Volume 201 — Pennsylvania State Reports

<p>Corporations—Foreign corporations—Building and loan associations— Doing business—Bond and mortgage—Usury.</p> <p>A foreign building and loan, association having its office in the state of its domicile, where under its articles of association and by-laws, its business must be conducted, and at which office all payments must be made to it, and all contracts passed upon, does not, in making a loan to a citizen of Pennsylvania on a bond, through an agent in Pennsylvania, and taking as security for the debt a mortgage on Pennsylvania real estate, make a Pennsylvania contract governed by the usury laws of this state; nor is the association doing business in Pennsylvania within the meaning of the act of April 22, 1874, requiring the registration of foreign corporations. In such a case there is no employment by the association of any part of its capital in Pennsylvania. The capital, if employed in Pennsylvania, is employed by a citizen of Pennsylvania. Swing v. Munson, 191 Pa. 582, distinguished.</p>

Appeal, No. 18, Oct. T., 1901, by plaintiff, from order of C. P. Westmoreland Co., Nov. T., 1899, No. 178, refusing to take off nonsuit in the case of William Fox v. John M. Peoples. Assumpsit to recover alleged profits on the sale of real estate. Before McConnell, J. At the trial it appeared that William Fox, plaintiff, and his brother, were assignees of their father, David Fox. On November 13, 1885, they sold under an order of court certain real estate of their assignor.

Appeal, No. 81, Jan. T., 1901, by plaintiff, from judgment of Superior Court,Oct. T., 1898, No. 214, reversing judgment of C. P. McKean Co, Feb. T, 1896, No. 202, on case tried by court without a jury in suit of People’s Building, Loan and Saving Association (Oscar N. Whitney, Assignee) Appellant, v. Martha Neal.

Appeal, No. 42, Oct. T., 1901, by plaintiffs, from decree of C. P. Westmoreland Co., No. 334, Equity Docket, dismissing bill in equity in case of John Eisaman and Laura J. Kuhn v. Albert Eisaman and Dr. Reuben Eisaman. Bill in equity for an account. From the record it appeared that a farm belonging to Lewis Eisaman was sold by the sheriff to two of Eisaman’s sons, the defendants. The purchasers subsequently sold the property at a profit.

Appeal, No. 133, Oct. T., 1901, by plaintiff, from order of C. P. Clarion Co., May T., 1900, No. 174, striking off mechanic’s lien in ease of John H. Wettling v. W. F. Kelly. Rule to'strike off mechanic’s lien. Clark, P. J., filed the following opinion: This is a rule on plaintiff to show cause why the above stated mechanic’s lien should not be stricken off, and which was granted on motion of W. J. Breene and Geo.

Appeal, No. 27, Oct. T., 1901, by defendant, from judgment of O. P. Cambria Co., Dec. T., 1899, N o. 198, for plaintiff, non obstante veredicto in case of Walnut Run Coal Company v. G. Lee Kniglit. Ejectment for coal in Susquehanna township. At the trial the jury returned a verdict for plaintiff for the land described in the writ to be released on the- payment of $6,700.10 in one year from date. The court reserved two questions of law.

Appeal, No. 125, Oct. T., 1900, by-defendant, from judgment of 0. P. Jefferson Co., Feb. T., 1884, No. 124, on verdict for plaintiffs in case of S. Win Wilson et al. v. Marvin Rulofson Company. Ejectment for 141 acres of land in Eldred township. Before Morrison, P. J., specially presiding. The case was previously reported in 172 Pa. 80. The facts sufficiently appear by the opinion of the Supreme Court.

<p> Principal and agent—Liability of principal to third persons. </p> <p>The principal is responsible civiliter to third persons for the acts, even the tortious acts, of his agent, if done in the course of the agent’s employment, although the principal did not authorize the acts or indeed may have forbidden them.</p> <p>The principal who has conferred general power on an agent cannot escape answerability for a particular act of the agent, within the scope of the general power.</p> <p> Principal and agent—Liability of insurance agent to his principal for act of subagent. </p> <p>Where an agent of an insurance company who has power to countersign and issue policies and collect premiums, employs a subagent whom he permits to sign his name to the policies, collect premiums and deposit money in bank, and the subagent without the agent’s actual knowledge, issues a policy on a kind of risk which the agent had been expressly forbidden to insure, and a loss results to the insurance company by reason of the destruction of the premises by fire, the agent is liable to the insurance company for the loss sustained, and he cannot allege as a defense, that he had no knowledge of the delivery of the policy, or of the fact that the subagent had received the premium and deposited the same in the agent’s bank account.</p> <p> Criminal law—Forgery—Definition of forgery. </p> <p>Forgery is the fraudulent making of a writing to the prejudice of another’s right.</p> <p>An agent who has signed his principal’s name in the course of the principal’s business, without fraudulent intent, and without receiving any benefit from the act, cannot be charged with forgery.</p> <p> Maxims—Two innocent persons—Wrongful act of a third person. </p> <p>Where one of two innocent persons must suffer from the wrongful act of a third, the loss should be borne by him who put the wrongdoer in a position of trust and confidence, and thus enabled him to perpetrate the wrong.</p>

Appeal, No. 95, Oct. T., 1901, by plaintiff, from decree of C. P. Greene Co., No. 40, in Equity, dismissing bill in equity in case of E. M. Sayers v. Spencer B. Kent. Bill in equity to cancel an oil and gas lease.

Appeal, No. 23, Oct. T., 1901, by plaintiff, from judgment of C. P. Greene Co., June T., 1897, No. 8, on verdict for defendants in case of Thomas Hook and Uriah Inghram, Executors of Thomas Goodwin, Deceased, now for use of George Goodwin, v. Z. G. White, alias Zadoc G. White, Wm. Blair, alias William Blair, and Hicey S. Kent, Executors of Mordecai Kent, Deceased. Issue to determine the validity of a judgment entered on a judgment note.

Appeal, No. 65, Oct. T., 1901, by defendant, from judgment of C. P. Washington Co., Nov. T., 1900, No. 101, on verdict for plaintiff in case of Pennsylvania Savings Fund and Loan Association v. W. M. George & Co., Limited. Ejectment for a tract of land in Robinson township.

Appeal, No. 71, Oct. T., 1901, by defendant, from judgment of C. P. Washington Co., May T., 1900, No. 6, on verdict for plaintiff, in case of A. E. Townsend v. J. B. Wilson. Assumpsit for contribution. Before Taylor, J. The facts sufficiently appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for f1,734.17. Defendant appealed. Error assigned among others was in submitting the case to the jury.

Appeal, No. 34, Oct. T., 1901, by plaintiffs, from decree of C. P. Washington Co., No. 515, dismissing bill in equity in case of Wm. H. Braden and Mary Ann Braden et al. v. William Workman, Cashier of the Washington Savings Bank, for the use of the stockholders of the bank. Bill in equity to declare a trust. The case was previously reported in 43 Legal Intelligencer, 240.

Appeal, No. 98, Oct. T., 1901, by plaintiff, from judgment of O. P. Butler Co., Dec. T., 1898, No. 14, on verdict for plaintiff in case of George Reiber v. The Butler & Pittsburg Railroad Company with notice to the Pittsburg, Bessemer & Lake Erie Railroad Company. Appeal from award of viewers.

Appeal, No. 21, Oct. T., 1901, by defendant, from judgment of G. P. Lawrence Co., Dec. T., 1899, No. 66, on verdict for plaintiff in case of B. F. Dean v. City of New Castle. Trespass to recover damages for personal injuries caused by a fall on a slippery sidewalk.

Appéals, Nos. 54 and 55, Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1898, No. 574, on verdict for plaintiff in case of Dennis Levin, by his father and next friend, John Levin and John Levin v. The Second Avenue Traction Company. Trespass to recover damages for personal injuries to a child five years old. See Levin v. Second Avenue Traction Company, 194 Pa. 156. Verdict and judgment for Dennis Levin for $2,000 and for John Levin $85.00.

Appeal, No. 110, Oct. T., 1901, by defendant, from judgment of O. P. Mercer Co., Jan. T., 1900, No. 146, on case stated in case of Alexander Johnston v. Enoch Filer, Joseph Forker, Mary W. Carver and Eva W. Sutliff, trading as Westerman, Filer & Company. Case stated to determine the amount of royalties due. The material portions of the case stated were as follows: 1.

<p>Appeal, No. 65, Jan. T., 1901, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1896, No. 106, on verdict for plaintiff in case of W. J. Harvey and H. H. Harvey v. The Susquehanna Coal Company.</p> <p>Trespass for injuries to real estate caused by the alleged negligent escape of coal dust from a breaker. Before Halsey, J.</p> <p>At the trial it appeared that the defendant was a coal company, and that one of its breakers was located in the outskirts of the borough of Nanticoke. Plaintiffs owned a number of tenement houses in the immediate vicinity of the breaker, and they claimed that these houses were injured by the alleged negligent escape of coal dust from the breaker.</p> <p>W. F. Dodge, a mining engineer, was called on behalf of the plaintiff and testified at length as to the condition of the breaker. At the conclusion of his testimony defendant’s counsel made the following request:</p> <p>We ask to have all this testimony stricken out.</p> <p>The Court: That which he does not know of his own knowledge, of course, is incompetent.</p> <p>Defendant’s counsel: We ask that everything he testifies to with reference to these screens and ducts be stricken out.</p> <p>The Court: As to the annex ?</p> <p>Defendant’s counsel: Yes, sir; and the size of the air ducts. He testified to the cubic feet.</p> <p>* Plaintiffs’ counsel: “Did you see the ducts themselves? A. Yes, sir.”</p> <p>Plaintiffs’ counsel: “ Is the measurement you have given correct? A. I believe it is correct.”</p> <p>The Court: The screens in the annex he says he never saw. As to the testimony with reference to the screens in the annex we will sustain the motion.</p> <p>Defendant’s counsel: We move further to strike out all the testimony of the witness that pertains to the size of the air ducts in the breaker and the other measurements of the main air ducts, on the ground that he now testifies he did not make these measurements himself, but he got his information from some other person who did measure them.</p> <p>The Court: The motion is denied, because the witness says he believes the measurements a.re correct, having seen the ducts himself. Exception noted for the defendant, bill sealed. [1]</p> <p>The court charged in part as follows:</p> <p>[Could the defendant, by any other device than the one that it has in use there, have prevented the injury to plaintiffs’ property?] [10]</p> <p>[The plaintiffs allege that their said property has been permanently injured. Does the testimony satisfy you that the property has been permanently injured ? If it has been permanently injured, then the measure of damages would be a sum that would be sufficient when added to the property as depreciated by the injury to make up its full value. If, however, you do not find it to have been permanently injured and the injury could be remedied by the removal of the deposit of dirt upon the property, then the measure of damages would be the plaintiffs’ loss, causing a difference in the rental value of their land by the deposit of dirt upon it, unless the dirt could be removed and the property restored to its original condition for a less sum. These, gentlemen of the jury, are the two items of damages, and the two rules governing the estimate on your part of the damages as alleged to have been done these plaintiffs.] [11]</p> <p>Verdict and judgment for plaintiff for $2,100. Defendant appealed.</p> <p>Errors assigned, among others, were (1) ruling on evidence, quoting the bill of exceptions; (10, 11) above instructions, quoting them.</p>

<p>Appeal, No. 301, Jan. T., 1900, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1898, No 4, on verdict for plaintiff in case of Susan'Matulys v. Philadelphia and Heading Coal & Iron Company.</p> <p>Trespass for injuries caused to land by mining operations.</p> <p>At the trial it appeared that the defendant on May 25,1885, had conveyed to plaintiff certain lots in the borough of Mt. Carmel, reserving the minerals thereunder. The terms of this deed and other facts in the case are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[It is contended that the defendant is not liable because the mining and excavations causing the subsidence and squeeze was not upon or underneath the plaintiff’s premises but some 100 feet to the south further up the vein or veins. It is contended that the defendant had a right to mine the coal upon its own land, owning both the surface and mineral, as it pleased, and no difference what the manner of mining, whether all the coal was taken out or not, or whether the surface subsided or not, it is not liable to the plaintiff.</p> <p>We think differently. Under the common-law rule the owner of the minerals is bound to so conduct his operations in the removal of them as not to disturb the adjacent surface and do injury to the owner thereof. That is the law in England, followed in this country and held as late as McGettigan v. Potts, 149 Pa. 155. This case has been cited by the defendant as having bearing on another question, but it undoubtedly holds the law to be as I have stated, that an owner of adjoining property owes the duty of lateral support to his neighbor and may not so conduct his operations of quarrying or mining upon his own lands as to injure his neighbor’s property. It is an absolute duty.</p> <p>It is not a question of negligence whether he is using due care in his operations on his own property, but there is an absolute duty to support the surface of his neighbor’s land which he at all times must observe.</p> <p>Therefore we hold under that and other authorities that there was a duty upon this defendant to so mine its coal as not to disturb and injure the surface of the Matulys lots.</p> <p>That in no event can it escape liability on account of the injury to the surface of said lots. That it is not a question of negligence]. [2]</p> <p>The parties have agreed upon the amount of the damages to be assessed: Two thousand dollars on account of the injury to the surface of the lots and $500 additional on account of injury to the buildings erected on the lots.</p> <p>It is contended that the duty of lateral support, about which I have spoken to you, extends only to the surface in its natural condition, and that there can be no recovery on account of injury to a building upon the lot, by reason of the removal of the natural support, and that therefore all that can be recovered in this case would be the $2,000 for the injury to the surface of the lots in question. Under the authority of Gumbert and Huey v. Kilgore, in 6 Central Reporter, 406, I rule this question against the defendant for the present and instruct you that the plaintiff is entitled to recover not only for the injury of the soil, or the lots, in their natural conditions expressed in legal phrase, but also for the injury to the buildings, and therefore your verdict should be for $2,500. I can consider this question, as well as other questions in this case, on á motion for a new trial and if I come to the conclusion that they are not entitled to be compensated on account of injury to the buildings, I can reduce the verdict, or if I should continue to be of the same opinion, I can let it stand under the agreement of the parties, fixing the exact amount of the damages on account of each item of injury, and the Supreme Court can reduce the judgment.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Frror assigned, among others, was (2) above instruction, quoting it.</p> <p>W. IT. M. Oram, with him L. S. Walter and P. A. Vought, for appellee.</p>

<p>Appeal, No. 74, Oct. T., 1900, by defendants, from decree of C. P. Venango Co., on bill in equity in case of Katherine O. Bagley et al. v. Reno Oil Company et al.</p> <p>Bill in equity for the appointment of a master to supervise a corporate election.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court confirming the master’s report.</p>

Appeal, No. 130, Oct. T., 1901, by defendant, from judgment of O. P. Somerset Co., Feb. T., 1901, No. 38, on verdict for plaintiff in case of James C. Begley v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Doty, P. J., specially presiding. At the trial it appeared that on July 18, 1900, plaintiff was injured while trying to get on an east-bound excursion train at the defendant’s station at Johnstown.

Appeal, No. 97, Oct. T., 1901, by plaintiffs, from decree of C. P. Greene Co., No. 84, in equity, dismissing bill in equity in case of Edward P. Vankirk and Elizabeth Vankirk v. James G. Patterson. Bill in equity to remove cloud on title.

Appeal, No. 6, Oct. T., 1901, by-defendants, from judgment of Superior Court, April T., 1900, No. 74, reversing judgment of C. P. Beaver Co., Sept. T., 1898, No. 291, in case of tbe borough of Brighton v. Selina Biddell et al. Appeal from judgment of Superior Court. Error assigned was judgment of the Superior Court.

<p>Appeal, No. 53, Oct. T., 1901, by plaintiffs, from judgment of O. P. Beaver Co., March T., 1900, No. 76, on verdict for defendants in case of S. E. Calhoon et al. v. Frank W. Neely & Co. et al.</p> <p>Ejectment for land in Economy township. Before Miller, P. J., of the 35th judicial district, specially presiding.</p> <p>At the trial it appeared that plaintiffs claimed title under an oil and gas lease to the Pleasant Valley Oil & Gas Company, which was as follows:</p> <p>“ This agreement, made and entered into this 28th day of July, 1890, by and between Frederick Mohr, of the county of Beaver and State of Pennsylvania, of the first part, and The Pleasant Valley Oil and Gas Company, of the second part,</p> <p>“ Witnesseth: That the said party of the first part, for the consideration of the covenants and agreements hereinafter mentioned, has granted, demised and let unto the party of the second part, their heirs and assigns, for the purpose and with the exclusive right of drilling and operating for petroleum and gas.</p> <p>“All of that certain tract of land situate in Economy Township, Beaver county, and State of Pennsylvania, bounded and described as follows, to-wit: On the north by William Brown heirs; on the east by Sheib and McAlys heirs; on the south by Mr. William Miller or Bock heirs; on the west by lands of Andrew Moore; containing eighty-six acres, be the same more or less.</p> <p>“ The party of the second part, his heirs or assigns, to have and hold the above described premises during the term of fifteen years from the date hereof, and as much longer as oil and gas is found in paying quantities thereon.</p> <p>“ The said party of the second part, in consideration of the said grant and demise, agree to give the party of the first part the full equal one-eighth part of all the petroleum obtained or produced on the premises herein leased, and to deliver the same in tank or pipe line to the credit of the party of the first part.</p> <p>“It is further agreed that if gas is found in paying quantities the consideration, in full, to the party of the first part, instead of the one-eighth royalty, shall be Five Hundred Dollars per annum, for the gas from each well, when marketed; and gas free of cost for household use on the premises.</p> <p>“ The party of the first part grant the further privilege to the party of the second part of using sufficient water from the premises herein leased necessary to the operation thereon; the right of way over said premises, together with the right to lay pipe to convey oil or gas from this or other property of the party of the second part; the right to remove all machinery or fixtures placed on said premises by the party of the second part.</p> <p>“ The test well shall be located in the hollows, or at such places as do no unnecessary damages; and any damage done to growing crops by the operation of the second party shall be paid for by the holders of this lease. Operation to be commenced on said above described premises thirty days from the date hereof, and prosecuted with due diligence to completion; and no right of action shall after such failure accrue to either party on account of the breach of any covenant herein contained.</p> <p>“ It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors and assigns.”</p> <p>The evidence of abandonment is set forth in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Corporations—Transfer of stock—Purchaser of stock—Statutes—Repeal —Retroactive effect—Acts of April 29, 1874, sec. 7, P. L. 78, and June 24, 1895,P. L. 258.</p> <p>The Act of June 24, 1895, P. L. 258, giving an absolute right to a purchaser of pledged stock to have the stock transferred upon the books of the corporation repeals section 7 of the Act of April 29, 1874, P. L. 78, which prescribes that “ no certificate shall be transferred so long as the holder thereof is indebted to said company, unless the board of directors shall consent thereto.”</p> <p>The act of June 24, 1895, has no retroactive effect so as to change the right of the parties fixed prior to the passage of the act.</p> <p>A statute is always interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the legislature.</p> <p>Corporations—Act of April 29, 1874, sec. 7, P. L. 78—Lien on stock for embezzlement.</p> <p>A claim by a corporation on the stock of one of its shareholders who as an officer had embezzled the funds of the company, is a debt to the company within the meaning of section 7 of the Act of April 29, 1874, P. L. 78, which prescribes that “ no certificate shall be transferred so long as the holder thereof is indebted to said company, unless the board of directors shall consent thereto.”</p> <p> Corporations—Transfer of stock—Lien on stock. </p> <p>Where a corporation has a claim against one of its shareholders in excess of the value of all of the shares owned by him, and after notice that some of the shares were pledged, transfers others of the shares, the pledgee has no standing to complain of such transfer, inasmuch as the corporation had the right to apply all of the shares to the payment of its own claim.</p> <p> Corporations—Officers—Fraud—Constructive notice—Transfer of shares ■Lien on shares. </p> <p>Where an officer of a corporation who is also a shareholder has embezzled the funds of the company, whereby the company has a lien upon his stock, the knowledge of the officer of the fact that some of his shares had been pledged is not constructive notice of that fact to the corporation.</p> <p> Corporation—Cien on shares—Statute of limitations. </p> <p>A corporation which has a lien upon the shares of a stockholder by reason of the fact that the stockholder had embezzled the funds of the company, does not lose its right to enforce its claim by allowing more than six years to elapse after the discovery of the embezzlement.</p> <p>Corporations—Transfer of stock—Act of June 24, 1895, P. C. 258—Man-damus.</p> <p>It seems that mandamus is the proper remedy by a purchaser of stock of a corporation to compel a transfer of the stock upon the corporation books.</p>

<p>Appeal, No. 47, Jan. T., 1901, by defendants, from judgment of C. P. Luzerne Co., May T., 1896, 657, on verdict for plaintiff in case of Joseph Stevenson v. The Ebervale Coal Company, Jeddo Tunnel Company, Limited, The Cross Creek Coal Company, Jeddo Coal Company, John Markle, Alvin Markle, George B. Markle, Clora Markle, Ida Hassenbruch, trading as G. B. Markle & Company, Calvin Pardee, Ario Pardee, Frank Pardee, A. S. Van Wickle, The Lehigh Valley Coal Company, Linderman and Skeer, The Black Ridge Coal Company, M. S. Kennnerer and Company and Coxe Brothers and 'Company.</p> <p>Trespass to recover damages for pollution of a stream by coal dirt. Before Lynch, J.</p> <p>At the trial it appeared that plaintiff was the owner of a farm upon Nescopeck creek, and that on the land he operated a woolen mill. The evidence for the plaintiff showed that culm and coal dirt filled up plaintiff’s dam, and that the water was polluted by sulphur, so that it could not be used in cleaning wool. It also appeared that the drinking water in plaintiff’s well was affected.</p> <p>Under objection and exception, George Stevenson and William Stevenson, sons of the plaintiff, were permitted to testify as to the annual depreciation in the value of plaintiff’s property. [1; 2]</p> <p>Plaintiff’s counsel made the following offer:</p> <p>We desire to offer in evidence, if the court please, the testimony of John Markle taken in the case of John Geddig v. The Union Improvement Company and the Jeddo Tunnel Company, Limited, John Markle being one of the defendants in this case, and it is offered for the purpose of showing by his own declarations what they did with the Jeddo Tunnel Company, and that they contemplated and are dumping more sulphur water and more culm into the creeks that connect with the Nescopeck creek which flows through the land of the plaintiff in this case than in times past. This is offered for the purpose of showing the declarations made by one of the defendants against his own interest.</p> <p>Defendants’ counsel: Objected to; first, because John Markle is within the jurisdiction of the court and could be subpoenaed as a witness or called as upon cross-examination; second, that he is not a party to this action, except as a member of the firm of G. B. Markle & Company; third, the testimony offered was taken in another case between other parties, to wit: a proceeding in equity in which John Geddig was plaintiff and the Union Improvement Company and the Jeddo Tunnel Company, Limited, defendants, No. 115, October term, 1894; fourth, that the declarations of John Markle are not competent testimony as against any defendant on this record.</p> <p>Plaintiff’s counsel: To which we say we do not offer this for the purpose of affecting any one except John Markle, himself, as one of the defendants.</p> <p>The Court: When was the testimony taken ?</p> <p>Plaintiff’s counsel: 1894, November 2.</p> <p>The Court: The testimony as a declaration against interest of John Markle is admitted as affecting John Markle. Exception noted for the defendants. Bill sealed. [8]</p> <p>The court subsequently refused to strike out the deposition of John Markle. [4]</p> <p>When Jonathan Limebac and Charles L. Sands were on the stand, offers were made to prove by these witnesses that owing to competition with modern mills, and the changed conditions of the wool business, plaintiff’s mill could not be operated with profit. Objections to these offers were sustained, and bills sealed. [5-9, 16-18]</p> <p>Defendants made the following offer:</p> <p>Defendants’counsel: We propose to prove by this witness that the Nescopeck Water Supply Company bought a piece of land adjoining the plaintiff on Néscopeck creek over which a fresh stream of water passes into Nescopeck for the purpose of conveying the said water to the town of Nescopeck; and that the Nescopeck Water Supply Company will agree to furnish water if the pipes are laid from this stream to the mill of the plaintiff at the rate of §15.00 per annum, in an amount sufficient to wash wool at the plaintiff’s factory, to an amount of 1,000 gallons or more per day.</p> <p>Plaintiff’s counsel: Objected to as immaterial and irrelevant.</p> <p>The Court: Objection sustained, exception noted for defendants, bill sealed. [10]</p> <p>When Shadrack Eves and Charles L. Sands were on the stand, offers were made to prove the real value of the property. Plaintiff’s objections to these offers were sustained, and bills sealed. [11-15]</p> <p>When D. J. McCarthy was on the stand he was asked these questions: “ Q. Have you ever been out to Stevenson’s place ? A. Yes, sir. Q. When were you first there ? A. In 1893, my recollection is. Q. Whether you ascertained the condition there at that time ? A. I did, sir. Q. Whether you had a conversation with Mr. Stevenson ? A. I did. Q. State what he said, if anything, with reference to the difficulty of doing business there at that time. A. His son Charles—Mr. Oberender was present—Q. Was Stevenson? A. It was Stevenson had the conversation. He said it was extremely difficult to do business there because of the scarcity of wool. The farmers had practically quit raising it and it was extremely difficult to get skilled labor, being remote from any town, and that he experienced considerable difficulty, that his machinery was old, and he was old himself.”</p> <p>Plaintiff’s counsel: We object to this testimony as being immaterial and irrelevant to this issue and ask that it be stricken from the record.</p> <p>The Court: The objection is sustained, the motion to strike out allowed, and exception noted for defendant and a bill sealed. [19]</p> <p>The court charged in part as follows:</p> <p>[As to the sulphur water. The Harleigh mines and the Ebervale mines are situated upon the Black creek or a tributary. In 1886, according to the deposition of Mr. Maride, these mines were 'flooded and remained so until 1894, when the Jeddo tunnel, nearly five miles long at a grade of about fifteen feet to the mile, from Butler valley through the mountain under the Harleigh and Ebervale flooded mines, was completed. The tunnel, Mr. Markle testified, was driven for the express purpose of winning the coal in these abandoned places. In 1886, they were permitted to fill with mine water, principally, or mostly, sulphur water. In 1894, this immense body consisting, as Mr. Markle says, in the neighborhood of one thousand million gallons, was tapped by boring a hole from the bottom of the mines down into the tunnel and putting into the hole or tap some sort of a spigot to regulate the discharge, and by such means the water was taken from Jeddo, or at least from Harleigh and Ebervale, conveyed through the tunnel into the Nescopeck creek and to Mr. Stevenson’s property. It is contended by the defendant that for the sulphur water thus discharged which may eventually have done damage to Mr. Stevenson, that he is not entitled to damages, that the supreme court has decided the owner of coal property may develop coal land or property, establish mines and breakers upon it and let the sulphur water pumped from the mines take its natural course to the nearest stream, and if this sulphur water thus discharged does damage to a lower riparian owner, such owner has no remedy. The Supreme Court has so decided. But in the Sanderson case, which has been referred to, the water was discharged from the mines and permitted to run into the stream or flow in a natural way from the mine into the stream and then down. Here, different from the Sanderson case, a large body of water was allowed to accumulate in an abandoned, or at least a mine not worked. For the purpose of securing the coal in the adandoned mine it was necessary to remove the water, which was carried into another water shed through a tunnel and then discharged into the stream. If there was nothing but the sulphur water perhaps the principle invoked here would apply. But it seems from the testimony the coal dirt sent down Black creek and its tributaries and thence upon Mr. Stevenson’s land may have been mixed with sulphur water discharged from the Jeddo tunnel and brought down the Nescopeck creek. The testimony tends to show this coal dirt when mingled in the stream with the sulphur water would produce more sulphur water. If you believe this to be the case and believe the coal dirt sent down Black creek mixed with the sulphur water discharged from the Jeddo tunnel and thus put an increase of sulphur water in Mr. Stevenson’s dam and race which caused percolation through the soil and into his well, he may recover from the damage so done to his well water, as well as for the damage so done by reason of this culm in the stream. [20]</p> <p>Defendants’ points among others were as follows:</p> <p>1. That under all the evidence in the case the defendants were and are engaged in the lawful business of mining, preparing and shipping anthracite coal, employing the usual methods of mining, and to enable the plaintiff to recover for any injuries claimed to have been sustained by him, he is required to show that the mining and preparing of coal was negligently or maliciously done by the defendants and that the injuries were the result of such negligence or malice. Answer: If by this point it is meant that the mining and preparing of coal includes throwing the water into the stream or so it would be swept into the stream by the ordinary floods or rains, it is affirmed. But if it has reference purely to the mining of coal and shipping of coal then it is not affirmed. As 1 stated before, if the defendants or either of them threw the refuse into the stream or so near that the ordinary floods would carry it there, it was a negligent act. [21]</p> <p>3. Under all the evidence in the case, in the process of mining, subterranean streams of water are necessarily opened, and it is absolutely necessary, in order to work the mines at all, to pump the accumulating water to the surface or drain the mines by means of tunnels, and if water so brought to the surface from the defendant’s mines finds its way into neighboring streams, and thence into Nescopeck creek and pollutes the plaintiff’s wells with sulphur water and the waters of said creek, the plaintiff cannot recover damages for such pollution, for the reason that the defendants could not otherwise enjoy the benefits of the ownership of their land and mines. Answer: This is refused for reasons which I have stated. [22]</p> <p>4. Under all the evidence in the case prior to the opening of Jeddo tunnel to drain the Harleigh, Ebervale and Jeddo mines, the mine water which accumulated in the said mines was brought to the surface by means of pumps, and the sulphur water so brought to the surface drained into Black creek and passed down into Nescopeck creek through the plaintiff’s premises, and since the completion of the said tunnel in 1894, the sulphur water from said mines is drained to the surface and finds its way into the stream and thence through the plaintiff’s premises and it is immaterial whether the sulphur water from the said mines is brought to the surface by means of pumps or a tunnel, the defendants are not liable for any injury sustained by reason of sulphur water polluting Nescopeck creek through plaintiff’s premises or for the pollution of the wells on his premises with sulphur water. Answer: This is denied. [23]</p> <p>5. The defendants are not liable to the plaintiff for any damage for the pollution of the waters of Nescopeck creek through his premises or for any injury to his wells on said premises by reason of sulphur water, for the reason that under all the evidence in this case the removal of sulphur water from the defendants’ mines is absolutely necessary to enable them to mine coal, and sulphur water cannot be prevented from running into adjacent streams and thence finding its way into Nescopeck creek and through the plaintiff’s property. The defendants cannot be required to stop the operation of their mines because necessarily in the mining of coal, mine and sulphur water may pollute the stream through the land of a lower riparian owner or injure the water of a well on his premises. Answer: This is denied. [24]</p> <p>7. Under the pleadings in this case if the plaintiff is entitled to recover he can only recover in this case for the loss of his crops on his farm from the day of 1890 by reason of the deposit of coal dirt thereon and for the loss in rental value of his factory or loss of earnings of the said factory during that period and the plaintiff having furnished no evidence of either loss of crops or of rental value of the farm and factory there can be no recovery. Answer: This is not correct. This part is, “If there has been any loss of crops.” I do not recall any such testimony. There is no allegation, or no proof at least, that any part of the farm other than about three or three and half acres along the creek was damaged by reason of the coal dirt or sulphur or any refuse in the stream; as to the small strip along the stream claimed to be agricultural land, it has not been shown clearly what crops were planted, what the failure of the crops was, or to what extent they were damaged. It is claimed that it dams the stream over this strip, coal dirt, mixed with the land, injured the surface for crop purposes, but to what extent there is no testimony. You would not be warranted in these circumstances in giving damages for injury to this piece of land. If the plaintiff wished to recover for damages to this strip he had it in his power and it was his duty to show you to what extent the land was injured or the crops had failed by reason of injury. [25]</p> <p>9. That in this form of action the difference in the market value of the farm and factory in May, 1890, and the present time is not the correct measure of damages for a permanent injury to the plaintiff’s property; the questions are, what was the condition of this stream six years before this suit was brought? Was the water then polluted? Having ascertained the condition of the stream at that time, the jury should then ascertain from the evidence, whether the condition had been made worse since that date, if so, to what extent ? If the plaintiff can recover it is only for the injury done him by reason of culm or coal dirt since May, 1890. Answer: This is correct with the qualification which I have stated concerning the sulphur water. [26]</p> <p>Verdict and judgment for plaintiff for $32,708. Defendants appealed.</p> <p>Errors assigned were (1-19) rulings on evidence, quoting the bill of exceptions; (20-26) above instructions, quoting them; (27) that the verdict was excessive.</p>

Appeal, No. 94, Oct. T., 1901, by defendant, from judgment of C. P. Washington Go., May T., 1901, No. 19, on verdict for plaintiff in case of John Ayers v. Pitts-burg, Cincinnati, Chicago & St. Louis Railway Company. Trespass to recover damages for personal injuries. Verdict and judgment for plaintiff for $4,166.6,6. Defendant appealed. The facts are fully stated in the opinion of the Supreme Court. Error assigned was in submitting the case to the jury.

Appeal, No. 20, Oct. T., 1901, by plaintiff, from order of C. P. Westmoreland Co., Aug. T., 1898, No. 643, refusing to take off nonsuit in case of Amanda B. Smith v. Pennsylvania Railroad Company. Trespass to recover damages for death of plaintiff’s husband.

<p> Evidence—Contract—Written agreement—Contemporaneous parol agreement. </p> <p>Where several parties unite in a written agreement by which they are to form themselves into a company for the purpose of leasing lands for oil and gas, and by which they are to share equally the expenses, one of the parties cannot set up a contemporaneous parol agreement contradictory in terms of the written agreement, and to the effect that in consideration of his giving the benefit of his experience in the natural gas and oil business, he should be relieved from payments under the written agreement, and the same should be paid for him by the other parties until his share of the profits would be sufficient to repay the same.</p> <p>Parol evidence to vary or change a written instrument must be clear, precise and indubitable.</p> <p> Contract—Joint and several contracts—Corporations—Option to purchase stock. </p> <p>Where several corporators agree “each with the other that no one of them would sell or transfer his holdings in said corporation to any outside party without first giving the remaining corporators the right to purchase said holdings at the same price that could be obtained for the same from any other party,” the agreement is a several contract, and not a joint undertaking.</p> <p>Where several manufacturers unite to form a corporation to secure natural gas for their establishments and to guard themselves against imposition and an increased price at the hands of gas companies in the field, and it is stipulated that each one of the parties should not sell his stock to outside parties without first giving the others the right to purchase his stock at the same price that could be obtained for it from outside parties, one of the parties to the agreement cannot prevent the others from selling their stock, where under the terms of the sale all of the parties are protected in the very purpose for which the corporation was formed.</p>

Appeal, No. 92, Oct. T., 1901, by-defendant, from judgment of C. P. Beaver County, Dec. T., 1897, No. 177, on verdict for plaintiff, in case of Patrick Henry McKenna v. Citizens Natural Gas Company of Beaver County. Trespass to recover damages for personal injuries. Before Wilson, P. J. The case was previously reported in 198 Pa. 31.

<p> Sale—Breach of contract—Measure of damages—Manufacturer's profits. </p> <p>Where a seller fails to deliver goods, and the purchaser himself manufactures other goods to take the place of those which he failed to receive, he may recover the difference between the contract price and the cost of the raw material plus the cost of manufacturing, but he cannot add to the latter sum a manufacturer’s profit.</p>

<p>Deed—Dedication to public use— Plat—Public square.</p> <p>Where the words “ public square ” are used on a plat, this is an unrestricted dedication to public use, and the use varies according to circumstances to be judged of and directed by the proper local authorities subject to the control of the laws and the courts.</p> <p>Where land in a town has been dedicated as “public ground” “for the use of the inhabitants of the said town and for travelers who may erect thereon temporary boat-yards,” and it appeal’s that the use of the land by travelers has ceased in fact, the town may use a small portion of the land as a site for a town hall, and lay out the remainder of it as a park and improve and ornament it as such.</p>

Appeal, No. 7, Oct. T., 1901, by plaintiffs, from order of C. P. No. 2, Allegheny Co., Jan. T., 1892, No. 282, refusing to take off nonsuit in case of Nelson Morris & Company v. First National Bank of Allegheny. Assumpsit to recover damages for loss sustained by reason of the failure of defendant to give prompt notice of the nonpayment of a draft.

<p>Appeal, No. 19, Oct. T., 1901, by Philadelphia Company, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1900, No. 214, on verdict for plaintiff in case of Chester B. Albree v. Philadelphia Company.</p> <p>Assumpsit for goods sold and delivered. Before Kennedy, P. J.</p> <p>At the trial it appeared that on March 1, 1898, defendant, a natural gas company, gave, to plaintiff, a manufacturer, an order for “five thousand sets of No. 1, carbon wrought steel, tight joint clamps.” The plaintiff after some experiments produced a clamp that seemed to be satisfactory to the defendant company, except as to the matter of weight, and the cost resulting from the heavy weight. The plaintiff then manufactured a similar clamp, but of a lighter weight. He warned the company, however, that the clamp would not answer the purpose for which it was intended. Notwithstanding this warning, the defendant directed him to go on, and manufacture the clamps.</p> <p>Plaintiff’s points were as follows:</p> <p>1. That if the jury believe Albree, the plaintiff, undertook and agreed to make the clamps under the order of March 1, 1898, and Simeon and Benny tested the clamps in the manner testified by the plaintiff’s witnesses, and directed the plaintiff to proceed and complete or push the work, then the plaintiff was not called upon or required to make any test on the gas line, but had a right to go ahead with the work under the contract, and can recover from the defendant for the partial performance of the contract the contract price, less what it would have cost Albree to complete the 5,000 sets under the contract, less the amount realized from the sale of material, if the cost of the work done did not reduce this amount. Answer: This point is affirmed. [3]</p> <p>2. That if the jury believe that the actions and statements of Simeon and Benny were such as to fairly induce plaintiff to think that the clamp as furnished by him in February, 1898, just before the order of March 1, 1898, was given, stood the tests which the said officers deemed fit or necessary to put the clamps to, and hence to fairly induce plaintiff to think that he was only required under the contract to furnish a clamp equal to and like the clamp so tested and furnished, then the plaintiff was not required to make any further test of the clamp; and if he made the clamps, in compliance with the sample clamp so furnished, with any variations ordered by defendants, then the plaintiff is entitled to recover the contract price, less what it would have cost him to complete the order, less the amount realized from the sale of material, if the costs of the work done did not reduce this amount. Answer: This point is affirmed. [4]</p> <p>3. If the jury believe that the interpretation put upon the words “ tight joints ” by the parties to the contract was that these clamps should be as tight as the sample clamp tested by defendant’s officers or agents, Simeon and Benny, as testified to by plaintiff’s witnesses, then this was the measure or standard of tightness, and the plaintiff, under the circumstances of this case, in making the clamps in whole or in part, was acting in compliance with the order as interpreted by the parties, and was not to be held as guaranteeing that the clamps should be tight enough to hold the gas in the defendant’s line, but only to make the clamps as tight as the sample of clamps so tested and approved by Simeon and Benny; and if he did so make the clamps, or proceed towards the making of them, he is entitled to recover the contract price, less what it would have cost him to complete the order, less the amount realized from the sale of. material, if the cost of the work done did not reduce this amount. Answer: This point- is affirmed. [5]</p> <p>Verdict and judgment for plaintiff for $4,500. Defendant appealed.</p> <p>Errors assigned were (1, 2) answers to defendant’s points, refusing binding instructions; (3-5) above instructions, quoting them.</p>

Appeal, No. 39, Oct. T., 1901, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. 551, on verdict for plaintiff in case of Charles J. Campbell v. Consolidated Traction Company. Trespass to recover damages for personal injuries. Before Frazer, P. J. The plaintiff in this case, Charles J. Campbell, was driving - William Kissock’s team, when the defendant’s car ran into him.

Appeal, Nos. 46 and 47, Oct. T., by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1899, No. 568, on verdict for plaintiff in case of A. S. Nolder in his own right and as father and next friend of Anna Bell Nolder v. McKeesport, Wilmerding & Duquense Railway Company. Trespass to recover damages for personal injuries sustained by a child four years old. Before Shaeer, J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 57, Oct. T., 1901, by-defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1898, No. 493, on verdict for plaintiff in case of Elizabeth B. Helbling v. City of Pittsburg and Allegheny Cemetery Company.</p> <p>Trespass to recover damages for injuries to a house. Before Brown, J.</p> <p>At the trial it appeared that on July 15,1896, plaintiff’s house was flooded by reason of the alleged negligence of the Allegheny Cemetery Company in the clogging up the crib of a sewer. The evidence for the defendant tended to show that the injury occurred by reason of an extraordinary flood. Other facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[If the loss in this case resulted wholly from the extraordinary floods, and not from any act of the defendant; if it re-suited from Extraordinary floods and not from any assisting or producing act of the defendant, then the plaintiff could not recover here, and the defendant would not be responsible.] [1]</p> <p>[If you find from the weight of the testimony that the sole cause of the loss was an extraordinary flood, of course the Allegheny cemetery company would not be responsible for that and your verdict should be for the defendant. If, however, the weight of the evidence satisfies you that the loss was the result of two concurrent acts, an extraordinary flood and some negligence of the cemetery company assisting in producing the loss, then the cemetery company would be liable.] [2]</p> <p>[The main rule is that whatever would make good the loss to the party whose property was injured, whatever would make good in dollars and cents, would be the amount of the verdict, with interest, or the equivalent of interest, from 1896, down to the time of your verdict. There are different ways of assessing the damages. The general rule, that you might find applicable to this case, might be this: If the lowest amount of damages that would make good this loss would be the difference between the value of this property, before the injury, in 1896, and its value after the injury, as resulting from the loss —not a drop in the value caused by other causes—if there were other causes, but the difference between the value of the property'before the injury, and its value after the injury, as affected by the injury, that would be one way of estimating the damage. There was some testimony that it would cost a considerable sum, and I have forgotten the figure, to make this property as good as it was before, by rebuilding or changing, or something of that sort. If that cost of repairing, or making it as good as it was, substantially, is less than this other rule, then you would use that.] [5]</p> <p>At the close of the testimony a voluntary nonsuit was taken as to the city of Pittsburg.</p> <p>Verdict and judgment for plaintiff for $8,500. Allegheny Cemetery Company appealed.</p> <p>Errors assigned were (1, 2, 5) above instructions, quoting them.</p>

<p>Appeal, No. 96, Oct. T., 1901, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1899, No. 157, on verdict for plaintiff in case of Jacob Kaufmann, Isaac Kaufmann, Morris Kaufmann and Henry Kaufmann, trading as Kaufmann Brothers, v. William J. Friday.</p> <p>Assumpsit on contract of suretyship. Before Collier, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,006.25. Defendant appealed.</p> <p>Errors assigned were (1-7) rejecting evidence of alleged parol agreement; (8) in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 76, Oct. T., 1901, by plaintiff, from order of C. P. No. 3, Allegheny Co., Feb. T., 1900, No. 414, refusing to take off nonsuit, in case of Robert Donoghue v. Consolidated Traction Company.</p> <p>Trespass to recover damages for injuries to a wife. Before McClung, J.</p> <p>At the trial it appeared that Katharine Donoghue, plaintiff’s wife, had previously brought her action for the personal injuries declared for in plaintiff’s statement, and recovered a verdict and judgment. Plaintiff did not join in the suit, nor was there any rule taken on him to join. These facts appearing, the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 48, Oct. T., 1901, by-defendants, from judgment of O. P. Westmoreland Co., Feb. T., 1898, No. 428, on verdict for plaintiff in case of E. B. McCormick v. Lizzie A. Skelly, formerly Lizzie A. Newmyer, Wilb'am B. Skelly, ber Husband, and Edward Mahoney.</p> <p>Ejectment for land in the borough of Irwin. Before McConnell, J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for plaintiff on the point reserved.</p>

Appeal, No. 33, Oct. T., 1901, by plaintiffs, from order of C. P. Westmoreland Co., May T., 1899, No. 378, refusing to take off nonsuit in case of John A. Moore and Joseph 0. Moore, trading as John A. Moore & Bro., v. J. R. Eisaman. Assumpsit upon an alleged contract of guaranty. Before Doty, P. J. The facts are fully stated in the opinion of the Supreme Court. Error assigned was in refusing to fake off nonsuit.

Appeal, No. 119, Oct. T., 1901, by plaintiff, .from judgment of C. P. Beaver Co., June T., 1900, No. 130, on verdict for defendant in case of Rose Bannon v. Jolm Huckenstein et al. Ejectment for land in Hopewell township. Before Wilson, P. J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for defendant. Plaintiff appealed. Error assigned amongst others was in submitting the case to the jury.

Appeal, No. 88, Oct. T., 1901, by-defendant, from judgment of C. P. Washington Co., Feb. T., 1901, No. 59, on verdict for plaintiff in case of J. F. McClay v. Western Pennsylvania Gas Company. Assumpsit for breach oí a covenant in an oil and gas lease. Before McIlvaine, J. At the trial it appeared that in 1885, David McClay leased the oil and gas under 400 acres of land to Frank Howard and H. W. Williams.

<p>Appeal, No. 86, Oct. T., 1901, by plaintiffs, from judgment of C. P. Washington Co., Nov. T., 1900, No. 93, non obstante veredicto in case of Everillah Wettach et al. v. Laura A. Horn et al.</p> <p>Ejectment for a tract of land in West Bethlehem township. McIlvain, P. J., filed the following opinion:</p> <p>James Taylor, on June 20, 1836, was found to be a lunatic without lucid intervals. He died leaving a will, which was duly probated before the register of wills of this county on February 1, 1896. In that will he devised to Margaret Ann Nichols the residuum of his estate, which included the tract of land in dispute. The devise is in these words : “ And all the rest and residue of my estate I bequeath to Margaret Ann, natural daughter of my deceased sister Jane, intermarried with Jesse Nichols and her heirs.” No appeal was ever taken from the judgment of probate entered by the register of wills. Margaret Ann Nichols, the illegitimate child of Jane Taylor, died before James Taylor, leaving children as her heirs at law, who are the defendants in this case.</p> <p>QUESTIONS OE LAW RESERVED:</p> <p>1. Is the probate of the will of James Taylor conclusive against the plaintiffs in this case, who are his collateral heirs at law ?</p> <p>2. Margaret Ann Nichols, being a bastard, and having died during the lifetime of James Taylor, did the devise to her and her heirs lapse ?</p> <p>First question.</p> <p>(a) COMMON-LAW RULE.</p> <p>At common law there was no such thing as a probate of a will of real estate. Such will was liable to be disputed whenever and as often as it was set up in any judicial proceeding as evidence of title.</p> <p>(5) STATUTORY RULE.</p> <p>The early acts of assembly of 1705 and 1832, gave to the register of wills jurisdiction “ of the probate of wills and testaments, of the granting of letters testamentary and of administration.”</p> <p>Under these acts our courts held that the probate of the register in cases where the title of real estate was involved, was only prima facie evidence, and that of the weakest kind. Even a will found to be valid on a trial of an issue devisavit vel non could be attacked in a common-law action of ejectment : Holliday v. Ward, 19 Pa. 485; Smith v. Bonsall, 5 Rawle, 80; Rowland v. Evans, 6 Pa. 435; Shields’s Appeal, 20 Pa. 291; Asay v. Hoover, 5 Pa. 31.</p> <p>After the dates of the decision in these cases and as a result, perhaps, of a suggestion made by Mr. Justice Bell in the opinion filed in Asay v. Hoover, supra, the act of April 22, 1856, was passed, and in its 7th section it is provided that “the probate by the register of the proper county of any will devising real estate shall be conclusive as to such realty unless within five (made three, by the act of 1895, P. L. 305) years from the date of such prooate those interested to controvert it shall by caveat and action at law duly pursued, contest the validity of such will as to such realty.”</p> <p>This act, it has been held, establishes “ a rule of property,” and under the decisions, as found in a number of cases, no question which the register had jurisdiction to pass upon when he entered his decree of probate of the will of James Taylor could be inquired into in the trial of this case: Warfield v. Fox, 58 Pa. 382; Folmar’s Appeal, 68 Pa. 482; Wilson v. Gaston, 92 Pa. 207; McCort’s Appeal, 98 Pa. 33; Cochran v. Young, 104 Pa. 333.</p> <p>We are therefore of the opinion that the testimony touching the validity of the will of James Taylor was improperly admitted, and that judgment should be entered in favor of the defendant non obstante veredicto if the defendants take anything under this will.</p> <p>Second question.</p> <p>(a) COMMON-LAW BULB.</p> <p>If the legatee predeceases the testator, the legacy lapses, notwithstanding the will contains the words heirs, executors, administrators, etc., as these words are prima facie to be regarded only as words of limitation, calculated to describe the nature of the estate given to the legatee or devisee, and not as used with any express purpose of the preventing a lapse in the bequest where the legatee should happen to die before the testator : Eedfield on the Law of Wills (2d ed.), p. 485, sec. 50, part II.</p> <p>It must appear clearly that the testator intended a devise to go to the “heirs ” of the first taker as purchasers and that they personally take direct from him to prevent the devise from lapsing in case of the death of the first taker in his lifetime: Eedfield on Wills, supra, p. 488, part II. To the same effect are our cases of Sword v. Adams, 3 Yeates, 34, Campbell v. Jamison, 8 Pa. 498, Dickinson v. Purvis, 8 S. & E. 71; Comfort v. Mather, 2 W. & S. 451, and Barnett’s Appeal, 104 Pa. 348.</p> <p>In the light of these authorities it is evident that the bequest “ all the rest and residue of my estate I bequeath to Margaret Ann, natural daughter of my deceased sister Jane, intermarried with Jesse Nichols and her heirs ” lapsed at the death of Margaret Ann Nichols, the testator, James Taylor, at that time being still alive, unless it is saved to her heirs by some statutory enactment, or something in the will and in the circumstances of the case upon which the court can seize to avoid the operation of the common-law rule that the words “and her heirs ” are words of limitation.</p> <p>The only acts of assembly that have for their purpose to avoid the lapsing of legacies, to which our attention has been called, are the Act of April 8,1838, P. L. 250, the Act of May 6, 1844, P. L. 565, and the Act of July 12,1897, P. L. 256.</p> <p>The act of 1833 provides that where a person named in a will as legatee is a child or lineal descendant of the testator, the legacy shall not lapse by reason of the death of the legatee in the lifetime of the testator if he or she leave issue surviving the testator. Margaret Ann Nichols was not a child or lineal descendant of James Taylor, and this act is not applicable to the case in hand. The act of 1897 was passed after James Taylor’s will was probated and does not affect distribution under wills which became operative before its passage. The act of 1844 provides that “no devise or legacy hereafter made in favor of a brother or sister or the children of a deceased brother or sister of any testator, such testator not leaving any lineal descendant, shall be deemed or held to lapse or become void by reason of the decease of such devisee or legatee in the lifetime of the testator; but such devise or legacy shall be good and available in favor of such surviving issue with like effect as if such devisee or legatee had survived the testator.”</p> <p>James Taylor left no lineal descendants; Margaret Ann Nichols, the legatee, was a-natural child of a sister of James Taylor, the testator, and under this act the bequest to Margaret Ann Nichols would not lapse, if the word “ children ” in the act includes natural or illegitimate children. In our opinion it does not. A bastard is the child of no one. The word “ child,” in its legal sense, carries with it the idea of the married relation. And unless the contrary intent is made to appear an act of assembly defining or enlarging the rights of children in the estate left by their parents applies only to children born in lawful wedlock.</p> <p>“A gift to children means legitimate children only unless it appears that illegitimate children must have been intended:” Appel v. Byers, 98 Pa. 481.</p> <p>“ When legally construed the term children is confined to legitimate children : ” 1 Bouvier’s Dictionary, 320.</p> <p>A child is “ a descendant in the first degree of either sex born in lawful wedlock of human parents : ” 3 Am. & Ency. of Law (1st ed.), p. 230.</p> <p>“ Bastards are not included in the word children in statutes of descent and distribution: ” Porter Heirs v. Porter, 40 Am. Dec. 55.</p> <p>There being, then, no statutory enactment that would relieve the defendants against the general rule as to lapsed legacies, we come next to the question whether or not the will of James Taylor on its face and in the light of all the circumstances surrounding its execution, shows that he did not use the words “ and her heirs ” as words of limitation, but as words of purchase.</p> <p>In the second paragraph of the will the testator directs his “ executors hereinafter named to make sale of all lauds and personal property of which I may die seized or possessed as soon after my decease as may be found convenient.” Then after providing for the building of a fence around the graveyard on the farm of Thomas Howden, where his father and mother were buried, and keeping the same in repair, he proceeds to divide as personalty the proceeds of the sale of his land and personal property, and the children of his brother and sisters were evidently in his mind. The first bequest is “ to my brother Thomas’s heirs at law I bequeath one hundred dollars.” He named no one, but he describes a class of persons by the use of the words “heirs at law” under the facts of the case evidently children. The second bequest is “ to the heirs at law of my sister Elizabeth I bequeath one hundred dollars.” Again no one named, but the words “heirsat law ” used as a word of description or purchase. Then after giving his executor Barnard C. Jackman $200, he provides that “ all the rest and residue of my estate I bequeath to Margaret Ann, natural daughter of my deceased sister Jane intermarried with Jesse Nichols and her heirs.” Giving to the words “ her heirs ” the same tneaning that the testator gave them in the previous bequests, we have a bequest to Margaret Ann Nichols and her children, the words “ her heirs ” being words of purchase and not words of limitation. Margaret Ann Nichols being a bastard and her mother being dead, her children and her heirs were interchangeable terms under the act of 1855.</p> <p>The testator evidently intended to limit his bequests to the plaintiffs, who are the heirs at law of his brother Thomas and sister Elizabeth, to $200, and to give the rest of his estate to Margaret Ann Nichols and her children, with whom he lived; and in our opinion this intent is so apparent that, to carry it out, we construe the words “ and her heirs ” to be words of purchase.</p> <p>Error assigned among others was in entering judgment non obstante veredicto.</p>

Appeal, No. 128, Oct. T., 1901, by plaintiffs, from decree of O. P. Washington Co., No. 1113, in equity, dismissing bill in equity in case of Thomas Neill et al. v. E. T. Hitchman. The facts are stated in the opinion of the Supreme Court. Error assigned was decree dismissing the bill.

<p>Appeal, No. 3, Oct. T., 1901, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1899, No. 315, no'n obstante veredicto in case of Edward J. Bubb, Jr., Administrator of Rebecca J. Bubb, Deceased, v Edward J. Bubb, Sr.</p> <p>Assumpsit by wife’s administrator to recover royalties collected by her husband. Before Stowe, P. J.</p> <p>From the record it appeared that on March 25, 1896, Rebecca J. Bubb, defendant’s wife, executed an oil lease on certain lands owned by her. The material portions of the lease were as follows:</p> <p>“ That the lessor does hereby grant unto lessee for the term of two years, and so long thereafter as oil or gas is produced from the land leased, and royalty and rentals paid by lessee therefor, the exclusive right to mine for and produce petroleum and natural gas, from and the possession of so much of sixty-three acres of land in Hampton township, Allegheny county, State of Pennsylvania, as may be necessary therefor, with the right to use water and gas, if found, for the necessary engines, and to remove all machinery, fixtures, etc., placed by the lessee on the premises, said land bound north by land of Doty, east by land of George Fisher and Christ Hart, south by land of Whitesell, west by land of Mary Hunter and Mary Cheatham.</p> <p>“No well to be drilled within rods of the buildings without lessors’ consent. The lessee to deliver to lessor in pipe line the one-eighth Q) of all petroleum produced from the premises, and to pay three hundred dollars per annum for each gas well from which the gas is marketed, payable Columbia National Bank from the date and while the same is so utilized, and to pay all damages to growing crops. This lease to be null and void and no longer binding on either party if a well is not completed on the premises within four months from this date, unless the lessee shall thereafter pay monthly to lessor dollars per month for each month’s delay in completing said well. Each payment to extend the time of completion one month and no longer. A deposit to the credit of lessor in Bank to be a good payment of any moneys on"this lease, all grants and covenants to extend to the heirs and assigns of the parties hereto. The consideration to be six hundred dollars in cash and one hundred and fifty dollars out of the first oil produced on the premises.”</p> <p>The evidence tended to show that the defendant with his wife’s permission collected royalties during her lifetime and used them in the support and maintenance of the family. He also collected rentals after his wife’s death.</p> <p>' A verdict was entered in favor of the plaintiff subject to the following questions reserved:</p> <p>1.. Whether the proceeds to the oil wells, as per plaintiff’s statement, to wit: $5,163.96, received by defendant during the life of his wife, and also $750 received by him as bonus, were to be considered in law as income or corpus of the estate of said Rebecca J. Bubb, deceased.</p> <p>2. Whether the further sum of $3,766.81, the same being the proceeds of oil received by defendant after the death of his wife, he being the tenant by the curtesy of the property out of which same arose, as per plaintiff’s statement, belonged to defendant, or was the property of the estate of the said Rebecca J. Bubb, deceased.</p> <p>The court entered judgment for defendant non obstante ■veredicto.</p> <p>, Error assigned was in entering judgment non obstante veredicto.</p>

Appeal, No. 163, Oct. T., 1900, by plaintiffs, from judgment of C. P. No. 2, Allegheny County, Oct. T., 1900, No. 667, on case stated in case of Smith W. Hill and Lucinda Hill v. George W. Giles. Case stated to determine interest in real estate.

<p>Appeal, No. 69, Oct. T., 1901, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1899 No. 875, non obstante veredicto, in case of Benedict Dannemiller et al., trading as Dannemiller & Company v. Rebecca Kirkpatrick et al., trading as Allen Kirkpatrick & Company.</p> <p>Assumpsit for goods sold and delivered. Before Frazer, P. J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>A verdict was taken for plaintiffs, but subsequently the court entered judgment for defendants non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendants non obstante veredicto.</p>

<p> Railroads—Right of way—Eminent domain—Adverse possession—Question for jury. </p> <p>In an action of trespass where the question involved is title to a strip of land upon which a railroad company has laid a fourth track, if the plaintiff shows that he and his predecessors have had continuous, adverse possession of the strip for over forty years, the burden is upon the railroad company to show that the land was embraced within the limits of the right of way acquired by condemnation proceedings. If the evidence as to the location of the right of way, and as to whether the land in controversy is included in it is conflicting, the case is for the jury.</p> <p>In the above case an agreement in writing by which one of plaintiff’s predecessors in title was given a right of passage over the land is competent evidence.</p> <p> Evidence—Flan made by engineer—Witness. </p> <p>In a case involving a question of title to a strip of land claimed by a railroad company, as part of its right of way, a plan made by an engineer, who is a witness, from his notes of survey, is competent evidence.</p>

<p> Negligence—Contributory negligence—Line inspector—Electric light companies. </p> <p>In an action by a line inspector against an electric light company and a telephone company to recover damages for personal injuries caused by contact with a wire, plaintiff is guilty of,contributory negligence and cannot recover, where it appears that he neglected to use rubber gloves which had been provided for him, and that he placed one hand upon a telephone wire, and the other upon or in contact with an electric light wire, both wires being upon the same pole, which was the property of the electric light company.</p>

<p>Appeal, No. 77, Oct. T., 1901, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1900, No. 441, on judgment for plaintiff in case of Adam Muhlhause and Adam C. Muhlhause, by his father and next friend, Adam Muhlhause, v. The Monongahela Street Railway Company.</p> <p>Trepass to recover damages for personal injuries. Before Collier, J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,250. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 78, Oct. T., 1901, by-defendant, from judgment of O. P. No. 1, Allegheny Co., Dec. T., 1900, No. 441, on verdict for plaintiff in case of Adam Muhlhause and Adam C. Mulhause, by his father and next friend, Adam Muhlhause, v. Monongahela Street Railway Company. Verdict and judgment for Adam Muhlhause for $500. Defendant appealed.

Appeal, No. 17, Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny County, Nov. T., 1899, No. 5, on verdict for plaintiff in case of George T. Lewis v. Moorhead Brother & Company, Incorporated. Assumpsit for salary. Before Evans, J. Verdict and judgment for plaintiff for $7,500. Defendant appealed. Error assigned was in submitting the case to the jury.

Appeal, No. 45, Oct. T., 1901, by plaintiff, from order of C. P. No. 8, Allegheny Co., Nov. T., 1899, No. 416, refusing to take off nonsuit in case of Peter Penman v. McKeesport, Duquesne & Wilmerding Railway, Trespass to recover damages for personal injuries.

Appeal, No. 41, Oct. T., 1901, by defendants, from judgment of C. P. No. 1, Allegheny Co., March T., 1900, No. 323, on verdict for plaintiff in case of James M. Bailey, trading as Phillips, Nimick & Company, v. M. D. Wayman and The American Plate Glass Company. Assumpsit for goods sold and delivered.

<p> Negligence—Evidence of negligence—Master and servant. </p> <p>In an action by a servant against a master to recover damages for personal injuries caused by an alleged defective portion of a pump, it is error to submit the case to the jury, where there is no proof of what caused the accident, and mechanical experts testify that the accident might have resulted from several causes, and all that plaintiff relies upon is a mere assumption on his own part that the alleged defective portion of the pumps was so constructed under the supervision of the defendant’s general superintendent that it was not able to stand the pressure to which it was subjected.</p> <p>Where the plaintiff’s case, in an action for damages for personal injuries, rests wholly upon a supposable theory, not supported by established facts,, and from the same facts three other just as probable theories are dedueible, and neither one of them imputes liability to the defendants, there can be no recovery. To permit it would be to allow a recovery on mere proof of an accident.</p>

<p> Oil and gas lease—Evidence—Rebuttal. </p> <p>In an action to recover the half of royalties under an oil and gas lease, where it appears that the land was owned by plaintiff’s father, that plaintiff was a mere cropper, and the evidence for the defendants showed that although the plaintiff had signed the lease with his father, he had claimed no interest in the land or in the oil at the time of the execution of the lease, it is improper to permit the plaintiff in rebuttal to offer proof by a witness otherwise competent, that at the time of the execution of the lease, plaintiff’s father had stated to the lessee that plaintiff was to have one half of the royalties, nor can plaintiff in rebuttal show reasons for delay in claiming the royalties.</p> <p>• Plaintiff cannot claim as a right to give as evidence in rebuttal that which he might have given in chief.</p> <p> Evidence—Competency of witness—Party dead—Oil and gas lease. </p> <p>In an action to recover royalties on an oil and gas lease where it appears that the plaintiff signed the lease with his father who owned the land, the plaintiff is an incompetent witness to prove declarations of his father to the effect that he, the plaintiff, was to have half of the royalties.</p> <p> Evidence—Rebuttal—Re-examination of witnesses. </p> <p>A party has a right in rebuttal to re-examine his witnesses as to matters that require explanation.</p> <p>It is error to refuse to permit a plaintiff to explain testimony of his own taken in a former trial and offered in evidence by the defendants. If, however, at a subsequent period in the trial he is afforded an opportunity to make such explanation, the error is harmless.</p> <p> Oil and.gas lease—Royalties—Evidence— Case for jury. </p> <p>In an action to recover one half the royalties under an oil and gas lease it is proper to submit the case to the jury where the evidence shows that the plaintiff was a mere cropper on the land leased, that the land was owned by his father, that plaintiff had signed the lease with his father, and that at the time the lease was executed nothing was said as to the plaintiff being entitled to any share of the royalties.</p> <p> Appeals—Assignments of error—Supreme Court practice. </p> <p>Assignments of error relating to rulings upon offers of evidence will not be considered where such assignments fail to quote the testimony which was given under the offers.</p>

Appeal, No. 108, Oct. T., 1901, by Mercantile Trust Company, guardian of Francis M. Longdon, minor child of Birdella M. Longdon, deceased, from decree of O. C. Allegheny Co., April T., 1896, No. 186, in the matter of petition for advice and instructions in the estate of Andrew Morton, deceased. Petition of Francis J. Longdon, Jr., for decree instructing a trustee to pay the income of his deceased wife’s share to him as tenant by the curtesy.

<p>Appeal, No. 101, Oct. T., 1901, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1899, No. 506, on verdict for defendant in case of Henry Rea, Jr., v. The Eagle Transfer Company.</p> <p>Ejectment for a lot in the city of Pittsburg brought by Henry Rea, Jr., against the Eagle Transfer Company to enforce a forfeiture of a leasehold estate for nonpayment of rent. On July 1, 1899, the Consolidated Gas Company, owner of the fee, leased the premises in dispute to the Eagle Transfer Company for ten years, at an annual rent of $1,500, payable monthly, $125 the last day of each month. In July, 1900, the gas company conveyed the property to Henry Rea, Jr., subject to the leasehold rights of the Eagle Transfer Company. Upon August 7, 1900, Rea served the following letter upon the transfer company:</p> <p>“Pittsburg, Pa., August 6, 1900.</p> <p>“ Messrs. Eagle Transfer Co.,</p> <p>“ Pittsburg, Penna.</p> <p>“ Gentlemen: You are hereby notified that the lease made by the Consolidated Gas Company, to you, dated July 1, 1899, for certain buildings and ground on Greenough street, in the city of Pittsburg, and by the said Consolidated Gas Company assigned to Henry Rea, Jr., on the 7th day of July, 1900, is hereby annulled.</p> <p>“ This said lease provided as follows: ‘ It is agreed, between the parties hereto, that should the aforesaid rent, or any part thereof, remain unpaid, after the same shall be due and payable, the said party of the first part may, at its option, then consider the said lessee as tenant at will, and may, after 10 days’ notice in writing, left upon the premises, re-enter and re-possess itself of the said premises, using such, and so much force as is necessary to that end.’</p> <p>“ As by the terms of the said lease your rent of one hundred and twenty-five dollars was due and payable on the. thirty-first of July, 1900, the same having remained unpaid, you are hereby declared to be a tenant at will and notified to surrender possession of said premises on or before tbe 17th day of August, 1900, without further notice or writing,</p> <p>“ Yours truly,</p> <p>“Henby Rea.”</p> <p>The rent for July, 1900, payable the 31st of that month, was paid August 8, 1900, and accepted by Rea, subject to his right of forfeiture, if any he had, arising from the failure to pay the same in accordance with the terms of the lease.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

Appeal, No. 105, Oct. T., 1901, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1900, No. 272, on verdict for plaintiff in case of Robert Russell v. E. L. Stratton, George W. Lewis and W. P. Woods, trading as Stratton, Lewis & Company. Assumpsit for cut stone and use of tools. Before Collier, J. At the trial it appeared that plaintiff had leased a quarry from one Kepple.

<p>Appeal, No. 106, Oct. T., 1901, by defendant, from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1900, No. 629, on verdict for plaintiff in case of Lewis Webster v. Monongahela River Consolidated Coal and Coke Company.</p> <p>Trespass for personal injuries. Before McCluno, J.</p> <p>The circumstances of the accident are detailed in the opinion of the Supreme Court.</p> <p>When the plaintiff was on the stand the following offer was made:</p> <p>Mr. Ivory: We propose to prove by the witness on the stand that prior to the injury complained of in this case, the plaintiff called the attention of the superintendent of the mine to the condition of the mine at about the place of the accident, and told him that in his judgment the timbers were diseased and dangerous, and that he proposed to quit on account thereof ; that the superintendent told him he must not quit; that he would investigate the mine at that place, and if the timbers were in bad and dangerous condition, he would have them fixed; and, relying upon that statement of the superintendent, the plaintiff stayed at his work.</p> <p>Mr. Mcllvain: The latter part of the offer is objected to, for the reason that under the pleadings and bill of particulars filed in this ease and ruled to be filed, no notice was given in the pleadings of any promise to repair, or inducement for this man to remain in the employment of dilly rider, and that under the rule of court, rule 8, section 4, and under rule 120, the evidence is not competent.</p> <p>Objection overruled, and exception. [1]</p> <p>Defendant presented this point:</p> <p>Under all the evidence, the verdict must be for the defendant. Answer : I refuse this point, but leave the matter to you under the instructions which I have already given you. [2]</p> <p>Verdict and judgment for plaintiff for $2,250. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions ; (2) above instruction, quoting it.</p>

Appeal, No. 103, Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1900, No. 341, on verdict for plaintiff in case of George W. Shibler v. Beecher Y. Hartley et al. Ejectment for land in the borough of Homestead. Before Evans, J. At the trial it appeared that the defendants claimed title under a sheriff’s sale based on an execution against C. W. Posey and H. Grant Henderson.

<p> Church law—Appeals—Regularity of proceedings—Equity—Pleading. </p> <p>On a bill in equity against the general assembly of the United Presbyterian Church to declare void the action of the defendants in sustaining a church congregation in ousting plaintiff from his ministry, it was averred that the “action of the General Assembly in entertaining and sustaining the Lake Presbytery was without authority null and void.” The defendant answered, “ We aver on the other hand that the appeal of the Lake Presbytery was in accordance with the laws and forms prescribed in the Book of Government and Discipline of said church regulating the procedure in church courts.” Held, that the averment and answer squarely raised the issue as to whether the procedure on the appeal was so defective as to render the judgment void.</p> <p>The book of discipline of the United Presbyterian Church provides as to appeals as follows: “The appellant shall lodge his appeal and the reason of it, with the clerk of the higher court at the commencement of its meeting and either party may appear in person or in writing and it shall be the duty of the court whose judgment is appealed from to send authentic copies of the record and testimony relating to the matter and in taking up an appeal after ascertaining that it has been regularly conducted, the first step shall be to read the records in the ease and hear the parties appellant first.” On an appeal from a synod reversing a presbytery in dismissing a minister, it appeared that the reasons for the appeal from the synod were not filed before the general assembly in writing, the documents and records were not authenticated, and the facts and church law on which the synod based its decision did not appear. The general assembly reversed the decision of the synod, and the minister dismissed, then filed a bill in equity against the general assembly to have its decision declared void. Held, (1) that there was no error in finding that there was a violation of the church law in the procedure before the general assembly, which rendered its judgment null aud void; (2) that the general assembly had no standing on an appeal to the Supreme Court to raise the question whether plaintiff was estopped because of his withdrawal from the Lake Presbytery and neglect to file his bill until three years after such withdrawal, as that was a question which concerned only the presbytery which had dismissed him.</p>

Appeal, No. 73, Oct. T., 1901, by defendant, from, judgment of C. P. No. 3, Allegheny Co., Feb. T., 1900, No. 15, on verdict for plaintiff in case of Charles A. Warmcastle v. Scottish Union & National Insurance Company. Assumpsit on a policy of fire insurance.

Appeal, No. 13, Oct. T., 1901, by John Z. Sutch, from decree of O. C. Allegheny Co., Sept. Term, 1898, No. 140, overruling exceptions to adjudication in the Estate or James Sutch, Deceased. Exceptions to adjudication.

<p>Appeal, No. 14, Oct. T., 1901, by Renna Halsey, from decree of O. 0. Allegheny Co., Sept. T., 1898, No. 140, overruling exceptions to adjudication in the Estate of James Sutch, Deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the report of the case of Sutch’s Estate (No. F), supra, and by the opinion of the Supreme Court.</p> <p>Errors assigned were indentical with those in Sutch’s Estate (No. 1), supra.</p>

Appeal, No. 44, Oct. T., 1901, by-plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1900, No. 407, dismissing bill in equity in case of Rachel D. Potter v. William P. Rend, The Pennsylvania Mining Co., and The Pittsburg Coal Company. Bill in equity for an injunction.

<p>Appeal, No. 75, Oct. T., 1901, by Thomas Hogan, from order of C. P. No. 2, Allegheny Co., Jan. T., 1899, No. 973, discharging rule to pay certain moneys to Thomas Hogan in the case of Daniel Shields y. City of Pitts-burg.</p> <p>Rule to show cause why certain moneys should not be paid to Thomas Hogan.</p> <p>. The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order discharging the rule.</p>

Appeal, No. 117, Oct. T., 1901, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1899, No. 66, refusing to take off nonsuit in case of Elizabeth J. Mc-Kendry, Surviving Executrix of William A. Thomson, Deceased, v. P. M. Shannon. Assumpsit to recover unpaid balance of purchase money of land. Before Stowe, P. J. The facts appear by the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

Appeal, No. 118, Oct. T., 1901, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1901, No. 360, refusing to take off nonsuit in case of Elizabeth J. McKendry, Administratrix of Matilda B. Thomson, Deceased, v. P. M. Shannon. Assumpsit to recover balance of purchase money for land. Before Stowe, P. J. The facts appear by the report of the case of McKendry v. Shannon (No. 1), ante p. 331, and by the opinion of the Supreme Court.

<p>Appeal, No. 121, Oct. T., 1901, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1901, No. 652, dismissing bill in equity in case of C. M. Williams, H. J. Yerner, J. M. Gruver, C. Ferguson, A. K. Stoughton and B. F. Shamburg, v. Charles T. Fowler, C. P. Caughey, Joseph Summerville and Dr. J. S. Walters.</p> <p>Bill in equity for an injunction and for an account.</p> <p>The bill alleged:</p> <p>1. Henry A. Allman on October. 30,1901, leased to plaintiffs for one year, and as long thereafter as oil or gas was found, fifty-eight acres of land in Marshall township, Allegheny county, with the exclusive right to plaintiffs to mine for oil and gas.</p> <p>2. Said lease became null and void, unless plaintiffs completed a well on the premises within sixty days from the date of the lease, in pursuance of which they were ready to enter upon the premises, when they discovered defendants wrongfully upon the premises engaged in the work of drilling an oil wel]; thereon.</p> <p>3. On November 14, 1900, plaintiffs notified defendants in writing, to remove from said premises the machinery, tools and other property placed thereon by them, informing defendants of plaintiffs’ title to said premises, but that defendants refused to comply with said notice and continued in possession of, and operation on, said premises.</p> <p>4. That the plaintiffs not wishing to commit a breach of the peace by a forcible entry on said premises, being prevented from peacefully entering thereon by the act of the defendants, were unable to complete a well within sixty days, as their lease required, in lieu of which they paid the owners, their lessor, the sum of $250, which secured to them the said lease absolutely.</p> <p>5. That defendants wrongfully and illegally against plaintiffs’ ownership and notice were continuing the drilling of said oil well on the plaintiffs’ land to tlieir irreparable loss, injury and damage.</p> <p>6. That defendants pretend to have a right in said land under a prior lease from George Allman, the grantor of Edward H. Allman, dated July 23, 1900, but that said lease to defendants had become null and void, for failure on part of defendants to comply with the terms thereof, to wit: to either have begun a well within three months from the date thereof, or completed a well within three months thereafter, or pay the sum of $696 per annum, payable quarterly in advance, until said well was completed, and that by reason of said default the lease to defendants had been declared forfeited, and they were notified of said forfeiture, after which the lease had been made to the plaintiffs.</p> <p>7. That no adequate remedy at law is open to plaintiffs, and that they need equitable relief.</p> <p>The prayers are:</p> <p>1. For a preliminary injunction to be made perpetual on final hearing, enjoining and restraining the defendants, from further operation on said land.</p> <p>2. That defendants be required to remove the machinery, rigs, tools, and other property placed on plaintiffs’ land.</p> <p>3. That defendants be required to account and pay for all oil or gas, or either, mined on said land, and to pay damages to the plaintiffs.</p> <p>The answer denied that the plaintiffs were the legal lessees of the land, and averred that the defendants’ entry was in accordance with their rights under their lease.</p> <p>After the court had filed its findings of fact and conclusions of law, and after argument had been had upon the exceptions to such findings and conclusions, an exception was filed to the jurisdiction of the court. The court entered a decree dismissing the bill for want of jurisdiction.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 10, Oct. T., 1901, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1898, No. 524, on verdict for plaintiff in case of City of Pittsburg v. Julia Eyth et al. Assumpsit to recover the cost of resetting a curb and laying a sidewalk.

Appeal, No. 115, Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1900, No. 712, on verdict for plaintiff, in case of Ruth E. Jones (Minor), by her Father and Next Friend, Edward Jones v. United Traction Company. Trespass to recover damages for personal injuries to a child two years old. Before McCltjng-, J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 116, Oct. T., 1901, by defendant, from judgment of O. P. No. 3, Allegheny Co., Aug. T., 1900, No. 712, on verdict for plaintiff in case of Edward Jones v. United Traction Company. Trespass by a father to recover damages for personal injuries to a child two years old. Before Me Clung, J. See previous case. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $400.

<p>Debtor and creditor—Composition agreement—Accord in satisfaction— Consideration.</p> <p>Where a creditor is shown a composition agreement by which anothei' creditor agrees to relinquish a part of his claim, and he himself signs a similar agreement which is to be shown to the other creditors, the agreement will be binding, since the benefit which each creditor may derive from the mutual concession, is the consideration which sustains it and makes it an exception to the rule that a creditor is not bound by an agreement to accept less than the amount of an ascertained debt. The fact that one creditor whose claim is disputed was not a party, does not invalidate the settlement, the agreement not being contingent upon all the creditors settling.</p>

<p>Appeal, No. 123, Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny County, Nov. Term, 1900, No. 78, on verdict for plaintiff in case of William C. Hamilton v. Consolidated Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Kennedy, P. J.</p> <p>The circumstances of the accident are detailed in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 58, Oct. T., 1901, by defendant, from decree of Superior Court, April T., 1900, No. 64, affirming decree of C. P. No. 2, Allegheny Co., April T., 1898, No. 533, on bill in equity in case of Josephine Beso and Anthony Beso v. The Eastern Building & Loan Association of Syracuse, New York.</p> <p>. Appeal from Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court, and by .the report in 16 Pa. Superior Ct. 222.</p> <p>Error assigned was decree of the Superior Court.</p>

<p>Appeal, No. 68, Oct. T., 1901, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., March T., 1900, No. 213, on verdict for defendant in case of Andrew A. Dinan and Mary G. Dinan, his wife, in right of said wife, v. The Supreme Council of the Catholic Mutual Benefit Association.</p> <p>Assumpsit on a benefit certificate.</p> <p>At the trial the defendant showed that Charles B. Coll, to whom the benefit certificate had been issued, had stated in his application that he was under the age of fifty years. The constitution and by-laws of the defendant provided that no person over fifty years should be admitted to membership.</p> <p>Under objection and exception the defendant was permitted to offer in evidence a certificate of the board of health and an engraved coffin plate as evidence to show the age of the deceased.</p> <p>Plaintiff presented this point:</p> <p>1. That even should the jury find as a fact that Charles B. Coll, the father of Mrs. Mary Dinan, the plaintiff, was over the age of fifty years when he made application for admission to defendant association and when admitted and the beneficiary certificate issued upon which plaintiff’s claim is based, that plaintiffs are entitled to recover herein unless the jury shall further find that the statements or representations made by said Charles B. Coll in his application for membership were wilfully made by him with knowledge of their falsity and with the intent to deceive. Answer: This point is refused. It is not a question whether he, Mr. Coll, knowingly, made a false statement or not. Under his application, and under the certificate through which his beneficiary was to receive benefits, he bound himself, as between himself and the association, in relation to the contract between them, to wit: this beneficial certificate, that what he said in relation to his age was true. A man might innocently make a mistake, or make a statement believing it to be true, but if it was made under certain circumstances it would not matter whether it is true or not; he would be bound by the falsity of it—not in the sense that he had actually deceived, but he would be bound by the actual condition of things. Suppose you gentlemen formed an insurance company, and I applied to you to take a risk on my life. I represent to you that I am fifty years of age, and on the strength of that you issue a policy to me. I would certify to the truth of that statement, and bind myself by the truth of it, that I was fifty years of age. If it turned out that that was not true, ordinarily it would be a good defense on an action on the policy.</p> <p>Defendant presented this point:</p> <p>2. That even if the deceased, Charles B. Coll, was honestly mistaken in giving his age as under the age of fifty years, nevertheless, if the jury find that he was in fact over fifty years of age at the date of said initiation, the plaintiff cannot recover. Answer: Affirmed. It is not a question under this contract whether it was a false statement by him, or whether it was innocently made. He was bound by the truth of the statement, and on the basis of that statement the contract was made. If the evidence should satisfy you that at the time he was initiated, and at the time he got this certificate, he was over fifty years of age, then as a matter of law your verdict should be for the defendant.</p> <p>The court charged in part as follows:</p> <p>[Then there is some further testimony that there was a return made to the board of health of our city, under what is known as the act of 1895, which provides for the return of certificates showing marriages and deaths. It is a public record, but just how far it would be evidence might be a close question. I think the record is some evidence of the age of Mr. Coll, though not conclusive. There was a record returned, showing, I believe, that he was sixty-five, or in the sixties. Of course you will use that for whatever it is worth, in connection with other testimony, as tending to show who this Coll was, and whether, at the date of the initiation into the association, this particular Coll was over fifty years of age.] [3]</p> <p>[Then there was a coffin plate introduced, but that testimony was very much weakened by the undertaker’s statement that, while he got the information from the family, the family differed very much about the age, and no one seemed to know just exactly what his age was; some thought he was one age, and some another, but finally it was left to the undertaker, and he put in what he chose. That testimony has not very much weight, it seems to me, yet if it strikes you otherwise, you will use your own good judgment about it; it is for you to say how much weight you will give it.] [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned, among others were (1-4) above instructions, quoting them; (5-9) rulings on evidence, but not quoting the evidence admitted under the exception.</p>

<p> Equity—Equity jurisdiction—Validity of marriage. </p> <p>Courts of equity in Pennsylvania do not possess the general powers of a court of equity, but only such as have been conferred upon them by statute.</p> <p>Jurisdiction to declare a marriage void on account of the lunacy of one of the contracting parties has never been conferred upon the courts of Pennsylvania, and consequently these courts have no such jurisdiction.</p> <p> Equity—Jurisdiction—Marriage—Lunacy. </p> <p>Where an inquisition in lunacy has declared a husband a lunatic without lucid intervals during a period within which he had married, the wife cannot maintain a bill in equity to have her marriage declared valid.</p>

Appeal, No. 23, 0ct. T., 1900, by defendant, from judgment of C. F. No. 3, Allegheny Co., May T., 1899, No. 337, on verdict for plaintiff in case of Ada McCracken v. Consolidated Traction Company. Trespass to recover damages for death of plaintiff’s husband. Before Kennedy, P. J. The facts are fully stated in the opinion of the Supreme Court. The court refused to give binding instructions for defendant. Yerdict and judgment for plaintiff for $5,000. Defendant appealed.

Appeal, No. 94, Oct. T., 1900, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1899, No. 337, on verdict for plaintiff in case of Ada McCracken v. Consolidated Traction Company. Trespass to recover damages for death of plaintiff’s husband. Before Kennedy, P. J. See McCracken v. Consolidated Traction Company (No. 1), ante, p. 378.

<p>Appeal, No. 146, Oct. T., 1901, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1901, No. 695, on bill in equity in case of Harvey D. O’Neil, Anna E. B. O’Neil, Caroline R. O’Neil, Harry O. Murphey, James S. Kuhn, Ella M. Kuhn and James D. O’Neil v. City of McKeesport.</p> <p>Bill in equity for an injunction.</p> <p>Plaintiffs being owners of a lot across which the public had been using an alley as a passage way, fenced in the alley and sold the lot to the school district, but payment was refused on the ground of the public easement. Plaintiffs then filed this bill to prevent the city from interference with the fence. ■ The other facts sufficiently appear by the opinion of the Supreme Court.</p> <p>The court entered a decree in favor of the plaintiff.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 142, Oct. T., 1901, by defendant, from decree of C. P. No. 8, Allegheny Co., Aug. T., 1900, No. 574, on bill in equity in case of DeWitt Dilworth v. Arthur Kennedy and Francis J. Torrance.</p> <p>Bill in equity for an account and an alleged partnership agreement.</p> <p>McClung-, J., found the facts to be as follows:</p> <p>1. (a) The plaintiff and Arthur Kennedy, one of defendants, were associated together in the building, reconstruction and operating of certain electric railways in the state of Indiana, which were finally consolidated under the name of the Indiana Railway Company. Kennedy conducting the business in his own name-^the arrangement between these parties being that Dilworth was to have a one-sixth interest in the profits of the undertaking payable in stock of the consolidated company.</p> <p>2. Francis J. Torrance, the other defendant, was not a party to any agreement with Dilworth and did not know of Dilworth’s agreement with Kennedy. He simply aided Kennedy in raising funds and received his stock under an agreement which Kennedy had authority to make.</p> <p>3. (5) Upon the completion of the undertaking, January 1, 1901, Kennedy had in his hands 11,000 shares of the stock of the Indiana Railway Company of the par value of $50.00 per share on which he had paid $12.50 as of said date. This stock, subject to the payment of said $12.50 per share, represents the profits of the undertaking which were to be divided between Dilworth and Kennedy—-one sixth to Dilworth and five sixths to Kennedy. The court subsequently entered a decree dismissing the bill as to Torrance and requiring Kennedy to account.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeals, Nos. 140 and 141, Oct. T., 1901, by William T. Bruckner and Arthur B. Schaffner, from decree of O. C. Allegheny Co., June T., 1901, No. 141, dismissing exceptions to adjudication in Estate of James H. Hays, Deceased.</p> <p>Exceptions to adjudication.</p> <p>From the adjudication of Hawkins, P. J., the following facts appear:</p> <p>James H. Hays, by his will created a trust for his children, including Mrs. Wylie, the material features of which are as follows: Subject to certain provisions in favor of his widow, he gave the management of his estate for a period of ten years to a trustee, with direction that the “ net annual income and profits should be divided into eleven shares, and distributed in absolute property” among his children and grandchildren (naming them), Mrs. Wylie being given one share—and then proceeded—“ the shares allotted as aforesaid to my daughters shall be for their sole and separate use, and shall be paid into their own hands respectively upon their own sole receipt therefor .... The entire of my personal estate remaining undisposed of at the expiration of the aforesaid period of ten years,' shall be retained by my said executors to their own use and in trust for my said daughters and grandson respectively in the proportion aforesaid .... Only the income or profit thereof paid to each of them or any of them during their natural lives, in the manner heretofore prescribed, in respect to the income from my entire estate, real and personal .... As touching and concerning the body of my real estate .... unconverted or undisposed of at the expiration of said period of ten years, my will is that the same .... shall continue in my said executors to the uses and upon the trust following, to wit: . . . .</p> <p>“To have and to hold the remainder of said shares in trust for and to the use of my said six daughters equally .... accounting and paying over to them respectively from time to time during their respective lives for their sole-and separate use the net proceeds, profits and income thereof, in like manner as hereinbefore expressed in respect to their shares in the income of my entire real and personal estate and upon the decease of any of my said daughters leaving issue the trust to be continued in the same manner for the benefit of said issue during their minority and • to be executed and performed in like manner .... But if any of my said daughters shall die without leaving issue, or if leaving issue said issue shall die in their minority failing issue, the share of such daughter shall go to her surviving sisters equally, but upon the same trust limitations as herein expressed' and provided in respect of the trust, firstly and directly created in their favor.” Provision was made for partition at the expiration of the period of ten years aforesaid and this has since been executed.</p> <p>After the payment of debts no personal estate remained, so that the trust embraced realty only.</p> <p>In July, 1900, foreign attachments were issued in which Mrs. Wylie’s trustee was summoned as garnishee. Counsel for attaching creditors concedes that the will created a separ rate use trust for Mrs. Wylie, and that accruing income is not liable to attachment, but insists that after such income becomes due and payable it is liable, and counsel for the trustee and Mrs. Wylie denies that the income is liable, either before or after maturity.</p> <p>The auditing judge held that the income which had accrued was exempt from the claims of Mrs. Wylie’s attaching creditors.</p> <p>Exceptions to the adjudication were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 144, Oct. T., 1901, by plaintiffs, from decree of O. P. No. 2, Allegheny Co., April T., 1901, No. 603, on bill in equity in case of John Mellor, Elmer E. Siebert, George Collier, Alexander Waters and Herman Schaefer v. City of Pittsburg, The Central Board of Education of the City of Pittsburg, The Mount Albion Subschool District of the Eighteenth Ward, Pittsburg, and E. R. Torrence, Treasurer of the City of Pittsburg.</p> <p>Bill in equity for an injunction.</p> <p>Shaeer, J., filed the following opinion:</p> <p>FINDING OF FACTS.</p> <p>1. The central board of education of the city of Pittsburg, one of the defendants, was established by an act of 1855, which is supplied by the Act of February 12, 1869, P. L. 150. The general effect of which legislation was to make the whole city pf Pittsburg a single school district for the purpose of paying expenses, of hiring teachers and other like expenses and leave each of the wards of the city, a school district by the name of subdistrict expressly charged with the duty of providing school buildings and maintaining the same.</p> <p>2. The act of 1869, section 63, provides that the several boards of the subdistricts may, at any time, not oftener than once in each school year, levy a special tax, not exceeding the amount of the regular annual school tax for such year, and directing the money so raised to be solely applied to the purchase of the grounds, erection of buildings, etc. Section 64 provides that the several boards of directors of the subdistricts shall notify the central boards of the rate of taxation levied by them as aforesaid and requires the central board to cause the amount thereof to be added in a separate column to the tax duplicate.</p> <p>3. The Mt. Albion subschool district, one of the defendants, is coterminous with the eighteenth ward of the city of Pitts-burg and is one of the subdistricts referred to in the act of 1869.</p> <p>4. The central board of education in the year 1901, ascertained and determined that the amount of money required to be raised by taxation for conducting the schools of the city was #831,800 and was certified to the councils of the city of Pitts-burg and the said sum was added by said councils to the aggregate of the tax required for the city for the year 1901.</p> <p>The Mt. Albion school district has levied a special tax of eight and two tenths mills on the dollar on the assessed valuation of the taxable property in the eighteenth ward for school building purposes and has certified the same to the central board of education, by which the same was certified to the city councils. Thereupon an ordinance of the city of Pittsburg entitled “ An ordinance levying taxes and assessing water rents for the fiscal year beginning February 1, 1901,” was passed and approved by the mayor on March 7,1901, whereby a tax of fifteen mills on the dollar was levied on all taxable property in the city of Pittsburg, for the purpose of raising revenue for the payment of interest and to pay the ordinary current expenses of the city.</p> <p>In addition taxes were levied upon the subschool districts, for the purpose of defraying interest on bonds and of sinking funds and for the miscellaneous purposes of the subschool districts in the several wards of the city, these taxes being in amounts varying from one half mill to eight and two tenths mills, just the tax assessed by the said ordinance in the Mt. Albion subschool district of the eighteenth ward.</p> <p>5. The total assessed valuation of the property in the city of Pittsburg is #295,000,000, and the total assessed valuation of the property in the eighteenth ward is #7,354,680.</p> <p>6. The Mt. Albion subschool district had, on or about April 17, 1900, a bonded indebtedness amounting to #144,000, issued under the terms of the Act of April 20, 1874, P. L. 65, and the Act of April 13, 1897, P. L. 17, on or about that date and at various times thereafter during the year the subschool district, for the purpose of completing a schoolhouse, made various contracts, set out in the tenth paragraph of plaintiff’s bill amounting to about #40,000, and it is alleged by plaintiffs that this was an illegal increase of indebtedness beyond the limit of two per cent allowed by law. None of these contracts were completed during the year 1900 and none are yet completed, and we find that the same are within the limit of current revenue in taxes and that the levy heretofore made is sufficient. to' pay said contracts in full as they will, from time to time be performed and the current expenses of the district.</p> <p>• CONCLUSIONS OP LAW.</p> <p>1. The legislation which, it is claimed has affected' the rights and duties of the subdistricts, since the act of 1869, consists of the following acts, the first, the Act of April 20, 1874, P. L. 65, and the subsequent acts empowering municipalities to borrow money and directing the levy of taxes for the payment of the same; second, the Act of March 22,1877, P. L. 16, and the supplements of March 15,1878, P. L. 7; third, the Act of June 12, 1878, P. L. 182; fourth, the Act of May 24, 1881, P. L. 29.</p> <p>2. The act of 1877, above referred to, was entitled “ An act in relation to cities of the second class, providing for the levy, collection and disbursements of taxes and water rents,” and provided that the annual levy of taxes should be based upon full statements of the receipts and expenditures of all departments including education, school and poor board and authorize the finance committee of councils in lieu of any existing authority in relation thereto, to make an estimate of the various sums of money which, in their discretion, will be required to defray all the various expenses of conducting the various departments including the school or boards of education, and this to be- certified to councils to be accepted or modified by them. The act of March 15, 1878, supplement to the act of 1877, provided that the sums appropriated for educational, school and poor purposes, shall be paid out upon warrants issued by the educational, school or poor boards. The act of June 12, 1878, above mentioned, provides that the central board of education shall ascertain and determine the amount of money necessary for conducting the schools of the city and certify the same to councils, and councils shall add the same to the aggregate of the taxes. And this act also declares it to be the true intent and meaning of the act to which it is a supplement that none of the, powers theretofore belonging to the central board of education and the various school boards of the said cities prior to the passage of such act shall be impaired or affected in any manner, except in relation to the levy and collection of taxes. It is argued by counsel for defendants that the effect of these acts is to place on the central board the power to ascertain and determine the amount necessary for conducting the schools, and the conducting of the schools means not . only the payment of the teachers and similar expenses, but the provisions for buildings, grounds and all things necessary for housing and accommodating the pupils and the power of the subdistrict given by the 63d section of the act of 1869, to levy taxes is taken away, and they cite the case of the Commonwealth against Shaw, 96 Pa. 274.</p> <p>If we agree with counsel for defendants in this respect we should be of the opinion that the central board of education was bound to levy taxes for the purchase of lands and the building of schoolhouses upon the city at large, and that the taxes levied of eight and two tenths mills on the dollar on taxable property in the eighteenth ward was wholly illegal, not for the reason that it exceeded the amount of the regular annual school tax, but because no other authority appears to have been granted to the central board of education to levy special taxes upon parts of the city different in amount from those levied upon the rest of the city. As to the case of the Commonwealth against Shaw supra, although there are expressions in the opinion of the late president judge of this court favorable to the contention of counsel, yet all that was decided in the case was that a mandamus could not be granted to compel the central board of education to do that, which if they had the power to do, was a matter of discretion.</p> <p>3. We are of the opinion, however, that the 63d section of the act of 1869, so far as it authorized the subdistrict to levy taxes or requires the levy of the same for building purposes is not repealed by any of the acts above mentioned, but, on the contrary, that the legislative interpretation contained in the 3d section of the act of June 12, 1878, in addition to its legislative force, is a correct interpretation of the act and the sub-district being required to build and maintain schoolhouses sufficient for the needs of the district. It is not to be supposed that the legislature means to take away from the sub-districts the power to levy taxes for that purpose, although the mode of levying the same might be modified.</p> <p>4. By the Act of May 24, 1881, P. L. 29, above referred to, an attempt was made to settle the question which appears to have been raised as to whether or not the 63d section of the act of 1869 was still in force, and the act provides that the several boards of directors of the subschool districts shall have power to purchase ground and erect buildings, etc., to borrow money and provide for the payment of it, and levy taxes for sueh purposes as fully as such power existed and belonged to said boards prior to the act of 1877.</p> <p>It is alleged by defendants that this act is unconstitutional in that it violates section 6, article 3 of the constitution in attempting to revive a law by reference to its title only, without re-enacting and publishing it at length, and this position seems to be well taken, at least so far as the act undertakes to define the powers granted by reference to those which existed before the passage of the act of 1877, and that is all that concerns us in this case.</p> <p>5. The provision of the 63d section of the act of 1869, limiting the special tax to the amount of the regular annual school tax was copied into the act of 1855, creating the central board of education, from the general school law of 1854, where it referred to a tax levied- by the same body as that which levied the special tax and was copied from the act of 1855 into that of 1869, under both of which acts the central board of education levied a regular annual school tax, or that which might properly be called such, being a certain millage upon the taxable valuation which was required by law to be ascertained before the levy of the special tax. As the law now stands, however, since the act of 1878, the central board of education does not levy any school taxes but presents to councils a lump sum, which councils are required to add to the aggregate of taxes required for cities and appropriate the same to the use of the central board and, as above stated, the councils of the city of Pittsburg levied a tax of fifteen mills for general city purposes, which includes the proportion to the central board of education. It is true that if the subdistrict board can ascertain before levying their taxes for building purposes the exact valuation of the property of the whole city for taxable purposes, and the central board of education as certified to the city councils the amount deemed by them necessary for conducting the schools, it can by a mathematical calculation arrive at the percentage of the amount as of the whole taxable valuation of the city, and in one sense this would represent that which was originally intended by the regular annual school tax. No machinery appears, however, to be provided by which the sub-district board is to be informed of the various elements of the problems thus presented to them. We are of the opinion therefore that there is now in the city of Pittsburg no regular annual school tax levied which can be the measure of the special tax which may be levied by the subdistrict and that the part of the 63d section of the act of 1869, which refers to the amount of such annual school tax has been repealed by implication or become inoperative.</p> <p>6. The act of 1874 and its supplements relating to the indebtedness of the municipalities above mentioned is a general act giving power to all the bodies to which it relates, including the subdistricts of the city of Pittsburg to borrow money, and requires the levy of a certain amount of taxes in proportion to the money borrowed, for the payment of the same, and this act substitutes the methods and limitations theretofore existing in different portions of the state and substitutes its own provisions for them: Chalfant v. Edwards, 176 Pa. 70. As the district has a bonded indebtedness of over #140,000, there must be levied a considerable tax at the time of the borrowing of this money of the amount of which we are not informed and which is included in the eight and two tenths mills above mentioned. For anything that clearly appears in the evidence the whole of this eight and two tenths mills may have been originally levied in the provisions of the act of 1874 and its supplements. We cannot in any event declare the whole of the levy of eight and two tenths mills illegal, and if any part of it is not legalized by the act of 1874, we cannot enjoin the collection of such part even if otherwise illegal, because we cannot ascertain its amount.</p> <p>7. The view we have taken for regulation above mentioned relieves us from the necessity of discussing the constitutionality of the act of 1877, which is claimed by plaintiff’s counsel to be unconstitutional because the title does not allude to the subject of schools, and the school districts were not, at the time of the passage of the act, departments of the city government, being districts of the state having a separate corporate existence.</p> <p>8. It was stated upon the arguments and not denied that the practice of levying a special school tax by the subdistricts for building purposes, as was done in this case has been universally adopted in all subdistricts of the city for upwards of twenty years and that in many cases heretofore and in the ordinance levying the tax complained of for the present year, the taxes levied by the subdistricts were larger than the proportion borne by the central school board of education’s estimate to the whole value of the city and that the same has not been heretofore questioned. It is certain that very great confusion would arise in many subdistricts of the city if the- interpretation of the various acts in question claimed by the plaintiffs were to be adopted, and while this would not be a reason for not adopting that interpretation if it were clearly right, it is strongly persuasive that it should not be adopted if a reasonable interpretation sustaining the present practice can be found.</p> <p>9. Under the above findings of fact as to the contracts of the school board, which are alleged to be illegal as creating an indebtedness beyond the amount allowed by law, we think there is no question that the subdistrict is acting within its rights and that the contracts complained of do not create an illegal debt: Wade v. Oakmont Borough, 165 Pa. 479; City of Erie’s Appeal, 91 Pa. 398. Being of the opinion therefore that the tax of eight and two tenths mills complained of is not excessive or illegal and that the contracts above mentioned do not constitute an illegal increase of debt, the plaintiffs are not entitled to any of the relief prayed for and the bill is dismissed at their costs.</p> <p>Let a decree be drawn accordingly.</p> <p>' Error assigned was decree dismissing bill.</p>

<p>Contract—Delivery— Carrier.</p> <p>Where a purchaser of lumber asks a seller to quote his “lowest delivered prices,” and it appears that the goods were to be delivered at a point 1000 miles away, and it also appears that the freight was to be paid by the consignee who would deduct it from the delivered price, the words “ lowest delivered prices ” are used by the parties merely to fix a price; and delivery to the railroad company is a delivery to the purchaser. Sucn a case does not come within the rule that “ where goods are sold to be delivered by the vendor to the vendee at a certain place, and are by the fault of the carrier not so delivered, the carrier being the agent of the vendor, the latter is responsible for neglect.”</p> <p> Contract—Sale—Acceptance of goods —Delay in making complaint. </p> <p>Where lumber is being delivered during the period of seven weeks and is unloaded by the purchaser, who has a full opportunity to inspect every piece of it, and the lumber is used by him in a building operation, without any complaint of its condition made either to the seller or the carrier, it is too late when the purchaser is called upon to pay for the lumber to allege its damaged condition as a defense.</p> <p> Contract—Sale—Quality. </p> <p>Where the price of goods is fixed by a contract and the quantity and grade are furnished and accepted without complaint, the buyer must pay the price, even though the quality be inferior.</p> <p> Contract—Sale—Delivery—Delay. </p> <p>Where the seller of lumber agrees to make shipments “ with reasonable dispatch,” and the first lot is shipped within ten days thereafter, and the remainder in thirteen cars rapidly follows and the whole is delivered within seven weeks, and no complaint is made during this time, of negligence in delivery, the seller will be deemed to have substantially complied with the contract in prompt shipment.</p>

Appeal, No. 139, Oct. T., 1901, by Annie D. Hatch, from decree of O. C. Allegheny Co., Sept. T., 1896, No. 188, dismissing exceptions to adjudication in the Estate of George W. Simonds, Deceased. Exceptions to adjudication. Hawkins, P. J., filed the following adjudication: 1.

<p> Will—Vested and contingent estates—Legacy. </p> <p>When a legacy is given by a direction to pay when the legatee or legatees attain a certain age, the direction to pay may import either a gift at the specified age or a present gift with a postponed payment; and if the interest is given in the mean time, it shows that a present gift was intended. It is immaterial that the interest may open and let in after born children, or that the present right to the future possession may be defeated by some future event.</p> <p>The question of vested or contingent is not to be tested by the certainty or uncertainty of obtaining the actual enjoyment; for that would make the character of the estate depend, not upon the terms of its creation, but on the form of the result. Neither does it depend upon the defeasibility or indefeasibility of the right of possession; for many estates are vested without possession, as well as with, which are yet defeasible. If there is a present right to a future possession though that right may be defeated by some future event contingent or certain, there is nevertheless a vested estate.</p> <p>Testatrix directed that her real and personal property should be appraised, and that her executors should divide her real estate into six equal parts, and that the appraisement and distribution of her property should be recorded on the records of the orphans’ court, and should expressly designate by name the several 'parties entitled to take it. As to one of the shares she directed that it should be held in trust by her son to pay one third of the net income to his present or any future wife. “And out of the other two thirds part of said net income he shall apply so much as may be necessary for the suitable maintenance, education and support of his child or children which he now has, or may hereafter have. And the surplus, if any, of said two-thirds part of said net income he shall invest in the same trust for the use and benefit of his said child or children.” She further directed that the trust should continue during the life of the son, and if he died after all his children arrived at the age of twenty-one years, the trust should cease, and the principal should be paid, one third to his wife, and two thirds equally among his children. She further directed that if the son’s wife and all his children and the issue of children should die in the son’s lifetime, the trust should continue for the benefit of testatrix’s children. The son survived his mother and died leaving to survive him a widow, a son and a daughter. The son subsequently died intestate leaving no children, but a widow. Held, that the grandson of the testatrix took a vested interest under his grandmother’s will, and that his widow was entitled to a life interest in one half of her husband’s share.</p>

<p> Constitutional law—Removal of public officers—Policemen. </p> <p>Policemen are petty officers or subordinate ministerial agents or employees, and as such are not included in section 4, of article 6 of the constitution of Pennsylvania which provides that “ Appointed officers other than judges of the courts of record, and the superintendent of public instruction may be removed at the pleasure of the power by which they shall have been appointed.”</p> <p>Public officers—Policemen—Removal—Act of May 23, 1889, P. L. 299, section 4, article 7.</p> <p>Before section 4 of article 7 of the Act of May 23,1889, P. L. 299, was amended by the Act of May 16, 1901, P. L. 237, section 20, the mayor ot a city of the third class could not remove a policeman without the advice and consent of the select council.</p>

Appeal, No. 74, Oct. T., 1901, by-plaintiffs, from order of C. P. No. 2, Allegheny Co., Oct. T., 1894, opening judgment and from judgment on verdict in case of William Schomaker and Frederick Schomaker, trading as Schomaker & Company, v. John H. Dean, Charles F. Marshall and James Matthews. From the record it appeared that judgment had been entered under warrant of attorney contained in a judgment note.

Appeal, No. 145, Oct. T., 1901, by Safe Deposit and Trust Company, from decree of O. C. Allegheny Co., Oct. T., 1901, No. 60, on petition for an order on a trustee in the Estate of George T. Jacoby. Petition for an order on a trustee to pay over money.

<p>Negligence—Explosion of gas—Gas company—Province of court and jury. A higher degree of care and diligence is required in dealing with a dan-</p> <p>gerous agency such as gas, than in the ordinary affairs of life or business, e which involve little or no risk of injury to persons or property. While neje absolute standard of duty in dealing with such agencies can be prescribed, every reasonable precaution suggested by experience, and the known dangers of the subject ought to be taken.</p> <p>In the case of a gas company the material and workmanship of the pipes and fittings, should be of the highest character, and every precaution which is within the bounds of reason should be taken to guard against deterioration or misplacement.</p> <p>In an action against a gas company to recover damages for injuries to propertyresuiting from an explosion of gas, the case is for the jury where it appears that the defendant maintained a pipe in the street in front of the plaintiff’s property about eleven feet from the cellar wall, and about three feet under ground; that the soil in that vicinity was soft and shaly; that the plaintiff did not use gas in his house, nor was it piped for that pui’pose, but a short pipe extended from the main through the front wall of the cellar; that about seven feet below the bottom of plaintiff’s cellar was an abandoned coal mine, the existence of which was known to the defendant; that after the explosion the underlying strata of coal was found to be burning; that according to the witnesses for plaintiff there was no indication of fire in the mine prior to the accident; that some months before the accident there had been a break in the main, and gas had worked itself into the plaintiff’s cellar; that at that time a pipe had been taken out which had been found to be very rotten and badly rusted.</p> <p> Evidence—Inference from facts—Province of court and jury. </p> <p>A binding instruction is proper where the evidence is not conflicting and presents the facts on which the case depends clearly and distinctly, but if the evidence is contradictory or if it fails to piesent the facts fully, so that inferences are to be drawn, or the credibility of witnesses is to be settled, the evidence must go to the jury.</p> <p>The rule that a verdict may be directed where a different conclusion could not be reached by the jury without a capricious disregard of apparently truthful testimony that is in itself probable, and is not at variance with any proved or admitted facts, does not apply where there is a conflict of testimony, unless that on one side amounts only to a scintilla.</p>

Appeal, No. 2, Jan. T., 1901, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1900, No. 133, for defendant non obstante veredicto in case of Ellen Keefer v. Pacific Mutual Life Insurance Company of California. Assumpsit on a policy of accident insurance. Before E. W. Biddle, P. J. At the trial it appeared that on May 29, 1899, John W. Keefer, husband of the plaintiff, took out a policy in the company defendant for $2,000 in favor of the plaintiff for one year.

Appeal, No. 189, Jan. T., 1900, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 282, making absolute a rule to open judgment in case of John H. Scott v. John D. Kennedy, Charles D. Kennedy and Kennedy & Brother. Rule to open judgment and case stated. The case stated was as follows: 1.

Appeal, No. 188, Jan. T., 1900, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 281, for defendants on case stated in suit of John H. Scott v. John D. Kennedy and Charles D. Kennedy and Kennedy & Brothers. Rule to open judgment and case stated.

<p> Will—Issue devisavit vel non—Undue influence—Bequest to Roman Catholic priest. </p> <p>A will will be sustained where the testimony shows that at the time of ' the making of the will, which was immediately prior to testator’s death, testator was sixty-nine years old and of perfectly sound mind; that bis next of kin were two nephews and a neice not mentioned in the will; that the two nephews were strangers to him; that the chief beneficiary in the will was the proponent, who was a second cousin of testator, and alloman Catholic priest; that there had never been any relation of priest and parishioner between proponent and testator, but only one of long companionship and close friendship; that when the testator was in his last illness he sent for proponent; that a few days before testator’s death proponent and another priest went to the testator, and the other priest administered to him the last sacrament, and at this time proponent asked the testator if he had made his will, and receiving a negative reply, advised him to do so; that at testator’s solicitations deponent wrote down the outlines of the will as testator dictated it, and from these notes a reputable attorney at law prepared the will which was executed in the presence of this attorney and another reputable attorney, with neither of whom had the proponent any previous acquaintance.</p> <p>On the trial of an issue devisavit vel non it will not be presumed from the fact that the bulk of the estate is given to a Roman Catholic priest, that the gift was in reality for religious uses.</p>

<p>Appeal, No. 138, .Jan. T., 1901, by Elizabeth Cook, John Gouldey, Ida R. Summers, Union Trust Company as Committee of Mary C. Summers, Legatees, from decree O. C. Phila. Co., Jan. T., 1886, No. 156, sustaining exceptions to adjudication in Estate of Charles Gouldey, Deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree sustaining exceptions to adjudication.</p>

<p>Negligence—Municipalities—TJnfenced lot—Infant—Unsafe gate. A city is not required to anticipate and guard against dangers to children which may result from the improper use of objects safe in themselves and for the use for which they are designed.</p> <p>Where a boy ten years old goes upon a lot owned by a city and open to the street on all sides, and climbs upon a gate which was the entrance to a driveway leading to a house which had formerly been a mansion house, and the gate falls under the boy’s weight and the boy is injured, the city is not liable, where it appears that the gate was safe if used properly, and that there was no danger of its falling if touched or run against.</p>

Appeal, No. 229, Jan. T., 1901, by-defendant, from judgment of C. P. No. 3, Phila Co., Sept. T., 1900, No. 183, on verdict for plaintiff in case of Ellie Woodroffe, Widow, and Francis, Margaret and Robert Woodroffe, minor children of Daniel A. D. Woodroffe, Deceased, v. Roxborough, Chestnut Hill and Norristown Railway Company. Trespass to recover damages for death of plaintiff’s husband.

Appeal, No. 251, Jan. T., 1901, by defendant, from judgment of C. P. No. 4, Phila. Co., Dee. T., 1898, No. 452, on verdict for plaintiff in case of Philadelphia to use of Samuel Faith and John Long, Copartners, trading as S. Faith & Company, v. George W. Stewart and the Equitable Trust Company. Assumpsit on contract. Before Audenried, J. The facts are fully stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $4,127.08. Defendant appealed.

<p>Appeal, No. 56, .Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1899, No. 355, on verdict for plaintiff in case of Millie "W. Van Eman v. Fidelity & Casualty Company of New York.</p> <p>Assumpsit on a policy of accident insurance. Before Evans, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>When the plaintiff was on the stand the following offer was made :</p> <p>Counsel for plaintiff now proposes to prove by the witness on the stand, that upon Friday, the day of the accident, upon Mr. Van Eman’s return home and in connection with his complaint of pain, he told the witness on the stand, where, when and how he had sustained the injury to the wrist. Objected to as irrelevant and immaterial and incompetent. Objection overruled. To which ruling, the counsel for defendant requests an exception. Exception allowed and bill sealed. [4]</p> <p>Under objection, the witness testified as follows:</p> <p>“ Q. When you first saw your husband, Friday, when he returned home, did he state to you, when and where and how the accident happened? A. He did. Q. What time in the afternoon was it? A. It was between four and five o’clock Friday. Q. What did he say to you ? A. He told me, on his way home, he felt very much fatigued, and fell asleep with his arm resting on the arm of the chair and supporting his head, and he did not know anything further until his arm was knocked out from in under his head, and he could not raise it, and when he wanted to pick it up, he had to do it with the other hand; he had no power over it. Q. Did he speak of its striking .... A. He said the jar of the car had knocked his arm, he supposed, against the arm of the seat. Q. Which arm was it ? A. His left arm. ” .</p> <p>The court: “ Q. Did he say where this accident happened ? A. On the train. Q. Well, which train? A. On a passenger train on the Lake Erie Railroad.”</p> <p>The court admitted under objection and exception the correspondence between the company and its agent referred to in the opinion of the Supreme Court. [5]</p> <p>The court also admitted under objection and exception the letter of W. O. McNary, referred to in the opinion of the Supreme Court. [6]</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $11,414.95. Defendant appealed.</p> <p>Errors assigned among others were (1) above instruction, quoting it; (4-6) rulings on evidence, quoting the bill of exceptions.</p>

Appeal, No. 157, Jan. T., 1901, by defendant, from judgment of C. P. No. 3, Phila. Co., Deo. T., 1899, No. 105, on verdict for plaintiff in case of Charles Abel, executor of William W. Abel, Deceased, v. Hannah Abel. Ejectment for premises 2122 Van Pelt street in the city of Philadelphia. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff. Defendant appealed.

Appeal, No. 240, Jan. T., 1901, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1900, No. 541, on verdict for defendant in case of Augusta Taylor v. Howard T. Hammell. Assumpsit by principal against agent for failure by the agent to properly perform a duty entrusted to him. The defendant pleaded the statute of limitations.

<p>Appeal, No. 177, Jan. T., 1901, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1901, No. 89, for defendant on case stated in suit of Jacob C. Jones v. John F. Jones.</p> <p>Case stated to determine the marketable title to real estate.</p> <p>The material portions of the case stated are as follows:</p> <p>1. That John Jones died July 8, 1889, seized as of fee of, to and in the premises described in the agreement of sale, and having first made and published his last will and testament which after his decease was duly probated by the register of wills of Chester county, Pennsylvania.</p> <p>2. The material part of said will was as follows:</p> <p>“ Second. I give to my four sons Jacob, Scott, John and Evan, the farm on which I reside in London, Britain Township, during their natural lives, and at their death to their or each of their nearest male heirs, but if either of them should desire to sell out to the other it is my will that they shall do so of their own individual interest, but in no way to destroy this grant or bequest.”</p> <p>3. That plaintiff and defendant are brothers, are children of said testator, and are the sons of Jacob and John mentioned in the second paragraph of said will. The farm mentioned in said second paragraph is the farm accurately described in the agreement of sale hereinafter set forth.</p> <p>4. That at the time of making said will and at the time of testator’s death he had six children. At those times defendant had three female children and none other; testator’s other three sons were unmarried; Mary E. Crossan, a daughter of testator, had two sons; and Sarah Young, another daughter of testator, was childless.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was in entering judgment for defendant on the case stated.</p>

<p>Appeal, No. 194, Jan. T., 1901, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1898, No. 831, on verdict for plaintiff in case of Elizabeth Kilbride v. Carbon Dioxide and Magnesia Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Audenried, J.'</p> <p>The circumstances of the accident are stated at length in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant, and submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for $¡6,000. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Appeal, No. 294, Jan. T., 1901, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., June T., 1900, No. 949, on verdict for defendant, in case of Robert T., Todd and William D. Todd, a minor, by Robert T. Todd, his father and next friend v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries to a boy-ten years old. Before Willson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

Appeal, No. 327, Jan. T., 1901, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1900, No. 517, on verdict for plaintiff in case of Lizzie B. Shugard v. Union Traction Company. Trespass to recover damages for death of plaintiff’s husband. Before Willson, J. The facts are stated in the opinion of the Supreme Court. The court refused binding instruction for defendant. Verdict and judgment for plaintiff for 15,500. Defendant appealed.

Appeal, No. 312, Jan. T., 1901, by plaintiff, from decree of C. P. No. 3, Phila. Co., June T., 1899, No. 1039, dismissing bill in equity in case of Andrews J. Speese v. Schuylkill River East Side Railroad Company and the Baltimore & Ohio Railroad Company. Bill in equity for an injunction. Before McCarthy, J. The facts are fully stated in the opinion of the Supreme Court. Error assigned was decree dismissing the bill.

Appeal, No. 324, Jan. T., 1901, by-defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1898, No. 1053, on verdict for plaintiff in ease of William D. Allen v. International Text Book Company. Assumpsit to recover salary. Before Beitler, J. At the trial it appeared that by a contract in writing defendant employed the plaintiff to take charge of its New York office for one year beginning January 12, 1898, at a salary of $75.00 per week.

<p>Appeal, No. 347, Jan. T., 1901, by Almira Gibbs, Charles H. Samson, William W. Samson and Sallie S. Zacherle, from decree of O. C. Phila. Co., April T., 1900, No. 99, dismissing exceptions to adjudication in Estate of Benjamin P. Samson and Anna W. Samson, Deceased.</p> <p>Exceptions to adjudication.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Appeal, No. 252, Jan. T., 1901, by plaintiff, from order of C. P. No. 1, Pliila. Co., Dec. T., 1900, No. 514, making absolute rule to set aside summons in case of Jens Jensen v. Philadelphia, Morton and Swarthmore Street Railway Company.</p> <p>Trespass to recover damages for personal injuries for a cause of action arising in Delaware county.</p> <p>Rule to set aside service of summons.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in making absolute the rule to set aside the summons.</p>

Appeal, No. 187, Jan. T., 1901, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1898, No. 18, sustaining exceptions to report of referee in case of Michael McManus v. City of Philadelphia. Exceptions to report of George W. Harkins, Esq., referee. The facts are stated in the opinion of the Supreme Court. Errors assigned were in sustaining exceptions to report of referee.

<p>Appeal, No. 142, Jan. T., 1900, by plaintiff, from order of C. P. No. 4, June T., 1899, No. 59, Phila. Co., discharging rule for judgment for want of a sufficient affidavit of defense in case of Pennsylvania Railroad Company v. Midvale Steel Company.</p> <p>Assumpsit to recover demurrage for detention of cars.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The affidavit of defense was as follows :</p> <p>The defendant has no knowledge of the facts stated in the plaintiff’s declaration that prior to 1893, or at any time subsequent thereto, the plaintiff had established a rule relating to demurrage charges as in said statement set forth. The defendant asks that the plaintiff be compelled to make proof of said rule or regulation if its existence be deemed material.</p> <p>Even if said rule or regulation was established by the plaintiff prior to 1893 or subsequent thereto, the deponent avers that no notice of the existence of such a rule as a regulation of the plaintiff company was ever communicated to the defendant prior to the institution of this suit.</p> <p>The deponent denies the averment of the plaintiff’s statement to the effect that from a time anterior to 1893 to the date of this suit, the said regulation and demurrage charge formed a part of the contract of carriage between the plaintiff and the defendant. Deponent on the contrary avers that no contract for the payment of demurrage from the defendant to the plaintiff under any circumstances whatever has at any time been entered into by the parties. At various times during the year 1893, and subsequently, bills have been rendered to the defendant by the plaintiff for demurrage charges, but said bills did not contain notice of any regulation or rule upon which ■ said charges were or could be based, nor were the charges made in said bills consistent with the terms of the regulation upon which the plaintiff has declared.</p> <p>Even if there be such a regulation of the plaintiff company as is set forth in the declaration, and even if the defendant is subject xto its operation, the deponent is advised and believes and so avers that the said regulation is not applicable to the shipments mentioned in the plaintiff’s declaration and bill of particulars as having been made to the defendant. The said regulation, as set forth in the plaintiff’s declaration, applies only to a period of time beginning forty-eight hours after the arrival of a car at its destination, and ending with the unloading of said car by the consignee. In point of fact, large numbers of the cars in respect of which demurrage is claimed by the plaintiff were loaded by the defendant with return freight after having been promptly unloaded upon their arrival, and the time during which it is charged by the plaintiff that said cars were detained by the defendant, covers not merely the unloading, as above set forth, but the reloading with a return cargo. The deponent is advised, and believes, and so avers, that said regulation has application only in cases of ordinary consignments, and not in cases like the present, where the defendant not only makes consignments of return cargoes, as above set forth, but also receives from the plaintiff large numbers of empty cars for the purpose of loading them for shipment with merchandise manufactured by the defendant. During the period covered by the plaintiff’s claim, no less than 14,596 loaded cars were received by the defendant from the plaintiff, and 1,451 cars were during said period brought in empty for shipments by the defendant. The deponent avers, upon information and belief, that the regulation in question can have no practical application where the plaintiff is dealing with a concern which is both consignor and consignee, and is compelled to handle such large numbers of arriving and departing cars in a space which is necessarily limited. The deponent avers that due diligence has been at all times used by the defendant in unloading, reloading, and returning the empty cars, but that the defendant’s operations in this respect have been seriously interfered with by the irregularity of delivery of the cars on .the part of the plaintiff. From time to time, during the period covered by the claim, large numbers of cars consigned to the defendant were delayed in transit by the plaintiff, and then the accumulations of such delayed cars were from time to time delivered all at once upon the tracks of the plaintiff outside the defendant’s property. These tracks have “ dead ends,” and deponent avers that as some of these cars were being taken into defendant’s property with all due diligence, fresh consignments of cars arrived, and were run by the plaintiff upon the tracks in question, thus cutting off the defendant from access to the cars which had first arrived, and making it impossible to unload the cars in the order of their arrival. Deponent avers that such delays as occurred were chargeable to the plaintiff’s methods of delivery, and not to default on the part of the defendant.</p> <p>The deponent further avers that the items in the bill of particulars annexed to the plaintiff’s declaration are in so many instances erroneous that the plaintiff’s record, as a whole, cannot be relied upon. The defendant in particular charges that among the cars for which demurrage is claimed are certain cars which were not consigned to the defendant, but were consigned to various independent contractors doing work for the defendant. In many instances the time during which cars are alleged to have been detained by the defendant is incorrectly stated, and in many other instances cars alleged to have been detained were not, in fact, delivered at the defendant’s property until a time subsequent to the time of delivery alleged in the declaration. The defendant will prove at the trial that the particulars respecting delivery, retention, and release of cars as set forth in the declaration are inaccurate and false. The defendant will produce at the trial its own records, carefully prepared under a system adapted to eliminate error, for the purpose of proving that the plaintiff’s records are inadequate as a basis of claim.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 329, Jan. T., 1902, by plaintiff, from order of C. P. No.. 1, Phila. Co., Dec. T., 1898, No. 548, sustaining exceptions to referee’s report in case of Michael McManus v. City of Philadelphia.</p> <p>Exceptions to report of George W. Harkins, Esq., referee.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in sustaining exceptions to referee’s report.</p>

<p>Appeal, No. 188, Jan. T., 1901, by Heller, Hirsh & Company, from decree of C. P. No. 2, Phila. Co., March T., 1898, No. 688, dismissing exceptions to auditor’s report in case of William H. Rhawn and Charles E. Pancoast v. Edge Hill Furnace Company.</p> <p>Exceptions to report of J. E. Carpenter, Esq., auditor.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 250, Jan. T., 1900, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1896, No. 430, on special verdict for plaintiff in case of Standard Sewing Machine Company v. The Royal Insurance Company of Liverpool.</p> <p>Assumpsit on a policy of fire insurance. Before Wilt-bank, J.</p> <p>The special verdict is quoted in the opinion of the Supreme Court.</p> <p>When George H. Bedient, a witness for plaintiff, was on the stand, he was asked this question:</p> <p>“ Q. What would it have cost you to have replaced those machines, or to have put as good machines of the same kind into that building in the same condition, with all the appurtenances, connections and appliances connected with them if you were going to replace the same with material of like kind and quality? ”</p> <p>Objected to, objection overruled, exception noted for defendant. [1]</p> <p>“ A. Am I required to answer that as a manufacturer, or as a purchaser in the market ? Q. As purchaser in the market— knowing market values. A. Market value, I think that it would cost me $1,727.”</p> <p>Mr. Barlow: I object to the question and the answer.</p> <p>The Court: “ Q. Are we to understand you as saying that $1,727 would represent the cost of restoration or replacing of these machines from the open market according to market value? A. That is my answer; yes, sir.”</p> <p>Objected to, objection overruled, exception noted for defendant. [2]</p> <p>Verdict for plaintiff for $1,747, and judgment on the special verdict. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence; (11) in entering judgment on the special verdict.</p>