, or either of them, may at any time with or without process of law, take actual possession thereof, and for that purpose, or to search for the same, may enter any premises of said William C. Seaton and Henry C. Baines, or to which William C. Seaton and Henry C. Baines has access, using such force as may be necessary. And said William C. Seaton and Henry C. Baines hereby waive any right of action for trespass or damages therefor, and agree to pay all cost, expenses, and fees of every kind incurred therein, and in case of a forfeiture of this lease as aforesaid, for default in payment of rent or otherwise, all moneys then having been paid shall be retained by and belong to said John L. Walden.</p> <p>“Provided, however, that said John L. Walden, his agent, assigns, or representative, may at their option, elect to affirm this lease, and to sue for and recover any amount due thereon, with interest and cost.</p> <p>“In witness whereof we have hereto subscribed our names and affixed our seals and to a duplicate of the same tenor and date, this seventeenth day of July, A. D. 1895.</p> <p>“ W. C. Seaton, [l. s.]</p> <p>“ H. C. Baines, [l. s.]</p> <p>“ In presence of Thomas J. Kelley.”</p> <p>The defendants introduced evidence which tended to show that the original intention of the parties as shown by conversations prior to July 17, 1895, was that the defendants should purchase the machinery; they also showed that a portion of the machinery had been delivered prior to the making of the written contract.</p> <p>Defendants presented these points :</p> <p>1. That the machinery had been delivered to Seaton & Baines before the execution of exhibit “ A,” and that said exhibit did not affect the terms or conditions upon which said machinery was sold and delivered. Answer: Refused. [1]</p> <p>2. The paper marked exhibit “ A ” is a conditional sale and not a bailment. Answer: Refused. [2]</p> <p>3. Under all the evidence the verdict must be for the defendants. Answer: Refused. [3]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-S) above instructions, quoting them.</p>

<p>Appeal, No. 222, Jan. T., 1901, by plaintiffs, from judgment of O. P. No. 8, Phila. Co., March T., 1900, No. 376, on verdict for defendants in case of John FI. Guille and Michael Farren, Guardian of the Estate of Alfred Joseph Guille v. George Campbell and James D. Blackwood, trading as George Campbell & Company.</p> <p>Trespass for personal injuries. Before McMichael, J.</p> <p>At the trial it appeared that the plaintiff, a boy about twelve years old, was injured on December 21, 1898, by an iron hook which was thrown by, or slipped from, the hands of Patrick Fitzgerald, an employee of the defendant. The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendants.</p>

<p>Will— Vested interest—Survivor.</p> <p>Where a testator gives property to a trustee in trust for the minor children of a son, naming them, “ until they respectively arrive at lawful age, or the survivor of them, or the heirs of such survivor, share and share alike,” and by codicil postpones the bequest until they attain the age of twenfy-five years, and all of the minor children named in the will survive the testator, their respective estates vest in them and they are entitled to receive their shares when they reach their majority, the postponement to twenty-five years being void, as contrary to the rule against perpetuities and accumulations.</p> <p>The rule is well settled in Pennsylvania that the period of survivorship is to be taken as the death of the testator, unless a contrary intent is apparent.</p>

<p> Road law—Assessment for paving—Foot front rule. </p> <p>A city may assess the cost of paving a street upon the abutting property owners according to the “ foot front ” rule, and without regard to the actual number of square yards of pavement iu front of any particular property. The fact that a street railway company has paved a portion of the street in front of a particular property, does not relieve the owner from assessment on a pro rata basis, ascertained by dividing the entire cost of the improvement in proportion to the entire number of feet of property fronting on the street.</p>

Appeal, No. 35, Jan. T., 1901, by plaintiff, from decree of C. P. Lackawanna Co., Jan. T., 1901, No. 1, on bill in equity in case of Luther Keller v. City of Scranton, the Delaware, Lackawanna and Western Railroad Company and the Scranton Railway Company. Bill in equity for an injunction, to restrain the construction of a viaduct.

Appeal, No. 75, Jan. T., 1901, by certain defendants, from decree of C. P. Berks Co., Equity Docket 1900, No. 771, on bill in equity in case of Moses K. Graeff v. George H. Felix, Frederick P. Heller, MatthanHarbster and Israel S. Fry, claiming to be the Board of Water Commissioners of the city of Reading, the City of Reading and Joseph P. O’Reilly. Bill in equity for an injunction. The facts sufficiently appear by the opinion of the Supreme Court.

<p> Husband and, wife—Wife as creditor of husband—Fraud—Evidence. </p> <p>Fraudulent collusion between husband and wife is so easy of execution and so difficult of proof that it is the well settled rule that a wife claiming as a creditor against other creditors of the husband, must prove her claim by evidence clear and satisfactory to a degree beyond that required of other creditors, and leave no doubt of its good faith and its truth in fact.</p> <p> Auditor—Finding of auditor—Review—Husband and wife. </p> <p>An auditor’s finding of fact confirmed by the court below to the effect that a judgment was entered by a husband in favor of his wife at a time subsequent to the creation of the debt, and collusively and in fraud of other creditors, will not be reversed except for clear error.</p>

<p>Corporations—Charters—Clubs—Name in foreign language—Act of April 29, 1874, P. L. 73, sec. 2.</p> <p>The absence of necessity for a charter for a purely social club is no valid reason for refusal of a charter.</p> <p>It is no valid reason for refusing a charter that the name of the prop'oséd corporation is in a foreign language.</p>

<p>Appeal, No. 353, Jan. T., 1900, by plaintiffs, from decree of O- P. No. 1, Phila. Go., June T., 1900> No. 720, dismissing bill in equity in ease of Charles J. Suplee and William M. Van Leer, trading as Suplee & Van Leer, v. Sarah E. Callaghan and Bernard Macmackin.</p> <p>Bill in equity to set aside a lease.</p> <p>The bill alleged that the plaintiffs were judgment creditors of Sarah E. Callaghan, that in June, 1896, Sarah E. Callaghan was a member of the firm of “ The estate of George Callaghan, deceased,” that in September, 1896, Sarah E Callaghan leased to Bernard Macmackin certain real estate in which she had a life interest; that this lease was in fraud of the rights of creditors; that on October 19, 1896, Sarah E. Callaghan with the other members of the firm trading as “ the estate of George Callaghan, deceased,” made a general assignment for the benefit of creditors. The bill prayed for a cancellation of the lease.</p> <p>The defendants demurred to the bill.</p> <p>The court sustained the demurrer and dismissed the bilL</p> <p>Error assigned was in dismissing the bill.</p>

<p>Appeal, No. 54, Jan. T., 1901, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1895, No. 602, on verdict for plaintiff in case of Anna Maria Wiest v. City of Philadelphia, the Electric Traction Company, Appellant, and John W. Hoffman and Ernest Law, trading as John W. Hoffman & Company.</p> <p>Trespass for death of plaintiff’s husband. Before Audenried, J.</p> <p>At the trial it appeared that on June 24, 1894, plaintiff’s husband fell over a girder rail lying in a gutter, and received injuries from which he subsequently died. The accident occurred in the evening. J. W. Hoffman & Company were contractors engaged in laying tracks for the Electric Traction Company. The court instructed the jury that there could be no verdict against J. W. Hoffman & Company, and submitted to the jury the question of the negligence of the Electric Traction Company.</p> <p>Verdict and judgment against the Electric Traction Company for $5,000 and in favor of the city of Philadelphia and J. W. Hoffman & Company. The Electric Traction Company appealed. ^</p> <p>Errors assigned were (1) the portion of the charge as to damages, quoted in the opinion of the Supreme Court; (2, 3) in submitting to the jury the question of negligence of the Electric Traction Company; (4) in giving binding instructions in favor of J W. Hoffman & Company.</p>

Appeal, No. 192, Jan. T., 1900, by defendants, from order of C. P. Luzerne Co., Feb. T., 1900, No. 16, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of S. Y. Frederic v. William H. Margwarth and Frank J, Margwarth. Assumpsit on award of arbitrators. Rulé for judgment for want of a sufficient affidavit of defense.

Appeal, No. 246, Jan. T., 1900, by Peter Sutton, from judgment of Superior Gourt, Jan. T., 1899, No. 117, reversing decree of O. C. Luzerne Co., No.. 704, of 1875, allowing claim of Peter Sutton as a creditor. Appeal from Superior Court. The. decedent sold a farm on November 23, 1872, to his son, Peter Sutton. The contract was a sealed writing.

Appeal, No. 264, Jan. T., 1900, by Almira Sutton et al., from judgment of Superior Court, Jan. T., 1900, No. 58, affirming decree of O. C. Luzerne Co., No. 704, of 1875, in estate of Silas Sutton, deceased. Appeal from Superior Court. W. W. Porter, J., after stating the facts as set forth in Sutton’s Estate (No. 1), ante, p. 158, affirmed the decree of the orphans’ court in an opinion which was in part as follows : The appellant is the wife of Ira G. Sutton.

Appeal, No. 305, Jan. T., 1900, by plaintiff, from judgment of C. P. Huntingdon Co., Feb. T., 1899, No. 11, on verdict for defendant in case of Alice B. Templeton v. The Township of Warriorsmark. Trespass to recover damages for personal injuries.

<p>Appeal, No. 6, Jan. T., 1901, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 1220, on verdict for plaintiff, in case of James A. McCullough v. John Henry Willey.</p> <p>Sheriff’s interpleader to determine' ownership of personal property. Before Brbgy, J.</p> <p>This was a feigned issue upon a sheriff’s interpleader under the act of April 10, 1848, in which James A. McCullough claimed to be the owner of certain spinning machinery levied upon under an execution of John Henry Willey against Josiah Crowther. No bond having been entered by the claimant, the machinery was sold by the sheriff for $2,790, which was paid into court.</p> <p>The facts appear by the opinion of the Supreme Court and by the former report of the case in 192 Pa. 176.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Insurance—Mutual life insurance—Designation of beneficiary—“ Devisee.”</p> <p>Where a member of a mutual life insurance company states in his application that the insurance shall be paid to the “devisees” under his will, or in case of their death to his “ heirs at law,” and the company certifies that it agrees to pay “ to his devisees, or if no will specifically bequeathing the benefits which shall be payable on account of this certificate shall appear, and be brought to the knowledge of this association within sixty days after the death of the said insured, then to the heirs at law of said insured,” and the insured by his will gives, devises and bequeaths all his property to his wife, the wife is entitled to the insurance money.</p>

<p> Negligence—Street railway companies—Neglect of motorman. </p> <p>Where the motorman of an electric car is warned that the-wall of a building in course of demolition is about to fall against a pile of bricks close to the track ahead of his ear, and the evidence shows that he saw and heard, or that he must have seen and heard a person calling him to stop, and that the warning was given him in time to enable him to stop his car, but he did not stop and the falling wall forced some of the bricks into the car injuring a passenger, the railway company is liable to the passenger for the injury sustained.</p>

<p>Appeal, No. 50, Jan. T., 1901, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1900, No. 214, on case stated in suit of John L. Westfall v. Frederick Washlagel.</p> <p>Case stated to determine the marketable title to real estate.</p> <p>The material portion of the case stated was as follows :</p> <p>On April 8, 1851, by deed duly recorded on October 24, 1858, in the office for the recording of deeds, etc., in and for the city and county of Philadelphia, in deed book T. H., No. 107, page 504, etc. Samuel Sheble, George Russell and John Edgar, trustees of the Franklin Land Association of the county of Philadelphia, conveyed to Mahlon Fowler, inter alia, all those two certain contiguous lots or pieces of ground situate in that part of the city of Philadelphia lately called “ The Unincorporated Township of Northern Liberties of the County of Philadelphia,” at the southeast corner of Erie avenue and Marshall street, containing in front or breadth on said Erie avenue forty feet, eleven inches and a quarter (the corner lot being twenty feet, five inches and a quarter in front and the eastern lot twenty feet six inches in front), and extending those widths in length or depth southward between lines parallel with the said Marshall street ninety-seven feet, six inches, numbered 629 and 630, on the plan of the Franklin Land Association.</p> <p>And Oliver S. Fowler and Emma, his wife, and Jacob Crissy and Lydia, his wife, by deed dated April 20, 1872, and duly recorded on May 1, 1872, in the office aforesaid, in deed book J. A. H., No. 234, page 488, granted and conveyed the said premises unto Rachel Brown, in fee, reciting that the aforesaid Mahlon Fowler died seized thereof, having first made and published his last will and testament in writing, bearing date January 31, A. D. 1857” after his decease duly proved on April 2, 1857, and registered in the proper office at Philadelphia, and recorded therein in will book, No. 110, page 397, etc., wherein and whereby he did direct as follows, to wit: “ I give and bequeath unto my beloved wife Lydia Fowler all my real estate that I now have or may have hereafter in Pennsylvania or any other state whatever, during her natural life, and all that remains at her decease to go to my son Oliver S. Fowler, his heirs and assigns forever,” and that the said Lydia Fowler hath since intermarried with Jacob Crissy.</p> <p>And the said Rachel Brown, by deed dated February 23, 1874, duly recorded in the office aforesaid on February 24, 1874, in deed book F. T. W., No. 105, page 385, etc., granted and conveyed the first above mentioned (corner) lot, containing in front on the said Erie avenue twenty feet, five inches and one quarter, and extending in depth ninety-seven feet, six inches to Gustavus Gerstley in fee.</p> <p>And the said Gustavus Gerstley, by deed dated January 28, 1883, duly recorded on January 24, 1883, in the office aforesaid, in deed book J. O’D., No. 79, page 409, etc., granted and conveyed the above mentioned corner lot to the plaintiff, John L. Westfall, in fee.</p> <p>And the aforesaid Rachel Brown, by deed dated February 23, 1874, duly recorded in the office aforesaid on February 24,1874, in deed book F. T. W., No. 105, page 383, etc., granted and conveyed the second (eastern) of the aforesaid two lots containing twenty feet, six inches in front on the said Erie avenue, and extending in depth ninety-seven feet, six inches, unto Henry Westfall, in fee.</p> <p>And the said Henry Westfall, by deed dated April 5, 1884, and duly recorded in the office aforesaid on April 8, 1884, in deed book J. O’D., No. 190, page 202, granted and conveyed the above mentioned eastern lot unto the plaintiff, John L. Westfall, in fee.</p> <p>After the recording, on May 1, 1872, of the aforesaid deed made by Oliver S. Fowler et al., devisees of the aforesaid Mahlon Fowler, to the aforesaid Rachel Brown, to wit: on August 7, 1873, a deed bearing date November 4, 1853, and purporting to have been made by the aforesaid Mahlon Fowler to one William M. Dickerson, granting and conveying the two lots of ground first above described to the said William M. Dickerson in fee, was recorded in the office aforesaid in deed book F. T. W., No. 65, page 171, etc.</p> <p>The aforesaid lots are vacant and unfenced, but the plaintiff and his predecessors in title have continuously exercised the rights of ownership, have paid the taxes and for all municipal improvements, and have filled up the lots to the established grade. The aforesaid William M. Dickerson has never exercised any rights of ownership nor claimed any right in or to the said lots or either of them.</p> <p>In pursuance of the aforesaid written agreement between them, the plaintiff, John L. Westfall, on June 29, 1900, executed and acknowledged a good and sufficient deed for the aforesaid two lots of ground to the said defendant, Frederick Washlagel, and tendered him the same and made demand for the purchase money aforesaid, which the said Frederick Washlagel refused to pay, averring that the said deed did not convey a good and marketable title in fee simple to said lots because of tbe recording of tbe aforesaid deed from Mahlon Fowler to William M. Dickerson on August 7, 1873, which was more than fifteen months after the recording of the aforesaid deed from Oliver S. Fowler et al., devisees of the said Mahlon Fowler, to Rachel Brown.</p> <p>If the court shall be of the opinion that the said deed tendered by the plaintiff, John L. Westfall, to the defendant, Frederick Washlagel, vests in the said Frederick Washlagel a good and marketable title to the aforesaid two lots of ground situate at the southeast corner of Erie avenue and. Marshall street, in the city of Philadelphia, containing in front on said Erie avenue forty feet eleven inches and a half, and in depth southward along the said Marshall street ninety-seven feet, six inches,, then judgment to be entered for plaintiff in the said sum of $2,600, with interest from June 29, 1900, but if not then judgment to be entered for the defendant. The costs to follow the judgment. Both parties reserve the right to sue out a writ of error or certiorari.</p> <p>The court entered judgment for plaintiff.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Appeal, No. 39, Jan. T., 1901, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1893, No. 840, refusing to take off nonsuit in case of Tyndale Palmer v. Item Publishing Company.</p> <p>Trespass to recover damages for libel.</p> <p>• The name of the defendant as it appeared in the prsecipe, summons and statement of claim was “Item Publishing Company.”</p> <p>At the trial it appeared by the uncontradicted evidence that at the time of the publication in the Item, the paper was published by the executors of Thomas Fitzgerald, its former owner. After this proof was made, the plaintiff moved the court that he be permitted to amend the prEecipe, summons and statement of plaintiff’s demand by inserting therein the names of the members of the said Item Publishing Company, defendants, to wit: Harrington Fitzgerald, Hildebrand Fitzgerald, Robert L. Fitzgerald, Hildebrand and Robert L. Fitzgerald, trustees for Riter Fitzgerald, deceased, and Harrington Fitzgerald, trustee for Maud Fitzgerald Hubbard, under the last will and testament of Thomas Fitzgerald, deceased, as copartners; so that the said prsecipe, summons and statement, and the title and record of the said action shall be and read as follows, to wit: Tyndale Palmer v. Harrington Fitzgerald, Hildebrand Fitzgerald, Robert L. Fitzgerald, Hildebrand and Robert L. Fitzgerald, trustees for Riter Fitzgerald under the last will and testament of Thomas Fitzgerald, deceased," and Harrington Fitzgerald, trustee for Maud Fitzgerald Hubbard under the last will and testament of Thomas Fitzgerald, deceased, copartners, trading as the Item Publishing Company.</p> <p>Objected to. Objection sustained, and the court declines to allow the amendment. Exception for plaintiff. [1]</p> <p>The court refused the amendment and entered a nonsuit, which it subsequently refused to take off.</p> <p>Errors assigned were (1) refusal of amendment; (3) refusal to take off nonsuit.</p>

<p>Execution—Goods in custody of the law—Replevin—Act of Aprils, 1779.</p> <p>Goods levied upon under execution process and in the custody of the law cannot be taken from their custodian by a writ of replevin. The prohibition of the act of April 3, 1779, applies not only in cases where the sheriff or constable is the defendant in the replevin suit, but also in eases where any person who is custodian of the goods is made defendant.</p> <p>Where goods have been taken in execution by the sheriff prior to an assignment for creditors by the defendant in the execution, and the sheriff places the goods in the custody of an auctioneer under an agreement between himself and the assignee that the goods shall be sold, and the proceeds applied, first, to the payment of the execution, and the balance, if any, to the assignee, the goods cannot be taken by a writ of replevin issued at the instance of a party claiming title to them. The remedy of the claimant is to file a bond and ask the court to order the sheriff to deliver the goods to him.</p> <p> Replevin—Practice, O. P.—Invalidity of writ. </p> <p>The defendants in an action of replevin may raise the question of the invalidity of the writ at the trial, although a motion to quash the writ has been previously denied.</p>

Appeal, No. 105, Jan. T., 1901, by-plaintiff, from order of C. P. Clearfield Co., Sept. T., 1899, No. S20, continuing a cause in the case of J. J. Dailey and H. A. Dailey v. Adrian Iselin. Assumpsit on a written contract. - From the record it appeared that when the case was called for trial a plea in abatement which denied the legality of the service of the original summons was undisposed of.

<p>Appeal, No. 139, Jan. T., 1901, by Emma G. Ike, from decree of O. C. Blair Co., No. 314, 1900, refusing an issue in tbe estate of E. M. Ike, deceased.</p> <p>Exceptions to examiner’s report.</p> <p>From the record it appeared that on May 4,1898, Jerry Ike, the administrator and father of E. M. Ike, presented his petition to the orphans’ court to sell decedent’s real estate for the payment of debts. Included in the schedule of debts were |9,000 of notes held by Jerry Ike against the decedent. Emma Ike, widow of deceased, petitioned the court for an issue to determine the validity of the notes alleging that they had been given in pursuance of the conspiracy to defraud the petitioner’s rights. The matter was referred to M. M. Morrow, Esq., as examiner to take testimony. The examiner filed a report in which it appeared that he had not permitted the widow to offer certain testimony as to fraud. The matter was referred back to him, and upon his second report, Bell, P. J., filed an opinion which was in part as follows:</p> <p>[But at such rehearing, Mrs. Ike, the widow, apparently shifted the ground of her contention. She offered no evidence tending to show a fraudulent scheme to deprive her of her rights as widow, but she did offer some testimony, tending to show, it is claimed, that the notes in controversy, payable to Jerry Ike, were signed by Dr. E. M. Ike with an intent to defraud creditors at a time when he was prosecuted for an alleged abortion. The offer of evidence—or that part of it wherein its purpose is disclosed—is as follows:</p> <p>“ The evidence is offered for the purpose of showing that after said informations (for abortion) were made and up to the. time the bill was ignored that Dr. E. M. Ike was in sore distress as to the outcome of these prosecutions, and feared that he would be ruined financially and imprisoned, and counsel for Mrs. E. M. Ike propose to argue from this that inasmuch as E. M. Ike has not shown any consideration for these notes that these notes were drawn by Dr. E. M. Ike, and left among his papers, with possibly the intention of delivering the same to his father, and that the necessity for the delivery having been done away with by the ignoring of the bills, his father, when he took out letters of administration, found these notes among the papers of the decedent in his capacity as administrator.”</p> <p>The examiner rejected the offer. But if the testimony had been admitted, how would the case of the widow now stand ? "We would, in the first place, have some evidence tending to show that Dr. E. M. Ike prepared and signed the notes in question as part of a scheme to cheat and defraud creditors. Just who the creditors or prospective creditors were is not disclosed by the offer, but unquestionably it was part of a scheme to cheat some one, and not to cheat his'.wife.] [8]</p> <p>In the second place, we have the contention of counsel for the widow that Jerry Ike, being administrator, is bound to show affirmatively that he holds the obligations under a hostile title and did not find the notes in question among the papers of the decedent after death of said decedent.</p> <p>Let us consider said second proposition first. Said contention of counsel is founded, principally, if not wholly, on Mc-Geary’s Appeal, 5 Central Reporter, 855, McMahon’s Estate, 132 Pa. 179, and Hoffer’s Estate, 156 Pa. 474. But said three cases must be read in the light thrown upon them by the comments of the present chief justice in Kuhlman’s Estate, 178 Pa. 48. Mr. Justice McCollum there very clearly shows that said three cases, relied on by counsel for the widow, were decided on their peculiar circumstances and that there is no unbending legal rule requiring an administrator to show a hostile claim to a note he presents, payable to himself, against the estate of his decedent; that it is unnecessary for such administrator under ordinary circumstances to show affirmatively that he did not find the note in question among the effects of the decedent.</p> <p>Mr. Justice McCollum says (178 Pa. 49): “ It is not unusual for a party who has paid his note to retain it without canceling his signature to it, or making some entry thereon destructive of his liability created by it.”</p> <p>And in the present case not only is there an absence of any “ entry ” “ destructive ” of “ liability,” but the book of Dr. E. M. Ike contains entries showing the notes in question to be due, and unpaid.</p> <p>Said entries, found on page 1, of the ledger of Dr. E. M. Ike, are as follows, in the handwriting of Dr. E. M. Ike:</p> <p>JEKRV IKE.</p> <p>Note Dec. 24th, 1894, given . . . . $ 850.00</p> <p>“ Mar. 14th, 1895, “ 1,000.00</p> <p>“ Mar. 14th, 1895, “ . 700.00</p> <p>Interest paid and the above cancelled.</p> <p>Note Mar. 14th, 1896, 1 year ... $ 700.00</p> <p>“ Mar. 14th, 1896, 1 year . . . 1,000.00</p> <p>“ April 9th, 1896, 1 year . . . 1,300.00</p> <p>“ Oct. 15th, 1896, 1 year . . . 500.00</p> <p>“ May 31st, 1897, 1 year . . . 502.00</p> <p>It will be observed that Dr. Ike in his ledger did make an entry “ destructive of liability ” as to the first three notes. The fact that he failed to make such entry as to the other notes, the notes now in question, is at least persuasive that at his death, which occurred July 29, 1897, he was liable to pay the notes in question; that they were unpaid.</p> <p>Such failure to make such entry “ destructive of liability,” coupled with the further fact that two of the notes were not due at the time of his death and the other notes were but from three to four months past due, would seem to be sufficient to rebut the idea that Jerry Ike found these notes, which had been paid to him and returned to the maker, among the effects of Dr. E. M. Ike.</p> <p>[But does the said legal doctrine contended for by counsel for the'widow, founded upon McGeary’s Appeal aud McMahon’s Estate, apply to a case like the present, when it is coupled with the prior proposition of said counsel that the notes were signed as part of a scheme to defraud creditors ? Said legal doctrine is predicated on the idea that a debtor might have honestly repaid to his creditor a bona fide note, which note was thereupon returned to the debtor; the debtor dies and the creditor, taking advantage of access to the debtor’s papers as his executor, or administrator, seeks to collect said note a second time. But will the law stretch out its arm to invoke this doctrine in case of the estate of one who by his wrongful act in striving to cheat some one, and for a fraudulent purpose, has left the fraudulent notes among his papers ?] [4]</p> <p>[This thought brings us down to the consideration of the first proposition advanced on behalf of the widow, namely, that the notes were voluntarily made, no consideration passed between the parties, but the purpose of their making was to defraud creditors.</p> <p>Assume this fact to be proven, can Mrs. Ike, widow of Dr. E. M. Ike, who fraudulently wrote the notes, avail herself of such a defense? True, it may be, as stated by Mr. Justice Sterrett, in Hummel’s Estate, 161 Pa. 215, that, “ a voluntary bond, payable at the maker’s death, given for the purpose of defrauding the maker’s wife of her rights in his estate, cannot be sustained where the donee is a party to the fraud; ” but this is not such a case; here the allegation is that the notes were drawn, not to defraud the wife, but creditors, third parties.</p> <p>The books are full of rulings to the effect that neither the perpetrator of the fraud, or any one claiming through or under him, can defend on the ground of want of consideration; the law leaves the defrauder (to coin a word) and his privies, where he has put himself. The only exception seems to be that in some cases the administrator, as the representative of creditors, and in order to obtain assets herewith to pay creditors, may be heard to attack a bond of his decedent, on the ground that it was voluntary and in fraud of such creditors. The cases under this exception are collated in 8 Pepper and Lewis’s Digest of Decisions, columns 12595 and 12596. But in the present case, any right which Mrs. Ike, the widow, asserts, came to her through her husband. He would not be heard to allege that the notes in question were drawn up to cheat creditors. Neither do we think that she, claiming under him, should be allowed to make a similar allegation.] [5]</p> <p>The present question seems never to have been ruled upon in the case of a widow, but an analogous principle in the case of a child was passed upon in Reichart v. Castator, 5 Binney, 109, wherein it is ruled that “ a deed made to defeat and defraud creditors is void as against creditors, but not so against the grantor himself, or his children.”</p> <p>The trial judge charged the jury, “ that the plaintiffs, who were Henry Reichart’s daughters, did not stand in the same situation with their father in relation to this deed; that as it would be void against creditors, if there were creditors whom he intended to defraud, so it ought to be void against his female children. Next to the claim of creditors, the claim of nature ought to be considered.”</p> <p>But the Supreme Court reversed the judgment, Yeates, J., saying:</p> <p>“ The question therefore is reduced to one single point, on this part of the case : do the daughters of Henry Reichart stand in a different situation from their father as to this deed ? The deed, however fraudulent as to creditors, as to him is valid and binding; and neither courts of law nor equity would relieve him against his own iniquity, voluntarily practiced. His daughters claim under and through him , and however innocent and unoffending they must be considered of the trick intended by their father, cannot, in a legal sense, be deemed his creditors. His crime will be visited on them and the law points out to them no mode of redress, which was not open to their father. Hence, I conceive, that the charge of the court was erroneous in this, that the plaintiffs below stood in a different situation from their father as to the deed under consideration.”</p> <p>This reasoning of Mr. Justice Yeates is as applicable to the case of a widow as it is to the case of a female child. The same legal rule which bars the right of a child to allege, as against a conveyance, that the deceased father made it in fraud of creditors, would likewise bar the right of the widow to make a similar defense.</p> <p>DECKED.</p> <p>[Now, on March 4, 1901, the exceptions to the report of the examiner are overruled and said report is confirmed absolutely, and the application of the widow for an issue is refused.] [6]</p> <p>Errors assigned were (2) the action of the court of common pleas in refusing to permit the widow to intervene and defend in certain suits brought on the notes in controversy; (3, 4,5,6) portions of opinion and decree as above, quoting them.</p>

<p>Appeal, No. 198, Jan. T., 1900, by-plaintiff, from decree of C. P. Erie Co., Feb. T., 1898, No. 4, on bill in equity in case of Edison Electric Light & Power Company v. Merchants’ & Manufacturers’ Electric Light, Heat & Power Company and the Western Electric Company.</p> <p>Bill in equity for an injunction.</p> <p>Walling, P. J., found the facts to be as follows:</p> <p>1. That plaintiff, the Edison Electric Light & Power Company, was duly incorporated in 1886, and afterwards, upon surrender of its charter, received a new chatter under the Act of, May 8, 1889, P. L. 136.</p> <p>That the said Edison Electric Light & Power Company was granted a franchise from the city of Erie by ordinance approved February 24, 1886, city digest, page 129, “ to erect and maintain poles and wires for the purpose of conducting electricity to be used for light, heat and power purposes upon the streets, lanes and alleys of this city (Erie) as may be from time to time required by said company aforesaid.”</p> <p>2. That in pursuance of its charter and said ordinance, said Edison Electric Light & Power Company did construct its line and has been transacting the business for which it was organized through and upon the streets, lanes and alleys of the city of Erie continuously since 1886.</p> <p>That at the time of the filing of the bill in this case it had a pole line constructed generally throughout the streets, lanes and alleys of the city of Erie. That in a small portion of said city there were poles with six cross-arms in actual use by its wires and for the transaction of its business, and that in other portions of the city the said company had poles with from one to six cross-arms each. That it had adopted and was gradually conforming to a standard pole thirty feet high out of the ground, and had actually conformed to said height of pole throughout a greater portion of its line, which fact was apparent upon an inspection of its line.</p> <p>3. That the business of said company has steadily and largely increased annually since 1891, and that it is still increasing, and will probably continue to increase in the future, and that prior to the first Monday in April, 1898, it had for some years been engaged in the business of furnishing public lights for the streets of the city of Erie, but that since said date it has been engaged and is now engaged only in furnishing commercial and domestic lights, and is doing no public lighting of the streets, avenues, alleys or public grounds of the city of Erie, its contract for said public lighting having expired on the first Monday of April, 1898.</p> <p>4. That the defendant, the Merchants’ & Manufacturers’ Electric Light, Heat & Power Company, is a corporation duly incorporated under the laws of Pennsylvania, and doing business in the city of Erie, and that it was duly granted a franchise from the city of Erie by ordinance duly approved on April 4, 1894, as appears in city digest, page 180, “ to use and occupy any or all of the streets, avenues or alleys in the city of Erie, Pennsylvania, with its poles and other appliances pertaining to electricity necessary for the said company in conveying and carrying its light, heat and power, and for the successful operation of its business.”</p> <p>5. That prior to granting of either of said franchises the city of Erie, by general ordinance approved October 23, 1882, relating to the subject of poles and wires, city digest, page 212, provided, inter alia, as follows: “ That the license granted to use the streets for the purposes aforesaid may be revoked at any time, and that when revoked said poles and wires shall be immediately removed from the streets of said city; ” but that the said city of Erie has never taken any express action revoking the licenses granted to either of the aforesaid corporations.</p> <p>6. That on November 4, 1897, the mayor and councils of the city of Erie awarded to the Merchants’ & Manufacturers’ Electric Light, Heat & Power Company, one of the defendants, the contract for lighting the streets, alleys, avenues and public grounds of the city of Erie with electric arc lights, for a period of five years, beginning on the first Monday of April, 1898; said company being the lowest and best bidder therefor, which said award was duly ratified by ordinance approved November 23, 1897, and that the said city, in pursuance of said ordinance, duly executed a contract with said defendant company for the construction and maintenance of a plant and line for the purpose of carrying out said contract for public lighting.</p> <p>7. That soon after the awarding of said oontraet the said defendant company proceeded in accordance therewith--to construct an extension of its lines and plant, for the puipose of carrying out the provisions of said contract, and that prior to the said first Monday of April, 1898, had expended thereon the sum of nearly $60,000, all of which expenditure had been contracted for and a large proportion of the same actually made prior to the filing of plaintiff’s bill in this case.</p> <p>- 8. That the said extension of the plant and lines of the defendant company was for the sole purpose of carrying out said contract for said lighting, and was and is being used for no -other purpose, and was not constructed for nor being used i-n ■furnishing any private or commercial lights whatever; and that all of the interferences complained of by plaintiff company with its lines, are upon the line of said extension so constructed and used for public lighting, and are at points where the poles and wires of both the plaintiff and defendant companies are located, wholly upon the public streets, lanes, alleys, avenues and public grounds of the city of Erie.</p> <p>-, ’ 9. That the plaintiff has in use on its lines wires conducting electric currents of from 110 to 3,000 volts, and that the said Merchants’ & Manufacturers’ Electric Light, Heat & Power Company uses wires conducting electric currents of 6,250 volts. That voltage under 500 volts is recognized by electrical authorities as low tension; from 500 to 3,000 high tension, and above 3,000 volts extra high tension. That in lines conducting high and extra high tension currents it is necessary to use extra care in the construction of the line to prevent loss of life and injury to property.</p> <p>10. That it is the general practice and proper construction to place electric wires twenty-two inches apart vertically and twelve inches apart horizontally, and that except in very exceptional cases the wires of one company should not be placed or suffered to remain at a less distance than that above stated to the wires of another company. And that, as a general rule, the electric wires of one company should not pass between those of another company; but where the space between the wires of such other company is ample, and where the wires of both companies are sustained by rigid supports standing near to the, place of passage, the wires of one company may, with reasonable safety, and frequently are, passed through between the wires of another company. That the electric wires of one company should always be so placed and maintained as not to come in contact with similar wires of another company, as the natural result of such contact is damage to property and danger to life.</p> <p>11. That prior to the filing of plaintiff’s bill, and about December, 1897, the defendant, the Merchants’ & Manufacturers’ Electric Light, Heat & Power Company, contracted with the Western Electric Company, a corporation of the State of Illinois, to extend the pole line of the first named company through the streets of the city of Erie, and over and along most of the streets in which plaintiff company was operating; and that in the construction of the said extension of said line said Western Electric Company strung the wires of the Merchants’ & Manufacturers’ Electric Light, Heat & Power Company in many places in dangerous proximity to the wires of the plaintiff company, and in some places through 'and between the wires of the plaintiff company. That subsequently to the filing of plaintiff’s bill, a very large majority of such interferences were remedied by the defendants, but up to the time of taking the last testimony in this case, on April 14, 1898, the defendants had not so adjusted their lines as to be entirely free from interferences with the plaintiff’s line.</p> <p>12. That at the time of the construction of said extended lines by defendants, the city of Erie was and still is a very difficult city in which to construct an electric line, owing to the unusual number of electric wires already existing in its streets, including the telegraph wires of different companies, the telephone wires of at least two different companies, the telegraph wires of the railroad companies, the wires of the Erie Electric. Street Railway Company, the city police call and fire alarm wires, and many others, and also the electric light wires of the' plaintiff; and in addition to which the plaintiff claimed the right to hold for its future use practically all the space where, wires could be placed to a height of thirty feet along the streets-where its lines have been extended; and that after the said city of Erie had entered into the contract with the said defendant for the street lighting, the plaintiff company, in order to hold the said unoccupied space claimed by it, in many places strung numerous dead wires along its poles and over street intersections, in such a way as to embarrass the defendant in the construction of said extension of its line.</p> <p>18. That the wires of the telegraph and telephone companies are placed in the streets considerably higher than those of the plaintiff company. That at some points it is not practicable to clear plaintiff’s lines giving it the space claimed, without coming in contact with the lines of the telegraph and telephone companies, and that it is not good construction to place the electric light wires above those of the telephone companies, for in the event of an accident to an electric light wire, causing it to fall upon the telephone wires, it would naturally result in the destruction of the telephone wires, and it might result in transmitting to such telephone wires such a current of electricity as would not only destroy the instruments to which they were attached, but might cause injury to the operators or even set fire to buildings; and besides, it would not have been practicable, for the defendant to have constructed its extended line over all the other wires in the city—it would have required at some points poles at least seventy-five feet in height, which would have been unnecessarily expensive; and besides, a line when so constructed, would be inconvenient and expensive to operate.</p> <p>14. The said contract between the city and the Merchants’ & Manufacturers’ Electric Light, Heat & Power Company required the said company to furnish 359 arc lights at street intersections and other public places, and at the same points previously occupied by the plaintiff’s arc lights while it held the contract for city lighting, and I am not satisfied that the defendant, in the construction of its line as it now exists, after the correction of the interferences as above stated, has inflicted any wanton, negligent or unnecessary injury to the electric lines and property of the plaintiff.</p> <p>15. The poles of both plaintiff and defendant appear to have been placed in the streets at the points designated by the proper municipal authorities.</p> <p>LEGAL CONCLUSIONS.</p> <p>1. That as between the Edison Electric Light & Power Company, the plaintiff, and the Merchants’ & Manufacturers’ Electric Light, Heat & Power Company, defendant, so far as refers to a use of the streets for purposes of commercial or private lighting, the plaintiff, by virtue of its prior franchise and occupation of the streets, has the right of way.</p> <p>2. As between said plaintiff, engaged as at present exclusively in commercial and private lighting, and defendant, so far as it is engaged exclusively in lighting the public streets by virtue of a city contract, the defendant, although holding the later franchise, by virtue of the public character of its business, has the paramount right of way, so far as is necessary to reach the places where the contract calls for street lighting, by a direct and practical route; but at the same time the defendant, in the construction of its line for the purpose of such street lighting, has no right to do the property of plaintiff any wanton, negligent or unnecessary damage, and must at all places keep its lines clear from those ip actual use by plaintiff wherever it can be done without extra cost.</p> <p>3. That as against the defendant so engaged in public lighting, the plaintiff has no right to reserve any extra space which it may think will be necessary to accommodate the future growth of its business.</p> <p>4. That it is the duty of the city of Erie to light its streets in order to facilitate public travel thereon, and that the defendant, who has a valid contract with the city for such lighting, has for that purpose all the rights in the premises which the city would have if engaged in lighting its own streets.</p> <p>5. That the injunction heretofore granted should be dissolved, and that the plaintiff’s bill should be dismissed, and that the defendants’ cross-bill should also be dismissed, and that the defendants should pay the docket costs, and that neither plaintiff nor defendants should file any bill for the subpoenaing or attendance of witnesses.</p> <p>Error assigned was in dismissing the bill.</p>

Appeal, No. 141, Jan. T., 1901, by plaintiff, from decree of C. P. Erie Co., No. 6, in equity, in case of F. W. Flirt v. City of Erie. Before McCollum, C. J., Mitchell, Fell, Brown and Potter, JJ. Affirmed. Bill in equity for an injunction to restrain the issue of a municipal bond.

Appeal, No. 140, Jan. T., 1901, by defendant, from judgment of O. & T. Luzerne Co., Jan. T., 1900, No. 48, on verdict of guilty of murder of the first degree in case of Commonwealth v. John Lutz. Indictment for murder. From the record it appeared the defendant was indicted for the murder of his wife. The case was twice tried. At the first trial the jury returned a verdict of guilty of murder in the first degree.

<p>Appeal, No. 282, Jan. T., 1900, by defendant, from decree of C. P. Crawford Co., May T., 1898, No. 6, on bill in equity in case of Daniel Kelly, now De Elmer Kelly and De Elmer Kelly, Administrator of Daniel Kelly, Deceased, v. Nypano Railroad Company and Erie Railroad Company.</p> <p>Bill in equity for an injunction, and for an account. Before Thomas, P. J.</p> <p>From the record it appeared that on April 3, 1863, Daniel Kelly conveyed to the Atlantic and Great Western Railroad Company a piece of land for right of way in consideration of $100, and that said company should “ fence and keep said road fenced.” By various foreclosure proceedings the right of way became vested in the Nypano Railroad Company which leased the same to the Erie Railroad Company. The court entered a decree directing the defendants to construct and maintain the fences in question, and to account to Kelly for any damages sustained.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 279, Jan. T., 1900, by defendant, from judgment of C. P. Crawford Co., Sept. T., 1899, No. 22, on verdict for plaintiffs in case of Chandley Brothers & Company v. The Borough of Cambridge Springs.</p> <p>Assumpsit on a building contract.</p> <p>The facts appear by the opinion ofbthe Supreme Court.</p> <p>At the trial the following offer was made:</p> <p>Defendant’s counsel: We propose to prove by this witness that the engine or engines called for by the contract was not delivered until considerable time, about or nearly thirty days, after the time fixed and provided for in the contract, and that for the purpose of estimating and arriving at the amount of damages growing out of the default. The contract and specifications together requiring the engines to be erected and ready for continuous use on or before October 1, 1898.</p> <p>Plaintiffs’ counsel: Object to the offer as incompetent and irrelevant, and add as a reason that the matter proposed to be proved is by the contract itself submitted to the final determination of the engineer of the borough.</p> <p>The Court: I think under the contract and the evidence as to the decision of the engineer as to the question of delays, that the evidence is not admissible. The objection is sustained and a bill of exceptions sealed for the defendant. [1]</p> <p>Verdict and judgment for plaintiff for $3,114. Defendant appealed.</p> <p>Error assigned among others was (1) ruling on evidence, quoting the bill of exceptions.</p>

<p> Promissory notes—Evidence—Pecuniary condition of parties. </p> <p>In an action against executors on promissory notes alleged to have been given by decedent for money loaned to her, it is proper to exclude evidence, in the absence of fraud, that at the time of the alleged loans the plaintiff was hard pressed for money, and had been for considerable time, and had several judgments entered against him, together with evidence to the effect that the decedent, who was old, invalid, and not engaged in any business requiring the use of money, had $4,000 in the bank at the said time.</p> <p> Practice, O. P.—Buie of court—Promissory notes. </p> <p>A rule of court that the execution of a promissory note shall be taken as admitted at the trial, unless the defendant, or some one in his behalf shall deny its execution on oath, does not apply to executors and administrators.</p> <p>In an action against executors on promissory notes, the plaintiff’s statement of claim in which copies of the notes are set forth, is not evidence of the execution of the notes.</p>

<p>Constitutional law—Delegation of municipal functions to special commission—County officers—Side path commissioners—Act of April 11, 1899, P. L. 36.</p> <p>The Act of April 11, 1899, P. L. 36, entitled “ An act providing for the construction and maintenance of side paths along the highways in the townships of the commonwealth for the use of bicycles and pedestrians; providing for the appointment of side path commissioners, prescribing their duties, and the duties of the assessors in the assessment of bicycles; providing for levying, collecting and disbursement of a tax on bicycles,” is unconstitutional, as it trangresses the prohibition in article 3, section 20, of the constitution against the delegation to a special commission of the “power to make or interfere with any municipal improvement .... or to perform any municipal function whatever.”</p> <p>■ Jf the intent of the Act of April 11, 1899, P. L. 36, was not to create special commissions, but to provide for officers with powers not now possessed by townships, then the act is open to the constitutional objection that the side path commissioners ar.e county officers, and as such cannot be appointed by the court of quarter sessions as provided by the act, but must be elected at the general election.</p>

<p> Beneficial associations—By-laws—Suicide. </p> <p>A by-law of a beneficial society providing that no benefits shall be paid on account of the death of a member from suicide within five years after admission, “ whether the member taking his own life was sane or insane at the time,” is valid and legal.</p> <p>Where at a time a person became a member of a beneficial society the by-laws provided that benefits should not be paid on account of the death of a member from suicide within one year after admission, and subsequently the by-laws are changed so as to extend the limit to five years, and thereafter the member committed suicide, the amended by-law was binding upon the member and no benefits can be collected for his death.</p>

Appeal, No. 1, Jan. T., 1901, by defendant, from judgment .of C. P. Erie Co., Sept. T., 1899, No. 76, on verdict for plaintiff in case of Emmett Hitchcock v. Amity Township. Trespass to recover damages for personal injuries. Before Walling, P. J. . At the trial'it .appeared that on September 21,1898, plaintiff while driving a one-horse wagon over the Lyons road, in broad daylight, was thrown over an embankment and sustained personal injuries.

<p>Contract—Liquidated, damages—Penalty.</p> <p>Whether a sum named as compensation for breach of contract is to be deemed a penalty to secure its fulfilment or damages liquidated by the parties themselves, is primarily a question of intention to be gathered from the agreement with the aid of such light as can be derived from circumstances. Equity will regard a penalty as intended to secure the fulfilment of a contract and will limit a recovery to the loss actually sustained, notwithstanding the stipulation of the parties, on the principle that one party should not be allowed to profit by the default of another. Compensation, not forfeiture, is the equitable rule; but effect will be given to the intent of the parties as ascertained unless it conflicts with some rule of law or equity.</p> <p>Generally where the covenant is for the performance or the non-performance of a single act or of several acts, damages for the breach of which cannot be measured by any fixed standard, the sum named if reasonable in amount will be considered as liquidated damages. The factthatthere are a number of stipulations of different degrees of importance does not vary the rule, if the measure of damages for all of them is uncertain, but regard should be had to it in ascertaining the intention.</p> <p>■ Where a contract in settlement of an action for libel provided that the defendant in the libel suit should not publish any libelous or defamatory article reflecting in any way upon the business, social or personal character of the other party, and the contract also provided that in case of a breach judgment might be entered against the defendant for “ $5,000, liquidated damages,” and thereafter the defendant published an article charging the plaintiff with bribing voters in his candidacy for congress, judgment may be-entered for the whole sum of ¿5,000, as liquidated damages.</p>

Appeal, No. 268, Jan. T., 1900, by plaintiff, from judgment of C. P. McKean Co., June T., 1896, No. Ill, on verdict for defendant in case of M. J. Curtis v. Corwin Curtis. Foreign attachment in assumpsit. The facts sufficiently appear by the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

Appeal, No. 9, Jan. T., 1901, by plaintiff, from order of C. P. Warren Co., Dec. T., 1899, No. 39, refusing to take off non-suit and from judgment on verdict for plaintiff in case of Jonas P. Magnussen v. W. H. Shortt and M. W. Harrington. Trespass for malicious prosecution.

Appeal, No. 319, Jan. T., 1900, by plaintiff, from judgment of C. P. Warren Co., Dec. T., 1898, No. 28, on verdict for plaintiff in case of Calvin Adams v. W. W. Cook and Amy A. Cook. Ejectment to enforce conditions ,in a deed.

Appeal, No. 158, Jan. T., 1901, by plaintiff, from decree of C. P. McKean Co., Feb. T., 1901, No. 2, dismissing bill in equity in case of David Bovaird for himself and for himself as a shareholder of Bovaird & Seyfang Manufacturing Company, and for himself as one of the copartners of the late firm of Bovaird, Seyfang & Company v. J. L. Seyfang, Mrs. Cecelia T. Seyfang, A. W. Lewis, and J. L. Seyfang and A. W. Lewis, as copartners of the late firm of Bovaird, Seyfang &…

<p> Equity—Equity pleading—Responsive answer—Evidence. </p> <p>In equity a responsive answer is conclusive in favor of the defendant unless it is overcome by the testimony of two credible witnesses, or of one witness and such corroborating facts and circumstances as are equal to the testimony of another witness.</p> <p>A bill in equity for an accounting of an alleged partnership in the purchase of the stock of a corporation, cannot be sustained where the answer is responsive to the bill, and the only evidence as to partnership was the plaintiff’s own testimony which was squarely contradicted by that of the defendant, and an analysis of plaintiff’s testimony shows that in reality there was no partnership agreement, but at the most there was given to the plaintiff an option to join in the venture of which he did not avail himself, or there was a mutual understanding that he should be liberally rewarded if the enterprise was successful.</p>

<p> Assignment for creditors—Recording assignment. </p> <p>An assignment for the benefit of creditors by a resident of Pennsylvania, not recorded in the county in which the assignor resides within thirty days after execution thereof, is, under the act of March 2é, 1818, void as to cred-' itors, and both the real and personal property of the assignor may be taken in execution by creditors, without regard to the assignment.</p>

<p> Negligence—Toivnships—Defect in bridge. </p> <p>In an action against a township to recover damages for personal injuries, it appeared that a horse which the plaintiff was riding at the time of the accident was thrown by one of its front feet being caught in a hole at the edge of a narrow bridge on a country road, and the plaintiff was seriously injured. The bridge was over a small stream and in building it two logs sixteen feet long and seven inches in diameter were laid eighteen inches apart at the edge of the stream. On these logs cross-pieces were laid to which planks were nailed. The space between the top of the foundation log and the bottom of the planks at the edge of the bridge was fully three inches in height. At the side of the bridge where the accident happened the planks were not wide enough to cover fully one of the foundation logs and extended not quite to its center. The depressions in the road at the sides of the bridge were filled with dirt and loose stones to a level with the top of the planks. There was nothing between the logs and the planks to hold the dirt in place and prevent its falling into the culvert, and at the end where the planks did not cover the logs the dirt was without adequate support, either lateral or vertical. If a horse stepped close to the edge of the bridge at this place, the .earth would give way and allow his feet to pass down into the opening between the plank and the log. Held, that the case was for the jury.</p> <p> Negligence—Evidence—Repairing defect. </p> <p>While in some instances the reception of testimony as to alterations or repairs made after an accident has been sustained as in the nature of an admission that defects existed before the accident ; whether such testimony should ever be admitted is at least doubtful, as it makes evidence against a defendant who guards against the recurrence of an accident which before he had no reason to anticipate, or who for the safety of others exercises a precaution when he is not legally bound to do so. Per Pell, J.</p> <p>In an action against a township to recover damages for personal injuries resulting from a defect in a bridge, evidence that a month after the accident the supervisor repaired the defect, is inadmissible, the repairs being in point of time too remote from the occurrence.</p>

<p> Ejectment—Mesne profits—Bent. </p> <p>Where a plaintiff in ejectment for an undivided half interest in land, pending the ejectment, refuses to join in a lease with the defendant in the ejectment, and with knowledge of the contents of the lease announces that he will claim mesne profits, and the lease provided that if the plaintiff recovered in the ejectment from that time but one half of the rent reserved should be paid to the lessor until it was determined to whom the other half was payable, and that if the tenant should be legally required to pay the plaintiff for the whole term, he should be allowed to apply so much of the rent reserved as was necessary for that purpose, and it appears that plaintiff recovered mesne profits for the whole period that the tenant remained in possession, the plaintiff has no standing to maintain an action on the lease to recover rent from the tenant.</p>

<p> Will—Construction—Intention of testator. </p> <p>The question in expounding a will is not what the testator meant, but, what is the meaning of his words. By this it was never intended to say that the testator’s meaning, when apparent, can be disregarded, but, that it cannot be got at aliunde, by what he may have meant, or even what, under the circumstances, perhaps, he would have meant, but only by what he said.</p> <p> Will—Vested and contingent remainder—Devise. </p> <p>Where real or personal estate is devised or bequeathed to such children, or child, or individuals, as shall attain a given age; or the children who shall sustain a certain character, or do a particular act, or be living at a certain time, without any distinctive gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is necessarily contingent on account of the person. Tor until the age is attained, the character is sustained, or the act is performed, the person is unascertained; there is no person answering the description of the person who is to take as devisee or legatee.</p> <p>Testator in one clause of his will directed as follows: “I give and bequeath to the children of my late brother, John, now deceased, the annual interest of forty thousand dollars, to be divided between them, share and share alike, during their lives, and upon the death of each one, I give one full share to his or her children, share and share alike, and the issue of any deceased to take the share of the parent.” By a subsequent clause he directed: “If one or more of the children of my brother John should die without lawful issue, the bequest of forty thousand dollars shall be equally divided among the surviving children of my said brother, John.” Held, (1) that the children of John as a class were the object of testator’s bounty under the prior clause and only such as were in being at the time of the testator’s death could take; (2) that these children, as a class, took the income, with remainder over of the principal sum to the issue of those comprising the class; (3) that the estate in remainder, so provided was, by the language of the subsequent clause made subject to being defeated by any member of a class dying without issue; (4) that upon the death of one of the children of John without issue, the whole bequest of $40,000 should be equally divided among the surviving children of John.</p> <p> Will—lower to executors to constrúe will—Attempt to exclude jurisdiction of courts. </p> <p>The jurisdiction of the courts to pass upon the construction of • a will is not ousted by a direction in a will that the executors are to define its provisions, and that their decision shall be final and conclusive ñpon all matters in it.</p>

Appeal, No. 278, Jan T., 1900, by defendants, from order of C. P. Lancaster Co., Feb. T., 1900, No. 84, making absolute rule for judgment for want of a sufficient affidavit of defense. Assumpsit on a bond of suretyship.

<p>Appeal, No. 76, Jan. T., 1901, by plaintiff, from order of C. P. Lancaster Co., April T., 1898, No. 9, refusing to take off nonsuit in case of Albert M. Harman and Ida Harman, his Wife, v. The Pennsylvania Traction Company in the hands of a receiver, William B. Given. ’</p> <p>Trespass for death of plaintiff’s son. Before Landis, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

Appeal, No. 152, Jan. T., 1901, by plaintiff, from judgment of C. P. Warren Co., Dec. T., 1899, No. 26, on verdict for defendant in case of Gus Johnsonv. The Western New York & Pennsylvania Railway Company. Trespass for personal injuries. Before Lindsey, P. J. At the trial it appeared that plaintiff who was employed by the defendant as a common laborer was injured on September 20, 1898, while engaged in repairing telegraph lines along the defendant’s right of way.

Appeal, No. 92, Jan. T., 1901, by Mary E. Shearman and C. F. Morrison, terre-tenants, from judgment of C. P. Warren Co., Dec. T., 1899, No. 25, on verdict for plaintiff in case of B. G. Morrison, administrator of S. R. Morrison, deceased, now for the use of B. G. Morrison, v. W. 0. Warner, defendant, and Mary E. Shearman and C. F. Morrison, terretenants. Scire facias sur mortgage.

Appeal, No. 362, Jan. T., 1899, by plaintiff, from judgment of C. P. Lancaster Co., April T., 1891, No. 219, on verdict for plaintiff in case of Clayton H. Reist v. William A. Reist. Issue to determine the validity of a judgment. Before Livingston, P. J. At the trial it appeared that in April, 1891, judgment was entered by Clayton A. Reist against William A. Reist for $1,250.

<p>Appeal, No. 64, Jan. T., 1900, by defendant, from order of C. P. Lancaster Co., Oct. T., 1900, No. 22, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of JacobR. Yentzerv. Farmers’ Mutual Insurance Company of Lancaster County.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The court in an opinion by Lakdis, J., entered judgment for want of a sufficient affidavit of defense for $3,200. The defendant appealed assigning this action of the court for error.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>jError assigned was the order of the court.</p>

Appeal, No. 328, Jan. T., 1900, by plaintiff, from order of C. P. Lancaster Co., June T., 1896, No. 57, refusing to take off nonsuit in case of Caroline Young and Elsie M. Swartz v. Amanda F. Fager, wife of George Fager, Ella B. ÍJlmer, wife of George Ulmer, Catherine M. Swartz and Mary E. Swartz, Central National Bank of Columbia, A. J. Kaufman, President, and John Watson. Ejectment for land in Columbia borough.

<p>Negligence—Townships— Unguarded embankment—Contributory negligence.</p> <p>In an action against a township to recover damages for personal injuries sustained as the result of a wagon going over an unguarded embankment on an ordinary country road, the plaintiff is guilty of contributory negligence, and not entitled to recover, where the evidence shows that he was perfectly familiar with the road, that one of his horses was blind; that at the time of the accident it was very dark, that a lantern attached to the front of the wagon had gone out, that plaintiff instead of stopping at once and re-lighting it allowed the team to continue for some distance and approached the dangerous embankment, the location of which was well known to him.</p>

<p> Insurance—Fire insurance—Change of title. </p> <p>Where a policy of fire insurance provides that any change of title shall render the policy void unless otherwise provided by agreement indorsed on the policy, the act of the insured in conveying the property without the consent of the company to a third person who subsequently reconveys it to the insured renders the policy void.</p>

<p>Road law—“ Foot front rule"—Damages—Constitutional law.</p> <p>The right to adopt the “ foot front rule ” in assessing the cost of street paving in Pennsylvania is definitely settled. It is not to be considered as an assessment, irrespective of benefits conferred, when it is applied to the original paving of a street, in the built up portion of a city. Under such circumstances the improvement is manifestly a special benefit to the abutting property.</p> <p>The case of Norwood v. Baker, 172 U. S. 269, is not in conflict with the “foot front rule” as it has been applied in Pennsylvania.</p>

<p> Road law—Original paving—Intention. </p> <p>The question whether a particular kind of paving is an original paving or not is a question of fact in each case, but the governing consideration is the nature of the municipal action with regard to it.</p> <p>Where it is contended that an improvement to a street has converted that highway from a road into a street, it must be shown that the improvement was either authorized or adopted by the municipal authorities. Municipal adoption or acquiescence cannot be assumed, it must be proven.</p> <p>Where the evidence is uncontradicted that the municipal authorities did nothing more than keep the roadway of a street in ordinary repair with broken limestone, the court may decide as a question of law that a pavement of asphalt authorized by ordinance is an original paving.</p>

<p>Appeal, No. 110, Jan. T., 1901, by The Philadelphia and Reading Coal and Iron Company, from judgment of the Superior Court, Oct. T., 1900, No. 108, reversing the order of Q. S. Northumberland Co., No. 70, 1900, in the Matter of the Petition, Bond, Proof of Notice and Order of Court, relating to contract of Township of Coal and the Philadelphia and Reading Coal and Iron Company.</p> <p>Appeal from Superior Court.</p> <p>Petition for an order to direct supervisors to enter into a contract for making and repairing of roads.</p> <p>W. F. Bay Stewart, J., specially presiding, filed the following opinion:</p> <p>The Philadelphia and Reading Coal and Iron Company have filed their petition and bond, and given notice to the supervisors and auditors of Coal township of their intention to apply to the court of quarter sessions for an order requiring the supervisors to enter into contract with it for the maintenance and repair of the public roads in the said township for the fiscal year, beginning March 5, 1900, under the terms of the Act'of June 12, 1898, P. L. 451. The supervisors have answered this petition alleging that under the act of assembly, approved April 28, 1899, entitled, “ An act to provide for the classification of the townships of the commonwealth with respect to their population into two classes, and to prescribe the form of government for townships of each class,” Coal township is a township of the first class, having a population of 300 to the square mile, and that the commissioners of Northumberland county, by their proclamation, have so declared and designated it; that six commissioners are about to be elected in accordance with said act, and that the act of June 12,1893, is so far modified as no longer to be applicable to said Coal township, and denying the jurisdiction of this court to order or direct the entering into such contract for the making and maintenance of the roads.</p> <p>To this the petitioner replies that the act of April 28, 1899, classifying townships, is local or class legislation, and therefore unconstitutional, and that the act of June 12, 1893, is still in force. It is admitted that Coal township has a population of 300 to the square mile. This issue raises the question of the constitutionality of the act of April 28, 1899.</p> <p>The 3d section of the act provides : “ Except so far as modified by the provisions of this act, all existing laws relating to townships shall continue in force until changed, modified, or repealed as to either class of townships by legislation expressly relating thereto.” The act provides for the election of a board of five commissioners, and if the population of the townships exceed 5,000, then an additional commissioner for each 2,000 population in excess of 5,000. To this board of commissioners is delegated large legislative powers.</p> <p>In section 7 it is provided: “ All corporate power, authority and franchise of the township shall be vested in and exercised by the board of township commissioners, and the said board shall have particularly the following powers:</p> <p>“1. To open, grade, construct and repair all public highways, in the township which shall or may be at any time laid out by lawful authority, and to keep the same in good order and repair. To construct footways along said highways, and tó establish lights thereon when it may be deemed expedient to do so.,</p> <p>“ To accept the dedication of public highways.”</p> <p>Section 9 provides: “ It shall be the duty of the board of township commissioners to cause all public highways within the township now or hereafter laid out by lawful authority, to be effectually opened and constantly kept in repair at all seasons, and clear of all impediments to easy and convenient passing and traveling.”</p> <p>Section 10 provides: “ The board shall have the power to appoint one or more supervisors or engineers of highways, and by ordinance to specify their duties and to fix their salaries. All such officers shall hold office at the pleasure of the board.</p> <p>“ The board shall cause to be employed a sufficient number of workmen, mechanics, and laborers for the proper care of the public roads, and shall have power to purchase all necessary tools, implements, machinery and materials of all kinds which, in their judgment, shall be necessary for the making, paving and repairing of the public highways.”</p> <p>Section 11 provides : “ The board of commissioners shall have power, by their officers and servants, to enter upon any lands or enclosures, to cut, open, maintain and repair all such ditches and drains through the same, as they shall judge necessary, to carry the water from the said roads.”</p> <p>It will be seen by an examination of the sections recited that full power and authority to open, grade, construct, maintain and repair the public roads is vested in the board of commissioners, and they are authorized to appoint one or more supervisors or engineers of highways, to specify their duties and fix their compensation. The office of supervisor, as elected by the people, is practically abolished, and their substitutes hold their office at the pleasure of the board.</p> <p>In view of these radical provisions, it cannot be said that the act of June 12, 1898, and all other acts on the subject of the making and maintenance of the public roads and the election, authority and compensation of supervisors in townships of the first class, are not repealed. A method new and repugnant to the old law is provided. This is sufficient to repeal the old law: Blake v. Com., 5 W. N. C. 48; Sifred v. Com., 104 Pa. 179.</p> <p>Where all the essential provisions of an act of assembly are supplied by a later act, the former will be deemed to have been repealed by implication, although there be no repealing clause: Martz’s Contested Election, 110 Pa. 502.</p> <p>I have no hesitation, therefore, in reaching the conclusion that if the act of April 28, 1899, be constitutional, it repeals the act of June 12, 1893, as to townships of the first class.</p> <p>But is the act constitutional ? The presumption is that it is, and unless it falls within the terms local or special legislation, it is.</p> <p>The constitution provides in article 3, section 7, clause 2: “ The general assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.”</p> <p>This legislation does regulate the affairs of townships. Is it local or special ? It does not purport to be either, but it does not apply to all townships. It applies only to the townships belonging to a class which is to be ascertained, not by population alone, but by population according to area, that is, townships having a population of at least 300 to the square mile.</p> <p>It will be seen at once that this is not classification according to population. A township may have 25,000 or 30,000 population, and not be entitled to the benefit of the act, while one having 3,000 population may. So that population is not the only requisite element, nor is it the essential one.</p> <p>“ There can be no proper classification of cities or counties except by population. The moment we resort to geographical distinction, we enter the domain of special legislation, for the reason that such classification operates upon certain cities or counties to the perpetual exclusion of all others : ” Patton v. Commonwealth, 88 Pa. 258. This doctrine was repeated with emphasis in reference to a substitute for the act declared unconstitutional in that case, and in which the attempt had been made to escape effect of the reasons assigned in Patton v. Commonwealth : Scowden’s App., 96 Pa. 422.</p> <p>The evident purpose of the act is to legislate for some particular locality, although it is shrewdly drawn in what appears to be general terms. The basis of population alone would not answer. The draughtsman of the bill had locality in his mind, and therefore the element of population had to be qualified so as to fit his locality. This was accomplished by the introduction of the square mile,—population per square mile. With this modification introduced the law could be fitted to the contemplated locality. This is practically what was attempted in the legislation with reference to Crawford county, and which was condemned in Patton v. Com. and Scowden’s App., and it is that which Chief Justice Paxson denounced as special legislation under the disguise of general law, the most vicious of all legislation.</p> <p>Whatever may be the features of a general law contained in this act, it is stamped indelibly with this cast of locality, which renders it obnoxious to the constitutional inhibition.</p> <p>The preamble of the act recites : “ Whereas, in those more populous townships of the commonwealth which are in large measure devoted to residential purposes, there is need of a form of municipal government having greater powers than are now possessed by the local governments of townships under existing laws.” And the act thereupon proceeds to classify townships for the purpose of government. But the township to which it is here attempted to be applied is not a residential one at all, but a coal mining district, populous, but not devoted to residential purposes. In the picturesque language of the counsel for the petitioners, a township of scrub oaks and culm banks; a mining township, where many of the population live most of the time under the ground. And this same condition seems to prevail in all, or nearly all, the anthracite coal mining portions of the state.</p> <p>Of course, the preamble is no part of the law, but it can be used to explain the motive or meaning of the legislature or identify the subject-matter of the legislation.</p> <p>Commonwealth v. Marshall, 69 Pa., 828. With this definition in view, it is plain that the legislature did not contemplate the application of this law to mining regions as a place devoted to residential purposes.</p> <p>It is said that necessity is the only allowable ground for classification : Ayars’s App., 122 Pa. 266, and many other cases.</p> <p>Therefore the preamble recites the necessity for this legislation. But it will occur to any lawyer in a moment that the form of municipal government having greater powers than are now possessed by the local governments of townships under existing laws may be found in our system of borough laws. This system covers practically every power delegated by this act, and is . ample, flexible, and suited to residential territory. The method of putting a borough government in force is different, however. Under it a majority of the resident lot or landowners must petition for incorporation. If the majority do not want it, they need not have it, but under this act they are obliged to accept this “municipal government with greater powers nolens volens whenever the population of the town equals 300 to the square mile. It may be that the real design of this act was to take out of the hands of the people the determination of the question of whether they would have a municipal government with greater powers or not, and oblige them to accept it, whether they would or no.” But whatever may have been the design, it cannot he said there was any necessity for this legislation, as cited in the preamble, and if no necessity existed, then the act is unconstitutional.</p> <p>Judging by the long line of decisions, the question of the necessity for classification has become a judicial one, and the courts may declare an act unconstitutional where no such necessity exists: Ayars’s Appeal, 122 Pa., 266 and cases cited.</p> <p>I may say that the same conclusion was reached in the decision of the learned President Judge Woodward, of the elev-. enth judicial district</p> <p>Being of the opinion for the reasons given, that the act approved April 28,1899, entitled “ An act for the classification of the townships of the commonwealth .... with respect to their population into two classes, and to prescribe the form of government for townships of each class,” is unconstitutional, and that the act of June 12, 1893, under which this proceeding was begun, is still in force, the contract is directed to be executed as prayed for, and a formal order to that effect will be drawn. '</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 136, Jan. T., 1901, by defendant, from order of C. P. Northumberland Co., May T., 1901, No. 91, awarding mandamus in case of Charles Krzykwa, Treasurer of the Township of Coal, v. Mathias Croninger, Treasurer of Northumberland County.</p> <p>Petition for mandamus.</p> <p>Savidge, P. J., filed the following opinion :</p> <p>Coal township was in 1900 regularly organized as a township of the first class under the act of April 28, 1899.</p> <p>Pursuant to the act of June 12, 1893, commonly known as the Losch Road act, proceedings were had in this court for the contracting of the roads by the supervisors to the Philadelphia and Reading Coal and Iron Company, petitioners. The act of April 28, 1899, was declared unconstitutional. Supervisors were appointed by this court, Judge Stewart sitting, and the contract decreed, which was duly entered into, and the contractor, the said coal and iron company, made and repaired the roads and bridges of said township for said year. The township’s portion of the license money for the year amounted to $2,935. This was paid by the county treasurer to the supervisors, who turned the same over to the contractor, and the money was used upon the roads. The petitioner, alleging that he was the duly elected and qualified treasurer of the township, has instituted these proceedings to the end that the fund may be turned oyer to him as such treasurer.</p> <p>It is contended by the respondent that the petitioner was not the acting treasurer of the township for the year for the reason that he was elected under the act of April 28, 1899, and that inasmuch as that act was declared unconstitutional by this court the office fell with the act. Whether or not he was elected under that act, it seems to us, is of no consequence. The township was entitled to elect a treasurer under the general township act, and we conclude that in any event he was the proper treasurer of the township.</p> <p>The general liquor license act provides that the township’s portion of the license money shall be paid to the township treasurer to be applied to keeping the roads in repair. The Losch Road act provides, section 7 : “ The contractor shall at his own expense, open, make, and repair the public highways and bridges without any right against or claim upon the said township, or road district, for or by reason of materials or labor so furnished,” and in section 5, clause 1, “ That the contractor shall contract to do so wholly at its or his expense.”</p> <p>We are of opinion that the contractor is not entitled to have the license money to be used upon the roads, but that it must be paid to the township treasurer, there to remain until legislative provision be made for the application of the same.</p> <p>It cannot be worked out on the roads by the supervisors under the Losch act because they have nothing to do with making the roads, and it is their duty to see to it that the contractor complies with his contract; and neither, as we conclude, can it be turned over to the contractor because he is to do the work solely at his own expense.</p> <p>A mandamus is therefore awarded directed to the county treasurer compelling him to pay over to the township’s treasurer, Charles Krzykwa, the said township’s portion of the license fund, to wit: $2,985, collected for the year 1900.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 20, May T., 1900, by defendant, from judgment of Superior Court, March T., 1900, No. 7, affirming judgment of the court of quarter sessions of Dauphin Co., June T., 1889, No. 286, in case of Commonwealth v. Harry E. Smith.</p> <p>Appeal from Superior Court.</p> <p>From the record it appeared that Harry E. Smith and the appellee were married in 1897. On February 1, 1899, they entered into a voluntary agreement of separation. On April 3, 1899, she charged appellant, before an alderman, with desertion and failure to support her, and this charge was brought to a hearing before the court below, which made an'order of maintenance.</p> <p>From this order defendant appealed. The Superior Court affirmed the judgment, Judge William W. Porter dissenting.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 3, May T., 1901, by defendant, from decree of C. P. Adams Co., April T., 1898, No. 2, on bill in equity in case of the Keystone Electric Light, Heat and Power Company of Gettysburg v. The Peoples’ Electric Light, Heat and Power Company of Gettysburg. Bill in equity to compel the delivery of certain personal property. The bill was in part as follows: 1.

<p> Corporations—Corporation mortgage—Breach of covenants—Foreclosure —Lease—Street railway companies. </p> <p>Where a street railway company leases its power house and machinery to an electric light, heat and power company, and the lessee covenants to supply the lessor with power to run its cars, to keep the property leased in good repair, and restore the same in good condition at the end of the term, to pay net receipts to the lessor to be applied to payment of the coupons on the lessor’s bonds, and to pay taxes on the leased property, and the lessee executes a mortgage to the lessor as security for the faithful compliance with the terms of the lease, such mortgage may be foreclosed where it appears that the lessee failed to rebuild the power house after it had been destroyed by fire, that the lessee failed to pay certain expenses incident to the proper care of the leased property, which the lessor paid for it, that the lessee applied certain of the net receipts to betterments and improvements, and that it failed to pay taxes on the leased property.</p>

<p>Appeal, No. 17, May T., 1901, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1899, No. 27, on appeal from tax settlement in case of Commonwealth v. County of McKean.</p> <p>Appeal from tax settlement.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered judgment for the commonwealth for $767.05.</p> <p>Error assigned was the judgment of the court.</p>

<p> Equity—Equity practice—Equity pleading—Continuing trespass—Dismissal of bill. </p> <p>A bill in equity should not be dismissed on answer and replication, where it appears from the bill that the complainant was in actual possession of land under an oil and gas lease for a definite term, and this fact is not denied by the answer, and the prayer of the bill is that the defendant be enjoined from the commission of a continuing trespass and the perpetration of wrongs alleged to be irreparable. The case, as presented by the pleadings, is one for a hearing and final decree thereafter.</p>

Appeal, No. 77, Jan. T. 1901, by defendants, from judgment of C. P. Lancaster Co., Aug. T., 1894, No. 76, on verdict for plaintiff in case of Annie M. Bush v. Annie M. Bush and Howard W. Bush, Executors of Levi L. Bush, deceased. Assumpsit on a promissory note under seal. Before Brubaker, J. At the trial it appeared that the note was dated April 4, 1884.

Appeal, No. 59, Jan. T., 1900 by plaintiffs, from decree of C. P. Berks Co., Jan. T., 1900, No. 718, on bill in equity in case of tbe Boyertown Water Company and William D. Kebl v. The Borough of Boyertown. Bill in equity for an injunction. Ermentrout, P. J., filed the following opinion: From the testimony submitted I make the following findings of fact: 1.

Appeal, No. 235, Jan. T., 1900, by defendant, from judgment of C. P. No. 1, Phila. County, June Term, 1897, No. 70, on verdict for plaintiff in case of Bailey, Milliken & Bland, Limited, v. Trustees of the Presbyterian Board of Publication and Sabbath School Work. Assumpsit to recover balance alleged to be due on a building contract.

Appeal, No. 266, Jan. T., 1900, by William F. Schroeder et al., from order of C. P. Clinton, Co., Jan. T., 1898, No. 408, making absolute a rule to show cause why. a venditioni exponas should not issue in case of Frederick Kreamer v. Margaret G. Fleming. Rule to show cause why writ of venditioni exponas should not issue to sell life estate. The facts are stated in the opinion of the Supreme Court. See also 191 Pa. 536. Error assigned was the order of the court.

Appeal, No. 51, Jan. T., 1901, by defendant, from decree of Superior Court, Oct. T., 1900, No. 154, affirming decree of C. P. No. 1, Phila. County, Dec. T., 1899, No. 1129, on bill in equity in case of Seymour Yerkes v. Matilda or Tillie Yerkes. Bill in equity to declare a trust and for an account.

Appeal, No. 345, Jan. T., 1900, by defendant, from order of C. P. Luzerne Co., Oct. T., 1894, No. 1311, dismissing exceptions to report of referee in case of Margaret Denniston etal. v. John C. Haddock. Assumpsit to recover coal royalties. Exceptions to report of J. A. Opp, Esq., referee. Prom the record it appeared that on September 27, 1870, Margaret Denniston, and others executed a lease of coal to Charles Hutchison, whose interest became vested in John C. Haddock.

<p>Appeal, No. 114, Jan. T., 1899, by John Gibbons, from order of Superior Court, Jan. T., 1900, No. 1, affirming order of Q. S. Lackawanna Co., Dec. T., 1898, No. 380, committing for contempt In re Contested Election of M. J. Kelly to the office of County Treasurer.</p> <p>Appeal from Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in affirming the order of the quarter sessions.</p>

Appeal, No. 48, Jan. T., 1900, by plaintiff, from decree of C. P. Lackawanna Co., Nov. T., 1899, No. 4, on bill in equity in case of Mount Pleasant Coal Company v. Delaware, Lackawanna and Western Railroad Company. Bill in equity for an injunction.

<p> Water companies—Exclusive privileges—Boroughs. </p> <p>Where a borough has entered into an agreement with a water company to supply the borough with water, and the agreement has been carried out, the right of the borough to establish a water supply of its own is exhausted.</p> <p>Where a borough by an agreement with a water company has exhausted its power to establish a water supply of its own, the borough has no power to establish such supply because the water company failed properly to perform its contract. The remedy of the borough is by proper proceedings to compel the water company to furnish an adequate supply.</p>

<p>Appeal, No. 25, Jan. T., 1900, by-defendants, from decree of C. £\ Luzerne Co., Oct. T., 1895, No. 14, on bill in equity in case of George B. Marble, Alvan Marble and Clora Marble v. E. P. Wilbur, John Dreisbacb, William H. Stroll and E. S. Twining, Executors of William Lilly, Deceased, John Marble, Ida Hessenbruch and Herman Hessenbruch, her Husband.</p> <p>Bill in equity for an account of the affairs of the firm of George B. Marble & Co.</p> <p>The affairs of this firm have been previously considered in the following eases: Barber’s Appeal, 182Pa. 378; Hessenbruch’s Appeal, 182 Pa. 393; Marble’s Estate, 187 Pa. 639; Hessenbruch v. Marble, 194 Pa. 581.</p> <p>The facts of the present case are stated at length in the opinion of the Supreme Court.</p> <p>Lynch, J., entered the following decree:</p> <p>This case 'came on to be heard, and after argument of counsel and full investigation, now January 8, 1900, it is ordered, adjudged and decreed:</p> <p>1. That the above named plaintiffs are entitled to an account of the several matters contained in the bill as therein prayed; and that a master be appointed by this court to state such account in detail together with a full account of the liabilities of the firm of George B. Markle & Company the amount of the assets thereof and the full amount of profits of the said firm from all.sources from the first day of January, 1890, to the date of accounting, and when so ascertained the master shall report to the court a schedule of distribution of such of the net profits and earnings of the firm thus ascertained as are not necessary for the current business thereof to and among the several parties interested therein in the proportions to which they may be entitled.</p> <p>2. And to the intent and purpose that a proper account may be stated by the said master the defendants and any manager, employee, agent, depository, or superintendent of them or any of them, or of said firm, are hereby enjoined from paying out any of the earnings of said firm by way of dividends, or partial distributions of earnings of the firm on special deposit or otherwise pending the account; and they are further commanded to render unto plaintiffs a true account of all earnings of said firm including any now on special deposit to be included in the master’s schedule of distribution.</p> <p>3. It is further ordered, adjudged and decreed that the defendants, E. P. Wilbur, John Markle, Ida M. Hessenbruch, and Herman Hessenbruch, her husband, John Driesbach and Edgar Twining, surviving executors of William Lilly, deceased, be enjoined from excluding the plaintiffs, George B. Markle, Clora Markle and Alvan Markle from participating in the management of the said firm, and from interfering with the plaintiffs in receiving their just share of all the net profits of the firm which they may now or hereafter be entitled to receive as partners.</p> <p>4. It is further ordered and decreed that unless the property now held by the Jeddo Tunnel Company, Limited, be transferred to the firm of George B. Markle & Company within ninety days from the date of this decree, that the defendants account to said firm of George B. Markle & Company for the entire amount loaned by the defendants out of the assets of the said firm of George B. Markle & Company to said Jeddo Tunnel Company, Limited, within ninety days from'the date of this decree.</p> <p>5. It is further ordered, adjudged and decreed that the defendants, E. P. Wilbur, John Maride, Ida M. Hessenbruch, John Dries bach and Edgar Twining, surviving executors of William Lilly, deceased, and any clerk, agent, manager or superintendent whom they or any of them may select be enjoined from expending the profits of the firm in any permanent improvements on the property of the firm and from impounding and holding the profits of the firm of George B. Markle & Company for the contemplated permanent improvements of the firm property as set forth in the bill without the consent of the plaintiffs, George B. Markle, Alvan Markle and Clora Markle.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 80, Jan. T., 1900, by plaintiffs, from decree of C. P. Luzerne Co., Oct. T., 1895, No. 14, on bill in equity in case of George B. Maride et al. v. E. P. Wilbur et al. Bill in equity for an account of the affairs of George B. Maride & Company. From the record it appeared that Alvan Maride withdrew as a party plaintiff after the evidence was heard, but before the decree was entered. The facts appear by the report of Maride v. Wilbur (No. 1), ante, p. 457.

<p>Appeal, No. 74, Jan. T., 1900, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1894, No. 1299, on verdict for plaintiff in case of Michael Noonan v. Calvin Pardee.</p> <p>Trepass for injuries caused by a cave in of surface.</p> <p>Halsey, J., charged in part as follows :</p> <p>Michael Noonan and Margaret Noonan, his wife, have brought suit here against C. Pardee, administrator of Ario Pardee, deceased, and Frank Pardee, to recover damages because of injury alleged to have been done by the defendants to the plaintiffs’ property in the removal of the coal underlying the same or in adjacent or proximate mining.</p> <p>Of course there has been no testimony adduced here showing tnat any of this mining was done by Frank Pardee, and at the close of the plaintiff’s testimony on motion of counsel for the defendants, a nonsuit was entered as to Frank Pardee. Therefore he is eliminated from your consideration in reaching a disposition of this case. The salient facts, gentlemen of the jnry, out of which this contention grows, are as follows : On January 11, 1892, Michael Noonan and his wife jointly owned the property in Hazleton, being lot No. 9 in square 61. On the evening of that day a subsidence or a settling of the surface occurred by reason of which this property was alleged to have been iujured. It was occupied at the time by Noonan and his wife, Mr. Helferty and his family on the one side and by a tenant on the other, whose name I think was Dugan. It was a double house, three rooms I think on the lower floor and three on the upper floor, with the ordinary halls on either side. The injury to the property by this subsidence, settling or cave has been described to you in detail by the different witnesses in the case. Mr. Helferty has described it more distinctly than any others, and he testifies to you that there was a general racking of the house and a settling of it from one to two feet. The walls and the sides of the house were thrown out of place. The plaster was cracked, the superficial character of the lot, •the water courses and the drainage, were changed, resulting, as the plaintiff alleges, in injury to the property. It has been shown that the mining operations in the mines generally under and adjacent to that property from 1858 to 1895 were carried on by Ario Pardee & Company and other parties; possibly by Ario Pardee & Company from 1874 down to 1895. The law as to the duty of the defendants, or operators of these mines, is, that in order that the plaintiff may recover here you must find that the subsidence, crush, cave or accident came from mining operations carried on by the defendants—by Ario Pardee & Company. There can be no recovery against them unless the mining and the removal of the coal was done by them or through their agent or agents. [If the defendants carried on mining operations in any portion of these mines which resulted in the accident or cave which did the injury to the plaintiffs’ property, then you would, under the law, be justified in finding a verdict in plaintiffs’ favor for the amount which you find to be the money value of such injury.] [3] The plaintiff was the owner of the surface, and not of the coal. Owners of the surface are, under the law, entitled to the possession of the surface free from any injury that may be done thereto by the owners of the coal in the mining and removing of the same. In other words, if the coal is removed by the owners, they must remove it so as .to do no injury to the owners of the surface. It is the duty of the owners of the coal to support the surface when they so mine the coal. The immediate mining under this property was in the Mammoth vein in the first lift, and I think also, gentlemen of the jury, there was testimony in the case that there had been mining in the Wharton vein. The Mammoth vein was about 100 feet below the surface of the lot of the Noonans, and the Wharton was some fifty feet below the Mammoth, so that the Wharton was 150 feet below the surface of the Noonan lot. From the mine inspector’s map it appears that no immediate mining was done in this.vein since 1858—that is, in the Mammoth. It would appear generally from the testimony that the injury complained of here did not come from the immediate mining and its consequences. Did it come from any other source ? Mr. McNair has testified (and he is a mining engineer and has been in charge of these mines and knows all about the inside operations of them) that there was no immediate mining under this property to the best of his judgment since 1858. [If- you should find that this injury did not come from immediate mining under the property, did it come from the general mining carried on by these defendants in the Hazleton mines which were generally a part and parcel of these mines ? If it did, and you should so find, then these defendants under the law would be liable in damages for the amount of the injury which you find the plaintiffs sustained.] [4] You have heard the theories as to the cause of the injury to this property. There is no question that there was a subsidence, a cave, a settling which caused injury to this property. Was this injury done by these defendants ? If it was then we say to you as a question of law it is your duty to proceed to the other question and ascertain the amount in money of the injury the plaintiffs may have sustained. [The measure of damage is the market value; and market value has been defined as a price established by public sales in the way of ordinary business. The market value is such a sum of money as the property is worth in the market to persons generally who would pay the just and full value. What is meant by the market value is not the price the land would bring at a forced/hale, but what it or land similarly situated would bring atíbale after due notice and under fair conditions. In getting at the damage sustained by the plaintiffs, you will take into consideration that which has been done in the way of making reparation—the repairing of the property injured. The evidence has been adduced here that the injury, the damage done to this property, has been repaired at the expense of the Lehigh Valley Railroad Company. How far did that go toward a reparation of the injury? You heard the testimony of witnesses who have come into court here and told you as to the character of the injuries, as to what was done in the reparation of them, and the effect of the repairs. Mr. Rousche, a contractor of many years’ residence in the city of Hazleton, has told you that the injury has been substantially repaired. Mr. Boyle, a contractor who has lived in the locality for many years, testifies to the same effect. There is no testimony here on the part of the plaintiff that he objected to the repairs or that he complained that they were insufficient. Now, were they sufficient and did they repair the injury done to this property by reason of this subsidence ? There is the further testimony in the case as to the injury done to the market value, as I have defined it to you. Witnesses have been called here to testify as to the market value before the injury, and the market value after the injury, after the excitement incident to the accident has been allayed. This, under the rule, is a fair measure of the market value, namely, the difference between the fair market value of the property before the accident and what it was worth after the accident as affected by the accident.] [5] After the excitement incident to the accident had subsided, after the community had ceased to have any fear arising from the subsidence, from the cave, from the settling of the mines. That was the time at which the market value should determine and fix the value of the property, not when the community was excited and disturbed and frightened and away from 'their homes, but after everything had quieted down, what was then the market value of this property ?</p> <p>Verdict and judgment for plaintiff for $2,790. Defendant appealed.</p> <p>Errors assigned among others were (2) refusal to give binding instructions for defendant; (3-5) above instructions, quoting them.</p>

<p>Appeal, No. 432, Jan. T., 1899, by plaintiff, from judgment of C. P. Warren Co., June T., 1898, No. 35, in favor of defendants on trial by court without a jury in case of John Knupp v. Anna Watson Syms, D. I. Ball and Wheeler & Dusenbury.</p> <p>Ejectment for land in Watson township.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 106, Jan. T., 1900, by-plaintiff, from judgment of C. P. Warren Co., Dee. T., 1899, No. 6, on verdict for defendant in case of Alice B. Knupp v. Arthur Brooks.</p> <p>Trespass for cutting timber on thirty acres of land in Croydon township. At the trial it appeared that the plaintiff claimed title under a tax deed to D. I. Ball. Defendant claimed title under H. A. Jamison. It appeared that the land was a portion of an original survey of 484 acres. Jamison acquired title to 364 acres after 120 acres had been conveyed to one English.</p> <p>lYhen Jamison was on the stand the following offer was made:</p> <p>Counsel for defendant proposes to prove by this witness that he went to the treasurer to pay the taxes on the land he owned on tract No. 17 for the years 1874 and 1875, previous to the sale of this land, and told him that he wanted to pay all the taxes on tract No 17, except 120 acres, and that he paid the treasurer all the money that he demanded for the taxes that were assessed on tract No. 17 for the years 1874 and 1875 except the 120 acres. This is for the purpose of showing that he undertook to pay his taxes on tract No. 17, and that the mistake, if any, was a mistake of the treasurer.</p> <p>Objected to, first, that the treasurer spoken of is dead. Second, that the tax receipt is the best evidence of what he intended to pay.</p> <p>Objection overruled, and exception sealed for plaintiff. [1]</p> <p>Defendant’s counsel offer in evidence the sales list from the treasurer of Warren county from and including 1878, up to and including 1898, to show that the taxes of these pieces of land, which we have shown in H. A. Jamison, were paid by him during all those years, and to show that D. I. Ball or Mrs. Knupp has paid no taxes on those lands. This taken in connection with the testimony already in that no claim has been asserted under this tax title from its inception in 1876 to 1899, to show in connection with that evidence want of title to the land in controversy in the plaintiff, and the evidence of title in H. A. Jamison and those claiming under him.</p> <p>Objected to as incompetent and irrelevant.</p> <p>Objection overruled and exception sealed for plaintiff. [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1, 2) rulings on evidence, quoting the bill of exceptions.</p>

<p>Judgment—Revival of judgment—IAen—Statutes—Repeal—Acts of April 16, 1849, P. L. 663, and June 1, 1887, P. L. 289.</p> <p>The Aet of April 16,1849, P. L. 663, whioh provides that “ When a judgment has been regularly revived between the original parties, the period of five years during which the lien of the judgment continues shall only commence to run in favor of the terre-tenant from the time that he or she has placed their deed on record,” is not repealed by the Aet of June 1, 1887, P. L. 289, which provides that “ No proceeding shall be available to continue the lien of said judgment against a terre-tenant, whose deed for the land bound bj- said judgment has been recorded, except by agreement, in writing, signed by said terre-tenant and entered on the proper docket, or the terre-tenant, or terre-tenants, be named as such in the original scire facias.” There is no real repugnancy between the two acts.</p> <p>Where at the time of the issue of a scire facias to revive a judgment, a deed is on record from the judgment debtor, and the terre-tenant is not named in the scire facias, the landis relieved from the lien of the judgment.</p> <p>To work a repeal of one statute by another because of repugnancy, the repugnancy must be clear, palpable and beyond honest dispute.</p> <p>It was probably the intention of. the legislature in passing the act of June 1, 1887, to stop the irregular practice of issuing a scire facias to revive a judgment against the original debtor, and at the same time directing the sheriff to give notice to all terre-tenants, without designating them by name.</p>

<p>Appeal, No. 257, Jan. T., 1900, by-defendant, from decrees of C. P. Warren Co. Dec. T., 1899, No 35, on bill in equity in case of John Nelson and Martin Nelson y. Warren Borough et al., and Warren Water Company v. Warren Borough.</p> <p>Bill in equity for an injunction.</p> <p>The bill was filed to restrain the borough of Warren from issuing bonds for the purpose of securing money to erect and build a waterworks. It appeared that in 1881 and 1889 the borough had made contracts with the Warren Water Company to supply the borough with water. It was claimed that notwithstanding these contracts the borough had the right to erect waterworks of its own under the Act of April 5, 1873, P. L. 547, entitled, “An act to authorize the borough of Warren to erect waterworks and borrow money.”</p> <p>The court in an opinion by Lindsey, P. J., entered the following decree:</p> <p>And now, this dajr of July 2, 1900, this case came on to be heard upon bill, answer, testimony, etc., and was fully argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit: That the borough of Warren, its officers and agents be restrained and perpetually enjoined by injunction from making or issuing the sum of $50,000, of bonds or any part thereof, for the purpose of building a waterworks for the purpose of supplying water to the borough of Warren and its inhabitants, as well as from doing an]' act in furtherance of such purpose, and that an injunction issue accordingly. It is also decreed that the costs of this case shall be paid by the said borough of Warren, the defendant.</p> <p>Error assigned among others was the decree of the court.</p>

Appeal, No. 24, Oct. T., 1901, by defendant, from order of C. P. No. 1, Allegheny Co., Dec. T., -1900, No. 65, awarding mandamus in case of Commonwealth ex rel. City of McKeesport School District v. R. A. Hitchens. Petition for mandamus.

<p>■ Corporation—Eligibility of directors—Payment oj dues on shares.</p> <p>■ Where the by-laws of a corporation provide that a stockholder can only be eligible to the position of director if at least three months’ dues have been paid on his stock, a person who subscribes for stock a few hours before the election, and pays nothing thereon, but tells the secretary of the company to pay the three months’ dues for him, which the secretary does a few days after the election, such person is not eligible to the position of director, and if he has been elected director, he will be ousted from the office.</p>

Appeal, No. 318, Jan. T., 1900, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1899, No. 25, on verdict for plaintiff in case of Charles R. Bassett v. City of Easton. Trespass to recover damages for personal injuries. Before Schuyler, P. J. At the trial it appeared that plantiff was injured on April 13, 1898, by falling on a defective sidewalk on North Eighth street in the city of Easton.

Appeals,. No. 128, Jan. T., 1895, and No. 131, Jan. T., 1899, by George Witmer and Sarah Lea-man, from decree of O. 0. Lancaster Co., overruling exceptions to auditor’s report in the Estate of Christian H. Lefevre, Deceased. Exceptions to report of A. F. Hostetter, Esq., auditor. See Lefevre’s Estate, 171 Pa. 404, and 193 Pa. 225.

<p> Negligence—Electric light companies—Duty as to wires—Oversight and repair. </p> <p>AVires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The. difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case. The company however which uses such a dangerous agent is bound not only to know, the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them. The duty is not only to make the wire safe by proper insulation, but to keep it so by constant oversight and repair.</p> <p> Negligence—Electric light companies—Notice of defective insulation of wire. </p> <p>In an action against an electric light company to recover damages for a death caused by contact with a defectively insulated wire, the plaintiff is not bound to show direct and express notice of the defect, but may show that it had existed for such a period that it ought to have been known to the company.</p> <p>Where a painter goes upon a roof in the lawful exercise of his business, and finds that in order to get at a cornice to paint it he must prop up a number of electric wires which are in his way, and he does so by means of a board, and while under the wires at his work the board slips, and he is killed by a defectively insulated wire which comes in contact with him, and it appears that the insulation had been defective for several weeks, the question of the company’s negligence is for the jury. Smith v. East End Electric Light Co., 198 Pa. 19, distinguished.</p> <p>In such a case it is not error to exclude testimony that the wires had been put on the roof without the consent or against the protest of the lessee or owner of the house.</p>

<p> Decedent's estate—Mutual accounts—Jurisdiction of orphans' court. </p> <p>The orphans’ court has no jurisdiction to settle mutual and complicated accounts between a claimant and a decedent, the matters of which had never been separated by the parties themselves. Such an account can only be adjusted in a court of general equity jurisdiction. If the claimant, although warned by the Supreme Court of the lack of jurisdiction of the orphans’ court persists in proceeding before the auditor appointed by the orphans’ court, a report by the auditor in his favor will be set aside, and a decree will be entered that proceedings shall be suspended for a short period to permit the claimant to file a bill in a court of equity, and to prosecute it with diligence to final hearing, with leave to the court, however, if the claimant should not file his bill within the specified time, or if the delay should appear to be seriously injurious to other parties, to make distribution to the parties in interest, exclusive of the claimant, either with or without requiring refunding bonds as might appear to be equitable.</p>

Appeal, No. 271, Jan. T., 1901, by Eli W. Martin and Henry M. Shreiner, from decree of O. C. Lancaster Co., dismissing appeal from Register of Wills in the Estate of Joshua Rutt, deceased. Appeal from register of wills. Landis, J., filed the following opinion: By the Act of April 8, 1883, P. L. 249, section 7, it is provided that personal estate may be bequeathed by a nuncupative will under the following restrictions : “ 1.

<p> Contract—Guaranty—Receipts—Payment. </p> <p>In an action on a guaranty, it appeared that the defendants, who were contractors, purchased structural iron and steel from material men, who purchased it from the plaintiffs. The defendants guaranteed the payment. The plaintiffs, for the purpose of enabling the material men to obtain payments on account from the defendants, gave them a receipt for payments to them which included the amount of money actually received and certain acceptances not then due. Held, that the receipt was conclusive on the plaintiffs as an acquittance for the amount named in it, but that it did not estop them from claiming any balance due.</p>

Appeal, Nos. 382 and 383½, from decree of O. C. Lancaster Co., dismissing exceptions to auditor’s report in the Estate of Elizabeth B. Hershey, Deceased. Exceptions to report of William Leaman, Esq., auditor. The will of Elizabeth B. Hershey was as follows : “ As to such estate, as it has pleased God to entrust me with, I dispose of as follows, viz: “ Item first.

<p>Bond—Presumption of payment—Rebuttal of presumption—Evidence— Question for jury.</p> <p>In an action by a daughter against her father’s executors on a bond under seal dated twenty years before the bringing of the suit, the question whether the presumption of payment has been rebutted is for the jury, where the evidence is in effect that the deceased was a man of property able to pay the bond in his lifetime, and that the plaintiff never mentioned the bond until after her mother’s death, which occurred ten years after her father’s death, but a brother of the plaintiff testifies that his father told his mother in the presence of the mother, plaintiff and himself, “I have no money to pay the interest to L. on the $2,700 bond I owe her,” and that this remark was repeated within a year of the father’s death.</p>

<p> Gift—Gift of bonds to a church—Evidence. </p> <p>A gift of bonds to a church by an elderly woman in her sound senses, for the consideration of the paymeut of interest to her on the bonds during her life, and a covenant to keep in repair her cemetery lot, will be sustained, where it appears that neither the pastor of the church nor its officers committed any fraud in the transaction, and did not unduly persuade the donor, that the suggestion as to the gift came from a person not connected with .the church, and that the amount of the bonds given was not such a portion of the donor’s estate as would in anywise embarrass her, or seriously diminish it.</p>

<p> Partnership—Limited partnership association—Change of interest. </p> <p>Where a person acquires by purchase stock o£ a limited partnership as-, soeiation organized under the Act of June 2, 1874, P. L. 271, and makes' a demand for election to membership, his demand is a consent to membership in regard to his entire holding of shares, and the different dates of: acquisition of the shares, and the difference of previous owners are irrelevant. The partnership association has the option to elect to membership or not, and can either accept or refuse the demand, but cannot split it up into fractions, and accept part and refuse part. A refusal of part is.’ a refusal altogether, and at once gives the purchaser of the stock the right’ to an appraisement and payment for all his shares.</p> <p>Where a person purchases shares of a limited partnership association, and makes a demand for admission to membership, the association is entitled to a reasonable time to consider its action.</p> <p>Where a purchaser of shares makes a demand for election to member-', ship, and notifies the association that he will consider a failure to elect’’ within two months as a refusal, the association will not be considered in default for failure to elect within that time where it appears that the next-annual election was eight months after the date of the notice, that the company had about 600 members scattered over four states, and that an-election could not be made by the managers, but was required to be held at a meeting of the members.</p> <p> Partnership—Limited partnership association—Appraisement of value of shares. </p> <p>In appraising the value of shares of a limited pai'tnei’ship association, where there have been no sales of shares in the open mai'ket, the appraiser may take into consideration the books and accounts showing the amount’ of money invested, the cost of operating, the earnings and losses, the as-, sets and liabilities, together with such other competent and relevant evidence as affects the book values of the property, or any portion of them. Where the evidence as to the depreciation in the plant and the value of ' the good-will is meager and unsatisfactory, an appraiser cannot be con- ■ victed of error in setting one off against the other.</p> <p>Partnership—Limited partners—Appraisement—Interest. ' ,</p> <p>While as a general rule in appraising the value of shares of a limited partnership association, interest is allowed from the date of the acquisition of the shares, yet if a delay in the appraisement is caused by the pur■chaser’s own act, interest is allowable only from the date which equity un-’ Ser the circumstances requires.</p>

<p> Constitutional law—Salary of county officers—Necessity for legislative action. </p> <p>Section 5 of article 14 of the constitution providing that “ in counties containing over 150,000 inhabitants, all county officers shall be paid by sal-, ary,” does not execute itself, nor does it furnish the courts with any means of executing it. It is a mandate to the legislature, but does not become effective until legislative action. • ¡</p> <p>Public officers—County officers—Salaries—Change in classification—Acf of March 31, 1876, P. L. 13—Constitution, article 14, section 5— United States census.</p> <p>The United States census in its relevancy to state matters depends on the -constitution and statutes of the state. In adopting it as the test, the courts will proceed upon the general principle that it affords the best evidence attainable of the necessary fact; and upon the same principle before" the fact can become a part of the state law and be made the basis of action it must be established by competent evidence. It follows, therefore, that it is not the mere existence of the fact that must govern its application, but its legal and official ascertainment.</p> <p>A county once having its status as to population settled,-retains it,-until it is legally and officially ascertained to have changed.</p> <p>Where a person on November 6, 1900, was elected district attorney in a county which by the census of 1890 was under 150,000, in population, and, by the census of 1900 over 150,000, in population, and it appears that the result of the census of 1900 was not made known in any official manner until after the election for district attorney, such person does not come under the provisions of the Act of March 31, 1876, which carried into effect-section 5 of article 14 of the constitution, providing for salaries of county officers in counties with more than 150,000, inhabitants.</p>

<p>Appeal, No. 15, May T., 1901, by M. D. Bishop, Laura V. Bishop and Cornelius Wolfort, trustees,' from decree of O. C. Adams Co., confirming the inquest in partition in the Estate of Philip Bishop, Deceased.</p> <p>Petition for partition.</p> <p>Swoope, P. J., found the facts to be as follows:</p> <p>Philip Bishop, Sr., being seized, in fee, of a parcel or lot of ground upon which a small church was erected, situate in Germany township, Adams county, Penna., on Jaunary 28, 1826,' by deed duly executed and recorded, sold and conveyed the same to Philip Bishop, Jr., Christian Bishop, Jacob Bishop and Jacob Shank, trustees, in trust for the use, intent and purpose following:</p> <p>The said church “ to be hereafter known by the name of the United Brethren in Christ in the United States.”</p> <p>The said trustees or a majority of them, their heirs or successors to hold the same “ in trust, for the use, intent and purpose of the United Brethren in Christ in the United States forever for a house and place of worship for the society aforesaid, yet nevertheless, to be free for any other society of Christians to worship therein and hear the word of God preached therein at all times, when not occupied by the society aforesaid.”</p> <p>The deed then provides that the trustees shall have exclusive control of the said church and property to keep the same in repair, etc., provides for the appointment of trustees in the event of death, removal or resignation, and then concludes: .“ Provided always nevertheless, that if it should happen in process of time that the said church should be deserted, and the congregation broken up for some length of time so that no ministers of that society aforesaid should attend to preach therein, nor hearers attend to worship therein, but should be abandoned by said society, that then and in that case, but not otherwise, as well the lot of ground aforesaid as the church aforesaid and appurtenances, shall revert back and be again fully .vested in-the said Philip Bishop, his heirs and assigns, as.fully as if this deed had never been executed, anything' to the contrary herein contained notwithstanding.”</p> <p>Philip Bishop, Sr., died in the township of Germany aforesaid, in 1832, testate, and by his will his three sons, Philip, Christian and Jacob, were appointed executors, who settled and distributed the esta te in their hands in accordance with their father’s will.</p> <p>On December 6, 1900, John Amos Bishop, one of the four children of John Bishop, deceased, who was one of the nine children of Philip Bishop, Sr., deceased, and claiming to be entitled to the one fourth of the one ninth of above property, presented his petition to the orphans’ court, asking that an inquest be awarded to make partition of the same, for the reason that said church has been abandoned by the United Brethren in-Christ in the. United States, by formal action of said society; by its ministers, hearers and worshippers, and has reverted to Philip Bishop, Sr., his heirs and assigns, as provided in said deed of trust.</p> <p>The petition set out all the names of the heirs of Philip Bishop, Sr., deceased, and their addresses, as far as known, some of them being minors.</p> <p>The petition was also accompanied with a declaration in writing of six persons, that they were all the remaining worshippers of the Society of the United Brethren in Christ, who were accustomed to attend preaching and worship in said church, and who admitted the abandonment of said church by the said society and their entire willingness to have the heirs of Philip Bishop, Sr., deceased, take possession of the same “ according as they have the right to do.”</p> <p>Upon this presentation inquest was awarded.</p> <p>On February 2,1901, M. B. Bishop, Laura Y. Bishop and Cornelius Wolfort, three of the then trustees of said property, filed an affidavit asking the court not to confirm the inquest, and denying all the allegations of- the petitioner.</p> <p>On the same day, February 2, 1901, the affidavit of J. L. Grimm, presiding elder, Baltimore district, Pennsvlvania Conference, United Brethren in Christ, was filed, asking the court not to confirm the inquest, because the United Brethren Church in Littlestown (property in dispute) is sometimes regarded as belonging to the Baltimore district, of which he is the presiding elder, and sometimes regarded as belonging to the Chambers-burg district, of which Rev. A. R. Ayers, of Carlisle, is the-presiding elder. That the said church could not be properly abandoned without his concurrence or knowledge, and that it was not abandoned.</p> <p>On February 14, 1901, considerable testimony was taken in support of petition for inquest, at which-time Charles J. Delone and William P. Quimby, Esquires, were present representing exceptors and cross-examined witnesses. No testimony was taken on behalf of exceptors.</p> <p>The court entered a decree confirming the return of inquest.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 16, May T., 1901, by plaintiff, from order of C. P. Dauphin Co., March T., 1899, No. 57, refusing to take off nonsuit in case of Abram E. Martin v. Philadelphia and Reading Railway Company. Trespass for personal injuries. The facts appear by the opinion of Weiss, J., which was as follows :■ The plaintiff was a government mail agent on November 7, 1898.

Appeal, No. 14, May T., 1901, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1898, No. 148, on verdict for plaintiff in case of George W. Stewart v. Climax Road Machine Company. Assumpsit to recover the contract price for the construction of bins in connection with a stone crusher for a quarry.

Appeal, No. 63, Oct. T., 1901, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 689, on verdict for plaintiff in case of the Bennett Water Company v. Burgess and Town Council of Millvale Borough. Trespass to recover damages for injuries sustained by the erection of a waterworks.

<p>Statute of frauds—Memorandum signed by owner—Signature of vendee— Principal and agent—Husband and wife.</p> <p>If a contract for the sale of laud is signed by the vendor, it is not necessary under the statute of frauds that notice of election to take by the vendee should be in writing.</p> <p>Where a contract for the purchase of land is made by a husband in his own name, the fact that he was the agent of his wife may be shown by parol evidence.</p> <p>Where a husband enters into an agreement for the purchase of land in his own name, but in reality acts for his wife as an undisclosed principal, and thereafter the vendor accepts payments from the wife for a long series of months, the vendor thereby recognizes the wife as the real party in interest.</p> <p> Vendor and vendee—Equitable owner—Notice—Statute of frauds. </p> <p>One who takes the conveyance of the legal title to land with knowledge that his grantor has agreed to sell it to another person, takes it subject to the equitable estate, already vested in the purchaser.</p> <p>Vendor and vendee—Articles of agreement— Deferred payments—Conveyance by vendor to a third person.</p> <p>Where a vendor of land under articles of agreement conveys the land to a third person before all the deferred payments are made to him, and thereby places it out of his power to comply with the terms of the contract of sale, he cannot require that the vendee shall make further payments to him.</p>

<p>Appeal, No. 102, Jan. T., 1901, by defendant, from judgment of C. P. Northampton Co., Sept. T., 1899, No. 15, on conditional verdict in case of J. Davis Brodhead, to use of Catharine Ferriday, v. Nancy Reinbold and Charles H. Reinbold.</p>

<p> Sale—Rescission—Fraud—Statement to 'commercial agency. </p> <p>A contract of sale of goods will not be set aside on account of alleged false representations by the purchaser, where the only evidence on the subject is that the purchaser made a statement to a commercial agency showing assets considerably in excess of liabilities, and that some months after-wards' when his properly was sold under execution it failed to realize enough to pay his debts, and there is no evidence that the statement was in fact untrue, or that the purchaser had any knowledge of a condition of insolvency at the time he bought the goods.</p>

<p>Equity—Equity pleading—Mullifariousness—Parties— Public office.</p> <p>In an equity suit to test the constitutionality of an act which in effect abolishes a public office, the joinder as plaintiffs of persons holding the offices intended to be abolished and taxpayers, does not render the bill multifarious.</p> <p>In such a case the officers of a party convention and candidates nominated by it should not be joined as defendants, but if no affirmative relief is asked against them they are merely superfluous parties as to whom the bill may be dismissed.</p> <p>A bill in equity, the object of which is first to declare unconstitutional two acts, the combined effect of which is to abolish a public office, and second, to prevent the parties defendant from acting under the supposed authority of the two acts, is single in purpose, and not multifarious.</p> <p>The filing of a bill in equity relating to the legal existence of a public office, very close on the eve of an election for such office, is a practice not to be encouraged.</p> <p>Constitutional law—Local and special legislation—Act of April 24, 1901, P. L. 95.</p> <p>The Act of April 24,1901, P. L. 95, providing that “ there shall be elected in each county coextensive in boundary with a city of the first class, three persons to serve as members of the board of revision of taxes,” contravenes the prohibition in section 7 of article 3 of the constitution against the passage of any local or special law “ regulating the affairs of counties-, cities,” etc. This description cannot apply either at the present time or in the proximate future to any county but Philadelphia, and for that reason the act is distinctly local and special. It cannot be sustained on the ground of classification for it is outside of all the principles on which classification is permissible.</p> <p>Constitutional law—Repeal of statutes—-Local and special legislation— Act of April 24, 1901, P. L. 94.</p> <p>The Act of April 24, 1901, P. L. 94, repealing part of a section of the Act of March 14, 1865, P. L. 320, and its supplements relating to the appointment of the board of revision of taxes in the county of Philadelphia, is unconstitutional as special or local legislation. It is not a repealing act within the meaning of section 7 of the constitution, which permits the passage of laws repealing special or local acts, since it merely makes a change in the mode of filling, an office whose name, powers and duties are left as they were before. This is not repealing an old local law, but making a new one.</p>

<p>Appeal, No. 125, Oct. T., 1901, by defendant, from judgment of O. & T., Allegheny Co., March T., 1901, No. 28, on verdict of guilty of murder in the first degree in case of Commonwealth v. John Biddle, alias John Wright.</p> <p>Indictment for murder. Before Sharer, J.</p> <p>The circumstances of the crime are stated in the opinion of the Supreme Court.</p> <p>,Mrrors assigned were as follows:</p> <p>1. In permitting Walter Dorman to be arraigned and enter his plea of guilty in open court in the presence of the jury before which John Biddle was to be tried separately for the murder of Thomas D. Kahney.</p> <p>2. In permitting the commonwealth to examine Walter Dorman regarding his former relations and associations with John and Edward Biddle at times and in matters not connected with the killing of Thomas D. Kahney.</p> <p>8. In permitting Walter Dorman to relate conversations had betweén Thomas D. Kahney and himself on the day preceding the tragedy, at which conversation neither John Biddle nor Edward Biddle was present, and also in permitting Mrs. Kahney to testify that she overheard said conversation, although admitting that she did not know who the party was in conversation with her husband.</p> <p>4. -In refusing defendant’s counsel, during the cross-examinatión of Mrs. Pendergrast, permission to ask her how certain men whom she had seen in the court room within twenty-four hours were dressed, she having based her identification of the defendant partially upon the manner in which he was attired on the day preceding the tragedy.</p> <p>5. In refusing to permit the witness Ollinger on cross-examination to describe the face of Edward Biddle as it appeared on the day of the trial, the witness having just been taken to the opposite side of the court room for the purpose of closely scrutinizing the features of the said Edward Biddle who was seated in the prisoners’ dock, and whose face was noticeably disfigured since the time the witness, Ollinger, claims to have seen him on the morning of the tragedy, and said Ollinger having already given to the jury a description of the face of the man he saw on that morning.</p> <p>6. In not permitting defendant’s counsel to cross-examine Philip Demmel in detail regarding a certain shoe with which he made investigation and measurements of footprints surrounding the Kahney house immediately following the tragedy, and in refusing to permit defendant’s counsel to ask Demmel whether he procured said shoe in the room or on the premises occupied by John Biddle, the defendant, the said Demmel having been asked by the district attorney whether or not he came into the possession of the clothing of Edward Biddle, and especially the clothing alleged to have been worn by Edward Biddle on the night of the tragedy, and being asked furthermore by the district attorney what he did with said clothing.</p> <p>7. In permitting the commonwealth to reopen its case and offer in evidence the record of the court showing Walter Dorman’s plea of guilty, in the case of the Commonwealth versus Dorman, after the commonwealth had formally rested, and after the defense had formally opened its case and outlined to the jury what it proposed to prove.</p> <p>8. In refusing the second point submitted by defendant’s counsel, i. e.: “ 2d. Unless it has been established beyond a reasonable doubt that at the very moment Thomas D. Kahney received the wound of which he died, the defendant, John Biddle, was actually engaged in the perpetration or attempt to perpetrate a burglary, the verdict should not be guilty, unless the jury find that John Biddle fired the shot.”</p> <p>9. In refusing the fourth point submitted by defendant’s counsel, i. e.: “ 4th. If the jury suspect that Dorman’s motive in testifying as he did was to save his own life, and while under the influence or control of that motive he misstated material facts to the detriment of the defendant, John Biddle, it would be the duty of the jury to give the defendant the benefit of the doubt arising from such suspicion and render a verdict of not guilty.”</p> <p>10. In refusing the sixth point submitted by defendant’s counsel, i. e.: “6th. Nothing having been stolen from the Kahney residence on the night of the tragedy, the jury, before rendering its verdict, must determine when the attempt to commit the burglary ceased, and if a reasonable doubt exists as to whether it ceased on the part of John Biddle before or after the shooting, the verdict should be not guilty.”</p>

Appeal, No. 126, Oct. T., 1901, by defend, ant, from judgment of O. & T. Allegheny Co., March T., 1901, No. 28, on verdict of guilty of murder in the first degree in case of Commonwealth v. Edward Biddle, alias Edward Wright. Indictment for murder. Before Sharer, J. Hrrors assigned among others were: 4.

<p>Appeal, No. 96, Jan. T., 1900, by defendant, from decree of C. P. Schuylkill Co., March T., 1897, No. 4, on bill in equity in case of Samuel B. Keppel and Samuel C. Boyer, Assignees of Augustus W. Shick and John B. Wamsher, v. Lehigh Coal & Navigation Company.</p> <p>Bill in equity for an injunction and for damages.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree :</p> <p>1. That the-said the Lehigh Coal and Navigation Company, defendant, its workmen, agents and employees, its successors and assigns and their workmen, agents and employees, be perpetually restrained from discharging into Panther creek, and from permitting to escape into said Panther creek, from any of its collieries owned and operated by it or its successors or assigns; any coal dirt, culm or muck or other refuse from said collieries and from so depositing its said coal dirt, culm, muck and refuse from its mines and collieries that the same may be, from time to time, carried by the ordinary rains and freshets into said creek and from polluting the waters of said Panther creek as set forth in complainant’s bill of complaint.</p> <p>2. That the defendant pay the plaintiff the sum of $4,900, being the damages which the plaintiffs have sustained to the time of trial, by reason of the defendant having unlawfully polluted the waters of said Panther creek.</p> <p>8. That the cost of this proceeding be paid by the defendant within thirty days from the filing hereof.</p> <p>Error assigned amongst others was the decree of the court.</p>