Volume 209 — Pennsylvania State Reports

Appeal, No. 9, Jan. T., 1904, by defendant, from judgment of Superior Ct., Oct. T., 1903, No. 38, affirming judgment of C. P. No. 1, Phila. Co., June T., 1902, No. 2911, on verdict for plaintiff in case of Enrico Pizzi v. Joseph Nardello. Appeal from Superior Court. Hrror assigned was the judgment of the Superior Court.

<p> Negligence—Master and servant—Tools. </p> <p>In an action to recover damages for death of plaintiff's husband while at work as a carpenter in construction of a pier, it was claimed by plaintiff that the accident occurred while the deceased was lifting a heavy piece of square timber with a cant hook which was defective in not having an iron shoe and was not of the kind in general use for such work. The only testimony on the subject showed that the timber had been turned once, and in turning it a second time the hook attached to the lever failed to catch in the side of the beam, and the deceased applying force to the lever when there was nothing to resist it, fell over the beam to the floor below, or that he lost his balance while attempting to adjust the hook. Held, that it was error to submit the case to the jury, and that a judgment on a verdict for plaintiff should be reversed.</p>

Appeal, No. 10, Jan. T., 1904, by plaintiff, from order of O. P. No. 5, Phila. Co., March T., 1901, No. 199, refusing to take off nonsuit in case of Francis Creachen by his next friend and mother, Elizabeth Creachen, v. Bromley Brothers Carpet Company. Trespass to recover damages for personal injuries. Before Ralston, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 61, Jan. T., 1904, by-defendant, from order of C. P. No. 3, Phila. Co., Dee. T., 1903, No. 5718, M. L. D., discharging rule to show cause why an attorney should not enter an appearance and strike off a mechanic’s lien, in case of George R. Kurrie v. Lewis K. Cottingham, Receiver of Belgravia Apartments Company. Appeal from order discharging rule to show cause why an attorney should not enter an appearance and discontinue, satisfy or strike off a mechanic’s lien.

Appeal, No. 11, Jam T., 1904, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 1924, discharging rules for judgment for want of a sufficient affidavit of defense in case of Samuel T. Kerr v. Frederick F. Culver, David R. Locher, Patrick Ross, Andrew J. Toomey and Charles K. Hannan. Assumpsit on a bond. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Supreme Court states the case.

<p> Wills—Residuary clause—Lapsed legacies. </p> <p>The foundation of the general rule in respect of lapsed legacies is that the residuary clause is understood to be intended to embrace everything not otherwise effectually given, because the testator is supposed to “take the particular legacy away from the residuary legatee, only for the sake of the particular legatee, so that upon failure of the particular intent, the court gives effect to the general intent.”</p> <p>■ Testator made certain bequests to charities, which bequests lapsed because the will was not witnessed. In the residuary clause he directed as follows: “Everything not otherwise specified that I may own at time of my decease I desire shall be sold as soon as possible and proceeds divided as herein set forth,” etc. Held, that the lapsed bequests should be distributed to the residuary legatees.</p>

<p>Party walls—Cost of wall—Bight of action—Acts of February 24,1721, and April 10, 1849, sec. 4, P. L. 600.</p> <p>The purpose of the Act of April 10, 1849, sec. 4, P. L. 600, relating to party walls, was, first, to make the right to compensation pass with the land, unless reserved until the wall is used; and, second, to vest in the owner at the time of such use the right to compensation. Where such right of compensation has actually vested in an owner, the right does not pass from the owner by his subsequent conveyance of the property, even though there is no reservation of this right.</p>

Appeal, No. 28, Jan. T., 1904, by defendant, from order of C. P. No. 1, Pbila. Co., Dec. T., 1902, No. 1495, refusing to take, off nonsuit in case of Catharine Morgan, by her next friend Hannah Bowen, v. Pennsylvania Railroad Company. Trespass to recover damages for death of plaintiff’s father. Before Brégy J. The opinion of the Supreme Court states the case. Error assigned was refusal to take off nonsuit.

<p> Contract—Building contract—Extra work—Evidence. </p> <p>A provision in a building contract that “no- allowance will be made for extra work whatsoever, unless notice is served upon the owner and written consent of the owner is obtained before the said extra work is started,” does not apply to new work contracted for specifically after the original contract was made.</p> <p>Where a building contract is not fulfilled in some details there may be deductions made by the jury for compensation for such defective work.</p> <p>In an action upon a building contract where it is claimed by defendant that some of the work was not done in a workmanlike manner, and the evidence on the subject and as to what it would cost to make the work right is conflicting, the question is for the jury.</p> <p> Appeals—Judgment—Evidence—Book of original entries—Harmless error. </p> <p>A judgment will not be reversed for an immaterial error which does the party no harm. -</p> <p>An erroneous admission of books as books of original entries is no ground for reversal where the items of account in dispute are established by other evidence.</p>

<p>Appeal, No. 204, Jan. T., 1903, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1902, No. 2989, on verdict for plaintiff, in case of Louisa T. Cochran v. The Fox Chase Bank.</p> <p>Assumpsit for the alleged wrongful conversion of coupon bonds. Before Finletter, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $3,806. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 285, Jan. T., 1903, by defendant, from judgment of O. P. No. 3, Phila. Co., June T., 1902, No. 793, on verdict for plaintiff in case of Frances Bryson by her next friend, John Bryson, v. Philadelphia Brewing Company.</p> <p>Trespass to recover damages for personal injuries to a minor girl. Before McMichael, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Defendant presented the following points :</p> <p>2. It is undisputed that the horses and wagon were the property of one Ingénito and were in charge of his servant, the driver. The fact that the initials of the defendant and the number 4 remained upon the wagon, which had formerly belonged to the defendant, was but prima facie proof it was the defendant’s wagon and in its servant’s control which, however, has been overcome by the undisputed facts established to the contrary. Therefore your verdict should be for the defendant. Answer: Declined. [2]</p> <p>3. It is immaterial to this issue whether or not Ingénito was engaged in selling beer without a license, and this should not be considered by the jury at all. Answer: Declined. [3]</p> <p>4. Whether or not Ingénito was engaged in selling beer, it is undisputed that he delivered it and collected the empty boxes through his own servant and team after receiving it from the defendant. As the alleged liability arose in the delivery— not in the sale—the verdict should be for the defendant. Answer: Declined. [4]</p> <p>5. Ingénito was engaged in the delivery of beer and collection of empty boxes through his servant whose alleged negligence, the plaintiff claims, caused the accident. Under the facts of this case Ingénito was making the deliveries and collections either as a dealer or as an independent contractor for delivery-and collection. His mere description of himself by the Italian word “ agenta ” does not make him the defendant’s servant, when the undisputed facts show him to be but a carrier, and your verdict should be for the defendant. Answer: Declined. [5]</p> <p>6. Under all the evidence in this case, your verdict should be for the defendant. Answer: Declined. [6]</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p> <p>JErrors assigned were (2-6) above instructions, quoting them.</p>

Appeal, No. 40, Jan. T., 1908, by plaintiff, from order of C. P. No. 3, Pkila. Co., Dec. T., 1901, No. 627, refusing to take off nonsuit in case of Osborne March v. Union Traction Company. Trespass to recover damages for personal injuries. Before McCarthy, J. The facts are stated in the opinion of the Supreme Court. Error assigned was in refusing to take off nonsuit.

<p>Appeal, No. 188, Jan. T., 1904, by plaintiffs, from decree of C. P. Montgomery Co., Oct. T., 1902, No. 1, dismissing bill in equity in case of Mary Scanlin, James P. Scanlin and Lizzie A. Scanlin v. Burgess and Council of Conshohocken Borough and David H. Ross, William Little and John A. Harrokl, Street Commissioners.</p> <p>Bill in equity for an injunction.</p> <p>The plaintiffs in their bill filed averred that they were the owners of a tract of land bounded by Corson and Foulke streets, Conshohocken ; that the defendants had caused to be laid a pavement and curbing across said lots and not on the street lines ; that plaintiffs had enclosed it along the property line with a fence, and that defendants had threatened to tear the fence down, and prayed for an injunction restraining defendants from so doing and further relief.</p> <p>Defendants answered, denying that they had trespassed on said lots, and alleged that Elm street (formerly Foulke street) was opened about twenty-four years ago across the southern corner of plaintiffs’ lots and has been used since under a claim of right.</p> <p>The court in an opinion by Weand, J., in which facts were found and conclusions of law stated, dismissed the bill because of lack of jurisdiction of equity to determine the controversy in issue.</p> <p>"Error assigned was the decree of the court dismissing the bill.</p>

Appeal No. 203, Jan. T., 1903, by defendant, from decree of C. P. Montgomery Co., June T., 1902, No. 1, on bill in equity in case of Irvin P. Knipe, Executor of Wm. H. Bodey, Deceased, v. James Livingston. Bill in equity for a partnership accounting. The opinion of the Supreme Court states the case. The court entered the following decree: And now, January 15, 1903, the court finds that in the settlement of the affairs of the partnership between Wm.

<p>Appeal, No. 75, Jan. T., 1904, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T., 1903, No. 830, on bill in equity in case of the Board of Public Education of the First School District of Pennsylvania v. Harry C. Ransley, President of Select Council of the City of Philadelphia et al., and Frederick J. Shoyer, Director of the Department of Supplies of the City of Philadelphia.</p> <p>Bill in equity for an injunction."</p> <p>The relief prayed for was:</p> <p>(a) A decree enjoining defendants from appropriating moneys deemed necessary for school purposes for 1904 to the department of supplies.</p> <p>(5) A decree that it is the duty of the defendants to appropriate such moneys to complainant.</p> <p>(c) An injunction restraining the director of the department of supplies from demanding or receiving any aproppriation for the purchase of supplies for said school district, and for advertising for said supplies or distributing or administering the same.</p> <p>(d) General relief.</p> <p>The court in an opinion by Sulzberger, P. J., entered a decree in accordance with the prayers of the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 260, Jan. T., 1903, by Richard Kennehan, from decree of O. G. Montgomery Go., May T., 1903, No. 23, awarding citation in estate of Terrence O’Donnell, deceased.</p> <p>Petition for citation.</p> <p>The testator by his will left the income of two thirds of his estate unto his wife Ellen, and the income of the remaining one third to his son, Richard W., and then provided :</p> <p>“ Item—And after the death of my said wife and son I give, devise and bequeath all of my estate to Rev. Richard Kennahan, or his successors of the St. Matthew’s Church, of Conshohocken, Pennsylvania, for the purpose of saying masses for myself, my now wife Ellen, and my deceased wife Mary.”</p> <p>Testator died within thirty days from the making of his will.</p> <p>Richard W. O’Donnell, the son of the testator, filed a petition praying for a citation on the trustee under his father’s will to file an account, and to pay over to petitioner one third of the whole estate absolutely. The court in ah opinion by Solly, P. J., entered a decree awarding a citation.</p> <p>Error assigned was decree awarding citation.</p>

<p> Tenants in common—Account render—Parties—Set-off—Statute of limitations. </p> <p>Separate actions of assumpsit were brought by heirs of a tenant in common against the other tenants in common for their share of the profits of the estate in common received by the defendants since the death of their co-tenant. By agreement the actions were consolidated into one, and changed in form to account render. The parties also agreed to a reference but there was nothing in the agreement of reference to indicate any purpose either to enlarge or to waive the rights of either party as they existed at the time, nor to change in any way the cause of action at issue between them. At the trial the defendants offered to prove that the decedent had received in his lifetime more than his share of the profits for which he had failed to account, and -was thereby indebted to the defendants. The offer was rejected on the ground that the proposed set-off was not in the same right, inasmuch as it was primarily against the decedent’s executors. Held, not to be error.</p> <p>In the above case it appeared that plaintiff’s decedent died in April, 1891 ; plaintiffs commenced their actions in assumpsit in December, 1896. The agreement of consolidation and change of form was made in July, 1897, and the plea of the statute of limitations was filed in June, 1898, more than seven years after the last of the moneys charged to have been unlawfully retained, could have been received by decedent. Held, that as the statute of limitations runs against a set-off until it is pleaded, the set-off was barred.</p> <p> Tenants in common—Account render—Interest. </p> <p>In an action of account render by one tenant in common against his co-tenants, the defendants cannot complain, where the court makes a reasonable allowance of time for settlement, and charges interest only from the time when the money should have been paid over, and not from the date when it was received.</p>

<p>Appeal, No. 178, Jan. T., 1908, by Henry W. Sharpless and Townsend Sharpless, from decree of O. C. Montgomery Co., Nov. T., 1903, No. 33, removing executors in estate of Anna R. Sharpless, deceased.</p> <p>Petition for removal of executors.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree removing the executor.</p>

<p> Negligence—Street railways—Driving in front of car. </p> <p>Where a person deliberately and suddenly drives in front of a street car approaching him moving at a moderate rate of speed and distant from him about fifty feet, and is injured in the resulting collision, he is guilty of contributory negligence, and cannot recover from the street railway company.</p> <p>Where the driver of a carriage upon reaching a double track street sees cars approaching from both directions, drives across the far track, proceeds along it a short distance ahead of that car, and then suddenly pulls back from the first track so as to meet the other car moving at moderate speed, head on, and too close for it to be stopped, and a collision occurs, the driver cannot recover for injuries sustained, because (1) there was no evidence of the street railway company’s negligence; and (2) he was guilty of contributory negligence.</p> <p>Where the sole basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, there must be not only a consciousness of the facts which raise the duty on the part of the person who is charged with its performance but a reasonable opportunity to perform it.</p>

<p>Motion for mandamus. Motion Docket, S. C. January-Term, 1904.</p>

<p>Decedent’s estates—Sale under Price act—Contingent remainder—Minors— Notice—Guardian—Loss of records—Ejectment.</p> <p>Where thirty years have expired from a sale of land under the Price act, and it appears that the petition for the order of sale, the report of the examiner to whom it was referred, and the decree of the court, have been lost, and there is nothing to show that notice had not been given to a guardian of certain minors owning contingent interests, it will be presumed that the court having jurisdiction over the subject-matter had- complied with all jurisdictional requirements when the order of sale was made, and that notice had been properly given to a guardian of the minors.</p> <p>Omnia praesumuntur rite esse acta, donee probetur in contrarium.</p>

<p>Appeal, No. 251, Jan. T., 1903, by defendant, from decree of C. P. Chester Co., No. 415, in equity, awarding a preliminary injunction in case of Joseph Price y, Pennsylvania Railroad Company.</p> <p>Bill in equity for an injunction.</p> <p>Hemphill, P. J., found the facts to be as follows :</p> <p>On March 18, 1903, at a meeting of the board of directors of defendant company, the following resolution was adopted:</p> <p>“ Resolved, that the president and board of directors of this company deem it advantageous and suited to promote the convenience of the inhabitants of Chester county and the interests of this company, that a low-grade branch line be constructed from a point on the main line of its railroad at or near Paoli, in the county of Chester, and running in a westerly direction through the said county to a proposed connection with the said main line at or near Thorndale, in the said county, a distance of about fifteen miles, more or less, and that the location of said branch, as represented on the plan this day submitted to the board, marked ‘ No. 8331—new freight line Paoli to Thorndale, Philadelphia Div., P. R. R.,’ is hereby approved, subject to such modifications as the president may deem advantageous, and that the proper officers are hereby authorized to acquire by purchase or condemnation the necessary right of way, and to construct the whole or any part of said branch at such time or times as in the judgment of the president may be for the best interests of this company.”</p> <p>In compliance with this resolution, the said company has laid out and commenced the construction of a new line of railway between the points named, which, in substance, is thus described by its assistant engineer of construction in charge of the work:</p> <p>The new line branches away from the main line at or near Paoli Station, and runs practically parallel with the present tracks and on the north side to Whitford, where it crosses the present tracks at an elevation of about twenty-five feet above, to the south side, a distance of about eight miles. The distance between the new and main lines, on this stretch, varies from nothing to two hundred feet. After crossing at Whitford, the new line continues south of the main line until Thorndale is reached, when they again unite. The distance between the lines, on this stretch, varies from nothing to two thousand feet at Downingtown, where the new line has an elevation above the surface of the ground of one hundred and twenty-five feet and above the tracks of the main line of about sixty-five feet. At Parkesburg, west of Thorndale, the new line again leaves the main line and runs west to Marysville, a total distance approximately of one hundred miles. The width of the roadway is thirty-two feet and is intended to carry two tracks. Through the plaintiff’s property the base of the line at the widest point is two hundred and ten feet and its elevation above the surface of the ground is fifty feet.</p> <p>It is to be a low grade road, used exclusively for freight, and without stations.</p> <p>The road is thus described by the board of directors of the defendant company in their fifty-sixth annual report, made to the stockholders on March 10, 1903:</p> <p>“ Sixth.—The building, in connection with the four-tracking of the Northern Central Railway, between the new Fairview yard and York Haven, of a new double-track, low-grade railroad, about ninety-five miles in length from the latter point, via Columbia to Philadelphia. This line, will cross the Susquehanna River by a stone-arched bridge near Shock’s, will utilize five miles óf your Columbia and Port Deposit Railroad, from Columbia to Creswell, where the new line leaves the Susquehanna to enter the valley of the Pequea, will run thence to j'our main line at Parkesburg, which it will follow from Parkesburg to Thorndale, and parallel it from Thorndale to Paoli, while the main line between Paoli and Philadelphia will be six-tracked.”</p> <p>The court awarded a preliminary injunction.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 16, Oct. T., 1904, by defendants, from decree of C. P. No. 1, Allegheny Co., June T., 1903, No. 478, on bill inequity in case of Jacob Kaufmann et al. trading as Kaufmann Bros, formerly as J. Kaufmann & Bros., v. John Liggett et al., Trustees of Sarah L. Hitchcock, Deceased.</p> <p>Bill in equity for an injunction.</p> <p>The prayers of the bill were as follows :</p> <p>1. For an injunction restraining respondents from interfering with the complainant’s possession of the premises, and from instituting or proceeding with any proceedings at law for that purpose.</p> <p>2. That the court shall fix and determine the rental to be paid by the complainants for the premises for the term of five years beginning on April 1, 1903, and the terms of payment thereof.</p> <p>3. General relief.</p> <p>The facts of the case are stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree :</p> <p>And now, to wit: October 28,1903, this case having heen set down for argument upon the argument list, upon the exceptions to the findings of fact and conclusions of law, as found and entered of record upon the trial and hearing of this cause, and the same being submitted to this court upon the arguments and briefs of counsel of the respective parties, and the same duly considered, and the said exceptions dismissed, and the bill sustained, and directing that a decree be drawn temporarily enjoining the defendants from interfering with the possession of the plaintiffs, till further order of the court; this court does now order and decree that an injunction be granted pending these proceedings, and until further order of this court against the defendants restraining them from proceeding to interfere with the plaintiffs’ possession of the premises described in their bill by proceeding under the landlord and tenant acts of 1772 or 1863 or otherwise.</p> <p>Errors assigned were in dismissing various exceptions to the findings and conclusions of the court.</p>

Appeal, No. 219, Jan. T., 1903, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 195, in case of Henry C. C. Astwood v. John Wanamaker et al. The plaintiff brought assumpsit against the defendants. By agreement of the parties Frank P. Prichard was appointed referee.

<p>Appeal, No. 227, Jan. T., 1908, by defendants, from judgment of C. P. Delaware Co., March T., 1902, No. 283, on verdict for plaintiff in casé of Francis C. Haines v. Charlotte Hall and William James Hall.</p> <p>Ejectment for land in Lansdowne borough. Before Johnson, P. J.</p> <p>In addition to the facts statecl in the opinion of the Supreme Court, it appeared that the- deed from Samuel B. Bartram to William Hall, trustee, dated December 9, 1884, contained the following clause:</p> <p>“ In trust nevertheless to permit the said John Henry Hall, son of the said William Hall, and Sarah, his wife, and the survivor of them to occupy, use and enjoy the said premises and to collect and receive the rents and profits thereof during their joint lives and the life of the survivor of them, so however that the same shall be free, clear and discharged from and without liability for the present or future debts, contracts and engagements of them the said John Henry Hall and Sarah, his wife, or of either of them and upon the decease of the survivor of them the said John Henry Hall and Sarah, his wife, then in trust for all and every their children then living, and the issue of any child or children who may then be deceased, their heirs and assigns in equal shares, the issue of any deceased child talcing however only such part or share thereof as his or her deceased parent would have taken if then living. Provided, however, that it shall and may be lawful for the said trustee and his successor in the trust at any time during the continuance of the trust by and with the consent of the said John Henry Hall and Sarah, his wife, and of the survivor of them testified by their joining in the deed, therefor, to sell and convey the said premises free and clear of all trusts the proceeds thereof to be invested in other real or personal estate to be held upon the same trusts and subject to the same powers, provisions and limitations and in like manner to revoke, annul, change or alter the trusts herein declared concerning the premises, or to declare new and other trusts respecting the same.”</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>.Errors assigned were (1-9) various rulings on evidence; (10) in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 196, Jan. T., 1903, by Florence B. Yollrath, from decree of O. C. Phila. Co., Jan. Term, 1903, No. 612, dismissing petition to compel trustees to pay over rentals in estate of Harriet S. Benson, deceased.</p> <p>Petition to compel trustees to pay over rentals.</p> <p>The petition set out that testatrix died September 3, 1902, leaving a will, of which E. N. Benson, R. D. Benson and Charles M. Morton are executors; that petitioner was decedent’s adopted daughter and had intermarried in decedent’s lifetime with Alfred J. Yollrath; that during decedent’s lifetime she purchased in her own name for §22,600 premises No. 1105 Spruce street, which were occupied by petitioner and her family as a residence until 1899, when decedent purchased premises No. 1621 Spruce street; since which time petitioner and her family have occupied the latter premises as their residence; that these premises were bought subject to a mortgage for §20,000, which was not payable until December 31, 1900, and which still remains unpaid; that by decedent’s will a certain fund was given her executors in trust for petitioner’s benefit, and also premises No. 1105 Spruce street upon the same trusts, but with power to sell and with the proceeds purchase another residence for petitioner should she so desire; that after the purchase of premises No. 1621 Spruce street and the removal of petitioner thereto, decedent made a codicil to her will directing that the latter premises should be held upon the same trusts ; that the executors assert that under the will the mortgage of §20,000 is not to be paid out of decedent’s personal estate, and that there is no trust in petitioner’s favor as to premises No. 1105 Spruce street, and have therefore deducted from petitioner’s income the interest on the mortgage and have not paid over to her the rents collected from premises No. 1105 Spruce street.</p> <p>The petition averred that petitioner is entitled to one or the other of these things and asks relief accordingly.</p> <p>The answer admitted the facts, but denied that petitioner was entitled thereunder to the relief she asked.</p> <p>The case was heard by Judges Ashman and Penrose. Judge Ashman was of the opinion that the petition should be dismissed. Judge Penrose was of the contrary opinion.</p> <p>The court being equally divided a decree was entered dismissing the petition.</p> <p>Error assigned was the decree of the court.</p>

<p> Negligence—Pavement—Sidewalk—Slippery ridge on sidewalk—Nonsuit. </p> <p>Where a woman in broad daylight approaches a slippery ridge eight inches high across a sidewalk, and with a full opportunity to see the ridge, steps upon it, falls and is injured, she is guilty of contributory negligence, and cannot recover damages from the city.</p>

<p>Public officers—Treasurer of Luzerne county—Fees—Acts of April 11, 1866, P. L. 711, and March 31, 1876, P. L. 13.</p> <p>Under the Act of March 31, 1876, P. L. 13, the treasurer of Luzerne county, which county has a population of over 150,000 inhabitants, cannot retain for his own use the fees provided by the local act of April 11, .1866, for issuing mercantile licenses.</p>

<p> Interpleader—Ownership of bonds—Attorney’s lien—Practice, C. P. </p> <p>An equity suit was instituted by a railroad company to recover certain bonds owned by it. The suit was settled, but before the defendants had returned the bonds they were notified by an attorney for the plaintiff that he had a lien on the bonds for his services and warned the defendants not to deliver the bonds to the plaintiff. The defendants thereupon with permission of the court deposited the bonds with the prothonotary, and an interpleader was framed to determine the rights of the attorney to the bonds. The court found that the attorney had a lien, but its decision was reversed by the Supreme Court. Subsequently the defendants disclaimed any ownership in the bonds. Held, that after the decree of the lower court had been reversed the plaintiff was entitled to the bonds.</p>

<p>Appeal, No. 268, Jan. T., 1908, by plaintiff, from judgment of C. P. Blair Co., June T., 1902, No. 190, on verdict for defendant in case of L. G. Dunkle v. City Passenger Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Bell, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial binding instructions were given for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p> Negligence—Railroads—Master and, servant—Locomotive engineer—Defective appliance—Proximate cause. </p> <p>In an action by a locomotive engineer against his employer, a railroad company, to recover damages for personal injuries, it appeared that prior to the accident the oil pipe of the locomotive which plaintiff was running had burst at a point where it came out from -under, or through the jacket of the boiler near the smokestack. The pipe was used to carry oil from a reservoir inside of the cab to the valve upon the steam chest. In consequence of it having burst the oil ran out and the valve was not supplied with oil, but in order so to supply it the plaintiff while the engine was drifting down grade, having gone through the window of the cab, stepped upon the narrow footway alongside of the boiler, walked to a point near the steam chest and there stooping down, with a hand oiler poured the oil into the valve. Having done so he returned to the cab and just as he reached its entrance his foot slipped, and he fell forward into it, striking the water gauge inside of the cab. By the blow thus given the gauge was thrown open, causing boiling water and superheated steam to pour into plaintiff’s shoe and seriously injured him by burning his foot. Held, that the defective pipe was not the proximate cause of the accident, and that binding instructions for defendant were proper.</p> <p>The injury must be the natural and probable consequence of the negligent act without probable foresight, and if the facts as to the cause of the injury are not disputed the question of proximate cause becomes one of law for the determination of the court.</p> <p>Mitchell, C. J., dissents.</p>

<p>Appeal, No. 102, Jan. T., 1903, by defendants, from judgment of C. P. Luzerne Co., Oct. T., 1900, No. 1157, on verdict for plaintiff in case of James B. Pierce and John J. Shonk v. George Barney et al.</p> <p>Ejectment for land in Plymouth township. Before Wheaton, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for the plaintiffs.</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>Errors assigned among others were (1) refusal of nonsuit; (4) in giving binding instructions for plaintiff.</p>

<p> Bes judicata—Attachment execution■—Partnership. </p> <p>Where an attachment execution is issued against an alleged interest in a partnership, and an issue is framed and tried, and judgment entered against the attaching creditor, and an appeal from the judgment is non prossed, such judgment is res judicata as to an issue raised on a subsequent attachment execution in which the same parties are involved, and the same alleged partnership interest is sought to be taken.</p>

<p>Appeal, No. 255, Jan. T., 1903, by defendant, from decree of C. P. Luzerne Co., Oct. T., 1900, No. 10, on bill in equity in case of John Smoulter et al. v. Aaron Boyd.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of tbe Supreme Court.</p> <p>The court entered the following decree :</p> <p>That for the purposes of boating and sailing the plaintiffs shall have the right to enjoy the waters of the whole lake.</p> <p>That the plaintiffs’ conveyances carry their title to the center of the lake, and therefore the boom erected and maintained by the defendant must be removed by him at his own expense.</p> <p>Error assigned was the decree of the court.</p>

<p> Negligence—Mines and mining—Ambulance—Evidence. </p> <p>A coal mining company cannot be charged with liabi ity for the death of a miner, on the ground that it had failed to comply with the requirements of the statute which imposed on it the duty to maintain an ambulance at its mine and to cause any employee who might be injured to be conveyed at once to his home, where the only testimony relied on to establish a causal connection between the failure of the company to have an ambulance at the mine, and the death of the miner, is that of a woman who dressed the latter’s wounds, and who testified to a belief not founded on her observation and experience, and for which she could give no substantial reason, that if the miner had been removed to his home immediately after he was taken from the mine, she could have saved his life.</p>

<p>Appeal, No. 25, Jan. T., 1904, by defendant, from judgment of C. P. Columbia Co., Jan. T., 1904, No. 25, on verdict’ for plaintiff in case of John Atherholt and Lillie Atherholt, his Wife, v. Charles Hughes.</p> <p>Assumpsit for balance alleged to be due on a written contract. Before Little, P.'J.</p> <p>At the trial the following offer was made :</p> <p>Mr. Ikeler: The defendant proposes to prove by the witness upon the stand that prior to the execution of the written contract in suit, the witness together with John Atherholt and another party- visited the tract of timber in question and attempted at that time to come to an agreement with Mr. Atherholt as to the price per acre to be paid for the timber and at the same time measured off in the rough an acre of the timber and agreed to give the sum of $45.00 per acre for said timber; that Atherholt refused, holding the timber at #50.00 per acre; that at that time Atherholt represented to the witness that the timber tract contained fifty-four acres and some odd perches, stating that the same had just been surveyed and that his knowledge on that question was accurate and exact; that the parties failed to come to an understanding, but that afterwards they met in the office of Mr. Coughlin, attorney, at Wilkes-Barre, the witness and John Atherholt both being present, and after some little dispute agreed upon the price to be paid per acre, to wit: $46.33^-; that the attorney then present, suggested that inasmuch as the purchase was by the acre the parties ought to be very sure .of the exact acreage and suggested that the tract be surveyed before the written instrument was drawn, but John Atherholt again protested that such action would only cause expense, and that Hughes would be obliged to pay for nearly an extra acre, inasmuch as a survey would show that there were nearly fifty-five acres in the tract, but that he would be willing to let it go at fifty-four; and, acting upon the truth and good faith of these statements, the witness acquiesced and the written instrument was drawn, using the the words “ about fifty-four acres.” To be followed by proof that after the execution of the written instrument and after active operations had been begun upon the ground, the witness became suspicious of the acreage of the tract, and upon employing the services of a surveyor he discovered that in fact there were only thirty-five acres upon this tract. The defendant also proposes to show that in conducting these negotiations leading up to the execution of the written instrument he was acting in behalf of his father Charles Hughes, the present defendant in this case.</p> <p>Mr. Hibbs: This is objected to as incompetent, immaterial and irrevelant, for the reason that no conversations, if any were had, leading up to the execution of this agreement now in evidence, can in any way effect the written contract between these parties. The offer does not state that the defendant himself was upon the ground and that he knew personally anything in relation to the tract, nor to the amount to be paid for same, nor the agreement subsequently entered into. Neither does the offer state that Lillie Atherholt, the real plaintiff, the owner of this timber tract, had any knowledge of these conversations, nor was a party to the negotiations suggested in the offer; the contract itself being the only evidence of the agreement between these parties plaintiff and defendant.</p> <p>The Court: We feel obliged to sustain the objection and overrule the offer. We hardly think that, under the rule enunciated in the case of Martin v. Berens, this offer comes within the exceptions noted to the well known rule stated in that case, that: “ Where parties, without any fraud or mistake, have deliberate^ put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement.”</p> <p>Mr. Ikeler: This evidence is offered for the purpose of showing that at the time of the execution of the written instrument, the defendant, by false misrepresentations, known to John Atherholt at the time to be false, was induced to execute the written instrument, and to agree therein to pay the sum set forth in said paper, and that the amount named in said paper was agreed to by the defendant only and solely upon the faith of the representations made by the plaintiff at that time, which representations we now propose to show were false, and were known by the parties to be false at that time; and that upon the strength of these representations, and only thereon, the contract was executed.</p> <p>The Court: We won’t hear any more discussion about this question now. We will reconsider our former ruling and admit the evidence, subject to the further control of the court.</p> <p>Subsequently the court withdrew the 'evidence admitted under the above offer.</p> <p>Yerdict and judgment for plaintiff for $1,685.32. Defendant appealed.</p> <p>Error assigned was ruling on evidence, quoting the bill of exceptions as above.</p>

Appeal, No. 34, Jan. T., 1904, by defendant, from judgment of C. P. Columbia County, Dec. T., 1902, No. 110, on verdict for plaintiff in case of Alexander Lillie v. American Car and Foundry Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 59, Jan. T., 1904, by-defendants, from decree of C. P. Luzerne Co., May T., 1900, No. 11, on bill in equity in case of White Haven Borough, S. W. Trimmer and G. W. Moyer, Taxpayers, v. White Haven Water Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>JSrror assigned was in dismissing the bill.</p>

Appeal, No. 6, Jan. T., 1904, by plaintiff, from judgment of Superior Court, Oct. T., 1902, No. 127, affirming judgment of C. P. Blair Co., Equity Docket B, No. 800, dismissing bill in equity in case of Ella Donithen v. Independent Order of Foresters and Lloyd Donithen. Appeal from the Superior Court. The facts appear by the opinion of the Supreme Court. Error assigned was the judgment of the Superior Court.

<p>Appeal, No. 52, Jan. T., 1904, by plaintiff, from order of C. P. Huntingdon Co., Dec. T., 1903, No. 2, making absolute rule to open judgment and for restitution in case of Edwin G. Jones and George W. Tappan v. Charles H. Scott.</p> <p>Rule to open judgment and for restitution.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 76, Jan. T., 1904, by defendant, from judgment of C. P. McKean Co., Feb. T., 1903, No, 119, on verdict for plaintiff in case of John Englehaupt, v. Erie Railroad Company. Trespass to recover damages for personal injuries. Before Bouton, P. J. At the trial it appeared that on November 22, 1892, at about 8 : 30 in the evening plaintiff fell through a bridge in alighting from a train near the station of Riverside.

Appeal, No. 266, Jan. T., 1908, by-plaintiff, from order of C. P. Chester Co., Oct. T., 1902, No. 13, sustaining demurrer to statement in case of Joseph N. Marshall and Hannah A. Marshall, His Wife, v. William DeHaven. Demurrer to statement in trespass.

Appeal, No. 290, Jan. T., 1903, by plaintiff, from order of C. P. Del. Co., Sept. T., 1900, No. 26, refusing to take off nonsuit in case of James E. Johnson v. Chester Traction Company. Trespass to recover damages for personal injuries. Before Johnson, P. J. The court entered a compulsory nonsuit which-it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

Appeal, No. 125, Jan. T., 1904, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1899, No. 216, on verdict for defendant in case of Bessie Slater v. Harry P. Slater. Issued devisavit vel non. Before Marr, J. • The opinion of the Supreme Court states the case. Verdict and judgment for defendant, the proponent. Plaintiff appealed. Errors assigned were (1-124) various instructions and rulings on evidence.

Appeal, No. 252, Jan. T., 1903, by-defendants, from decree of C. P. Schuylkill Co., May T., 1903, No. 4, on bill in equity in case of John Wadlinger to use of the Pottsville Bank v. The First National Bank of Minersville. Bill in equity to compel a transfer of stock. Make, J., reported the facts to be as follows: 1.

Appeal, No. 296, Jan. T., 1908, by-defendant, from order bf O. & T. Schuylkill Co., Sept; T., 1903, No. 544, directing a new trial in case of Commonwealth v. Michael Gabor. Indictment for murder. Before Bechtel, P. J. From the record it appeared that when the verdict for manslaughter was taken and the jury discharged, the prisoner was not in court. Subsequently when the prisoner was brought in for sentence he moved for arrest of judgment and a discharge from custody.

Appeal, No. 160, Jan. T., 1908, by plaintiff, from judgment of C. P. Northampton Co., Feh. T., 1902, No. 41, on verdict for defendant in case of Charles Vito v. Benedict H. Birkel. Petition of Charles Vito for a rule for an issue to quiet title under act of June 10, 1893.

Appeal, No. 64, Jan. T., 1904, by plaintiff, from decree of O. C. Phila. Co., Jan. T., 1896, No. 473, dismissing petition for removal of trustees in estate of Thomas W. Price, deceased. Petition for removal of trustee. From the record it appeared that the petition was filed by Mary Kemper, a daughter of testator, and by Austin W. Bennett, guardian of Jesse C. Clagett, a grandson of testator, and a son of Mary Kemper.

Appeal, No. 65, Jan. T., 1904, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1903, No. 1852, discharging rule for judgment for want of a sufficient affidavit of defense in case of Mary E. B. Coues et al. v. John W. Hallahan. Assumpsit for purchase money of property, 1814 Chestnut street, Philadelphia. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 60, Jan. T., 1904, by-plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1903, No. 579, for defendant on case stated, in suit of Mary A. Mulliken v. John R. Earnshaw. Case stated to determine marketable title to real estate passing under the will of Charles P. Mulliken, deceased. From the case stated it appeared that the premises in question were 3649 and 8651 Smedley street in the city of Philadelphia.

Appeal, No. 67, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1902, No. 2257, refusing to talce off nonsuit, in case of James McConway, by his father and next friend Robert McConway, v. City of Philadelphia. Trespass to recover damages for personal injuries.

<p> Affidavit of defense—Practice, C. P.—Law of another state. </p> <p>The law of another state is a matter of fact to be proved when material in the ease.</p> <p>Where the statement of claim shows that the cause of action arose in New Jersey, an affidavit of defense which sets up a prima facie defense under the laws of that state, is sufficient to put the plaintiff to proof to the contrary. •</p>

Appeal, No. 101, Jan. T., 1904, by plaintiff, from order of C. P. Warren Co., Dec. T., 1903, No. 2, refusing to take off nonsuit in case of Sarah A. Nichols and Perry Nichols, her Husband, v. Pittsfield Township. Trespass to recover damages for personal injuries. Before Lindsey, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. Error assigned was order refusing to take off nonsuit.

Appeal, No. 53, Jan. T., 1904, by defendant, from judgment of C. P. Potter Co., June T., 1902, No. 90, on verdict for plaintiff, in case of Maud M. Kepler v. Lackawanna Lumber Company. Trespass to recover damages for death of plaintiff’s husband. Before Ormerod, P. J. ■ The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $3,000. Defendant appealed.

Appeal, No. 304, Jan. T., 1903, by plaintiffs, from decree of C. P. Delaware Co., June J., 1903, No. 313, on bill in equity in case of Henry H. Major and J. Harris Reed v. Aldan Borough et al. Before Mitchell, C. J., Dean, Fell, Mestbezat and Thompson, JJ., on argument. Bill in equity for an injunction. Before Johnson, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned among others was decree dismissing the bill.

Appeal, No. 267, Jan. T., 1908, by-plaintiffs, from decree of C. P. Luzerne Co., Dec. T., 1902, No. 8, dismissing bill in equity in case of John Laning et al. v. Thomas Darling et al. Bill in equity to have a trust declared as to certain land. Before Ferris, J. The opinion of the Supreme Court states the case. Error assigned among others was decree of the court dismissing the bill.

Appeal, No. 280,, Jan. T., 1903, by defendant, from order of C. P. Luzerne Co., March T., 1903, No. 276, dismissing exceptions to report of referee in case of Joseph Hendler v. Lehigh Valley Railroad Company. Trespass to recover damages for excavating and taking common mixed sand. By agreement the case was referred to Rush Trescott, Esq., as referee.

Appeal, No. 40, Jan. T., 1904, by plaintiff, from order of C. P. Luzerne Co., March T., 1903, No. 276, overruling exceptions to report of referee in case of Joseph Hendler v. Lehigh Valley Railroad Company. Exceptions to report of Rush Trescott, Esq., referee. The facts appear by the opinion of the Supreme Court and by the report of Hendler v. Lehigh Yalley Railroad Company, Appellant, ante, p. 256. jErrors assigned were in dismissing exceptions to' referee’s report.

Appeal, No. 43, Jan. T., 1904, by plaintiffs, from order of C. P. Luzerne Co., Jan. T., 1904, No. 217, dismissing petition to remove mine inspector in case of William Mates et al. v. James Martin. Petition to remove mine inspector. The facts appear by the opinion of the court below which was as follows: Pursuant to the provisions of the mine ventilation act of June 2, 1891, Mr. Gr. M. Williams was duly appointed by the governor to the office of inspector of mines.

Appeal, No. 74, Jan. T., 1904, by defendant, from judgment of 0. & T. Luzerne Co., April T., 1908, No. 355, on verdict of guilty of murder in the second degree in case of Com. v. Mitchka. Indictment for murder. At the trial the prisoner was found guilty of murder in the second degree. Error assigned among others was the answer to the point quoted in the opinion of the Supreme Court.

Appeal, No. 250, Jan. T., 1903, by plaintiff, from decree of C. P. Blair Co., Equity Docket C, No. 451, dismissing bill in equity in case of Altoona Belt Line Street Railway Company v. City Passenger Railway Company. Bill in equity to restrain interference with the construction of a street railway. The opinion of the Supreme Court states the case. Error assigned was decree dismissing the bill.

<p>Appeal, No. 249, Jan. T., 1908, by plaintiff, from decree of C. P. Blair Co., dismissing bill in equity in case of Altoona Belt Line Extension Street Railway Company v. City Passenger Railway Company of Altoona.</p>

Appeal, No. 128, Jan. T., 1904, by defendant, from judgment of C. P. Erie Co., Sept. T., 1901, No. 95, on verdict for plaintiff in case of Stella Curry by her mother and next friend, Sarah Curry, and Sarah Curry in her own right, v. City of Erie. Trespass to recover damages for personal injuries.

Appeal, No. 207, Jan. T., 1903, by defendant, from decree of C. P. Crawford Co., May T., 1901, No. 6, on bill in equity in case of Andrew M. Gundaker and Frank Ehrgott v. Jacob Ehrgott. Bill in equity for an account. Before Thomas, P. J. Error assigned was in decreeing an account.

<p>Appeal, No. 223, Jan. T., 1903, by Harrisburg Trust Company, from decree of C. P. Cumberland Co., on bill in equity in case of J. W. Eckels v. Mary L. B. Stuart.</p> <p>Bill in equity for partition.</p> <p>The opinion of the Supreme .Court sufficiently states the case.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 301, Jan. T. 1903, by plaintiff, from judgment of C. P. Cumberland Co., Sept. T., 1902, No. 102, on verdict for defendant non obstante veredicto in case of Edward Highlands v. Philadelphia & Reading Railroad Company.</p> <p>Trespass to recover damages for the loss of property alleged to have been burnt by defendant’s negligence. Before E. W. Biddle, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for defendants non obstante veredicto.</p>

<p> Landlord and tenant—■Trade fixtures—Removal—Extension of lease. </p> <p>When a tenant attaches to the land fixtures necessary for him in the conduct of his business, the presumption is that, at the expiration of his lease, he.will remove them; and it is his right to do so. They are not put in for the benefit of the landlord, and, until the tenant, after his term expires, leaves them on the premises in which he no longer has any interest, no intention can be imputed to him to abandon them to his lessor.</p> <p>Where a tenant having trade fixtures on the premises, secures a new lease in the nature of an extension of the old lease, and the new lease contains no reservation of the right to remove the fixtures, the tenant may keep the fixtures on the premises without giving the landlord the right to restrain their removal at or before the expiration of the second lease. In such a case the law will not require the tenant to do the vain thing of removing the fixtures one day and moving them back the next.</p>

Appeal, No. 124, Jan. T., 1903, by plaintiff, from order of C. P. Lackawanna Co., May .T., 1901, No. 338, overruling exceptions to report of referee in case of Peter Lipowicz v. William Jervis. Exceptions to report of J. W. Carpenter, Esq., referee. The referee’s findings of fact and conclusions of law were as follows: FINDINGS OF FACT. 1.

Appeal, No. 144, Jan. T., 1903, by plaintiff, from judgment of C. P. McKean Co., Oct. T., 1900, No. 355, on verdict for defendant in case of Mary A. Wharton v. Bradford City. Trespass to recover damages for death of plaintiff’s child. Before Morrison, P. J. At the trial it appeared that plaintiff’s cause of action was the death and illness of her children alleged to have been caused by a fever contracted from the drinking of water from a contaminated well.

<p>Evidence—Practice, O. C.—Act of June 25, 1895, P. L. 279.</p> <p>The Act of June 25, 1895,’ P. L. 279, relating to the tairing of testimony of nonresident witnesses applies to proceedings in the orphans’ court.</p> <p> Executors and administrators—Surcharge—Failure to sell real estate—Lack of title. </p> <p>An executor cannot be surcharged for failing to sell real estate which by the will he had been positively directed to sell, where it appears that although the testator at the time of his death had a paper title to the land in question, other parties have been in possession of the land under claim of ownership and title for thirty years, and that their possession and occupancy was of such a character as to give them a valid title under the laws of the state in which the land was situated.</p>

Appeal, No. 247, Jan. T., 1903, by W. J. Knupp, Administrator e. t. a. of Guy C. Irvine, deceased, from decree of O. C. Warren Co., March T., 1902, No. 2, dismissing exceptions to account in estate of Guy C. Irvine, deceased. Exceptions to executor’s supplemental account. The opinion of the Supreme Court states the case. JUrror assigned amongst others was in dismissing exceptions to account.

<p>Constitutional law—Delegation of legislative power—Diguor law—Acts of April 11, 1866, P. L. 658, and April 28, 1899, P. L. 68—Potter county.</p> <p>The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make its own action depend.</p> <p>The Act of April 28, 1899, P. L. 68, which repeals in express terms the Act of April 11, 1866, P. L. 658, prohibiting the sale of liquor in Potter county, is mot an unconstitutional delegation of legislative power to the voters of Potter county, because it provides that “said repeal shall not go into effect unless a majority of duly qualified voters of said county shall vote in favor of said repeal at an election to be held as provided for in section 3 of this act.”</p> <p>Mestrezat, J., dissents.</p>

<p> Mandamus—Municipalities—Councils—School hoard. </p> <p>The inconvenience to the councils and other officers of a city, or even to the taxpayers, is not in general sufficient reason for denying a mandamus.</p> <p>Where a school board has power to make a requisition upon councils for an appropriation, but makes the requisition in an ambiguous way which misleads councils into* refusing one of the items, the court will not grant a mandamus against councils, but will let the matter go over until the next annual requisition.</p>

<p>Appeals, Nos. 113, 114, 115, 116 and 117, by B. E. Turner, Patrick Cragan, George W. Sterner, John Heckman and Harry N. Knight, from decree of Superior. Court, Oct. T., 1903, Nos. 189,190,191,192 and 193, reversing decree of Q. S. Potter Co., granting liquor licenses in In re Petitions for Hotel License.</p>

<p> Insurance—Fire insurance—Proofs of loss—Evidence. </p> <p>In an action upon a policy of fire insurance it is not error to refuse the request of the defendant company to send out the proofs of loss with the jury. Proofs of loss are for the court in order that it may determine as a preliminary matter whether there has been a sufficient compliance with a condition precedent to the institution of the action. It has been uniformly held that they are not evidence for the plaintiff, and cannot be read to the jury.</p> <p>Where in an action upon a policy of fire insurance the defendant company claims that after the fire the plaintiffs failed to comply with the terms of the policy which required them to permit an examination of the property that remained, to produce their books and vouchers, and to submit to an examination under oath, and the evidence on the subject is conflicting, the case is for the jury.</p>

<p> Will—Construction—Devise—Remarriage of husband—Remainder—Acceleration. </p> <p>Testatrix by her will directed as follows: “Whatever other property I may have at the time of my death, whether real, personal or mixed, I give, devise and bequeath as follows, viz: To my children if any I have at the time of my death. Should I die without issue, then to my sister and my husband, equally for life, or in ease of my said husband, until he shall marry again. In case of the death or remarriage of my said husband his share is to go to my said sister and in case of the death of my said sister her share is to go to my said husband. Upon the death of both, the whole to go to my brother and upon his death to his children absolutely and in fee.” The husband subsequently remarried, and thereafter testatrix’s sister died. Held (1) that upon the husband’s remarriage he was completely divested of any interest in the estate; (2) that the sister’s death did not revive the husband’s former share, nor give him the sister’s share, thus placing in him the entire estate for life; (3) that upon the death of the sister the remainder was accelerated, and vested in possession in the remainderman at once.</p> <p>A remainder may be accelerated where the devisee in a life estate refuses to accept it, or where he has no capacity to take, or where the devise of the preceding estate has been revoked by the testator, or has been forfeited by some act or omission of the devisee.</p> <p>The intent of a testator is to be gathered from the whole will. Every sentence and word in it must be considered in forming a judicial opinion upon it.</p>

Appeal, No. 98, Oct. T., 1904, by defendants, from decree of C. P. Mercer Co., Oct. T., 1908, No. 1, on bill in equity in case of John R. Packard and L. L. Keck v. Tbiel College of the Evangelical Lutheran Church et al. Bill in equity to restrain the removal of Thiel College from Greenville, where it was located in 1872, to Greensburg.

Appeal, No. 23, Jan. T., 1904, by defendant, from decree of C. P. No. 8, Phila. Co., March T., 1900, No. 706, on bill in equity in case of James S. Swope v. Charles S. Snyder. Bill in equity to declare a deed void, and for a reconveyance. The court entered a decree in accordance with the prayer of the bill.

<p>Public officers—Tax collector—Election—Term of office—Acts of April 13, 1868, P. L. 1017, February 27, 1872, P. L. 179, June 25, 1885, P. L. 187, and June 6, 1893, P. L. 333. .</p> <p>Section 13 of the Act of June 25, 1885, P. L. 187, relating to the collection of taxes in boroughs and townships, which provides that the act shall not apply to any taxes the collection of which is regulated by a local law, prevents the Act of June 6,1893, P. L. 333, providing for the election of tax collectors for the term of three years in the boroughs and township of the commonwealth, from repealing the local Act of February 27, 1872, P. L. 179, which extended to Huntingdon county the provisions of the Act of April 13, 1868, P. L. 1017, establishing a special system for the collection of taxes in Bedford county.</p> <p>Commonwealth v. Wunch, 167 Pa. 186, overruled.</p>

<p>Appeal, No. 54, Jan. T., 1904, by Kate- F. Leñare, from decree of O. C. Erie Co., Nov. T., 1903, No. 19, dismissing appeal from Register of Wills in estate of Edward Hoffman, deceased.</p> <p>Appeal from register of wills.</p> <p>Walling, P. J., stated the facts to be as follows :</p> <p>Edward Hoffman made his last will on July 31, 1902, and in December, 1902, his daughter instituted proceedings in the court- of common pleas of Erie county to have him declared of weak mind under the Act of June 25, 1895, P. L. 300, entitled “ An act for the protection of persons unable to care for their own property.” In which proceeding the said court, on March 12, 1903, entered a decree that said Edward Hoffman, owing to weakness in mind, was not able to take care of his own property, and appointed a guardian for that purpose.</p> <p>Thereafter, on April 15, 1903, said Edward Hoffman, while under said guardianship, made and executed a codicil to his said last will. He died October 1, 1903. The will and codicil were admitted to probate, and thereupon Kate F. Leñare, whose legacy under the will was revoked by the codicil, took this appeal from the register’s decree admitting the codicil to probate ; and on her behalf it is urged that a subsisting decree of court declaring a person to be of weak mind under said act renders him legally incapable of making a will. It is not alleged that Edward Hoffman was, as a matter of fact, incompetent to make a will at the date of the codicil.</p> <p>The evidence of the three doctors and two lawyers who were witnesses to its execution satisfied the register of his testamentary capacity; and such capacity is also averred in respondents’ answer, and not denied.</p> <p>The codicil was in favor of Eulalia Hoffman, testator’s daughter.</p> <p>The court dismissed the petition and refused an issue.</p> <p>Error assigned was the decree of the court.</p>

<p> Contract—Consideration—Test of good consideration. </p> <p>A test of good consideration for a contract is whether the promisee at the instance of the promisor, has done, forborne or undertaken to do anything real, or whether he has suffered any detriment, or whether in return for the promise he had done something that he was not bound to do or had promised to do some act or has abstained from doing something. If any of the elements of such test be established the consideration becomes sufficient to support a promise although its inadequacy may be grossly disproportionate to the promise. The law does not consider such inadequacy.</p> <p>Where a person gives an obligation to a foreign missionary society to pay a sum of money designated, on condition that the society will expend the money in foreign mission work in a particular field, and thus establish a memorial to the donor’s mother, and the society accepts the obligation, receives a payment on account, sends missionaries to the particular field designated, and refrains from collecting other money for that field, the obligation is based upon sufficient consideration, and recovery may be had upon it against the estate of the maker after his death.</p> <p>The general trend of judicial decision is in the direction of sustaining contracts for subscriptions or donations to churches, or charitable or kindred institutions where the same have been duly accepted, their acceptance constituting a good consideration for the reason that obligations are thereby assumed. Per Thompson, J.</p>

Appeal, No. 97, Jan. T., 1903, by plaintiff, from order of C. P. Fayette Co., March T., 1900, No. 211, refusing to take off nonsuit, in case of Walker W. Laughead v. H. C. Frick Coke Company. Assumpsit for services. Before Umbel, J. The facts appear by the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 163, Jan. T., 1903, by-defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 19Ó2, No. 2397, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Continental Title & Trust Company v. John Devlin.</p> <p>Scire facias sur mortgage.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the statement of claim and the affidavits of defense are set forth in the opinion of the Supreme Court.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Attachment execution—Execution—Stock—Affidavit—Act of June 16, 1836, sec. 32, P. L. 755—Waiver of irregularity.</p> <p>After a plea of nulla bona in an attachment execution, the regularity of the process cannot be questioned; the plea is a waiver of such irregularity.</p> <p>Corporation stock, being a part of a block of stock standing in the name of a decedent, and bequeathed by him to a person for life and at her death to a nephew who was also executor, contingent upon the latter’s survival of the life tenant, cannot be attached during the life of the life tenant, by summoning the executor as garnishee in an ordinary writ of attachment execution for a personal debt of his own, without the precedent affidavit and recognizance prescribed by the 32d section of the act of June 16, 1836; but if the executor and garnishee does not move to quash the writ of attachment, but pleads nulla bona and goes to trial, he cannot after verdict and judgment against him treat the attachment as a nullity. In such a case he will be presumed to have waived the irregularity.</p>

<p> Wills—Life estate—Coal lease—Jurisdiction of orphans’ court—Executors and administrators. </p> <p>Testator owning a one half interest in coal which he and his cotenant had leased on a royalty, devised to his wife “ during her life the use of all my interest, which interest is the undivided one-half in the coal,” underlying the tract devised, with remainder to his nephew, who was also his executor. Held, (1) that the widow was entitled to the full enjoyment for life of the use of all testator’s interest in the coal ; (2) that the period of her enjoyment commenced immediately at her husband’s death ; (3) that the widow was entitled to collect the royalties herself without the intervention of the executor, there being no debts; (4) that the orphans’ court had no jurisdiction to pass upon the account of the executor made up of royalties which he had wrongfully collected, and in which accountant had taken credit for various expenses and commissions.</p>

<p> Negligence—Municipal ordinances—Elevators. </p> <p>Proof of the violation of an ordinance regulating or relating to conduct alleged to have been negligent is not in itself conclusive proof of the negligence charged. The ordinance and its violation are matters of evidence, to be considered with all other evidence in the case. But this rule is limited to cases in which the ordinance relates to the alleged negligent act under investigation.</p> <p>Ordinances and their violation are admissible, not as substantive and sufficient proof of the negligence of the defendant, but as evidence of municipal expression of opinion, on a matter as to which the municipal authorities had acted, that the defendant was negligent and are to be taken into consideration with all the other facts in the case.</p> <p>In an action to recover damages for personal injuries sustained by an alleged defect in an elevator, the specific act of negligence charged in the statement of claim was that the fall of the elevator was due to the breaking of a brake or shifter, which was alleged to be out of order. The court admitted under objection and exception a city ordinance which made it the duty of the owner or operator of an elevator after its inspection, to procure from the inspector a certificate that it is in condition to be operated, and to expose the certificate to public view as near as possible to the elevator car. The court also admitted another ordinance which provided that whenever any elevator should be in need of repairs in respect to its operation, or necessitating its temporary disuse, or any accident should occur affecting life or limb, notice should be given to the proper authorities, and the elevator should not again be put in use until inspected and approved by the inspector. There was no testimony, however, that, before the day on which the plaintiff was injured, there was any duty on the defendant company to notify the chief of the bureau of building inspection of the impairment or disuse of the elevator, due to the defective shifting rod, or of any accident occurring in it that required the suspension of its operation until an inspection was made and its condition had been approved by the inspector. Held, that the ordinances had no relation to the specific act of negligence charged, that their admission tended to confuse and mislead the jury, and that a verdict and judgment for plaintiff should be reversed.</p>

<p>Appeal, No. 286, Jan. T., 1903, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1900, No. 903, on verdict for plaintiff in case of Pure Oil Company v. Howard Terry, Assignee, and the Real Estate Trust Company of Philadelphia.</p> <p>Assumpsit on a replevin bond. Before Brégy, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,788. Defendant' appealed.</p> <p>Error assigned was refusal of defendant’s point, quoted in the opinion of the Supreme Court.</p>

<p> Wills—Life estate—Remainder—Estate in fee simple. </p> <p>Testator after having given his wife a life estate directed as follows: “And further, from, and immediately after the decease of my said wife, I do give, devise and bequeath unto my son his heirs, executors, administrators and assigns, to, and for, his own use only and behoof forever, all the rest residue and remainder of my estate real, personal and mixed whatsoever and wheresoever, except the three bequests hereafter named to be paid on and after the death of my said wife, providing nevertheless that if my said son shall depart this life without leaving lawful issue to survive him and my said wife being also deceased, then it is my will and I do hereby give, devise and bequeath unto the three daughters of C. the sum of three thousand dollars.” After other bequests he gave his residuary estate to charities. The widow died after testator, and the son died after his mother, unmarried. Held, that upon the death of testator’s widow the son took an absolute estate in fee simple.</p>

Appeal, No. 245, Jan. T., 1904, by-defendant, from judgment of C. P. Luzerne Co., May T., 1900, No. 494, on verdict for plaintiff in case of R. P. Kelchner and Emma Kelchner v. Nanticoke Borough. Trespass to recover damages for personal injuries. Before Wheaton, J. The circumstances of the accident are stated in the opinion of the Supreme Court. The following were the questions submitted to the jury and the answers thereto: 1.

<p> Partnership—Executors and administrators—Profits. </p> <p>An executor who is also the son of the testator, cannot be held personally liable as a partner in a banking business in which the testator was a partner, merely because he permits as executor, the testator’s capital to remain in the business, and permits credits to be entered in his pass book as executor for a share of the profits, of the business.</p>

<p> Timber—Trespass—Damages. </p> <p>In an action of trespass where it appears that the defendant through a misapprehension as to property lines entered upon plaintiff’s land, cut timber thereon, opened roads through it, and cut and piled underbrush along the roads, the measure of damages is the value of the timber taken, compensation for the loss of the use of the land occupied by the roads, and cost of removing or burning up the brush. In such a case it is error for the court to charge the jury that they might take into consideration the element of danger from fire by reason of the brush heaps “ as bearing upon the effect which the act had upon the market value of the property.”</p>

<p> Negligence—Railroads—“Stop, look and listen.” </p> <p>Where a person approaches a grade crossing where there are three tracks, and where there are cars standing on both sides of the crossing, and stops, looks and listens at a point where people usually stopped before crossing the railroad, the question whether he should have stopped again at another point is a question for the jury, and not for the court.</p> <p> Practice, C. P.—Submission of question to fury—Reserved question. </p> <p>■ Where the trial judge submits a specific question to the jury to be answered by them, yes or no, and the jury answers the question in favor of the plaintiff, it is error for the trial judge to enter judgment for defendant on the ground that the evidence was insufficient to sustain the finding. If the fact was improperly found, the remedy is a new trial.</p> <p>The trial judge cannot himself draw conclusions of fact from the evidence.</p> <p>Hence a reserved question must be a pure question of law. It cannot be a mixed question of law and fact, for that would necessarily draw to the • court what properly belongs to the jury.</p>

<p>Appeal, No. 13, Jan. T., 1904, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1902, No. 379, on verdict for plaintiff, in case of Sarah Wine-berg v. DuBois Borough.</p> <p>Trespass to recover damages for personal injuries. Before Gordon, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for §1,750. Defendant appealed.</p> <p>Error assigned amongst others was portion of charge quoted in the opinion of the Supreme Court.</p>

<p>Appeal, No. 32, Jan. T., 1904, by plaintiffs, from order of C. P. Clearfield Co., May T., 1903, No. 58, entering judgment for defendant non obstante veredicto in case of Grace Coolbroth and Charles Coolbroth, her husband, v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Gordon, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Defendant presented, inter alia, the following point:</p> <p>First. The court is respectfrilly requested to direct a verdict in favor of the defendant for the following reasons ;</p> <p>1. Because it appears by the testimony of plaintiff herself that the point where she stopped to look and listen was to the south side of the Irvin siding and before she got quite to the siding, which is shown by the testimony of her engineer, Mr. Moore, to have been over fifty-three feet along the sidewalk from the track where she was struck.</p> <p>2. Because it appears by some of her witnesses who were a considerable distance from the train that they were able to see the train and did see it, and are able to state approximately the distance they were from it.</p> <p>3. Because the plaintiff was not injured on the track, but just as she was about to step on the track before a locomotive, which is shown by uncontradicted testimony to have been equipped with a proper headlight.</p> <p>4. Because it appears by the testimony on the part of the plaintiff that the box cars and the lumber pile were necessarily out of view after she passed the Irvin siding, and that there was no obstruction between the Irvin siding and the track where she was struck, and that the distance between them along the sidewalk is forty-five feet.</p> <p>5. Because the plaintiff was struck on the back, showing that she had her face away from the direction from which this train came.</p> <p>6. Because the place at which she stopped over fifty-three feet from the track was shown by the testimony to have been a point where the view was obstructed; while on the ground she passed over after crossing the siding and in which she did not stop, the view was unobstructed for over 300 feet.</p> <p>7. Because the testimony shows that at any point within the space from the Irvin siding to the track at which she was struck along the sidewalk there was an unobstructed view of the approaching train for several hundred feet; that immediately before stepping on the track she would have had a view of over 300 feet and this view would be widened in the direction from which she came.</p> <p>8. Because there is no testimony upon the part of the plaintiff that no bell was rung or whistle sounded; the witnesses only stating that they did not hear such signals, and none of the witnesses are shown to have had any relation to the train which specially called their attention to the signals, and this testimony against the positive testimony of the engineer, fireman, and brakeman that the signals were given is insufficient to justify a finding by the jury that they were not given.</p> <p>9. Because none of. the witnesses who testified on the part of the plaintiff in relation to the speed of the train are shown to have had any qualification or experience to enable them to judge of its speed, and it is testimony of such vague character as would be overborne by the positive testimony of the engineer, fireman, brakeman and conductor, and by the schedule of the train.</p> <p>Answer: This point asks us to take the case from the jury, but in the view we take of it at this time we cannot do that, and we therefore refuse this point and will reserve the question for future consideration.</p> <p>Verdict for Grace Coolbroth for $1,000 and for Charles Cool-broth for $2,000.</p> <p>The court entered judgment for defendant non obstante veredicto. ■ •</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, by James W. Friend and Harry T. Friend, from decree of O. C. Allegheny Co., Sept. T., 1902, No. 96, dismissing exceptions to adjudication in estate of Rebecca Jane Friend, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Supreme Court. Error assigned was the decree of tbe court.

<p>Appeal, No. 30, Jan. T., 1904, by plaintiffs, from order of C. P. Warren Co., March T., 1903, No. 10, refusing to take off nonsuit in case of N. S. Higby and Charles A. Higby v. Pennsylvania Railroad Company and John Gallagher.</p> <p>Trespass to recover damages for personal injuries. Before Lindsey, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 100, Jan. T., 1904, by Morris Wolf, guardian of Grace DeLancey Newlin, from decree of O. C. Delaware Co., dismissing exceptions to auditor’s report in estate of DeLancey Y. Newlin, deceased.</p> <p>Exceptions to report of Isaac E. Johnson, Esq., auditor.</p> <p>The auditor stated the facts to be as follows:</p> <p>DeLancey V. Newlin, the testator, died on April 28,1900, less than one month after the execution of his will and on May 31,1900, a posthumous child, Grace DeLancey Newlin, was born. At the time of the execution of this will, DeLancey V. Newlin had no children, although he was expecting the birth of a child. The question which arises for the auditor’s determination is whether the provisions in the will constituted a sufficient provision for a child born after the execution of a will to prevent intestacy as to such child in accordance with the Act of April 8,1833, section 15, P. L. 249. This section reads as follows : “ When any person shall make his last will and testament and afterwards shall marry or have a child or children not provided for in such will, and die, leaving a widow and child, or either a widow or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child or children after-born, shall be deemed and construed to die intestate and such widow, child or children shall be entitled to such purparts, shares and dividends of the estate, real and, personal, of the deceased, as if he had actually died without any will.”</p> <p>The will of Mr. Newlin contained the following disposition of his property :</p> <p>One third of the estate, real and personal, was devised and bequeathed to the Girard Trust Company and Arthur Newlin, in trust to pay the income “ to my wife, Grace W. Newlin, during her life, and upon her death to such person or persons as by her last will and testament she may direct.”</p> <p>Another one third of the estate was devised to the same trustees in trust for his wife as long as she’ should live and remain unmarried; but, upon her death or remarriage, the trustees were to pay over to the guardians of the minor children the interest on their shares ; and upon the sons attaining the age of twenty-one, his or their share was to be turned over to him or them absolutely, the words used in the will being “ his or their share of the principal of the within-named trust,” but it was provided- that “ upon the death of my said son or sons, or any of them before reaching the age of twenty-one, then I direct that his or their share or shares shall be paid and divided amongst my said surviving children in equal portions, share and 'share alike.” The same provision was made in the ease of any daughters, except that their shares of the estate were to continue in the hands of the trustees.</p> <p>The residue of the estate was left to the trustees to pay the income thereof to the testator’s wife during the minority of the child or children and “ during the period of which my wife shall remain unmarried after my death,” but it provides that “ upon each of my sons reaching the age of twenty-one, the trustees are to assign, transfer, set over and pay unto the same his share of the principal of this one-third of my estate, absolutely in fee, and upon the death of my said son or sons, or any of them, before reaching the age of twenty-one, then I direct that his or their share or shares shall be paid and divided amongst my said surviving children in equal portions, share and share alike,” and similar provisions in this case as in the former were made for the daughters, except that their share or shares were to continue in the hands of the trustees.</p> <p>The auditor held that the will was not revoked by the birth of the daughter.</p> <p>Exceptions to the auditor’s report were dismissed by the court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 85, Oct. T., 1904, by defendant, from judgment of 0. & T. Washington Co., Feb. T., 1904, No. 25, on verdict of murder in the first degree in case of Commonwealth v. Milovar Kovovic.</p> <p>Indictment for murder. Before Taylor, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder in the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were (3) the statement quoted in the opinion of the Supreme Court, and (39) in instructing the jury in effect, that their verdict should be either “ guilty of murder in the first degree ” or “not guilty.”</p>

<p> Trust and trustees—Deed of trust. </p> <p>Where a settlor by a deed of trust gives to his wife certain real estate with the usual active duties of a trustee, and directs his wife during her lifetime to use the net income of the estate to and for the maintenance and support of herself and of two children, naming them, and to such other children as might thereafter be born to the settlor and his wife, the widow has the right to use the whole income at her discretion for the support of herself and children, and a child who has left the mother’s domicile has no standing to demand a portion of the income.</p>

<p>Appeal, No. 135, Jan. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., Feb. T., 1900, No. 51, on verdict for defendant in case of John A. Brown, Ancillary Administrator of Walter Gr. Wilson, deceased, trading as Walter Gr. Wilson & Company, v. John F. Mentzer, Trustee of Harvey B. Bitzer.</p> <p>Replevin for seventy-three cases of leaf tobacco. Before Landis, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was in giving binding instructions for defendant.</p>

<p>Appeal, No. 187, Jan. T., 1903, by defendant, from judgment of C. P. Lancaster Co., May T., 1901, No. 94, on verdict for plaintiffs in case of Elizabeth Hager Herr, Executrix of' M. L. Herr, deceased, and John H. Baumgardner v. Lucy D. Reinoehl.</p> <p>Feigned issue to determine the ownership of the proceeds of two policies of life insurance.</p> <p>On a rule for a new trial Landis, J., stated the facts to be as follows:</p> <p>On May 10, 1901, suit was commenced in the name of Lucy D. Reinoehl, to the use of Dr. M. L. Herr and John H. Baumgardner, transferees, against the Washington Life Insurance Company of New York, to recover the amount of two policies of insurance of $1,000 each, upon the life of Adam C. Reinoehl, the husband of the said Lucy D. Reinoehl. Thereupon the defendant presented its petition, whereby, admitting that it had issued the said two policies it averred that on May 11, 1901, Lucy D. Reinoehl, the beneficiary named in the said policies, had also brought an action of assumpsit, to June term, 1901, No. 1, to recover the identical moneys, and as the said company had no interest therein, and was liable to be put to the expense of defending two actions, and to be subjected to the risk of being compelled to pay the money twice, it prayed the court to order the said M. L. Herr, and John H. Baumgardner, transferees, and the said Lucy D. Reinoehl to inter-plead. Thereupon, the court having granted a rule to show cause, subsequently, to wit: on July6,1901, ordered the said Lucy D. Reinoehl to be made a party to the present suit; that the said parties should interplead, Dr. M. L. Herr and John H. Baumgardner, transferees, being plaintiffs and Lucy D. Reinoehl, defendant, and that the said Washington Life Insurance Company should be granted leave to pay the money claimed into court, with interest to the date of its payment, and costs. This was accordingly done.</p> <p>The main facts out of which this controversy arises are as follows : On June 12, 1879, the said life insurance company, in consideration of $15.70, duly paid to it by Lucy Reinoehl, wife of Adam C. Reinoehl, issued a policy numbered 36,618, on the life of Adam C. Reinoehl for the sum of $1,000, and the said company thereby promised and agreed “ to pay the amount of the said insurance .... to the said assured (Lucy D. Reinoehl), for her sole use, if living, and if not living, to the children of Lucy and Adam C. Reinoehl, or their guardian, if under age, for their use, or if there be no such surviving children, then to the executors, or administrators of the said Adam C. Reinoehl.” On June 12, 1881, a similar policy was issued, numbered 40,227, upon the life of said Adam C. Reinoehl for a like amount. The words of the covenant contained therein as to the beneficiaries are exactly the same as those contained in the first recited policy.</p> <p>On October 20, 1900, Adam O. Reinoehl and Lucy D. Reinoehl, his wife, executed assignments of their interests in said policies to the plaintiffs. The said assignments are attached to each of the said policies, and read as follows: “For one dollar, to me in hand paid, and for other valuable considerations (the receipt of which is hereby acknowledged), I hereby assign, transfer and set over all my right, title and interest in policy No. 36618 on the life of Adam C. Reinoehl, issued by the Washington Life Insurance Company of New York. The Washington Life Insurance Company assumes no responsibility as to the validity of this assignment to Dr. M. L. Herr and John H. Baumgardner, of Lancaster city, Pa., and for the consideration above expressed, I do also for myself, my executors and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above named assignees, their executors, administrators or assigns, and their title to the said policy will forever warrant and defend. Dated at Lancaster, Pa., this 20th day of October, 1900. (Signed) A. C. Reinoehl; Lucy D. Reinoehl, wife. In presence of Mary Acheson MacFarren.” To each of the assignments was pasted or pinned a paper, which read as follows: “ Collateral security to M. L. Herr and John H. Baumgardner as sureties on note of $1,000, First National Bank, October 3, 1900, 90 days and any renewals, and secondly, for any other indorsements. (Signed) A. C. Reinoehl.”</p> <p>The said Adam C. Reinoehl died the latter part of the year 1900. Prior to his death, to.wit: on October 3,1900, he gave his note to the order of M. L. Herr and Jolm H. Baumgardner, payable at First National Bank of Lancaster, for the sum of $1,000. This note was indorsed by M. L. Herr and John H. Baumgardner, and being subsequently protested for nonpayment, was paid by the plaintiffs on May 10, 1901, by giving their joint note to the bank. On October 24, 1900, the decedent gave his note to the order of M. L. Herr, payable at the Fulton National Bank of Lancaster, for $1,175. M. L. Herr indorsed it, but Major Reinoehl got the benefit of it and Dr. Herr paid it after Reinoehl’s death. On May 2, 1900, Major Reinoehl and J. H. Baumgardner had given their joint note for $1,000 to the Peoples’ Building, Loan & Deposit Company, payable in six months after date. Reinoehl got the money for the note and Mr. Baumgardner paid it on December 31, 1900, to the building association.</p> <p>At the trial the court gave binding instructions for plaintiffs.</p> <p>Verdict and judgment for plaintiffs for $2,200. Defendant appealed..</p> <p>Error assigned among others was in giving binding instructions for plaintiffs.</p>

Appeal, No. 265, Jan. T., 1903, by defendant, from judgment of C. P. York Co., Aug. T., 1902, No. 62, on verdict for plaintiff in case of Wells Whip Company v. Tanners Mutual Fire Insurance Company. Assumpsit on a policy of fire insurance. Before W. F. Bay Stewabt, J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 16, Jan. T., 1904, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1901, No! 1, on verdict for plaintiff, in case of Elizabeth Ranck v. Preston E. Brackbill. Assumpsit for the breach of promise of marriage. Before Endlich, J., specially presiding. At the trial it appeared that there was no controversy as to the fact of an engagement to marry. The dispute turned on the question as to which party had broken the contract.

Appeal, No. 98, Jan. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., Nov. T., 1901, No. 4, on verdict for plaintiff in case of Sarah Pioso v. Martha A. Bitzer, Transferee of Uriah Bitzer. Feigned issue to determine the ownership of a policy of life insurance.

Appeal, No. 132, Jan. T., 1903, by plaintiff, from order of O. C. Lancaster Co., Nov. T., 1902, No. 21, dismissing exceptions to auditor’s report in case of Henry E. Miller, executor of Hiram K. Miller, deceased, v. Emeline S. Miller, widow and administratrix of Hiram K. Miller, deceased. Exceptions to report of A. F. Hostetter, Esq., auditor. The facts appear by the opinion of the Supreme Court. Exceptions to the auditor’s report were dismissed by the court.

<p>Appeal, No. 216, Jan. T., 1904, by defendants, from judgment of C. P. Lancaster Co., Jan. T., 1901, No. 67, on verdict for plaintiff in case of Harry C. Young v. A. W. Geiske and C. R. Strickler.</p> <p>Trespass to recover damages for trade libel. Before Landis, P. J. Plaintiff’s statement was as follows :</p> <p>This action is brought by Harry C. Young, of Columbia, Pa., plaintiff, against A. W. Geiske and C. R. Strickler, defendants, to recover the sum of §10,000 damages suffered by the plaintiff at the hands of defendants, and by their trespass, injury and damage to the rights and property of the plaintiff.</p> <p>The plaintiff avers that on or about, and for a long time prior to December 15, 1900, he was the owner of 121 shares of stock in and of the Columbia Flint Company, a corporation doing business in the county of Lancaster and said stock was worth at a fair valuation, at public sale, §75.00 per share, and had sold at that price very shortly before the occurrence hereinafter recited, and that its' par value was $50.00 per share, and it paid large dividends; that some time prior to December 15, 1900, A. S. Jackson, auctioneer, at the request of plaintiff, advertised said stock at public sale, at Hotel Columbia, in the borough of Columbia; that the defendants, for the purpose of depreciating the value of said stock, and to prevent its sale, at a fair market price, and contriving to injure and depreciate the property of plaintiff, wrote, published and caused to be printed and published in the Columbia Daily Spy, a newspaper published in the borough of Columbia, a notice, of which the following is a copy:</p> <p>“Notice.—The dividend of 5 per cent, on the capital stock of the Columbia Flint Company, as announced in the papers of the 12th inst., was illegally declared and cannot be paid owing to lack of funds in the treasury.</p> <p>“ The company’s plant has not been in operation for a long time.</p> <p>“A Director.”</p> <p>That both of said defendants caused said notice to be written, published and circulated on December 12,13 and 14,1900, and procured and paid for such publication, with the intent and purpose of depreciating the value of said stock, and of preventing its sale at a fair price, and that said notice was widely read and so prejudiced, and affected the sale of said stock, that whereas it was worth $75.00 per share, and would have brought that price, it sold for the sum of $13.00 per share, and no higher price could be obtained for it by reason of said publication.</p> <p>Wherefore plaintiff suffered damages and was injured to the amount of the difference between $75.00 per share, which said stock was worth, and $13.00 per share, at which said stock was, and only could be, sold.</p> <p>Wherefore plaintiff has suffered damages from defendants to the amount of $10,000 and is entitled to recover the same in this action.</p> <p>At the trial the plaintiff offered evidence tending to show that the publication was false and malicious.</p> <p>Defendants presented this point:</p> <p>Under the law, the pleadings and the evidence, the verdict should be for the defendant. Answer: Refused.</p> <p>Plaintiff presented this point:</p> <p>1. If the jury believe from all the evidence in the case that the defendants published the notice, signed “ A Director,” maliciously, for the purpose of depreciating the value of the stock ; that the statements therein contained, or a material portion of them, were false ; and that the effect of the publication was to make the stock sell, at a fair public sale, below its real market value, they should find for the plaintiff in such amount as will fairly compensate him for his loss. Answer: We say to you that if the jury believe from all the evidence in the case that the defendants published the notice signed “ A Director,” maliciously, for the purpose of depreciating the value of the plaintiff’s stock, and the effect of the false publication was intended to, and did depreciate the stock of the plaintiff, in such case the jury can find for the plaintiff, in accordance with the rules as laid down in the general charge, to which reference is made. With this explanation the point is affirmed.</p> <p>Errors assigned were (1, 4) above instructions, quoting them.</p>

<p> Wills—Remainder—Vested and contingent estates. </p> <p>The will of testatrix directed “ the balance of my estate I give to my granddaughter when she shall arrive at the age of twenty-one years; but in case of her death, without an heir before she shall reach the age of twenty years, the portion that would have fallen to her, shall be divided as follows:” naming the secondary beneficiaries. The granddaughter died without a child before she reached the age of twenty years. Held, (1) that the provision as to death “without an heir,” meant without a child; (2) that the gift to the granddaughter was contingent on her arrival at twenty-one years, and as she died before that age it never vested; and (3) that upon the granddaughter’s death the secondary beneficiaries took under the gift over to them.</p>

<p> Will—Remainders—Vested and contingent estate—Exclusion of husband. </p> <p>Testatrix provided as follows: “ It is my will that all the remaining portion of my estate of every Idnd shall fall to my daughter, but under the following restrictions, viz: I intend that no portion of my estate shall fall to my husband, or to his relatives on his father’s or mother’s side; but in case of the death of my daughter without her having heirs, my estate is to fall to my mother, which in case of her death before said property shall fall into her hands, then it is to fall to her heirs and legal representatives.” Testatrix’s mother died first, and her death was followed by the death of the daughter. Held, that neither the husband nor his relatives could claim through the daughter as heir of her grandmother.</p>

Appeal, No. 97, Jan. T., 1904, by Ellen Baughman, from decree of O. C. York Co., sustaining exceptions to auditor’s report in estate of L. K. Heathcote. Exceptions to the report of J. R. Strawbridge, Esq., auditor. The facts are stated in the opinion of the Supreme Court. Errors assigned were in sustaining exceptions to auditor’s report.

<p> Judgment—Lien—Decedent’s estates—Heirs and devisees. </p> <p>The lien of a judgment obtained during the life of a decedent continues indefinitely as against his heirs and devisees, although its priority may be lost as to other judgments against the decedent by the lapse of more than five years between two revivals, or as to mortgagees or judgment creditors of devisees by the failure at a revival to give notice to them, as provided by the Act of June 18, 1895, P. L. 197. Amere assignment of the interests of devisees as security for judgments confessed by them will not end the lien of the judgment against the decedent, so as to deprive the orphans’ court of jurisdiction to sell the land for the payment of decedent’s debts.</p>

<p>Appeal, No. 130, Jan. T., 1904, by defendant, from judgment of O. & T.'Clearfield County, Dec. T., 1903, No. 44, on verdict of guilty of murder of the first degree in case of Commonwealth v. John W. Williams, alias “Black Spot.”</p> <p>Indictment for murder.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned among others were (1) rejection of offer quoted in the opinion of the Supreme Court; (6) in not granting a new trial because of the separation of the jury.</p>

<p>Taxation—Tax assessment—County commissioners—Board of revision— Oath.</p> <p>A failure of county commissioners to be sworn as a board of revision does not invalidate a tax assessment made by them when acting as such aboard.</p> <p>Taxation—Tax assessment—Transcript—Act of April 15, 1834, P. L. 509—Costs.</p> <p>A tax assessment is not invalid because the county commissioners acting as a board of revision send to the assessor the original instead of a transcript of the triennial assessment as required by sec. 11 of the Act of April 15, 1834, P. L. 509.</p> <p>Where a bill in equity is filed to declare invalid a tax assessment because of irregularities of the county commissioners, and it appears that the county commissioners were guilty of irregularities, but not of such a character as to invalidate the assessment, the court in dismissing the bill may properly impose the costs upon the county.</p>

<p>Appeal, No. 51, Jan. T., 1904, by defendant, from judgment of C. P. Northumberland Co., Feb. T., 1900, No. 173, on verdict for plaintiffs in case of Walton H. Montelius and Thomas M. Righter, executors of Alfred M. Montelius v. William T. Montelius.</p> <p>Ejectment for land in the borough of Mount Carmel.</p> <p>Verdict and judgment for plaintiffs by direction of the court.</p> <p>Errors assigned were (1) in ruling out the evidence referred to in the opinion of the Supreme Court; (2) in giving binding instructions for plaintiffs.</p>

<p>Appeal, No. 5, May T., 1904,' by plaintiff, from judgment of C. P. Dauphin Co., June T., 1908, No. 290, on verdict for defendant in case of Catharine E. Bowers v. Samuel W. Rineard and Milton G. Potts, executors of Samuel Rineard, deceased.</p> <p>Assumpsit on a promissory note. Before Jacobs, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Plaintiff presented the following points:</p> <p>1. The presumption is, in an action between tbe parties to a nonnegotiable note with apparent alterations on its face, that said alterations were made prior to the execution and delivery of said note, unless the said alterations are material and prejudicial to the maker, and impose some burden or peril upon him. Answer : This is refused. [1]</p> <p>2. The alterations, although apparent and made in material parts of the note in suit, are not prejudicial to the maker, or beneficial to the payee, and therefore the presumption that they were made prior to the execution and delivery of the note remains, unless overcome by the evidence in the case, and the case is for the jury on all the circumstances. Answer : This is refused. [2]</p> <p>3. If the jury believe that the note in suit remains now in all particulars as made when executed by Samuel Rineard and delivered to the plaintiff, then the verdict should be for the plaintiff for the amount of the note and interest. Answer: This is refused; there being no evidence upon which they can find that fact, and the court has taken the question from the ]'ury- [3]</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them; (4) in giving binding instructions for defendant.</p>

<p>Appeal, No. 2, May T., 1904, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1902, No. 207, on verdict for defendant in case of W. H. Lyons and H. H. Treon, Tenants of Frank A. Rieker, owner, trading as Lyons & Treon, v. Philadelphia & Reading Railway Company.</p> <p>Appeal from report of viewers.</p> <p>From the record it appeared that plaintiffs who were liquor dealers, entered into a verbal undertaking with Rieker, the then owners, the terms of which were that they agreed to pay twenty-five cents for each barrel of beer more than the regular price elsewhere, as rental. The rental was “ payable just as the beer bill was payable—-paid at all times, .... along different periods,—running account .... sometimes every week they got a check.” The understanding was that the plaintiffs “ had a right to remain on that lot as long as you (they) wanted,” or, as the owner’s son testifies, they “could have stayed as long as they felt.”</p> <p>The tenants erected buildings on the premises which were used for bottling, storage, liquor-room and offices,—and also a stable, wagon shed, coal shed and outbuildings and machinery necessary to the conduct of their business.</p> <p>The defendant company being desirous to enter upon the lands for railroad uses, presented a bond in the usual form, which was approved May 16, 1901, and thereafter viewers were appointed for the purpose stated.</p> <p>The defendant gave notice to the plaintiffs December 20, 1901, that it desired possession of the lot March 1, 1902, and stated the notice was given to allow them time to arrange their affairs, but did not take actual possession of the premises until June 4, 1902.</p> <p>The plaintiffs disregarded the notice, and the railroad company proceeded to the demolition of the buildings. The court gave binding instructions for defendant.</p> <p>JError assigned was in giving binding instructions for defendant.</p>

Appeals, Nos. 3 and 4, May T., 1904, by plaintiffs, from judgment of C. P. Dauphin Co., June T., 1902, No. 364, on verdict for defendant non obstante veredicto in case of John Lodge by his next friend and father George H. Lodge and George H. Lodge in his own right v. United Gas Improvement Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 6, May T., 1904, by plaintiff, from decree of Superior Court, March T., 1903, No. 21, reversing decree of C. P. Dauphin Co., Equity Docket, No. 298, continuing preliminary injunction in case of Pennsylvania Telephone Company v. Charles Hoover.</p> <p>Appeal from Superior Court.</p> <p>Error assigned was decree of Superior Court.</p>

<p>Equity—Parties—Judge’s salary act—Act of April 14, 1903, P. L. 175.</p> <p>Where the court of common pleas has upheld the constitutionality of the judge’s salary act of April 14, 1903, and has awarded a peremptory writ of mandamus against the state treasurer, a private citizen has no standing to file a bill in equity to restrain the writ from being enforced and the salaries paid.</p>

Appeal, No. 200, Jan. T., 1908, by Jane E. Robinson, from decree of O. C. Phila. Co., Jan. T., 1888, No. 120, sustaining exceptions to adjudication in estate of Louisa R. Vance, deceased. Exceptions to adjudication.

<p>Appeal, No. 1, Jan. T., 1904, by plaintiff from decree of C. P. No. 2, Pbila. Co., Dec. T., 1899, No. 286, dismissing bill in equity in case of Van Stan’s Stratena Company, Limited, v. Victor F. Van Stan.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned among others was decree dismissing the bill.</p>

<p>Appeal, No. 93, Jan. T., 1903, by plaintiff, from Order of C. P. Luzerne Co., Jan. T., 1900, No. 12, refusing to strike off non-suit, in case of Eugene N. Alexander v. The Nanticoke Light Company.</p> <p>Trespass to recover damages for personal injuries. Before Ferris, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 94, Jan. T., 1903, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1899, No. 759, on verdict for defendant, in case of Annie Crowe v. Nanticoke Light Company. Trespass to recover damages for death of plaintiff’s husband. Before Wheaton, J. See Alexander v. Nanticoke Light Co., ante, p. 571 and Crowe v. Nanticoke Light Co., 206 Pa. 374. Verdict and judgment for defendant. Errors assigned were various instructions.

Appeal, No. 192, Jan. T., 1908, by defendants, from decree of C. P. Luzerne Co., Feb. T., 1901, No. 4, on bill in equity in case of Thomas R. Coward et al. v. George J. Llewellyn. Bill in equity for an injunction. Before Little, J., specially presiding. The opinion of the Supreme Court states the case.

<p>Equity—Road law—Railroads—Grade crossing—Act of June 7, 1901, P. L. 531.</p> <p>A bill in equity to regulate the crossing of a highway over a railroad is properly brought, where it appears that there are several distinct parties all necessary to the litigation, whose rights, duties and obligations are not clearly defined. While such a bill is pending, a party defendant therein has no standing to file a petition under the Act of June 7, 1901, P. L. 531, to regulate the crossing.</p>

<p> Statutes—Repeal—Substitute. </p> <p>A subsequent statute revising the subject-matter of a former one and evidently intended as a substitute for it, although it contains no express words to that effect must operate to repeal the former to the extent to which its provisions are revised and supplied.</p> <p>Statutes—Repeal—Grade crossings—Railroads—Highways—Acts of June 13, 1836, P. L. 551, and June 7, 1901, P. L. 531.</p> <p>The Act of June 7,1901, P. L. 531, repealed the Act of Junó 13, 1836, P. L. 551, in so far as the latter related to highway crossings of a railroad at grade.</p> <p>The act of June 7, 1901, transferred from the quarter sessions to the common pleas jurisdiction of the crossings of railroads over highways. If at the time the act of 1901 went into effect, proceedings were pending in the quarter sessions, such proceedings became a nullity.</p> <p> Road law—Railroads—Grade crossings—New crossing. </p> <p>The crossing of a highway leading from a bridge in course of construction over a railroad near the exit from the bridge will be considered a crossing “ hereafter established ” within the meaning of the Act of June 7, 1901, P. L. 531, where it appears that although there had been a crossing over the railroad by a road leading from an ancient ferry, the contemplated crossing was not only in a different place on the trades, but was intended to accommodate more people.</p> <p>A court of equity will under the Act of June 7,1901, P. L. 531, enjoin the construction at grade over a railroad of a highway leading from a county bridge, where it appears that the proposed crossing was at the foot of a hill, at the entrance of the railroad shifting yard near a water tank and station, that ten passenger trains and more than twenty freight trains passed the point every twenty-four hours; that the travel to the station on the crossing would be largely increased by the completion of the bridge, and that an overhead crossing could be easily made at an increased cost of only $4,000 to the county.</p> <p>Equity—Remedy at law—Road law—Railroads—Act of June 7, 1901, P. L. 531.</p> <p>A bill in equity to regulate the crossing of a highway over a railroad will not be dismissed on the ground that there is an adequate remedy at law by petition under the Act of June 7, 1901, P. L. 531, where it appears that there are several distinct parties all necessary to the litigation, whose rights, duties and obligations are not clearly defined.</p> <p>To induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. An existing remedy -at law to induce equity to decline the exercise of its jurisdiction in favor of a suitor, must be an adequate and complete one. And when from the nature and complications of a given case, its justice can best be reached, by means of the flexible machinery of a court of equity, in short where a full, perfect and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice.</p> <p>While objection to the jurisdiction can, generally, be made at any stage of the proceedings, objections to the jurisdiction of equity on the ground that proceedings should have been instituted on the law side of the court will not be entertained, unless made within a reasonable time after bill filed. Such objection should be taken advantage of by demurrer.</p>

Appeal, No. 222, Jan. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1899, No. 82, on verdict for plaintiff in case of Maria Groff v. Abram E. Groff and Wayne I. Groff, executors of Solomon C. Groff, deceased. Assumpsit upon a promissory note. Before Butler, J., specially presiding. At the trial the issue turned largely upon the question of the validity of the signature to the note in suit.

<p> Negligence—Sidewalk—Hole in sidewalk—Contributory negligence—Province of court and jury. </p> <p>In an action against a water company to recover damages for personal injuries, it appeared that the plaintiff, a woman, was injured by falling into a hole twenty-four inches in diameter and six feet deep that had been dug in the pavement of a city street by direction of the defendant. The hole was located almost directly in front of steps that led to the office of a cold storage house, and twenty inches of its diameter were in the sidewalk. In digging the dirt had been thrown into the street and there was nothing on the surface of the pavement to indicate that the hole was there. It was dug in the morning and left unguarded; the accident occurred in the middle of the afternoon. At this part of the street the distance between the curb and the building line was ten feet, but of this space only four feet nearest the curb line were paved. On the remaining space was a grass plot extending from the west end of the storage house to the office steps, crossed near the middle by a walk leading from the pavement to the engine room. The plaintiff and another woman went together to the storage house on business. They came on the street by way of an alley at the west end of the building, but turned to the east before they reached the pavement and walked on the grass plot to the engine room door. They saw the engineer sitting on the office steps, and walked on to the end of the plot to the paved way leading from the steps to the pavement. Here they stood a short time facing the building and talking to the engineer. Then they turned to the right to go further east on the pavement. In turning the plaintiff took one step backward and sideways, and fell into the hole. Both women wore sunbonnets, which obstructed a side view. Neither of them had seen the hole, nor anything that would indicate that the pavement was unsafe. Held, that it was for the jury to say whether the plaintiff was guilty of contributory negligence in taking the step backward without first looking behind her.</p> <p> Evidence—Carlisle Table—Charge. </p> <p>A trial judge sufficiently instructs the jury as to the weight to be given to the Carlisle Tables when he says that the result set forth in the table is not to be taken as a fact in the case, but only as an aid in arriving at what might be the continuation of life, and that the duration of life depends largely upon the condition of health, habits and conduct of the person.</p>

Appeal, No. 217, Jan. T., 1903, by defendant, from judgment of C. P. Northumberland Co., Jan. T., 1903, No. 217, on verdict for plaintiff in case of George D. Bucher v. Northumberland County. Trespass to recover damages for personal injuries. Before Auten, J. At the trial it appeared that on January 3, 1899, the plaintiff fell on an icy pavement of the courthouse in Sunbury. At the trial defendant presented, inter alia, the following points : 18.

<p>Appeals, Nos. 142 and 143, Oct. T., 1904, by A. E. Fretts et al., from decree of O. P. Westmoreland Co., No. 468 in equity in case of William M. Swank v. A. E. Fretts and C. B. Coon.</p> <p>Bill in equity for the cancellation of an agreement in writing. Before Doty, P. J.</p> <p>By the agreement “the party of the first part (plaintiff) hereby agrees to sell to the party of the second part, exclusively, all the different veins of coal on, in and under that certain tract of land situate ....</p> <p>“The said coal to be paid for as follows, at the rate of fifty ($50.00) dollars per acre. One dollar on the signing of this agreement and the balance in payments as are hereafter designated. It is hereby agreed that second party has the right to mine and carry away all of said coal and with all the mining rights and privileges necessary or convenient to such mining and removal of the same .... together with the right of mining and removing under said prescribed premises other coal or matter belonging to or that may hereafter belong to said second party, his heirs or assigns, and' to convey the same to said second party, his heirs or assigns, by deed of general warranty in fee simple and clear of all incumbrances. The deed to be made for the above-described tract of coal and mining rights by the party of the first part, their heirs or assigns, on fifty (50) days’ notice in writing by the party of the second part, his heirs or assigns. A good deed with general warranty to be made whenever the unpaid purchase moneyr is secured by bond with mortgage on the premises. One-third of the purchase money in two equal annual payments bearing five per cent, interest. First party reserves the right to drill for oil and gas. A failure of second party to make first payment within fifty days from above date shall render this agreement null and void. If second party accepts the coal in and under the above-described land he also agrees to take the McKee farm as per article of agreement of January 11, 1901.”</p> <p>The court found as a fact that Fretts- did not accept within the stipulated time, nor did he make any payment on account of the purchase money.</p> <p>The court entered a decree in favor of the plaintiff.</p> <p>Error assigned was the decree of the court.</p>

<p> Assignment—Sale—Judgment—Lien—Distribution. </p> <p>An owner of an equitable interest in eoai entered into an agreement to sell the coal to a purchaser. Thereafter judgments were entered against him. Subsequently he made a special assignment to certain creditors of the money coming to him from the sale, and after this made a general assignment for the benefit of all his creditors. The general assignee filed a bill in equity against the purchaser for an accounting. As a result of this litigation the purchaser was compelled to convey the property to the general assignee. The assignee then sold and conveyed the coal without any order of court, as provided by the act of February 17, 1876, P. L. 4. Held, that the judgments were not entitled to participate in the fund.</p>

<p> Appeals—Practice, Supreme Court—Assignments of error. </p> <p>An assignment of error setting forth that the court erred in refusing a new trial for four specific reasons stated, does not violate rule 29, which provides that each error relied on must be specified particularly and by itself.</p> <p>An assignment of error in the following form is not improper. “ The learned court erred in refusing to grant defendant a new trial, notwithstanding the evidence of the corrupt solicitations of certain jurors in behalf of the plaintiff, the misconduct of the jury, and the various irregularities in connection therewith both during the course of the trial and after the jury had retired to deliberate upon their verdict, tending prejudicially to affect their deliberations and judgment, which things were made known to the court either while the trial was in progress or by depositions taken subsequently thereto ; and upon the ground of after-discovered evidence.”</p> <p> New trial—Appeals—Discretion of court—Improprieties connected with the jury—Depositions. </p> <p>The refusal to grant a new trial for alleged improprieties relating to or affecting the jury, rests, as a rule, in the sound discretion of the lower court, and will not be reviewed by the appellate court ; but when there is an allegation of the court’s abuse of its discretionary power in passing upon an application for a new trial, it is the duty of the appellate court to inquire into the facts, and if, after due consideration of them abused discretion clearly appears, the improper action below must be reversed and the wrong done corrected. In making such an inquiry the appellate court will consider the depositions taken in support of the motion for a new trial.</p> <p>On a motion for a new trial in a libel suit against a newspaper, from the depositions taken in support of the motion, it appeared that one of the jurors was called up over the telephone by a man whose name h'e refused to disclose, and who subsequently called upon the juror and urged him to stand out for the plaintiff. The juror resented the attempt to influence him, communicated the matter to his counsel, who in turn communicated it to the trial judge, but the latter did nothing and continued the trial. Another juror was called upon at his own house and asked to give the plaintiff the benefit of the doubt. This was also resented by the juror, but defendant’s counsel had no knowledge of it before the jury were discharged. During the trial a third juror discussed the case in a cigar store, and denounced the newspaper as “ a damned liar.” It also appeared that certain of the jurors started a game of poker after they had retired to deliberate, and that one of them after a period of play sent out for additional money. It also appeared that the officers having the jury in charge and while they were out deliberating, permitted the jurors to separate, talk over the telephone, communicate with their families, and in charge of the officers visit the public offices. Held, that it was an abuse of the discretion of the court, under the circumstances, to refuse a new trial.</p> <p>It has been said that the greatest object of civil government is to get twelve honest men in the jury box. If this is true, after they get there they must be kept there, hedged around not only with their own integrity, but with every precaution against evil communication which may corrupt them ; and when they go to their room to deliberate upon an issue in which is involved the life, liberty or property of their fellowman, their conduct in the discharge of such duty must comport with it, else confidence in the system which is the best achievement of civilization will be lost. Per Brown, J.</p>

<p>Appeal, No. 127, Oct. T., 1904, by plaintiff, from judgment of C. P. Armstrong Co., June T., 1902, No. 167, on verdict for defendant in case of P. R. E. E. Linton v. J. C. Moorhead, Eliza N. Meredith and W. B. Meredith.</p> <p>Ejectment for land in Manor and Kittanning Townships. Before Patton, P. J.</p> <p>At the trial the defendants offered in evidence a power of attorney from P. R. E. E. Linton and A. F. Linton, her husband, dated August 12, 1887, and acknowledged in England. By this power of attorney Mrs. Linton and her husband “ made, constituted and appointed, and by these presents do make, constitute and appoint, John Boreland Finlay of the Commonwealth of Pennsylvania in the United States of America, our true and lawful attorney for us or either of us, and in our or either of our names, places or steads, to grant, bargain and sell, convey, assign, transfer and confirm any or all tracts, lots, pieces or parcels of land or real estate which have descended to or have been acquired by the said Phoebe or either of us, by gift, grant, demise, purchase or otherwise, or which may be so acquired hereafter in any of the states, commonwealths, districts, territories of the said United States of America, whether the same or any part or parts thereof be held now or hereafter in fee simple, severalty, joint tenancy, in common or otherwise, excluding therefrom all lots in the city of Omaha, state of Nebraska.”</p> <p>Plaintiff’s counsel objected to the offer for the following reasons:</p> <p>1. The power of attorney offered in evidence shows upon its face, and it has been admitted upon the trial of this suit, that at the time the said power of attorney was executed by P. R. E. E. Linton she was a married woman, under coverture and domiciled in Brighton, England, and that she and her husband, A. F. Linton, were both English subjects, and that she was married prior to the married persons’ property act, passed by parliament in 1882, and the evidence being that the land described in the writ belonged to her in her own right. And further, the said P. R. E. E. Linton was for the above reasons under a common-law disability to divest her title to said land by power of attorney, or any other manner except that prescribed by the laws of England and in force at the time of the execution of the said power of attorney, and that the power of attorney offered in evidence'was, from the day of its execution, void for the purposes for which it is offered.</p> <p>2. That the power of attorney offered in evidence does not purport to be a conveyance of the land in dispute nor of any part thereof, and for that reason it is incompetent to prove title in the defendant, J. C. Moorhead, or in the defendant, Eliza N. Meredith.</p> <p>3. It being admitted on the trial and shown upon the face of the power of attorney offered in evidence that A. F. Linton, the husband of the plaintiff, was a nonresident alien, he therefore had no interest in his wife’s land in Pennsylvania, such as would give validity to a conveyance of it by power of attorney or otherwise by reason of his joining in the execution of such instrument.</p> <p>4. It is objected to because the power of attorney is void for want of any description contained therein authorizing the sale of the land described in the writ, the said power of attorney not mentioning the said tract of' land by any sufficient metes or bounds, and not even mentioning the state of Pennsylvania nor the county of Armstrong, nor the townships of Kittanning or Manor, in which said land is situate; for the foregoing reasons and for uncertainty the said power of attorney was and is void.</p> <p>The Court: The objection is overruled, the offer received and a bill of exceptions is sealed to the plaintiff. [1]</p> <p>The court gave binding instructions for defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>JErrors assigned were (1) ruling on evidence quoting the bill of exceptions; (10) in giving binding instructions for defendants.</p>