Volume 207 — Pennsylvania State Reports

Appeal, No. 4, May T., 1902, by the Real Estate Trust Company of Philadelphia, from decree of O. C. Fulton Co., affirming report of auditor in estate of Sarah I. M’Kibbin, deceased. Exceptions to auditor’s report.

<p> Partnership—Liability of partners to each other—Negligence. </p> <p>A partner can only be held liable to his copartners for a loss upon proof that he has been culpably negligent. Even if a loss sustained by a firm is imputed to the conduct of one partner more than to that of another, still, if the former acted bona fide with a view to the benefit of the firm, and without culpable negligence, the loss must be borne equally by all.</p> <p>A liquidating partner cannot be surcharged with a debt due to the firm at the time of its dissolution where there is evidence that at the time of the dissolution and thereafter the debtor was insolvent, and there is no evidence to show that the debt could have been collected by legal process, and it does not appear that the person claiming the surcharge made any request for the institution of the suit, or for the appointment of a receiver.</p> <p>Where a liquidating partner has been summoned in attachment proceedings against Ms fellow partner, he should not be required to pay over to his former partner any sums of money until the attachments are determined, or he has been protected by a satisfactory bond of indemnity.</p>

<p> Equity—Master's findings of fact—Partnership—Good will. </p> <p>A master’s findings of fact based upon sufficient evidence and confirmed by the court below to the effect that the good will of a partnership was valueless after dissolution, will not be reversed by the Supreme Court.</p>

Appeal, No. 288, Jan. T., 1902, by-defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1900, No. 731, on verdict for plaintiff in case of O. McHenry, trading as O. McHenry Seeded Raisin Company, v. Isaac Bulifant and Joseph Bulifant, trading as Bulifant & Company. Assumpsit for goods sold and delivered.

Appeal, No. 291, Jan. T., 1902, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1902, No. 2948, discharging rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Chase v. Provident Life and Trust Company. Rule for judgment for want of a sufficient affidavit of defense. The averments of the statement of claim and the affidavit of defense are set forth in the opinion of the Supreme Court. The court discharged the rule.

Appeal, No. 319, Jan. T., 1902, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 567, sustaining demurrer to bill in equity, in case of John S. Freeman v. Marguerite Lafferty, Assignee of Marie Mellerio, Samuel Chubb and George A. Aldrich. Bill in equity to cancel a judgment. The facts are stated in the opinion of the Supreme Court. Error assigned was the decree of the court.

Reargued April 28, 1903. Appeal, No. 166, Jan. T., 1902, by plaintiff, from decree of C. P. Delaware Co., June T., 1901, dismissing bill in equity in case of Joseph Hey et al. v. Springfield Water Company. Bill in equity for an injunction. Hemphill, P. J., of the 15th judicial district specially presiding, filed the following opinion : A preliminary injunction having been granted in this case, the question now is, Shall it be made perpetual? FINDINGS OF FACT.

Appeal, No. 313, Jan. T., 1903, by defendant, from judgment of ouster, C. P. Lackawanna Co.,' May T., 1902, No. 402, on quo warranto in case of Commonwealth ex rel. William R. Lewis, District Attorney of Lackawanna County, v. W. A. Paine. Quo warranto to oust respondent from office of director of the poor. Before Edwards, P. J. The case was heard upon answer, suggestion and demurrer. The court in an opinion by Edwards, P. J., entered judgment of ouster.

Appeal, No. 283, Jan. T., 1902, by-defendant, from judgment of Superior Ct., Jan. T., 1902, No. 29, reversing order of Q. S. Pike Co., Oct. T., 1900, No. 6, quashing summary conviction in case of Commonwealth v. Charles Hazen. Appeal from the Superior Court. The facts appear by the opinion of the Supreme Court and 20 Pa. Superior Ct. 487. Error assigned was the judgment of the Superior Court reversing the judgment of the court of quarter sessions.

Appeal, No. 79, Jan. T., 1902, by plaintiff, from order of C. P. Northampton Co., March T., 1897, No. 83, dismissing exceptions to auditor’s report in case of Margaret K. Stewart et al. v. Edward F. Stewart. Exceptions to report of James W. Wilson, Esq., auditor. The facts are stated in the opinion of the Supreme Court. Errors assigned were in sustaining exceptions to auditor’s report.

Appeal, No. 78, Jan. T., 1902, by defendant, from judgment of C. P. Northampton Co., March T., 1897, No. 22, for plaintiff on case tried before the court without a jury in suit of Chester B. Fulmer, Administrator of Henry Fulmer, Deceased, v. Margaret K. Stewart et ux. et al.

Appeal, No. 74, Jan. T., 1903, by defendant, from decree of C. P. No. 2, Phila. Co., June T., 1902, No. 2, on bill in equity in case of Emily Connell Paschall v. Joseph Eels. Bill in equity for an injunction. Before WlLTBANK, J. Plaintiff in her bill averred as follows : 1.

Appeal, No. 36, Jan. T., 1903, by-defendant, from decree of C. P. No. 3, Phila. Co., Dec. T., 1901, No. 2669, on bill in equity in case of William C. Erdman et al. y. Robert T. Mitchell et al. Bill in equity for an injunction. Before McCarthy, J. The court found the facts to be as follows: The following facts are clearly established from the pleadings and proofs: 1.

Appeal, No. 12, Jan. T., 1903, by defendants, from judgment of C. P. Luzerne Co., Jan. T., 1903, No. 12, on verdict for plaintiff in case of William H. Marcy et al. v. Frank Brock et al. Ejectment for land in the borough of Warrior Run. Before Wheaton, J. The opinion of the Supreme Court states the case. Verdict and judgment for plaintiffs. Defendants appealed.

Appeal, No. 101, Jan. T., 1903, by defendant, from judgment of C. P. Luzerne Co., March T., 1900, No. 96, on verdict for plaintiff, in case of Edward L. Fuller v. John B. Law. Assumpsit on promissory notes. Before Fekris, J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $7,619.95. Defendant appealed. Error assigned amongst others was in rejecting the offer of evidence quoted in the opinion of the Supreme Court.

Appeal, No. 265, Jan. T., 1902, by defendants, from judgment of C. P. Erie Co., Feb. T., 1901, No. 221, on verdict for plaintiff in case of Christian Lohrer v. Harriet Russell and William Russell. Ejectment for land in Fairview township. Before Walling, P. J. The opinion of the Supreme Court states the case. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff. Defendant appealed.

<p> Negligence—Explosion of boiler—Duty of inspection. </p> <p>In an action to recover damages for injuries to a building caused by the explosion of a boiler in the adjoining premises, the testimony showed that the boiler was purchased from a reputable manufacturer, that on two occasions some months prior to the explosion it was repaired by skillful boiler makers, and that two months before the explosion it was examined and reported to be in good condition by inspectors of an insurance company which insured the boiler. The evidence tended to show that the boiler could not have been in good condition at the date of the last inspection and for some time before. Held, that proper instructions for the jury were that if they find there was no evidence of want of care upon the party defendant in selecting competent mechanics to make the repairs, and that if the evidence shows an inspection by competent persons after the repairs weré made and before the explosion, then even if they should find that the mechanic and inspectors did not perform their duty, the defendant is not answerable for their neglect.</p> <p>No manufacturer can turn over the supervision of his boiler and machinery to an insurance company and thereby exempt himself from the penalty of negligence by their mere report to him, that his boiler is in safe condition. He must go further, and prove that the insurance company’s inspectors were competent and that they did properly inspect and truthfully report.</p>

<p> Negligence—Electric light company—Defective insulation. </p> <p>Where a painter goes upon a roof in the lawful exercise of his business, and finds that in order to get at a cornice to paint it, he must prop up a number of electric wires which are in his way, and he does so by means of a board, and while under the wires at his work the board slips, and he is killed by a defectively insulated wire, and it appears that this insulation had been defective for several weeks and was caused by the sagging of the wire against the cornice, the question of the electric light company’s negligence and the plaintiffs contributory negligence is for the jury. Elliott v. Allegheny Light Co., 204 Pa. 568, distinguished.</p> <p> Negligence—Death—Parties—Widoiv—Executors and administrators. </p> <p>Where a widow has brought an action for damages for the death of her husband, in her own behalf and that of her only child, and pending the suit the widow dies, her administrator may properly be substituted as plaintiff.</p> <p> Appeals—Assignments of error—Evidence. </p> <p>Assignments of error relating to rulings on evidence are insufficient where there is no reference to the page of the paper-book where the matter referred to may be found in its regular order in the printed evidence.</p>

Appeal, No. 112, Jan. T., 1903, by defendant, from judgment of C. P. York Co., Oct. T., 1901, No. 33, on verdict for plaintiff in case of John H. Dobbling v. York Springs Railway Company. Assumpsit for breach of contract to construct a railway. Before Bittengeb, P. J. The facts appear by the opinion of the Supreme Court, and by the previous report of the case in 208 Pa. 628. Verdict and judgment for plaintiff for 13,590.07. Defendant appealed.

<p>Mines unci mining—Sale of coal—“ Available coal."</p> <p>A written contract for the sale of coal provided as follows: “It is mutually agreed by the parties hereto that all coal and surface land agreed to be conveyed hereby shall be surveyed and for any number of acres of coal not delivered there shall be deducted two hundred and fifty dollars per acre from said consideration, per acre for coal owned, and one hundred dollars per acre for surface, as the result of said survey shall determine.” There then followed a schedule headed thus: “ The property included in the coal mine or coal plant hereinbefore referred to is substantially as follows.” Then after enumerating several particulars the following words occurred: “Coal unmined about three thousand five hundred acres available coal.” It appeared that out of the whole acreage mentioned about thirty-eight acres had been mined out by the grantors, and the parties agreed that there should be deducted for this deficiency two hundred and fifty dollars per acre. It also appeared that a creek ran over the land, and that a railroad had been constructed over it. The purchasers claimed that the coal under the creek and the railroad was not available coal within the meaning of the contract, and that it could not be mined without flooding and without destruction of the surface. The evidence showed that the coal both under the creek and under the railroad could to a large extent be mined out by leaving proper supports, but that this could only be done at a greatly enhanced cost. Held, that the coal under the creek and the railroad was as a matter of fact capable of being mined by the purchaser, and that such coal was within the meaning of the words of the contract “ available coal,” whether it could be mined or not.</p>

<p>Public officers—County auditors—Account—Act of April 15, 1834, P. L. 537—Appeal nunc pro tunc.</p> <p>County commissioners should be given leave to appeal nunc pro tunc from a report of county auditors settling the account of a county treasurer where upon a proper hearing it is made to appear that the report was obtained by fraud practiced by the county treasurer, and that such fraud was not discovered until after the time allowed for the appeal had passed.</p> <p>Where a petition for an appeal nunc pro tunc from report of county auditors avers fraud in procuring the report, the question raised should not be summarily disposed of on petition and demurrer. In such a case the demurrer should be overruled with leave to the county treasurer and his sureties to answer; and on answer, or in default thereof, the court should be informed by depositions as to the real facts in connection with appellants’ allegations of fraud, and, if then satisfied that relief ought to be granted, the judgment should be opened and the appeal allowed.</p>

<p>Appeal, No. 3, Jan. T., 1903, by defendant, from judgment of C. P. Juniata Co., Dec. T., 1900, No. 53, on verdict for plaintiff in case of George Book v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Shull, P. J.</p> <p>At tbe trial it appeared that on July 4,1900, a crowd of people collected on a foot bridge over tbe Pennsylvania Canal in Mifflintown to watch a tub race on the Juniata river. The bridge broke under the crowd, and the plaintiff and other persons were precipitated into the dry bed of tbe canal, a distance of about sixteen feet. Plaintiff sustained a fracture of his leg. There was evidence that the footwalk was constructed by the borough of Mifflintown in 1889, and was built on the abutments of the old canal bridge.</p> <p>The court charged in part as follows:</p> <p>[There was no duty resting upon the canal company to erect-a bridge containing a footway, if the necessity of the place did not require it. Were it at a point in a city, where travelers on foot and vehicles were almost constantly on the move and frequently large crowds passing back and forth, a footway might prove an absolute necessity, but at a point such as the one now considered, we cannot say, as a matter of law, that such was a necessity, yon may judge as to this necessity. The evidence shows the bridge erected by the canal company to be eighteen feet seven inches in the clear, and if you find that such structure was sufficient for the accommodation of the traveling public on foot and in vehicles at this place, then no further duty rested upon it to provide anything more commodious and if the borough authorities wished to have a structure to suit its fancy and erected one, even if you find that the canal company’s employees extended the caps for the footway, the defendant in this case could not be liable because the borough having erected the footway, assumed the responsibility of its maintenance.] [1]</p> <p>[If, on the other hand, you find that the footway was a necessity for the place and was essential for the welfare and safety of the traveling public, then it would have been incumbent upon the canal company to erect and maintain the same, and failing to do this, even if the borough did construct it mainly, the canal company were nevertheless liable because it failed to perform a duty and shoulder a responsibility which the law says it should bear.</p> <p>Thus it appears much devolves upon the question of the necessity of the footway to guide you in your verdict. For if the traveling public had reasonable, safe and proper means of travel without the footway, there was no duty to require its construction and if the borough built it without such necessity it became liable for its maintenance, and it cannot shift the burden on another’s shoulder.] [2]</p> <p>[If the necessity for a footway did not exist and if you find the borough constructed it, then this plaintiff cannot recover. Otherwise we say to you, find for the plaintiff such amount as you think right and proper and as the evidence would warrant.] [8]</p> <p>[It was the duty of the canal company in 1889, when it rebuilt the bridge, to provide such a bridge as would afford reasonable, safe and commodious and proper means for the use of the traveling public over the said canal, the character of the place and the mode of travel must be taken into consideration in the erection of the bridge. Unfortunately, the evidence of the necessities in this case are not very extensive, but you will have to glean that information from the best source that you may be able to gather the same from the testimony.] [4]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Errors assigned among others were (1-4) above instructions, quoting them.</p>

Appeal, No. 3, May T., 1903, by Jehu DeHaven, from decree of O. C. Dauphin Co., June T., 1901, overruling exceptions to auditor’s… Held: that so far as the second codicil referred to the specific devise and bequests, originally made to Frederick H. DeHaven, they were not subject to any deduction on account of debts, but that, -in so far as it related to the residuary estate, or the interest, which Frederick Albert DeHaven might take under that clause of the will, it…

Appeal, No. 5, May T., 1903, by H. E. Gilman, guardian of Frederick Albert De Haven, from decree of O. O. Daupbin Co., overruling exceptions to auditor’s report in estate of Jehu DeHaven. Exceptions to auditor’s report. The facts appear by the report of DeHaven’s report (No. 1), ante, p. 147. Error assigned was in overruling exceptions to auditor’s report.

<p>Appeal, No. 7, May T., 1903, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1902, No. 52, for defendant on case tried by the court without a jury in suit of Commonwealth v. Buffalo & Susquehanna Railroad Company.</p> <p>Appeal from tax settlement.</p> <p>Weiss, P. J., found the facts to be as follows:</p> <p>1. The Buffalo & Susquehanna Railroad Company was incorporated October 7,1891, under the provisions of the Act of April 4, 1868, P. L. 62, entitled “ An act to authorize the formation and regulation of railroad corporations” and its supplements, among which is an act approved June 4,1883,. P. L. 67, entitled “ An act supplementary to an act entitled 4 An act to authorize the formation and regulation of railroad corporations,’ approved the fourth day of April, Anno Domini one thousand eight hundred and sixty-eight amending the provisions to the sixth section of said act, and making the original amount of stock and increased capital one hundred and fifty thousand dollars per mile, and of stock and bonds three hundred thousand dollars per mile.”</p> <p>2. On April 10,1901, the corporation defendant increased its capital stock $1,518,000, which with the capital stock of $2,000,000, issued theretofore, viz: prior to the approval of the Act of May 3,1899, P. L. 189, entitled “ An act to provide for the payment of bonus on charters and upon the authorized increase of the capital stock of certain corporations and authorizing corporations to increase their capital stock for corporate purposes,” aggregated $3,518,000.</p> <p>3. A part of the proceeds of the increase of capital stock was applied to the purchase and acquisition of all the capital stock of the Northern Susquehanna Railroad Company, incorporated January 31, 1900, amounting at par to $857,000, upon the amount of which stock the bonus required by the act of May 3, 1899, was paid into the treasury of the commonwealth, viz: $2,856.68 which company with others formed under the act of April 4,186 8, became and was merged into the defendant company.</p> <p>4. The defendant owns, controls and operates 152.42 miles of railroad, and it has not issued stock equal to $150,000 per mile, nor stock and bonds in excess of the amount of $300,000 per mile, allowed by the act of June 4,1883, amending the sixth section of the act of April 4,1868.</p> <p>5. The fifteenth section of the Act of May 1,1868, P. L. 108, known as the Revenue Act of 1868, required the payment ■of a bonus from every company incorporated by or under any general or special law of this state, except railroads, canals, turnpike, . . . and other companies.</p> <p>The seventh section of the Act of April 18,1874, P. L. 61, also excepts railroads from the operation of its provisions relating to a bonus, and while the Act of April 29,1874, P. L. 73, known as the General Corporation Act with its supplement of June 15,1897, P. L. 155, exacts a bonus from companies formed under its provisions, except certain designated companies and associations, not including therein railroads, the original act as well as the act of 1897 amending the 44th section thereof specifies and embraces those “ incorporated, by or under the provisions of this act or accepting' the same.”</p> <p>6. The commonwealth settled an account against the defendant February 13,1902, wherein it is claimed that the company is debtor to the plaintiff for bonus on an increase of capital stock April 11,1901, in the amount of $1,518,000, viz: #5,060 from which the company appealed and filed specifications of objection which raise the issue to be determined.</p> <p>The court entered judgment for defendant. Commonwealth appealed.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 11, May T., 1903, by plaintiff, from judgment of C. P. Dauphin Go., Commonwealth Docket 1902, No. 233, on case tried by the court without a jury in suit of Commonwealth v. Buffalo, Rochester & Pitts-burg Railway Company. Appeal from tax settlement. Weiss, P. J., found the facts to be as follows: 1.

<p> Waters—Dam—Flooding land. </p> <p>The extent of a presumed grant to swell water upon the land of an adjoining owner is measured' by the land actually flooded, and not by the height of the dam by which the swelling is occasioned. If, by means of repairs to a dam, the land be flooded to a greater • extent than it had been for twenty-one years before, the owner of the dam is liable for the injury, although the height of the dam may not have been increased.</p> <p>This rule is not confined to mere repairs of a dam. If a new one replaces an old one, and in its construction there is such a change that the water is forced back to a greater extent than it had been for a period of twenty-one years by the old dam, the owner of thg dam is liable for the injuries sustained, although the height of the new dam may not have been increased, but, as a matter of fact, may even be lower than the old one.</p> <p> Waters—Flooding land—Measure of damages. </p> <p>In an action of trespass by an upper riparian owner against a lower riparian owner to recover damages for injuries sustained by reason of the construction of a dam, the measure of damages is, in addition to the value of trees or shrubbery actually destroyed, the cost of restoring plaintiff’s property to its condition before it was injured, unless such cost should equal or exceed its value, in which event the value would be the measure of damages, to which cost of restoration should be added the actual loss sustained by being deprived of the fulj use of the property from the time the injury was committed up to the institution of the suit.</p> <p> Waters—Flooding land—Damages—Punitive and exemplary damages. </p> <p>In an action to recover damages for the flooding of land, the jury cannot award punitive damages unless there is evidence that the injuries complained of were committed wilfully, maliciously, or so negligently as to indicate a wanton disregard of the rights of others.</p> <p> Trespass—Boundaries—Low water mark—Charge. </p> <p>In an action of trespass for injuries to land by reason of flooding from a lake, where plaintiff’s deed shows that her land extended to a point on the shore of the lake “ twenty feet above low water mark, thence along the said shore about twenty feet above low water mark to a point,” etc., it is proper for the court to charge that plaintiff’s ownership extended at most only to a line parallel with low water mark and twenty feet distant therefrom, and that the jury must find where low water mark was, and where the twenty foot line was.</p> <p> Waters—Abutting land—Agreement—Admission—Evidence. </p> <p>In an action of trespass to recover damages for the flooding of land, the plaintiff may offer in evidence an agreement in writing made with the defendant by which the latter admitted that he had constructed a dam, and agreed in consideration of general release to lower the dam so as to prevent an overflow of plaintiff’s lands.</p> <p> Trespass—Expert witness—Incompetent witness—Waters. </p> <p>In an action to recover damages for -the flooding of land, a witness who has no acquaintance with the properties in the vicinity should not be permitted to express an opinion as to values.</p>

<p>Equity—Jurisdiction—Actions at law—Act of March 21, 1772—Landlord and tenant—Summary proceeding.</p> <p>The jurisdiction of equity to restrain actions at law is well settled, and there is nothing in the act of March 21, 1772, to give summary proceedings under it an immunity from such restraint in a proper case; but the limitations of interference by equity are as well settled as the jurisdiction itself. The case must fall within some one or more of the recognized categories of fraud, accident or mistake, etc.</p> <p>Allegations in a bill do not come up to the required standard which are in effect that “ the defendants have selected justices of the peace friendly to themselves, and that the jury summoned is also friendly to the defendant, so that the complainant verily believes he cannot have a fair and impartial trial in said summary proceeding.”</p> <p>Equity—Jurisdiction^Landlord and tenant—Breach of contract—Written notice—Act of March 21, 1772.</p> <p>Equity will not interfere to restrain summary proceedings under the landlord and tenant act of March 21, 1772, merely because the landlord had broken his promise to extend the lease, and the defendant relying on such promise had not given the written notice required by the lease.</p> <p>Landlord and tenant—Act of March 21, 1772.</p> <p>The act of March 21, 1772, carefully guards the rights of all parties, and there is no necessity for restricting its application to only the simplest" eases.</p>

<p> Railroads—Boroughs—Telegraphs—Equity. </p> <p>Where a railroad company has a full and complete right to construct a line of railroad over and upon land in a borough, with all of the incidents necessary for the operation and maintenance of such railroad, the borough cannot prevent the railroad company from erecting on such land a line of telegraph poles and wires. On a bill in equity by the railroad company against the borough to restrain such interference, the purpose which the railroad company has in contemplation and the use it intends to make of the telegraph line when built are not within the province of the court to consider.</p> <p> Equity—Equity practice—Injunction bond—Appeals. </p> <p>On an appeal from a decree refusing an injunction, an objection made in the appellate court that no injunction bond was filed by the complainant, is one that can be obviated after the reversal of the decree by the filing of the bond at any time before the injunction issues.</p>

<p> Mortgage—Husband and wife—Fraud—Creditors. </p> <p>In a contest between creditors of a mortgagor and purchasers of the mortgage from the wife of the mortgagor to whom the mortgage has been given ,it appeared that the purchasers of the mortgage knew that the mortgagor and mortgagee were husband and wife, that the husband was financially embarrassed when the mortgage was given, that the wife was never in any separate or money-making business of her own, that they merely made perfunctory inquiries as to the mortgage when they purchased it, and that they paid only one fourth of its face value. Held, that the validity of the mortgage could not be sustained in favor of the purchasers as against objecting creditors of the mortgagor.</p>

<p>Appeal, No. 4, Oct. T., 1903, by Elizabeth Klein Schopperle, from decree of O. C. Clarion Co., Aug. T., 1900, No. 35, refusing issue devisavit vel non in estate of Frank Klein, deceased.</p> <p>Petition for issue devisavit vel non.</p> <p>Criswell, P. J., filed the following opinion:</p> <p>The petitioners ask for an issue in this matter on two grounds: First, for the reason as alleged that the deceased did not have sufficient mental capacity to make a will at the time he executed the testamentary writing bearing the date the 18th day of October, 1897, and second, that at the time of the execution of the said writing he was under the duress of undue influence.</p> <p>As to the second contention noted it is necessary only to say that there is no evidence to sustain it. As to the first, much evidence has been offered which demands consideration.</p> <p>The deceased for many years resided at East Brady, in said county, where he died on February 21, 1899, at the age, as we understand, of about fifty-four years. He left surviving him a widow, Maggie Fox Klein, and four children by a former wife, vis: Kate, intermarried with Charles Newlon; Lizzie, intermarried with Y. Schopperle ; J. Alfred Klein, and Frank Klein. Neither the date of the death of the first Mrs. Klein nor that of the marriage of the deceased to the second is given in the evidence, nor is the respective ages of the children given. It appears, however, that Mrs. Newlon left home and was married in 1878 while Mrs. Schopperle was married in 1881 and did not thereafter reside at home. Frank is a member of the bar of this county.</p> <p>J. Alfred was married in 1894 but neither he nor Frank was called as a witness, and the evidence discloses but little information relative to them. We infer that they are in middle life and that the second marriage of the deceased occurred quite a number of years prior to his death.</p> <p>For many years preceding his death the deceased was engaged in the hotel and retail liquor business and in merchandising. He was addicted to the use, to a considerable extent, of intoxicating liquors and was frequently seen under its influence. According to Dr. Wallace, his family physician and a witness called on behalf of the contestants, he drank regularly and a great deal. He was likewise afflicted with asthma during his late years and in 1895 had a slight stroke of apoplexy.</p> <p>As to the facts thus generally stated there appears to be no controversy. But the contestants allege further that by reason of or in connection with the stroke of apoplexy he was afflicted with a sort of dementia growing progressively worse until his death, which affected and impaired his mental powers. In support of this contention two physicians and several others were examined at length and express the opinion more or less positively that he was, in October, 1897, incapable of making a will.</p> <p>As to what in law constitutes sufficient mental capacity to m&ke a will there appears to be no controversy or uncertainty, It is always presumed to exist until the contrary is shown. A familiar saying is that it requires less capacity to make a will than is generally required to transact ordinary business. In the case of Thompson v. Kyner, 65 Pa., 868, the authorities on the subject are collated by Thompson, C. J., and the following summaries, some affirmative and others negative in form, are given. “ The result of the best considered cases seems to put the question of understanding requisite to the valid execution of a will upon the basis of knowing and comprehending the transaction ; or, in popular phrase, that the testator should, at the time of executing the will, know and understand what he is about. ” “ Old age, failure of memory, or habitual drunkenness will not (per se) constitute incapacity to execute a will.” “ If the testator was at the time capable of understanding the nature of the business and the elements of the will, that is, the nature and extent of his property, and the persons to whom he meant to convey it, and the mode of distribution, it is sufficient. ” “ To understand in detail all that he is about is quite sufficient ; ” and, quoting Daniel v. Daniel, 39 Pa. 191, “A sound and disposing mind and memory is one in which the testator is shown to have had at the making and executing of his will a full and intelligent consciousness of the nature and effect of the act he is engaged in; a knowledge of the property he possessed; an understanding of the disposition he wished to make of it by will, and of the persons and objects he desired to participate in his bounty. It is not necessary that he should collect all these in one view. If he understands in detail all he is about and chooses with understanding and reason between one disposition and another, it is sufficient.”</p> <p>An opinion as to mental testamentary incapacity not based upon sufficient facts or based upon an erroneous conception as to what in law constitutes testamentary incapacity must have but little weight, and must necessarily be disregarded where the evidence shows the presence of those facts and conditions which accompany and constitute mental capacity. With these summary statements of the law in mind we will consider the evidence more in detail.</p> <p>Dr. Wallace says that the deceased had, about the year 1895, a light apoplectic stroke and that he then commenced to have enfeeblement of the mind and that his impression is that he gradually became worse. That the stroke made him very forgetful and weak minded; that he would start to say something and when he got through a sentence he would forget what he was going to say. The doctor usually treated him at his office, where the deceased came for treatment, had no memoranda of the dates of his treatment in the fall of 1897 and but little recollection of it, but his opinion is that he was worse in 1897 than the year before. On substantially these facts, in connection with the fact that lie saw him frequently, given in his examination in chief, he expresses the opinion that at no time in 1897 had the deceased mental capacity sufficient to make a will. On cross-examination he states that he does not know that he had any delusions or hallucinations, that his difficulty was more an enfeeblement of mind resulting from old age and the stroke of apoplexy,—what he would term dementia. He admits that he was about his places of business but doesn’t think he took much part in the management of it; that he had a marked degree of failure of memory, a very defective memory but when he wanted treatment he would come to him and tell him about his ailments ; that he knew his family; that the witness didn’t know much about him except as a physician; that the deceased was a German, moderately successful in business. In giving instances of forgetfulness he says that the deceased would come to him for medicine ; that next day he would come back and make the same complaint and want more medicine. When I would tell him I had prescribed for that, he would say I forgot. The doctor was then asked this question, “ Doctor, if Mr. Frank Klein on October 18, 1897, knew his children and their names, knew what property he owned and what disposition he wanted to make of it at that time, and was doing business in his own name, signing checks, writing letters, conducting a mercantile business and running a hotel just completed by him, would you still say that he would not have sufficient mental capacity to make a will ? ” In view of the evidence subsequently educed on the part of the proponents of the will, this was an important question, going directly to the point in issue, yet the doctor very ungracefully evaded it and failed to make any answer thereto by saying, “I would say from my knowledge of Mr. Klein that he was incompetent at that time.” He then in redirect refers to his drinking habit as hereinbefore mentioned.</p> <p>Dr. James states that he prescribed for and furnished medicine to the deceased several times in September and October, 1897, that he was then excessively nervous and very incoherent in his conversation; wanted something to make him rest; didn’t want anything for asthma; that he understood his ailment then was excessive nervousness, and gave him something to quiet his nerves; that he thought at the time he was under the influence of morphine, judging from his actions ; again he wanted something for asthma which Dr. W allace had prescribed; that he brought a bottle the medicine had been in and the witness filled it but he never came for it; that it couldn’t help being noticed that he wasn’t himself the latter part of September and October; noticed that he was very incoherent. If he started to describe something he would get entirely off his subject and would contradict what he said the day beforé,—something of that sort. The doctor then expresses the opinion that he was not of sound mind and that his condition was caused by his brain trouble, and that he was not of sufficient mental capacity to make a will of any length—hadn’t the power of concentration.</p> <p>On cross-examination he says that the latter times he came to see him he had not that undue excitement—the medicine would relieve that; that he was what the witness calls weak-minded,—could remember some things; knew me;. told me what he came for and knew he was sick; supposed he knew his family and what property he had ; that he didn’t tell his wife or any one then that he was of unsound mind or that he ought not to be allowed to attend to his business. Speaking of the time of making the will he says in substance : “ I suppose he would know on October 18, 1897, that he was engaged in making a will; don’t know that he didn’t know his children or that he didn’t know what property he had, yet think he was weak-minded and incompetent to transact any ordinary business.”</p> <p>Other witnesses including his two married daughters were called on behalf of the contestants. These testify to forgetfulness in reference to various matters; to his physical condition at various times, and to conversations with or remarks made by him which are relied on as tending to show weakness of mind and mental incapacity. These, however, are of such a character that when taken in connection with the admitted facts of nervousness, the use of liquors and ill health, they throw but little light upon the testamentary capacity of the deceased at the time of the execution of his will. The most important witnesses called were the two physicians whose testimony we have noted more at length.</p> <p>• As against these we have the fact that the deceased was, until sometime after the date of the execution of his will, in the actual control and management of his merchandising business; that when his hotel building was destroyed by fire in the early part of 1897 he looked after the adjustment of the loss and collection of the insurance thereon; that he proceeded shortly thereafter to erect a new hotel building which was nearing completion at the time of the making of the will in question; that in company with his wife he went to Pittsburg and bought furniture for the same, and, upon its completion, looked after the procurement of the license therefor, and in all these matters there is no pretense but that he exercised good business care and judgment. Most of his quite extended correspondence, it is true, was done by Miss Sweeney who was his bookkeeper and clerk in the store. But she says that what she did in his name she did by his direction with some trivial exceptions which were referred to by her. An examination of this correspondence discloses not only ordinary care and judgment, but exceptional care, forethought and judgment, together with business methods which account for the measure of success which he had in the accumulation of property. To the preparation of his will he gave like care and consideration. The first will of which mention has been made was prepared by J. T. Maffett, Esq., after full conference and consultation with the deceased. Afterward he desired some modifications therein in the interest of those who were to receive the estate in reversion on the death of the widow. The will was rewritten and these modifications were inserted by Haggerty, Esq., evidently a very competent and intelligent layman, who resided in the vicinity of his home. Neither in what transpired in connection with the preparation and the execution and witnessing of the will, nor in the terms thereof was there anything to suggest to any one that he was not mentally competent to make the same. Nor does it appear even to have occurred to those with whom he dealt and contracted at the time of and immediately before and after its execution that he was not amply able and competent to protect his own interest. So far as disclosed by the evidence such appears never to have occurred to his children, the contestants, until after his death. The husband of one of them prepared, or caused to be prepared, a will to be executed by him, and it appears, submitted it to the deceased and conferred with him in reference thereto shortly prior to the date of the one afterward executed by him. This is practically the only evidence we have of any suggestion having been made to him by any of the family on the subject. Instead of adopting such paper, however, and executing it as his will, he caused one to be prepared in terms to suit himself without conference with any one except those whom it was necessary to consult in order to its due preparation and execution.</p> <p>In the face of these unquestioned facts, the opinions of the physicians and others that he did not have mental capacity, based on no other facts than those given by them cannot prevail. No one can carefully read and consider all the evidence offered in this inquiry and not conclude without hesitation or doubt that the deceased knew at the time of the execution of his will what he was doing; knew the members of his family and their relationship to and claims upon him; knew what property he had, the character and value thereof, and knew definitely, certainly and intelligently, just what he wanted to do with it. Such being the case, if an issue were awarded and a jury should return a verdict in favor of the contestants, it would be the duty of the court to set it aside. We should, therefore, refuse the issue. To do otherwise would, in our opinion, to use the language of Justice Paxson in Eddey’s Appeal, 109 Pa. 406, be a grievous wrong.</p> <p>And now, April 14, 1902, after due consideration tbe prayer of the petitioners for an issue in the above entitled matter is refused and the petition is dismissed at the cost of petitioners.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 30, Oct. T., 1903, by plaintiff, from judgment of C. P. Jefferson Co., April T., 1901, No. 194, refusing to take off nonsuit in case of Catharine Schlemmer v. Buffalo, Rochester & Pittsburg Railway Company. Trespass to recover damages for death of plaintiff’s husband. Before Thomas, P. J., specially presiding.

<p> Judgment—Opening judgment—Burden of proof—Bond—Warrant of attorney. </p> <p>Where a bond containing a warrant of attorney to confess judgment expressly stipulates that the affidavit of an officer or authorized agent of the corporation to whom the bond is given, alleging a breach and stating the amount of the damage “ shall be sufficient evidence of such damage and execution may be issued forthwith on said judgment,” such affidavit when filed makes out for the plaintiff a prima facie case, and before the defendant will be entitled to have the judgment entered on the bond opened, it will be incumbent on him to raise a substantial doubt of the correctness of the amount charged against him.</p>

<p>Appeal, No. 140, Oct. T., 1903, by-John P. Hook et al., from decree of O. C. Greene Co., Feb; T., 1903, No. 63, dismissing appeal from Register of Wills in estate of Eliza Hook, deceased.</p> <p>Appeal from register of wills.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing appeal.</p>

Appeal, No. 46, Oct. T., 1903, by plaintiff, from decree of O. P. Lawrence Co., dismissing bill in equity in case of L. S. Hoyt v. Shenango Yalley Steel Company, William E. Reis, William Patterson, John Stevenson, Jr., George B. Berger and James McLane. Bill in equity for an injunction. The opinion of the Supreme Court states the case. Error assigned was decree dismissing the bill.

<p>Appeal, No. 97, Oct. T., 1903, by defendant, from judgment of O. & T. Allegheny Co., on verdict of guilty of murder in the first degree in case of Commonwealth v. John Conroy.</p> <p>Indictment for murder. Before Evans, J., and Taylor, J., specially presiding.</p> <p>At the trial defendant made the following request:</p> <p>Counsel for defendant requests the court to so construe the act of 1901 in reference to the challenging of jurors, that the commonwealth be required first, to accept or challenge each juror after he has been examined, before the juror is turned over to the defense for acceptance or challenge, and to direct that the acceptance or challenge of the jurors be made in accordance with such construction.</p> <p>The court overruled the request. [1]</p> <p>The court charged in part as follows :</p> <p>Gentlemen, it is the duty of the commonwealth before they can ask for a conviction in this case, as well as in every other case, which I have told you before, to satisfy the jury of the guilt of the defendant beyond a reasonable doubt. A reasonable doubt is a doubt which arises out of the evidence, which appeals to reasonable men and causes them to hesitate to convict the defendant. If there is such a reasonable doubt in this case, then it is your duty to acquit. If there is no such reasonable doubt it is just as much your duty to convict. [6]</p> <p>Verdict of guilty of murder in the first degree upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned among others were (1) ruling on request as to challenges; (2) admission of testimony of Hartman referred to in the opinion of the Supreme Court; (6) instruction as to reasonable doubt; (7) in giving undue prominence to the evidence of the commonwealth, and minimizing the evidence of the defendant, in the charge.</p>

<p>Appeal, No. 5, Oct. T., 1903, by plaintiff, from decree of C. P. No. 1, Allegheny Co., June T., 1901, No. 447, dismissing bill in equity in case of Emanuel Grafner v." Pittsburg, Neville Island and Coraopolis Street Railway Company, J. D. Callery, President, and Joseph F. Guffey, Treasurer.</p> <p>Bill in equity to compel a corporation to transfer stock.' Before Collier, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 12, Oct. T., 1903, by Robert A. Lee, trustee, from decree of O. C. Allegheny Co., Sept. T., 1902, No. 389, directing trustee to file an account in estate of Andrew J. Lee, deceased. Petition for an order directing trustee to file an account. From the record it appeared that the purpose of the proceeding was to secure the termination of a trust created by the will of Andrew J. Lee in favor of Annie E. Blackmore.

<p> Evidence—Parol Evidence—Written instrument—Bond—Vendor and vendee. </p> <p>In an action on a sealed bond given to secure the deferred payment of the purchase money of land, where the defendant claims and introduces parol testimony to show that the bond was not to be paid until an outstanding interest in the land in other parties than the plaintiff had been relinquished, and such testimony is contradicted, it is not error for the court to charge “ that in order to make the alleged parol promise a defense to this action the jury must be satisfied that the defendant was induced to purchase the property and give its bond on the faith of such promise, and would not have done so without such promise, and unless the jury so find, even if they should find that such promise was made by the plaintiff, it cannot avail to defeat the plaintiff’s recovery.”</p> <p>Trial— Charge—Points.</p> <p>Where on the trial of a cause, the existence of an alleged parol agreement is in dispute, it is the duty of the party alleging corroborating circumstances to establish the parol agreement, to call the court’s attention to such circumstances if they exist, and if this is not done, the party so neglecting cannot on appeal complain of the omission of the court to call the jury’s attention to such circumstances.</p>

<p> Landlord and tenant—Principal and agent—Extension of lease. </p> <p>An attorney in fact who has authority under a letter of attorney 1 ‘ to lease, rent or let any house, tenement, lands or lots of ground wherever situate,” has a right to extend a lease.</p> <p>Where the president of a corporation solicits the extension of a lease from the attorney in fact of the landlord, and the attorney in facts indorses the extension on the back of the original lease in his possession, and signs the extension, and the president thereupon thanks him for so doing, it is immaterial that the extension is not indorsed on the duplicate of the lease in the company’s possession, and neither the company nor the landlord, nor a purchaser of the premises from the landlord, will be heard to aver that the extension of the lease was not valid.</p>

<p>Appeals, Nos. 63, Oct. T., 1902, and 25, Oct. T., 1903, by Sidney F. Murphy, administrator d. b. n. of George W. Murphy, deceased, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1880, No. 150, dismissing exceptions to auditors, report in case of J. T. Stockdale, Trustee, v. Michael Maginn et al.</p> <p>Exceptions to auditors’ report.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in overruling exceptions to auditors’ report.</p>

Appeal, No. 26, Oct. T., 1903, by George'W. Guthrie, Trustee, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1880, No. 150, on bill in equity in case of J. T. Stockdale, Trustee, v. Michael Maginn et al. Bill in equity for the liquidation of a banking partnership. From the record it appeared that the partnership was composed of a large number of persons, whose interests passed by assignment like the stock of a corporation.

Appeal, No. 101, Oct. T., 1903, by First National Bank, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1880, No. 150, on bill in equity in case of J. T. Stockdale, Trustee, v. Michael Maginn et. al. Bill in equity to liquidate a partnership account. Errors assigned were in dismissing exceptions to auditor’s report.

<p>Appeal, No. 102, Oct. T., 1903, by W. R. Hamilton, from degree of C. P. No. 2, Allegheny Co., Jan. T., 1880, No. 150, on bill in equity in case of J. T. Stock-dale, Trustee, v. Michael Maginn et al.</p>

<p>Appeal, No. 47, Oct. T., 1903, by defendant, from order of C. P. No. 3, Allegheny County, Feb. T., 1903, No. 326, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Homewood People’s Bank v. William R. Heckert.</p> <p>Assumpsit on a promissory note.</p> <p>The material agreements of the affidavit of defense are set . forth in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 50, Oct. T., 1903, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1901, No. 610, on verdict for plaintiff in case of Columbian Fire Proofing Company v. Great Northern Paper Company. Assumpsit for balance alleged to be due on a building contract. Before Brown, J. Yerdict and judgment for plaintiff for $9,088.27. Defendant appealed. Errors assigned were various rulings on evidence and instructions.

Appeal, No. 73, Oct. T., 1903, by defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1899, No. 461, on verdict for plaintiff in case of Iron City National Bank v. B. F. Rafferty and Jo. P. Cappeau. Assumpsit against indorsers on a promissory note. Before McCltjng, J. At the trial it appeared that the note in suit was made by the Burrell Water Company to the order of the defendants payable on demand.

Appeal, No. 90, Oct. T., 1903, by defendant, from order of C. P. No. 3, Allegheny County, Nov. T., 1902, No. 411, making absolute rule for judgment for want of a sufficient affidavit of defense in case of D. P. O’Rorke v. D. J. Geary. Assumpsit to recover the amount alleged to be due on a contract for building a bridge. Rule for judgment for want of a sufficient affidavit of defense.

Appeal No. 93, Oct. T., 1903, by plaintiff, from order of O. P. No. 2, Allegheny Co., July T., 1901, No. 685, refusing to take off nonsuit in case of John Jordan v. W. E. Patrick and W. N. Murray, surviving partners of W. E. Patrick & Company. Assumpsit against W. E. Patrick, W. N. Murray and Theodore R. Hostetter, alleged to be copartners in the brokerage business, for money had and received.

<p> Municipalities—Boroughs—Municipal debt—Constitutional law—Sewers. </p> <p>A borough entered into a contract for the construction of a sewer at a time when it had no actual outstanding obligations or actual indebtedness except a floating debt much below the two per cent constitutional limit. The contract itself imposed no liabilitj' upon the borough for the construction of the sewer, but viewers subsequently appointed assessed a portion of the damages against the borough. There was no evidence that this sum was not payable and actually paid by the borough out of current funds. Prior to the malting of the sewer contract ordinances had been passed authorizing issues of bonds for various purposes, among others to pay off the floating indebtedness. The amount of these bonds, together with the amount of the sewer contract, amounted to more than the constitutional limit. No bonds, however, were actually issued under these ordinances until after the sewer contract was made, and no purchases of property were made, nor work done for the payment for which the bonds were authorized until long after the sewer contract was made, and, indeed, until the construction of the sewer was almost completed. Held, that the sewer contract did not involve an increase of debt beyond the constitutional limit, and that the contractors were entitled to their money.</p>

<p>Appeals, Nos. 175 and 176 by Rosenbaum Company and William Campbell, from decree of C. P. No. 1, Allegheny Co., June T., 1902, No. 755, ordering a resale by a receiver in case of M. C. Patterson, George R. Martin and the Dispatch Publishing Company v. Patterson Dry Goods Company.</p> <p>Brown, J., filed the following opinion:</p> <p>The Fidelity Title & Trust Company, by decree of this court was appointed receiver of the Patterson Dry Goods Company and directed to sell the company’s assets. In the advertisements of the sale the receiver stated that the property would be sold “ as a whole or in lots and parcels, as may be to the best interest of the trust.”</p> <p>At the time and place fixed for the sale the receiver announced that the property would be sold in parcels. One of the prospective buyers (Kaufmann Brothers) protesting against this method, requested that it be offered as a whole. This being refused, the sale proceeded and the property was sold in lots or departments to William Campbell and others for $19,145. Kaufmann Brothers still demanding the right to bid upon the property as a whole, and being refused immediately offered $25,000 for the same. And thereupon certain creditors notified the receiver that an application would be made to court to set aside the sale and order a resale. This application was made, and after a hearing thereon and the filing of a bond by Kaufmann Brothers to bid $25,000 the sale was set aside and a resale ordered, at which Kaufmann Brothers as the highest bidders purchased the property for $25,000 and paid said sum to the receiver.</p> <p>The account of the receiver having been filed and confirmed, A. C. Johnston, Esq., was appointed auditor to distribute the fund. His distribution is the subject of exceptions filed by William Campbell and others, purchasers at the first sale, which this court set aside.</p> <p>As the right of the exceptants to the increase realized on the resale of the property purchased by them at the first sale turns</p> <p>on the power of the court to set aside the sale, we are brought at once to the discussion of that question. Had the court—in the exercise of a fair discretion—the power to set aside the first sale and order a resale?</p> <p>The receiver having advertised that the sale would be made “ as a whole or in lots and parcels, as may be to tbe best interest of the trust,” bidders were invited to be present at the sale and bid upon those terms (as a whole or in parcels). And with bidders prepared to bid, some for lots, others for the whole of the property, the rights of bidders, of creditors, and the best interests of the trusts required that the sale be tested as advertised. It was- tested one way (by lots) but not the other (as a whole). Until tested both ways, it could not appear whether “ the best interests of the trust ” would result by one method or the other. Kaufmann Brothers, who by the terms of sale were present to bid for the property as a whole, were not permitted to do so ; and the result was that instead of realizing $25,000 for the property, it was sold in parcels for $19,145—a loss of $5,855.</p> <p>In the light of these circumstances—justice to creditors and to bidders invited to attend the sale and bid for the property as a whole—the court clearly had power to set aside the sale. Impliedly the sale was subject to confirmation or rejection by the court. As applied to trustees and trust estates within the grasp and circle of its jurisdiction, the power of a court of equity to reject bids and refuse confirmation is well settled.</p> <p>Believing (a) that under the circumstance attending and surrounding the first sale, the court exercised a fair discretion in setting it aside, and (5) that the learned auditor properly disposed of the issues before him, the exceptions to his report, and to the action of the court in setting aside the sale, are overruled and his report is confirmed absolutely.</p> <p>Error assigned was in setting aside the sale.</p>

<p> Courts—Judge specially presiding—Jurisdiction—Decree. </p> <p>Where a judge has been called specially to preside in a county other than his own, and has entered a final decree in a cause tried before him, his authority and jurisdiction as to the case ends, and if the decree is reversed and remitted for rehearing, he cannot be mandamused, after the expiration of his call to hold the special court, to preside at the rehearing of the case. If the president judge of the county is unable to hear it, having been of counsel, he must call in another judge, just as he did for the first hearing.</p>

Appeal, No. 107, Oct. T., 1903, by defendant, from judgment of ouster of O. P. No. 2, Allegheny Co., April T., 1903, No. 836, on quo warranto, in case of Commonwealth ex rel. Robert G. Mattern v. Samuel P. Connor. Quo warranto to determine the title of respondent to the office of collector of delinquent taxes.

<p>Appeal, No. 109, Oct. T., 1903, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1901, No. 461, for defendants on case stated in suit of Mary Jane Saint, Elizabeth Hayden, Sarah A. Minnemeyer, Harriet E. Seitz, Samuel C. Reynolds, Joseph W. Reynolds and Benjamin Reynolds v. Catherine Cornwall and 'Andrew Doehla.</p> <p>Case stated in ejectment to determine title to real estate in the tenth ward of Allegheny City.</p> <p>Evans, J., filed the following opinion:</p> <p>This is an action of ejectment brought to recover the undivided one half of a certain lot situate in the tenth ward of Allegheny City, and a case stated has been submitted to the court, the material facts of which are as follows : the plaintiffs are the children and heirs of Samuel Reynolds, deceased, who at the time of his death, September 3, 1877, was seized of the undivided one half of the property described in the writ.</p> <p>On July 15, 1872, Robert B. Shepherd convejmd a tract of seven acres, which includes the land described in this writ, to Theodore P. Simpson, and A. J. Pentecost, and the purchasers then gave a joint mortgage to the vendor for $7,052.08. On December 18, 1872, Simpson paid the mortgage of himself and Pentecost to Shepherd and took an assignment thereof from the mortgagee. Pentecost and Simpson each conveyed his undivided half in the said premises and finally on January 20,1874, the entire title became vested in William Burns, who on June 28, 1875, conveyed the undivided one half interest to Samuel Reynolds, the father of the present plaintiffs. All these conveyances were made subject to the mortgage of Pentecost and Simpson to Shepherd.</p> <p>On August 29, 1877, Simpson assigned upon the record one half of said mortgage to Rebecca A. Kirkwood. On February 26, 1879, Simpson and Rebecca A. Kirkwood satisfied the said mortgage on the margin of the record as follows: “We, T. P. Simpson, Assignee, and Rebecca A. Kirkwood, Assignee, do hereby acknowledge payment in full of this mortgage and the debt secured thereby. Witness our hands and seals February 26, 1879,—” and signed.</p> <p>On October 30, 1880, Simpson caused a scire facias to be issued for the foreclosure of the said mortgage, making Pentecost and Simpson the defendants with notice to the executors and heirs of Samuel Reynolds as terre-tenants. In default of an appearance judgment was taken November 19, 1880, execution issued and the property sold and bought in by Simpson, and a deed made to him by the sheriff, acknowledged April 30, ■ 1881, and recorded in sheriff’s deed book, volume 4, page 264.</p> <p>The defendants were purchasers from T. P. Simpson and claim title through him by virtue of the sheriff’s sale above mentioned.</p> <p>The first question that presents itself for our consideration is: Was there a merger of the mortgage with the fee on the payment by Simpson to Shepherd of the amount of the mortgage, and the taking of the assignment of the same by him ?</p> <p>Usually the merger of a lien with the fee is a matter of intention, and if it be to the interest of the person holding the fee to preserve the lien of the incumbrance in order to protect any interests which he may have, the law will not require that the lien of the incumbrance be merged in the fee. In a stated case like this, of course, it was not possible that the parties should agree in so many words as to what the intention of Simpson was, and unless his intention in the matter is a conclusion of law, the coqrt cannot find what his intention was, from the facts agreed upon.. But we are inclined to think that his intentions do necessarily follow from his acts. In Moore v. Harrisburg Bank, 8 Watts, 188, in a case very similar to this the court has said : “A mortgage does not necessarily merge or become extinct by being united in the same person with the fee, but on the contrary, when it is the intention of the parties that it should not merge but continue to subsist for the protection of the owner of the fee from subsequent incumbrances, he may keep it on foot, sue out the scire facias upon it in the name of the mortgagee against the mortgagor with notice to himself, obtain a judgment and sell the estate mortgaged.”</p> <p>It was just as much to the interest of Simpson to keep this mortgage alive in order that he might have security for the payment of the one half of the mortgage by Pentecost as it was in the case cited in order to protect the holder of the fee from a junior incumbrance. All his acts, in taking the assignment, in conveying his interests subject to the mortgage, indicate that it was his intention to preserve the lien of the mortgage and not to merge it with the fee. Simpson paid and took the assignment of this mortgage in 1872, sold his interest in 1874, and at that time sold it subject to the lien of this mortgage. Burn, in selling to Reynolds, sold subject to the lien of this mortgage. It was clearly the intention of all the parties connected with the transaction that the lien of that mortgage should remain.</p> <p>But what was the effect of the satisfaction of this mortgage by Simpson and Kirkwood ? A satisfaction is prima facie evidence of payment, but is not conclusive. It may be shown upon the trial of a case that the satisfaction was made by mistake, or through misrepresentation or fraud, and the mortgagee or assignee satisfying a mortgage under such circumstances would not be bound by the satisfaction.</p> <p>The plaintiffs in this case were served as terre-tenants on the issuing of the scire facias on the said mortgage. They could then have defended, alleging the payment of the mortgage, if it had been paid, and if they could substantiate that fact, could have prevented judgment being taken, but they did not defend. They permitted judgment to go by default. The property was sold on that judgment and is now in the hands of innocent purchasers, and that judgment should be conclusive against these plaintiffs on the question of the payment of that mortgage. The purchasers from Simpson had a right to assume that the terre-tenants knew that satisfaction was entered by mistake, and that they could not successfully defend against the scire facias. We have a right to assume that if they had any claim that the mortgage had been paid, they would have made that claim in answer to the scire facias. The judgment on the scire facias was conclusive on the question of the payment of the mortgage against all persons served either as defendants or terre-tenants. In Irwin v. Nixon, 11 Pa. 419, the court went much further than it is necessary to go in this case in order to sustain the conclusiveness of the judgment of the scire facias on the mortgage. In that case, in 1808, a judgment was obtained against William Nixon, and in 1809 an execution was issued and returned “ Money made,” and paid to the plaintiff. In 1814 Nixon died. In 1815 the plaintiff in the judgment entered satisfaction on the appearance docket. In 1827 an attorney issued a scire facias to revive the. original judgment against the administrators of Nixon, and an attorney assuming to appear for the administrator appeared and confessed judgment, execution was issued, levy made upon the land, and the same was sold to Samuel Kingston, the attorney for plaintiff, who sold to the defendant.</p> <p>An ejectment was brought by the heirs of Nixon. But the Supreme Court sustained the judgment on the scire facias as conclusive of the nonpayment of the original judgment. In that case the return of the sheriff was conclusive of payment, while in this the receipt on the margin of the record is only prima facie. If that judgment was conclusive against the heirs of the defendant, much more would this one be.</p> <p>The case of Koons v. Hartman, 7 Watts, 20, cited by the plaintiff in his brief, is not in point. In that case Boyer became.the owner of the fee on which his judgment was a lien. He sold the land unincumbered by the lien of the mortgage, and of course his general warranty satisfied the mortgage, even if there had been no merger in law. The other cases cited by the plaintiffs are as easily distinguished as this one.</p> <p>And now, June 13, 1903, the above case came on to be heard on a stated case in the nature of a special verdict, and upon consideration thereof it is hereby ordered that judgment be entered in favor of the defendants.</p> <p>Error assigned was in entering judgment for defendants on case stated.</p>

<p>Appeal, No. 151, Oct. T., 1903, by defendant, from judgment of O. & T. Armstrong Co., June T., 1903, No. 1, on verdict of guilty of murder in the first degree in case of Commonwealth v. Harvey M. Zillafrow.</p> <p>Indictment for murder. Before Patton, P. J.</p> <p>Verdict of guilty of murder of the first degree.</p> <p>Errors assigned were the various rulings mentioned in the opinion of the Supreme Court, and (8) in issuing a special venire, members of the regular panel having been excused without sufficient reason and without defendant’s consent; because the special venire directed the sheriff fo sumipon froip the bystanders or county and was not limited to one or the other and because elisors were not appointed to make the selection.</p>

Appeal, No. 13, Oct. T., 1904, by defendants, from decree of C. P. Mercer Co., Oct. T., 1903, No. 1, continuing preliminary injunction in case of John R. Packard and L. L. Keck v. Thiel College of the Evangelical Lutheran Church et al. Motion to dissolve preliminary injunction. Miller, P. J., filed an opinion as follows: There are two principal questions involved in this inquiry. 1.

Appeal, No. 54, June T., 1903, by plaintiff, from judgment of C. P. Warren Co., Dec. T., 1902, No. 17, on verdict for defendant in case of Mary E. Masterson v. Sarah Berndt et al. Issue devisavit vel non. Before Lindsey, P. J. The facts are stated-in the opinion of the Supreme Court. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in submitting the case to the jury.

<p>Appeal, No. 58, Jan. T., 1903. by plaintiff, from judgment of Superior Court, Oct. T., 1902, No. 91, reversing judgment of C. P. Lancaster Co., Jan. T., 1902, No. 15, discharging rule to set off judgment against judgment in case of William Leitz v. John W. Hoffman.</p> <p>Appeal from Superior Court.</p> <p>The facts appear from the opinion of the Supreme Court and the report in 22 Pa. Superior Ct. 1.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 31, Oct. T., 1903, by plaintiff, from order of C. P. Westmoreland Co., Aug. T., 1901, No. 393, striking off judgment in case of Citizens Building and Loan Association of Mt. Pleasant v.… Held: that the mortgage in question was not a purchase money mortgage and was therefore Aroidable. The court made absolute the rule to strike off the judgment. Error assigned was the order of the court.

Appeal, No. 1, Oct. T., 1903, by appellants, from order of C. P. Armstrong Co., Sept. T., 1901, No. 37, making absolute rule to strike off judgment in case of Lewis Lorenz et al. v. Lewis D. Berry et al. Ejectment for land in Perry township and Fairview township. Rule to strike off judgment. Before Patton, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Corporations—Foreign corporations—Bonus on capital stock—Act of May 8> 1901( P L' i50—Statutes.</p> <p>The intent of the Act of May 8, 1901, P. L. 150, imposing a bonus upon foreign corporations is to affect only those foreign corporations which after the passage of the act locate their chief place of business or bring and actually employ any part of their capital wholly within the state.</p> <p>A statute must always be interpreted so as to operate prospectively, and not retrospectively, unless the language is so clear as to preclude all question as to the intention of the legislature.</p>

<p>Appeal, No. 9, May T., 1903, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket 1902, No. 228, an appeal from tax settlement in case of Commonwealth v. Crucible Steel Company of America.</p>

<p>Appeal, No. 33, Oct. T., 1903, by Anna Fennell, from decree of O. C. Westmoreladd Co., Aug. T., 1902, No. 3, making absolute rule to vacate partition proceedings in estate of David Fennell, deceased.</p> <p>Rule to vacate partition proceedings.</p> <p>Vosbueg-, P. J., specially presiding, stated the facts to be as follows:</p> <p>On September 6, 1902, Annie Fennell, the widow of the decedent, presented her petition for an inquest in partition of certain real estate, which was awarded by the court. On September 15, 1902, William F. Fennell and Harry A. Fennell, sons of the decedent, applied for the vacation of these partition proceedings, upon the ground that the petitioner had no interest in the property, having released her rights in the same by her deed dated December 31,1900. A rule havingbeen granted, the case was set down for hearing, and testimony taken in open court. At this hearing two deeds or releases were offered in evidence each dated December 31,1900, and forming a part of the same transaction; one from David Fennell, in which he releases the separate real estate of his wife, Annie Fennell, from “ all right, claim and interest whatsoever,” and one from Annie Fennell, in which she makes a corresponding release as to the real estate of her husband. The testimony shows that the parties lived together as husband and wife, until the date of the death of the testator.</p> <p>The court citing Act of June 8, 1893, P. L. 344; Harley v. Leonard, 4 Pa. Superior Ct. 431; Patrick & Co. v. Smith, 165 Pa. 526; Mauk’s Est., 19 Pa. Superior Ct. 338; Neely’s App., 124 Pa. 406 ; Smith’s App., 115 Pa. 319; Flaherty’s Est., 5 Phila. 477; Law v. Patterson, 1 W. & S. 184, made absolute the rule.</p> <p>Error assigned was the order of the court.</p>

<p>Burial of the dead—General rules on the subject—Surviving husband— Widow—Next of kin—Reinterment.</p> <p>There is no universal rule as to the burial of the dead applicable alike to all cases, but each case must be considered in equity on its own merits having due regard to the interest of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association.</p> <p>Subject to this general result it may be laid down first, that the paramount right is in the surviving husband or widow, and if the parties were living in the normal relations of marriage it will require a very strong case to justify a court in interfering with the wish of the survivor.</p> <p>Secondly, if there is no surviving husband or wife, the right is in the next of kin in the order of their relation to the decedent, as children of proper age, parents, brothers and sisters, or more distant kin, modified it may be by circumstances of special intimacy or association with the decedent.</p> <p>Thirdly, how far the desires of the decedent should prevail against those of a surviving husband or wife is an open question, but as against remoter connections, such wishes especially if strongly and recently expressed, should usually prevail.</p> <p>Fourthly, with regard to a reinterment in a different place, the same rules should apply, but with a presumption against removal growing stronger with the remoteness of connection with the decedent and reserving always the right of the court to require reasonable cause to be shown for it.</p> <p>A decedent left a widow and one child, his next of kin, to survive him. He was buried in a lot belonging to his father’s family, with the widow’s consent, but whethef her consent was more than for a temporary interment was disputed. Decedent’s child died about a year afterwards and was buried in a lot purchased by the widow in another cemetery. The daughter, though young, appears to have had a sentiment on the subject, and desired her father to be buried with her. The evidence showed that there was not room in the lot where decedent was buried for the brn-ial of his wife and daughter unless they were put in the same grave with the decedent, and the hostile feelings of his brother and sisters made it doubtful if even this privilege would be conceded. Held that the widow had a right to remove the body of her husband to the new lot purchased by her.</p> <p>The expression frequently used that there is no property in a corpse is inaccurate. There is property but it is in the nature of a trust and limited in its exercise to the purposes of the trust.</p> <p>The syllabus in Wynkoop v. Wynkoop, 42 Fa. 293, is too broad. That case discussed and explained.</p>

Appeal, No. 149, Oct. T., 1903, by defendant, from order of C. P. Armstrong. Co., J une T., 1897, No. 63, dismissing petition to stay a writ of execution in case of Ada Hannah Lewis et al., Executors of Samuel Lewis, Deceased, v. Elwina Linton. Petition to stay writ of execution. The opinion of the Supreme Court states the case. Error assigned was the order of the court dismissing the petition.

<p>Evidence—Competency of witness—Act of May 23, 1887, P. L. 158.</p> <p>Since the passage of the Act of May 23, 1887, P. L. 158, competency of witnesses is the rule, incompetency the exception. Departures from the common-law rules of evidence are for the legislature, and when so made, inequalities, real or apparently so, resulting from the legislative removal of the disqualifications of witnesses, cannot be urged as reasons why judges ought not to read the words of legislators as they are written.</p> <p> Evidence—Competency of witness—Advancements—Gifts. </p> <p>Where a father in his lifetime has transferred or conveyed property to a son as a gift or an advancement, such property does not upon the father's death pass to the father’s estate, and the son is not Within the incompetency of clause (e) of section 5 of the Act of May 23, 1887, P. L. 158, which will prevent him from testifying as to matters occurring in his father’s lifetime connected with the gift or advancement.</p> <p> Evidence—Competency of witness—Contract—Advancement. </p> <p>At the audit of an administrator’s account it appeared from the evidence of a son of the decedent corroborated by other witnesses, that the decedent had agreed that if his son should give up his business, move to a farm, make his home there where he would be near his father, and assist the latter in such matters as the latter might desire assistance, the father would purchase the farm and make a gift of the same to the son; the son did all that his father required of him, and the conveyance was made a few days before the death of the father. Held that the transaction between the father and the son was not an advancement.</p>

Appeal, No. 85, Oct. T., 1903, by plaintiff, from judgment of C. P. Clarion Co., Aug. T., 1900, No. 19, on verdict for defendant in case of L. C. Boyd v. John Snyder et al. Trespass for malicious prosecution. Before Morrison, P. J., specially presiding. At the trial it appeared that on May 26, 1894, a fire broke out in a store building in which plaintiff was interested and this building with others was destroyed.

<p>Appeal, No. 96, Oct. T., 1903, by plaintiff, from judgment of C. P. Clarion Co., Nov. T., 1901, No. 173, on verdict for defendant in case of E. M. Summerville v. The Apollo Gas Company.</p> <p>Ejectment for oil and gas under land in Porter township. Before Wilson, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>At the trial the following offer was made:</p> <p>Plaintiff’s counsel now offer to prove by the witness, H. D. Summerville, and others, that shortly after March 22, 1901, and before the sale by the Emlenton Gas Company to the defendant, the Apollo Gas Company, on July 26, 1901, the plaintiffs in these cases, exercising their rights under the contract to resume possession did take possession of the two properties, claiming that these leases the defendant held or claimed under had expired by their terms, and further they had a right to declare they were forfeited and terminated on that ground; that the evidence to be submitted to the jury shows that neither oil nor gas had been produced in paying quantities, and that no acreage rental was paid or offered to be paid by the lessees.</p> <p>Defendant’s counsel object to this as incompetent, irrelevant and immaterial.</p> <p>The Court: We sustain the objection, exception and bill to the plaintiff. [6]</p> <p>: The court charged in part as follows :</p> <p>[We take it that, under all the evidence and uncontroverted facts, the defendant has proved that it has fully complied with all the covenants contained in the lease, under which it claims, to wit: that it and those through whom it claims, had commenced wells in which gas was found within the period limited in the lease, in paying quantities ; and under all the evidence, we have concluded to instruct you that the plaintiffs in these cases, not taking into consideration the question of estoppel which is raised, or the fact that one of the lessors also received gas from one of these wells for domestic purposes, were not justified in declaring a forfeiture of these leases, therefore, all that remains for us to do, under all the evidence, is to direct that your verdict be taken in these cases in favor of the defendants.] [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (4) portions of charge as above; (5) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 21, Oct. T., 1903, by plaintiff, from judgment of C. P. Jefferson Co., July T., 1900, No. 124, on verdict for defendant in case of Sarah Ellen Rudolph v. Jacob G. Rudolph.</p> <p>Ejectment for land in Henderson township. Before Reed, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial plaintiff offered to prove by Sarah Ellen Rudolph and A. W. Rudolph, her husband, that while they lived on this land that Jacob Rudolph saw and read this article of agreement between McClure and Mrs. Rudolph for this land, and that he knew of it. We further offer to prove by A. W. Rudolph that in a conversation he had with Jacob Rudolph this article of agreement was talked over, and was fully understood and known by Jacob Rudolph to be in the name of Sarah Ellen Rudolph.</p> <p>Mr. Truitt: The offer is objected to by the defendant, as incompetent, in that A. M. McClure, our grantor, and the maker of this contract, is dead.</p> <p>Mr. Cole : It is admitted by the plaintiff for the purpose of this offer that A. M. McClure died November 23, 1896, and further, that he is the grantor.</p> <p>The Court: It being admitted that A. M. McClure is the direct grantor of both plaintiff and defendant, and that he is dead, we think the plaintiff is incompetent to testify to anything that occurred in his lifetime ; and she being incompetent, her husband would likewise be incompetent. The objection is therefore sustained, the testimony excluded, and a bill of exceptions sealed to the plaintiff. [1]</p> <p>Mrs. Sarah Ellen Rudolph, called as a witness on the part of the plaintiff, in rebuttal, duly affirmed.</p> <p>Mr. Cole: We propose to call this witness as to the conversation that is testified to and denied by Jacob G. Rudolph, that they called him to deny, at the house when she was present; we propose to call her under the same rule that the defendant has called Jacob G. Rudolph. They have called a living witness to testify and that makes our witness competent.</p> <p>Mr. Truitt: Defendant objects, for the reason that the evidence of these witnesses, Fineas Rudolph and Samuel Cramer, was in her favor ; that this witness is the plaintiff in the suit, that the evidence testified to was in her favor, and that therefore she is incompetent.</p> <p>The Court; The plaintiff having called witnesses to testify to a certain matter which occurred in their presence and in which the defendant was an active participant, we think the defendant was competent to testify to that same transaction ; but his being called to rebut the testimony of the witnesses thus introduced by the plaintiff, would not render her competent. Her testimony is not rebuttal; if she were competent at all her testimony would have been introduced, in clfief. Of course it could not then have been introduced, nor do we think it can be now introduced. The objection is sustained, the testimony excluded, and a bill of exceptions is sealed to the plaintiff. [3J</p> <p>The court charged in part as follows :</p> <p>[But we will say to you, gentlemen of the jury, that under the circumstances we do not think it was incumbent on the defendant to hunt up the plaintiff and enquire how she held the land during the time that she and her husband lived upon it, but under all the evidence bearing on this branch of the plaintiff’s case we are constrained to instruct you that it is insufficient to affect the defendant with notice of the plaintiff’s title during or at the time he became the purchaser of the land. This leaves for your consideration the single question of whether or not the defendant bought the land with actual notice of the plaintiff’s equitable title to the same.] [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 3) rulings on evidence, quoting the bill of exceptions; (4) above instruction, quoting it.</p>

Appeal, No. 39, Oct. T., 1903, by plaintiff, from order of C. P. Jefferson Co., Nov. T., 1902, No. 123, refusing mandamus in case of Brookville Borough v. John Startzell and W. R. Ramsey, Overseers of the Poor of the Poor District of Brookville Borough. Petition for mandamus.

<p> Adverse possession—Title—Evidence. </p> <p>Title by adverse possession for the statutory period cannot be established where it appears that the claimant procured the holder of the legal title to execute during the statutory period a number of general warranty deeds for small lots or pieces of the land in controversy, and that he unsuccessfully negotiated with the holder of the legal title to secure its transfer to himself; and this is the case although the land was assessed in the name of the claimant who paid the taxes thereon, and although part of the purchase money for the lots sold was paid to him.</p> <p> Contract—Evidence—Sale of real estate—Parent and child. </p> <p>A parol agreement by a father to sell real estate to his daughter cannot be established by loose and conflicting declarations by the father that, in consideration of his life maintenance by the daughter, he had given her the property, or intended to give it to her, where there is no evidence that the parties, when face to face, had entered into such a contract, or that the father had agreed to convey the property to the daughter, and that the daughter had entered into possession of the property in pursuance of the contract; and this is especially so where it appears that the daughter after the date of the alleged contract entered into futile negotiations to secure title from her father to herself.</p>

Appeal, No. 160, Oct. T., 1902, by plaintiff, and cross appeal, No. 175, Oct. T., 1902, by defendant, from decree of C. P. Venango Co., Nov. T., 1898, No. 2, on bill in equity in case of Thomas K. Finletter v. William T. Baum. Bill in equity for a partnership accounting.

Appeal, No. 119, Oct. T., 1903, by plaintiff, from decree of C. P. Venango Co., Jan. T., 1902, No. 3, refusing to take off nonsuit in case of Maude I. Nelson v. Oil City Street Railway Company. Trespass to recover damages for tbe death of plaintiff’s husband, a motorman. Before Cbiswell, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. Error assigned was order refusing to take off nonsuit.

<p> Husband and wife—Contract—Claim, for services—Decedent's estates. </p> <p>A husband with the knowledge and consent of his wife made a contract with an aged and infirm man to move his family into the latter’s house, and take care of him. The family was to have the use of half of the house, and the husband was to receive $30.00 per month. The family moved into the house, and the wife assisted in the performance of services for which the contract was made. Some of the duties were of an unpleasant character. The wife occasionally received and receipted for the monthly payments. She never made any objection to the sufficiency of the compensation, or claimed that she was entitled to any additional or extra sum for nursing. After the death of the owner of the house the wife claimed from his estate compensation on a quantum meruit “ for nursing and otherwise caring for the decedent during his lifetime.” Held, that the wife was not entitled to recover.</p>

<p>Appeal, No. 53, Oct. T., 1903, by defendant, from decree of C. P. Lawrence Co., Dec. T., 1901, No. 3, on bill in equity in case of New Castle City v. Central District & Printing Telegraph Company.</p> <p>Bill in equity for an injunction. Before Walling, P. J., specially presiding.</p> <p>From the record it appeared that on April 25,1882, an ordinance was passed by the councils of the city of New Castle permitting the defendant to erect telegraph poles in the streets of the city, and providing “ that the poles of said company shall be located and erected under the supervision and approval of the city engineer.” After the passage of this ordinance the company erected poles upon several of the streets of the city. On June 6, 1899, the city of New Castle passed another ordinance which provided, inter alia, as follows:</p> <p>“ Section 5. Every person, company or corporation, desiring to have poles located, may apply to councils therefor; and the councils may thereupon designate the location of each pole, or authorize the street committee or the city engineer to make the location thereof. Any person, company or corporation may designate the place or places at which poles are needed by any of them, and if councils approve the location, the poles may be erected as indicated.”</p> <p>The court found other facts to be as follows :</p> <p>10. That between said January 5, 1899, and June 6, 1899, when said last ordinance was passed, the defendant erected some few poles in new locations, as designated on said plot, and under the direction of the city engineer, and about the time of the passage of said ordinance the city engineer notified one of the defendant’s agents in charge of its New Castle office that thereafter “ they would have to appear before councils and get permission for to locate poles.” However, the defendant thereafter occasionally erected some poles in new locations at the places specified in said plot, and with the approval of the city engineer, and without objection from the city or any of its officers, and in some places the city has attached its fire alarm wires to such new poles. The defendant also pays a city license tax on its poles.</p> <p>11. That on October 24, 1901, and previous to the time the defendant was proceeding to erect poles, for the erection of which complaint is made in the bill filed in this case, the city engineer gave to the said defendant company notice in writing that any locations of poles that he may have made for said company theretofore, or given them, which had not theretofore been erected, were by him revoked,—the said engineer in said notice informing said defendant that the locations of poles were to be made by councils, or under its direction by the department of highways or the city engineer, and that by reason of said ordinance, all locations made by him, the said engineer, theretofore, for said company, were thereby revoked,—which notice is as follows:</p> <p>“ To the Central District, Printing & Telegraph Company :</p> <p>“Gentlemen: You are hereby respectfully informed that any locations of poles that I may have made for you heretofore or given you, and which have not heretofore been erected, is hereby revoked. The Councils, in the year 1897, passed an ordinance by which all locations of poles is made by Councils, or under its direction by the Department of Highways or the City Engineer, therefore no locations are valid unless made under pursuance of the last named ordinance. And by reason of the said ordinance, all locations made by me heretofore for your company are thereby revoked as aforesaid.</p> <p>“Very respectfully,</p> <p>“ R. H. M’Conag-hy,</p> <p>“ City Engineer.”</p> <p>12. That on October 29, 1901, and recently before said time, the defendant company entered upon Jefferson street and other public streets in said city, and excavated in the same and made holes in which said company did erect telegraph or telephone poles; and that said company dug other holes in said Jefferson street and other streets in which they threatened to place telegraph or telephone poles ; and that said company threatened to and were in the act of digging holes and erecting telegraph or telephone poles in Jefferson street and other streets of said city, when the injunction bill was filed in this case.</p> <p>18. That the said defendant company never applied to the city councils, since June 6, 1899, for the location of any poles in Jefferson street, nor airy other streets in which said company recently erected its poles, and in which they threatened to erect the same, as charged in the bill filed by the plaintiff in this case; and the said company refused to make such application and refused to desist from.the erection of said poles though requested so to do.</p> <p>14. That the said defendant company when requested by the said city to desist and cease the erection of said poles in Jefferson street and other streets refused and continued to erect the same.</p> <p>15. That since June 6,1899, neither the city of New Castle, nor its councils, nor its street committee, ever gave the said company the right to put up or place any of the said telegraph poles at or in the locations in which the said company threatened to put up the same, nor in the location in which the said company was erecting poles at the time of the filing of the bill in this case; nor has any officer of said city supervised or approved the erection of any pole as set forth in said bill, or the location thereof.</p> <p>16. That the city engineer was not locating, supervising or approving the location of the poles, the erection of which is complained of in this case.</p> <p>17. The poles which the company were engaged in erecting at the time of the institution of this suit, were necessary for the proper carrying- on of the business of the company and necessary to subserve- the public demand for telephones and telephone service, so far as appears by the evidence in this case.</p> <p>The court entered the following decree: And now, October 6,1902, this cause came on for final hearing, and after argument thereof by counsel and upon due consideration it is ordered, adjudged and decreed that the said defendant, the Central District and Printing Telegraph Company, its officers, agents and employees, and every of them, be and they are hereby perpetually restrained and enjoined from erecting any telegraph or telephone poles in new locations upon any of the public streets or alleys of the said city of New Castle, except at locations hereafter to be given or approved by the proper municipal authorities of said city, and under the supervision of the city engineer of said city; reserving, however, to the court the right to grant the defendant relief should said city authorities refuse to give or approve such locations upon defendant’s application therefor. This decree, however, shall not be so construed as to prevent the defendant from repairing its lines by replacing old poles with new poles on the same location wherever it may deem proper to do so. It is further ordered that the defendant pay the costs of this case.</p> <p>Error assigned was the decree of the court.</p>

<p> Negligence—Fellow-servant—Master and servant—Quarry tagman. </p> <p>Where it is the duty of a tagman in a quarry to- see that holes are properly made in a stone about to be moved, so as to receive the steel tongs or “ dogs,” and to see that the “ dogs ” are in good condition, and that they are properly adjusted in the stone, and also to warn workmen when a stone is about to be swung in the process of loading, and the tag-man fails in any of these duties, and a workman in the quarry is injured, such workman cannot recover damages for his injuries from the operator of the quarry.</p>

<p> Evidence—Record—Foreign record. </p> <p>If a copy of the record of a foreign judgment produced in evidence purports to be a record and not a mere transcript of minutes from the docket, and the clerk certifies that it is truly taken and copied from the records of the foreign court, and that the same is a full and complete transcript of the proceedings had in the case, and this attestation is certified to be in due form of law, by the presiding judge, it will be presumed that the paper is a full copy of the entire record, and will be deemed sufficient.</p> <p> Judgment—Foreign judgment—Service of process—Jurisdiction. </p> <p>Where in an action upon an Ohio judgment, the record of the Ohio court shows a return by the sheriff to the effect that he had served the defendant by handing him personally a certified copy of the writ, and the record also shows that the Ohio court had found that the defendant had been duly served with a summons in the case, and the Ohio statutes show that service of a copy of the summons is sufficient, the court in Pennsylvania will assume, in the absence of proof to the contrary, that the defendant was properly summoned, although there is no distinct averment in the Ohio record that the defendant was summoned in the state of Ohio.</p> <p>In an action upon a foreign judgment, where the plaintiff in his statement of claim avers that the foreign court had jurisdiction, and the defendant at the trial in pursuance of a rule of court offers in evidence his affidavit of defense in which he denies service upon him in the foreign jurisdiction, the plaintiff sufficiently meets the denial by offering the transcript of the foreign record, showing actual service upon the defendant.</p> <p> Judgment—Foreign judgment—Service of process—Sunday—Conflict of laios. </p> <p>In an action upon a foreign judgment it is of no avail to the defendant that service of process was made upon him in the foreign jurisdiction on Sunday, where the laws of the foreign jurisdiction make such service legal.</p>

<p> Contract—Oil and gas well—Payment—Receipt—Accord and Satisfaction. </p> <p>A person agreed to drill a natural gas well in consideration of his receiving a certain sum in money, and the cost of the well if gas were found in paying quantities, and only one half the cost of the well, if neither gas nor oil was found. After the well was drilled to a certain point, gas was struck, and the well was connected with the line of .the party with whom the contract was made. Connection was shut off a few weeks later, and shortly thereafter entirely cut off. In an action to recover the money payment under the contract the defendant offered in evidence a receipt showing payment to the plaintiff of one half of the cost of drilling the well, and also offered evidence of a mutual understanding between the parties of a settlement in full of all claims in connection with the well. Held, (1) that it was competent for the defendant to show that the connection of the well with the line was made in order to test the well, that the test showed that it was of no value, and that there had been settlement of all claims in relation to it, made on this basis; (2) that the receipt was admissible as evidence of the highest order; (3) that no question of accord and satisfaction arose in the case.</p>

<p>Appeal, No. 88, Oct. T., 1903, by defendant, from decree of C. P. Beaver Co., Dec. T., 1901, No. 10, on bill in equity in case of Robert Carr v. Rochester Tumbler Company and tbe National Glass Company.</p> <p>Bill in equity for an account. Before Miller, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a decree directing that the Rochester Tumbler Company should pay the plaintiff in cash the value of his stock in said company at the date of the sale of the company’s property to the National Glass Company on October 30, 1899, being, with interest, the sum of $12,824.80.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 72, Oct. T., 1903, by defendant, from judgment of C. P. Butler Co., March T., 1903, No. 7, on verdict for plaintiff in case of John Young v. Robert W. Hervey. Assumpsit to recover balance of purchase money of real estate. Before Miller, P. J., specially presiding. The case was tried by the court without a jury under the Act of April 22, 1874, P. L. 109.

<p> Vendor and vendee—Option—Evidence—Parol evidence—Outstanding leases. </p> <p>Where an option to sell real estate is made expressly subject to existing leases, and the option is subsequently exercised, and ejectment brought for specific performance, the vendor cannot allege as a defense a cotemporaneous parol agreement averred to have been omitted by mistake from the option, to the effect that the vendee was, during the running of the option to purchase the leases, and if he failed to do so, was to surrender up the option.</p> <p> Vendor and vendee—Option—Concealment of facts. </p> <p>Where a person takes an option to purchase real estate from another, he is not bound to communicate to the vendor information in his possession as to facts which will have the effect of increasing the value of the land during the running of the option.</p>

<p>Appeal, No. 139, Oct. T., 1903, by plaintiffs, from decree of C. P. Butler Co., Dec T., 1902, No. 5, on bill in equity in case of Baltimore & Ohio Railroad Company, operating the Pittsburg and Western Railroad, and the Pittsburg & Western Railroad Company v. The Butler Passenger Railway Company.</p> <p>Bill in equity to enjoin a grade crossing. Before GalBKEATH, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree:</p> <p>And now, to wit: August 15,1903, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz:</p> <p>1. It is not reasonably practicable in the construction and operation of the street railway system of the defendant company upon Center avenue in the borough of Butler, Pennsylvania, at the point where the track crosses the tracks of the Baltimore & Ohio Railroad Company, operating the Pittsburg & Western Railroad, to avoid a crossing at grade.</p> <p>2. That the Butler Passenger Railway Company, and its successors in the franchise, shall have the right to construct and operate its road on Center 'avenue in said borough of Butler across the roadway and tracks of the Baltimore & Ohio Railroad Company, operating the Pittsburg & Western Railroad, at grade, subject to the payment hereafter, when legally ascertained, of such damages as the plaintiff company may thereafter sustain, arising from the negligence of the defendant comp my in the operation of said crossing.</p> <p>3. Such crossing shall be constructed by the defendant company at its own cost under the supervision of the plaintiff company’s engineer or agent, the representatives of plaintiff company to be appointed and ready to act within ten days after request to this effect made by the defendant company. Upon failure of such engineer or agent to act, after such notice given, the defendant company may proceed without delay to construct such crossing.</p> <p>4. That the said crossing shall be kept in good condition by the defendant company as to repairs and renewals, and at its expense. In case of the failure of the defendant company upon notice from the plaintiff company for the period of one week thereafter to make such repairs and renewals as may be required, the same may be made by the plaintiff company, and the reasonable expense thereof recovered by it from the defendant.</p> <p>5. The defendant company shall construct and maintain derailing switches upon Center avenue on both sides of the tracks of the plaintiff company: the switch upon the east to be at least sixty feet east of the main track, and that upon the west to be at least sixty feet west of the most western track. The lever operating east-bound cars shall be placed east of the main track and that for operating the west-bound cars shall be placed immediately west of the main track.</p> <p>6. Before entering upon or crossing over the tracks of plaintiff company, each car of defendant company shall come to a full stop at least sixty feet from the nearest track in the line of approach, and the conductor thereof shall go upon the track of the plaintiff’s road, look and listen for approaching trains. He shall then, if the tracks are clear of approaching trains, signal the motorman of the car to proceed. Until such signal is given no car shall cross the tracks.</p> <p>7. The defendant company shall construct and maintain an effective and approved system of electric signals, which will indicate upon Center avenue, bjr the ringing of a bell in the daytime and by a colored light at night, the approach of a train on the plaintiff’s road at any point within 200 feet both north and south of Center avenue.</p> <p>8. The costs of this proceeding shall be paid by the defendant company.</p> <p>9. The preliminary injunction heretofore granted restraining defendant company from crossing the tracks of the plaintiff company upon Center avenue, is hereby dissolved, and, upon compliance by the defendant company with the conditions of this decree to be performed by them, the plaintiffs’ bill is dismissed.</p> <p>10. That either party to this bill may upon ten days’ written notice, where a shorter time has not already hereinbefore been fixed, to be given to any of the officers of the other company, apply to the court if in session, and if not in session, at chambers, for further advice, and for such modification or addition to these regulations as experience and observation, in relation to grade crossings, show that the safety of persons or property seem to require.</p> <p>Error assigned was the decree of the court.</p>

<p> Contract—Option—Fraud—Information within knowledge of person taking option—Principal and agent. </p> <p>Where a person is employed by an agent of a corporation to secure an option on property in a town in which the corporation is about to establish a plant, but the name of the corporation is not disclosed to the sub-agent, and the latter procures the option without revealing to the owner of the property the facts within his knowledge, and thereafter assigns the option to the corporation, which exercises it, the owner of the property cannot defend in a bill in equity filed against him in the name of the corporation and the sub-agent, on the ground that he had been defrauded in not having the facts disclosed to him, before he was induced to give the option.</p>

<p>Appeal, No. 160, Oct. T., 1903, by plaintiff, from judgment of C. P. Butler Go., Sept. T., 1902, No. 14, on verdict for defendant in case of Victor B. Walker v. Jolm Bergbigler.</p> <p>Ejectment for land in the second ward of the borough of Butler. Before Thomas, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave.binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Lrror assigned was in giving binding instructions for defend, ant.</p>

<p>Appeal, No. 27, Oct. T., 1963, by defendant, from judgment of C. P., Washington Co., Aug. T., 1902, No. 98, on verdict for plaintiff in case of Anna M. Kirchner v. William W. Smith.</p> <p>Trespass to recover damages for personal injuries. Before Taylor, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as folloivs :</p> <p>[The entrance to the steps at the upper end of this house is over this grating way, or by making a little detour out onto the brick portion of the pavement or sidewalk, you leave the grating and can approach the front steps squarely in front of the house.] [1]</p> <p>[The manifest purpose of the erection of that areaway and grating over it was to afford the owner of that double dwelling a means of getting light, as 1 said, and ventilation in and through this areaway into the basement of this building and at the same time make it a safe way of travel within the line of the sidewalk for all pedestrians lawfully using the street or having occasion to go in and out of this double dwelling.] [2]</p> <p>The defendant presented these points :</p> <p>2. Even if the jury believe from the evidence that Mrs. Thompson, prior to the accident but after she had taken possession under the lease, notified the defendant that the grating was out of repair or had slipped from its position, so as to leave a hole alongside the step, the uncontradicted evidence being that at the time of the letting the grating was in repair, plaintiff cannot recover, and the verdict must be for the defendant. Answer : Refused, under the evidence in this case; this is purely a question of law: Brown v. White, 202 Pa. 297. [8]</p> <p>3. The uncontradicted evidence being that the grating at the time of the letting was in perfect repair and that it became dilapidated or out of position during the tenancy of Sarah J. Thompson, she alone is liable, the lease itself showing no covenant on the part of the landlord, and the verdict should be for the defendant. Answer: Refused under the evidence in this case. That is purely a question of law : Brown v. White, 202 Pa. 297. [4]</p> <p>4. If the jury find from the evidence that the plaintiff had passed in and out of the door and over the step and in direct view of the place of the alleged defect in the grating for some two months prior to the accident, the inference is that she knew of its existence, and was bound to take precaution to guard against accident, and the lack of such precaution would constitute contributory negligence, so as to preclude recovery in this action, and the verdict must be for the defendant. Answer: Affirmed, if the jury find from all the evidence that the plaintiff knew, or ought reasonably to have known, the hole was there before the alleged accident. [5]</p> <p>6. The statement in this case alleges that the accident took place in the public traveled part of the sidewalk. The evidence of the plaintiff herself discloses the fact that she was not using the sidewalk, and that the accident did not occur by reason of such use, but in an attempt to reach the window of the house from the front step, in an unusual manner and one which the defendant could not likely have foreseen; the allegation not being supported by the proof, plaintiff cannot recover in this action, and the verdict must be for the defendant. Answer: Refused ; it is for the jury to say from all the evidence in the case. [6]</p> <p>8. Under all the pleadings and evidence in this case the verdict must be for the defendant. Answer: Refused. The case is for the jury under all the evidence in the case, and under the instruction of the court upon the law of the case. [7]</p> <p>Verdict and judgment for plaintiff for |5,000. Defendant appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them.</p>

<p> Negligence—Infant—Measure of responsibility—Contributory negligence —Province of court and jury. </p> <p>The measure of a child’s responsibility for contributory negligence is his capacity to understand and avoid danger. In analogy to the common-law rule of responsibility for crimes committed, a child under seven years of age has been conclusively presumed to be incapable of appreciating and guarding against danger; and after seven the presumption of incapacity, although not irrebuttable and growing less strong with each year, continues until fourteen, when the presumption of capacity arises. But these are only convenient points in the uncertain line between capacity and incapacity at which the law changes the presumption. The standard of responsibility is the average capacity of others of the same age and experience and to this standard a child should be held in the absence of evidence on the subject. It follows that as responsibility depends upon the knowledge and experience of the child, and on the character of the danger to which he is exposed, generally the question is one for the jury and not for the court. This must always be so when the facts are in dispute or the inferences to be drawn from them are doubtful. But in clear cases, where the facts are settled and there can be no reasonable doubt as to the inferences to be drawn, the question may be determined by the court as matter of law.</p> <p>In an action against a street railway company to recover damages for personal injuries suffered by a boy seven years and eight months old, the evidence showed that the plaintiff was received as a passenger on a car without anyone accompanying him. After going into the car, the conductor subsequently found him standing on the platform and sent him into the ear. The conductor subsequently left the car and it was in the sole charge of the motorman. When the car approached the crossing at which the plaintiff desired to alight, he went on to the front platform to tell the motorman where he wanted to get off. He remained on the platform with the motorman’s knowledge without objection or warning, while the car ran for a distance of from one fifth to one half a mile. When near the crossing where he wished to get off, plaintiff stepped down on the step and held fast to the railing. As the car passed the crossing, he either stepped or jumped off and was injured. The court left it to the jury to find whether the motorman was negligent in permitting the boy to ride on the front platform, but declined to submit the question of the plaintiff’s contributory negligence. Reid, that the court committed no error, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 41, Oct. T., 1903, by defendant, from judgment of C. P. Washington Co., Nov. T., 1902, No. 85, on verdict and judgment for plaintiff for §1,500 in case of Margaret Parker v. Washington Electric Street Railway Company.</p>

<p> Will—Advancement—Debts—Equality—Principal and income. </p> <p>Where a testator gives to a son the one fifth of the net annual income of his estate, and two months after the making of his will begins to pay-money to his son for which he takes the latter’s notes, and the will provides that each child’s share shall not be liable for any debts which the child had contracted or may contract, and also states that the testator desires equality of distribution among his children, the notes given by the son are to be deemed in the nature of advancements, and are to be repaid out of the net income of the son, and not out of the principal from which the income arises.</p>

<p>Appeal, No. 60, Oct. T., 1903, by Thomas S. Neel, from decree of O. C. Washington Co., Feb. T., 1895, No. 18, dismissing petition for citation in estate of James Neel.</p> <p>Petition for citation.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the decree dismissing the petition.</p>

<p> Malicious prosecution—Principal and, agent—Authority of agent. </p> <p>A principal may be held liable for the act of his agent in instituting a malicious prosecution. But the act of the agent becomes that of the principal only when expressly authorized, or when his authority to act may fairly be inferred from the nature and scope of the employment. Generally the duty of superintendence does not carry with it the duty to arrest or prosecute. The inference of authority to do either does not arise from the mere fact of the agency. The authority may be implied when the arrest is made by tbe agent in the absence of the principal for the protection of property that is in danger, and in some cases it has been inferred when the arrest was to recover the property back, or where the crime was at the time being perpetrated. But where the act is done for the punishment of the supposed criminal, or for the vindication of the law, it is not the act of the principal and does not subject him to liability.</p> <p>A partnership engaged in the business of mining coal cannot be held liable in an action of malicious prosecution, where it appears that the arrest of the plaintiff had been made at the instance of the superintendent of the partnership for the burning of a barn belonging to the partnership, but that it had not been made until three months after the alleged crime had been committed.</p> <p> Malicious prosecution—Probable cause—Evidence. </p> <p>Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a prudent man in believing the accused guilty. It is not determined by the existence of facts alone, but by the prosecutor’s belief in them, and the reasonableness of his belief. If he knows that statements tending to implicate the accused are untrue, or if they are impeached by other facts within his knowledge, or are discredited because of the source from which they come, they furnish no ground of defense, because as to the prosecutor they were not a ground of belief.</p> <p>Where in an action for malicious prosecution the defendant presents a point in which he asks the court to charge that if the prosecutor had knowledge of the facts set forth in the point, he had probable cause for instituting the prosecution, it is proper for the court to affirm the point with the following qualification: “Unless the jury find that there were other facts satisfactorily proven which ought to have convinced the prosecutor as a reasonably prudent man that he could not honestly rely upon the facts enumerated in the point.”</p>

<p>Appeal, No. 124, Oct. T., 1903, by the Oil Well Supply Company, from order of C. P. Washington Co., Feb. T., 1903, No. 49, dismissing exceptions to auditor’s report in case of J. D. Downing v. Glen Rock Oil Company.</p> <p>Scire facias sur mortgage.</p> <p>From the record it appeared that the mortgage upon which suit was brought was on a leasehold. The leasehold in question was taken in execution and sold by the sheriff.</p> <p>R. W. Knox, Esq., was appointed auditor to distribute the fund raised by the sheriff’s sale.</p> <p>Before the auditor, the Oil Well Supply Company, a lien holder junior to the mortgage, objected that the mortgage was invalid because it did not refer to the book and page where the lease had been recorded. The evidence showed that the mortgage and the lease had been recorded on the same day in the office of the recorder of Washington county, the former in a deed book and the latter in a mortgage book. The auditor held that the recording of the two instruments was sufficient under the Act of April 27,1855, P. L. 366, and accordingly awarded the fund to the owner of the mortgage.</p> <p>Exceptions to the auditor’s report were dismissed by the court. The Oil Well Supply Company appealed.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p> Will—Legacies—Charge on real estate—Omission of residuary clause. </p> <p>Where a testator leaves personal estate supposed to be equal to money legacies in his will, and also real estate, but makes no reference to the real estate in his will, except as to one property which his wife is to occupy, and the will contains no residuary clause, the rule that the heir is not to be disinherited prevails over the presumption against intestacy, and the court will not order a sale of the real estate to pay legacies failing through deficiency of personal assets.</p>

<p> Will—Power of sale—Executors and administrators. </p> <p>Testator authorized and empowered his executors, who were three of his seven children, to sell coal underlying a farm particularly designated, and to apply the proceeds in payment of debts and legacies. By a subsequent clause he directed that after the coal was sold the farm should be appraised, and if his three sons, the executors, chose to take the farm, they might do so on paying to the other children the latter’s proportionate shares, such shares being charged upon the land. If the sons declined to take the farm the executors were to sell the same, and distribute the proceeds in a manner specified later in the will. He then directed that his estate not specifically bequeathed, including either the valuation or purchase money of the farm, should be divided into eleven parts, and distributed among his children. After testator’s death, and without any sale of the coal, and without any appraisement having been made, the three sons, describing themselves as executors and devisees, granted to a railway company for the consideration of $2,000 a right of way through the farm, for more than half a mile on a strip of land fifty feet wide. The other children of the testator filed a bill against the executors and the railway company, to restrain the construction of the railway. Held, (1) that as none of the events which were a condition precedent to the authority to sell, had happened, the sale was ineffective ; (2) that complainants were entitled to an injunction; (3) that equity had jurisdiction to preserve the estate from irreparable damages.</p> <p>Equity has jurisdiction to establish a right under a will, and to compel performance of their duties by executors, as incident to that right.</p>

<p>Insurance—Accident insurance—Life insurance—Application attached to policy—Act of May 11, 1881, P. L. 20.</p> <p>A policj'- of insurance which insures not only against accidents, but against loss of life as well, when caused by accident, is a life insurance policy within the meaning of the Act of May 11, 1881, P. L. 20, which provides that the application for the policy shall not be received in evidence unless attached to the policy. Pickett v. Pacific Mut. Life Ins. Co., 144 Pa. 79, followed.</p> <p>Insurance on life includes all policies of insurance in which the payment of the insurance money is contingent upon loss of life.</p> <p>A policy of life insurance had a blank form of application printed on the back. The following printed words appeared extended alongside the blank on tbe back of the policy: “I accept this as a copy of my application, but! agree that the original shall be admitted as the correct application if copy varies therefrom.” What appeared printed on the back was nota copy of the application filed by the insured. It was not shown that the insured saw the pretended copy of the application on the back of the policy. Held, that the words printed on the back of the policy were immaterial, and could not be construed as a waiver by the insured of the provisions of the act of May 11, 1881.</p> <p>Mitchell, C. J., dissents.</p>

<p>^Appeal, No. 87, Oct. T., 1902, by plaintiff, from judgment of C. P. No.T, Allegheny Co., March T., 1899, No. 329, non obstante veredicto-in case of Lazarus Levy v. Kaskel Solomon and Charles Ruben, trading as Solomon & Ruben.</p> <p>Replevin for merchandise.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 2, Oct T., 1903, by defendants, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1901, No. 299, on verdict for plaintiff in case of William J. Ging v. William Miller et al., trading as William Miller & Sons. Trespass to recover damages for personal injuries. Before Stowe, P. J. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,838.33. Defendants appeal.

<p>Appeal, No. 45, Oct. T., 1903, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 147, on verdict for plaintiff in case of John Jacob v. F. S. Weisser.</p> <p>Assumpsit on a building contract. Before Brown, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[The burden is upon the contractor, the plaintiff, to show that the work was performed under the direction and to the satisfaction of Rieger & Currier, the architects and agents of the owner, the defendant in this action. The final certificate, presumably correct until the weight of the evidence establishes the contrary, shows that the work was completed to the satisfaction of the architects, and that a balance of $1,444.74 was due the contractor.</p> <p>But the fact of the certificate discloses that the plaintiff was not only not allowed the cost of rebuilding the stone walls but was charged with shoring up. The right or nonright of the plaintiff to charge for both these items turns upon whether the rebuilding of the stone walls and the shoring up resulted solely from the plaintiff’s negligence in the performance of the work or from natural caúses and without any assisting direction or action of the architects, or resulted not from any fault of the contractor but solely from the negligent direction or action of the architects. . . .</p> <p>If the sole resultant cause of this weakness in the wall was the negligence of the architects, the architects cannot charge the loss to the contractors; it must be borne by the owner, upon the familiar rule of law that a principal is responsible for the acts of his agents and must bear the loss caused by the latter. If the building of the stone walls was done by the contractor in good faith according to the plans and specifications and under the direction and to the satisfaction of the architects, the architects, except under circumstances to which we have directed and hereafter shall direct your attention, could not compel the subsequent tearing down and rebuilding at the expense of the owner, the owner, as between himself and the contractor, would be bound by the acts of his agents, the architects, bound to pay the cost of rebuilding the stone walls and of shoring up the building while new Avails were being put in place. Under those circumstances the contractor would not be chargeable with such rebuilding and shoring up and the architects’ final estimate showing a balance of $1,444.74 due the contractor should be increased to about $2,600 by striking out the $640 charged against the contractor for shoring up, and by alloAving $475 for rebuilding the stone walls. . . .</p> <p>On the other hand, if the work was not done according to the plans and specifications and to the satisfaction of the architects, and the weakness of the walls was caused solely by the plaintiff, unassisted by any negligent action or direction of the architects, or was caused by latent defects in the contractor’s work, as for example, the alleged failure to use proper mortar and properly slush some of the small stones imbedded in the interior of the wall, or was caused by one or more or all of these circumstances, then the architects had the right to condemn and require the rebuilding of the stone walls at the expense of the contractor, including as a necessary incident the expense of shoring up, for the owner was entitled to get what he contracted for, and the persons to determine that were the architects. The contract expressly provides that the work should be done to their satisfaction. If, in connection with these suggestions, the weight of the evidence satisfies you that the work Avas not done originally to the satisfaction of the architects Avithout any negligence on the part of the architects, requiring the tearing down and rebuilding of the walls and the shoring up of the building, then the final certificate of the architect showing a balance of $1,400 due to the contractor would be the correct estimate. . . .] [7]</p> <p>Verdict and judgment for plaintiff for $1,897.69. Defendant appealed.</p> <p>Error assigned amongst others was the portion of charge quoted above.</p>

<p>Appeal, No. 58, Oct. T., 1903, by Ann B. Giles, from decree of O. C. Allegheny Co., May T., 1900, No. 188, dismissing exceptions to adjudication in estate of Michael Flanagan.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p> Negligence—Boiler explosion—Liability of corporation when in control of another corporation. </p> <p>Where a boiler explodes in the plant of a corporation and the explosion is the result of the negligence of the company, another corporation which has entire control and management of the plant and business of the first corporation and every one of whose officers and directors are officers and directors of the first'corporation, may be held liable for injuries to third persons resulting from the explosion.</p> <p> Negligence—Boiler explosion—Inspection—Independent contractor. </p> <p>When the engineer of a corporation who is an expert in the care and inspection of boilers, has a boiler repaired under his own supervision and direction by a workman of an independent firm of boiler makers, and the boiler is insufficiently repaired, is left in a dangerous condition, and subsequently explodes, the corporation is liable for injuries to third persons resulting from the explosion, and it will not be heard lo sayas a defense that the work was done by an independent contractor, or that the work had been regularly inspected by the county inspectors of boilers. Anderson v. Hays Mfg. Co., 207 Pa. 106, and Service v. Shoneman, 196 Pa. 63, distinguished.</p> <p>The enactment of boiler inspector laws is but an exercise of the police powers of the state. Such laws are not intended to serve as an impenetrable shield to the negligence of the owner.</p> <p> Negligence—Boiler explosion—■Damages—Profits. </p> <p>In an action to recover damages for injuries caused by the negligent explosion of a boiler on the property of the defendant, the damages cannot include the probable loss of profits which might have been earned by the plant destroyed during the period of rebuilding. Erie City Iron Works v. Barber & Co., 102 Pa. 156, followed.</p> <p> Appeals—Objectionable remarks by attorney—New trial. </p> <p>Objectionable remarks of an attorney in the argument are for the consideration of the court below on a motion for a new trial, and will not be considered by the appellate court as grounds for reversal.</p>

Appeal, No. 70, Oct. T., 1903, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 95, on verdict for plaintiff in case of George W. Fry v. National Glass Company. Assumpsit on a written contract. Before Bbown, J. The facts are stated in the opinion of the Supreme Court. The defendant presented, inter alia, the following point: 1.

Appeal, No. 103, Oct. T., 1903, by defendant, from order of O. P. No. 1, Allegheny Co., Dec. T., 1902, No. 994, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John W. Kirker v. Daniel W. Wylie. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Supreme Court states the case. * Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Husband and wife—Deed—Oonveyanee to wife—Subsequent creditor— Fraud.</p> <p>A husband who is not in debt and is not contemplating entering into a hazardous business may convey his property to his wife, and subsequent creditors have no grounds for complaining of such conveyance.</p>

<p> Practice, O. 0.—Findings of fact by auditing judge—Revieiu. </p> <p>An auditing judge’s finding of fact that a payment made by a client to an attoi'ney included the settlement not only of a judgment for fees, but also of an action of ejectment for land sold under the judgment, will not be reversed by the appellate court where such finding is based upon sufficient evidence, is confirmed by the court in bane, and is not the result of manifest error.</p>

<p>Appeal, No. 114, Oct. T., 1903, by defendants, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1899, No. 67, on verdict for plaintiff in case of Linden Oil Company v. E. H. Jennings et ah, trading as E. H. Jennings & Bros.</p> <p>Trespass for conversion of personal property. Before Rodgers, J.</p> <p>At the trial the defendant presented amongst others, these points :</p> <p>1. If the jury believes from the evidence that the plaintiff procured the Nixon lease with full knowledge of the Russell lease, and placed the material in dispute upon the leasehold and commenced the drilling of a well thereon, with knowledge of Russell’s rights, it is not entitled to recover in this action and the verdict should be for the defendants. Answer: Refused. [1]</p> <p>2. If the jury believe from the evidence that the rig, tank casing, etc., for which plaintiff claims to recover in this action, were placed upon the Nixon farm for the purpose of drilling a well thereon in accordance with the conditions of the Duffield lease and formed a part of said leasehold, which was owned and controlled by the plaintiff in this action, with full knowledge of the Russell lease ; that the Duffield lease was' finally annulled by the circuit court of Ohio, and that Jennings Bros. and/ Hall, assignees of Russell were put into the possession of the said leasehold by the said court, and Duffield and his assignee were enjoined and restrained from going upon said leasehold ; that the rig, tank, casing, etc., for which claim is here made, being a part of said leasehold, it thereby became the property of Jennings Bros, and their associates, and the plaintiff cannot recover therefor in this action, and the verdict must be for defendants. Answer: Refused.</p> <p>Verdict and judgment for plaintiff for $1,740. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 3, Oct. T., 1903, by defendants, from judgment of C. P. No. 3, Allegheny Go., May T., 1902, No. 468, on verdict for plaintiff in case of The Safe Deposit and Trust Company of Pittsburg, Guardian of Herman George Adolph Kauffeld, v. Elias Lange et ah</p> <p>Issue devisavit vel non. Before Evans, J.</p> <p>In addition to the facts stated in the opinion of the Supreme Court it appeared that the will in controversy was executed on January 29, 1900, three days before testator’s death. Testator married in 1882. Plaintiff was born in 1883, and testator and his wife separated in 1885. The estate amounted to about $25,000. The will provided as follows: “ My wife Emma Kauffeld shall have such dower in my estate as the intestate laws of the state of Pennsylvania give to her.</p> <p>“ To George Adolph Kauffeld of Pittsburg, Pennsylvania, I give and bequeath the sum of $2,500.”</p> <p>He gave the remainder of his estate to relatives.</p> <p>The court excluded offers proved by various witnesses who had had business relations with the decedent that they did not observe anything from decedent’s conversation or conduct which led them to think that he was of unsound mind. [10-15]</p> <p>The court also excluded offers to prove declarations of the testator as to his intentions to provide by will for certain of the defendants. [7, 8, 9]</p> <p>The court charged in part as follows :</p> <p>[This case comes into this court for trial from proceedings commenced in the orphans’ court of this county contesting the validity of the will of Elias Kauffeld; and the orphans’ court of this county certified to this court a question of fact which question of fact I submit to you for your determination. That question is this : Whether at the time of the alleged execution of the paper-writing dated January 29, 1900, purporting to be the last will and testament of Elias Kauffeld, deceased, he, the said Elias Kauffeld, was of sound and disposing mind, memory and understanding. That is the question of fact for you to determine in this case and is the only question of fact submitted to you.</p> <p>If you find the affirmative of that fact, namely, that he was of sound mind, memory and understanding, then you should sustain the paper which he executed at that date as his last will and testament, and find your verdict for the defendants in this case,</p> <p>If you find the negative of that fact, namely, that he was not of sound mind, memory and understanding, then your verdict should be for the plaintiff in this case; because if he was not of sound mind at that time, then he could not execute as his last will and testament any paper, and the paper which he intended to be his last will and testament is not in law his last will and testament.] [1]</p> <p>[Now, the first of these alleged delusions, namely, that he was being pursued by imaginary enemies and in grotesque and fanciful ways for the purpose of poisoning him, if it was an insane delusion, might not affect the making of his will unless it controlled his act in some way in the disposition of his property. But outside of that, it has a value to you in the testimony to this extent, that if it is evidence of a delusion at all, it is evidence to determine the question as to whether the other alleged delusions, namely, the infidelity of his wife and the illegitimacy of his son, were founded upon fact or upon reasonable evidence or not.] [2]</p> <p>[The important question for you to determine in this case will be, was the belief that his son was illegitimate a delusion such as I have defined to you, or was it founded either upon fact or upon such evidence as would justify an ordinarily rational mind in believing it, or, at least, in having doubts on the subject, which you find from the testimony that he had. That is the important test, I think, in this case. If his belief in his son’s illegitimacy was a pure figment of the imagination, neither based upon facts nor upon extrinsic evidence, then it was an insane delusion, and such an insane delusion as, if it existed at the time that he executed this paper, would strike it down as a will; because the child is the natural object of the parent’s bounty, and where you find that a child has been disinherited, or practically disinherited, you naturally make inquiry as to the cause, and if that cause be an insane delusion, then it was the delusion that disinherited the child and not the rational reasoning powers of the man.] [3]</p> <p>The court refused binding instructions for defendants. [2]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them; (5-15) rulings on evidence, quoting the bill of exceptions.</p>

<p> Negligence—Master and servant—Risk of employment—Notice of defective appliance. </p> <p>In an action by an employee against his employer to recover damages for personal injuries, it appeared that the plaintiff was employed to oil overhead machinery. To reach the place at which he performed this service he was required to ascend a perpendicular ladder, about twenty feet in height, and then to step on the rafters or stringers of the building, supporting himself while doing so by taking' hold of a crosspiece about eleven inches beyond and above the top of the ladder. The room in which the work was done was lighted by natural gas. The plaintiff ascended the ladder, and after he had relaxed his grip from the top rung of the ladder, and was reaching for the crosspiece above, the gas failed and he missed his hold, and fell to the floor below. It appeared that about seven months before the defendant had removed the tips or burners from the gas pipes. A few days before the accident plaintiff called the attention of the defendant’s superintendent to the defective condition of the light. He testified that he remained in the company’s service under a promise by the superintendent that the defect would speedily be remedied. The superintendent denied that any such conversation took place. Held, that the ease was for the jury, and that a verdict and judgment for the plaintiff should be sustained.</p>

<p> Arbitration—Form of submission—Gonalusiveness of award—Nonfulfilment. </p> <p>Technical words are not required to make a binding reference, and the form of submission is not important if it clearly appears that the intent was to submit differences to arbitration, and to abide by the award. An agreement to submit to arbitration may carry with it by implication the further agreement to abide by the award.</p> <p>An agreement to submit questions that may arise as to the fulfilment of the contract does not give the right to pass on a claim for damages for nonfulfilment. Such an agreement is not to be extended by implication beyond its plain words.</p> <p>An agreement between a borough and contractors provided as follows : “ To prevent all disputes and litigation by and between the parties to this contract, the said engineer shall be referee in all cases to determine the amount, quality, acceptability, and fitness of the several kinds of work which are to be paid for under this contract, and to decide upon questions which may arise as to the fulfillment of said contract on the part of the contractor.” The contractor abandoned the work after a dispute had arisen as to whether certain changes directed to be made by the engineer came under the head of extra work. Held, that the engineer had no power to pass on a claim by the borough against the contractors for damages for nonfulfilment of the contract.</p>

<p>Criminal law—False pretense—Act of March 31,1860, see. Ill, P. L. 382.</p> <p>Where a person in Pennsylvania in order to establish a financial credit and commercial rating makes statements in writing which he transmits by regular mail service to a company in New York and the company relying upon his statement accepts his order for goods, and delivers them to a common carrier for shipment to the person ordering the goods, who receives them at their destination in Pennsylvania, the person sending the order may be convicted in Pennsylvania of obtaining goods under false pretense.</p>

<p>Appeal, No. 116, Oct. T., 1903, by plaintiff, from order of C. P. No. 2, Allegheny Co., Oct. T., 1901, No. 849, discharging rule for judgment for want of a sufficient affidavit of defense in case of Columbia National Bank v. William T. Dunn.</p> <p>Assumpsit against indorser of promissory notes.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 134, Oct. T., 1903, by defendant, from judgment of C. P., No. 2, Allegheny County, Oct. T., 1901, No. 676, on verdict for plaintiff in case of Caroline Slianer v. John Wilson et al. Ejectment for land in Moon township. Before Rodgers, J. The opinion of the Supreme Court states the case. The court gave binding instructions for plaintiff. Error assigned was in giving binding instructions for plaintiff.

<p>Appeals—Assignments of error—Evidence—Rule 3t.</p> <p>An assignment of error to the exclusion of evidence, which fails to set forth the evidence proposed to be offered, is in violation of Rule 31 of the Supreme Court, and will be disregarded.</p> <p> Road law—Opening street—Evidence, </p> <p>In a proceeding for the assessment of damages and benefits for the opening and grading of a street sixty feet wide, an offer by the property owner to show that long prior to the proceeding the city had accepted and maintained a sixty foot street at the point, is wholly irrelevant. In such a ease the fact that there existed prior to the proceedings a thirty-three foot street at the p'oint, or that the owner had voluntarily contributed the thirty-three foot street for public use, does not relieve the owner from payment of benefits accruing from the opening of the sixty foot street.</p>

<p>Appeal, No. 11, Oct. T., 1903, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1901, No. 733, on verdict for plaintiff, in case of William McG. Kitchen v. Riter-Conley Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Brown, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $8,861. Defendant appealed.</p> <p>Error assigned among others was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 10, Oct. T., 1903, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., July T., 1900, No. 552, on certificate for defendant, in case of Frank McKnight and William Victory, trading as McKnight & Victory, v. John Newell.</p> <p>Assumpsit for plumbing work. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>When the defendant was on the stand he was asked this question:</p> <p>“ Q. Have you any idea, beginning in 1891, and running down to 1894, what repairs, if any, were done to that bar by McKnight & Victory? A. The amount—what it would cost? Q. Well, the amount, if you can tell us, or in detail as far as you can tell us anything about it ? ”</p> <p>Mr. Ritchey: “ That is just what you know from your own knowledge. A. Well, just to guess at it—I don’t know from my OAvn knowledge nor nobody else can.”</p> <p>Mr. Ritchey: This is objected to, then.</p> <p>Mr. Ferguson: “ Q. You were about all the time, weren’t you?”</p> <p>Objected to.</p> <p>Mr. Ritchey: “ Q. Can you give anything better than a guess? A. I could give a pretty fair idea. Q. Would it be simply a guess, as you stated? A. Yes, it would have to be a guess, as I didn’t mark it down, but I am a pretty good guesser.”</p> <p>Mr. Ferguson: “ Q. What do you mean by ‘ a guess ’ ? ”</p> <p>Mr. Ritchey : This is objected to.</p> <p>The Court; “ If Mr, Newell will state to the best of his recollection what McKnight & Victory did in the way of repairs to the bar or additions made to the bar, he may then state what in his opinion those were worth, without merely lumping it as a whole. He ought to go into some details.</p> <p>“A. I have'figured it up since this case was on, Miss Pfordt and I valued it—about $500. All the work they did around the bar and cellar for me, and give them the benefit too,—a good price.”</p> <p>Mr. Ritchey: We object to that answer of the witness for the reason that he has not shown sufficient knowledge of this work to enable him to put any reasonable or fair value upon it, this work being the work that we have sued for in this case as applied to this, bar, the items to which the witness is testifying, and I move to strike out that answer of the witness’s estimate based upon a guess, as stated by him.</p> <p>Objection overruled ; motion refused and bill sealed for plaintiff. [6]</p> <p>Mr. Ritchey: I offer in evidence the slips produced by plaintiffs and testified to as being the slips of the workmen for work and material done on this account.</p> <p>Objected to as incompetent and irrelevant.</p> <p>Objections sustained and bill sealed for plaintiffs. [7]</p> <p>Defendant presented these points:</p> <p>That the plaintiffs’ “ Exhibit No. 1 ” is not a book of original entries, and is not entitled to be considered in any way whatsoever by the jury as tending to establish the claim of the plaintiffs or any portion thereof. Answer: That is affirmed with this qualification; the book in itself does not tend to establish defendant’s liability, and is only to be considered by the jury , in conjunction with the testimony of McKnight & Victory. [1]'</p> <p>The court charged in part as follows:</p> <p>[To assist you in determining whether or not the defendant is indebted to the plaintiff, we have admitted in evidence a book which the plaintiffs claim is a book of original entries. We are of the opinion that that is not properly speaking a book of original entries; that is a mere memorandum and not a book of original entries. A book of original entries is a book in which a merchant keeps his accounts generally and enters therein from day to day a record of his transactions. In a book of that kind, when presented to the jury, the jury can see under each date the amount of sales made to customers. The presumption is that a boot so kept is a correct record. The presumption is that a business man keeps his account correctly, and -where the charges are made from day to day, and courts receive boobs so kept in evidence, they are strongly persuasive evidence at least of the correctness of the account. This book, “ Exhibit No. 1,” is not kept in that way. It is a book in which alone are entered the items claimed to be chargeable to the Newell Hotel improvement.. It contains no other entries, and we admit it only in connection with the testimony of McKnight & Victory. You, gentlemen, may examine it, and in connection with their testimony give it such credit as you think it is entitled to receive. The book of itself proves nothing, but in conjunction with the testimony of Mr. McKnight and Mr. Victory, it may assist you in arriving at a verdict. If it were a regular book of original entries, it would be entitled to receive more credit.] [3]</p> <p>Mr. Ritchey: I think your honor should state to the jury that the burden is upon the defense to show the items claimed for in this suit were in any of the other contracts.</p> <p>The Court: No, the burden is on the plaintiffs. They must make out their case and show their right to recover.</p> <p>Certificate for defendant for $5,530, upon which judgment was entered for $2,463.30, all above that amount having been remitted. Plaintiff appealed.</p> <p>Errors assigned were (1-5) above instructions; (6, 7) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 1, Oct. T., 1904, by defendant, from decree of C. P. Westmoreland Co., Equity Docket No. 475, awarding preliminary injunction in case of Alfred Hicks v. American Natural Gas Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error• assigned was the decree of the court.</p>

<p>Appeal, No. 129, Oct. T., 1903, by R. E. Warner, and Lawrence Warner, from decree of O. C. Allegheny Co., Jan. T., 1903, No. 206, revoking letters of administration in estaté of E. S. Warner, deceased.</p> <p>Petition to revoke letters of administration.</p> <p>From the record it appeared that on July 6, 1897, Dr. E. S. Warner and Mary Sands, being in contemplation of marriage, executed an agreement in writing, by which they relinquished all marital rights in each other’s estates.</p> <p>The auditing judge, Miller, J., found other facts as follows :</p> <p>On August 11, 1897, an addition to the foregoing agreement was made and duly executed by both parties, wherein it is stated that the decedent owned real estate on Ninth street, Pitts-burg, valued at $15,000, and real estate on Penn avenue, Pitts-burg, valued at $25,000, and personal property consisting only of household goods and furniture. On the same day the parties were married, the decedent then being seventy-seven years of age, and his wife about fifty-five years of age. She had no separate estate in possession or expectancy, save the right to a small annuity which bears no comparison to the estate of the decedent.</p> <p>He died on November 29, 1902, intestate. He left no provision whatever for her. The inventory filed shows personal estate amounting to $32,266.49. The real estate on Ninth street, Pittsburg, was still in his possession, and is part of his estate, and is in a section of the city where values have greatly increased.</p> <p>His widow, at the solicitation of the decedent’s two sons by a former marriage, who are his sole heirs, within a few days after his death went with them to the office of their counsel, who had also been the counsel for their father, and who had prepared and been a witness to the foregoing antenuptial agreement ; there it was represented to her that by virtue of the execution of the above recited agreement, she* had no interest whatever in the decedent’s estate, had no right to administer thereon, whereupon she renounced her right of administration in favor of decedent’s sons.</p> <p>Shortly thereafter, she no longer having a home, or means of living from her husband’s estate, upon a disclosure of her situation, and a statement of the facts hereto concealed, she procured counsel and presented her petition averring that she had never been advised of her rights, that her renunciation had been obtained through fraud and misrepresentation, asking for a revocation of the appointment of administration. The answer filed sets up the antenuptial agreement.</p> <p>The court entered the following decree:</p> <p>And now to wit: June 18, 1903, this matter having come on for a hearing, the evidence produced on behalf of the petitioner and of the respondents having been heard, and the case having been argued by counsel, upon consideration thereof it is hereby ordered, adjudged and decreed that the letters of administration upon the estate of E. S. Warner, deceased, heretofore granted by the register of wills of said county of Allegheny to R. E. Warner and Lawrence Warner are revoked, that the renunciation of the right to administer on said estate signed by widow, Mary Warner, is null and void ; and that the register of wills issue letters of administration on said estate according to law.</p> <p>Error assigned was the decree of the court.</p>

<p> Appeals—Assignments of error—Evidence—Reference to page of paper-book. </p> <p>An assignment of error to the admission of testimony, which fails to set forth the name of the witness, or the number of the page of the paper-book where the testimony may be found in its regular order, does not comply with Rule 31 of the Supreme Court, and will not be considered.</p> <p> Negligence—Flooding of building—Trespass—Damages—Punitive damages. </p> <p>In an action of trespass to recover damages for injuries to goods, it appeared that plaintiff and defendant, the latter being a corporation, were both engaged in the same business, the defendant occupying the fifth floor of a building and the plaintiff the fourth floor. The testimony showed that the defendant maintained barrels connected with a drainage pipe. Dirt, oil and grease were allowed to accumulate in the barrels, and to overflow into the pipe, clogging it, and causing an overflow of water in the barrels. This water was carried to the fourth floor and injured plaintiff’s goods. There was evidence that the president and foreman of the defendant company knew of the overflows, and permitted them to continue during a spring, summer and fall. There was also evidence that the overflow was intentional and was for the purpose of compelling plaintiff to leave the building. This he subsequently did, and the defendant took the floor thus vacated. Held, that a judgment and verdict for plaintiff for the amount of the loss and for punitive damages should be sustained.</p>

Appeal, No. 141, Oct. T., 1903, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1901, No. 649, refusing to take off nonsuit in case of James Simmons v. Southern Traction Company. Trespass to recover damages for personal injuries. Before Brown, J. The circumstances of the accident are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 111, Oct. T., 1903, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1902, No, 617, on verdict for plaintiff in case of Charles Donnelly v. Frick & Lindsay Company. Trespass for alleged wrongful removal of trade fixtures after expiration of term. Before Evans, J. At the trial it appeared that the defendant was a tenant of the plaintiff in a building at the corner of Wood street and Chestnut avenue in the city of Pittsburg.

<p>Orphans' court sale—Price Act—Act of April 18,1853, P. L. 503—Consti-tutional law—Contingent remainders.</p> <p>The legislature has the power to order the sale of a decedent’s real estate against the will of parties in interest sui juris, so as to divest contingent remainders and executory devises, and the Act of April 18, 1853, P. L. 503, is therefore constitutional. Grenawalt’s Appeal, 37 Pa. 95, and Freeman’s Estate, 181 Pa. 405, followed.</p> <p>The Supreme Court will not reverse an order of the orphans’ court directing a sale of real estate under the Price Act where it appears that the property was heavily encumbered, that if rentals should fall off or taxes be increased, the property would be in serious peril, and that the three orphan’s court judges who were familiar with the property and who heard the testimony had, after full consideration, determined that it was to the best interests of all parties concerned that the sale should be consummated at the price offered.</p>

<p> Insurance—Accident insurance—Payment of renewal premium—Waiver —Custom■—■Evidence. </p> <p>In an action upon an accident policy, where the defense is that the renewal premium was not paid until after the accident, and the uncontradicted testimony is that the insured knew that his premium was overdue and unpaid, promised to pay it on the following Monday, and was distinctly informed that in the meantime, until he paid cash, he would be “ carrying his own risk,” evidence that the agent had told certain witnesses that he had himself given credit in certain eases is insufficient to establish a custom of the company to give credit for premiums, and even if sufficient for that purpose, would not avail the plaintiff in face of the uncontradicted proofs in the case.</p> <p>Evidence of a custom in general dealings is not available against a distinct notice to the contrary in the particular transaction.</p> <p>The essential element which will take the question of implied waiver, in an insurance ease, to the jury, is that the insurer has done some act or pursued some course of conduct which has misled the insured, or lulled him into delay in performing his stipulations in the contract.</p>

Appeal, No. 136, Oct. T., 1903, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1901, No. 435, dismissing bill in equity in case of Elizabeth McGary and Margaret C. McGary and Mary Elizabeth McGary, Minors, by their next friend Elizabeth McCary, v. John J. McDermott. Bill in equity for specific performance.

<p> Negligence—Proximate and remote cause—Province of court and jury. </p> <p>In determining whether a negligent act is the proximate or remote cause of an injury, the jury must consider whether the facts constitute a continuous succession of events so linked together that they became a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause—the negligent act.</p> <p>If the facts of the case are in dispute the question of remote or proximate cause must go to the jury; if, however, the facts are undisputed and the inference to be drawn from them is plain, and not open to doubt by reasonable men, it is the duty of the court to determine the question as a matter of law.</p> <p>In an action against a rail road company to recover damages for personal injuries, it appeared that the defendant’s employees in shifting a number of ears containing naphtha permitted a collision to occur between .two such ears, resulting in two holes being pierced in the front and near the bottom of one of the cars. These ears contained over 7,000 gallons of naphtha, the most of which ran out on the ground and into a catch basin near by. Shortly after the collision the car was moved along the track, the naphtha splashing and running out as the car moved. In passing, a switch light which had been previously lighted, ignited the naphtha. The flame of this fire followed the course of the running naphtha backward to the catch basin, and from the catch basin into a sewer which terminated at the mouth of a culvert near which was a bridge over the stream issuing from the culvert. Various small explosions followed in rapid succession in the sewer, and finally a violent explosion took place at the mouth of the sewer or culvert, and the plaintiff who was standing on the bridge near the mouth was injured. Held, (1) that the question whether the negligent act of the company’s employees in permitting the naphtha to ignite was the remote or proximate cause of the injury, was for the jury; (2) .that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 159, Oct. T., 1903, by plaintiff, from decree of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 4, dismissing exceptions to adjudication in case of Munhall Borough School District v. Mifflin Township School District.</p> <p>Bill for the adjustment of rights and liabilities as between two school districts.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

Appeal, No. 168, Oct. T., 1903, by J. R. W. Tibby, from decree of O. C. Allegheny Co., April T., 1903, No. 3, awarding partition in estate of James Tibby, deceased. Petition for partition. In addition to the facts stated in the opinion of the Supreme Court it appeared that the land in controversy was valuable real estate situated in Pittsburg and Wilkinsburg. The court entered a decree by which purports were awarded to decedent’s granddaughters as well as to his grandsons.

Appeal, No. 167, Oct. T., 1903, by plaintiff, from decree of O. P. No. 2, Allegheny Co., April T., 1903, No. 512, dismissing bill in equity in case of Annie L. Kerlin v. John C. Knipp. Bill in equity for specific performance. Shafer, J., found the facts-to be as follows : 1. On and before December 28, 1895, the plaintiff was the owner of eighty acres of land, more or less, in Indiana county, and the defendant was the owner of a house and lot in Willdnsburg, Allegheny county.