Volume 204 — Pennsylvania State Reports

<p>Appeal, No. 150, Jan. T., 1902, by plaintiff, from decree of C. P. York Co., April T., 1902, No. 8, dismissing bill in equity in case of Herman Schmaltz v. York Manufacturing Company and the Deer Park Brew Company.</p> <p>Bill in equity for an injunction. Before BlTTENGER, P. J.</p> <p>The court found the facts to be as follows:</p> <p>1. The York Manufacturing Company is a corporation, incorporated under the laws of the state, doing business in the city of York. The corporation is and was in the year 1900, engaged in the manufacture of ice machines, refrigerating apparatus and other machinery. The Deer Park Brew Company is a corporation, incorporated under the laws of the state of New York, engaged in the brewing of beer, at Port Jervis, New York, and was so engaged at the filing of the bill in this case, as a reorganization of the corporation of the Deer Park Brewing Company, a bankrupt corporation closed out under the United States bankrupt laws. No service of the bill was made on the Deer Park Brew Company, but the said defendant has filed an answer.</p> <p>2. The York Manufacturing Company, through its agent, G. E. Berna, sold an ice machine and refrigerating apparatus to Kurt Rudolph Sternberg, then a resident of Baltimore, in the month of April, 1900, to be shipped to Port Jervis, New York, there to be erected in a brewery of the Deer Park Brewing Company, owned and operated by said Sternberg and some associates who were in business with said Sternberg, but without any knowledge by the York Manufacturing, Company that the machine was being purchased for the Deer Park Brewing Company. Specifications and the agreement were afterwards signed by said agent for the York Manufacturing Company and by Sternberg, in Baltimore, viz: on April 5,1900. Afterwards said agreement was approved on April 10, 1900, by the York Manufacturing Company, at York, Pennsylvania, and a duplicate sent to said Sternberg, in Baltimore, Maryland.</p> <p>3. The said agreement, referring to the preceding specifications and general agreement, with the York Manufacturing Company’s approval, is as follows :</p> <p>“AGREEMENT</p> <p>“Between the York Manufacturing Company, a corporation organized under the laws of the State of Pennsylvania, of York, York County, Pennsylvania, U. S. A., party of the first part, and Kurt Rudolph Sternberg, Esq., of Baltimore, County of Baltimore, State of Maryland, party of the second part, as follows :</p> <p>“The York Manufacturing Company agrees to furnish the said party of the second part for use in brewery, situated in the City of Port Jervis, County of and State of New York, at No. Street, one York refrigerating machine of the standard ‘ York ’ style and patented system, together with the apparatus mentioned and described in the attached specifications ; said machine and apparatus to be in all respects in accordance with said specifications which, together with all the agreements and guarantees contained therein, are made a part of this agreement, and will deliver and have same ready for operation about the day of , 189 , for the sum of fifteen thousand ($15,000.00) dollars.</p> <p>“ The said party of the second part agrees to pay for the said machine and apparatus as follows, to wit:</p> <p>“ $3,000.00 cash with order.</p> <p>“ Balance in four equal six per cent interest bearing bankable notes to be dated and delivered when plant is ready to operate.</p> <p>“ First note to become due in four months.</p> <p>“ Second note to become due in seven months.</p> <p>“ Third note to become due in ten months.</p> <p>“ Fourth note to become due in thirteen months.</p> <p>“ The title to said machine and apparatus shall not pass from, but shall remain in the York Manufacturing Company until full settlement is made for the same, until the same is fully paid for, and in the meantime the party of the second part agrees to fully indemnify the York Manufacturing Company against any and all loss or damage to said machine and apparatus by fire or other cause whatsoever, and also agree to keep the same fully insured for the benefit of the York Manufacturing Company, as its interest may appear, until fully paid for.</p> <p>“ In case of failure or refusal to make any of the payments when due, or to make settlement as agreed, or to pay any note that may be given when it falls due, the whole of the unpaid indebtedness arising under this agreement shall thereby, at the option of the York Manufacturing Company, become immediately due and deman dable.</p> <p>“ Witness the following signatures and seals, the fifth day of April, 1900.</p> <p>“York Manufacturing Company,</p> <p>“ By G. E. Berna.</p> <p>“Approved by the York Manufacturing Company, at York, Pa., tenth day of April, 1900.</p> <p>“York Manufacturing Company,</p> <p>“ By P. H. Glatfelter, Prest.</p> <p>(Seal.) “ W. L. Glatfelter, Secy.”</p> <p>4. - The York Manufacturing Company, in pursuance of the contract, during some three months after the execution of said agreement, manufactured the different parts of the refrigerator and ice machine so contracted for, and purchased pipes for the completion of the same, and when finished shipped the machine to Port Jervis, New York, and by its workmen set up and installed in the brewery of the Deer Park Brewing Company the said machinery, placing it upon proper foundations, affixing its parts to the building and placing the boilers, walled in, in an adjoining building, and put said brewery in operation.</p> <p>5. The cash payment of $8,000 was paid to the York Manufacturing Company as provided in the agreement by said Stern-berg, and after the completion of the erection of said refrigerating plant and apparatus there were executed and delivered on the dates thereof respectively to the York Manufacturing Company by Kurt Rudolph Sternberg promissory notes of said Kurt Rudolph Sternberg to the order of the York Manufacturing Company bearing the following dates and drawn in the following amounts respectively, to wit:</p> <p>Note for $2,843.69 dated August 27, 1900, payable four months after date at the First National Bank of Port Jervis, New York, which note was paid by the maker at maturity.</p> <p>Note for $2,343.69 dated August 27, 1900, payable seven months after date at the First National Bank of Port Jervis, New York, which was unpaid at maturity and duly protested, and which note with principal, interest and protest charges still remains unpaid.</p> <p>Note for $2,068.69 dated August 27,1900, payable ten months after date at the National Bank of Port Jervis, New York, which was unpaid at maturity and which note with principal and interest still remains unpaid.</p> <p>Note for $2,068.69 dated August 27, 1900, payable thirteen months after date at the National Bank of Port Jervis, New York, and was unpaid at maturity and which note with principal and interest still remains unpaid.</p> <p>Note for $1,896.93 dated February 27, 1901, payable six months after date at the National Bank of Port Jervis, New York, which note was unpaid at maturity and with principal and interest still remains unpaid.</p> <p>Upon the above mentioned notes there remains due to the York Manufacturing Company the sum of $6,481.07, and $1.85 protest fees, with interest thereon from August 27, 1900, and the additional sum of $1,896.93 with interest from February 27, 1901; the balance of the purchase price of $15,000 having been paid by said Kurt Rudolph Sternberg, the purchaser.</p> <p>6. At the time of the execution of the said agreement, and at the time of the delivery of said machinery, so set up in said brewery, by the York Manufacturing Company, the said Kurt Rudolph Sternberg was the president and manager of the said Deer Park Brewing Company.</p> <p>7. After the said refrigerating plant and apparatus was installed and put in operation at the brewery of the Deer Park Brewing Company at Port Jervis, New York, to wit: October 25, 1900, the said Deer Park Brewing Company made and delivered its mortgage to the National Bank of Port Jervis, of Port Jervis, New York, for the purpose of securing a certain bond of even date with the said mortgage made by the said Deer Park Brewing Company, and deliverd it to the said National Bank of Port Jervis, and by said mortgage transferred to tbe said National Bank of Port Jervis all the property therein described, including the refrigerating plant and apparatus purchased as aforesaid from the York Manufacturing Company and installed in the brewery of the said Deer Park Brewing Company, which said mortgage was afterwards duly recorded in the proper offices for said purposes in the proper county where the property was situated, when mortgaged, both as a real and chattel mortgage. Said mortgage was executed to said national bank as collateral security for moneys to be advanced to said Deer Park Brewing Company on notes to be discounted.</p> <p>8. After the execution and delivery of the bond and mortgage, hereinbefore described, by the Deer Park Brewing Company to the National Bank of Port Jervis, the said Deer Park Brewing Company became indebted to the said National .Bank of Port Jervis, by reason of notes made or indorsed by the said Deer Park Brewing Company and discounted by the said National Bank of Port Jervis, in a sum in excess of the amount named in the said bond and mortgage and intended to be secured thereby.</p> <p>9. At the time the said Deer Park Brewing Company was adjudicated a bankrupt as aforesaid, to wit: May 25,1901, the said Deer Park Brewing Company was indebted to the said National Bank of Port Jervis in a sum exceeding the amount named in said bond and mortgage, which said indebtedness was secured and intended to be secured by the said bond and mortgage, and the said Deer Park Brewing Company had failed to meet and pay the indebtedness so created, secured as aforesaid by said bond and mortgage, and on May 25,1901, had been in default for a period of more than sixty days and is still in default.</p> <p>10. On or about January 10, 1902, the said bond and mortgage described in paragraph 7 were duly assigned, transferred and set over by the said National Bank of Port Jervis to Herman Schmaltz, the plaintiff, of the city of Philadelphia, and are now owned by him, and at the time of said last mentioned transfer the debt secured and intended to be secured by the said bond and mortgage remaining due and unpaid aggregated $26,124.06, and there was, at the time of the filing of the bill, due and owing to the said Herman Schmaltz, assignee of the said bond and mortgage aforesaid, the sum of $26,124.06, as appears from said bond and mortgage and evidence filed.</p> <p>11. That on January 20, 1902, the law firm of Hastings & Gleason (the said H. A. Gleason, of said firm of attorneys at law, of New York city, being the counsel of the York Manufacturing Company in New York, with general authority to act there, for the said company) gave the following notice to Herman Schmaltz, the plaintiff:</p> <p>“ New York, January 20, 1902.</p> <p>“ Re Deer Park Brewing Co. '</p> <p>“ Mr. Schmaltz,</p> <p>“ 207 Buttonwood St.,</p> <p>“ Philadelphia, Pa.</p> <p>“ Dear Sir: We understand you are interested in this matter. We represent the York Manufacturing Company, which owns the ice plant, and beg to notify you that unless this transaction is closed at once we shall be compelled to remove the plant immediately.</p> <p>“ Very truly yours,</p> <p>“Hastings & Gleason.”</p> <p>On February 15,1902, the same attorneys served the following notice on the owners of Deer Park Brew Company:</p> <p>“ New York, February 13, 1902.</p> <p>“ Owners Deer Park Brewing Co.,</p> <p>“ Port Jervis, New York.</p> <p>“ Gentlemen You are hereby notified that during the week commencing February 17th, the ice plant belonging to the York Manufacturing Company will be removed by their employees.</p> <p>“We would ask you to have work stopped to facilitate such removal, as their workmen will be there during the week named.</p> <p>“ Very truly yours,</p> <p>“Hastings & Gleason.”</p> <p>12. Said refrigerator was a constituent part of the said brewery plant, of the Deer Park Brewing Company (afterwards Deer Park Brew Company), attached to, and necessary for, the operation of the same. It was capable, however, of being removed without serious permanent injury to the walls and other parts of the brewery, and by the substitution of another refrigerator of the same or other manufacture, operations could be continued, as conducted before removal of the refrigerator in question.</p> <p>18. Neither the agreement nor a copy thereof, providing that the refrigerator should remain the property of the York Manufacturing Company until settled and paid for, was filed in the office of the town clerk at Port Jervis, New York, as required by the New York statute of 1897, at the time of the execution of the mortgage by said Deer Park Brewing Company to the said Port Jervis National Bank, or previously. The said bank had no notice, actual or constructive, of the said agreement. The bank, in good faith, without notice, took said mortgage, and advanced the moneys heretofore mentioned on discounted notes, on the credit of said mortgage, as collateral security; and the mortgage was assigned to the plaintiff by. the bank in good faith, for a valuable compensation.</p> <p>14. In the proceedings in bankruptcy of the Deer Park Brewing Company, Kurt Rudolph Sternberg reported in the statement filed in said bankruptcy proceedings the said refrigerator as held by the York Manufacturing Company, on an agreement of conditional sale.</p> <p>The court refused the injunction chiefly on the ground that under the testimony of defendant’s manager, the defendant had no intention of removing the plant by any means other than legal process in the state of New York.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Corporations—Foreign corporations—Registration—Act of April 22,1874, P. L. 108.</p> <p>The purpose of the Act of April 22, 1874, P. L. 108, is to bring foreign corporations doing business in this state, within the reach of legal process. This purpose is not accomplished by a registration of the corporation at the pleasure of its officers or when it may be to their interest to appeal to our courts. Nothing short of a registration before the contract sought to be enfoi’ced is made can give a foreign corporation a right of action.</p> <p>Where a foreign corporation comes into this state and engages in the business of constructing an electric railway during a period of six months, and in this business employs large numbers of men and nearly all of its capital, and does not file a statement in the office of the secretary of the commonwealth as required by the Act of April 22, 1874, P. L. 108, until two.months after the work was completed, it cannot maintain an action for labor and materials furnished by it during the progress of the work.</p> <p>Mitchell, J., dissents.</p>

Appeal, No. 1, May T., 1902, by defendant, from judgment of C. P. Dauphin Co., June T., 1900, No. 435, on verdict for plaintiff in case of Sarah A. Kauffman and S. J. Kauffman v. Harrisburg. Trespass by husband and wife to recover damages for personal injuries. Before Simonton, P. J. The injuries were received by the wife who, it was alleged, died as the result of them, after suit brought. The record was amended and the suit proceeded in the name of the husband alone.

<p> Building and loan association—Contract—Corporation—General manager—Receiver. </p> <p>Where a building and loan association enters into an agreement with its general manager by which in consideration of the transfer to him of certain items of its receipts, he is to pay all the costs aud expenses of the association, including the salaries of its officers, and persons deal with the general manager at a time when the agreement is in force, and with a full knowledge on their part of the existence of the agreement, such persons deal with the general manager individually, and cannot participate in the distribution of a fund raised by a sale of the assets of the association in the hands of a receiver. An attorney at law, however, who although counsel for the general manager is specially retained by resolution of the director of the association to resist the application for a receiver, is entitled to his fees out of the fund.</p>

<p>Appeal, No. 2, May T., 1902, by Harry P. Young, from decree of O. C. Dauphin Co., overruling exceptions to auditor’s report in estate of James Young, deceased.</p> <p>Exceptions to report of John E. Fox, Esq., auditor. Before Simonton, P. J.</p> <p>From the record it appeared that the personal property of the estate amounted to 1263,136.77. There was also about 1,700 acres of real estate. Under an agreement with the heirs in whom the real estate had vested, the administrator carried on the business of farming. In his account which was prepared under advice of counsel, he mingled administration items with matters relating to the farming. This necessitated the appointment of an auditor. The auditor allowed commissions at the rate of five per cent. Upon exceptions the court reduced the commissions to four and one half per cent. The court also refused to charge the administrator with the costs of the audit.</p> <p>Errors assigned were in overruling and sustaining certain exceptions to the auditor’s report.</p>

<p> Taxation—Manufacturing corporation—Portion of capital invested in foreign bond. </p> <p>A manufacturing corporation organized under the laws of Pennsylvania is liable to be taxed on the portion of its capital stock invested in the bonds of another corporation, although such other corporation has issued the bonds free of tax.</p>

<p>Appeal, No. 12, May T., 1902, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1899, No. 862, on verdict for plaintiff, in case of William L. Winters, by his father and next friend, Thomas J. Winters, and Thomas J. Winters, in his own right, v. Boll Brothers Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Simonton, P. J.</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in submitting the case to the jury.</p>

Appeal, No. 16, May T., 1902, by plaintiff, from order of C. P. Fulton Co., June T., 1901, No. 62, sustaining decision of county commissioners on tax assessments in case of Rockhill Iron & Coal Company v. Fulton County. Appeal from decision of county commissioners on tax assessment. Before McSwope, P. J, The opinion of the Supreme Court states the case. Error assigned was the order of the court.

<p> Promissory note—Fraud—Voidable transaction—Laches—Indorsement. </p> <p>Where the indorsement of a promissory note is voidable either by reason of any actual fraud, or any fraud existing by construction of law, or any mistake of facts, the party having the right to avoid the transaction must assert his rights promptly without any unnecessary delay and before the other party has in any manner changed his position.</p> <p>Where an indorser of a promissory note might have avoided his indorsement because of facts not communicated to him by the indorsee at the time of the indorsement, he cannot avoid the transaction three and one half years afterwards, during which time he has renewed the note from time to time, waived protest, given a mortgage upon his own property and that of his wife, and has sought and secured an extension of time for two years, and has done all this with full knowledge of all the facts relating to the fraud in procuring the original indorsement.</p>

Appeal, No. 244, Jan. T., 1901, by defendants, from judgment of C. P.No. 2, Pbila. Co., Sept. T., 1899, No. 121, on verdict for plaintiffs in case of William B. Irvine et al., trading as Irvine & Carty, v. E. B. Smith et al., trading as E. D. Smith. & Company. Trespass to recover damages for injuries to a two-story brick manufactory on Pennsylvania avenue, Philadelphia.

<p>Appeal, No. 169, Jan. T., 1902, by Long Park Commission, from decree of O. C. Lancaster Co., sustaining exceptions to auditor’s re-</p> <p>port in estate of Catharine H. Long, deceased.</p> <p>Exceptions to report of John A. Nauman and John E. Malone, Esqs., auditors. Before Smith, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in sustaining exceptions to the report of the auditors and directing one half of the residuary estate to be paid to the city of Lancaster.</p>

<p>Appeal, No, 170, Jan. T., 1902, by the board of directors of the city trusts of Lancaster, from decree O. C. Lancaster Co., sustaining exceptions to auditor’s report in estate of Catharine H. Long, deceased.</p>

Appeal, No. 167, Jan. T., 1902, by plaintiff, from judgment of O. & T. Berks Co., Dec. T., 1901, No. 112, on verdict of guilty of murder in the first degree in case of Commonwealth v. Samuel Greason. Indictment for murder. Before Ebmentbout, P. J. At the trial it appeared that the defendant was indicted for the killing of John Edwards, a white man. Defendant was a colored man. Kate Edwards, the wife of John Edwards, was indicted and convicted of the murder.

<p>Appeal, No. 172, Jan. T., 1902, by defendant, from judgment of O. & T. Del. Co., March T., 1902, on verdict of guilty of murder in the first degree in case of Commonwealth v. Albert West.</p> <p>Indictment of Albert West for the murder of Mark W. Allen, Jr., a police officer.</p> <p>The circumstances of the killing are stated in the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder in the first degree. The prisoner appealed.</p> <p>Error assigned was, “ the ingredients of murder in the first degree do not exist in this case.”</p>

Petition of certain citizens of Philadelphia for the deputation of a justice to hold an election court in the city of Philadelphia.

Appeal, No. 176, Oct. T., 1902, by-defendant, from decree of C. P. Mercer Co., April T„ 1902. No. 3, on bill in equity in case of Samuel Hosack, Executor of John Hosack, Deceased, v. John T. Grill. Bill in equity to determine right to royalties from coal.

Appeal, No. 150, Oct. T., 1902, by defendant, from judgment of C. P. Venango Co., Aug. T., 1901, No. 61, on verdict for plaintiff in case of Fred B. Black v. E. W. Snook. Assumpsit to recover for services in selling real estate. Before Lindsey, P. J., specially presiding. At the trial it appeared that plaintiff claimed to recover §2,000 for selling real estate in the city of Franklin for the sum of §77,000, under a special contract.

<p> Vendor and vendee—Deed—Recital in deed—Oil lease—Notice. </p> <p>Where a deed contains a recital of an “ oil lease ” the grantee must be held to notice of a prior grant of the right to the oil in the land purchased by him.</p> <p> Vendor and vendee—Lunacy—Declaration by committee—Unrecorded deed—Notice. </p> <p>The mere declaration by the committee of a lunatic that the lunatic has no interest in the land conveyed to him by an unrecorded deed, cannot operate to deprive the lunatic of his interest in the land in favor of a subsequent purchaser to whom the declaration was made.</p>

<p> Criminal law—Murder—Elements of murder in the first degree—Intoxication. </p> <p>A conviction of murder of the first degree will be sustained where the evidence for the commonwealth shows that prior to the killing the prisoner and the deceased, while drinking together, quarreled; that after their separation the prisoner, who was partially intoxicated, went wilh a companion to a store and purchased a revolver; that they planned together how to kill the deceased ; that after testing the revolver they went to the deceased’s boarding house; that the prisoner went up behind the deceased who was at table, and shot him twice in the head, and that the prisoner immediately fled. In such a case it is immaterial that the deceased solicited the prisoner to drink.</p>

<p>Appeal, No. 132, Oct. T., 1902, by plaintiff, from decree of C. P. Beaver. Co., Sept. T., 1902, No. 4, dissolving a preliminary injunction in case of Ohio River Junction Railroad Company v. Freedom & Conway Electric Street Railway Company, The Beaver Valley Traction Company, Thomas H. Regan & Company and Thomas H. Regan.</p> <p>Bill in equity for an injunction.</p> <p>From the record it appeared that the plaintiff, a railroad corporation, under the general railroad laws of Pennsylvania, on March 17, 1900, located a branch line which crossed the Beaver and Pittsburg state road, and subsequently located another branch crossing the state road in the borough of Freedom. These branches were respectively known as the Remington and Conway branches, and had not been constructed at the time of the filing of the bill. The Beaver Valley Traction Company leased the railway and franchises of the People’s Electric Street Railway Company, and under this lease claimed the right to construct a street railway on the state road at the points where the two branches crossed that road. Plaintiff denied the validity of this lease, in so far as it gave power to construct a street railway on a country or township road. The plaintiff also denied that the traction company had secured the local and municipal consent prerequisite to its right to construct its line.</p> <p>The court in an opinion by Miller, P. J., dissolved a preliminary injunction which it had previously granted.</p> <p>Error assigned was decree dissolving the injunction.</p>

<p> Appeals—Supreme Court—Superior Court—Decree on trustee's account. </p> <p>Under the Act of May 5, 1899, P. L. 248, on appeal from a decree or judgment for the payment of money in any court or any form of action, the amount in controversy is determined for purposes of jurisdiction by the amount of the decree or judgment.</p>

Appeal, No. 256, Jan. T., 1901, by defendant, from judgment of C. P. Carbon Co., Jan. T., 1901, No. 28, on verdict for plaintiff in case of Wesley Buck v. The New Jersey Zinc Company. Trespass to recover damages for personal injuries. Before Craig, P. J. At the trial it appeared that on December 30, 1899, plaintiff who was employed by the defendant as a laborer on a car was injured by the breaking of an open link used on the car.

<p>Appeal, No. 297, Jan. T., 1901, by defendant, from decree of C. P. McKean Co., Feb. T., 1897, No. 8, dismissing exceptions to auditor’s report in case of Ellen C. Hanna and William N. Hanna v. Junius R. Clark et al.</p> <p>Bill in equity for an account and for partition.</p> <p>Exceptions to report of J. M. McCluee, Esq., auditor to state account.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>

Appeal, No. 342, Jan. T., 1901, by defendants, from decree of C. P. McKean Co., BAb. T., 1897, No. 3, in partition, in case of Ellen C. Hanna and William N. Hanna v. Junius R. Clark et al. Bill in equity for an account and partition* From the record it appeared that the bill was filed against Junius R. Clark and the other defendants for partition, and against Clark for an account. A master and two commissioners in partition were appointed.

<p>Appeal, No. 11, May. T., 1902, by plaintiff, from decree of C. P. Dauphin Co., Commonwealth Docket, 1897, No. 78, dismissing bill in equity in case of Commonwealth ex rel., Henry C. McCormick, Attorney General, v. Reading 'Traction Company, C. A. Pearson, C. Ford Stevens, John A. Rigg, John P. Illsley, Richmond L. Jones and Edward Clark, Sabin W. Colton, Jr., Edward W. Clark, Jr., Milton Colton and Edward Howard Clark, Jr,, trading as E. W. Clark & Company.</p> <p>Bill in equity to declare void a fictitious issue of capital stock of a corporation. Before Simonton, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing bill.</p>

<p>Appeal, No. 55, Oct. T., 1902, by Sarah A. Harrold et. al., from order of G. P. Westmoreland County, Nov. T., 1900, No. 488, dismissing exceptions to the inquisition of lunacy, and refusing a new trial on the traverse of the inquisition, in case of Commonwealth ex rel. Jane E. Cope v. Sarah A. Harrold.</p> <p>Traverse of inquisition of lunacy.</p> <p>From the record it appeared that the following exceptions were filed to the inquisition:</p> <p>That the said finding is not in accordance with the testimony and the law governing the same; that there is no testimony in the ease to prove the defendant to be of unsound mind; that at most the testimony adduced and attached to the finding aforesaid was only proof that the defendant above named was entitled to the appointment of a guardian under the provisions of the Act of June 25, 1895, P. L. 300; that the jury of inquest determined their verdict in this ease upon the prejudice created in its mind by the address of the counsel for plaintiff, relative to the conduct of Charles Blinker, attorney in fact for defendant, who was tried, convicted and sentenced to the penitentiary, rather than by the testimony governing the questions in issue as to the sanity or insanity of the defendant above named:</p> <p>That the said court has no jurisdiction in above case for the reason that the domicile of the defendant, at the time when the petition for a commission was presented, was in the city of Allegheny, county of Allegheny and state aforesaid.</p> <p>These exceptions were overruled. [1, 2]</p> <p>At the trial of the traverse the following offer was made:</p> <p>Counsel for the commonwealth and the relator offer in evidence the inquisition and finding of the sheriff’s jury which was presented in open court on December 19, 1900. The said inquisition was taken before M. N. MeGeary, Esq., as a commissioner, and a jury selected in accordance with law, consisting of J. B. McQuaide, S. P. Miller, J. A. Monroe, S. B. Sheibler, David Walton and David Maxwell, on November 20, 1900, at 10 o’clock A. M., and adjourned until Wednesday, November 21, 1900, at 1.30 P. M.</p> <p>In this connection, counsel also offer the original petition and the affidavit of defense and all papers connected with the inquisition and attached to this finding.</p> <p>The record shows that the inquisition contained on its back the following order: And now, December 19, 1900, the within report filed in open court and confirmed nisi, unless a traverse be filed under the provisions of the act of assembly within the time therein stated.</p> <p>Counsel for the commonwealth also offer in evidence the decree of confirmation filed by the court on June 29, 1901, as follows :</p> <p>And now, June 29, 1901, after due consideration, the exceptions to the inquisition are dismissed and the report is confirmed absolutely, unless within thirty days from this date a traverse of said inquisition be duly filed by some person having the right to do so.</p> <p>The purpose of this offer is to complete the case of the commonwealth and relator under the said record by offering the proceedings of the sheriff’s jury and the finding thereof as the case of the commonwealth and relator in this trial under the traverse.</p> <p>The objection thereto being :</p> <p>Counsel for defendant object to the offer as incompetent and irrelevant for the reasons: (1) That the finding of the inquest is not supported by the testimony taken before the commissioner and returned as part of the record; (2) for the reason that if the finding be a good one, nothing is admitted in evidence except the mere fact that the jury has found the defendant to be a lunatic.</p> <p>The ruling of the court thereon being :</p> <p>The Court: The record of the inquisition is admissible for that purpose only. We admit the record of the inquisition for the purpose of showing the fact of lunacy ; it is prima facie for that purpose but not for other purposes.</p> <p>Verdict and judgment for the commonwealth. Defendant appealed.</p> <p>Errors assigned were (1, 2) in dismissing exceptions to in-, quisition; (3) rulings on evidence, quoting the bill of exceptions ; (4) refusal of motion for new trial on the grounds of alleged misconduct of jury, referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 16, Oct. T., 1902, by defendant, from judgment of Superior Court, April Term, 1901, No. 136, affirming judgment of C. P. Jefferson Co., Nov. T., 1899, No. 97, in case of Theophilus Pantall v. Rochester & Pitts-burg Coal and Iron Company.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the judgment of the lower court.</p>

Appeal, No. 10, Oct. T., 1902, by plaintiff, from decree of C. P. Greene Co., No. 18, in equity, dismissing bill in equity in case of William Goodwin v. T, Reed McMinn. Held: but which writing was neither sealed, acknowledged nor recorded. It denied any fraud or intention to defraud Shaw or his creditors. It also stated an account. The case was heard on bill, answer and proofs.

Appeal, No. 149, Oct. T., 1902, by defendants, from judgment of C. P. Greene Co., Oct. T., 1898, No. 171, on verdict for plaintiff, in case of John W. McNicholas v. Michael Moran, Bridget Moran and Jacob Henthorn. Ejectment for a one-third interest in land in Springhill township. Before Craweobd, P. J. At the trial it appeared that the land in dispute was owned by Thomas McNicholas in his lifetime.

<p>Appeal, No. 9, Oct. T., 1902, by plaintiff, from order of C. P. Beaver Co., June T., 1901, No. 199, opening judgment in case of James K. Myler v. Edward Wittish et al.</p> <p>Attachment under act of 1869. Before Wilson, P. J.</p> <p>Rule to open judgment entered for want of an appearance.</p> <p>Error assigned was order opening judgment.</p>

Appeal, No. 170, Oct. T., 1902, by plaintiff, from judgment of C. P. Lawrence Co., Sept. T., 1901, No. 32, on demurrer to statement in case of Edward Sander-son v. Brotherhood of Railroad Trainmen. Assumpsit against beneficial society. Before Miller, P. J. The opinion of the Supreme Court states the case. Error assigned was in entering judgment for defendant on demurrer.

Appeal, No. 27, Oct. T., 1902, by plaintiffs, from judgment of C. P. No. 1, Allegheny County, Dee. T., 1900, No. 200, on verdict for defendant in case of Willielmina Banes etal. v. Janies F. Morgan. Equitable ejectment for lands in Shaler township. Before Stowe, P. J. At the trial it appeared that Wilhelmina Banes and Mary Givens formerly owned the lands in controversy.

<p>Appeal, No. 68, Oct. T., 1902, by-plaintiff, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 539, dismissing bill in' equity in case of John C. Agnew and Viola R. Agnew, his Wife, in right of said Viola R. Agnew, v. Southern Avenue Land Company.</p> <p>Bill in equity for a specific performance.</p> <p>Demurrer to bill. Before Brown, J.</p> <p>The memorandum in writing upon which the bill was based was as follows:</p> <p>“ Now, to wit: January 29, A. D. 1897, I, J. P. Hunter, acknowledge that I have made the following arrangement with Mr. F. I. Gosser in relation to the Southern Avenue Land Co., to wit:</p> <p>“That the said “John C. Agnew and Viola, his wife, being corporators in said intended corporation, and the said parties now living in a house on a portion of said premises, it has been agreed that upon the organization of said company, that the said Mrs. Agnew to have the right and preference in securing title in fee simple, and free from all incumbrances, with the consent of mortgagee, to said piece of ground upon which she now resides.</p> <p>“ This to be secured by means of an appraisement, if need be, by the intervention of three disinterested and impartial appraisers, whose award shall be final, the said Mrs. Agnew to make payment for the same out of stock of the Southern Avenue Land Company. The size of the lot of ground secured, or intended to be secured, by Mrs. Agnew, to be determined hereafter, and to conform to the general plan regarding the convenience and economy, hereafter to be laid out and established.”</p> <p>The court sustained the demurrer and dismissed the bill.</p> <p>Error assigned was in dismissing the bill.</p>

<p> Trusts and trustees—Attorney at law—Sale of interest in decedent's estate—Fraud—Burden of proof—Evidence. </p> <p>In an action against an attorney at law by a son of a decedent to recover an interest in his father’s estate, assigned by an instrument in writing to defendant, the evidence is not sufficient to establish a trust relation between the parties so as to place upon the defendant the burden of proving the fairness of the transaction, where it appears that at one time by an agreement among the heirs, defendant had bought in the property for them at an orphans’ court sale at a nominal price, but that this sale was set aside upon objections among others of the plaintiff, and that at a subsequent sale defendant, who had in the meantime bought the interests of most of the heirs, including the plaintiff, who was in haste to realize his interest in money, purchased the property in his own right as the highest bidder for its full value.</p>

Appeal, No. 84, Oct. T., 1902, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1902, No. 204, dismissing petition for mandamus in case of Commonwealth ex rel. Theodor Weiss v. Thomas G. McClure, Treasurer of Allegheny County. Petition for mandamus. The petition was as follows : That he is a citizen of the United States, of temperate habits and good moral character.

<p>Appeals—Interlocutory order—Railroads— Condemnation proceedings— Bond.</p> <p>An order fixing the amount of a bond in railroad condemnation proceedings is interlocutory in character, and no appeal lies from it.</p>

<p> Criminal law—Murder—Felony—Arrest by citizen without warrant. </p> <p>Where a citizen in fresh pursuit of a person who has committed a felony, attempts to arrest the malefactor without a warrant, and the latter deliberately and intentionally shoots and kills him, the malefactor is guilty of murder in the first degree.</p> <p>If a prisoner, in resisting arrest, intentionally discharges a revolver at his custodian, he intends to do either great bodily harm, or to kill, that he may escape, and, in either case, malice is to be presumed, and it is murder, not manslaughter.</p> <p> Criminal law—Murder■—Evidence—Exhumation of body. </p> <p>It is no ground for setting aside a conviction of murder of the first degree that the district attorney, and not the coroner, exhumed the body of the deceased, in order to submit to the jury the conclusive evidence that a bullet from the pistol of the prisoner had caused the death charged to him.</p> <p> Criminal law—Murder—Instructions. </p> <p>On the trial of an indictment for murder where it appears that the prisoner after having committed a felony shot the deceased, a private citizen, who attempted to arrest him without a warrant, it is proper for the court to refuse a point framed as follows: “If the prisoner while struggling to resist his arrest by the deceased, did, in the heat of the struggle, and without malice, intentionally discharge his revolver at the deceased, inflicting upon him the wound from which he subsequently died, he is guilty of manslaughter only, and this is the law even though, at the time of the act, the prisoner was in no real or apparent danger of losing his own life, or of sustaining any bodily harm.”</p>

Appeal, No. 159, Oct. T., 1902, by defendants, from order of C. P. Armstrong Co., Dec. T., 1898, No. 100, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of John Stewart v. Phoebe Rebecca Elizabeth Elwina Linton and Adolphus Frederick Linton. Scire facias sur mortgage.

Appeal, No. 54, Oct. T., 1902, by defendants, from decree of C. P. Washington Co., No. 1177, in equity, on bill in equity in case of William M. Russell v. John E. Stewart, S. A. Gibson and Ross White. Bill in equity to secure the cancelation of an agreement to sell coal. Before McIlvaine, P. J. From the record it appeared that plaintiff claimed a forfeiture by reason of the defendant failing to make first payment of the purchase money, on the day designated in the agreement.

<p> Vendor and vendee—Time as the essence of contract—Officer. </p> <p>An agreement for the sale of real estate provided that one half of the purchase money should be paid on a day stated, and the balance in one annual payment. The agreement provided as follows: “ It is fully understood by first and second parties that a failure to make any one of said payments at such time as specified in this agreement, or within sixty days after such payment becomes due, shall render this agreement null and void, and it shall not be binding on either party, but shall be a complete surrender and cancelation of said agreement.” No offer was made to pay the first installment of the purchase money until nearly a year after the day it was due. Held, that the vendor was entitled to a cancelation of the contract.</p>

Appeal, No. 185, Oct. T., 1902, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1902, No. 213, on trial by court without a jury in case of Francis McCann v. William P. Barclay. Assumpsit to determine marketable title to real estate. Before Wilson, P. J. The case was tried by the court without a jury, under the act of April 22, 1874. The court entered judgment for plaintiff for $3,020. jError assigned was in entering judgment for plaintiff.

Appeal, No. 280, Jan. T., 1902, by defendant, from judgment of O. & T., Del. Co., March T., 1902, on verdict of guilty of murder in the first degree in case of Commonwealth v. Robert Kilpatrick. Indictment for murder. The opinion of the Supreme Court states the case. Verdict of guilty of murder of the first degree. Errors assigned were: 1. Under all the evidence the defendant should have been acquitted on the ground of insanity. 2.

Appeal, No. 30, Oct. T., 1902, by plaintiff, from order of C. P. Butler Co., Sept. T., 1900, No. 60, striking off judgment in case of Samuel Davidson and Ellen A. Davidson, his Wife, v. Jacob M. Miller. Rule to strike off judgment.

<p> Ejectment—Equitable ejectment—Trusts and trustees—Accounting—Appeals. </p> <p>Where in an equitable ejectment to enforce a trust the Supreme Court reverses a judgment for defendants, and awards a venire facias de novo that a verdict may be rendered recognizing and executing the trust in accordance with the principles enunciated in the appellate court, the defendants on the new trial thus awarded will not be permitted to prove that the evidence on which the judgment of the Supreme Court for an account was founded, was, in fact, false and fraudulent. The time to prove that was on the former trial.</p> <p>In such a case where it appears that one of the defendants had become a party to the suit on his own petition and participated in the former trial, he will not be permitted on the subsequent trial to show that he had bought a portion of the land charged with the trust as an innocent purchaser, and without any notice of the trust. Such defendant had his day in court at the former trial.</p>

Appeal, No. 257, Jan. T., 1901, by' plaintiffs, from judgment of C. P. Lackawanna Co., Oct. T., 1889, No. 358, on verdict for plaintiffs in case of Joseph Fellows, Cornelius Smith, Margaret A. Smith, J. Stanley Smith and Winfield Fellows v. F. E. Loomis and John H. Fellows. Ejectment for land in the city of Scranton. Bofore Gob-don, P. J., specially presiding. See Fellows v. Loomis, ante, p. 225, and Fellows v. Loomis, 170 Pa. 415.

Appeal, No. 174, Jan., T., 1901, by defendant, from judgment of C. P. Warren Co., Dec. T., 1899, No. 74, on verdict for plaintiff in case of Critt Marsh, Guardian of EllaLockeby, v. Western New York & Pennsylvania Railway Company. Trespass to recover damages for death. Before Lindsey, P. J. The facts appear by the opinion of the Supreme Court. Plaintiff presented this point: 13.

Appeal, No. 335, Jan. T., 1901, by defendant, from decree of C. P. Warren Co., Sept. T., 1901, No. 42, on bill in equity in case of S. A. Mundy and F. P. Schoonmaker v. Arthur R. Brooks. Bill in equity filed for the purpose of negatively enforcing a contract of sale of bark. Before Lindsey, P. J. The facts áppear by the opinion of the Supreme Court.

<p>Appeal, No. 38, Oct. T., 1902, by plaintiff;, from order of C. P. Armstrong Co., June T., 1897, No. 63, staying execution, in case of Hannah Ada Lewis, Earnest Henry Davis and Algernon Edward Sydney, Executors of Samuel Lewis, v. Elwina Linton.</p> <p>Rule to stay execution as to a particular class of property.</p> <p>From the record it appeared that the proceedings was a foreign attachment on a promissory note made in England by a married woman. The defendant claimed at the trial that as to a certain class of her property she was not liable. The ruling of the court was adverse to her claim, and a general verdict was found against her upon which judgment was entered.</p> <p>After the expiration of the term at which the judgment was entered, the defendant obtained a rule to show cause why the judgment should not be modified. On July 6, 1900, the court made the following order:</p> <p>And now, to wit: it is ordered, adjudged and decreed that execution upon the judgment entered to No. 63, June term, 1897, in the court of common pleas of Armstrong county, be, and the same is hereby stayed perpetually as against any and all property in said county which was acquired by the said defendant, Elwina Linton, also known as Phoebe R. E. E. Linton, prior to January 1, 1883, excepting any and all such property as may have prior to that time been settled to the sole or separate use of said defendant, under the laws of the commonwealth of Pennsylvania.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 167, Oct. T., 1902, by defendant, from decree of C. P. Armstrong Co., June T., 1901, No. 165, on bill in equity in case of Elizabeth Graham v. Henry A. Heidrick, Guardian of Adam Boltz. Bill in equity for partition. Before Miller, P. J., specially presiding. The facts appear by the opinion of the Supreme Court.

Appeal, No. 127, Oct. T., 1901, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 721, on verdict for plaintiff, in case of Patrick… Held: was canceled and delivered up. Under these circumstances we think we are justified in reaching the conclusion that the act of 1881 is not applicable to this case, and that plaintiff is entitled to recover. This conclusion we think is in line with the principles laid down in Goodwin v. McMinn, 193 Pa. 646.

<p>Appeal, No. 28, May T., 1902, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1901, No. 187, on appeal from tax settlement, in case of Commonwealth v. Brush Electric Light Company.</p> <p>Appeal from tax settlement. Before Weiss, J.</p> <p>The court below found the facts to be as follows:</p> <p>1. The Brush Electric Light Company, defendant, is a corporation of the state of Pennsylvania, chartered for the purpose, as expressed in its charter, of “ carrying on the business of manufacturing, procuring, owning and operating various apparatus used in producing light, heat or power by electricity, or used in lighting buildings, with the right to acquire, hold, manufacture and manage such property, real, personal and mixed, as may be deemed necessary or advisable to use in connection therewith and with such other rights as provided in the act of assembly, entitled ‘ An act to provide for the incorporation and regulation of certain corporations,’ approved April 29, 1874, and its several supplements.” The defendant accepted the provisions of the Act of May 8, 1889, P. L. 136, and is now a corporation existing in pursuance of the terms of said act.</p> <p>2. For the six months ending June 30, 1900, in a blank form prescribed by the auditor general, defendant returned to that official an itemized statement of its gross receipts, as follows:</p> <p>From electric light business,.............. #442,727.73</p> <p>From other sources, sales of materials, etc., . . 75,884.55</p> <p>which last sum was made up of the following items</p> <p>From loans to other companies returned, . .. #54,128.62</p> <p>Sale of electric supplies, such at lamps, drop lights, scrap iron, etc., . ............... 7,432.29</p> <p>Temporary loan of money, ............... 12,200.00</p> <p>Rebates on freight and insurance, ........ 800.94</p> <p>Rent of stalls in stable owned by defendant, . 81.50</p> <p>Interest on bank balance,............... 1,241.20</p> <p>Total,.....................' . . $75,884.55</p> <p>3. The auditor general in the account appealed from charged a tax of eight miles upon defendant’s 'entire receipts, including the said $75,884.55. Defendant paid into the state treasury the sum of $3,541.82, being the tax upon $442,727.73 reported as derived “ from electric light business,” and appealed from the balance.</p> <p>The court found the following conclusions of law:</p> <p>The conclusion of law is, that the defendant companies are each liable to taxation upon the gross receipts derived from the sale or supply of electrical power, in the amount returned by them, respectively, to the auditor general, for the tax periods embraced in the settlements made against them by the commonwealth.</p> <p>■ We are further of the opinion that the items designated, variously, “ sale of steam,” “ sale of electric supplies, such as lamps, drop lights,” etc., “sales of scrap and other material,” should be added to the gross receipts from light and power.</p> <p>They are the proceeds of sales of articles used in lighting, or in the conduct of the business of the electric light companies, as hereinbefore defined, and should be added to the other, taxable items and taxed as gross receipts.</p> <p>The other items returned under the heading “from all other sources,” or otherwise, not the result of sales of the product of the business of the companies engaged in electric lighting, are not taxable by the commonwealth.</p> <p>The prothonotary is directed to enter judgment in accordance with the foregoing opinion, upon calculation of the amounts taxable as gross receipts at the rate of eight mills upon the dollar thereof, and crediting the respective amounts paid to the state treasurer by each of the companies defendant, unless exceptions are filed according to law.</p> <p>Error assigned was the judgment of the court.</p>

<p> Partition—Executors and administrators—Acceptance at appraisement. </p> <p>Where land is devised to executors to be held in trust until the majority of the son of the testator, and if the son dies during his minority to be sold by the executors, who are to distribute the proceeds of the sale to various legatees, the executors after the death of the son during his minority, have no standing in partition proceedings instituted by the widow of the testator to take the real estate at the appraisement. There is no statute of Pennsylvania which gives the right to executors to accept or reject real estate at the appraisement in partition proceedings. Such right is purely statutory.</p>

<p>Appeal, No. 73, Oct. T., 1902, by-defendant, from decree of C. P. Westmoreland Co., No. 390, Equity Docket, dismissing bill in equity in case of Mary C. Steele v. Lucinda H. Walter, B. F. Walter and AnnaB. Fried-line.</p> <p>Bill in equity to strike off satisfaction of a mortgage, and to have foreclosure proceedings marked to use of complainant.</p> <p>McConnell, J., filed the following findings of fact and conclusions of law:</p> <p>1. John Walter, in his lifetime, was the owner of a farm of 100 acres in Washington township, Westmoreland county.</p> <p>2. After his death his last will and testament was admitted to probate, which contained the following provisions, viz: “Know all men by these presents, that I, John Walter, of Washington township, county of Westmoreland and State of Pennsylvania, do make this my last will and testament. I hereby give to my son, B. F. Walter and his heirs, all my estate, real, personal and mixed, and to whatever I shall be entitled at my decease by note, book account, or in any other way, upon the following conditions, viz : It is my will that the said B. F. Walter, and his heirs, pay all my just debts and my funeral expenses, also pay to my son, J. C. Walter, the sum of fifty ($50) dollars, if he call in person for it; to my granddaughter Mary C. Zimmerman, now married to A. J. Steele, the sum of six hundred ($600.00) dollars ; to my daughter, Lucinda H. Walter, the sum of one thousand ($1,000.00) dollars ; and, further» the Lucinda H. to have her living in the old homestead so long as she remains unmarried, and does not charge wages for services rendered.”</p> <p>8. The complainant in this bill is the Mary C. Zimmerman mentioned in the will, and the Lucinda H. Walter named as one of the defendants in the bill, is the Lucinda H. Walter mentioned in the last clause of the foregoing will.</p> <p>4. B. F. Walter accepted the devise of the land, as above set forth.</p> <p>5. Afterwards, to wit: on September 29, 1894, B. F. Walter and wife, and the aforesaid Lucinda H. Walter, executed a mortgage of the real estate devised .to B. F. Walter, in favor of Anna B. Friedline for the penal sum of $6,000, conditioned for the payment of $3,000, as therein set forth. This mortgage was acknowledged by the mortgagors on October 1, 1894, and recorded October 3, 1894.</p> <p>6. Afterwards B. F. Walter became indebted to sundry other creditors, who, by virtue of warrants of attorney attached to certain writings. obligatory executed by him, caused judgments to be entered against him which became liens on the aforesaid land, of later dates, however, than the lien of the mortgage above recited; executions were issued on two of these judgments and the land aforesaid was, by virtue of said executions, levied on and sold by the sheriff, to Mary C. Steele, the complainant, for the sum of $1,600. A deed for the property, duly executed and acknowledged by the sheriff, was delivered to the purchaser, who took possession of the property and still retains it.</p> <p>7. At the time of the sheriff’s sale, Mary C. Steele was familiar with the provisions of John Walter’s will, and she, prior to that, caused it to be understood by the said B. F. and Lucinda H. Walter, that the provisions of the avíII with respect to Lucinda H. Walter having her living in the old homestead so long as she remained unmarried, and did not charge for her services, was to be carried out by her if she became the purchaser, notwithstanding the sheriff’s sale. She also understood that the sale would be subject to the Friedline mortgage of $3,000. She became the purchaser on May 18, 1895.</p> <p>8. Shortly before June 15, 1895, Anna B. Friedline caused a writ of sci. fa. to be issued on the aforesaid mortgage, for the purpose of foreclosing it. The complainant, then and now living in the state of Ohio, learning of the proceeding, sent to her attorneys in Greensburg the amount then due on the mortgage, viz: $3,289.78, for the purpose of lifting the mortgage. On receiving this sum of money from the hands of the attorneys of complainant, Anna B. Friedline entered satisfaction on the margin of the record of the mortgage in the following form:</p> <p>“ Now, June 15, 1895, I, the mortgagee, herein named, do hereby acknowledge to have received satisfaction in full of the debt, interest and cost of this mortgage.</p> <p>“ Witness my hand and seal.</p> <p>“ Anna B. Friedline. [Seal]</p> <p>“ Acknowledged before me.</p> <p>“ J. H. Gallagher, Deputy Recorder.”</p> <p>There was no mistake of fact which prompted the entry of this satisfaction, and the thing done was in accordance with the interest of the parties concerned in the transaction.</p> <p>9. After this was done, to wit: on December 16, 1895, the aforesaid Lucinda H. Walter presented her petition in the orphans’ court of Westmoreland county, setting forth the bequest made her under the terms of her father’s will, the death of her father, on July 4,1884, the sale of the farm by the sheriff on May 18, 1895, to the complainant, and her refusal to render to said petitioner her living and maintenance in said property.</p> <p>The petition was so proceeded on that, on January 7, 1901, the Supreme Court, affirming the report of the auditor, held that the clause giving to Lucinda H. Walter her living in the old homestead so long as she remained unmarried and did not charge wages for services rendered, constituted a lien on said land, and that it was of such a nature that it was not divested by the sheriff’s sale. The opinion of the court is to be found in Walters’s Estate, 197 Pa. 555.</p> <p>10. At the time of the purchase of the land at the sheriff’s sale, and at the time of the entry of satisfaction on the Fried-line mortgage, Mary C. Steele was cognizant of the facts from which the legal conclusion is deducible that the provisions of the will of John Walter giving to Lucinda H. Walter her living in the old homestead, is a lien on the said land and not divestible by the sheriff’s sale. She, however, entertained a mistaken view of the law arising out of those known facts.</p> <p>CONCLUSIONS OF LAW.</p> <p>From the foregoing facts the following conclusions of law are deduced:</p> <p>1. The title acquired by Mary C. Steele at the sheriff’s sale of the real estate of B. F. Walter, was subject to the mortgage of Anna B. Friedline, and also subject to the testamentary provision whereby Lucinda H. Walter was afforded a living in the real estate then sold.</p> <p>2. Having bought subject to both these charges, the land became—as between her and the mortgagors—the primary fund for their pajnnent, and she is, in law, considered as being agreed that they should be paid by her, as a part of her bid for the property at the sheriff’s sale.</p> <p>8. While this agreement is not binding on her personally, yet as long as she holds the purchased real estate, she has no claim on anyone else, for the payment of these charges, which she herself had promised to discharge, and had been paid in full for so promising, by getting the title to the land.</p> <p>4. When she paid off the Friedline mortgage, she is presumed to have done it as the consummation of her agreement to pay for the land, and is not to be considered as a purchaser of that security. Having only done what the obligation of her understanding at the sheriff’s sale bound her to do, she gets no legal or equitable rights by such payment, in addition to what accrued to her at that sheriff’s sale. She, therefore, would have no right to have the mortgage assigned to her, and has no equity which would entitle her to be subrogated to the mortgage for the purpose of enforcing it against anyone else. Payment was extinguishment.</p> <p>5. When a purchaser at a sheriff’s sale buys subject to the lien of a mortgage, she buys subject to the mortgage debt, and not simply subject to that portion of the debt which the mortgagor ought to pay in view of his relations with others. Having purchased, subject to the mortgage, the purchaser cannot contest its validity.</p> <p>6. A mistake of law will not constitute a ground of relief in equity.</p> <p>7. A purchaser at sheriff’s sale, subject to a mortgage, does not buy any equity for contribution, which one of the mortgagors, who owns the land, may have against another who owns no title in the land, but has, nevertheless, joined in the mortgage, she buys simply the equity of redemption, i. e., the right to retain the land by herself paying the mortgage debt.</p> <p>8. It is immaterial to Mary C. Steele whether Lucinda H. Walter, joining with B. F. Walter in the Friedline mortgage, had the effect of postponing the lien of the prior legacy to that of the mortgage. Her purchase was subject to both liens and she never owned, or was entitled to own, either of them. Her only interest in these liens is not with respect to their priority —the one over the other—but is through her obligation to pay them, to the end that she may thereby fully discharge her bid at the sheriff’s sale.</p> <p>9. No fraud, accident or mistake having brought about the satisfaction on the mortgage—-but, on the contrary, it having been done in accordance with the intent of the parties concerned and in consummation of their legal obligations, there is no ground for canceling the entry of satisfaction.</p> <p>10. Complainant’s rights are such, and such only, as have accrued to her by her purchase 'of the lands at sheriff’s sale, and her continued ownership of them. That land, and the title thereto, have suffered no diminution! since the sale, nor have the terms of her tenure thereof been made any more onerous to her by reason of anything that has transpired since the sale. The full consummation of the terms of purchase demands that she pay the legacy to Lucinda H. Walter. There is, therefore, no equity in complainant’s case which requires the court to assist her in avoiding the performance of that duty, voluntarily assumed by her when she purchased the land.</p> <p>11. No equity having been shown, adequate to justify the decree asked for, the bill should be dismissed at the complainant’s costs.</p> <p>The court dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 21, Oct. T., 1902, by plaintiff, from judgment of C. P. Cambria Co., March T., 1899, No. 286, on verdict for defendant in case of John Reilly v. Mountain Coal Company.</p> <p>Ejectment for lands in Summerhill township. Before Barker, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court refused to admit in evidence a deed in the name of the commonwealth under its great seal to Dorothea Brien, recorded in 1844, in Cambria county, but not acknowledged.</p> <p>Plaintiff presented these points :</p> <p>1. As against the alleged title of the defendant which had its inception by warrant dated March 19,1889, on which patent was issued on August 18,1899, the sale to Brien and Coleman of March 11,1808; the power of attorney from Dorothea Brien to Abraham Morrison dated August 8, 1845, and recorded June 26,1847; the deed of Dorothea Brien by her attorney in fact, Abraham Morrison, to Henry McKenzie, dated December 31,1849, and recorded May 24,1889, with tire recital therein of conveyance by “secretary of commonwealth of Pennsylvania, by deed dated January 4,1843, to Dorothea Brien in fee the last will and testament of Henry McKenzie, dated February 23, 1850; the petition of the executor of the last will and testament of Henry McKenzie, deceased, to sell the land claimed by the plaintiff in this action, with the order of the court under date of September 13,1853; the sale of the land as confirmed by the court on December 5, 1853; the deed from Sylvester McKenzie, executor, to Bernard McColgan, dated December 22, 1853, and recorded November 20,1854, with the recitals therein; the deed of Bernard McColgan to John Reilly dated March 21, 1871, and recorded April 22,1889, for the land claimed in this case by the plaintiff, with a recital therein as follows : “ Being the same tract of land, inter alia, which the secretary of the commonwealth of Pennsylvania, by deed dated January 4,1843, and recorded in recorder’s office of Cambria county, in record book, vol. 7, page 357, etc., conveyed to Dorothea Brien; and Abraham Morrison, attorney in fact of Dorothea Brien, by deed dated December 3,1849, conveyed to Henry McKenzie; and Sylvester McKenzie, executor of the last will and testament of Henry McKenzie, by deed dated December 22, 1853, and recorded in recorder’s office of Cambria' county in record book, vol. 13, page 201, sold and conveyed, by virtue of an order of the orphans’ court of Cambria county, to Bernard McColgan, party hereto; ” the deed of F. H. Barker, treasurer of Cambria county, to S. W. Davis, dated June 8,1896, recorded July 9,1898, “All that certain tract of land held in the name of John Reilly, in Summerhill township, Cambria county, containing four hundred and thirty-nine acres deed of assignment of S. W. Davis and Sarah J. Davis, his wife, to John Reilly, dated July 8,1898, and recorded July 9,1898; assessment of the land claimed by the plaintiff to John Reilly from the year 1880 continuously to this date ; the jury may find a good title vested in John Reilly, and if the jury find in addition thereto from the evidence that the location contended for by the plaintiff under the warrant and survey of John Nicholson is the true location of the land claimed by the plaintiff, the jury may find a verdict in favor of the plaintiff. Not answered. [3]</p> <p>4. If the jury find that the Mitchell warrant under the date of March 19,1889, and the return of survey made thereunder were located upon the lands surveyed under the John Nicholson warrant of August 8,1793, which survey was accepted by the commonwealth September 15,1847, and if the jury further find that the plaintiff is the successor in title to John Nicholson under his said warrant, their verdict should be for the plaintiff for the land described in the writ. Not answered. [4]</p> <p>Defendant presented these points: •</p> <p>6. The record of the return of survey of John Nicholson tract of August 8, 1793, shows that George Woods, and he alone, made the survey in 1793. The tract must be located by evidence of marks of such survey in 1793, and failing in such evidence^ then it must be located by^adjoiners. Answer: Affirmed. [5]</p> <p>8. The jury must not consider the evidence of J. Murray Africa as to the Cadwailader Evans tract being a John Musser tract, as his evidence is based upon his recollection of the contents of papers which were not produced, and is therefore incompetent. Answer: Affirmed. [6]</p> <p>9. Where, as in this case, it appears from the return of survey that the surveyor in locating the tract went upon the ground and made the survey, calls for streams and other natural monuments are of great weight in determining the location of the tract. Answer: Affirmed. [7]</p> <p>The court charged in part as follows:</p> <p>[You will have nothing to do with anything in this case except to determine this one question, if you can, where did George Woods survey this piece of land in 1793? In other words, did he survey the land where the plaintiff in this case claims he did, that is, as shown on his map by the red lines ? If he did not survey and locate that piece of land where the plaintiff claims he did, as shown on that map by the red lines, then, of course, the plaintiff has nothing to do with the land covered by that survey and claimed by the defendant, and cannot recover. The only questions of law in the case are those which we shall give you to guide you in your deliberations in determining that question, as to where George Woods did locate this tract of land.] [8]</p> <p>[It very frequently occurs, as in the past—not so much now, since land titles have been better settled—that these controversies arise between two persons, each of whom owns warrants, surveys and patents out of the commonwealth, and it is claimed one interferes with the other, that one is laid partially on top of the other, and certain rules have been laid down, and, mainly, the rules that have been laid down are in relation to cases of that kind. There are two warrants, surveys and patents here that interfere, but these rules do not apply in this case, because it is a question here of the actual location on the ground of the John Nicholson warrant as claimed by the plaintiff.] [9]</p> <p>[The presumption is that Mageehan merely returned to the land office a copy of the survey, out of the book, made by Woods, but he states in his return that it was examined by him and found correct. Now, of course, if it were proven as an absolute fact in this case, that Mageehan made a survey on the ground and it differed from that made by Woods, the Woods survey would prevail. He would have no authority to change the survey made by Woods. He would only have authority to report to the land office what survey was made by Woods.] [10]</p> <p>[But the land office has accepted the return of the survey-made by Woods, in the handwriting of Mageehan, in which he states that he examined it and found it correct, and we feel that if there tvas absolute proof here that Mageehan had marked a line on the ground, on the date when he says he examined this, and marked it as shown on the draft introduced in evidence, that while it is not evidence in itself alone, and' could not be, if there was nothing else in the case, of the true location of this, yet, if it throws any light on the location made by Woods, originally, then it is evidence in this case, and not otherwise.] [11]</p> <p>[Now, independent of any bearing that this survey, alleged to have been made by Mageehan, has upon the question as to whether or not Woods made such a survey, it is valueless as evidence, for the reason if he was not going over the ground that George Woods went over, then his survey is valueless. He had no authority to make other lines, he had no authority to make new lines. The plaintiff’s title must rest upon the survey made by George Woods.] [12]</p> <p>[We simply instruct you that your duty is, from the evidence in the case, to follow the footsteps, if you can, of George Woods in 1793, and see whether or not he located this land as claimed by the plaintiff. If you find, from the weight of the evidence, that he did, under our instructions as to the way in which you shall apply that evidence, then render a verdict for the plaintiff. If you find that he did not locate it there, and it matters not where else he may have located it, then your verdict would be for the defendant.] [13]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1,2) rulings on evidence; (3-13) above instructions, quoting them.</p>

Appeal, No. 67, Oct. T., 1902, by defendant, from judgment of C. P. Cambria Co., March T., 1900, No. 213, on verdict for plaintiffs, in case of S. W. Davis and E. F. Spencer v. W. M. Beers, Jeremiah Good and J. J. Landis, to which was added the Equitable Loan & Building Association of Altoona. Ejectment for land in Clearfield township. Before Barker, P. J. The facts are stated in the opinion of the Supreme Court. Defendant presented these points : 2.

<p> Deeds—Fraudulent conveyance—Purchaser from fraudulent grantee. </p> <p>Bona fide purchasers from a fraudulent grantor are protected by the statute of 13 Elizabeth, ch. 5, and it is a settled rule , that the protection extends to a purchaser from a fraudulent grantee. The deed of a fraudulent grantor is not a nullity nor ineffective to divest his title as against the paramount interest of a bona fide purchaser.</p> <p>In an action of ejectment where it appears that the defendant claims title as a purchaser at a sheriff’s sale under a judgment entered months after the defendant in the execution had conveyed the property to the plaintiff’s grantor, the fact that there was evidence of fraud in the conveyance by the defendant in the execution to plaintiff’s grantor, without any evidence of fraud in the conveyance to the plaintiff, does not justify the court in charging that if the conveyance by the defendant in the execution was not made in good faith, but for the purpose of defrauding creditors, it was void, and the plaintiff’s grantor acquired no titles and had none to convey to plaintiff.</p> <p> Evidence—Declarations after grant—Fraud. </p> <p>The general rule that the declarations of a grantor made after the execution of a grant cannot be used to impeach it, has been so far modified that when the good faith of a transfer has been attacked by creditors and some evidence has been advanced to show a common purpose or design by the parties to hinder, delay or defraud creditors, subsequent declarations by the grantor are admissible. A prerequisite to the admission of such declarations is some evidence of fraud and collusion between the grantor and the grantee,</p>

Appeal, No. 130, Oct. T., 1902, by plaintiffs, from order of C. P. Clarion Co., May T., 1902, No. 267, refusing a writ of mandamus in case of Commonwealth ex rel. W. J. McEntire and J. H. Elliott, Overseers of the Poor District of Clarion Borough, and John Japes and An-son Beatty, Overseers of the Poor of Edenburg Borough, and J. T. Reins el, District Attorney of Clarion County, v. J. A. Summerville, W. S. M. Fleming and J. S. Saxton, County Commissioners.

<p>Appeal, No. 64, Oct. T., 1902, by plaintiff, from order of C. P. Greene Co., May T., 1901, No. 19, refusing an issue to quiet title in case of petition of Harrison Ullom.</p> <p>Petition for an issue to quiet title to lands.</p> <p>From tbe record it appeared that on August 9,1899, Harrison Ullom, an owner of lands in Greene county, gave to William T. Hughes an option in writing to purchase the coal under the said lands and a portion of the surface. The option ran until December 1,1899. Hughes assigned his interest in the option to one Slease. Slease on November 30, 1899, caused a notice of acceptance to be served on Ullom. The agreement or option was subsequently recorded. Each party denied that the other had performed the covenants undertaken in the agreement.</p> <p>Taylob, P. J., filed an opinion in which, after reciting the agreement, he found as follows:</p> <p>The terms of the agreement or option contained therein, as above set out, are not in dispute between the parties. The only question arising under this agreement or option being whether or not, the parties to it, and their assignees, have complied with its terms, on the one hand, to be entitled to a decree of specific performance, and on the other hand, to a decree of cancelation of the contract.</p> <p>Under the undisputed facts of the case as disclosed by the petition and answer, does the Act of June 10, 1893, P. L. 415, apply ? The respondent makes no denial of petitioner’s title .or possession of the coal as described in said agreement, except in so far as the same are affected by the terms of said agreement and notice of acceptance, or that he has ever paid the purchase money so as to divest petitioner’s title, but that the petitioner and his wife contracted to convey the same to him, which contract he asks be enforced by a chancellor in a court of equity. The petitioner alleges that respondent’s rights under said agreement or option have been lost by his failure to perform his part of the agreement.</p> <p>Under the Act of June 10, 1893, P. L. 415, and the authorities of Del. & Hudson Canal Co. v. Genet, 169 Pa. 343, and McGarry v. McGarry, 9 Pa. Superior Ct. 71, the court of common pleas is required to find two facts to be true from the petition before said act is mandatory of an issue; they are the facts of the petitioner’s possession and the (respondent’s) or adversary’s denial of the title. Of the fact of the petitioner’s possession there is no denial, and we so find the fact of the petitioner’s possession in this case; but we do not find as a fact, the denial by this adversary of the petitioner’s title, but an affirmance of the petitioner’s title by his adversary to said coal and mining rights. By the agreement, notice of acceptance and a tender of the purchase money, as set up by respondent, he has but an equity in the coal and mining rights, of which, the legal title and possession are both in the petitioner and which the respondent contends, under a contract between them, should be conveyed to the lessee’s assignees. If it can be held under the undisputed facts of this case that the Act of June 10, 1893, P. L. 415, applies, on a trial on an issue framed, before the respondent could recover, if the facts found by a jury were with him, he would have to tender the purchase money, and this would be in effect turning an action of ejectment into a proceeding for specific performance of a contract, an existing remedy for the enforcement and determination of contracts that the act of June 10, 1893, was never intended and does not supersede, nor does said act provide a new remedy to settle and adjudicate questions arising out of contract, nor a new remedy for the specific performance or cancelation of contracts relating to the sale of real estate.</p> <p>JSrror assigned was the order refusing an issue.</p>

<p>.Statute of frauds—Memorandum in writing—Will—Parol contract— Evidence—Party deed— Witness—Ejectment.</p> <p>In an action of ejectment it appeared that the plaintiff claimed title by a deed from his father, and the defendant, a nephew of the plaintiff, claimed title under a parol contract made with his grandfather, plaintiff’s grantor, long before the date of the deed to plaintiff. Defendant’s mother testified that defendant had learned the trade of blacksmithing, and that shortly after he came of age his grandfather, in the presence of the witness, orally agreed that if defendant would give up his trade, and would come and live with him and work for him, that he would leave him by will the farm in controversy. Other witnesses testified to declarations of the grandfather confirming such a parol contract. There was also offered in evidence a paper signed by the grandfather which purported to be a will, by which he left the land in question to defendant. Defendant was permitted to testify in his own behalf although the plaintiff had not called any witness to testify to any matter which had occurred before the death of the grandfather. Held (1) that the evidence was sufficient to sustain a verdict for defendant; (2) that the will was a sufficient memorandum in writing, within the meaning of the statute of frauds; (3) that the defendant was an incompetent witness.</p>

<p>Vendor and vendee—Option—Title—Issue to quiet title—Act of June 10, 1893, P. L. 415.</p> <p>A controversy between vendor and vendee as to compliance or default by the latter in regard to the terms of an option may be the subject of a remedy by rule and issue under the Act of June 10, 1893, P. L. 415.</p> <p>Where an owner of land who has given an option has filed a bill on the equity side of the court to have the option set aside for default by the defendant, and the case has been tried on the merits and a decree made against the complainants, the latter cannot subsequently resort to the remedy by rule and issue under the act of June 10, 1893. By the decree on the bill in equity, the controversy became res adjudicata. In such a case where the petition for the issue and the answer thereto shows that the controversy had already been adjudicated, the court is not bound to grant the issue and have the question of the former decision raised by plea.</p>

Appeal, No. 121, Oct. T., 1902, by plaintiff, from judgment of C. P. Washington Co., Aug. T., 1900, No. 4, on verdict for plaintiff, in case of William B. Houston v. Western Washington Railroad Company. Appeal from award of viewers. Before McIlyaine, P. J. At the trial plaintiff was called as for cross-examination, and was asked this question : “ Q. Was that option on the whole farm ? ” Offer asked for and purpose.

<p> Equity—Specific performance—Modification of agreement. </p> <p>On a bill in equity for specific performance of an agreement for the sale of land, where it appears that the bill was based upon an original agreement, and a subsequent agreement indorsed on the back of the original, signed by counsel for the plaintiff, and modifying the original in two points favorable to the defendant, the latter cannot be heard to aver that the agreement was indefinite as to parties, because neither the plaintiff nor any other vendee was named in the indorsement, or that it was not mutually binding, because the plaintiff liad not signed the indorsement.</p> <p>Unless a contract is very clear to that effect, the court will not presume that a purchaser who stipulates for an abstract of title clear of incumbrances, is to pay the purchase money before he examines the abstract.</p> <p>Where an assignee of a vendee under an agreement for the sale of land tenders the purchase money and demands the deed, and the vendor at the time does not object that the assignee gives no notice of his right or title as assignee of the vendee named in the agreement, the vendor cannot thereafter object.</p>

<p>Appeal, No. 138, Oct. T., 1902, by defendant, from decree of C. P. Washington Co., No. 1209, in equity for specific performance, in case of John H. Jones v. Warren Sowers.</p> <p>Bill in equity for the specific performance of an option for the purchase of coal. Before McIlvaine, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court</p> <p>Error assigned was decree awarding specific performance.</p>

<p> Judgment—Striking off judgment and execution. </p> <p>Where the Supreme Court has declared a judgment and all proceedings thereunder to be void and of no effect, it is the duty of the court of first instance to strike from the record the judgment and all proceedings thereunder, so that the record in the common pleas may not be used in the orphans’ court to prevent the plaintiff in the judgment from participating in the distribution of a fund from the sale of the defendant’s real estate.</p>

Appeal, No. 140, Oct. T., 1902, by M. II. Stevenson, from decree of O. C. Washington County, May T., 1897, No. 35, overruling exceptions to auditor’s report in the matter of the account of William M. Jackson, administrator of Stephen Smith, deceased. Exceptions to auditor’s report. See Smith’s Estate, 194 Pa. 259. Error assigned was the decree of the court.

Appeal, No. 46, Oct. T., 1902, by defendant, from judgment of C. P. Butler Co., March T., 1902, No. 89, on verdict for plaintiff in case of John E. Shaffer and Josephine Shaffer v. Harmony Borough. Trespass to recover damages for personal injuries. Before Greer, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff's for $1550. Defendant appealed. Error assigned, among others, was in submitting the case to the jury.

<p> Railroads—Title by adverse possession—Tacking—Eminent domain. </p> <p>Where a railroad company, having the right oí eminent domain, takes land, not in the exercise of such right, but as a purchaser for railroad purposes, from one holding adverse possession, its title to the land will become good when the combined adverse possession of its vendor and itself comes to exceed twenty-one years.</p>

Appeal, No. 104, Oct. T., 1902, by-defendant, from decree of C. P. Butler Co., March T., 1901, No. 1, on bill in equity in case of Adam Miller et al. v. Sarah Maclcey. Bill in equity to compel the opening of a street. The facts appear by the opinion of the Supreme Court. Error assigned was the decree of the court.

Appeal, No. 166, Oct. T., 1902, by defendant, from judgment of C. P. Butler Co., Sept. T., 1902, No. 134, on verdict for plaintiff, in case of B. P. Burton v. Forest Oil Company. Assumpsit to recover rental under an oil and gas lease. Before Greer, P. J. The facts appear by the opinion of the Supreme Court.

<p> Appeals—Equity—Findings of fact. </p> <p>■ In an equity suit the findings of fact by the court below will not be disturbed unless manifestly erroneous.</p> <p> Railroads—Location—Prior location—Equity. </p> <p>Where a railroad company, engaged in heavy transportation business, locates a branch line on land for a part of which it has a deed, and for the remainder title by condemnation proceedings, and is in actual or constructive possession of the land for railroad purposes, it may maintain a bill in equity against a railroad company subsequently chartered,' which seeks by force to. oust the first company from the land; and this is the case, although the second company sets up a title under a deed from the same person under whom the first company claimed. In such a case the question of title is a mere incident of the jurisdiction of equity to prevent force-able interference with the operation oí a large carrying corporation with the resultant irreparable damage.</p>

<p>Appeal, No. 44, Oct. T., 1902, by plaintiff, from decree of C. P. Beaver Co., June T., 1901, on bill in equity, in case of Ohio River Junction Railroad Company v. Pennsylvania Company.</p>

Appeal, No. 83, Oct. T., 1902, by defendant, from judgment of G. P. Beaver Co., Sept. T., 1900, No. 148, on verdict for plaintiff in case of W. S. Hoon v. Beaver Yalley Traction Company. Trespass to recover damages for death of a boy six years old. Before Wilson, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 96, Oct. T., 1902, by plaintiffs, from decree of Superior Ct., April T., 1902, No. 112, affirming decree of C. P. Beaver Go., March T., 1902, No. 4, on bill in equity in case of Jacob A. Rose et al. v. Beaver County et al.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Superior Court by Beaver, J., was as follows :</p> <p>In pursuance of the provisions of the act of assembly of March 29, 1851, P. L. 260, the commissioners named therein purchased a tract of land upon which buildings for the accommodation .of the poor of Beaver county were subsequently erected, title to which was taken in the name of “ the directors of the poor and of the house of employment for the county of Beaver.”</p> <p>The 4th section of the said act provided: “ That the said directors, as soon as may be after their election and organization as aforesaid, shall make an estimate of the probable expense of purchasing the lands and buildings, or erecting the necessary building or buildings, and furnishing the same and maintaining the poor in said county for one year, whereupon the county commissioners of the said county shall, and they are hereby authorized and required to increase the county tax by one-fourth part of the sum necessary for the purpose aforesaid; and shall procure on loan, on the taxes herein directed to be levied, the remaining three fourths thereof, to be paid in installments, with interest, out of the county taxes; provided, always, that if such loan cannot be made, the whole amount of the sum necessary for the purpose aforesaid, or such part thereof as may be deemed proper, shall immediately be added to the county tax, to be paid by the county treasurer to the directors aforesaid, on orders drawn in their favor by the county commissioners, as the same may be found necessary.”</p> <p>By the 2d section of an act of assembly approved April 3 1852, P. L. 280, it was provided: “ That the time specified in the first section of the act of the 29th of March, 1851, authorizing the erection of a house for the employment and support of the poor in the county of Beaver, for the commissioners therein named to carry out the provisions of the said act, in making a purchase of real estate for the purposes therein mentioned, shall be extended to the 1st day of January, A. D., 1853, and that the said commissioners are hereby required to meet and organize on or before the first Monday of July next and proceed to make such purchase as is required in said act and make report to the county commissioners in writing signed by a majority of them, on or before the first Monday in October next. Said report shall set forth a full description of said property as to quantity, price and terms of payment.”</p> <p>By the 3d section of the same act it was provided: “ That the said countjr commissioners are hereby authorized and required to make provision for the payment of said property, as required in the 4th section of the act to which this is a supplement.” This latter act is not repealed in terms by the Act of May 15, 1901, P. L. 193.</p> <p>The poor of the county of Beaver were maintained under the provisions of the act of 1851 and its supplements, until the first Monday of January, 1902, when, by virtue of the Act of May 15, 1901, P. L. 193, supra, repealing the said act of March 29,1851, and all other special acts relating to the poor of Beaver county, except the act of 1852, supra, the provisions of the said act ceased to apply. It will be observed that, although the title to the real estate purchased under the act of 1851 vested in the directors of the poor provided for in the said act, the money necessary to purchase land and erect buildings and maintain the poor was raised by an additional general tax levied upon the whole county by the county commissioners. The property, therefore, belonged to the county at large as fully, to all intents and purposes, as if the title thereto had been made to the county-in its corporate capacity.</p> <p>In view of the prospective operation of the repealing act, the plaintiffs, citizens and taxpayers of the county of Beaver, filed a bill in equity in which the county of Beaver and the county commissioners of said county were named as defendants^ and, in which, after setting forth the essential facts hereinbefore recited, prayed:</p> <p>1. That, by an injunction, preliminary until hearing and perpetual thereafter, the said defendants be restrained from entering into and talcing possession of said poorhouse and the tract of land upon which it is located.</p> <p>2. That by an injunction, preliminary until hearing and perpetual thereafter, the said defendants be restrained from levying, assessing or collecting any tax or sum of money upon or from the taxable inhabitants and property, or either, of said county of Beaver, and from making any appropriation or expending any of the public funds of said county for the maintenance, relief, support and employment of the poor of said county of Beaver at said poorhouse or elsewhere.</p> <p>Other prayers asked for an injunction, restraining the defendants from employing a superintendent and other employees for the poorhouse, making contracts for the maintenance or employment of the poor, and the issuing of warrants, bonds, orders, obligations, or other evidences of indebtedness relating to the maintenance, care and support of the poor of Beaver county, etc.</p> <p>The plaintiffs contend that, by virtue of the repeal of the special acts relating to the care of the poor of Beaver county, their care and maintenance was relegated to the several poor districts of the county, under and in pursuance of the Act of June 13, 1836, P. L. 539. The defendants, on the other hand, contend that the provisions of the Act of June 4, 1879, P. L. 78, entitled “An act to create poor districts and to authorize purchase of lands and erection of buildings, to furnish relief and give employment to the destitute poor and paupers of this commonwealth,” apply. Under section 11 of the latter act it is made the duty of the county commissioners “ from time to time to receive, maintain, provide for and employ all paupers, poor and indigent persons within their district entitled to relief and having a settlement therein. The duties heretofore performed by overseers of poor within such districts shall be done and performed by said commissioners, with the same rights and subject to the same penalties.” The provisions of this act, under which the county of Beaver is a single poor district, undoubtedly give the commissioners authority to do and perform all the several acts in reference to the maintenance and employment of the poor, from the performance of which the plaintiffs’ bill asks to have them enjoined and restrained, and this seems to be conceded by the plaintiffs unless, as they claim, the said act is unconstitutional. The unconstitutionality of the Act of June 4, 1879, P. L. 78, is, therefore, the question which, under various phases, constitutes the real bone of contention in the ease. It is assailed by the plaintiffs on three several grounds:</p> <p>First. That the title is defective.</p> <p>Second. That it is local and special, (a) in that it requires, under the 3d and 4th sections thereof a vote of the qualified electors of each county to determine whether or not it shall have a poorhouse; (i) in that it provides in section 20 that “ when any county embraces within its limits an incorporated city, such city and the territory embraced within it shall not be included in such poor district, and- such city shall not be in anyway affected by this law, but all the other parts of such county shall in such cases compose the poor district of that county.”</p> <p>The question of the constitutionality of the act does not seem to have been argued in the court below, the court remarking in its opinion, “ The court has not had the benefit of the argument of counsel in passing upon this question and, when the bill was presented, the act of 1879 was not considered by either side.” The objection to the title seems to have been raised in the mind of the plaintiffs still later, as is shown by the fact that the argument in relation thereto is contained in an insert in the argument. The question, however, is of such importance that we waive all technicalities and consider the question as if it had been properly argued in the court below and duly presented here.</p> <p>1. As to the title. In Com. v. Lloyd, 2 Pa. Superior Ct. 6, the subject of the sufficiency of the title of an act of assembly was very fully considered and all our cases to that date carefully analyzed and, as a result, it was there stated that “ it is not necessary that the title of an act should be a complete index of its contents.”</p> <p>“ If the title fairly gives notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary.” The title of this bill is general but it is comprehensive. It does not descend to details but no one interested in the general subject of the formation of poor districts, the purchase of lands and the erection of buildings and the furnishing of relief and giving employment to the destitute poor would not have such general notice as would lead him to make inquiry into the body of the bill. There is nothing in the bill which does not relate to the general subject outlined in the title. The opinion of Mr. Justice Mitchell in Sugar Notch Borough, 192 Pa. 349, applies in many respects to all the questions raised in this case. It is there said : “ It must not be lost sight of that the attitude of courts is not one of hostility to acts whose constitutionality is attacked. On the contrary, all the presumptions are in their favor and courts are not to be astute in finding or sustaining objections. The evil at which the constitution was aimed is thus stated with great clearness by the present chief justice in Road in Phoenixville, 109 Pa. 44: “ The design and scope of this constitutional amendment, adopted in 1864, are readily understood when we consider the mischief which it was intended to remedy. Prior to that date the vicious practice had obtained of incorporating in one bill a variety of distinct and independent subjects of legislation. The real purpose of the bill was often, and sometimes intentionally, disguised by a misleading title or covered by the all comprehensive phrase, ‘ and for other purposes,’ with which the title of many omnibus bills concluded. Members of legislature, as well as the general public, were thus misled or kept in ignorance as to the true character of proposed legislation. This being the evil intended to be remedied, the constitutional requirement as to the title is not to be strained to apply to cases not really within its reasonable intent.” See also Com. v. Gilligan, 195 Pa. 204.</p> <p>2. The objection to the bill that it is not general in its application is not well founded. It relates to every county within the commonwealth. It is true that it excepts cities from its operation, but if the legislature has power to legislate for the government of cities and provide affirmative legislation for their peculiar needs, and not only so, but to legislate for the several classes of cities, how much more should it have power to except cities in general from the operation of laws which are not applicable to their peculiar needs? Nor is the objection a valid one that because the city of Philadelphia and the county of Philadelphia are coextensive and the law excepts cities from its operation that it is, therefore, local. If for any reason the boundaries of the city of Philadelphia should be reduced so as not to be identical with the boundaries of the county or, if the boundaries of the county were enlarged so as to extend beyond the present limits of the city, the law would apply to it as well as to other counties.</p> <p>3. There is no similarity between this act and that of June 23, 1885, P. L. 142, relating to the repeal of section 1 of the fence law of 1700,1 Sm. L. 13. The law itself in that case was not to become effective within the limits of any county unless so determined by a vote of the people, and, inasmuch as the vote might be in favor of the repeal in one county and against it in another, the operation of the law would become local and it was so held in Frost v. Cherry, 122 Pa. 417 ; but in this case it is not the question of the operation of the law which is left to a vote of the people, but simply the question of the purchase of real estate under its provisions, the law remaining in force within the county, whether the vote be for or against the purchase of such real estate.</p> <p>The county of Beaver having already purchased property and erected buildings necessary for the care and maintenance of their poor, no vote of the people in regard to the purchase thereof was necessary. The property belonged to the county notwithstanding the fact that the title is in “ the directors of the poor and of the house of employment for the county of Beaver,” instead of “ Beaver county poor district,” as provided in the act of 1879. The property was purchased by the levy of a general tax and each individual citizen is as much interested in the property in the one case as in the other.</p> <p>The machinery of the law for the maintenance of the poor is practically the same under the act of 1879 as under that of 1851. In the one case the directors furnished the estimates upon which the county commissioners levied the tax. In the other, the machinery for carrying out the provisions of the law is entirely within the bands of the county commissioners and is thereby simplified and the expenses of administration presumably reduced.</p> <p>We attach no importance to the fact that the act of April 3, 1852, P. L. 280, is not repealed in terms by the act of 1901. It was simply a prop to the act of 1851, in order to continue the time within which the provisions of that act could be carried into effect. When the building fell, the prop has no significance.</p> <p>The act of 1879 has been twice under consideration in the Supreme Court. First, in Jenks Twp. v. Sheffield Twp., 135 Pa. 400, and second, in Staub v. Pittsburg, 138 Pa. 356. It has been in operation for more than twenty years. These facts should count in its favor, for it was said in Sugar Notch Borough, 192 Pa. 349, “ It is rather late now to question it. While these circumstances are not conclusive in its favor, yet they are a strong argument that it is not so plainly repugnant to the constitution as it must be to require a court to overturn an act of the legislature.”</p> <p>Viewing this case from every point of view, we can see nothing objectionable in the decree of the court dismissing the plaintiffs’ bill. It is therefore affirmed, and the appeal dismissed at the costs of the appellants.</p> <p>Error assigned was the decree of the Superior Court.</p>

<p> Will—Distribution—Advancements—Interest—Executors and administrators. </p> <p>Where a widow, having a right to use all the income of an estate, uses only a part of it, and permits the executor to pay out large sums of money to certain of the legatees instead o£ keeping all the funds invested until final distribution, and it appears that the widow did not intend that such payments should be made as a gift, but did intend that they all should be repaid, or accounted for to the estate, such payments to the legatees should bear interest from their date to the time of distribution of the estate.</p>

Appeal, No. 142, Oct. T., 1902, by Charles Davidson, from decree of O. C. Beaver Co., June T., 1902, No. 16, dismissing exceptions to auditor’s report in estate of Daniel R. Davidson, deceased. Held: and not to the business sagacity or responsibility of the executor. 4. That the other items in the account (except the sums received from Shaffer and Hough) are dividends accruing on the stock since the filing of the third partial account.

Appeal, No. 4, Oct. T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., March Term, 1901, No. 130, on verdict for plaintiff in case of R. O. Hunter v. Apollo Oil & Gas Company, Limited. Assumpsit to recover rental under a gas lease.- Before Stowe, P. J. The opinion of the Supreme Court states the case. At the trial Henry A. Bowers testified as to tenders made to the lessor on a basis of $100 rental for a second well.

Appeal, No. 7, Oct. T., 1902, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1901, No. 57, on bill in equity in case of Allegheny National Bank v. D. P. Ileigliard. Bill in equity for an injunction. Before Shafer, J., who found the facts to be substantially as follows: In 1858, the plaintiff was the owner of a lot of ground fronting twenty-five feet on Fifth avenue, in the city of Pittsburg.

<p>Will—Probate—Execution—Evidence— Charitable bequests.</p> <p>The probate of a will is prima facie sufficient evidence of its due execution.</p> <p>The payment of a charitable bequest cannot be resisted in proceedings before an auditor appointed to distribute the estate, on the ground that the charitable legatees had not shown affirmatively that the will had been executed in compliance with the provisions of the Act of April 26, 1855, P. L. 328, where the record of the probate proceedings showed that three years elapsed between the date of the will and the death of the testator, that the will was executed in the presence of two witnesses, and that these witnesses at the request of testator and in his presence, and in the presence of each other did sign their names thereto as witnesses.</p> <p> Will—Name of charitable legatee—Evidence—Parol evidence. </p> <p>Where a testator leaves a legacy to a charity designated by him as the “Foreign Missionary Society,” parol evidence is admissible to show that the testator was a member of the Methodist Episcopal Church, that he had steadily contributed to the support of the foreign missionary work of that denomination, and that he intended the bequest for “ the Missionary Society of the Methodist Episcopal Church,” as the society in charge of the work to which he intended to consecrate his bounty.</p>

<p>Appeal, No. 17, Oct. T., 1902, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 174, on verdict for defendants in case of Clara Opp et al. v. Goodman Y. C. Chess et al.</p> <p>Ejectment for land in the borough of Coraopolis and Moon township. Before Frazer, P. J.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>jError assigned among others was in giving binding instructions for defendant.</p>

<p>Railroads—Eminent domain—Evidence—Qualifications of experts— Cross-examination.</p> <p>A witness to be qualified to testify as to land values should be familiar with the property in question, its area, and the uses to which it may reasonably be applied, the extent and condition of its improvements, and a knowledge of the general selling price of ground in the neighborhood at the time.</p> <p>In fixing the general selling price such price is not to be shown by particular sales, of alleged similar lots, but it is to be fixed in the mind of the witness from a knowledge of the price at which lots are generally held for sale and at which they are sometimes actually sold in the course of ordinary business in the neighborhood.</p> <p>Testimony for this purpose should not be accepted against objection upon the mere assertion of the witness that he knows the values. His averment should be tested by having him designate the properties in the vicinity with which he is acquainted, and set forth the source of his knowledge of their values; he should be able to give a satisfactory reason for his opinion and show that it rests upon a substantial foundation, and is not a mere guess.</p> <p>Whore a witness offered as an expert has testified as to his qualifications, an opportunity should be afforded to the opposing side to cross-examine him, before he is permitted to express an opinion as to values.</p> <p>Where a witness has given his opinion as to value, and then states that he would give that amount for the property, the court should not charge the jury in such a manner as to leave the impression upon their minds that the estimate of the witness was entitled to great weight by reason of his apparent willingness to back it up, by taking the properly himself at the figure named.</p>

<p> Negligence—Collision between boats—Speed—Contributory negligence. </p> <p>In an action to recover damages for injuries to a steamer caused by a collision with another steamer, it is error for the court to enter a nonsuit on the ground that plaintiff’s steamer was guilty of contributory negligence in running at too high a rate of speed in a fog, where the evidence for the plaintiff tended to show that the rate of speed was slow, and that the plaintiff’s steamer was actually backing at the moment she was struck by the defendant’s steamer.</p>

<p>Negligence — Master and servant—Contributory negligence—Perilous work.</p> <p>If a master gives a servant to understand that he does not consider the risk one which a prudent person should refuse to undertake, the servant has a right to rely upon his master’s judgment, unless his own is so clearly opposed thereto that, in fact, he does not rely upon his master’s opinion.</p> <p>A servant is not called upon to set up his own unaided judgment against that of his superiors and he may rely upon their advice and still more upon their orders, notwithstanding many misgivings of his own. The servant’s dependent and inferior position is to be taken into consideration, and if the master gives him positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not inevitably and immediately dangerous.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, it appeared that the plaintiff while engaged at work in tearing down a furnace was injured by a plate of the furnace falling upon him. The day before the accident the plate had been loosened, and was laid or inclined against the back of the furnace, which was the only support it then had. Shortly before the plate fell plaintiff was absent about half an hour, and when he returned he found the plate had shifted somewhat from its former position. The defendant who was in personal charge of the work told him to go and pick the brick out of the furnace, and hurry up about it, as he did not want the team to stand there. Plaintiff suggested that the plate should be taken down first. Defendant then said, “ Go and do what I tell you to do. The plates is all right. I am looking after them.” Two other persons called the defendant’s attention to the dangerous position of the plate. One of these persons was told by the defendant to mind his own business, but two years afterwards defendant told this person that if he had taken his advice, the accident would not have happened. Plaintiff obeyed instructions and began to pick up the brick, with his back to the plate. The work in which he was engaged had no connection with the fall of the plate. IMd, that the question of defendant’s negligence and plaintiff’s contributory negligence was for the jury</p>

<p>Appeal, No. 51, Oct. T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1895, No. 458,- on verdict for plaintiff in case of P. W. Siebert v. William Steinmeyer, Executor.</p> <p>Assumpsit on a promissory note. Before Stowe, P. J.</p> <p>At the trial counsel for defendant offered in evidence the record at No. 203, July term, 1897, court of common pleas, No. 2, of Allegheny county, which was a bill in equity, filed by William Steinmeyer, executor of the last will and testament of Christian Siebert, deceased, versus P. W. Siebert, and the Ewalt Street Bridge Company, which was in the Supreme Court, at No. 147, October term, 1898. This record is offered in support of the proposition that the claim in relation to this note now sued on is res adjudicat'a.</p> <p>Mr. Rodgers (addressing Mr. Ferguson): The note that is referred to in this proceeding is the same note as the note now offered, is it not ?</p> <p>Mr. Ferguson: The plaintiff in this case was interrogated in that case upon cross-examination as to the note sued on in this case.</p> <p>Mr. Ferguson: I object, first, that the note sued on in this case was not involved in the pleadings in that case, that those proceedings are not therefore res adjudicata; and, generally, that the offer is incompetent and irrelevant.</p> <p>Objection sustained and bill sealed for defendant. [1]</p> <p>A witness for defendant wa$ asked these questions :</p> <p>“ Q. Do you know the paper I hand you marked ‘ Exhibit No. 2?’ A. Yes, sir. Q. Wliat is it? A. This is the inventory and appraisement of the estate of Christian Siebert. Q. So far as regards the inventory it is a statement of the items, and has a heading with the words ‘ Christian Siebert, 18th ward, city of Pittsburg.’ Do you know in whose handwriting all the entries I have referred to are ? A. The handwriting of P. W. Siebert. Q. And this was filed by P. W. Siebert and yourself, I presume ? A. Yes, sir.”</p> <p>Mr. Rodgers : I offer “ Exhibit No. 2,” the relevancy of which is in the way of a set-off. There is an item claimed against P. W. Siebert, with interest, amounting to $8,360. I propose to use that as a set-off.</p> <p>Objected to as incompetent for that purpose.</p> <p>Objection sustained and bill sealed for defendant. [2]</p> <p>The court charged as follows :</p> <p>[Under the evidence in this case, as we understand the law to be, the plaintiff is entitled to a verdict for the amount of his claim with interest upon it, which will be computed. We therefore instruct you, as a matter of law, that under all the facts in the case, the plaintiff is entitled to your verdict for the amount of this note with proper interest.] [3]</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3) the charge of the court.</p>

<p>Appeal, No. 71, Oct. T., 1902, by defendant, from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1900, No. 228, on verdict for plaintiff in case of W. T. McFarland v. Consolidated Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before McClung, J.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 72, Oct. T., 1902, by defendant, from judgment of O. P. No. 3, Allegheny Co., May T., 1900, No. 55, on verdict for plaintiff in case of Nellie G. Howley v. Pittsburg. Appeal from award of viewers.

Appeal, No. 58, Oct. T., 1902, by W. J. Kountz, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1896, No. 614, dismissing exceptions to auditor's report in case of Pittsburg Wagon Works’ Estate. Exceptions to report of William H. McClung, Esq., auditor. The opinion of the Supreme Court states the case. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Appeal, No. 183, Oct. T., 1902, by Frederick Gwinner, trustee, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1896, No. 614, dismissing exceptions to auditor’s report in case of Pittsburg Wagon Works’ Estate.</p> <p>Exceptions to report of Wm. H. McClung, Esq., auditor.</p> <p>From the record it appeared that this was a petition under the Price act for an order to sell real estate held by petitioner, trustee, for the contributors to a fund, used in the purchase of a mortgage upon the property described in the petition, and to which the trustee took title under a sale on lev. fa. to collect the mortgage debt.</p> <p>Exceptions to the report of the auditor distributing the fund, were dismissed on March 18,1900. On March 30,1900, W. J. Kountz, executor, took an appeal to the Supreme Court. On September 29, 1900, Frederick Gwinner and others took this appeal.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 65, Oct. T'., 1902, by American Surety Company of New York, from judgment of C. P. No. 3, Allegheny Co., May T., 1900, No. 106, on verdict for plaintiff in case of United States for use of the Nicola Brothers Company v. W. W. Hegeman and Fred Russell, trading as W. W. Hegeman & Company, and the American Surety Company of New York.</p> <p>Assumpsit on a contractor’s bond given under tbe Act of Congress of August 13, 1894, 2 U. S. Comp. Statutes, 2523.</p> <p>The tacts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[If, however, the notes were simply taken as collateral security, were not taken in payment but were taken as a means of raising money upon the part of both Hegeman & Company and Nicola Brothers, with the understanding that the book account was still to remain open, then the taking of the notes was not a payment of the book account; and although the taking of the Hegeman & Reilly notes might be a payment of the Hegeman & Company notes, that would not be a payment of the book account, and the surety company would still be liable. So that you see it is an important question of fact for you to determine, as to what circumstances attended the taking of these notes,—whether the notes were taken in payment or were simply taken as collateral security. That will be the fact for you td determine. If you find that these notes were taken as payment, then to the extent of those notes (I think they represent $2,300 of this claim), to the extent of that $2,300, this claim has been paid, so far as the American Surety Company is concerned.</p> <p>If you find that the notes were taken simply as collateral security, or as a means of accommodation for the raising of money, then the payment of those notes by the receipt of the notes of Hegeman & Reilly would not be a paj^ment of the book account, and the surety company would still be liable.</p> <p>You will consider then the question of payment, because it is practically the only question of fact in the case,—as to whether these notes were taken in payment or whether they were not; and as you find that, that will determine the question of whether the plaintiff can recover for the $2,300 or not.] [1]</p> <p>The court refused the following points offered by defendant [7]:</p> <p>That the plaintiff cannot recover in this action on the ground that it appears from the evidence that the plaintiff extended the time of payment of any claim it ever had against Hegeman & Company and thereby discharged the surety. Answer: ■ Refused.</p> <p>That if the testimony of Mr. Nicola is true that the original note given for the material furnished was taken up by a payment of part cash and a new note was discounted and the proceeds applied to the payment of the balance of the old note, that the old note was thereby paid and the surety is discharged or the time was extended without notice to the surety and the surety discharged. Answer : Refused.</p> <p>That the plaintiff cannot recover for the following item: July 24, 1899, demurrage, $152. Answer: Refused.</p> <p>That under all the evidence the jury should find for defendant, the American Surety Company. Answer : Refused.</p> <p>Verdict and judgment for plaintiff for $3,102.90. American Surety Company of New York appealed.</p> <p>Errors assigned among others were (1,7) above instructions, quoting them.</p>

<p>Appeal, No. 77, Oct. T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 612, on verdict for plaintiff in case of James H. Giles v. Jones & Laughlins, Limited.</p> <p>Trespass to recover damages for personal injuries. Before Stowe, P. J.</p> <p>At the trial it appeared that the plaintiff, a carpenter, on October 1, 1900, was injured by a burst of burning gas from a blast furnace, while at work near the top of a stack of the furnace. The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Defendant presented these points:</p> <p>1. That under all the evidence in the case the verdict must be for the defendant. Answer: Refused. [1]</p> <p>2. That while it appears that the place in which the plaintiff was at work at the time of the accident was dangerous, the uncontradicted evidence is that it was an obvious apparent danger and the plaintiff, being of full age and of ordinary intelligence, must be held to have known of such danger, and in going to work there to have assumed the risk of injury, and therefore cannot recover in this action. The verdict must, therefore, be for the defendant. Answer : Refused. The place was clearly a dangerous place to work. If plaintiff had actual knowledge of the nature and character of the danger, either by being informed of it, or as a man of ordinary intelligence knew or should have known and anticipated the fact that an explosion such as occurred would probably happen and that he might be hurt by it, he is under the law not entitled to recover in this suit. But this is matter of fact for the jury to determine under the evidence bearing upon that question and not a matter of law for the court. [2]</p> <p>Verdict and judgment for plaintiff for $4,498. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p> Landlord and tenant—Agreement to reduce rent—Re-letting—Bankruptcy. </p> <p>In bankruptcy proceedings against a tenant, where the landlord claims lull rental under his lease, it may be shown that the landlord had agreed to reduce the rent, had accepted several installments at the reduced rate, and had been moved to make the reduction by considerations advantageous to himself. In such proceedings the landlord’s claim must be reduced by the amount which he received from reletting the premises.</p> <p> Landlord and, tenant—Distress—For what distress is a remedy. </p> <p>Covenants that relate to the use of the premises, but not to the payment to the lessor for the use, do not give the right to distrain. Standing alone a covenant to pay water rent is a covenant to pay to the party entitled, and it cannot be enforced by distress.</p>

<p>Corporation—Domicil of corporation—Service of process—Act of July 9, 1901, P. L. 614.</p> <p>The common-law rule as to suits against corporations is still the general rule in Pennsylvania, and under it no suit is authorized against a corporation, except in a county where the corporate property is in whole or in part situated, or where it transacts a substantial part of its business. There is nothing in the Act of July 9, 1901, P. L. 614, to change the rule. That act merely regulates the service of process, and makes no changes in the jurisdiction of courts and the liability of corporations to be sued.</p> <p> Corporations—Service of process—Setting aside service by rule—Plea in abatement—Practice, C. P. </p> <p>An irregular service of process on a corporation may be set aside on a rule. It is not necessary to put the defendant to a plea in abatement. The enlarged and liberal operation of relief upon rules is a feature of Pennsylvania practice.</p> <p>While it is still the law that the sheriff’s return is conclusive on the parties and cannot be contradicted, yet modern practice is liberal in allowing inquiry into the actual facts where the return itself is not full or explicit. A proper return should set out a service at the office or place of business of the corporation in the county, or if not so served, then the facts should be affirmatively returned which will bring the service within some of the methods prescribed by statute.</p>

<p>Corporations—Powers—Equity—Act of June 19, 1871, P. L. 1360.</p> <p>The Act of June 19, 1871, P. L. 1360, which gives courts the right of inquiry at the instance of private parties into the existence and extent of franchises conferred by corporate charters when the latter are set up in support of acts injurious to the individual parties complaining, limits the inquiry to the nature and extent of the franchises prima facie conferred by the charter, and does not extend it to the validity of the charter itself.</p> <p>■Where on a bill in equity filed under the act of June 19,1871, it appears that the defendant was a railroad company regularly organized for public use in the conveyance of persons and property, the bill cannot be maintained on averments that the railroad actually built was merely a private railroad, located upon the property of a manufacturing company and used exclusively for the purposes of the manufacturing company, and not furnishing passenger ears at all, or stations, or freight cars, which the public can use as they have a right to use a public railroad. /</p>

Appeal, No. 101, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1900, No. 594, on verdict for defendant in case of Alexander Carson v. Sarah Jane Carson. Ejectment for a lot of ground in Allegheny City.

Appeal, No. 106, Oct. T., 1902, by plaintiff, from decree of C. P. No. 8, Allegheny Co., Feb. T., 1901, No. 9, dismissing bill in equity in case of Fred. W. Schomaker, Trustee of Rosa Schwebel, Bankrupt, v. Anna Schwebel- and Mary Schwebel. Bill in equity for an account and for discovery. The facts appear by the opinion of the Supreme Court. Error assigned was decree dismissing the bill.

<p>Appeal, No. 107, Oct. T., 1902, by-plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1901, No. 43, on verdict for defendant in case of James Powelson v. United Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 39, Oct. T., 1902, by-defendant, from judgment of O. P. No. 1, Allegheny Co., March T., 1901, No. 137, on verdict for plaintiff in case of Miriam Hays et al. v. Wilkinsburg & ’East Pittsburg Street Railway Company.</p> <p>Assumpsit for breach of contract. Before Bbown, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Plaintiffs presented this point:</p> <p>[2. That the measure of damages is the cost of grading, paving, curbing and sewering the street through the plaintiffs’ land in the manner and to the extent set forth in the contract in evidence, with interest from July 15, 1900. Answer: Affirmed.] [3]</p> <p>Defendant presented these points :</p> <p>1. Under the pleadings and the evidence, the plaintiffs are entitled only to recover nominal damages. Answer: Refused. [1]</p> <p>[2. Under the pleadings and the evidence, in no event is the plaintiff entitled to recover the cost of grading, paving, curbing and sewering, for the reason that such cost does not constitute or furnish the measure of damages, if any, to which the plaintiffs are entitled. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $3,399.50. Defendant appealed.</p> <p>Errors assigned among others were (1-2) above instructions, quoting them.</p>

Appeal, No. 26, Oct. T., 1902, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1900, No. 482, refusing to take off nonsuit in case of S. M. Willock v. Lawrence Dilworth et al. Trespass for deceit. Before Stowe, P. J. The opinion of the Supreme Court states the case. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was in refusing to take off nonsuit.

Appeal, No. 33, Oct. T., 1902, by-plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1901, No. 255, on verdict for defendant in ease of Maggie W. Kinter v. Pennsylvania Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Before Stowe, P. J. / The facts are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

Appeal, No. 97, Oct. T., 1902, by plaintiff, from order of C. P. No. 1, Allegheny Co., Dec. T., 1897, No. 198, refusing to take off nonsuit in case of Henry W. Juergen v. Allegheny County. Trespass for an alleged wrongful eviction. The facts appear by the opinion of the Supreme Court. Error assigned was order refusing to take off nonsuit.

Appeal, No. 113, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 2, Allegheny County, July T., 1901, No. 102, sustaining demurrer to statement in case of Clara Spees v. R. 11. Boggs and Henry Buhl, trading as Boggs & Buhl. Trespass to recover damages for personal injuries. Before Shaeer, J. From the record it appeared that on June 1, 1897, plaintiff was injured in an elevator in defendant’s store.

Appeal, No. 118, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 1, Allegheny County, Dec. T., 1901, No. 413, on verdict for plaintiffs in case of Vincent Herron, by his Father and Next Friend, Hugh Herron, and Hugh Herron, v. City of Pittsburg. Trespass to recover damages for personal injuries to a boy seven years old.

Appeal, No. 120, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1901, No. 754, on verdict for defendant in case of Commonwealth ex rel. Robert'Pitcairn v. Albert Pitcairn on the traverse of Mary Pitcairn. Traverse of a finding of lunacy.

<p> Negligence—Master and servant—Evidence of employment—Assignment of contract. </p> <p>Where a person having a government contract, the assignment oí which is prohibited, nevertheless assigns iL to a corporation of which he is a large stockholder, and thereafter acting for the corporation hires a workman without any representations to the workman whatever as to who is employing him, and the latter starts on the work covered by the contract, and is injured by the negligent act of the superintendent of the corporation, the original contractor is not liable to the workman for the injuries sustained, and this is the case although the workman may have known from the newspapers of the original award of the contract, and may not have actually known that he was working for the corporation.</p>

<p>Appeal, No. 34, Oot. T., 1902, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., March T., 1900, No. 82, on verdict for defendant in case of Millard F. Baker, Charles Baker, Edward Baker, Henry Baker, Maggie Baker, Hattie E. Baker, Ada Baker, Georgia A. Baker and Frank Baker v. Austin L. Bailey and Frank A. Bailey, Executors of Madison Bailey, Deceased, Virginia H. Bailey, Annie H. Moore, Austin L. Bailey, Frank A. Bailey and Madison Bailey, Jr.</p> <p>Ejectment for land in Neville township. Before Stowe, P. J.</p> <p>At the trial a verdict was rendered for plaintiff subject to questions of law reserved. Subsequently Stowe, P. J., entered judgment for defendants non obstante veredicto in an opinion in which he stated the facts and issues as follows:</p> <p>This is an action of ejectment in which it is admitted that the title to the land in dispute was in Peter Baker in 1875 (both parties claiming under him), subject to a mortgage given by one T. W. Briggs, a former owner, to Mrs. E. Y. Patterson for $9,000, and dated January 7, 1873.</p> <p>A scire facias was issued on this property at No. 548, September term, 1887, and on a lev. fa. No. 207, June term, 1880, of this court, the property was sold by the sheriff to Mrs. Patterson for $50.00. In June, 1880, Mrs. Patterson sold the property to Thomas Fawcett and Madison Bailey, but previous to this and before the sheriff’s sale on the scire facias and purchase by Mrs. Patterson, Fawcett and Bailey, at the solicitation of Peter Baker, the then owner of the property, agreed verbally with him that they would advance the money to pay Mrs. Patterson the amount of her mortgage and take a deed from her for the land and hold the title for his benefit, and as security for the money thus advanced, until it could be sold and Fawcett and Bailey were paid for all moneys advanced by them, the balance should belong to Baker. Under this arrangement, to which Mrs. Patterson agreed, the property was sold to her as stated, and by her conveyed to Fawcett and Bailey, who paid some money and gave their mortgage on the property to her for the balance, which they subsequently paid. After this purchase by Mrs. Patterson and when the transfer of the property to Fawcett and Bailey was in process of execution, Fawcett, Bailey being present and apparently assenting thereto, stated that they were doing this entirely for the benefit of Baker and in pursuance of the agreement previously entered into by the several parties, signed and delivered (as the jury have found), a written memorandum, in substance and effect as follows, viz: “It recites the sale of this property by Mrs. Patterson to Fawcett and Bailey, that they were taking it in trust for Peter Baker, that same was for the benefit of Baker, and was held by them for him, and that upon a sale of it, all moneys over and above what it cost them should go to him.” Baker was allowed to remain in possession of the property after this until July 30, 1888, when he was turned out by the sheriff at the suit of Fawcett and Bailey.</p> <p>In the meantime Mrs. Patterson, at the instance of Fawcett, proceeded under their mortgage to her, and had judgment and execution thereon against them for $5,876.62, and interest thereon from November 22,1882, at No. 164, March term, 1883, and at the sheriff’s sale on said execution W. M. Watson, Esq., attorney for Fawcett and Bailey, bought in the property for $6,200, had deed made to him, and on June 7, 1883, conveyed one undivided half thereof to Fawcett for the consideration of $1.00, and the other half to Bailey for a like consideration. Subsequently they had a habere facias issued at No. 25, October term, 1886, and Baker was turned out of possession by the sheriff on the date above stated. While Baker was in possession he paid the taxes on the property and also some $2,200, of the principal debt due Mrs. Patterson on the mortgage of Fawcett and Bailey. The evidence shows that in 1883, Baker procured a person willing to purchase the property, but Fawcett and Bailey refused to sell, alleging that $14,000, the amount offered, was not enough by some $6,000. The purpose of Bailey and Fawcett in getting Mrs. Patterson to proceed and bring suit upon the mortgage was to get rid of any trust that might exist under the arrangement between them and Baker. The evidence further shows that in 1899, the property in suit was bought under an agreement with the American Land Company from Madison Bailey’s heirs and Austin L. Bailey, grantee of Thomas Fawcett, and deed was made therefor on January 16, 1900, for the consideration of some $80,000 or $85,000. At the time the agreement for the purchase was entered into this suit had not been brought, and nothing appeared upon the abstract of title furnished the counsel for the company exceptthe old ejectment at No. 619, January term, 1885, Bailey and Fawcett v. Peter Baker, the ancestor of plaintiffs, and proceedings thereunder by which Baker was dispossessed and the property delivered to Bailey and Fawcett. After the agreement for the purchase of the property, but before the execution of the deed, counsel for the company was notified by Mr. Stone, counsel for the present plaintiffs (the heirs of Peter Baker) that they claimed title to the property, he made no mention of any writing exhibiting the trust, and referred the counsel for company to Mr. Baker’s answer in the prior ejectment for information as to what Baker’s claim was. An examination of this did not indicate that the agreement was in writing, and counsel therefore concluded it was merely in parol and passed the title.</p> <p>The defense to this state of facts consists (after a denial that the said arrangement was in writing, which the jury found against the defendants in this case) of several propositions of law going to the foundation of plaintiff’s right to recover in this suit, viz :</p> <p>1. That in an ejectment between the same parties or their privies for the same land there»was a verdict and judgment for plaintiffs (defendants in this action) which is a bar to this suit.</p> <p>2. That this action, being an equitable ejectment, plaintiffs in this suit under the uncontroverted evidence are barred by laches.</p> <p>3. That the uncontroverted evidence, showing Fawcett and Bailey, under whom defendants claim title, acquired title through their attorney, Watson, at sheriff’s sale upon a paramount incumbrance, and subsequently brought an action of ejectment against Baker, recovering title to the premises and issued a writ of hab. fa. and recovered possession thereof in July, 1886, said action was a repudiation of any trust in favor of Baker and that any trust relation that might thereafter be claimed to exist, could only be a “ constructive trust ” and the same never having been acknowledged in writing, was barred after the expiration of five years.</p> <p>4. That there being no evidence that the plaintiffs have ever tendered defendants the amount of money advanced by them, or have in court the same ready to be' paid in case there is a verdict for plaintiffs, they are not entitled to recover, and the verdict should be for defendants.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 110, Oct.’ T., 1902, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., July T., 1900, No. 311, on verdict for defendant in case of Mary O’H. Spring, et al. v. City of Pittsburg. Ejectment for a public square in the city of Pittsburg. Before Shafer, J. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiffs appealed.

Appeal, No. 74, Oct. T., 1902, by Harry H. Reed, executor, from decree of O. C. Allegheny Co., Sept. T., 1901, No. 211, dismissing exceptions to adjudication in estate of James Payne, deceased. Exceptions to adjudication. Before Cohen, J. The facts appear by the opinion of the Supreme Court. Error assigned was in dismissing exceptions to adjudication.

Appeal, No. 59, Oct. T., 1902, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1900, No. 330, on verdict for plaintiff in case of Jane Clayton v. Consolidated Traction Company. Trespass to recover damages for personal injuries. Before McClung, J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $3,150. Defendant appealed. Error assigned was in submitting the case to the jury.

Appeal, No. 80, Oct. T., 1902, by defendant, from judgments of C. P. No. 3, Allegheny Co., Aug. T., 1899, No. 363, on verdict for plaintiff in case of Patrick Enright, in his own right, and Joseph Enright, by his Father and Next Friend, Patrick Enright, v. Pittsburg Junction Railroad Company. Trespass to recover damages for personal injuries. Before Evans, J. For prior report of the case, see 198 Pa. 166.

<p>Appeal, No. 89, Oct. T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1901, No. 496, on verdict for plaintiff in case of Malinda Linn v. Duquesne Borough.</p> <p>Trespass to recover damages for personal injuries. Before Stowe, P. J.</p> <p>At the trial it appeared that the plaintiff was injured on October 14, 1900, by falling into an unguarded opening in a street. She fractured both wrists, and the accident resulted in permanent injury to her hands.</p> <p>Verdict and judgment to plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned was the instruction on the measure of damages referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 66, Oet. T., 1902, by defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1899, No. 470, on verdict for plaintiff in case of Puritan Coke Company v. John M. Clark and Charles S. Guthrie, trading as Naylor & Company.</p> <p>Assumpsit for breach of contract of sale. Before Evans, J.</p> <p>The facts appear by the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>Under ordinary circumstances, where there is a breach of contract for the sale and delivery of personal propert}r, the measure of damages is the difference between the market price at the time of the breach of the contract and the price at which the parties had agreed that the personal property or chattels should be delivered. But that supposes that there is a market for the sale of the personal property in dispute. [The evidence in this case shows conclusively that coke in quantities is sold on contracts that are made before delivery is commenced, and covering a period of some months, usually six months’ time in the delivery; that there is practically no open market at which furnace coke can be sold in any quantities. There were some 21,000 tons of this coke undisposed of, not taken by the defendants; and there is no evidence in this case that would justify.you in finding that there was such a market for this coke that the plaintiff could have disposed of it during the month of June. Therefore, I charge you that in this case the difference between the market price and the contract price is not the measure of damages, because it would not help the plaintiff in this case if the market price was $1.50 per ton if it could not sell its coke. But there is another way of arriving at the question as to how much the plaintiff was injured in this case, of course, assuming that it was injured at all, and that is the difference between what it cost the plaintiff to manufacture this coke and the price at which the defendants had agreed to take it; and that, 1 charge you, is the measure of damages in this case.</p> <p>You have the testimony on the subject of what it cost to manufacture this coke. There is no dispute as to what the defendants were to pay for the coke under the contract, that is, $1.50 per ton. If you find that the plaintiff is entitled to recover, then its damages will be the difference between what it cost to manufacture this coke and the price that these defendants had agreed to pay for it.] [1]</p> <p>There is another element, however, which you will take into consideration. There was some of this coke manufactured at the time of the breach ; and the plaintiff sold that coke. If it sold that coke for more per ton than it cost to manufacture it, then the difference between what it received per ton for that coke and the cost of its manufacture should go as a ciedit upon the amount which the plaintiff would otherwise be entitled to recover, under the instructions which I have given you as to the measure of damages. I believe it is accepted in this case that it sold that 7,300 tons for something over $7,400, which would be about $1.01 a ton for the 7,300 tons. Now, if they got fairly all that could be gotten for the coke, and that was as low as or less than the cost price, then that item does not enter into the question of damages at all. I believe, if you find that that was a fair price for the coke, that it was as low as the lowest evidence here of the cost of its manufacture; but it is for you to determine, under the evidence, whether the}' should have gotten more for that coke than they did, and whether that was above or below the cost of manufacture. If it was above the cost of manufacture, or if they should have fairly gotten more than the cost of manufacture, then, to that extent, the defendants would be entitled to a credit on the amount of damages as determined by the measure of damages for the entire case which I have given you. In order that I may make myself clear, you start out in the consideration of this case with the one question presented to you. This coke was to be suitable for making Bessemer pig iron. If it was suitable for making Bessemer pig iron, then it was the duty of the defendants to accept it; and their refusal to accept it would be a breach of the contract for which they would be liable in damages. If it was unsuitable for the manufacture of Bessemer pig iron by reason of the phosphorus in it being too high (because that is the only question here, the question of its strength and other questions which enter into the suitableness of coke for making pig iron not being in dispute)—if it was unsuitable for making Bessemer pig iron by reason of the phosphorus in it being too high, then the defendants had a right to rescind the contract and refuse to receive any more coke. That is the first question which you will determine. If you determine that question in favor of the defendants, that is, find that the coke was not suitable for making Bessemer pig iron, then your verdict should be for the defendants, and you quit right there.</p> <p>If you find that it was suitable for making Bessemer pig iron, then the next question you will determine is the damages, and you will determine them upon the lines that I have laid down to you in my charge. You will determine the damages in accordance with the measure, that is, the way to compute the damages, which I have given you in the former part of my charge. •</p> <p>Defendants’ counsel has asked me to charge you as follows:</p> <p>2. The measure of damages in this case is the difference between the market price and the contract price at the time and place of delivery. Answer: That point is refused. [4]</p> <p>6. That if the plaintiff intended to hold the defendants liable for damages in this case, it was its duty to so notify them, and to sell the undelivered coke for their account at the market price; and if there was no market for immediate delivery, but was a market for contracts in May and June, it was its duty to dispose of this coke on contract at the market price. In that case, its measure of damages is only the loss in the delay in payments in the way of interest and the costs of storage. Answer: That point is refused. [5]</p> <p>7. That there is no evidence in this case of loss on 14,000 tons of coke undelivered, and there can be no recovery in damages as to such 14,000 tons. Answer: That point is refused. [6]</p> <p>8. That under the law and evidence in this case their verdict must be for the defendants. Answer: That point is refused. [7]</p> <p>The jury, after being out for about an hour, returned for additional instructions, when the court charged them as follows :</p> <p>Gentlemen: I tried to make myself clear on the measure of damages which the plaintiff is entitled to recover, if it is entitled to recover anything; that is, the difference between what it had cost to produce this coke and the price of the coke as specified in the contract, provided that if the plaintiff either did sell or should have sold the 7,300 tons of coke for more than it cost to produce it, then the defendants are entitled to a credit for that excess. Let me illustrate, and take figures which cannot apply to this case at all: Supposing it should have sold this 7,300 tons of coke for $2.00 a ton, and it only cost-it $1.00 a ton to produce it, then on the amount which you would find the plaintiff was entitled to recover, basing your calculation on the difference between the cost of producing the 21,000 tons of coke and the $1.50 per ton, the contract price, the defendants would be entitled to a deduction of $1.00 atom the difference between the $2.00 that the plaintiff sold the 7,300 tons for and the $1.00 which it cost to produce it. Now, those are purely imaginary figures, because there are no such figures as that in the ease; consequently I used them, so far from the actual figures, that they would not mislead you. [The first proposition is that the measure of damages in this case is the difference between what it would have cost this plaintiff to have produced this coke, if it had gone on and manufactured it, and the $1.50 per ton which the defendants, under their contract, agreed to pay for it; that is, the plaintiff is entitled to recover the profit which it would have made if it had gone ahead and produced it and turned it over to the defendants.] [3] From that, if you find that it sold or should have sold the 7,300 tons for more than it cost to produce it, the defendants are entitled to a deduction of just that difference between what it sold for and what it cost to produce it.</p> <p>Verdict and judgment for plaintiff for $10,290. Defendants appealed.</p> <p>Errors assigned were (1, 3-7) above, instructions, quoting them.</p>

Appeal, No. 90, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1901, No. 323, on verdict for defendant in case of James Elliott v. Allegheny County Light Company. Trespass to recover damages for personal injuries. The facts appear by the opinion of the Supreme Court. . The court charged as follows : [The proximate cause of the plaintiff’s injuries was his fall from the ladder, and not his grasping the wire in' the line of his fall.

Appeal, No. 114, Oct. T., 1902, by-plaintiff, from order of G. P. No. 8, Allegheny Co., Aug. T., 1899, No. 283, refusing to take off nonsuit in ease of Caroline Apfelbach, Administratrix of Charles Apfelbach, Deceased, v. Consolidated Gas Company. Trespass to recover damages for personal injuries. Before Evans, J. The facts are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit, which it subsequently refused to take off.

<p> Road law—Vacation of streets—Petition—Signing petition—Attorney in fact—Reservation in deed. </p> <p>An owner of nine and one half acres of land in the city of Pittsburg conveyed a small lot standing in the midst of the land on which is located the “ Block House” an outpost of old Fort Pitt, to the Daughters of the American Revolution, reserving the right, however, to the grantor to represent the property in all proceedings looking to the vacation of certain streets. Subsequently an attorney in fact, for the owner of the land, signed a petition to councils for the vacation of the streets mentioned in the reservation in the deed. The letter of attorney authorized the attorney “ to lay out lots in such form and fronting on such streets, lanes and alleys or areas as in his judgment may be advisable.” There was no express authority to sign a petition for the vacation of a street. Subsequent to the action of councils on the petition, the owner expressly ratified her agent’s act. Held (1) that the Daughters of the Revolution had no standing to question the authority of the owner’s representative; (2) that even if the authority of the agent was not clear under the letter of attorney, the owner’s ratification of his act was fully equivalent to precedent authority; (3) that the act of the owner was not a ratification of the ordinance, but merely of her agent’s act in signing the petition.</p> <p>While the appellate court will not go outside the record in a road case to ascertain if a finding of fact by the court below be correct, yet it may take the fact as found, and say that the conclusion of the lower court was not warranted by the law.</p> <p>Appeals—Road law—Vacation of streets—Act of May 16, 1891.</p> <p>Under the Act of May 16, 1891, P. L. 75, no appeal lies from an order vacating a street. The words “ otherwise improving any street ” do not embrace the vacating of a street.</p>

<p> Principal and agent—Power of attorney—Laying out streets—Vacation of streets. </p> <p>Where the owner of unimproved land in the midst of a large city authorizes her attorney in fact “to lay out lots in such form and fronting on such streets, lanes and alleys or areas as in his judgment may be advisable,” the attorney in fact may join in a petition to councils to vacate streets, and if ‘his principal afterwards formally ratifies his act, there is no possible ground for attacking the validity of the ordinance passed in response to the petition.</p>

<p> Equity—Specific performance—Insufficient remedy at law. </p> <p>The specific performance of a contract will be decreed on account of the damages at law being an insufficient remedy, where there is something peculiar in the subject of the contract that cannot be represented by damages, and where the measure of damages at law is uncertain or unascertainable because of the contingent nature of the property.</p> <p>Equity will enforce the specific performance of a contract made by the administrators of a deceased partner to sell the interest of the decedent to the surviving partners at a price to-be fixed by referees, where it appears that the business conducted by the partnership was a glass manufacturing business, and that the interest of the deceased partner was of a peculiar and specific value to the purchasers, as the possession of it enabled them to continue without interruption a business to which they had contributed most of the capital. In such a case the court of common pleas, and not the orphans’ court, has jurisdiction.</p> <p> Arbitration—Finding of arbitrators—Sale of interest in partnership. </p> <p>Where an agreement for the sale of an interest in a partnership provides that the value of the interest shall be determined by two referees, and if the two referees cannot agree they shall choose a third and that the finding of the referees or two of them shall be conclusive, the findings of the referees is not vitiated by the fact that the two referees originally chosen agreed upon the value of all the property, except certain furnaces and ovens, as to the value of which they had no knowledge, and chose a third referee who, as an expert, valued the furnaces and ovens, and accepted the valuation of the original referees as to the other property. In such a case the objection that all of the referees did not pass on the value of each item of property is without merit.</p>

<p>Appeal, No. 124, Oct. T., 1902, by plaintiff, from decree of C. P. No. 1, Allegheny County, March T., 1902, No. 291, on bill in equity in case of Herbert L. Ihmsen et ah, Administrators of Thomas O. Ihmsen, Deceased, v. John Ralston et al.</p>

<p> Negligence—-Railroads—Contributory negligence. </p> <p>In an action by a brakeman against his employer to recover damages for personal injuries, it appeared that the defendant, a manufacturing company, maintained and operated a railroad through its yards. At the time of the accident plaintiff was riding on an engine, and the engine ran off the track at a curve, resulting in an injury to the plaintiff'. Plaintiff claimed that the accident was due to defective tracks. The particular defect complained of was a lack of solidity, which had existed for sometime, at and near the point where the accident occurred. The tracks were laid upon a cinder bed, which caught fire and burned, or smoldered away, under the surface; this seemed to change the character or condition of the cinders, and weakened the cohering power of the ballast, or support under the rails, which in turn brought about an uneven lowering of the track. The track was also curved just there, and when rounding the bend, the swaying of the engine caused the rail on one side to sink, so that the result was to increase and emphasize the swinging of the engine and cars. This was not so extreme, however, as to cause the place to be considered impassable, nor did it appear from the testimony that an engine had ever before left the track at that point. Held, that the court could not say as a matter of law that the plaintiff was guilty of contributory negligence.</p>

<p>Appeal, No. 129, Oct. T., 1902, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1899, No. 688, on verdict for plaintiff in case of Thomas McNally v. Mercantile Trust Company.</p> <p>Assumpsit upon a bond. Before Rodgebs, J.</p> <p>From the record it appeared that Thomas McNally had a contract with the city of Pittsburg for building a boulevard. A portion of this work was sublet to Gustave Kaufman. Kaufman gave McNally the bond in the suit. Kaufman abandoned the work and it was completed by McNally.</p> <p>Defendant presented the following points :</p> <p>1. Under all the evidence in this case the verdict must be for the defendant. Answer: Refused. [1]</p> <p>2. The burden of proof is upon the plaintiff to satisfy the jury that the work on the contract entered into between the defendant, Thomas McNally, and Gustave Kaufman, for so much of the work as was uncompleted by the said Gustave Kaufman at the time he abandoned said work on August 5, 1898, the same being for the completion of part of the Beechwood Boulevard in the city of Pittsburg, has been done as cheap by the said Thomas McNally as it could have been done by the defendant herein, the Mercantile Trust Company, by reletting the said balance of the work to be completed under said contract, to some other contractor, and the plaintiff failing to satisfy the jury that the work has been so completed, cannot recover in this action, and the verdict of the jury must therefore be for the defendant. Answer : Refused. [2]</p> <p>8. The plaintiff’s estimate, without any evidence whatsoever of consultation with other contractors, or attempting to take bids from other contractors for the completion of the said work, is not sufficient to warrant the jury in finding that the work was completed as cheaply as it could have been done by some other contractor. Answer: Refused. [3]</p> <p>4. The Mercantile Trust Company, being the bondsmen, were not only entitled to notice of the fact that Gustave Kaufman had abandoned the work to be done and performed by him under the contract referred to, between him and Thomas McNally, the plaintiff herein, but an opportunity to complete the contract referred to under such contractors as they might select should have been given, and the plaintiff having failed to allow the defendant herein to complete the said contract, is not entitled to recover in this case and the verdict must, therefore, be for the defendant. Answer: Refused. [4]</p> <p>5. The plaintiff in this case, not having accorded the defendant the opportunity to complete said contract, is not entitled to recover for any expenses incurred in the absence of proof that such expenses'were directly authorized by the Mercantile Trust Company. Answer : Refused. [5]</p> <p>6. Under the terms and conditions of the bond sued on in this case, the defendant herein was subrogated to the rights of its principal, Gustave Kaufman, and one of those rights being the right to complete the said contract by the said Kaufman, having been denied this defendant by the plaintiff herein, he is not entitled to recover in this action, and the verdict must, therefore, be for the defendant. Answer : Refused. [6]</p> <p>■7. It appearing from the evidence that about forty per cent of the work had been done by the said Gustave Kaufman on his said contract with the said plaintiff herein, Thomas McNally, at the time the said Kaufman abandoned the said contract, and he had drawn from the city of Pittsburg, upon warrants indorsed and approved by the plaintiff herein, about sixty per cent of the contract price for the completion of the entire work, the same being a contravention of the provisions of the contract which provided that the said Kaufman was only to receive the actual value of the work done and material furnished; that such an act by the plaintiff, in paying to the said Kaufman more than was due under the terms and conditions of the contract, was such a material variation of the said contract as would discharge the defendant herein, the surety under the bond sued on in this case, and, therefore, the plaintiff cannot recover and the verdict must be in favor of the defendant. Answer: Refused, for the reason that the point assumes a certain exact proportionate percentage, of which there is no evidence. [7]</p> <p>8. If the jury believe that at the time the final estimate to Gustave Kaufman was made, the figures were made by the plaintiff personally and these entitled Gustave Kaufman to a much less sum than the city engineer’s estimate at that date, it was the duty which the plaintiff owed to the Mercantile Trust Company, as surety, to refuse to assign said estimate of the work, and failing to do so he released the said surety from all liability on the bond in suit. Answer: Affirmed. In the absence of fraud on the part of McNally these estimates would be binding. [8]</p> <p>Verdict and judgment for plaintiff for $11,775. Defendant appealed.</p> <p>Errors assigned were (1-8) above instructions, quoting them.</p>

<p> Marriage—Evidence—Burden of proof—Suaband and wife. </p> <p>Where a woman claims to be the widow of the decedent, the burden of proof is upon her to establish the marriage.</p> <p>Where her claim is inherently improbable, and the testimony against it is affirmative and convincing, a finding by the orphans’ court that no marriage relation existed will be sustained, although the claimant and her mother testified to the performance of the marriage ceremony.</p>

Appeal, No. 141, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1899, refusing to take off nonsuit in case of Walter B. Lawson v. American Steel & Wire Company. Trespass to recover damages for personal injuries. Before Rodgers, J. At the trial plaintiff testified that he was a practical machinist and engineer, and had been in charge of the engine in question for about a year.

Appeal, No. 143, Oct. T., 1902, by defendant, front decree of C. P. No. 2, Allegheny Co., Jan. T., 1902, No. 833, on bill in equity in case of Joseph B. Woods v. Greensboro Natural Gas Company. Bill in equity for an injunction to restrain the erection of telephone and telegraph lines along a pipe line laid by defendant under its right of eminent domain. Shaeer, J., found the facts to be as follows : 1.

Appeal, No. 144, Oct. T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny County, June T\, 1901, No. 373, on verdict for plaintiff in case of Peter Lehman v. Carbon Steel Company. Trespass to recover damages for personal injuries. Before Stowe, P. J. The facts appear by the opinion of the Supreme Court. The court refused binding instructions for defendant. Verdict and judgment for plaintiff for 12,675. Defendant appealed.

Appeal, No. 146, Oct. T, 1902, by plaintiffs, from judgment of G. P. No. B, Allegheny Go., Aug. T., 1901, No. 178, refusing to take off nonsuit in ease of J. M. Mc-Ginnis and Sarah L. McGinnis v. William Kerr, trading as William Kerr’s Sons. Trespass to recover damages for death of plaintiff’s son.

<p> Negligenee-rMaster and servant—Duty to instruct—Dangerous employment—Young persons. </p> <p>An employee has the right to suppose that his employer has provided such guards and means of protection from injury, in the use of the machinery, tools and appliances, as are usual and reasonably necessary for his safety; and he cannot be held to assume the risks attendant on their absence-, unless such absence is apparent, or his attention has been called to it. If the business is one with which he is not familiar, he has a right to expect that its dangers will be pointed out to him, and that he will be instructed in those things necessary for him to know in order to guard his own safety. He cannot be held to assume the risk of dangers of the existence of which he has no knowledge. In the case of young persons, it is the duty of the employer to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they should not be exposed.</p> <p>In an action by a boy sixteen years and four months old to recover damages for personal injuries sustained while at work on a rag cutting machine in defendant’s factory, the evidence for the plaintiff tended to show that when the boy was placed at the machine four hours before the accident, he was instructed to keep the rags straight on the belt of the machine, to watch for fire, to put out fire if it occurred, and to start the machine again. He received no instruction as to the manner of cleaning waste from the fan of the machine, nor as to the proper way of stopping the motion of a revolving cylinder connected with the machine. Plaintiff attempted to clean the fan, and his hand was caught in the revolving cylinder, and badly injured. It was conceded that the machine was a dangerous one. Held, that the question whether plaintiff’s employment required him to clean the fan, and if so whether the manner in which he.attempted to do it was so clearly dangerous as to convict him of negligence, was for the jury.</p>

<p>Appeal, No. 70, Oct. T., 1902, by plaintiff, from order of C. P. No. 3, Allegheny Co., Feb. T., 1901, No. 507, refusing to take off nonsuit in case of Annie Doyle v. Pittsburg Waste Company.</p>

<p> Ver diet—Evidence—Weight of the evidence—Setting aside verdict. </p> <p>Where questions of fact have been properly submitted to the jury on conflicting testimony, a verdict will not be set aside as against the weight of the evidence, merely because the conclusion of the jury was not that which the trial court and the appellate court would have reached on the same evidence.</p> <p> Negligence—Infant—Contributory negligence—Question for jury. </p> <p>It will not be presumed, as a matter of. law, that a boy twelve years old has sufficient capacity to be sensible of danger and to avoid it. His contributory negligence is a matter to be passed upon by the jury.</p> <p>Negligence—Parent and child—Injury to child not resulting in death—■ Father—Mother.</p> <p>A mother has no right of action for an injury to a minor child caused by the negligence of another, and not resulting in death.</p> <p>Where a suit is brought by a father in his own right and as next friend of his minor child to recover damages for injuries to the child not resulting in death, and pending the suit the father dies, and the mother of the child is substituted of record as next friend, a verdict and judgment for the mother in her own right cannot be sustained.</p>

<p>Appeal, No. 147, Oct. T., 1902, by-defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1899, No. 88, on verdict for plaintiff in case of Thomas N. King et al. v. New York & Cleveland Gas Coal Company.</p> <p>Ejectment for coal under land in Plum township. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial when Henry M. Johnson was on the stand he was asked this question:</p> <p>“ Q. 'Mr. Johnson, did you at that time know of any other coal underlying that land except the Pittsburg vein? ”</p> <p>Objected to as irrelevant and incompetent.</p> <p>Objection overruled and bill sealed for defendant. [1]</p> <p>“ A. I did not know of any vein under that at that- time.”</p> <p>J, S. King was asked this question:</p> <p>“ Q. Did you know of a coal vein in that farm ? A. None but the Pittsburg vein, or what we call the upper vein— ”</p> <p>Objected to. Objection overruled and bill sealed for defendant. [2]</p> <p>W. D. Alter was asked this question:</p> <p>“ Mr. Alter, this affidavit sets forth that you are acquainted with the value of property in the vicinity of the property described in the within petition, and that you believed the price of $75.00 per acre for coal of the estate of Thomas King, deceased, is a fair price, and as much as any coal in the immediate vicinity is sold for, and is as much and even more than could be obtained for the same at public sale. Now, I ask you what coal did you refer to in that affidavit ? ”</p> <p>Objected to because the coal referred to in that affidavit is described in the petition to which that affidavit refers, and it is immaterial so far as we are concerned, and besides the witness is asked to give an interpretation to his affidavit, which is perfectly clear of itself, and which may tend to change its tenor, Mr. Coleman being dead, and this being one of the parties who made this affidavit, it is incompetent to make any explanation of his affidavit, or to testify to any subject-matter of that transaction, because of the death of Mr. Coleman.</p> <p>Objection overruled. Exception and bill sealed for defendant. [8]</p> <p>“A. We referred to the merchantable coal on the Briar farm at that time, the Pittsburg vein only.”</p> <p>Defendant presented this point:</p> <p>15. That under all the evidence in this case the verdict of the jury should be for the defendant. Answer: Refused. [15]</p> <p>Verdict and judgment for plaintiffs.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions ; (15) above instruction, quoting it.</p>

<p>Taxation—Local improvements—Exemption of public property—School district—Acts of February 12, 1869, P. L. 150, and May 16, 1891, P. L. 75.</p> <p>Statutes imposing assessments for local improvements are enacted in the exercise of the taxing power of the legislature, and notwithstanding the generality of the enumeration of the property affected, do not apply or relate to property held or used for public purposes by the state, or any of its political subdivisions.</p> <p>Real estate purchased and held by the board of directors of subschool districts created in the city of Pittsburg by the act of February 12, 1869, is not liable under the Act of May 16, 1891, P. L. 75, for assessments for grading, paving and curbing a street on which such real estate abuts. This is the case because (1) such real estate is public property, and therefore not taxable or assessable for public improvements under existing acts; (2) there are no provisions in the act of May 16, 1891, by which such an assessment can bo enforced; and (3) because taxation of any kind imposed upon school property would interfere with and defeat the commonwealth in maintaining the system of education required by the constitution .</p>

<p>Appeal, No. 155, Oct. T., 1902, by plaintiff, from order of 0. P. No. 2, Allegheny Co., Oct. T., 1896, No. 762, refusing to take off nonsuit in case of Laura W. Fleming, Executrix of John Fleming, Deceased, who survives John Bender and Levi Harris, trading as L. H. Harris Drug Company v. Cochran Fleming, surviving Executor of John Fleming, Deceased.</p> <p>Assumpsit on a promissory note. Before Shaeer, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned w~as refusal to take off nonsuit.</p>