Volume 206 — Pennsylvania State Reports

<p>Will — Execution—Witnesses—Dexrise to religious and charitable uses— Act of April 26, 1855, P. L. 828.</p> <p>A will containing a charitable or religious bequest to be valid must be executed precisely according to the statute.</p> <p>The purpose of the Act of April 26, 1855, P. L. 828, was to establish a higher degree of proof as to the execution of a will containing a charitable or religious bequest than for other wills; and also to require such a will to be executed at a time when the testator might be in the full possession of his faculties, and not influenced by unscrupulous and designing pei’sons when he was in the immediate presence of death. To attest or witness such a will, the witness must be present when the writing is signed and thereby becomes a will, or the testator may after he has affixed his signature acknowledge it to be his act in the pi'esence of the witnesses.</p> <p>Where one of the attesting witnesses to a will containing religious bequests signed it before the testator and out of her presence, and the other attesting witness signed it without seeing the signature of testator or knowing whether she had signed if or not, the will is not executed as provided by the Act of April 26, 1855, P. L. 828, and the religious bequests are void.</p>

Appeal, No. 286, Jan. T., 1902, by defendant, from judgment of C. P. Lycoming Co., June T., 1900, No. 52, on verdict for plaintiff in case of Harry M. Smith v. Muncy Creek Township. Trespass to recover damages for personal injuries. Before McClure, P. J., of the 17th judicial district, specially presiding.

<p>Beneficial associations — Act of April 6, 1893, P. L. 7 — Person entitled to fnnd — Sist&r—Friend.</p> <p>A member of an unincorporated beneficial association named his wife as beneficiary in the certificate and she so remained for eighteen years when she died. At the time when the contract was made with the association a member had a right to change the beneficiary and designate another.</p> <p>After the death of his wife the member substituted the name of a person described as his “ nearest friend ” as beneficiary. The change was made in accordance with the rules of the order and was approved by its officers.</p> <p>On the death of the member his sister claimed the proceeds of the certificate as his only surviving heir at law. Held, that she was not entitled to the fund and that it was payable to the person whose name had been substituted in the certificate.</p> <p>Beneficial societies — Beneficiary—Act of April 6, 1893, P. L. 7 — Act prospective not retrospective.</p> <p>The Act of April 6, 1893, P. L. 7, limiting the payment of death benefits by beneficial societies to “families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon the member,” is prospective in its operation and not retrospective and does not affect the rights of holders of certificates issued prior to that time.</p> <p>Beneficial societies — Certificates—Beneficiary—IJeir at law — Title to find.</p> <p>The heir at law of the holder of a death benefit certificate in a beneficial society, is without standing to question the designation of a beneficiary by the deceased, notwithstanding she is within a class from which the member might have made his selection under the act of April 6, 1893.</p>

<p>Appeal, No. 335, Jan. T., 1902, by defendant, from decree of C. P. No. 3, Phila. Co., Dec. T., 1898, No. 928, in case of Olney Croasdale v. F. Albert Von</p> <p>Bill in equity for an account.</p> <p>On exceptions to the report of Edwin Jaquett Sellers, Esq., master, the court, McCarthy, J., filed an opinion in part as follows:</p> <p>The first question raised is, should the credits claimed by the accountant for disbursements, in connection with the criminal prosecution of Stotsenberg for alleged embezzlement of moneys belonging to the owners of the John Reese, be allowed?</p> <p>The learned master finds as matter of law that the credits should be allowed, because the accountant, “ as managing owner of the tugboat, was morally bound and legally authorized ” to detect and prosecute a co-owner for embezzlement of the owners’ money, and to charge the owners with the expense thereof, including fees of counsel, detectives, expert accountants, clerks, etc.; and the subsequent abandonment of the proceedings does not relieve them, such efforts being in the interest of justice and for the special benefit of the owners. He cites no authority, nor does he offer .any reasoning in support of this novel view of the duties of a managing owner.</p> <p>The Supreme Court of Pennsylvania has affirmed the decision of this court that the owners of the John Reese are tenants in common of a chattel. It is an incident of such ownership that common consent is necessary to common enjoyment of the property, and the prior consent of each owner is necessary to bind him to any use of the chattel or expenditure on account of it. In case of vessels, however, the employment of which is deemed by commercial nations a matter of public benefit, after the consent to the appointment of the managing owner is established, the consent of all the owners to his duly authorized acts will be presumed, and they will be bound by all contracts made by him on their behalf within the scope of his authority : Maclachlan, Merchant Shipping (4th ed.), 190. This extends to whatever concerns the employment of the ship, as ap. pointing its master and officers, seeing that the ship is properly repaired, equipped and manned, employing tradesmen to furnish supplies and repairs, procuring freights, preserving the ship’s papers, making necessary entries, adjusting freights and averages, disbursing and receiving moneys, keeping and adjusting the accounts between the parties interested, and the like: Abbott, Merchant Ships (14th ed.), 130; Maclachlan, Merchant Shipping (4th ed.), 186. The institution of proceedings at law, however, is not within the authority of a managing agent, being foreign to the purpose of his employment, and it has accordingly been held that he cannot pledge the credit of the co-owners for the expenses of a lawsuit: Abbott, Merchant Ships, supra, citing Campbell v. Stein, 6 Dow. 116; The Bellcairn, 5 Asp. M. C. 582. A fortiori, it is not within the scope of his authority to institute a criminal prosecution, and the consent of the owners to such action on his part cannot be presumed from the fact of his employment as managing owner. The consent of each must be shown to justify charging him with the incidental expenses. The learned master finds that the criminal prosecution against Stotsenberg was instituted and prosecuted without the authorhy or consent of his wife, or of the plaintiff, her assignee. He also finds that the prosecution was abandoned. It was therefoi’e of no benefit to the owxxers, who could only have been benefited by it, as members of the eornmuixity, through the conviction and punishment of the offender, not in their private capacity as owners, axxd the case not havixxg been brought to trial, there is nothiixg to show tlxat the proceeding was founded upon any proper cause. Uxxder such circumstances, there is no reason in law or equity why any part of the expenses incurred in connection with this criminal prosecutiorx should be imposed upon Mrs. Stotsenberg or the plaintiff. The master finds the total of these expenses to be the sum of $409.60. Credits claimed for all the items aggregating this total must be disallowed to the accountant as against the plaintiff.</p> <p>The second questioix raised by the exception is, should the credits claimed by the accountant for the payment by him after August 17, 1897, of bills contracted on account of the employment of the John Reese prior to that date, be allowed?</p> <p>The plaintiff contends that these credits should not be allowed, because “from that time, namely, Axxgust 17, 1897, the interest in said vessel changed,” and he should not be charged with expenses of the boat “ contracted prior to the time he became entitled to share in the profits.” This, however, is an error in fact; the interest was not changed until the plaintiff purchased Mrs. Stotsenberg’s share on December 19, 1898. The date of August 17, 1897, is that upon which the accountant became the managing owner, and is fixed by the decree as the date when the accounting should begin, because it is his own stewardship of which he is required to render an account, and not that of another. The plaintiff in acquiring the ownership of Mrs. Stotsenberg’s share in the John Reese, acquired also the net earnings or dividends accrued upon that share to the date of his purchase. In determining what the net earnings are, the accountant is entitled to credit for any due and proper application of the earnings of the tugboat received by him. The payment of a valid and subsisting indebtedness of the owners legitimately incurred in connection with the employment of the boat is a due and proper application of her earnings, and it is a matter of no moment when that debt was contracted. Here the validity of the debts is not questioned; the accountant has actually paid them as justly due by the owners, and he is entitled to credits for such payments, as the learned master has properly found.</p> <p>On the other hand, the decree requires the defendant, Yon Boyneburgk, to account for all sums of money which have been received and collected by him as managing owner from August 17, 1897, on account of the use and hire of the said tugboat or to the use of her owners. The learned master has found that since the date named the accountant received and has failed to account for $400 belonging to the owners of the tugboat, and accordingly has surcharged him properly with that amount.</p> <p>The third question raised by the exceptions is, should the credits claimed by the accountant for his_ salary as managing owner be allowed in addition to the 'credits claimed by him for commissions paid to agents ?</p> <p>The master finds as matter of fact that at a meeting of the owners of a majority of interest in the John Reese, held in August, 1897, it was agreed that the accountant as managing owner should receive $50.00 per month for his services, and as matter of law that the owners of a majority of interest were authorized to enter into an agreement to pay the managing owner whatever salary they might agree upon; and that Mrs. Stotsenberg and the plaintiff, as her assignee, are bound by the action of the majority.</p> <p>He does not find that Mrs. Stotsenberg was present or represented at the meeting referred to; the testimony shows she was not. He does not find that the action of the meeting in fixing a salary for the managing owner was communicated to her, or that she ever had actual knowledge of it; there is nothing in the evidence from which such knowledge can be inferred. Supposing her to have had access to the managing owner’s accounts, she could have gathered from them no knowledge of this matter, for his first entry of credit for salary bears date March 1, 1899, the item reading, “By accountant’s wages, August 17, 1897, to March, 1899, eighteen and a half months, at $50, $925.” This entry, according to its date, was made about two months and a half after Mrs. Stotsenberg had sold out her interest to the plaintiff, and ten days after the plaintiff had filed his bill in the present action praying for an account.</p> <p>It has been sufficiently shown before that a majority of the owners in common of a chattel cannot bind the minority nor any single owner, without his consent. It may be that consent will be presumed in the absence of knowledge. There is nothing in the evidence on which to base any presumption that either the plaintiff or his assignor had any knowledge of this claim before the actual stating of the account before the master.</p> <p>The learned master finds as a fact that no salary was ever paid to any other managing owner of said tugboat. In the absence of knowledge and consent on her part to a change in the arrangement, it would be inequitable and unjust to hold Mrs. Stotsenberg and her assignee, the plaintiff, to any different arrangement from that with which she was familiar, which had her consent and which appears to be the usual and customary arrangement in this business, namely, that the managing owner should serve without charge, and the agents of the boat should be paid a percentage upon such gross receipts as resulted from their agency.</p> <p>The learned master finds as matter of fact that the accountant employed Walker and afterwards Reynolds as his successor “ merely as assistants or employees of the owners ” at a commission of five per centum upon their gross collections ; and, as matter of law, that he was authorized to employ them, and that his selection is presumed to have been ratified by the other owners, as no objection was made, and hence he is entitled to credit for the payments made to them. The master nowhere finds the facts upon which he bases his conclusion that the persons named were merely assistants, nor does he find the facts showing the nature of their employment and duties or the character of the work carried on by the managing owner. To ascertain these facts we must look into the evidence, and that shows that Walker, at the time he was employed about the business of the John Reese, was in business as a tugboat agent and had charge of several other tugboats besides the Reese; that he attended to his duties as agent for the Reese in the same manner as he attended to like duties for other boats; that the business of the boat was carried on in his office, the managing owner not having any office; that Walker kept accounts of her receipts and expenditures, paid the crew, paid some of the bills, hustled to get work for the boat and had general charge of her, and was paid for his services a commission of five per centum upon the gross receipts. Reynolds, his successor, performed the like duties. He acted in the same capacity to this particular boat as lie did in connection with other boats which he had charge of. He was paid also a commission of five per centum, which he testified is a fair commission for the work. The accountant had a general superintendence of the business and directed Walker and Reynolds in their work; he also seems to have assisted in getting employment for the tugboat and to have paid some of the bills; but the character, amount and extent of work done by him independently of his agents does not clearly appear in the evidence.</p> <p>There is no magic in a name. The facts show that whether Walker and Reynolds were what are technically known in the business as “agents” of the tugboat John Reese, or were “ merely the assistants or employees of the owners,” of that vessel as found by the master, they discharged such duties as are ordinarily performed by tugboat agents and were compensated in the usual way by commissions upon the gross sums they handled. These commissions having been paid, it would be inequitable, as already found, to charge what would virtually be a second compensation for the same services against the plaintiff, neither he nor his assignor having ever consented thereto. The credits claimed for all payments of salary, which appear from the account filed to aggregate the sum of $1,575, should therefore be disallowed as against the plaintiff.</p> <p>The fourth question raised by the exceptions is, should the costs of this suit be paid by the defendant Von Boyneburgk in his individual capacity, or in his representative capacity as managing owner of the John Reese?</p> <p>The master finds as matter of law that the accountant is liable for all costs by reason of his failure to account until compelled to do so by the order of this court; and that the plaintiff should be relieved from contribution to the costs of this proceeding, as it would be inequitable to tax him, as he is free from blame and was compelled to seek redress in court. He also affirms the eighth request for findings of law to the effect that all costs in this case shall be paid by the accountant, “ but with the modification that the costs shall be paid by the said F. Albert Von Boyneburgk as managing owner, but exclusive of the right of said managing owner to charge the plaintiff with any proportion thereof.”</p> <p>As already stated, one of the cardinal duties of the ship’s husband or managing owner is to keep and adjust accounts between the parties interested. The owners have a constant right to inspect his accounts, “ and if they are driven by his refusal or delay to seek an account in a court of equity, he will be visited with the costs and with interest on any balance of money retained in his hands for this neglect of his duty: ” Maclachlan, Merchant Shipping (4th ed.), 189. It was, therefore, Von Boyneburgk’s duty to account. His neglect or refusal to do it caused this suit. For this dereliction of duty he should be punished by imposing upon him all the costs and interest upon the amount retained, to be paid out of his own individual pocket. To permit him to pay these penal charges out of the funds in his hands as managing owner would be to inflict upon each of his codefendants, who had no duty to account and are not in the least default, the same punishment with the -wrongdoer and thus confound the innocent with the ■guilty. ■ The master justly finds it would be inequitable to tax the plaintiff with any of the costs, as he is free from blame. It would be just as inequitable to tax them upon such of the other owners as are equally' blameless.</p> <p>The court entered a decree that the defendant F. Albert Von Boyneburgk pay to the plaintiff $2,817.68, and that the defendant personally pay-the costs. Defendant appealed..</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 47, Jan. T., 1902, by defendants, from decree of C. P. No. 2, Phila. Co., Sept. T., 1900, No. 405, in case of Thaddeus Dochkus et al. v. The Lithuanian Society of St. Anthony, et al.</p> <p>Bill in equity to compel the conveyance of a church property to Patrick John Ryan, Archbishop of Philadelphia.</p> <p>From the record it appeared that in the year 1893 the members of the congregation of the church of St. Anthony purchased a church edifice and dwelling house on Fifth street south of Carpenter street in the city of Philadelphia. At the time of the purchase of the property the congregation requested permission from the Archbishop of the Catholic Church of Philadelphia to locate in the property and to purchase the same for the use of the congregation. Permission to purchase was refused, but permission was granted temporarily to locate in the building until the congregation could find a more suitable location.</p> <p>The members of the congregation proceeded in the purchase of the church edifice and not being able to place the title in the name of the Archbishop selected the Lithuanian Benefit Society of St. Anthony, a benefit society made up of members of the congregation as trustee to bold the legal title.</p> <p>On September 3, 1900, the congregation received a letter from the Archbishop commanding that the title to the property should be placed in his name. Members of the congregation objected to complying with this request, and a bill was filed by members of the congregation averring that a majority of the members desired to comply with the request of the Archbishop setting out the refusal of the trustee to comply therewith and praying for a decree directing the trustee to convey the legal title to the premises to Patrick John Ryan, Archbishop of Philadelphia. The court, Wii,tbank, J., entered a decree in accordance with the prayer of the bill.</p> <p>When Charles C. Unick, secretary of the congregation, a witness called by the defendants, was on the stand, he was asked the following questions :</p> <p>Q. How many members of the congregation favor the title remaining in the name of the St. Anthony Society? Objected to. Objection sustained. Exception noted for the defendants. [8]</p> <p>Q. flow many of the congregation desire to conduct an independent church ? Objected to. Objection sustained. Exception for defendants. [4]</p> <p>Q. How many of the 350 members are still in favor of conducting an independent Catholic Church? Objected to. Objection sustained. Exception for defendants. [5]</p> <p>Q. Will you kindly tell me where the congregation wants the title to the property to be placed ? Objected to. Objection sustained. Exception for defendants. [6]</p> <p>Errors assigned were in entering the decree and in refusing to permit Charles C. Unick, secretary of the congregation of the church, to answer the questions set forth in the third, fourth, fifth and sixth assignments of error.</p>

<p>Negligence — Street railways — Injury to passenger — Contributory negligence.</p> <p>Where a passenger on an open summer electric street ear signals the conductor to stop at a crossing both before the car had reached the crossing and after it had passed the crossing, and the conductor either does not see or hoed the signals, and the passenger then rises and stands at the extreme edge of the car with his face to the rear and his arm around a stanchion, and again signals the conductor when the car is well within the block, and the car is then suddenly stopped with a jar, and the passenger is thrown out and injured, the latter is not entitled to recover damages from the railroad company for his injuries. In such a case it is not the negligence of the company, but the contributory negligence of the passenger which caused the accident.</p> <p>Me. Justice Mestkezat dissents.</p>

<p>Appeal, No. 221, Jan. T., 1902, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1896, No. 708, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia v. Philadelphia Traction Company.</p> <p>Scire facias on tax claim.</p> <p>From the record it appeared that the tax for which suit was brought was levied upon defendants’ car barn for the year 1896, The defendants filed an affidavit of defense, the material portion of which is as follows:</p> <p>The defendant is a traction motor company, duly incorporated under the act of assembly of the commonwealth of Pennsylvania, entitled “An act to provide for the incorporation and regulation of motor power companies for operating passenger railways by cables, electrical, or other means,” approved March 22, 1887, for the purpose of “ constructing and operating motors and cables for supplying motive power to passenger railways, and the necessary apparatus for applying the same.”</p> <p>Prior to the year 1896 the defendant had, in pursuance of powers expressly granted to it under said act, entered into certain contracts and leases with passenger railways in the city of Philadelphia; said railway companies were engaged in the business of carrying persons from place to place along the various streets of the said city, and under and by virtue of said-contracts and leases it became, and was, the duty of the defendant to operate the cars over the lines of said various railways and to provide facilities and buildings necessary for such purpose. In order to carry out these objects and the duty which it owed to its said lessors and the public in the premises, it became necessary for the defendant company to acquire real estate and to erect thereon buildings for the housing, storage, and handling of cars when not in use and over night.</p> <p>It accordingly purchased with a portion of the money representing its capital stock premises situate on the east side of Sixteenth street, from Jackson to Wolf, in the twenty-sixth ward of the city of Philadelphia, described in the lien, and constructed thereon the building mentioned in the scire facias, which is a car barn for the housing and care of its cars as aforesaid. The building is used for the storage of cars over night, which cars otherwise would have to stand upon the public streets. A small portion of it is used as the office and headquarters of the superintendent, who is actually in charge of the business at said car barn, looking after the said cars and dispatching them upon their various trips.</p> <p>Said property was purchased and used for the purposes aforesaid, and was indispensably necessary to the operation of said defendant company’s public franchises, and was used for no other purposes whatsoever. As said property represented part of defendant’s capital stock, it was liable to pay, and has paid, to the commonwealth of Pennsylvania, a tax for said year upon the said property as part of such capital.</p> <p>Said property was, and is, part of the public works of defendant, and used as such only, was essential to the carrying out of the public purpose for which it was incorporated as aforesaid, and defendant received, no profit or income therefrom by way of rental or otherwise. Defendant is advised, and therefore avers, that such being the case, the local authorities of the county are without power to impose the tax aforesaid, not only b.ecause it would result in double taxation upon the same property, contrary to the intent of the acts providing for the levying and collection of taxes, but because, if such property was subject to seizure and sale piecemeal, the defendant would be crippled in the exercise of the public functions required of it, and that such power has not been conferred upon the local authorities.</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 court.</p>

<p>Equity Practice — Cause of action — Joint bill.</p> <p>It is irregular practice in equity to join in a bill filed by several parties causes of action which are not the same, or which are not founded on any joint right.</p> <p>Street railways — Extensions—Location—Exemplification—Acts of May 14, 1889, P. L. 211, and June 7, 1901, P. L. 514.</p> <p>The filing by a street railway in the office of the secretary of the commonwealth of an exemplification of the record of the adoption of an extension, is a condition precedent to the construction of the extension.</p> <p>Street railways — Location — Extensions — Rival companies — Acts of May 14, 1889, and June 7, 1901.</p> <p>Where a street railway company incorporated subsequently to the act oí June 7, 1901, has promptly applied for the consent of the local authorities, it cannot be disturbed in the exclusive privilege of the highways named in its charter, for the period of two years allowed for construction ; and it has a standing in equity to enjoin a company incorporated prior to the act of June 7, 1901, from building extensions on such streets during the running of the two years.</p> <p>Not decided, whether the two years’ period in which to procure municipal consent, allowed by the act of June 7, 1901, will be shortened or terminated by a positive act of refusal on the part of the municipality, or whether the full period may still be available for an opportunity to overcome objections.</p> <p>Not decided; whether a street railway company may build a substantial portion of its route over a private right of way, not on any street or highway.</p>

<p>Appeal, No. 178, Jan. T., 1902, by Archibald A. Alexander, from decree of O. C. Phila. Co., Jan. T., 1896, No. 526, dismissing appeal from register of wills in estate of John Alexander, deceased.</p> <p>Appeal from register of wills.</p> <p>The facts appear by the adjudication of Hanna, P. J., which was in part as follows:</p> <p>From the hundreds of pages of testimony, voluminous correspondence and numerous exhibits it is shown that testator as early as 1887 executed a last will and testament prepared by his professional adviser from instructions received from him. This was followed by another will executed in 1891, wherein he charged his two sons, contestants, with certain sums appearing in his ledger and identified by the pages thereof quoted in the will. No objection is made to its validity. Long prior to the date of this will testator entered into various business enterprises for the benefit of his sons, loaned and advanced them moneys, aided them in real estate investments and by loans and subscriptions to its capital stock, assisted them in the organization and establishment of a national bank at San Antonio, Texas, in which they were interested as stockholders and of which they became the president and cashier. At the request and solicitation of his sons, testator had numerous financial transactions with the bank, consisting of loans and rediscount of notes discounted by the bank in the course of its business. For some years these financial transactions were profitable and satisfactory to the testator. But eventually he became exceedingly dissatisfied with the condition of affairs. The transactions with the bank caused him much solicitude and his account for loans and advances to his sons, particularly his eldest son, was so unsettled and unsecured as to render him anxious and persistent that the same should be closed and settled and the repayment of both the indebtedness of his sons and of the bank secured. The correspondence between testator and his sons in Texas was frequent and continuous in the year 1892. His constant requests for a settlement were met with as frequent promises. Visits were made to the father by the sons, and although settlement was always urged by him and as often acquiesced in by them, no promise was complied with, and no result approved by their father accomplished.</p> <p>The dissatisfaction of testator increased, but his former urgent and almost pathetic requests became stern, parental demands. As he failed to procure from his sons a statement of their account and that of the bank with him he determined to prepare his own account from his books and the evidence of indebtedness in his possession. Testator was remarkably exact and methodical and his books with the entries all in his handwriting display his care, industry and accuracy to a wonderful degree. He made therein not only accounts with his children, but entries apparently of every investment and financial venture with which he had ever been connected or interested.</p> <p>He accordingly requested his youngest son, who with his family and an older daughter of testator, composed the household, to prepare such an account. The account was accordingly carefully and laboriously prepared by testator’s youngest son and with great minuteness included every item of charge testator claimed to be due him from his sons. This was in February, 1898, and resulted in a visit from testator’s eldest son to his father.</p> <p>The account which had been previously prepared was submitted to and carefully examined by him in connection with his youngest brother, and after many hours of scrutiny pronounced and marked by him correct so far as he was individually concerned, with a single charge of interest excepted, and referring the items charged to his absent brother to him. for approval.</p> <p>But notwithstanding this the settlement which the testator so urgently required was again deferred; any payment of the indebtedness of his sons and of the bank remained unsecured.</p> <p>The next fact appearing is that the testator consulted his counsel, who had prepared the will of 1891, and instructed him to prepare another will. Many of the provisions of the prior will were to'be included therein. Testator’s counsel, in pursuance of these instructions, accordingly prepared no less than three drafts, all of which were submitted to testator before the fourth or final draft met with his approval. And then the engrossed will was sent to testator by his counsel for execution. Testator carefully and minutely examined the will and was more critical and observant than his counsel: he discovered an error of the scrivener in a single word and declined to execute the will until it should be corrected. Those who attended as subscribing witnesses were consequently compelled to retire and the will was returned to counsel. Two days afterwards they again visited testator at his residence with the will corrected. A second time he carefully and leisurely examined the.paper. It then met with his satisfaction, and in his own handwriting completed the blank for the names of the executors, signed his name, and declared the paper to be his last will in the presence of the three attending disinterested subscribing witnesses. This was on March 15, 1893. Testator’s request to his sons for a settlement with him continued, but without avail. In the summer of 1893 the Texas bank failed and was forced into liquidation. Testator believed himself to be a creditor of the bank to a very large amount and so declared himself in what is called a “proof of claim.” But to his surprise the receiver of the bank declined to recognize his claim for the full amount upon the ground that the books of the bank showed many of the transactions claimed by testator to be between himself and the bank were in reality between himself and his son, the president of the bank. The “ proof of claim ” was again prepared, but, meeting with the same objection a third time, was corrected so that the testator’s claim against the bank was reduced from over $17,000, as he alleged, to $8,000, upon which he received a dividend of fifty per cent. Testator, wearied with his vain endeavors to obtain security for the payment of the indebtedness of his son and the importunities of both his sons to obtain further loans, finally placed all his books and papers, including the account prepared by his youngest son, in the care and custody of his counsel and employed him to effect the settlement he personally was unable to obtain. The sons were represented by counsel, and after months of negotiation a supposed settlement was reached, but at the last moment repudiated. At this very time, by reason of certain financial difficulties involving testator’s eldest son, he was induced to save him from arrest to agree to advance about $5,000 additional in order to avert the danger.</p> <p>But testator’s youngest son prevented any further depletion of his father’s estate, and by his personal effort and assumption of liability effected a compromise and final settlement with 1ns brothers’ threatening and dangerous creditor. Still, testator was unsecured by his son for the payment of his indebtedness. And this led to the execution of the first codicil, dated June 27, 1894, fifteen months after the execution of the will.</p> <p>This was also prepared by testator’s counsel in pursuance of instructions received from him and executed in the presence of two of the subscribing witnesses to the will.</p> <p>In this codicil testator recited that in the calculation of the sum of $115,100, which he referred to in his will and charged jointly against his two eldest sons, he omitted some amounts advanced by him prior to the date of his will, and accordingly directed they should be charged jointly with the sum of $121,800, with the same force and effect as if this amount had been written in the will. Ho further directed that interest be charged on said sum from the date of the codicil at the rate of four per cent per annum : and in all other respects confirmed and republished the will. And finally, on February 7, 1895, nearly eight months after the date of the first codicil and twenty days prior to his death, testator executed a second codicil, wherein he revoked a bequest in the third item of his will to his youngest son to be expended by him in furthering certain social and benevolent reforms.</p> <p>Testator died February 27,1895, at his residence in this city, having- almost reached the age of ninety years. Within one week after his death a-caveat was filed with the register by one of his sons against the admission to probate of any last will and testament. On March 21, 1895, the will and codicils were offered for probate. This resulted in a protracted contest and hearing before the register, continuing until July 29, 1895, when the caveat was overruled, petition for an issue dismissed and the will and codicil admitted to probate.</p> <p>Letters testamentary were thereupon granted to the executors. If their controversy is righteous and quarrel with their half-brother just, the delay of the contestant is inexplicable and unexplained. They waited until the time allowed for an appeal under the act of March 15, 1832, was within one month of expiration, and not until June 29, 1898, two years and eleven months after the decree of the register, admitting the will and codicils to probate was an appeal taken.</p> <p>In the meanwhile the executors entered upon the performance of their duties, filed on December 13, 1895, an inventory and appraisement, and subsequently their first account, which was audited and an adjudication thereon filed by the court to January term, 1896, unexcepted to and unappealed from. It is true the contestants’ right of appeal is reserved to them by the act of assembly, but their further laches and delay until October 8, 1898, before the presentation of their petition for a citation, etc., is somewhat additionally persuasive of a lack of faith in the propriety and justice of the controversy so long allowed to slumber.</p> <p>The present contest is most remarkable and unique. While it is alleged-in the petition originally filed that testator at the time of the execution of his will and codicils was not of sound disposing mind, memory or understanding or capable of making a valid will, and said writing was procured by the undue influence of his youngest son and prayed for issues to determine the testamentary capacity of testator and whether the will and codicils were procured to be executed by him by the undue influence of his youngest son, yet at the hearing before the court it was frankly admitted by counsel for the contestant that the testamentary capacity is conceded and no objection whatever made to the second codicil, executed February 7, 1895, as already stated, twenty days prior to the death of testator.</p> <p>As also stated by counsel, it appears from the supplementary petition presented at the hearing the controversy is limited to the questions whether a portion only of the fourth item of the will, the entire eighth or residuary clause of the will and the entire codicil of June 27, 1894, were procured to be inserted in the will and added thereto in the codicil by the undue influence of the youngest son of testator and half-brother to the contestants.</p> <p>It was also conceded by counsel and could not otherwise be than admitted that testator possessed full power and authority in disposing of his estate to charge his sons with whatever amount he deemed proper by way of an advancement; in other words, convert debts into advancements. And it was also conceded to be the law, that the sons cannot be permitted to show that the amount so charged against them is incorrect in amount, or a mistaken calculation by testator.</p> <p>So that it finally resulted in the inquiry whether through the malign and fraudulent influences exerted by the youngest son of testator over the mind of his father, the latter was induced to include in the fourth item of his will the portion embraced in the supplemental petition; and to execute the entire residuary clause wherein he not only bequeathed his residuary estate to his four children in equal shares and charged against the shares of his two oldest sons the sum of $115,100, but also in the first codicil with the increased amount of $121,800.</p> <p>The contestants were the only witnesses examined in their behalf excepting the youngest son of testator, who was called by them as a witness under cross-examination and for many hours subjected to the most searching and rigorous examination. While on behalf of the executors and trustees, the proponents, was submitted the testimony of the counsel of testator, who had been for thirteen years his professional adviser, of a domestic servant in the employ of testator at the time of his death, of the youngest son of testator in his own behalf, and of the subscribing witnesses to the will and codicil.</p> <p>Accordingly, confining the inquiry first to the will dated March 15, 1893, the material facts relative to its preparation have already been referred to. And it will suffice to say not a scintilla is shown that the youngest son was instrumental to its preparation or made any suggestion to his father relative to its provisions, other than he requested as a bequest some specific articles of furniture.</p> <p>There is no evidence he requested his father to insert either the fourth item in his will, the residuary clause, nor the amount therein stated charged as an advancement to testator’s sons, nor was he connected in the remotest degree with the preparation of either codicil.</p> <p>And it has some significance that contestants are candid enough to admit the honesty and fair dealing of their half brother and concede he was not a conspirator with his father to defraud his brothers, nor a party to the execution of the second codicil revoking a bequest to him of $1,000 to be expended by him wholly in his discretion. The testimony further shows that the only connection he had with the ascertainment of the amount due testator from his two eldest sons is that at his father’s request he laboriously prepared from his father’s books and papers a statement of the account between him and his sons, and thus ascertained the sum total of their indebtedness. There is no evidence that testator’s youngest son cajoled, instructed, demanded or solicited his father to insert any sum either in his will or codicil and influence him in any manner whatever to charge his two sons therewith. And the uncontradicted testimony of the testator’s counsel, a gentleman of eminent ability and reputation, is that all his interviews respecting the execution of the will and codicil were with testator alone, that his son was never present, never gave him either instructions or suggestion, and the amount of the sons’ indebtedness was communicated to him by his client, the testator.</p> <p>Furthermore, the facts show the improbability, if not impossibility, that any one, much less either of his sons, Avas able to exercise any influence whatever upon the mind and intention of their father. He was a descendant of a sturdy, rugged and self-willed race. He was tenacious of what he deemed to be his right, determined and self-reliant. He was possessed of remarkable business ability, as shown by his books of account kept by himself and containing entries of his numerous financial transactions and investments made by him during a long series of years.</p> <p>Testator lived to be almost ninety years old, was large of stature and vigorous in health until a few weeks prior to his death. He personally transacted his business affairs, aided to some extent by his youngest son, who resided with him. And as illustrative of the mental and physical vigor of testator in the early winter of 1898, many months after the execution of bis will, lie journeyed to Pittsburg and there delivered an address entitled “ History of the National Reform Movement,” before the faculty and students of the Allegheny Theological Seminary, by whom it was afterwards printed for circulation.</p> <p>Need it be said that a man possessing such mental characteristics and imperious force of will could not be easily influenced and induced to adopt a course other than he of his own volition had resolved upon and which he believed to be effective in accomplishing his clearly intended equitable distribution of his estate among his four children ? In view of the admitted testamentary capacity of testator, which as defined by TrunKEY, Justice, in Wilson v. Mitchell, 101 Pa. 495, “It is not so much what was the degree of memory possessed by the testator as this : Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it and the objects of his bounty? To sum up the whole in the most simple and intelligent form : Were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time when he executed the will.” Followed in the recent case of McGovran’s Est., 185 Pa. 203, where the rule was applied by Stewart, P. J., and affirmed by the Supreme Court. It will require very strong and convincing evidence of undue influence to set aside the will of a testator prepared and executed under such circumstances and who is admittedly fully cognizant of the nature and character of his testamentary act.</p> <p>And even although the will be executed with the knowledge and active assistance of a confidential friend and adviser, which relation to the testator it is contended was occupied by his youngest son, yet even there the burden of proof is upon the contestant to show undue influence as was held by this court in Estate of Mary Yorke, Deceased, affirmed by the Supreme Court in 185 Pa. 61.</p> <p>And although it is said in Miller v. Miller, 187 Pa. 572, that it is not necessary that the confidential agent of the testator should have been his attorney “ or that sustaining his filial relation he did not also hold an artificial one under the trust and confidence reposed in him by his father in business affairs,” and from the facts in that case which was the trial of an issue d. v. n., it appeared the defense of the will rested on the theory, viz., “ that the son was the trusted and confidential agent of his father,” and for years had so faithfully performed his duty in that respect that it amply explained the favor shown towards him by his father, yet the will being so largely in his favor, the jury should have been instructed that a presumption of undue influence was raised and the burden was upon him to rebut this presumption. But that case is clearly to be distinguished from the present. As shown in the prior report in Miller’s Estate, 179 Pa. 645, an appeal from the refusal of an issue, the testator not of extreme old age, was addicted to the inordinate use of intoxicating liquors, afflicted with locomotor ataxia and alleged to be of weakened intellect, the result of dissipation and disease. One of his sons lived in his father’s house, “ was his confident for years, his helper in his physical infirmity, his adviser in his business affairs,” and the recipient by his father’s will and codicils of three fourths of his large estate, besides being appointed one of the executors. Under the facts there proved it was clearly proper to award an issue to determine the question of undue influence and cast the onus of proof of its absence upon the son who claimed so large a share of the estate. And in reversing the court below and awarding the issue, Dean, Justice, further said: “ The condition of mind of a testator alleged to have been unduly influenced, although of testamenttary capacity, is important in determining whether the act was the result of the fraudulent arts practiced uponi&akiT.’’ How different all the facts in the present case. The^Pgations of testamentary incapacity abandoned and request for /an issue upon that question withdrawn, both as to will' and codicil. The testator, although of such advanced age, clear and vigorous in intellect, of abstemious habits, and of good physical health until a few weeks prior to his death. During all this time transacted his own business, aided but occasionally by his youngest son, who resided with his father, keeping his own books and conducting a continuous and almost daily correspondence with his sons, located in Texas, relative to his financial business relation with them and the bank with which they were connected. There being no evidence that the youngest son of testator was instrumental in the procurement of the ex-edition of either will or codicil and claimed no virtue in himself, nor that the bequest of the equal share of the residue was any reward for his faithfulness to his father’s interest nor compensation for past services, and although under all the circumstances, not bound to rebut any presumption arising from his residence with his father and his occasional services in the management of his affairs, yet in view of the aspersions cast upon his good name and reputation the youngest son of testator eagerly availed himself of every opportunity to rebut the slightest presumption of wrong and suspicion of unfair dealing towards his brothers. From his uncontradicted testimony it appeared that the account of their indebtedness was prepared by him at the request of his father. That he was not connected with the preparation of the will or codicil in the remotest degree and was not present at their examination by testator nor at their execution. In this he is fully corroborated by the counsel of the testator and the subscribing witnesses. The contestants failed to produce the slightest proof of any request or solicitation on the part of the youngest son of testator or that he exerted any influence whatever upon the mind or intention of his father in the preparation of either will or codicil. To sum up the whole matter, it is simply this, that testator concluded his two eldest sons had already been advanced individually or for their benefit a large proportion of his estate, and, in order to work out an equitable distribution of his property and protect the children not indebted to him, they should be charged jointly with the amount loaned and advanced to them, together with a debt of the Texas National Bank, of which they were the officers. He accordingly so directed, clearly and unmistakably, as he had the undisputed right so to do.</p> <p>The auditing judge found that the appeal should be dismissed.</p> <p>Exceptions to the adjudication were dismissed by the court in banc, in an opinion by Penkose, J., largely quoted in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 227, Jan. T., 1902, by plaintiffs, from decree of C. P., No. 4, Phila. Co., Dec. T., 1901, No. 2746, on bill and cross bill in case of John DeHaven Hanbest, Hannah A. Planbest, Naomi J. McCurdy, Anthony A. Hirst, Executor of Catherine Hayes, Deceased, and Emily Farrell v. George Grayson, Executor of Julia Ann Hanbest, Deceased, and John Kane.</p> <p>Bill in equity and cross bill.</p> <p>The case was heard on bill and answer and cross bill and answer.</p> <p>The substance of the pleadings are stated by Willson, J., as "follows :</p> <p>The controversy turns upon the proper construction to be ' given to the will of Julia A. Hanbest, who died on December 30, 1900. The will, which was dated November 28, 1900, after reciting that she was the owner of property known as the Blue Bell Hotel, situated on Woodland avenue, in the twenty-seventh'ward of this city, contained the following language : “The hotel I have rented to one John Kane for the term of three years, commencing June 1st, 1897, for seventy-five dollars a month, payable in advance, it is my desire that my executor hereinafter named, in case of my death before the expiration of said lease, shall collect the rents of said property as they become due, and, after paying all taxes and legitimate charges upon said premises, to divide quarterly the net income of said rent equally between John DeHaven Hanbest, Hannah A. Hanbest, Naomi J. McCurdy, Catherine Hayes, and Emily Farrell; I likewise direct my said executor to give my said tenant three months’ notice before the expiration of his present term, and at said time and upon the vacation of said property by the said Kane, I authorize my said executor to sell the said property, including said adjoining premises, which rents now for eight dollars a month, either at public or private sale, for the best and highest price that can be obtained for the same, giving him full discretion in this behalf: and upon such sale he shall make good and sufficient deed of conveyance therefor that shall vest the title in the purchaser or purchasers thereof in fee simple.”</p> <p>The said Catherine Hayes died on February 23, 1901, and the executor of her will, Anthony A. Hirst, represents her interest in this proceeding. One of the defendants in the original bill, George Grayson, was the executor appointed by Julia A. Hanbest in her will, which was duly proved. Without giving any notice to the tenant, John Kane, before the expiration of his lease, and while the said Kane was still in occupation of the premises as tenant, on December 12, 1901, the said Gray-son, executor, entered into articles of agreement with the said John Kane, for the sale of a certain portion of the real estate which he was authorized to sell by the provisions of the Han-best will, including the said Blue Bell Hotel, for the sum of $28,000. The plaintiffs in the original bill allege that the proposed sale to John Kane, contemplated and provided for by the said articles of agreement, was such a sale as the executor had no authority to make. It is contended by these plaintiffs that the provisions in the Hanbest will that the executor should give Kane, the tenant, three months’ notice before the expiration of his then present term, and that upon the vacation of the property by said Kane, the executor might sell the same, constituted a condition precedent to the executor having any lawful authority to sell the property. It is also claimed that John Kane, by being allowed to remain in possession of the property, was given an unfair advantage over other persons who might have desired to purchase the property, and that thereby he was enabled to purchase it at a low and inadequate price; and further, that Grayson, the executor, by selling a portion of the property divided from the rest by the middle line of Seventy-third street, has seriously impaired the value and marketability of that portion of the property which was not sold to Kane. For the reasons stated the plaintiffs ask that Grayson, the executor before stated, may be restrained from selling said property to John Kane, and that John Kane may be required to deliver up for cancelation the articles of agreement before referred to.</p> <p>The cross bill filed by Kane against the plaintiffs in the original bill, and also against Grayson, the executor sets out the articles of agreement with Grayson, alleges that the agreement was executed by Grayson, with full authority to make the same; that the defendants in the cross bill, who were the plaintiffs in the original bill, had filed the said original bill, and, also, that on or about December 18, 1901, the said plaintiffs in the original bill had executed a certain deed poll or writing undertaking to elect to take the said real estate in kind, without conversion, and had caused said writing to be filed in the office of the clerk of the orphans’ court of this county. It is also averred by the said plaintiff, John Kane, that the filing of the said deed poll constituted a cloud upon the title to the property. He therefore asks that, upon payment of the balance due under the terms of his articles of agreement entered into with the said executor, George Grayson, the said executor be directed to make proper conveyance of the property to him, the said John Kane, and that the defendants in the cross bill, who were the plaintiffs in the original bill, be restrained from asserting any right to take the said premises which the said Grayson, executor, had agreed to sell to him, John Kane, and from interfering in any way with the said executor in the sale and conveyance of the said premises.</p> <p>The court entered a decree in favor of the defendants in the bill and the plaintiff, Kane, in the cross bill.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 52, Jan. T., 1908, by plaintiff, from judgment of C. P. Lycoming Co., March T., 1901, No. 149, on verdict for defendant in case of City of Williamsport v. Williamsport Passenger Railway Company. Assumpsit to recover from the defendant the cost of paving between its tracks with asphalt and vitrified brick. Before Hart, P. J., without a jury. The facts appear by the opinion of the Supreme Court. Verdict and judgment for the defendant. Plaintiff appealed.

<p>Appeal, No. 37, Jan. T., 1903, by plaintiff, from order of C. P. No. 5, Pliila. Co., Sept. T., 1901, No. 1225, refusing to take off nonsuit, in case of Henry Bainbridge v. Union Traction Company.</p> <p>Trespass to recover damages for personal injuries sustained on an electric street car. Before Ralston, J.</p> <p>The court entered a judgment of compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

Appeal, No. 28, Jan. T., 1903, by defendant, from order of C. P. No. 1, Phila. Co., M. L. D. No. 811, dismissing motion for judgment, in case of City of Philadelphia to use of Vulcanite Paving Company v. Clifford Pemberton, Jr., and Frank Mauran. Motion to quash appeal.

Appeal, No. 220, Jan. T., 1902, by defendant, from judgment of C. P. Bucks Co., Sept. T., 1901, No. 57, on verdict for plaintiff in case of Henry Hottle and Daniel M. Landis, Committee of the Person and Estate of Henry Hottle, a Lunatic, v. Milton H. Weaver. Assumpsit on three promissory notes. Before Yerkes, P. J. At the trial it appeared that Henry Hottle was a lunatic, and that the defendant was a physician who had attended Henry Hottle and Hottle’s deceased wife.

Appeal, No. 295, Jan. T., 1903, by defendants, from order of C. P., Schuylkill Co., Nov. T., 1900, No. 179, discharging rule to open judgment in ease of Lauer Brewing Company, Limited, v. William D. Chmielewski et al. Buie to open judgment. Error assigned was order discharging rule to open judgment.

<p>Equity — Equity practice — Exceptions to decree nisi — Filing exceptions nunc pro tunc — Appeals.</p> <p>Where the court permits exceptions to be filed nunc pro tune after the expiration of ten days from the entry of the decree nisi, and the exceptions are subsequently dismissed and a final decree entered, the statutory period of six months for taking an appeal begins to run from the entry of the final decree.</p> <p>It is within the legal discretion of a judge sitting as a chancellor to permit exceptions to be filed nunc pro tunc after the expiration of ten days from the entry of a decree nisi.</p> <p>The equity rules are the rules of all the courts, to be enforced as of course in all of them, and not relaxed or disregarded as matter of mere indulgence or convenience. But on the other hand they are like all other rules of practice, subject to the judicial discretion of the chancellor as to their strict enforcement under circumstances productive of injustice or exceptional hardship.</p> <p>Street railways — Consent of landowner — Estoppel—Laches.</p> <p>Where a street railway company lays a single track along a portion of its route on a turnpike road in such a way as to indicate plainly an intention to build a double track road and the single track is operated for two years, and the company then proceeds to lay a second track, and landowners do not file a bill until more than one third of the new track has been constructed, the plaintiffs in such bill will be barred by laches from relief in equity.</p> <p>Street railways — Turnpike roads — Eminent domain — Act of May 14, 1889, P. L. 211.</p> <p>The Act of May 14, 1889, sec. 17, P. L. 211, which gives to street railway companies the right to condemn a turnpike or turnpikes on making “ compensation to the owner or owners thereof,” does not include the right as to the soil under the turnpike, and therefore as against the abutting landowners.</p>

Appeal, No. 304, Jan. T., 1902, by defendant, from judgment of C. P. Franklin Co., April T., 1900, No. 393, on verdict for plaintiff in case of Annie 'Brown v. Hiram M. White. Trespass to recover damages for personal injuries sustained from a fall on a pavement. At the trial it appeared that the plaintiff, a woman seventy-two years old fell on the pavement in front of defendant’s premises on North Main street, Chambersburg, Pennsylvania.

Appeal, No. 12, Jan. T., 1903, by-defendants, from judgment of C. P. Lycoming Co., March T., 1902, No. 2, on verdict for plaintiff, in case of David Reid v. J. H. Linck, L. W. Tallman, S. Q. Mingle and A. W. King, executor of the Estate of H. B. Melick, Deceased, trading as the Williamsport Hardware & Stove Company. Trespass to recover damages for personal injuries. Before Hart, P. J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 177, Jan. T., 1902, by Frederick Black, from decree of C. P. Delaware Co., Sept. T., 1899, No. 102, on bill in equity in case of Edgar N. Black, Frederick Black and Daniel N. Black v. Mary K. L. Black et al.</p> <p>Bill in equity for partition. Before Johnson, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 328, Jan. T., 1902, by defendants, from decree of C. P. No. 4, Pliila. Co., Dec. T., 1901, No. 2684, on bill in equity in case of Lehigh Valley Coal Company v. George W. Everhart.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in not dismissing the bill.</p>

<p>Libel — Innuendo—Province of court and jury.</p> <p>The purpose of an.innuendo is to define the defamatory meaning which the plaintiff attaches to the words ; to show how they come to have that meaning and how they relate to the plaintiff. But it cannot be used to introduce new matter, or to enlarge the natural meaning of the words, and thereby give to the language a construction which it will not bear.</p> <p>•It is the duty of the court in all cases to determine whether the language used in the objectionable article could fairly and reasonably be construed to have the meaning imputed in the innuendo. If the words are not susceptible of the meaning ascribed to them by the plaintiff and do not sustain the innuendo, the case should not be sent to a jury.</p>

<p>Evidence — Witness—Cross-examination.</p> <p>The cross-examination of a witness should be confined to matters in regard to which he has been interrogated in chief, or to such questions as may tend to show his bias, interest or relation to the party calling him, or test his knowledge, integrity and accuracy of statement. A party should not be permitted to establish his claim or to prove his defense by a cross-examination of the witnesses of his opponent. Such is not the purpose for which a witness is cross-examined. While this is the rule, yet the range of a cross-examination, to a very great extent, must be left to the sound discretion of the trial judge, and unless that discretion has been plainly abused, to the injury of the party complaining, it is not ground for reversal.</p> <p>If part of a conversation be given in chief the rest of it may be elicited on cross-examination.</p> <p>Where a witness has stated a fact he may be asked by the other party to detail all the circumstances within his knowledge which qualify it even though they may constitute new matter and form a part of his own case.</p> <p>In an action by a woman against a street railway company to recover damages for personal injuries, a physician called by the defendant testified that he had concealed from the plaintiff while he was treating her professionally, and, as she thought, as her own physician, the fact that he was surgeon of the company, in order that he might secure information which would place him in a position “to be ready for anything that might come in the future.” Subsequently plaintiff came to the physician at his request, and he testified that he told her that he thought he could get some compensation for her from the company. He was then asked on cross-examination if in that conversation he did not deny to plaintiff that he was the surgeon of the company. Held, that the cross-examination was proper, as it elicited the balance of the conversation, part of which the witness had given, and also tended to impeach his credibility.</p> <p>Injuries — Street railways — Damages— Wages.</p> <p>In an action against a street railway company to recover damages for personal injuries, whore the plaintiff states the amount of her wages at the time of the accident, and that she was obliged to “ lay off ” from her work for a certain number of weeks, it is not error for the court to instruct the jury that she could recover for wages lost.</p>

<p>Negligence — Railroads—Grade crossing — “ Stop, bolo and listen ” — Evidence — Presumption.</p> <p>In an action to recover damages for the death of a man killed while riding a horse over a grade crossing on a dark night, without any witnesses of the accident, the case is for the jury where the evidence for the plaintiff, although contradicted, tends to show that the night was so dark that the engine approaching the crossing running backward could not be seen ; that it gave no warning by whistle or bell of its approach ; that it carried no lights, that it could not be seen by a person approaching the crossing ; and that it ran so noiselessly that it could not be heard by any one on the highway as he came to the crossing.</p> <p>In such a case the presumption is that the deceased did his duty as he approached the crossing by stopping, looking and listening.</p> <p>Negligence — Death—Parent and child — Adult son — Evidence.</p> <p>In an action by a mother to recover damages for the death of her adult son, where the statement of claims shows the relation between the plaintiff and the deceased, the plaintiff may show what loss pecuniarily she had sustained in the death of her son.</p> <p>Evidence — • Computation — Jury.</p> <p>Where there is data in evidence from which the jury may make a computation, it is noterror to refuse to permit a witness to make the computation.</p> <p>Evidence — Cross-examination—Contradiction of witness.</p> <p>Where a witness has been cross-examined on matters material to the issue to which he testified in chief, his answers on cross-examination may be contradicted by other witnesses.</p>

<p>Malicious prosecution — Arrest without information — Boroughs.</p> <p>Where a burgess of his own motion and without complaint on oath or affirmation and not on view, issues a warrant for another person for violating a borough ordinance, and such person is arrested and imprisoned, the burgess is liable in nominal damages at least for false imprisonment.</p>

<p>Taxation — Collateral inheritance tax — Decedent's estates — Property in another state.</p> <p>Where a man dies intestate and domiciled in another state, and leaves personal property, all of which is in the state of decedent’s domicile, and two weeks afterwards his sister, who was domiciled in Pennsylvania and who was entitled to a share of his estate, also dies before actually receiving any of the estate, such share of the estate is liable for the payment of the collateral inheritance tax of the state of Pennsylvania.</p> <p>In such a case the sister immediately upon the death of her brother was not only in constructive possession of her share of his estate, but she was to a degree in actual possession, inasmuch as she could exercise every right of an owner in actual possession, except that of determining the amount of charges for administration ; she was the absolute uncontrolled owner subject to a trifling lien.</p>

<p>Church law — Trial in church court — Reveiw—Conspiracy.</p> <p>The civil courts will not review the proceedings of ecclesiastical courts on matters which come within the jurisdiction of the latter.</p> <p>A priest of.the Protestant Episcopal Church cannot hold the bishop of his diocese and a member of his congregation liable in damages in an action of trespass for an alleged wilful and malicious conspiracy, where the evidence shows that the defendants combined to make charges against the priest of conduct unbecoming a clergyman, and supported these charges with evidence in a trial in an ecclesiastical court, which resulted in the degradation of the priest from the ministry; and this is the case although the acts of the defendants may have to some extent been iuflueneed by vindictiveness and hatred.</p>

<p>Appeal, No. 294, Jan. T., 1902, by plaintiff, from decree of C. P. Centre Co., April T., 1901, No. 2, dismissing bill in equity in case of George T. Brew, Administrator of George W. Jackson, Deceased, v. Daniel H. Hastings et al., trading as Jackson, Hastings & Company.</p> <p>Bill in equity for an account.</p> <p>Love, P. J., filed the following opinion:</p> <p>The plaintiff filed his bill, alleging the formation of the partnership of Jackson, Hasting & Company, August 31,1897, between Geo. W. Jackson, Daniel II. Hastings, J. Henry Cochrane and Henry C. McCormick. That the capital stock was $50,000, of which sum Geo. W. Jackson was to pay into the common fund $20,000; D. H. Hastings, $16,666f; J. Henry Cochrane, $6,666f-, and H. O. 'McCormick, $6,666§. That the said Geo. W. Jackson did contribute his $20,000 to said capital stock. That Geo. W. Jackson died intestate October 22, 1897, and letters of administration duly issued to Geo. T. Brew, plaintiff, and Géo. L. Jackson. That Geo. L. Jackson died on or about May 21, 1900.</p> <p>That the partnership was to continue for the term of ten years. That the fourth paragraph of the acticles of copartnership provided: “ That in the event of the death of one or more of the partners before the expiration of the term fixed for the duration of the partnership, the capital of the deceased partner or partners shall remain in and be employed in the business until’ the end of the term for which this partnership is created unless otherwise agreed between the surviving partners or partner, and the legal representatives of the deceased partner or partners, and the survivor or survivors shall have the right to continue to use the copartnership name. The legal representatives of the deceased partner or partners in such case, however, shall be paid six per cent per annum on tbe capital invested by said partner or partners, and shall also participate from year to year, during the term aforesaid, in the earnings, in the same manner, in the same proportions and to the same extent, as the deceased partner himself would have participated under the terms of this agreement, had he continued in full life until the expiration of the term of the partnership hereby fixed. And it is further distinctly agreed that the surviving partner or partners shall have the entire, exclusive and independent management of the business as fully as all the partners now have, with no increased liability for mistakes, accidents or errors of judgment, and the legal representatives of any deceased copartner shall at no time have any voice in or power of control over the policy of the management or conduct in said business.”</p> <p>That the capital of said Geo. W. Jackson, deceased, interest and undivided profits have remained in said business under the custody and control of said defendants from the date of his death, October 22,1897, to the time of filing the bill. That the plaintiff has repeatedly demanded the payment of the interest due upon the capital of said Geo. W. Jackson in said business, and that the defendants have refused and still refuse to pay the same, and refuse to render any statement or account of the profits of said business.</p> <p>The prayers are for a decree for the payment of $8,600, the amount of interest alleged to be due on the capital of the decedent in said partnership, and for an accounting of the profits thereof to the time of the filing of said bill.</p> <p>The answer admits most of the facts alleged in the bill. It denies that any demand was made for the payment of the interest by the plaintiff. It denies the liability of the defendants to pay the interest, or to account. It alleges that the decedent was largely indebted to the partnership ; that the administrators paid on account of the said indebtedness the sum of about $43,000; that the estate of the decedent is still indebted to the partnership, in excess of the capital stock of said decedent in the partnership, and that there is no liability to account, until the term of the partnership expires. The answer also alleges that the matters alleged in the bill are res adjudicata; that they were passed upon and determined in No. 1, August term, 1898, between the same parties, when this court decreed an accounting to be had, from which an appeal was taken to the Supreme Court and the decree of the lower court reversed, reported in Brew v. Hastings et al., 196 Pa. 222.</p> <p>The facts, as appear from the pleadings and evidence, are as follows: The firm or copartnership of Jackson, Hastings & Company was formed between Geo. W. Jackson, D. H. Hastings, J. Henry Cochrane and H. C. McCormick, August 31, 1897. The contract of partnership was in writing of that date and prescribed the terms and conditions of the partnership, the term of ten years for which it was to continue and fixed the capital stock at $50,000. Geo W. Jackson paid into the concern $20,000 as his share ; D. H. Hastings, $16,666|, and each of the other partners $6,666-| each. It was provided that the death of one or more of the partners should not work a dissolution of the partnership ; that the capital of a deceased partner should remain in the business until the expiration of the term provided for in the agreement, and that the legal representatives of a deceased partner should receive six per cent per annum upon the capital of such deceased partner, as well as participate from year to year in the earnings, in the same manner and in the same proportions and to the same extent, as the deceased partner would have done, while living. The survivor or survivors are to have the exclusive and entire control of the business. Geo. W. Jackson died on or about October 22, 1897. That the survivors have continued the business in the firm name of Jackson, Hastings & Company ever since. That the survivors or the firm have neither paid the interest, as provided in the agreement, nor have they rendered any account of the profits or earnings of the business from year to year, but have refused to pay the interest or render any account of the earnings of the business to the legal representative of the estate of said Geo. W. Jackson, deceased.</p> <p>That the plaintiff, the duly qualified administrator of the estate of Geo. W. Jackson, deceased, has demanded the payment of the interest and an account of the earnings of the business from the defendants, but they have refused to either pay the interest or to render any account. The defendants, however, contend that they are not liable to either pay the interest claimed by the plaintiff or account as provided in tbe articles of copartnership, because they allege the estate of Geo. W. Jackson is still indebted to the partnership to an amount in excess of his capital stock therein. This is denied by the plaintiff.</p> <p>The real question, therefore, involved is as to the right of the defendants to set off their alleged claim against the said estate against the claim of the plaintiff, based upon the express terms and conditions of the contract of copartnership.</p> <p>The contention of the defendants involves the following propositions:</p> <p>1. The right, that under the contract of copartnership, because of the alleged indebtedness of the estate of Geo. W. Jackson, deceased, to the firm, they are not liable, legally or equitably, to pay the interest, as provided in the agreement or to account.</p> <p>2. That, notwithstanding that the legal representatives of the estate of said decedent deny said alleged indebtedness, yet the defendants are in nowise’ obliged to establish said claim against said estate by legal proof, and that they have the right to refuse the inspection or examination of the books and accounts of the firm to the plaintiff, whereby the justness and legality of said alleged indebtedness could be determined.</p> <p>3. That, because of the said alleged indebtedness due the firm, that the defendants, without proving their claim, can offset it against the demands of the plaintiff, based on the express terms of the contract of copartnership, and thus they assume the right to distribute the estate of the decedent, regardless of the rights of other creditors thereof or of the insolvency of the estate.</p> <p>4. That the said alleged claim of the firm against the estate, without duly proving the same or putting it in judgment, is entitled to preference over the claims of other creditors of said estate, and further, that the defendants can definitely violate and repudiate the terms of the contract of copartnership and refuse to be bound by, or comply with the terms thereof while the legal representatives of the estate of Geo. W. Jackson are to be held and bound by the very letter of it, until it expires by its own limitation. ^</p> <p>These propositions are practically the same as were involved when the case was before us in the case of Brew v. Hastings et al., to No. 1, August term, 1898. We then found and held that partnership was practically dissolved; not because the evidence of a parol agreement to dissolve warranted it, as we distinctly said it did not, but that the parties so treated it, and we decreed a dissolution of it. The decree was based upon all the evidence, acts and the claim of the defendants that they were not obliged to comply with the terms of the articles of copartnership, and did not propose to. That they did not propose to pay the annual interest upon the capital of the estate of Geo. W. Jackson in the business, or allow his legal representatives to also participate from year to year in the earnings of the business. They assumed, as they do now, that because of their alleged claim against the estate of said decedent, they could appropriate the capital of said decedent to the payment of their claim, the legality of which was denied, without legally proving the same or putting it in judgment, and thus liquidate the interest of said decedent in the partnership in their own way, regardless of the rights of other creditors of the estate, or of its insolvency. We had always understood the law to be, and in fact had not heard it mooted, that a contract should be mutually binding upon all parties to it; and, if one or the other of the parties refuse to be bound or comply with its terms, that the other could have a remedy for the breach thereof or rescind the contract. Thus the contractual relation would be dissolved and, if it were a contract of partnership, it would work its dissolution, and the accounts of. the partnership would be subject to adjustment and settlement and the rights of the parties determined.</p> <p>Inasmuch as the defendants claimed the right and assumed to liquidate the interest of the estate of Geo. W. Jackson in the copartnership, with the other facts in the case, and their refusal to abide by the terms of the agreement, we felt war-' ranted in decreeing a dissolution of the partnership, when the case was before us on the prior'hearing. We also held that, if the estate was indebted to the firm as alleged, that the firm, as a creditor of the estate, had no preference over other creditors, and that the defendants could nob assume to distribute in their own way the estate of the decedent.</p> <p>This is a preliminary hearing, asking for a decree, ordering an account and the payment of money. The defendants take the same position now that they did in the former hearing and trial. They deny their legal liability to pay the interest on the capital of decedent’s estate paid into the partnership annually, and to pay the earnings from year to year, as provided in the agreement, because they allege the estate is indebted to them in excess of the amount of the said capital paid in. In other words, they are not obliged to perform their part of the contract. They do not retain the said capital as a loan under the articles, but appropriate it to a claim that is disputed. Suppose the defendants asserted no claim against the estate of Geo. W. Jackson, and the defendants refused to pay the interest and the earnings from year to year, as provided in the agreement, would it be held that the estate would be bound by the letter of the agreement, and would be remediless, until the term of the partnership expired by the limitation therein provided ? We hardly think so.</p> <p>So the question involved in the case is, whether one party to a contract is to be bound and the other not ? Whether the defendants, because of an alleged claim, which is denied by the plaintiff, can assume to appropriate the interest of Geo. W. Jackson, deceased, to the payment thereof, without legally proving the same or subjecting it to proper investigation and examination, and thus liquidate the interest of said estate in the partnership, and further whether the defendant can assume to distribute the estate of said decedent, regardless of the rights of other creditors or its insolvency; the defendants contend they have such right. It would appear from the decision in Brew v. Hastings et al., 196 Pa. 222, it was meant to sustain the contention of the defendants and that they are not liable to account. Under that decision, we feel constrained to dismiss the bill, and refuse the prayers thereof.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 96, Jan. T., 1903, by defendant, from judgment of C. P. Erie Co., May T., 1903, No. 120, on verdict for plaintiff in case of Frank Kuutz v. New York, Chicago & St. Louis Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Walling-, P. J.</p> <p>. The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for §8,901. Defendant appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Martial law — Government—Mots—Order of governor.</p> <p>Martial law exists wherever the military arm of the government is called into service to suppress disorder, and restore the public peace.</p> <p>Where the governor of the commonwealth issues a general order calling out the militia for the purpose of suppressing violence and maintaining public peace in a district affected by a strike, such an order is a declaration of qualified martial law, in the affected district. It is qualified in that it is put in force only as to the preservation of the public peace and order, and not for the ascertainment or vindication of private rights, or the other ordinary functions of government. For these the courts and other agencies of the law are still open. But within its necessary field, and for the accomplishment of its intended purpose, it is martial law with all its powers.</p> <p>The resort to the military arm of the government by such an order means that the ordinary civil officers to preserve order are subordinated, and the rule of force under military methods is substituted to whatever extent may be necessary in the discretion of the military commander.</p> <p>The effect of martial law is to put into operation the powers and methods vested in the commanding officer by military law. So far as his powers for the preservation of order and security of life and property are concerned there is no limit but the necessities and exigency of the situation. And in this respect there is no difference between a public war and domestic insurrection. What has been called the paramount law of self-defense, common to all countries, has established the rule that whatever force is necessary is also lawful.</p> <p>While the military are in active service in the suppression of disorder and violence, their rights and obligations as soldiers must be judged by the standard of actual war.</p> <p>A soldier is bound to obey an order given by his superior officer which does not expressly and clearly show on its face, or in the body thereof, its own illegality, and such order will be a protection to the soldier.</p> <p>A homicide by a member of the militia called out to suppress disorder, committed without malice in the performance of his supposed duty as a soldier, and under the order of an officer, is excusable, unless it is manifestly beyond the scope of the militiaman’s authority, or is such as a man of ordinary understanding would know was illegal.”</p> <p>The governor of the Commonwealth issued a general order calling out a division of the militia for the purpose of preserving the public peace in certain counties in which a strike of miners was taking place, and in which tumults, riots and mobs prevailed. The militia was called out, and the general in command placed a corporal’s guard at a house which had been attacked with dynamite, and directed the members of the guard, if any attempt was made upon the house, or any person approached the house and failed to halt when directed, to shoot, and shoot to kill. One of the sentries, near midnight, discovered a man approaching the house, and he called upon him four times to halt. The man disobeyed the order, and the sentry shot and killed him. These facts were undisputed. The sentry was subsequently arrested on a warrant, but on habeas corpus proceedings in the Supreme Court, was released on bail. Held, that the relator should be discharged, inasmuch as the evidence against him failed to show a prima facie case.</p>

<p>Appeal, No. 207, Jan. T., 1902, by defendant, from order of C. P. No. 5, Pliila. Co., March T., 1902, No. 3505, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Peter Adams Paper Company v. Linda R. Cassard.</p> <p>Assumpsit on a contract of suretyship.</p> <p>The facts appear by 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>Voluntary association — By-laws—Amendment oj by-laws— Vested right— Pilot's association.</p> <p>When the rights of a member of a beneficial association have become fixed they cannot be affected by a change of the by-laws without his consent.</p> <p>A voluntary association of pilots adopted the following by-law : “ A member losing his license for any other cause than intoxication shall receive half pay until reinstated.” A member in active service and good standing became disabled by reason of impairment of his eyesight, and could no longer pursue his calling. His license was revoked and he was accorded half pay. Subsequently the by-law was amended so that it would read, “ A member losing his license through accident to the vessel, or through any other cause, except intoxication, shall receive one half pay until reinstated. A member losing his license for not being capable of following his business shall receive fifty dollars per month.” Held, that the disabled member was not bound by the amended by-law.</p>

<p>Master and servant — Payment—-Presumption—Housekeeper.</p> <p>The rule that there is a presumption that domestics are regularly paid, weekly, biweekly or monthly, according to the custom of the locality in which they render services to their employers, has no application when the head of the house assumes relations of intimacy with his servant, and takes a girl employed by him out riding, and by what he says and does indicates an intention to marry her. In such a case, the strict rule applicable to purely business relations cannot be invoked by the master, for the intimacy of his personal relations with his servant necessarily involves him in laxity in his business relations with her.</p>

<p>Boroughs — Ordinance—Resolution—Electric lighting — Electric light company — Contract—Estoppel.</p> <p>Where an electric light company makes an offer to a borough for the public lighting, stipulating the time within which the offer is to be accepted, and the borough accepts the offer before the expiration of the time specified, and thereafter the company takes certain steps as if to carry out the contract, the company is bound by a valid contract with the borough; and it is immaterial that the borough between the date of the offer and the time of the acceptance advertised and received bids for the public lighting.</p> <p>If an ordinance of a borough authorizes the borough council to make contracts for the lighting of the borough, the action of council in accepting a bid is merely ministerial, and not such an enactment, regulation, general law or ordinance as must be recorded in the borough ordinance book and advertised under the Act of April 3, 1851, P. L. 320, or the Act of May 23, 1893, P. L. 113. If objection is made that the resolution accepting the bid was not valid because there was no ordinance authorizing, the contract, the burden is upon the person making the objection to prove the non-existence of the ordinance.</p> <p>Where a resolution of a borough council accepting the bid of an electric light company contemplates the execution of a formal contract, and the company sends a form of agreement acceptable to the borough solicitor, and the latter promptly prepares the agreement as desired by the company and delivers it to the general manager of the company, the agreement is binding upon the company, although not executed by it.</p>

<p>Contracts — Parties—Joint obligation— Corporation.</p> <p>Wherever an obligation is undertaken by two or more, or aright given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of joinder are not necessary for this purpose ; but, on the other hand, there should be words of severance, in order to produce a several responsibility or a several right. Whether the liability incurred is joint, or several, or such that it is either joint or several at the election of the other contracting party depends (the rule above stated being kept in view) upon the terms of the contract, if they are express.</p> <p>Whether the liability of covenantors is joint, or several, or both, depends exclusively upon the words of the covenant. The language of severalty or joinder is the test. The covenant is always joint unless declared to be otherwise.</p> <p>Where the plaintiff by an instrument in writing agrees to build, equip and complete for 186 defendants, “a milk condensory plant,” for the agreed price of $42,000, and the price so agreed upon is to be paid by the defendants who are also to furnish the land on which the plant is to be built, the contract is a joint obligation of defendants, and it is immaterial that in the same paper the defendants agreed to become incorporated for the purpose of conducting the milk condensory, where it appears that the total subscription to the stock of such corporation in the paper was less than the contract price of the condensory and that thirty-six of the defendants subscribed to no stock at all but merely set opposite their names the number of cows whose milk would be furnished by them to the condensory.</p>

<p>Appeal, No. 225, Jan. T., 1902, by defendant, from judgment of C. P. Berks Co., Aug. T., 1901, No. 56, on verdict for plaintiff in case of Josiah Dives and George S. Pomeroy, trading as Dives, Pomeroy & Stewart, v. Fidelity and Casualty Company of New York.</p> <p>Assumpsit on policies of insurance against contractor’s liability for accidents. Before Endlich, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,097.07. Defendant appealed.</p> <p>Errors assigned were (1) in refusing motion to compel plaintiffs to elect on which of the two counts of their declaration they would proceed; (4) in entering judgment on the verdict on a point reserved.</p>

<p>Appeal, No. 197, Oct. T., 1902, by Ursula Breen, from decree of O. C. Allegheny Co., Nov. T., 1900, No. 168, dismissing appeal from register of wills in estate of Michael C. Kane, deceased.</p> <p>Appeal from register of wills admitting will to probate.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 162, Oct. T., 1902, by defendant, from decree of C. P., Washington Co., No. 986, on bill in equity in case of H. A. Kelly v. John W. Shay, Greensboro Natural Gas Company and S. F. McCaulley. Bill in equity between partners for an accounting. Before Taylor, J. The facts are stated in the opinion of the Supreme Court. Error assigned was the decree of the court.

<p>Appeals — Findings of fact — Evidence.</p> <p>A finding of fact in the court below as to the existence or nonexistence of a partnership, based upon sufficient evidence, will not be reversed by the Supreme Court in the absence of manifest error.</p> <p>Partnership — Settlement of accounts — Interest.</p> <p>In the settlement of partnership accounts the allowance or ref usal of interest depends upon the circumstances of each particular case; any unbending rule would work injustice in some case.</p> <p>Except where there has been a fraudulent retention, or an improper application of money of the firm, it is not the practice of the courts to charge a partner with interest on money of the firm in his hands.</p> <p>Partnership — Bight to engage in outside business.</p> <p>Where a partner reserves to himself the right to engage in business upon his own account in the same line in which the firm is engaged, he may, after purchasing stock of a corporation in whose business the partnership is interested, and paying for the same out of partnership assets, buy with his own money stock of the same corporation.</p>

<p>Appeal, No. 174, Oct. T., 1902, by S. F. McCaulley, from decree of C. P. Washington Co., No. 986, on bill in equity in case of H. A. Kelley v. John W. Shay, Greensboro Natural Gas Company, and S. F. McCaulley et al.</p>

Appeal, No. 93, Jan. T., 1902, by-Frank C. Richmond, from decree of O. C. Lycoming Co., dismissing appeal from register of wills in estate of W. D. Richmond, deceased. Appeal from register of wills admitting will to probate. The facts appear by the opinion of the Supremo Court. Error assigned was the decree of the court.

Appeal, No. 205, Jan. T., 1902, by defendant, from decree of Superior Court, Jan. T., 1902, No. 41, reversing judgment of C. P. Bradford Co., Feb. T., 1899, No. 177, non obstante veredicto in case of Charles W. Mitchell v. Allen A. Spaulding. Appeal from Superior Court. The facts appear by the opinion of the Supreme Court and by the report of 20 Pa. Superior Ct. 296. Error assigned was the decree of the Superior Court.

Appeal, No. 245, Jan. T., 1902, by plaintiff, from judgment of Superior Court Jan. T., 1902, No. 47, affirming judgment of C. P. Bradford Co., Dec. T., 1899, No. 241, non obstante veredicto in case of Hanford L. Spaulding v. Charles E. Bullock. Appeal from Superior Court. The facts appear by the opinion of the Supreme Court and by the report in in 20 Pa. Superior Ct. 301.

Appeal, No. 38, Jan. T., 1903, by plaintiff, from order of C. P. Lycoming Co., Sept. T., 1902, No. 322, refusing to take off nonsuit in case of Mary A. De Long v. William E. Delaney. Trespass to recover damages for negligence. Before Hart, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was the order of the court.

Appeal, No. 357, Jan. T., 1902, by defendants, from decree of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 2107, on bill in equity for partition in case of Margaret Dailey, Guardian of Amelia Bradley Sharpe, a Minor, v. John Frey and Julia Frey, his Wife. Bill in equity for partition.

Appeal, No. 350, Jan. T., 1902, by defendant, from decree of C. P. No. 1, Phila. Co., June T., 1902, No. 4511, on bill in equity in case of James L. Rhymer v. Tobias L. Fretz. Bill in equity for an injunction. Before Bregy, J. The facts are stated in the opinion of the Supreme Court. Error assigned was the decree of the court.

Appeal, No. 65, Jan. T., 1903, by trustees, from order of C. P. No. 2, Pkila. Co., Sept. T., 1899, No. 3259, discharging rule to strike off writ of fieri facias in case of George Ellwanger and William C. Barry, Copartners, trading as Ellwanger & Barry, v. A. H. Moore, Defendant, and the Fidelity Trust Company, Joseph F. Sinnott and Walton Pennewill, Executors and Trustees of Andrew M. Moore, Deceased, Garnishees. Rule to strike off fieri facias.

Appeal, No. 64, Jan. T., 1903, by trustees, from order of C. P. No. 2, Phila. Co., June T., 1897, No. 926, discharging rule to strike off writ of fieri facias in case of Germantown Real Estate Deposit and Trust Company, Ancillary Administrator of the Estate of Robert P. Pepper, Deceased, v. Albert H. Moore, and the Fidelity Trust Company, Joseph F. Sinnotfc and Walton Pennewill, Executors and Trustees of Andrew M. Moore, Deceased, Garnishees.

Appeal, No. 76, Jan. T., 1903, by Albert H. Moore, from order of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 3259, discharging rule to strike oft' writ of fieri facias in case of George Ellwanger and William C. Barry, Copartners, trading as Ellwanger & Barry, v. A. H. Moore, Defendant, and the Fidelity Trust Company, Joseph F. Sinnott and Walton Pennewill, Executors and Trustees of Andrew M. Moore, Deceased, Garnishees.

Appeal, No. 75, Jan. T., 1903, by Albert H. Moore, defendant, from order of C. P. No. 2, Phila. Co., June T., 1897, No. 926, discharging rule to strike off writ of fieri facias in case of Germantown Real Estate Deposit and Trust Company, Ancillary Administrator of the Estate of Robert P. Pepper, Deceased, v. Albert H. Moore, and the Fidelity Trust Company, Joseph F. Sinnott and Walton Pennewill, Executors and Trustees of Andrew M. Moore, Deceased, Garnishees.

<p>Principal and agent — National bank — Banks and banking — Dealing in stocks — Notice.</p> <p>Where a bank authorizes its cashier to buy and sell stocks, and the authority of the cashier is apparently general and without limitation as to the character and amount of the securities he is to purchase, and as to whether the transactions should be on margin or for cash, and it appears that the cashier opens an account in the name of the bank with a firm of brokers and buys and sells stocks on the bank’s account, both for cash and on margin, and it also appears that large profits were made for the bank on the cash transactions, the bank cannot, after the cashier has absconded, claim that it was not liable for losses on some of the margin transactions.</p>

<p>Insurance —Fire insurance — Cancellation — Contract—Action—Parties.</p> <p>A partnership consisting of two persons owned a policy of fire insurance which covered a building insured for an amount stated and the merchandise therein also for an amount stated. While the policy was in existence the partnership was dissolved, one of the partners transferring his interest in the merchandise to the other, and the latter his interest in the real estate to his copartner. At the same time they agreed that the policy should be changed to accord with their several interests. Four days after the dissolution the partner to whom the real estate had been conveyed died, and immediately thereafter the surviving partner informed the agents of the insurance company of the fact, and of what had been arranged. It was agreed between the surviving partner and the insurance company’s agent that the company should issue two new policies, one to the surviving partner on the merchandise, and one to the deceased partner on the building, and that the two should be dated as of the day of the dissolution of the partnership. The company agreed to send the policy for tbe real estate to the attorney of the deceased partner. When the attorney received it he noticed that it was made out in the name of the deceased as the insured. Thinking that it was a mistake to have the policy issued in the name of the dead man, he sent it back to the agents with a request that it should be made out to the-estate of the deceased. The agents persisted in their opinion that it was correctly made out and returned it. The attorney sent it back by a messenger, with instructions to explain the circumstances fully to the agents. The agents, however, adhered to their first opinion and asked the messenger whether the attorney wanted the policy canceled. He answered that the attorney did not want it canceled, and that the attorney would call and see them about it in a few days. He did call but failed to see the agents. Within a year afterwards a fire occurred which destroyed both building and merchandise. The company denied liability for loss on the building alleging that the policy had been canceled before the fire. In a suit upon the policy it appeared that the company had not canceled the insurance in the manner prescribed by the policy by five days’ notice, and the return of the unearned premium. Held, that the contract as to the new policy on the building was complete when the surviving partner acting as agent for his copartner and the insurance agent both agreed to it, and that the insurance company was liable for the loss of the building.</p> <p>In such a case, it appearing that the insurance was for the insured or his legal representative, the suit can be sustained in the name of the administrator of the deceased partner, subject to the jurisdiction of the orphans’ court to distribute the fund raised by it.</p>

Appeal, No. 83, Jan. T., 1903, by-defendant, from judgment of C. P. Luzerne Co., Dec. T., 1897, No. 552, on verdict for plaintiff in ease of Willian H. Miller v. Wilkes-Barre Gas Company. Trespass to recover damages for refusing to supply plaintiff witb gas. Before Wheaton, J. The facts appear by the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $2,500. Defendant appealed.

<p>Will — Form of will — Testamentary paper — Probate.</p> <p>No formal words are necessary in order to make a valid will; the form of the instrument is immaterial, if its substance is testamentary. A gift or bequest after death is of the very essence of a will, and determines a writing, whatever its form, to be testamentary. AVhether a writing is a will or not, does not depend upon the maker’s declaring it to be a will at the time he executes it, but upon its contents.</p> <p>A paper duly executed in conformity with the Wills’ Act was offered for probateas follows: “ To whom it may concern: This is to certify that in consideration of the fact that my step-daughter has shared her home with me and attended to my business, correspondence &c., forme since the decease of my husband, and that she has made no charge for said courtesies during said period of time, Now, therefore, be it known that I desire and so affirm that my said step-daughter shall receive as compensation for said services out of my estate a sum of money or its equivalent that shall aggregate two thousand dollars — the aggregate amount of one hundred dollars per year for a period of twenty years to date. I also wish it to be understood that the above mentioned compensation shall not affect any right that she may have as devised to her in any will or testament of mine that may be in force at the time of my decease.” It appeared that the amount mentioned in the paper was about half the estate which consisted of railroad and other stocks. The paper was delivered to the stepdaughter, and remained in her possession until the stepmother’s death. Held, that the paper was testamentary in character, and should have been admitted to probate.</p> <p>The delivery of a testamentary paper to the person beneficially interested, where no present interest passes, does not destroy the testator’s power of revocation. It is still ambulatory; to take effect only after death in case it is not revoked.</p>

<p>Negligence — Street railways — Grossings—“Stop, look and listen” — Motormen.</p> <p>The rule that persons about to cross a street railway must not only look when first entering the street, but must continue to look until the track is reached, applies to motormen upon street cars ; and if a motorman is injured by failure to observe this rule he cannot recover from the street railway company, and this is the case although the car which be is operating may have the right of way over the ear with which he collides.</p> <p>The motorman first reaching a street crossing with his car may not go on and by easting the whole burden of care on the other imperil the property of the company and the lives of the passengers in his car.</p>

<p>Negligence — Railroad—Bridge—Province of court and jury,</p> <p>A railroad company owned a covered bridge 800 feet long. At the side of the track was a wagon road used by the public on the payment of tolls, but so close to the track that a train and a wagon could not safely pass at the same time. On the approach to the covered portion of the bridge the space between the side of the cars and the wheels of wagons was only three or four feet. A safety gate was placed at the land end of the approach. The gate was lowered when the bridge was in use for the passage of trains, and raised when the gate was opened to the public. The driver of a wagon who knew the rules as to the gate, having paid toll and finding the gate raised drove on the approach. After a time he was stopped by a line of wagons which had been halted near the end of the bridge. This was caused by the derailment of some ears on a train that was being pushed across the bridge in the direction in which the driver was going. At the time the driver stopped, this train had been cut in two and a locomotive with tender in front was drawing a portion of the train back towards the driver at the rate of eight to nine miles an hour. The driver testified that when he stopped, he got off the wagon and stood on the tracks, and then for the first time saw the train. He was not able to extricate himself, and he was injured in the attempt to hold his horses. Held in an action against the railroad company to recover damages for the injuries, that the case was for the jury.</p>

<p>Appeal, No. 342, Jan. T., 1903, by Mary A. Knorr and Mildred Knorr Smith from order of O. P. Columbia Co., dismissing 'exceptions to auditor’s report in case of Bowman et al. to use of George W. Vansiclen v. Samuel Knorr.</p> <p>Exceptions to auditor’s report. Before Little, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 345, Jan. T., 1903, by E. B. Brower, from order .of C. P. Columbia Co., dismissing exceptions to auditor’s report in case of Bowman et ah, to use of George W. Vansiclen v. Samuel Knorr. Exceptions to auditor’s report. From the record it appeared that Samuel Knorr died on March 2, 1889, seized of a tract of land in Centre township.

<p>Appeal, No. 262, Jan. T., 1902, by-plaintiff, from order of C. P. Erie Co., Nov. T., 1901, No. 56, discharging rule to amend record in case of Charles S. Wright v. Eureka Tempered Copper Company.</p> <p>Rule to amend record. Before Walling, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in discharging rules to amend the record and return.</p>

<p>Appeal, No. 48, Jan. T., 1903, by defendant, from judgment of O. & T. Luzerne Co., April T., 1902, No. 102, on verdict of guilty of murder in the first degree in case of Commonwealth v. Peter Lenousky.</p> <p>Indictment for murder. Before Wheaton J.</p> <p>At the trial it appeared that on the night of February 11, 1902, Anthony Senik, a miner, was murdered in the Exeter mines. Peter Lenousky and Victor Zorambo were arrested for the killing, and each charged the other with the murder. The testimony tended to show that they combined to do the killing for the purpose of robbery. At the trial the court admitted in evidence the stenographic testimony of Barney Polikitis given at a preliminary hearing in the office of the committing magistrate.</p> <p>The court charged in part as follows:</p> <p>[Gentlemen, whether Anthony Senik was murdered, is a fact for your determination. There seems to be no question, however, that such is the fact. He was found with his skull crushed and near him the bloody ax which in all likelihood was the weapon used to commit the crime. There was nothing about the chamber to indicate death by accident. To those of us who live in the anthracite coal fields and who know the dangers to life and limb which the anthracite miner is bound to face in the ordinary pursuit of his calling, there is an added horror in the thought that it can be possible that out of the darkness of the mine may come to him sudden death at the hands of the robber and the murderer.]</p> <p>Verdict and judgment of murder in the first degree.</p> <p>Errors assigned were admission of testimony as above and portion of charge as above, quoting it.</p>

<p>Land law — Surveys—Warrants—Boundaries.</p> <p>The'marks of a block consist of the marks, if such are found, of every tract of the block, and the marks if originally intended as corners for a particular tract become marks for locating the whole block.</p> <p>The location of a block of surveys maybe established from a single undoubted monument of the block on the ground if there be no others, by the courses and distances in the return; the interior tracts rniist then be located relatively wholly from the return of the block; but the return may show marks for corners of the interior tracks; if these be found upon the ground they establish the lines of these interior tracts although this may to some extent disturb the lines of the block; such a location of an interior tract of a block although it may somewhat change the course of the exterior line as plotted in the return or shorten that line running from the leading warrant, yet giving effect to that fact, does not disregard the established rule, that a member of a block cannot be wrested from its position and be located outside of it; it is not thereby wrested from the block but its position is relatively the same as in the return although one of the exterior lines of the block has been for a short distance deflected from its course to accord with the established monuments on the ground of the interior tract common to it and the block of which it is a member; but there can be no block of surveys in either a popular or legal sense where the tracts are not contiguous.</p> <p>In a land case where the location of two contiguous tracts of a block depends upon the position of an interior line of the block, and the evidence as to the marks of early surveys is conflicting, the ease is for the jury.</p>

Appeal, No. 119, Jan. T., 1903, by plaintiff, from decree of C. P. McKean Co., June T., 1902, No. 2, dismissing bill in equity in case of John G. Gray and Carl R. Bard, trading as Gray Chemical Company, v. Citizens’ Gas Company of Port Alleghany. Bill in equity for specific performance of a contract for supplying natural gas to a chemical factory.

<p>Appeal, No. 59, Jan. T., 1903, by defendants, from judgment of C. P. Warren Co., March T., 1902, No. 43, on verdict for plaintiffs in case of N. P. Wheeler and John Dusenbury v. W. J. Knupp, William I. Bachop, J. H. Osmer and John Knupp.</p> <p>Ejectment for a tract of land in Watson township. Before Lindsey, P. J.</p> <p>The facts appear by the opinion of the Supreme Court, and by the former report of the case, Knupp v. Syms, 200 Pa. 489.</p> <p>The court gave binding instructions for plaintiffs.</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p>

<p>Practice, G. P. — Pleading—Statute of limitations — Amendment.</p> <p>The statute of limitations is a defense upon facts, and must be pleaded. It cannot be made by a demurrer which raises only an issue of law. It is not a defense absolute of which the court will take judicial notice on the plaintiff’s pr-esentation of his case, either in his declaration or at the trial, for if the defendant does not choose to make it, it is not a part of the case at all. And the only way the defendant can make it is by plea.</p> <p>The defense of the statute of limitations cannot be raised by demurrer either at common law, or under the practice act of May 26, 1887, P. L. 271.</p> <p>In an action upon a promissory note brought six years after the expiration of the date of the note where the statement avers that the defendant' has always refused to pay the note, and an amended statement filed by leave of court sets forth facts sufficient to remove the prima facie bar of the statute of limitations, it is error for the court to enter judgment for defendant on the amended statement on the ground of the inconsistency between the two statements. In such a case the amended statement is the only one before the court.</p>

Appeal, No. 15, Jan. T., 1903, by defendant, from judgment of C. P. Susquehanna Co., Nov. T., 1900, No. 57, on verdict for plaintiff in case of A. H. McCollum and A. B. Smith, Executors of H. W. Lord, Deceased, v. Frank Carlucci. Assumpsit for breach of partnership agreement. Before Searle, P. J. The facts appear by the opinion of the Supreme Court. The court refused binding instructions for defendant.

<p>Appeal, No. 60, Jan. T., 1903, by plaintiffs, from judgment of C. P. Bradford Co., Sept. T., 1899, No. 238, for defendant non obstante veredicto in case of James McFarlane & Company v. ET. E. Kipp, G. W. Kipp and E. F. Kizer, trading as Hiram Frisbie & Company and G. W. Kipp & Company.</p> <p>Assumpsit against a partnership. Before Niles, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for the defendants non obstante veredicto.</p>

<p>Appeal, No. 25, Jan. T., 1903, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1902, No. 2363, discharging rule for judgment for want of a sufficient affidavit of defense in case of Francis Willey, trading as Francis Willey & Company, v. William Browne.</p> <p>Assumpsit on promissory notes.</p> <p>From the record it appeared that suit was brought on four, promissory notes dated November 9,1901, payable at different times, given by defendant as composition notes in a proceeding in bankruptcy. The notes were given under an agreement that if default should be made upon any one all the others should become due.</p> <p>Defendant filed an affidavit of defense as follows :</p> <p>The promissory notes upon which suit is brought were executed in pursuance of a composition in bankruptcy offered by the firms of William Browne & Sons and the Phoenix Mills Company, of which the defendant was a member. The said Francis Willey & Company, who were creditors of said bankrupts, opposed the said composition and upon its confirmation by the United States district court for the eastern district of Pennsylvania, appealed to the circuit court of appeals. The said Francis Willey & Company were represented in said proceedings in bankruptcy and in the appeal taken from the said confirmation by Messrs. Greenwald & Mayer, their counsel in the present proceedings.</p> <p>After the taking of the said appeal a settlement was had with the said plaintiff, through his attorneys, Messrs. Greenwald & Mayer, who were duly authorized to act in the premises, whereby in consideration of the payment by one Charles F. Clarke of the sum of $8,500 in cash and the execution and delivery of five promissory notes executed by the said Charles F. Clarke and indorsed by the Schuylkill Worsted Mills Company, the said appeal was discontinued and the plaintiff assigned to the said Clarke all claims and demands which he had or might have against the estate of William Browne & Sons or the Phoenix Mills Company or any of the partners composing said firms, including the said promissory notes now in suit. It was further agreed that the said Greenwald & Mayer should retain all the composition notes given to the appellants in said proceedings, in order to secure the payment of the said notes given by said Clarke, but by a supplemental agreement it was expressly stipulated that the notes now in suit should be held only to secure the payment to said Greenwald & Mayer of the sum of $1,750, and that all other moneys received thereon should be the property of the said Charles F. Clarke.</p> <p>The said settlement and supplemental agreement are evidenced by two writings, copies of which are hereto annexed and made part hereof.</p> <p>Deponent avers that the said Charles F. Clarke by assignment dated April 1, 1902, a copy of which is hereto annexed and made part hereof, assigned and transferred to this deponent all his, the said Clarke’s interest, right and title in the said promissory notes upon -which this suit is brought.</p> <p>' Deponent has been notified by Messrs. Greenwald and Mayer and believes and therefore avers that the said sum of $1,750, to secure the payment of which the said notes were held by them, is payable to them in their own right and for their own use, and that the said Francis Willey & Company have no- interest therein and have no title to or interest in the said notes for which this suit is brought.</p> <p>Deponent further avers that in addition to the sum of $1,415.44 which the said Greenwald & Mayer have already received by way of dividend on said notes out of the proceeds of certain property conveyed in trust to secure their payment, as set forth in the statement of claim, the said Greenwald & Mayer have received or are now entitled to receive a further dividend which will be sufficient to make up the sum of $1,750, for which said notes are held.</p> <p>The agreements and assignments referred to in the affidavit of defense were as follows :</p> <p>“ COPY OP AGREEMENT.</p> <p>This agreement entered into this Twenty-eighth day of September, A. D., 1901, between Charles F. Clarke of the one part, and Francis Willey & Company, Hecht Liebeman & Company, Bach Becher & Company, Mawson Brothers, and Brown & Adams, of the other part (said Francis Willey & Co., Hecht Liebeman & Co., Bach Becher & Co., Mawson Bros, and Brown & Adams, being Appellants in a certain appeal now pending and undetermined in the Circuit Court of Appeals for the Third Circuit, No. 16, September Term, 1901); Witnesseth:</p> <p>“ First. In consideration of the payment to Messrs. Greenwald & Mayer, attorneys for the said Appellants, of the sum of Eight thousand five hundred dollars, and of the execution and delivery of the notes hereinafter mentioned, the said Appeal shall be discontinued of record without costs to either party.</p> <p>“ Second. The notes.hereinbefore mentioned are drawn by the said Charles F. Clarke to the order of the Schuylkill Worsted Mills Company and indorsed by the said Company, in pursuance of a resolution of the directors thereof, duly passed and bear date September 26 th, 1901. Said notes are for the following amounts and terms:</p> <p>“ One for $3,217.51 payable three months after date.</p> <p>“ One for $3,217.51 payable six months after date.</p> <p>“One for $1,066.44 payable four months after date.</p> <p>“ One for $1,079.44 payable four months after date.</p> <p>“ One for $2,748.00 payable three months after date.</p> <p>“ Third. The said parties of the second part in consideration of the premises hereby assign unto the said Clarke all claims and demands which they, or any of them have, or may have, against the bankrupt estate of William Browne & Sons and The Phoenix Mills Company, or against any of the partners composing said William Browne & Sons and The Phoenix Mills Company.</p> <p>“ Fourth. As collateral security for the payment of the notes above mentioned, Messrs. Greenwald & Mayer shall be entitled to receive and retain the several composition notes offered by William Browne to the said parties of the second part, and upon the payment of all the notes mentioned in the second clause, all of the said composition notes shall be delivered to said Clarke.</p> <p>“ Fifth. If default shall be made in the payment of any of the notes executed by Clarke, the said composition notes shall be retained until the parties of the second part shall have received thirty-three and one-third per cent, of their respective claims except Francis Willey & Co., who are entitled to receive two thousand dollars ($2,000) cash over and above the said thirty-three and one-third per cent.</p> <p>“Sixth. As further collateral security for the payment of said notes, the said Clarke agrees upon the issue of certain bonds of the Schuylkill Worsted Mills Company, to which he is entitled for services rendered to deliver to said Greenwald & Mayer, as trustees for the parties, bonds covering twenty-five per cent, of the claims of the parties mentioned as Appellants in the suit now pending, which bonds shall be returned to said Clarke upon the payment of the notes given by him.”</p> <p>“ COPY OP SUPPLEMENTAL AGREEMENT.</p> <p>“ Whereas a certain agreement was entered into on the 28th day of September, 1901, wherein Charles F. Clarke, Francis Willey & Co., Hecht, Liebeman & Co., Bach Becher & Co., Mawson Bros., and Brown & Adams are parties; and it is therein agreed by Paragraph Four (4) in said agreement, as follows: ‘ As collateral security for the payment of the notes above mentioned, Messrs. Greenwald. & Mayer shall be entitled to receive and retain the several composition notes offered by William Browne to the said parties of the second part, and upon the payment of all the notes mentioned in the second clause, all of the said composition notes shall be delivered to said Clarke.’</p> <p>“ It is further agreed, that of the composition notes given by the said William Browne, there shall be retained by Greenwald & Mayer from the proceeds of such composition notes to which Francis Willey & Co. are entitled, the sum of Seventeen hundred and fifty dollars ($1,750), and when such sum is paid any other moneys realized upon said notes shall be paid to said Clarke.</p> <p>“ When the notes given by said Clarke to the order ■ of the Schuylkill Worsted Mills Company shall have been entirely paid, all other composition notes given by William Browne shall be surrendered unto said Clarke.”</p> <p>“ COPY OP ASSIGNMENT.</p> <p>“ For value received I hereby assign and transfer unto William Browne all my right, title and interest in four certain promissory notes drawn by the said William Browne to the order of Francis Willey & Company, dated November 9, 1901, one of them for $2,058.81, payable four months after date; another of them for $2,573.51, payable eight months after date; one of them for $2,573.51, payable twelve months after date ; one of them for $1,372.53, payable sixteen months after date ; which said notes have been assigned and transferred to me by the said Francis Willey & Company, under an agreement entered into with them dated September 28, 1901, and are now held to secure the payment to Messrs. Greenwald & Mayer of the sum of $1,750, as provided in a certain supplemental agreement entered into on October 1, 1901.</p> <p>“ Witness my hand and seal this first day of April, A. D., 1902.</p> <p>“ Charles F. Clarke.” (Seal)</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 358, Jan. T., 1902, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1902, No. 2450, on verdict for plaintiff in case of Annie Behl v. Philadelphia. Trespass to recover damages for death of plaintiff’s husband. Verdict and judgment for plaintiff for $5,000. Defendant appealed. Error assigned was in submitting the case to the jury.

<p>Appeals — Assignments of error — Findings of fact and law.</p> <p>An assignment of error which includes the rulings of the judge below on a large number of different requests for findings of fact and law is in total violation of the rules of court, and will not be considered.</p> <p>Corporations — Bonds—Ownership of bonds — Evidence—Equity.</p> <p>A bill in equity to recover the bonds of a corporation cannot be sustained where the plaintiff fails to show ownership of the bonds in himself, and merely shows that the bonds were issued to him as an officer of the corporation to be used in making purchases or raising funds for it.</p> <p>A bill in equity filed by a person as owner of collateral to recover the collateral on the ground that the debt secured by it had been paid in full cannot be sustained, where it appears that the suit was not brought until twenty-six years from the time the right of action accrued, and that the delay was due to plaintiff’s difficulty in establishing his title to the collateral as against another party. In such a case equity follows the law as to barring the action.</p>

Appeal, No. 348, Jan. T., 1902, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1900, No. 293, on verdict for plaintiff, in case of Philadelphia to use of McAvoy Vitrified Brick Company v. Aaron M. Neill and Lincoln Savings & Trust Company. Assumpsit on a bond given under ordinance of the city of Philadelphia of March 30, 1896.

<p>Appeal, No. 224, Jan. T., 1902, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1898, No. 296, on verdict for defendant in case of Thomas H. Fitzpatrick v. Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Sulzberger, J.</p> <p>At the trial it appeared that plaintiff was injured on December 14, 1897, by a collision with a wagon which he was driving and a car of the defendant company.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) extracts from the charge quoted in the opinion of the Supreme Court; (2) the charge as a whole, quoting it i (3-6) exclusion of certain offers of evidence, quoting the bill of exceptions.</p>

<p>Street railways — Boroughs— Contract — Performance—Impossibility of performance..</p> <p>A street railway company which has entered into a contract with a, borough to build a railway on a street, is not relieved from its contract by reason of the fact that for a distance of 750 feet, the company was confined -to the use of about eleven feet only in width of the highway ; and this is especially the ease where the evidence is not conclusive that the railway could not have been constructed and operated on the street.</p> <p>Contract — Performance—Impossibility of performance.</p> <p>Impossibility of performance of a contract is in general no answer to an action for damages for nonperformance.</p> <p>Impossibility of performance, whether such impossibility arises through the fault of the promisor or not, will not constitute a valid defense to an action for a breach of a contract. If the promisor makes the promise conditional upon its continued possibility, then the risk is assumed by the promisee and he loses his right of action, if the contingency arises. But if the promisor makes the promise unconditionally, then he assumes the risk, and as a general rule he cannot set up the impossibility of performance as a defense to an action by the promisee.</p>

<p>Street railways — Elevated passenger railway — Eminent domain — Injunction — Equity.</p> <p>A passenger railway incorporated under the Act of June 7, 1901, P. L. 523, for the purpose of constructing an elevated passenger railway on a public highway of a designated distance of one mile, may after it has received the consent of the local authorities, and has filed a bond to secure a nonconsenting landowner, build such a road, notwithstanding the existence of injunctions secured at the instance of the landowner and restraining other street railway companies from building a surface street railway on the mile designated, so as to complete a continuous line of long distance electric railway.</p> <p>Appeals — Assignments of error — Equity—Exceptions.</p> <p>The appellate court will not consider a question which was not included in or alluded to in any finding of fact or of law by the trial court, not made the subject of any exception, nor set forth in any specification of error.</p>

Appeal, No. 14, Jan. T., 1903, by plaintiff, from order of C. P. Bradford Co., Sept., T., 1901, No. 411, refusing to take off nonsuit in case of William M. Fleschhut v. Lebigli Yalley Railroad Company. Trespass to recover damages for personal injuries. Before Fanning, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Attorney at law — Counsel fees — Remedy at law.</p> <p>An attorney at law has a lien, or rather a right of defalcation on money or papers of his client while they are in his hands; but in a common-law action he has no such right of lien on his client’s money in the hands of third persons, or upon a fund brought into court for distribution.</p> <p>Where a suit in equity is brought to recover certain bonds, but an amicable agreement is reached, by which the bonds are to be returned, the attorney for plaintiff, although having rendered valuable services to the plaintiff, has no lien upon the bonds, and if at the attorney’s instance the defendant deposits certain of the bonds with the prothonotary, the court has- no jurisdiction to appoint an auditor to determine the amount of the attorney’s fee, and to order that such fee when ascertained shall be paid out of the bonds deposited by leave of court. In such a case the attorney has a complete and adequate remedy at law, which he must pursue.</p>

<p>Appeal, No. 352, Jan. T., 1902, by Henry C. Terry, from decree of C. P. No. 1, Phila. Co., March Term, 1898, No. 580, dismissing exceptions to auditor’s report in case of Quakertown & Eastern Railroad Company v. Guarantors’ Liability Indemnity Company of Pennsylvania et al.</p>

<p>Appeal, No. 332, Jan. T., 1902, by plaintiff, from order of O. P. No. 5, Phila. Co., March T., 1901, No. 119, refusing to take off nonsuit in case of Thomas E. Holt v. Pennsylvania Railroad Company.</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>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 244, Jan. T., 1902, by plaintiff, from decree of C. P. Luzerne Co., Feb. T., 1901, No. 5, dismissing bill in equity in case of Frank Fink et al. v. Franklin E. Van Fossen, Guardian of Lucy May Kicberer. Bill in equity to cancel a deed. Febbis, J., found the facts to be, as follows : 1. On and before September 18, 1883, Thomas Fink was the owner in fee of the land described in the plaintiff’s bill.

<p>Appeal, No. 63, Jan. T., 1903, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1900, No. 933.</p>

Appeal, No. 327, Jan. T., 1902, by plaintiffs, from decree of C. P. Luzerne Co., Dec. T., 1901, No. 365, discharging rule for judgment for want of sufficient affidavit of defense in case of B. W. Andrews and George M. Randall, trading as B. W. Andrews & Company v. Blue Ridge Packing Company. Assumpsit on promissory notes. Rule for judgment for want of sufficient affidavit of defense.

<p>Appeal, No. 72, Jan. T., 1903, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1899, No. 1825, on verdict for plaintiffs, in case of William Aspinall .et al., trading as Aspinall & Hayes, to use of Thomas McCullough, v. Emily W. Viney, Administratrix of William Viney, Deceased.</p> <p>Assumpsit for balance of account. ■ Before Willson, J.</p> <p>At the trial it appeared that William Viney gave to Thomas McCullough an order for $3,000, as follows :</p> <p>“ Bryn Mawf, Pa., June 30, 1898. J. W. Mercur & Company. Please pay to the order of Thomas McCullough the sum of $3,000 and charge the same to my account for stone and brick work, etc., at the Broadway M. E. Church, Camden, New Jersey. Signed, William Viney.”</p> <p>Mercur & Company accepted the order, but stipulated that it should not be paid “ until after the completion of the contract.” On July 29, 1898, Viney wrote to McCullough the following letter:</p> <p>“ Mr. Thomas McCullough — Dear Sir: I write a line to you in regard to the order you hold from me on Mercur & Co. I have been thinking that it might be better if you took a note from them for the amount of the order and deposit it in your bank for collection when it becomes due, and if they did not pay the note, it seems to me it would be better to sue them on the note than the order. I heard yesterday that some of the people' doing' the work on the asylum are stopping the work on account of not getting paid. Yours truly,</p> <p>“ William Viney.”</p> <p>The order was accepted some time before the above letter was written, but the evidence as to the exact date was not definite. The work on the contract was completed July 25, and in a settlement made about that time between Mercur & Company and Viney, Mercur & Company claimed credit for $3,000, not because they paid the money, but because they had accepted the order. McCullough subsequently accepted notes from Mercur & Company. These notes were never paid. • There was evidence that at the time the letter from Viney to McCullough was written Viney was insane. There was no evidence, however, that McCullough knew of this,</p> <p>The court charged in part as follows :</p> <p>[I do not know that it could properly be said that a man who received an order of that sort, when he knows nothing to put him on guard, when he knows nothing to indicate that the man on whom the order is given is in precarious financial circumstances, is bound to present it at once.] [5] [He should present it in what a prudent business man, aman of reasonable intelligence, would say was a reasonable time.] [6]</p> <p>Yerdict and judgment for plaintiff for $8,103.57. Defendant appealed.</p> <p>Errors assigned among others were (5, 6) above instructions, quoting them.</p>

<p>Contracts — Estoppel — Notice — Taking over business of anothex — Assuxnptioxi of debts.</p> <p>Where a person takes over the entire stock of goods of another and publishes or causes to be published a notice to the effect that he has assumed the debts for goods purchased by the previous owner, creditors of the previous owner are entitled to sue such person in their own names, if their claims are within the consideration, or on the principle of an estoppel, if they are led to believe so, and to act upon such belief to their prejudice in reliance on the notice. In such a case no question of the statute of frauds arises, for by the taking of the entire stock a consideration passed to the purchaser, and the creditors though not parties to the contract were parties to the consideration.</p> <p>Atlox'neys at laxo — Witness—Evidexice—Confidential coxnxmixvication.</p> <p>The mere fact that a person is an attorney at law does not render him incompetent to testify as to matters affecting his client, except as to confidential communications.</p> <p>The mere fact of employment of an attorney is not a confidential or privileged communication.</p>

<p>Contract — Estoppel—Assumption of debts of another — Eeeeipt—Accord and satisfaction.</p> <p>Where a creditor gives to his debtor a receipt in full for an amount stated which in fact was only a portion of the real claim, and the debtor uses the receipt as a basis for selling his entire stock of goods to a third person, who relying upon the receipt publishes a notice that he has assumed all of the debts of the debtor, the creditor is estopped by reason of the receipt from making any claim against the purchaser of the goods; and it is immaterial that as between the parties to the receipt there was no accord and satisfaction.</p> <p>The rule that payment of a smaller sum is not a good accord and satisfaction for a larger one applies only between debtor and creditor, and not to third parties.</p>

<p>Appeals — Assignments of error — Practice, Supreme Court.</p> <p>It is improper practice on appeal to raise the same question by several different assignments of error.</p> <p>Negligence — Evidence—Opinion of witnesses — Grade crossing.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing it is error to admit the opinion of witnesses to show that the crossing was dangerous, where the facts disclosed by the evidence give an intelligent description of the situation. In such a case the jury have before them all that is necessary to enable them to form an opinion themselves as to the character of the crossing.</p> <p>Negligence — Railroads—Grade crossing — Duty as to flagman.</p> <p>On running its trains over a crossing, a railroad company must exercise the care required by all the circumstances, and the failure to perform this duty is negligence. It must adopt and use some means for the protection of those who may be crossing its tracks at their intersection with a public highway. But what particular means shall be used to protect the public when using the crossing with duo care is left to the railroad company which operates the road, the law merely demanding and requiring reasonable cai-e in view of all the circumstances.</p> <p>It is not negligence per se for a railroad company not to guard a crossing with a flagman or watchman. It is only one of the elements to be considered with others in determining whether the company is negligent.</p> <p>Negligence — Damages—Carlisle tables.</p> <p>' In an accident case where the Carlisle tables are admitted to show the expectancy of life of the plaintiff, the court must carefully guard the effect of the evidence by directing the attention of the jury to the circumstances affecting the duration of the life in question. It is not sufficient to say that the tables are some aid, but not conclusive in determining the probable life of the plaintiff. All the circumstances affecting the probable duration of the plaintiff’s life as disclosed by the evidence or concerning which there is testimony, should be called to the attention of the jury.</p> <p>Negligence — Railroads—“ Stop, loolc and listen ” — Grade crossing.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained while plaintiff was driving over a grade crossing, the plaintiff testified that he stopped at a point between sixty and seventy feet from the track, and that this point “was the best placo I could get to look through.” The view eastward from which the train approached was somewhat obstructed, but he said that at that point there was an open space of sixty feet through which he could see in an easterly direction the railroad tracks. He testified, “ I looked out through there, and there was nothing to be seen ahead of me, and I thought I could drive across.” He had passed safely over two tracks and his horse went beyond the third track when his vehicle was struck and he was injured. Held that the question of plaintiff’s contributory negligence was for the jury.</p> <p>Practice, O. P. — Points for charge — Several propositions.</p> <p>A point for charge containing several propositions of law, some good, and others clearly not, is properly refused. A point should contain but a single legal proposition and be so constructed that the trial court can answer it by a simple affirmation or negation.</p>

Appeal, No. 282, Jan. T,, 1902, by Jacob O. Minnich, from decree of O. C. Lancaster Co., May T., 1902, No. 25, dismissing exceptions to adjudication in estate of Anna Minnich, deceased. Exceptions to adjudication. Before Smith, P. J. At the audit Jacob O. Minnich claimed his share of his mother’s estate divested of any trust.

Appeal, No. 103, Jan. T., 1903'; by plaintiff, from decree of C. P. Lancaster Co., Equity Docket No. 4, page 19, dismissing bill in equity in case of Mary C. Svenson v. Howard Rohrer. Bill in equity for reconveyance of real estate. Landis, P. J., found facts as follows: FINDINGS OF FACT The plaintiff resides in the county of Lancaster, and the defendant in the city of Lancaster, and both of them have there resided for a number of years.

<p>Appeal, No. 84, Jan. T., 1903, by defendant, from judgment of C. P. Lancaster Co., Dec. T., 1900, No. 18, on verdict for plaintiff in case of Mollie Geist et al. v. Dionysius H. Rapp.</p> <p>Trespass to recover damages for death of plaintiff’s husband.</p> <p>At the trial it appeared that Abram Geist was killed in July, 1900, by the fall of a scaffolding on a new building in construction at the Millersville State Normal School for which the defendant was contractor. Plaintiff introduced evidence which tended to show that the scaffolding was erected in an unusual manner and with insufficient material. The evidence as to whether the defects were so manifest that the deceased should have known them, was conflicting. The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for |3,300. Defendant appealed.</p> <p>Errors assigned were (1) in submitting the case to the jury; (2) answer to defendant’s third point referred to in the opinion of the Supreme Court; (3) in permitting exhibition of model also referred to in the opinion of the Supreme Court; (4) in refusing a new trial for reason stated in the opinion of the Supreme Court.</p>

Appeal, No. 23, Jan. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., April T., 1902, No. 4, on case stated in suit of Mary E. Eberly, Administratrix of Adam J. Eberly, Deceased, v. Aaron E. Shirk. Case stated to determine the ownership of a fund raised by sheriff’s sale of real estate. From the case stated it appeared that A. J. Eberly, Esq., had indorsed A. E. Shirk in the People’s National Bank of Lancaster.

<p>Appeal, No. 347, Jan. T., 1902, by plaintiff, from judgment of C. P. Juniata Co., April T., 1901, No. 108, on verdict for defendant, in case of Uriah Shuman v. Juniata Partners’ Mutual Life Insurance Company.</p> <p>Assumpsit on a policy of mutual fire insurance company. Before Shull, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were among others (1) in ruling that the notice of assessment was sufficient; (4) in not admitting notice of assessment, No. 18, referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 116, Jan. T., 1903, by-defendant, from decree of C. P. Columbia Co., dismissed petition to regulate grade crossing in case of Mifflinville Bridge.</p> <p>Petition under section 4 of the act of June 7,1901, to regulate a grade crossing.</p> <p>Little, P. J., filed tbe following opinion:</p> <p>This is a proceeding instituted by the county commissioners under the act of 1901, section 4, which by its terms became effective on June 1, 1902.</p> <p>The petition recites that under certain proceedings had in the court of quarter sessions for the location of a county bridge across the Susquehanna river at Mifflinville, the proceedings of such county bridge were confirmed absolutely on July 7, 1902.</p> <p>The petitioners further aver in their petition that the southern end of the bridge crosses the tracks of the Pennsylvania Railroad Company. It also recites further proceedings had by the county commissioners for the construction of the bridge and other matters; and prays for the court to make an order to establish a grade crossing of the railway and for gates, signals and other safeguards to be maintained by the railroad company; and assigns nine separate reasons why the court should make the order asked.</p> <p>Answer was filed by the Pennsylvania Railroad Company, respondents, and a hearing was had. Upon the hearing testimony was offered on the part of the petitioners respecting the desirability and the necessity of a crossing at grade of the right of way of the railroad company. The respondents offered testimony as to the desirability for an overhead crossing.</p> <p>From the evidence produced at the hearing it appears that on July 29, 1902, the commissioners entered into a contract with one Charles H. Reimard for the construction of the bridge and the approaches thereto as far as the wing walls, and that the same be completed by August 1, 1903, for the price of |93,985. The contractor is actively engaged in the construction of the bridge.</p> <p>The proposed bridge is so designed as to meet the highway on either side of the river at grade. In order to do this, the floor at the southern or Miffinville end of the bridge will be six feet or more higher than the floor at the northern abutment. The respondent’s proposed plan for an overhead crossing of the tracks of their railroad, affording nineteen feet in the clear above the level of the tracks at the point, involves an addition to the height of the piers of the bridge as already planned and contracted for, by the addition of steel cylinder piers three eighths of an inch in thickness, securely fastened to the piers as designed, and to be filled with concrete, and the floor of the bridge placed upon an incline from the northern to the southern abutment. The addition added to the southern pier will be some eighteen or more feet in height; and also the construction of an additional pier on the south side of the railroad company’s right of way. That the increased cost of the construction will be some $16,300, of which sum the respondents have offered to the county commissioners to contribute the sum of $12,000.</p> <p>We are of the opinion that the act of 1901, under which this proceeding was instituted,-has no application to the facts here. The purpose of the act was not to abolish all grade crossings. The act is entitled: “ An • act relating to railroad crossings of highways, and for the regulation, alteration and abolition of grade crossings, except in cities of the first and second classes.”' Its first section provides: “ That, except as in this act elsejvliere provided, all crossings, hereafter established, whether of highways by railroads or of railroads by highways, shall, except in cities of the first and second classes, be above or below the grade thereof.” The second section relates to railroad companies constructing newlines of railroad. And the third section provides: “ Every municipality or other authority, hereafter constructing a highway, .... across an existing railroad, shall construct the same above or below the grade thereof, unless permitted, in the manner hereafter provided, to construct the same at grade, and the cost of said work shall be paid one half by said municipality and one half by the railroad company owning said railroad.” Its fourth section provides : “ Whenever it shall be- desired by any railroad company, constructing a new railroad, or by any municipality or authority, constructing a new highway, except in cities of the first and second classes, that the railroad or highway should be so constructed that the railroad and highway shall cross each other at the same grade, a petition shall be presented by the party desiring such construction to the court of common pleas of the district within which said crossing is situated, upon ten days’ notice to the corporation owning said railroad or to such municipality or authority, describing the proposed construction, and setting forth the reasons that are-supposed to make the same necessary and desirable; and the court of common pleas shall thereupon have jurisdiction of the parties and the subject-matter of such petition, and may proceed summarily or otherwise, and upon such notice as it shall deem sufficient, to examine the matter, either by evidence, by reference to a master or commissioners, or otherwise, and if satisfied that such construction is reasonablyrequired to accommodate the public or to avoid excessive expense in view of the small amount of traffic on the highway or railroad, or in view of the difficulties of other methods of construction, or for other good and sufficient reasons, then it shall make an prder or orders permitting such crossing at grade to be established; and it may, in such orders, in its discretion, prescribe what gates, signals or other safeguards shall be maintained by the railroad company, in addition to the signals and safeguards prescribed by the statute; and all such orders shall be binding upon the parties, and shall be observed by them; all costs and expenses of the proceedings shall be ascertained and allowed by the court of common pleas, and shall be paid by such party as it shall decide, or be by it apportioned between the parties, and may be collected by execution out of said court.” The tenth section of the act briefly provides that “ nothing in this act shall prevent any railroad company from laying additional tracks on crossings previously existing, or from constructing switches and sidings and branch lines from their lines of railroad, now or hereafter constructed, to any mill, factory or other manufacturing establishment, . . . . or from laying additional tracks to increase’their yard facilities at terminal or other points, across public highways at the grade thereof, outside of the corporate limits of cities of the first and second classes; but such sign posts and signals shall be employed for the protection of such crossings as are by law prescribed for railroad crossings of public highways.”</p> <p>It will be observed that this act relates to crossings hereafter established, first by railroad companies constructing new lines of railroad and any municipality hereafter constructing a new highway; while the tenth section allows crossings at grade of highways by railroad companies as mentioned in that section. There is nothing in the act which in any way interferes with the jurisdiction of the court of quarter sessions under the act of 1836. The jurisdiction of the court under that act could not be interfered with except by some express legislative provision.</p> <p>The proceeding for the location of this Mifflinville bridge was not a proceeding for the location of a highway under general law; but for the location of a county bridge to connect parts of an existing highway under the 35th, 37th and 38th sections of the act of 1836.</p> <p>A petition was presented to the quarter sessions, asking for the appointment of viewers for the location of a bridge “ over the north branch of the Susquehanna river .... at a point where said river crosses the public road or highway leading from a point in the public road between Bloomsburg and Berwick, near the village of Willow Grove, to the village of Mifflinville.”</p> <p>At the next February sessions, 1901, the viewers made report in favor of the bridge, and under the powers' conferred upon them by the 37th and 38th sections of the act, they further reported : “ That we have carefully examined the routes of the road crossing the said river over which the bridge is prayed for, and are of the opinion that the changes or variations in the bed of the said road would be an improvement and saving of expense in the erection of said bridge, which variations we have caused to be accurately surveyed and have returned a plot thereof with this our report, said change being as follows: “. . . . at the southern end of said proposed bridge, beginning at a point in the northern line of First street in the village of Mifflinville 270 feet west of the western line of Market street; thence across the village common north twenty-one degrees, west 139 feet to the right of way of the N. & W. B. R. R. Company; thence crossing said right of way at grade north twenty-one degrees, west 130 feet to the southern abutment of said bridge, said abutment standing on said commons at high-water mark.”</p> <p>The viewers were authorized to make that change in the highway. The statute gives the bridge viewers authority to report also whether any change in the course or bed of the road to be connected therewith will be necessary, in order to the erection of said bridge at the most suitable place or in the best manner, .... and cause every such variation to be accurately surveyed, etc.: Sections 37 and 38, act of 1836.</p> <p>There is no ground for the contention now made that the road, as shown by the draft accompanying the report of viewers, from First street in Mifflinville to the southern abutment of the proposed bridge, is a new road. The case “ In re County Bridge, 24 Atl. Repr. 695,” was one in which the viewers exercised the powers of changing the bed of the highway, as was done by the viewers in the present proceedings. The second exception to the report of viewers there alleged that the viewers unlawfully laid out two entirety new roads and vacated no part of the old highway. The exceptions were dismissed, and the report confirmed absolute. The order was affirmed by the Supreme Court.</p> <p>This action of the viewers did not lay out a new or additional public road, or establish a new or additional grade or other crossing of the tracks of the railroad company. The result of their action on the south side was to change the bed of this previously existing road, leading from the village on the south side of the river to the north village on the north side, where it intersects First street in Mifflinville, westwardly far enough to be in line with the southern abutment of the proposed bridge.</p> <p>In this highway between the two villages there has been a grade crossing for a number of years. Probably it was located and constructed when the railroad company laid its tracks at the grade of that highway; and when the bridge viewers made this change in the bed of the road, the crossing was thereby changed as a necessary incident to the use of the highway as changed. The words employed by the viewers, “ Thence crossing said right of way at grade,” have no special significance. They are rather descriptive of what the viewers saw as forming part of the highway.</p> <p>While a county bridge is a part of the highway yet this act of 1901 does not require an over or under crossing where, as in this instance, a grade crossing has long since been in use in the highway, parts of which the bridge was designed to connect.</p> <p>The judgment of confirmation absolute of these bridge proceedings July 7, 1902, became conclusive, unless appeal was duty taken. The bridge was established by that decree.</p> <p>The duty devolves upon the county to build and keep this and all other county bridges in repair, as well as the approaches thereto. The approach to the bridge is a part of the bridge itself. The township road terminates where the approach begins : Catawissa and Main Twp. Road, 17 Pa. Superior Ct. 21; Westfield Boro. v. Tioga County, 150 Pa. 152.</p> <p>This road leading from the village on the south to the north side of the river, the bed of which is changed, will be required to be taken care of by the supervisors of the respective townships, as formerly.</p> <p>It is a mistaken view urged on the part of the petitioners that the southern approach of this bridge extends to First street.</p> <p>Being of the opinion that the decree of the court of quarter sessions confirming these bridge proceedings is now conclusive, and in view of what the county commissioners have done subsequent to that decree, that certain rights of the contractor have attached, we should feel reluctant to make any changes in the construction of this bridge, unless great necessity required it, even if there were a statute which expressly provided for such change.</p> <p>The respondent’s proposition involves a change in the proposed construction as already planned and designed. By reference to the testimony of Oscar Thompson, a witness produced by the respondents, this change would appear to be of doubtful propriety.</p> <p>The respondent’s proposed change of this bridge, so as to accommodate an overhead crossing, would greatly enlarge the bridge, and increase the cost of its construction. It has been held that “ where a bridge is to be enlarged or improved, viewers should be appointed as for a new bridge: ” 3 Delaware County Rep. 165.</p> <p>The circumstances here' show that the 2d section of the act of April 11, 1848, would present another barrier to the accomplishment of such purpose, because the contractor and county commissioners have not agreed to the proposed alteration.</p> <p>The point of crossing of the railroad company’s right of way can be observed for quite a distance eastwardly, and at a much greater distance westwardly.</p> <p>The court of' common pleas will make no order which will in any way affect the judgment of the court of quarter sessions entered July 7, 1902. And therefore, for the reasons hereinbefore given, it is now ordered that these proceedings be dismissed, at the cost of the county of Columbia.</p> <p>Error assigned was decree dismissing the petition.</p>

<p>Appeal, No. 173, Jan. T., 1902, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1901, No. 309, refusing to take off nonsuit in case of Susan Farnum Wheeler, Executrix of Charles Wheeler, Deceased, v. Equitable Trust Company.</p> <p>Assumpsit on a policy of title insurance. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>When Frank Loughran was on the stand the following offer was made:</p> <p>I offer to show that the seventeen houses on Douglas street, between Foster and Arch streets, west of Thirty-second, were not built in accordance with the plans and specifications filed with the Equitable Trust Company, in accordance with the policy, by John D. Pharoah, and the cost necessary to make those houses conform to those plans and specifications.</p> <p>Mr. Brown: You offer to prove that by this witness ?</p> <p>Mr. Taylor: Yes.</p> <p>Mr. Brown : I object because it is irrelevant and because the witness is not qualified to testify as, of, or about February 25, 1899, when completion was claimed to have been guaranteed.</p> <p>Objection sustained.</p> <p>Exception for plaintiff.</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>Husband and wife — Dower—Fraud—Judgment—Scheme to defraud wife.</p> <p>The law will lay its hands upon a fraudulent scheme to deprive the wife of her dower and will open or stay proceedings upon a judgment confessed without a full bona fide consideration.</p> <p>A husband became hostile to his wife and threatened that if she did not leave the home in which she lived that he would get rid of all his property and leave the state. Shortly after he confessed a large judgment to his brother, upon which execution was issued and the house where the wife lived was seized and advertised for sale. The wife then filed a petition to intervene so as to protect her dower rights, and for a rule to open the judgment. On testimony taken under the rule the two brothers refused to answer relevant questions until they were forced to do so by the court. Their testimony as to the consideration for the judgment note was not free from contradictions. Held, that the wife was entitled to have the judgment opened, and also to have an issue to determine (1) whether there was a good consideration for the judgment, and (2) whether the judgment had been confessed collusively for the purpose of defrauding her.</p>

<p>Appeal, No. 277, Jan. T., 1902, by plaintiff, from decree of C. P. No. 4, Phila. Co., Dec. T., 1900, No. 901, dismissing bill in equity in case of Isaac Norris v. James Crowe and the Ninth United Presbyterian Congregation of Philadelphia.</p> <p>Bill in equity to cancel an agreement in writing under seal.</p> <p>On demurrer, Willson, J., filed the following opinion:</p> <p>On December 7, 1866, Charles Norris et al., trustees of the Fairhill estate, and Samuel Norris, made a conveyance to James Crowe of a certain lot of ground situate on the west side of Hancock street and south side of Susquehanna avenue, reserving thereout a yearly six per cent ground rent of $340, payable in equal half yearly installments on the first day of January and July in each year thereafter. The deed also contained a provision that in ease the grantee, his heirs and assigns, should, within ten years from the date of the deed, pay to the grantors, or their heirs or assigns, the sum of $5,666.67, and the arrears of rent, the rent reserved should cease and be extinguished. The said James Crowe took title to the said premises only to hold it for the benefit of the church, of which he was pastor, and subsequently, on December 13, 1893, by deed, duly recorded, he conveyed the same to the Ninth United Presbyterian Congregation of Philadelphia, the defendant in this case. By proceedings in partition the estate in the grantors became vested in Isaac Norris, Sr., and, subsequently, in the plaintiff in this proceeding.</p> <p>The proper discussion of the case does not require any fuller recital of the matters which have been referred to. The real controversy arises upon what took place in the year 1891. The bill averred that in May of that year a committee of the defendant corporation called upon J. Parker Norris, the brother of the plaintiff, and who acted for him, and informed the said Mr. Norris that the defendant would pay off the ground rent, unless the yearly rent was reduced from six to five per cent per annum. In consequence of this movement on the part of the defendant corporation, an agreement, under seal, was entered into between the plaintiff, acting by his brother, J. Parker Norris, and the defendant, in the following language:</p> <p>“ Memorandum of agreement made this twelfth day of June, A. D. 1891, between the Norris Square United Presbyterian Church of the one part, and Isaac Norris, M. D., of the other part.</p> <p>“ Witnesseth, that in consideration of the said Isaac Norris, M. D., not demanding more than five per cent interest on a certain annual ground rent reserved by deed dated December 7,1866, the said Norris Square United Presbyterian Church, doth hereby agree that they will not pay off the principal of the said ground rent until the expiration, of five (5) years after the first day of July, 1891, and the said Isaac Norris, M. D., doth hereby promise and agree that he will not, at any time, ask, demand, or sue for more than five per cent interest on said ground rent so long as the said church continues to pay the same with reasonable punctuality.</p> <p>“ Witness our hands and seals the day and year aforesaid.</p> <p>“ Isaac Noeeis, M. D.,</p> <p>“ By his attorney in fact,</p> <p>“ J. Paeker Noeeis. [Seal]</p> <p>“Robert G. Bitten,</p> <p>“ [Corporate Seal] President.</p> <p>“ C. W. Ceowe,</p> <p>“ Secretary Board of Trustees.”</p> <p>At the time this agreement was entered into, all parties concerned in it were of the impression that the defendant corporation had a right at any time to make payment of the principal sum of the ground rent, and thereby extinguish the ground rent; in other words, that the ground rent was a redeemable ground rent. They were not aware that it had been decided by the Supreme Court in Palairet v. Snyder, 106 Pa. 227, that, upon the failure of the covenantor in the ground rent deed to pay the principal sum within the time limited in such a deed, the ground rent became irredeemable. However, it must be regarded as beyond question that, if Dr. Norris, acting through his attorney in fact, had not consented to the reduction of the annual rent, and the defendant corporation had carried out its expressed intention of paying off the said rent, payment would have been received and the ground rent would have been extinguished. This no doubt would have been done under a mistaken view of the law. At the same time, if it had been carried into effect, the act would unquestionably have been beyond recall.</p> <p>The plaintiff, by this proceeding, endeavors to have the agreement referred to abrogated and to reinstate himself in the position in which he was before that agreement was entered into, notwithstanding for a period of about ten years the church corporation has paid the annually accruing ground rent as reduced, and the same has been accepted by the plaintiff. It is claimed that this can be done, because the parties entered into the agreement in question under a mistaken view of the law.</p> <p>Suit was brought in this court upon the ground rent deed against the defendant in March, 1901, for the purpose of recovering the amount due on January 1, 1901, at the full rate of six per cent instead of five. In that proceeding the defendant filed an affidavit of defense, setting up the matters which have been previously stated, and the court, after argument, refused to enter judgment for the plaintiff. Nothing further has been done in that case since the refusal to enter judgment.</p> <p>We are now asked to decree that the defendant shall surrender for cancelation the agreement before mentioned, and be enjoined from setting up the agreement as defense in the action at law referred to, or in any future action.</p> <p>It seems to us that it would be a sufficient reason for us to sustain the demurrer which has been filed in this case, that the plaintiff has a full and complete opportunity, in the case at law which he has brought, to have the question upon which he relies fully and conclusively determined as between him and the defendant. In other words, he has a full and adequate remedy at law, and he has, by instituting action upon the covenant contained in the ground rent deed, already attempted to bring the question which is now at issue to determination upon the law side of the court. Nevertheless, it may be well for us to go further in the case and express our views in regard to the main question involved in it.</p> <p>As has already been said, the parties to the agreement reducing the amount of annual rent from six to five per cent, entered into it with a mistaken view as to what their legal rights were. Ordinarily, parties will not be relieved against the consequence of a mistake of the law, even though it be mutual. This principle is so fundamental as to have been embodied in a well-known maxim. It may be true, as has been argued before us, that the rule has its exceptions, and that where the mistake has been one which does not involve ignorance of a general principle of the law, but rather ignorance as to the legal effect of a particular agreement or transaction in which the .parties are interested, then a court of equity may relieve against the effect of a mistake, in order to avoid manifest injustice. Even the presence of seals attached to such an agreement might constitute no obstacle to relief, notwithstanding the general principle that the presence of a seal imports a consideration. If, however, the case required us to pass upon the question, we are inclined to the opinion that the plaintiff could not have the relief which he seeks, upon the ground relied upon by him, viz : that his case falls under an exceptional class of a mutual mistake relative peculiarly and exclusively, to the rights of the parties growing out of a particular agreement or transaction, as distinguished from a mistake concerning a general and larger principle of law. We rather think that even upon that aspect of the question the plaintiff ought to be held to his agreement, by an application.of the general and salutary principle which has been referred to, that when two persons solemnly enter into an agreement and act upon it for a term of years on the common understanding that an advantage accrues to one of the parties or a disadvantage to the other, the fact that there was a mistake made as to their legal rights and obligations will not relieve either party from an obligation so entered into and acted upon. Besides, it is impossible not to be influenced by the thought that the agreement which the parties entered into, although it was made under a mistaken view of the law, withheld the defendant corporation from taking such steps as would have resulted in an extinguishment of the ground rent estate. Such an ex-tinguishment was evidently not desired by the plaintiff or his representative, and it was averted by the making of the agreement which the plaintiff now endeavors to set aside. That was a real advantage which he thus secured, and he obtained it by entering into a formal agreement, to which he attached the ordinary evidence of a valuable consideration. For the reason stated, we think that he must be held to the bargain which he then made, and that he cannot be relieved from it, notwithstanding he and the defendant now know and admit that they acted under a mistaken impression of what their legal rights and obligations were.</p> <p>The demurrer must, therefore, be sustained and the bill dismissed with costs.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 229, Jan. T., 1903, by-Mary F. Kelly Raleigli, from decree of O. C. Phila. Co., July T., 1882, No. 34, dismissing exceptions to adjudication in estate of Maurice Raleigh, deceased. Exceptions to adjudication. The material portion of the will of Maurice Raleigh was as follows: “ (2) Item.

<p>Appeal, No. 359, Jan. T., 1902, by plaintiff, from order of C. P. Montgomery Co., March T., 1901, No. 9, refusing to take off nonsuit in case of Harry M. Baldwin by his father and next friend, William H. Baldwin, v. W. C. Urner, trading as W. C. Urner & Company.</p> <p>Trespass to recover damages for personal injuries. Before ' Swartz, P. J.</p> <p>The circumstances of the accident are fully stated in the opinion of.the Supreme Court.</p> <p>The locality of the accident is indicated by the following plan:</p> <p> </p> <p>The court entereda compulsory nonsuit whichit subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

Appeal, No. 176, Jan. T., 1902, by-Robert H. Sherwood, from decree of O. C. Bucks County, dismissing bill of review in estate of Isabella H. Sherwood, deceased. Petition for bill of review. Yebkes, P. J., filed an opinion in which he stated the facts to be as follows: The-register of wills granted letters of administration upon the estate of Isabella H. Sherwood to Hon. B. F. Gilkeson in March, 1900.

<p>Constitutional law — Control of property by state — Presumption—Property of absentee — Administrators—Act of June 24, 1885, P. L. 155.</p> <p>The regulation of the title and devolution of property within its limits is within the control and jurisdiction of the state.</p> <p>The rules of evidence for the judicial ascertainment of facts in its courts, and as a corollary, the establishment of legal presumptions, are also within the control and jurisdiction of the state.</p> <p>The state is not bound to have the regular and lawful use and ownership of property subject to the whim of an individual in absenting himself indefinitely or for a yery long period of time from the state.</p> <p>The Act of June 24, 1885, P. L. 155, entitled “ An act relating to the grant of letters of administration upon the estates of persons, presumed to be dead, by reason of long absence from their former domicile,” is constitutional.</p> <p>The appointment of an administrator under the Act of June 24, 1885, P. L 155, is a judicial act by a competent tribunal having jurisdiction of the subject-matter, and therefore cannot be attacked collaterally, but is valid until revoked by direct proceedings as prescribed iu the statute.</p> <p>As the proceedings under the act of 1885 are substantially in rem, for the conservation of property within the jurisdiction of the state, they are due process of law, and the act is constitutional.</p> <p>Where the intent of a statute is plain, and its administration is committed to a court of known and established jurisdiction and methods under prior laws on similar subject-matters, such court is authorized to adapt its ordinary forms to the new requirements, or to devise and employ new ones of analogous kind suitable to carrying out the intent of the act. The orphans’ court is such a court in regard to the act of June 24, 1885,</p>

Appeal, No. 39, Jan. T., 1903, by-plaintiff, from order of C. P. Berks Co., making absolute a rule for a new trial in case of A. K. Stauffer v. City of Reading. Appeal from jury of view. Before Endlich, J. From the record it appeared that the city of Reading appropriated one and one half acres of plaintiff’s land for the purpose of a boulevard.

Appeal, No. 182, Jan. T., 1902, by defendant, from judgment of C. P. Monroe Co., Dec. T., 1899, No. 24, on verdict for plaintiff in case of M. B. Culver to use of Conrad Lee v. Pocono Spring Water Ice Company. Assumpsit for goods sold and delivered. Before Ferris, J., of the eleventh judicial district, specially presiding. The facts appear by the opinion of the Supreme Court. ■ Verdict and judgment for plaintiff for $1,8.34.24. Defendant appealed.

<p>Equity — Equity practice— Equity rules — Master—Corporation—Elections.</p> <p>Since the adoption of the new equity rule's the court of common pleas has no power to appoint a master to conduct a corporate election if there is no decree ordering the election; and not even the consent of the parties can give it such power.</p> <p>Corporations — Stock—Illegal issue of stock — Constitutional law — Constitution of Pennsylvania, article 16, section 7 — Act of May 7, 1887, P. L. 94.</p> <p>Under the Act of May 7, 1887, P. L. 94, which was passed to carry into effect section 7, article 16, of the constitution relating to the illegal increase of stock of a corporation, the remedy by proceedings on the part of the attorney general is exclusive, and no suit can be maintained by by stockholders against the corporation to declare stock invalid. The Act of May 4, 1893, P. L. 29, does not give stockholders any such power.</p>

Appeal, No. 21, Jan. T., 1903, by plaintiffs, from decree of C. P. Lycoming Co., Dec. T., 1900, No. 2, dismissing bill in equity in case of John E. Dayton et al. v. James Carter et al. Bill in equity for an injunction. Refore McClube, P. J., specially presiding. The material averments of the bill and answer and the material facts are stated in the opinion of the Supreme Court. Error assigned was decree dismissing the bill.

<p>Negligence — Railroads—Master and servant — Fellow servant — Act of April 4, 1868, P. L. 58.</p> <p>Independently of the Act of April 4, 1868, P. L. 58, a railroad company was liable to the employees of another railroad company for negligence, just as to any other strangers, the general similarity and aims of the duties not being sufficient to bring them within the rule as to the risks of a common employment. The general effect of the act was to make three classes of persons, employees, quasi employees under the act and strangers.</p> <p>Where the same track is used by two railroad companies, it must be considered for the application of the Act of April 4, 1868, P. L. 58, as the property of each while using it; and it is immaterial whether the use be by virtue of joint or several ownership, charter right, license or traffic agreement,</p> <p>To bring a case within the second class distinguished in Spisak v. B. & O. R. R. Co., 152 Pa. 281, namely those where the employment is ordinarily the duty of railroad employees, the plaintiff must not only be engaged in such work but also be so engaged for or upon the property of the railroad by whose negligence he is injured.</p> <p>In such cases the employees of each road accept the risk of their employment in regard to their own road but not those incident to the operation of the other road unless at the time engaged in some work for the other or for both roads jointly.</p> <p>A locomotive engineer engaged in running a train of his own company over tracks of another company which his own company had permission to use, is not within the provision of the act of April 4, 1868, if he is killed by the negligence of employees of the other company.</p>

<p>Appeal, No. 329, Jan. T., 1902, by Robert C. Clarkson, from decree of O. C. Phila. Co., Jan. T., 1902, No. 495, sustaining exceptions to adjudication in estate of Charles McCaul, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.,</p> <p>Error assigned was in sustaining exceptions to adjudication.</p>

Appeal, No. 31, Jan. T., 1903, by defendant, from order of-C. P. No. 5, Phila. Co., Sept. T., 1902, No. 8819, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Charles R. Krimm, Assignee of John Parker, v. John Devlin, Mortgagor. Scire facias sur mortgage. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 330, Jan. T., 1902, by defendants, from order of C. P. No. 3, Phila. Co., June T., 1902, No. 3893, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph W. Weiss and Nachman Segal, Co-partners, trading as Weiss & Segal, v. William Marks, Ferdinand Marks and Emanuel Marks, trading as Marks Bros.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material portion of the affidavit of defense was as follows :</p> <p>“ That the plaintiffs, by and through their said duly authorized agent, Charles J. Schulze, on August 8, 1902, verbally agreed with the defendants, by and through their, the defendants’ duly'authorized agent, Lawrence H. Marks, that in consideration of the payment of $2,000 in cash on account of the claim of plaintiffs, and the further consideration of the maturing of a part of the plaintiffs’ claim for merchandise sold and delivered by the plaintiffs to the defendants, to wit: the invoices dated June 1, June 4, and July 10,1902, they, the plaintiffs, would accept of and from the defendants the entire balance claimed by them, amounting to the sum of $3,992.62, in three installments of $1,330.89 each, in one, two and three weeks thereafter, the first payment to be made on August 16,1902. That relying on this agreement the defendants paid the plaintiffs on the said August 8,1902, the sum of $2,000 in cash, and agreed to pay the plaintiffs the remaining balance in three equal installments in one, two and three weeks thereafter, the first payment to be made on August 16, 1902. That the plaintiffs in violation of this agreement caused to be issued the writ in the above case on August 15,1902, as appears of record, and filed a statement, claiming the sum of $3,204.69 of the $3,992.62 claimed by the plaintiffs against the defendants, and being part of the moneys claimed by the plaintiffs for the merchandise herein referred to as having been sold by the plaintiffs to the defendants.”</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 70, Jan. T., 1903, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1902, No. 3224, on case stated in suit of Henry B. Helffrieh to use of Philadelphia Trust Safe Deposit & Insurance Company, Executors of L. Taylor Dickson, Deceased, v. Mendel Greenberg.</p> <p>Case stated to determine the validity of title to real estate.</p> <p>From the case stated it appeared that plaintiff’s title was derived through a sheriff’s sale in a case in which judgment was entered against an administrator for want of a sufficient affidavit of defense. The judgment was attacked as invalid on the ground that the court of common pleas had no power to make a rule of court requiring administrators and executors to file affidavit of defense. The court upheld the validity of the rule and entered judgment for plaintiff upon the case stated for $4,500. Defendant appealed.</p> <p>.Error assigned was the judgment of the court.</p>

<p>Road law — Change of grade — Damages—Paving street.</p> <p>It is the physical change and not the mere establishment of a grade on the official plans which gives a right of action, and no damages are recoverable for the establishment of the grade until the actual work of grading is begun.</p> <p>A person who owns land on both sides of a street on a city plan with a grade established above the natural surface, cannot, after he has built houses according to the established grade, and, with the permission of the city authorities, paved the street according to the established grade, recover damages for injuries to his land caused by the elevation of the natural surface of the street to the established grade.</p>

<p>Municipalities — Philadelphia—Public officers — Accounts—Audit—Act of June 1, 1885.</p> <p>Under the act of June 1, 1885, relating to the government of the city of Philadelphia, it is the duty of the controller of the city to audit the accounts of the health officer, and in the absence of gross fraud practiced upon the controller, or collusion between him and the accounting officer, his official audit is conclusive upon the city, and this is the case although the audit may not have been actually filed in the court of common pleas as provided by the act.</p> <p>The fact that a public officer has not objected to a reaudit of his accounts for certain years by the controller, will in no way estop him from objecting to another audit of the same years by a new controller.</p>

Appeal, No. 77, Jan. T., 1902, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1898, No. 5, on bill in equity in case of Daniel R. Watkins et al. v. Benjamin Hughes. Bill in equity for an account. Before Gunster, J. The case was heard on bill, answer and proof. Exceptions were filed to the findings of fact and conclusions of law. On February 24, 1900, the court filed the following order: The exceptions are overruled.

Appeal, No. 119, Jan. T., 1902, by plaintiff, from judgment of Superior Court, Oct. T., 1901, No; 40, affirming order of C. P. Del. Co., March T., 1899, No. 193, in case of Isaac 'll. Custer v. Baltimore and Ohio Railroad Company. Appeal from Superior Court. The facts are stated in the opinion of the Supreme Court and in 19 Pa. Superior Ct. 365. Error assigned was the judgment of the Superior Court.

<p>Escheats — Disappearance of legatees — Statute of limitations — Act of May 2, 1889, P. L. 66.</p> <p>The right of the commonwealth to escheat a legacy is barred by section 26 of the act of May 2,1889, where it appears that the legatee disappeared prior to the death of the testator, that he never claimed the legacy although search and advertisement was made for him, and that the commonwealth did not institute escheat proceedings until more than forty years after the death of the testator.</p> <p>Appeals — Statement of question and, issue — Escheator's compensation, "and counsel fee.</p> <p>The Supreme Court will not consider the question of compensation and counsel fee of a deputy eselieater of the commonwealth where no such question was raised in the court below, and is not included in the statement, in the appellant’s paper-book, of the question involved in the case.</p>

<p>Statutes — Repugnant proviso — Building laws — Collateral support — Act of June 8, 1893, see. 8, P. L. 360 — Philadelphia.</p> <p>The latter part of sectiou 8 of the Act of June 8, 1893, P. L. 360, which reads: “Should any owner or owners desire to excavate to a depth of more than ten feet, he or thejT shall protect and underpin the wall of an adjoining structure at his or their own expense; provided, however, that" this section shall not apply to buildings now erected or to dwelling houses,” is not intended to apply to all buildings, but only in the future to certain classes of buildings, i. e. buildings other than dwelling houses erected after the passage of the act. With this intent the proviso is entirely consistent, and both the section and the proviso can stand.</p>

<p>Appeal, No. 11, Jan. T., 1903, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T. 1900, No. 1308, M. L. D., refusing to take off nonsuit in ease of James Smith Woolen Machinery Company v. William Browne, Owner, and William Browne et al., trading as Phenix Mills Company, Contractors and Lessees.</p> <p>Scire facias sur mechanic’s lien. Before WiltsANK, J.</p> <p>The lien filed in this case was a claim “ against all that certain lot or piece of ground with the factory building called the Schuylkill Factory and other buildings and improvements thereon erected and the machinery, steam engines and boilers in and about the same of every kind and description situate in Manayunk in the Twenty-first Ward of the said City of Philadelphia, described as follows, to wit: . . . .</p> <p>The said sum .... being a debt contracted by the said Contractors and Lessees for material delivered and labor furnished by the said Claimant directly to the said Lessees for and about the construction of certain engines, machinery, shafting, hangers, pulleys, &c., erected on and added to the above described-premises, which material, with the time of its delivery, and the doing of said work, and the amount due on each, are more particularly described in the Bill of Particulars annexed hereto, which Bill the Claimant prays may be taken and considered as part of this lien against said building with the machinery therein, of which the said William Browne, then was and now is the'reputed owner, and the said William Brown, Samuel C. Browne, Bernard S. Browne, and William Anderson, Jr., Copartners trading as the Phenix Mills Company, were and now are the lessees, which said material and labor was commenced on the sixteenth day of March, 1900, and the last work and material delivered to said building was on- the twenty-ninth- day of September, 1900.</p> <p>Wherefore, the said James Smith Woolen Machinery Company claim to have' a lien' on said building, with the improvements thereon and the curtilage appurtenant- thereto, together with the- engines, machinery, shafting, hangers, pulleys, &c., therein and thereon.”</p> <p>The first section of the Act of June 17, 1887, P. L. 409, is as' follows: That all persons performing labor or furnishing labor for or about the construction of any engine, house, derrick, tank, buildings, machinery, wood or iron improvement, construction or erection upon any leasehold, either by written or verbal lease, or for boring, drilling or mining of any lease or lot as aforesaid, for the development or improvement of the same, whether such labor is or may be done by day, month or year, or by contract, for the tenant or tenants, lessee or lessees of such lot, or lease, or parcel of land, or for their use or benefit, shall have a lien- upon such engine or engines, engine house, derrick,-tank,, building, machinery; wood, or iron improvement, oil wells and fixtures, on said lot or leasehold itself, for the price and value of such work and labor: Provided, that the lien hereby given shall extend only, as to such lease or lot, to the interest of the lessee or lessees, tenant or tenants therein: And provided further, that when the materials were furnished or labor performed by others, than the original contractor or contractors, they shall notify the owner or owners, or reputed owners of the leasehold property of his or their intention to file a mechanic's lien, and unless such notice be given no such lien shall be filed nor be of any validity.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Appeal, No. 323, Jan. T., 1902, by plaintiff:, from decree of C. P. No. 2, Phila. Co., Dec. T., 1898, No. 381, dismissing bill in equity in case of Carroll Sprigg v. Commonwealth Title Insurance and Trust Company.</p> <p>Bill in equity to enforce an alleged trust and for an account. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeals — Certiorari—Review—Municipalities—Act of March 31, 1864, P. L. 162.</p> <p>On an appeal in the nature of a certiorari from an order of the court of quarter sessions made under the Act of March 31, 1864, P. L. 162, relating to the collection of district and township debts, nothing is brought up for review by the Superior Court except the regularity of the proceedings in the court below. If no irregularity is disclosed in the proceedings the appeal should be dismissed without considering any other question.</p> <p>Municipalities — Indebtedness—Special tax levy — Judgment.</p> <p>Judgments in the common pleas or on the docket of a justice of the peace against a township are, in the absence of jurisdictional defects conclusive, and cannot be attacked in a collateral proceeding in the court of quarter sessions to compel the levy of a special tax to pay the judgments.</p>

<p>Appeal, No. 85, Jan. T., 1903, by defendant, from judgment of C. P. Luzerne Co., May T., 1901, Ño. 293, on verdict for plaintiff in case of Kate L. Marsh v. Lehigh Yalley Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Lynch, J.</p> <p>The circumstances of the accident and the condition of the boiler, the explosion of which caused the death are stated at length in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $6,750. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions.</p>

<p>Appeal, No. 269, Jan. T., 1902, by plaintiff from judgment of C. P. Huntingdon Co., Feb. Term, 1901, No. 1, on verdict for defendant in case of Sarah E. Briggs v. East Broad Top Railroad and Coal Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Batley, P. J.</p> <p>At the trial it appeared that on March 5, 1900, plaintiff’s husband, George W. Briggs, a conductor employed by defendant, was killed by the derailment of a passenger train. The accident was caused by the breaking of a rail. Plaintiff claimed that the break was due to rotten ties. The evidence on this subject is summarized in the opinion of the Supreme Court.</p> <p>Plaintiff made the following offer:</p> <p>We propose to prove by the witness on the stand and other witnesses that the roadbed of the East Broad Top Railroad Company, almost its entire length from Orbisonia to Woodvale, was in bad condition, and had been allowed to get into bad condition ; that the ties along the road at the vicinity of this accident and along its line in other places near this accident, and farther away, were rotten; that the rails in places were so insecurely fastened upon the track that a man could go along and pull a spike fastening the rail to the tie with his fingers; for the purpose of proving the defendant company had allowed their roadbed and all their rails to fall into bad repair ; for the purpose of proving negligence of this company.</p> <p>Judge Furst: Defendant’s counsel object to the offer in so far as the offer proposes to prove the condition of the road at any other point than the point where the accident occurred, the evidence and proof already offered showing that the accident occurred by means of the breaking of a rail, therefore any defects that might have existed on other parts of the road could not have contributed to this injury ; no objection is made to proof showing the defective condition of the road at the time of this accident, or immediately prior thereto at the point where the injury occurred ; the residue of the offer is objected to as irrelevant and immaterial to this issue.</p> <p>The Court: Objection sustained. Testimony excluded. Bill of exceptions sealed for plaintiff. [3]</p> <p>■ Mr. J. S. Woods : We offer to prove by the witness on the stand and other witnesses that the morning of the accident, while the body of Mr. Briggs was still there at the place of the accident, that Mr. Harry Taylor, the division foreman, said to the witness, “ You men must not blame me for this thing ; it is not my fault; they would not give me any stuff to fix the road ; ” he said he had asked for rails and didn’t get them ; this was within a short time after the wreck, possibly half an hour; he told us this when he was bringing a new rail; I told him he might as well have put in a wooden rail; the purpose is as part of the res gestee ; and Mr. Taylor was the man who had charge of the road ; this occurred about half an hour after the accident with Briggs still there and the wreck still there.</p> <p>Judge Furst: It is objected that the declarations of Mr. Taylor made after the accident are not part of the res gestee, and are not admissible as evidence against this defendant.</p> <p>That his declarations are not evidence because he was not in charge of this train; he had nothing to do with the running of the train; that Harry Taylor is simply a track foreman, and his declarations are not sufficient in law to bind this defendant.</p> <p>The Court: Objection sustained. Testimony excluded. Bill of exceptions sealed for plaintiff. [12]</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1) binding instructions for defendant; (3, 12) rulings on evidence, quoting the bill of exceptions.</p>

Appeal, No. 86, Jan. T., 1903, by defendant, from judgment of C. P. Erie Co., Feb. T., 1903, .No. 37, on verdict for plaintiff in case of S. S. Burton, Sheriff, v. Erie County. Issue to determine liability for board of prisoners. Before Walling, P. J. The opinion of the Supreme Court states the case. The trial' court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $1,593.38. Defendant appealed.

Appeal, No. 354, Jan. T., 1902, by plaintiff, from judgment of C. P. Warren Co., Deo. T., 1900, No. 13, on verdict for defendant in case of Samuel S. Palmer and Kate Palmer v. Warren Street Railway Company. Trespass to recover damages for personal injuries. Before Lindsey, P. J. At tbe trial it appeared that plaintiff, Mrs. Kate Palmer, was injured on July 26, 1900, by a collision between two cars of defendant. Mrs. Palmer was a passenger at the time.

<p>Telegraph and telephone companies — Municipalities—Laches—Estoppel —Equity.</p> <p>A bill in equity filed by a municipality to compel a telegraph and telephone company to remove poles and wires from the streets is properly dismissed on the ground of the plaintiff’s laches, where it appears that the municipality had permitted the defendant and its predecessors to occupy the streets with poles and wires for more than twenty-one years; that without protest or objection the municipality had stood silently by while the defendants spent from $75,000 to $100,000; that by numerous resolutions passed by both branches of council, and many of them duly approved by the mayor, consent had been given to the erection and use of the poles, cross arms, etc., on the streets and highways of the city; that, for the privileges extended by it to the defendants, it had received a valuable consideration in the use of the poles for the carrying of the wires of its fire alarm service; that it had received and duly receipted for license and pole taxes assessed against the defendants ; that it had used the telephone instruments furnished by the defendants down to the date of the hearing; that it had by general ordinances, regularly passed, approved and published, regulated the manner in which the poles should be erected and placed ; that a consideration to the city in extending privileges to the defendants was a reservation of “ the topmost gain ” for police and fire-alarm wires ; and that the city had permitted all the poles of the defendants to be erected under the direction of either the street committee of council, the street commissioner or the city engineer.</p>

<p>Appeal, No. 82, Jan.. T., 1903, by Jacob E. Ridgway, from decree of G. P. Fayette Company, Dec. T., 1901, No. 290, dismissing exceptions to auditor’s report in In re account of Jacob E. Ridgway et al., directors of the Redstone Oil, Coal and Coke Company.</p> <p>Exceptions to report of Edward Wilson Boyd, Esq., appointed to audit the accounts of Jacob E. Ridgway and others, directors of the Redstone Oil, Coal and Coke Company.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 30, Jan. T., 1903, by plaintiff,- from order of C. P. York Co., Aug. T., 1902, No. 117, refusing to take off nonsuit in case of Almira P. Iseminger and Charles E. Iseminger v. York Haven Water & Power Company. Trespass to recover damages for personal injuries. Before Bittenger, P. J. The circumstances of the accident are stated in the opinoin of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 99, Jan. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., Dec. T., 1901, No. 30, for defendant in case of Lizzie A. Stoner v. John Eris-man. Before Landis, J. On plaintiff’s application a rule was granted to show cause why her statement should not be amended. Prior to the trial the rule was discharged. On the trial the amendment was offered; on its denial a bill was sealed. No testimony was offered and binding instructions were given for defendant.

<p>Equity — Question at issue — Railroad—Siding on street — Grade.</p> <p>The only issues to be passed upon in a suit in equity are those raised by the pleadings.</p> <p>Where the sole object of a bill in equity is to prevent a railroad company from laying a siding in a street in any other manner than upon the established grade of the street, the court cannot consider the question of the power of the city councils to grant permission to the railroad company to construct a siding upon the street.</p> <p>Railroad — Streets—Grading—Siding above established grade.</p> <p>On a bill in equity to restrain a railroad company from laying a siding in a street in any other manner than upon the established grade of the street, the plaintiff is entitled to relief where it appears by the preponderance of proof that the tracks as laid in the manner contemplated would be nine and live eighths inches above the established grade; that embankment thus made would seriously interfere with access to plaintiff’s property ; that water in larger quantities than before -would be cast upon plain-till’s land, and that the work was being done without any supervision by the street committee of councils, in violation of the ordinance which authorized the work.</p>

<p>Practice, O. P. — Trial—Instructions—Points.</p> <p>Where a trial judge has given a binding direction as to the verdict, what he says to the jury in explanation or comment on the case, and his refusal to answer points, become entirely immaterial.</p> <p>Points are statements of the rules or principles of law, specially applicable to the case, and therefore given to the jury as guides in applying the law to the facts. But where the jury has no such duty and the judge himself determines the combined result of the law and the facts as presented, points become immaterial.</p> <p>Banks and banking — Checks—Certified checks.</p> <p>A check by a depositor on his account certified by the bank becomes an obligation of the bank to the payee or holder, and in the absence of fraud or similar exceptional circumstances the amount is as much withdrawn from the depositor’s account as if the money had been paid over 'the counter.</p> <p>Lunacy — Signing of check — Evidence—Province of court and jury.</p> <p>On an issue to determine whether a person who signed a check had sufficient mental capacity at the time of the signature, three physicians testified'that he had been suffering a mental and physical decline for several years from senile paresis, and in their opinion was not competent to transact business at the time he drew the check. They all, however, admitted that the alleged incompetent took care of himself, and went about town attending to all his ordinary business. None of the physicians testified to a single unbusinesslike act on the part of the maker of the check. The testimony as to the mental capacity of the maker was clear and positive. Held, that the court below committed no error in not submitting to the jury the evidence of the maker’s mental incapacity.</p>

<p>Appeal, No. 201, Jan. T., 1902, by plaintiff, from order of C. P. Northumberland Co., May T., 1901, No. 187, discharging rule for judgment for want of a sufficient affidavit of defense in case of Second National Bank of Pittsburg v. Guarantee Trust and Safe Deposit Company of Shamokin.</p> <p>Assumpsit to recover money paid on a draft with a forged indorsement.</p> <p>The draft was as follows:</p> <p>“SUPREME TENT,</p> <p>K. O. T. M. of the World. No. 5624.</p> <p>“ Port Huron, Mich., Oct. 6,1900.</p> <p>“ Pay to the order of John Davis brother and beneficiary of Benjamin Davis of Tent No. 75 State of Penn. ($3000.00) Three Thousand Dollars and charge to Life Benefit Fund, Supreme Tent K. O. T. M.</p> <p>“To Second National Bank'] D. P. Markey, Supreme Com. Pittsburg, Penn. ) Designated Depository. j J- Seigxe, Supreme R. K.</p> <p>“ Endorsements.</p> <p>“John Davis brother and beneficiary of Benjamin Davis of Tent No 175, State of Penn.</p> <p>“O. J. Reed, Record Keeper of Tent 175, Shamokin, Pa.</p> <p>“Pay to the order of any Bank, Banker or trust Co. Previous endorsements guaranteed. The Guarantee Trust and Safe Deposit Company, Shamokin, Pa.</p> <p>“ Henry L. Lean.</p> <p>“ Treasurer.”</p> <p>The affidavit of defense was as follows:</p> <p>That on October 6, 1900, O. J. Reed, a Record Keeper of Tent No. 175, Shamokin, Pa., of the Knights of the Maccabees, upon fraudulent proofs of death of a man by the name of Benjamin Davis, who was insured in the life benefit fund of the Supreme Tent of the Knights of the Maccabees of the World, for the benefit of his brother, John Davis, obtained a draft from the order of Maccabees, for the sum of $3,000, payable to the order of John Davis. It was alleged that the said O. J. Reed forged the indorsement of the said John Davis upon the said draft, and presented the same to the Guarantee Trust and Safe Deposit Company of Shamokin, Pa., and through it had it forwarded for collection to the Second National Bank of Pittsburg, Pa., the depository of the Knights of Maccabees, which said bank, the plaintiff in this suit, remitted the amount of the said draft, so collected, to the defendant, that the said defendant had no notice of the said fraud or forgery until October 31,1900, when notice was received by the defendant that it was suspected that a fraud had been perpetrated by the said O. J. Reed upon the Supreme Tent of the Knights of the Maccabees of the W orld, in obtaining the said draft, which was finally confirmed by subsequent notice on November 2, 1900.</p> <p>The deponent avers that it was through the carelessness and negligence of the Knights of the Maccabees and the fraud and forgery of its agent, the said O. J. Reed, Record Keeper of Tent No. 175, of Shamokin, Pa., that a death claim was approved by the said order, and a draft issued when, with proper precaution it would have been ascertained that the man insured was alive; that the said order of the Knights of the Maccabees put in circulation the said fraudulent draft by means of which the said defendant indorsed the same, and forwarded it for collection to its agent, the plaintiff, in the city of Pitts-burg, and had not the said draft been carelessly and negligently issued and put in circulation by the Knights of the Maccabees, the said defendant would not be called upon to pay the said fraudulent and forged draft, and the deponent is advised, and therefore avers in behalf of the said defendant, that the said order of the Knights of the Maccabees cannot lawfully recover the amount of the said draft declared upon, so fraudulently issued by it and negligently put into circulation, and that the plaintiff in this suit, being the depository of the funds of the said order of the Knights of the Maccabees, is in no better position, and is not entitled in law to recover the amount of said draft so negligently put in circulation, for the reason that it is the agent of the said order of the Knights of the Maccabees, which is responsible for the amount of the said draft, by reason of its carelessness and negligent management, and carelessly and negligently putting into circulation the said draft, based upon a death claim when, with ordinary diligence, it could have ascertained that the person insured was alive.</p> <p>The court discharged the rule for. judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals, Nos. 65, 66 and 67, Jan. T., 1902, by defendants, from judgment of C. P. Northumberland Co., Feb. T., 1900, Nos. 107, 108 and 109, on verdict for plaintiffs in cases of Isaac Goodman, August Czinski and Catharine his wife, and Andrew Belter, v. Township of Coal and Shamokin & Mt. Carmel Electric Railway Company.</p> <p>Trespass to recover damages for death of wives of two plaintiffs and for personal injuries to wife of another plaintiff. Before Savidge, P. J.</p> <p>The court refused binding instructions for defendants and submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff Goodman for $5,000.</p> <p>Verdict and judgment for plaintiff Czinski for $3,500.</p> <p>Verdict and judgment for plaintiff Belter for $5,000.'</p> <p>Defendants appealed.</p> <p>Errors assigned were in not giving binding instructions for defendants.</p>

Appeal, No. 165, Jan. T., 1902, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1901, No. 82, on verdict for plaintiff in case of Shamokin Borough v. Shamokin and Mount Carmel Electric Railway Company. Assumpsit to recover the cost of paving a street. Before Savidge P. J. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $4,941. Defendant appealed.

<p>Appeal, No. 270, Jan. T., 1902, by Annie Cooper, from decree of O. C. Perry Co., dismissing exceptions to auditor’s report in es te of Josiah K. Cooper.</p> <p>Exceptions to report of Luke Baker, Esq., auditor.</p> <p>From the record it appeared that the testator died on July 26, 1898, leaving to survive him a widow but no children. The evidence showed that the testator in his lifetime gave various notes to nephews and nieces. The will is quoted in the opinion of the Supreme Court. The executor after leasing the farm sold it on September 21, 1900, for $5,100. The whole of the personal estate was applied to the payment of debts other than the notes given to nephews and nieces. It appeared that these notes were given without consideration. The auditor sustained by the court applied a portion of the proceeds of the sale to the payment of the notes, thus postponing the widow.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 27, Jan. T., 1903, by plantiff from judgment of C. P. Perry Co., Aug. T., 1901, No. 20, on verdict for defendant in case of John Karl v. Juniata County.</p> <p>Trespass to recover damages for personal injuries. Before Shell, P. J.</p> <p>At the trial it appeared that about nine o’clock on the evening of May 30, 1900, plaintiff drove upon a county bridge over Juniata river connecting the boroughs of Patterson and Mifflintown, and while he was on the bridge struck a pile of plank with the front wheel of his buggy, resulting in the injuries for which this suit was brought.</p> <p>The court charged in partas follows:</p> <p>You will observe that the physicians called upon the part of the plaintiff and defendant are rather far apart in their conclusion. This is a case in which when the doctors disagree you must decide who was in position best to know the facts through the early history of the diseases complained of in this case, to whom could he easiest feign, if he were disposed to feign, for both sides agree that it is of the character of diseases (so far as the principal feature among the things complained of in this case is concerned) in which patients malinger or simulate or feign an illness.</p> <p>[The question now therefore naturally arises from all of the evidence, from what point of time does the sclerosis of arteries and heart trouble, its resultant cause, date, if before, then the accident could not be the cause and your only inquiry would be as to the extent of the exaggeration thereof and the pain at his shoulder which is assigned to anthritis occasioned by accident or from rheumatism aggravated somewhat'by the injury.] [15]</p> <p>[The next legal question to which I wish to direct your attention is the matter of independent employment, by which I mean was this repair carried on under the direction, control or supervision of the county commissioners, or was it done by James J. Horning, an independent contractor? Where a man employs another to work under his direction he is responsible for his acts. The employee becomes his agent or servant and the responsibility rests with the master who controls. On the other hand where one employs a mechanic or .other person to perform a piece of work and does not undertake to direct how or in what manner it is to be done, but vests in the mechanic power to perform the work as he pleases and in his own way without direction, restraint or control of the superior or master, the employer is not responsible for the employee’s negligence, if he be negligent.</p> <p>This is an important problem in the consideration of this case, for much hangs thereby; perhaps a safe rule to govern your finding would be this which is laid down by our Supreme Court, 86 Pa. 153 : “ If one renders service in the course of an occupation representing the will of his employer, only as to the results of his work, and not as to the means by which it is accomplished, it is an independent employment,” and this rule prevails regardless of whether the employment is under a contract sum or by the day. If the commissioners employ a tinner to roof this courthouse making no provision as to how the old tin is to be removed or the new tin raised up and placed, and the Commissioners are not present directing the operation or the manner of its performance and have relinquished their power over the work or manner of its performance and an accident befall an employee or other person, the county of Perry would in nowise be responsible for any act, negligent or otherwise, by the employer, whereby some one is injured. This may seem to be a harsh rule that counties, townships, cities or boroughs may thus unload responsibilities on to some other persons who may be financially irresponsible, but such we say to you is the rule of law. The evidence you have and you will apply the rule of law thereto and if under the evidence you find that James J. Horning was under independent employment, this plaintiff cannot recover, and your verdict would be for the defendant.] [16]</p> <p>Plaintiff presented, among others, the following point:</p> <p>3. If the jury find that the county commissioners were accustomed to employ James J. Horning to make the ordinary repairs to said bridge; that on May 26, .1900, prior to the accident, they employed him at the usual wages of $2.00 per day to put new plank in the bridge, directing him to employ other hands at $1.50 per day each; that they instructed him to take out worn-out plank put in new ones until the supply of plank which commissioners then had on hand was exhausted; that they directed him to purchase the necessary spikes from Guss & Sieber; and paid them for a hammer and hammer handles which he purchased from them for use on the repairs and charged to. the county; that they did not place the manner of the work entirely in the hands of Horning and beyond their own control, but could, if they had seen fit, have personally supervised and directed the work, without changing the terms of the contract; that no time was fixed for the completion of the work; that Horning and the men with him, at the direction or suggestion of the commissioners’ clerk, cleared up the bridge on Tuesday night and did not work the following day, which was Decoration Day; that when the commissioners’ supply of plank was exhausted they paid to Horning $2.00 per day for 1ns labor and $1.50 per day for the other men, except the drayman, whom they paid directly; that Horning’s bill when presented for payment was for so many days for himself at $2.00 per day and for the others at $1.50 and that the county commissioners in their annual statement took credit for the bill in an item reading, “J. J. Horning, labor, $16.50;” the jury may properly find that Horning was a servant or employee of the county and not an independent contractor. Answer: This is refused. [17]</p> <p>Defendant presented these points :</p> <p>4. The evidence in this case showing that at a point near the centre of the bridge during the repairing of the floor of the driveway, eighteen wide, plank were piled at the side of the driveway so as to extend a width of two plank, from eighteen inches to two feet into the driveway, that if the jury believe said plank were necessary for the repairs in hand and were piled regularly and carefully, leaving ample room for two two-horse teams to pass immediately opposite the pile of plank, from these facts negligence would not be imputed to the defendant county. Answer: This we affirm. [18]</p> <p>5. The evidence in this case showing that at a point near the centre of the bridge, during the work of repairing the driveway, eighteen feet wide, plank were piled at the side of the drive-way so as to extend the width of two plank, from eighteen inches to two feet, into the driveway, that if the jury believe the said plank were necessary for the repairs in hand and were piled regularly and carefully, leaving ample room for two two-horse teams to pass immediately opposite the pile of plank and that it was not reasonably convenient and practicable to remove said plank off of said bridge, then the piling of said plank in said*manner at time of quitting work on evening of May 29,1900, and leaving them so remain over Decoration Day, May 30,1900, and until the time of again commencing work of repair on morning of May 31, 1900, would not constitute negligence of itself. Answer: This is affirmed. [19]</p> <p>8. That if the jury believe from the evidence that the eyesight of John Karl, the plaintiff, was impaired on the night of the accident, the law required a degree of care upon his i rt beyond the usual and ordinary, proportioned to the degree of his impairment of visior and if he failed to exercise the pro er degree of care under the circumstances he was guilty of c ntributory negligence and the verdict must be for the defenda it. Answer: This is affirmed. [20]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-14) various rulings on evidence ; (15-20) above instructions, quoting them; (21) that the charge was unfair to the plaintiff.</p>

<p>Appeal, No. 4, May T., 1903, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1901, No. 131, for defendant in case of Commonwealth v. Lehigh Coal & Navigation Company.</p> <p>Appeal from tax settlement.</p> <p>Simonton, P. J., found the facts to be as follows :</p> <p>1. On the semi-monthly pay day, which occurred July 10, 1901, the defendant gave to each of its employees a statement of the total amount of his earnings since the last preceding pay day, and an itemized statement of the deductions which defendant claimed his account was subject to for advances made since last pay day, either in cash directly to him or to others on his order, or for which the employee had become indebted to it for services rendered; and the balance shown by the statement to be due to each of the employees was on pay day paid to him in cash. The total amount of the earnings of all the employees for the pay period was $105,603.42; the amount of the deductions was $12,781.57, and the total amount of cash paid to the employees on pay day was $92,821.85.</p> <p>2. Defendant under protest made the report prescribed by the Act of June 24, 1901, P. L. 596, and required by the auditor general on the blanks furnished by him, stating the total amount of earnings during the pay period, the items for which deductions were made, the amount deducted for each item, the total amount deducted, and the amount paid in cash to its employees. On this report the auditor general and state treasurer, on August 1, 1901, settled an account against defendant, charging it with a tax at the rate of twenty-five per cent on §7,784.52, the amount of the deductions less certain items in respect of which the auditor general decided that defendant was not liable to tax. From this account defendant appealed.</p> <p>3. The deductions were made in respect of the following items: Hay, feed and mine supplies, beneficiary fund, hauling coal, water rent collections, store collections and miners’ trains. All of these, with two exceptions, represented amounts that had been paid in cash by defendant before pay day to creditors of its employees at their request; the exceptions were a charge for hauling coal that had been sold by defendant to its employees, and a charge for the price of tickets sold by defendant to its employees for passage on its trains. There was no objection made by any employee to any of these deductions, but the balance stated to be due to each was paid to him during the pay period.</p> <p>4. Defendant does not own nor conduct, and is not in any way interested in any store, and did not, for the period for which the tax is claimed, give, make or issue to any employee any order on any store or storekeeper, or on any other person, either for payment of labor or otherwise.</p> <p>The court entered judgment for defendant.</p> <p>Error assigned was in entering judgment for defendant.</p>

Appeal, No. 203, Jan. T., 1902, by plaintiff, from judgment of C. P., Schuylkill Co., March T., 1901, No. 173, on verdict for defendant in case of John J. Williams v. Henry L. Williams. Assumpsit for money loaned. Before Bechtel, P. J. Verdict and judgment for defendants. Plaintiff appealed. Errors assigned were various instructions.

Appeal, No. 18, May T., 1901, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1900, No. 213, for plaintiff on case tried by court without a jury in suit of Commonwealth v. Delaware, Lackawanna & Western Railroad Company. Appeal from tax settlement. Weiss, J., found the facts among others as follows: 4. The facts agreed upon by counsel for the commonwealth and the company are set forth in the affidavits of W. H. Trues-dale, president, and Fred.