Volume 203 — Pennsylvania State Reports

<p>Corporations — Contract—President—Directors—Agent—Estoppel.</p> <p>The president of a slate company has no inherent authority to bind the company by a contract to ship all its productions in a certain way or by a certain line.</p> <p>JSTor does authority to raise money for the company upon mortgage imply authority to make such a contract as an incident of the loan.</p> <p>Acceptance of benefits of unauthorized action by an agent will not raise an estoppel, unless done with notice or knowledge on the part of the principal. Knowledge by the president of a corporation, acquired in another transaction is not notice to the corporation.</p> <p>Where the president of a railroad company, who was practically the owner of all its shares, procures the president of a slate company to execute a written agreement to ship all of the latter’s products over the railroad, and it appears that such agreement was not authorized by the directors or known to any of them, except the president of the railroad company who was also a director of the slate company, and it also appears that under the by-laws the president had no authority to make such a contract, and there is nothing to show that the slate company ever ratified the contract, such contract is void, and cannot be specifically enforced.</p>

Appeal, No. 36, Jan. T., 1902, by defendant, from judgment of C. P. Monroe Co., Sept. T., 1900, No. 12, on verdict for plaintiff in case of Frank P. Meckes v. Pocono Mountain Water Supply Company. Appeal from award of viewers. At the trial neither the defendant nor his counsel appeared.

Appeal, No. 372, Jan. T., 1901, by plaintiff, from order of C. P. Sullivan Co., May T., 1900, No. 34, making absolute a rule to open judgment in case of Robert McMahon, Jr., to use of John W. Carroll v. Robert McMahon and Elizabeth McMahon. Rule to open judgment. The opinion of the Supreme Court sufficiently states the case. Error assigned was order making absolute rule to open judgment.

Appeal, No. 108, Jan. T., 1902, by-plaintiff, from order of C. P. Luzerne County, Dec. T., 1902, No. 411, dismissing petition for mandamus in case of George J. Stegmaier v. John M. Jones, A. D. Hay and Patrick Finn, Commissioners of Luzerne County. Petition for mandamus.

Appeal, No. 71, Jan. T., 1902, by defendant, from judgment of C. P. Erie Co., Feb. T., 1901, No. 42, on verdict for plaintiff in ease of August Peplinsld v. Pennsylvania Railroad Company, Lessees of the Philadelphia & Erie Railroad. Trespass to recover damages for personal injuries. Before Thomas, P. J., specially presiding. Defendant presented these points: 1.

Appeal, No. 19, Jan. T., 1902, by defendant, from order of C. P. Blair Cq., March T., 1900, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of John M. Snyder, Assignee of Archibald McFadden, v. J. King McLanahan, Jr. Scire facias sur mortgage. Rule for judgment for want of a sufficient affidavit of defense. Before John Stewart, P. J., specially presiding.

Appeal, No. 23, Jan. T., 1902, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1898, No. 431, on verdict for defendant in case of Elizabeth Albright et al. v. Lehigh Coal & Navigation Company. Ejectment for land in Kalin township. Before Bechtel, P. J. The facts appear by the opinion of the Supreme Court. The assignments of error were verbatim as follows: 1.

<p>Banks and banking — Fraud—Two innocent parlies — Forged draft — Impersonation — Notice.</p> <p>As between two innocent parties he who by first acting makes loss possible by inducing the other to act, must bear it.</p> <p>An executor received letters purporting to be signed by a legatee. As a matter of fact the legatee was dead, and the letters were written and signed by her daughter at the dictation and under the direction of her father. The executor bought a draft for the amount of the legacy to the order of the legatee, and sent it in a letter addressed to her. The husband received it and procured the daughter to forge the name of his deceased wife, and secured the money. The executor did not until nearly four years after he discovered the fraud notify the bank that its draft had been paid on a forged indorsement. Held, that no recovery could be had against the bank.</p>

Appeal, No. 370, Jan. T., 1901, by-plaintiff, from decree of C. P. No. 2, Phila. Co., Dec. T., 1889, No. 308, on bill in equity in case of John C. Brenner v. James B. Carter and J. Harry Brenner. Bill in equity for an accounting of partnership assets. The facts of the case are stated in the opinion of the Supreme Court.

Appeal, No. 395, Feb. T., 1901, by William A. Flanigen and Lucille Flanigen, from decree of Ó. C. Phila. Co., April T., 1887, No. 431, sustaining exceptions to auditor’s report in Estate of Ann Appleton, Deceased. Exceptions to report of Arthur Moore, Esq., auditor.

<p>Appeal, No. 69, Jan. T., 1902, by defendant, from decree of C. P. No. 4, Phila. Co., Sept. T., 1900, No. 346, on bill in equity in case of Provident Life & Trust Company of Philadelphia v. Fidelity Insurance Trust & Safe Deposit Company, substituted for Swithin C. Shortlidge, as Administrator of Marie Dixon Jones Shortlidge, Deceased, et al.</p> <p>Bill of interpleader. Before Aüdenreid, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in awarding the fund to Garrett E. Smedley, substituted assignee.</p>

<p>Trusts q,nd trustees — Purchase of land for investment — Order of court— Estoppel — Laches.</p> <p>A person who is injured by fraud must be prompt in seeking redress. Laches and neglect are always discountenanced. Nothing can call a court of chancery into activity but conscience, good faith and reasonable diligence, and where these are wanting, the court is passive and does nothing. A court of equity does not encourage stale claims, and a party may lose his right to complain of a fraud by his delay.</p> <p>Where trustees under an order of the orphans’ court made after a reference to an examiner, and full investigation, purchase land as an investment for the trust estate, one of the cestuis que trust, who was fifteen years old at the time of the purchase, cannot, sixteen years thereafter, and after one of the trustees had been dead for nearly fourteen years, upon mere general charges of fraud in the matter of the sale, claim to have the sale set aside, and the trustees surcharged. In such a case it is no ground for setting aside the sale that one of the sellers chose to take in payment securities belonging to the trust estate instead of money; or that the land purchased was situated in another county than that in which the order was made.</p>

<p>Appeal, No. 114, Jan. T., 1902, by defendants, from decree of C. P. Blair Co., Equity Docket B, No. 376, on bill in equity in case of Altoona & Beech Creek Railroad Company v. Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company and the Altoona & Beech Creek Terminal Railroad Company.</p> <p>Bill in equity for an injunction.</p> <p>Bell, P. J., filed the following opinion :</p> <p>In May, 1892, the Altoona, Clearfield & Northern Railroad Company, by an instalment lease, purchased from the Baldwin Locomotive Works the locomotive which is the subject of controversy. The price to be paid was $7,500: $3,000 was paid in cash; notes of the company were given for the balance ; an instalment lease was given to secure said notes. The notes not being paid, the Baldwin Company, to No. 137, January term, 1894, issued a writ of replevin for said locomotive, to which the sheriff of Blair county made return: “ December 29, 1893, by order of plaintiff’s attorney, the within mentioned engine, having been replevied by me, was delivered to W. F. Forsythe, he receiving the same by direction aforesaid and as agent for plaintiff.”</p> <p>[The delivery to Mr. Forysthe was only formal and symbolic ; he did not in fact take charge of said locomotive; and when he undertook to exercise acts of ownership over it he was arrested on a criminal charge and abandoned all claim of ownership.] [1]</p> <p>The lease from the Baldwin company to the said railroad company was recorded in Blair county, but in a deed book, not in “ the same book as mortgages are recorded,” as required by the provisions of the Act of July 5, 1883, P. L. 176.</p> <p>The Altoona, Clearfield & Northern Railroad Company took possession of said locomotive and used the same until 1897, when it was sold to a committee of the bondholders in a sale by virtue of a mortgage given to secure such bondholders.</p> <p>Said bondholders reorganized the railroad company under the name of the Altoona & Beech Creek Railroad Company and used said locomotive as their property until they leased same, in connection with the other property of the railroad, to the Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company. Said lease was about to be abrogated on January 1, 1902, when the locomotive in question was removed from the line of the Altoona & Beech Creek Railroad, taken across .a public road and loaded on the cars of the Pittsburg Railroad, whereupon this bill was brought to restrain such removal.</p> <p>In 1893 and 1894 there was protracted litigation as to the control of the Altoona, Clearfield & Northern Railroad.- The F. G. Patterson faction were first in control; then what is termed the Langdon faction obtained control, S. P. Langdon being president; then, on appeal to the Supreme Court, the Langdon faction were ousted and the Patterson faction put in possession ; then S. P. Langdon and F. G. Patterson were appointed receivers. The facts surrounding this litigation will be found in Langdon v. Patterson, 158 Pa. 476, and Shellenberger v. Patterson, 168 Pa. 31.</p> <p>On October 3, 1893, S. P. Langdon was president of the Altoona, Clearfield & Northern Railroad Company. The minutes of said company show that on said date:</p> <p>“ The president reported that Messrs. Burnham, Williams & Co. (the Baldwin company) had withdrawn all legal proceedings, and the account left for an amicable adjustment' at a later date.”</p> <p>Mr. Langdon, in addition to acting as president of the Altoona, Clearfield & Northern Railroad Company, was also president of the Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company and was the president, or the active director, of the United Collieries Company.</p> <p>[On December 30, 1893, Mr. Langdon, while acting still as the president of the Altoona, Clearfield & Northern Railroad Company, entered into an agreement, as president of the United Collieries Company, with Burnham, Williams & Company (the Baldwin company) whereby said Baldwin company transferred their rights in the locomotive in question to the said United Collieries Company, who were to pay the balance due on same in coal. On September 30, 1897, said United Collieries Company did pay said balance in coal. But no notice of such transfer by the Baldwin company to the'United Collieries Company was ever given to the Altoona, Clearfield & Northern Railroad Company or their successors in title. At the sale on the mortgage a notice was given that S. P. Lang-don claimed the said locomotive, but Mr. Langdon never attempted to assert title in pursuance of said notice. . On the contrary, from the fall of 1893 on down to the inception of this suit, or October 25, 1901, tbe Altoona, Clearfield & Northern Railroad Company and their successors in,title, the Altoona & Beech Creek Railroad Company, claimed said locomotive and exercised ownership over the same. The first that said companies knew of the claim of the United Collieries Company was when said collieries company asked to intervene as defendants.] [2]</p> <p>LEGAL DISCUSSION.</p> <p>[The said United Collieries Company cannot now be heard to set up their said claim to the said locomotive for two reasons:</p> <p>1. — Said claim as against the Altoona & Beech Creek Railroad Company, a “ purchaser for a valuable consideration” is barred by the Act of July 5,1883, P. L. 176. Said act provides as follows :</p> <p>“ That whenever any railroad equipment and rolling stock shall hereafter be sold, leased or loaned .... such contract shall be invalid as to ... . any subsequent purchaser for a valuable consideration without notice, unless ....</p> <p>“ II. Such writing shall be recorded in the same book as mortgages are recorded.....</p> <p>“ III. Each locomotive .... so leased, or loaned, shall have the name of the vendor, lessee or bailee plainly marked upon both sides thereof . . . .”</p> <p>The evidence adduced in this case negatives the idea that the locomotive in question was marked in accordance with the provisions of said section III. Moreover, the written lease was not recorded “ in the same book as mortgages are recorded,” but in a deed book. Hilton’s Appeal, 116 Pa. 359, is an authority for the proposition that the statutory provision in relation to chattel mortgages must be literally complied with. In Luch’s Appeal, 44 Pa. 519, it is ruled that:</p> <p>“ Mortgages must be recorded in the mortgage books, where they can be found by reference to the mortgage index, or the recording is insufficient.”</p> <p>In Collins v. Bellefonte Central R. R. Co., 171 Pa. 257, the only case wherein the Supreme .Court seems to have passed on the provisions of said act of July 5,1883, notice of the claim of Mr. Collins was given at the sale and the purchaser thereat afterwards entered into negotiations to buy out his claim.] [3]</p> <p>[2. Plaintiffs acquired title to the locomotive in question by virtue of the statute of limitation. From the fall of 1883 on down to the fall of 1901, they have been claiming said locomotive as their property, have been in the possession of same and have been exercising acts of ownership over it. The first notice they had of any adverse claim in behalf of the United Collieries Company was after the inception of this suit. In Williams on Personal Property, p. 509, it is said:</p> <p>“ If goods and chattels should have come into the possession of persons having no title to them, such persons will, in course of time, be quieted in their enjoyment by virtue of the statute of limitations. By this statute all actions of trespass, detinue and replevin for goods or chattels must be brought within six years. ...”</p> <p>It is scarcely necessary to cite authorities to the effect that equity follows the law as to the statute of limitations. Moreover, this seems to be the case when the said statute is peculiarly applicable for three reasons:</p> <p>1. The plaintiffs or their predecessors in title, the Altoona, Clearfield & Northern Railroad Company, intended to purchase the locomotive. The lease, or bailment agreement, was only a device to secure to the Baldwin company the purchase money. Such bailments, while upheld by our Supreme Court, have not been particularly favored.</p> <p>2. S. P. Langdon, in all the various transactions, was acting in a dual capacity, or possibly a triple capacity. He was representing the Altoona, Clearfield & Northern Railroad Company, the Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company and the United Collieries Company.</p> <p>3. The plaintiffs, or the said predecessors in title, paid 13,000 on account of this locomotive. Collins v. Bellefonte Central R. R. Co., 171 Pa. 257, is an authority to the effect that it is not inequitable to reimburse them for said outlay. It may be that the decree in this case will be without prejudice to rights of the United Collieries Company to maintain an action at law wherein they can attempt to recover the amount they have invested in the locomotive in question.] [4]</p> <p>LEGAL CONCLUSIONS.</p> <p>[The injunction heretofore granted should be made perpetual. and defendants should be restrained from removing or further interfering with said locomotive.] [5]</p> <p>Errors assigned were (1-5) portions of opinion, quoting them.</p>

<p>Equity — Res adjudicata — Forfeiture of railroad lease — Writ of assistance.</p> <p>On an application for a writ of assistance to place a lessor in possession of leased property after a decree of forfeiture of the lease, the court will consider as finally adjudicated all questions relating to the right of forfeiture which were considered in the forfeiture proceedings, or which should have been then presented for consideration.</p> <p>Railroads — Lease—Writ of assistance — Forfeiture.</p> <p>Where a decree of forfeiture of a railroad lease entered because of failure to perform a covenant to build certain miles of railroad has been modified by the Supreme Court, so as to extend the time for the performance of the covenant, a writ of assistance should not be granted to the lessor before the expiration of the extended time ; but a decree granting a writ of assistance will not be reversed by the Supreme Court where it appears that at the time the writ was issued only five days remained in which to complete fifty or sixty miles of railroad, and that consequently the covenant could not have been performed within the extended time.</p>

Appeal, No. 37, Jan. T., 1902, by plaintiff, from judgmentof C. P. Erie Co., Sept. T., 1900, No. 108, on verdict for defendant in case of R. B. Willis v. International Construction Company, with, notice to F. F. Curtze, Garnishee. Foreign attachment. Before Walling, P. J. At the trial it appeared that the International Construction Company had a contract with the Erie Transit Company for the construction of an electric railway from Erie to Cambridge Springs.

<p>Appeal, No. 72, Jan. T., 1902, by plaintiff, from judgment of C. P. Erie Co., Feb. T., 1901, No. 152, on verdict for defendant in case of George H. Barlow, Trustee, v. G. A. Fox.</p> <p>Replevin to recover possession of personal property in a hotel. Before Wallace, P. J., specially presiding.</p> <p>At the trial it appeared that on April 30, 1894, James Edwards, then proprietor of the1 Phoenix hotel in the city of Corry, Pennsylvania, sold and delivered, to Thos. F. Oliver, and William E. Oliver, doing business as Oliver Brothers, the business and all the personal property in the hotel, for the sum of $10,000, $4,000 of which was paid in cash and the balance was to be paid in four annual payments of $1,500 each with interest, commencing May 1, 1895.</p> <p>On August 18,1897, Oliver Brothers had paid all but $1,500, which, however, was not due until May 1, 1898. James Edwards desired to have the money and to enable him to get it, Oliver Brothers signed a note with him to the Citizens’ National Bank of Corry for the amount, and at the same time as part of the same transaction, Oliver Brothers executed a written cancelation and surrender of their contract of April 30, 1894, on the back thereof, to James Edwards. James Edwards executed a bill of sale of said personal property to Geo. H. Barlow, trustee, and Oliver Brothers took back a lease of said property from Geo. H. Barlow, trustee, for one year, agreeing to pay $1,500 with interest, being the amount of the note. The cancelation and surrender of the contract of April 30,1894, the bill of sale from James Edwards to Geo. H. Barlow, trustee, and the bailment from Geo. H. Barlow, trustee, to Oliver Brothers, was all one transaction, and was done to secure the payment of the note.</p> <p>Geo. H. Barlow, trustee, never took possession of said property and the possession continued in Oliver Brothers, who carried on the hotel until June 7, 1898, when Thomas A. English purchased the interest of Thomas F. Oliver in said hotel business and property and from that time on the business was carried on by Oliver & English and the possession of said property continued in them.</p> <p>On August 18, 1898, Oliver & English ancl James Edwards gave their note to the Citizens’ National Bank of Corry, for the sum of $1,545, being the amount of the former note, which they took up, with the unpaid interest, and being an assumption of the same debt. At the same time Oliver & English took back from Geo. H. Barlow, trustee for said bank, a lease or bailment of said property, for one year, agreeing to pay the sum of $1,500 at the end of said term. This bailment was executed for the purpose of securing the payment of said note, and Oliver & English continued in the possession of said property and carried on the said hotel business.</p> <p>On August 18,1899, the note not having been paid, except some interest, they renewed tire same and took back a lease or bailment of said property from Geo. H. Barlow, trustee for said bank, for six months, agreeing to pay the same $1,500 as before. The notes were all for the same debt and nothing was paid except interest. Oliver & English still continued in the open possession of the property until possession was taken by their trustee in bankruptcy about October 8, 1900, and they continued to carry on the hotel business until that time. Geo. H. Barlow, trustee, never had any possession of said property. There was no evidence as to whether they were owing others besides the bank when these transactions took place. At the time of the bankruptcy Oliver & English were largely indebted.</p> <p>On August 28,1900, Oliver & English were adjudged bankrupt, and subsequently Don F. Smith was appointed trustee. About October 8, 1900, the trustee took possession of the hotel and this property in dispute, and carried on the hotel until November 20, 1900, when the trustee, by order of the United States court, sold all of this property, and also the leasehold of the real estate and the license to sell liquors, at bankruptcy sale, as the property of Oliver & English, bankrupts, and G. A. Fox, the defendant, purchased the same at said sale, he being the highest bidder. Geo. H. Barlow, the plaintiff, was also a bidder at said sale. At said sale Geo. H. Barlow, trustee, gave notice that he claimed said personal property.</p> <p>The defendant immediately took possession of said property, which he has held ever since, claiming title by virtue of the trustee’s sale. The plaintiff brought this action of replevin and defendant gave a claim property bond and retained the goods.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

Appeal, No. 122, Jan. T., 1902, by defendant, from judgment of C. P. Crawford Co., Sept. T., 1899, No. 22, on verdict for plaintiff in case of Chandley Brothers & Co. v. Cambridge Springs Borough. Assumpsit on a construction contract. Before Wallace, P. J., specially presiding. For previous report of the case see 200 Pa. 230. At the trial the main issue between the parties was as to the responsibility for a delay of three weeks in completing the work.

Appeal, No. 163, Jan. T., 1901, by defendant, from order of C. P. Fayette Co., Dec. T., 1900, No. 60, discharging rule to set aside execution in case of Asenath H. Pershing to use of Morris Kobacker and Joseph I. Kobacker v. Hazel Feinberg. Rule to set aside execution. From the record it appeared that on April 6, 1899, Hazel Feinberg leased from Asenath H. Pershing a storeroom in Conn ells ville at the annual rental of $420, payable monthly.

<p>Appeal, No. 135, Jau. T., 1902, by plaintiff, from order of C. P. Fayette Co., March T., 1899, No. 38, refusing to take off nonsuit in case of Joseph Hall, Jr., Guardian of Eliza Ann Hall, a Minor Child of James Hall, Deceased, v. John D. Simpson, C. A. Van Horn, Daniel Livingston, William Livingston, and Elizabeth C. Hogg, trading as the Umpire Coal Company.</p> <p>Trespass to recover damages for death of plaintiff’s father. Before Kennedy, P. J., specially presiding.</p> <p>At the trial it appeared that on December 23, 1898, James Hall, plaintiff’s father, was killed by an explosion in defendant’s mine. The evidence showed that the ventilating fan in the mine was run from four o’clock in the morning until four o’clock in the afternoon. The miners went to work at seven o'clock in the morning. There was nothing in the testimony to show that the defendants had not provided proper ventilating machinery, and employed proper persons as mine inspector and mine foreman. The duties of mine foreman and mine inspector in relation to gas in mines are defined by the Act of May 15, 1893, P. L. 52, articles 5, 6, 7, 20, rules 6, 9, 10, 26.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Corporations — President—Confession of judgment to president for advances.</p> <p>Where the directors of an insolvent corporation vote that if the president shall at once furnish funds and credit to operate the business of the company, and give it his active personal attention he shall be secured by a judgment confessed in his favor, and the president acts in accordance ■with the terms of the resolution, he will be entitled, on a subsequent sale of the property of the corporation, to the proceeds of the sale to satisfy the judgment confessed to him for advances, and this is the case although it may take all of the proceeds to pay the judgment.</p>

Appeal, No. 378, Jan. T., 1901, by defendants, from order of C. P. No. 4, Phila. Co., June T., 1900, No. 658, refusing to take off nonsuit in case of Edmund B. Seymour and Joseph Savidge v. Tradesmen’s Trust and Saving Fund Company. Assumpsit upon a policy of title insurance.

<p>Tax sale — Purchase by county — Abandonment of title.</p> <p>Where county commissioners buy lands at a tax sale and subsequently cause the lands to be assessed for county taxes, and thereafter sell the lands for nonpayment of these taxes, the county will be deemed to have abandoned its first title, and the sale will vest a good title in the purchaser.</p>

Appeal, No. 283, Jan. T., 1901, by defendant, from decree of C. P. McKean Co., June T., 1901, No. 2, on bill in equity in case of Smethport Railroad Company v. Pittsburg, Shawmut & Northern Railroad Company. Bill in equity to regulate a crossing of one railroad by another.

Appeal, No. 67, Oct. T., 1901, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1900, No. 79, refusing to take off nonsuit, in case of W. F. Ehni v. National Tube Works Company. Trespass to recover damages for personal injuries. Before Stowe, P. J. At the trial it appeared that plaintiff was injured on July 11, 1898, by the breaking of a plank in a scaffold upon which he was standing while at work in defendant’s iron works.

Appeal, No. 217, Jan. T., 1901, by. plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1899, No. 240, dismissing bill in equity in case of William E. Baker v. Robert Manley. Bill in equity for a specific performance at an abatement of the purchase money.

<p>Principal and agent — Attorney in fact to sell land — Consideration—Husband and wife.</p> <p>■Where a husband gives a power of attorney to his wife to collect debts and rents and apply the proceeds thereof to the maintenance of herself and children, and also to sell real estate, but with no power to apply the proceeds thereof to her own use, a deed made by the wife to her son for certain of the husband’s lands in consideration of certain previous payments made by the son to his mother for her support, and also in consideration of an agreement on the son’s part to support his mother thereafter, is invalid as to the husband, as not based upon a consideration moving to him.</p>

Appeal, No. 358, Jan. T., 1901, by Charles C. Goodman, frorti decree of O. C. Berks Co., Jan. T., 1894, No. 46, sustaining demurrer to petition for partition in Estate of Daniel Klapp. Demurrer to petition for partition.

Appeal, No. 403, Jan. T., 1901, by defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1899, No. 477, dismissing exceptions to report of referee in case of Plymouth Cordage Company v. Pennsylvania Wood Company. Exceptions to report of George Wharton Pepper, Esq., referee.

<p>Constitutional law — Classification oj school districts — Local legislation— Act of May 23, 1874, P. L. 254, sec. 41, proviso 3.</p> <p>The 3d proviso of the 41st section of the act of May 23, 1874, relating to school districts coterminous with cities of the third class is constitutional, and is not local or special legislation.</p> <p>A school district coterminous with a city of the third class may elect to retain the laws governing it prior to the acceptance by the city of the third class city act. Those districts which do not embrace its provisions remain members of a class whose existence and all the elements of whose government are regulated by general law.</p>

<p>Negligence — Railroads—Bridge.</p> <p>In an action against a railroad company to recover damages for personal injuries from falling off a toll bridge maintained by the defendant, a nonsuit is properly entered, where the evidence shows that the bridge was properly constructed and in good condition, that there was a guard rail of such a height that a man walking on the bridge would be in no danger of toppling over the rail, that at the time of the occurrence the plaintiff was intoxicated, and that the fair inference from the testimony was that the plaintiff climbed over the rail while drunk and fell into the river.</p>

<p>Water companies — Municipalities—Revocation of offer to furnish, gratuitous.</p> <p>Where a water company in an agreement with a municipality reserves a right to revoke an offer to furnish water gratuitously to the city, and subsequently exercises such right, and the city thereafter continues to use water with notice that it will be expected to pay rental therefor, the city will be liable for the water which it has used.</p>

Appeal, No. 173, Jan. T., 1901, by plaintiff, from judgment of C. P. Elk Co., Oct. T., 1899, No. 44, on verdict for defendant in case of Elk Tanning Company v. J. Henry Brennan. Trespass to recover damages for the wrongful cutting of timber. Before Mayer, P. J. The opinion of the Supreme Court states the case. Judgment and verdict for defendant. Plaintiff appealed. Error assigned was the concluding portion of the charge quoted in the opinion of the Supreme Court.

Appeal, No. 5, Jan. T., 1902, by plaintiff, from judgment of C. P. Warren Co., Sept. T., 1899, No. 55, on verdict for plaintiff in case of John Wholeben v. Warren Mica Lubricant Company. Trespass to recover damages for personal injuries. Before Lindsey, P. J. At the trial it appeared that on March 18, 1899, plaintiff was injured while at work in defendant’s establishment at certain machinery, which was used to bolt lime.

Appeal, No. 201, Jan. T., 1901, by plaintiffs, from judgment of C. P. Blair Co., Jan. T., 1898, No. 548, in case of Daisy E. B. Grubb et al., Trustees under the Will of Clement B. Grubb, v. Margaret Galloway, Administratrix. Scire facias sur mortgage. Before Bell, P. J. Verdict for plaintiff for $3,380.50, subject to points reserved.

Appeal, No. 105, Jan. T., 1902, by defendant, from order of C. P. McKean Co., June T., 1901, No. 317, refusing a change of venue in case of W. W. Willoughby et al. v. Buffalo, Rochester & Pittsburg Railway Company. Rule for change of venue. The opinion of the Supreme Court states the case. Error assigned was the order of the court discharging the rule.

Appeal, No. 132, Jan. T., 1903, by defendant, from decree of C. P. Lebanon Co., Equity Docket, 1902, No. 1, on bill in equity in case of Horace Brock et al., Trustees under tbe will of G. Dawson Coleman, Deceased, v. Pennsylvania Steel Company. Bill in equity for specific performance.

<p>Appeal, No. 106, Jan. T., 1902, by-defendant, from order of C. P. McKean Co., June T., 1901, No. 318, refusing a change of venue in case of G. N. Grow v. Buffalo, Rochester & Pittsburg Railway Company.</p>

Appeal, No. 133, Jan. T., 1902, by defendant, from decree of O. C. Lebanon Co., Equity Docket, 1902, No. 2, on bill in equity in case of Charles B. Grubb and Daisy E. B. Grubb, Trustees under the Will of Clement B. Grubb, Deceased, v. Pennsylvania Steel Company. Bill in equity for specific performance. Before EbhGOOD, P. J.

Appeal, No. 308, Jan. T., 1901, by plaintiff, from order of C. P. Lancaster Co., June T., 1900, No. 4, refusing to take off nonsuit in ease of L. Frank Siegler v. Clayton Mellinger and Jacob Rudy, Supervisors of Upper Leacock Township. Trespass to recover damages for personal injuries.

Appeal, No. 311, Jan. T., 1901, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1898, No. 4, on verdict for defendant in case of Levius Heiss v. City of Lancaster. Trespass to recover damages for personal injuries. Before Landis, J. At the trial it appeared that on August 9,189T, at five o’clock in the morning, plaintiff slipped and fell in a deep open gutter between a street crossing and the curbstone.

Appeal, No. 359, Jan. T., 1901, by George D. Gitt and Harry N. Gitt, Executors of Joseph W. Gitt, Deceased, from decree of O. C. York Co., sustaining exceptions to auditor’s report, Before Bittenger, P. J. Exceptions to report of C. J. Delone, Esq., auditor.

<p> Equity —Laches—Turnpike companies. </p> <p>Where a turnpike company abandons its road, and the township supervisors thereupon maintain the road for several years, and subsequently a new turnpike company is organized, takes possession of the road, expends money upon it and erects toll gates, the supervisors cannot, after the expiration of sixteen years from the time when the new company took possession of the road, maintain a bill in equity against it to restrain it from the use of the road until it had reimbursed the supervisors for the expenditures which the latter had made upon it.</p>

<p>Appeal, No. 112, Jan. T., 1902, by Alice R. Young, from decree of C. P. York Co., Jan. T., 1902, No. 1, on bill in equity in case of Pennsylvania Railroad Company and the Pennsylvania Railroad Voluntary Relief Department v. Emma E. Wolfe and Alice R. Young.</p> <p>Bill in equity for an interpleader. Before W. F. Bat Stewart, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree in favor of Emma E. Wolfe.</p>

<p>Negligence — Municipalities—Street crossings— Uncovered gutter.</p> <p>It is not negligence for a city to maintain at a street crossing an uncovered gutter eight inches wide and six inches deep.</p>

Appeal, No. 337, Jan. T., 1900, by plaintiff, from decree of C. P. Fayette Co., No. 309, in equity, in case of Andrew B. Ledwith v. Mary L. Reichard and C. C. Reichard, her Husband, and Anna M. Parks and J. J. Parks, her Husband. Bill in equity for specific performance. The facts appear by the opinion of the Supreme Court. Error assigned was the decree of the court, dismissing the bill.

Appeal, No. 129, Jan. T., 1902, by Anna Mary Myers et al., from decree of O. C. York Co., directing sale of real estate in the estate of Daniel Loueks. Petition for sale of real estate.

<p>Appeal, No. 31, May T., 1902, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1900, No. 173, on appeal from tax settlement in case of Commonwealth v. Keystone Laundry Company.</p> <p>Appeal from tax settlement.</p> <p>The case was tried without a jury under the act of April 22, 1874. Weiss, J., found the facts to be as follows;</p> <p>1. The defendant company is a domestic corporation organized “ for the purpose of cleansing, bleaching, starching and smoothing textile fabrics by the use of machinery or mechanical» appliances and the application of skilled manual operation.”</p> <p>2, It reported the actual cash value of its capital stock to the auditor general for the year 1899 at $55,000, upon which the accounting officers of the state imposed a tax of five mills equal to $275, from which the defendant appealed, and filed specifications of objections thereto.</p> <p>8. The company collects “ soiled cotton and woolen goods, household, hotel and restaurant goods and linens of all kinds,” and receives from manufacturers of cotton and woolen goods and fabrics, goods in process of manufacture and preparation for the market.</p> <p>The cotton and linen goods are washed in hot-water and soap until they are clean, then rinsed and washed again in a bleaching solution, then rinsed again, then rewashed in a coloring solution to which is added a scouring solution, which acts as a fixative, then starched by machinery, then thoroughly dried, then dampened and ironed.</p> <p>The process of coloring and bleaching is applied to all the wares except woolen goods.</p> <p>4. The material is handled by skilled workmen of whom there are a large number and to whom a large sum of money was paid for wages during the tax year.</p> <p>5. Its capital stock is invested exclusively in its plant and business, except the sum of $4,008.74, which is invested in towels, towel racks, soap, etc., which it places in business houses and offices, and launders them from time to time, and upon this part of the capital stock it has paid to the commonwealth $20.43, and appealed from the balance.</p> <p>The exemption from taxation is claimed under the provisions of the Act of June 8, 1893, P. L. 355.</p> <p>The court entered judgment for the commonwealth for $275, refusing the exemption claimed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 386, Jan. T., 1901, by plaintiff, from order of C. P. York Co., Aug. T., 1901, No. 33, on writ of habeas corpus in case of Commonwealth ex rel. Kenneth McDougall v. Emma Virginia McDougall.</p> <p>Habeas corpus to determine the right to the custody of a child. The record showed the following docket entries:</p> <p>On petition and affidavit filed, writ of habeas corpus awarded. By the Court. W. F. Bat Stewart, Judge. June 5, 1901, served the within writ of habeas corpus on Emma V. McDougall, herein named, by handing to her and leaving with her a true and attested copy; at the same time informing her of the contents thereof, by reading the same to her in her hearing. So answers Lemon Love, Sheriff, June 6, 1901. Return filed by leave of court, and permission granted to file replication on or before June 10, 1901, and the court fixed Monday, June 17, 1901, at ten o’clock A. M. for the hearing. June 6, 1901, bond of E. Virginia McDougall in the sum of $1,000, with Amanda F. Reisinger, as surety, filed and approved by the Court. June 10, 1901, exceptions to respondent’s return filed in the prothonotary’s office, court not being in session. June 11, 1901, traverse filed by leave of court. June 11, 1901, exceptions to respondent’s answer filed in open court, and the court refused to grant the rule as prayed for, exception allowed Mr. McCall by the court. June 15, 1901, hearing continued, the respondent to pay the costs of the witnesses, and the court fixed July 8, 1901, at ten o’clock A. M. for the hearing.</p> <p>And now, to wit: July 8,1901, the child, Kenneth McDougall, Jr., is remanded to the custody of the mother, Emma V. Mc-Dougall. The county of York is directed to pay the costs of this proceeding and the court allows an exception to the petitioner. By the Court. July 9, 1901, defendant’s bill of costs filed. August 24, 1901, notes of testimony filed. December 20, 1901, appeal bond to the Supreme Court of Pennsylvania filed and approved by the prothonotary. December 23, 1901, certiorari to the court of common pleas, for the county of York, from the Supreme Court of Pennsylvania filed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 144, Jan. T., 1902, by the Union Trust Company, from decree of O. C. Lancaster Co., Feb. T., 1902, No. 8, overruling exceptions to report of auditor in estate of Christian Souder, deceased. Exceptions to report of Owen P. Bricker, Esq., auditor. From the auditor’s report it appeared that Christian Souder died in 1870, leaving a will by which he directed as follows: “ 23d item.

<p>Appeal, No. 99, Jan. T., 1902, by defendants, from judgment of C. P. Luzerne Co., May T., 1896, No. 657, on verdict for plaintiff in case of Joseph Stevenson v. Ebervale Coal Company et al.</p> <p>Trespass to recover damages for pollution of a stream by coal dirt. Before Newcomb, J., specially presiding.</p> <p>See Stevenson v. Ebervale Coal Co., 201 Pa. 112.</p> <p>When William F. Dodge was on the stand, he was asked this question:</p> <p>“ Q. State whether it is possible or practicable to flush out this mill race, mill dam and reservoir.”</p> <p>Objected to on the ground that it has not been shown that witness is qualified to give an opinion on that subject.</p> <p>“ Q. How long have you been a civil engineer? A. I have been a civil engineer since about the year 1869 ; first started in my profession. Q. State whether or not you have had occasion during that time to examine means and methods of' flushing out streams that are impregnated or polluted with culm. A. I have. Q. How many instances ? A. Most of them made a special examination on that point for the Lehigh Coal and Navigation Company in a case similar to this, in which I was on the opposite side, down the Little Schuylkill river, this state. There was an action there for damage, similar to this. Q. Did you make a general examination at that time of the practicability — ■ A. I did. Q. State the extent of the flushing. A. I did; examined one flushing plant that was successful. Q. Whether or not it is possible or practicable to flush this out?”</p> <p>PRELIMINARY CROSS-EXAMINATION.</p> <p>Mr. Palmer: “ Q. Did you ever try to get the dirt out of a mill dam ? A. I have tried the action of the water upon sediment such as collected in this mill race and mill dam and reservoir ; yes. Q. Where and when ? A. I made tests for that purpose. Q. What did you do to make a test ? A. I took the material — pasty-like material — the deposits in the bottom of the water courses; I took a hose with a pressure of twenty-five pounds to the square inch and demonstrated the fact. Q. Never mind what you demonstrated; what you did. A. Well, 1 took a three quarter of an inch hose — a three quarter hose, rather — to which was attached an ordinary garden nozzle, and I directed the stream upon this body or mass of coal dirt deposit, and found that by applying the stream above the mass that was deposited on a plank, that the water simply shot around and would not dissolve it. I found that it would simply bore — in throwing it into the center of the mass — simply bore it into the center of the mass without dissolving. I then made an application to sand and gravel, and I found that by playing the stream above the mass on the plank, that it simply dissolved and washed it out. There is a difference between sand and coal mud deposits; one is a sticky matter. Q. Where did you get this mud from you practiced on ? A. Mud deposit in the Little Panther creek of the Lehigh Coal and Navigation — the wash sediment from the treatment of coal. Q. How much of this stuff did you take out of the pond? A. I suppose I took a mass of about — of about an ordinary bottleful. Q. Pail full? A. Yes; and allowed it to settle; put it on a plank, the plank being set at a pitch corresponding with the angle Q. Then you took a garden hose and turned the water on ? A. I placed this mass of putty-like material, which is either made by coal dirt, dust and buckwheat, and pea coal — I placed that on a plank at an angle similar, or as nearly as possible to the pitch of the mill race, and then tried, as I told you, the water in two ways on it. Q. You took the garden hose and turned the water on it ? A. I did. I tried the water from this hose upon this mass at a pressure of twenty-five pounds to the square inch. Q. Listen to my question: You took a garden hose and turned hose on this mud and stuff which you put on the plank? A. No — beg pardon; turned the water on. Q. You took a garden hose and turned the water from the hose on it? A. Yes. Q. You think that is smart? A. No; I think that is straight and correct. Q. How did you know there was a pressure of twenty-five pounds to the square inch? A. Because that was the pressure indicated. Q. Indicated where ? A. In the water company’s office here in Wilkes-Barre. Q. Did you go to the water company’s office and find that on that day there was a pressure of twenty-five pounds on the main ? A. I did. I made inquiry of Jones. Q. You inquired of somebody what the pressure thére was on that day? A. The superintendent or — • Q. And that is the way you found there was a pressure of twenty-five pounds on the main? A. On the main. Q. Therefore you assumed the pressure came out of the nozzle of the garden hose was twenty-five pounds to the square inch? A. Yes. Q. And that is all you know about that pressure that day? A. That is all I know about that particular pressure. Q. What day was that? A. I can give you approximately the day by reference to my notes. It was some time in the year 1890, if I remember right. Q. Spring, summer, or fall? A. It was along in the spring, as I now remember. Q. What month? A. I can tell you that later. I have the day when I did the work. Q. I wish you would find out that day. A. I will; I will give you that.”</p> <p>Plaintiff proposes to prove by the witness that it would be impossible to flush this mill dam, race and reservoir out. Defendants object, on the ground that it is in the nature of expert testimony, and the witness is not qualified to speak on the subject as an expert.</p> <p>The Court: I think he is qualified to express an opinion.</p> <p>Objection overruled, question allowed, evidence admitted, exception noted and bill sealed for defendant. [1]</p> <p>Jasper Shoemaker on the stand:</p> <p>“ Q. What business have you been in most of your lifetime ? A. In the woolen business, manufacturing. Q. Water or steam? A. Principally steam ; partly water, though. Q. Have you been in this mill of Mr. Stevenson’s ? A. Yes, sir. Q. Examined it? A. Yes, sir. Q. Take that mill there as it stands, the machinery and water power — twenty-five horse power, I believe — what, in your judgment, pure, clear water feeding that mill, would that mill be worth ? ”</p> <p>Objected that it ha& not been shown that the witness is qualified to give this testimony.</p> <p>The Court: Find out what he knows about this mill, and what knowledge and experience he has of mills constructed and operated as this was.</p> <p>“Q. You live in Lackawanna county? A. Yes, sir. Q. How long have you been familiar with mills somewhat similar to this ? A. Oh, I have been familiar forty or fifty years. Q. Have you known of mills like this to be bought and sold during jmur experience? A. I don’t know as I know of any to be sold. I know about what the value of them has been. I do not know of any mill where they have been sold. Have worked in a good many different mills, but I never knowed one to be sold. Q. Never knew of any mill to be sold? A. No; I do not. Q. And you own mills yourself ? A. Yes, sir. Q. You know the value of waterpower, do you not? A. Well, yes; I am somewhat acquainted with water power — the value of it.”</p> <p>The Court: “ Q. Have you known, at any time within recent years, of the prices at which mills like the one in question have been held ? A. No ; I do not. As a general thing those mills are generally held pretty high, because the business, as a general thing, is a paying thing, and when a man has a paying thing he holds his plant pretty high. Q. They are not usually on the market? A. No, sir; I never heard of but one in all my knowledge that was on the market; that was some few years ago, and that was a mill in Centre county. I saw an advertisement in the Philadelphia paper. Q. Was that sold? A. I don’t know whether it was sold or not; I never had heard. Q. How often have you been in this mill ? A. Oh, I was only down that one time and I went through it. Well, no; I was through it a couple of times. I went through it with the jury, and I went through it myself before. Q. Examined it carefully ? A. Yes, sir. Q. So that you are familiar with the mill ? A. Yes, sir.”</p> <p>Defendants’ counsel still objects.</p> <p>The Court: I am inclined to accept the evidence for what it is worth, letting the jury pass upon its value under such instructions as I think the court is bound to give. The objection is overruled. Note an exception.</p> <p>Bill sealed for defendant. [2]</p> <p>W. Scott Halfpenny was asked these questions :</p> <p>“ Q. What is your business? A. Woolen manufacturer. Q. How long have you been engaged in woolen manufacture ? A. Pretty nearly all my life. Q. Water or steam ? A. Steam. Q. Ever been in that business, using water ? A. No. Q. Running mill by water? A. No, sir. Q. How long have you owned a mill yourself? A. Been interested in a mill there about thirty-two years. Q. How old are you ? A. Fifty-five. Q. Have you been through this mill ? A. I have. Q. Have you examined it? A. Kind of a general examination. I did not examine it particularly. Q. Did you examine the water power there ? A. I saw the water power. Q. The water power that is actually in use, I mean ? A. No; I never saw the mill running. Q. Take this mill built for a two-set mill, with the water power of forty horse, for the purpose of running the mill, what, in your judgment, would the machinery and mill and water power be worth?”</p> <p>Objected to, on the ground that the witness has not qualified himself to testify as an expert; the mill he is operating being run by steam and situated in the borough of Lewisburg, a distance of nearly one hundred miles from here; that he has had no experience with water power; has not testified he knows of any sales of mills of this kind or any like it, etc.</p> <p>The Court: I think that is right so far.</p> <p>“ Q. Are you familiar with horse power, as an owner of a mill? A. I am familiar with horse power produced by steam.”</p> <p>The Court: Better find out if the witness has sufficient knowledge.</p> <p>“ Q. Have you been in other mills besides your own — woolen mills? A. I have been in other mills; yes, sir. Q. Familiar with other mills — with their running capacity ? A. I think I am ; yes, sir. Q. What mills ? A. I have been in the Muncy mill. Q. What is the Muncy mill ? . A. It is a two-set mill, run by steam. Q. What other mills ? A. Been in Williams-port mill; that is run by steam. Q. Have you been in mills' that have been run by water? A. One at , run by water and steam; usually water. Q. How often have you been there? A. Oh, possibly a dozen times. Q. You are familiar with that mill, are you ? A. Well, yes ; I might say I am familiar. Q. What, in your judgment, is this mill of Mr. Stevenson’s that you have made an examination of — what, in your judgment, is that mill, machinery and water power worth ? ”</p> <p>Defendants renew the objection that the witness is incompetent.</p> <p>The Court: “ Q. From your knowledge of mills that you have mentioned, their operation, and from your examination of the mill in question, do you consider yourself competent to express an opinion as to its fair market value ? A. Its market value? Q. Yes. A. No; I do not; not its market value.”</p> <p>The Court: The objection is sustained.</p> <p>“ Q. Can you wash wool in water that is blackened with coal dirt and filled with coal dirt? A. Well, I never tried it, but my opinion is you cannot. Q. What kind of water is essential to the washing of wool? A. Pure, soft water. Q. Did you, when you were down at this mill, examine the condition of Nescopeck creek? A. I saw Nescopeck creek; yes, sir. Q. Did you see the mill race and dam of Mr. Stevenson’s? A. Yes, sir. Q. And reservoir? A. Yes, sir. Q. Whether or not that mill, standing there as it was when you saw it, taking into consideration the condition of the mill race and dam of Nescopeck creek — whether or not that has any value as a woolen mill.”</p> <p>Objected to, because the witness has stated that from all his knowledge on the subject he is not qualified” to pass upon the value of this mill.</p> <p>The Court: Value as a mill?</p> <p>Plaintiff’s counsel: Yes, sir; value as a woolen mill.</p> <p>“ Q. Whether or not that mill standing there as it is, taking into consideration the condition of the water there, that mill has any value as a woolen mill.”</p> <p>Defendants object to the question, on the ground that the witness, according to his own testimony, is incompetent to answer the question. Objection overruled. Exception noted and bill sealed for defendants. [B]</p> <p>.Judson W. Mott on the stand:</p> <p>“Q. Where do you live? A. Near Montrose. Q. What business are you in? A. Woolen manufacturer. Q. How long have you been in that business? A. Off and on since I was a boy, fifty odd years. Q. What kind of a mill do you run? A. I have a water mill. Q. Acquainted with other water mills around? A. I have been at others, in others. Q. Do you know of sales of any water mills at any time ? A. I do not. Q. How long have you owned and run a water mill? A. I think since 1862; probably 1862 or 1863. Q. Are you familiar with Stevenson’s mill? A. Not very; no, sir. Q. Have you been down there? A. I have been down there. Q. Examined it? A. Yes sir. Q. Examined the water there in the creek — tail race ? A. There is no water in the tail race. Q. There was none there when you were there? A. No. Q. In the mill race? A. No, sir. Q. Or the reservoir? A. Yes, sir. Q. From your examination of that mill, what would you say that mill built for a two-set mill — what the mill, the machinery, and the forty horse power there would be worth ? ”</p> <p>Senator Wolverton: “ Q. Have you sold any mills or bought anj"- mills of this kind, within the last-;-A. No, sir; I built this mill I have got now; burned up at one time and we built— about 1865 or 1866, somewhere along there. Q. Thirty-seven years ago? A. Yes, sir. Q. Have you known of any mills in the vicinity or within thirty or forty miles of here, or, fifty miles, being sold ? A. No, sir. Q. Within the last ten years ? A. No, sir. Q. You don’t know anything about the Aralues of these mills from any knowledge of sales, either private sales or public sales ? A. No; not from that. The only knowledge I have is from building this mill. Q. Where is your mill? A. Near Montrose. Montrose is my post office ; just outside of the borough. Q. What is the size of your mill ? A. The building, thirty by sixty, three stories high, basement, stone foundation, basement all stone and the stories above are wood. Q. Steam or water? A. We have both. Q. Why both? A. Well, I had some trouble with the water company, tried to get my water at one time. I could not run because they had the Avater shut off, and I put in steam. In the mean time the matter got adjusted, and since that been running with Avater.”</p> <p>Defendants’ counsel object to the question of plaintiff’s counsel in regard to the value, on the ground that the witness, according to his own testimony, is not competent to fix a value upon this mill, as the only knowledge he has of the value of fulling mills is derived from the expense of building one for himself thirty-seven years ago.</p> <p>The Court: I think it has been held where there have been no sales within a reasonable period of time, that of necessity any man having a reasonable amount of knowledge may express his opinion of what it is worth. This witness, evidently having knowledge of the construction and operation of a water mill, and having examined the mill in question, his evidence is admitted. The objection is overruled and exception noted.</p> <p>Bill sealed for defendants. [4]</p> <p>James Coutler on the stand:</p> <p>DIRECT EXAMINATION.</p> <p>Mr. Lenahan : “ Q. Where do you live ? A. I live in Muncy. Q. What business are you in ? A. I am a woolen manufacturer. Q. What kind of a mill have you — steam or water ? A. We have a steam mill now. Q. Did you ever own a water mill? A. I have — well, I have run. Q. You have run water mills? A. Yes; I have run water mills. Q. Whether or not you have been in a number of water mills. A. Yes, sir; I have worked in three different water mills. Q. Have you been down at this mill of Mr. Stevenson’s? A. I was there twice ; yes, sir. Q. When were you there ? A. About three years ago. Q. What did you go there that time for ? A. I went to look at a lot of wool he had there for sale. Q. Did you examine the mill at that time? A. Well, I went through the mill. Of course, as a manufacturer, I naturally look around to see what there was there. Q. Do you know of water woolen mills being sold in your locality, or anywhere? A. No; there has been none sold that I know of for some time— none that I know of. Q. Considering the fact that this mill is there, with forty horse power they can use, what would you say, with a clear, pure stream of water feeding it, that mill, the machinery and the forty horse power would be worth? ”</p> <p>Senator Wolverton: “Q. Do you know of any mills being sold within the last twenty years, within a radius of fifty miles or more — -woolen mills ? A. I don’t know that I have. I have read an account-Q. Did you sell or buy any yourself? A. No. Q. You never sold a mill ? A. Never sold a mill; no, sir. Q. Never bought one? A. Never bought one; that is, built a mill, but never bought one already built. Q. But you built one? A. Yes, sir. Q. That is the one you are now running ? A. The present mill; yes, sir. Q. When ? A. In 1883. Q. Operated by steam entirely? A. Entirely by steam; yes, sir.”</p> <p>Defendants’ counsel object to the question asked, on the ground that the witness is not shown by his testimony to be qualified to pass upon the question of value of plaintiff’s mill and machinery.</p> <p>The Court: “ Q. Have you such knowledge of the construction and operation of water mills, of the character similar to the one in question, and also such knowledge of the plaintiff’s mill that you consider yourself competent to express an opinion as to its value, under the conditions specified in the question ? A. I think I have.”</p> <p>The Court: The objection is overruled. Note an exception.</p> <p>Bill sealed for defendants. [5]</p> <p>Ira Hartwell on the stand:</p> <p>“ Q. How much would it cost to convey water from that stream or from a spring alongside of it to the plaintiff’s mill ? ”</p> <p>Objected to as immaterial and irrelevant.</p> <p>Defendants propose to prove by the witness on the stand that on plaintiff’s own property, within a half a mile of plaintiff’s mill there is a spring and stream of pure water, as shown by plaintiff’s witnesses, and that this can be conducted to the plaintiff’s mill by the laying of a two-inch water pipe, at a cost of less than $500, and that the quantity of water conveyed will be more than twice the amount proven by the plaintiff as necessary for the operation of his mill in washing wool and in preparing his cloth for the mill and for drinking purposes.</p> <p>Plaintiff’s counsel object: 1. That it is immaterial and irrelevant. 2. That in order to conduct this water he would have to cross the land of other owners. 3. He could not, by an artificial process, divert this stream from the way it flows by nature.</p> <p>Defendants offer, in addition, to prove that defendants, or one of them, offered to construct a pipe and procure the right of way, furnish the water, delivered at his mill in more than sufficient quantities to serve him for drinking purposes and washing his wool and running his mill, and that he accepted the offer, but subsequently rejected it — agreed to it, but subsequently refused to abide by his agreement.</p> <p>The Court: I do not think he would be bound by any substitute that you would offer; and unless he was so bound, unless ordinary prudence would go so far as to require him to accept that, I cannot see how it would be relevant.</p> <p>Senator Wolverton : This is offered for the purpose of bearing on the question of the measure of damages in this case.</p> <p>The Court: The objection is sustained; the evidence is believed to be irrelevant.</p> <p>Exception noted and bill sealed for defendants. £6]</p> <p>Defendants’ points were as follows:</p> <p>1. That it was the duty of the plaintiff to furnish testimony showing the quantity of culm or coal dirt in his mill race and dam and the cost of the removal of the same, and not having furnished any testimony on the cost of removal of the culm, the testimony of the witnesses for the defendants as to such cost, showing that the culm can be removed for less than the value of the property, stands uncontradicted, and the jury must be governed by this uncontradicted testimony. Answer : With the exception of some testimony by Mr. Dodge upon cross-examination with regard to the cost of excavating the culm from the race, and possibly from some other part of the waterway, there is no testimony that I recall on the part of the plaintiff with regard to the cost of the removal of the culm. So that if you should find it was reasonably practicable to remove the obstruction, then this point would be correctly stated. That is to say, the testimony of the defendants’ witnesses as to the cost of removing it is the only testimony, and would be uncontradicted. With that qualification the point is affirmed. £7]</p> <p>4. The defendants are not liable to the plaintiff for any damages for the pollution of the water of Nescopeck creek through his premises or for any injury to his wells on said premises by reason of sulphur water, for the reason that under all the evidence in this case, the removal of sulphur water from the defendants’ mines is absolutely necessary to enable them to mine coal, and sulphur water cannot be prevented from running into adjacent streams, and thence finding its way into Nescopeck creek and through the plaintiff’s property. The defendants cannot be required to stop the operation of their mines, because necessarily in the mining of coal, mine and sulphur water may pollute the stream through the lands of a lower riparian owner or injure the water of a well on his premises. Answer: So far as that point refers to the water discharged from the mine in its ordinary operation it is correct, and in that light it is affirmed. Otherwise I could not affirm it. That is to say, if it has reference to a great accumulation of water being discharged, as the water was discharged in 1894 through the Jeddo tunnel, then, in my judgment, it would be incorrect, and would not be true as to such a discharge of water. It would be true, however, as far as the ordinary, everyday operation of the mines is concerned, and the water necessarily taken out from day to day by such operation. [8]</p> <p>7. The uncontradicted evidence being that the plaintiff purchased the premises, upon which he subsequently erected his woolen factory in 1878, consisting of 117 acres, known as the Old Forge property, with house, barn, etc., thereon, for the sum of $2,000, and that he subsequently erected a woolen factory and repaired the old dam and race; the damage suffered by the plaintiff is the loss or injury sustained to the entire property; and the uncontradicted testimony of several of defendants’ witnesses being that the culm or coal dirt can be removed and sufficient water furnished to successfully operate the plaintiff’s mill, the verdict should not exceed the sum necessary to remove the culm from the dam, race and pool, together with a sum sufficient annually to keep the same free from culm, and together with the further sum necessary to pay for the land covered with culm. Ansiver: Refused without reading. [9]</p> <p>8. That if the jury find the plaintiff is entitled to recover, the true measure of damages for permanent injury in this case is the cost of removing the culm or coal dirt, unless the expense of removal of the coal dirt exceeds the value of the entire property, in which case the value of the property is the limit of the measure of damages, and in no event can thére be a recovery in excess of the value of the entire property for the permanent injury. Answer : I take the term “ entire preperty ” to mean the entire property destroyed. If you find that the property was injured beyond remedy, or that the cost of repairing the injury would exceed the value of the property, you may award the plaintiff the value of the mill property with its water power and these eight or ten acres of land and the well, provided. you find that the well was destroyed independently of the sulphur water that found its way into this stream from the ordinary operation of these mines which had been going on for years before the plaintiff went to reside on the premises and has continued ever since. [10]</p> <p>In answer to a question from a juror the court charged in part as follows:</p> <p>Juror: Whether we can allow the value of the property at the time it ceased operation only, or whether we can, in addition, allow for loss of business.</p> <p>The Court: If you assess the damage as the value of the property at the time when the mill .became stopped, you can allow nothing except the fair value of the property as you shall find it to have been at that time, unless you allow a further sum for the detention of damages, not to exceed the legal rate of interest. As, for instance, suppose you find that in 1898 the obstruction had become so complete that the operations of the mill were entirely stopped, assuming now that you have found that the obstruction was of such a character it could not be removed,' then you would determine the fair market value of that property at that time, taking into consideration not only the testimony of the plaintiff’s witnesses, but also the testimony of the defendant's witnesses, the character of the equipment, the length of time it had been in use, taking all those things into consideration, find the value at that time. Say that were in 1898, 1899, or 1900, whatever time you find the operations of the mill were completely stopped, it would then be in your discretion to add a further sum by reason of the detention, not to exceed the legal rate of interest upon the value so found down to the present date. I deem it my duty to say to you that in fixing the value of the property you will remember that the mill buildings and the machinery would still be there. If from the evidence you can find they had any intrinsic value, or that there would be any salvage to the plaintiff, notwithstanding the destruction of the water power and the complete stopping of his operations, for the value of that salvage I think you would have to make an allowance. That is to say, you would have to deduct the value of that salvage from the value of the property. And then upon that balance you may allow a further sum, as I have said to you, not to exceed the legal rate of interest from the time you find the operations were completely stopped. This is a discretionary power you have, this allowance of a further sum, sometimes called interest, but not strictly so. You are not bound to allow it, but you have it in your discretion to allow it if you see fit. [12]</p> <p>Verdict and judgment for plaintiff for $21,000. Defendants appealed.</p> <p>Errors assigned were (1-6) rulings on evidence, quoting the bill of exceptions; (7-12) instructions as above; (13) that the verdict was excessive.</p>

Appeal, No. 296, Jan. T., 1901, by plaintiff, from judgment of C. P. Northumberland Co., Feb. T., 1900, No. 166, on verdict for plaintiff in case of George W. Keefer v. Sunbury Borough School District. Assumpsit on a building contract. Before Savidge, J. At the trial it appeared that in 1896, the school district of the borough of Sunbury determined to erect a high school building. The plans submitted by Wagner & Reitmeyer, architects, were accepted.

<p>Appeal, No. 171, Jan T., 1901, by defendant, from order of C. P. Delaware Co., Dec. T., 1900, No. 264, rescinding order of removal, and entering judgment for want of an affidavit of defense, in case of Emma R. Muir v. Preferred Accident Insurance Company of New York.</p> <p>Assumpsit upon a policy of insurance. Before Johnson, P. J.</p> <p>Tbe facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order rescinding order of removal and entering judgment for want of an affidavit of defense.</p>

<p>Appeal, No. 221, Jan. T., 1901, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1899, No. 487, on verdict for defendant, in case of James Clark v. North American Company.</p> <p>Trespass for libel. Before Beitler, J.</p> <p>The article complained of was as follows :</p> <p>“ Watchman charged with burglary, police say he is implicated with a gang of thieves. Several men arrested who are said to have perpetrated the Spruce Street robberies.</p> <p>“ Closely following the story of the watchman who turned a robber loose in the streets to satisfy a man with a political ‘ pull ’ comes the arrest of another watchman, a city employee, for implication in a burglary. This special officer, w'ho is believed to have had some hand in the theft of goods from a junk shop, is John Clark, Watchman in Starr Garden Park, Seventh and Lombard Streets.</p> <p>“ Thieves had looted a building at the Southwest corner of the Square, owned by Patrick Hatley, and carried away five hundred panes of glass, with doorknobs, lead pipe and similar articles.</p> <p>“ When the robbery was reported yesterday morning at the Third and DeLancey Streets station Special Policeman Butler went out to find the thieves. Butler promptly caused the arrest of Clark, who was given a hearing before Magistrate South at the City Hall, and held in $1,000 bail for a further hearing on June 7th.</p> <p>“ On this same date the persons arrested in connection with the burglaries at 1017 and 1019 Spruce Street will have a final hearing. From what the police have learned of these cases it is believed that the watchman was implicated with others.</p> <p>“ As a result of his investigations Butler last night arrested four other persons. They were Frank Burke, twenty-two years old, 1338 South Seventh Street; Thomas Dorsey, twenty-two years old, 440 Lombard Street; William Devitts, twenty-three years old, 620 Christian Street; Hue Mellon, twenty-eight years old of 607 Webster Street. The men are charged with larceny and will be given a hearing this morning.</p> <p>“ The police are looking for a brother of Clark. They say he also was concerned. The police say the men arrested belong to a gang that has been operating in the Southern District.”</p> <p>When James Clark was on the stand as for cross-examination, he was asked in reference to the arrest of his brother Frank, as follows:</p> <p>“ Q. Did you ever hear that he was ? Did it ever float into your household that Frank Clark was arrested ? ” Objected to, objection overruled, exception for plaintiff. [1]</p> <p>“ Q. Was your brother, Frank Clark, arrested on the 7th, 8th or 9th of June?” To which plaintiff answered, “I could not tell you.”</p> <p>The defendant’s counsel having previously asked plaintiff if some of the stolen goods of Patrick Hatley were not found in the rear of his house, plaintiff had replied that he had heard that some of them were found inside of the fence on the Sixth street side of Starr Garden Park in the neighborhood of where he lived, that he had located some of them and had aided the officers in finding them.</p> <p>Plaintiff was then asked the question: “Q. James Clark, Jr. How did it happen that two of the thieves of city property were your brothers, and were located in the rear of your house, and you a watchman there, not know of it ? ” Objected to by. plaintiff, objection overruled, exception for plaintiff. [2]</p> <p>“ Q. Did not the Public Ledger, The Times and The Inquirer, of the same morning, June 7th, contain a report of the arrest of your brother, John Clark, in which it was said that he was the watchman of Starr Garden Park, and didn’t The Telegraph of the same afternoon contain the same report; and haven’t you sued The Ledger for the same alleged libel?” Objected to, objection overruled, exception for plaintiff. [3]</p> <p>“ Q. Answer my question. Did not the papers that I have named contain the report of the arrest of your brother for this offense, and say he was watchman of Starr Garden Park? A. Yes, sir.”</p> <p>Mr. Ridgway objects on the ground that the papers themselves ought to be offered in evidence. Judge Beitler remarked that he thought it was proper on cross-examination to ascertain, whether the statement referred to had been made in regard to the plaintiff by other newspapers. Objection overruled, exception for plaintiff. [4]</p> <p>Elwood Becker being duly sworn, Mr. Ridgway in reply to Mr. Gordon states that the witness is offered to prove the reputation of the plaintiff.</p> <p>Mr. Gordon objects that evidence of character is not admissible until evidence against character has been introduced.</p> <p>Objection sustained, the court ruling that the testimony is not competent at this stage. Exception noted for plaintiff. [12]</p> <p>Plaintiff presented among others the following point:</p> <p>[10. That the tone, style and falsity of the article, and the failure to publish a subsequent correction, or retraction of the falsity, are circumstances of aggravation, showing wanton, express and unmitigated malice on the part of defendant and the jury may, in awarding damages go beyond simple compensation, and in addition thereto give such exemplary damages as the circumstances of the case may appear to warrant. Answer: I believe that I have, in explaining to you the measure of damages, given you the measure with regard to punitive damages. I refer to my charge for this answer to these points.] [28]</p> <p>Defendant presented among others the following point:</p> <p>[24. This being a civil action for libel the plaintiff is not entitled to recover any damages unless he has established to the satisfaction of the jury that the publication complained of has been maliciously or negligently made. Answer: That is the language of the act of assembly recently passed, and which in my judgment means by malice, legal malice, as I have explained it .before.] [31]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-4, 12) rulings on evidence, quoting the bill of exceptions; (28, 31) above instructions, quoting them.</p>

<p>Street railways — Use of tracks of another company — Final order— Appeals.</p> <p>An order of the court made at the instance of a street railway company which desires to complete its circuit by the use of the tracks of another company, appointing viewers to assess damages, and approving bond of the petitioning company, is a final order from which an appeal will lie, even though the proceedings for the assessment of damages are undetermined.</p> <p>Street railways — Eminent domain — Use of another company's tracks— Ac£s of May 14, 1889, P. L. 211, sec. 14, and May 21,1895, P. L. 93 — Constitutional law.</p> <p>/While the legislature may in the exercise of the right of eminent domain take franchises and property engaged in a public use, and apply them to another public use, a statute cannot be maintained which confers upon one corporation for profit the right to appropriate the property of another to exactly the same public uses merely for the convenience and profit- of the younger corporation. /</p> <p>The Act of May 14, 1889, P. L. 211, sec.14, as amended by the Act of May 21,1895, P. L. 93, which gave to a street railway company subject to the payment of damages, the right to use 2,500 feet of the tracks of another street railway company is unconstitutional. Section 14 of the act of May 14, 1889, is also unconstitutional because it provides no adequate security for damages for the property taken. Harrisburg, etc.,' Turnpike Road Co. v. Harrisburg, etc., Railway Co., 177 Pa. 585, reaffirmed.</p> <p>A street railway company organized under the Act of May 14, 1889, P. L. 211, may deny the constitutionality of section 14 of the act with its amendments, inasmuch as the section is a distinct legislative enactment which maybe eliminated, leaving all the other provisions to stand in full force. Lockhart v. Craig Street Railway Co., 139 Pa. 419, and Homestead Street Railway Co. v. Pittsburg, etc., Electric Street Railway ©o., 166 Pa. 162, explained.</p>

<p>Partnership — Limited partnership association — Denial of partnership— Contribution of capital — Estoppel.</p> <p>Where three persons form a limited partnership association, signing the necessary papers for that purpose and hold themselves out as limited partners, two of them will not be heard to aver subsequently that the third was but a straw partner and had no interest in fact in the partnership.</p> <p>Where three persons form a limited partnership association, each having a nominal division of the capital stock, and the whole capital contribution consists of money borrowed by two of the partners from a limited partnership which they control, and this loan is subsequently paid back out of profits, the other partner is entitled to his share on the ultimate dissolution of the partnership, although he made no actual contribution to the capital, and his two copartners will not be heard to aver that he was merely a nominal partner, whose name was used merely because the act required a third person, where this fact is denied by the other partner, and his denial is supported by the recorded articles filed in successive years, and in which he was held out to the world as an actual partner.</p>

<p>Appeal, No. 29, Oct. T., 1902, by defendant, S. W. Yandersaal, from decree of C. P., No. 1, Allegheny Co., March T., 1900, No. 522, on bill in equity in case of George A. Sturgeon v. Apollo Oil & Gas Company, Limited, L. T. Yoder and S. W. Vandersaal.</p>

<p>Appeal, No. 8, Jan. T., 1902, by-Samuel H. Moore et al., from order of C. P. Delaware Co., March T., 1901, No. 158, discharging rule to strike off appeal from report of county auditors in the matter of the appeal of Samuel H. Moore et al., from report of county auditors.</p> <p>Rule to strike off appeal from report of county auditors. Before Johnson, P. J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 25, Oct. T., 1902, by defendant, L. T. Yoder, from decree of C. P. No. 1, Allegheny County, March T., 1900, No 522, on bill in equity in case of George A. Sturgeon v. Apollo Oil & Gas Company, Limited, L. T. Yoder and S. W. Yandersaal.</p>

<p>Negligence — Grade crossing — Evidence as to signal — Province of court and jury.</p> <p>In an action against a railroad company to recover damages for personal injuries at a grade crossing, where the evidence is conflicting as to whether a signal was or was not given by the approaching train, the case is for the ,im'y.</p> <p>Negligence — Contributory negligence — Grade crossing — “ Stop, look mid listen."</p> <p>The whole duty of one about to cross the tracks of a steam road at grade is not in all cases confined to his stopping, looking and listening for the approach of a train. He must stop at a proper place and when he proceeds he should continue to look and to observe the precautions which the danger of the situation requires. He should stop again if there is another place nearer the tracks from which he can better discern whether there is danger.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained at a public grade crossing, the plaintiff is not entitled to have his case submitted to the jury where the evidence shows that he stopped his team at a point about fifty feet from the track and looked and listened, that his view to the east was shut off by cars standing on extra tracks, that he saw a freight train approaching slowly from the west, that ho then whipped up his horses, and without further stopping or looking to the east drove on to the tracks and was struck by an express train coming from the east, which train he could have seen eight hundred feet off, if he had looked, before actually going on the first track.</p>

<p>Appeal, No. 404, Jan. T., 1901, by-defendant, from decree of C. P. Schuylkill Co., Sept. T., 1899, No. 5, on bill in equity in case of Joseph C. Bright and George L. Bright v. Thomas G. Allan.</p> <p>Bill in equity to restrain the obstruction of a right of way.</p> <p>Mare, J., found the facts to be as follows:</p> <p>1. That Samuel Silliman, on April 13, 1839, became the owner of a piece of ground, situate in the borough of Potts-ville, containing 120 feet on Centre street and extending of that width westwardly along Mahantongo street a distance of 230 feet to Second street, and whilst the owner of said ground divided it into lots and laid out for the use of the owners of the lots an alleyway twelve feet in width, commencing on Mahantongo street, about 100 feet west of Centre street, and extending southwardly towards lot six and then eastwardly to the rear of complainants’ property.</p> <p>2. That the alleyway commencing on Mahantongo street and extending southwardly has well defined boundaries in height and in width of eleven feet and seven inches for forty feet and from the termination of the forty feet, whilst a right of way exists, yet it has been uncertain in its location so far as the use of same relates.</p> <p>3. That complainants and those under whom they claim title, have owned since October, 1859, the plot of ground described in the first paragraph of their bill of complaint, and have used the alleyway referred to for the purpose of reaching the rear of their property, and in passing to and from the rear of their property from the termination of the forty-foot alleyway, have not used any well marked or defined path or road, but have driven across respondent’s ground diagonally in different ways.</p> <p>4. That respondent and those under whom he claims title have owned the adjoining plot of ground and all of the ground in the rear of complainants’ property, for over fifty years, and have used the same for hotel purposes.</p> <p>5. That respondent, within the last few years, has rebuilt his hotel buildings and, in so doing, has extended them westward to the line of the alley referred to, and has raised the dividing walls which existed between the adjoining buildings, in height from three to twelve feet, and in thickness, nine inches, and has occupied eleven feet two inches by eight and one half inches of the twenty-nine feet and three inches ground in the rear of complainants’ lots, which ground belongs to respondent and has been and is used by him and his predecessors in ownership for hotel purposes.</p> <p>6. That the dividing wall between adjoining properties of complainants and respondent was erected, and has been continuously used, as a party wall.</p> <p>7. That the additional use of the dividing wall made by respondent has not weakened same or increased its burden beyond what it is competent to bear.</p> <p>8. That the use of the twenty-nine feet and six inches by complainants, so far as the same has been used, has been in common with the use and occupancy of the same by the owners of the hotel property and their tenants and has not been adverse to the rights or occupancy of the respondent.</p> <p>9. That the erection of the hotel building, as now constructed, does not interfere with complainants’ right of way as found to exist by this opinion.</p> <p>10. That complainants are entitled to use a right of way commencing on Mahantongo street and extending in width eleven feet and seven inches southwardly, parallel with Centre street, to the southern boundary line of the hotel buildings as now erected, and extending, from that point eastwardly, of the same width, to the rear of complainants’ property.</p> <p>11. That the maintaining any frame box or boxes or buildings, stones, iron or any material in the right of way as indicated in this opinion is an interference with the complainants’ use of said right of way and must be removed.</p> <p>12. That the areaways, in rear of hotel buildings, if properly constructed and covered with sufficient gratings, will not interfere with complainants’ use of the right of way.</p> <p>And now, to wit: September 2, 1890, after hearing and argument and due consideration, it is herewith ordered, adjudged and decreed:</p> <p>1. That the respondent, Thomas G. Allan, within ninety days from the confirmation of this decree, will securely construct and cover the areaways in the alleyway, leading from Mahantongo street, southwardly and in the rear of the hotel buildings erected on respondent’s property, h}*" gratings of iron or other material of sufficient strength to safely sustain the weight of horses and loaded vehicles, passing over same, and that said areaways and coverings be placed on a grade with the alleyway and be thus maintained in the future.</p> <p>2. That said respondent, Thomas G. Allan, be directed to keep open and free from all obstructions an alleyway eleven feet and seven inches in width, commencing on Mahantongo street and extending southwardly, parallel with Centre street, to the southern boundary line of the hotel buildings, as now erected, and extending from that point, eastwardly, of the same width to the rear of complainants’ property.</p> <p>3. That said respondent, Thomas G. Allan, remove all boxes, stones, iron or other obstructions from said alleyway and keep same, free from all obstructions, and that complainants shall at all times have the right to use the said alleyway for the purpose of passing to and from the rear of their property hy their employees, their teams or their patrons.</p> <p>4. That the respondent pay the cost of this proceeding.</p> <p>Errors assigned were in overruling exceptions to the findings of the court, and in entering the decree above recited.</p>

<p>Party wall — Extent of use — Prescription.</p> <p>Where a wall between two properties was built by the former owner of both properties with the intent that it should be used as a party wall, and it was so used always afterwards, the right to so rise it cannot be disputed, although it may stand entirely upon one of the properties.</p> <p>In case of the prescriptive use of a party wall, the right is limited to the extent to which the wall has been used.</p> <p>Trespass — Wrongful use of wall as party wall — Estoppel.</p> <p>Where a person goes upon the property of another, and wrongfully and without any claim of right builds upon a wall, he is a trespasser, and he will be compelled by injunction to remove the wrongful construction, and cannot allege that the owner is estopped because he had knowledge of the erection and made no protest.</p> <p>When both parties are aware of their respective rights, the doctrine of estoppel has no place in law or equity.</p>

<p>Appeal, No. 16, Jan. T., 1902, by plaintiff, from judgment of C. P. Delaware Co., March T., 1901, No. 210, on verdict for defendants, in case of John B. Robinson and A. Welling Wyckoff, Executors of Letitia Robinson, Deceased, v. Anna R. Robinson and Gerald O'H. Robinson and William J. McClure, Guardian of Mary Parker Robinson.</p> <p>Issue devisavit vel non. Before Johnson, P. J.</p> <p>The issues framed were as follows;</p> <p>1. Whether the signature to said paper writing is -the signature of the said Letitia Robinson.</p> <p>2. Whether the said paper writing was executed by the said Letitia Robinson.</p> <p>3. Whether the said .Letitia Robinson was of sound and well- . disposing mind, memory and understanding at the time the said paper writing is alleged to have been executed by her.</p> <p>4. If the said paper writing were executed by her, the said Letitia Robinson, whether the execution thereof was procured by duress, imposition, and undue influence exercised over the mind of said deceased.</p> <p>5. Whether the said alleged will was procured by undue influence of John B. Robinson.</p> <p>The court admitted under objection and exception declarations of John B. Robinson, the principal beneficiary.</p> <p>The court also admitted under objection and exception declarations of the testatrix, relating to the management of her estate by her son.</p> <p>The court also admitted under objection and exception evidence of testatrix’s weakness of mind as affecting the question of undue influence.</p> <p>The court also admitted under objection and exception a large number of papers relating to the management of the estate of testatrix.</p> <p>Plaintiff presented these points :</p> <p>1. There is no evidence in this cause, which can in law impeach the genuineness of the signature of Letitia Robinson to the will, and the verdict of the jury, upon the first question of the issue, must be in favor of the plaintiffs. Answer: We answer that this is affirmed, so far as it relates to the mark. As it relates to the signature, it is a question for the jury.</p> <p>2. There is no evidence in this cause which the law can recognize as proof that the will was not executed by Letitia Robinson, and the verdict of the jury upon the second question of the issue must be in favor of the plaintiffs. Answer : That is affirmed.</p> <p>3. There is no evidence in this cause which the law can recognize as proof that the will was not executed by Letitia Robinson, and the verdict of the jury upon the second question of the issue must be in favor of the plaintiffs. Answer: We say to you when she signed that mark, that there is evidence sufficient to say to you that it was executed by her. The evidence will be for you whether she understood it, and whether or not she was unduly influenced.</p> <p>4. There is no evidence in the cause which would warrant the jury in finding that the testatrix was not of sound and well-disposing mind, memory and understanding at the time of the execution of the will, and the verdict of the jury upon the third question of the issue must be in favor of the plaintiffs. Answer: That point is affirmed. There is no evidence in this cause upon which the court would sustain a verdict against the will for want of testamentary capacity. Therefore, we affirm that point. But the question of the condition of her mind, however, enters into the consideration upon the other questions which we have submitted to you.</p> <p>5. There is no evidence in the cause which would warrant the jury in finding that the execution of the will was procured by duress, imposition and undue influence exercised over the mind of the testatrix, and upon the fourth question of the issue the verdict must be in favor of the plaintiffs. Answer: That is refused. That is a question for you, whether or not this will was procured by duress, imposition and undue influence exercised over the mind of the testatrix, and the whole question turns upon that. It is the great issue — did she understand, was she unduly influenced ?</p> <p>6. There is no evidence in the cause which would warrant the jury in finding that the will of the decedent was procured by undue influence of John B. Robinson, and the verdict of the jury upon the fifth question of the issue must be in favor of the plaintiffs. Answer : That is refused. It is a question for you whether or not this will was procured by the undue influence of John B. Robinson, and you will apply the testimony in the cause to that question as I have heretofore laid it down.</p> <p>7. The court is asked to define undue influence to the jury, and to distinguish it from the lawful influence which a son may properly exercise over the mind of his mother in procuring a will in his favor.</p> <p>The Court: Is it counsel’s desire to have that definition read again to the jury?</p> <p>Mr. Broomall. Yes.</p> <p>Answer: This is a prayer to the court to define to the jury undue influence. Undue influence is the use by one in whom a confidence is reposed by another who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage of his weakness of mind or of his necessities or distress, or to constrain him to do that which he would not have done without the exercise of such control. It is that influence which compels one to do that which is against his will from fear, the desire of peace, or some feeling which is tantamount to force or fear. Undue influence does not necessarily involve physical force or violence. It implies something more than mere advice, argument and persuasion. Advice, argument, and persuasion, if they convince the reason and move the affections only, leaving the will free and unfettered, are not undue influence. But even advice, argument and persuasion, if they be so importunate and persistent and so operate as to subdue and subordinate the will of the testator to the will of another, till the testamentary instrument speaks not his own mind and his own purpose, but the wish and purpose of ¿mother, such advice, argument and persuasion, so operating and with such effect are undue influence. To be undue influence the influence must at least amount to moral coercion. But if it amounts to moral coercion it is undue influence, no matter how or by what instrumentalities produced. A son may ask a mother to make a will in his favor, may persuade her to do so, may be importunate in his persuasion, and if the effect of such persuasion is such as only to move the affections, sense of duty or judgment, it is not undue influence, hut if the persuasion was so importunate or persistent, and so operated as to amount to moral coercion and to subdue and subordinate the will of the mother to his will, and this coercion operated at the time of the testamentary act, it would be undue influence.</p> <p>This undue influence must operate at the time of the testamentary act. It may have been exerted before, but it must be in operation at the time of the testamentary act, and must destroy the free will of the testator. It is not, however, necessary that the jury should know what particular agencies were employed to overcome the free will of the testator, and while you cannot find this fact of undue influence upon mere suspicion or surmise, it is not necessary that you be able to lay your finger on any particular act of undue influence exerted over the testatrix. It is enough if, upon all the evidence, you are convinced that the paper does not speak the true and voluntary purpose of the maker. It is not necessary that the fact of undue influence be proved by direct evidence, but it may be proved by circumstances. From the surroundings of the testator, the character of the will, the family relations, the conditions of the health and mind of the testator, his dependency upon and subjection to the control of the person supposed to have wielded the influence, the opportunity and disposition of that person to wield it, the acts and declarations of such person, the connection of the person wielding that influence with the preparation, making, or execution of the will.</p> <p>8. All influence arising from the relationship of mother and son are lawful and proper, and it is even lawful and proper for a son to importunately persuade his mother to make a will in his favor. Answer: This point is affirmed, with the exception that importunity such as the testatrix had not the courage or ability to resist, or carried to the degree in which the free agency of the testatrix is destroyed, will constitute undue influence. Importunity less than that is lawful.</p> <p>9. Undue influence consists of threats, violence, circumvention or fraud, exercised over the mind of the decedent in the preparation and execution of the will, by which the decedent was coerced or misled into doing what she did not desire to do. Answer: This point is affirmed, to which we may add the definition given to you in the answer to the seventh point, which we have just read to you at length.</p> <p>Defendants presented these points :</p> <p>1. In order to make a valid will the law requires that the testator shall be of sound and disposing mind, memory and understanding, and that he shall have a full and intelligent knowledge and understanding of the act in which he is engaged ; shall have a full knowledge of the property he possesses; an intelligent perception and understanding of the disposition he desires to make of it and of the persons and objects he desires shall be the recipients of his bounty, and if, therefore, the jury find that Letitia Robinson at the time of the making of this alleged will did not have these legal requirements, then the Verdict should be against the will and in favor of the defendants. Answer: That is affirmed. That is the law.</p> <p>2. The law also requires that in order to make a valid will the testatrix shall be free from any undue influence over her mind resulting in the execution of the alleged will, and this undue influence may be shown by all the facts and circumstances surrounding the testatrix, the nature of the will, her family relations, the condition of her estate, the condition of her health and mind, her dependency upon and subjection to the control of the person supposed to have wielded the influence, his opportunity and disposition to wield it, and by his acts and declarations. Answer: That is affirmed.</p> <p>8. Even if the jury should find that Letitia Robinson gave instructions at the hotel in Pittsburg for the preparation of a Will, yet if the paper produced differs materially from the instructions then given, the jury must be satisfied that the changes were made with her full knowledge and consent and that the paper as produced fully embodied her wishes, otherwise the verdict should be against the will and for the defendants. Answer: That is affirmed. That is the law.</p> <p>4. If the jury find that John B. Robinson, the chief beneficiary under this alleged will, occupied towards his mother, the testatrix, at the time of the making of the said will, the confidential relation of her attorney at law as well as her attorney in fact, and as such controlled and managed her estate, and that he concealed from the testatrix the actual condition of her estate, and that if by reason of this confidential relation his influence over his mother was such as to deprive her of her free agency, and this condition existed at the time of the making of this alleged will, and the said will was the result of this influence, then the verdict should be against the will and in favor of the defendants. Answer: That is affirmed, gentlemen, if you find that this influence was undue and that it destroyed her free agency at the time of the execution of the will.</p> <p>5. The fact that under the terms of the will in controversy all of the natural heirs of the testatrix save John B. Robinson, the chief beneficiary, are practically disinherited in favor of John B. Robinson, may be taken into consideration by the jury together with the other evidence in the case as showing the exercise of undue influence on the part of John B. Robinson. Answer: We answer to that point — we cannot say that it is a fact that under the terms of the will all the natural heirs of the testatrix save John B. Robinson, the chief beneficiary, are practically disinherited. If, however, you find that to be the fact, then you may take this fact into consideration, with the other evidence in the case, in passing upon the question of undue influence.</p> <p>6. If the jury shall find from the testimony that for many years prior to her death, Letitia Robinson lived in the house of John B. Robinson; that he and those under his influence had control of and managed her affairs ; that she was eighty-four years of age at the time she executed the alleged will and had the bodily infirmities incident to such age ; that John B. Robinson was instrumental in giving instructions from which the will in dispute was drawn and that he was practically the sole beneficiary under the will, then it is incumbent upon him to show affirmatively in this suit that Letitia Robinson, with respect to the paper in dispute, had advice independent of any from John B. Robinson, or those under his control, and that she also had a full knowledge and understanding of the effect of the paper which she is alleged to have executed. If this is not found by you, the verdict should be against the will and for the defendants. Answer: We cannot affirm this point as it is written. If John B. Robinson was a stranger to her blood, and not a natural object of her bounty, this point would be affirmed. However, if you shall find from the evidence that for many years prior to her death Letitia Robinson lived in the house of John B. Robinson, and that he and those under his influence had control of and managed her affairs, that she was advanced in years at the time she executed the will, that John B. Robinson was instrumental in giving instruction from which the will was drawn, and that he was practically the sole beneficiary — if you find these facts you may take them into consideration, in connection with the other evidence in the cause, in passing upon the question of undue influence. In other words, we say that the burden is-not upon Mr. Robinson, that it is upon the other side.</p> <p>8. If the jury find that Letitia Robinson had not a full knowledge of the effect of the will and of the condition of her estate, and that in consequence the will was not her free and voluntary act, the verdict should be for the defendants. Answer : That is affirmed.</p> <p>10. Unless Letitia Robinson had full knowledge of the contents and effect of the paper produced as her last will and testament, and freely and voluntarily executed it as such, the verdict should be for the defendants, and whilst the knowledge of the contents of a paper may be presumed from its containing the signature of the party to be bound by it (it being presumed that it would not be signed without a full knowledge of its contents), this presumption should not arise where the alleged signature is that of a person enfeebled by age or bodily sickness, except where the existence of the signature is free from all suspicion of fraud and overreaching, and with full opportunity to become acquainted with the contents. Answer: We say this point is affirmed to the extent that the testatrix must have had a full knowledge of the contents and effects of the paper and freely and voluntarily executed it. We cannot say that the failure to show that the existence of the signature is free from all suspicion of fraud, etc., changes the presumption.</p> <p>11. If the jury find that the testamentary dispositions of the alleged will are unnatural or unjust, that circumstance is entitled to great weight in determining whether or not undue influence was exerted. Answer: If the jury find that the testamentary dispositions of the will are unnatural and unjust, that circumstance may be taken into consideration by the jury, with the other evidence in the cause, in passing upon the question of undue influence. It will be for the jury to say whether from the provisions of the will there is any inference of undue influence and the weight to be given to such inferences. The court cannot say what weight shall be given to them. They are for the jury.</p> <p>Verdict for plaintiff on the first three issues and for the defendant on the fourth and fifth issues. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence and various instructions.</p>

<p>Appeal, No. 28, Jan. T., 1902, by defendant, from judgment of C. P. Lackawanna Co., May T., 1899,-No. 903, on verdict for plaintiff, in case of Mary Henry v. Anna Elizabeth Zurflieh, Administratrix of John Shaffer, Deceased.</p> <p>Assumpsit to recover balance of purchase price of real estate. Before Kelly, J.</p> <p>At the trial it appeared that in 1886, Joseph Henry and his wife conveyed real estate to John Shaffer for the consideration expressed in the deed of $2,500. Plaintiff claimed that the real consideration was $4,500.</p> <p>When John Hoffman, a witness for plaintiff, was on the stand, the following offer was made :</p> <p>The plaintiff proposes to prove by the witness on the stand that he has lived in the borough of Dunmore for a long number of years; that he was well acquainted with John Shaffer in his lifetime, and was also acquainted with .the plaintiff, Mary Henry ; that some time previous to December 20, 1886, he was at John Shaffer’s place of business in Dunmore, and had a conversation with him, in which Shaffer stated to the witness that he intended to purchase the Henry property, and Shaffer also stated to the witness that he thought the property was worth about $4,500, and that he would be getting a good bargain if he got it for that sum; that Shaffer also told the wit'ness that Mrs. Henry was anxious to get the property out of her husband’s hands on account of his dissolute habits ; that on December 20, 1886, Mrs. Henry, the plaintiff, was indebted to the witness in a sum of money for some articles of jewelry that she purchased from him, and that he called upon Mrs. Henry around December 21, 1886, for the purpose of getting his money from her, and that he was referred to Mr. Shaffer by Mrs. Henry for his money. That the witness went to Mr. Shaffer, and Mr. Shaffer told him that he was going to take the Henry property, and that he would pay him the debt that Mrs. iHenry owed him. That in this conversation Shaffer told the witness to go to the Henrys and bring Mr. and Mrs. Henry to his store; that he was prepared and was about to take the property from them. And the witness, in pursuance to that, did take Mr. and Mrs. Henry to John Shaffer’s store, in Dun-more, and that when the witness arrived at the store of Shaffer, there was present Martin R. Kays, the notary public, before whom the deed was acknowledged, John Shaffer and one Ferguson Ripie. That he heard John Shaffer and Joseph Henry and Mrs. Henry discuss the question of purchasing the property ; and that he saw the deed there that was afterwards delivered to Mr. Kays, who was also acting as counsel for John Shaffer. That the witness heard the conversation between the parties in Shaffer’s store, that is, the conversation between John Shaffer, Joseph Henry and Mary Henry, the plaintiff. And that the consideration of the deed there was that Shaffer was to cancel a debt of some twelve or thirteen hundred dollars which he had against Joseph Henry, and was to pay Mrs. Henry the sum of $3,000. That after this conversation between the parties, the witness heard Shaffer say to Martin R. Kays, the attorney and notary, to take the deed to Scranton, and have it recorded at once. And that Mr. Kays left with the deed- That after he left, the witness heard John Shaffer say that he was going to pay Mrs. Henry $3,000 ; and that he had canceled the debts of the Henrys which he held against them. We propose to show further by the witness that in the talk and meeting of the parties in the store, on the day that the deed was delivered to Mr. Shaffer’s attorney, that there was no consideration passed from John Shaffer to Joseph Henry and the plaintiff. That some time in the month of April, 1898, the witness saw Mr. Shaffer and the plaintiff at Mr. Shaffer’s house in Dunmore; and that the witness was called into Shaffer’s house by John Shaffer, and he there heard Mr. Shaffer say that he was indebted to Mrs. Henry in the sum of $3,000, with interest, for the purchase of the Brook street property in Dunmore, which he purchased in 1886, and that he was going to pay her in a short while.</p> <p>Mr. Wells: We object to the evidence as to any conversation between the witness and John Shaffer prior to the date of the deed, as being immaterial. The contract or arrangement being consummated on the day the deed was given, by the writing therein, contained. We further object to the evidence proposed to be offered as to the contract alleged to have been made on the date of the deed, or the time it was executed and delivered, as being incompetent and not tending to show the claim as alleged in the statement filed. We object to the evidence as to the conversation in 1898, as being immaterial and irrelevant, as there was no consideration to support any promise of that kind, the statute having barred it if it had been made in 1886. We object to the entire evidence as not being in conformity with the allegations laid in the statement filed, wherein they declare that the consideration was $4,800. For the further reason that the whole evidence discloses a claim that would be barred by the statute of limitations if there were any such claim.</p> <p>The Court: I think the offer is admissible with the exception of the part referring to the witness going to Mrs. Henry, the plaintiff, about his bill, and being referred to Mr. Shaffer; that, of course, is hearsay, and is not admissible to affect the defendant, being a conversation which took place in his absence. I will therefore sustain the objection to the extent of excluding that part of the offer. The declaration sets forth that the conveyance was made in consideration of the sum of $4,800 and that the sum of $1,800 was paid to the grantors by the grantee, and that the grantee agreed to pay to Mary Henry, the plaintiff, the balance of $8,000.</p> <p>While this is an offer to show a consideration of $4,500, and that the difference between the $4,500 and the $3,000 was made up by the cancelation of some indebtedness of Joseph Henry to John Shaffer and by the payment of certain other of the debts of Joseph Henry, yet it seems to me that the material part of the declaration is as to the balance due upon the purchase money, which was agreed to be paid to Mary Henry. I am therefore of the opinion that this is not such a variance as would make the evidence inadmissible. I will overrule the objection.</p> <p>Exception noted for defendant at whose request a bill is sealed. [1]</p> <p>The court charged in part as follows:</p> <p>[Now, on the part of the defendant we have, in the first place, the record of certain judgments against Mr. Henry in favor of John Shaffer. One in the sum of $700 with interest from December 24, 1895; one in the sum of $1,000, with interest from October 21, 1886; one in the sum of $431.89 with interest from December 23, 1886. These three judgments were offered in evidence, and they would amount to something over $2,000 perhaps considerably over $2,000 with interest and costs, on December 20 and 21, 1886. There was also another judgment offered in evidence in the sum of $765, with interest from July 1, 1884. Now all of these judgments, according to the record, except the last one we may say, were satisfied on January 10, 1887, some two or three weeks after this transaction took place. The third and fourth judgments offered, the satisfaction on the continuance docket in the prothonotary’s office, shows that the satisfaction was on January 10, 1886, but upon that point you have the testimony of Mr. Lewis, the district attorney, who was at that time prothonotary’s clerk, that that was an error, and that the satisfaction as a matter of fact was made on January 10, 1887. Now, if you believe his testimony, and that the satisfactions were made all on the same day, all of these four judgments, on January 10,1887, we have at least prima facie indebtedness on the part of Mr. Henry to Mr. Shaffer of over $3,000, and we have that record indebtedness all canceled some two or three weeks after the transaction took place. We have that circumstance for you to take into consideration in passing upon this question.] [2]</p> <p>[Now then, gentlemen of the jury, as I said on the first proposition which the plaintiff must prove in order to make out her case, are you satisfied from this evidence on the part of the plaintiff and the defendant, taking it all into consideration and weighing it carefully, taking into consideration the statements of Mrs. Henry as made in her letters, are you satisfied that this contract was made in 1886 as she alleges ? Did Mr. Shaffer agree to pay her $3,000 as a balance of the purchase money, or as a consideration for the conveyance of this property, and was it never paid by him, and was it still due at the time of his death? It is argued, as I have already said to you, that the testimony on the part of the plaintiff’s witnesses and the letters written by John Shaffer, establish that their contention is correct. When we get the letters of Mrs. Henry to John Shaffer we have, to a certain extent, the other side of the correspondence, so that we have the letters from Mr. Shaffer to Mrs. Henry and the letters from Mrs. Henry to Mr. Shaffer, and it is argued on behalf of the defendant that her letters would tend to disapprove and rebut the proposition that she makes, would tend to show that there were no relations of debtor and creditor between’her and Mr. Shaffer, that they rather tend to show a relation of friendship, if not of affection between them. They claim that the language used by her in her letters is not the language of one who had a claim against another of a business nature or character, had due to her a debt from Mr. Shaffer. Of course, gentlemen of the jury, that is all for you, and not for me; it is for you to pass upon these disputed quesr tions, and as I was saying to you from all of this testimony, after examining the correspondence between the parties, after sifting and weighing the testimony of the witnesses upon the part of the plaintiff as well as the witnesses such as have been sworn on the part of the defendant, after taking into consideration the value of the property as you find its value to be, you .will notice that it is alleged to have been $4,500 or $4,800 on the part of the plaintiff, and some of the witnesses for the defense, or at least one, Mr. Manley, puts it as low as $2,000; the value of the property, as I say, is a circumstance, whatever you find it to be, in connection with the other circumstances of the case; the judgments that Mr. Shaffer had against Mr. Henry, the fact that they were all apparently satisfied some three weeks after this transaction took place, taking all of these things to-' gether into consideration, are you satisfied that there was an agreement in December, 1886, to pay Mrs. Henry $3,000 for the balance of the purchase money of this property on the part of John Shaffer, and was it never carried out, and was the sum with interest due to her at the time that Mr. Shaffer died ? If you are satisfied that there was such a contract, then that will bring you to the second proposition which I will have to call your attention to. If, on the other hand, you are not satisfied that the bargain was as Mrs. Henry alleges it to be in this case, then you need not go any further, and your verdict will be for the defendant. But if you should find that the contract was as is alleged on the part of the plaintiff, that Mr. Shaffer agreed to pay her $3,000 for this property, that he never paid it, except some payments on account of interest, and that the money is still unpaid, then, as I say, we come to a second proposition, and that is with reference to the statute of limitations.] [3]</p> <p>[The case as I said to you at the outset is one of considerable importance, and you should give it careful consideration. It would be very unjust to compel this dead man’s estate to pay this claim to Mrs. Henry unless it is due to her, unless she satisfies you by a fair weight and preponderance of the testimony that the contract was to pay her this $3,000 as a balance of the consideration for this conveyance in 1886, that it has never been paid, that it is still due, and that the decedent, Mr. Shaffer, in his lifetime, and within six years of -the bringing of this suit, acknowledged its obligation by clear and unequivocal language, promised to pay it or acknowledged in such a clear and unequivocal way that a promise to pay would be implied. On the other hand, if he got this property from these people and did agree to pay $3,000 to Mrs. Henry with interest, and never paid it, and' Mr. Shaffer acknowledged his obligation within six years of the bringing of the suit, so as to satisfy the rules of law which I have laid down to you upon that subject, then of course she ought to get the money and ought to recover it. It is a question of fact for you to determine under the instructions which I have given you. And, gentlemen of the jury, I hope you will give it the very best consideration and try to arrive at the truth so your verdict will be the very best judgment you are able to bring on this question. ‘Boiled right down it is, did Mr. Shaffer buy this property from these people for $4,500, and did he agree to pay a balance due, after paying other claims, of $3,000 to Mrs. Henry in 1886? Is that due ? accrued; and that the suit was not brought until after John Shaffer died. And as I said before, they call our attention to the financial condition of John Shaffer, that he was abundantly able at any time to pay his debts; and they claim that an inspection of the letters of Mrs. Henry would tend to show that she was in need of money from time to time. Now, these are legitimate circumstances for you to also take into consideration in passing upon this question. Do you believe the testimony of these witnesses,-Mr. Hoffman, Mr. Kiple and Mr. and Mrs, Widdowfield ? If you do believe there was such a contract, do you believe the testimony of Mrs. Widdowfield and Mr. Hoffman, and do you find from their testimony that the bar of the statute of limitations has been tolled or removed by their evidence, applying the rules which I have laid down to you? If you do, of course she is entitled to your verdict ; if you do not, if she has failed to satisfy you of these allegations by the fair weight and preponderance of the testimony, then of course the defendant is entitled to your verdict.] [9]</p> <p>[But in order to bar the effect of the statute it is not essential that there should be an actual or express promise to pay; if there is a clear, distinct and unequivocal acknowledgment of the debt, consistent with a promise to pay, the law will imply the promise. The acknowledgment, in order to toll the bar of the statute, must be clear and unequivocal, unambiguous and express, so distinct and palpable in its extent and form as to preclude hesitation as to the debtor’s meaning, or the particular debt to which it applies, and must include a recognition that the debt is still due to the plaintiff.] [15]</p> <p>Verdict and judgment for plaintiff for 13,680. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions ; (2, 3, 9, 15) above instructions, quoting them.</p>

<p>Appeal, No. 121, Jan. T., 1901, by plaintiffs, from order of C. P. Bradford Co., Dec. T., 1895, No. 147, refusing to take off nonsuit in case of M. A. Forrest and J. H. Chadwick v. E. E. Buchanan and D. W. Buchanan,' Executors of Eliza Buchanan.</p> <p>Assumpsit to recover damages by reason of a breach of covenant in a lease. Before Fanning, P. J.</p> <p>At the trial it appeared that in May, 1888, the defendant’s testator leased to plaintiffs the Ward House, a hotel in the borough of Towanda. In the lease was the following covenant :</p> <p>“ And the said Eliza Buchanan will during the said term keep in good repair the roofs upon the buildings hereby demised.”</p> <p>The evidence showed that after rain the roof of the hotel building leaked and caused annoyance to the occupants. There' was no evidence, however, that the lessor had refused to make repairs. There was evidence that the tenants were directed to apply to a tinsmith when repairs were necessary.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 206, Jan. T., 1901, by defendant, from judgment of Superior Ct. Jan. T., 1901, No. 42, affirming judgment of C. P. Columbia Co., May T., 1898, No. 14, on verdict for plaintiff in case of G. B. Mellick v. Pennsylvania Railroad Company.</p> <p>Appeal from Superior Court. The facts appear in tbe opinion of the Supreme Court.</p> <p>The case is reported in 17 Pa. Superior Ct. 12.</p> <p>Error assigned was in the following form :</p> <p>“ That the Superior Court erred in directing judgment in the following language, viz : We can find no reversible error committed and, therefore, the judgment is affirmed.</p> <p>“ Portions of the opinion of the Superior Court included thus [ ] present the several statements of fact and law upon which the above stated judgment was based, and are assigned also for error.”</p> <p>Then followed numbered extracts from the opinion of the Superior Court.</p>

<p>Ejectment — Deed—Covenants—Charge on land — Equitable powers of the court.</p> <p>In an action of ejectment where it appears that the plaintiffs’ grandparents conveyed to plaintiffs’ mother the land in controversy in fee, and that on the same day the grantee by a separate paper covenanted to leave her parents in possession during their lives, and to pay certain amounts of money to her brothers and sisters, the plaintiffs, as heirs of their deceased mother, are entitled to possession of the land as against certain persons in possession who are entitled to payments under the covenants of the plaintiffs’ mother, and may maintain their action without any previous tender of the money due the defendants; but the court in directing a verdict for plaintiffs will make an additional order that no habere facias possessionem shall issue until plaintiffs pay into court, or to the defendants, the moneys due to the defendants.</p>

Appeal, No. 137, Jan. T., 1901, by defendant, from decree of C. P. Luzerne Co., Oct. T., 1895, No. 13, on bill in equity in case of Charles Baab v. John B. Houser. Bill in equity to reform a deed.

<p>Appeal, No. 270, Jan. T., 1902, by plaintiff, from decree of C. P. Northampton County, April T.; 1901, No. 1, dismissing bill in equity in case of Stewart Wire Company v. Lehigh Coal & Navigation Company and the Easton Power Company of Pennsylvania.</p> <p>Bill in equity for an injunction.</p> <p>From the record it appeared that the Stewart Wire Company, the plaintiff, and the Easton Power Company had both been granted the right to use the water of a canal owned by the Lehigh Coal & Navigation Company. The plaintiff was a manufacturing corporation, but at the time the bill was filed it was practically out of business. The Easton Power Company was engaged in furnishing light and power to the city of Easton, the town of Phillipsburg, New Jersey, to the electric railways of Easton, and to various manufacturing corporations. The evidence showed that the plaintiff had delayed for many months in filing its bill. It also appeared that the defendant was engaged in an extensive work of improvement which would shortly greatly enlarge the capacity of the canal. The court dismissed the bill, but imposed the costs upon the defendants.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Appeals, Nos. 332, 333, Jan. T., 1901, by defendant, from decree of O. P. Northampton Co., April T., 1901, No. 1, dismissing bill in equity in ease of Stewart Wire Company v. Lehigh Coal & Navigation Company and the Easton Power Company of Pennsylvania.</p>

<p>Appeal, No. 387, Jan. T., 1901, by-Charles Henry Hart, executor and trustee under the will of Samuel Hart, deceased, from decree of O. C. Phila. Co., Oct. T., 1898, No. 552, dismissing exceptions to adjudication in estate of Samuel Hart, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Frror assigned was in sucharging the trustee with the principal, namely, $10,000, of the ¿Etna Iron Company mortgage bonds, with the assessments thereon amounting to $1,200 and with interest amounting to $9,603.33.</p>

<p>Trust and trustees — Appropriation by trustee of his own share — Surcharge —Value of securities.</p> <p>If a trustee appropriates before general distribution the trust assets to his own use, he should account for them not as of the date of the inventor}', nor as the date of the accounting, but as of the date of the appropriation.</p> <p>. Where a testamentary trustee who has a share in the trust estate, four years after the death of the testator converts to his own use certain of the securities of the estate, without having had them set apart to him by a decree of the court, he will on his accounting ten years after the death of the testator, be charged with the actual value of the securities at the time of the conversion, as shown'by actual sales at that time</p>

<p>Appeal, No. 389, Jan. T., 1901, by Charles Henry Hart, administrator c. t. a. of Rebecca C. Hart, deceased, from decree of O. C. Phila. Co., Oct. T., 1898, No. 552, dismissing exceptions to adjudication in estate of Samuel Hart, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were (1) in distributing the interest with' which it surcharged the trustee to those entitled to income at the date of surcharge, and not to the parties entitled to income during the interest running period ; (2) in not distributing to appellant three eighths of the amount surcharged as interest accruing prior to February 26, 1898; (3) in holding that the agreement of parties as to the unexecuted codicil gave effect to that codicil as though executed.</p>

<p>Decedent's estates — Trusts and trustees.</p> <p>Where in order to protect an estate owning stock in a corporation, it is necessary for the estate to buy antagonistic stock, and the parties in interest agree that the executors shall borrow the money to purchase the stock, and that a designated proportion of the dividends on the stock shall be applied to the reduction of the loan, the advance of income is merely a temporary loan to principal, and must be reimbursed to income.</p> <p>Trust and trustees — Commissions—Misconduct—Refusal of commissions.</p> <p>A trustee will be disallowed all commissions where it appears that the trustee, a lawyer, was a testamentary trustee under his father’s will for the testator’s children and grandchildren ; that he did not file an account for fifteen years and then only under compulsion ; that when filed it was improperly stated, imposed great labor, and exhaustive examination upon the parties and the court, included both principal, income and distribution, claimed commissions wrongfully and upon a debt of his own which had never been paid by him, although less than the amount of commissions which he had paid himself; that although he sold many of the investments made by the testator, he had retained others until they had become practically worthless; that he paid assessments out of the principal of the estate upon shares of stock and bonds not recognized as investments proper to be held by an executor, and -which should have been sold by him; that he made investments of moneys of the estate in railroads, iron companies, brick company and a country club bonds and stock; that he paid himself in excess of his share of the estate without award by the court, and unknown to the legatees, and retained shares of stock at less than their market value; that in the income account he charged himself • witli interest and dividends received on the investments he had appropriated to himself as a share of the personal estate as belonging to the estate and the distribution to him had not been made, deducted commissions upon the whole amount as if it had actually been paid to him, and then made distribution to the cestuis que trust and himself as if an actual cash balance for distribution.</p>

<p>Trusts and trustees — Assignments for benefit of creditors — jurisdiction of orphans' court.</p> <p>Where a testamentary trustee and executor executes a deed of all his own interest in the trust estate, prior to having filed any account, and subsequently the grantee in the deed recouveys to the trustee the same estate subject to the trusts and terms of the testator’s will, an attaching creditor of the trustee cannot at the audit of the trustee’s account claim that the deed of the trustee should be treated as a general assignment for the benefit of all the creditors, instead of a conveyance for the protection of the beneficiaries under the will. In such a case the trustee has merely an equitable lien in the testator’s estate, and his share could not be determined until final auditing and distribution by the orphans’ court. If in the meantime he illegally converts the assets of the estate to the value of his share or in excess, nothing remains to him, and the balance of the estate must go to the cestuis que trust to the value of their shares.</p>

<p>Appeal, No. 391, Jan. T., 1901, by Charles Henry Hart, from decree of O. C. Phila. Co., Jan. T., 1901, No. 552, dismissing exceptions to adjudication in estate of Samuel Hart, deceased.</p>

<p>Appeal, No. 392, Jan. T., 1901, by Dora Johnson, assignee of Charles Henry Hart, from decree of O. C. Phila. Co., Jan. T., 1901, No. 552, dismissing exceptions to adjudication in estate of Samuel Hart, deceased.</p>

<p>Equity — Equity practice — Findings of fact and conclusions of law.</p> <p>Where counsel present requests for findings of fact and for conclusions of law, the judge is bound to answer each by adopting, affirming, qualifying or denying it. It is not sufficient that such requests may be substantially answered by the judge’s own independent findings, if he does not indicate in connection with each request itself what he regards as his answer, to be found in his own independent findings.</p> <p>If a decree be made without answering requests for findings of fact and law, such decree will be vacated and set aside by the appellate court, and the record remitted with direction that the requests for findings of fact and law be answered, and that after the requests so presented and answered have become a part of the record in the case, the decree be made.</p>

<p>Appeal, No. 366, Jan. T., 1901, by Iram D. Lewis and Stella Lewis Stackhouse, from order of C. P. Luzerne Co., Feb. T., 1896, No. 43, discharging rule to intervene on case of Emma C. Lewis, assigned to C. D. Foster v. Hunlqek’s Creek & Muhlenburg Turnpike Company.</p> <p>Trespass to recover damages for death of plaintiffs husband.</p> <p>Rule to show cause why Iram D. Lewis and Stella Lewis Stackhouse should not be added as parties plaintiff. Before Lynch, P, J.</p> <p>From the record it appeared that plaintiff recovered from defendant a verdict for $6,041.44 for the death of her husband. Judgment was entered upon the verdict and thereafter the judgment was assigned to C. D. Foster. Subsequently Iram D. Lewis and Stella Lewis Stackhouse took the rule to intervene. The testimony taken under the rule showed that Stella Lewis Stackhouse was a daughter of the deceased, of full age, married, and had not resided with her father since her marriage. Iram D. Lewis, was a son of the deceased, about thirty-one years of age, and for several years had either lived away from home, or had been paid wages by his father while he lived with his family.</p> <p>The court discharged the rule.</p> <p>Error assigned was the order of the court.</p>

<p>Railroads — Bridges—Ice gorge — Injury to land — Negligence.</p> <p>In an action against a railroad company to recover damages for injuries to land caused by an ice gorge at one of the railroad company’s bridges, the mere fact that the ice gorged at the bridge and backed the water on plaintiff’s property does not of itself fix upon the defendant the charge of negligence. Plaintiff must go further, and show that defendant did not construct the bridge with proper care and skill, having regard to the landowners above and below. In such a case the plaintiff is met at the start with the presumption that there was no negligence in the design or construction of the bridge, and this presumption he must overcome in order to recover.</p> <p>In an action against a railroad company to recover damages for injuries to land resulting from an ice gorge at a railroad bridge, a nonsuit is properly entered where the evidence offered for the plaintiff showed that the width of the waterway under the bridge was more than double the width of the stream; that this width was ample for all ordinary freshets and floods; that at the time of the accident the ice was from fifteen inches to two feet thick; that it began piling up a considerable distance above the bridge; that the gorge reached a height of fifteen feet; that in its movement down the stream it gathered bulk, and that when it reached the bridge its mass was so huge that it rested against the bridge for three hours; and that in this time the water of the stream was backed and injured plaintiff’s property.</p>

<p>Negligence — Damages—Personal injuries — Evidence.</p> <p>In an action against a street railway company to recover damages for personal injuries, the evidence is suffioientto sustain afinding by the jury that the injuries resulted from the accident, where two physicians and other witnesses testify that prior to the accident plaintiff was a healthy, able-bodied woman, but that after the accident she aged considerably, had a nervous tremor, had lost in weight, had heart failure, and that her sufferings would be permanent, and one of the physicians stated that she had progressive paralysis of the spinal cord, and that the trouble would constantly increase, and that a concussion or blow upon the spine was the cause of the trouble he described.</p> <p>Evidence — Witness—Cross-examination.</p> <p>Where in an accident case against a street railway company, a physician testifies that he had visited and examined the plaintiff, and on cross-examination admits that he had been sent by the company, but that he was not the company’s physician, the plaintiff may show by further cross-examination that the witness had repeatedly, at the company’s instance, and as its representative, gone to examine persons hurt in accidents on its road, and that he had been so employed from time to time by the company.</p> <p>Practice, C. P. — Trial—Objectionable remarks of counsel.</p> <p>Where objectionable remarks made by counsel to the jury are not brought upon the record by affidavit and exception, they cannot be considered by the Supreme Court.</p>

<p>Negligence — Carrier of passengers — Reduced rate ticket — Assumption by passenger of risk — Presumption.</p> <p>Where a passenger buys and accepts from a railroad company a ticket at a reduced rate, on which ticket is the indorsement plainly stamped: “ The person accepting and using this ticket thereby assumes all risk of accident and damage to person or property,” the passenger thereby agrees by the acceptance of the ticket to waive the common-law rule making the carrier an insurer of his safety, and he cannot avail himself in case of injury of the presumption of negligence which arises in favor of the passenger, where there has been an injury in the means of transportation. In such a case the passenger must affirmatively prove negligence on the part of the carrier. This rule, however, does not apply to cases where the only inference to be drawn from the accident itself is that the carrier had been negligent.</p>

<p>Appeal, No. 51, Jan. T., 1902, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1898, No. 14, refusing to take off nonsuit in case of Henry C. Newman V. The Delaware, Lackawanna & Western Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Febbis, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

<p>Promissory notes — Fraud—Failure of consideration — Renewals.</p> <p>If the giving of a promissory note was induced by fraud, or if there was failure in the consideration all subsequent renewals of the note are open to the same defense.</p> <p>Promissory note — Fraud—Partnership—Knowledge of partner.</p> <p>The knowledge of a member of an unincorporated banking firm of the facts relating to the issue of a note held by the firm, is knowledge to the firm, and prevents it from being considered an innocent holder.</p> <p>Promissory note — Fraud—Estoppel.</p> <p>The maker of a promissory note is not estopped from setting up the defense'of fraud in a suit on the last of a series of renewal notes, because of the fact that he paid the discount upon the several renewals without .at the same time making any protest as to the fraud which induced the giving of the original note, where it appears that the discounting of the various notes given in renewal was not done at the instance of the maker, nor in any way for his benefit, but wholly in the interest- and at the suggestion of the payee of the note.</p> <p>Promissory note — Fraud—Evidence.</p> <p>In "an action upon a promissory note a verdict and judgment for the maker will be sustained where the evidence for the maker, although contradicted, tends to show that he gave the note for the purpose of enabling the payee to buy stock in a corporation, that the payee made various false representations as to the value of the stock, and that none of the stock had in fact ever been delivered to the maker.</p>

<p>Appeal, No. 315, Jan. T., 1901, by plaintiff, from judgment of C. P. Centre Co., Jan. T., 1897, No. 204, on verdict for defendant in case of Lehigh Valley Coal Company v. Beaver Lumber Company, Mary I. Ardell, John Ardell, Jr., George Lucas, David Hoover, D. C. Shope, Isaac Lanning, Frank Lanning, Alfred Ammerman and Wilson Wolford.</p> <p>Ejectment for land in Union and Rush townships. Before Bell, P. J., specially presiding.</p> <p>The questions involved as stated by the appellant were as follows:</p> <p>Questions of fact, (a) Where is the true location of plaintiff’s surveys ; and (5) where is the true location of defendants’ surveys ?</p> <p>Questions of law. (a) The admission or rejection of evidence under objections, relative to the title and to location of both plaintiff’s and defendants’ surveys ; (6) the competency of surveyors to give their opinion as to the location of individual members of a block of surveys, without having done the necessary work on the ground to locate the entire block; (c) where an owner of a block of surveys has obtained a resurvey by order of the board of property, can he sustain title by offering the warrant and original survey, without the resurvey; (d) does the title to the land date from the original survey, or from date of the resurvey, and its acceptance; (e) can individual and projecting members of a block be located separate and apart from the block of which they are members ; and (/) whether or not under all the evidence the plaintiff is entitled to recover at least a portion of the land in controversy.</p> <p>The facts of the case are stated at length in the opinion of the Supreme Court.</p> <p>Errors assigned were (1-58) various rulings on evidence and instructions, sufficiently appearing by the opinion of the Supreme Court.</p>

<p>Appeal, No. 317, Jan. T., 1901, by plaintiff, from decree of C. P. Centre Co, Nov. T., 1901, No. 1, dismissing bill in equity in case of Philipsburg Water Company v. Philipsburg Borough.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing the bill.</p>

<p>Deed, — Buie in Shelley's Case — Children—Heirs.</p> <p>In determining whether the rule in Shelley’s Case is applicable, the test is how the donees in remainder are to take. If as purchasers under the donor then the particular estate is limited by the literal words of the deed and the rule in Shelley’s Case has no application. But if the remainder-men are to take as heirs to the donee of the particular estate, then the superior intent as declared in Shelley’s Case operates and the first donee takes a fee, whatever words may be used in describing the estate given to him.</p> <p>A grant to a son “ for the term of his natural life and at his death to his children or heirs,” vests in the son afee under the rule in Shelley’s Case.</p> <p>The rule in Shelley’s Case is a rule of law, not a rule of construction and where a case falls within it, it applies inexorably without reference to intent.</p>

<p>Statute of limitations — Promissory notes — Payment on account — Payment of lien.</p> <p>A partial payment stops the running of the statute of limitations, because it is an acknowledgement of the debt as an existing obligation, from which the law necessarily implies a promise to pay. Any incident of the payment which rebuts the acknowledgement or the implication of a promise to pay the rest of the debt will prevent its operation as a bar.</p> <p>A provision in a promissory note given for a balance of purchase money, that it should be due in six months, if certain liens on the property were then removed and if not then “as and when” they should be removed, does not enlarge the statute of limitations. It begins to run at the end of the six months, and the disability to sue until the liens are removed is not a privilege of the payee to delay its running, but an obligation precedent to suit by him, a disability of his own making, removable at any time by his own act.</p> <p>Where a promissory note given for a balance of purchase money of real estate, is made payable in six months provided that certain liens ‘ ‘ are then paid or removed, and if not then so removed, payment is to be made as and when they are removed,” and none of the liens are removed within six years from the date when the note became due, except one which the maker was compelled to pay under compulsion of suit, the note is barred by the statute of limitations. In such a case the payment of the one lien was a payment distinctly on a different debt, one not due to the payee or holder of the note, and not owing by the maker at all, but collectible from his property through the burden of a lien.</p>

<p>False imprisonment — Sheriff—Trespass ah initio.</p> <p>Where the sheriff arrests a man 'for resisting the execution of legal process, and without at once taking him before a magistrate, places him in jail, while two physicians examine him to determine his mental soundness, and while the examination is being made he is confined for two nights and one day, when he expresses regret for his action, and promises to go home and behave himself, the failure of the sheriff to take his prisoner before a magistrate is not a direct and positive act such as is required to convert a legal into an unlawful action and make the sheriff a trespasser ab initio.</p>

<p>Appeal, No. 3, Jan. T., 1902, by defendant, from decree of C. P. Potter Co., Dec. T., 1899, No. 2, on bill in equity in case of Joseph B. Rumsey v. New York & Pennsylvania Railroad Company, Theodore Cobb, William Cobb, William Richardson, Benton McConnell and William Beaver.</p> <p>Bill for specific performance of a contract.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree of specific performance.</p>

<p>Appeal, No. 15, Jan. T., 1902, by defendant, from judgment of C. P. Elk Co., April. T., 1901, No. 73, on trial by court without a jury in case of Andrew Kaul et al. v. W. S. Weed & Company.</p> <p>Trespass to recover damages for the wrongful cutting of trees.</p> <p>The case was tried by Meyer, P. J.</p> <p>Prom the record it appeared that by deed dated September 23, 1890, S. S. Bullis and wife conveyed to W. S. Weed & Company,</p> <p>“ All that the undivided one-half part, portion and interest of, in and to all and all manner of timber down and standing, save and except the hemlock timber in and on all and singular those certain pieces, parcels or tracts of land,” etc.</p> <p>And which deed provided:</p> <p>“ It being the intention of the .party of the first part to convey to the parties of the second part, their heirs and assigns, all the several kinds of timber herein specified on all of said lands so conveyed, subject nevertheless to the rights of the party of the first part, his heirs and assigns, to enter said lands for the purpose of cutting, peeling, storing and removing therefrom the hemlock bark and timber, and the right to build, maintain, construct and operate all such railroads, wagon roads, structures and appliances as they may deem proper for the removal of the same. And it is expressly understood and agreed by and between the parties hereto that the parties of the second part shall so operate and remove the lumber timber sold them in such manner as will in nowise interfere with the removal of said hemlock timber and bark.”</p> <p>S. S. Bullís and wife by deed dated October 23, 1891, conveyed to W. S. Weed & Company the remaining undivided one half of the timber upon said lands in the same language and upon the same terms and conditions as stated in the deed of September 23, 1890.</p> <p>The title to the land subsequently became vested in plaintiffs.</p> <p>The court found further facts to be as follows:</p> <p>9. That W. S. Weed & Company, defendants, were wholesale lumbermen engaged in the hardwood lumber business at Bradford, Pennsylvania, and on September 23, 1890, purchased the undivided one-half interest in certain timber upon the lands in controversy and made a contract with S. S. Bullís, the owner of the other undivided one-half interest therein, and entered upon said lands in pursuance of said deed and contract and commenced operations thereon, by cutting into saw logs timber suitable for lumber, and manufacturing the same into lumber upon their mills or mills of their jobbers and continued to do so until October, 1893, before they cut any chemical wood or pulp wood. That no chemical factories were erected in Elk county until 1894, and that prior to this time no chemical wood had been sold or marketed from these lands. That no chemical wood or pulp wood was cut upon any of the lands at any time until the lands had been cut over for timber purposes and the loga removed. That in October, 1893, and annually thereafter, after the timber suitable for lumber had been cut and taken from said lands for lumber purposes, the defendants by their jobbers, again went over said lands and cut the remaining trees and wood that were not suitable for lumber into pulp wood and chemical wood and removed and sold same. That from the time defendants purchased this timber until 1898, they did not cut any beech trees for lumber purposes and that beech was not considered as timber for lumber purposes or generally used as such in the vicinity of these lands.</p> <p>10. That on September 23, 1890, and October 23, 1891, the dates of defendants’ deeds, the minimum sizes for timber upon said lands were as follows: for cherry, ash and oak, eight inches in diameter at the top end of the butt log; for poplar, pine and basswood, birch and cucumber, ten inches in diameter at the top end of the butt log, and for maple twelve inches in diameter at the top end of the butt, log; and that at the dates of said deeds under the prevailing and general custom of the lumbering business in the region of these lands no trees of the kind named, under the sizes above stated were considered or used for timber or lumber purposes, and that defendants by their instructions to their jobbers and in their operations in cutting and removing said timber, recognized that only trees of the sizes named and over, were suitable for timber and lumber purposes. And that the trees under the minimum sizes named were not suitable for such purposes.</p> <p>11. That there were trees and wood upon these lands on September 23,1890, the date of the defendants’ purchase of the undivided one half of the timber, and also on October 23,1891, the date of their purchase of the remaining undivided one half of the timber, that were too small in size or too inferior in .quality and shape and not suitable for lumber or timber. That S. S. Bullis, the owner of the lands and the undivided one half of the timber from September 23, 1890, to October 23, 1891, did not sell or intend to sell, nor did W. S. Weed & Company, defendants, purchase or intend to purchase or acquire title to such trees or wood by said deeds of September 23, 1890, and October 23,1891. That under the acts and declarations of the parties, and the surrounding circumstances, the parties to said deeds- intended that only such timber as was suitable for lumber should be sold and conveyed by said deeds.</p> <p>12. That defendant cut and removed chemical wood from said lands amounting to 38,184.30 cords, sold stumpage for wood amounting to 6,016.835 cords and 54,171 cords of toothpick wood.</p> <p>13. That the market value of chemical wood and pulp wood in 1895, on the stump was twenty-five cents per cord and in the years 1896, 1897, 1898, 1899 and 1900, the average price -was forty-five cents per cord, and that the market value of toothpick wood on the stump was one dollar per cord.</p> <p>14. We find as a fact from the deeds of September 23, 1890, and October 22, 1892, and the parol evidence admitted as explanatory thereof, that the word “timber” in said deeds did not include any timber except what could be manufactured into lumber, and that chemical wood and pulp wood were not within the contemplation or intention of the parties at the time the respective deeds were executed and delivered ; nor was it intended to convey by said deeds any other timber except what might be used for manufacturing into lumber or other articles which could be made or constructed therefrom.</p> <p>The court entered judgment for plaintiffs for $20,967.73. Defendants appealed.</p> <p>Error assigned among others was in entering judgment for plaintiffs.</p>

<p>Constitutional law — Title of act — Poor law — Act of June 6, 1893, P. L. 328.</p> <p>The Act of June 6, 1893, P. L. 328, entitled “ An act providing for the relief of needy, sick, injured, and, in case of death, burial, of indigent persons, whose legal place of settlement is unknown,” is defective in title and unconstitutional, inasmuch as the title gives no notice to counties in whieh almshouses are not maintained by the county funds, of the burdens imposed upon them by the act.</p>

<p>Appeal, No. 74, Jan. T., 1902, by defendant, from judgment of C. P. McKean Co., Dec. T., 1894, No. 216, on verdict for plaintiff, in case of P. O. Buchanan v. John Banks and Rebecca B. Pierce (now intermarried with N. Wilson).</p> <p>Ejectment for lands in Bradford township. ‘ Before Mobbisson, P. J.</p> <p>At the trial it appeared that on December 1,1894, judgment was entered under an amicable action and confession upon a warrant of attorney contained in a written contract for the purchase of land. It appeared that the judgment was entered without the knowledge of defendants and was not their voluntary act. Subsequently in October, 1895, the defendants began an action of ejectment, and judgment was entered against them solely on the ground of the existence of the confessed judgment. The defendants then took a rule to open the confessed judgment, and an issue was framed. Pending a trial of the issue the court refused to restore the defendants to possession, and a1 the trial of the issue directed a verdict for the plaintiff.</p> <p>Errors assigned were (1) in directing a verdict for plaintiff; (7) in refusing a writ of restitution.</p>

<p>Executors and administrators — Trusts and trustees — Neglect of duty— Surcharge.</p> <p>Where testator appoints three executors with directions to collect the assets of the estate, to keep such assets reinvested in good securities, to make necessary disbursements from time to time, and to sell a particular piece of real estate named, and the executors assume the trust, apportion the duties among themselves, but do not act independently, but consult together so that all are in a general way familiar with the conduct of the entire business of the estate, and have full opportunity to know the actions of the others, they will be jointly liable for depreciation of the real estate directed to be sold which they never looked after, and made no attempt to sell, and they will also be jointly liable for moneys which wore actually paid to the executors with which they have not charged themselves, or for moneys which they should have collected, but failed to collect.</p>

Appeal, No. 117, Jan. T., 1902, by defendant, from judgment of G. P. Chester Co., Oct. T., 1901, No. 13, on verdict for plaintiff in case of Commonwealth ex rel. John P. Elkin, Attorney General, v. Uwchlan Street Railway Company. Quo warranto against a street railway company.

<p>Appeal, No. 325, Jan. T., 1901, by W. J. Carlin Company, from order of C. P. Bedford Co., Sept. T., 1900, No. 237, entering rule for non pros, in case of Mary E. Barndollar v. Michael J. Fogarty and John Claffey, trading as M. J. Fogarty & Company, Defendants, and the Huntingdon & Broad Top Mountain Railroad Company, C. E. Jackson, James Everhart and Joseph Claffey, Garnishees.</p> <p>Rule for judgment of non pros.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making the rule absolute.</p>

<p>Appeal, No. 247, Jan. T., 1901, by plaintiff, from decree of C. P. Sullivan Co., Feb. T., 1900, No. 1, dismissing bill in equity in case of W. W. Jackson et al., • Trustees of George D. Jackson, Deceased, v. Rush J. Thomson and the Citizens National Bank of Towanda, Pa.</p> <p>Bill in equity for a reconveyance in real estate. Before McClure, P. J., specially presiding.</p> <p>From the record it appeared that on July 9,1897, George C. Jackson and Bernice W. Jackson, executors of George D. Jackson, executed and delivered to Rush J. Thomson deeds for lands situated in Cherry township, Sullivan county, owned by the estate of George B. Jackson. W. W. Jackson was subsequently substituted as trustee in place of the executors who made the conveyance. The complainants in their bill alleged that the deeds although absolute on their face were made to secure a loan of the Citizens National Bank of which Thomson was a director. The deed further alleged that the debt had been paid out of the proceeds of timber and coal sold from the land. The defendants denied that there was any trust or condition attached to the conveyance, except that Thomson was to pay the indebtedness of the grantors to the bank as a consideration for the deeds. The court found as a fact that there was no trust, and entered a decree dismissing the bill.</p> <p>Error assigned amongst others was decree dismissing the bill.</p>

Appeal, No. 331, Jan. T., 1901, by plaintiff, from decree of C. P. York Co., Oct. T., 1892, No. 1, on bill in equity, in case of Frederick Helb'v. Frederick A. Hake. Bill in equity by one partner against another for an account. Before Bittengeb, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was the decree of the court.

<p>Arbitration — Contract for construction of railroad — Rescission of contract — Railroads.</p> <p>An arbitration clause in a contract for the construction of a railroad which makes the decision of the engineer final as to any dispute relative to or touching the agreement, and which waives the right to sue at law or otherwise, does not apply where no claim is made for work done under the contract, and the contract itself has been rescinded, and the contractor is claiming to recover for the loss of the contract.</p>

<p>Appeal, No. 32, Jan. T., 1902, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1895, No. 112, refusing to take off nonsuit in case of Zacharias Minnich y. Lancaster & Lititz Electric Railway Company, The Lancaster Railway Construction Company and the Pennsylvania Traction Company.</p> <p>Trespass to recover damages for building a street railway in front of plaintiff’s property without his consent, for injuries to crops and fences, and for injuries resulting from the alleged reckless operation of street cars. Before Landis, J.</p> <p>At the trial the court entered a compulsory nonsuit on the ground that a joint tort had not been proved as to all three of the defendants.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

Appeal, No. 61, Jan. T., 1902, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1899, No. 4, on verdict for plaintiff, in case of Harry C. Elias, v. Lancaster City. Trespass to recover damages for personal injuries.