Volume 202 — Pennsylvania State Reports

Appeal, No. 227, Jan. T., 1901, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1900, No. 1187, refusing to take off nonsuit in case of Kate R. Butcher v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Biddle, P. J. The facts appear by the opinion of the Supreme Court.

<p>Partnership — Evidence—Action—Parties.</p> <p>In an aciion upon a policy of insurance against several individuals as “ copartners, lately trading as the Guarantors of Pennsylvania, U. S. A.,” a nonsuit is properly entered where it appears that the policy was signed by the general managers of the association, and not by the individual members of it, and there is nothing in the evidence to show that the defendants were members of the partnership designated, or any other partnership limited or general, or that there was any business relations whatever between the defendants. In such a case the fact that the names of the officers are printed on the back of the policy does not establish even the official relations of the parties to the association; much less does it show that they were interested as individuals or partners in the association.</p> <p>Practice — Assignments of error — Nonsuit.</p> <p>Where the only error assigned is the refusal to take off a nonsuit, the Supreme Court will not consider rulings of the court below, excluding testimony offered by the plaintiff and not assigned for error.</p>

Appeal, No. 265, Jan. T., 1901, by plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1898, No. 899, dismissing bill in equity in case of John Gribbel v. Martha A. Brown. Bill in equity for an account. Sulzberger, J., filed the following opinion: 1. The realty particularly described in the first paragraph of the bill was on January 20,1894, vested in Earnest L. Harris in fee simple.

<p>Trade-mark — Partnership name — License.</p> <p>While a mere license without consideration is determinable at the pleasure of the licensor, this is not the rule where the enjoyment of the license must necessarily be, and is, preceded by the expenditure of money. In such eases the license becomes an agreement on a valuable consideration and is irrevocable.</p> <p>Where a mother purchases at sheriff’s sale the property of a partnership, composed of her two sons, and the sons authorize their mother to use the firm name, which at the time is valueless, in the continuation of the business, and the mother by the expenditure of large sums of money and the application of proper business methods, makes the business a success and gives the partnership name a value which it did not possess at the time she began to use it, neither of the sons can, after the expiration of four years, maintain a bill in equity to enjoin their mother from further using the name.</p>

<p>Criminal law — Adulteration of food — Act of June 26, 1895, P. L. 317.</p> <p>The Act of Judo 26, 1895, P. L. 317, entitled “ An act to provide against tiie adulteration of food and providing for the enforcement thereof,” as properly construed, prohibits the addition to a food product of any foreign substance poisonous or injurious to health, regardless of the quantity used, or whether or not the quantity of the substance used was sufficient to make the adulterated article poisonous or injurious to health. It is not the quantity, but the nature of substance added which the act prohibits.</p> <p>On the trial of an indictment for the sale of a pint of raspberry syrup alleged to contain salicylic acid which was charged and proven to be poisonous or injurious to health, the court excluded testimony offered by the defendant to prove the quantity of acid present, and to prove that in fact the quantity used was entirely harmless and not poisonous or injurious to health, and charged that the jury might convict if they found salicylic acid present in any quantity. The jury returned a verdict of guilty. Held, that the conviction should be sustained.</p> <p>Gonstituiional law — Police power — Pure food law — Act of June 26, 1895, P. L. 317.</p> <p>Section 7 of the Act of June 26, 1895, P. L. 317, known as the pure food law does not offend against any provision of the constitution of Pennsylvania, and is a proper exercise of the police power of the state.</p> <p>It is within the province of the general assembly to determine whether the addition of a poisonous or injurious substance to a food article endangers the health of the citizens of the state who use the compound, and if it does, then it is clearly within the police power of the state to prohibit the manufacture and sale of the adulterated article as well as to protect the public from imposition or fraud in the sale of it. The exercise of such authority by the legislative department of the government does not transcend the constitutional limit of its power.</p>

<p>Appeal, No. 145, Jan. T., 1901, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1896, No. 381, on verdict for defendants in case of Mary C. Edwards, Administratrix of Edward B. Edwards, Deceased, v. Benjamin Cimbel et al., trading as Cimbel Brothers.</p> <p>Trespass to recover damages for personal injuries. Before Me Michael, J.</p> <p>At the trial the evidence for the plaintiff tended to show that William B. Edwards was knocked down and run over by a wagon of the defendants on January 29, 1896, while Edwards was crossing Seventh and Market streets in the city of Philadelphia. Edwards brought an action of trespass of March 3 3, 1896, and died on August 4,1897. His widow, Mary C. Edwards, was then substituted as plaintiff on the record. The case was tried three times; first, on October 14, 1897, when there was a verdict for plaintiff for $10,000, second, on October 31,1898, when there was a verdict for plaintiff for $1,000. The third trial was on November 31,1900. At the third and present trial, the following offer was made :</p> <p>Mr. Gordon, for plaintiff, offers in evidence so much of the record in this case as shows the notes of testimony of the witness Hilles in the former trial to which his attention was particularly called.</p> <p>Mr. Gordon: My offer is to show by the notes of the testimony signed by his honor, the trial judge, that the witness did at a former trial testify that his wagon run over the shoulder of Mr. Edwards and that he was knocked down and that at least one wheel passed over his shoulder; for the purpose of contradicting the witness Hilles in his testimony now and also contradicting him when his attention was specifically called to this matter on his cross-examination.</p> <p>Objected to.</p> <p>The Court: I think you could prove that he said so and so if the record were competent. I exclude the excerpt of the evidence on the ground that you cannot offer part of a record, and that you cannot in this case offer all the testimony.</p> <p>Mr. Gordon: I offer all the testimony of this witness.</p> <p>The Court: I exclude it. My ruling is on the competency of the evidence. I think you are entitled to contradict the witness by competent evidence, but I do not regard an excerpt taken from the bill of exceptions in the prior case as competent evidence. [1]</p> <p>Exception for plaintiff.</p> <p>Mr. Gordon : I offer to read so much of the coroner’s certified notes as refers to the testimony of the witness Hilles, on the subject of whether the wagon of the defendants had or had not run over the shoulder of Edwards.</p> <p>Objected to. Objection sustained. Exception for plaintiff. [3]</p> <p>Mr. Gordon: I also offer on all three of those propositions to read the testimony of the witness Sullivan upon the subject, whether the wheels of the wagon ran over the body of Edwards, to show that he testified differently at another time from what he testified in this trial.</p> <p>Objected to. Objection sustained. Exception for plaintiff. [4]</p> <p>The court charged in part as follows :</p> <p>[Now, gentlemen of the jury, you heard the witness John J. Nestor examined and cross-examined, and you have heard the testimony which has been produced to impeach his character for veracity. It is for you to say whether you believe or disbelieve Nestor. That is your function and duty and you must discharge it fearlessly and honestmindedly. But as a trial judge, I instruct you that if you disbelieve Nestor, there is not sufficient evidence upon which you can find a verdict for the plaintiff.] [7]</p> <p>Defendant’s points were as follows :</p> <p>The plaintiff cannot recover damage for the death of said Edward Edwards, because it appears that his death did not ensue within a year and a day after January 29,1896, the date of the alleged accident. You must take it as a presumption that cannot be rebutted, that the death was not caused by violence or injury. Answer: As to the first proposition, I affirm this part of it. The plaintiff cannot recover damages for the death of the said Edward Edwards. The reason following in the point I neither affirm nor disaffirm. [8]</p> <p>The plaintiff cannot recover damages for the death of the said Edward Edwards, because damages therefor are not claimed in the amended statement of plaintiff’s claim filed in this cause. Answer: That is affirmed. [9]</p> <p>[For the sake of review, I shall endeavor concisely to give my reasons for affirming those two points in behalf of the defendants. This, being an action brought by the administratrix, is an action brought for the estate of the dead man, and is not an action brought by the widow for the death. The latter has a separate and statutory action.] [10, 11]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 3, 4) rulings on evidence as above; (5, 6) in permitting the witness Garrett to refresh his memory from a memorandum; (7-11) above instructions, quoting them.</p>

Appeal, No. 320, Jan. T., 1901, by-plaintiff, from order of C. P. No. 4, Phila. Co., Sept. T., 1901, No. 115, dissolving foreign attachment in case of Meta J. Woodv. The Virginia Hot Springs Company. Foreign attachment.

Appeal, No. 82, Jan. T., 1901, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1899, No. 726, on verdict for plaintiff in case of William C. Raugley and Lillie A. Raughley v. West Jersey & Seashore Railroad Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 220, Jan. T., 1901, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 427, on verdict for plaintiff, in case of Elizabeth Rowland and William Rowland v. City of Philadelphia, William C. Watson and David Perna.</p> <p>Trespass to recover damages for personal injuries. Before Brégy, J.</p> <p>The facts appear by the opinion of the Supreme Court. Verdict and judgment for Elizabeth Rowland for $1,700. For William Rowland for $200. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

Appeal, No. 195, Jan. T., 1901, by plaintiff, from order of C. P. No. 4, Pbila. Co., June T., 1896, No. 60, refusing to take off nonsuit in case of Jacob T. Smith v. Philadelphia Traction Company. Trespass to recover damages for personal injuries. Before Audeneied, 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. 58, Jan. T., 1901, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1897, No. 1384, on verdict for plaintiff, in case of John Welsh and Mary Welsh by her father and next friend, John Welsh, v. Alfred L. JButz. Trespass to recover damages for personal injuries. Before McCarthy, J. The facts are fully stated in the opinion of the Supreme Court.

<p>Waters — Deed—Grant—Reservation—Trespass.</p> <p>In an action of trespass for the alleged wrongful use of the waters of a spring, where it appears that both plaintiff and defendant derived title from a common grantor, and that in defendant’s deed there is a grant of all the waters of a spring for the use of a gristmill on defendant’s land, and in plaintiff’s deed there is a reservation of all of the waters of the spring for the use of said gristmill, the defendant has no right to use any of the waters of the spring for domestic purposes: and in such a case it is immaterial that the defendant used only a small quantity of the water for domestic purposes, and especially so where it appears from the size of the pipes that he did not intend so to restrict himself in the future.</p>

Appeal, No. 301, Jan. T., 1901, by defendant, from order of C. P. Delaware Co., Dec. T., 1900, No. 217, discharging rule to quash foreign attachment in case of Edward T. Bellah, to use of Thomas S. Bellah, to use of Charles F. Sherburne v. Millard T. Poole. Rule to quash writ of foreign attachment. The facts appear by the opinion of the Supreme Court. Error assigned was the order of the court.

Appeal, No. 160, Jan. T., 1901, by plaintiffs, from order of C. P. No. 1, Pbila. Co., Sept. T., 1900, No. 1181, making absolute a rule to strike off warrant of attorney, and to stay proceedings in case of Jacob G. Fisler to use of Mary S. Leech and David C. Leech, Surviving Trustees under will of William. F. Leech, v. A. J. Reach and Benjamin F. Shibe. Rule to strike off warrant of attorney.

<p>Road law — Damages—Allowance for delay — Interest—Province of court and jury.</p> <p>Where interest is recoverable of right a jury may be instructed to give it, but in a proceeding to open a street, where additional damages in the nature of interest may be allowed as compensation for delay of payment, it is not the province of the court to direct their allowance. Whether they should be allowed depends upon circumstances, and must be determined by the jury as other elements of damage are.</p> <p>Practice, O. P. — Trial—Appeal—Harmless erroi — Road law.</p> <p>Where there has been a fair and careful trial, an objection raised for the first time in an appellate court should not lead to a reversal, unless it is a serious one, and affects the merits.</p> <p>Where a trial judge has carefully explained the distinction between the allowance of interest as such, and the allowance of additional damages in the nature of interest as compensation for delay in payment, a further statement, not objected to at the time, that if the jury should find for the plaintiff they should allow damages for the delay in payment, while technically erroneous, is not ground for reversal, and this is especially so where the amount of the verdict shows that the defendant suffered no substantial harm.</p>

Appeal, No. 10, Jan. T., 1902, by plaintiff, from order of C. P. Lebigh Co., April T., 1901, No. 1, refusing to take off nonsuit in case of John R. Jones and Elizabeth R. Jones v. Lehigh and New England Railroad Company and Henry Bittner. Trespass to recover damages for death of one of plaintiff’s children, and injuries to another.

<p>Appeals, Nos. 249 and 250, Jan. T., 1901, by William Shill, William W. Still, Frances E. Still and Dr. Caroline Y. Anderson, from decree of O. C. Delaware Co., dismissing exceptions to auditor’s report in Estate of Catherine Watts, Deceased.</p> <p>Exceptions to report of H. J. Makiver, Esq., auditor.</p> <p>From the record it appeared that Catherine Watts died on March 29,1896, widow and without issue, leaving a will which was as follows :</p> <p>“ I, Catherine Watts, clothed in my right mind and desiring to make my last will and testament in order to arrange my temporal affairs before leaving the world, now do in God’s name, appoint my uncle and friend Wm. Still, my executor, to see that I am decently buried by the side of my dear husband, and that my doctor expenses with funeral and all other are duly paid. Also 1 desire that my adopted daughter Beulah shall be continued in school until she is eighteen years of age or longer if required to graduate and for this purpose I give and bequeath one hundred and fifty dollars annually considering this amount will be sufficient to meet all necessary demands for clothing, books and board, trusting that she may by these advantages be educated into habits of economy, thrift and frugality, and at the age of twenty-one years if she proves herself a worthy young woman, 1 give and bequeath to her one hundred and fifty dollars in cash.</p> <p>“ I also desire the remainder of my estate to be disposed of in accordance with the judgment and advice of my executor Wm. Still.”</p> <p>The account of Wm. Still, executor, was filed in the orphans’ court, showing, after the payment of the debts and expenses, a disposition of the estate to Frances E. Still and Caroline V. Anderson.</p> <p>A petition of C. I. Wilson, guardian of Beulah Watts, a minor above the age of fourteen, was presented to the court, setting forth that the said Catherine Watts left to survive her an adopted daughter, Beulah Watts, and a brother, Peter Still, who are heirs to the estate.</p> <p>That the said executor, William Still, filed an inventory and an account, and after the payment of three legacies not mentioned in the will, and of which the above named persons were not beneficiaries, he appropriated the balance, according to his account to himself.</p> <p>The petitioner prayed the court to appoint an auditor to distribute the balance in the hands of the accountant, among the parties legally entitled thereto.</p> <p>The auditor awarded the remainder of the estate to Peter Still, the brother of testatrix.</p> <p>Exceptions to the auditor’s report were dismissed by the court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Gift — Confidential relation — Bona fides — Equity.</p> <p>On a bill in equity against an executor to compel the satisfaction of a mortgage, alleged to have been given by the testatrix to the plaintiff, where it appears that the relation between the plaintiff and the testatrix was simply that of sisters, the plaintiff is not called upon to. establish the bona fides of the alleged gift.</p> <p>Gift — Bond and mortgage — Reservation of interest.</p> <p>Where one person gives to another the principal of a mortgage debt, and delivers at the same time the bond and mortgage securing the debt, the gift is not rendered invalid by the fact that the donor says to the donee at the time of the delivery of the papers, “All I ask is that you pay me four per cent interest while I live, and then it is yours when I die.”</p>

<p>Statute of limitations — Wrongful act of transfer agent.</p> <p>Where the transfer agent of the commonwealth wrongfully transfers loans of the commonwealth, the statute of limitations, in the absence of concealment, runs from the date of the commission of the wrongful act, and not from the time that it was discovered.</p>

Appeal, No. 53, Jan. T., 1901, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1899, No. 818, refusing to take off nonsuit in case of John H. Pieper v. Union Traction Company. Trespass to recover damages for personal injuries. Before Audenbied, J. The opinion of the Supreme Court states the case. Error assigned was in refusing to take off nonsuit.

<p>Appeal, No. 149, Jan. T., 1901, by plaintiff, from order of C. P. No. 8, Pbila. Co., June T., 1900, No. 948, refusing to take off nonsuit in case of Robert S. Keenan v. Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before McCarthy, J.</p> <p>The opinion of the Supreme Court states the case.</p>

<p>Mechanic' slien — Revival—Terre-tenant—Act of May 16,1895, P. L. 84.</p> <p>The provision in the Act of May 16, 1895, P. L. 84, that the terre-tenant whose deed for land bound by a mechanic’s lien has been recorded, must be named in the scire facias if the lien is to continue against the premises, is a requirement that he be so named in a writ issued within the five years from the date of the filing of the lien. After the expiration of that period the lien is gone, and no writ then issued can revive it.</p> <p>Where a lien was filed on June 18,1892, and a scire facias to revive was issued on May 24, 1897, without naming terre-tenants whose deeds had been recorded, the addition of the names of such terre-tenants on June 20, 1897, is ineffectual against such terre-tenants, and upon motion their names will be stricken from the writs and the service upon them set aside.</p> <p>Constitutional law — Mechanic's lien — Title of act — Amending act — Act of May 16, 1895, P. L. 84.</p> <p>The Act of May 16, 1895, P. L. 84, entitled “ An act relating to writs of scire facias upon mechanics’ liens requiring the same to be indexed upon judgment dockets, and requiring terre-tenants to be made parties thereto,” does not offend against section 8, article 8 of the constitution of Pennsylvania relating to the titles of statutes ; nor does the act of May 16, 1895, offend against the constitution, because it amends a prior act without reenacting or republishing the same.</p>

Appeal, No. 113, Jan. T., 1901, by plaintiff, from orders of C. P. No. 1, Phila. Co., June T., 1892, M. L. D. 209, making absolute rules to strike off names of terretenants and to set aside tbe service of scire facias on terre-tenants in case of James Hood to use of Joseph McCloskey v. Albert E. Norton, Sallie W. Howes, Louisa E. Smith, Ellery B. Folger, Henry Tatnall, Howard B. Arrison and Mary E. Hugbes.

Appeal, No. 114, Jan. T., 1901, by plaintiff, from orders of C. P. No. 1, Phila. Co., June T., 1892, M. L. D. 210, making absolute rules to strike off names of terretenants and to set aside the service of scire facias on terre-tenants in case of James Hood to use of Joseph Y. McCloskey v. Albert E. Norton, Mary S. Chain, Executrix of Hugh Chain, Jr., J. Catherwood Robinson, Lydia Smith, Augustus Sommers and Emma McClellan.

<p>Master and servant — Presumption of periodicalpaymenis — Wages—Housekeeper.</p> <p>A person is a servant within the ruling that her services were presumed to have been periodically paid where it appeared that after she had entered her employer’s service she complained that the place was lonely, that he thereupon agreed to pay her at the rate of $5.00 a week for an indefinite term of service, that she remained in the employment for seven years, that she worked about the house, did the cleaning, tended the house, cooked occasionally, tended defendant’s bar, helped to do washing and ironing, and nursed her employer when he was ill. In such a case it is immaterial that the claimant was occasionally assisted by other servants, that the occupants of the house, except on rare occasions, consisted only of her employer and herself, and that certain of the witnesses spoke of her as a housekeeper.</p> <p>The term housekeeper has reference to services performed in the taking care of a house in connection with the inmates residing therein, but exactly what special and particular duties are to be regarded as embraced within the term must always be decided by the duties which are actually performed under the agreement as made.</p> <p>Where a person serves in the capacity of a domestic servant, and no demand for payment of wages is made by the servant, for a considerable period after such service has terminated, the inference is, either that the wages have been paid, or that the service was performed on the footing that no payment was to be made.</p> <p>Wages for domestic service are presumed to be paid at the periods customary at the time and in the neighborhood, and claims for such wages for an unusual length of time, and especially those not made until after the claimant has left the service must be supported by affirmative proof that they have not been paid.</p> <p>In an action by a servant to recover weekly wages at the rate of $5.00 per week for over six years and six months’ services, the plaintiff acknowledged that she had received $100. There was no evidence that she was the owner of any property, or had an income sufficient to support herself aside from her earnings as a servant. It appeared that the master kept a book account of his business transactions, and that he paid his debts. Ro demand was made by the plaintiff until nearly eleven months after she left the service. Held, that the evidence was not sufficient to rebut presumption of payment.</p> <p>Practice, O. P. — Affidavit of defense — Purpose of affidavit — Master and servant.</p> <p>The sole purpose of an affidavit of defense in the absence of a rule of court on the subject, is to meet the plaintiff’s demand by the allegation of a sufficient legal defense, and thereby to prevent a summary judgment.</p> <p>In the absence of a rule of court restricting a defendant on the trial of a case to the matter set up in the affidavit, the effect of an affidavit of defense cannot be extended to the admission of allegations in the statement not denied in the affidavit, nor of matters not averred in it.</p> <p>In an action on an alleged contract of hiring as a housekeeper, an affidavit of defense denying the alleged contract and any indebtedness on account thereof, will not prevent the defendant in the absence of a rule of court on the subject, from showing payment under the pleas of non assumpsit and payment, although the plaintiff may have established at the trial the existence of a contract of hiring.</p>

<p>Vendor and vendee — Agreement for sale of farm — Acreage.</p> <p>Where an agreement for the sale of land calls for a farm containing about seventy-seven acres of land, and contains repeated references to the property as the “farm,” and there is no stipulation for a survey, or any provision that payment should be made for the actual contents, when thus ascertained, and there is no evidence of bad faith on the part of the vendor, and the purchaser is familiar with the premises and the boundaries, he cannot claim an abatement of the purchase money because a survey showed that the tract fell short by over six acres.</p>

<p>Sheriff’s sale — Acknowledgment of deed — Irregularities.</p> <p>The acknowledgment of a sheriff’s deed is a judicial act, and it concludes all mere irregularities, however gross, in the process and sale. After acknowledgment the validity of the title acquired by the purchaser cannot be questioned in a collateral action involving the title, except for the absence of authority or the presence of fraud in the sale.</p> <p>Execution — Sheriffs sale — TestatumJi. fa. — Recording writ in prothonoiarg's office.</p> <p>Where property has been sold by the sheriff under a testatum fi. fa., and a sheriff’s deed has been duly acknowledged, the validity of the deed cannot be attacked as against the purchaser by the trustee in bankruptcy of the defendant in the execution, because the writ of testatum fi. fa. had not been delivered to the prothonotary of the county where the land was situated, and by him entered of record as required by the Act of June 16, 1836, P. L. 775. The failure to record the writ in the prothonotary’s office was a mere irregularity, cured by the acknowledgment of the deed.</p> <p>Execution — Testatum fi. fa. — Authority of sheriff to sell land — Act of June 16, 1836, P. L. 775.</p> <p>Under the Act of June 16, 1836, P. L. 775, the sheriff has authority to sell land situated in his county under a testatum fi. fa. issuing out of the court of common pleas of another county.</p> <p>Bankruptcy — National bankruptcy act of 1898, sec. 67 (f) — Sale of land —Judgment—Act of bankruptcy.</p> <p>Section 67 of the national bankruptcy act of 1898, relating to levies, judgments, attachments or other liens obtained within four months prior to bankruptcy proceedings, applies to a voluntary bankrupt. The words “ against him” used in the section are explained by the 1st section of the act, which says: “A person against whom a petition has been filed shall include a person who has filed a voluntary petition.”</p> <p>Bankruptcy — Judgment — Execution — Act of bankruptcy— Testatum fi. fa.</p> <p>Although execution may issue within four months prior to proceedings in bankruptcy, on a judgment entered prior to four months, against land situated in the county in which the judgment was entered, the same rule does not apply to a testatum fi. fa., inasmuch as it is only through the lat'ter writ that a lien is created on real estate situated in another county. If, therefore, the testatum fi. fa. is issued within four months of the filing of the petition in bankruptcy, it creates a lien which is invalidated by the bankrupt act; and such a lien is avoided, whether it is a statutory lien created by the recording of the testatum fi. fa. in the office of the prothonotary of the county in which the land is situated, or whether it is a common-law lien incidental to the seizure of the real estate under the execution.</p> <p>In an action of ejectment by a trustee in bankruptcy against a person who has purchased the bankrupt’s land under a testatum fi. fa. issued within four months of the filing of the petition in bankruptcy, the defendant in order to give validity to his title must show that he is within the proviso to the clause of the bankrupt act which protects a bona fide purchaser for value, who acquires the real estate of a bankrupt without notice of his insolvency or reasonable cause of inquiry. This is a question of fact, and necessarily for the decision of the jury.</p>

<p>Insurance — Life insurance — Beneficiaries—“ Holder.”</p> <p>A policy of life insurance provided thaL the proceeds of the policy should be paid to the wife if she survived her husband, or iu the event of her prior death to the children, but if the insured survived wife and children then to his legal representatives “t,he balance of the year’s premiums .... and any other indebtedness to this company either on the part of the insured or assured, being first deducted therefrom.” Another clause was as follows: “This policy may be converted into cash at the option of the holder at any time after the expiration of fifteen years from the date hereof, for the amount indorsed on the back of this policy, corresponding to the age of the insured at the time of such conversion, provided that the policy shall have been first paid up by the payment, of ten full annual premiums.” After ten full annual payments had been made and when children wore living, the husband and wife joined in an assignment of the policy, and the assignee demanded the cash balance on the ground that he was the “ holder” of the policy. His demand was refused on the ground that the children had an interest. Held, (1) that not only the wife, but the children of the insured were the beneficiaries or “ holders” of the policy; (2) that neither the husband, nor the wife, nor both together had power to destroy the vested interest of the children in the policy; (3) that the demand of the assignee of the wife was properly refused.</p>

<p>Appeal, No. 300, Jan. T., 1901, by-defendant from judgment of C. P. Delaware Co., Sept. T., 1899, No. 200, on verdict for plaintiff in case of Emil O. Haas v. Chester Street Railway Company and the Chester Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for 14,100. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Appeal, No. 383, Jan. T., 1901, by-defendant, from judgment of O. & T. Lebanon Co., June T., 1901, No. 1, on verdict of guilty of murder in the first degree in case of Commonwealth v. George Clarence Washington.</p> <p>Indictment for murder.</p> <p>From the record it appeared that the prisoner was indicted for the murder of Jacob Schmidt on May 4, 1901.</p> <p>The court charged in part as follows:</p> <p>[In this case there is no evidence that the offense was committed by means of poison or lying in wait, or in the perpetration or attempted perpetration of any arson, rape or burglary, and we have therefore only to deal with murder described in the act of assembly as wilful, deliberate and premeditated, or which shall be committed in the perpetration or attempted perpetration of robbery. Unless, therefore, the offense was committed in the perpetration or attempted perpetration of robbery, — and the district attorney says he does not ask you to say that this murder was committed in the attempted perpetration of a robbery, — therefore to constitute murder in the first degree in this case the act must have been done voluntarily.] [1]</p> <p>* * * * * * * *</p> <p>[The law in the state of Pennsylvania is that when the killing is admitted, or proven, and insanity or the want of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act.] [2]</p> <p>[If you believe the testimony of these witnesses, that the defendant confessed the crime, confessed that he killed Schmidt in the manner in which they detailed that he said that he killed him, then we say to you that the evidence warrants you to find the defendant guilty of murder in the ’ first degree. If it is true, as these witnesses say, that the defendant confessed to them, and that the defendant actually did kill Schmidt in the manner in which he did confess to these witnesses, if he did so confess, that when Schmidt came in that he simply ordered him out, that he picked up his pick handle and knocked him down, and when Schmidt made this remark that he should strike him another time, and then he picked up the hammer and gave him five more strokes, either of which, one of the physicians testified, at least, would have killed, then we say to you, you would be justified in finding him guilty of murder in the first degree.] [3]</p> <p>********</p> <p>[Raber, I think, testified that Schmidt came to this shanty on the morning of May 4, and when he came in he ordered him out, and that he then picked up this pick handle and struck him on the head.] [4]</p> <p>********</p> <p>[All homicides, felonious homicides, are presumed to be murder of some degree and unless the defendant testifies to some extenuating circumstances that reduces the crime lower than murder of some degree, you are not justified in finding manslaughter. Now in this case there is no attempt to reduce the homicide by the defendant. He absolutely denies the homicide. Therefore; he does not explain or does not ask that there should be extenuating circumstances in this case to reduce it to manslaughter. If you find that there was killing, then you have no evidence on his part to say that the offense ought to be reduced below murder. As I have said before, the presumption when a felonious homicide is committed is that it is some degree of murder.] [5]</p> <p>[If you have a reasonable doubt as to his guilt in the first degree, but think he is guilty of murder in the second degree, then you find him guilty of murder in the second degree.] [6]</p> <p>The court answered the question of a juror, as follows: [The difference is in first degree murder there must be premeditation, there must be an intention to kill. In second degree murder that is not necessary that there is an intention to kill. In first degree murder there must be a consciousness of the party who commits the deed that he intends to commit murder, It makes no difference how short the time may be in which he makes up his mind to kill, if he does make up his mind to kill, it is first degree murder.] [7]</p> <p>Verdict of guilty of murder in the first degree upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-7) above instructions, quoting them.</p>

<p>Judgment — Opening judgment — Discretion of court — Evidence.</p> <p>An application to open a judgment entered on a warrant of attorney is addressed to the equitable powers of the court, and on appeal the question is whether there had been a rightful exercise of discretion. The measure of proof required to send a case to the jury cannot be defined by rule, but it may be said that while a mere conflict of evidence is not generally sufficient, the defendant should be allowed a trial where he has shown by a preponderance of evidence, sufficient to sustain a verdict in his favor, that he has a just defense.</p> <p>A rule to open a judgment entered on a bond against two sureties should be made absolute, where it is shown that as to one of the sureties the signature was not genuine and there is no testimony that he authorized any one to sign the bond for him, and that as to the other surety, all the members of his family testified that the alleged signature was a forgery, and there was no evidence that any one saw him sign the bond, or knew that he had ever been asked to sign it, and no one testified that the signature was his.</p>

<p>Insurance — Life insurance — Waiver—Payment of first premium.</p> <p>A life insurance company may waive a stipulation, made solely for its protection, that no liability shall attach until the first premium is actually paid to it, or to its authorized agent, and its general agent may bind it in this regard.</p> <p>Insurance — Life insurance— Condition of delivery of policy — Payment of first premium.</p> <p>The question whether there has been an absolute delivery of a policy of life insurance to take effect at once, or only a conditional delivery with the understanding that the policy which was on the life of an agent was not to go into effect until the premium had been earned, is a question for the jury.</p> <p>Insurance — Life insurance — Payment of first premium — Policy on agent's own life.</p> <p>An action may be maintained and a recovery had on a policy of life insurance on which the first premium had not been paid, where it appears that the insured had been appointed a local agent of the company, and the policy was delivered to him, under the agreement that the commissions which he should earn should be applied by the company to the payment of the premium, notwithstanding the fact that he never earned any commissions.</p> <p>Brady v. Northwestern Masonic Aid Assn., 190 Pa. 595, distinguished.</p>

<p>Appeal, No. 345, Jan. T., 1901, by plaintiff, from decree of C. P. Schuylkill Co., July T., 1901, No. 4, on bill in equity in case of David A. Jones v. The Schuylkill Light, Heat & Power Company.</p> <p>Bill in equity for an injunction.</p> <p>Shay, J., found the facts to be as follows:</p> <p>From the evidence before us, it appears that, for the period of at least twenty-one years, the borough of Girardville has had a system of street lighting. The ordinance book of the borough, offered in evidence, shows, that as early as March 5,1880, an ordinance was passed to prevent the interference with street lights, showing clearly that at that time a system of street lighting was in existence. Again in 1885, we find in the minutes of council, a motion to the effect that the gas company be notified to remove certain pipe so as not to interfere with the borough lights, the minutes also show that at this time, and subsequently, the borough was paying quarterly to the gas company for street lights. Then we have a contract, entered into between the borough and the Girardville Gas Company, to light the streets of the borough with gas for a period of five years, commencing January 1, 1889, and ending January 1, 1894. On November 1, 1895, another contract was entered into between the borough and the Fracbville Light Company to light the streets of the borough of Girardville with electricity for a period of five years. Following this we have the execution of the present contract, which precipitated this suit.</p> <p>At a meeting of the town council of the borough of Girardville, held April 15,1901, the following resolution was passed: “ Whereas, the bid offered by the Schuylkill Light, Heat and Power Company, for lighting the streets of the borough of Girardville, is the lowest and best bid thus far made to us, be it resolved: That we contract with the said company for the illuminating the streets of the borough of Girardville on the terms and conditions in the bid just read, and that as soon as said company comply with the order of court requiring the furnishing of additional bond, the proper officials be instructed to execute the contract under the seal of the borough of Girardville, with the said Schuylkill Light, Heat and Power Company.”</p> <p>This resolution was never presented to the chief burgess and was never signed or approved by him.</p> <p>In pursuance of this resolution, a contract was entered into between the borough and the Schuylkill Light, Heat and Power Company, the material parts of which we have set forth above.</p> <p>Subsequently, on May 31, 1901, an ordinance was passed by the borough council of Girardville, giving to the Schuylkill Light, Heat and Power Company “the right to occupy the streets and highways of the borough of Girardville, with such poles, wires and apparatus as may be necessary for conducting its business.” This ordinance was the general franchise for commercial lighting, etc., sweeping in its terms, and in no place mentioned the former resolution.</p> <p>This ordinance was vetoed by the burgess on June 6, 1901, and at the time of hearing nothing further had been done with this ordinance. Before this ordinance was passed by council, the light company, under the direction of the street committee of the town council, of the borough of Girardville, had been going ahead under their contract and erecting poles, and had erected quite a number when the burgess, on May 27, 1901, notified the said company defendant, to cease erecting poles and to remove the poles already erected. The company ignored this notice, when plaintiff presented his bill to court, a preliminary injunction was granted, which was subsequently discharged on preliminary hearing and the case came up for final hearing and argument. At the time of hearing, one month’s light had been paid by the borough to the light company.</p> <p>The court entered the following decree:</p> <p>And now, November 4, 1901, as to the right of the defendant company to enter the borough and furnish the lights as contracted for and herein above set forth, the court refuses to interfere by injunction, but direct an injunction to issue to restrain the defendant company, its agents or employees from any-attempted furnishing of commercial light, heat or power, or using their poles for any other purposes than those of carrying out their contract for lighting the borough.</p> <p>Error assigned was the decree of the court, quoting it.</p>

<p>Will — Issue devisavit vel non — Testamentary capacity — Evidence.</p> <p>On the trial of an issue devisavit vel non a verdict against the will, will be sustained where the evidence tends to show that the testator was seventy years old at the time he made his will, that he did not understand what property he owned, did not recognize members of his own family, and was manifestly unfit to attend to business.</p> <p>On the trial of an issue devisavit vel non witnesses who were familiar with the testator and state facts as to his mental condition, may give their opinions as to his mental capacity.</p>

Appeal, No. 94, Jan. T., 1901, by plaintiff, from order of C. P. Franklin Co., Dec. T., 1899, No. 125, making absolute rule to quash foreign attachment in case of Isabella F. Mansfield et al., Executors, v. J. D. McFarland. Pule to quash foreign attachment.

Appeals, Nos. 202 and 203, Jan T., 1901, by plaintiffs, from orders of C. P. Northampton Co., April T., 1899, Nos. 33 and 48, refusing to talce off nonsuits in cases of Mary E. Price v. Lehigh Valley Railroad Company and Mary E. Yoxheimer v. Lehigh Valley Railroad Company. Trespass to recover damages for death of plaintiffs’ husbands. The opinion of the Supreme Court states the case. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 12, Jan. T., 1900, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March Term, 1896, No. 788, on verdict for defendant in case of Samuel H. Bell v. Atlantic City Railroad Company.</p> <p>Trespass for malicious prosecution.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court charged in part as follows :</p> <p>There is a point in this case which, I think, without going through the whole case, is the conclusive one, and it is this : That where a man goes to a lawyer, a reputable lawyer, and states his case to him, and the lawyer advises him to bring the prosecution, it is a complete defense to the man for having done so. The law says it is absurd to accuse a man of malice who has submitted his case to a lawyer, and the lawyer has given his opinion that he should bring suit. It is essentially so, not only in an individual but in a corporation. They present their case fairly before an estimable gentleman, in the present case, a gentleman who has been twenty years at the bar in the neighboring state of New Jersey, who appears before us, of the highest character and attainment. He comes before you and states tliat this matter was presented to him and he advised this man it was his duty to take action in this matter, and in consequence of this advice he did so. I say the law is positive and beyond doubt that where a man does that, it absolves him from prosecution. Nothing has been shown here that anything was improperly held from the lawyer when the statement was made to him. Mr. Miller testified that he took all the papers to him and gave him all the information in his power, and after hearing that he formed his judgment; and I think, therefore, that it is a complete defense in this case, and I shall have to take the responsibility myself and direct you to bring in a verdict for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was portion of charge as above, quoting it.</p>

Appeal, No. 290, Jan. T., 1901, by plaintiff, from order of C. P. Lackawanna Co., Nov. T., 1899, No. 748, refusing to take off nonsuit in case of City of Scranton v. E. B. Sturges. Assumpsit to recover the cost of repairing a street.

<p>Appeal, No. 9, Jan. T., 1902, by defendant, from judgment of C. P. Berks Co., June T., 1901, No. 62, on verdict for plaintiff in case of John Barbey v. Mary A. Boardman and Ellen A. Hoffman.</p> <p>Issue devisavit vel non. Before Endlich, J.</p> <p>The opinion of the Supreme Court states the ease.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned, amongst others, was in submitting the case to the jury.</p>

<p>Appeal, No. 362, Jan. T., 1901, by defendant, from judgment of C. P. Chester Co., Aug. T., 1900, No. 10, on verdict for plaintiff in case of C. J. Roberts v. Jacob R. Clemens.</p> <p>Issue devisavit vel non. Before Hemphill, P. J.</p> <p>The opinion of the Supreme Court states tbe case.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Will — Devise—Life estate — Power of sale.</p> <p>There is no repugnance between a devise for a life term, and a super-added power of sale. Both may operate, and when the power is executed, it is, whore it is not otherwise ordered, simply a substitution of one kind of property for another, the estates of those interested remaining the same in the thing substituted.</p> <p>Testator devised real estate to his wife for life with the right in her, however, to use, sell and dispose of any or all of said estate for the use and support of herself and II. He further directed as follows: “ Should my wife die before H. my will is that such portion as shall then remain shall be for the use and support of H., with the right in her to sell and dispose of the same for her maintenance and support, and upon the death of both my wife and H., and after the payment of their funeral expenses, what portion of my estate shall then remain shall vest in and become the absolute property of my sister E., and her heirs.” Held, thatH.'could contract to sell and make a valid title in fee simple to the land passing under the will of testator.</p>

<p>Appeal, No. 326, Jan. T., 1902, by-plaintiff:, from decree of C. P. No. 5, Phila. Co., dismissing bill in equity in case of Philadelphia Ball Club, Limited, v. Napoleon Lajoie et al.</p> <p>Bill in equity for an injunction. Before Ralston, J.</p> <p>From the record it appeared that the defendant was employed by the plaintiff as a baseball player under a contract dated April 18, 1900, the materal portions of which were as follows:</p> <p>5. It is mutually agreed between the parties thereto, that if the said party of the second part shall, at any time during the said term of his employment as aforesaid, without the written consent of said party of the first part, or its assigns, leave the service, or perform service or agree to perform, in the future, services for any other club or organization whatever, or if he shall be guilty of offering, agreeing, conspiring or attempting to lose any game of ball, or if he shall be interested in any pool or wager thereon, he may be expelled by said party of the first part, or its assigns, from its club. Or, if said party of the first part, or its assigns, shall so elect, it may institute and prosecute proceedings in any court of competent jurisdiction, either in law or equity, to obtain damages for any breach of this contract, or to enforce the specific performance thereof by the said party of the second part or to enjoin said party of the second part from performing services for any other person or organization, during the period of service herein contracted for, and nothing herein contained shall be construed to prevent such remedy in the courts, in case of any breach of this agreement by said party of the second part, as said party of the first part, or its assigns, may elect to invoke.</p> <p>17. It is further understood and agreed, that the party of the first, part, or its assigns, may at any time after the beginning and prior to the completion of the period of this contract, give the party of the second part ten days’ written notice of its option and intention to end and determine all its liabilities and obligations under this contract, in which event, upon the expiration of said ten days, all. liabilities and obligations undertaken by said party of the first part, or its assigns, in this contract, shall at once cease and determine; the said party of the second part shall thereupon be also freed and discharged from his obligations hereunder, and shall have no claim for salary or other compensation for any period after said ten days. If such notice be given to the party of the second part while “ abroad ” with the club, he shall be entitled, at or before the expiration of said ten days, to his necessary traveling expenses to the city of Philadelphia. But if this contract shall be so ended and determined by said party of the first part, or its assigns, after the beginning and before the end of the term of employment under this contract, without any fault or neglect of duty on the part of the part}- of the second part, then the said party of the second part shall be entitled to salary or compensation at the contract rate for said ten days in addition to the sum earned and due, and unpaid to him at the time of the giving of notice of termination as aforesaid, whether during said ten days the party of the second part shall be required to perform services, or not, but he may be required to perform services under this contract, during said ten days, at the option of said party of the first part, or its assigns, without affecting the validity or force of such notice.</p> <p>18. In consideration of the faithful performance of the conditions, covenants, undertakings and promises herein by the said party of the second part, inclusive of the concession of the options of release and renewals prescribed in the seventeenth and nineteenth paragraphs, the said party of the first part, for itself and its assigns, hereby agrees to pay to him for his services for said term, the sum of $2,400, payable as follows: in half monthly instalments on the 1st and 15th of each month thereafter, during the period specified in paragraph two; unless the “ nine ” or team of the club should be “ abroad,” for the purpose of playing games, in which event the instalment then falling due shall be paid on the first week day after the return “ home” of the “ nine ” or team.</p> <p>19. It is hereby expressly understood and agreed for the consideration above mentioned, that the party of the first part, or its assigns shall have the option or right to renew this contract with all its terms, provisions and conditions for another period of six months, beginning April 15,1901, and for a similar period in two successive years thereafter, and the said party of the second part hereby agrees to perform similar services and be subject to all the obligations, duties and liabilities prescribed in this contract for the period or periods of such renewal or renewals, provided only that written notice of the exercise of such option of renewal be served upon the said party of the second part prior to the 15th day of October of the current year of this contract and of the current year of and renewal thereof.</p> <p>The plaintiff renewed the contract for the year 1901. In the mean time defendant had signed a contract with the Philadelphia American League Base Ball Club. The qualifications of the defendant as a player are stated in the opinion of the Supreme Court.</p> <p>The court below in an opinion by Ralston, J., dismissed the bill.</p> <p>Error assigned was in dismissing the bill.</p>

<p>Appeal, No. 239, Jan. T., 1901, by-defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1900, No. 39, on verdict for plaintiff: in case of William Hughes and Benjamin F. A. Fleming, trading as Hughes & Fleming, v. Pennsylvania Railroad Company.</p> <p>Trespass for loss of a horse. Before Sulzberger, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Defendant presented these points :</p> <p>That it was lawful in the state of New York for the carrier to limit its liability by a special contract for an injury resulting from its negligence; that said contract having been for a through consignment from Albany to Oynwyd, a place within this state, said contract must be considered in its entirety and is incapable of divisibility; that said contract having stipulated for an agreed valuation of the stock shipped, the parties must be governed by its terms throughout the entire route, as said contract must be interpreted and enforced here by the law of the place where it was made, and within which state it -was partly performed; and that, consequently, the plaintiff is not entitled to recover in excess of the valuation agreed upon by the parties at the time of shipment. Answer: .Refused. [1]</p> <p>2. That the plaintiff is not entitled to recover in excess of $100. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $9,900. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions; (3) in entering judgment in conflict with the act of congress of February 4, 1887, entitled “An act to regulate commerce.”</p>

<p>Appeal, No. 382, Jan. T., 1901, by plaintiff, from order of C. P. No. 8, Phila. Co., March T., 1898, No. 1456, discharging rule to vacate judgment and for a new trial in case of Anna Reading Gazzam v. Elizabeth G. Reading.</p> <p>Rule to vacate judgment and for a new trial.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order discharging rule.</p>

<p>Contract — Performance—Province of court and jury.</p> <p>In au action on a contract for furnishing catalogue covers ornamented with lithographic work, it appeared that after the proof had been submitted defendant wrote to plaintiffs, “The print as now made will be satisfactory if the covers furnished will be equal to these in good effect.” Plaintiffs acknowledged this letter, quoting in effect its terms and stating that they would proceed to print. When the covers were delivered, the defendant found that the plaintiffs had added their imprint. The evidence showed that the defendant had been exceedingly careful in selecting a design for the covers, and was insistent that they should be absolutely satisfactory to him in every particular, and that this was known to plaintiffs. It also appeared that the plaintiffs had intentionally left the imprint off of the proof. Plaintiffs claimed that it was the custom of lithographers to submit proofs without the imprint and to put it on the finished work unless otherwise ordered. The trial judge left it to the jury to determine whether the difference between the proof and the finished work rendered the covers of appreciably less artistic attractiveness and usefulness for the purposes to which the defendant contemplated applying them. Held (1) that the action of the trial judge was error ; (2) that it was immaterial what the custom of the trade was, since it could not defeat the essential terms of the contract ; (3) that the defendant was entitled to binding instructions in his favor.</p>

<p>Appeals, No. 269, Jan. T., 1899, and No. 18, Jan. T., 1902, by M. J. Scanlan, from orders of C. P. Schuylkill Co., May T., 1898, No. 412, and July T., 1899, No. 416, in cases of Commonwealth ex rel. Shenandoah Borough v. M. J. Scanlan et al., and Michael J. Scanlan v. Shenandoah</p> <p>Rule to open judgment.</p> <p>Petition for feigned issue.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned in No. 269, January term, 1899, was order discharging rule to open judgment.</p> <p>Error assigned in No. 18, January term, 1902, refusal to award feigned issue.</p>

<p>Dower — Substitution of property — Account of rents.</p> <p>A widow in her bill for an account of the rents, issues and profits of the real estate of her deceased husband, and for the assignment of her dower, lias a right to include property of which her husband had not died seized, but which had been conveyed to his estate years after his death in consideration of “ other property deeded” to the grantors.</p> <p>Principal and agent — Estoppel—Widow—Decedent's estates.</p> <p>Where a widow permits her son as her agent to collect rents, issues and profits accruing to her from her husband’s estate, she cannot repudiate her son’s agency after his death, and after she discovers that he has squandered or misappropriated what he had collected.</p> <p>Appeals — Auditor's findings of fact.</p> <p>On a bill by a widow for an account of rents, a failure of the master and court below to find as a fact the only thing that could have been found •from the admissions of the widow, will be corrected by the appellate court.</p>

<p>Appeal, No. 374, Jan. T., 1901, by Lackawanna Trust and Safe Deposit Company, Guardian of Rosene Eugenie Tripp, from decree of O. C. Lackawanna Co., No. 239, Series A, dismissing petition for citation in In re Estate of Ira Tripp, deceased.</p> <p>Petition for citation.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing petition for citation.</p>

Appeal, No. 348, Jan. T., 1901, by Ezra H. Ripple and Everett Warren, executors and trustees under the will of Ira Tripp, from decree of O. C. Lackawanna County, No. 239, Series A, sustaining petition for allowance for minor, In re Estate of Ira Tripp, Deceased. Petition for allowance for minor.

<p>Municipalities — Cities of the second class — Collector of delinquent taxes— 'Public officer — Acts of March 15, 1878, P. L. 7, March 7, 1901, P. L. 20, and June 20, 1901, P. L. 586.</p> <p>Under the Act of March 7, 1901, P. L. 20, the city recorder has the right to nominate and appoint a collector of delinquent taxes; and in this respect the act of 1901 supersedes section 5 of the Act of March 15, 1878, P. L. 7, which gave the power to elect a collector of delinquent taxes to the city councils in joint convention.</p> <p>Where a person was duly appointed by the city recorder to the office of collector of delinquent taxes, his right to the office and its emoluments was not affected by an ordinance passed the day after he had taken the oath of office, and given bond, which provided that the “ department of delinquent taxes shall be in charge of one person, who shall be the city treasurer.”</p> <p>Between the passage of the Act of March 7, 1901, P. L. 20, and June 20, 1901, P. L. 586, a person appointed to the office of collector of delinquent taxes in a city of the second class, is entitled to a salary of $5,000 per Year, if councils prior to the appointment had not reduced it to the sum of $2,500.</p>

<p>Appeal, No. 323, Jan. T., 1901, by plaintiffs, from judgment of C. P. Montour Co., Oct. T., 1897, No. 60, on verdict for defendant in casé of Joseph Baran and Margareta Baran, his Wife, v. Reading Iron Company.</p> <p>Trespass to recover damages for personal injuries. Before Little, P. J.</p> <p>At the trial it appeared that on October 8, 1896, plaintiff’s infant daughter, aged about six months, was killed by the explosion of one of the boilers in the defendant’s iron mill. One of the pieces of the boiler was carried into plaintiff’s house, and killed the child when it was in bed.</p> <p>When Frank Hutchinson, a witness for the plaintiff, was on the stand, he was asked the following question:</p> <p>“ Q. Immediately after the accident on October 8,1896, did you have any instructions from your superior as to what to do, so far as the steam check was concerned; in case where a furnace was drawn and not working? A. Yes, sir.”</p> <p>Mr. Scarlet: Objected to as incompetent and irrelevant.</p> <p>The Court: The question was, immediately after.</p> <p>Mr. Scarlet: What is the purpose ?</p> <p>Mr. Hinckley: The purpose of the question is to show that after the accident the waterman was instructed that in all cases where a furnace was drawn and not working, that the steam check should be closed and the boiler disconnected from the steam system. As evidence going to the jury to prove the negligence of the company before the accident.</p> <p>The Court: If it was a part of the transaction that this conversation was had, it may be given in evidence, but we think that counsel for the plaintiff should ascertain how long after the time of the accident this conversation was had before asking the question. Exception noted. Bill sealed for the plaintiff. Do you offer that as part of the transaction, the conversation occurring immediately after the accident ? Fix when the time of this conversation he had with his superior occurred.</p> <p>“ Q. When did Mr. Bevin, your superior, give you orders as to what to do in case of a drawn furnace, as to the steam connections ? ”</p> <p>Mr. Scarlet: How long after? We object to this question as suggesting to the witness what to say. It is a leading question.</p> <p>The Court: If a declaration of this superior officer is a part of the transaction, we think it ought to be admitted, and that is the reason we suggested to you that you should inquire when this conversation occurred.</p> <p>Mr. Hinckley: I will ask this question then:</p> <p>“ Q. Did you receive after the accident, instructions from your superior as to what you were to do, with reference to the steam check and its connections, in case of a furnace that was drawn and not working ?</p> <p>The Court: The declaration made by the servants of this company, after the accident, relative to the alleged defects of these boilers, are not admissible. Those declarations are not part of the res gestae. But if the declarations that you propose to prove are part of the res gestae, then we think that they are evidence, and you can inquire from the witness how long after this accident occurred those statements were made by his superior. We have indicated what we believe to be the rule, and have suggested to you that you should inquire as to the time when this conversation was had between the superior officer and himself.</p> <p>Mr. Hinckley: Your honor will see that I will have to ask whether the conversation did occur.</p> <p>Mr. Scarlet: Do you pretend to say that you don’t know this?</p> <p>Mr. Hinckley: I can’t tell you the precise moment.</p> <p>The Court: We think, judge, you should ascertain the time from the witness privately.</p> <p>Mr. Hinckley: Counsel for plaintiff having shown by the witness upon the stand that at the time of the accident he had no instructions from his superior officer, as to what to do with the steam connections of the boiler with the steam main in case of a furnace that was drawn and not working; propose to show by the witness upon the stand that after the accident it was necessary to shut down the mill and clean the débris and replace the destroyed furnace, and that in consequence the mill was closed down some two or three weeks, and that upon resuming work, the first work that was done after the accident, instruction was given by his superior officer, the master mechanic, that hereafter in all cases where a furnace was drawn that the steam connections should be closed and the boiler disconnected from the steam main. This all for the purpose of showing the negligence in the company in not having given such orders prior; one of the allegations of the plaintiff being that this accident occurred from want of such orders and from want of the disconnection of the boiler from the steam main.</p> <p>Mr.Scarlet: Defendant’s objection is that, if, as counsel stated, this offer is part of the res gestae, we object to it as incompetent and irrelevant. And secondly, that it is not shown nor pretended to be shown that the witness upon the stand was not a competent and careful water tender and knew what was to be done in cases of that kind, without any instructions whatever from any other person, prior to the accident.</p> <p>The Court: The declarations made by the superior officer of the witness upon the stand when he resumed work three or four weeks after the accident occurred, we do not admit as part of the res geste. The objection is sustained. The offer overruled. Exception noted and bill sealed for the plaintiff. [4]</p> <p>Frank Hutchinson recalled for plaintiff.</p> <p>Examined by Mr. Hinckley.</p> <p>Mr. Hinckley: I wish to renew an offer that was made yesterday. I will give the form to the stenographer.</p> <p>It having been shown by plaintiffs’ proof, that the ordinarily safe and prudent thing to have done in case a furnace was shut down, was to cut off the steam connection, and the witness having shown that the waterman in charge of the boiler in question (together with other boilers) had received no orders from his superior as to what to do in such case, and that he had not cut off the steam connection at the time of the explosion; it is proposed now to show by the witness that after the explosion there were required a week or two to clean up the débris and repair the machinery, and that as soon as the mill was again started, after the accident, defendant company issued orders to the waterman that in all cases where a furnace was shut down for repairs the steam connection should be cut off, as plaintiffs’ proof shows should have been done at the time of the accident. This for the purpose of showing a recognition by defendant company of negligence in not having done so before.</p> <p>Mr. Scarlet: It is objected by the defendant that it is not shown, that the witness, proposed to be asked the question, upon the stand, was incompetent in any way to know what to do under circumstances of that kind, and that, therefore, without proof of negligence on the part of the company in hiring an incompetent person to take charge of the water of the mill, this testimony would be irrelevant and incompetent, and would not go to prove the specific act of negligence of the defendant for which this action is brought, and which it is incumbent upon the plaintiff to prove as being the cause of the accident; and it further being shown by the plaintiff in the cause that it was not the cause of the accident, but that an entirely different theory of negligence is asserted, to wit: that the accident occurred by reason of the fact that the boiler broke, with which the action of the waterman or of the fireman or of any one else had no connection whatever; and being an entirely different and distinct cause of the explosion, it is therefore incompetent and not in support of the plaintiff’s theory.</p> <p>The Court: We believe that the proposed offer, if admitted, would tend to show declarations made a couple of weeks after the accident or explosion, by a servant of the company, and for the purpose stated in the offer we do not believe it is admissible in evidence, it being no part of the res gestee. The objection is sustained and the offer overruled. Exception noted for the plaintiff. Bill sealed. [5]</p> <p>George Sandal sworn for plaintiff.</p> <p>Examined by Mr. Hinckley.</p> <p>“Q. Where do you live, Mr. Sandal? A. Mahoning township. Q. What is your occupation? A. Millwright. Q. Did you work at any time at the Reading Iron Company, and if so, when? A. I did. I worked there in 1896. Q. As millwright? A. Yes, sir. Q. What time in 1896 ? A. The whole year of 1896. Q. Did you do any work in replacing the boiler at the furnace where this No. 5 was blown out? A. I did. Q. When ? A. After the explosion. I can’t just remember the exact time. It was several weeks afterward, when they got the boiler ready to put in. Q. Will you tell us how you hung or supported that boiler ? ”</p> <p>Mr. Scarlet: Objected to as incompetent and irrelevant.</p> <p>Mr. Hinckley: We make this offer: Plaintiffs’ proof showing that it was an imperfect support of boiler No. 5 to rest one end upon a nine-inch wall, and suspend the other end by a hanger and bolt, but that a proper support would have been to suspend the boiler from the center; in addition, it is proposed to show by the witness who was the millwright in the employ of the defendant company and who replaced the boiler at the furnace where the exploded boiler had blown out, that after the accident, when boiler No. 5 was replaced by another boiler, that the defendant company did support it by an additional support from the center. This for the purpose of showing a recognition by the defendant company of its negligence in not supporting the former boiler from the center.</p> <p>Mr. Scarlet: That is objected to as being incompetent, because it would not be a recognition of any negligence upon the part of the defendant company. The point to which the evidence would go under the plaintiff’s proof so far would be that the defect in the boiler was a latent defect, only discoverable by the tests to which they subjected it, and not such tests as under the law the defendant company was bound to make; that the defendant company having had this boiler in use for a number of years and operating it up until that time without any damage whatever, was not bound to know even upon the theory of the plaintiff expressed by a so-called expert, was not bound to know that that was negligence in any way at all; and the different hanging of the boiler subsequent to the accident would be no recognition upon the part of the defendant company that it knew or ought to have known the specific negligence which it is incumbent upon them to prove and of the company to have notice of; and it is irrelevant and incompetent.</p> <p>The Court: We feel obliged to sustain the objection and overrule the offer. Exception noted for the plaintiff. Bill sealed. [6]</p> <p>The court charged in part as follows:</p> <p>[Negligence in this defendant company is not to be presumed ; but the burden of proof is upon the plaintiffs to satisfy the jury by a preponderance of evidence, that the defendants are chargeable with negligence.</p> <p>The mere fact of the explosion of this particular boiler on the evening of October 8, 1896, standing by itself, and independent of other facts, is no evidence of the company’s negligence or want of proper care in the use of the boiler. It will be presumed, until the contrary appears, that this company had a care and due regard for the preservation of their own property, the safety of their own employees and others, as well as of themselves.</p> <p>They were at the time of the explosion and before in the exercise of a lawful right, in using and operating steam boilers on their own premises, in the management of this industry. Other facts establishing the fault or negligence of the owners, the defendants, beside the mere fact of the explosion itself, are necessary to be proved, in order to fix a liability for damages.] [7]</p> <p>[Now, if under all the evidence submitted in the cause, you shall come to the conclusion that the plaintiffs have not succeeded in establishing the fact of negligence upon this defendant company by satisfactory evidence and fairly preponderating, bearing in mind that the mere fact of the explosion of this boiler is not in itself evidence of negligence; then the defendant company is entitled to your verdict.] [8]</p> <p>[While the testimony as to the tests made of the pieces cut from this boiler in the stretching machine, and by the cold bending test, was admitted in evidence, the jury should be cautioned that any effect, not contemplated nor warranted by law, should be given to this testimony in that particular.</p> <p>This defendant company, nor no one else using steam boilers, owe a duty, either to their own employees or to third persons, to tear their machinery and boilers to pieces and send them abroad to be stretched and tested, before operating. Such a rule would be unreasonable. We have previously announced the rule as to measure of the duty owners and users of machinery and boilers are required to observe.] [9]</p> <p>Defendant presented these points: '</p> <p>2. Negligence is never to be presumed, and the fact that an accident occurred on October 8, 1896, would not justify the jury in inferring from the fact that an explosion took place, that it was caused by the negligence of the defendant, for the reason that it might have occurred without any fault of the defendant whatever. Answer: Affirmed. [10]</p> <p>3. It is incumbent upon the plaintiffs to prove negligence upon the part of the defendant which resulted in the accident, by a fair preponderance of evidence. Answer: Affirmed. [11]</p> <p>4. The mere fact that an explosion occurred, which caused the death of the infant in this case, is not enough to establish negligence of the defendant company. There must be additional and affirmative proof of the particular negligence which caused the explosion in this case. Answer: Affirmed. [12]</p> <p>5. In this case, as in all other actions for negligence, it was the duty of the plaintiffs to inform the jury explicitly what the negligence consisted in which caused the accident, and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business. Answer: Affirmed. [13]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (4-6) rulings on evidence, quoting the bill of exceptions ; (7-13) above instructions, quoting them.</p>

Appeal, No. 334, Jan. T., 1901, by plaintiff, from judgment of C. P. Berks Co., Sept. T., 1895, No. 65, on verdict for defendant in case of Levi L. Fritch, lately trustee of Floranda Miller, to use of the Pennsylvania Trust Company of Beading, successor to Levi L. Fritch and present trustee of Floranda Miller, v. Citizens’ Bank of Reading.

<p>Negligence — Master and servant — Risk of employment — Defective floor.</p> <p>In an action by a woman against her employer, the proprietor of a laundry, binding instructions for the defendant are proper where the evidence shows that the plaintiff had been employed upon the premises for years; that at the time of the accident she was scrubbing a floor, and that in so doing her foot went through a hole causing the injury; that the floor was usually covered with racks which plaintiff had raised and set aside while scrubbing; that at the time of the accident there was nothing to indicate that the floor was unsafe to walk upon at the place where plaintiff was hui't; and that plaintiff’s statement that the floor gave way and her foot went through, was contradicted by other evidence to the effect that she stepped or slipped through a hole, used for discharging water at that point.</p>

Appeal, No. 344, Jan. T., 1901, by defendant, from judgment of C. P. Monroe Co., Sept. T., 1900, No. 16, on verdict for plaintiff in case of Cicero Gearhart v. Clear Spring Water Company. Appeal from report of viewers.

<p>Negligence — Ice on sidewalk — Condition before and after accident.</p> <p>In an action to recover damages for personal injuries sustained by fa]]ing on ice on a sidewalk, where the evidence of plaintiff is positive that the ice was formed from water which the defendant had negligently permitted to flow from his premises, evidence as to the condition of the premises before and after the accident is immaterial.</p> <p>Negligence — Ice on sidewalk• — Custom,—Evidence.</p> <p>In an action to recover damages for personal injuries sustained by a fall on ice, which the defendant negligently permitted to form on his sidewalk, it is proper to reject testimony to the effect that in the borough where the accident occurred, it was customary to permit water from roofs and waste pipes to flow across pavements to gutters.</p> <p>Obstructions on the footwalks of the streets of a municipality whether created by the accumulation of ice or otherwise, except such as are temporarily permitted for a lawful purpose are a nuisance, and the party responsible therefor is liable to the individual injured by his illegal act. Neither the custom of the citizens nor the acquiescence of the municipality will excuse such conduct.</p> <p>Negligence — Ice on sidewalk — Landlord and tenant.</p> <p>In an action to recover damages for personal injuries sustained by a fall on defendant’s sidewalk, the defendant will not be heard to allege that his tenant, and not he, was liable for the condition of the sidewalk, where the evidence shows that the defendant constructed the pipes which carried the water off the pavement, and that the use of the pipes by the tenant was in conformity with the defendant’s intention when he leased the premises.</p> <p>Negligence — Damages—Physician's services.</p> <p>In an accident case a verdict cannot be sustained where the court permits the jury to estimate the expense of physician’s services incurred by the plaintiff by reason of the injury, where there is no evidence whatever of the value of such services, although the physicians themselves describe the services rendered.</p>

<p>Courts — Jurisdiction—Practice— Time.</p> <p>In all cases in the courts where the authority to proceed is conferred by statute, and where the manner of obtaining jurisdiction is prescribed by statute, the mode of proceeding is mandatory, and must be strictly complied with, or the proceedings will be utterly void.</p> <p>When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice.</p> <p>Practice, C. P. — Trial by court without a jury — Exceptions—Time—Act of April 22, 1874, P. L. 109.</p> <p>Where parties by agreement have dispensed with trial by jury, and submitted the decision of their ease to the court under the provisions of the Act of April 22, 1874, P. L. 109, a party who has not filed exceptions within thirty days after notice of the decision of the court, as provided by the act, cannot thereafter file exceptions, although permitted to do so by the trial court, and this is the ease although the other party has filed exceptions within the thirty days.</p> <p>Mitchell, J., dissents.</p>

<p>Appeal, No. 337, Jan. T., 1902, by defendant, from judgment of C. P. Bradford Co., May T., 1891, No. 610, dismissing exceptions to adjudication in case of Nathaniel C. Harris v. R. A. Mercur, Executor of Ulysses Mercur, Deceased.</p> <p>Assumpsit upon a contractin writing. Before Fanning, P. J., without a jury.</p> <p>The contract upon which suit was brought was as follows :</p> <p>“ Memorandum of agreement, made March 4, 1880, between N. C. Harris of the first part, Ulysses Mercur of the second part, and H. W. Patrick of the third part. Whereas, on or about the day of December, 1879, J. H. Webb, as trustee for said Harris, purchased of J. Welles Hollenback, and also of Edward Welles, certain debts, demands and judgments which each held against the estate of Col. C. F. Wells, Jr., together with all the collaterals either held to secure the payment thereof, and especially a certain contract entered into between said C. F. Wells, Jr., and Asa Packer, bearing the date of October 25, 1865, which said C. F. Wells, Jr., had assigned to said Ellen Wells in her lifetime as collateral; and whereas, said Harris has paid part and secured the payment of the residue agreed to be paid by his said trustee, and the latter had assigned and transferred all the property and claims thus purchased to said Harris. Now, therefore, it is hereby declared and agreed that said Harris holds the same as to the one fourth thereof in trust for Mercur, and one fourth in trust for said Patrick and one half for himself.</p> <p>“ And whereas, the interest belonging to the estate of said C. F. Wells, Jr., in said contract with Asa Packer is about to be sold by the administrator of said Wells estate, and it is understood and expected that said Harris will and shall bid off the same. Now, in case he does, or if bid off by any one of the three parties to this agreement, it shall be held by said Harris in like shares and proportions as the property heretofore purchased, that is, one half for himself and one'fourth for each said Mercur and said Patrick, and in case any other debts of any kind against the estate of said C. F. Wells, Jr., shall be purchased, said Mereur and said Patrick shall each have one-fourth interest or share therein, and each shall pay to said Harris the one-fourth sum he has or may be required to pay therefor, unless the same shall be realized out of the property or claims now or hereafter to come into his hands. It is understood that neither said Mereur nor said Patrick shall in any event be liable for any costs and expenses heretofore contracted or incurred by said Harris in any negotiations or purchases heretofore made in the purchase or settlement of any claim or claims, any further than said Mereur and said Patrick shall each pay the one fourth of the legal expenses necessarily incurred in prosecuting such suit or suits as may be deemed advisable to institute. No settlement or compromise shall be made without the assent of all the parties hereto living. If any be dead, then the assent of those surviving and the personal representatives of those dead.</p> <p>. “In witness whereof we have hereunto set our hands and seals the day and year first above written.”</p> <p>It was found necessary to begin a suit to enforce a claim held by the parties, and Harris advanced the money from time to time necessary to pay expenses. The present action was brought for contribution. The court entered judgment for the plaintiff for an amount found to be due by the estate of the decedent. In this amount was included interest on the advances from the time they were made.</p> <p>Exceptions to the allowance of interest were filed by the defendant, and overruled by the court.</p> <p>Errors assigned were in overruling the exceptions.</p>

Appeal, No. 379, Jan. T., 1901, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1900, No. 454, on verdict for plaintiff, in case of Louisa Glading v. City of Philadelphia. Trespass to recover damages for personal injuries.

<p>Mortgage — Building and loan association — Opening judgment — Evidence.</p> <p>Where the owner of the mortgage junior to a building and loan association mortgage forecloses and buys in the premises, and shortly thereafter judgment is entered against the mortgagee on a suit begun by the building and loan association on its mortgage, the purchaser cannot have the latter judgment opened on the ground that the building and loan association had settled with the mortgagee, and had accepted a new mortgage for a much smaller amount, where the evidence of the secretary of the association shows conclusively that there had been negotiations for such a settlement, but that they fell through when the association discovered the existence of other mortgages on the premises by reason of which the mortgagee could not give to the association a first mortgage in substitution of the one which the association already held.</p>

Appeal, No. 369, Jan. T., 1901, by plaintiff, from decree of C. P. No. 3, Phila. Co., June T., 1901, No. 1504, dismissing bill in equity in case of W. H. R. Lukens and Samuel H. K. Kirkpatrick v. George F. Lasher. Bill in equity for an injunction to restrain the use of a wall. From the record it appeared that the plaintiffs were trustees of the Odd Fellows Temple at Broad and Cherry streets, Philadelphia, and that defendant was the owner of adjoining premises to the east.

Appeal, No. 31, Jan. T., 1902, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1899, No. 259, refusing to take off nonsuit in case of Charles A. Young v. Thomas R. Smith and J. Hayes Gallaher. Assumpsit on a written contract. Before Brégy, J. The opinion of the Supreme Court states the case. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was in refusing to take off nonsuit.

<p>Appeal, No. 44, Jan. T., 1902, by Violet A. I. Huston, from decree of the Superior Court, Oct. T., 1901, No. 12, affirming decree of O. C. Phila. Co., Oct. T., 1898, No. 173, in the estate of Philippa Harrison, deceased.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Superior Court (18 Pa. Superior Ct. 588,1901), by W. Í). Porter, J., was as follows:</p> <p>“ The testatrix died September 28, 1897. Her will was executed October 3, 1896, and there were two codicils dated August 14,1897. The fund for distribution by the court below in this proceeding was a portion of the residuary estate of the testatrix which had been devised to the Pennsylvania Company for Insurance on Lives and Granting Annuities in trust, to invest the same and pay certain annuities out of the income, and the surplus of such income is to be distributed under the following clause of the will: “from the balance, if any of said net income, the trustee shall reserve sufficient to insure the payment of said annuities, and pay over the remainder, until the termination of this trust, to the children of my sisters in equal shares.’ The appellant asserted a right to participate in the distribution of the surplus under these facts, which were found by the learned auditing judge and are undisputed. At the date of the will and of the codicils thereto, the only living children of the sisters of the testatrix were Susan Beach, daughter of Mary Francis, a sister of the testatrix, and John Beard, James Beard and Sarah Barnicoat, children of Grace Beard, who was likewise a sister of the testatrix. Mary Francis, the mother of Susan Beach, died many years before the testatrix, leaving, besides Susan, two other daughters, Teresa L. C. Anderson and Julia Millard, both of whom had died long before the execution of. the will, viz : Mrs. Anderson, who was the mother of the grandnieces, Clara H. Stoops and Yiolet A. I. Huston, the appellant, died in 1887, and Mrs. Millard, whose daughter, Julia M. Fuller, has not appealed from the decree of the court below, at a date which is not definitely stated, but which clearly appears to have been long prior to the execution of the will. Mrs. Anderson, who was the mother of the appellant and a daughter of the sister of the testatrix, lived with the testatrix until her death in December, 1888 ; her children, the appellant and her sister, continued to make their homes with Mrs. Harrison until each of them respectively were married, the last of said events occurring prior to the execution of the said will. The testatrix made Violet A. I. Huston and her sister, Clara H. Stoops, the chief objects of her bounty and in each one of the clauses of the original will, by which that bounty was conferred, she designated said persons as her ‘ grandnieces,’ which was the true relationship in which they stood to her. It is true that the last codicil is ‘ I give to my beloved niece, Yiolet Huston, my husband’s and my own pictures; oil paintings.’ This use of the word ‘ niece ’ in the codicil falls far short of what would be required to justify us in holding that when the testatrix used the words ‘ children of my sisters ’ in the residuary clause of her will, it was her intention to include grandchildren of her sisters. The terms of the will can be satisfied and all its provisions carried into effect without any such forced construction. The will itself affords strong affirmative evidence of the intention to use the word ‘ children ’ in its literal sense. The testatrix knew that the mother of her grandnieces, Clara H. Stoops and Violet A. I. Huston, was dead ; in the body of her will she devises to them valuable real estate and bequeaths personal property to them for life with powers of appointment by will, largely exceeding in value the entire residuary estate, and every time their names are mentioned in the carefully drawn original instrument they are coupled with the designation of their true relationship, ‘grandnieces.’ It would be difficult to believe, therefore, that when she came to dispose of the small residue of her estate by creating the trust, she intended to include in the designation children of her sisters, the persons whom she had so repeatedly and accurately designated as ‘ grandnieces.’ The use of the perhaps familiar designation ‘niece,’ in connection with the name of the appellant in the informal codicil, disposing of two family portraits, is certainly not sufficient evidence of the intention on the part of the testatrix to use the term ‘ children of my sisters ’ in the residuary clause of her will in any other than its literal sense : Estate of J oshua Hunt, 133 Pa. 260. The appellant could not take as an original and substantive legatee under the residuary clause in the will, and although the claims seems to have been urged on that ground in the court below, that contention has been abandoned here. That the testatrix understood the difference between the meaning of the words ‘ children ’ and ‘ issue ’ is made apparent in the second clause of her will, for in the condition to which the devise to Mrs. Huston in that clause is made subject the devisee is required to convey certain property to the Pennsylvania Company for Insurance on Lives and Granting Annuities in trust ‘ to pay the net interest and income to my grandniece, Violet, for the term of her life, for her sole and separate use, free from all interference and control of her husband and upon her death, then to pay the principal to the children or issue of my grandniece, Violet, and in default over to her next of kin, excluding, however, her husband.’</p> <p>“ The appellant now contends, however, that being of the issue of Teresa L. C. Anderson, the daughter of a sister of the testatrix who died during the lifetime of the latter and prior to the execution of the will, she is entitled to participate in the distribution of this fund by force of the provision of the Act of July 12, 1897, P. L. 256, “No devise or legacy hereafter made in favor of a brother or sister, or of brothers or sisters of any testator, or in favor of the children of a brother or sister of any testator, whether such brothers or sisters, or children of brothers or sisters be designated by name or as a class, such testator not leaving any lineal descendants, 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, if such devisee or legatee shall leave issue surviving 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, saving always to every testator the right to direct otherwise.” This legislation is not and was not intended to have any bearing upon the interpretation of wills ; its effect is confined to the manner in which the intention of the testatrix, as ascertained from the words of the will, shall be carried into execution. Whether the person within the class designated by the act, who has died during the lifetime of the testator, was a legatee or devisee within the intention of the testator must first be ascertained from the language which he used in disposing of his property. When the devise is to a person by name it is conclusive as to the intention of the testator that that person should take, and the intention of the testator being established, the subject of the devise or bequest will, upon the death of the testator, be good and available in favor of the issue, when the primary devisee or legatee has died during the lifetime of the testator. This is the effect of legislation of this character, even in a case when the primary devisee was dead at the time the testator specifically designated him as the object of his bounty: Minter’s Appeal, 40 Pa. 111; Winter v. Winter, 5 Hare, 306.</p> <p>The legislation in question was no doubt enacted for the purpose of changing the law, as it had been determined in Gross’s Estate, 10 Pa. 360, and in kindred cases, that in case of a devise to children of brothers and sisters, as a class, only those children who were in existence at the death of the testator were entitled, to the exclusion of the representatives of children dying before the testator but after the date of the will. A bequest to a number of persons, not named but answering a general description is a gift to them as a class ; this rule of construction is intended to settle the testator’s intention, unless the will itself shows that he intended otherwise: Henlinger’s Estate, 170 Pa. 104. Prior to the act of 1897, the persons who constituted a class described by the testator would have been ascertained as oí the time when the legacy vested and it is only in case of a devise or bequest to a class, that the legislation has worked any change in the law, for devisees and legatees nominatim standing in the same decrees of relationship were protected by the Act of May 6,1844, P. L. 565. The effect of the act of 1897 is to provide that where one is within a class designated by the testator as the object of his bounty, the devise or legacy to him shall not lapse by his death during the lifetime of the testator, but the person so dying must have been a member of the class at some time in the period during which the will remained ambulatory, between the execution of the will and the death of the testator. The testator may by apt words designate the time at which the constituents of a class are to be determined. If he fix upon a time antecedent to the date of his will, then all who had died before that date and all who were born afterwards would be excluded from participation. If he fixed upon a definite date subsequent to the execution of the will, then only those in existence when that day arrived could take. When the devise is general to a class, without designating any time for the ascertainment of the members thereof, the testator is presumed to know that after-born children answering the description will be admitted to the class ; this is his legal intention. In the case of the death of a member of the class during the lifetime of the testator, his legal intention was, prior to the act of 1897, presumed to be that the issue of the person so dying should not participate in the distribution. When the devise is to children of brothers and sisters as a class, the act of 1897 goes only to the legal effect of the actual intention of the testator, as declared by the words of his will. It is now presumed to be the legal intention of the testator, that when a person who is actually within a class dies, leaving issue, such issue shall take by substitution. The language of Mr. Justice Rodgebs, in dealing with a question of this nature in Martin-dale v. Warner, 15 Pa. 471, is pertinent:</p> <p>“ ‘ The question is not as to the corpus of the bequest or its extent, but the difficulty is as to the legatee who shall take. . . . Though a will it is true does not take effect until after the testator’s death, yet it is inchoate, though not consummate, from the execution of it, and for many purposes in law, of which this is one, it relates to the time of the making of it.’ In Taylor v. Mitchell, 57 Pa. 209, Mr. Justice Sharswood said: ‘ It is true that every will is ambulatory until the death of the testator, and the disposition made by it does not actually take effect until then. General words apply to the property of which the testator dies possessed, and he retains the power of revocation as long as he lives. The act of bequeathing or devising, however, takes effect when the will is executed, though to go into effect at a future time.’ A will speaks for some purposes from the period of its execution : Quin’s Estate, 144 Pa. 445. When the testatrix incorporated this residuary clause into her will, the children of her sisters only designated, to them only was the bequest made. They alone were in her mind. They alone were the objects of her bounty, not another single human being. She made her will with reference to the objects of her bounty as they existed at the time, and as though her will took effect at the date of its execution, not apprehending that any of the members of the class which she designated as the objects of her bounty should die before her. The law supplemented her actual intention by writing into the will the legal intention that children afterwards born into the class should take. She may not have known the legal result of the death of one of her legatees whom she designated by description, prior to the vesting of the legacy. The provisions of the act of 1897 are just and conformable to the probable intention of the testator in every instance. The argument in support of the legislation was that the fact that the child or relative is not mentioned by name should not determine the real purpose of the testator, where the language applied to the facts as they were at the execution of the will, designated a child or relative as an object of the testator’s bounty with as much certainty as if it were mentioned by name. The act was not intended to set up a new rule for the construction of wills or to include as primary legatees persons who did not come within the meaning of the language employed by the testator; its purpose was to provide for the substitution of the issue upon the death of one who was at the date of the will or subsequently came within the class to which the devise or bequest was made, and there was, therefore, nothing wdiich the appellant was entitled to take by substitution : Gray v. Garman, 2 Hare, 268; Martha May’s Appeal, 41 Pa. 512; Long v. Labor, 8 Pa. 229. This seems to be in harmony with the construction placed by the Supreme Court upon the Act of April 8,1883, P. L. 250, relating to legacies to lineal descendants. In Bradley’s Estate, 166 Pa. 300, it was held that where a member of the class dies after the date of the will, leaving issue, such issue took by substitution, while in Hunt’s Estate, 133 Pa. 260, where the devise was of personal estate ‘ to all my children,’ it was held that the issue of a son who died prior to the execution of the will must be excluded. The numerous decisions of the courts of other states cited by learned counsel for appellant were made in construing statutes similar to our Act of May 6, 1844, P. L. 565, and as they are in conflict with the decisions of our own Supreme Court in Gross’s Estate, 10 Pa. 360, and Guenther’s Appeal, 4 W. N. C. 41, we cannot recognize them as authorities in construing the act of 1897. We have not considered whether the making of the codicils of August 14, 1897, republished the entire will as of that .date and so brought it within the operation of the statute, for the reason that Mrs. Anderson was not a legatee and her daughter can take nothing by force of the statute.”</p> <p>“ The decree is affirmed and the appeal is dismissed at cost of the appellant.”</p> <p>Errors assigned was the judgment of the Superior Court.</p>

Appeal, No. 360, Jan. T., 1901, by plaintiff, from decree of C. P. Luzerne Co., Dec. T., 1900, No. 6, dismissing bill in equity in case of E. Gumpert et al. v. A. D. Hay, John M. Jones and P. J. Finn, County Commissioners of Luzerne County and the City of Wilkes-Barre. Bill in equity for an injunction. Endlich, J., specially presiding, found the facts to be as follows: 1.

<p>Appeal, No. 55, Jan. T., 1902, by-plaintiffs, from decree of C. P. Lycoming Co., June T., 1899, No. 1, on bill in equity, in case of John S. Furst and Pauline H. Ifurst v. Robert F. Armstrong, Celia H. Armstrong and Louisa M. Houston.</p> <p>Bill in equity for partition.</p> <p>McClure, P. J., specially presiding, found the facts to be as follows:</p> <p>1. Levi Houston moved from Smithville, New Jersey, to Montgomery Station, Lycoming County, Pennsylvania, in 1878, and there entered into the business of manufacturing woodworking machinery with Hall and Smith under the firm name of Houston, Hall & Smith. Hall retired in 1874 and the business was conducted under the firm name of Houston & Smith. This partnership was dissolved in 1877 and Houston continued the business in his own name from that time until his death in 1892.</p> <p>2. Mr. Houston’s business prospered under his management and he invested from time to time considerable money in real estate in and about Montgomery. The purchase money for these properties was taken from his business. In 1880 or 1881 he built a store on a lot thus purchased and placed one Nathan Fowler in charge, allowing him two thirds of the profits. This store was run in the name of Houston & Company down to the time of Mr. Houston’s death. At this store many of his employees at the machine works and planing mill dealt, and their bills were charged up to their accounts in the* books of the works. A separate set of books was kept at the store but the general accounts ran into the books at the wood-working machine office.</p> <p>8. In 1889 Mr. Houston built a planing mill on land owined by him near the machine shop and conducted a general planing mill business there until his death. There was also a separate set of books for this mill and the materials used in its construction were charged against it in the wood-working machine books.</p> <p>4. From time to time he purchased farms and farm lands and managed them as he did his other business, some of the produce being disposed of through the store, the accounts going into the general books of the machine works.</p> <p>5. Among other real estate transactions he purchased a house on West Fourth street in Williamsport for a home, a house on Edwin street in the same city, and land in Milton, Pennsylvania. He erected houses on various lots he had purchased in Montgomery, some of which he rented to his employees, and the rent was collected through the office of the machine works. He seems to have made no distinction in the houses occupied by his employees and his other real estate. They were carried along on his books in the same way. He had no house account, and only for a short time a real estate account, which was charged off to and thereafter kept in Levi Houston’s account.</p> <p>6. This Levi Houston account was the general receptacle for all the other accounts. Into it went the profit and loss of the machine works and the general store. It was charged with the purchase money for lands bought, with repairs to the hotel, farms and his home in Williamsport, as well as to the houses in which his employees lived.</p> <p>7. When he erected the hotel in Montgomery the materials that went into it from the planing mill were not charged to any account at all. The items paid by Houston to other parties for material used and work done in its construction were charged to “ Levi Houston Account,” as was also the labor of his own men upon the building. This was in accordance with his usual custom to have the labor of his hands in the mill charged to labor account, and for work outside, on the farms, store or houses, to Houston account.</p> <p>8. While the repairs were, as above found, charged to Levi Houston account the taxes and insurance upon the same properties were charged to the tax and insurance accounts in the machine works books, and from time to time went to the make-up of the profit and loss account of that business. All the rents received from his store, hotel and tenement houses were credited upon the same books to rent account, and in closing the books from time to time to show a profit or loss the rent account was charged with the amount there shown, and profit and loss was credited with it.</p> <p>9. April 20, 1888, Mr. Houston made his will, which was duly probated August 1, 1892, wherein he ordered his debts and funeral expenses to be promptly paid, gave his wife such interest in his real and personal estate as she would be entitled to under the intestate laws of the state, and the residue of his estate he devised and bequeathed to his two daughters, Celia and Pauline, share and share alike. The fourth item is as follows : “ I appoint my daughter, Celia M. Houston, to be the executor of this my will, with full power to sell and convey at public or private sale any or all the real estate of which I may die seized, and vest in the purchaser thereof a fee simple or other less estate as to my executor may seem meet. And I give to my said executor full power to conduct for such time as she may see fit the business in which I may be engaged at the time of my death.”</p> <p>10. Under the powers conferred upon her by the will Celia took entire charge of her father’s property, leased, sold and conveyed real estate, and conducted the business in which he had been engaged from the date of his death to December 15, 1897, so far as the planing mill and shop were concerned, when a sale was made of this property to the American Wood-Working Machine Company, and until August 6, 1898. so far as the store was concerned, when it was sold to P. R. Helmbold.</p> <p>11. At the time of his death Mr. Houston’s indebtedness amounted to about $61,000, incurred in the purchase of merchandise used in the various branches of the business, the store, the mill, the shop, for horses, horse feed, etc. These debts were paid by Celia while conducting the business under the powers conferred upon her by the will, and were replaced to some extent by her obligations as executor amounting to $52,000.</p> <p>12. March 20,-1899, a bill in equity was filed by John S. Furst and Pauline H. Furst, praying for a commission in partition to divide, partition and allot the real estate of Levi Houston, not then sold by the executrix, comprising land in Williamsport, Milton, Montgomery and Clinton township particularly described in the third section of the bill. To this bill separate answers were filed by Robert F. Armstrong. Partition of the lands is resisted on the ground that by the terms of the will an active trust was imposed upon the executrix to conduct the business in which Mr. Houston was engaged at the time of his death; that all of the real estate described in the bill, with the possible exception of the dwelling house in Williamsport, was embarked in his business; that the debts created by the executor in continuing the business are liens and charges against the real estate sought to be partitioned and must be paid before partition can be had.</p> <p>The court held that the general assets, including the real estate, were liable for the obligations contracted by the executrix, but granted the prayer of the appellants, and awarded partition. Subsequently the appellants for the purpose of having the will construed moved the court to dismiss the bill. The court thereupon made a pro forma order dismissing the bill, and refusing partition.</p> <p>Errors assigned were in overruling various exceptions, and in dismissing the bill.</p>

Appeal, No. 57, Jan. T., 1902, by plaintiffs, from decree of C. P. Lycoming Co., March T., 1900, No. 2, on bill in equity, in case of Thomas Tozier, F. A. Tozier and M. A. Tozier, trading as F. A. Tozier & Company to use of Thomas Tozier, v. Henry Brown and James V. Brown, surviving partners of Brown, Early & Company, and J. K. P. Hall and A. Kaul. Bill in equity for an account. The facts appear by the opinion of the Supreme Court. Error assigned was decree dismissing bill.

<p>Appeal, No. 54, Jan. T., 1902, by defendant, from decree of C. P. Lycoming Co., June T., 1899, No. 1, on bill in equity, in case of John S. Furst and Pauline H. Furst v. Robert M. Armstrong, Celia H. Armstrong and Louisa M. Houston.</p>

<p>Negligence — Street railways — Contributory negligence — Speed.</p> <p>Where the driver of a wagon having heavy packages to deliver at a store, is compelled by reason of obstructions in the street and on the pavement in front of the store, to back his wagon to the curb so that his horses stand on the track of a street railway, and thus temporarily occupies the street for a legal purpose, he is entitled to have the street cars operated in such a way as not to endanger his life, and if the evidence shows that a car approaches at an excessive rate of speed, without giving a signal, and with the team in full sight of the motorman, and the team is struck and the driver is killed, damages may be recovered from the street railway company for the latter’s death. Under such circumstances the question of the company’s negligence and the deceased’s contributory negligence is for the jury.</p> <p>Where the employees of a street railway company have for many months knowledge of obstructions on a street, it is their duty to take notice of the conditions prevailing along the track, and to run their cars at a rate of speed which will not endanger the safety of those who by reason of the obstructions may bo lawfully on the track.</p>

<p>Appeal, No. 238, Jan. T., 1901, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1900, No. 23, on verdict for plaintiff in case of R. K. Neff v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for injuries to land caused by the remoyal of a bridge over a private lane. Before Bailey, P. J.</p> <p>At the trial counsel for plaintiff proposed to show by B. K. Neff, that his father, Jacob Neff, Jr., and his grandEather, Jacob Neff, Sr., lived on the farm known as the Benjamin K. Neff farm, adjoining the Gilbert Neff farm on the west; that his grandfather owning both tracts of land, the Gilbert Neff farm and the B. K. Neff farm, established a private road for the use of the farms out to the public road leading from Alexandria to Petersburg; that after the farm known as the Gilbert Neff farm was sold by his grandfather to one Frederick Mennert, his grandfather and his father and himself have continued to use that private road openly, notoriously and adversely, from the time of its establishment up until it was rendered useless by the tearing down of the bridge by the defendant company; we propose further to show by the witness upon the stand that when the defendant company went through the Gilbert Neff farm, established their way and laid their tracks, that by agreement with the plaintiff, they erected on the line of this private road to carry it, and render it serviceable, a bridge over their tracks; that from that time until the destruction of that bridge on May 17, 1900, the railroad company continued to keep that bridge in repair and built new approaches at the same site ; we propose further to show by the witness upon the stand, that when the bridge carrying the road from Petersburg to Alexandria was impassable over the tracks of the Pennsylvania Railroad, that employees and agents of the Pennsylvania Railroad came to the plaintiff and asked permission to have the public travel over the bridge which they had built for him on his private way, thus recognizing his right; this for the purpose of showing the establishment of the right of way and laying the ground for consequential damages for its destruction by the defendant company; and that this private way was used for a period of more than twenty-one years prior to the destruction of the bridge.</p> <p>Mr. Furst: Defendant’s counsel object to the offer:</p> <p>1. Because it is contradictory; that upon the facts as stated in the offer no prescriptive title to this bridge can be acquired by adverse possession as against the defendant railroad company, as according to the offer the bridge was built by them for some purpose of travel.</p> <p>2. The declaration states the plaintiff’s claim in this case is a title to the private way by adverse possession; under the offer no adverse possession is shown as to this bridge.</p> <p>3. That the Pennsylvania Railroad Company having acquired title to the fee of the land on both sides of the bridge, as already shown in evidence, there was no obligation in law, neither under the general act of 1849, nor of the charter of the Pennsylvania Railroad Company, to maintain a bridge in the right of way for the purpose of affording a private road to a landowner who did not adjoin the right of way of the railroad company.</p> <p>4. That if plaintiff’s claim in this ease be for the destruction of the bridge, as appears by the pleadings, he must show a title to the bridge, otherwise it is damnum absque injuria.</p> <p>5. The allegation of employees of the company having made verbal agreements or declarations are not evidence to affect the defendant, as it is not shown that they were made by such persons as had authority to bind the Pennsylvania Railroad, the defendant.</p> <p>6. The declarations even of a contractor to build a bridge could not be offered in evidence to affect the principal.</p> <p>Therefore, the offer is objected to for these reasons, as being incompetent, irrelevant and inadmissible.</p> <p>The Court: Objection overruled. Testimony admitted. Bill of exceptions sealed for defendant. [1]</p> <p>Mr. Bailey: We propose to show bj’the witness, B. K. Neff, that he had a conversation with Mr. Cams, the agent and contractor of the Pennsylvania Railroad; that Mr. Cams agreed to build a bridge for the plaintiff when he put the tracks of the Pennsylvania Railroad through the Gilbert Neff farm on the land of plaintiff originally, so as to preserve for him the use of the road, and that his way would not be obstructed by the railroad ; this to be followed by proof that the Pennsylvania Railroad has kept the bridge in repair from that time to the time of its destruction and erected the bridge.</p> <p>Mr. Furst: This is objected to, because Cams is not shown to be a contractor of the defendant company with authority to bind the company by any verbal arrangement that he might make; that no contractual relation is shown between’the railroad company, defendant, and Mr. Cams; that the evidence is inadmissible and incompetent to affect the rights of the defendant.</p> <p>The Court: Objection overruled. Testimony admitted. Bill of exceptions sealed for defendant. [2]</p> <p>Mr. Bailey: We have heretofore offered the deed of Jacob Neff and wife to Frederick Mennert for the purpose of showing title. We now desire to offer it for the purpose of showing a reservation of the ground of this roadway.</p> <p>Mr. Furst: We object to this offer:</p> <p>1. Because the plaintiff, in the statement filed, has claimed to recover simply upon an adverse possession, an adverse title to the property, and this offer is now to show an entirely different title, which contradicts the pleadings in the case.</p> <p>2. If the plaintiff has title by grant he cannot have title by adverse possession, and therefore, the offer is incompetent and irrelevant.</p> <p>3. That this grant only continued during the lifetime of Jacob Neff.</p> <p>The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for defendant. [3]</p> <p>The court charged in part as follows:</p> <p>[It appears that one Jacob Neff, Sr., prior to 1830, was the owner of this land (the land which now constitutes the Gilbert Neff as well as the B. K. Neff farms) : that on January 5,1830, he divided this large body of land, selling what is now the Gilbert Neff farm to one Frederick Mennert, and, in the deed to Mennert, he expressly reserved the use of this way from the B. K. Neff farm to the public highway. The language of the reservation as it appeared in the deed to Mennert is as follows :</p> <p>“ Also excepting and reserving the privilege of keeping open the lane which at present runs through the before described tract, piece or parcel of land to the great road, to be kept open of the breadth of fifteen feet forever, for the use and convenience of whomsoever may from time to time be the owner or occupier of the river tract of land now in the possession of Jacob Neff, son of Jacob Neff, the elder.”</p> <p>On the same day, that is January 5, 1830, he conveyed the B. K. Neff farm, designated in this reservation as the ‘"river farm” to his son Jacob Neff, Jr. When Mennert conveyed the Gilbert Neff farm to one Benjamin Brubaker, he conveyed it expressly subject to the reservation of the private way through it, the same as mentioned in the deed from Jacob Neff, Sr., to him. The deed that Jacob Neff, Sr., made to Frederick Mennert was placed on record in the recorder’s office in this county, January 7,1830, just two days after it was executed. The deed from Mennert to Brubaker has also been recorded.</p> <p>The defendant company, in or about the year 1850, constructed its line of road through the Gilbert Neff farm. At that time it was servient to this private road or way. According to the reservation in the deed and from some evidence, it appears that the road had been for many years prior to that time used and occupied by the owner or occupant of the B. K. Neff farm. The line of the defendant company’s road, as laid out crossed the private road, which was then used by B. K. Neff as an outlet from his farm and had been so used for several years prior.] [4]</p> <p>[While one Karns was in the act of constructing for the defendant company its railroad through the Gilbert Neff farm, B. K. Neff testifies that he inquired of Karns what was to become of the private way. He seemed to be anxious for its protection because at the point where the tracks of the railroad company had been located, across this private road or way, a deep cut, of about eleven feet, was required; and, therefore, he inquired of Mr. Karns, the contractor, what was to become of the private road. He was assured by Karns, according to his testimony, that the railroad company would build an overhead bridge as soon as they could across the railroad tracks to supply Mm witli a way out to the public highway.</p> <p>While Karns may probably not have had express authority from the railroad company to promise that such bridge would be built, it is nevertheless true that the bridge was built by the railroad company just about the time that Karns promised Mr. Neff that it would be built, which would seem to be at least some evidence of ratification by the railroad company of the promise which Mr. Karns made Mr. Neff. After the bridge was constructed, Mr. Neff continued the use of his private way as before, except that when he came to the railroad he crossed this bridge which was built upon the line of the private way as it had been theretofore used. He could not well or conveniently have crossed the railroad tracks at grade at that point, on account of the deep cut to which I have already referred. The Pennsylvania Railroad Company kept this bridge in repair and replaced it with new bridges at two different times.] [5]</p> <p>[The reservation of this way over the Gilbert Neff farm by Jacob Neff, the previous owner of it, in his deed to Mennert, which has been duly recorded, was notice to all the successors of Mennert in this title that it was incumbered by this road. The reservation stood right in the line of their title and all of them took the title subject to that right of way over the Gilbert Neff farm.] [6]</p> <p>[There has been some evidence that the Pennsylvania Railroad Company now own the land on both sides of the railroad where this roadway crosses it. We do not see that the rights of the Pennsylvania Railroad Company, because it owns the land, are higher than any of its predecessors, and, if Mennert, who at the time of the conveyance to him was the owner of this same land had not the right to destroy the road, surely the Pennsylvania Railroad Company has not the right to destroy it just because it now owns the land on both sides. It was not necessary to preserve the rights of the owners of the B. K. Neff farm that it should be mentioned in the several subsequent deeds for the Gilbert Neff farm, neither was it necessary to specially mention it in the conveyances of the B. K. Neff farm. The reservation in the deed of Jacob Neff to Mennert for the Gilbert Neff farm became an appurtenant to the B. K. Neff farm and passed with the subsequent conveyances of that farm without any special reference. Therefore B. K. Neff, this plaintiff, had the right of the private way through the Gilbert Neff farm, as reserved in this deed, and may recover in this action whatever damages he may have suffered by reason of its destruction by the defendant company.] [7]</p> <p>[His loss may be measured by the depreciation of the market value of his farm by reason of its being deprived of this private road. It was an appurtenant to his farm ; that is, gentlemen, it belonged to that farm. In other words, gentlemen, what do you find to be the difference in the market value of the plaintiff’s farm immediately before the destruction of this overhead bridge and immediately after, if you find there was any difference in its value. If the market value of the farm was not depreciated by the destruction of the continuity of this private road, your verdict should be for the defendant, because if his farm was not affected by the destruction of this road, he suffered no damage. You will remember the testimony of the witnesses on the question of damages.] [8]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-8) above instructions, quoting them.</p>

Appeal, No. 29, Jan. T., 1902, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1899, No. 338, refusing to strike off nonsuit in case of Elwood Booth v. Michael Dorsey and Patrick S. Smith, trading as Dorsey & Smith. Trespass to recover damages for personal injuries. Before Brbgy, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 309, Jan. T., 1901, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1901, No. 4323, dismissing bill in equity in case of Baltimore Life Insurance Company v. Henry Gleisner and The Commonwealth Beneficial Association. Bill in equity for an injunction. The bill was as follows: 1.

Appeal, No. 319, Jan. T., 1901, by Esther H. Cochran, Administratrix, from decree of C. P. No. 2, Phila. Co., Dec. T., 1891. No. 502, refusing petition for citation to the Guarantee Trust Company in Estate of Freeman Scott, Deceased. Petition for citation.

Appeal, No. 295, Jan. T., 1901, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1899, No. 41, on verdict for defendant in case of Jacob S. Robeson v. Siegfried Pels. Assumpsit on a contract alleged to have been made by cablegrams. Before Willson, P. J. From tbe record it appeared that plaintiff was a metal broker doing business in Philadelphia. The de Cendant resided in Hamburg. Tbe three telegrams on which tbe alleged contract was based were as follows: 1.

Appeal, No. 328, Jan. T., 1901, by defendant, from decree of C. P. No. 2, Phila. Co., June T., 1894, No. 545, on bill in equity in case of Louis D. Erben v. Henry B. Heston. Bill in equity by one partner against another for contribution.

Appeal, No. 38, Jan. T., 1902, by plaintiff, from decree of C. P. Luzerne Co., Jan. T., 1900, No. 2, on bill in equity, in case of Alice E. Keller and William B. Keller v. Susan Lamb, widow, and Lillian Lamb and Dunham Lamb, Jr., heirs of Dunham Lamb, deceased, and Susan Lamb, executrix. Bill in equity for a partition. Before Halsey, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 126, Jan. T., 1902, by Thomas Cochrane, from decree of O. C. Blair Co., Oct. T., 1900, No. 27, refusing petition for the reassignment of a mortgage in the Estate of James Cochrane, deceased. Petition for the reassignment of a mortgage to a trustee to be appointed by the court for the purposes of a testamentary trust. Error assigned was refusal of the petition.

Appeal, No. 48, Oct. T., 1902, by defendant, from decree-of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 421, on bill in equity in case of Lemuel Douthett, trading as The Thorn Hill Oil Company v. Fort Pitt Gas Company. Bill in equity for an injunction.

Appeal, No. 241, Jan. T., 1902, by Commonwealth, from decree of C. P. No. 3, Phila. Co., March T., 1893, No. 590, dismissing exceptions to auditor’s report in Estate of Penrose Ash. Exceptions to report of Ulysses S. Koons, Esq., auditor; From the record it appeared that Penrose Ash was treasurer of Philadelphia county from 1845 to 1848, and as such was charged with the collection of certain taxes for the commonwealth.

Appeal, No. 23, Oct. T., 1902, by defendant, from decree of C. P. Lawrence Co., Dec. T., 1901, No. 3, continuing a preliminary injunction in case of City of New Castle v. Central District & Printing Telegraph Company. Motion to continue preliminary injunction.

Appeal, No. 371, Jan. T., 1901, by defendant, from judgment of C. P. Chester Co., Aug. T., 1901, No. 3, on verdict for plaintiff in case of Joseph Mendenhall v. Philadelphia, Wilmington & Baltimore Railroad Company. Trespass to recover damages for personal injuries. Before Hemphill, P. J. The opinion of the Supreme Court states the case. Verdict and judgment for plaintiff for $9,587.50. Defendant appealed.

Appeal, No. 377, Jan. T., 1901, by plaintiff, from decree of C. P. Delaware Co., Dec. T., 1900, No. 296, on bill in equity in case of the Philadelphia & Baltimore Central Railroad Company v. Upper Darby Township and Rufus C. Hoopes and John Leighton, Supervisors. Bill in equity for an injunction. The prayers of the bill were as follows: 1.

<p>Appeal, No. 263, Jan. T., 1901, by Ella M. Brundage, from decree of O. C. Lebanon Co., June T., 1887, No. 33, overruling exceptions to auditor’s report in estate of John Young, deceased.</p> <p>Exception to report of S. P. Light, Esq., auditor.</p> <p>The important facts are stated in the opinion of the Supreme Court, other facts were found by the auditor as follows :</p> <p>On March 12, 1887, the petition of Mrs. Young was presented to the orphans’ court stating her election to take under the intestate laws and praying for a citation upon the executrix to take and file an appraisement of the estate. Whereupon a citation was awarded. Under the circumstances this repudiation of her agreement was within a reasonable time after ascertaining the facts.</p> <p>During the course of depositions which were taken in this proceeding, the respective parties with their counsel met at the office of ’Squire Kreider, in 1887. It was suggested by Gen. Gobin, counsel for Mrs. Young, that a settlement or compromise was desirable for all parties. In order to agree upon a basis for compromise, Gen. Gobin and F. M. Brundage, who acted for his wife, went over the assets of the estate. Mr. Brundage contended that the estate was not near what Mrs. Young supposed it to be ; Mr. Brundage gave Gobin verbally all that he knew in the estate and Gobin put them down. He, Brundage, had a memorandum with him substantially similar to the one prepared for his wife when she took possession of the assets, if it were not the same one. They went over the various tracts of real estate and each put his own estimate upon them; the two totals were very nearly similar. Gen. Gobin had made a memorandum of the value of the estate from his own researches, has lost his memorandum, but his total of personal and realty at this meeting was from $50,000 to $54,000. This latter figure is substantially the same as the total valuations on Mrs. Brundage’s memorandum, including the mortgages which she claimed as her own.</p> <p>Upon this basis Gen. Gobin suggested the payment of $2,000 in cash to the widow and $450 for his own fee, which was to be paid in addition to the provisions of the will for her benefit and which should be in full settlement of all her claims against the estate.</p> <p>Upon this basis Gen. Gobin represented to the widow that he thought she was getting one third oí the entire estate, the $2,000 then secured being “ just that much additional,” as he expressed it. Upon this basis and upon these representations the widow was induced to join in this verbal agreement. Mrs. Brundage forthwith assigned a mortgage to Gen. Gobin, securing his fee and the widow’s $2,000, which was afterwards paid in cash to the widow.</p> <p>It was verbally agreed that the terms of this agreement should be put in writing and executed by the parties to it, and an agreement was prepared by Mrs. Brundage’s attorney, which the widow refused to sign when it was presented to her, claiming it was not what she had agreed to.</p> <p>The widow on learning that the statements made by F. M. Brundage for the executrix as to the value of the assets of the estate were not true, took steps to assert her rights and repudiated the compromise and verbal agreement within a reasonable time. On July 8, 1889, the petition of the widow for a citation upon the executrix was presented to the court, upon -which after answer filed, the court in September, 1889, directed an account to be filed. On December 23, 1889, the executrix filed an account to which the widow filed exceptions, and an auditor was appointed to pass on them.</p> <p>The auditor surcharged the executrix with the sum of $37,110.88 including the mortgages referred to in next paragraph. The auditor’s report was confirmed, and a decree entered that he should make distribution. In this decree he was authorized to hear additional testimony affecting the question of distribution. He subsequently filed a second report, the material portions of which were as follows:</p> <p>John Young, by his indenture, dated August 7, 1885, about eight months before his death, executed and delivered to his daughter, Ella Mr. Brundage, an assignment of certain mortgages, the consideration of which was expressed in the grant as “ natural love and affection and the sum of one dollar to him in hand paid.” These mortgages which are claimed by Ella M. Brundage as her individual property as a gift from her father were not included in her account.</p> <p>The assignment of mortgages was first entered in the recorder’s office December 3, 1885, and subsequently, on January 30,1886, was withdrawn without being recorded, the entry docket showing the following record: “Jan. 30, 1896, I, Ella M. Brundage, do hereby withdraw the above assignment of mortgages and request the record thereof to be cancelled.” (signed) “Ella M. Brundage.”</p> <p>Shortly after the death of John Young, on April 19, 1886, the assignment was again entered and recorded in mortgage book W, page 373, etc., and the mortgages mentioned therein have since been held or disposed of by Mrs. Brundage as her individual property. It was contended by the widow that at the time of the withdrawal of the mortgages the original gift of them to Mrs. Brundage was revoked with her consent and that Mr. Young died leaving them an asset of his estate; while on the part of Mrs. Brundage it was claimed that the recording only of the assignment of mortgages was withdrawn and not the gift itself recalled or revoked.</p> <p>The testimony shows that the assignment itself was returned to Mr. Young at his house after its withdrawal from the record and by him placed in his bureau drawer, to which both Mrs. Young and Mrs. Brundage had access, and some days afterward handed by Mrs. Brundage to J. G. Adams, Esq., the then attorney of the decedent, who placed it in his own private bos in the vault of the Lebanon Trust and Safe Deposit Bank for safekeeping, and upon the death of Mr. Young delivered it to Mrs. Brundage, as he (Mr. Adams) testified he was directed to do by Mr. Young in a conversation had with him shortly after their withdrawal. Henry C. Gettel, who was one of the mortgagors included in the assigned mortgages, and a former employee of Mr. Young, testified to a conversation had with him on December 11,1885, in which Mr. Young told him about the assignment of mortgages and stated that “ Ella wouldn’t make him any trouble, that it would be the same as if he had it ” (referring to the mortgage against him), and also to a conversation had some time during the latter part of January or beginning of February, 1886, in which he (Young) said “ that it was all right now, etc., ” “ the mortgages were either under the estate or under the will, am not positive which.”</p> <p>The conversations had with Mr. Gettel, however, were not in the presence of Mrs. Brundage, and in the opinion of your auditor are incompetent and will therefore be disregarded in determining the fact to which they relate. However, Mrs. Young testifies to practically the same effect when she says: “ He told his daughter in the presence of me and her justa few days or before he died, he said, ‘Ella, it is much better that these mortgages are back under the will.’ ” When Mrs. Brundage was interrogated as to this conversation she admitted that the decedent may have used the words attributed to him by Mrs. Youug in her presence. When to this fact is added the possession and control exercised by Mr. Young over these mortgages after their withdrawal, his receipt of the interest paid thereon, together with the acknowledgment of Mrs. Brundage herself as evidenced by her receipts for interest due on some of the asssigned mortgages after their withdrawal, signed “Ella M. Brundage for John Young,” the conclusion must be, and your auditor so finds, that the gift of these mortgages was revoked by Mr. Young with the consent of his daughter, Mrs. Brundage, the donee, and that thereafter during the life of Mr. Young were treated as his property both by the donor and donee.</p> <p>Exceptions to the auditor’s report were overruled.</p> <p>Error assigned was in overruling exceptions to auditor’s report.</p>

<p>Appeal, No. 401, Jan. T., 1901, by defendant, from judgment of C. P. Schuylkill Co., March T., 1875, No. 789, on verdict for plaintiff in case of Andrew Comrey to use of Ephraim Barlow, now to use of Samuel A. Beddall, Executor of Thomas Beddall, Deceased, v. East Union Township.</p> <p>Assumpsit on orders issued by the commissioners of the state road. Before Shay, J.</p> <p>At the trial it appeared that the suit was begun in 1875 by Ephraim Barlow. In 1901, the record was amended so as to substitute Andrew Comrey as the legal plaintiff. It appeared that the orders on which the suit was brought were made payable to Andrew Comrey.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $8,852.81. Defendant appealed.</p> <p>Errors assigned among others were (2) in allowing the amendment; (8) in refusing binding instructions for defend- • ant.</p>

<p>Interest — Usury— Partnership — Distribution of profits.</p> <p>An agreement between two partners, whose contributions to the capital of the firm are unequal, that in distributing the profits at the end of each year, one should pay to the other “ten per cent interest on the difference in their capital,” is not usurious.</p>

<p>Appeal, No. 119, Jan. T., 1901, by defendant, from order of C. P. No. 3, Phila. Co., June T., 1899, No. 914, dismissing exceptions to report of referee in case of Charles E. Sherman v. Consolidated Dental Manufacturing Company.</p> <p>Assumpsit for a balance alleged to be due under a contract in writing.</p> <p>The case was referred to E. Hunn Hanson, Esq., under the act of May 14, 1874.</p> <p>The principal question before- the referee was whether the plaintiff should bear the expenses of a business conducted under an agreement in writing between the parties. On this subject the referee found the following facts :</p> <p>By a written contract dated December 31, 1895, the plaintiff entered into the employment of the defendant company as a traveling salesman, for which service he was to receive 140.00 a week, and a percentage on all sales over a sum mentioned, the employer undertaking to pay all of the expenses of the employee in and about the employment.</p> <p>In 1897 a new agreement was prepared, then read by the parties without comment or objection and executed as follows:</p> <p>“This agreement, made this 14th day of June, 1897, by and between the Consolidated Dental Manufacturing Company (a corporation organized and existing under the laws of the state of New York), party of the first part, and Charles E. Sherman, of Philadelphia, Pa., party of the second part, witnesseth:</p> <p>“ I. The party of the first part hereby constitutes and appoints the party of the second part as manager of its branch office in Philadelphia, Pa., for the sale of teeth and dental goods.</p> <p>“ II. The party of the second part hereby accepts said appointment and agrees to use his best endeavors to promote the sale of teeth and dental goods at Philadelphia, Pa., and elsewhere in that vicinity.</p> <p>“ III. The party of the first part hereby agrees to immediately consign to the party of the second part a full stock of teeth and dental goods and also agrees to consign to said party of the second part such further lots of teeth and dental goods as the needs of the business may require.</p> <p>“ IV. The party of the first part agrees to pay to the party of the second part as compensation for his services in selling its goods a sum of money equal to the difference between the list and trade prices of every article so consigned to him.</p> <p>“ V. The party of the second part agrees to send to the party of the first part on or about the first of every month during the continuance of this agreement a monthly statement showing the sales made during the preceding month by the party of the second part of the goods belonging to the party of the first part in his possession and agrees to remit with said statement a check or draft for an amount representing the trade price of all goods sold during said preceding month as shown by said statement.</p> <p>“ VI. The party of the second part hereby agrees to take such care of goods of the party of the first part as any reasonable man would do and also agrees in making sales of said goods that such sales shall be made only to such person or persons as are responsible.</p> <p>Upon the agreement was the indorsement “Consignment agreement,” and upon its execution the contract of December 31, 1893, first mentioned, ended.</p> <p>By a lease dated May 22, 1897, in which the Philadelphia Trust, Safe Deposit and Insurance Company, trustee, was lessor, and company defendant, acting through its president, the lessee, the latter took possession of a branch office, and placed the plaintiff in charge as manager, and from the last-mentioned date to June 7, 1899, he gave his exclusive attention to its business.</p> <p>In reply to the question what other and additional consideration was agreed upon between the company defendant and Sherman, Bultman testified that Sherman was to pay all the expenses that attended doing the business in Philadelphia and he was also to pay interest on the moneys that were invested there by the defendant company.</p> <p>Sherman, upon re-examination, distinctly and in detail denied that there was any other consideration agreed upon than that in the contract of June 14, 1897.</p> <p>The characters of the business of the Philadelphia branch was clearly and distinctly expressed upon its books and papers as that of a branch with its home office, and when Sherman’s name appeared it was as manager, and there was no charge against him individually. Sherman was ignorant of bookkeeping, and from time to time when it was not known how entries should be made he requested aid from the defendant company, at times by letter and at times verbally, in answer to which he got written instructions or was visited by one of the bookkeepers or officers of the company, who made or directed the proper entries. The moneys received from the sales of goods were deposited by Sherman in bank to an account with the Philadelphia branch office, and out of these moneys he deducted the rent of the office and its other expenses, and took on account of his compensation $40.00 a week, and (generally) each week transmitted the balance by check to the defendant company. In this bank account there was also deposited the rents received by Sherman from the lessees of 1413 Filbert street, to whom the company had demised. Excepting the expenses and that taken on account of compensation, Sherman transmitted to the defendant company all of the trade prices of the goods sent him, and the amount of these expenses appeared in the summary of business sent each month from Philadelphia to New York.</p> <p>The referee reported in favor of the plaintiff in the sum of $14,8-15.19.</p> <p>Exceptions to the report of the referee were overruled by the court.</p> <p>Error assigned was in overruling exceptions to referee’s report.</p>

Appeal, No. 197, Jan. T., 1901, by defendant, from order of C. P. No. 3, Phila. Co., June T., 1899, No. 914, dismissing exceptions to report of referee in case of Charles E. Sherman v. Consolidated Dental Manufacturing Company. Assumpsit for a balance alleged to be due under a contract in writing. For the facts see Sherman v. Consolidated Dental Manufacturing Company, ante, p. 446, and the opinion of the Supreme Court.

Appeals, Nos. 182 and 183, Jan. T., 1901, by defendants, from order of C. P. No. 2, Phila. Co., March T., 1897, Nos. 160 and 161, M. L. D., sustaining demurrer to plea in case of Philadelphia to use of Mack Paving Company v. Francis I. Gowen and James E. Hood, Trustees of James Gowen, Owners, etc., and James Gowen, Deceased, Registered Owner. Scire facias sur municipal lien.

<p>Appeal, No. 193, Jan. T., 1901, by Sanford P. Campbell et a!., from decree of O. C. Phila. Co., Oct. T., 1881, No. 505, dismissing exceptions to adjudication, in estate of John H. Campbell, deceased.</p> <p>Exceptions to adjudication.</p> <p>Tbe testator left a portion of his estate in trust for the separate use of his daughter for life. “ And from and after the decease of my said daughters, respectively, then the principal of the share of my said daughter so dying shall go to and be equally divided among her children absolutely and forever: Provided, however, that in case of the decease of either or any of my said daughters without leaving any children surviving at the time of her decease, then her share so dying to go to and be equally divided amongst her surviving brothers and sisters and the children of such of them as may then be dead, per stirpes.”</p> <p>Mrs. Cochran, one of the daughters, had one son,, born in the lifetime of her father, the testator, prior to the execution of the will. She never had other children. This son, William A. Cochran, died February 25, 1895, leaving three children, Thomas, Joseph and Katharine, and a widow, Esther H. Cochran, whom he appointed his executrix.</p> <p>Mrs. Cochran, the testator’s daughter, died April 1, 1900, leaving grandchildren as above, but no child; and the only question presented for the consideration of the auditing judge is as to (what the will styles) “ her share ” of the estate.</p> <p>The auditing judge awarded the share of Mrs. Cochran to the executrix of her son, William A. Cochran.</p> <p>Exceptions to the adjudication were dismissed by the court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 278, Jan. T., 1901, by defendant, from decree of C. P. No. 2, Phila. Co. March T., 1899, No. 738, on bill in equity in case of Andre F. Bornotand The Philadelphia Trust, Safe Deposit and Insurance Company, Trustee of George W. Conaroe, Deceased, v. Herman E. Bonschur.</p> <p>Bill in equity for an injunction.</p> <p>Pennypacker, P. J., found the facts to be as follows:</p> <p>1. Thomas Estlaclc was on August 25,1829, the owner in fee of a lot of ground situate in the northeast comer of Sixteenth and Chestnut streets, in the city of Philadelphia, containing in front on Chestnut street ninety feet and extending in depth northward along the east side of Sixteenth street 178 feet. At this time the width of Chestnut street was fifty feet.</p> <p>2. On that day Estlaclc conveyed to Jonathan Thomas a lot of ground “ situate on the north side oí Chestnut street enlarged by a strip of ground six feet in width north and south thrown out by the said Thomas Estlaclc,” which lot was described as being at the distance of seventy-two feet eastward from the east side of Schuylkill Seventh street (Sixteenth), containing eighteen feet “in front or breadth on Chestnut street enlarged as aforesaid,” and of the depth of 108 feet, “ together with the right and privilege to make steps, cellar doors, railings, scrapers and vaults on and under the said six feet of ground in front of the lot of ground hereby granted.” This lot subsequently became vested in the defendant Bonschur, and is No. 1533 Chestnut street.</p> <p>3. On December 1, 1831, Estlaek conveyed to Isaac Meyer and George W. Jones a lot on the north side of Chestnut street, “ enlarged and widened by a strip of ground six feet in width north and south thrown out by the said Thomas Estlaek,” at the distance of eighteen feet from the east side of Sixteenth street, containing in front on said Chestnut street thirty-six feet, and in depth northward 108 feet, “ together with the right and privilege to make and erect steps and railings, frontispieces, cellar doors, scrapers and vaults on and under the said six feet of ground.”</p> <p>The westernmost moiety of this lot, No. 1539 Chestnut street, subsequently became vested in the complainant, the Philadelphia Trust, Safe Deposit and Insurance Company, trustees under the will of George W. Couarroe, deceased, and in Maria C. Vinton, another of the complainants.</p> <p>The easternmost moiety of this lot, No. 1537 Chestnut street, became vested in Andre F.-Bornot, another of the complainants.</p> <p>4. On December 1,1831, Estlaek conveyed a lot, the remaining portion of his larger lot, at the distance of fifty-four feet eastward from the east side of Sixteenth street, described as “situate on the north side of Chestnut street enlarged and widened by a strip of ground six feet in width north and south, thrown out by the said Thomas Estlaek from the East side of Schuylkill Seventh street at the distance of ninety feet from the eastwardly side thereof, along the north line of said Chestnut street.” Containing in front or breadth “ on said Chestnut street ” eighteen feet, and in depth 108 feet. “ Together with the right and privilege to make and erect steps, railings, frontispieces, cellar doors, scrapers and vaults on or under the said six feet of ground.”</p> <p>This lob, No. 1535 Chestnut street, subsequently also became vested in Bornot, the complainant.</p> <p>5. About the beginning of the year 1833 a three-story brick dwelling was erected upon each of the said lots, with a front intended to be upon the north line of the strip of ground six feet in width “ thrown out ” by Thomas Estlack, and these houses so remained until a recent period, when they were converted into stores.</p> <p>6. The ordinance of the city of Philadelphia of March 21, 1881 (page 51), provided:</p> <p>“ Whereas, a voluntary recession has been made by many of the owners of property on the north side of Chestnut street between Fifteenth and Sixteenth streets, with a view to widening that street, and it being desirable that the said widening shall be legally established,” therefore it was ordained “ that the department of surveys be and is hereby authorized to place Chestnut street upon the city plan between Fifteenth and Sixteenth streets as widened six feet upon the north side thereof, in such manner that the north line may conform to the line of houses now built,” etc.</p> <p>7. On March 31, 1884 (ordinance, page 54), an ordinance of the city of Philadelphia was approved “ To provide for the widening of Chestnut street on the city plan,” which ordained:</p> <p>1. “ That the department of surveys be and is hereby authorized to revise the city plan so as to make Chestnut street from the Delaware river to the Schuylkill river of the width of sixty feet, widening equally on both sides from the center line.”</p> <p>2. “ After the confirmation and establishment of said lines it shall not be lawful for any owner or builder to erect any new building or to rebuild or alter the front of any building now erected without making it recede so as to conform to the lines established for a width of sixty feet.”</p> <p>8. In November of 1898, Bonschur, the defendant, having removed the old three-story building, No. 1533 Chestnut street, began the erection and construction of a new four-story structure upon the lot, having its front wall at the distance of thirty feet northward from the center of Chestnut street and about one foot south of the north line of the six-foot strip of ground and of the old line of the front of the brick dwelling.</p> <p>9. On March 24, 1899, counsel for the complainant Bornot, wrote to the defendant and to his builder, calling their attention to the fact that they were building south of the line called for in the deed to the defendant, and expressing a purpose to file a bill to compel a removal of that portion of the building. At this time the construction had proceeded to the extent that the building was about up to the second story, and the builder testified that “ the first story was practically the full height.” The bill asking for an injunction was filed April 30, 1899.</p> <p>10. Previously to November, 1898, the time at which the defendant began the erection of his building, the complainant had removed the houses upon his lots and erected stores Nos. 1535 and 1537 Chestnut street, the front lines of which upon Chestnut street were one and a half to two inches south of the north line of the six-foot strip, but exactly upon the front line of the houses which had stood since 1833 and been accepted by their owners as marking the north line of that strip.</p> <p>11. The effect of the construction by the defendant is to advance the main wall of his building from ten to ten and a half inches further to the south than those of the complainant, and the undisputed evidence of the only witness produced was that this constituted a substantial injury to the properties of the complainant, lessening their selling value to the extent of 17,500. These properties were left within a recess : to some extent the view of those approaching the stores was cut off; there was an interference with the opportunity for display in the bulk-windows, and the broken line of the street became an “ eyesore.” From this testimony it is found as a fact that the injury is special and substantial.</p> <p>The court entered a decree in favor of the plaintiff.</p> <p>Exceptions to the adjudication were dismissed by the court, Pennyp acker, P. J., filing the opinion of the court in which Sulzberger, J., concurred. Wiltbank, J., filed a dissenting opinion.</p> <p>Error assigned was in entering a decree enjoining the continuance of the building of the defendant to such extent as the same stood upon the one-foot wide strip formerly part of the north line of Chestnut street, immediately north of said north line as established by the department of survey under the ordinance of 1884.</p>

Appeal, No. 269, Jan. T. 1901, by defendant, from decree of C. P. No. 2, Phila. Co., March T., 1899, No. 115, on bill in equity in case of Frederick Wolf, Henry Wolf and Albert J. Wolf, Executors of Adam Wolf, v. William H. Christman. Bill in equity for specific performance, or in the alternative to refund money paid. Wiltbank, J., filed the following opinion: FINDINGS OF FACT. 1.

<p>Appeal, No. 289, Jan. T., 1901, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1900, No. 1120, on verdict for plaintiff, in case of John Ogden v. Philadelphia & West Chester Traction Company.</p> <p>Assumpsit on an alleged parol contract. Before Penny-packer, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

<p>Negligence — Borough—Bidewalk—Contributory negligence.</p> <p>A municipality must provide reasonably safe ways for the public, night and day; the citizen must only exercise reasonable care in their use.</p> <p>In an action by a woman against a borough to recover damages for personal injuries caused by a fall at a defective point in a sidewalk, the case is for the jury where the evidence shows that the accident occurred on a dark and stormy night; that the plaintiff at the time had one small child by the hand, while another preceded her; that plaintiff knew of the break on the side of the sidewalk, and was watching for it, but on account of the darkness did not see it, and that she could have readied her home by going around on a macadamized road with no sidewalks.</p>

Appeal, No. 253, Jan. T., 1901, by plaintiff, from judgment of C. P. Montgomery Co., Oet. T., 1900, No. 179, on verdict for defendant in case ofFayetta Knox v. Philadelphia & Reading Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Before Weand, J. At the trial the court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff: appealed.

<p>Negligence — Railroads—Blowing whistle — Emission of steam — Fright of horse.</p> <p>The blowing of a whistle by a locomotive engineer is a lawful act; the emission of steam ami smoke, where steam propels machinery, is a necessary incident of the use of steam, and therefore, not of itself unlawful. Both the blowing of the whistle and the escape of steam and smoke may be negligent, and therefore, unlawful according to circumstances. If the circumstances themselves do not warrant an inference of unlawful use, the mere fact that an accident was caused by either is not sufficient to convict of negligence.</p> <p>In an action to recover damages for the death of plaintiff’s husband, it appeared that at the time of the accident the deceased was driving on a country road near a deep cut of a railroad. A train had stopped at a station 400 yards away from the cut, and then started toward the cut. When the locomotive was in the cut, the vehicle on the highway was not visible to the engineer; and the railroad in front of him was visible only for a short distance, because of the curve; as lie approached the cut lie blew the whistle, and blew it loudly when entering, and in the cut smoke and steam in large quantity escaped; the deceased being on the highway above, his horse took fright, either because of the whistle or the smoke or because of both. Held, that a nonsuit was properly entered.</p>

Appeal, No. 25, Oct. T., 1901, by defendant, from judgment of O. P. No. 1, Allegheny Co., Dec. Term, 1898, No. 249, on verdict for plaintiff in case of Robert Henderson v. United Traction Company. Trespass to recover damages for death of plaintiff’s wife. Before Stowe, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,750. Defendant appealed. Error assigned was in refusing binding instructions for plaintiff.

Appeal, No. 40, Oct. T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1898, No. 415, on verdict for plaintiff in case of Richard Welsh and Peter Welsh, by his next friend, Richard Welsh, v. United Traction Company. Trespass to recover damages for personal injuries to a boy six years old.

<p>Deed — Life estate — Issue—Gross remainder — Trust and trustees.</p> <p>An uncle created by deed a trust for his five nieces for life, with remainder “ in trust as to one equal fifth part of said estate hereby conveyed for the use of any issue which said niece may leave, if more than one in equal shares in fee simple, and if any one of my said nieces shall die without issue, then the share of the one so dying shall go to her surviving .sisters or sister respectively that is, the daughters oí D. shall be entitled to receive the share of one of their sisters so dying without issue, and the daughter of T. shall be entitled to receive the share of her sister so dying without issue, but the same shall still be held by the trustees above named upon the same trusts as are above set out and hereinafter provided for.” The three nieces, daughters of D., subsequently died, two leaving issue surviving, and the third dying without issue. The two daughters of T. died leaving no issue. Held (1) that the nieces should have but life estates; (2) that their issue should take in fee; (3) that the grant should be kept within family lines, that is, that the shares of the daughters of T. and their issue should be kept separate and distinct from the shares of the daughters of D. and their issue, and there should be cross remainders within but not without the family lines; (4) that if there were issue within the family lines, that issue should take to the exclusion of everybody else, though their parent had died before her sister who had left no issue; (5) that the share of the daughter of D., who died without issue, should go to the issue of her deceased sisters; (6) that the two fifths in which the daughters of T. had a life interest should go to the heirs of the grantor under the intestate laws.</p>

<p>Appeal, No. 299, Jan. T., 1901, by plaintiffs, from decree of C. P. No. 1, Phila. Co., Sept. T., 1899, No. 380, dismissing bill in equity in case of Thomas Sutcliffe, John D. Sutcliffe, Jane Bouggy, James Sutcliffe and Janet D. Sutcliffe, v. Joseph G. Mariner and John O. Bowman.</p> <p>Bill in equity for an account.</p> <p>Error assigned was in dismissing the bill.</p>

Appeal, No. 225, Jan. T., 1901, by defendant, from order of C. P. Lebanon Co., March T., 1901, No. 91, confirming sheriff’s sale in case of Jacob E. Louser and Jacob L. Hauer, Executors of John Louser, Deceased, et al., v. Adam B. Light. Exceptions to confirmation of sheriff’s sale. Error assigned was in confirming sale.

Appeal, No. 365, Jan. T., 1901, by defendants, from decree of C. P. Lackawanna Co., Jan. T., 1901, No. 1, on bill in equity in case of Luther Keller v. City of Scranton, the Lackawanna Railway Company and the Scranton Railway Company. Bill in equity for an injunction.

<p>Appeal, No. 68, Oct. T., 1901, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 689, on verdict for plaintiff in case of the Bennett Water Company v. Burgess and Town Council of Mill-vale Borough.</p> <p>Trespass to recover damages for injuries sustained by the erection of a waterworks. Before Frazer, P. J.</p> <p>The facts appear by the report of the case in 200 Pa. 613.</p>

<p>Appeal, No. 357, Jan. T., 1901, by defendant, from judgment of C. P. Montour Co., Jan. T., 1900, No. 21, on verdict for plaintiff in case of Peter Weaver v. Philadelpliia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Little, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $3,000. Defendant appealed.</p> <p>Error assigned among others was refusal of defendant’s ninth point quoted in the opinion of the Supreme Court.</p>

Appeal, No. 336, Jan. T., 1901, by defendant from judgment of C. P. Monroe Co., Dec. Term, 1899, No. 9, on verdict for plaintiff in case of Henrietta Strader v. Monroe County. Trespass to recover damages for personal injuries. Before Craig, P. J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 12, Jan. T., 1902, by defendant, from order of C. P. Schuylkill Co., March T., 1900, No. 209, granting a new trial in case of John Dougherty v. Mary Andrews. Trespass for the alleged trover and conversion of a certificate of indebtedness. Before Bechtel, P. J. At the trial it appeared that Patrick McGee in his lifetime had on deposit with the Lehigh Coal & Navigation Company, $11,200, and held as evidence of such deposit a certificate of indebtedness.

<p>Evidence — Res adjudicata — Estoppel— Verdict — Judgment.</p> <p>Ko question becomes res adjudicata until it is settled by a final judgment. For this reason the verdict of a jury is not admissible as evidence to create an estoppel before it has received the sanction of the court by passing into a judgment. Until then, it is liable to be made nugatory by an order arresting judgment or granting a new trial.</p> <p>In an action by an administrator on a certificate of indebtedness issued by a corporation, where a third party intervenes as a party defendant, and claims ownership of the certificate as a gift from the decedent, such intervening party is not entitled to offer in evidence a verdict in her favor in an action of trespass brought against her by the administrator for her alleged unlawful detention of the certificate,where it appears that no judgment had been entered upon such verdict.</p>

Appeal, No. 14, Jan. T., 1902, by plaintiff, for decree of C. P. No. 1, Schuylkill Co., May T., 1901, No. 165, dismissing bill in equity in case of Mary Andrews v. Lehigh Coal & Navigation Company and John Dougherty. Bill in equity for an injunction.

Appeal, No. 24, Jan. T., 1902, by plaintiff, from decree of O. P. Lackawanna Co., dismissing bill in equity in case of li. B. Reynolds v. William P. Boland, C. G. Boland, Jolm A. Mears and the Peoples Coal Company. Bill in equity for specific performance. The facts are stated in the opinion of the Supreme Court. The court entered a decree dismissing the bill. Error assigned was decree of the court.