Volume 21 — Pennsylvania Superior Court Reports

Appeal, No. 252, Oct. T., 1901, by Norman S. Farquhar, trustee on bankruptcy of Joseph Price Knight, from order of C. P. Schuylkill Co., Nov. T., 1900, Nos. 22, 30, 45, 48 and 62, distributing proceeds of sheriff’s sale in case of Joseph M. M eyer v. Joseph Price Knight. Exceptions to report of William Wilhelm, Esq., auditor.

<p>Appeal, No. 147, Oct. T., 1901, by-defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1898, No. 756, oil verdict for plaintiff in case of C. Cadwallader Sellers v. Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Sulzberger, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for f1,000. Defendant appealed.</p> <p>.Error assigned was in refusing binding instructions for defendant.</p>

<p>Railroads — Land damages — Parties entitled — Remainderman—Lien of judgment — Judgment—Decedent's estates.</p> <p>Where a railroad company has paid into court a fund representing damages for the destruction of a dwelling house by sparks, and it appears that at the time of the fire, the house and the land connected with it were in the possession of a life tenant, and that the remainderman had judgments against him which were a lien upon his estate in remainder, and it also appears that subsequent to the fire the remainderman died, and that thereafter the land was sold, the fund paid by the railroad company into court, is an asset subject to the life estate for the payment of thei’emainderman’s debts, and does not go to his heirs free from such obligation.</p>

<p>Municipalities — Sewers—Waters.</p> <p>The mere omission of municipal authorities, to provide adequate means to carry off the water, which storm and the natural formation of the ground throw upon city lots and streets, will not sustain an action by an owner of land against the municipality for damages arising from the accumulation of water. Cities are not bound to provide sewerage for the natural flow of the surface water, although they are invested with power to construct such sewers, as in the judgment of the officers exercising the corporate powers, are necessary and expedient. When they do adopt a plan of sewerage they are not liable for damages resulting from an insufficiency in the size of the sewers although they may be called upon to answer for injuries resulting from negligence in the construction or repair of such works. They are liable, however, for injury to property resulting from interference with or change of the natural flow of waters as a consequence of public works.</p> <p>Municipalities — Constitution of Pennsylvania, article 16, sections — Damages to property.</p> <p>Under article 16, section 8 of the constitution of Pennsylvania, the injury meant to be provided for was such as was unavoidable in the accomplishment of the public undertaking, but the property protected is not limited to that directly abutting upon the improvements, but includes all sufficiently near to make the injury approximate, immediate and substantial.</p> <p>Municipalities— Waters — Bern edies.</p> <p>Where the change of grade of a street results in injury to abutting property by reason of the accumulation of water, and the injury is the direct, immediate and unavoidable consequence of the change of grade, the municipality is liable to the property owner. In such a case the remedy of the property owner is not by an action of trespass, but by proceedings before viewers either under the Act of May 23, 1889, P. L. 277, or the Act of May 16, 1891, P. L. 75.</p> <p>When the injury to property is such only as is the direct, immediate and necessary or unavoidable consequence of the act of eminent domain itself irrespective of care or negligence in the manner of the execution o£ the work, a proceeding before viewers is the appropriate remedy.</p>

Appeal, No. 26, Jan. T., 1902, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1900, on demurrer to statement in case of George L. Peck, Trustee of Howard H. Beidleman, v. William Connell. Demurrer to statement. The material averments of the statement are set forth in the opinion of the Superior Court. The court below in an opinion by Archbald, P. J., sustained the demurrer, and entered judgment for defendant. Error assigned was the order of the court.

Appeal, No. 1, March T., 1902, by Sarah A. Fuhrman, administratrix, from decree of O. C. Adams County, Nov. T., 1899, No. 1, sustaining exceptions to auditor’s report in estate of Daniel S. Furhman. Exceptions to auditor’s report. The facts appear by the opinion of the Superior Court. Error assigned was in sustaining exceptions to auditor’s report.

Appeal, No. 22, March T., 1902, by defendant, from order of O. P. Adams Co., April T., 1901, No. 470, setting aside sheriff’s sale of real estate in case of Eliza Currens v. F. D. Blocher and F. W. Morrison, Sheriff. Exceptions to sheriff’s, sale of real estate. Before SWOPE, P. J. The facts appear by the opinion of the Superior Court. Error assigned was the order of the court.

<p>Gift — Executors and administrators — Decedent's estate — Evidence.</p> <p>A claim by an executor that a draft which was the whole estate of the testator, his brother, was a gift to himself, is not sustained by evidence in effect that on the day before testator died he told the executor that he would have to buy a cemetery lot and gave directions as to the manner of his burial and the payment of his funeral expenses, and at the same, time indorsed the draft and handed it to his brother, and on the same day executed a will by which he directed that his debts and funeral expenses should be paid, that a tombstone costing an amount stated should be erected over his grave, and that the remainder of his property should go to his two brothers.</p>

<p>Appeal, No. 104, April T., 1902, by' defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1899, No. 250, on verdict for plaintiff in case of Keystone Mattress and Spring Bed Company v. Pittsburg Underwriters of Pennsylvania.</p> <p>Assumpsit on a contract of insurance. Before Brown, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $810.50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Equity — Equity practice — Equity rules Printing bill.</p> <p>A bill in equity should be dismissed which offends against the equity rules in the following particulars: (1) That the bill was not printed as required by Rule 14 and was not accompanied by a certificate that there had not been time to print the same; (2) that there was not indorsed on the bill the notice to appear required by rule 4; (3) that the bill did not set forth that it was filed or intended to be filed in a court of common pleas sitting in equity; (4) that the plaintiff did not call his application a bill, but a petition.</p> <p>Equity — Equity practice — Pleading—Telephone company.</p> <p>A bill in equity against a telephone company is fatally defective in substance where it merely alleges that the defendant was about to erect a telephone pole on the property of the plaintiff, and that the erection of such pole would be a great and irreparable damage to said property, without any averment that the defendant was without authority to erect the pole, or that such erection would be unlawful, or that there were peculiar circumstances which rendered the remedy at law inadequate.</p>

<p>Public officers — Township treasurer — Clarion county — Acts of April 15, 1834, P. L. 537, sec. 81, February 28, 1835, P. L. 45, sec. 8 and, March 11,-1839, P. L. 51.</p> <p>The Act of March 11, 1839, P. L. 51, which created the county of Clarion, gave to the people and territory embraced within its limits, a new county government, but that part of its territory which had been carved out of the county of Venango remained subject to the provisions of the act of April 15, 1834, in so far as its township organizations were concerned. In that part of the county a township treasurer is a part of the legal official township organization.</p> <p>A township treasurer being a township officer is subject to the provisions of the Act of March 31, 1860, P. L. 385, sec. 65, and the money of the township is protected by that statute.</p> <p>Criminal law — Indictment—Embezzlement—Township treasurer — Act of March 31, 1860, P. L. 385, sec. 65.</p> <p>An indictment is sufficient under the Act of March 31, 1860, P. L. 385, sec. 65, which charges that the defendant, “ being then and there treasurer of the township of Farmington, in the county of Clarion, having been duly commissioned and acting as such, and being charged as such treasurer with the safe-keeping and transfer of the road taxes of said township of Farmington, did fraudulently take, convert, appropriate and apply to his own use the sum of $356.29 of the moneys and property of the said township, so in his charge as treasurer, for safe-keeping and transfer, and did neglect and fail to pay over the said sum of $356.29, at the time and place required by law and to the person legally authorized to receive the same.”</p>

<p>Negligence — Master and workman — Defective appliance — Promulgation of rules for safety of employees.</p> <p>Where ooemployees are distant from each other and it is dangerous for one to have another continue at his work, he who is subject to the peril not being in a position to ascertain the true conditions, it is the duty of the employer to frame and promulgate such rules and regulations as -will afford reasonable safety to employees.</p> <p>In an action by an employee against his employer to recover damages for personal injuries sustained while the plaintiff was working at the bottom of a tall chimney stack in course of construction, while other employees were working at the top, the case is for the jury where the evidence tends to show that the defendant had adopted a device which, ■required the plaintiff to put himself in a position involving danger, that an upper platform which ought to have protected him while in that position was defective, and that because of this defect he was injured, and that the defendant had failed to adopt any rules for the conduct of its employees at the top of the stack for the protection of those at the bottom against a danger reasonably to be apprehended.</p>

<p>Appeal, No. 41, April T., 1902, by defendant, from order of C. P. Somerset Co., Sept. T., 1899, No. 297, discharging rule to open judgment in case of J. E. Snively v. M. J. Fisher and A. S. Fisher.</p> <p>Rule to open judgment. Before Longeneckee, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Wills — Oonversion—Real estate.</p> <p>In order to work a conversion of real estate there must be either (1) a positive direction to sell, or (2) an absolute necessity to sell in order to execute the will, or (3) such a blending of real and personal estate by the testator as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath said fund as money, and that, in each of the two latter cases, an intent to convert will be implied.</p> <p>Testator directed as follows: “I will, bequeath and devise unto my executors hereinafter named, all my real and personal estate that I may die possessed of in trust and for the purposes herein named, and I hereby authorize and empower my said executors to collect all claims coming to me at my death and to make sale of all my real estate that I may die possessed of, and after such sale or sales made as aforesaid, to execute and deliver deed or deeds to the purchaser or purchasers in the same manner as I might or could do myself, one third of the purchase money to remain a lien on the real estate, the interest thereof to be paid to my beloved wife annually during her life and at her death, said third to be distributed,- as directed in this will.” Held that the will worked a conversion of the real estate.</p> <p>Parties interested in a fund may elect to-accept the land unconverted, and if they do so, they will acquire an estate therein, but this election must be by some unequivocal act which must be joined in by all those entitled.</p> <p>Equity permits the parties entitled to the fund to be raised by a sale, to take the land in lieu of the proceeds, and where the election is unequivocally manifested, an estate commensurate with the interest they would have had in the fund if raised, vests in the beneficiaries. The election may be' manifested by acts in pais, but these must be of such a character as to leave no reasonable doubt of the intent.</p> <p>Where there is a conversion of land into personalty by direction to sell in a will, and it appears that the land remained unsold for a long time by reason of financial conditions, that the executors had full control of the land, that one of the parties in interest always objected to any interference with the land by the heirs, and that the land was finally sold by the executors, there is no reconversion into real estate.</p>

<p>Appeal, No. 19, Jan. T., 1903, by Plains Township from order of Q. S. Luzerne Co., April T., 1894, No. 341, ordering a levy of a special tax in the Matter of the Appeal of Plains Township.</p> <p>Petition for mandamus.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the order directing the levy of the special tax.</p>

<p>Criminal law — Evidence as to good character — Contradictions in charge.</p> <p>A conviction in'a criminal case will be reversed where the court charges that “ good character should be considered in a doubtful case, or in a case where, after summing up all the testimony carefully, the jury are in an equilibrium or almost balanced,” although the court affirms a point to the effect that “ evidence of good reputation is substantive evidence, and may of itself raise a reasonable doubt of the defendant’s guilt.”</p> <p>Criminal laiv — Evidence—Testimony of accomplice.</p> <p>Although the uncorroborated testimony of an accomplice should be received with caution, yet there is no rule of law forbidding a conviction upon his evidence alone.</p>

<p>Appeal, No. 132, Oct. T., 1901, by defendant, from decree of C. P. Jefferson Co., Sept. T., 1896, No. 2, on bill in equity, in case of Charles Corbet v. Oil City Fuel Supply Company.</p> <p>Bill in equity to restrain a natural gas company from depriving the plaintiff of gas. Before Greer, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Errors assigned was decree against the defendant company.</p>

<p>Appeal, No. 163, April T., 1901, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1899, No. 163, on verdict for defendant, in case of H. S. Glenn v. C. D. Strickland.</p> <p>Assumpsit on a contract for drilling an oil well.</p> <p>The terms of the contract are stated in the opinion of the Superior Court.</p> <p>The court admitted under exception and objection, testimony of an expert as to what was understood among drillers by a carpenter’s rig. [6]</p> <p>The court charged in part as follows :</p> <p>The contract requires that Glenn shall furnish an outfit of drilling tools and lines. Does that include fishing tools ? That is for the jury. You have heard experts on both sides. Some say it includes fishing tools ; others say it does not, and it is for the jury to say whether or not Glenn substantially complied with this contract. The words were (1) the material, machinery and appliances necessary for drilling and completing said well, shall be furnished, and the work of drilling the same shall be done in the manner hereinafter specified; then it is, “ He shall furnish boiler, engine, etc., and outfit of drilling tools and lines.” Does that include fishing tools under the evidence in this case, and was it a substantial compliance on the part of Glenn to supply him with drilling tools, and not with fishing tools, under all the evidence in this case ? [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (3) above instruction, quoting it. (6) Rulings on evidence quoting the bill of exceptions.</p>

<p>Statute of limitations — Mutual accounts — Demands.</p> <p>Where there are mutual accounts, if any of the items of the account be within six years before the commencement of the suit, such item is equivalent to a subsequent promise reviving the debt; but the mutual accounts must on both sides relate to trade in merchandise, labor, or something that is provable by books of original entries. Mutual demands for money loaned do not operate as an extinguishment of each other, since a loan of money is not provable by book of original entry and does not constitute an account.</p> <p>In an action of assumpsit brought in 1902, plaintiff claimed to recover (1) upon a settlement of accounts made in 1892; (2) on a book account for wages of labor in 1893 and 1895 ; and (3) for several sums loaned to defendant in the years 1894, 1895 and 1900. Payments were alleged to have been made from time to time in cash and a number of inconsiderable amounts in farm products. Held, that there were no such mutual accounts between the parties as would take the demands of the plaintiif out of the statute of limitations.</p>

<p>Equity — Mistake—Negligence—Executed contract.</p> <p>A mistake will not be relieved against if it is the result of the party’s own negligence, as for instance, where he has not taken the trouble to read or to have read to him the paper he was executing, and especially is this the case where the application for relief has been postponed until the contract has been fully performed by both parties, and the party seeking relief does not offer or is unable to restore the other party to his original position.</p> <p>In order to justify a decree for reformation in cases of pure mistake, it is necessary that the mistake should have been mutual. Where the mistake has been on one side only, the utmost that the party desiring relief can obtain is rescission, not reformation.</p> <p>After a poor house has been completed under a contract with the county commissioners approved by a judge under the Act of April 19,1895, P. L. 38, a bill cannot be maintained by the contractors for a reformation of the contract on the ground of mistake, and for the payment of an amount in excess of the contract price, where the mistake alleged was in constructing the building in accordance with plans and specifications of their own engineer without knowledge that they did not conform to the plans and specifications accompanying the contract and on file in the commissioner’s office. In such a case there is no mutual mistake as to a material fact</p>

<p>Promissory, note — Filling in date — Joint maker.</p> <p>When one who has signed a note, leaving the date blank, delivers it in that condition to a joint maker for the purpose of raising money upon it, he thereby impliedly authorizes that joint maker to fill in the date as of the time when the note is actually negotiated.</p> <p>In an action on a joint note where the appearance of the note indicated that the date had not been written at the time when the first joint maker signed the note, and the plaintiff testified that the second signer brought the note to him and filled in the blank at his request, and there is testimony that the first joint maker was subsequently shown the note and said that he had signed it and made no objection as to the date, there is sufficient evidence to warrant the jury in finding that the first joint maker had ratified and adopted the instrument in the condition in which it was when presented to him.</p>

<p>Appeal, No. 79, April T., 1902, by defendant, from judgment of C. P. Beaver Co., June T., 1900, No. 210, on verdict for plaintiff in case of Lory Skillen v. Ira W. Logan.</p> <p>Assumpsit for minimum royalty under a quarry lease. Before Wilson, P. J.</p> <p>At the trial it appeared that on May 9, 1899, defendant leased a quarry in North Sewickley township from the plaintiff.</p> <p>The court charged in part as follows:</p> <p>The defendant alleges that under the terms of agreement the plaintiff granted him the privilege of building or having another switch erected into the quarry; and that, by reason of a special contract existing between the Pittsburg Company and Matthew Skillen, the deceased husband of the plaintiff, wherein the switching charges had been fixed at twenty-five cents per car, that the Pittsburg & Lake Erie Railroad Company, operating the Beaver & Ellwood Railway, refused to put in the switch, unless the switching charges of twenty-five cents agreed upon between Matthew Skillen and the Pittsburg Company, — and this agreement descending to the heirs and assigns of the one and the assigns of the other — were released and the usual charges agreed to be paid.</p> <p>Under the terms of the agreement the plaintiff leased the quarry for a certain rate per car. In that agreement she agreed with the defendant that he was to “ have the right to use the switch now located and constructed along said lease, and shall also have the right to construct another switch from the main track of the Beaver & Ellwood Railway through and into said leased premises, beginning the same at the north of the northern limit of the premises hereby leased, and extending the same into the above described land across the southwestern corner of the land lying to the north of the hereinbefore described land, provided the lease of said adjoining premises shall consent thereto.” This is one of the provisions of the lease. Another provision is that: “ It is agreed that if the charges by the railroad company for switching cars to and from the Beaver & Ellwood Railway shall exceed the sum of twenty-five cents per car, such .excess shall stand as a credit upon the royalty herein reserved and stipulated when paid by second party.”</p> <p>You will observe, gentlemen, that, under the terms of this lease, the plaintiff granted the right of the use of the switch which was located and built in the quarry, and also the privilege or right of erecting another switch over and across the same for the purpose of operating it.] [1]</p> <p>The defendant asks to be relieved from the payment of the rental under this lease, by reason, as he alleges, of the fact that the plaintiff refuses to release the twenty-five cent per car charges, and that the Pittsburg & Lake Erie Railroad Company would not put in an additional switch which the lease gave the privilege to the defendant to put in unless that was released. The plaintiff does not bind herself in this agreement, in leasing this quarry to the defendant, for more than the use of the switch which is now there, and the right to build a switch across the premises. It was not incumbent upon her, neither could it have been required of her by the defendant to release any agreement which she had relative to the switching charges running with this land; so that, unless it was impossible for the defendant to operate this quarry without another switch, and he had made every effort to procure the erection of a switch on the premises for the purpose of operating the quarry, and could not procure the same, he would not be relieved from the payment of the rental or royalty. Now, you understand that there is nothing in the lease which vrould bind or require the plaintiff to release the switching charges of twenty-five cents per car that an additional switch might be put in, unless it precluded absolutely the operation of the quarry. She did not undertake, when she made the lease, to procure a switch from the Pittsburg & Lake Erie Railroad Company; she only granted the right to the defendant to erect one upon the land, and the right to use the switch was there. If, however, the Pittsburg & Lake Erie Railroad Company placed this condition upon the erection of a switch there, and it was impossible for the defendant to operate the quarry without this additional switch, then he would be relieved from the payment of this money, as it would be no fault on his part if he made an honest effort to meet the requirement of the Pitts-burg & Lake Erie Railroad Company, and they refused to put the switch in unless the other contract held by Mrs. Skillen was released, thereby rendering it impossible for him to operate the quarry. This is, in brief, the legal position as the court understands it in this case, there being no requirement, under the interpretation of this contract, or lease of this quarry, on the part of the plaintiff to release her twenty-five cent rate.] [2]</p> <p>[And we might say that this was advantageous to the defendant, because of the twenty-five cent rate, of which the plaintiff in the case gives him the advantage, agreeing, if he is required to pay more than twenty-five cents per car for the moving of the cars to the Pennsylvania Railroad, she would allow that as a rebate on the rental, this excess again to be assigned to her; so that that was rather an advantage to the defendant so far as the operation of the quarry was concerned, unless that stood as a barrier in the hands of the Pittsburg & Lake Erie Railroad Company to the erection of an additional ■switch, and that additional switch was necessary for the operation of the quarry; if it were not, then the defendant would be liable to the plaintiff for the rental; if it were, then your verdict should be for the defendant.] [3]</p> <p>- [ft matters not in this case what rights of action the plaintiff may have against any other person. If the plaintiff has a right of action she has a right to choose whom she will bring in here ; and it is not for the court to determine here whether the plaintiff should have a right of action still against the Pitts-burg & Lake Erie Railroad Company, or whether her right of action is against the defendant. That is, she has a right of action here in this case, and if the evidence warrants it under the instructions of the court is entitled to a verdict.] [4]</p> <p>[Another element of the case on the part of the defendant is that sometime after considerable negotiating with the railroad company, and frequent visits on the part of the plaintiff to the defendant’s office in Rochester, that she rather forcibly said she would get a switch in. Now, the defendant alleges ■that she told him not to bother any more about it, that she Avould get the switch in, thereby taking the position that he Avas relieved from operating the quarry until she procured the SAvitcb. The same principle Avould hold good as in the former instructions that were given you; if that switch were necessary for the operation of this quarry, the fact that the quany had not been operated for some months, and the matter had been before these people and nothing having been done, would be an element to consider in connection with what occurred at that time between the parties; if she told him that she released him from the lease; but the fact remains that the defendant still retains the lease which he had upon the premises, and under the terms of that lease was bound for the rental, unless he was absolutely prevented from operating the lease because the}’' could not get a switch in, and they could not get a switch in because the plaintiff was in the way and refused to acquiesce in certain matters and conditions that were imposed by the railroad company. Whether the railroad company had any right to demand these conditions would be another question; and whether or not the plaintiff would have the right of action against the railroad is another question. The only matter which you must consider is whether in this case the defendant is liable to the plaintiff for the rental under the terms of this lease.] [5]</p> <p>Plaintiff presented this point:</p> <p>I. If the jury find that the quarry can be operated with the switch now on said leased premises, which the defendant has the use of by the terms of the lease, your verdict should be for the plaintiff. Answer: This point is affirmed. [6]</p> <p>Verdict and judgment for plaintiff for 1539.50. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>

<p>Road law — Supervisors—Meeting and deliberation of supervisors.</p> <p>Where a township has but two supervisors, they must honestly confer with each other, and fairly deliberate in the interest of the taxpayers before they attempt to bind the township by their action.</p> <p>One of two supervisors cannot bind the township by a contract for the entire reconstruction of the road for a lavge sum of money where it appeal’s that the supervisors never met on the ground, and did not discuss the extent, character or cost of the repairs to be made, or how the township was to provide for the payment of the same. The mere fact that one of the supervisors said to the other “ to go ahead and put the road in good repair, good condition, and he would stand by him in anything that he did,” is not sufficient to justify the second supervisor in incurring the expenses of the entire reconstruction of the road.</p>

Appeal, No. 55, April T., 1902, by A. I. Scott, from order of C. P. Lawrence Co., June T., 1901, No. 6, overruling exceptions to auditor’s report in case of Day & Sbarpe’s Assigned Estate. Exceptions to report of S. L. McCracken, auditor. The auditor,' after discussing the testimony, reported as follows : From the evidence taken, your auditor finds the following matters of fact: 1.

<p>Affidavit of defense — Contract—Sale to another dealer.</p> <p>In an action to recover the price of clothing sold and delivered, an affidavit of defense is insufficient which avers that the goods were bought on condition that if the plaintiffs should sell clothing to another dealer in the same town, defendant should have the right to return the goods; that plaintiffs did sell goods to another person in the town, naming him, without averring that such person was a dealer, and that defendant had returned the goods to plaintiffs, without any averment that the goods returned were all the goods which the defendant had purchased.</p> <p>It seems that it is not against public policy to enter into a contract to purchase goods on condition that similar goods should not be sold to another dealer in the same town.</p>

<p>Appeal, No. 153, April T., 1902, by Margaret Kuhns and Stella Flynn McKean, from decree of O. C. Venango Co., April T., 1901, No. 21, sustaining exceptions to auditor’s report in estate of Joseph Flynn, deceased.</p> <p>Exceptions to report of Thomas McGough, Esq., auditor.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>

<p>Appeal, No. 51, April T., 1902, by plaintiff, from judgment of C. P. Crawford Co., Feb. T., 1901, No. 50, for defendant on case stated in case of Farmers’ Cooperative Trust Company v. Jesse Hazen.</p> <p>Case stated to determine liability for an assessment on stock.</p> <p>From the, case stated it appeared that the plaintiff corporation was chartered, December 28, 1880, under act of April 14, 1868, P. L. 100, with a capital stock of $20,000, seven per centum of which was actually paid in, and that ten per centum of said amount had been called and paid in prior to the issuing of the call over which this controversy arises; that in persuance of its charter, the plaintiff company began on or about May 1, 1881, and conducted until January 8, 1896, a general banking business; that the stockholders chose annually, in the month of January, up to and including Januaiy, 1894, a board of directors to serve one year, or until their successors were duly qualified, and that the said meeting in January, 1894, was the last meeting ever held by the stockholders of plaintiff company; that defendant was not an original subscriber for stock, but shortly after the organization of plaintiff company he became the purchaser of certain shares subscribed for, and in 1882 was elected a director in plaintiff company, and served in such capacity until January, 1890; that by reason of notice from the banking department of the commonwealth to the effect that plaintiff company was conducting a business not authorized by their charter, the directors of plaintiff company did, in 1894, take action for the purpose of reorganizing or winding up the business of plaintiff company, which action culminated, January 8, 1896, in turning over by said directors all the business and conveying all the property of the plaintiff company to a newly organized corporation, known as the Farmers’ Co-operative Banking Association, which last-mentioned company assumed all the liabilities of plaintiff company and took all of its assets, with the provision that plaintiff company should make good any and all losses or discrepancies between said liabilities and certain of the assets ; that the Farmers’ Co-operative Banking Association collected all of the assets available by due diligence and paid all of the liabilities of plaintiff company, whereupon it resulted that, under the terms of the above-mentioned contract, the plaintiff company was indebted to the said Farmers’ Co-operative Banking Association in the sum of $4,000; that on April 24, 1897, a final meeting of the directors of plaintiff company was had, at which they “ levied an assessment” or issued á call of forty per centum upon the available stock of the corporation, for the purpose of paying the above-mentioned indebtedness of $4,000 to the Farmers’ Co-operative Banking Association; that the cashier of the Farmers’ Co-operative Banking Association was the cashier of plaintiff company, and a majority of the directors of the said banking association at the time of the above-mentioned transfer were stockholders and directors in plaintiff company; and that the directors of plaintiff company filed but one report,, as provided by section 5 of the act under which it was incorporated, and this on February 6, 1883.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was in entering judgment for defendant on the case stated.</p>

<p>Building and loan associations — Mortgage—Judgment—Opening judgment.</p> <p>A judgment entered upon a scire facias sur mortgage sued out by a building and loan association will not be opened on the ground that the mortgage had not been given to the association which brought the suit, where it appears that by consent of all the stockholders of the association to which the mortgage had been given, including the defendant, the assets of that body had been handed over to the plaintiff association, which at the same time had assumed all the liabilities of the former body, and that such stockholders had treated the new corporation as the successor of the old, that the defendant had continued to pay his dues and interests to the new corporation for about four years after it was formed, and received statements showing that the new association was discharging the obligations of the old, and was relying for reimbursement upon the assets of which the mortgage in question was a part.</p>

<p>Appeal, No. 143, April T., 1902, by defendant, from decree of O. C. Warren Co., Dec. T., 1900, No. 22, on petition for specific performance in case of David Holt v. Kate McWilliams, Administratrix of A. E. McWilliams, Deceased.</p> <p>Petition to enforce the specific performance of a parol contract for the sale of real estate. Before Lindsay, P. J.</p> <p>The court below stated the facts to be as follows :</p> <p>1. That the land described in the petition was sold to the petitioner, David Holt, by the said A. E. McWilliams by parol agreement some time between 1890 and 1892 for the sum of $300. Said A. E. McWilliams and wife conveyed a portion of said land to Frances M. McKinney, daughter of the said David Holt, at his request, by deed dated December 29, 1897.</p> <p>2. That soon after said parol agreement was made the plaintiff took possession of the land and made valuable improvements by clearing off the brush, taking out the stones, filling up the low places and leveling off the land. That he remained in possession, ploughing and cultivating the said land until some time in 1899, when Mrs. Kate McWilliams, the respondent, took possession of the portion of said land not conveyed in the lifetime of the said A. E. McWilliams, and refused and still refuses to give up the possession or to convey the same to the petitioner.</p> <p>3. ' That the said David Holt paid the purchase price of said land in full to the said A. E. McWilliams in his lifetime.</p> <p>4. That the said A. E. McWilliams died intestate on or about April 24, 1898, without having made any provision for the performance of said parol contract, and that letters of ¡idministration were duly granted to Kate McWilliams, May 4, 1898.</p> <p>The court entered a decree for specific performance.</p> <p>Error assigned was the decree of the court.</p>

<p>Justice of the peace — Appeals—Corporations—Bail—Act of March 15, 1847, P. L. 861.</p> <p>Where after a judgment has been entered against a corporation before a justice of the peace, an individual enters security for an appeal “ conditioned for the payment of the debt, interest and costs that may be legally recovered against the said appellant company,” in accordance with Act of March 15, 1847, P. L. 361, which provides that in such case the bail “ shall be taken absolute for the payment of debt, interest and costs on the affirmance of the judgment,” the surety is liable upon the bond, although the appeal has never been entered in the court of common pleas. In such a case the “affirmance” of the judgment may be either by the act of the appellant in failing to enter the appeal, or by the formal action of the court.</p>

<p>Waters — Licenses ■— Easement — Parol agreement — Improvements — Equity.</p> <p>A license to use water may be converted into what is in effect an easement, not upon the principie that the right passes by the parol agreement, but that whenever one party has in part executed it by payment of money, taking possession and making valuable improvements, the conscience of the other is bound to carry it into execution, and equity will compel him to do it.</p> <p>Where a person uses water from a spring on the laud of another under a parol license, and it appears that after the license was given to him he laid pipes to his own land, built a house thereon, and used the water for eighteen years, the successor in title to the owner of the spring with knowledge of the existence of the license, has no right to deprive the licensee of the use of the water.</p> <p>Practice, G. P. — Trial—Appeals—Remarks of counsel.</p> <p>A judgment on a verdict will not be reversed because of alleged improper and injurious remarks of counsel, where it appears that the verdict was modest in amount, and that the court instructed the jury to disregard the objectionable remarks of counsel.</p>

<p>Appeals — Interlocutory order — Quashing appeal — Issue on appeal from county auditor.</p> <p>Where. the court of common pleas makes absolute a rule to strike off an issue on an appeal from the report of county auditors “ upon payment by the county within thirty days of the costs " which have accrued upon the appeal, and in the event of the refusal or neglect to the county to pay the costs that the rule be discharged, and the county takes an appeal without waiting for the thirty days to expire, such appeal is from an interlocutory order and will be quashed.</p>

<p>Sheriff's sale — Selling aside — Inadequacy oj price.</p> <p>A bona fide purchaser at a sheriff’s sale of land, the moment it is knocked off to him, if he complies in all respects with the conditions of sale, instantly acquires a vested right to the property sold. Such a purchaser would be bound by his bargain thus made, although his bid greatly exceeded its value, and if he purchased at a bona fide sale greatly below the value, the vendor would be bound by the sale. Equality in this case at least is equity.</p> <p>A sheriff’s sale will not be set aside where the only reason urged in addition to inadequacy of price is that the president of the building and loan association which owned the first lien, being obliged to be away on business on the day of the sale directed his son to attend the sale and bid, and that the son forgot about the sale because of unusual business duties.</p>

<p>Appeal, No. 141, April T., 1902, by defendant, from judgment of C. P. No. 1, Allegheny-County, June T., 1901, No. 439, on verdict for plaintiff in case of United States to use of Achilles Ancorani v. American Surety Company of New York.</p> <p>Assumpsit upon a bond of surety.</p> <p>At the trial it appeared that on September 7, 1898,-W. W. Hegeman and Frederick Russell, trading under the firm name of W. W. Hegeman & Company, entered into a contract with the United States of America to build a dam at Herr’s Island, on the Allegheny river, and on September 13, of same year, gave a bond to the United States of America, with the American Surety Company as surety, wherein they covenanted and agreed that they should pay all persons for labor and materials supplied in the prosecution of the work.</p> <p>On May 29, 1899, Achilles Ancorani, the use plaintiff, entered into a written contract with W. W. Hegeman & Company, to furnish riprap stone and crib filling for building said dam, and it was further agreed and understood that W. W. Hegeman & Company would pay Ancorani on or about the first day of each month for all stone estimated and paid for by the government during the preceding month, retaining ten per cent until final completion of contract under the usual conditions. On June 10, 1899, Achilles Ancorani, the use plaintiff, began to ship stone to W. W. Hegeman & Company, at Herr’s Island dam, and the date of the last shipment was December 20,1899. On August 1,1899, an action in assumpsit was brought by the use plaintiff against W. W. Hegeman and Fred Russell, doing business as W. W. Hegeman & Company, for $1,298.33, and judgment entered in favor of plaintiff for full amount.</p> <p>On April 25, 1901, this suit was brought on the bond against the American Surety Company of New York for the same shipments of stone, before the payment on the final estimate was made by the government in January, 1902, and after the commencement of this suit.</p> <p>In addition to material furnished, plaintiff claimed 1228 for demurrage.</p> <p>The jury returned the following verdict :</p> <p>And now, to wit: February 8, 1902, we, the jurors empanelled in the above entitled case, find a verdict for the plaintiff in the sum of $1,462.92, subject to the opinion of the court on the question of law reserved, to wit: whether under the evidence in this case the plaintiff has a right to recover.</p> <p>The court below was of the opinion that except as to plaintiff’s claim for demurrage, which was not allowed, the plaintiff was entitled to recover and directed judgment to be entered upon the question of law reserved, for plaintiff’s claim, $1,462.92, less $228, the claim for demurrage, to wit: for $1,234.92.</p> <p>Error assigned was the judgment of the court.</p>

<p>Principal and surety — Bond — Suit in name of United Stales — Public works — Demurrage.</p> <p>The labor and materials which congress intended to protect by the act of August 13, 1894, p. 236, of supplement to Revised Statutes of the United States, vol. 2, Nos. 1-5, are such as are used directly upon the public work, and do not include demurrage for the detention of a vessel.</p>

<p>Deed — Presumption of grant — Evidence—Question for jury.</p> <p>Where a person has entered into possession of land under articles of agreement, and he and his successors have remained in possession for over forty years, paid portions of the purchase money, and expended money upon the land, the presumption is that the foundation of the title claimed is a deed, and the question whether a deed was or was not executed, is for the jury.</p> <p>Ejectment — Amendment— Adverse possession — Presumption of grant.</p> <p>Where plaintiffs in an action of ejectment claim title by adverse possession, and on an appeal from a judgment for the plaintiffs, they also argue that the evidence was sufficient to raise a presumption of a grant, and when after reversal, at the outset of the second trial, they give notice that they intend to claim by presumption of a grant, and the defendant goes on with-the trial without asking for a continuance, the defendant cannot object after a verdict and judgment against him that the plaintiffs should have been compelled to amend their abstract of title so as to show that they claimed by the presumption of a grant.</p>

<p>Appeal, No. 127, April T., 1902, by-plaintiffs, from decree of C. P. No. 2, Allegheny- Co., July T., 1900, No. 23, dismissing bill in equity in case of John Hopkins, Robert D'. Clark, Robert Taggart, Elizabeth I. Taggart, Jane M. Brown and Nancy J. Taggart v. J. T. M. Stoneroad and R. B. Burgan.</p> <p>Bill in equity to restrain the use of a drainage drift.</p> <p>Frazer, P. J., filed the following findings of fact and conclusions of law.</p> <p>FINDINGS OF FACT.</p> <p>1. In the year 1878, the plaintiff, John Hopkins, was one of several tenants in common who owned in fee, inter alia, a tract of land in Collier township, this county, containing ninety-two acres and fifteen perches, of which the greatest portion was underlaid with coal. That the plaintiff Hopkins represented all of the owners in the management of the land; that adjoining the coal under plaintiffs’ land was a body of unmined coal, containing about forty acres, known as the Camp Hill mines, then owned by David Steen & Sons, who were therein carrying on mining operations. In carrying on such operations it became necessary for Steen & Sons to ventilate and drain their mines through the adjoining coal in the Hopkins land, to and upon a portion of the surface lying below the coal stratum ; that in the year 1878, Steen & Sons requested permission from Hopkins and his co-owners to drive an entry and construct a drain from the Camp Hill mine through the Hopkins coal to the surface. Permission was at first withheld but afterwards granted; that at about the same time Hopkins and John Taggart, another owner in the land, together with David Steen and his son, William J. Steen, visited the premises of Hopkins and others, and mutually agreed upon the location of the mouth of the proposed entry. At the time permission was given to drive the entry there was no agreement between the parties by which the privilege then granted to David Steen & Sons was limited to the latter persons, or limited for any period of time, or for any particular body of coal, or that the privilege should cease when David Steen & Sons ceased to operate their Camp Hill mines. Relying on the permission so given, David Steen & Sons drove the entry and constructed .the drain therein and incurred and paid the expense connected therewith, to the amount of about 16,000; that since the completion of the drain water has been continuously flowing through the same, out to the surface of the Hopkins land, and when the Hopkins coal is opened for the purpose of being mined, the entry thus constructed will be available for the purpose of draining in the neighborhood of forty acres of that coal.</p> <p>2. That the Camp' Hill mines of David Steen & Sons, and all mining rights connected therewith, including such rights as David Steen & Sons had in the entry and drain through the coal of plaintiffs, were purchased by the defendants, who, since the filing of this bill, have conveyed the same to the Carnegie Coal Company, which company is now using portions of the entries of the mines in connection with the mining of other adjoining coal which they own; and, in so doing, have been at great expense in the installation of electric mining machines, and the erection of improvements, are now employing 250 miners, and are shipping by rail on an average of from twelve to fifteen tons of coal per day; that the entry through the Hopkins coal is reasonably necessary, not only for the drainage of the mines of defendants, but also for their ventilation; that the defendants saw the entry through the Hopkins coal before they acquired title to the Camp Hill mines, and the existence of the entry was an element inducing them to purchase those mines; that there remains in the Camp Hill mines about three acres of unmined coal, together with the ribs and supports, which coal and ribs and supports, the Carnegie Coal Company intends taking out and marketing, after having mined the coal owned by them in adjoining properties.</p> <p>3. That prior to the filing of the bill in this case, the plaintiff Hopkins and his tenants in common sold and conveyed all the coal underneath their land, above described, to the Pennsylvania Mining Company, and in connection therewith granted to that company the right to drain and ventilate the coal on the surface of the land, both above and below the crop of the coal.</p> <p>4. That the plaintiff, Robert D. Clark, has farmed the surface of the Hopkins property, as a tenant, from year to year, since 1870.</p> <p>5. That the Camp Hill mines contain no accumulation of stagnant, sulphurous and poisonous waters, as alleged in plaintiffs’ bill, but by reason of the deposit of earth at the mouth of the drain contain an accumulation of sulphurous water usually found in coal mines, which water can readily be removed without materially damaging plaintiffs’ land, by opening and repairing the entry in dispute; that the entry is in good condition, but needs to have removed therefrom accumulations of earth at several points, particularly at its mouth, which have fallen from the roof and sides, and which can be removed without either unreasonably increasing the flow of water from the mine, or the burden upon the lands of the plaintiffs.</p> <p>6. That the water flowing from the entry to the Camp Hill mines flows upon a portion of the Hopkins surface, through which there has been from a time antedating the construction of the entry a surface drain running through the Hopkins land into adjoining land of Wrenshall, and thence to a run, which drain is at present somewhat out of repair, and to a considerable extent clogged by the accumulation of earth and débris; that the expense necessary to put this drain in proper condition to carry off all water discharged from the entry to the mine would be inconsiderable.</p> <p>7. The plaintiff, John Hopkins, and his tenants in common, never undertook to revoke the license granted to David Steen & Sons, and never instituted proceedings with respect thereto until about the time of filing the bill in this ease, which was subsequent to the sale of their coal to the Pittsburg Mining Company, and also subsequent to the purchase by defendants of the Camp Hill mines and the Dorrington coal.</p> <p>8. That about the year 1891 David Steen & Sons ceased to mine coal from their Camp Hill mines, and from that time until their purchase by the defendants the mines remained closed.</p> <p>9. That in the year 1900 the defendants purchased and began to mine 180 acres of coal, known as the Dorrington coal, adjoining the Camp Hill mines, no part of which had ever been owned by David Steen & Sons, and thereupon undertook to open up the entry upon the Hopkins property, and now seek to use the same for drainage of the Dorrington coal as well as the Camp Hill coal, and also for the purpose of supplying air to the miners working therein.</p> <p>10. That at the time of making the agreement under which the entry was driven, David Steen & Sons were negotiating for the purchase of all or a part of the Dorrington coal, now owned by the plaintiffs, intending to mine and take out the same through the Camp Hill mines. These negotiations, however, were never finally concluded.</p> <p>11. That the water which now flows, and will flow, out of the drain through plaintiffs’ property will flow for a short distance over the bottom land of plaintiffs to the land of-Wrenshall, and thence over Wrenshall’s property to a creek.</p> <p>CONCLUSIONS ON LAW.</p> <p>1. That the license granted to David Steen & Sons was not merely a license to exist during the mining of the coal then included in the Camp Hill mines, but was a license to drain and ventilate any coal mined in connection with or through those mines.</p> <p>2. That the license so acquired by David Steen & Sons, they having expended large sums of money in constructing the entry through the .Hopkins coal to their Camp Hill mines, was intended tobe of a permanent and continuing nature, and irrevocable so long as the same should be reasonably necessary in the use of the Camp Hill mines, in either removing the coal then included in those mines or other coal taken out through them; that the license so acquired was assignable, and was assigned by David Steen & Sons to defendants, and by defendants to the Carnegie Coal Company.</p> <p>3. That the plaintiffs are not entitled to the relief prayed for, and that the bill should be dismissed at their cost.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 106, April T., 1902, by C. Lager, from order of C. P. No. 2, Allegheny Co., April T., 1901, No. 582, dismissing exceptions to report of viewers in In re Grading of Greentree Avenue.</p> <p>Exceptions to report of viewers.</p> <p>The opinion of the Superior Court states the case.</p> <p>JError assigned was order dismissing exceptions to report of viewers.</p>

<p>Appeal, No. 36, April T., 1902, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., AprilT., 1902, on verdict for plaintiff, in case of L. W. Nicholas v. Joseph Keeling and Patrick Ridge, trading as Keeling v. Ridge, and the County of Allegheny.</p> <p>Trespass to recover damages for personal injuries. Before McClung, J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>The defandants presented the following points :</p> <p>2. If the jury believes from the evidence that the carts were the property of Mark Ridge, and that he was employed from 7 in the morning until 5.30 in the evening, under contract to furnish carts, horses and men at a fixed rate per hour, and that he took care of his own stock and his own carts and that the accident occurred at 7.30 in the evening at which time the owner of the carts was not engaged in any work for the defendants, in that case the defendant, Keeling & Ridge, are not responsible nor liable for any acts of negligence committed by the owner of the carts, and the verdict in this must be for the defendant, Keeling & Ridge. Answer: Refused. [1]</p> <p>3. If the jury believe from the evidence that the defendants had notified Mark Ridge and others in their employ not to leave obstructions upon the highway, and that after working hours upon February 16, 1900, the said Mark Ridge while on his way home from work, because of an accident to his horse, was obliged to leave the cart upon the roadside, and that Keeling & Ridge had no notice of it, the verdict must be for the defendant, Keeling & Ridge. Answer: Refused. [2]</p> <p>4. If the jury believe from the evidence that this road was in process of construction and that the carts were useful in the construction of said road, and were so used, and that they were so placed as to furnish sufficient room for passenger travel along said highway under ordinary circumstances, the fact of the leaving of said cart on the roadside, as testified to, was not negligence, and the verdict must be for the defendant, Keeling & Ridge. Answer: Refused. [3]</p> <p>5. Under all the evidence in this case, the verdict must be for the defendant, Keeling & Ridge. Answer : Refused. [4]</p> <p>Verdict and judgment for plaintiff for $225. Defendant appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

Appeal, No. 91, April T., 1902, by plaintiff, from judgment of Q. S. Allegheny Co., Sept. T., 1901, No. 396, on verdict of not guilty in case of Commonwealth1 v. Allegheny Valley Railway Company and Pennsylvania Railroad Company. Indictment to relocate and reconstruct a public road. Before Collier, J. The only question involved in the case is whether the present indictment is res adjudicata by Commonwealth v. Allegheny Valley Railway Co., 14 Pa. Superior Ct. 336.

<p>Appeal, No. 37, April T., 1902, by defendants, from judgment of C. P. No. 3, Allegheny Co., April T., 1902, No. 37, on verdict for plaintiff in case of Minnie E. Klingensmitli v. Joseph Keeling and Patrick Ridge, trading as Keeling & Ridge, and the County of Allegheny.</p>

<p>Railroads — Common carriers — Perishable goods — Delay.</p> <p>In an action against a railroad company to recover damages for the loss of perishable goods, a judgment for the plaintiff cannot be sustained where the evidence shows that the goods were packed so as to remain in good condition from two and one half to three and one half days from delivery to the initial carrier, that the initial carrier consumed about two and three quarters days in transporting the goods about fifty miles, and that the defendant company could not transport them in less than two or three days over the 350 additional miles to the point of destination.</p> <p>In such a case the plaintiff gains no advantage from any presumption that goods delivered to the initial carrier in good order remained so to destination, since the evidence showed that the goods shipped could, not have remained in good order beyond a limited time.</p>

Appeal, No. 29, April T., 1902, by Pittsburg, McKeesport & Youghiogheny Railroad, from order of Q. S. May T., 1900, No. 11, dismissing exceptions to report of viewers in In re Rostra ver Township Road. Exceptions to report of viewers. From the record it appeared that the Pittsburg, McKeesport & Youghiogheny Railroad filed the following exceptions to the report of viewers: 1.

Appeal, No. 131, April T., 1902, by Catharine C. Helman, from decree of O. C. Westmoreland County, May T., 1899, No. 28, dismissing petition for the payment of a legacy in the Estate of John L. Kunkle. Petition for the payment of a legacy for charge on land. The facts are stated in the opinion of the Superior Court. Error assigned was the decree of the court dismissing the petition.

<p>Appeal, No. 2, April T., 1902, by defendant, from judgment of C. P. Washington Co., Aug. T., 1900, No. 125, on verdict for plaintiff in case of Mary E. Haggart v. California Borough.</p>

Appeal, No. 18, April T., 1902, by defendant, from judgment of C. P. Washington Co., Aug. T., 1899, No. 5, on verdict for plaintiff in case of T. J. Decker v. East Washington Borough. Trespass to recover damages for personal injuries. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,000. Defendant appealed. Errors assigned were in refusing binding instructions for defendant.

Appeal, No. 9, April T., 1902, by-Calvary Presbyterian Church of Canton, Ohio, from decree of O. C. Allegheny Co., Nov. T., 1900, No. 75, sustaining exceptions to adjudication in estate of Helen L. Lippincott, deceased. Exceptions to adjudication.

Appeal, No. 34, Jan. T., 1903, from order of Q. S. Peace Co., Sept. T., 1901, No. 11, quashing indictment in case of Commonwealth v. William L. Gouger. Indictment for bribery at a primary election.

Appeal, No. 1, April T., 1902, by defendant, from judgment of C. P. Washington Co., Aug. T., 1900, No. 124, on verdict for plaintiff in… Held: but the individual street commissioner. But, if you should, in addition to the street commissioner doing this, find that the borough paid for the work, or paid part of it, then we think, gentlemen, that you would be warranted in finding that the borough authorities were behind this improvement, and to such an extent as to make them…

<p>Appeal, No. 110, April T., 1902, by W. F. Collner, from decree of O. C. Clarion Co., Feb. T., 1901, No. 8, dismissing exceptions to auditor’s report in estate of Henry Weeter, deceased.</p> <p>Exceptions to report of A. A. Geary, Esq., auditor.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree of Clark, P. J., dismissing exceptions to auditor’s repart.</p>

<p>Appeal, No. 115, April T., 1902, by defendant, from judgment of C. P. Somerset Co., Sept. T., 1900, No. 104, on verdict for plaintiff in case of Martha E. Dennison v. Somerset & Cambria Railroad Company..</p> <p>Trespass to recover damages for injuries to real estate. Before Longenecker, P. J.</p> <p>At the trial it appeared that the defendant in constructing its road in Pleasant street in the borough of Somerset crossed Main street at such a grade as to interfere with the natural flow of water. It constructed a box drain under the road, and carried the water on to the land of Mary Brant who, for a consideration, consented thereto. The water found its way from the Brant property on to plaintiff’s premises causing the injuries for which this suit was brought.</p> <p>Plaintiff presented the following points:</p> <p>1. That if the jury shall find from the evidence that the plaintiff is now and has been, the owner in fee, of the real estate described in her statement filed, for the last thirteen years or more, and that said defendant company twelve years ago or thereabouts caused a drain, or ditch, to be constructed from the rear of the building on the lot of Mary A. Brant, in the borough of Somerset, and across said lot and tapped or connected with the drain on the north side of Main street, at the intersection of Main and Pleasant streets, and that said company has ever since maintained said drain, and that by means of the same the waters and filth that collected are thrown upon Main street from time to time, and which before the construction of defendant’s drain were wont to flow along the turnpike to Cox’s creek, are carried to the mouth of said drain and are thrown upon and caused to flow upon plaintiff’s lot, and if they shall further find that said waters, polluted with all manner of filth, have injured her lands and diminished their production and usefulness and have created a stench and foul odors that have caused sickness in her family, and have produced such actual physical discomfort and annoyance as to interfere materially with the enjoyment of her property, have reduced the rental value of her property, caused suffering to plaintiff and her family, and entailed expense for medical and other services, then defendant company is responsible for all damages plaintiff has sustained thereby. Answer: We cannot affirm the point in the form in which it is written. There are elements of damage claimed for Mrs. Dennison which we have already said to you she cannot recover for, and as a whole we cannot affirm the point for that reason. Apart from that the law stated in the point is correct. [1]</p> <p>2. That if the jury shall find from the evidence that the defendant company about twelve years ago constructed a drain or ditch from the rear of the buildings, on the lot of Mary A. Brant, in the borough of Somerset, and across said lot, and tapped and connected with the drain on the north side of Main street, at the intersection of Main and Pleasant streets, and have maintained said drain ever since, and that by reason of said drain so constructed by defendant company, the waters commingled with and polluted by the filth that was thrown upon and collected on Main street, between Diamond and Pleasant streets, and which before said diversion by the drain were wont to flow along the turnpike eastward from Pleasant street to Cox’s creek are carried by means of said drain to near the boundary line of plaintiff’s lot and caused to flow upon plaintiff’s premises; then, even if the jury shall find that other persons along Main street have contributed to the pollution of the water by connecting their privy vaults with Main street drain, defendant company is liable for all the damages plaintiff may have suffered, if they shall also find that defendant’s drain was the proximate cause of the injury, and without which the injury would not have been done. Answer: This is affirmed, subject to what we have said in our general charge. [2]</p> <p>8. That if the jury shall find that in 1889 the defendant company purchased from Mrs. Brant a strip of ground, through her lot, for the purpose of constructing an underground box drain to carry off the waters and dirt from Main street and other streets of the town, and that it did construct said drain, and that at the time of its construction the dirt of the street consisted of horse manure, the contents of kitchen and wash-house drains, and that the waters of the streets polluted with filth discharged through the mouth of the drain and thrust upon plaintiff’s land, created foul odors that were offensive at the family residence and were a nuisance; and if they shall further find that after establishing the waterworks, the filth of the streets was augmented from the overflow of cesspools, and the contents of water-closets, which added to the plaintiff’s discomfort, annoyance and injury, and that the defendant company was informed of this fact and that it allowed the grievance to continue, and after it had full knowledge of the aggravated injury it repaired the drain and has maintained it ever since; and if it shall further find that within the last few years the defendant company constructed a lateral drain from the main drain to or near the private drain at the Trent residence for the purpose of carrying off the filth and polluted water that came through that drain, and which before was thrown upon the right-of-way, then defendant company is liable for all such damage as plaintiff may have sustained. Answer: Gentlemen, if you shall find the facts as stated in this point as they are there given, then the point is affirmed, subject to what we have said in our general charge as to the measure of damages and as to the right of recovery. [8]</p> <p>Defendant presented this point:</p> <p>3. That if the jury believe from the evidence that the drain across the land of Mrs. Brant was constructed in 1889 to carry off the surface water; that waterworks were constructed in Somerset borough in 1894 by the borough authorities; that after the construction of said waterworks, certain citizens of the borough put up bathrooms and water-closets in their houses and ran the contents of their water-closets and cesspools into the ditch on the north side of east Main street, down through the drain on the land of Mrs. Brant to the land of the plaintiff, thereby causing offensive smells, then there is no liability on part of the defendant company and the verdict must be for the defendant. Answer : We must refuse this point, in accordance with what we have already said to you, that though the borough may be liable, it would not excuse the defendant company. [5]</p> <p>On the measure of damages the court charged in part' as follows :</p> <p>The complaint of Mrs. Dennison is that she was injured by it; that there was such a deposit of foul matter at the point of discharge as to make the air offensive and the ground soft and swampy, in the manner explained to you ; and her complaint is, further, that her land has deteriorated because of the water which is cast upon it or finds its way into her land from the Brant premises. She and other witnesses have spoken of the way in which it affects the comfort of her home on the adjoining lot.</p> <p>Some proof was offered to show the extent to which the lot was affected in value by this condition of things. But we say to you that is not the wajr to get at this matter. If you should find there was negligence on the part of the railroad company in maintaining this box drain, and should come to allowing Mrs. Dennison damages for injury, the measure of damages is not the difference between what the property would sell for now and its value prior to this condition. On the contrary, the measure of damages is what it would cost to remedy the injury. It is not an appropriation of any of her land for the use of the railroad company; it is not one of those permanent uses of her property for which compensation should be made, as when land is appropriated under the right of eminent domain, but the measure of damages is what it would cost to remedy the trespass and make compensation for the injury sustained. Because Mrs. Dennison has a remedy, if this is a nuisance, in a court of equity to restrain the railroad company from continuing the trespass and she can stop it. And if she allows it to continue she can recover only such damages as she can show she has sustained and to restore the property as it was before.</p> <p>Amongst other things she says she suffered considerable discomfort from the foul odors coming from the place where the waters discharge. If you can ascertain what the discomfort of Mrs. Dennison herself is worth, if there is any evidence in the case to show how such value is to be measured, you can take it into consideration. And the same will apply to the suffering which she sustained in any sickness which you can say arose from this alleged condition. You must be satisfied, however, that the sickness came from this cause. Several physicians were on the stand and neither one of them said her sickness came from the condition at the mouth of the drain, but one of them testified that it might have come from that. One said typhoid fever might come from it, or malaria, but no one has testified that that was her complaint. You cannot compensate Mrs. Dennison, however, for the sickness of the other members of the family. Mr. Dennison is the head of the family and any loss for services would be his and not hers; he would be entitled to compensation for any damages he could prove in that respect in a suit of his own. The same is true as to any physician’s bill. She was not obliged to pay it; it was her husband’s obligation to do so, as the head of the family, and she cannot recover for it; it was not her loss.</p> <p>' Verdict and judgment for plaintiff for $340. Defendant appealed.</p> <p>Errors assigned were (1, 2, 3, 5) above instructions, quoting them.</p>

<p>Bankruptcy — Bankrupt act of 1898, sec. 60 — Preference—Evidence— Interest.</p> <p>In an action by a trustee of a bankrupt to recover an amount of money alleged to have been paid as a preference in violation of the 60lh section of the national bankrupt act, a witness may be permitted to testify to an interview had by him with the bankrupt and the defendant seven months prior to the giving of the preference, where it appears that from the date of the interview to the date of the preference the defendant had a more or less intimate connection with and knowledge of the affairs of the bankrupt.</p> <p>Where a person claims a legal set-off under the terms of clause (c) of section 60 of the bankrupt act, it is necessary for such person to show specifically that the payment became “ a part of the debtor’s estate.” It must be. shown that the estate was benefited in some way by the payment.</p> <p>In an action by the trustee of a bankrupt to recover an amount alleged to have been paid by the bankrupt to a creditor as a preference, interest cannot be charged until demand made, and if no demand was made, interest vvill only be payable from the date of the suit.</p>

<p>Landlord and tenant — Notice to quit — Withdrawal of notice.</p> <p>Where a tenant has received the three months’ notice to quit inquired by an existing lease and on application to the landlord procures permission to remain, the notice is in effect withdrawn and the covenants of the existing lease furnish a consideration for the contract of renewal. In determining whether there was an actual withdrawal of the notice, the jury should consider all of the acts and declarations of the landlord, and not merely what he said at a particular conversation.</p> <p>Appeals —Charge of court — Harmless error — Landlord and tenant.</p> <p>In a proceeding by a landlord to regain possession of leased premises, where the verdict is for the plaintiff, the defendant cannot obtain a reversal upon alleged erroneous instructions given by the trial judge in respect to the measure of damages in case the jury found for the defendant.</p> <p>Practice, C. P. — Charge of court — Appeals.</p> <p>■It is error to confine the attention of the jury to one view of the case where there is more than one which they should consider. If, however, no particular instructions be asked, the court is responsible for the general effect only of the charge, and in considering the charge, the whole of it must be taken together.</p>

<p>Trespass qaare clausum fregit — Possession—Cotenants—Charge.</p> <p>Where one oí several cotenants in possession of real estate by permission of the other cotenants, leaves the premises temporarily with no intention of abandonment, and another of the cotenants forcibly enters and throws out furniture which he finds there, he will be liable in damages to the cotenant upon whose possession he has trespassed.</p> <p>In an action to recover damages for a trespass alleged to have been committed on the day before Decoration day, a judgment on a verdict for plaintiff will not be reversed because the court said to the jury: “If you recollect last Decoration day; it seems that these parties went the day before ; on Decoration day there was a very heavy rain ; I know that, I went to Prospect and it poured on me nearly all the day and it rained in the afternoon.”</p>

<p>Appeal, No. 100, May T., 1902, by plaintiffs, from judgment of Or P- Butler Co., Dec. T., 1901, No. 164, on verdict for defendant in case of Newton Hilliard and Thomas Iienon v. Henry G. Donnelly.</p> <p>Ejectment for land in Washington township. Before Greer, P. J.</p> <p>At the trial plaintiff showed title in one Samuel H. Kelly by a county treasurer’s deed under a tax sale. They then offered in evidence a deed of Kelly to Samuel Dickey. The material portions of this deed are quoted in the opinion of the Superior Court. Plaintiffs then offered in evidence a deed from the widow and heirs of S. H. Kelly to Thomas and Richard Henon, bearing date July 23, 1890, for seventy-five acres, the land being the land in dispute.</p> <p>Judge Bredin: We object to that because by the evidence of this last deed offered by the plaintiffs all the interest of S. H. Kelly had passed to Mr. Dickey; that he had nothing to convey. We object to the deed and ask the court to rule on that, because by the former deed offered in evidence all the title passed from Mr. Kelly to Mr. Dickey and there was nothing to pass.</p> <p>The Court: I think we will not receive this deed unless there is more proof to show that Kelly had land in there.</p> <p>Mr. Vanderlin: We propose to follow this by evidence to show where Dickey bought to, and it left a part of No. 12 still in Kelly ; to show the limits of Dickey’s purchase.</p> <p>The Court: We will not receive it.</p> <p>Bill of exceptions sealed this 4th day of June, 1901, at request of plaintiffs’ counsel.</p> <p>Mr. McQuistion: To be followed by parol testimony that the land in dispute is part of lot No. 12 in the second donation district, and that it was not embraced nor included within the boundaries of title deed made by Samuel H. Kelly to Samuel Dickey, already offered in evidence and bearing date October 16, 1854, recorded in deed book 66, page 367, the boundaries in the deed from Samuel H. Kelly to Samuel Dicke}'being well defined by monuments and measurements and calls, and left seventy-five acres of the original numbered lot that did not pass by the deed of Kelly to Samuel Dickey, and to be further followed by parol proof to show that lot No. 12 overran the amount of land described in the official draft already offered in evidence on part of plaintiff, and to bo followed by proof that Miller and Hilliard claimed the land north of the line of Dickey’s land.</p> <p>Judge Bredin: Objected to because the deed from S. H. Kelly and wife to Samuel T. Dickey conveys to said Dickey all the land which he, the said S. H. Kelly, purchased at treasurer’s sale as the property of Jonathan Porter, and being all the land between Miller and Hilliard on the north and Hannah on the south, showing by the express terms of the deed that no land remained in said Kelly to be afterwards conveyed to anyone, and the fact, moreover, that the distance given as 195 rods from north to south corresponded precisely with the distance given in the deeds already offered in evidence by the plaintiffs, preceding the Kelly deed. Objected to further ; the parol testimony proposed to be offered would be entirely incompetent; it is contradicting the deed.</p> <p>The Court: The plaintiff having first offered in evidence a connected draft of nine tracts of land situate, when surveyed, in donation district No. 2, now in the county of Butler, which survey was in pursuance of an act of assembly, showing that No. 12 subdistrict is between No. 13 and No. 11; that it is 261 perches from east to west and 195 perches from north to south; the plaintiff also offering deed from Porter to David Smith, showing a conveyance of 100 acres off the east side of this tract of land; also showing the deed of the treasurer of Butler county, Isaac Colbert, to S. H. Kelly for a tract of land corresponding exactly with what remains of No. 12 after 100 acres were sold off, and also as the same deed shows it was Kelly’s land between Hilliard and Miller on the north and Hannah on the south, and also shows that it was all the land bought by Kelly. We refuse to receive this deed and seal a bill. [1]</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2) in giving binding instructions for defendant.</p>

Appeal, No. 66, April T., 1902, by defendant, from judgment of C. P. Venango Co., April T., 1900, No. 39, on verdict for plaintiff in case of A. H. McKelvy v. Peter Berry. Assumpsit by a second indorsee on a promissory note. Before Criswell, P. ,T. At the trial it appeared that the note sued upon was in the following form: “1400.00. Buffalo, N. Y., Nov. 28, 1894. “ On demand I promise to pay to the order of Columbia National Bank of Buffalo four hundred dollars.

<p>Appeal, No. 142, April T., 1902, by plaintiff, from judgment of C. P. Crawford Co., on verdict for plaintiff, in case of H. M. Dickson, Administrator of George O. Ewing, Deceased, v. John Fertig and W. C. Warner, trading as National Oil Company.</p> <p>Assumpsit on an oil lease. Before Thomas, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Plaintiff presented this point:</p> <p>That by the terms of the lease made by George C. Ewing to John F. Proper, which is the basis of this suit, there was reserved a royalty of one fourth of one eighth (or in other words, one-thirty-second) part of all the oil the lessee, or his assigns, might produce from the land therein described. Answer: This point is refused. • [1]</p> <p>The court charged in part as follows :</p> <p>[We say to you that all the plaintiff is entitled to recover in this is one sixty-fourth of the amount of oil brought to the top of the ground on the premises, and that was to be delivered to him in the pipe lines. If it lias not been so done he is entitled to recover the value of the oil at the time it should have been delivered, together with interest on that value from that date until the present time.</p> <p>Some evidence as to the amount and value thereof has been offered and a computation has been made, which the parties will send out to you. There was a statement as I understand it offered, showing that the contention of the plaintiff was for one-thirty-second interest in the amount agreed upon. We say to you that is twice as much as they were entitled to, that they are entitled to no more than one-sixty-fourth interest.] [4]</p> <p>Verdict and judgment for plaintiff for 1399.68. Plaintiff appealed.</p> <p>Errors assigned were (1, 4) above instructions, quoting them.</p>

Appeal, No. 119, April T., 1902, by plaintiffs, from order of C. P. Erie Co., Nov. T., 1901, No. 90, refusing mandamus in case of Commonwealth ex rel. John Depinet et al. v. W. W. Gingrich, Controller. Petition for mandamus.

<p>Appeal, No. 14, Feb. T., 1902, by defendants, from judgment of Q. S. Elk Co., April T., 1901, No. 3, on verdict of guilty in case of Commonwealth v. H. F. Hasse, C. J. Schramm and Nelson Lund.</p> <p>Indictment for conspiracy. Before Mayer, P. J.</p> <p>Motion to quash indictment.</p>

Appeal, No. 21, April T., 1902, by plaintiff, from judgment of C. P. Clarion Co., April T., 1892, No. 349, on verdict for defendant in ease of I. M. Shannon, Executor of John Yeany, deceased, v. J. P. Castner and Martin Castner. Issue to determine the validity of a confessed judgment. Before Clark, P. J. At the trial it appeared that the judgment in question was entered on a judgment note in the following form: Martin Castner alleged that his signature was forged.

Appeal, No. 24, April T., 1902, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 568, on verdict for plaintiff in case of John K. Wymard v. James A. Deeds and George H. Deeds, trading as Deeds Brothers. Assumpsit on a contract to furnish stone.

<p>Constitutional law — Constitution of the United States — Fourteenth amendment — Estates of persons supposed to be dead — Act of June 24, 1885, P. L. 155.</p> <p>The act of June 24, 1885, in so far as it authorizes the distribution of the estate of a living citizen of the United States domiciled in a sister state violates the fourteenth amendment of the constitution of the United States and is invalid. The vice of the statute is not in the form of the decree which the court is authorized to enter, but in divesting an owner of his property by a proceeding to which he is not a party, and of which he has had no notice.</p> <p>A state has jurisdiction over persons and property within its boundaries, and may make a law, the purpose of which is the collection of abandoned estates, with proper provisions for the preservation of the property, or the proceeds thereof for the owner, but it has no power to divest the title of a living but absent owner, and give it to others.</p>

<p>Decedent's estates — Sale of real estate — Payment of debts — Act of April 18, 1853, P. L. 503 {Price Act).</p> <p>The act of April 18, 1853 (Price Act), does not apply to a case where a petition is filed in the orphans1 court by an executor or an administrator for an order of sale for the payment of debts. Spencer v. Jennings, 114 Pa. 619 ; 123 Pa. 184, followed.</p> <p>Decedent's estates — Orphans' court sales — Act of March 29,1832, P. L. 190.</p> <p>Prior to the act of May 9, 1889, P. L. 182, proceedings in the orphans’ court, upon the petition of an executor or an administrator for an order of sale for the payment of debts were governed by the act of March 29, 1832, which act merely contemplated a public and not a private sale.</p> <p>' Where an administratrix under an order of the orphans’ court sells real estate, for the payment of debts, but the sale is not confirmed by reason of the inadequacy of price, and thereafter the administratrix under an order of court sells at private sale the real estate to the same bidder at an advanced price, and the record is not amended so as to make it appear that the purchaser had agreed to increase his bid, and that the court had then confirmed the sale as a public sale, it cannot afterwards be alleged that the sale was other than a private sale.</p> <p>Where land subject to a life estate in decedent’s widow, is sold for the payment of debts at a private sale, and the widow does not die until sixteen years after the sale, one of the remainder-men, who was a feme covert, and who at the time had knowledge of the sale, but no actual notice of the nature of the sale until several years thereafter, and who had no knowledge of improvements made by the purchaser, is not estopped from instituting a suit nineteen years after the sale by reason of her conduct. In such a case, however, the title of the purchaser is cured by the Act of April 4, 1901, P. L. 66.</p> <p>Decedent's estates — Orphans' court sales — Private sale for payment of debts — Act of April 4, 1901, P. L. 66.</p> <p>Where upon the petition of an administrator a decedent’s real estate is sold for the payment of his debts in 1881, and thereafter the administrator enters adequate security, the defect in the title of the purchaser by reason of the fact that a private sale was unauthorized by the Act of March 29, 1832, is cured by the Act of April 4, 1901, P. L. 66, validating private sales of real estate made upon petition of executors and administrators for the payment of debts; and this is the case although a suit was begun by a party claiming an interest in the real estate before the Act of April 4, 1901, was passed.</p> <p>Constitutional law — Statutes—Retroactive enactments — Act of April 4, 1901, P. L. 66.</p> <p>The legislature has the right to enact statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine, by the state constitution, and provided further that no other objection exists to them from their retrospective character.</p> <p>The Act of April 4,1901, P. L. 66, validating private sales of decedent’s real estate made by executors or administrators for the payment of debts, although retroactive in character, is a proper enactment, and is constitutional.</p> <p>Constitutional law — Retroactive enactments — Pending legislation.</p> <p>The legislature, provided it does not violate the constitutional prohibitions, may pass retrospective laws such as in their operation may affect suits pending, and give to a party a remedy which he did not previously possess, or modify an existing remedy, or remove an impediment in the way of legal proceedings.</p>

<p>. Oil and gas lease — Assignment of lease — Liability of assignee for royalties.</p> <p>The assignee for the lease of land for oil or gas production is liable to the lessor for the payment of all rent or royalties which accrue while he holds an assignment of the lease.</p> <p>A lessee in an oil lease will not be permitted during his possession and beneficial enjoyment of the leased premises, to allege in defense to an action for the stipulated rent that the lessor under whom he entered had not title at the time of his entry.</p> <p>Where oil land is sold for taxes, and before the expiration of the period for redemption, the owner executes an oil lease, and thereafter another person purchases and takes title to the land by deeds from the purchasers at the tax sale, which deeds are made subject to the oil lease, and such person then takes an assignment of the oil lease, he cannot set up the title to the land which he has obtained by the deeds, against the lessor in an action for royalties under the lease.</p> <p>Letters of attorney — Special power — Principal and agent.</p> <p>Letters of attorney are strictly interpreted and the authority is never extended beyond that which is given in terms, or that which is necessary and proper for carrying the authority so given into full effect.</p> <p>A letter of attorney to execute an oil lease will not be extended so as to include authority to the attorney to bind his principal by a recognition of an outstanding title asserted by a third person.</p> <p>A special power must be strictly pursued, and whoever deals with an agent constituted for a special purpose deals at his peril when the agent passes the precise limits of his power.</p>

<p>Appeal, No. 152, Oct. T., 1901, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1899, No. 315, on verdict for defendant in case of Barzillai Ridgway and William Gr. Ridgway, trading as B. Ridgway & Son, v. John R. Scott.</p> <p>Assumpsit by owner of promissory notes against maker. Before Sulzberger, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 14, April T., 1903, by plaintiff, from judgment of C. P. Erie Co., Nov. T., 1899, No. 22, for defendant non obstante veredicto in case of the Bauschard Company v. Fidelity & Casualty Company of New York.</p> <p>Assumpsit on a bond of suretyship. Before Miller, P. J., specially, presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Errors assigned were (1) in reserving the question of law, quoting the reservation; (4) in entering judgment for defendant non obstante veredicto.</p>

<p>Bailment — Conversion by bailee.</p> <p>Where an owner of a horse permits his trainer to keep the horse at a race track in the trainer’s name, but subsequently reveals his ownership and pays the owner of the race track his charges for feed and keep, and attempts to take possession of the horse but is forceably prevented by the trainer, who claims, without authority, a lien on the horse for his services, and thereafter the trainer with the acquiescence and permission of the race track owner takes away the horse, and converts it to his own use, the owner of the horse has a right of action against the owner of the race track for the value of the horse.</p>

Appeal, No. 6, Oct. T., 1902, by Rhoda Lovell, from decree of O. C. Phila. Co., April T., 1901, No. 92, overruling exceptions to adjudication in estate of Seth Lovell, deceased. Exceptions to adjudication.

<p>Practice — Pleading—Statement—Sufficiency of statement.</p> <p>A statement in an action for a balance for millt sold and delivered, not purporting to be brought upon a book account, is sufficient where it contains the following averment, “ Plaintiffs aver that they sold and delivered to the defendant, in the month of March, 1901, 2,399 quarts of milk, and, in the month of April, 1901, 2,3L6 quarts of milk, at the price of three and one half cents per quart, the price agreed between them, making the total indebtedness therefor $165.03,” followed by averments as to credits and balance due.</p> <p>In an action for milk sold and delivered, a claim for freight paid to re-turn sour milk cannot be sustained where there is no allegation that plaintiff requested that the sour milk should be returned.</p>

Appeal, No. 15, Oct. T., 1902, by William J. Cunius, executor, from decree of O. C. Phila. Co., April T., 1901, No. 626, overruling exceptions to adjudication in the estate.of Michael Murphy, deceased. Exceptions to adjudication. The facts appear by the opinion of the Superior Court. JError assigned was in overruling exceptions to adjudication.

<p>Promissory notes — Affidavit of defense — Accommodation note.</p> <p>In an action against the maker of a promissory note the affidavit of defense alleged as follows: “Deponent denies that the said plaintiff is a bona fide holder for value, without notice, of said note, as alleged in this statement in this cause, but declares that he, the said plaintiff, had full knowledge of the circumstances connected with the giving of said note, that it was wholly without consideration and for the accommodation of the indorser and said plaintiff.” The arrangement between the plaintiff and the indorser is then fully set forth, the affidavit then averring: “That this deponent, on behalf of the defendant, assented to said proposition and agreed to give said note and did so give it, with the full understanding and agreement that it was solely for the accommodation of the said plaintiff and the payee, and that they would protect and pay it at maturity and save the defendant harmless from loss in the transaction. That when the said note was about to mature, the said payee and plaintiff requested a new note in renewal of it and that said note in suit was then given in renewal of the former note, at their said request, but without any consideration therefor to the defendant or any change in the conditions of liability for payment of the debt which was solely that of the payee and plaintiff.” Held, that the affidavit of defense was sufficient to prevent judgment.</p>

<p>Appeals — Assignments of error — Practice, Superior Court — Rule XIX and XVI.</p> <p>An appeal will be quashed where one of the assignments of error embraces three distinct points, and where the other two assignments of error relating to the admission of testimony do not quote the questions or answers, the ruling of the court thereon and the testimony or evidence admitted, with reference to the pages of the paper-book.</p>

<p>Beal estate broker — Evidence—Commission—Question for jury.</p> <p>If the property sold is brought to the attention of the purchaser by the broker and the principal carries on the negotiations himself or agrees to an exchange instead of a sale, or allows the purchaser a certain time to agree to his terms, and, before the expiration of the time allowed, sells to another, the broker is entitled to his commissions. Where the evidence is doubtful as to whether the broker had given up all efforts to sell the property, and is conflicting as to whether the property was sold through another person, to parties to whose attention the broker had first brought the property, the question of the broker’s right to commissions is for the 3U1T-</p>

Appeal, No. 63, Oct. T., 1902, by William Lewis, Jr., from decree of O. O. Phila. Co., April T., 1885, No. 306, dismissing exceptions to adjudication in estate of William Lewis, deceased. Exceptions to adjudication.

Appeal, No. 117, Jan. T., 1901, by Margaret G. Brady, administratrix c. t. a., from decree of O. C. Phila. Co., Jan. T., 1901, No. 544, dismissing exceptions to adjudication in estate of Thomas Brady, deceased. Exceptions to adjudication.

Appeal, No. 83, Oct. T., 1902, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1901, No. 1662, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of CommQnwealth v. J. F. Givin. Appeal from decision of board of mercantile appraisers. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 82, Oct. T., 1902, by defendant, from judgment of O. P. No. 8, Pbila. Co-., Oct. T., 1902, No. 82, on verdict for plaintiff in case of Henry D. Martien v. Thomas J. Hansell. Assumpsit for services as veterinary surgeon. Before McMichael, J. The facts appear by the opinion of the Superior Court. Verdict and judgment for plaintiff for $77.65. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 104, Oct. T., 1902, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1900, No. 519, making absolute a rule for judgment for'want of a sufficient affidavit of defense in case of Arnold Monophase Electric Company v. Samuel Chew. Assumpsit on a stock subscription.

<p>Contract — Affidavit of defense — Breach—Time of performance.</p> <p>In an action on a claim based on a promise of the defendant to pay in the event of a sale of certain real estate, an affidavit of defense is sufficient which alleges that the property in question was not sold, but was exchanged for other real estate which defendant still held, and that the time for the payment under the contract had not yet arrived.</p>

Appeal, No. 190, Oct. T., 1902, by Cumberland Valley Railroad, from- order of Q. S. Franklin Co., Road View No. 4 of 1901, dismissing exceptions to report of road viewers in case of Road in Greene and Guilford Townships. Exceptions to report of viewers. Swope, P. J., filed the following opinion: The first five exceptions to report of viewers in this case refer to alleged defects in the termini of the road. 1.

<p>Appeal, No. 99, Oct. T., 1902, by Sallie O. Bennett, from judgment of C. P. No. 4, Pbila. Co., Sept. T., 1899, No. 609, dismissing exceptions to auditor’s report, in estate of Joseph S. Campbell Chocolate Company, Limited.</p> <p>Exceptions to report of Samuel M. Clement, Jr., Esq., auditor.</p> <p>The opinion of the Superior Court states the case.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeals, Nos. 147 and 152, Oct. T., 1902, by Virginia A. Freno, from decree of O. C. Phila. Co., July T., 1878, No. 127, ordering sale of real estate in partition in estate of Thomas Passmore Hanbest, deceased. Petition for order of sale in partition.

Appeal, No. 163, Oct. T., 1902, by Oliver Evans, from decree of O. C. Phila. Co., Oct. T., 1891, No. 277, refusing widow’s exemption, in estate of Lewis B. Evans. Petition for widow’s exemption.

Appeal, No. 2, Oct. T., 1902, by the Prudential Insurance Company, from order of C. P. Lebanon Co., Sept. T., 1901, No. 86, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Jacob Doll, Administrator of Mary Schiebel, Deceased, v. The Prudential Insurance Company. Assumpsit on a policy of life insurance. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 107, Oct. T. 1902, by-defendant, from judgment of C. P. Bedford Co., Nov. Term, 1901, No. 154, on verdict for plaintiff in case of Borough of Mann’s Choice v. Western Union Telegraph Company.</p> <p>Assumpsit to recover a license fee on telegraph poles and wires. Before Bailey, P. J.</p> <p>At the trial it appeared that the defendant had no office in the borough, and that the wires in question were used for a transmission of telegraphic messages between different states. A license fee of $1.00 per pole and fifty cents per mile of wire was imposed upon the company.</p> <p>Verdict and judgment for plaintiff for $81.00. Defendant appealed.</p> <p>Error assigned was in giving binding instructions.</p>

Appeal, No. 187, Oct. T., 1902, by plaintiff, from judgment of C. P. Blair Co., March T., 1899, No. 25, for defendant non obstante veredicto in ease of Earl Buchanan, by his Guardian, Frank P. Crissman, v. Frank Am-merman and Annie M. Robesob. Ejectment for land in Logan township. At the trial the court instructed the jury to return a verdict for plaintiff subject to certain questions of law reserved.

Appeal, No. 11, Feb. T., 1902, by plaintiff, from judgment of C. P. Lycoming Co., Dec. T., 1899, No. 129, on verdict for defendants on case tried by court without a jury in suit of City of Williamsport v. Nelson A. Hughes and the Savings Institution of the City of Williamsport. Scire facias ,sur municipal lien for paving. Trial by the court without a jury under the act of April 22, 1874. Before Archbald, P. J., specially presiding.

<p>Principal and surety — Bond—Suit in name of United States — Public works.</p> <p>The act of congress of August 13, 1894, entitled “ An act for the protection of persons furnishing materials and labor for the construction of public works,” which authorizes persons supplying labor and materials to contractors for the construction of any public work to bring suit in the name of the United States for his or her use and benefit against the sureties of the contractors, does not impose as a condition precedent to the bringing of such action, the filing of an affidavit of claim with the department having charge of the work for which the bond has been given. The object of filing the affidavit is simply to secure a copy of the contract and bond.</p> <p>Partnership — Notice of change of partnership — United States government contractors.</p> <p>Where persons have furnished materials to a firm of United States government contractors, their right to recover on tiie bond of the contractors is not to be defeated merely by showing that there has been a change in the persons controlling the firm, of which change the subcontractor had no notice until after their goods had been delivered and used.</p>

<p>Road law — Paving—Original paving — Repairs.</p> <p>In an action to recover a municipal assessment for paving, the case is for the jury where it appears that the ordinance which authorized the paving required an absolute covenant of guaranty upon the part of the contractor for a period of ten years, that the contract contained a covenant on the part of the contractor to keep the pavement in good repair for a period of ten years without further consideration than that mentioned in the bid or proposal, and that the guaranty of durability and the covenant for repairs contained no qualification whatever, so that the contractor might be required to make repairs without regard to the cause which made the same necessary.</p>

Appeal, No. 270, Oct. T., 1901, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1900, No. 290, on verdict for plaintiff in case of Julia Ahern v. Frederick J. Melvin. Trespass to recover damages for personal injuries. Before Willson, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,000. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

Appeal, No. 291, Oct. T., 1902, by defendant, from judgment of C. P. No. 8, Phila. Co., Dec. T., No. 386, on verdict for plaintiff in case of John W. Bruff v. John R. Kendrick and John R. Kendrick, Jr. Trespass for malicious prosecution.

Appeal, No. 61, Oct. T., 1902, by plaintiff, from order of O. P. No. 2, Phila. Co., Deo. T., 1899, No. 88, refusing to take off nonsuit in case of Charles A. Daniel v. Charles D. Lance etal. Assumpsit on a promissory note. Before Wiltbank, J. The facts appear by the opinion of the Superior Court. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was the order of the court.

Appeal, No. 28, Oct. T., 1902, by plaintiff, from judgment of C. P. No. 1, Sept. T., 1897, on verdict for plaintiff in case of Henry C. Loughlin, Trustee of Sarah Kopp, Deceased, v. Lawrence J. Carey. . Assumpsit for rent and for damages for breach of covenant of a lease. Before Brbgy, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $36.00. Plaintiff appealed.

Appeal, No. 121, Oct. T., 1902, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T,, 1901, No. 1309, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Lizzie N. Child v. Teachers’ Annuity and Aid Association of Philadelphia. Assumpsit to recover an annuity. The facts are stated in the opinion of the Superior Court.

<p>Negligence — Municipalities—Defective sidewalk.</p> <p>In an action to recover damages for personal injuries to a child from falling at a depressed place in a sidewalk, the case is for the jury, where defendant’s witnesses testify that the bricks were simply depressed, while plaintiff’s witnesses testify that they were entirely removed, and the testimony is conflicting as to the depth of the hole, varying from three quarters of an inch to nine inches.</p>

<p>Divorce — Counsel fee and expenses — Order for payment after judgment.</p> <p>Where in a divorce proceeding the court grants a rule for an order for additional counsel fee and expenses on the same day that judgment is entered, the court has power subsequently to order the payment of the additional counsel fee and expenses, notwithstanding the fact that judgment had been entered.</p>

Appeal, No. 106, Oct. T., 1902, by-defendant, from order of C. P. Lebanon Co., June T., 1901, No. 299, discharging rule to open judgment in case of the Wilmot & Hobbs Manufacturing Company v. The Pennsylvania Bolt & Nut Company. Rule to open judgment. Ehrgood, P. J., filed the following opinion : The judgment in this case was regularly entered.

Appeal, No. 88, April T., 1902, by plaintiff, from judgment of C. P. Venango Co., Nov. T., 1900, No. 46, on verdict for defendant in case of Quaker City Watch Company v. W. E. Lamoreaux. Assumpsit for goods sold and delivered. Before Crisswell, P. J. The opinion of the Superior Court states the case. Verdict and judgment for defendant. Plaintiff appealed. JSrror assigned was in giving binding instructions for defend, ant.

Appeal, No. 741, June T., 1901, by defendant, from order of C. P. No. 5, Phila. Co., Oct. T., 1901, No. 243, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Howland Pulp Company v. Jessup & Moore Paper Company. Reversed. Assumpsit for goods sold and delivered. The book entries upon which suit was brought were as follows: Dec. 17,1900. Jessup & Moore Paper Co., Kenmore Mills.

Appeal, No. 286, Oct. T., 1901, by Catherine Ramschasel, from decree of O. C. Phila. Co., Oct. T., 1900, No. 52, dismissing exceptions to adjudication in estate of John Ramschasel, deceased. Exceptions to adjudication.

<p>Insurance — Life insurance — Assignment of policy — Creditor.</p> <p>A person insured by a mutual life policy assigned to another all his “right, title and interest” in the policy “as collateral security, for the amount of his demand subsisting against me at my decease, as creditor, surplus, if any, for the benefit of. my estate.” The insurance company paid to the insured certain moneys representing increments or earnings accruing from time to time. Held, that the insured and not the assignee of the policy was entitled to such moneys, and that the assignee could not compel the insurance company to pay them a second time to himself.</p>

Appeal, No. 23, Oct. T., 1902, by defendants, from order of C. P. No. 1, Pbila. Co., Dec. T., 1901, No. 1737, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Eastern Forge Company of Massachusetts v. John H. Baizley and Rudolph R. Baizley, trading as the John Baizley Iron Works. Assumpsit for goods sold and delivered.

Appeal, No. 69, April T., 1902, by defendant, from judgment of C. P. Butler Co., March T., 1901, No. 48; on verdict for plaintiff in case of Lewis C. Wick v. Fraternities Accident Order. Appeal from judgment of justice of the peace. Action to recover accident benefits. Before Greer, P. J. The opinion of the Superior Court states the case. The court refused binding instructions for defendant. Verdict and judgment for plaintiff for $104. Defendant appealed.

<p>Contract — Husband and wife — Ostensible ownership — Question for jury.</p> <p>In an action by a woman, the owner of a hotel, to recover for board where the defendant seeks to set off a debt due to him by plaintiff’s husband, the case is for the jury where the evidence shows that the plaintiff permitted her husband to act as her agent; that both were actively engaged about the hotel; that there was nothing to indicate an ownership in one more than the other; that the contract with defendant was made by the husband, and the defendant made no inquiry as to the ownership of the hotel.</p>

Appeal, No. 44, Jan. T., 1903, by Frank P. Meckas, from order of Q. S. Monroe Co., granting liquor license in In re Keiper’s Liquor License. Petition for liquor license. The facts are stated in the opinion of the Superior Court. Error assigned was order granting license.

Appeal, No. 272, Oct. T., 1901, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1901, No. 2391, making absolute rule for judgment for war/ of a sufficient affidavit of defense, in case of Quaker City Apartment House Company v. Francis B. Matthews. Assumpsit on a subscription to stock. The averments of the statement of claim and the affidavit of defense sufficiently appear by the opinion of the Superior Court.

<p>Appeal, No. 151, April T., 1901, by T. P. Brown, from order of Q. S. Lawrence Co., March T., 1902, No. 51, granting a liquor license in In re Application of Julia A. Funkhouser.</p>

Appeal, No. 27, Oct. T., 1902, by defendants, from order of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 2808, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Swift & Company v. Walter W. Herkness and J. Smylie Herkness, trading as Alfred M. Herkness & Company. Assumpsit for value of a borse. The averments of the statement and affidavit of defense are set forth in the opinion of the Superior Court.

Appeal, No. 17, Oct. T., 1902, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1899, No. 868, on verdict for plaintiff in case of Emma E. Alexander and Fannie Alexander v. Stewart Bread Company. Trespass to recover damages for injuries alleged to bave been caused by the operation of a bakery in a residential neighborhood.

Appeal, No. 51, Oct. T., 1902, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 408, discharging rule for judgment for want of a sufficient affidavit of defense in case of Julius Garst, trading as Pheyno-Caffein Company, v. Arthur J. Wissler. Assumpsit upon an alleged implied contract. The facts are stated in the opinion of the Superior Court. Error assigned was the order of the court.

Appeal, No. 46, Oct. T., 1902, by George W. Eadline, from decree of O. C. Phila. Co., April T., 1901, No. 582, dismissing exceptions to adjudication in estate of Mary Baker, deceased. Exceptions to adjudication. From the record it appeared that Mary Baker died April 30, 1900, leaving a will dated September 12, 1895, with codicils, the last of which was dated October 27, 1897, which were admitted to probate, May 5,1900.

Appeal, No. 97, Oct. T., 1902, by plaintiff, from order of C. P. No. 3, Dec. T., 1900, No. 10, refusing a decree of divorce in case of Andrew J. Timney v. Jennie Timney. Libel for divorce. The master, David N. Fell, Jr., Esq., recommended that a decree of divorce should be refused on the ground that the subpoena and the libel had not been served by the sheriff. The court sustained the master’s recommendation. Error assigned was order refusing a decree of divorce.

Appeal, No. 89, Oct. T., 1902, by defendant, from judgment uf C. P. No. 4, Phila. Co., Dec. T., 1897, No. 93, on verdict for plaintiff in case of Elizabeth Steigerwald v. Philadelphia Brewing Company. Trespass for refusing to satisfy a mortgage. From the record it appeared that the action was brought under the act of May 28, 1715. The facts are fully stated in the opinion of the Superior Court. Defendant presented, among others, these points: 1.

Appeal, No. 84, Oct. T., 1902, by defendants, from judgment of C. P. No. 3, Phila. Co., June T., 1900, No. 244, on verdict for plaintiff in case of Simon Levy v. Harry M. Rosenblatt, William B. Landauer and Emanuel H. Massman, trading as H. M. Rosenblatt & Company. Trespass to recover damages for personal injuries. The facts appear by the opinion of the Superior Court.

Appeal, No. 42, April T., 1902, by plaintiff, from judgment of C.P. No. 1, Allegheny Co., Deo. T., 1899, No. 391, for defendant non obstante veredicto in case of Pittsburg v. W. H. Keech Company. Appeal from alderman, in suit to recover penalty provided by an ordinance.

Appeal, No. 95, Oct. T., 1902, by defendant, from judgment of C. P. No. 5, Phila. Co., March Term 1901, No. 662, on verdict for plaintiff, in case of Huntingdon Malleable Iron Company v. Armstead O. Bills. Assumpsit for goods sold and delivered. Before Martin, P. J. The facts appear by the opinion of the Superior Court. Errors assigned were (1) in excluding evidence as to profits on future deliveries; (2) in giving binding instructions for plaintiff.

Appeal, No. 117, Oct. T., 1902, by-defendant, from judgment of O. P. No. 3, Phila. Co., Dec. T., 1899, No. 411, on verdict for plaintiff in case of R. Pitt Owen and James E. Salter, trading as Owen & Salter, v. William G. Rothermel. Assumpsit for goods sold and delivered. At the trial it appeared that Miller & Ruoff were engaged in the steam fitting business in this city, and that they were doing work of that character at Glenolden in December, 1898.

<p>Promissory notes — Payment—Confession of judgment — Evidence.</p> <p>Where a debtor of a bank confesses judgment to a trustee for the bank to secure the bank for all the debts which he owes it, including indorsed notes, and the bank has knowledge that the judgment was confessed, that the debtor’s property was sold by the sheriff and bought in by the trustee, and that the bank’s trustee conducted the debtor’s business afterwards for over a year, the maker of one of the indorsed notes has a right in a suit upon such note by the bank to show that the note was an accommodation note, and that the bank knew that it was an accommodation note, and also to show what the property bought in by the trustee was worth, what it sold for, what was done with the proceeds, and in general to prove if possible that the bank had received, or ought to have received, if the business had been properly conducted by the trustee, satisfaction for the note, out of the debtor’s property.</p> <p>Appeals — Assignments of error — Evidence.</p> <p>An assignment of error to the admission or exclusion of testimony must quote the questions or offers, the objections thereto, and the ruling of the court thereon. The ruling of the court is necessarily upon the sufficiency of the objection, and an assignment of error which does not show the ground of an objection does not make clear what the ruling of the court was.</p>

<p>Appeal, No. 236, Jan. T., 1902, by-Maggie L. Charlton et al., from decree of O. C. Fulton Co., dismissing exceptions to auditor’s report in Estate of Sarah I. M’Kibbin, Deceased.</p> <p>Exceptions to report of John P. Seips, Esq., auditor.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Railroads — Carriers—Personal apparel — Act of April 11,1867, P. L. 69.</p> <p>The liability of a carrier for a passenger’s baggage, which has been entrusted to its care, is that of an insurer, the price paid for the ticket, or for transportation, embracing compensation for the carriage of the baggage, and is limited to such articles as are necessary for the comfort of the passenger, and for all in addition to this class, the carrier is not an insurer, but a bailee, and cannot be compelled to carry them unless an additional compensation is paid.</p> <p>Where a passenger carries with her own personal clothing, an embroidered table centerpiece of her own, and a dress belonging to her mother, and the baggage is lost, she cannot recover from the carrier for the loss of the centerpiece, or the dress belonging to her mother.</p>

<p>Statutes — Repeal—Implication—Repugnance.</p> <p>Repeals by implication are not favored. To warrant such construction there must be a manifest and total repugnance between the provisions of the old law and the new, sufficient to lead to the conclusion that the new was intended to abrogate the old. The more natural if not necessary inference in all such cases is that the legislature intended the new law to be auxiliary to and in aid of the purposes of the old.</p> <p>A later act treating a subject in general terms but not expressly contradicting the provisions of a former statute, is not to be construed as intended to affect the more particular and specific provisions of the earlier acts, unless such construction is alsolutely necessary.</p> <p>Statutes — Repeals—Mercantile appraisers — Appeals—Acts of April 11, 1862, P. L. 492, and May 2, 1899, P. L. 184.</p> <p>The act of April 11, 1862, providing that an appeal from an assessment of the board of mercantile appraisers must be taken within ten days, is not repealed by the act of May 2, 1899, which affirms the right of appeal, but is silent as to limitation of time.</p>

<p>Debtor and creditor — Payment of debt out of fund placed in the hands of another.</p> <p>Where there is a transfer of a fund to the promisor for the payment of a debt, he is liable on his verbal promise made to the owner of the fund ; or if property charged with the payment of the debt be transferred to him on his promise to the vendor to pay the debt, he is liable.</p> <p>Where a fund is by a debtor placed in-the hands of a third party to be applied to the payment of a debt to a creditor, such creditor, although not present when the arrangement was made, may bring suit against the holder of the fund.</p> <p>Statute of frauds — Promise to pay debt of another — Funds of debtor in hands of promisor.</p> <p>A promise to pay the debt of another is not within the statute of frauds, where the promisor has money or property of the debtor placed in his hands for the purpose of such payment, or where in any other way an agency or trust arises which involves a duty to pay.</p>

Appeal, No. 145, Oct. T., 1902, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1902, No. 4273, discharging rule to set aside judgment in case of Alvin M. Weaver v. Frank McDevitt. Amicable action in ejectment. Rule to open and set aside a judgment. From the record it appeared that on May 26, 1902, plaintiff caused an amicable action in ejectment to be entered against defendant for possession of the premises in rear of 222 Summer street.

<p>Appeal, No. 153, Oct. T., 1902, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1902, No. 489, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John D. Brainerd, Trustee of the Estate of John W. McFadden, trading as Mechanics Tool Company, v. Rodney Davis.</p> <p>Assumpsit for .goods sold and delivered.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material averments of the affidavit of defense are set forth in the opinion of the Superior Court.</p> <p>Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Case stated — Insufficient for defect in parties — Attachment execution— Mortgage — Insurance commissioner.</p> <p>Where a mortgage has been delivered by an insurance company to the insurance commissioner under the act of assembly of April 6, 1868, a judgment cannot be entered on a case stated between a judgment creditor of the insurance company and the receivers of the insurance company against the mortgagor for interest due, if the mortgagor is not a parly to the case stated.</p>

<p>Appeal, No. 77, Oct. T., 1902, by plaintiff, from judgment of C. P. Huntingdon Co., May T., 1900, No. 38, on verdict for defendant in case of Wilson Savits v. William Speck and Mary E. Speck.</p> <p>Ejectment for land in Coalmont borough.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant., Plaintiff appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

Appeal, No. 16, Oct. T., 1902, by Jacob H. Heidlebach, from order of C. P. Lancaster Co., Trust Book, No. 16, page 351, dismissing exceptions to auditor’s report in Assigned Estate of J. Milton Huber and Wife. Exceptions to report of Owen Brieker, Esq., auditor.

<p>Appeal, No. 130, Oct. T., 1902, bj' defendant, from judgment of C. P. Lancaster Co., Dec. T., 1901, No. 13, on verdict for plaintiff in case of Herbert Silley v. Arthur Burt.</p> <p>Appeal from justice of the peace.</p> <p>From the record it appeared that the plaintiff had recovered a judgment before a justice of the peace for wages. Defend.ant took an appeal, entered an appearance, filed a plea and went to trial on the merits. No objection seems to have been made at the trial to want of proper service.</p> <p>The constable’s return of service was as follows : “ Summons returned indorsed. November 9,1901, served on defendant by leaving a true copy of the original summons at his dwelling house with an adult member of his family.”</p> <p>Verdict and judgment for plaintiff for $124.54. Defendant appealed.</p> <p>Error assigned was as follows :</p> <p>“ The alderman, never having had jurisdiction of the defendant in this case by reason of a bad process, which was not cured by appeal, and the judgment before the alderman being by default, it was error in the court to entertain the action.”</p>

<p>Road law — Certiorari—Record—Evidence—Questions of fact.</p> <p>A certiorari in road proceedings does not bring up the evidence, and, therefore, the appellate court has no power to review the questions of fact passed upon by the court below on depositions submitted to the court.</p> <p>Road law — Vacation of road — Record—Discretion of court.</p> <p>Where a petition for the vacation of a road sets forth in general terms that the road “ has become useless, inconvenient and burdensome,” and the report of the viewers sets forth the fact that the road crosses a new line of a double track railroad, there is sufficient on the face of the record to move the discretion of the court to vacate the road, apart from the facts disclosed by the deposition.</p> <p>Road law — Vacation of road — Improvements—Appeals.</p> <p>On an appeal from an order vacating a road, it is too late to raise for the first time an objection that the report of the viewers and the draft attached thereto did not describe improvements.</p>

Appeal, No. 62, Oct. T., 1902, by Jacob H. Good, from order of C. P. Lancaster Co., Trust Book, No. 18, page 846, discharging rule for the appointment of an insolvent in the matter of the insolvency of Jacob H. Good. Rule for the appointment of a receiver of an insolvent. The opinion of the Superior Court states the case.

Appeal, No. 73, Oct. T., 1902, by defendants, from order of Q. S. Berks Co., March T., 1898, No. 265, removing a pauper, in case of Directors of the Poor and of the House of Employment of Berks County v. Directors of the Poor and of the House of Employment of Schuylkill County. Appeal from an order of removal of a pauper. Errors assigned were in the following form: 1.

<p>Appeal, No. 86, Oct. T., 1902, by defendant, from judgment of C. P. Lancaster Co., May T., 1896, No. 64, on verdict for plaintiff in case of A. W. Snader, Receiver of tbe Lancaster County Mutual Live Stock Insurance Company, v. Henry Bomberger.</p> <p>Assumpsit on a policy of live stock insurance. Before Livingston, P. J.</p> <p>At tbe trial it appeared that tbe suit was brought originally before a justice of tbe peace to recover assessments levied under an order of court by the receivér of the Lancaster County Mutual Live Stock Insurance Company. The justice gave judgment for tbe plaintiff, and tbe defendant appealed.</p> <p>When Allen A. Herr was on. tbe stand, the following offer was made:</p> <p>Defendant offers to show by Allen A. Herr, the witness, that he, defendant, paid said witness as agent of the said company on January 8,1894, tbe sum of $67.21, in settlement of any claims tbe company bad against him, and upon which settlement the policies were canceled. This, also, for the purpose of having said sum of $67.21 allowed as a set-off against the receiver’s assessment covering the same time. Objected by plaintiff. Disallowed. Defendant excepts. [8]</p> <p>Defendant proposes to prove by this witness, these policies were delivered to Mm, and that he mailed them to the company, to the secretary, the policies here in suit canceled. Objected to by plaintiff. Disallowed. Defendant excepts. [4]</p> <p>The defendant now offers to show by A. W. Snader, Esq. (plaintiff receiver), that the debts to pay which the assessments in suit were levied, were contracted by the said Lancaster County Mutual Live Stock Insurance Company before the defendant became a member of said company, and before any policy was issued to him; that at the time the suit in hand was. brought against defendant, in April, 1896, before W. B. Bushong, Esq., justice of the peace, and the time the appeal was entered in court, viz: May 14, 1896, no statement was among the records of the court, upon which the assessment was based, and the paper now on file as a statement upon which decree was based and made, was entered and filed October 29, 1900, long after this suit was brought. Objected to by plaintiff. Disallowed. Defendant excepts. [6]</p> <p>The defendant offers to prove by the witness, that the expenses for the year 1894 of the Lancaster County Mutual Live Stock Insurance Company, upon wMch assessment in suit is brought, occurred subsequent to the canceling of defendant’s policies, to wit: January 1, 1894, and that said expenses are excessive. Objected to by plaintiff. Disallowed, Defendant excepts. [7]</p> <p>“ Q. In making the assessment which you did against Mr. Bomberger, the defendant, did you allow him any credit for the assessment he paid January 8,1894, or did you charge any of the parties against whom you made assessments any similar assessment? ”</p> <p>The Court: Confine yourself to this case.</p> <p>“ Q. Did you give him credit in any assessment made for any assessment paid by him on January 8, 1894, on his policies ? ”</p> <p>Objected to by plaintiff, unless payment was made to Mr. Snader.</p> <p>The Court: If he paid since the assessment was made under the order of the court, he may say it. If it was after the appointment of the receiver, it cannot be received.</p> <p>The Court: What was the date they were decreed insolvent ?</p> <p>“ A. December 29, 1894. Q. What was the time your assessment covers ? A. From June 1, 1893, up to the time of their dissolution, December, 1894. Q. Was this paid after or before you were declared insolvent? A. I don’t know anything about this. This was made before I was appointed.”</p> <p>The Court: Then we disallow it.</p> <p>Defendant excepts. [8]</p> <p>Plaintiff offers in evidence six applications for insurance, signed by Plenry Bomberger, being Nos. 1361,1406,1562,1730, 1766 and 19Ó9. Copies of these have been filed witb the statements. These applications were signed by Henry Bomberger for insurance in this company, on which policies have been issued, and the assessments in this suit have been made.</p> <p>Objected to by defendant. Admitted. Defendant excepts.</p> <p>. Objected to by defendant, for the reason they have been returned and canceled by the company. [11]</p> <p>Defendant presented this point:</p> <p>3. The plaintiff’s statement does not have attached to it a copy of the order and decree of the court, upon which it is purported the receiver plaintiff was authorized to levy the assessments upon which it is founded, nor does it make particular reference to the record of the court, and does not show any losses that accrued during the existence of the defendant’s policies, and as there is no proof of time of losses, the verdict should be in favor of the defendant. Answer: Refused. [12]</p> <p>Verdict and judgment for plaintiff for $97.64. Defendant appealed.</p> <p>Errors assigned among others were (3, 4, 6, 7, 8, 11) rulings on evidence, quoting the bill of exceptions; (12) above instruction, quoting it.</p>

<p>Appeal, No. 8, Oct. T., 1902, by-defendant, from judgment of C. P. Delaware Co., June T., 1900, No. 117, on verdict for plaintiff in case of J. Miller Thomas v. Lydia Gibbons, I. Engle Cochran, Jr., and Job Wheaton.</p> <p>Trespass for wrongful distress.</p> <p>From the record it appeared that two separate actions were brought by the plaintiff against the defendant, in the first of which the plaintiff claimed damages for an excessive distress, both as to the amount claimed, and the quantum of the distress, and in the second of which he claimed damages for a wrongful seizure of goods on a groundless claim for rent.</p> <p>Plaintiff presented this point:</p> <p>This case being at common law and not under the statute does not change the principle involved. The common law declares that the landlord under such circumstances “shall be grievously amerced,” and the jury should find a substantial verdict for the plaintiff, which will not only compensate him for bis loss, but which will also punish the defendants for a wilful and unlawful trespass. Answer: That is the law, if you find that there was no rent in arrear or that the levy or distraint was excessive. [3]</p> <p>Defendant presented this point:</p> <p>If your verdict is for the plaintiff, you can only find such damages as the plaintiff actually sustained by reason of the distress upon the goods which it was necessary to take. Answer : I cannot say that they should be limited to the amount of the distress warrant. [4]</p> <p>Yerdict and judgment for the plaintiff in the first suit for $84.66, and in the second suit for $390. Defendant appealed.</p> <p>Errors assigned were (1) in not giving to the jury any measure of damages by which to arrive at a verdict; (3,4) above instructions, quoting them.</p>

<p>Appeal, No. 9, Oct. T. 1902, by defendant, from judgment of C. P. Delaware Co., June T., 1900, No. 118, on verdict for plaintiff in case of J. Miller Thomas v. Lydia Gibbons, I. Engle Cochran, Jr., and Job Wheaton.</p>

<p>Appeal, No. 28, April T., 1908, by defendant, from order of Q. S. Allegheny Co., June T., 1902, No. 332, directing husband to support his wife, in case of Commonwealth v. Davis A. Dean.</p> <p>Order for support.</p> <p>Information and order for support were as follows:</p> <p>Personally appeared before me, John Groetzinger, an aider-man in and for the city of Pittsburg, M. L. Dean, who being duly sworn doth depose and say that on April 16, 1901, in Leet township, Allegheny county, Pennsylvania, a certain D. A. Dean, lawful husband of this affiant, did then and there abuse the affiant in such a manner that she was compelled to leave him, and he has since October 18, 1901, failed, neglected and refused to contribute anything to her support.</p> <p>Complainant therefore prays and desires that a warrant may issue, and the aforesaid defendant, D. A. Dean, may be arrested and held to answer this charge of desertion and nonsupport, and further deponent saith not.</p> <p>And now, June 21,1902, defendant heard, ordered to pay the costs, pay his wife the sum of $100 per month, and to enter into bond in the sum of $1,500 with surety to comply.</p> <p>JError assigned was the order of the court.</p>

<p>Appeal, No. 26, Oct. T., 1902, by-defendant, from judgment of C. P. Northumberland Co., Dec. T., 1901, No. 178, on verdict for plaintiff, in case of Mt. Carmel Borough v. Williams C. Fisher.</p> <p>Appeal from justice of the peace. Before Savidge, P. J. '</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for 15.00. Defendant appealed.</p> <p>Error assigned was in directing verdict for plaintiff.</p>

Appeal, No. 116, Oct. T., 1902, by defendant, from order of C. P. Lebanon Có., June T., 1901, No. 248, discharging rule to open judgment in case of J. M. Zartman v. John H. Spangler and J. W. Spangler. Rule to open judgment. From the record it appeared that the judgment in question had been entered on a judgment note given in part payment of the purchase price of a horse. All the material facts disclosed by the testimony are stated in the opinion of the Superior Court.

Appeal, No. 98, Oct. T., 1902, by J. Haldeman Herr, from decree of O. C. Lancaster Co., dismissing exceptions to auditor’s report in estate of Elizabeth B. Hershey, deceased. Exception to report of John A. Coyle, Esq., auditor. The material portions of the will of decedent, other than that quoted in the opinion of the Superior Court, are as follows : “ Item First.

<p>Appeal, No. 87, Oct. T., 1902, by defendants, from judgment of C. P. Aug. T., 1896, No. 147, on verdict for plaintiff in cáse of A. W. Snader, Receiver of Lancaster County Mutual Live Stock Insurance Company, v. John E. Schum and Charles Holzworth, trading as Philip Schum Sons & Company.</p>