Volume 208 — Pennsylvania State Reports

<p>Appeal, No. 180, Oct. T., 1903, by-defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1903, No. 171, for plaintiff on case stated in suit of John S. Murray and Catherine M. Murray v. A. L. Lowrie.</p> <p>Case stated to determine the marketability of real estate.</p> <p>The question at issue was whether Catherine M. Murray had under her father’s will an estate in fee simple which she could convey. The provisions of the will are quoted in the opinion of the Supreme Court.</p> <p>The court entered judgment for plaintiff on the ease stated in the sum of $11,666.06.</p> <p>Error assigned was the judgment of the court.</p>

<p>Will — Devise—Life estate — Children.</p> <p>A devise to a son “ and to his children” with a direction that the son shall pay certain legacies, vests a life estate in the son, and an estate in remainder in the son’s children living at testator’s death, subject to be opened to let in after-born children.</p> <p>Trespass — Oil—Action—Practice, C. P__Life estate.</p> <p>Trespass is the proper remedy for the recovery of damages for oil taken from land.</p> <p>A tenant under an oil lease executed by one having an estate for life, who continues to take oil after the death of the life tenant may be sued in trespass by the remainderman. In such a case the measure of damages is the difference between what oil sells for in the market and the cost of production.</p>

Appeal, No. 174, Oct. T., 1903, by defendants, from decree of C. P. No. 2, Allegheny County, Oct. T., 1902, No. 388, on bill in equity in case of Jacob Byers v. William S. Byers and William JR. Byers. Bill in equity for an injunction, discovery and an account. Before Rodgers, J. The facts are stated in the opinion of the Supreme Court. Error assigned amongst others was the decree of the court.

Appeal, No. 5, Oct. T;, 1904, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T,, 1903, No. 712, on ouster on quo warranto in case of Commonwealth ex rel. John C. Haymaker, District Attorney, v. Charles J. Pedder. Quo warranto to determine title to office of school director.

Appeal, No. 184, Oct. T., 1903, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1900, No. 494, on verdict for plaintiff, in case of James Mclntire v. Pittsburg Steel Foundry. Trespass to recover damages for personal injuries. Before Collier, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $5,000. Defendant appealed. Error assigned amongst others was in refusing binding instructions for defendant.

<p>Appeal, No. 185, Oct. T., 1903, by Lyman W. DeHaven, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 800, on bill in equity in case of Pitts-burg Stove & Range Company v. Pennsylvania Stove Company, Lyman W. DeHaven & Addison C. DeHaven.</p> <p>Bill in equity for an injunction. Before McFarlane, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree :</p> <p>1. That the plaintiff’s bill be dismissed as to Addison C. DeHaven.</p> <p>2. That the plaintiff’s bill be dismissed as to the Pennsylvania Stove Company, at the cost of the plaintiff.</p> <p>3. That Lyman W. DeHaven be and he .is hereby restrained and enjoined from engaging or continuing to engage in the business of manufacturing or selling stoves, ranges, furnaces, heating appliances and kindred manufactures as an employee of the Pennsylvania Stove Company, or otherwise, at Ellwood city, Lawrence county, Pennsylvania, or elsewhere in the state of Pennsylvania, for a period of five years from September 1, 1899, and that the said Lyman W. DeHaven pay one half of the costs. ,</p> <p>Lyman W. DeHaven appealed.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 183, Oct. T., 1903, by defendant, from order of C. P. No. 2, Allegheny Co., Oct. T. 1903, No. 18, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Katharine C. Bailey and Fidelity Title and Trust Company, Administrator c. t. a. of the Estate of James M. Bailey, Deceased, v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Assumpsit for consideration money of real estate.

Appeals, Nos. 120, 121, 122 and 145, Oct. T., 1903, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1903, No. 6, on verdict for plaintiff in case of Anna M. Gfeller v. E. Adolph Lappe et al. Issue devisavit vel non. Before Frazer, P. J. The opinion of the Supreme Court states the case. The court refused binding instructions for defendants. Defendants appealed. Verdict and judgment for plaintiff.

Appeal, No. 182, Oct. T., 1903, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1901, No. 473, on verdict for plaintiff in ease of William Kossler et al. v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Appeal from award of jury of view. Before Colliee, J. From the record it appeared that the plaintiffs were owners of two adjoining tracts of land in the 34th ward of the city of Pittsburg.

Appeal, No. 186, Oct. T., 1903, by defendant, from decree of C. P. No. 3, Allegheny Co., August T., 1903, No. 340, on bill in equity, in case of Samuel C. Graham v. William L. Abbott. Bill in equity for specific performance. The case was heard on bill and answer.

Appeal, No. 187, Oct. T., 1903, by defendant, from decree of C. P. No. 1, Allegheny Co., March T., 1903, No. 1059, on bill in equity in case of Daniel Weigold v. Pittsburg, Carnegie & Western Railroad Company. Bill in equity for an injunction. Before Collier, J. The facts are stated in the opinion of the Supreme Court. ' JError assigned was decree enjoining condemnation of plaintiff’s propertj-.

Appeal, No. 152, Oct. T., 1903, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1893, No. 132, on bill in equity, in case of C. W. Stone et al. v. Marshall Oil Company et al. Bill in equity for an account. The facts are stated in the opinion of the Supreme Court. The supplemental report of the master, J. T. Gray, Esq., was as follows : The master has found the supplemental findings of fact and reached the conclusions hereinbelow enumerated. FINDINGS OF FACT.

<p>Appeal, Nov. 181, Oct. T., 1903, by defendants, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1893, No. 132, on bill in equity in case of C. W. Stone et al. v. Washington Oil Company.</p>

Appeal, No. 29, Oct. T.,. 1903, by defendant, from judgment of O. P. No. 3, Allegheny Co., Aug. T., 1899, No. 763, on verdict for plaintiff in case of Winslow Brothers Company v. Herbert DuPuy. Assumpsit for breach of contract. Before Evans, J. At the trial it appeared that in 1899, the defendant was constructing a large building in the city of Pittsburg.

Appeal, No. 115, Oct. T., 1903, by defendant, from judgment of C. P. No. 2, Allegheny County, April T., 1902, No. 390, for plaintiff on case stated in suit of Mattie Brown v. Grand Lodge of the Jurisdiction of Pennsylvania Ancient Order of United Workmen et al. ' Case stated to determine title to death benefits in a benefi eial association. Before- Rodgers, J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 148, Oct. T., 1903, by Anna Z. Brown, from judgment of C. P. No. 2, Allegheny Co., April T., 1902, No. 390, for plaintiff on case stated in suit of Mattie Brown v. Grand Lodge of the Jurisdiction of Pennsylvania, Ancient Order United Workmen, Anna Z. Brown et al.</p>

<p>Appeals — Certiorari—Supreme Court — Review—Nomination certificates.</p> <p>Proceedings on.contested nomination certificates being entirely statutory and without appeal,- the Supreme Court cannot review the findings of fact or the 'merits of the case, but under its general supervisory powers on certiorari it is entitled to inspect the whole record with regard to the regularity' and propriety of the proceedings to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion.</p> <p>Appeals — Certiorari—Record—Opinion of court below.</p> <p>As a general rule the opinion-of the court below is not part of the record strictly so-called, and in common-law actions the review on certiorari is confined to the judgment without reference to the reasons of the court in entering it. In equity suits the rule is the other way and the reasons and opinion of the chancellor are always open to examination to discover the grounds of his action. Proceedings on summary petition occupy a middle ground- They are not open to review on the merits, as upon appeal, but as a mere inspection of the docket entries or the formal proceedings would disclose nothing the appellate court must look at the opinion as well as the action of the court to’ see the basis on which it acted.</p> <p>Election law — Constitution—Right of suffrage — Legislative' regulation— Official ballot.</p> <p>The constitution confers the right of suffrage on every citizen possessing the qualifications.named.in that instrument. It is an individual right and each elector is entitled to express his own' individual will in his own way. His right cannot be denied, qualified or restricted, and is only subject to such regulation as to the manner of exercise, as is necessary for the peaceable and orderly exercise of the same right in other electors.</p> <p>The requirement of the use of an official ballot is a questionable exercise of legislative power and even in the most favorable view treads closely on the border of avoid interference with the individual elector. Every doubt, therefore, in the construction of the statute must be resolved in favor of the elector. Per Mitchell, C. J.</p> <p>Election law — Party—Province of courts.</p> <p>The electors themselves are the only tribunal to decide whether, the principles, platform, aim or method of reaching a desired object are broad enough, permanent enough or important enough to be the basis of united action as a party, and if they so decide, courts must recognize and treat them accordingly. The only province of the courts is to ascertain whether the parties before then! áre within the terms of the statute in regard to the rights claimed. ' '</p> <p>Election law — Political parties — Right to file certificates of nomination.</p> <p>Any combination or aggregation of electors with sufficient coherence and organization to have acted together for a common purpose, and sufficient strength and certainty to have polled two per centum of the highest vote at the next preceding election, is a political party within the statute, having the right to put nominations on the ballot by certificate.</p> <p>The fact that the members of a party calling itself the “Independence Party ” claim to be still democrats on national issues is not an objection' with which the courts have any concern when nominations are filed for county officers. If as “Independents” they polled the requisite, vote in, the county at the last election they are a separate party so far as the court is concerned to make nominations for a county election.</p> <p>Election law — “ Election next preceding" — Act June 22, 1897, P. L. 179.</p> <p>The words “at the election next preceding” in the Act of June 22, 1897, P.' L. 179, relative to the requisite vote cast to entitle a party to make nominations, mean the last election whether municipal or general.</p> <p>Election law — Objections to nomination — Who may file.</p> <p>Objections to nominations may be filed by electors without regard to their membership in political parties. •</p>

Appeal, No. 97, Jan. T., 1903, by defendant, from order of C. P. No. 1, Pbila. Co., Sept. T., Í902, No. 1041, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George W. Pierson v. Bernard J. Krause, trading as William Krause & Son.

Appeal, No. 131, Jan. T., 1903, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1898, No. 503, on verdict for defendant in case of Lott Rimby and Annie Rimby, his Wife, v. Philadelphia. Trespass to recover damages for personal injuries. Before McCaethy, J. The opinion of the Supreme Court states the case. The court gave binding instructions for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

Appeal, No. 238, Jan. T., 1903, by defendant, from judgment of C. P. No. 3, Phila. Co., Dee. T., 1900, No. 767, in ease of Minnie E. Conger v. John R. Wiggins. Trespass for death of plaintiff’s husband. Before Flnletter, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. Verdict and Judgment for plaintiff for $3,000. Defendant appealed. Error assigned among others was refusal of binding instructions for defendant.

Appeal, No. 275, Jan. T., 1903, by defendant, from order of court of Oyer and Terminer of Berks Co., discharging rule for new trial, in case of Commonwealth v. Samuel Greason. Rule for new trial under Act of April 22,1903, P. L. 245. From the record it appeared that on May 4, 1903, the Supreme Court made an order authorizing the court of oyer and terminer in its discretion to grant a new trial nunc pro tunc, in accordance with the act of April 22, 1903.

Appeal, No. 346, Jan. T., 1902, by plaintiff, from order of C. P. No. 1, June T., 1899, No. 895, refusing to take off nonsuit in case of Edward J. Fox et al. v. Philadelphia. Trespass to recover damages for the death of plaintiff’s father. Before Beitler, J. The facts are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was the order of the court.

<p>Criminal law — Buie for certiorari — Discharge of rule — Practice, Supreme Court.</p> <p>Where the Supreme Court lias granted a rule for a certiorari to the quarter sessions on the ground of shortness of time allowed the defendant to meet unusual proceedings by information against him, and also on account of the excitement of the public mind caused by newspaper comment, but it appears that at the time the rule is heard conditions have changed, so that the defendant is no longer at a disadvantage, thé court will discharge the rule.</p>

<p>Appeal, No. 114, Jan. T., 1903, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1900, No. 337, on verdict for defendant in case of Jennie Calhoun v. Holland Laundry.</p> <p>Trespass for personal injuries. Before McCarthy, J.</p> <p>The circumstances of the injury are fully detailed 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>Error unsigned was in giving binding instructions for defendant.</p>

<p>Judgment — Opening judgment — Discretion of court.</p> <p>While the opening of a judgment is an appeal to the discretion of the court the appellate court will not review except where the judgment below is a deduction from facts and the result of reasoning upon the same.</p> <p>Judgment — Presumption of payment — Evidence—Opening judgment.</p> <p>Although a legal presumption of payment of a judgment does not arise short of twenty years, yet a less period with persuasive circumstances tending to support it may be submitted to the jury as ground for a presumption of fact.</p> <p>On a rule to open a judgment, it appeared that the note upon which judgment was entered was held for nearly twenty years before entry of judgment, and that after the entry no execution was issued for nearly thirteen years and that defendant’s financial condition made the note collectible. It also appeared that the judgment note was collateral to another note, about which the evidence showed a controversy as to whether anything was due upon it. Held, that the rule to open judgment should be made absolute.</p>

Appeal, No. 78, Jan. T., 1908, by plaintiffs, from order of C. P. No. 4, Phila. Co., March T., 1890, No. 177, refusing to take off nonsuit in case of Henry J. Hand et al. v. Edward Matthews et al, Trustees. Replevin to recover certain fixtures, tools and machinery.

Appeal, No. 222, Jan. T., 1902, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1890, No. 708, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia v. Electric Traction Company of Philadelphia. Scire facias sur municipal claim for taxes. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 45, Jan. T., 1903, by John A. S. Brown, from decree of O. C. Phila. Co., Oct. T., 1902, No. 420, dismissing exceptions to adjudication in estate of Lucien Brown, deceased. Exceptions to adjudication. The facts appear by the opinion of the Supreme Court. Errors assigned were in dismissing the following exceptions to the adjudication: 1.

<p>Gift — Acceptance—Presumption—Husband and ivife — Conversion.</p> <p>A husband may make a valid gift to his wife by transferring an account from his name to hers, although she knows nothing of the transaction at the time, and does not then accept it. Her acceptance may be presumed.</p> <p>Where a husband transfers an account with a firm of stockbrokers from his own name to that of his wife, and the brokers make the transfer on their books, the wife may subsequently maintain an action against the brokers for trover and conversion, if they sell the securities in the account for a debt of the husband, without notice to her, or to the husband as her agent in managing the account.</p> <p>In an action by a wife against a firm of stockbrokers for the conversion of securities, there was evidence that the defendants in the regular course of their business permitted the husband to transfer an account standing in his own name to the name of his wife, and in lieu of the liability to him, there was substituted the liability to account to her, and that they accepted at the same time a good consideration in the shape of additional security; that they rendered statements of the account thereafter in her name, and received at a subsequent time additional margin and receipted for it in her name; that they subsequently sold the securities without her knowledge or consent, and without notice to her husband as her agent, and applied the proceeds to pay the debt of the husband. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p> <p>Mitchell, C. J., and Thompson J., dissent.</p>

Appeal, No. 123, Jan. T., 1903, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1901, No. 2823, in case of Richard A. Rauch and Mary E. Rauch, his Wife, v. William H. Smedley and Franklin Smedley, trading as Smedley and Brother. Trespass for personal injury. Before Finletter, P. J. At the trial it appeared that on December 27,1900,Mary E. Rauch, one of the plaintiffs, was driving a one horse covered butcher’s wagon on Orthodox street.

<p>Contract — Gambling contract — Purchase of stock.</p> <p>A transaction between a stockbroker and his Customer cannot be stamped as a gambling transaction, unless it appears that it was the intention of both parties that the stock was not to be purchased outright, and that there was to be a mere settlement of differences. If the broker shows that it was the intent to purchase the stock and that he was always ready to deliver it when called upon to do so, the mere intention of the purchaser not to pay outright for the stock cannot give the transaction a gambling character.</p> <p>Contract — Gambling contract — Purchase of stock — Bucket shop — Evidence.</p> <p>In an action on a duebill where the defendant alleges that the duebill was given as the result of a gambling, transaction in stocks, an offer is properly excluded to the effect that plaintiff ran what is commonly known as a “ bucket shop,” and that his customers simply gambled upon stocks, and never had any intention of purchasing outright. In such a case it is also proper to exclude an offer to show that the plaintiff had paid a tax to the United States government on a bucket shop.</p>

<p>Appeal, No. 172, Jan. T., 1908, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1901, No. 1289, refusing to take off nonsuit in case of Carl Johnson and Hannah Johnson v. Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Bbégy, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p>

<p>Divorce — Desertion—Offer to resume marital relations — Evidence—Province of court and jury.</p> <p>If the offer to resume marital relations after a desertion is not made in good faith and with the intention to live in the relation of husband and wife, but with the view of defeating a divorce, or for any other dishonest purpose, the injured party may decline to accept it, without being deprived of the right to procure a divorce after the expiration of two years from the desertion. Where there is a demand for an issue and trial by jury the question of good faith is for the jury.</p> <p>In a proceeding for divorce for desertion by a wife against a husband, the plaintiff is entitled to have the ease submitted to the jury where the evidence shows that after a summer vacation the respondent did not return to his home with his wife, alleging illness; that he wrote her a year afterwards still referring to his illness and saying that he desired to consult her about a place where they could live together; that three months after the date of this letter to which the wife did not reply he sent a registered letter in which he again referred to his health, and stated that he had rented apartments, and asked when he could see her to fix and arrange for moving in; that the respondent’s statements as to his health were not true, and that- the general tone of the letters and the circumstances under which they were written tended to show deception and bad faith.</p>

<p>Appeal, No. 179, Jan. T., 1903, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1901, No. 2297, on verdict for plaintiff in case of G. Jason Waters v. Philadelphia.</p> <p>Appeal from award of jury of view. Before Biddle, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 153, Jan. T., 1903, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1902, No. 4125, on verdict Jor plaintiff in case of Elizabeth Scanlon v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Willson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p>

<p>Partition — Master's finding of fact — Mortgage—Presumption of payment.</p> <p>The findings of fact of a master in partition that the presumption of payment of mortgage upon which there are arrearages of interest for forty years, has not been rebutted by any evidence, will not be reversed in the absence of clear and manifest error.</p> <p>The presumption of payment of a mortgage arising from a period of more than twenty years cannot be successfully rebutted by a suggested intention relating to a possible merger.</p> <p>Tenants in common — Accounting—Rents—Act of June 24, 1895, P. L. 237.</p> <p>Where one of several cotenants accepts for a period of twenty-seven years rentals of a certain amount, and receipts for the same, and he has full knowledge of the condition of the estate, he cannot subsequently, because the court declared a deed to be a mortgage, claim that he should have been entitled to larger amounts.</p> <p>Mistakes of law unless accompanied with special circumstances, undue influence or misplaced confidence, constitute no ground for relief.</p> <p>Under the Act of June 24, 1895, P. L. 237, and the English'statute of 4 and 5 Anne, chapter 16, section 27, one tenant in common may recover from his cotenant a share of the rent which the cotenant had received, or if the cotenant is in actual possession may demand and recover a share of the occupation rents.</p>

<p>Appeal, No. 126, Jan. T., 1903, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dee. T., 1901, No. 4542, dismissing bill in equity in case of Alice Crofton y. Rector, Church Wardens and Vestrymen of St. Clement’s Church.</p> <p>Bill in equity for an injunction. Before McMichael, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The following diagram shows the locus in controversy.</p> <p> </p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Municipal liens — Paving contract — Liability for repairs.</p> <p>A municipal lien for paviug is noL invalid by reason of the fact that the paving contract required the contractor to keep the pavement in repair for five years where it appears that the pavement laid in accordance with the specifications will last five jTears without repairs.</p> <p>The kind of pavement to be constructed and the character of the work to be done are matters within the discretion of the municipal authorities, and it is competent for them to secure the proper performance of the contract by a guarantee of permanency of the work, if in so doing they do not impose upon the property owner more than the cost of the original pavement constructed in strict compliance with the specifications. If the obligation to repair does not exceed the period of time that the work if well done would last, it is not objectionable as casting on the individual owner a burden of taxation that should be borne by the community at large. Unless the time for which repairs are to be made is so unreasonable as to indicate an intention to impose the cost of maintenance upon the abutting owner, the provision for repairs will be regarded as a guarantee of compliance with the contract for paving. Per Fell, J.</p> <p>Municipalities — Municipal contracts — Discretion of authorities.</p> <p>The powers of municipal officers in awarding contracts are not merely ministerial, but discretionary; and they may take into consideration other matters than the mere pecuniary responsibility of the bidder, and they are not bound to make awards to the lowest bidders.</p> <p>Municipal lien — Paving—Cartway—Act of June 4, 1901.</p> <p>Under the Act of June 4, 1901, P. L. 364, a municipal lien may be filed for paving a cartway.</p>

<p>Trusts and trustees — Deed— Vested and contingent remainder — Income.</p> <p>A trust arose under a conveyance of real estate to a trustee in trust to collect the rents and to pay one fourth thereof to each of the trustee’s daughters named in the deed. In ease of the death of a daughter leaving issue, the fourth was to be paid to the issue or during minority to be appropriated for maintenance and support. In event of the death of a daughter without issue, the share of the one dying was to be paid to the surviving daughters or their issue. The trust was to terminate on the death of all the daughters and the arrival of the youngest child of all their children who might survive them at the age of twenty-one years, when a conveyance in fee was to be made to the issue of the daughters in the proportions they would have taken under the intestate laws in case the estate had descended from the trustee and their mothers. The deed further provided that the trustee might sell with the consent of the daughters ; that he might alter the trusts and vary the proportions allotted to any of his daughters or their issue; that he might at will exclude any of them or their issue from the enjoyment of any share of the income or of any interest in the estate ; and that in the event of the death of all his daughters without issue at their decease, or if none of such issue should attain the age of twenty-one years, the trust should become void and the trustee should hold the property free of all trusts. While one of the daughters was still living a child of a deceased daughter after having attained the age of twenty-one years, died without issue, but by will devised her interest in the trust estate to a stranger in blood. Held, that the administrator e. t. a. of such deceased child was not entitled to share in the income.</p>

<p>Negligence — Defective sidewalk — Cellarway andpavement — Contributory negligence.</p> <p>In an action against a property owner to recover damages for personal injuries, it appeared that plaintiff was injured by falling into a cellarway in a pavement in front of defendant’s building. The steps of the cellar-way were at right angles to the building. The cellarway was five feet three inches long and three feet eight inches in width. There was no guard rail on the south side of it, but there was a stone seven or eight inches high at the building, and sloping down to a level with the pavement at the entrance of the cellarway. On the south side of the building was a covered driveway, and the plaintiff in walking out from this driveway turned towards the open cellarway and fell into it. The evidence showed that plaintiff had frequently driven in and out of the driveway, but had never gone in or out on foot until the day he was injured. The wagon which he drove was a covered one. He testified that he was not familiar with the cellarway. He stated that when he emerged from the driveway he saw a crowd of people through which he would have to pass, or which he would have to join. He turned and fell into the eellarway. Held, that the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Sheriffs' sale — Rule to set aside — Effect of reversal of judgment — Execuiion.</p> <p>A rule to set aside a sheriff’s sale taken after payment of the purchase money, the acknowledgment, delivery and recording of the sheriff’s deed and possession obtained by the purchaser is in the absence of fraud too late; and this is the case even where the plaintiff in the execution is the purchaser at the sheriff’s sale, and the judgment on which the sale was founded has been reversed.</p> <p>Execution — Sheriff's sale — Reversal ofjudgmejit — Restitution—Purchase by execution creditor.</p> <p>The ninth section of the act of 1705, 1 Sm. L. 57, which provides that where the land has been sold under a writ issued upon a judgment which was afterwards reversed, the land shall not be restored, but there shall be “restitution in such cases only of the money or price for which such lands were or shall be sold,” applies even where the land has been purchased by the execution creditor.</p>

<p>Appeal, No. 46, Jan. T., 1902, by plaintiffs, from order of C. P. No. 1, Phila. Co., June T., 1896, No. 1046, refusing to take off non-suit in case of Antonio Del Rossi and Margaret Del Rossi, his Wife, v. John Cooney.</p> <p>Trespass to recover damages for the death of plaintiff’s son. Before Biddle, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order of the court refusing to take off. nonsuit.</p>

Appeal, No. 24, Jan. T., 1903, by defendant, from judgment of C. P. Chester Co., April T., 1900, No. 73, on verdict 'for plaintiff in case of George Quigley v. The Montgomery & Chester Electric Railway Company.. Trespass for injury to land.

<p>Negligence — Master and servant — Risk of employment.</p> <p>When an employee after having the opportunity of becoming acquainted with the risks of his situation accepts them, he cannot complain if subsequently injured by such exposure. By contracting for the performance of hazardous duties he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had an opportunity to ascertain.</p> <p>In an action by an employee against his employer to recover damages for personal injuries sustained while operating a buzz saw, binding instructions for defendant are properly given, where the evidence shows that the plaintiff had operated the saw for many years; that up to the day of the accident he was entirely satisfied with the condition of the saw; that on the day of the accident the saw began to jump and plaintiff sent word to defendant who at once went to the place with a skilled mechanic who found what caused the jumping, and proceeded to correct it; and that both plaintiff and defendant were then satisfied, the former went away, and the latter continued his work, and the accident occurred.</p>

<p>Sheriff's sale. — Agreement"between purchaser and defendant in execution —Forfeiture— Contract.</p> <p>A. had an optional agreement for the purchase of land, which after being partly, complied with was abrogated by the parties, and their rights under it were adjusted. She subsequently included this land in a mortgage of a large tract of land which she owned. Meld, that the abrogation of the agreement ended all her right in the land, and that she had no equity which the mortgagee could enforce.</p>

Appeal, No. 105, Jan. T., 190B, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1900, No. 4, on verdict for plaintiff, in case of John Blue v. Charles Hunt. Assumpsit against indorser of promissory -notes. The facts appear in the opinion of the court. Verdict for plaintiff for $2,669.08, on which judgment was entered for $1,774.37, all above that amount having been remitted. Error assigned was in refusing binding instructions for defendant.

<p>Landlord and tenant — Agreement to repair — Contract.</p> <p>Where a tenant in possession under a parol lease from month to month notifies his landlord of a, serio us crack in the wall óf the leased building, and states that he will move out if it is not immediately repaired, and the landlord promises to make the repairs at once, but fails to do so, and a few days afterwards the building falls and injures the tenant’s stock and furniture, the tenant has a right of action against the landlord, and his measure of damages is his loss consequent on the landlord’s failure to make the repairs.</p>

<p>Appeal, No. 183, Jan. T., 1903, by-defendants, from judgment of C. P. No. 4, Pbila. Co., Dec. T., 1900, No. 643, on verdict for plaintiff in case of William McK. Morris and Edwin J. Morris, trading as Morris & Company, v. Charles J. Supplee and William M. Van Leer, trading as Supplee & Van Leer. '</p> <p>Assumpsit for breach of contract. Before Audeneied, J.</p> <p>At the trial it appeared that on March 14, 1900, plaintiffs bought of defendants for future delivery 900 bales of cotton under the following memorandum in writing :</p> <p>“ Philadelphia, Mar. 14,1900.</p> <p>“ Sold to Messrs. Moeeis & Co.</p> <p>“ For a/c of ourselves.</p> <p>“ Terms : Cash basis, note at 60 days from shipment of each 100 bales, interest added.</p> <p>“Nine hundred (900) bales of Middling Cotton, a.t 8£c., landed Yardville, N. J. Southern weights guaranteed not to lose in excess of one per cent, in transit. Three hundred bales October shipment; 300 November shipment and 300 December shipment, shippers’ option.</p> <p>“ Supplee & Van Leee.”</p> <p>Toward the end of October, the defendants shipped the plaintiffs 300 bales of cotton, but, on October 30, notified them that they could take it only upon payment of its contract price in cash, or upon the delivery of a sixty days’ note for its price with interest added and with a “ reliable indorsement or other reliable security.” .The plaintiffs declined to accept this consignment or the remaining 600 bales on any terms as to payment except those specified in the sales note. As a result of this, they received no cotton whatever under their contract with the defendants.</p> <p>After the time fixed by the contract for the delivery of the last lot of 300 bales had passed, Morris & Company brought this action to recover from Supplee & Yan Leer, the sellers, damages for failing to deliver the cotton which they had agreed to supply.</p> <p>Defendant offered to prove a trade-custom meaning to the words “ terms, cash basis, note at 60 days from date of shipment of each 100 bales, interest added; ” that such meaning is that the purchaser has the privilege of paying either in cash or by a note drawn by himself to his order, and indorsed by him, and which is the equivalent of cash. That is, that the maker’s credit is of such good character at the time the note is given that it can be taken into the market and sold and cash obtained without the indorsement of the seller; and to follow that up by showing that the credit of the plaintiffs at the time when these notes would have been given was not such that they could have been taken into the market and sold for cash.</p> <p>Objection that the words are not trade terms at all; that they are ordinary English words, and as such cannot be explained by any trade custom was sustained. [12]</p> <p>Plaintiffs offered in evidence the official sales sheet of November 30,1900, showing that the price of spot cotton middling uplands in New York on that day was ten and one fourth cents per pound and Middling Gulf, ten and one half cents per pound Objected to. Admitted in evidence. [9]</p> <p>The court charged in part as follows:</p> <p>I charge you as a matter of law, under the undisputed evidence in the case, that there has been established a breach of the defendants’ contract, and that therefore the plaintiffs have a right to recover damages. The question for your consideration is the amount of the damages which shall be awarded to the plaintiffs. The measure of the plaintiffs’ damages is the difference between the price at which it was agreed this cotton should be delivered to them, eight and a half cents per pound, and the price which, on the last days of the months of October, November and December, 1900, cotton of the kind which was to have been delivered to them was selling, upon the terms which they were entitled to expect finder this contract, in the nearest available market to the place where they were carrying on business and where this cotton was to have been delivered. [6]</p> <p>Verdict and judgment for plaintiff for $7,872. Defendant appealed.</p> <p>Errors assigned were (6) portion of charge as above, quoting it; (9, 12) rulings on evidence quoting the bill of exceptions.</p>

Appeal, No. 159, Jan. T., 1903, by defendant, from decree of C. P. No. 5, Phila. Co., Sept. T., 1902, No. 1326, dismissing bill in equity in case of Mary L. Blair v. Supreme Council American Legion of Honor. Bill in equity for restitution of death certificate for discovery and for an account. The material averments of the bill and the grounds of demurrer are stated in the opinion of the Supreme Court. The court sustained the demurrer and dismissed the bill.

Appeal, No. 185, Jan. T., 1903, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1902, No. 3505, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Peter Adams Paper Company v. Linda R. Cassard. Assumpsit against a married woman on a contract of surety-ship for her husband.

Appeal, No. 32, Jan. T., 1903, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1899, No. 654, refusing to take off nonsuit in case of A. P. Fritz v. British America Assurance Company. Assumpsit on a policy of fire insurance. Before Wilt-bank, J. The facts are stated in the opinion of the Supreme Court. Hrror assigned was order refusing to take off nonsuit.

Appeal, No. 136, Jan. T., 1903, by defendants, from judgment of C. P. No. 1, Phila. Co., June T., 1899, No. 338, on verdict for plaintiff incase of Ellwood Booth v. Michael Dorsey and Patrick S. Smith, trading as Dorsey & Smith. Trespass to recover damages for personal injuries. Before Brégy, J. At the trial it appeared that defendants were contractors for doing the brickwork in a building operation.

<p>Negligence — Wagon—Infant—Evidence—Reckless driving — Question for jury.</p> <p>Upon those who use the public highway is imposed the duty to use reasonable care, and thus if practicable to avoid accident. One who recklessly drives' upon a public highway and an accident occurs, may have imputed to him the charge of negligence. Reckless driving upon a highway is not the exercise of reasonable or ordinary care in the use of it, and is a failure to perform a duty imposed by law.</p> <p>In an action against the owner of a wagon to recover damages for personal injuries to a child four years of age, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where five witnesses testify that the wagon which ran over the child was the defendant’s wagon, and three of the witnesses state that the wagon was being driven at a very high rate of speed, that the horses were running and galloping, and that their attention was particularly drawn and attracted because the wagon was a heavy one.</p>

<p>Appeal, No. 110, Jan. T., 1908, by-defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1895, No. 582, on verdict for plaintiff, in case of Carroll R. Williams v. Philadelphia.</p> <p>Assumpsit by attorney at law for breach of contract of employment.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Defendant presented these points:</p> <p>1. Under all the evidence, your verdict should be for the defendant. Answer: Refused. [1]</p> <p>2. If you find from the evidence in the case that the plaintiff solicited authority to institute the proceedings at his own cost; that the city was then pecuniarily able to pay counsel a stipulated fee; that plaintiff was not only to act as counsel but was to supply the evidence, the latter reason being urged by him for his employment, and that there was no necessity for employing plaintiff as counsel except for the knowledge of the facts which he alone claimed to have, and by means of which it was expected to sustain the claim, the contract sued upon is ehampertous and therefore invalid, and your verdict must be for the city, defendant. Answer: Stated as this point is, I decline to affirm it. [2]</p> <p>3. If you find that the plaintiff’s agreement with the city was that he should receive ten per cent of the amount recovered from the state, and the plaintiff was not only to advance the costs, but as the main consideration of the agreement was to furnish the evidence necessary for the recovery of the money, the agreement was champertous and invalid, and your verdict must be for the city, defendant. Answer: I decline to affirm this, point upon any facts in evidence in this cause. [3]</p> <p>4. If- the jury believe that the plaintiff was unable to make the collections from the state by reason of the refusal of the city treasurer, city solicitor, or the Farmers’ and Mechánics’ National Bank to give him information without which he could not succeed in collecting said alleged overpaid taxes from the state, the city is not responsible for any loss which may have been caused thereby to the said plaintiff, and your verdict should be for the defendant. ' Answer: I decline to affirm that point. [41</p> <p>5. By his agreement with the city the plaintiff was required to furnish the information and to make the collections from the state without the active assistance of the city, or of any of its officers, and if the plaintiff’s failure to make the collection was due to the refusal of the city’s officers to aid him by furnishing information necessary to success, your verdict must he for the city, defendant. Ansiver: I decline to affirm that point.' [5]</p> <p>6. The defendant was not obliged, under the terms of the agreement with the plaintiff, to furnish information with which to prosecute the services undertaken by him. If you find, therefore, that it was impossible for the plaintiff to proceed to a successful determination of the matter without assistance from the city, he is not entitled to recover, and your verdict must be for the defendant. Answer: I decline to affirm that point. [6]</p> <p>7. If the jury 'believe that the plaintiff was not removed from his tífficé or position as assistant city solicitor, and if they further believe that he was not interfered with in the performance of his duty as assistant city solicitor by one or more of the city officials acting under eouncilmanic authority, then the defendant did not commit any breach of contract,' and is not responsible for the unauthorized acts of its officials, and your verdict should be for the defendant. Answer: I decline that point. [7]</p> <p>The court charged inter alia as follows :</p> <p>[If a man is employed to do a particular thing, and does all that he is required to do about it, the hindrance being by the other party to the contract, and there being no reason for the nonrecovery except the hindrance put in the way by the other party to the contract, then I charge you that the plaintiff, who is the party hindered in this case, if he has been hindered, would be entitled to recover. If the plaintiff, was in a position to do everything that he contracted to do, and the case was such that he could have done it, and the only reason he did not do it was because the city did not allow him to do it, then the plaintiff can recover.] [8]</p> <p>[It is undoubtedly beneath the dignity of a commonwealth or a public corporation to engage in a speculative venture. Either the state of Pennsylvania owed the city of Philadelphia or it did not. If the state of Pennsylvania owed the city of Philadelphia, the city of Philadelphia had no right morally (I will not say a word about legally, because I have not thought enough about it), it has no right as a dignified and respectable municipality to go into a partnership with anybody about its claim. If it needed counsel to prosecute, its claim against the commonwealth it ought to have made a contract honestly to pay counsel for such services, whether he would win or lose the claim, and if his services were worth $1,000 whether he won or lost it, or if they were worth $10,000, he should have it. It was a very small business on the part of the city of Philadelphia to enter into a contract with a private citizen by which some facts could be so used that the city should at all events win. However, they did it, and for the purposes of this case the contract is here. It was a speculative venture, no cure no pay, which I think according to the rules of the medical profession is considered the great badge of quackery.] [9]</p> <p>[In pursuance of that bargain Mr. Williams did recover $18,000 on one occasion and $10,000 on another (these figures are rough), and in respect of them he was entitled to $1,800 and $1,000 respectively, and got them. Then came the subject-matter under dispute. Mr. Williams began by making a statement of claim and asking the mayor to sign it, and the mayor refused. That means practically that for the purpose of the employment the mayor did all he could to dismiss him. In the course of the proceeding that Mr. Williams had already commenced that was entirely beyond the power of the mayor at that stage.] [10]</p> <p>[They would not let him go on, and the effect of that is not to deprive him of compensation at all. It is the same thing as if he had been allowed to go on. He is entitled to compensation.] [11]</p> <p>[He was entitled to a verdict at all events, but a verdict at all events means only a verdict for six Cents for a technical breach of the contract, and while that would be a vindication pro tanto of Mr. Williams, it would be of a very subordinate degree of satisfaction to him no doubt to have a verdict’ limited to six cents, especially as he desires it to amount as high as $8,400, and perhaps fifty per cent interest on that, which would be nearly $3,000 ; and, therefore, you must investigate.] [12]</p> <p>Verdict and judgment for plaintiff for $8,580. Defendant appealed.</p> <p>Errors assigned were (1-11) above instructions quoting them.</p>

<p>Easement — Right of way — Equity.</p> <p>Where each of two adjoining owners has an easement of passage over an alley, one cannot make an excavation in the alley for an areaway to obtain access to his building and to secure light and air for his basement, and the court will not only enjoin the use of such areaway, but will order it to be solidly filled up, unless it is made to appear that it can be used so as not to be a substantial interference with the right of passage.</p>

Appeal, No. 189, Jan. T., 1903, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T.. 1900, on case stated in suit of City of Philadelphia v. Clayton McMichael, City Treasurer. Case stated to determine right of city treasurer to certain commissions. Sulzberger, P. J., filed the following opinion : The defendant was city treasurer of Philadelphia for the term of three years beginning the first Monday of January, 1898.

Appeal, No. 209, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1902, No. 2395, on verdict for defendant in case of Mary Osterheldt v. Robert J. Peoples et al., trading as Peoples Brothers. Trespass to recover damages for personal injuries. Before Beitler, J. The fact are stated in the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 130, Oct, T., 1903, by plaintiff, from decree of G. P. No. 3, Allegheny Go., Feb. T., 1903, No. 19, on bill in equity in case of Mary Ann Dryden v. Pittsburg, Virginia & Charleston Railway Company. Bill in equity for an injunction. On motion for preliminary injunction, McClung, J., filed the following opinion: The defendant company was chartered by special Act of April 8, 1867, P. L. 897, under the name of .the Monongahela Valley Railroad Company.

Appeal, No. 239, Jan. T., 1903, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1901, No. 3066, on verdict for plaintiff in case of Ksawery Tomaczewski v. James Dobson. Trespass to recover damages for personal injuries. Before Willson, P. J. The circumstances of the accident are detailed in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,800. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 193, Jan. T., 1903, by defendant, from judgment of O. P. No. 2, Phila. Co., June T., 1903, No. 856, on case stated in suit of City of Philadelphia v. J. Hampton Moore. Cases stated to determine light of city treasurer to certain commissions. For the facts see Philadelphia v. McMichael, ante, p. 297. Error assigned was in entering judgment for plaintiff on the case stated.

Appeal, No. 42, Oct. T., 1903, by plaintiff, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 463, dismissing bill in equity in case of Rosanna Glaser v. Glenwood Railroad Company. 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. 109, Jan. T., 1908, by plaintiff, from order of C. P. Chester Co., April T., 1903, No. 16, quashing writ of ejectment in case of Lillie Rosenberg v. John B. Mencke, Trustee.</p> <p>Ejectment for land in the borough of West Chester, New London township and borough of Downingtown.</p> <p>Rule to quash writ of ejectment.</p> <p>The grounds for the rule were as follows :</p> <p>“ 1. The records of the court, of which the court will take judicial notice, show that the writ claims the recovery of the same lands for which verdict of the court was rendered in the case of John B. Mencke, trustee in bankruptcy of, Emanuel Rosenberg, v. Lillie Rosenberg, No. 62, January term, 1901, in favor of the said John B. Mencke, trustee, at April term, 1902, judgment entered thereon July 15,1902, in Judgment Docket E 3, page 290, from which the present plaintiff appealed to the Supreme Court, August 5, 1902, and suffered a final judgment of non pros, thereon, February 9, 1903.</p> <p>“ 2. The Act of May 8, 1901, P. L. 142, provides that such verdict and judgment shall be final and conclusive, and bar the writ.</p> <p>“ 3. The records of the court below show that said action * and recovery of judgment in No. 62, January term, 1901, was upon an equitable title and a substitute for a bill in equity between the same parties in said court, which would be a bar to further actions in ejectment between them for the same property, notwithstanding the said act of May 8, 1901.”</p> <p>The parties agreed, inter alia, upon the following facts :</p> <p>“ That John B. Mencke became trustee of Emanuel Rosenberg under voluntary proceedings in bankruptcy under the United States bankrupt act, in which proceedings Emanuel Rosenberg was adjudicated a bankrupt on November 24, 1899, and at the time of his appointment as trustee, January 9, 1900, Lillie Rosenberg had received a sheriff’s deed, dated November 2, 1899, for the premises in dispute.</p> <p>“ Upon the trial of the action of ejectment above men-, tioned, Mencke, as trustee, alleged, and the jury found, that the money with which Lillie Rosenberg had purchased the judgment then existing against her husband, and upon which the real estate was sold, was not her money, and that at the time of the assignment of the judgment to Lillie Rosenberg, her husband was insolvent.”</p> <p>The court made absolute the rule to quash the writ.</p> <p>Error assigned was the order of the court.</p>

<p>Partnership — Real estate — Tenants in common — Deed—Record title.</p> <p>It is not competent to show by parol that a deed to two persons as tenants in common was for land purchased and paid for by them as partners, and is partnership property. Purchasers and creditors may rely upon the title as shown by the record..</p> <p>Creditors of a partnership composed of individuals who hold land as tenants in common, cannot enforce payment of their claims out of the land as against the individual creditors of the partners. The latter are entitled to have their claims first satisfied out of the proceeds of the property.</p> <p>A judgment creditor who has sold the interest of his debtor in a partnership for an amount insufficient to satisfy the judgment, may afterwards, in order to satisfy the balance, take his debtor’s share of the proceeds of real estate held by the debtor and the debtor’s partner as tenants in common, as against the purchaser of the partnership interest.</p>

Appeal, No. 142, Jan. T., 1903, by the Pennsylvania Company for Insurance on Lives and Granting Annuities, from decree of O. C. Delaware Co., on exceptions to auditor’s report in estate of Eliza Penn-Gaskell, deceased. Exceptions to report of Frank B. Rhodes, Esq., auditor. The opinion of the Supreme Court states the facts. Errors assigned were in dismissing certain exceptions to the auditor’s report and in sustaining others.

Appeal, No. 184, Jan. T., 1904, by-Peter Penn-Gaskell Hall, from decree of O. C. Delaware Co., dismissing exceptions to auditor’s report in estate of Eliza PennGaskell, deceased. Exceptions to report of Frank B. Rhodes, Esq., auditor. The opinion of the Supreme Court states the case. Error assigned was in dismissing exception to auditor’s report.

<p>Ejectment — Conclusiveness of judgment — Equitable title — Equitable owner in possession — Specific performance.</p> <p>Where a son holds a complete equitable title to land under a contract with his deceased father, and is in actual possession and occupancy of the land, he must in an action of ejectment brought against him by the devisees of his father, set up his equitable title, and if he fails to do so, he cannot subsequently proceed in the orphans’ court against his father's estate for the specific performance of the contract to sell the land.</p> <p>When the plaintiff in an ejectment, has the legal, and the defendant the equitable, title, a verdict for the plaintiff not only sustains his legal title, but determines the invalidity of the defendant’s equitable title. In such a suit the plaintiff seeks to enforce his legal title by means of the common-law action, and the defendant, under our-mixed system of jurisprudence, is permitted to enforce his equitable title as a defense through the same action which as to him as the actor is treated as a bill for specific performance. Both titles are necessarily involved in the action and the validity of both is determined by the verdict and judgment.</p>

Appeal, No. 298, Jan. T., 1903, by defendant, from judgment of C. P. Bucks Co., Sept. T., 1908, No. 19, on verdict for plaintiff in case of Joseph T. Fenton, Trustee, v. John C. Fenton, Mortgagor, and Theodore Cornell, Owner. Scire facias sur mortgage. Before Yebkes, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for 13,643.33. Defendant appealed.

<p>Appeal, No. 146, Jan. T., 1903, by-plaintiff, from judgment of C. P. Schuylkill Co., July T., 1898, No. 354, on verdict for plaintiff in case of Elias Bachert v. The Lehigh Coal and Navigation Company.</p> <p>Trespass to recover damages for injuries caused by deposit of mine refuse. Before Marr, J.</p> <p>At the trial it appeared that the plaintiff owned a farm.and a mill situated on Little Schuylkill river, and that the property as a whole had been injured by the deposit of mine refuse in the river and mill dam, and on the land. There was evidence that there were other collieries besides those operated by the defendant from which the refuse came. Certain of the collieries were owned by the defendant but leased to other parties.</p> <p>Plaintiff presented this point:</p> <p>6. Under the terms of the lease to the Beddalls and Gerber, the defendant reserves the authority to direct the lessees in regard to disposing the slate, dirt and refuse from the breaker and mines, and the defendant is bound to answer to the plaintiff in damages for any injury that has resulted to him by reason of the negligent acts of said lessees in placing culm or muck or either into Panther creek or in such close proximity thereto that the same has been washed into it by ordinary rains and carried down upon the plaintiff’s land. Answer: This point is refused, unless the jury finds under the evidence that the alleged acts of Beddall and Gerber were done in pursuance of the authority or command of the defendant company, but the mere relation of landlord will not make the lessor liable for the tortious or negligent acts of its tenants, the lessee. [1]</p> <p>Defendant presented these points :</p> <p>2. The defendant is only chargeable for its own acts and not for those of its predecessors in title to the land or its tenants. Answer: This point is affirmed, unless it is shown that these alleged acts are or have been committed under the authority or command of the defendant. [2]</p> <p>5. The rule for the computation of damages in trespass cases for permanent injuries to land of the kind in suit, is the cost of removing the culm or coal dirt, unless the expense of removal exceeds the value of the entire property, in which case the value of the entire property is the limit of the measure of damages, and in no event can there be a recovery in excess of the value of the entire property for the permanent injury. Therefore, there being no evidence in the case that the cost of removing the culm or coal dirt from plaintiff’s land, mill dams and race would exceed the value of the entire property, the cost of such removal must be the measure of plaintiff’s damages. Answer: The point is affirmed. [8]</p> <p>8. Under the uncontradicted evidence in the case the plaintiff’s mill was running up to the time of trial with power furnished from water from his dam and race, and there is no evidence in the case that the mill was ever stopped because of want of water. Answer: The evidence shows that the mill was running up to the time of trial, with power furnished from his dam and water, but we decline to say that the mill was never stopped because of want of water. [4]</p> <p>The court charged in part as follows :</p> <p>[Jurors in the trial of cases of this kind are apt to allow their feelings of sympathy on one side, or their feelings, possibly, of prejudice upon the other, to induce them to render verdicts which the law does not consider proper, because those verdicts are frequently contrary to the law and contrary to the evidence in the ease; therefore verdicts rendered in, that way come to naught. They have to be set aside by this court. Or, by an act of assembly now, a higher court can reduce the verdicts where they are improper and not according to the evidence.</p> <p>The court of last resort has said in discussing these cases that the trial judge (myself in this case would be the trial judge) sits in some respects as a thirteenth juror, and it is his duty to see that the verdict rendered by a jury should be in accordance with the law and in accordance with the weight of evidence in the case, and not contrary to both or either. In a very recent case the Supreme Court has used this language in discussing a question of that kind. “ It is the clear duty of the court in peremptory language to hold the jury down to lawful damages, and if they disregard the instructions of the court, to set aside their verdict.”</p> <p>You see what my duty is unless you in reaching a verdict are governed by the evidence and by the law. If the court, the trial judge, in its instruction as to the law, makes a mistake or an error in its view of the law, there is a remedy. Either side can appeal to the higher court, and whatever error the trial judge has been guilty of can be corrected by the Superior Court, or the Supreme Court of this commonwealth, reversing the court below. You are the judges of the fact under the law. And if you render a verdict contrary to the weight of evidence and contrary to the law, under the peremptory instructions which the Supreme Court has laid down to us, it becomes my duty to set aside your verdict. Well, neither you nor the court want such a conclusion of a trial which has occupied now eight days. Therefore, knowing the tendency of jurors to allow their sympathies and their feelings to sway them in- rendering verdicts, I have thought proper to draw your attention to your duty under the evidence, and to our duty if you disregard your duty as we have been told it is our duty to do, by our courts of last resort.] [5]</p> <p>[The Supreme Court of this state has said: “ There is no doubt that the owner of coal lands may mine and remove his coal in a proper manner. If the drainage from the mines falls into and pollutes a stream of water, and injuriously affects lower riparian owners, this fact alone does not impose liability upon the owner of the coal.” Bear that in mind, that if the drainage of the mines falls into and pollutes a stream of water, and injuriously affects lower riparian owners, in this case the plaintiff was a lower riparian owner, owning a property below where the Panther creek emptied into the Little Schuylkill river, that this fact alone does not impose liability upon the owner of the colliery.] [6]</p> <p>[It is apparent to all of us that the mining operations of Schuylkill county are important not only to the owners of the collieries, but to all who live in this county; that if you were to shut up the mines of the county and stop mining operations, it might work a great deal of injury to most all other persons, or all other property, situated within the county. The great industry of the northern part of the county is its mining operations, and, practically speaking, without those mining operations in the upper end of the county a great deal of that territory would be useless, possibly almost uninhabitable. Therefore when you come to pass upon the negligence of the defendant, and upon the rights of the plaintiff, it is your duty to bear in mind that the defendant company has a legal right to mine its coal upon its own land. The very fact of there being collieries in this county is an important thing to the people who live in those neighborhoods. It is right for you to take that into consideration with the evidence in the case.] [7]</p> <p>[That'washeries caused most of the pollution of the stream.] [8]</p> <p>Verdict and judgment for plaintiff for $8,020. Plaintiff appealed.</p> <p>Errors assigned were (1-8) above instructions, quoting them; (5-16) rulings on evidence in various matters.</p>

Appeal, No. 147, Jan. T., 1903, by defendant, from order of C. P. Lebanon Co., Sept. T., 1902, No. 417, making absolute rule for judgment for want a sufficient affidavit of defense in case of D. B. Long v. F. B. Long. Rule for judgment for want of a sufficient affidavit of defense. The material averments of the affidavit of defense are stated in the opinion of the Supreme Court.

Appeal, No. 117, Jan. T., 1908, by-defendant, from order of C. P. Lackawanna Co., May T., 1896, No. 193, dismissing exceptions to referee’s report in case of A. E. Betterly v. City of Scranton. Trespass to recover damages for injuries caused by the break of a sewer. The opinion of the Supreme Court states the case. Error assigned was in dismissing exceptions to referee’s report.

Appeal, No. 277, Jan. T., 1903, by plaintiff, from order of C. P. Delaware Co., Dee. T., 1903, No. 47, refusing to take off no.nsuit in case of Thomas J. Can-field v. Baltimore & Ohio Railroad Company. Trespass for personal injuries. Before Savidge, P. J., specially presiding. The circumstances of the accident are stated in the opinion of the Supreme Court. Error assigned was order refusing to take off nonsuit.

<p>Appeal, No. 276, Jan. T., 1903, by plaintiff, from order of C. P. Delaware Co., Dec. T., 1903, No. 47, refusing to take off nonsuit in case of Thomas J. Can-field and Bridget Canfield, his Wife, v. The Baltimore & Ohio Railroad Company.</p>

<p>Appeal, No. 47, Jan. T., 1903, by defendant, from judgment of C. P. Schuylkill Co., July T., 1901, No. 27, on verdict for plaintiff, in case of James E. Mitchell, trading as James E. Mitchell & Company, v. E. H. Baker.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,758.21. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Equity — Specific performance — Sale—Stock of corporation.</p> <p>A court of equity will not decree specific performance of a contract to sell stock of a corporation where the complainant has delayed for over three years to enforce her rights, with no explanation of the cause of the delay, and the stock in the meantime has more than quadrupled in value. In such a case the complainant’s remedy, if she has any, is at law.</p>

<p>Appeal, No. 229, Jan. T., 1903, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1901, No. 968, on verdict for plaintiff in case of the Dime Deposit and Discount Bank of Scranton v. City of Scranton.</p> <p>Assumpsit on bonds.</p> <p>Exceptions to report of C. B. Little, Esq., referee.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in dismissing exceptions to referee’s report.</p>

<p>Pleading — Statement of claim — Demurrer—Parties.</p> <p>Where in an action of trespass the plaintiff charges the defendants with negligence, (1) as individuals, (2) as executors, and (3) jointly as individuals and executors, but in his statement of claim does not set forth facts with sufficient certainty to inform defendants whether they are charged with negligence as individuals, or as executors, or jointly as executors and individuals, a demurrer to the statement will be sustained.</p>

Appeal, No. 228, Jan. T., 1903, by defendants, from order of C. P. No. 1, Phila. Co., March T., 1900, No. 887, discharging rule to dismiss for want of jurisdiction in case of James E. Price, Jr., trading as the the Acme Coal Company, v. Davis Coal & Coke Company. Assumpsit for breach of contract to deliver coal. Defendant filed the following affidavit of defense : Fred.

<p>Appeal, No. 168, Jan. T., 1908, by defendant, from order of C. P. Delaware Co., Dee. T., 1900, No. 6, dismissing exceptions to adjudication in case of Joseph L. Carpenter, Jr., v. Yeadon Borough etal.</p> <p>Mandamus to compel publication of an ordinance.</p> <p>Exceptions to adjudication.</p> <p>The case was tried by the court without a jury under the provisions of the act of April 22, 1874.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication and in entering judgment for plaintiff.</p>

<p>Negligence — Electric light company — Degree of care.</p> <p>A corporation which uses electricity of high voltage for lighting purposes is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid an injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them.</p> <p>An electric light company is responsible for an injury where it negligently permits its wire to come in contact with the wire of another, which transmits the current, and thereby causes an accident.</p> <p>In an action against an electric light company to recover damages for injuries to a boy ten years old, it appeared that the boy was injured by coming in contact with the end of a broken wire while at play. The evidence showed that the accident occurred on a lawn to’.which there was access from a public street by a driveway, and that the only obstruction to the entrance of the driveway was a chain hanging between posts. It was customary for the boys of the neighborhood about the time of the accident, and when the house on the property was not occupied, to play on the lawn, and at times the owner permitted the boys to enter to get apples. The fact that boys played on the lawn was known to the defendant. Sometime prior to the accident a tenant of the property at his own expense had the defendant introduce electric light into the house by running a wire from its line at the gateway across the lawn to the building. When the tenant removed from the house the company cut off the electric connection by talcing out the fuses at the transformer beneath the eaves of the house. The wire continued in connection with the feeder line at the street. At the time of the accident it hung a few feet from the driveway, and not far from the entrance. It extended to a point within twelve or eighteen inches of the ground, and was of sufficient length to swing to the driveway. The boy while at play came in contact with the end of the wire. Held, (1) that the company was not relieved from liability to the boy by reason of the fact that it was not the owner of the wire; (2) that the company was not relieved from liability on the theory that the boy was a trespasser on the lawn at the time of the accident; (3) that the use of the wire by the company was sufficient to warrant an averment in the statement of claim that “it negligently conducted its said business and operated and controlled its wires;” (4) that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 226, Jan. T., 1908, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1901, No. 106, on verdict for plaintiff in case of John L. Daltry v. Media Electric Light, Heat & Power Company.</p>

Appeal, No. 39, Jan. T., 1904, by plaintiff, from order of C. P. Berks Co., March T., 1903,. No. 49, refusing to take off nonsuit in case of George Mease y. United Traction Company. Trespass to recover damages for personal injuries. Before Endlich, J. The circumstances of the accident are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

<p>Appeal, No. 236, Jan. T., 1904, by defendant, from judgment of C. P. Berks Co., Jan.-T., 1900, No. 33, on verdict for plaintiff in case of A. K. Stauffer v. City of Reading.</p> <p>Appeal from award of jury of view.</p> <p>Rule for new trial.</p> <p>Enough, J., filed the following opinion:</p> <p>The rule for a new trial having been reinstated by the decision of the Supreme Court of J uly 9,1903, it comes before the court for disposition on the ground originally urged in support of it, viz., the alleged excessiveness of the verdict. When it was here before, the court was of the opinion that the damages allowed are high.' It is of the same opinion still. But now as then, it is confronted with the difficulty that the evidence affords no safe measure of reduction in dollars and cents. The way out of this difficulty attempted in the former decision has been-adjudged inadmissible because beyond the discretion of the court in imposing terms as a condition for the refusal of a new trial. In these circumstances it is not apparent that the verdict can legitimately be disturbed. It is, of course, true that “ the trial judge is, in an important sense, the thirteenth juror, and when the amount of the verdict shows that it must have been arrived at by the adoption of an erroneous measure of damages or a mistake in computation, he should not hesitate to set aside: ” Robb v. Carnegie, 145 Pa. 324, 345. But in order to satisfy him that such error must have occurred, the verdict should not merely appear liberal; it should have that in it which, by its manifest disproportionateness, appears shocking or outrageous. See Roberts v. Swift, 1 Yeates, 209, Sommer v. Wilt, 4 S. & R. 19, and Dennis v. Barber, 6 S. & R. 420. The application of this rule necessarily implies the existence in the evidence of some definite measure whereby to ascertain the proportionateness or disproportionateness of the verdict. It is that that is lacking here, and that is often found lacking, where, as in this case, the testimony consists of widely divergent estimates of value and damages by witnesses ivhose examination discloses no common ground upon which any number of them can be classified as standing. The estimates of the difference in market value of this plaintiff’s property run all the way from $15,000 depreciation to $4,000 appreciation. The elements of damage and benefit, respectively, relied on by several witnesses are as diverse as their estimates. There is nothing which seems to be agreed upon by any considerable proportion of them, and which for that reason might be laid hold of by the court as a criterion established by the weight of the evidence in declaring that such and such a sum would be a proper allowance, and thus judging of the proportionateness or disproportionateness of the verdict and of the amount in dollars and cents by which it ought to be reduced in order to stand. Before setting aside a verdict in a case like this, where plaintiff is clearly entitled to recover, it is but fair to give him an opportunity of accepting a reduction of it; and where there is nothing in the evidence whereby to determine the proper extent of a reduction, — where the naming of any figure would be simply an arbitrary act of the court, — and where the jury has viewed the premises, — and where its verdict is not so enormous as to be shocking, — the court, being restricted to a pecuniary reduction as the only possible modification of the verdict, will go safest in refusing to disturb it.</p> <p>The rule to show cause is discharged.</p> <p>Error assigned was order discharging rule for new trial.</p>

<p>Appeal, No. 29, Jan. T., 1904, by plaintiff, from order of C. P. Montour Co., Sept. T., 1902, No. 58, refusing to take off nonsuit in case of Sarah C. Cromley v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband and son. Before Little, P. J.</p> <p>The circumstances of the accident are detailed in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Bond — -Building contract — Scope of bond — Damages.</p> <p>Where an owner of land enters into an agreement in writing to erect certain buildings and make certain street improvements on the land, in consideration of a loan of money to be secured by a mortgage on the land, and the owner gives to the mortgagee a bond with a trust company as surety by which the latter agrees to hold the mortgagee harmless on account of any deficiency in his mortgage security resulting from failure by the owner to complete the contract, the trust company cannot be held liable in damages on its bond, by reason of the failure of the owner to complete certain street improvements, where there is no evidence to show that the mortgagee suffered any actual loss or damage from the failure of the owner to complete the work. The mere fact that the mortgagee bought in the property at sheriff’s sale for a sum less than the amount of the mortgage debt is not conclusive evidence of loss.</p> <p>In the'above case the distinction between the two agreements is simply that between an affirmative covenant for a specific thing, and one of indemnity against damage by reason of the nonperformance of the thing specified. The object of both agreements may have been substantially the same, in that both were intended to save the plaintiff from loss, but the legal effect of the two agreements is essentially different.</p>

<p>Corporations — Electric light company — Township—District.</p> <p>An electric light company may be incorporated for a township. The word “ district ” in the second section of the Act of May 8, 1889, P. L. 136, is not to be restricted merely to a division of a city or borough.</p> <p>Corporations — Electric light companies — Power of eminent domain.</p> <p>Under the Act of May 8, 1889, P. L. 136, an electric light company has, from the express terms of the act, a limited power of eminent domain, and under such power may enter upon the bed of a turnpike road, and erect its poles and string its wires, notwithstanding the objection of abutting owners who own the fee in the bed of the road.</p> <p>Mesteezat, J., dissents.</p>

<p>Corporations — Electric light companies — Eminent domain — Turnpike road —Bond.'</p> <p>An electric light company has the power to occupy the roadbed of a turnpike with its poles and wires upon filing its bond to secure abutting owners from loss.</p>

<p>Appeal, No. 256, Jan. T., 1903, by defendants, from decree of C. P. Delaware Company, March T., 1903, No. 217, on bill in equity in case of Radnor Township Electric Light Company v. Martha Morris Brown and Mary J. B. Chew.</p>

<p>Appeal, No. 261, Jan. T., 1908, by plaintiff, from order of C. P. Delaware Co., Dec. T., 1902, No. 80, refusing to take off nonsuit in case of George W. Smith v. Crum Lynne Iron and Steel Company.</p> <p>Assumpsit for breach of contract of employment. Before Savidge, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>A nonsuit was entered chiefly on the ground that the superintendent had no authority to make the contract alleged in plaintiff’s statement.</p> <p>Error assigned was the order of the court refusing to take off nonsuit.</p>

<p>Mortgage — Contract—Payment—Evidence.</p> <p>On. a scire facias sur mortgage it appeared that the mortgagor, the owner of coal land, entered into an agreement in writing to borrow from the mortgagee a large sum of money to enable the mortgagor to develop his coal and prepare it for delivery to the mortgagee who was to purchase it. It was provided in the agreement that the money so loaned should be repaid “until the whole and entire amount of the money so as aforesaid loaned together with the interest thereon shall have been fully paid.” The bond and mortgage also provided that the money should be repaid. The bond provided that the money was “ to be repaid at the rate of fifteen cents for each ton of coal delivered to the obligee, its successors or assigns at and when the payments are agreed to be made for coal delivered until the whole sum advanced shall be fully repaid to the obligee by the obligor together with interest as aforesaid.” Before the loan was repaid from the fifteen cents for each ton of coal delivered to the mortgagee, the merchantable coal became exhausted. Held,, that the mortgagee was entitled to have the balance of the loan paid in cash.</p> <p>Corporations — Foreign corporations — Doing business — Mortgage.</p> <p>A corporation chartered in another state for the purpose of constructing railroads and of mining and transporting coal and other minerals may' maintain a scire facias sur mortgage in this state, although the land covered by the mortgage was coal land, and the money was a loan to the mortgagor for the purpose of developing the coal and selling it to the mortgagee. In such a ease the foreign corporation is not doing business within the meaning of the foreign corporations registration act of April 22, 1874.</p>

<p>Appeal, No. 27, Jan. T., 1904, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1899, No. 459, on verdict for defendant in case of JohnF. Fowler v. Meadow Brook Water Company.</p> <p>Trespass to recover the value of tools alleged to have been converted to defendant’s use. Before Carpenter, J.</p> <p>At the trial it appeared that John F. Fowler, plaintiff, and John T. Williams as partners had a contract with the defendant, the Meadow Brook Water Company, to construct a tunnel. In this work they used a large quantity of tools. Williams, desiring to be released from the contract, entered into an agreement with the defendant by which he turned over to the defendant the tools in consideration of release from the contract and bond. Williams took the paper to Fowler who signed it. Fowler claimed that his signature was procured when he was in the state of intoxication. There was no evidence, however, of fraud or duress. It did not appear that Fowler made any prompt effort to rescind the agreement, or to surrender the release, or carry out the original contract. Plaintiff presented these points :</p> <p>' 1. That one who was so far intoxicated that he did not know what he was doing at the time when he signed a paper, and was not able to comprehend the nature and effect thereof, the fact that he did sign such a paper while in such a condition does not make it binding upon him; and if the jury find in this case that the time Mr. Fowler signed the agreement of December 1, 1898, he was intoxicated to a degree that he did not know what he was doing, and was not able to comprehend the nature and effect of the paper he signed, if the jury find he did not sign it, then such a paper will not be a bar to his recovery in this case. Answer: This point is refused. [1]</p> <p>2. That even if the jury should find that Williams & Fowler would have lost money by the continuance of this contract, and also that the Meadow Brook Water Company lost money by reason of having to get some one else to complete it, yet if the jury should find that Mr. Fowler was the one half owner of the goods in suit; that the defendant company converted these goods to its own use ; that the paper of December 1,1898, is not a valid paper so far as Fowler is concerned, then Fowler is entitled to a verdict for the fair market value of his interest in the property converted by the defendant, with interest from the date of the conversion. Answer : This is affirmed with the suggestion, however, that whether the paper of December 1, 1898, was a valid paper or not, must be understood to mean whether it was fraudulent and oppressive, and not to depend upon the intoxication of the plaintiff. [2]</p> <p>The court charged in part as follows:</p> <p>[We thought and still think that the plaintiff was entitled to have this evidence submitted to you in view of the fact that he had testified that he did not sign the paper of December 1, 1898, of which there is positive evidence, from which, if you believe it, you can find that he did sign it. For that purpose and to that extent the evidence of the plaintiff’s intoxication is submitted to you. The effect of that, evidence upon the validity of the paper of December 1 is primarily for the court, and as we have already said, while the precise question is somewhat barren of authorities, we are of opinion, and say to you as a matter of law, that this paper executed as it was under the circumstances which have been detailed to you, is not nullified or made invalid by the intoxication of the plaintiff, even admitting for that purpose the most that could be found here by the evidence on that subject, unless you should find that fraud or undue influence was practiced upon him, or that the defendant knew, or by some tiling appearing in the transaction ought to have known of the plaintiff’s condition at the time, or unless the transaction was manifestly unfair and oppressive.] [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2, 5) above instructions, quoting them.</p>

<p>Evidence — Parol evidence — Contradiction of written instrument — Car shortage — Contract—Sale.</p> <p>In an action for coke sold and delivered, the defendant set up a counterclaim for damages for nondelivery. The contract was in the form of a sales memorandum, as follows : "We have sold you for your account of ourselves four to six cars daily ‘ Austen ’ furnace coke, from now until April 1, 1900. It is understood that this covers the entire output of furnace coke from these ' Austen ’ ovens. Price $3.20 per net ton, delivered at your furnaces as named. Contracts subject to strikes, accidents or other causes.” The defendant offered to show by parol certain negotia/tions prior to the date of the sales memorandum, by which a greater quantity of coke had been sold, and at less price than named in the contract. Plaintiff offered evidence which tended to show that the failure of deliveries of which defendant complained was due to a shortage of the only kind of cars which could be used to reach defendant’s plant. Held, (1) that parol evidence was inadmissible to contradict the plain terms of the written instrument; (2) that the words “ or other causes/’ related to shortage of cars, and that such shortage was a legal excuse for nondelivery.</p> <p>Practice — Pleadings—Assumpsit—Irregular practice.</p> <p>The record of an action of assumpsit which showed the filing of an answer, a replication, an amended answer, an amended replication and rejoinder, that the plaintiff’s cause of action was stated in the amended replication, and that no plea was filed, betrays a total disregard of the statute regulating the practice in assumpsit in this state.</p>

<p>Appeal, No. 62, Jan. T., 1903, by plaintiff, from order of C. P. Schuylkill Co., Sept. T., 1902, No. 6, sustaining motion to quash mechanic’s lien in case of C. H. Knelly v. John Horwath and Annie Horwath.</p> <p>Motion to quash mechanic’s lien.</p> <p>Marr, J., filed an opinion which was in part as follows :</p> <p>[The contract, a copy of which is annexed and made part of the lien, in part, reads as follows : “ Witnesseth: The contractor covenants and ag’rees to erect for the said John and Anna Horwath on their lot of ground, situate in the borough of McAdoo, Penna., in a good and substantial and workmanlike manner, with good material and according to the plans and specifications, which shall be a part of this contract, a new two story hotel building with one story dance room attached. Hotel part to have a cellar, as per specifications. . . . Whole roof of hotel, ball room and water closet and dressing room to have tin roof, same to be as called for in specifications and shown on plans, both of which are a part of the agreement. Excavate cellar and build wall as shown on plans and specifications. All exterior and interior wood-work of building to have two coats of best white lead and pure linseed oil paint, as called for in specifications, which is con- • sidered as part of the agreement.”</p> <p>By the foregoing extracts from the referred to agreement, it is manifest that the parties to same considered the plans and specifications as a part of their agreement or contract, and yet the claimant has filed neither the specifications nor plan, or copies of same, with the lien as filed.] [1] An additional agreement was entered into October 23, 1901, by the parties for the erection of an additional length to the hall, contracted for in the first agreement, which provides that the additional length shall be built and finished with material and work of the kind as called for in the first contract. Nowhere does the kind of material or the character of the labor appear in the lien filed or in the copies of the contracts .or in the bill of particulars annexed. The fifth and sixth clauses say that the kind and character of labor and materials furnished, or both, are set forth and particularly described in a bill of particulars hereto annexed and made part hereof. A reference to the bill of particulars shows an itemized bill of materials furnished and labor performed, many of which articles, therein mentioned, are not the subject of a lien and then ends with the following items: “ March 29, new building, per contract $3,300 addition of 20 ft. per contract. $570.” From what appears, neither in the copies of the contracts filed nor in the bill of particulars annexed, can any information, as to the kind and character of the material furnished or to be furnished or the labor to be performed, be gained. [It is evident that information on the referred to subjects can only be gained from the specifications, which specifications are made a part of the contract by the contract itself and the failure to annex a copy of the specifications to the lien as filed seems fatal to its validity.] [2]</p> <p>********</p> <p>In the present case the first agreement several times refers to the plans and specifications as a part of the contract. The second agreement refers to the first agreement, for the kind of labor and material furnished, and yet it, the first agreement, is entirely silent upon these subjects, except as furnished by the plans and specifications, which are made a part of the contract, but are not filed with it. The lien filed, in its fifth and sixth clauses, as before said, refers to a bill of particulars annexed for information as to the kind and character of labor done and materials furnished. A reference to the bill of particulars shows that it is perfectly silent upon these subjects but refers to the contracts for information. To annex a copy' of the plans and specifications to the contract when filed, may make the lien lengthy and burdensome to file, but we cannot hold this as a valid reason for failing to comply with the statutory requisites. [The contracts make the plans and specifications a part of them and therefore they should have been filed with the contracts as a part of them.] [8] Nor does a bill of extras aid the lien. They do not seem to be embraced in the contract or furnished in pursuance of same. Many of the items are not subjects of the lien. For instance benches, screen frames, pictures, moldings, repairing old bar and beer stands and similar items. These items are all separate and independent items, and are in no way connected with the original contracts and can not aid the lien.</p> <p>Errors assigned were (1-8) portions of the opinion of the court below, quoting them; (4) quashing the lien and directing it to be stricken from the records.</p>

<p>Negligence — Municipalities—Highway—Electric wire — Death.</p> <p>A municipality may not with impunity leave a highly dangerous and insidious obstruction, such as a heavily charged and exposed electric wire, on any part of a public highway or so near it that a traveler, accidentally or intentionally deviating a few feet from the beaten track, may encounter it to the risk of his life.</p> <p>Where a person is killed by a heavily charged and exposed electric wire used by the police department of a city, the city is not relieved from liability by the fact that the accident occurred on the side of a road of which sixteen feet was macadamized in the middle, and that if deceased had kept to the macadamized portion of the road he would not have lost his life.</p> <p>Negligence — Damages—Death—Carlisle tables — Husband and wife.</p> <p>In an action by a wife to recover damages for the death of her husband, the Carlisle tables are admissible as evidence of the expectation of life of the husband, but cannot be used to show the plaintiff’s own expectation of life.</p>

Appeal, No. 278, Jan. T., 1908, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1902, No. 2292, on verdict for plaintiff in case of Elizabeth McQuale v. North American Smelting Company. Replevin for metal piales. Before Davis, J. . At the trial it appeared that plaintiffs had been tenants of the property 912 and 914 Race street, Philadelphia. They discontinued their tenancy in 1897, but continued to keep stored in the cellar certain metal plates.

<p>Appeal, No. 152, Jan. T., 1903, by the Importers’ and Traders’ National Bank of New. York, from order of C. P. No. 3, Phila. Co., June T., 1887, No. 796, dismissing exceptions to auditor’s report in In re Assigned Estate of Robert Hare Powel & Company and Robert Hare Powel’s Sons & Company.</p> <p>Exceptions to report of Hampton L. Carson, Esq., auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

Appeal, No. 246, Jan. T., 1903, by plaintiff, from judgment of C. P. No, 2, Philadelphia County, June T., 1901, on verdict for defendant in case of Erie & Pittsburg Railroad Company v. Pennsylvania Railroad Company. Assumpsit to recover taxes paid. Before Sulzberger, P. J. The court, gave binding instructions for defendant. Verdict and judgment for defendant. On a rule for a new trial Wiltbank, J., filed tbe following opinion: We think the direction in the case was correct.

Appeal, No. 113, Jan. T., 1904, by Charles H. Quigley, from decree of O. C. Phila. Co., Jan. T., 1898, No. 169, refusing an issue devisavit vel non in estate of Emma E. T. Rockhill, deceased. Appeal from register of wills. The opinion of the Supreme Court states the case. Error assigned was in refusing an issue devisavit vel non.

<p>Mechanic’s lien — Sidewalks—Different blocks — Evidence—Arbitration— Referee’s findings of fact.</p> <p>On an amicable scire facias sur mechanic's lien a referee found that the several liens were upon three different blocks of houses separated by public streets; that the only item of the materials for which the liens were filed, furnished within the six months was furnished indiscriminately to the three blocks, or if to any one of them separately, it was not shown which; that the said item consisted of cement, which was used partly or wholly in the construction of sidewalks, and that the claims were not sufficiently proved. The referee’s report finding against the liens was confirmed by the court below. Held, that the judgment should be affirmed.</p>

Appeal, No. 90, Jan. T., 1908, by-defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1901, No. 224, on verdict for plaintiff in case of Charles. H. Graham v. John E. Cummings. Assumpsit commenced by attachment under act of March IT, 1869. Before Davis, J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 68, Jan. T., 1902, by plaintiff, from judgment of Superior Ct., Oct. T., 1901, No. 144, affirming judgment of C. P. No. 3, Phila. Co., Dec. T., 1899, No. 661, on verdict for plaintiff, in case of Carrie Jacobs v. Central Railroad Company of New Jersey. Mitchell, C. J., Dean, Brown, Mestrezat, Potter and Thompson, JJ.</p> <p>Appeal from Superior Court. See 19 Pa. Superior Ct. 13.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in affirming the judgment of the Superior Court.</p>

Appeal, No. 94, Oct. T., 1903, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1902, No. 620, dismissing bill in equity, in case of E. R. Sullivan and Jennie P. A. Sullivan, his wife, v. Jones & Laughlin Steel Company. Bill in equity for an injunction. Before Frazer, P. J. The facts appear by the opinion of'the Supreme Court. Error assigned was decree dismissing the bill.

<p>Evidence — Presumption of payment — Turnpike companies — Eminent domain — Damages .for land taken.</p> <p>In an equitable ejectment brought against a turnpike company to compel the payment of damages for land taken by it under its right of eminent domain, if the action is not instituted until more than twenty years have elapsed from the time the land was taken, the burden is upon the plaintiff to affirmatively prove that the damages were not paid. After such lapse of time there is a presumption that they were paid, which the plaintiff must overcome.</p>

<p>Appeal, No. 181, Jan. T., 1903, by defendants, from order of C. P. No. 4, Phila. Co., March T., 1902, No. 1515, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Frankfort Marine, Accident and Plate Glass Insurance Company v. Charles H. Witty and Gustav Rumpf, trading as Charles H. Witty & Co.</p> <p>Appeal from judgment for want of a sufficient affidavit of defense.</p> <p>From the record it appeared that the plaintiff had insured the defendants against legal liability for negligence in their bleaching mill. The limit of the policy was $5,000. Subsequently an employee sued the defendants for the loss of his right arm, and recovered a verdict against them for $9,000. The day after this verdict was rendered an agent of the plaintiff and the defendants met and discussed the matter, and the following correspondence resulted:</p> <p>“ Philadelphia, Pa., January 11th, 1902.</p> <p>“ Messrs. Charles H. Witty & Company,</p> <p>“ Gentlemen: A verdict of nine thousand ($9,000) dollars having been rendered yesterday in favor of John DeBleyker, Jr., against your firm in court of common pleas No. 5, for a personal injury, and we having under our policy assumed of the verdict the sum of five thousand ($5,000) dollars, and it being thought advisable for the benefit of us both that a motion for a new trial, for reduction of verdict and if necessary an appeal to the Supreme Court should be made, and it being possible that at some stage a settlement would be judicious, we have to-day talked the matter over with you and reached the following conclusion:</p> <p>“ The case to be litigated by us or compromised with the consent of your firm, and upon the conclusion of the litigation in either manner the total amount, including the costs and expenses of conducting the litigation, which must be paid either by way of compromise or in satisfaction of a judgment, shall be paid by us and yourselves in the following proportions: The Frankfort Marine, Accident and Plate Glass Insurance Company to contribute five-ninths of the total and the firm of Charles H. Witty & Co. to contribute four-ninths thereof.</p> <p>“ Please advise us if this letter correctly expresses our understanding.</p> <p>“ Very truly yours,</p> <p>“ Leeds, McClellan & Co.,</p> <p>“ General Agents The Frankfort Marine,</p> <p>“ Accident & Plate Glass Insurance Co.”</p> <p>After two days deliberation Witty & Co. added the following writing :</p> <p>“ January 13th, 1902.</p> <p>“ This letter correctly expresses our understanding and we accept your proposition.</p> <p>Charles H. Witty & Co.”</p> <p>Thereupon the insurance company expended money for counsel fees, depositions, printing, etc., with a result that a new trial was granted and the case was finally settled for $3,500 with the concurrence of Witty & Co. The total expense was $3,638.15 which was paid by the insurance company and this suit was brought to recover four-ninths thereof, or $1,616.96.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, 258, Jan. T., 1908, by . plaintiff from order of C. P. No. 5, Phila. Co., March T., 1902, No. 1668, refusing to take .off non-suit in case of Theresa Durst v. Bromley Brothers Carpet Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Ralston, J.</p> <p>At the trial it appeared that on February 26, 1902, the deceased who was head scourer in defendants’ carpet mill, was employed after hours in helping to run a line of hot water pipe along the ceiling of the room in which he worked. He placed a plank over a vat of boiling caustic soda, and while standing on the plank the pipe slipped out of his hands, and he was knocked into the vat and killed. The court entered a compulsory non-suit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off non-suit.</p>

<p>Appeal, No. 205, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1902,'No. 2991, on verdict for defendant in case of George Irving Laird v. Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Willson, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 69, Oct. T., 1904, by Morris Forst, from judgment of Superior Co., April T., 1904, No. 14, reversing order of Q. S. Allegheny Co., March T., 1908, No. 61, granting a wholesale liquor license in re Application for Liquor License by Morris Forst.</p> <p>Appeal from Superior Court. See 28 Pa. Superior Ct. 600.</p> <p>The opinion of the Supreme 'Court states the case.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Liquor law — License—Petition—Citizenship.</p> <p>A petition for a liquor license which states that the appellant is a citizen of the United States, and that he was born in Ireland, is not fatally defective because it fails to state in what manner the appellant became a citizen.</p>

Appeal, No. 197, Jan. T., 1903, by defendant, from order of C. P. Bradford Co., Sept. T., 1900, No. 6, refusing to take off nonsuit in case of Ezra Baxter v. Allen A. Doane, Elizer C. Ely and John H. Brown. Ejectment for an interest in land in Springfield township. Before Niles, P. J., specially presiding. The opinion of the Supreme Court states the case. Error assigned was refusal to take off nonsuit.

<p>Negligence — Municipalities—Sidewalk—Province of court and jury.</p> <p>In an action against a city to recover damages for injuries sustained by a fall on a sidewalk, it appeared that the accident occurred on the side of a street on which plaintiff had lived for ten or twelve years, and over which he passed half a dozen times a day to and from his home. The street proper had never been paved, nor was the sidewalk actually separated from the street by a line of curbstone, although the demarcation between the two was noticeable. By an ordinance there had been laid upon the sidewalk a paving of stone five feet wide. The ordinance directed that the entire width of the sidewalk between the property line and the street should be ten feet. One foot ten inches from the property line the stone pavement began, so that adding this to the five feet of pavement, and deducting this from the entire width of the sidewalk, would leave a space not paved, of three feet two inches. On this space some trees were planted, and between them the ground was maintained as a grass plot. The grass was protected by a quarter inch wire guard on posts about fifteen inches above the ground. A pair of steps led from plaintiff’s residence to the sidewalk. The protecting wire of the grass plot at one end was bent at right angles and connected with one of the tree boxes. Plaintiff in passing a knot of several women who were standing on the walk endeavored to turn out from the paved walk on the side next the wire along the grass plot, struck his leg against the wire, fell and was injured. Held, (1) that the evidence failed to establish negligence per se on the part of the city; (2) that a verdict and judgment in favor of the city should be sustained.</p>

<p>Appeal, No. 44, Jan. T., 1904, by plaintiff, from order of C. P. Lycoming Co., March T., 1903, No. 1, -refusing to take off nonsuit in case of William F. Martin v. City of Williamsport.</p> <p>Trespass to recover damages for personal injuries. Before Hast, P. J.</p> <p>The facts appear by tbe opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Trusts and trustees — Discretion of trustee — Payment out of principal for maintenance — Accounts.</p> <p>Where a testator directs his trustee to pay to his son $300 per year for life, if the income should be sufficient, or $400 per year if the sickness or necessity of the son made it necessary, in the discretion of the trustee, and the trustee pays the larger sum, and his accounts showing such payments are confirmed, other parties in interest cannot claim on a bill of review that the burden is upon the trustee to show that he properly exercised his discretion in paying to the son the larger amount. In such a case the burden of proof is not on the accountant, but on those who question the correctness of his accounts. Every presumption is in favor of the trustee’s honest exercise of his discretion.</p> <p>Where an accountant charges himself with interest on the whole balance of principal carried forward from prior accounts, and it appears that the principal is being encroached upon and diminished by proper annual payments in excess of income and by expenses of administration, an adjustment is properly made by taking credit for the interest on the amount of principal paid out.</p> <p>Bills of review — Orphans’ court practice — Grounds for review.</p> <p>A bill of review may be had as a matter of right only for errors of law appearing on the face of the record, or for new matter that has arisen since the confirmation, and ex gratia for new evidence discovered after the confirmation that could not have been produced before.</p>

<p>Appeal, No. 45, Jan. T., 1904, by defendant, from judgment of C. P. Lycoming Co., June T., 1903, No. 360, on verdict for plaintiff in case of Herman Fullmer v. New York Central & Hudson River Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the jury returned a verdict for plaintiff for 18,000, subject to question of law reserved. Subsequently the court entered judgment on the verdict.</p> <p>Error assigned among others was ih not entering judgment for defendant non obstante veredicto.</p>

Appeal No. 80, Jan. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Go., Dec. T., 1899, No. 206, on verdict for plaintiff in case of George F. Lea-rock v. William B. Paxson and Mablon B. Paxton, trading as Frederick Paxson & Company. Trespass to recover damages for alleged conversion of stock. Before Sulzberger, J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 118, Jan. T., 1903, by défendant, from judgment of Superior Court, Oct. T., 1902, No. 151, reversing judgment of C. P. Franklin Co., Feb. T., 1901, No. 83, for defendant non obstante veredicto in case of Mary Hawn v. Samuel M. Stoler, Executor of A. B. Stoler, Deceased. Appeal from Superior Court. See 22 Pa. Superior Ct. 307. The facts appear by the opinion of the Supreme Court. Error assigned was the judgment of the Superior Court.

Appeal, No. 150, Jan. T., 1903, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1898, No. 608, dismissing bill in equity in case of James V. Penn v. Samuel J. M. McCarrell et al. Bill in equity for an account.

Appeal, No. 273, Jan. T., 1903, by plaintiff, from judgment of C. P. No.-l, Phila. Co., Sept. T., 1901, No. 1768, on verdict for defendant in case of J. B. Rowdin v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries.

Appeal, No. 283, Jan. T., 1903, by defendants, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1902, No. 1485, on verdict for plaintiff, in case of Oliver Dynes and William Harrison Dynes, by his father and next friend, Oliver Dynes, v. George D. Bromley, James A. Bromley and Frank B. Birch, Copartners, trading as James and George D. Bromley. Trespass to recover damages for personal injuries.

Appeal, No. 293, Jan. T., 1903, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1901, No. 1085, on verdict for plaintiff in case of Julius Hyman by his mother and next friend, Rosa Hyman* v. Lewis L. Tilton. Trespass to recover damages for personal injuries. Before Ralston, J. The opinion of the Supreme Court states the case. Verdict and judgment for plaintiff for $4,000.

Appeal, No. 274, Jan. T., 1903, by plaintiff, from judgment of Superior Ct., Oct. T., 1903, No. 85, reversing order of C. P. No. 2, Phila. Co., June T., 1902, No. 2338, discharging rule to open judgment in case of Philadelphia v. Frank Johnson. Appeal from Superior Court. Smith, J., filed the following opinion : None of the rights arising from the relation of lessor and lessee is in controversy here ; hence the authorities respecting them have no application.

Appeal, No. 4, Jan. T., 1904, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1903, No. 1951, on verdict for plaintiff in case of Edwin Drinkwater by his next friend and mother, Ida L. Drinkwater, v. Quaker City Cooperage Company. Trespass to recover damages for injuries to a child between three and four years old. Before Brégy, J. The circumstances of the accident are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,000.

Appeal, No. 8, Jan. T., 1904, by plaintiff, from decree of C. P. No. 4, Phila. Co., Dec. T., 1901, No. 2215, dismissing bill in equity in case of Samuel Wake-ling v. Edwin F. Cocker., Bill in equity to compel tbe restoration of a wall. The facts are stated in the opinion of the Supreme Court. Error assigned was decree dismissing the bill.