Volume 205 — Pennsylvania State Reports

<p>Appeals, Nos. 94, 99 and 100, by plaintiffs, from decrees of C. P. No. 2, Allegheny Co., July T., 1901, Nos. 494, 715 and 765, dismissing bills inequity, in cases of James Laird v. City of Pittsburg et al., Milton I. Baird v. City of Pittsburg et al., and Joseph W. Stenger v. City of Pittsburg et al.</p> <p>Bills in equity for an injunction.</p> <p>Frazer, P. J., found inter alia the following facts: •</p> <p>The city by ordinance set forth and ordained “ ... . that the city of Pittsburg deems it proper and expedient that it exercise the power of eminent domain, vested in said corporation, for the acquirement by it of the real estate hereinafter described, to be used for park purposes. Therefore, the director of the department of public works of the city of Pittsburg is hereby authorized and directed to proceed in the name and on behalf of said city, to have taken, appropriated and condemned for park purposes, in the manner described by law, the real estate and property of James and Eliza Laird, situate in the 14th ward of said city, bounded and described as follows, to wit: . . . . And the said city does hereby elect and resolve to take, use and appropriate the said real estate and land for the purposes aforesaid, the damages not having been agreed upon between said city?- and said owner, and the said parties being unable to agree upon the same.”</p> <p>The land described in plaintiff’s bill adjoins a public park of the city, known as Schenley Park, which contains 422 acres, of which one and eighty-three one hundredths are occupied by the Carnegie Free Library building, four acres by the Phipps Conservatory, two and two thirds acres by music stands, athletic grounds and race course.</p> <p>For the purpose of enlarging Schenley Park, the city has proceeded, under its right of eminent domain, to purchase and acquire, by condemnation proceedings, the properties of plaintiff and others; that the properties so purchased and acquired contain together about 150,000 square feet of land. The property of plaintiffs was acquired by condemnation proceedings, and not by purchase.</p> <p>The Carnegie Free Library building contains a free library, an art gallery, museum and music hall, which building was completed in the fall of the year 1895 and dedicated to public use on November 10, 1895.</p> <p>The Carnegie Free Library was founded through the donation of Andrew Carnegie, under an ordinance of the city, approved February 25, 1890, and its supplements, so that the funds for the erection of the building and the equiping of the library were furnished by the donor, while the city undertook to appropriate #40,000 per annum to maintain the same; and whereby the location, ei’ection and management of that institution were entrusted to a board of directors composed of the major of the city, the presidents of select and common councils, the president of the central board of education, and a library committee of five persons appointed by the councils of the city, and nine other persons appointed originally by the donor, with the right and power in the nine persons so appointed to fill vacancies in their number and to elect their successors.</p> <p>The library and reading rooms in the building are open to the public free of charge ; free public musical entertainments are given at least twice a week in the music hall of the library building; the hall is frequently let for entertainments, for which a rental is charged, the amount of the rental depending upon the nature of the entertainment, the purpose for which given and by whom given. The museum and art gallery, which occupy rooms in the building, are under the control of the Carnegie Institute, which is managed by a distinct board of trustees, though its occupancy of rooms in the Carnegie Library Building is with the permission and co-operation of the board of trustees of the Carnegie Free Library; the museum and art gallery are open throughout the year to the public, without charge.</p> <p>The board of trustees of the Carnegie Free Library has the management of the library building, and also the expenditure and disbursement of all funds belonging and applicable thereto, including the $40,000 annually appropriated by the defendant city to assist in defraying the expenses necessary in maintaining the same.</p> <p>The trustees of the Carnegie Free Library desire to extend and enlarge the present library building at a cost of $3,600,000, which sum has been donated by Mr. Carnegie, and is now subject to the order of the trustees, to be used by them for that purpose.</p> <p>It is the intention of the board of trustees of the Carnegie Free Library to ask permission of the councils of the city to use and occupy a further portion of Schenley Park, to erect thereon the proposed addition to its library building. That the land necessary for such extension includes, among other property, the lots taken from plaintiff, and will require an area of about 96,000 square feet.</p> <p>The court entered decrees dismissing the bills.</p> <p>Errors assigned were decrees dismissing the bills.</p>

<p>Appeal, No. 161, Oct. T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1901, No. 37, on verdict for plaintiff in case of Miles Bryan v. First National Bank of McKees Rocks.</p> <p>Assumpsit against a bank for wrongfully charging off on its books a credit given to a depositor. Before Collier, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the court refused defendant’s offer to prove that the checks deposited by the plaintiff represented a gambling transaction. [4]</p> <p>The court admitted in evidence the two checks, although it appeared that they were not stamped. [5]</p> <p>The court charged in part as follows :</p> <p>[In this case, as we understand the law, the plaintiff is entitled to the amount he claims, unless the defendant satisfies you that the plaintiff acquiesced in charging back this money represented by these checks. Now, that is the only question in the case. The bank, as between its depositors, in accepting a check and putting it to another depositor’s account, as between depositors of the same bank, it is just precisely as if the money was paid to the party himself and placed to his credit.</p> <p>That being the case, the plaintiff would be entitled to recover in this case, unless the defendant has satisfied you that the plaintiff acquiesced in charging it back. Upon that there is a great deal of disputed testimony; it is not all on one side by any means. The defendant called a number of witnesses to show that after the bank discovered that the checks of Meyers & Company did not go through the clearing house and were not good .for anything, and that McCann’s account would not be sufficient to pay these checks deposited by the plaintiff, they told Mr. Bryan of the difficulty, the mistake or blunder, if you choose to call it that, that they had made, and that they proposed, as it. was only a short time afterwards, on Monday, to rectify the mistake and charge it back, and they allege that Mr. Bryan assented. Now, it is not necessary to say in words, I assent; you can acquiesce by your actions. Some of the witnesses say that he said “ Ail right; ” others state, that he agreed that they should balance his book. They took his bank book and balanced it and put these checks on there as having been charged to him, and they allege that he went away satisfied, made no objection then. That is their testimony. If he did that he could not recover, because he could have stood upon the mistake of the bank. A bank is bound to know that a check is good when they tell you a check of one of their own depositors is good, but if they make a blunder the depositor may agree that they may rectify that blunder, and if they balanced the book and give it to him and told him that they charged back the checks and he took his book and made no objection, that estops him from recovering against the bank under the circumstances. That is the theory of the defendant, and they have testimony that tends to show that.</p> <p>On the other side, the plaintiff denies that entirely. He says he presented these checks as money, that they put them to his account as money and he went away satisfied; he says that it was an ordinary and usual transaction with the bank and that when he was told of the mistake he considered it their mistake. He had taken the chocks probably for a valuable consideration, we do not know what for; it might have been for a debt. He says he only wanted to get the checks to show to his attorney, and that they balanced his book and that he never saw that the checks were charged against him until he got down in town, and that he never acquiesced in it or agreed to it at any time.</p> <p>Now you have both sides of the case, and it is not for the court to descant on the evidence or say on which side of the case the weight of testimony is; that is for the jury. You twelve men will use your common sense in passing upon the testimony. Just ask yourselves when you get to your room the question, did the plaintiff acquiesce, silently or otherwise ? It is not necessary to say I will agree to it, if he acquiesced by his acts in having them rectify the mistake they made about their account with McCann. If he did acquiesce and you are satisfied of that by the weight of the evidence, you will find for the defendant, because he is estopped in justice and law from trying to make the bank pay when they made a mistake and he was told of it and acquiesced in it. But if that is not made out by the weight of the evidence, if you believe he did not acquiesce and did not agree to it, but demanded his rights all the way through, you should find for the plaintiff for the amount claimed as presented by counsel. That is all there is in this case, and all there could be if you tried it a month.] [6]</p> <p>Yerdict and judgment for plaintiff for $2,301.01. Defendant appealed.</p> <p>Errors assigned were (4, 5) rulings on evidence, quoting the bill of exceptions ; (6) above instruction, quoting it.</p>

Appeal, No. 164, Oct. T., 1902, by plaintiff, from decree of C. P. No. 8, Allegheny Co., Nov. T., 1901, No. 45, on bill in equity, in case of Pittsburg v. Pitts-burg, Carnegie & Western Railroad Company and Arthur McMullen, trading as Arthur McMullen & Company. Bill in equity to restrain a railroad company from crossing streets of a city where no municipal consent had been given.

Appeal, No. 165, Oct. T., 1902, by defendant, from order of C: P. No. 3, Allegheny Co., Aug. T., 1900, No. 370, striking off satisfaction of judgment in case of Mrs. L. E. Shoup v. L. E. Shoup. Rule to strike off satisfaction of judgment. Mrror assigned was the order of the court.

Appeal, No. 177, Oct. T., 1902, by-defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. Term, 1902, No. 472, for plaintiff on case stated in suit of the Redemptorist Fathers of the State of Pennsylvania v. James B. Lawler. Case stated to determine the marketable title to real estate.

<p>Appeal, No. 178, Oct. T., 1902, by defendants, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1902, No. 672, on verdict for plaintiff, in case of John Huckestein v. New York Life Insurance Company and Walter S. Huntley.</p> <p>Trespass for malicious prosecution. Before McClung, J.</p> <p>At the trial it appeared that the plaintiff who owned a policy in the New York Life Insurance Company sold the policy to Richard Herzfeld for $2,000, and that Herzfeld surrendered the policy to the company, and received for it $2,600. There was testimony that plaintiff had submitted to Herzfeld a paper in which he falsely stated that he had four sons and that these were all his children, when in fact two daughters were then living. The policy was made payable to plaintiff’s wife and children. It did not appear that plaintiff had any transaction with the insurance company in relation to the sale of the policy, but that he dealt wholly with Herzfeld.</p> <p>The court charged in part as follows:</p> <p>[Now, to apply this matter to the case before us: The prosecution was instituted by an information made before Aider-man Groetzinger on November 15, 1898. As I have said, the information was made by Mr. Huntley, and it was made admittedly at the direction of the other defendant, the company. The information was made against John Huckestein, charging him with obtaining money from the New York Life Insurance Company by a false pretense, that is, by a false pretending by a signed paper that the four sons who joined in the transfer of the policy were all his children by a wife who was then dead. When the testimony developed, it appears by the uncontradicted testimony, that Huckestein did not obtain any money at all from the New York Life Insurance Company in this transaction, and consequently, he could not have obtained it by. any false pretense. He sold the life insurance policy to one Herzfeld, through brokers, and did not deal with the insurance company at all. He sold it, it seems, through these brokers for $2,000, and it appears that afterwards Herzfeld sold it to the company for some $2,600, a different transaction altogether. I presume they call that transaction a surrender. But, at any rate, Huckestein hadn’t anything to do with that transaction, and there is nothing to indicate here that whatever paper he signed was intended to influence anyone excepting Herzfeld; at any rate, that it was not a pretense by Huckestein to anyone excepting Herzfeld. So that it is perfectly manifest that in any aspect of the case, there was no false pretense, no cheating by false pretense, as between Huckestein and the New York Life Insurance Company. He did not get a dollar of money from the life insurance company ; and consequently there was no reasonable or probable cause for the prosecution that was instituted, to wit: the prosecution for obtaining money by false pretense from the New York Life Insurance Company by Huckestein. So that that element is taken out of the case. I instruct you that under the testimony all around, the admitted facts in the case, that there was no probable cause for that prosecution.</p> <p>That leaves the matter wholly upon the question as to whether the prosecution was maliciously instituted or not; that is, with the exception of another matter with respect to the advice of counsel, which I will explain to you. You will assume that there was no reasonable or probable cause for this particular prosecution. Even if Huckestein did sign that affidavit, the disputed affidavit, then the pretense was made not to the New York Life Insurance Company, but to Herzfeld.] [1]</p> <p>[The fact, however, that there was no reasonable or probable cause does not determine this case in favor of the plaintiff ; because you have yet to go on to the consideration of the question as to whether or not the defendants are liable for the consequences of this prosecution; and they are not, if they acted without malice, if they acted from a proper motive, if they acted in good faith. That is, if the prosecution, although wrongful, and although unsustained by the facts, was the result of an honest mistake, then they would not be liable; and there is another principle: That if it was based upon the advice of counsel, that then the party who made it would not be responsible. If you proposed to make an information against someone with whom you have dealt, for a criminal act, and you go to your counsel and lay before him fully and freely all the information you have, or give him all the means of information that are accessible, and he advises you that you have a case, and you act upon that, then the law protects you. But it must be substantially such case as that; you must lay the matter fully before him, and take his opinion upon the question thus presented. It is not necessary that you should exclude him from getting any information himself, but you must directly or indirectly lay the case before him.</p> <p>The plaintiff here claims that this is not a case where the facts were laid before the counsel for the company, Mr. Wake-field, and his opinion taken; but that the matter was put into his hands as not simply the attorney, not simply the counsel for the company, but the agent of the company to look the matter up, and to determine not only upon the facts, but in the exercise of his discretion, as to whether or not an action should be brought. And the plaintiff alleges that it was not a case where he gave his advice upon the facts submitted to him or learned by him, but a case where he, with the authority of the company, took charge of the whole matter, and because of prejudice against the plaintiff here, the defendant in that case, and because he was actuated by malice, determined to bring this suit, although it did not have legal ground to rest upon. My recollection of the testimony of the defendants’ chief witness, Mr. Wakefield, is, that it sustains, to some extent at least, the allegation that he acted as the agent of this company, and that he had power to determine whether the suit should be brought or not. My recollection is that he says that if he had gotten what the company wished from Mr. Huckestein, that suit would nob have been brought; and that he expressly or impliedly asserts that he had the right to determine whether the suit would be brought or not. That is the question for you. If you believe that there was a submission of the case and a legal opinion taken, and that was acted upon in good faith, then the company would be protected and Huntley would be protected. But if you believe that Wakefield was constituted the agent of the company, that the whole matter was put in his hands and that he was either given full power to act, or that he was directed to act in such a way as to compel the performance of this duty, or of his claim, to wit: the obtaining of the release of Huckestein’s daughters, or upon failure of that, then to bring suit; and he had this prosecution instituted for the company maliciously, and for the purpose of gratifying spite, and not in good faith, then the company would be liable and Huntley would be liable.] [2]</p> <p>Defendant presented this point:</p> <p>The court is respectfully asked to charge the jury that under all the evidence the verdict should be for the defendant. Answer: Refused. [5]</p> <p>Verdict and judgment for plaintiff for $1,900. Defendant appealed.</p> <p>¡Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 181, Oct. T., 1902, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Sept. T.,' 1901, No. 124, dismissing bill in equity in case of John Keeling et al. v. Pittsburg, Virginia & Charleston Railway Company et al.</p> <p>Bill in equity for an injunction. Before Stowe, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 182, Oct. T., 1902, by-plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1900, No. 310, dismissing bill in equity in case of North Braddock Borough v. J. B. Corey. Bill in equity for an injunction. Before Shaeer, J. Error assigned was in dismissing bill for want of jurisdiction.

<p>Appeal, No. 191, Oct. T., 1902, by Union Trust Company, trustee, and William Addison Magee, from decree of O. C. Allegheny Co., May T., 1902, No. 17, dismissing exceptions to adjudication in estate of Christopher L. Magee, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Appeal, No. 195, Oct. T., 1902, by defendant, from judgment of O. P. No. 3, Allegheny Go., May T., 1901, No. 148, on verdict for plaintiff in case of Oscar E. Krueger v. Frank F. Nicola.</p> <p>Assumpsit for breach of an agreement for the exchange of lands. Before Kennedy, P. J.</p> <p>From the record it appeared that on July 11, 1900, plaintiff and defendant entered into an agreement for the exchange of land. This agreement was not carried out, and plaintiff brought the present action for the breach. The defendant fded an affidavit of defense in which he averred that plaintiff did not own certain of the lands which he agreed to convey, but that the same was held by a third party with whom there existed an oral agreement that plaintiff should have a conveyance of the land upon the payment of $10,000. The defendant alleged that he was at all times willing to comply with his contract until he discovered that plaintiff made it absolutely impossible for the contract to be carried out. To meet the averments of the affidavit of defense, the plaintiff filed a replication, setting up an alleged cotemporaneous parol agreement to the effect that defendant had agreed to raise the $10,000 to pay for the land plaintiff was to get from the third party, defendant taking a mortgage for it on the land that defendant himself was to convey. It was not averred either in the statement of claim, or in the replication, that the alleged parol agreement was omitted from the written agreement by fraud, accident or mistake. At the trial the court admitted under objection and exception numerous offers of testimony to establish the parol agreement. [8-12]</p> <p>The court charged in part as follows:</p> <p>[I desire here to refer to what seems to me to be the most important part for your consideration. The agreement, as it is written, provides for the exchange of the properties, upon the terms which have been detailed to you at great length. It is supposed, when parties enter into a written agreement, that it contains the whole of their agreement, or understanding, at the time, and all the negotiations or talk, prior to the time of the actual execution of the agreement, are merged in this agreement. But in this case it is alleged, on the part of the plaintiff, that there was a very important matter not included in this agreement, but clearly understood between them at the time, and that it was to be a part of the agreement; and that that additional agreement between them was part of the inducement, or consideration, which the plaintiff had for the signing or execution of the contract. The oral agreement, or understanding between them outside of the written agreement was, as the plaintiff alleges, a covenant or agreement on the part of Nicola to furnish #10,000 in cash, to be raised by mortgage or mortgages upon these Greenfield avenue lots which were to be conveyed to the plaintiff. The plaintiff alleges that that was the distinct understanding at the time, and that if it had not been so understood, he would not have entered into this agreement at all. He alleges that it was not included in the written agreement, for the reason that the article of agreement was signed late in the evening of July 11, and when they had not time, as was said, to incorporate that in it. They were about to adjourn: the remark was made as the plaintiff alleges, by the defendant Nicola, that it was well understood, and that it would be carried out, although not in the agreement, as explicitly as if it had been incorporated in the agreement. According to the plaintiff’s allegation, they separated with that understanding, that this raising of the #10,000 by the defendant Nicola was as much a part of the agreement between them as if incorporated in the papers. The plaintiff, alleging that there was this additional agreement, which, in- point of fact, varies the terms of the original agreement, the burden is upon him to satisfy you that this additional oral agreement was made. It is not only his duty to satisfy you from the weight of the testimony, but the burden is upon him to satisfy you that this oral agreement was made, which is not mentioned in the written agreement. He must satisfy you by proof that is clear, precise and indubitable. Unless he has so satisfied you by the testimony, that is the end of this case, and your verdict must be for the defendant. This is the first and most important question for your consideration.] [3]</p> <p>[If the plaintiff has failed to satisfy you from the weight of the testimony, the burden being upon him, then his case falls. Or, if he fails to satisfy you by evidence or proof that is clear, precise and indubitable, his case falls and your verdict must be for the defendant.] [1]</p> <p>Verdict and judgment for plaintiff for $22,000. Defendant appealed.</p> <p>Errors assigned were (3,4) above instructions, quoting them; (8-12) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 179, Oct. T., 1902, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1902, No. 418, refusing to take off nonsuit in case of Mary Wall v. Pittsburg.</p> <p>Trespass to recover damages for personal injuries. Before Brown, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was the order of the court refusing to take off nonsuit.</p>

<p>Will — Buie in Shelley's ease — Devise.</p> <p>Testator devised to a daughter not married or contemplating marriage at the date of the will, a share in his real estate “ for life only, remainder after her death to her child or children in fee, but if my said daughter at the time of my decease has neither husband, child nor children she may also dispose of her said part or share of said real estate as she sees proper.” In a subsequent clause of his will, he directed that if any of the devisees refuse to take their devises it shall revert back to his estate and be divided among his other “said heirs equally.” Held, that the daughter took an estate in fee tail general which the act of April 27, 1855, resolved into a fee simple.</p>

Appeal, No. 98, Oct. T., 1902, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1902, No. 450, dismissing bill in equity in case of A. G. Smith v. David S. McCann, Executor of Thomas N. Lea, deceased Bill in equity for specific performance. Shaker, J., filed the following opinion: The bill is for specific performance of a contract to sell land.

<p>Appeal, No. 189, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 3, Allegheny County, Aug. T., 1902, No. 498, on case stated in case of Elizabeth Matilda Milliken v. J. Allison Reed.</p>

Appeal, No. 199, Oct. T., 1902, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1902, No. 755, dismissing bill in equity in case of Alexander Dempster v. United Traction Company et al. Bill in equity for an injunction. Before Shafeb, J. Shafeb, J., found the facts to be as follows : 1.

<p>Equity — Specific performance — Arbitration—Revocation—Demurrer.</p> <p>On a bill in equity against an administrator to enforce the sale of shares of stock which decedent had agreed should be sold to his fellow shareholders at his death at a value to be ascertained by arbitrators, it is improper to dismiss the bill on demurrer on the ground that the arbitration had been revoked by the administrator, such revocation not having been shown in the bill.</p> <p>Corporations — Stock—Agreement to sell shares to fellow shareholders— Public policy — Restraint on alienation.</p> <p>An agreement among all the stockholders of a private trading corporation that in the event of the death of any one or more of the parties, the remaining stockholders shall have the option to purchase and acquire the stock of the deceased party at its book value, is not illegal, against public policy, or an improper restraint upon alienation.</p> <p>Equity — Specific performance — Agreement to sell stock — Orphan's court.</p> <p>The orphans’ court has exclusive jurisdiction to enforce specifically an agreement by a decedent that his fellow shareholders in a corporation shall have the option to purchase his shares upon his death.</p>

<p>Appeal, No. 103, Oct. T., 1902, by Lewis McMullen, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 52, on bill in equity in case of E. H. Pang-burn, E. E. Pangburn and C. L. Elliott, trading as Elizabeth Planing Mill Company, v. American Vault, Safe & Lock Company.</p> <p>Bill in equity for a receiver.</p> <p>The auditor, R. C. Rankin, Esq., appointed to pass upon the account of the receiver, reported, inter alia, as follows:</p> <p>There is some controversy concerning a number of claims presented, such will appear in the schedule immediately after the list of wage claims and in the order here considered.</p> <p>1. Lewis McMullen, Trustee, v. American Vault, Safe & Lock Company, D. S. B. No. 150, December term, 1893, $8,568.30, on which has been paid $640. Upon this judgment, the entire fund for distribution, as shown by the account, is claimed.</p> <p>At a meeting of the board of directors held on June 12, 1893, a resolution was adopted authorizing the execution of a judgment note to cover the claim of S. O. Rhodes, P. T. B. Shaffer, T. W. Martin, B. W. Applegate, C. H. Underwood, C. F. Sheriff and Josiah Speer, directors of defendant company, for money theretofore raised by them to pay a note of the company, originally $10,000, then reduced to $8,000. A fi. fa. was issued thereon at No. 150, December term, 1893, on October 10, 1893, and that writ is still in the sheriff’s hands. Testimony was offered by exceptants as to the validity of this judgment. Counsel for the receiver maintain that the auditor has not power to go into the question. The cestui que trustent under the judgment were the directors and officers of defendant company; Josiah Speer, secretary and general manager, now receiver, was one of them. In view of the facts that assets of very considerable value have been lost under the receiver's management of his trust and it is sought to have what little is left appropriated to a judgment in which he, as well as all the other directors, is interested, your auditor considers that under the authority of Wenger’s Estate, 2 Pa. Superior Ct. 611, and Wright’s Estate, 182 Pa. 90, he was justified in hearing the testimony and finding the facts.</p> <p>On Juno 12, 1893, a resolution of the board of directors was passed authorizing the proper officers of the company to execute a judgment note to Lewis McMullen, trustee, in an amount sufficient to protect the officers of the company on their indorsement of a certain note in the Central Bank for $8,000.</p> <p>Josiah Speer says : “I was in charge, and also being an interested party on that indorsement my recollection is that I was told to watch the condition of the company, and if it was able to take care of its paper itself there would be no necessity of entering a judgment; while the board had directed it to be given, yet there was no specified time ; when I felt that there was danger 1 notified the board and called them together, and they directed then that the note be made in favor of Lewis McMullen, trustee.” At a directors’ meeting of September 4, 1893, a resolution was adopted directing the secretary to place in the hands of Lewis McMullen a judgment note for $8,000, for use of indorsers on the Central Bank note for that amount; the note is dated June 13,1893 ; it does not appear, other than from the above testimony, when it was actually drawn.</p> <p>Under the authorities officers who have the power to protect themselves and have exercised it, must show that the contract was fair under all circumstances. In Mueller v. Fire Clay Co., 183 Pa. 450, the court says, “ Even if the judgment was entered after insolvency was known, yet the contract having been made before insolvency, as an indemnity to the directors for individual indorsements, such judgment could be enforced as a lien against the corporate property, as in Meal’s Appeal,” 129 Pa. 64.</p> <p>The directors had borrowed $10,000 on the promissory note of the company indorsed by them, in August or September, 1892, from the Central Bank of Pittsburg. On the date this preference was authorized there was $8,000 still due on that note.</p> <p>The question then is, were the defendant company’s affairs in such condition when the judgment was authorized to be confessed that such action could be taken by the directors without prejudice to the rights of other creditors ?</p> <p>Take for example second inventory of assets hereinbefore set out, amounting to . §126,813.01</p> <p>The manager, Josiah Speer, in his answer to the bill for receiver puts the total liabilities at........52,410.65</p> <p>There were issued 911 shares of the par value of §50 of preferred stock . . . 45,550.00</p> <p>1,780 shares of common stock . . . 88,950.00</p> <p>Total liabilities then were . . . §186, 910.65</p> <p>Showing liabilities in excess of assets of § 60,197.64</p> <p>At the same meeting at which the judgment note was authorized to be given by the officers, June 12,1893, the minutes say “ the General Manager reported that he had been unable to discount any paper last week, and being without funds could not pay the hands on Saturday last. That the concern is in rather an embarrassing condition, the Chicago Branch being slow in making remittances.”</p> <p>The following motion was adopted:</p> <p>“ Whereas, The Chicago Branch of this company has proven an unfailing source of loss to this company, and we find it beyond our ability to render it pi’ofitable, therefore be it,</p> <p>“ Resolved: That Josiah Speer be and is hereby directed to proceed to Chicago at once and discontinue said branch.”</p> <p>Then follows some instructions in detail.</p> <p>The judgment note authorized at that meeting seems never to have- been given, for on September 4, 1893, the directors adopted substantially the same resolution, after having first heard the report of a committee that “ it had been unable to procure a loan or assignments of contracts.” “ The General Manager reported he had not written to creditors yet asking for an extension of time on our accounts, for the reason he had on hand a likely sale of a block of capital stock. The parties are to be up on Tuesday afternoon train.” Then a claim due from the United States government was assigned to S. W. Applegate to repay him for §500, he had paid on the company’s note in the Central Bank. Then the following resolution was passed, viz:</p> <p>“ Whereas, This company having become involved in an indebtedness, being balance lor construction tor material and labor, together with interest on its bonded indebtedness, amount to tbe sum of over $26,000, and our resources do not seem to be sufficient to pay tbe same at once, and some of our creditors pushing for judgment; therefore be it,</p> <p>“ Resolved: That this company joins with our creditors wishing a receiver appointed, to take charge of its affairs, and ask the court to appoint some person competent to act as receiver until such time as it can do business without embarrassment and complete the contracts now on hand, and pay its accounts. This course seeming best in the interest of all creditors and stockholders.”</p> <p>But going back of the question of the financial standing of defendant company at the date the resolutions just quoted were passed, we find from the minutes and oral testimony that the company was organized with a capital stock of $4,000. On July 14, 1891, a directors’ meeting called a stockholders’ meeting oil July 15, 1891, at which the increase of the capital stock to $200,000 was authorized, on the same day a directors’ meeting provided for the issuing of $50,000 preferred stock and a stockholders’ meeting vuted in favor of such issue. On August 17, 1891, at a stockholders’ meeting the minutes of the last mentioned action were approved and the number of directors increased from three to seven. The minutes of a directors’ meeting of August 18, 1891, and a stockholders’ meeting on September 10, 1891, show the creation of a bonded indebtedness of $25,000.</p> <p>- The stockholders’ met on August 20, 1901, and entered into an agreement on, the part of the company with E. W. Neff and C. H. Underwood to purchase the assets of the Chicago Safe & Lock Company from them at $130,000, payable $30,000 cash, $25,000 in notes or bonds, and $75,000 in stock of the company, the stock to be issued to Neff & Underwood and the cash, notes or bonds to be paid to the Chicago Safe & Lock Company. Neff and Underwood at that date had an option to purchase said effects at the price of $25,000. At a special board meeting of October 31, 1891, J. R. Wiley, the treasurer, stated that he could not conscientiously countersign the stock certificates authorized by the board to be issued to Neff & Underwood, and he resigned his position. On motion of Martin, seconded by Applegate, the resignation was accepted and R. T. Wiley was elected in his place. The receiver was requested to produce an inventory of the assets of the Chicago Safe & Lock Company which he did not do.</p> <p>A directors’ meeting of December 7, 1891, provided for calling a meeting of the stockholders on December 19, 1891, “ to devise some plan to relieve the company from its embarrassment occasioned by the failure of the Blaine Land and Improvement.Company to complete our factory buildings.”</p> <p>On August 25, 1891, a resolution was passed by the board under which I. C. Tuttle loaned to T. W. Martin and Applegate for the defendant company $2,500, upon condition of receiving therefor a bonus of $500 of the stock of Underwood, Tuttle agreeing to subscribe for $500 of the company’s stock, the company paying him a bonus therefor of $150 cash, provided further that $1,000 of said stock be preferred stock.</p> <p>The minutes further show that on January 22,1892, the company confessed a judgment to Martin & Applegate, to secure them in having procured this loan in the sum of $2,000, the amount then unpaid.</p> <p>The minutes of January 16, 1892, show action by the board for the sale of $50,000 of the stock of the company at figures netting the company seventy-five cents on each dollar of stock sold.</p> <p>On July 17, 1893, the minutes show that the company was indebted to Josiah Speer in a considerable sum, and being unable to pay any part of it in cash, it was paid by Speer’s taking from the company six safes at nineteen per cent of the list price.</p> <p>The minutes of a stockholders’ meeting on July 25, 1893, show liabilities of the company at that date beyond the bonded indebtedness, of $22,632.05, and on the same day the directors took action on the sale of the entire stock of the Chicago branch, including rented safes, to Mrs. M. A. Bigford at twenty-two and one half per cent of list price.</p> <p>Mr. Speer says in his testimony that the company received $58,000 to $63,000, he thinks, in cash from the sale of stock and that it sold at par.</p> <p>Rose, Shaffer, Applegate and Speer being present, a resolution was passed recommending to the stockholders’ meeting the sale of stock for fifty cents on the dollar.</p> <p>Your auditor, therefore, finds, that at the dates of the authorization of the judgment note, June 12, 1898, and September 4, 1893, the defendant company was insolvent, that the directors for whose benefit the judgment was confessed did not indorse the company’s paper upon an agreement that they should be secured by such note, that the execution issued upon the judgment two days before the appointment of the receiver has not been returned, and as a matter of law that the trustee for the directors is not entitled to his claim in full, to the prejudice of the rights of other creditors, but shall receive his pro rata dividend of the funds for distribution and further that the receiver be surcharged with $730.12, the sum he paid the trustee on account of said judgment.</p> <p>Exceptions to auditor’s report were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 105, Oct. T., 1902, by Josiah Speer, receiver, from decree of C. P. No. 2, Allegheny County, Jan. T., 1894, on bill in equity in case of E. H. Pang-burn, E. E. Pangburn and C. L. Elliott, trading as Elizabeth Planing Mill Company, v. American Vault, Safe & Lock Company.</p> <p>Bill in equity for a receiver.</p> <p>The report of R. C. Rankin, Esq., auditor, was as follows:</p> <p>FINDINGS OF FACTS.</p> <p>(1) Josiah Speer was appointed receiver of the property and assets of the American Vault, Safe & Lock Company by decree of this court made October 11,1893, and immediately took possession of the property of the company.</p> <p>(2) As such receiver, there came into his possession among the assets of the company merchandise consisting of finished and unfinished safes, raw materials, and so forth, to the amount of $36,088.89, bills and accounts receivable, $3,269.75, and real estate, plants, tools and other property of the company.</p> <p>(3) The receiver operated the works of the company from the date of his appointment until after September 29, 1894, and this was done by him upon his own responsibility, without any authority from the court, with the exception of a contract known as the Pennsylvania Railroad contract, on which contract he lost $1,244.01.</p> <p>(4) On September 29,1894, the receiver, at public sale, under order of court, sold the unoccupied real estate of the company to J. R. Wylie for $2,000, which sale was confirmed by the court absolutely, and the money paid to the receiver.</p> <p>(5) On the same day at a like sale, he sold the remaining real estate and plant of the company, and the personal property then on hand, to Hugh Morrison, at $10,000, for the real estate and $1,300 for the personal property. This sale was confirmed absolutely on October 20, 1894. It was subsequently set aside by an order made January 13,1896. On June 20, 1899, at the request of the receiver, he was permitted to make a sale of the property to M. M. Garland, at $10,000 for the real estate and $1,300 for the personal property, the said Garland to take the property as of September 29, 1894, receiving the benefits of all sales made by the receiver after September 29,1894, and assuming all expenses incurred by the receiver after that date wfith respect to the said property. The sale to M. M. Garland was consummated by the receiver, and the purchase money paid. The expenses in connection with the sales of the real estate, as shown by the accounts, amount to $936.15, tmd the net proceeds from sales of real estate for distribution amount to $11,063.85.</p> <p>(6) The purchase made by Hugh Morrison, as well as the purchase made by M. M. Garland, was each, in point of fact, made on behalf of the syndicate, and the said receiver, Josiali Speer, was a member of each of said syndicates, and interested in the pitrchase of the property, and this fact was not disclosed by him until long after the sale to Garland.</p> <p>(7) That the value of the personal property sold by the receiver to M. M. Garland, under the order above mentioned, was $20,506.95, this amount being the value of the merchandise on hand at the date of the McMeans inventory, $18,106.80, and the net cash receipts in the hands of the receiver or the purchaser, $2,400.15.</p> <p>(8) The receiver was negligent in his management of the trust estate, and wasted the assets thereof; his action towards the court and creditors has been characterized by an absence of good faitli; his action in procuring the sale of the remaining personal property on hand, at an inadequate price, and being interested therein as a purchaser, without disclosing that fact, was inexcusable, and because of these facts he has forfeited his right to commissions.</p> <p>THE HAW OK THE CASE.</p> <p>As this case presents itself to your auditor, there are but three questions of law involved, viz :</p> <p>1. As to the liability of the receiver for the loss, or some part thereof, incurred by him in the operation of the works.</p> <p>2. As to the liability of the receiver for the loss incurred in the sale to Garland, in view of the fact that the receiver was one of the purchasers at this sale.</p> <p>3. As to the receiver’s right to commissions.</p> <p>1. As to the liability of the receiver for the loss incurred in the operation of the works.</p> <p>The receiver having operated the works without authority from the court, it is sufficient to show the inventory and appraisement, and the burden is upon him to explain and account for the property: McCay v. Black, 14 Phila. 635. That the receiver thoroughly appreciated this fact appears from his testimony, in which he says very frankly that in operating the works he acted upon his own responsibility. That the operation of the works resulted in a large loss does not now admit of doubt. The expenses incurred by the receiver in the operation of the works not only exceeded his receipts, but, as shown by the findings of fact, his expenses exceeded the value of the merchandise coming into his possession and disposed of prior to September 29, 1894, plus all the moneys realized from bills and accounts receivable, by $2,183.86. In other words, he had a deficit of that amount. So that, as a matter of fact, the loss occasioned by the conduct of the receiver in this respect would amount to the difference between the assets coming into his hands at the date of his appointment and the amount remaining in his hands on September 29, 1894. But looking at the case in this aspect, the receiver would be entitled to some reasonable allowance for collecting these bills receivable and disposing of the personal property in the condition in which it was at the time he took charge of it. No testimony has been presented to the auditor to enable him to make a finding upon this theory. Taking into consideration all of the circumstances of the case, and the receiver’s statement that in the operation of the works he acted upon his own responsibility, it seems to the auditor that the least responsibility to which he could be held would be to require him to bear the amount of the deficit which he incurred : in other words, require him to pay the excess of his expenditures over the value of the property taken possession of and disposed of by him. He certainly cannot charge this deficit, occurring in the operation of the works, as against the moneys realized from the sale of real estate, nor has he any right, as it seems to your auditor, to deduct it from the amount found to be due from him to the creditors by reason of his conduct in purchasing at his own sale.</p> <p>The auditor is therefore of the opinion that the accountant should be surcharged with the amount of the net deficit arising from his management of the trust estate between October 11,1893, and September 29,1894, which amounts to $939.85. In ascertaining this amount the auditor has allowed the accountant credit for $1,244.01, being the amount shown as the loss incurred on the Pennsylvania railroad contract, which contract was authorized by the court, and also the loss on the item of bar iron, $3,564.</p> <p>2. As to the liability of the receiver for the loss incurred in the sale to Garland.</p> <p>The auditor has already found that the receiver was interested as a purchaser in the sale made by him to Garland, and that the amount realized for the personal property on this sale was vastly less than its real value. The great number of cases in which attempts have been made by executors, administrators, trustees, assignees and receivers to purchase the trust property at their own sales, either directly or through the intervention of third parties, probably illustrates the necessity for the strict rules established by the courts in this class of cases. Be that as it may, in Pennsylvania it is certainly well established by an unbroken line of decisions extending from Moody v. Vandyke, 4 Binney, 31, to French v. Pittsburg Vehicle, etc., Co., 184 Pa. 161, that a trustee authorized to make sale of property, whether at public or private sale, is not permitted to bid upon or purchase said property, or be interested therein; that if he does, such a sale is voidable at the election of the cestui que trust without reference to its fairness; or, the cestui que trust may, if the property has been disposed of by the purchasing trustee, require him to account for the difference between the purchase price and the value of the property or the profit on a resale thereof.</p> <p>In 20 Am. & Eng. Ency. of Law, 148, the rule is stated thus:</p> <p>“ A receiver will not be permitted to bid nor purchase at his own sale. Any purchase he may make will be held for the benefit of the parties interested, is voidable at their election, and may be set aside by the court.”</p> <p>A large number of cases are there cited which fully support this statement.</p> <p>In Moody v. Vandyke, 4 Binney, 31, Chief Justice Tilghmas says:</p> <p>“Now even if the administrators had power to sell, they ought not to have made the sale to one of themselves, because the power being joint, ought to have been executed by all of them; and (which is of far greater consequence) because the policy of the law forbids a person to be the purchaser of that which he is appointed to sell. It requires but a small knowledge of the world, to be sensible of the wisdom of this rule. The person entrusted with the sale has so perfect a knowledge of the subject, and so great an opportunity of taking advantage, by appointing the time and place of sale, and employing the agents who conduct it, that to permit him to become the purchaser, would be placing too much confidence in the infirmity of human nature.”</p> <p>In Webb v. Dietrich, 7 W. & S. 401, Mr. Justice Sergeant says:</p> <p>“ The rule of equity rvhich prohibits a trustee for sale from purchasing the trust property is not founded on his being necessarily guilty of fraud in so doing. It is a rule of public policy which applies in all cases, whether there be fraud or not, and indeed its great object is to prevent fraud by taking away the temptation to commit it. Another reason for the rule is the difficulty, if not impossibility in many instances, of ascertaining whether there was fraud or not.”</p> <p>The liability of the receiver under the facts found does not seem to the auditor to admit of doubt.</p> <p>A further question arises as to whether this liability of the receiver can be enforced by a surcharge on the present audit. That question seems to be settled by the case of French v. Pittsburg Vehicle, etc., Company, 184 Pa. 161, where a receiver made a sale of the trust property to a firm in which he was to become interested upon the winding up of the receivership. He did become interested in the firm, and upon the filing of his account was surcharged with the difference between the appraised value of the property, as shown by the inventory and the amount realized on the sale. In Rosenberger’s Appeal, 26 Pa. 67, executors were authorized to sell real estate at public sale, and one of them became interested with a third party in purchasing the property which the purchasers subsequently sold at an advance, and upon a settlement of the executors’ account, they were surcharged with the entire amount of profit made by the purchasers. In Wallington’s Estate, 1 Ashmead, 807, President Judge King fully discusses this same question, and sustains a surcharge for the difference between the real value and the price obtained at the public sale.</p> <p>It should be noted in this connection, that the testimony shows that after the purchase in the name of Garland, and for the benefit of the syndicate a new corporation, called the American Vault, Safe & Lock -Company, was formed, to which this property was transferred; which has been carrying on business since the purchase; and as to this personal property, it would now be impracticable to set aside the sale and require the receiver to resell. The only practicable method of adjusting the rights of the parties is by surcharging the receiver.</p> <p>The only answer made on behalf of the receiver to this liability is, that the sale to Garland was a public sale, and that the receiver is protected thereby. Nearly all of the cases in which the question has arisen, and in which the trustee has been held guilty of a breach of trust in purchasing, are cases of public sales ; and the cases are clear that the principle applies equally whether the sale be public or private: Walling-ton’s Estate, 1 Ashmead, 307. But in the present case, the sale to Garland was in no sense a public sale. There was no competitive bidding at all. The receiver applied to the court by petition for leave to sell the property to Garland for a fixed sum, stated that he had accepted ten per cent of the purchase money on account, and recommended that said sale be made, whereupon he received authority to make sale direct to the purchaser. This certainly does not constitute a public sale.</p> <p>Your auditor is therefore of the opinion that the receiver should be surcharged with the difference between the amount realized for the personal property on the sale to Garland and the value of that property.</p> <p>3. As to the receiver’s right to commissions.</p> <p>Commissions are a compensation allowed for the faithful performance by a trustee of his duties. Mere neglect of itself might not require the disallowance of commissions, but the action of the receiver in this case goes far beyond mere negligence. It resulted in a total loss to the creditors of the value of a large part of the personal property coming into his hands at the date of his appointment as receiver; and, as we have found, he has been guilty, not merely of a lack of good faith towards the court, touching the property remaining in his hands, and his connection with the sales of that property made by him, but also of concealing his connection with these sales, and of selling the property at a grossly inadequate price, and being interested in the purchase.</p> <p>Under these circumstances, the auditor recommends that the commissions be disallowed, especially so in view of the fact that the receiver has not been surcharged with the value of the personal property lost by him prior to September 29,1894: 27 Am, & Eng. Eney. of Law, 187, and cases cited.</p> <p>CONCLUSIONS.</p> <p>Your auditor therefore recommends that the receiver’s account be restated, so as to charge him with the amount realized from the sale of real estate less the expenses of making such sales, charging him with the amount received for the personal property, and surcharging him with the difference between the amount received from the personal property sold to Garland and the value of that property; and also surcharging him with the deficit arising from his operation of the works between October 11, 1893, and September 29, 1894.</p> <p>Exceptions to auditor’s report were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 15, Oct. T., 1902, by-defendant, from judgment of O. & T. Beaver Co., June T., 1902, No. 1, on verdict of guilty of murder in the first degree in case of Commonwealth v. William M. Payne.</p> <p>Indictment for murder. Before Wilson, P. J.</p> <p>At the trial the prisoner’s counsel excepted to the panel on the ground that five of the jurors drawn had been excused prior to the trial without the knowledge of the prisoner. The exception was noted on the record and bill sealed. [1]</p> <p>The panel was exhausted after eight jurors had been obtained. The court thereupon directed the sheriff to call talesmen one at a time. The prisoner excepted and a bill was sealed. [2, 3]</p> <p>After Lulu Woods, a witness for the commonwealth, testified, a witness for the prisoner was asked as to her knowledge of the general reputation of Lulu Woods. The question was overruled, and bill sealed. [4]</p> <p>Counsel for the prisoner then made the following offer:</p> <p>It is proposed first to ask the witness if she knows the general reputation of Lulu Woods, a witness who testified in this case, and this question, if answered in the affirmative, is to be followed by the question what it is; this to be followed by the next question, what is her reputation for truth and veracity; this to be followed by another question, “ From your knowledge of her general reputation, would you believe her under oath?”</p> <p>The foregoing proposition is objected to as incompetent, irrelevant and immaterial. That the defense have the right is granted upon the part of the commonwealth to ask the witness the general reputation of the witness Lulu Woods as to truth and veracity, if the witness knows. None other is competent.</p> <p>■ The Court: It would not be improper while it would possibly be a vain thing and useless to ask the witness if she knew Lulu Woods’s general reputation, but it would be highly incompetent and improper to ask her if she answered that in the affirmative what it was, because that might relate to her chastity, to her reputation for truth and veracity or to her honesty ,* and there is only one inquiry can ■ be introduced in this case,, and that is as to the truth and veracity of the witness Lulu Woods. For this reason the objection is sustained and a bill of exceptions, sealed to the prisoner. [5]</p> <p>Verdict of guilty of murder in the first degree upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-5) rulings on evidence as above, quoting the bill of exceptions.</p>

Appeal, No. 152, Jan. T., 1902, by defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1901, No. 2180, discharging rule to open judgment, in case of Mary Helen Zeigler v. Moses H. Lichten. Rule to open judgment. Error assigned was the order of the court discharging rule to open judgment.

<p>Trusts and tmstees — Resulting trust — Decedent's estates — Burden of proof.</p> <p>Property, the title and possession of which were in a decedent at the time of his death, was claimed by one of his children as hers by descent from her mother, who was averred to be the real owner under a resulting trust. The trial court found that the evidence failed to sustain the claim. Held, no error.</p>

<p>Appeal, No. 82, Jan. T., 1902, by-defendant, from order of C. P. No. 5, Phila. Co., Sept. T. No. 3210, making absolute rule for judgment for want of a sufficient affidavit of defense in case of W. Frank English v. Thaddeus N. Yates.</p> <p>Assumpsit against the surety of a tenant.</p> <p>From the record it appeared that plaintiff, the owner of a hotel at Ocean City, New Jersey, rented it to Ella R. Curtis “ for the seasons of the years 1900 and 1902, that is to say, from April 1, 1901, to November 1,1902, at the rent or sum of $5,000, to be paid in instalments as follows, viz: the sum of $1,000 on July 25, 1901, $1,500 on August 5, 1901, $500 on April 1, 1902, $1,000 on July 25, 1902, and $1,500 on August 25, 1902. The defendant became her ‘ surety for the payment of the rent.’ She took possession of the hotel under the lease on April 1, 1901, but did not pay the instalments which became due during the season of 1901.”</p> <p>The defendant filed an affidavit of defense, the material portions of which were as follows:</p> <p>Heretofore, to wit: October 5, 1901, the said Ella R. Curtis offered to pay to the said plaintiff on account of his said claim mentioned in the statement, the sum of $460.55, that sum being the amount which she had in bank at that time, as shown by her deposit book, and represented the profit (at that time) in the business of conducting a boarding house on the premises mentioned in the lease. But the plaintiff refused to receive the said sum of $460.55, and stated to her that he would not accept the said sum from her. I am informed that this refusal on the part of the plaintiff was in violation of his duty to and contract with me, and that I am relieved from so much of his claim against me as is represented by said amount which he refused to accept from the said Ella R. Curtis.</p> <p>I have a defense to all the plaintiff’s claim of the following nature:</p> <p>On November 30, 1901, under the proviso contained in the lease, there being at the time a default on the part of the said tenant in the payment of the first two instalments, the plaintiff on account of said default re-entered the said premises and took possession of the same to the exclusion of the tenant; and I am informed, and so claim, that under the said proviso the said lease upon which this suit is brought immediately became void, and that, therefore, I am not liable as surety thereon.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law — Murder—Silence—Duty to speak — Judicial inquiry — Evidence.</p> <p>While it is true, as a rule, that, when one charged with a crime is at full liberty to speak, but remains silent and makes no denial of the accusation by word or gesture, his silence is a circumstance to be taken into consideration by the jury, it is equally true that an accused at a judicial inquiry into his guilt may hold his peace in the face of an accusation against him, and his silence cannot be regarded as any, not even the slightest, evidence of his guilt.</p> <p>At a hearing before a magistrate two persons, neither of whom could speak English, were charged with murder. After the witnesses for the commonwealth had testified, one of the prisoners said that he desired to make a statement. He was warned by the district attorney through an interpreter not to speak, as any statement he would make might be used against him. The prisoner, however, made a sworn statement exculpating himself and charging the other prisoner with the crime. The latter sat silent at the time, but on the following day denied the truth of the statement. The evidence was doubtful as to whether the hearing was at an end when the statement was made. At the trial the statement was offered as evidence of the prisoner’s guilt, first because he had not spoken and denied the statement when it was made, and secondly, because on the day following, he had declared it to be false. Held, that it was error to admit the offer as circumstantial evidence against the prisoner.</p> <p>Neither an ex parte affidavit nor a deposition regularly taken can be substituted for testimony “ face to face ” in any criminal prosecution.</p>

Appeal, No. 37, Oet. T., 1908, by defendant, from decree of C. P. Lawrence Co., on bill in equity in case of Annie M. Devine v. Frankford Steel & Forging Company, the Tindel-Morris Company, Adam Tindel and L. 1. Morris. Bill in equity for an injunction, and for the appointment of a receiver.

Appeal, No. 91, Jan. T., 1902, by Charles Joly, from decree of O. C. Phila. Co., Oct. T., 1900, No. 510, dismissing exceptions to adjudication in estate of Louis Lesieur, deceased. Exceptions to adjudication. Before Hanna, P. J., the auditing judge, an attachment sur judgment was presented as a claim against a debt alleged to be due by testator to the executor, John C. Springman, the accountant. The claim was objected to by counsel for the executors.

<p>Appeal, No. 168, Jan. T., 1902, by the First Association of Spiritualists of Philadelphia, from judgment of C. P., No. 5, Phila. Co., March T., 1901, No. 838, on verdict for plaintiff in case of Martha Buchanan v. George G. Pierie, Thomas A. Redding and T. Edwin Redding, Executors of Alexander Mcllroy, Deceased; Henlen Laubach, a Legatee, and the First Association of Spiritualists of Philadelphia, Residuary Legatees.</p> <p>Issue devisavit vel non. Before Davis, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Error assigned amongst others was (10) refusal of binding instructions for defendant.</p>

<p>Appeal, No. 356, Jan. T, 1902, by-plaintiff, from judgment of C. P. Clearfield Co., Dee. T., 1902, No. 343, refusing mandamus in case of C. D. Loraine v. Pitts-burg, Johnstown, Ebensburg & Eastern Railroad Company.</p> <p>Petition for mandamus.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in quashing writ of mandamus.</p>

<p>Equity — Fraud-—Mental incapacity — Parent and child.</p> <p>On a bill in equity by a father eighty years old against a son to compel the repayment of a sum of money which constituted the father’s entire estate, and for which the father had given his son a cheek, a decree in favor of the plaintiff will not be reversed where the court below found from ample evidence and from personal observation of the plaintiff in court, that the latter at the date of the transfer lacked mental capacity to transact business, and did not comprehend the nature and consequences of his act. In such a case it is proper for the court to order that the money should be paid to a guardian of the father who had been appointed after the equity suit was instituted.</p>

Appeal, No. 62., Jan. T., 1902, by P. H. Zurflieh, from decree of O. C. Lackawanna Co., No. 702, Series B, dismissing petition for specific performance in estate of John Shaffer. Petition for specific performance. Troutman, P. J., specially presiding, filed the following opinion on exceptions to report of F. L. Hitchcock, Esq., auditor.

Appeal, No. 9, Jan. T., 1903, by plaintiff, from judgment of C. P. Wyoming Co., on case stated in suit of John Frantz v. Williard R. Race. Case stated to determine the marketable title to real estate. The court entered judgment for defendant. Plaintiff appealed. Error assigned was in entering judgment for defendant on case stated.

Appeal, No. 10, Jan. T., 1903, by commonwealth, from decree of O. C. Lackawanna Co., dismissing a motion to quash an appraisement in the estate of Frank Belcher, deceased. Motion to quash appeal.

<p>Bankruptcy — Preference—Belief of creditor.</p> <p>Where the creditor of a firm of brokers knowing of the suspension of latter’s business, and having no reason to believe that the firm was otherwise than hopelessly insolvent, secured by energetic action, and by the payment of a considerable sum of money, securities of the firm which gave him a preference over other creditors, it will be presumed that he “ had reasonable cause to believe” that the transaction to which he was a party was intended thereby to give him a preference, within the meaning of the national bankrupt act.</p>

<p>Appeal, No. 299, Jan. T., 1902, by defendant, from judgment of C. P. No. 2, Pliila. Co., June T., 1900, No. 492, on verdict for plaintiff in ease of Francis A. R. Lutz, J. Edward Lutz, Julia A. Klein, Ulysses S. Lutz, Charles A. Lutz and Maria A. Burling v. Royal Insurance Company of Liverpool.</p> <p>Assumpsit on a policy of fire insurance. Before Wilt-bank, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $6,818. Defendant appealed.</p> <p>Errors assigned among others were answers to defendant’s second and third points quoted in the opinion of the Supreme Court.</p>

Appeal, No. 263, Jan. T., 1902, by defendant, from judgment of O. P. Lackawanna Co., March T., 1900, No. 742, on verdict for plaintiff, in case of C. H. Williamson v. M. H. Carpenter. Ejectment fora lot of ground in Scranton. Before Kelly, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff. Defendant appealed.

Appeal, No. 314, Jan. T., 1902, by defendant, from order of C. P. Lackawanna Co., Sept. T., 1899, No. 345, sustaining exceptions to report of referee in case of John S. Jenkins v. Rush Brook Coal Company. Assumpsit on a contract for services. Exceptions to report of Charles L. Hauley, Esq., Referee. The facts are stated in the opinion of the Supreme Court. Error assigned was in dismissing exceptions to report of referee.

Appeal, No. 7, Jan. T., 1903, by plaintiff, from order of C. P. Lackawanna Co., May T., 1899, No. 518, refusing to take off nonsuit in case of W. G. Miller v. George W. Cramer and John Cure. Ejectment for land in Blakely borough. Before Newcomb, J. The facts appear by the opinion of the Supreme Court. Error assigned was order refusing to take off nonsuit.

<p>Appeal, No. 137, Jan. T., 1902, by defendant, from judgment of C. P. No. 3, Phila.'Co., Sept. T., 1900, No. 331, on verdict for plaintiff in case of Annie W. Diver v. Singer Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before McMichael, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The.court refused binding instructions for defendant.</p> <p>Verdict for plaintiff for $3,000, reduced by remittitur to $2,000,on which judgment was entered.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Bonds — Municipal bonds — Laborers—Alien laborers — Notice to surety— Principal and surety.</p> <p>In an action on a bond of a municipal contractor by the city of Philadelphia to the use of persons employed on the work by the contractor, the surety on the bond cannot defend on the grounds (1) that the use plaintiffs, being day laborers, are not entitled to the protection of the bond ; (2) that the surety was released because of the payment to the contractor by the city after notice; (3) that the laborers were aliens employed by the contractor in violation of the Act of Assembly of June 25, 1895, P. L. 269, and of the ordinance of December 16, 1896, and the terms of the contract.</p>

Appeal, No. 184, Jan. T., 1902, by defendant, from judgment of C. F. No. 3, Piula» Co., Dec. T., 1896, No. 1092, refusing to take off nonsuit in case of George R. Mason v. Philadelphia. Trespass to recover damages for personal injuries. Before Finletter, P. J. The facts appear by the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 110, Jan. T., 1903, by plaintiffs, from decree of C. P. No. 3, Phila. Co., Dec. T., 1900, No. 918, on bill in equity in case of J. Harry Mihlbauer et ah v. Infantry Corps of State Feneibles et al.</p> <p>Bill in equity for an injunction.</p> <p>McCarthy, J., found the facts to be as follows:</p> <p>1. In 1813 was formed a military body, named “ the Infantry Corps, State Feneibles.” It consisted of one company of infantry, commanded by a captain and other company officers.</p> <p>2. On March 11, 1876, a charter was granted incorporating the “ Infantry Corps of State Fencibles.” The purposes of the corporation, as expressed in the charter, are “ to aid and benefit its members and to secure their proficiency in the military science and for social enjoyments.” The members of the corporation were, first and principally, active members, who were the members of the military body; secondly, contributing members, who were not members of the military body; and thirdly, honorary members.</p> <p>3. In 1878, under authority from the commonwealth, the corps recruited three additional companies, and thereafter was known as “the Infantry Battalion of State Fencibles.” The organization then consisted of four companies of infantry, designated as “ Company A,” “ Company B,” “ Company C ” and “ Company D,” respectively, each company being commanded by its captain and other company officers, and the whole battalion being under command of a major and possessing a staff of officers, commissioned and noncommissioned.</p> <p>4. At the time of or shortly after the formation of the battalion, a mistake arose as to the name of the corporation, which became inveterate and has been perpetuated to the present time. The word “ Battalion ” was substituted for “ Corps ” in the name of the corporation, which was thereafter known, as well to its members as to the community in general, by the erroneous designation of “ Infantry Battalion of State Fencibles.” This substitution appears in the seal of the corporation, in the book printed by the corporation and offered in evidence, containing a copy of the charter, in the by-laws printed in the same volume, in the bonds issued by the corporation, and in the bill and answer in this case as originally filed.</p> <p>5. There was not only confusion of the names of the two bodies, but a confounding of their identity, so that the field, staff, noncommissioned staff and company officers of the military body, under the designation of “ Board of Officers of the State Fencibles Battalion,” assumed to act as the corporate body, enacted by-laws, elected officers, held meetings, and generally conducted the business of the corporation.</p> <p>6. On June 16,1883, was approved an ordinance passed by the select and common councils of the city of Philadelphia, authorizing the commissioner of markets and city property to demise to the “Infantry Battalion of State Fencibles, National Guard of Pennsylvania,” the city armory for ten years at a nominal rental, with privilege of extending the lease for ten years additional, and the proviso that the building should not be used “for other than military purposes.”</p> <p>7. On October 1, 1884, a lease in writing was executed between the city of Philadelphia and the “ Infantry Corps of State Fencibles, National Guard of Pennsylvania, a body corporate of the state of Pennsylvania,” reciting the afore-mentioned ordinance and demising the city armory to the said “ Infantry Corps of State Fencibles ” for the term and rental and with the privileges and restrictions set forth in the ordinance. On behalf of the lessee, this instrument was signed by John W. Ryan, president, and Charles Berger, secretary of the corporation, and it was sealed with the corporate seal. John W. Ryan at that time was also major of the battalion.</p> <p>8. Upon the execution of the lease, the battalion and the corporation took possession of the armory, and have ever since occupied and used it, the battalion for drill, for storage of arms and equipments, as headquarters, and for other military purposes ; the corporation for meetings and transaction of corporate business.</p> <p>9. On May 1, 1900, General Orders No. 17 issued from headquarters National Guard of Pennsylvania. It begins :</p> <p>“I. The following assignment of companies of the State Fencibles Battalion Infantry, is hereby made ; ‘ Company A, State Fencibles Battalion Infantry, Philadelphia, Captain Frederick G. Zeh, to be Company K, Sixth Regiment Infantry.’ ”</p> <p>In three succeeding paragraphs it makes the like assignments of Companies B, C and D to be Companies M, L and E, Sixth Regiment, respectively. It then directs commanding officers to report to commanding officer of the Sixth Regiment, and continues :</p> <p>“ II. Commanding officers of former companies of State Fencibles Battalion Infantry will immediately return cap ornaments to State Arsenal, Harrisburg, accompanied by proper invoice, and forward requisition through channels for supply of cap ornaments, with regimental number and new company letter.”</p> <p>This order did not assign the commanding officer of the battalion or the staff officers, commissioned and noncommissioned.</p> <p>10. A largo majority of the members of the battalion, being nearly three fourths of the whole number, were dissatisfied with General Order No. 17 and resigned, refusing to obey it. Among the number was the commanding officer of Company A. After his resignation, the members of Company A who continued in the command and obeyed the general order, becoming thereby Company K, Sixth Regiment Infantry, elected the plaintiff, Mihlbauer, to be their commanding officer, and he was afterward commissioned as captain of Company K, Sixth Regiment. Mihlbauer was formerly commanding officer of Company A, of the State Fencibles Battalion, but he resigned in 1894 and had not since been connected with the organization.</p> <p>11. The four companies assigned by General Order No. 17, and thereby designated as Companies K, M, L and E, Sixth Regiment Infantry, respectively, were, after assignment, organized into a new battalion, designated as the Third Battalion, Sixth Regiment, and Major Lumb, a member of the Sixth Regiment, was assigned to command the new battalion.</p> <p>12. After May Í, 1900, the members of the Infantry Battalion of State Fencibles who resigned, renewed their organization in four companies, with the old letter designations, A, B, C and D, respectively, and renewed also the battalion organization under the old commanding officer and under the old name of “ Infantry Battalion, State Fencibles,” dropping, however, the addition of “ National Guard of Pennsylvania,” which had been used formerly as part of the designation of the military body. The organization now musters 185 officers and men; it is not connected in any way with the National Guard. One of the companies has had several drills at the armory, but the four companies of the Sixth Regiment have continued to use and occupy the building with their company and battalion drills, so that all the nights of the week are engaged by them, and the State Fencibles Battalion have found it impossible to drill there under the present condition of affairs. The companies assigned to the Sixth Regiment have continued to use the armory since their assignment in much the same way as before, and the evidence does not sustain the averments of the bill that the plaintiffs have been excluded from the armory or interfered with in the use of it for military purposes. On the contrary, it appears that they have materially interfered with the use of the building for military purposes by the military body adhering to and maintained by the corporation, and that they have been treated, notwithstanding this, with commendable forbearance.</p> <p>13. In December, 1900, the plaintiffs, or some of them, with their associates, caused an application to be made to city councils for the passage of an ordinance to revoke the existing lease of the city armory, and to authorize a new lease of the same to be made, granting the use of it to the Sixth Regiment. The bill being referred to the joint committee on city property, several hearings were had before that committee, which reported the bill to councils with a negative recommendation, and, after discussion in councils, pro and con, the report of the committee was adopted, and the ordinance failed to pass.</p> <p>14. Since May 1, 1900, neither the plaintiffs nor those on behalf of whom they sue, have either individually or collectively made any contribution whatever for the payment of the rent and cost of maintenance of the city armory.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 76, Jan. T., 1902, by defendant, from order of C. P. No. 1, Pliila. Co., June T., 1900, No. 1165, refusing to take off nonsuit in case of Frank H. Wieder v. Bethlehem Steel Company.</p> <p>Trespass to recover damages for personal injuries. Before Biddle, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial plaintiff was asked this question:</p> <p>“Q. Very well, I will change the form of the question. When did your employment by the Bethlehem Iron Company cease and you become an employee of the Bethlehem Steel Company? A. On the last day of April, 1899, I ceased to be employed by the Bethlehem Iron Company, and on the first day of May, 1899, I went into the employment of the Bethlehem Steel Company by reason of a lease.”</p> <p>Mr. Johnson : I ask that that shall be stricken out. He says that on the last of April he went out of the employ of one company and went into the employ of another one by reason of a lease. I ask that that statement shall be stricken out because the witness cannot testify as to that.</p> <p>The Court: No, he cannot testify as to that.</p> <p>Defendant’s motion allowed. Exception. [1]</p> <p>“ Q. Do you know that you were transferred as an employee by the Bethlehem Iron Company to the Bethlehem Steel Company in any way outside of the lease ? A. Yes, sir. I knew it before the time came. I knew it before the first day of May that I was going over, because all the papers of Bethlehem announced it.”</p> <p>Mr. Johnson : I ask that that be stricken out.</p> <p>The Court: Motion allowed. Exception. [2]</p> <p>“ Q. What date do you refer to? A. The first of May — the day that the papers announced that the change would take place.”</p> <p>Mr. Johnson: I ask that that be stricken out. Motion allowed.</p> <p>“ Q. On what date did the change take place ? A. May 1, 1899. Q. What other evidence did you see ? A. I saw the names on the locomotives changed from the Bethlehem Iron to that of the Bethlehem Steel Company.”</p> <p>Mr. Johnson : I object to the question, “ What date did the change take place ? ” and ask that the answer be stricken out.</p> <p>Motion allowed. Exception. [8]</p> <p>“ Q. Were the names on anything about these works changed about the 1st of May, 1899, for the first time to indicate to you that there was a change of employer ? ”</p> <p>Objected to by Mr. Johnson. Objection sustained. Exception. [4]</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was the order of the court refusing to take off nonsuit.</p>

<p>Appeal, No. 154, Jan. T., 1902, by plaintiff, from order of C. P. No. 5. Phila. Co., March T., 1901, No. 148, refusing to off take nonsuit in case of George W. Evans and Sarah E. Evans, his Wife, v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Corporations — Stock certificates — Power of attorney to transfer title.</p> <p>A certificate of stock with a power of attorney to transfer, duly executed but in blank as to date and name of transferee, is in the position of merchandise prepared for market. That is the way sales and transfers of stock are usually made, and the presumable intent of executing the power to transfer, is to put the holder in position to complete a sale by delivery of the certificate and transfer of the stock. Such transfer carries prima facie good title. The business of a stockbroker is to buy and sell stock, and when a certificate and power to transfer are put into a broker’s hands, the situation is exactly analogous to that of goods or merchandise of any kind, prepared for market, and put into the hands of a dealer in that particular article. The presumption which would arise in the case of an ordinary agent or holder is reinforced by the nature of this particular agent’s business.</p> <p>The rights of a bona fide holder, as against the true owner of the stock, to whom the apparent owner has either sold or pledged, do not depend on a negotiable character in the certificates, but rest on another principle ; namely, that one who has conferred upon another by a written transfer all the indicia of ownership of property, is estopped to assert title to it as against a third person, who has in good faith purchased it for value from the apparent owner.</p> <p>If an owner of stock voluntarily gives to his brokers certificates of stock owned by him, but standing in the name of other parties with blank assignments, and power to make transfers endorsed by the registered owners, and the brokers betray the confidence reposed in them, the owner of the certificates must suffer the loss rather than innocent strangers whose money the brokers were thereby enabled to obtain. The principle applies to pledges of stock, and one who purchases from the pledgee may hold against the pledgor ; and if the pledgee pledge it to secure payment of his own debt, the second pledgee may hold it as security till his debt be paid.</p>

<p>Vendor and vendee — Parol eontraet — Measure of damages — Statute of frauds.</p> <p>An action may be maintained for the breach of parol contract for the sale of land, but damages in such an action are limited to the recovery of the purchase money paid or the value of the consideration given, and the expenses incurred, and do not include the loss of the bargain.</p> <p>Attorney at law — Scope of authority — Sale of land.</p> <p>An implied authority of an attorney at law in this state is very broad as to those things which arise in the regular coui'se of litigation and pertain to the conduct of an action, but he is without authority to compromise an action or to accept land instead of money in satisfaction of a judgment. His authority cannot by implication be extended to authorize the sale of his client’s land in payment for services to be rendered.</p>

<p>Appeal, No. 86, Jan. T., 1903, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dee. T., 1897, No. 945, on verdict for defendant in case of Patrick Dowd v. Alexander Crow, Jr.</p> <p>Trespass for wrongful distribution of the proceeds of sheriff’s sale. Before McCarthy, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial binding instructions were given for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

Appeal, No. 276, Jan. T., 1902, by defendant, from decree of C. P. No. 5, Phila. Held: in favor of the said consolidation with the Baltimore & Potomac Railroad Company. 9.

Appeal, No. 285, Jan. T., 1902, by-plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1901, No. 4127, discharging rule for judgment for want of a sufficient affidavit of defense in case of Robert G. Gamble, Trustee of Hugh B. McKean, a Bankrupt, v. Mark Elkin etal., trading as Elkin & Company. Assumpsit by a trustee in bankruptcy to recover the amount of an alleged preference. The record disclosed a statement of claim and two amended statements of claim.

<p>Appeal, No. 164, Jan. T., 1902, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1898, on verdict for plaintiff in case of Lemuel A. White v. John Gunn.</p> <p>Issue to determine the ownership of personal property seized and taken in execution.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 90, Jan. T., 1902, by plaintiff, from judgment of C. P. No. 1, Pliila. Co., Dec. T., 1899, No. 473, refusing to take off nonsuit in case of James M. Sea-bury v. Fidelity Insurance Trust & Safe Deposit Company et al., Executors of Andrew M. Moore, Deceased.</p> <p>Assumpsit to recover commissions for selling real estate.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were (1, 2) refusal to admit in evidence records of the orphans’ court and the Supreme Court, showing decrees of specific performance against the defendants, and in favor of John J. McDevitt; (4) refusal to take off nonsuit.</p>

<p>Appeal, No. 334, Jan. T., 1902, by Isaac Thomas surviving executor of Lydia F. Dutton, deceased, from, decree of O. C. Del. Co., overruling exceptions to auditor’s report in estate of Lydia F. Dutton, deceased.</p> <p>Exceptions to report of J. T. Reynolds, Esq., auditor.</p> <p>The case involved the validity of a promissory note partly printed and partly in writing in the following form:</p> <p>“$360000/-^oo Chester, Pa., April 3, 1893.</p> <p>“ One day after date, I promise to pay to the order of George G. Dutton</p> <p>at the Delaware County National Bank Thirty-six Hundred dollars</p> <p>This to he held until after my death, without defalcation, value received.</p> <p>(Signed) “Lydia F. Dutton.”</p> <p>The facts of the ease are set forth at length in the opinion of the Supreme Court.</p> <p>JErrors were in overruling exceptions to auditor’s report.</p>

<p>Appeal, No. 335, Jan. T., 1902, by Isaac Thomas, surviving executor of Lydia Thomas, deceased, from judgment of C. P. Del. Co., June T., 1899, No. 53, on verdict for plaintiff in case of George G. Dutton v. Isaac Thomas, Surviving Executor of Lydia F. Dutton, Deceased.</p>

<p>Appeal, No. 92, Jan. T., 1902, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1900, No. 547, on verdict for plaintiff in case of William Sharpley v. Thomas H. Wright.</p> <p>Trespass to recover damages for personal injuries. Before McMichael, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,750. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Appeal, No. 151, Jan. T., 1902, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., June Term, 1898, No. 955, refusing to take off nonsuit in case of Thomas Brennan, a Minor, by his Father and Next Friend, Thomas F. Brennan, and Thomas F. Brennan, and Ella J. Brennan as the parents of Thomas Brennan, a Minor, v. Merchant & Company, Incorporated.</p> <p>Trespass to recover damages for personal injuries. Before McCarthy, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 58, Jan. T., 1902, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1901, No. 2869, on verdict for plaintiff in case of Kate R. Boulden, Administratrix of Frank R. Boulden, Deceased, v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for death of Frank R. Boulden. Before Davis, J.</p> <p>At the trial the court overruled an offer of defendant’s counsel to prove by John C. Van Rodan, and by the documents by him to be produced, that Frank R. Boulden, the decedent, to recover for whose death the said action was brought, was a member of the Pennsylvania Railroad Voluntary Relief Department ; that as such he had agreed to be bound by the regulations of said department; that as a member of such department said Frank R. Boulden had directed that the benefits payable upon his death should he paid to his mother, Madeline Boulden; that said Boulden agreed in the stipulations signed by him that the acceptance of benefits from the relief fund for injury or death should operate as a release of all claims for damages against the company defendant arising from such injury or death; that after the death of said Boulden the claim for death benefits was made by the beneficiary, to wit: his mother, Madeline Boulden, who was one of the persons entitled to damages (if any) under the acts of assembly of the state of New Jersey; that a release by the said Madeline Boulden was duly executed on the payment and receipt by her of the sum of $500, to which she, as the beneficiary named by the decedent as a member of the second class of the relief association, was entitled; furthermore that the company defendant paid all the expenses of the relief association amounting to $130,000 annually; that the said company is responsible for any deficiencies, without which contribution and guarantee the relief association could not exist ; that the members of the relief association number 60,000; and that the foregoing offers were proposed to be followed by putting in evidence the regulations of the relief department and also the other papers produced by the witness. [1]</p> <p>The court refused binding instructions for the defendant. Verdict for plaintiff for $15,500. Judgment was entered for $12,000, all above having been remitted. Defendant appealed.</p> <p>Errors assigned among others were (1) rulings on evidence, quoting the bill of exceptions; (4) refusal of binding instructions for defendant.</p>

<p>Negligence — Street railways — Overcrowding of cars.</p> <p>Where a street railway company permits its ears to be overcrowded, additional care and precaution must be exercised by the conductor and motorman to protect the passengers against resultant danger.</p> <p>A street railway company cannot invite or permit passengers to board its cars beyond their normal capacity and not be responsible for danger which necessarily results from their overcrowded condition. If a passenger is permitted to enter a car having no vacant place except on the platform and the conductor accepts his fare, he is justified in standing on the platform if he exercises proper care in doing so; and by receiving him the carrier undertakes and gives him assurances that it will take care of him and guard him against accident as far as the circumstances permit.</p> <p>In an action against a street railway company by a passenger to recover damages for personal injuries, the evidence for the plaintiff, although contradicted in many particulars, tended to show that when plaintiff entered the car, he took a seat, and that subsequently he arose and gave Ms seat to an elderly woman and stood in the aisle near the front door. After-wards the car became very much crowded, and plaintiff, at the conductor’s request, went out upon the front platform and stood on the extreme end of one side of it, supporting himself by holding the brass bar under the window. While in this position the car was run very rapidly over the tracks of a steam railroad and down a grade from the tracks. The conductor who had preceded the car at the crossing, jumped upon the front steps on the side opposite to where the plaintiff was standing, and in doing so pushed other passengers who were on the platform, against the plaintiff, causing him to lose his hold on the bar, and fall under the wheels of the car. Held, that the case was for the jury, and that a verdict for plaintiff should be sustained.</p>

Appeal, No. 250, Jan. T., 1902, by William J. Chaninel, mortgagor, and Edward D. Chaninel, real owner, from order of C. P. No. 2, Phila. Co., Dec. T., 1901, No. 4198, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Michael A. Lengert v. William J. Chaninel and Edward D. Chaninel. Scire facias sur mortgage. Rule for. judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 127, Jan. T., 1902, by John E. Wightman, from order of C. P. No. 1, Phila. Co., Dec. Term, 1901, No. 4098, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Isaac S. Sharp, Executor of Jane A. Wightman, Deceased, v. John E. Wight-man.</p> <p>Assumpsit on promissory notes.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The averments of the affidavit of defense are set forth in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 210, Jan. T., 1902, by plaintiff, from judgment of G. P. No. 4, Phila. Co., June T., 1901, No. 2395, on verdict for defendant in case of Howard Kessler by his father and next friend, Wiliam J. Kessler and William J. Kessler, in his own right, v. Gustav Berger.</p> <p>Trespass for personal injuries to a boy thirteen years old. Before Audenried, J.'</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>At the trial the court directed a verdict for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Bond — Presumption of payment — Insolvency of debtor.</p> <p>Mere poverty or insolvency of an obligor in a bond, is not sufficient to rebut a presumption of payment after twenty years, unless it is such as to have created a continued inability to pay during the whole of that time. Proof of the insolvency of the debtor alone will not rebut the presumption of payment, much less will proof that during only a part of the time he was unable to meet other obligations, be effective.</p> <p>The presumption that a bond twenty years from its maturity has been paid is not rebutted by payments alleged to have been on account of the bond, but shown to have been on other accounts, and by the insolvency of the obligor, when such insolvency is not complete and continuous during the whole period.</p> <p>Practice, G. P.— Trial — Exceptions.</p> <p>When the court on motion has stricken out the testimony of a witness, and no exception is taken at the time, the court cannot after a nonsuit has been entered, and the case ended, note an exception to the striking out of the evidence.</p>

Appeal, No. 195, Jan T., 1903, by defendants, from judgment of C. P. No. 3, Pbila. Co., Dec. T., 1899, No. 664, on verdict for plaintiff in case of Nathaniel Duffy, by his Mother and Next Friend, Mary Madden, v. Ammon Platt and Adolphus C. Platt, trading as A. Platt & Son. Trespass for personal injuries. Before Finletter, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,500. Defendant appealed.

<p>Appeal, No. 256, Jan. T., 1902, by-Isaac B. Barrett, receiver of tbe Order of United Friends, from order of O. P. No. 2, Phila. Co., March T., 1899, No. 675, dismissing exceptions to auditor’s report in case of Charles G. Frowert v. Hannah Blank et al.</p> <p>Exceptions to report of auditor Charles Henry Jones, Esq.</p> <p>Tbe facts appear by the opinion of tbe Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 212, Jan. T., 1902, by defendants, from judgment of <5. P. No. 5, Phila. Co., Sept. T., 1901, No. 1720, on verdict for plaintiff in case of Mary Finnerty v. George Burnham, William P. Henszey, John H. Converse, William L. Austin, Samuel M. Vauclain, Alba B. Johnson and George Burnham, Jr., trading as Burnham, Williams & Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Ralston, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for 110,000. Defendants appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Negligence — Municipalities—Role in street — Fright of horse — Proximate cause.</p> <p>In an action against a city to recover damages for personal injuries, it appeared that plaintiff’s horse was frightened by stepping into a hole in the asphalt surface of a street, and ran away. Within a square the plaintiff had got the horse partly under control when the carriage collided with a wagon which was in the street, breaking a wheel of the carriage and overturning it. Plaintiff testified that when the horse stepped into the hole, she was about to cross a street and pass in front of a market house where the passageway for vehicles was narrowed by wagons backed against the curb, that she was driving carefully looking ahead to avoid vehicles, and did not see the hole, and could not see it because of the wagons in front of her, that she looked where she was driving, but could not watch both the surface of the street and the wagons ahead. Held, that a nonsuit could not be sustained either on the ground of the contributory negligence of the plaintiff in not seeing and avoiding the hole, or on the ground that the defect in the street which caused the fright of the horse was not the proximate cause of the plaintiff’s injury.</p> <p>The test of proximate cause is whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause.</p>

<p>Appeals, Nos. 273 and 274, Jan. T., 1902, by plaintiff, from order of C. P. No. 3, Pliila. County, March T., 1900, Nos. 189 and 190, refusing to strike off nonsuit in cases of Elizabeth Clark and Nellie Clark v. Philadelphia.</p>

<p>Practice, C. P. — Trial—Evidence.</p> <p>On the trial of an accident case it is not good practice to permit witnesses to give distances and to indicate the position of a person by reference to objects in the court room, without anything going on the record as to distances and positions to aid the appellate court in reviewing the case.</p> <p>Negligence — Use of sidewalk — Obstruction of pavement — Nuisance—Child of tender years.</p> <p>Abutting owners have no right to use the pavements of a city street as a storage ground. The streets of a city are for the purpose of transit and except for temporary use it is illegal to obstruct them.</p> <p>Children wherever they go must be expected to act upon childish instincts and impulses; others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment, might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.</p> <p>Where the owner of a slate factory permits slabs of slate to remain for a long time on the pavement leaning against the factory, and a boy seven years old climbs up alongside of and leans against a slab which topples over and injures him, the owner of the factory is liable for the injuries sustained by the boy; and this is the case even if the slab stood within the building line, and whether the space between the building line and the street line was or was not paved.</p>

<p>Appeal, No. 104, Jan. T., 1902, by-defendant, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1900, No. 256, on verdict for plaintiff in case of Mary A. Merigan v. John McGonigle, Executor of Mary Fitzgerald, Deceased.</p> <p>Assumpsit to determine the ownership of a deposit in a savings bank. Before Bettler, J.</p> <p>At the trial it appeared that Mary Fitzgerald, a widow, aged about sixty years, in August, 1889, opened an account with the Philadelphia Saving Fund Society, in her own name, by depositing the sum of $300 in cash. On December 13, 1889, she also opened an account with the same saving fund by depositing the sum of $300, and marked the account “ In trust for Mary Agnes Fitzgerald.” At the time she was the stepmother of Ellen Fitzgerald and Mary Fitzgerald, and acted in the relation of mother to Mary King, a niece, known as Mary Agnes Fitzgerald, and Mary Hyland. All five of these parties lived in the same house, and the same was managed and supported by Mary Fitzgerald, the elder. She further deposited in said accounts the sum of $300 each year (excepting the year 1891) up to and including the year 1897. These deposits as made each year were made in both accounts on the same day. There were no withdrawals in the accounts, and the other items therein consisted of the yearly allowance of interest.</p> <p>Mary Fitzgerald, the elder, died June 9,1899, and during the whole of her lifetime kept possession of the bank books of these accounts. Under the rules of the saving fund society not more than $300 may be deposited in one year in any one account,</p> <p>Mr. Loughlin stated that he offers to prove by, Ellen MeDougall that she had conversations with Mrs. Fitzgerald after this account was opened, wherein Mrs. Fitzgerald stated to her that the purpose of her account was to obtain double interest.</p> <p>Objected to on the ground that there is no testimony that at the time the alleged conversations were had the plaintiff was present, and upon the second ground that a trust having been created could not be revoked by any such conversations. [3]</p> <p>Counsel then stated that the offer was to be followed up by other evidence, showing that at no time was the deposit book ever handed to the plaintiff in this case, and that she obtained possession of it after the death of this decedent.</p> <p>Objection sustained. Exception to defendant. [4]</p> <p>Mr. Loughlin also offers in evidence the will of Mary Fitzgerald.</p> <p>Objected to as irrelevant. Objection sustained. Exception to defendant. [5]</p> <p>Mr. Loughlin states that he desires to supplement the offer by producing the orphans’ court record to show that Mrs. Merigan participated in the distribution of this estate under the executor’s account.</p> <p>It is admitted that the plaintiff in this case receipted for an equal portion of the estate of Mary Fitzgerald willed to her as Mary King.</p> <p>The court refused binding instructions for defendant. [2]</p> <p>Errors assigned were (2) above instructions, quoting it; (3-5) rulings on evidence, quoting the bill of exceptions.</p>

<p>Municipal contracts — Written contracts — City of Philadelphia — Act of June 1, 1885, article Id.</p> <p>Article 14 of the act of June 1, 1885, relating to the city of Philadelphia, which requires that “ all contracts relating to city affairs shall be in writing, signed and executed in the name of the city,” is not merely directory, but mandatory, and unless it is strictly complied with there can be no liability imposed upon the city.</p> <p>Where a municipal contractor submits a bid to the city of Philadelphia, and the bid is accepted, but the city subsequently refuses to enter into any written contract in the matter, the contractor can maintain no suit against the city for a breach of contract.</p>

<p>Payment — Evidence—Burden of proof.</p> <p>Where in proceedings before an auditor appointed to distribute the proceeds of the sale of an assigned estate of an insolvent corporation, a married woman establishes by competent proof that she had loaned money to the corporation, and the auditor finds this as a fact, the burden of showing payment of the debt is on those alleging it; and the positive evidence of the woman and her husband that the debt had not been paid is not overcome by entries in the books of the corporation against the woman made by the defaulting bookkeeper or treasurer of the company, which entries did not show upon what account the payments were made.</p>

<p>Statute of limitations — Set-off—Assumpsit.</p> <p>Where the statute of limitations may be successfully set up against a claim sought to be enforced in an action of assumpsit, it may also be set up against the same claim when it is sought to be used as a set-off.</p> <p>Statute of limitations — Trust—State hospital for insane.</p> <p>Where a county pays money to the trustees of a state hospital for the insane, and the money is applied to the use of the hospital, and the county subsequently alleges that the payment was made by mistake on the part of the county, and by reason of the fraudulent concealment of the facts by the trustees, the county must institute its action to recover the money within six years, or otherwise be barred by the statute. In such a case the money continues to belong to the county, and is not held by the trustees for public purposes.</p> <p>Statute of limitations — Fraud—State hospital for insane — Acts of June 13, 1883, F. L. 92 and May 21, 1889, P. L. 258.</p> <p>The officers of the 'state hospital for the insane for the southeastern district of Pennsylvania between the years 1885 and 1889, submitted to the county of Philadelphia bills for the maintenance of indigent insane, based on a construction of the act of 1883, made by themselves. These bills were paid. After the passage of the act of 1889, the bills were made out strictly in accordance with the latter act, and were rendered for each quarter without reference to any prior quarter. The bill had attached to it a certificate and affidavit stating that no part of the amount due for the quarter named in the bill had been paid, and that there was no deduction or set-off against it to which the county was entitled to a credit. In a suit by the hospital against the county brought more than six years after 1889, the county endeavored to set off overpayments alleged to have been made by reason of the wrongful construction of the act of 1883. The county claimed the certificate and affidavit attached to the bills rendered after 1889, and before the statute of limitations had run were false in stating that the county was not entitled to any set-off. The evidence showed that the bills rendered between 1885 and 1889, and the reports of the hospital, made no concealment of the rate charged, and there was no evidence of any other concealment by the officials of the hospital. Held, that the claim of the county was barred by the statute of limitations.</p>

Appeal, No. 153, Jan. T., 1902, by defendants, from order of C. P. Lancaster County, Feb. T., 1900, No. 85, making absolute rule for… Held: even in case of a voluntary bond, there being no act of assembly which compelled one to be given, that “ an omission on the part of the accounting officers of the commonwealth for a year and upwards to compel the prothonotary of the common pleas to settle his account of fees does not discharge the sureties on the official bond of the…

Appeal, No. 149, Jan. T., 1902, by defendants, from order of C. P. Lancaster Co., Feb. T., 1900, No. 85, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lancaster County v. Emanuel H. Hershey, C. H. Hershey, Amos Hershey, Jacob L. Brubaker and Joel S. Eaby.

<p>Appeal, No. 1, Jan. T., 1903, by defendant, from judgment of C. P. Montgomery Co., Oet. T., 1901, No. 122, on verdict for plaintiff, in case of Commonwealth to use of Montgomery County v. Edward J. Jitnison et al.</p> <p>Assumpsit on a bond of suretyship. Before Weand, J.</p> <p>The defendant filed the following demurrer to the statement :</p> <p>1. The plaintiff’s statement fails to show that Jacob L. Loper, the alleged tax collector, was elected to said office according to law or ever became such collector de jure.</p> <p>2. The statement shows that the alleged bond, signed by demurrants, was not approved according to law and, therefore, never became effectual.</p> <p>3. Upon the face of the bond it was not given in accordance with the act of assembly in such case made and provided.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the court directed a verdict in favor of the plaintiff.</p> <p>Verdict and judgment for plaintiff for $4,732.68. Defendant appealed.</p> <p>Errors assigned were (2) in giving binding instructions for plaintiff; (4) in overruling demurrer.</p>

Appeal, No. 2, Jan. T., 1903, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1901, No. 121, on verdict for defendant in case of Commonwealth to use of Montgomery County v. American Bonding & Trust Company and Jacob L. Loper. Assumpsit upon a bond of suretyship. Before We AND, J. The opinion of the Supreme Court states the case. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 193, Jan. T., 1902, by defendants, from decree of C. P. Schuylkill Co., July T., 1900, No. 5, on bill in equity in case of J. M. Beatty et al. v. J. M. Harris et al. Bill in equity for an account. Motion to quash appeal. From the record it appeared that Mark, J., filed an adjudication, and a decree based thereon. No exceptions were filed to the adjudication or the decree. Errors assigned were different paragraphs of the decree, quoting them.

Appeal, No. 318, Jan. T., 1902, by defendant, from order of C. P. Montgomery Co., June T., 1902, No. 88, dismissing exceptions to findings of fact and conclusions of law of court and entering final judgment in favor of plaintiff in case of John Meigs v. The President & Directors of the Insurance Company of North America. Assumpsit to recover from the defendants their pro rata share of loss by fire upon a wing of the Hill school at Potts-town and its contents.

<p>Criminal law — Murder—Insanity.</p> <p>Where on the trial of an indictment for murder, the evidence shows beyond doubt that the killing was premeditated and deliberate, and the defense is that the prisoner at the time was suffering from delirium following typhoid fever, and the court instructs the jury that if the prisoner was laboring under such form of insanity at the time of the killing, and that it was of such a degree as to blind him to the natural consequences of his moral duty and to destroy his perceptions of right and wrong, he was wholly unaccountable, the prisoner has no standing to complain of a verdict of guilty of murder of the first degree.</p> <p>Criminal law — Murder—Evidence—Laymen as witnesses.</p> <p>On the trial of an indictment for murder where the defense is insanity, laymen who are called as witnesses for the commonwealth, after stating their opportunities of knowledge, may be permitted to state that they saw nothing in the conduct of the prisoner which indicated to them unsoundness of mind.</p> <p>Criminal law — Murder—Separation of jury — Barber.</p> <p>While it is reprehensible practice to permit jurors during a murder trial to separate so far as to go to a barber shop, although under charge of an officer, yet if there is no evidence at all of communication on the part of outsiders with the separated jurymen by reason of this separation, a verdict of guilty of murder of the first degree will not be set aside.</p>

<p>Street railway — Borough—Municipal consent to use of street — Conditional consent — Extension—Laches.</p> <p>Where a borough grants to a street railway company die right to the use of a street in the borough, but coupled with the express condition that the right shall be forfeited if the company does not within one year build a certain particularly described extension, the borough has a right to compel a removal of the tracks from the street if within one year the extension has not been constructed.</p> <p>In such a case the borough cannot be convicted of laches by an indulgence as to time in commencing proceedings, where the delay leads to no change in the situation to the prejudice of the railway company.</p>

Appeal, No. 254, Jan. T., 1902, by plaintiff, from decree of C. P. Scliuylkill Co., Nov. T., 1900, No. 1, on bill in equity in case of Minersville Borough v. Schuylkill Electric Railway Company and the Pottsville Union Traction Company. Bill in equity for an injunction. The facts appear by the report of Minersville Borough v. Schuylkill Electric Railway Company and the Pottsville Union Traction Company (No. 1), ante, p. 394.

<p>Appeal, No. 326, Jan. T., 1902, by plaintiff, from judgment of C P. Cameron County, Feb. T., 1901, No. 13, on trial by court without a jury in case of American Pig Iron Storage Warrant Company v. Sinnemahoning Iron & Coal Company and Fred W. Yentzer.</p> <p>Replevin for pig iron.</p> <p>Ma.yer, P. J., filed the following opinion :</p> <p>FINDINGS OF FACT.</p> <p>We find the following facts:</p> <p>1. On April 19, 1899, the Sinnemahoning Iron & Coal Company leased its coal and iron property, consisting of about 10,000 acres of land, on which were coal mines, coke ovens, and a blast furnace, to Frank B. Baird for a period of three years, at a minimum annual rental of $14,000, payable quarterly, on October 20, January 20, April 20, and July 20, including all rents earned on the first days of these months, respectively, and the lessee took possession of the premises under the lease.</p> <p>2. On December 21, 1899, Frank B. Baird assigned the lease to Chester R. Baird.</p> <p>3. Chester R. Baird assigned the lease or sublet the demised premises to a New Jersey corporation, called the Emporium Furnace Company, and a large amount of pig iron was made under the management of this company on the demised premises and placed in its yard near its cast house and furnace from day to day as it was made, said yard being part of the demised premises.</p> <p>4. On July 25,1900, and August 24, 1900, the Emporium Furnace Company entered into three leases with the American Pig Iron Storage Warrant Company, a New Jersey corporation, subleasing to it three contiguous pieces of the demised premises lying near the cast house, and embracing that part of the yard where it had piled pig iron. There was then on the ground so sublet upwards of 7,000 tons of pig iron.</p> <p>5. The Emporium Furnace Company continued to manufacture pig iron after this subletting, and substantially all they made was carried from the cast house to the land sublet to the storage warrant company and there piled.</p> <p>6. On October 29,1890, when the first landlord’s warrant was issued, there were about 11,000 tons of pig iron altogether on this storage lot.</p> <p>7. The storage company issued warrants for all this iron to C. R. Baird, who claimed to have bought it from the Emporium Furnace Company, and the warrants so issued were pledged by C. R. Baird to banks as collateral for his notes prior to the issuing of the landlord’s warrant, October 29, 1900.</p> <p>8. On October 29, 1900, there was due to the Sinnemahoning Iron & Coal Company, from Frank B. Baird as rent on the lease, $7,536.36, and on that day a landlord’s warrant was issued and 1,500 tons of pig iron in the storage company’s yard was distrained for rent. The iron so distrained was on the premises leased by the Sinnemahoning Iron & Coal Company to Frank B. Baird, and the warrant was issued against Frank B. Baird as tenant.</p> <p>9. After distraint, and before sale on the landlord’s warrant, the American Pig Iron Storage Warrant Company brought replevin for the iron so distrained.</p> <p>10. It appears that C. R. Baird is a brother of Frank B. Baird; that C. R. Baird & Company is C. R. Baird; that the Emporium Furnace Company is Frank B. Baird, C. R. Baird, and a clerk of C. R. Baird & Company. It further appears that C. R. Baird furnished the capital and management of the Emporium Furnace Company; that he arranged with the storage company to lease the ground and accept the iron; that he directed the iron to be put in the storage yard, and also directed when it was to be taken out.</p> <p>11. Possession was taken by the lessee, Frank B. Baird, of the entire demised property, the blast furnace put into operation, and upwards of 11,000 tons of pig iron made and piled on the leased premises prior to the distraint.</p> <p>12. The rent for the month of October, 1900, was distrained for and an agreement made, by which the iron seized, was released, and the same questions being raised under that distress as are in this case, the result of that distress is to depend upon the result of this case, and if a recovery is had by the landlord, the amount of the rent due on the second distraint, which is $1,732.94, shall be included in the recovery in this case.</p> <p>13. There was due and unpaid on the demised premises seated taxes in Lumber township for the year 1900, amounting to $190.56 and in Emporium borough, seated taxes on the demised premises, amounting to $867.29, and the unseated taxes for Lumber township for the year 1900, amounting to $386.54, and for Shippen township the unseated taxes for 1900, amounting to $229.73, which the lessee obligated himself to pay.</p> <p>14. The leases to the American Pig Iron Storage Warrant Company by the Emporium Furnace Company were never recorded, nor were they assented to by the Sinnemahoning Iron & Coal Company, nor ratified by them in any way.</p> <p>CONCLUSIONS ON LAW.</p> <p>1. The evident intent and purpose of the lease between the Sinnemahoning Iron & Coal Company and Frank B. Baird, dated April 19,1899, was to enable the lessee to take possession and assume control of the entire demised premises and utilize the same for the purpose of making pig iron. It was not within the contemplation of the parties that the said lessee would sublet a portion of the demised premises to another corporation for the purpose of carrying on an independent business in no way necessarily connected with the business contemplated by said lease.</p> <p>2. The general rule is that whatever goods and chattels the landlord finds upon the demised premises, whether they belong to the tenant, under tenant, or a stranger, are distrainable by him for rent: Kessler v. McConachy, 1 Rawle, 435; Price v. McCallister, 3 Grant, 248; Karns v. McKinney, 74 Pa. 387; Kleber v. Ward, 88 Pa. 93; Whiting v. Lake, 91 Pa. 349; Murphy v. Borland, 92 Pa. 90; Page v. Middleton, 118 Pa. 546.</p> <p>To this general rule are exceptions: First, fixtures which are annexed to the freehold and become part of it; second, * chattels placed on the premises “ to be wrought, worked up, or managed in the way of the tenant’s trade or employment,” as in the case of a tailor, warehouse keeper, boarding house keeper, and livery stable, etc.</p> <p>In Brown v. Sims, 17 S. & R. 138, it was held that “the goods of a third person placed, in the way of trade, on storage in the warehouse of one who used the trade and business of a merchant, and received goods and merchandise from merchants and traders on storage, are not liable to distress for rent for such warehouse, though found on the premises.”</p> <p>In this case Justice Gibson said: “ Where the course of the business must necessarily put the tenant in possession of the property of his customers, it would be against the plainest dictates of honesty and conscience to permit the landlord to use him as a decoy and pounce upon whatever should be brought within his grasp, after having received the price of its exemption in the enhanced value of the rent. ... To take goods on storage, though not the appropriate business of our merchants, is of such common occurrence as to furnish an intendment that it enters into the consideration of the parties to every lease of a warehouse. The landlord knows that it is to be used for the general purposes of trade, and as this sort of bailment usually forms a part of the business of commerce, we are bound to say the parties had regard to it as one of the usages of trade, and the landlord must, therefore, be considered as having waived his privilege in this particular instance.”</p> <p>In the present case it is not pretended or claimed that when the lease was made between the parties that they had in view the subletting of these premises to the storage company for the purpose of storing iron made at said furnace.</p> <p>3. “ The goods of a subtenant are liable to be distrained for rent of the original tenant, under whom he claims, and who has surrendered his lease in the middle of the term: ” Hessel v. Johnson, 45 Legal Int. 474.</p> <p>“A subtenant cannot compel the lessor to sell the goods of the original lessee, in satisfaction of the rent in arrears, before having recourse to his own : ” Jimison v. Reifsneider, 97 Pa. 136.</p> <p>“ The goods of one who entered under the lessee are liable to be distrained for the rent reserved, though he hold over after the determination of the lease : ” Whiting v. Lake, 91 Pa. 349.</p> <p>The goods of a stranger in the possession of the tenant, as a matter of favor and without hire, are not exempt from distress for rent: ” Page v. Middleton, 118 Pa. 546.</p> <p>Under the authority of these cases our conclusion is that the pig iron piled in the storage yard of the American Pig Iron Storage Warrant Company does not come within any of the exceptions to the general rule that property found on the demised premises is distrainable for rent.</p> <p>The court entered judgment for defendant.</p> <p>Errors assigned were in dismissing exceptions to adjudication, and in entering judgment for defendant.</p>

<p>Appeal, No. 183, Jan. T., 1902, by Mark Myers, trustee, from decree of O. C. Phila. Co., Oct. T. 1900, No. 250, removing trustee in estate of Simon S. Myers, deceased.</p> <p>Petition for removal .of trustee.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree removing trustee.</p>

Appeal, No. 194, Jan. T., 1902, by Anna M. C. Davis and Minnie King Bennett, from decree of O. C. Phila. Co., April T., 1889, No. 448, dismissing exception to adjudication in estate of Mary L. King, deceased. Exceptions to adjudication.

<p>Appeal, No. 198, Jan. T., 1902, by Michael Nelson Walsh, from decree of O. C. Phila. Co., July T., 1901, No. 292, dismissing petition for citation in estate of Ellen Mooney, deceased.</p> <p>Petition for citation.</p> <p>The petition averred as follows:</p> <p>1. That Ellen Mooney died on June, 29 1900, leaving a will as follows:</p> <p>“ Philadelphia, September 15th, 1899.</p> <p>“ I Ellen Mooney been of sound mind and clear understanding do bequeath all my property in the City of Philadelphia State of Pennsylvania and Atlantic City New Jersey both real and personal to Michael Nelson Walsh for his use and benefit during his life to be held in Trust by the Continental Title and Trust Company “ during his life and after his death to his lawful children until the youngest is 21 years then to be divided share and share alike if he has no lawful children at his death then the property is to be divided with my four sisters or their children and my brother or his children absolutely share and share alike.”</p> <p>2. That by the will a life estate is given to petitioner in both the real and personal estate.</p> <p>3. That petitioner as administrator filed his account and that the sum of $2,623.67, balance of personal estate, was awarded to the Continental Title & Trust Company, as trustee, that exception to the award was dismissed.</p> <p>4. That petitioner is instructed that he is entitled under the act of May 17, 1871, to the possession of the personal estate and he is desirous of having the same surrendered into his possession.</p> <p>5. That a citation should issue to show cause why the property should not be turned over to him on his entering the proper security therefor.</p> <p>The court dismissed the petition.</p> <p>Error assigned was the decree of the court.</p>

Petition, No. 35, Jan. T., 1903, by William Eonemus and Henry McElmoyle, for certiorari to the court of O. & T. of Carbon County, Oct. T., 1902, No. 6, and for change of venue in the case of Commonwealth v. William Eonemus and Henry McElmoyle. Petition for a certiorari and change of venue.

<p>Principal and agent — Broker—Commissions—Contract.</p> <p>A mere volunteer is not entitled to commissions though he brings the parties together and is the efficient means of producing the sale. Even a broker whose business it is to bring buyer and seller together must establish his employment as such, either by previous authority or by the acceptance of his agency and the adoption of his acts. The fact that a broker had previously made a sale and been paid a commission will not entitle him to commissions on a subsequent sale made by him on behalf of the same vendor, but without request or employment. And as a necessary corollary the employment must be to sell the thing for the sale of which commissions are claimed.-</p> <p>In an action to recover commissions where it appeal's that the plaintiff was employed to sell or find a purchaser for one of two tugs specifically named, and that the plaintiff brought to the defendant a person, who, after examining the two tugs named, rejected them, but afterwards purchased from the defendant a third -tug, as to which there was no agreement between plaintiff and defendant, plaintiff is not entitled to recover commissions on the sale of such tug. Holmes v. Neafie, 151 Pa. 392, distinguished.</p>

Appeal, No. 189, Jan. T., 1902, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1900, No. 637, refusing to take off nonsuit in case of William H. Brommer v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. Before Willson, J. At the trial it appeared that on August 17, 1900, plaintiff, a brakeman who was in the employ of the defendant, was injured in a collision while riding on the tender of a locomotive.

<p>Appeal, No. 208, Jan. T., 1902, by James Potter, guardian of Mary Lyman Sturgis and Henrietta Howard Boit Sturgis, from decree of O. C. Phila. Co., Jan. T., 1902, No. 133, dismissing petition for partition in estate of Susan B. Sturgis, deceased.</p> <p>Petition for partition.</p> <p>The material portion of the will of the testatrix is quoted in the opinion of the Supreme Court. .</p> <p>The material portion of the will of Robert Sturgis, deceased, is as follows:</p> <p>“ I give, devise and bequeath all of my property both real and personal of every kind and nature whatsoever and wheresoever situated which I now possess or to which I may hereafter become entitled, to my beloved wife, Marion Sturgis for life, with full power to dispose of the same by will, but if she should die without leaving any last will and testament, then I give, devise and bequeath all of my said property, on the death of my said wife, absolutely and in fee to such of our children who may be living at the time of her death, share and share alike, provided, however, that if any of our said children shall have died before the death of my said wife, leaving issue, the child or children of such deceased child, living at the time of the death of my said wife, shall be entitled to the share the parent would have taken if living, share and share alike.”</p> <p>The court in an opinion by Penrose, J., dismissed the petition.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 185, Jan. T., 1901, by plaintiff, from order of C. P. No. 8, Phila. Co., March T., 1900, No. 458, sustaining exceptions to auditor’s report in case of Emanuel Furth v. Gustav Stahl.</p> <p>Exceptions to report of A. M. De Haven, Esq., auditor.</p> <p>From the auditor’s report it appeared that on November 24, 1899, the firm of Stahl & Straub, composed of Gustav Stahl and Joseph H. Straub, stock brokers, suspended payments. On the following day Emanuel Furth, Esq., a member of the Philadelphia bar, was retained by Stahl. Shortly afterwards Stahl agreed to give to Mr. Furth a second mortgage on real estate to secure Mr, Furth’s fees for services in bankruptcy proceedings which were then in contemplation by creditors. The mortgage was executed on December 19, 1899, while the efforts of Mr. Furth were in progress to avoid the bankruptcy proceedings. The petition in bankruptcy was filed on December 28, 1899.</p> <p>The auditor in á long and elaborate report sustained the jurisdiction of the court in appointing the auditor, and also found that the mortgage was not a preference, and that the amount of it was not unreasonable.</p> <p>Exceptions to the auditor’s report were sustained by the court without an opinion filed.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report. ^</p>

<p>Insurance — Life insurance — Answers as io health — Evidence.</p> <p>In an action on a policy of life insurance, where the defense is that the insured made false answers to the questions put to him by the medical examiner as to his health, a physician called for the plaintiff cannot be asked on cross-examination whether a certain treatment of the disease of which the insured died was a proper treatment; nor can he be asked whether if he had been told by the applicant that shortly prior to the application, the applicant had consulted another physician for a cough and for night sweats, that fact would have had any effect with regard to passing the applicant as a first-class risk.</p> <p>Where an insured is alleged to have made false answers as to his health, and the insurance company in an action upon the policy has shown that the insured had consumption and was treated for it within the year preceding the application, it may show that the deceased had consumption within the year after the date of the policy, and died from consumption shortly after the expiration of that year.</p> <p>Insurance — Life insurance — Warranty—Act of June 23,1885, P. L. 134.</p> <p>Where an insured warrants the truth of the statements made in his application, and he sets forth in his application that he never had any spitting of blood or any serious illness, and the evidence offered by the insurance company in an action on the policy, tends to show that the insured had consumption during the year prior to the date of the policy, and died of that disease thereafter, it is the duty of the trial judge to instruct the jury that the statements contained in the application and alleged by the defendant to be false were material to the risk, and that if they were found to be false or untrue, would avoid the policy.</p>

Appeal, No. 232, Jan, T., 1902, by plaintiff, for decree of C. P. No. 8, Philadelphia County, March T., 1901, No. 2510, dismissing bill in equity in case of William J. Donoliugh v. Roseanna Lister and Susan Nichols. Bill in equity for an injunction. The facts appear by the opinion of the Supreme Court. Error assigned was the decree of the court.

<p>Appeal, No. 226, Jan. T., 1902, by defendant, front order of C. P. No. 2, Phila. Co., March T., 1902, No. 3119, discharging rule to open judgment in case of John B. Hunter, trading as J. B. Hunter & Company v. William F. Forsyth.</p> <p>Assumpsit on a promissory note.</p> <p>Rule to open judgment.</p> <p>From the record it appeared that judgment was entered for want of an affidavit of defense on May 16, 1902. Upon the following day defendant filed an affidavit of defense. The defendant subsequently secured a rule to open the judgment, and relied only on the affidavit of defense filed, which was as follows :</p> <p>Defendant avers that the said note was given by deponent without consideration and was given for accommodation of one Elworth B. Shearer, who was indebted or about to become indebted to the plaintiff. The said note was given to guarantee the indebtedness of said Shearer to the plaintiff; defendant avers that it was well known to said plaintiff that said note was given by defendant for the accommodation of said Shearer; plaintiff knew that the said note was given to guarantee the said Shearer’s indebtedness, and that Shearer was to pay the said note; that the defendant was never notified as to the fact or amount of said Shearer’s indebtedness and said plaintiff never brought suit against the said Shearer, and has never made any attempt to collect from the said Shearer money which may be due, if any money be due from said Shearer to said plaintiff.</p> <p>Defendant further avers that the indebtedness, to guarantee which the said note was given, was incurred by the sale and delivery of hardware by said plaintiff to said Shearer ; that defendant was induced to sign the said note and guarantee the said indebtedness of said Shearer to said plaintiff upon the faith of representations made to this defendant by the said Shearer, and concurred in by said plaintiff that the actual bona fide amount of the contract or indebtedness of said Shearer to said plaintiff was $1,353.25, viz: the amount of the note upon which suit is brought. Defendant subsequently has ascertained that the said Hunter and said Shearer unlawfully agreed together to add to the said contract or indebtedness of Shearer to said Hunter a certain sum, in fraud of this plaintiff’s rights, which this defendant is informed, believes and avers to be at least ten per centum of the actual bona fide indebtedness of said Shearer to said plaintiff, which fraudulent and fictitious sum being added to the actual indebtedness of said Shearer to said plaintiff makes the sum of $1,353.25 for which the defendant was induced to become a guarantor.</p> <p>Defendant further avers that the statement of claim filed by the plaintiff is insufficient to support a judgment in this case in this : That it does not appear from the plaintiff’s statement of claim filed that the note upon which plaintiff brings this suit was stamped with internal revenue stamps of the United States of America, as required by the act of congress in force on the date of the execution of said note, viz: March 20,1899; that the same not being stamped according to law is, under said act of congress, to be deemed invalid and of no effect.</p> <p>All of which is true, and defendant expects to be able to prove the same at the trial of the cause.</p> <p>The court discharged the rule to open the judgment.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 180, Jan. T., 1902, by plaintiff, from order of C. P. No. 1, Pbila. Co., Sept. T., 1901, No. 561, refusing to take off nonsuit in case of Charles W. Ackerman v. Union Traction Company. Trespass to recover damages for death of plaintiff’s son. Before Biddle, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 296, Jan. T., 1903, by-defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1902, No. 1085, entering judgment on demurrer to statement in ease of Bridgeman Brothers Company v. Thomas C. Swing and William H. Bateman, Jr., trading as Swing & Bateman.</p> <p>Demurrer to statement.</p> <p>The grounds of demurrer were as follows:</p> <p>1. Said statement fails to disclose a delivery of any goods or chattels by the plaintiff to the defendants.</p> <p>2. The statement of claim fails to show any liability on the part of the defendants or either of them.</p> <p>3. The alleged copy of plaintiff company’s book of original entry upon which the action is based fails to disclose any charge against the defendants by the plaintiff company.</p> <p>The court found that the statement was sufficient, and entered judgment in favor of the- plaintiff denying defendant’s request for leave to file an affidavit of defense on the merits.</p> <p>Error assigned was in overruling demurrer and entering judgment for plaintiff.</p>

<p>Negligence — Street railways— “ Stop, look and listen."</p> <p>The duty to look for an approaching street ear is an absolute duty, and failure to do so is negligence per se. This duty is not performed by looking when first entering on the street, but continues until the track is reached.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained at a street crossing at a point where the defendant company operated a double track railway, plaintiff testified that as he came up to the street he stopped his horse and wagon at a point about opposite the building line, and waited for an east-bound car upon the track nearest him to take on a passenger. While waiting there he looked up and saw a west-bound car approaching on the other track, a square away. He made no move until the ear going east had started off, and then he started his horse and wagon at a slow walk across the street, but did not look again for the approaching west-bound car, nor did he notice its position as he was entering upon the track in front of it, nor did he see it until after it struck his wagon. Held, that the court committed no error in giving binding instructions for defendant.</p>

<p>Appeal, No. 264, Jan. T., 1901, by plaintiff, from order of C. P. No. 3, Pliila. Co., Dec. T., 1900, No. 549, refusing alternative writ of mandamus in case of William Miller v. George W. Clement et al., School Directors of the Ninth School District of the city of Philadelphia.</p> <p>Petition for writ of mandamus.</p> <p>The petition for the writ as amended was as follows :</p> <p>That your petitioner is a resident, a citizen and a taxpayer of the city of Philadelphia and state of Pennsylvania, and resides at No. 2130 Market street in the said city.</p> <p>That your petitioner is the father of George Miller, who is fourteen years of age and who was, prior to the month of May, 1900, duly entered and admitted as a pupil in the Keystone Public School, at Nineteenth and Ludlow streets, Philadelphia, which is under the direction and control of the board of directors of the ninth school section of the said city.</p> <p>That said school is a free school provided under the public school laws of the state of Pennsylvania, and is supported by public taxation.</p> <p>That in May, 1900, certain charges were made by the principal of the said school against the said George Miller, to the school committee of the said board, and the said committee thereupon undertook to expel the said George Miller from the said school, and he was thereafter denied admission to the school by the principal and refused further instruction therein.</p> <p>That the said expulsion was by a committee of said board, consisting of three members thereof, and not by the board of directors themselves, and no examination nor hearing of the charges against the said George Miller was had before the said board as required by law.</p> <p>That the said committee gave an ex parte hearing only to the charges against the said George Miller and declined to hear witnesses on his behalf, and although the testimony of the witnesses heard was insufficient to convict him of refractory or incorrigibly bad conduct, they ordered his expulsion from the school.'</p> <p>That at the next meeting of the said board of directors, which was held June 28,1900, your petitioner requested that an examination and hearing in accordance with law should be given his said son, but no such examination nor hearing was given and no attention was paid by the board of directors to his request.</p> <p>That no further meeting of the board of directors was held until fall, when your petitioner repeated his said request, but no examination nor hearing has yet been given by the said board, and his son is still excluded from the said school.</p> <p>That under the school laws of this commonwealth, a board of school directors have power to suspend or expel a pupil only when found guilty on full examination and hearing of refractory or incorrigibly bad conduct, and your petitioner submits that they have no power to delegate the power thus vested in them to a committee or to any other person or body whatsoever.</p> <p>That the said George Miller has not been found guilty of refractory or incorrigibly bad conduct, after full examination and hearing, either before the said board of directors or before any committee thereof, and has therefore been illegally expelled and excluded from the said school.</p> <p>Your petitioner is without other adequate and specific remedy at law, and therefore prays your honorable court to award a writ of mandamus directed to the said defendants, commanding them to appear at a day certain, either to confess or deny the charges hereinbefore set forth, and if they confess the same, to order them to grant an examination and hearing before tho said board of directors to the said George Miller upon the charges made against him, or else readmit him as a pupil of the said school, in accordance with the rights of your petitioner.</p> <p>A rule to show cause was granted, an answer was filed, and subsequently the rule for the alternative mandamus was discharged.</p> <p>Error assigned was in discharging the rule, and in not awarding alternative writ of mandamus.</p>

Appeal, No. 266, Jan. T., 1902, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1901, No. 912, on case stated in suit of Warwick Iron & Steel Company v. Wallace McKeag. Case stated. No assignment of error appeared in the paper-hook.

<p>Appeal, No. 278, Jan. T., 1902, by plaintiffs, from decree of C. P. No. 5, Phila. Co., March T., 1901, No. 417, sustaining demurrer to bill in equity in case of Charles B. McCloskey, Sarah McCloskey and William J. Mc-Closkey, Joseph McCloskey, Percy McCloskey, Cecil Mc-Closkey and Charles Kingdom McCloskey, by their next friend, Charles B. McCloskey, v. Annie C. McCloskey, Sarah A. Mc-Closkey, Ellen B. McCloskey and Catherine M. McCloskey.</p> <p>Bill in equity to enforce a trust.</p> <p>Demurrer to bill.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court sustained the demurrer.</p> <p>Error assigned was in sustaining the demurrer.</p>

<p>Deed — Collateral security — Antecedent debt — Recording act — Trust and trustees — Declaration of trust — Husband and wife.</p> <p>Where a wife joins in a deed with her husband by which they convey whatever interest they may have in the lands of the husband’s deceased brother, the wife by joining in the deed conveys no lands that belong to herself. In such a case she only joins in the deed for the purpose of passing any inchoate right of dower that she may have in the lands of her husband.</p> <p>A grantee in a deed who takes the land conveyed as collateral security for an antecedent debt is not a purchaser for value within the protection, of the recording acts.</p> <p>Where the purchase money of real estate belongs to the wife of a brother of the grantee, and the grantee on the day of the date of the deed executes a declaration of trust in favor of his sister-in-law, which declaration is not recorded until long after his death and the brother after the death of the grantee and before the declaration of trust is- recorded, executes with his wife a deed to another person of all his interest in his deceased brother’s estate, as collateral security for an antecedent debt, the land belonging to the wife and covered by the declaration of trust does not pass by such deed, nor is the grantee in such deed a purchaser for value within the protection of the recording acts as against the woman who really owned the land.</p>

<p>Appeal, No. 96, Jan. T., 1902, by Henry Cleremont Moses, Altamont P. Moses and Franklin J. Moses and Albert B. Weimer, executor of the estate of Edward P. Allinson, deceased, assignee of the share of Charles L. Phillips, from decree of O. C. Phila. Co., Jan. T., 1885, No. 320, dismissing exceptions to adjudication in estate of Henry M. Phillips, deceased.</p> <p>Exceptions to adjudication.</p> <p>In addition to the facts stated in the opinion of the Supremo Court, it appeared that the testator died in 1884. One sister in 1891 and the other in 1901. All the nephews and nieces mentioned in the will were living at testator’s death, but two nieces and four nephews died before the death of the last sister, unmarried and without issue. Charles L. Phillips made assignments of his share as follows: (1) Assignment, August 13, 1887, to John II. Scott, for $6,530, with interest; (2) assignment, February 17,1890, to Lydia S. Hinchman, for $32,500; (3) assignment, October 11, 1899, to Edward P. Allinson, for balance of share.</p> <p>Penrose. J., the auditing judge, sustained all the assignments made by Charles L. Phillips, but, holding the interest of the assignor in his uncle’s estate to be vested and not contingent, ordered distribution of the one half of the residue in shares of one eighth to each of the nephews living at the testator's death instead of one fourth to each of the survivors “ upon the death of both of my sisters,” resulting in the making of the share of Charles L. Phillips too small to pay any considerable part of the debt covered by the assignment to Edward P. Allinson.</p> <p>Exceptions to the adjudication were dismissed by the court in banc.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Legacy — Sale of legacy — Remainder.</p> <p>A person, sui juris, owning a remainder iu land or in personal property, may sell the same for such sum as may be agreed upon between himself and the purchaser, provided the former does not stand towards him iu a trust relation, and, in making the purchase, acts in good faith.</p> <p>Where an owner of a vested interest iu remainder being iu financial distress sells and assigns absolutely the interest worth $32,500 for the sum of $8,750 actual cash paid to him, and the life tenant dies ten years thereafter, the purchaser is entitled to the full amount of the interest, in the absence of any fraud or concealment, or any relation of trust or confidence between the legatee and the purchaser.</p>

Appeal, No. 97, Jan. T., 1902, by Andrena Moses, from decree of O. C. Phila. Co., Jan. T., 1885, No. 320, dismissing exceptions to adjudication in estate of Henry M. Phillips, deceased. Exceptions to adjudication.

<p>Equitable assignment — Assignment—Chose in action — Notice—Priority —Intervention of foreign attachment.</p> <p>The assignee of a chose iu action who has given no notice of his assignment to the holder of the fund has priority over a subsequent assignee who has given such notice, where a foreign attachment has intervened against the fund between the dates of the two assignments.</p> <p>Equitable assignments — Assignment—Notice.</p> <p>Where a bank takes an assignment of a chose in action as collateral security for the payment of promissory notes, and subsequently writes a letter to the holder of the legal title of the chose in action, a trust company, offering to sell the notes, and containing a statement that the. notes were secured by the assignment, such a letter is not to be deemed a notice of the assignment which will secure to the assignee priority against subsequent assignments of which proper notice is given.</p>

Appeal, No. 95, Jan T., 1902, by Franklin J. Moses, from decree of O. C. Phila. Co., Jan. T., 1885, No. 320, dismissing exceptions' to adjudication in estate of Henry M. Phillips, deceased. Exceptions to adjudication of Penrose, J. The facts appear by the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to adjudication.

Appeal, No. 310, Jan. T., 1902, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1899, No. 306, on verdict for defendant in case of John Larkins v. Daniel S. Lindsay. Assumpsit for breach of covenant. The opinion of the Supreme Court states the case. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

<p>Appeal, No. 279, Jan. T., 1902, by Charles J. Moore et ah, from decree of C. P. No. 4, Phila. Co., Dec. T., 1901, No. 2976, dismissing exceptions to master’s report in case of First Church of Christ, Scientist.</p> <p>Application for a charter.</p> <p>The application was referred to Dimner Beeber, Esq., who reported the facts to be as follows :</p> <p>The applicants are members of a congregation composed of about 180 persons, who have been worshipping in the church edifice on Chestnut street above Eighteenth street. They have been a congregation for about ten years, and desire to be incorporated as a church under the laws of the state of Pennsylvania. The purposes for which they desire to be incorporated are stated in clause I of their application, as follows : “To establish and maintain a place for the support of public worship and to preach the gospel according to the doctrines of Christ Jesus as found in the Bible and the Christian Science Text Book, ‘ Science and Health, with Key to the Scriptures,’ by Mary Baker G. Eddy.” The witnesses uniformly agree that the Christian Science Church “ differs from other Christian beliefs in endeavoring to practice the entire command of the Master who founded the Christian religion, in which he said, ‘Preach the Gospel and heal the sick.’ The ordinary church attempts merely to preach the gospel. The Christian Science Church preaches the gospel and heals the sick.” It appears that the method of healing the sick is simply and solely by inaudible prayer. The book of Mrs. Eddy, entitled, “ Science and Health, with Key to the Scriptures,” shows that the church is not only an organization to inculcate a creed or to establish a form of worship, but also to accomplish the cure of disease. Not only does the church preach the gospel as found in the Bible and in the book of Mrs. Eddy, but it also, through its healers, attempts the cure of disease. In fact, the longest chapter in the book is entitled “ Christian Science Practice,” and contains instructions in detail as to the mode of treatment. The fundamental principle of the teaching is that what is termed disease has no real existence. The doctrine is set forth on page 188, as follows: “ What is termed disease does not exist,” and on page 184 as follows: “ The so-called laws of health are simply laws of mental belief. The premises being erroneous, the conclusions are wrong. Truth makes no laws to regulate sickness, sin or death, for these are unknown to the truth and should not be recognized by man as reality.” Again, on pages 393-4 the doctrine is taught that man is never sick; that his belief that he is, is the disease and the cause of it, and that the universal and perfect remedy is to understand that his sickness is not real; and again, on page 395, “ When divine science overcomes faith in materia medica, and faith in God destroys faith in drugs and all material methods of healing — sin, sickness and death will disappear,” and again, on page 400 : “ When disease is once destroyed in mind, the fear of it is gone, and therefore it is thoroughly cured,” and again, on page 176: “Christian Science heals organic disease as well as functional. It finds that decided types of acute disease are quite as ready to yield to truth as the less distinct types and chronic form of disease. It handles the most malignant contagion with perfect assurance.”</p> <p>The chapter on “ Christian Science Practice” contains instructions for the treatment and cure of disease upon the idea that disease is simply an idea of the mind, as set forth in the above extracts from the book. The healers who engage in the cure of the disease are constituted by the readers at the different churches, and in fact, according to the book, any of its students can acquire the power to heal and cure disease in the mode therein prescribed. It is the common but not universal practice for these healers to receive a compensation for their services. As I have already said, their services chiefly consist in inaudible prayer and either in the presence or far away from the patient.</p> <p>The facts are substantially the same as those passed upon by Judge Pennypacker in court of common pleas, No. 2, in a similar action, although they have not been testified to in such great detail as appeared in the report of that case, from which it can be said, as he said there, “ It is quite clear, therefore, that what is proposed is much more than a church, since there is besides to be established a system for the treatment of disease, to be carried into effect by persons trained for the purpose, who may receive compensation for their services.”</p> <p>It seems clear to the master that the evidence and the teaching of Mrs. Eddy’s book show that there is to be established not only a place for worship, but also for the establishment of a system for the practice of the art of healing. Medicine has been defined to be “ the art of preventing, curing, or alleviating diseases and remedying, as far as possible, the results of violence and accident.” The system taught by Mrs. Eddy’s book certainly would come under this definition of the word “ medicine,” and it would seem that she herself conceded it, for, on page 468 of her book, she states the result of her work as follows: “ In founding an ethical and medical system, I have labored to expound divine principle, not to exalt personality.” The witnesses who testified before the master in this case are very clear that one of the prime purposes of their church, and the one that distinguishes it from the orthodox church, is that it attempts to heal the sick. It is impossible to conceive of the Christian Science Church except as associated with the idea of healing or curing the sick.</p> <p>The master recommended that the application should be refused on the ground that it would be injurious to the eominunity to incorporate a group of citizens for the purpose stated. On exceptions to the master’s report Arnold, P. J., filed an opinion refusing a charter on the ground that the application Avas for a charter for an association for profit organized to enforce the sale of Mrs. Eddy’s books by its members. Subsequently Arnold, J., filed a supplemental opinion which was as follows:</p> <p>Objection having been made that we went outside of the record in our former opinion, attention is called to the fact that applications for charters are generally conducted ex parte, no opposition being made unless another association alleges that the applicants are infringing upon its corporate name. When an application for a charter is made the court acts for the commonwealth, and should not permit the applicants by withholding eAddence of material facts, to obtain a charter for one purpose in the guise of another. The court should search for and obtain all the information necessary to a proper knowledge of the purposes of the intended corporation in order to enable the court to determine its power and its duty in the case before it. We appoint masters to assist us in these matters, but we are not confined to or bound by the evidence produced before them.</p> <p>Even if the court had power to charter this association, it should refuse to give its sanction to a body organized for the purpose for which this association has been established.</p> <p>The master has found that “ the witnesses uniformly agree that the Christian Science Church differs from other Christian beliefs in endeavoring to practice the entire command of the Master who founded the Christian religion, in which he said, ‘ Preach the gospel and heal the sick.’ The ordinary church attempts merely to preach the gospel. The Christian Science Church preaches the gospel and heals the sick. It appears that the method of healing the sick is simply and solely by inaudible prayer.” The master also finds that “ The book of Mrs. Eddy, entitled ‘ Science and Health, with Key to the Scriptures,’ shows that the church is not only an organization to inculcate a creed or to establish a form of worship, but also to accomplish the cure of disease. Not only does the church preach the gospel as found in the Bible and in the book of Mrs. Eddy, but it also, through its healers, attempts to cure disease.” He also finds that “ the fundamental principle of the teaching is that what is termed disease has no real existence.” The doctrine is set forth on page 188 as follows : “ What is termed disease does not exist,” and on page 184 as follows : “ The so-called laws of health are simply laws of mental belief .... Truth makes no laws to regulate sickness, sin or death, for these are unknown to truth and should not be recognized by man as reality.” Quoting from pages 393 and 394 of “ Science and Health,” the master finds that “ the doctrine is taught that man is never sick, that his belief that he is is the disease and the cause of it, and that the universal and perfect remedy is to understand that his sickness is not real.” From page 395 he quotes, “ When divine science overcomes faith in materia medica and faith in God destroys faith in drugs, all material methods of healing, sin, sickness and death will disappear.” And from page 400, “ When disease is once destroyed in mind the fear of it is gone, and therefore it is thoroughly cured.” He also quotes from page 176 as follows : “Christian Science heals organic disease as well as functional. It finds that decided types of acute disease are quite as ready to yield to truth as the less distinct types and chronic forms of disease. It handles the most malignant contagion with perfect assurance.”</p> <p>These statements are palpable fallacies, and as long as they are merely inactive beliefs they may do no harm, but when they are put into practice they are pernicious and injurious to the community. When this practice is confined to the healers no harm results to others, but when they apply it to children or persons so racked with pain that in their desperation they resort to any theory or practice which promises relief, such practice results in neglect of proper treatment and often iu death.</p> <p>The master has found that “ the healers who engage in the cure of disease are constituted by the readers at the different churches, and in fact, according to the book, any of its students can acquire the power to heal and cure disease in the mode therein prescribed. It is the common but not the universal practice for these healers to receive a compensation for their services. As I (the master) have already said, their services chiefly consist in inaudible prayer either in the presence of or far away from the patient.” He also finds that “ the evidence and the teachings of Mrs. Eddy’s book show that there is to be established not only a place for worship, but also for the establishment of a system for the practice of the art of healing. .... The witnesses who testified before the master in this case are very clear that one of the prime purposes of their church and the one that distinguishes it from the orthodox church, is that it attempts to heal the sick. It is impossible to conceive of the Christian Science Church except as associated with the idea of healing or curing the sick.” When persons who make a business of practicing the art of healing with or without medicine, are not regular and registered physicians, they violate the law which was intended to prevent the practice of medicine by nonqualified persons. It was for this reason that Judge Pennypackeb, in the court of common pleas, No. 2, refused a charter to an association of persons like those before us, and we agree with him. See 6 Pa. Dist. Rep. 745.</p>

Appeal, No. 239, Jan. T., 1902,' by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1902, No. 1045, discharging rule for judgment for want of a sufficient affidavit of defense in case of Samuel I. Knight v. Somerton Hills Cemetery. Assumpsit to recover money alleged to have been loaned.

<p>Appeal, No. 317, Jan. T., 1902, by Elizabeth H. H. Thompson, from decree of O. C. Phila. Co., April T., 1902, No. 407, dismissing exceptions to adjudication in estate of E. O. Thompson, deceased.</p> <p>Exceptions to adjudication of Ashman, J.</p> <p>The material portion of the adjudication was as follows :</p> <p>A claim for rent of premises to 1338 Chestnut street, in the sum of §7,110.76, of which §402.45 was interest, was presented by Albert H. Mershon, trustee. It was founded upon a lease executed by decedent and dating from September 1, 1896, for two years, with an option to the lessee to renew or extend the lease for a further period of three years.</p> <p>The lease was alleged to have been renewed a,nd the claim is for rent which accrued during the last seven months of the renewal period. A lease executed by the testator as lessee and dated July 20, 1895, to go into effect September, 1896, was produced, which provided that the lessee should have the above described option to extend the term, and in case lie should not avail himself of the privilege should pay to the lessor the sum of §1,500. It also provided for a further option to extend from September 1, 1901, but at an increased rental and added “ the said option shall be exercised by the said Ethan O. Thompson, by his giving written notice thereof to said Albert H. Mershon, trustee (the lessor) nine calendar months previous to the expiration ” of the then current term. This lease was executed by Benjamin Thompson, as attorney in fact, for E. O. Thompson by virtue of a power of attorney attached to the instrument. On March 15, 1897, the decedent transferred his business to his sons Benjamin and E. 0. Thompson, Jr. He gave no notice of an intention to terminate the lease, and he did not pay the sum of $1,500 stipulated in the lease to be paid in case he did not exercise the option to continue. During the continuance of the term, the lessor received a note dated November 27, 1898, and worded as follows : “Agreeable to our conversation we will accept a continuance of our lease. Yours truly, E. O. Thompson’s son, for E. O. Thompson.” On the strength of that note the lease was renewed and rent was paid thereon until March 1, 1901. It was alleged that all dealings respecting this renewal were had with Benjamin Thompson. It was not denied, however, as indeed, it could not be, that he acted in a representative character. He had a power of attorney from the original lessee to execute a lease in the name of the lessee. The power extended no further and was exhausted when the attorney in fact signed the lease. The' acceptance of this offer ostensibly made in decedent’s name could not of course without notice to him, bind the decedent.</p> <p>But there was evidence that he knew of. the proposal and assented to it. Rejecting the testimony of the lessor who was probably incompetent as a witness under the act, it was shown by the secretary of the Real Estate Trust Company, that at the request of the decedent he prepared an assignment on or about March, 1900, of the lease in question to E. O. Thomp-, son’s sons, but that the lessor refused to accept such assignment, and that in consequence it was never executed. This was after the original term had expired, but its effect was to show that the decedent recognized his liability under the lease, because this action in seeking to assign would otherwise have been meaningless. It was also shown that the receipts for the rents during the occupancy of the new firm were made out in the name of the decedent as lessee, and that some of them, at least, were read by him. To the letter, which be wrote under date of November 18, 1899, asking that his sons might be accepted as tenants in his place, and that he might be released, the trustee replied that his sons had not been accepted as tenants. The decedent had made a similar request on April, 1897, when he transferred his business to his sons and had been refused. Various letters and receipts were produced, which tended strongly to show the continuance of the original relation of the lessor and lessee between the decedent and claimant. Among them may be mentioned a letter dated April 8, 1900, from the trustee to the decedent for rent due March and unpaid, which enclosed a bill for the same against the decedent. This was followed bjr a receipt from the trustee to E. O. Thompson dated April 5,1900, for the rent named in the letter. A similar letter, under date of August 17, 1900, addressed to decedent, demanded the rent due in the preceding month and a receipt, dated September 3, 1900, for the money made out in decedent’s name and also produced at the audit. The evidence taken as a whole, the auditing judge thinks, shows definitely enough that the decedent was never released as a tenant. The claim is allowed in the sum named, less $418.20 as the cost of an elevator placed in the premises by decedent.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 75, Jan. T., 1902, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1899, No. 1314, on verdict for defendant in case of Harriet Weber, Adm. c. t. a. of Eliza Dawes Bewley, Deceased, v. Anna Maria Aschbacker.</p> <p>Ejectment for a dwelling house and lot of land in the city of Philadelphia. Before Beitler, 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>jErrors assigned were in the following form:</p> <p>1. The court below erred in ruling out plaintiff’s evidence showing the chain of circumstances constituting the_fraud upon plaintiff’s rights as creditor of Aman, and showing that both Aschbacker and wife had knowledge that the conveyance to defendant was a fraudulent conveyance designed to hinder and delay plaintiff in the collection of her judgment against Aman.</p> <p>2. The court erred in refusing to allow cross-examination of defendant’s witness upon material points testified to in his examination in chief.</p> <p>3. The court erred in affirming defendant’s point and giving binding instructions to the jury. The point of defendant affirmed was: “ Under all the evidence in this case, your verdict must be for the defendant. Decision. I affirm defendant’s point and direct the jury to find for the defendant.”</p> <p>4. The court erred in not submitting the facts of the case to the jury.</p>

<p>Appeal, No. 311, Jan. T., 1902, by Marie Emilie Eyre, from decree of C. P. No. 4, Phila. Co., Docket “ G ” 1873, No. 841,-, dismissing exceptions to report of trustees, in estate of Joseph K. Eyre, deceased.</p> <p>Cases stated on exceptions to account of trustees.</p> <p>Audenried, J., stated the facts to be as follows :</p> <p>Since the death of Charles Eyre, November 13, 1883, the trustees under the deed of trust made by his father, Joseph K. Eyre, on December 1, 1869, have been paying to the surviving brother and sisters of the former the entire income from the trust estate. Upon the filing of the account of the trustees, exception was taken thereto by the widow of Charles Eyre, on the ground that she is entitled to receive one fiftieth of the net income of the estate during the period which has elapsed since the death of her husband. The matter is before us on a case stated. The question presented for decision is simply, to whom was the income of the trust payable after the death of the settlor, his wife and son Charles.</p> <p>The deed of trust, after providing for the active management of the estate and the payment of the expenses thereof, proceeds as follows :</p> <p>“ Then out of said rents, issues, income and profits to pay unto him the said Joseph K. Eyre in equal quarterly payments, the annual sum of $3,000, the first quarterly payment to be made on the first day of January, 1870, and quarterly thereafter, for and during the term of his natural life, for his own use and for his support and maintenance, and without any power on his part of charge, anticipation, or alienation. . . . And upon the further trust, after making the payments aforesaid, including the said annual sum of $3,000, to pay over the remaining net income of the trust estate unto the said Anna M. Eyre for and during the lifetime of the said Joseph K. Eyre, if she shall so long live, for her support and maintenance and for the support and maintenance of her children at her discretion, without power on her part of anticipation or alienation. And from and immediately after the death of the said Joseph K. Eyre if the said Anna M. Eyre shall be then living upon further trust to pay over one full equal third part of said rents, issues, income and profits of the said trust estate, after deducting the charges, taxes, expenses and commissions aforesaid, to the said Anna M. Eyre for and during her natural life and for her support and maintenance and without power on her part of anticipation or alienation as aforesaid. And to divide and pay over the remaining two thirds of said net rents, issues, income and profits to and among such of the children of the said Joseph K. Eyre as shall then be living and the issue of such of them as shall then be dead in equal shares, such issues taking and dividing nevertheless such share only as his, her or their parent or parents would have taken if living at the time of the death of the said Joseph K. Eyre, which payments to the said children and issue shall continue to be made until the death of the last survivor of the said children, when the estate is to be divided as hereinafter set forth. Provided, nevertheless, that if the said Anna M. Eyre shall die during the lifetime of the said Joseph K. Eyre, then the whole of the surplus income of the trust estate as aforesaid which may remain after the aforesaid deductions, including the said sum of $3,000 annually to be paid to the said Joseph K. Eyre, shall be paid to the said children and issue in the proportions aforesaid. And in like manner upon the death of the said Anna M. Eyre, if she shall survive the said Joseph K. Eyre, the whole of the said net rents, issues, income and profits of the said trust estate shall be paid to the said children and their issue in the proportions aforesaid until the death of the last survivor of the said children of the said Joseph K. Eyre. And provided further that all such payments to the said children and issue of deceased children shall be made for their support and maintenance and without power on their part of anticipation and alienation and in such way and manner that the same shall not be subject to their debts, contracts or engagements, nor in the case of females to the debts, contracts or engagements of any husbands they may respectively have or take. And upon and immediately after the death of the.last survivor of the said children of the said Joseph K. Ejue, upon the further trust to divide and partition the whole and entire capital of the trust estate as it may then exist and be invested, after deducting all reasonable expenses and commission into as many equal shares and purparts as there were children of the said Joseph K. Eyre who had died before that time leaving issue then surviving and thereupon by good and sufficient conveyances and assurances to grant, convey, assign, transfer and set over in fee and absolutely one of such equal shares and purparts to the issue, collectively of each of the said children of the said Joseph K. Eyre as shall have left issue then surviving as aforesaid, which conveyances and assurances shall be made to such respective issue if more than one as tenants in common, and in such way and manner that such respective issue shall only receive the share of their respective parent, a child of the said Joseph K. Eyre, and as if the division had been made among the said children instead of their said issue and so also as that the said shares shall inure to the said grantees free, clear and discharged of all trusts whatever hereby created.”</p> <p>The wife of the settlor predeceased him. All of his five children survived him. His son, Charles Eyre, subsequently died, leaving to survive him his brother and three sisters and a wife, but no children.</p> <p>The court dismissed the exceptions to the account.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 275, Jan. T., 1902, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1901, No. 2998, refusing to take off nonsuit in case of John C. Hunterson v. Union Traction Company. Trespass to recover damages for personal injuries. Before Ralston, J. The facts appear by the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was in refusing to take off nonsuit.

<p>Appeal, No. 271, Jan. T., 1902, by plaintiffs, from decree of C. P. Montgomery Co., June T., 1901, No. 7, on bill in equity in case of the North Pennsylvania Railroad Company and the Philadelphia and Reading Railway Company v. The Inland Traction Company, and the Philadelphia and Lehigh Valley Traction Company.</p> <p>Bill in equity to restrain the construction of a street railway.</p> <p>The court below, Weand, J., filled the following opinion :</p> <p>The plaintiffs by this bill seek to restrain the defendants from building their street passenger railway in front of plaintiffs’ lands, which abut on a turnpike road, and from crossing an overhead highway bridge where plaintiffs’ road intersects said highway.</p> <p>FINDINGS OF FACT.</p> <p>1. The North Pennsylvania Railroad Company is a duly chartered corporation, leased to aud operated by the Philadelphia and Reading Railway Company.</p> <p>2. The North Pennsylvania Railroad Company is the owner in fee of several tracts of land abutting on the east side of Chestnut Hill and Springhouse Turnpike Road south of the point where the railroad crosses said turnpike, and is also the owner of land where the railroad crosses said turnpike.</p> <p>3. The turnpike was built and in operation many years before the construction of the North Pennsylvania Railroad.</p> <p>4. The railroad as it crosses the turnpike runs through a deep cut, over which is erected a bridge built by the railroad company, and which is part of the turnpike, accommodating its travel.</p> <p>5. The Philadelphia and Lehigh Valley Traction Company, .into which the Inland Traction Company and the Lehigh Valley Traction Company were merged, has fixed and determined its route, beginning at Mountainville, Lehigh county, Pennsylvania, to the dividing line between the county of Montgomery and the county of Philadelphia at Chestnut Hill park. Part of its route is on the said turnpike.</p> <p>6. Said defendant company has obtained consent of the townships and municipalities through which it has located its route, and also the consent of the Chestnut Hill and Spring-house Turnpike Company.</p> <p>7. The defendant company does not propose to lay, construct, maintain or operate its road on that side of the turnpike road on which plaintiffs’ property abuts, except where it crosses plaintiffs’ right of way.</p> <p>8. The owner of land in front of which defendants’ road is proposed to be located have consented thereto, i. e., the abutting owners on the opposite side of the highway to plaintiffs’ property, have consented to the construction of the road as proposed by defendants.</p> <p>9. Part of defendants’ road as located is an extension from the borough of Lansdale to the terminus of the road at Chestnut Hill, a distance of about twelve miles, all of which extension is actually constructed, save about one and three quarters miles.</p> <p>10. The construction of the road as proposed opposite plaintiffs’ property will be wholly beyond the center line of the turnpike, and on no part of plaintiffs’ land.</p> <p>From the above findings of fact we conclude as a matter of law:</p> <p>1. The defendants are lawfully engaged in the construction of their road.</p> <p>2. That plaintiffs have no standing to object, as no part of their property is taken or encroached upon. Their ownership of the fee extends only to the middle of the turnpike, and defendants have the consent of the owners of the land on the opposite side, and also of the township authorities and of the turnpike company, which gives them the rights claimed.</p> <p>8. That plaintiffs’ bill must be dismissed with costs.</p> <p>The only standing plaintiffs have to contest is by virtue of their ownership of land along the proposed route of defendants’ company. Their rights, however, are not superior to those of the opposite owners, and, therefore, when a passenger railway is proposed to be built so as not to touch or encroach upon A’s land, it is difficult to see why he should object when his opposite neighbor is willing to have it upon his land. Apart from his ownership, plaintiffs have no greater rights in the road than the rest of the community, and if they sustain no peculiar damage their right to object does not exist.</p> <p>In Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62, the court said (and this is the keynote of all subsequent rulings upon subject) : “ It is not easy to see how such a company can protect itself in the use of country roads, except by contract with every owner of property along the roads they wish to occupy.”</p> <p>We adhere to that ruling, but decide that plaintiffs are not owners of property which defendants wish to occupy.</p> <p>Electric passenger railways in the country have become a public necessity. They have increased the value of property, built up villages and towns, afforded conveniences otherwise not obtainable, and are a benefit especially to those whose means do not admit of other methods of travel. The law should therefore be liberally construed in their favor without infringing upon the rights of others. Where captious, technical or other objections are made for reasons not based upon equitable or strictly legal principles, a court should not restrain what appears to be a great public improvement. What injury can be done to plaintiffs’ property which is owned for railroad purposes, it is difficult to see, but these are matters to be decided hereafter.</p> <p>We are fortified in our conclusions by the opinion of Judge Yebkes in Phila. & Trenton R. R. Co. v. Phila. & Bristol Pass. Ry. Co., 6 Pa. Dist. Rep. 487, and Minnich v. Lancaster, Meehanieesburg & New Holland Ry. Co., 24 Pa. C. C. Rep. 312.</p> <p>The bridge over the railroad is part of the public highway, no matter by whom erected or maintained, and if the defendants can occupy the turnpike, they can also occupy the bridge as part of the highway. They have expressed a willingness to reconstruct and strengthen it, and unless they do so before using it, application can be made for an injunction. The question may also arise as to whether the bridge should not be widened, but this is a matter to be determined when the plans are submitted for approval. So far as the crossing of plaintiffs’ right of way is concerned, we refer to Penna. R. R. Co. v. Greensburg, etc., Street Ry. Co., 176 Pa. 559, where it was said, “ In respect to a mere crossing, a railroad company is not an abutting landowner to a passenger railway.”</p> <p>And now, December 18, 1901, plaintiffs’ bill is dismissed, with costs.</p> <p>Error assigned, among other, was decree dismissing plaintiffs’ bill.</p>

<p>Decedent's estate — Attorney at law — Contract for services.</p> <p>The heirs of a decedent agreed in writing to the employment of two attorneys, to whom the management of important litigation in which, the estate was involved should be given, and who were to receive for their services twenty-five per cent of the amount realized for the estate. One of the attorneys declined to act, and his name was stricken out of the agreement. Another attorney was employed by the heirs, with the knowledge of the administrator, to assist in the litigation. He acted in conjunction with the attorney first retained, but did not have a knowledge of the agreement that had been made until after the litigation was ended. At the audit of the estate the attorney whose name was in the agreement claimed the entire twénty-five per cent. The orphans’ court allowed him but twelve and one half per cent, and made to the other attorney who took part in the litigation an allowance based on the value of his services. Held, not to be error.</p>

<p>Case stated — Form—Necessary facts — Practice, C. P.</p> <p>A ease stated should contain a clear statement of the facts agreed upon which give rise to the question presented" for decision, and nothing should be left to inference. In deciding the case, the court is confined to the specific facts stated. Whatever is not definitely and expressly agreed upon will be taken not to exist, and it is error to base a judgment on facts not set forth.</p> <p>Case stated — Form—Public officers — Clerk of court — Salary—Fees.</p> <p>On a case stated between a county and the clerk of the court of quarter sessions to determine whether the latter is entitled to retain the fees provided by the Act of July 30, 1897, P. L. 467, to be paid by applicants for liquor licenses, where the case stated does not question the fact that the Act of March 31,1876, P. L. 13, applied to the defendant, and this fact is assumed by the parties and is a necessary and irresistible inference from the language of the case stated, it is immaterial that the case stated does not aver that the county contained more than 150,000 inhabitants, and it is unnecessary for the court to find as a fact the number of inhabitants of the county.</p> <p>Public officer — County officer — Fees—Salary—Advertisement of liquor licenses — Liquor law.</p> <p>The fee of $5.00, which the Act of July 30,1897, P. L. 464, requires an applicant for a liquor license to pay to the clerk of the court of quarter sessions when he files his petition, is a fee of the office and like all other fees belongs to the county, in counties containing over 150,000 inhabitants.</p>

<p>Appeal, No. 22, Jan. T., 1903, by defendant, from judgment of C. P., Lackawanna Co., Sept. T., 1902, No. 1300, incase of George W. Jenkins v. Scranton City.</p> <p>For prior adjudication of questions between these parties see Jenkins v. Scranton, 202 Pa. 267.</p> <p>Exceptions to the report of Milton W. Lowry, Esq., referee, who recommended that judgment be entered in favor of the plaintiff for $5,416.66.</p> <p>The court in an opinion by Edwards, P. J., dismissed the exceptions and entered the judgment.</p> <p>The facts sufficiently appear by the opinion of the Supreme Court.</p> <p>Judgment for the plaintiff. Defendant appealed.</p> <p>Errors assigned were (1) dismissing exceptions to referee’s report; (2) directing judgment for the plaintiff.</p>

Appeal, No. 237, Jan. T., 1902, by defendants, from judgment of Superior Court, No. 2, Peb. T., 1902, affirming judgment of C. P. Lycoming Co., March T., 1900, No. 295, on verdict for plaintiff in case of Louisa L. Perrine v. Matilda Kohr et al. Ejectment for land in city of Williamsport. Appeal from Superior Court. From the opinion of the Superior Court (20 Pa.

<p>Homicide— Charge-of court — Degrees of murder — Instructions as to manslaughter.</p> <p>In the great caution exercised in the trial of homicides, the instruction as to manslaughter should usually be given. It is only in clear cases that it can properly be omitted, whether specially requested or not. In a homicide case where there is no room for doubt that the crime is not manslaughter, it is nol error to refuse instructions as to that offense.</p> <p>It is always the duty of the jury to ascertain the degree of murder, and an imperative instruction that takes from them the right to do so is erroneous ; but it is always within the province of the court to point out their duty under the law and the evidence, leaving them free to act.</p> <p>The reason for the rule that the jury must always be left free to act in ascertaining the degree, and that it is error to give peremptory instructions on the subject, is that this duty is committed to the jury by the statute. But there is no such requirement in distinguishing between murder and manslaughter, and unless there is something in the testimony to reduce the grade below murder, it is not error to decline to instruct the jury as to manslaughter.</p>

Appeal, No. 128, Jan. T., 1902, by plaintiff, from judgment of C. P. Huntingdon Co., Dee. T., 1899, No. 34, on verdict for defendant in case of Jennie A. Sanker v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries.

Appeal, No. 292, Jan. T., 1902, by defendant, from judgment of C. P. Centre Co., Aug. T., 1902, No. 162, in case of Harriet M. Pifer et al. v. Blanche M. Locke. Case stated to determine the marketability of real estate.

<p>Appeal, No. 316, Jan. T., 1902, by plaintiff, from order of C. P. Centre Co., April T., 1901, No. 75, refusing to take off nonsuit in the case of Minerva Belle Snyder v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Love, P. J.</p> <p>The facts sufficiently appear by the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which on motion it refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Negligence — Malpractice—Surgeon—Reasonable skill.</p> <p>A surgeon is not an insurer of his patients. He undertakes to possess and in the treatment of a case to employ such reasonable skill and diligence as is ordinarily exercised in his jn-ofession ; and in judging of the degree of skill regard is to be had to the advanced state of the profession at the time.</p> <p>In an action against a surgeon to recover damages for alleged malpractice where it appears that the defendant was a skillful surgeon in good repute, that he gave attention to the case, and that he called in to aid him two other competent surgeons, the fact that he may have been mistaken in his diagnosis, is not sufficient to convict him of negligence where the undisputed testimony of a number of surgeons was that the plaintiff’s injury was such as that its exact character was very difficult to detect. The burden of proof in such a ease is on the plaintiff to show by the weight of the evidence that the surgeon failed to treat him with reasonable and ordinary professional skill.</p>

<p>Appeal, No. 115, Jan. T., 1902, by defendant, from judg'ment of C. P. Blair Co., June T., 1895, No. 174, on verdict for plaintiff, in case of T. D. Hughes v. Frank M. Miller.</p> <p>Action to recover the difference in tbe price bid at sheriff’s sales. Before John Stewart, P. J., 39th judicial district, specially presiding. For previous reports of this case, see 186 Pa. 375; 192 Pa. 365.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for the plaintiff fon $2,143.65. Defendant appealed.</p> <p>Errors assigned, among others, was in not giving binding instructions for the defendant.</p>

Petition for a rehearing. The petitioner was convicted in the oyer and terminer of Berks county of murder of the first degree and sentenced to death. The judgment and sentence was affirmed by the Supreme Court. See Com. v. Greason, 204 Pa. 64. The condemned presented his petition February 26, 1903, for a rehearing on the ground of after-discovered evidence.

Appeal, No. 355, Jan. T., 1903, by defendant, from decree of C. P., No. 5, Phila. Co., Dec. T., 1902, No. 701, in case of Albert Saunders v. J. R. T. Samarreg Company. Bill in equity for specific performance and to remove cloud on title. From the record it appeared that the plaintiff had contracted to sell certain real estate in the city of Philadelphia to the defendant. To this real estate plaintiff derived title from Mary W. Grant.

Appeal, No. 111, Jan. T., 1902, by defendant, from judgment of C. P. Lehigh Co., June T., 1901, No. 45, on verdict for plaintiff in case of Rebecca S. Leiby v. Clear Springs Water Company. Appeal from assessment of damages. Before Dunham, P. J., of the 44th judicial district, specially presiding.

Appeal, No. 217, Jan., T., 1902, by defendant, from judgment of C. P. Chester Co., Oct. T., 1901, No. 39, in case of David L. Smith and Wife v. Pennsylvania Railroad Company. Appeal from award of jury of view assessing damages to plaintiffs for lands taken by the defendant for the purpose of straightening its tracks in Sadsbury township, Chester county. Before Hemphill, P. J. The question for determination appears by the opinion of the Supreme Court.

<p>Land damages— Competency of witness — Knowledge of land prior to ■damage done — Street railways.</p> <p>A witness called to estimate and give an opinion as to the damage done to land by the construction of a trolley road must have had a knowledge of the land and its value prior to the construction of the road, otherwise he is incompetent.</p> <p>Land damages — General appreciation of property — Street railways.</p> <p>A landowner, in an action for damages to his land caused by the construction of a trolley road on a highway running through it, is entitled to any increase in the value of his land by reason of the general appreciation of property in the neighborhood because of the construction of the trolley road. The jury in estimatifig the damages cannot charge the landowner with the general appreciation of property in diminution of his damages.</p>

<p>Equity — Findings of faot — Partnership—Gonelusiveness of findings of fact.</p> <p>Where on a bill in equity to declare a partnership, the only issue is the alleged partnership, and the court below finds on sufficient evidence against the existence of the partnership, the appellate court in the absence of manifest error will not reverse the finding of the lower court.</p>

Appeal, No. 174, Jan. T., 1902, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T. 1890, Nos. 782 and 788, overruling exceptions to auditor’s report in case of Jacob Rossbach and Leopold Rossbach, trading as J. H. Rossbach & Company, v. Marcus Beebe and Junius Beebe, trading as Beebe & Sons. Exceptions to report of Thomas B. Price, Esq., referee.