Volume 211 — Pennsylvania State Reports

<p>Appeal, No. 288, Jan. T., 1903, by plaintiffs, from order of C. P. No. 1, Phila. Co., Sept. T., 1902, No. 791, dismissing exceptions to report of referee in case of Robert W. Fitzell and Joseph Fitzell v. Philadelphia.</p> <p>Exceptions to report of referee, James W. King, Esq.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The referee found that the plaintiffs had suffered no damages and he therefore assessed no benefits.</p> <p>Errors assigned were in dismissing exceptions to report of referee.</p>

<p>Appeal, No. 88, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1901, No. 416, M. L. D. on verdict for defendants in case of George F. Craig, trustee for creditors of Charles Benton, Bankrupt, v. The Commercial Trust Company, owner or reputed owner; Charles P. Hart and John S. Hart, trading as Samuel Hart & Son, contractors.</p> <p>Scire facias sur mechanic’s lien.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court gave binding instructions for the defendants.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were in giving binding instructions for defendants.</p>

<p>Appeal, No. 94, Jan. T., 1904, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1903, No. 1637, refusing writ of restitution in case of John S. Hoffman v. Frederick J. Hafner et al.</p> <p>Rule to strike off judgment, set aside habere facias possessionem, and for restitution.</p> <p>Ralston, J., filed the following opinion:</p> <p>This was an action of ejectment. The writ issued on June 22, 1903, returnable first Monday of July, 1903. On September 3, 1903, judgment was entered against the defendant, Alphonse Hafner, for want of an answer. The act of March 21, 1806, sec. 12, 4 Sm. L. 326, provides that the defendant in ejectment shall enter his defense before the next term after that to which the process is returnable. Judgment by default cannot be entered at the first term: Vanderslice v. Garven, 14 S. & R. 263; Young v. Cooper, 6 W. N. C. 43. No statute has changed this rule, consequently the judgment for want of an answer was erroneously entered, and must be stricken off.</p> <p>The defendant also prays that the writ of habere facias possessionem be set aside, and that a writ of restitution be awarded. The writ has been executed by the sheriff, the plaintiff put in possession and the premises sold to a purchaser. Under these circumstances, restitution will not be awarded upon a mere technicality but to prevent injustice will be refused: Grant v. Rodgers, 6 Phila. 132. The force and effect of the writ may be determined after the trial: Grossman’s Appeal, 102 Pa. 137. The defendant’s affidavit sets out his defense upon the merits. The allegations are denied in the plaintiff’s answer.</p> <p>Upon consideration of all the circumstances the judgment is stricken off, but the prayer to set aside the habere facias possessionem and award restitution is refused.</p> <p>Mr or assigned was the order of the court.</p>

<p> Negligence—Master and servant—Proximate cause—Mixing mortar in street. </p> <p>In an action against an employer to recover damages for personal injuries sustained by the alleged negligence of a workman, it appeared that the defendant, a contractor, had obtained from a city permission to construct and operate a mortar bed on the side of a street. One of the defendant’s workmen in mixing the mortar came across a lump of unslacked lime which it was necessary to crush. He raised a hoe which he was using, and struck the lump with sufficient force to crush it; in so doing a small particle of lime flew fifteen feet and seriously injured the plaintiff’s eye. Plaintiff’s position at the time of the accident was not one of apparent danger. Held (1), that there was nothing to show negligence on the part of defendant’s workman; (2) that there was no negligence in placing the mortar bed where it stood, inasmuch as the defendant had the permission of the city, and the city had the power to grant the privilege.</p>

<p>Appeal, No. 121, Jan. T., 1904, by defendants, from judgment of C. P. No. 2, Phila. Co., June T., 1902, No. 996, on verdict for plaintiff in case of Daniel Marsh and Elmer Marsh by his father and next friend, Daniel Marsh v. Charles A. W. Giles, Bernard Shields and Thomas McLaughlin, trading as Giles, Shields & Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>The facts relating to the accident appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for the father for $1,000 and for the minor for $4,000.</p> <p>Error assigned was in refusing binding instructions for defendants.</p>

Appeal, No. 175, Jan. T., 1904, by plaintiff', from judgment of C. P. No. 3, Pbila. Co., Dec. T., 1901, No. 3698, on verdict for defendant in case of James H. Bratten v. Catawissa Railroad Company. Assumpsit for breach of contract. Before Finletter, P. J. The facts appear by the opinioj: of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

<p>Appeal, No. 96, Jan. T., 1904, by Alexander Harding, trustee, from decree of O. C. Phila. Co., April T., 1882, No. 255, dismissing exceptions to adjudication in Estate of James McAlpin, deceased.</p> <p>Exceptions to adjudication.</p> <p>Penrose, J., filed an adjudication which was in part as follows :</p> <p>The account has been filed for the purpose of having the question decided as to the continuance of the trust, which was created by tbe will of the decedent—the grandfather of the cestui que trust.</p> <p>The testator died, as represented in the petition annexed, in July, 1847. His will, with -codicils, proved July 26, 1847, shows that he had three children, Mary F. Sommerville, Margaret S. Harding and Alexander B. McAlpin, of whom the latter had already received a considerable share of the estate. He gave the residue of his estate, therefore, to trustees, viz: his son-in-law, John Harding, Alexander To war, his two daughters and his niece, Maria McAlpin, in trust to pay the income of one third to his daughter, Mary F. Sommerville, for life, etc., the income of another third to his daughter, Mrs. Harding, etc., and the income of the remaining third to his niece, Maria Mc-Alpin, for life—it being provided in the case of his niece that at her death “ (she leaving no issue) then her share of the estate to be equally divided into three parts, as follows: One part to Mary Fulton Sommerville or her heirs, one part to the children of Alexander B. McAlpin, and one part to Margaretta Shedden Harding or her heirs, share and share alike.” It was also provided that the income of the share thus given at the death of Maria McAlpin to the children of Alexander McAlpin, should be paid to their father, Alexander McAlpin, for life, and at his death, the principal to such children, in equal shares, etc.; and there was a further provision that if the estate should increase in value so as to “ make each of such heirs equal with the sum which my son, Alexander B. McAlpin, has already received, and there be a residue, such residue should be divided into four equal parts,” the income of one of which should be paid to his said son for life, and at his death “ the said share to go to the sole use and benefit of each of the surviving children of the said Alexander B. McAlpin, share and share alike,” —the other three shares of residue going to his daughters and niece “ as divided above.”</p> <p>The provisions of the will with regard to the share of Mrs. Sommerville, which are scattered through the will, are as follows : “ I further will and direct that my said trustees shall from time to time pay the semi-annual income, interest and profit of one third part of my said estate to my said daughter, Mary Fulton Sommerville, widow of Maxwell Sommerville, for her sole and separate use during her natural life.”. . . At the death of Maria MeAlpin (sbe leaving no children), “then her share of the estate to be divided into three parts, as follows: one part to Mary Fulton Sommerville or her heirs; one part to the children of Alexander B. MeAlpin ; and one part to Margaretta Shedden Harding or her heirs. I further will and direct with respect to the devises and legacies given to my daughters, Mary F. Sommerville and Margaretta S. Harding, that each of them, whether single or consort, shall have the power by will or appointment in nature of a last will and testament to devise and bequeath to whomsoever they may please as fully and amply as they may desire all the estate devised and bequeathed to them in this my will. . . .</p> <p>“ It is further my will and meaning that the money left by me to my daughters Mary and Margaretta shall not at any time be liable for the debts of their respective husbands—I hereby authorize and direct the trustees .... to pay the semi-annual income and profits devised to my daughter Mary F. Sommerville, into her own hands for her sole use and benefit, and her receipt for the same shall be good and available in law, or in their discretion at her request to appropriate said income to her maintenance and support so that the same shall not be in any wise liable for any debt or debts of her late husband, Maxwell Sommerville, deceased, which may remain unpaid—I further will and direct that the interest and income given and devised to my said daughter, Mary F. Sommerville shall be paid to herself alone, as from time to time they shall become due, and that they shall not in any manner be liable for her present or future debts, or to be transferred or disposed of by her, and in case all her children shall depart this life without issue, the part or share in this my last will and testament devised to the said children of my daughter Mary shall revert to and be equally divided among my surviving heirs.”</p> <p>It was stated by counsel that the amount advanced by the testator to his son Alexander B. MeAlpin, in his lifetime, was 130,081.60.</p> <p>Mrs. Sommerville died, as further represented, in 1861, intestate, leaving two children, Maxwell Sommerville and James M. Sommerville.</p> <p>Mrs. Harding has also died, having exercised her power of appointment in favor of her children. Maria McAlpin died in 1869, intestate and without issue; and Alexander B. McAlpin, in 1858, intestate, leaving a daughter, Meta R. Phillips, who has since died leaving three children, Helen Weber, Mc-Alpin Phillips, and William Phillips.</p> <p>All of the original trustees are' dead, and the present accountant was appointed their successor in 1868.</p> <p>Apart from'the implication of a gift to the children of Mrs. Sommerville from the limitation over in the event of the death of such children without issue, the testator has expressly declared in the last clause relating to her that he has “ devised ” the shares to them.</p> <p>Taking the will in its entirety, we have, therefore, an equitable estate in the daughter of the testator, for life, followed by a vested gift, unlimited as to duration, to her children, subject to be divested by the exercise of her power of appointment (Perry on Trusts, sec. 250), and subject also to be divested by the death of such children “without issue,” in the sense that such death is presumed to have been intended by him.</p> <p>The daughter having died without exercising her power of appointment, the case falls within the familiar principle, illustrated by Mickley’s Appeal, 92 Pa. 514; Morrison v. Truby, 145 Pa. 540; Coles v. Ayres, 156 Pa. 197; and very many other decisions, that “ if a bequest be made to a person absolute in the first instance, and it is provided that in the event of death or death without issue, another legatee or legatees shall be substituted to the share or legacy so given, it shall be construed to mean death or death without issue before the testator,” if the gift is immediate, or death or death without issue during the continuance of the prior estate where the limitation is by way of remainder: Edwards v. Edwards, 15 Beav. 357; 2 Williams on Executors, 1365, 1366. The doctrine of Mickley’s Appeal is not in accordance with the English decisions as to immediate gifts, if the limitation over is “ in case of death without issue ”—which is there understood as meaning death without issue whenever it may happen : but where these words are annexed to a gift in remainder, even the English cases hold that they are referable to a death without issue before the time of distribution, viz.: before the termination of the prior estate: Edwards v. Edwards, 15 Beav. 357. The question was considered by the court in banc, in the recent case of Sharpless’s Estate, 209 Pa. 409.</p> <p>The will makes no attempt to continue the trust after the interest of the children of the daughter have vested in possession at her death; and even if it did, as the trust would have no recognized legal object—the estates having vested absolutely, the legatees would be entitled to the possession- of the property discharged of the trust: Gray on Perpetuities', sec. 120.</p> <p>James M. Sommerville and Maxwell Sommerville both survived their mother, and their estates then became absolute—the share of the former passing under his will (as represented to the court), at his death in 1899, to his brother, Maxwell Sommerville. An account, it was stated, was filed by his ex-ecutoi’, which was duly adjudicated and distribution awarded to his legatees.</p> <p>JErrors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 169, Jan. T., 1904, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1903, No. 525, on verdict for plaintiff in case of Mary L. Walker v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Yerdict for plaintiff for $7,500 upon which judgment was entered for $5,000, all above that amount having been remitted.</p> <p>Krror assigned was in refusing binding instructions for defendant.</p>

<p> Equity—Jurisdiction—Prior adjudication of law—Injunction. </p> <p>A court of equity will restrain a threatened interference with the exercise of a right without a prior adjudication at law where the right is clear, and there is no serious dispute as to any of the material facts. It is not enough for the defendant to deny plaintiff’s right; his denial must be based upon facts which show a substantial dispute.</p> <p> Easement—Express grant—Enjoyment of easement. </p> <p>In the case of an easement by express grant, the rights and liabilities of the parties are determined by the terms of the agreement, and each has a right to insist that the terms of the agreement, be complied with, and that, so long as the easement is enjoyed, it shall remain substantially as it was at the time the right accrued, regardless of whether benefit or damages will result from a proposed change.</p> <p>A bill in equity to enjoin a change in the structure and location of an outbuilding in which plaintiff and defendants have a common easement, will be sustained where it appears that there is no necessity for the change, that the plaintiff objects to it, and that it would involve a most material and undesirable alteration in the plaintiff’s easement. In such a case the court will not only enjoin further new construction, but will decree the restoration of the outbuilding where it originally stood.</p>

<p> Negligence—Proximate and remote cause—Unforeseen consequences. </p> <p>When an act is clearly negligent, one may 'be held liable for its unforeseen consequences, however remote, which follow in the natural sequence of events; but an act cannot be held to be negligent when there is no reasonable ground for supposing that it would cause injury to anyone.</p> <p> Negligence—Sudden and unexpected duty—Notice. </p> <p>Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to comprehend the situation and act according to the exigency.</p> <p> Negligence—Street railways—Use of electricity. </p> <p>The use of electricity as a motive power by street railway companies has increased the danger to all persons using city streets, and of this danger they must take notice. Rapidity of transit is no longer a mere convenience to the traveler, it has become a matter of vital interest to the general business of the community.</p> <p> Negligence—Street railways—Speed of car—Sudden emergency—Bicycle. </p> <p>In an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff was riding in the daytime a bicycle on a street on which the defendant operated an electric railway. Behind him a man was riding a horse at a slow trot and leading another horse, for the purpose of accustoming them to the electric cars. Fearing injury by the horses the plaintiff turned aside and allowed them to pass by him, and then followed twenty or twenty-five feet béhind them. When about the middle of the block the led horse showed some evidence of fright at an electric car which approached from the opposite direction, and as the car was about to pass or in the act of passing it turned towards the curb and blocked the passage between the curb and the car tracks. The plaintiff, to avoid running into the horse, rode towards the track. When close to it he saw an open summer car approaching and within twenty feet of him. He then attempted to turn and ride between the car and the horses. He did not get far enough from the track, and the front wheel of his bicycle was struck by the running board of the car. The plaintiff did not see the car until he was within six inches or a foot of the track and approaching it. Until this time the motorman had no opportunity to see him because he was behind the horses. When the horse shied the motorman turned off the power and as he passed the horses be had his hand on the brake and was watching them to see whether they were under control. The only matter of dispute at the trial was as to the rate of speed of the car. In regard to this there was a difference of opinion, but there was testimony tending to show that the car was running fifteen or twenty miles an hour. Held, that there was not sufficient negligence on the part of the defendants to submit to the jury.</p>

<p> Appeals—Failure to print testimony—Assignments of error—Receiver. </p> <p>Where a receiver has taken an appeal from an adverse decree, and, owing to lack of funds, has not printed the testimony, and it appears that the assignments of error present questions that cannot be determined without a review of the testimony, the decree of the lower court will be affirmed.</p> <p> Equity—Account—Corporations—Receiver—Corporation officers. </p> <p>The receiver of a corporation who asks for an accounting from its directors and the payment by them of an amount alleged to be due to the corporation, less credits to which they are entitled, has no standing to object because in stating the account the directors are allowed credit for money advanced by them to the corporation and for salaries due for services performed under an agreement with the corporation.</p> <p> Corporations—Officers—Salaries—Excessive salaries. </p> <p>A finding that the amount fixed for the salary of an officer of a corporation is excessive, does not deprive him of the right to an allowance of an amount found-to be reasonable.</p>

<p>Appeal, No. 200, Jan. T., 1904, by Clara W. Raleigh, from decree of O. C. Phila. Co., April T., 1902, No. 362, dismissing petition for partition in estate of Harriet M. Severns, deceased.</p> <p>Petition for partition. Before Penrose, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing petition for partition.</p>

<p> Will—Power of sale—Discretionary power—Failure to act. </p> <p>Testatrix died seized of a dwelling house, and leaving to survive her three daughters, one married and two unmarried. She appointed one of the unmarried daughters her executrix and authorized and empowered her to sell the residence “whenever and upon such terms as she may deem best, and to grant and convey the same to the purchaser or purchasers thereof free from all liability for or on account of the application of the purchase money. The proceeds of the sale of the said premises I direct my said executrix to divide among my said three daughters share and share alike.” She further directed that the two unmarried daughters should have the sole right to occupy the residence “free of rent, taxes and water rent until the same shall be sold.” The executrix made no effort or attempt to sell the property for three years after the death of the testatrix, and when she was cited to show cause why she should not sell, answered that the time of the sale was discretionary in herself and that the condition of the real estate market did not warrant a sale. The other unmarried sister joined in the answer and in the opinion that the time was not suitable for offering the property for sale. The answer did not disclose that the sisters had any knowledge of the value of real estate in the neighborhood, or that they had consulted any parties who were informed on the subject. Held, that the answer was insufficient, and that the court would direct the executrix to sell the property in accordance with the provisions of the will.</p>

<p>Appeal, No. 192, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 333, making absolute rule to quash writ of ejectment in ease of Meta N. Bruner v. Annie B. Finley et. al.</p> <p>Ejectment for land in the city of Philadelphia. Before Biddle, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule to quash writ of ejectment.</p>

Appeal, No. 165, Jan. T., 1904, by plaintiff, from order of C. P. No. 3, Pbila. Co., Sept. T., 1899, No. 130, sustaining exceptions to report of referee in case of Michael O’Rourke v. City of Philadelphia. Assumpsit for work done on municipal improvements. Exceptions to report of Joseph W. Gross, Esq., referee. The opinion of the Supreme Court states the case. Errors assigned were in sustaining exceptions to report of referee.

<p> Municipal contracts•—Contracts—Retained percentage—Discretion of Director of Public Works—Mandamus. </p> <p>The ten per cent deposit by a contractor with the city of Philadelphia, under the ordinance of December 24, 1881, is not merely to furnish a quick and convenient special remedy, but is an additional and cumulative security for the performance of the whole contract; and this being so the question of satisfactory performance is one involving the discretion of the director of public works, and therefore mandamus will not lie to secure a return of it.</p>

Appeal, No. 87, Jan. T., 1904, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1902, No. 917, refusing to take off nonsuit in case of Thomas Gaffney v. Union Traction Company. Trespass to recover damages for personal injuries. Before McMichael, J. At the trial it appeared that on February 12,1902, plaintiff boarded a car on Chelton avenue in the city of Philadelphia, and rode on the back platform, although there was room inside the car.

<p> Evidence—Cross-examination—Scope of 'cross-examination. </p> <p>Cross-examination must be confined to matters stated in the examination in chief and independent matters of defense must not be introduced by it. Where matters of defense have been brought out by an improper cross-examination they should be considered as having been introduced by the defendant, and they cannot be considered by the court as ground for a compulsory nonsuit; but an incident of a transaction proved and circumstances connected with it, which qualify or destroy the effect of the testimony in chief may be brought out in cross-examination.</p> <p>A party is entitled to bring out any circumstances relating to a fact which an adverse witness is called to prove.</p> <p> Negligence—Master and servant—Automobiles—Evidence—Cross-examination. </p> <p>In an action against the owner of an automobile to recover damages for personal injuries, where the chauffeur of the defendant is called by the plaintiff to show that he was in the employ of the defendant, and to identify the car, it is competent for the defendant on cross-examination to develop by the witness the fact that at the time of the accident he was using the machine in the prosecution of his own business and not in the business of his employer, and that in so doing he was acting contrary to the orders of his employer.</p>

Appeal, No. 134, Jan. T., 1904, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 1477, dismissing bill in equity in case of Charles Mc-Brerty v. Mary B. Hyde et al. and the City of Philadelphia. Bill in equity to compel a reconveyance of land. Before BrÉG-Y, J. The opinion of the Supreme Court states the case. Error assigned was the decree of the court.

<p>Appeal, No. 154, Jan. T., 1904, by defendants, from judgment of C. P. No. 2, Pbila. Co., Sept. T., 1900, No. 553, on verdict for plaintiff in case of Ellen P. Miller v. Merritt & Co.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Sulzberger, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $8,000. Defendants appealed.</p> <p>Error assigned, among others, was in refusing binding instructions.</p>

<p>Appeal, No. 254, Jan. T., 1904, by plaintiffs, from order of C. P. No. 3, Phila. Co., March T., 1902, No. 4212, refusing to take off nonsuit in ease of Albert No-den and Howard E. Noden, by Albert Noden his next friend v. Yerlenden Brothers, Incorporated.</p> <p>Trespass to recover damages for personal injuries. Before McMichael, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 336, Jan. T., 1904, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 1000, dismissing bill in equity in case of George Fox v. James M. Seabury, A. S. L. Shields, and the Fidelity Trust Company et al., Trustees of Andrew M. Moore, deceased. Bill in equity for an injunction to secure the payment to plaintiff of one half of a judgment. The opinion of the Supreme Court states the case.

<p> Negligence—Master and servant—Rigger—Breaking of rope. </p> <p>In an action by a rigger against his employer to recover damages for personal injuries sustained by the breaking of a rope, where the negligence charged was in furnishing tools which were not safe and proper for use in combination, the case is for the jury, where the evidence shows that the rope in question though spliced and the block through which it ran, were apparently both in good condition and safe tools for appropriate work, but not adapted to be used together, the rope being too large to pass safely through the block; that when the splice reached the block it jammed, and under the strain from the engine, the block split and the rope instead of running smoothly in the groove of the sheave slipped off and was cut in two by the sharp edge of the broken block.</p> <p>In an accident case it is not error to refuse to affirm a point of defendant setting forth the negligence of a fellow servant as the cause of the accident, without any reference in the point to the fact disclosed by the evidence, of a concurrent act of negligence on the part of one of the defendants.</p> <p>Not decided whether the concurring negligence of a fellow servant with the negligence of the master will, or will not, relieve the master of liability.</p>

Appeal, No. 159, Jan. T., 1904, by plaintiff, from order of C. P. Montgomery Co., June T., 1903, No. 11, refusing to take off nonsuit in case of Annie H. Sturzebecker v. The Inland Traction Company and The Philadelphia and Lehigh Valley Traction Company. Trespass to recover damages for injuries to land. The facts are stated in the opinion of the Supreme Court. JError assigned was refusal to take off nonsuit.

<p> Negligence—Railroads—Sparks—Fires—Evidence. </p> <p>In the absence of direct evidence of the origin of a fire that is imputed to the negligence of a railroad company in not providing spark arresters, evidence of the unusual throwing of sparks by the company’s engines and of other fires started by them at about the time of the fire in question is admissible. This rule obtains also where there is uncertainty as to the engine that caused the fire and it cannot be shown that the fire proceeded from a particular engine. This class of testimony is admissible because of the failure of direct proof and of the necessity of resorting to'the proof of 'circumstances as the best evidence and the only evidence of which the case admits.</p> <p>Where, however, the fire is shown to have been caused only by sparks from a particular engine that passed near the time when it started, the evidence must be confined to the condition of that engine and evidence of negligence in the general management and operation of the company’s engines is not admissible.</p> <p>When it is alleged that a particular engine caused the injury complained of, the inquiry is limited to the condition of that engine at the time, and testimony tending to show defects in other engines is irrelevant.</p>

<p>Appeal, No. 369, Jan. T., 1904, by plaintiff, from order of C. P. Lebanon Co., Sept. T., 1898, No. 5, refusing to take off nonsuit in case of Frank B. Long v. Lebanon National Bank.</p> <p>Assumpsit to recover damages for the alleged wrongful sale of plaintiff’s property. Before Ehrgood, P. J.</p> <p>The court entered a compulsory nonsuit whic'h it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Appeal, No. 27, Oct. T., 1905, by defendants, from decree of C. P. Armstrong Co., Dec. T., 1904, No. 148, on bill in equity in case of Burgess and Town Council of Kittanning Borough v. Ellen T. Thompson, Safe Deposit & Title Guaranty Company and Burt Milsora.</p> <p>Bill in equity for an injunction. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 7, May T., 1904, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T.,1903, No. 251, on verdict for plaintiff in case of Banks Patterson v. Harrisburg Trust Company, receiver of the Dauphin Bridge and Construction Company.</p> <p>Trespass to recover damages for personal injuries. Before Kunkel, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for §1,701.60. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 163, Jan. T., 1904, by defendant, from judgment of C. P. Schuylkill Co., July T., 1902, No. 235, on verdict for plaintiff in case of Charles E. B reckons, Trustee of William D. Chimelewsky v. William Snyder.</p> <p>Assumpsit by a trustee in bankruptcy to recover moneys of bankrupt.</p> <p>At the trial defendant presented the following points:</p> <p>1. That under the constitution of the United States, the judicial power of the federal courts extends to all cases in law and equity arising under the constitution and the laws of the United States, etc., and that the plaintiff’s alleged cause of action in this case arising under the provisions of the act of congress passed in 1898, known as the national bankruptcy acts, this case is one arising under the laws of the United States, and consequently within the jurisdiction of the federal courts, and such jurisdiction is necessarily exclusive, and the state courts have no jurisdiction over cases of this character, and the provisions in the act of 1898 purporting to confer jurisdiction in such cases on the state courts is unconstitutional and inoperative. Therefore this court has no jurisdiction in the premises, and the cause must be dismissed for want of jurisdiction. Answer.» Befused. [1]</p> <p>2. That as shown in the plaintiff’s statement of his claim and cause of action, as filed 'in this cause, the said plaintiff was elected trustee in bankruptcy of tbe estate of said Chimelewsky on June 2, 1902. Under section 50 of said act of congress it was the duty of said trustee, before entering upon the performance of his official duties, and within ten days after his official appointment, or within such further time, not to exceed five days, as the court may permit, qualify by entering into bond to the United States, with such sureties as shall be approved by the court, conditioned for the faithful performance of his duties. As the record shows, the bond so required to be executed by the trustee within ten days after his election was not executed by him, nor approved, even by the referee in bankruptcy, within ten days after his appointment, nor was there any order of court extending the time, as provided for in said clause, and therefore the trustee failed to qualify as required by the act of congress, and under clause K, of section 50, he shall be deemed to have declined his appointment, and such failure shall create a vacancy in his office.</p> <p>Therefore, the plaintiff was not the legally constituted trustee of said estate on June 21,1902, when he brought the present action, and such action was, therefore, unauthorized and cannot be sustained by the plaintiff, and hence the verdict of the jury must be for tbe defendant. Answer : Refused. [2]</p> <p>3. The approval of such bond by the referee on June 14,1902, was without authority, the time for the presentation and approval of such bond having passed, and, further, also because the approval by the referee is not such approval by the court, as is required by the act of congress, and, therefore, plaintiff cannot sustain this action. Answer: Refused. [3]</p> <p>4. Clause H of section 50 of the act of congress of 1898 requires the bond of the trustee to be filed of record in the office of the clerk of the court, and it is incumbent upon the trustee to file his bond as thus required before entering upon the duties of his office, and before he can institute any suit or action in behalf of the estate against anybody. As the record shows the bond of the plaintiff was not filed in the office of the clerk of the court until September 23, 1903, being over fifteen months after the present suit was brought by this plaintiff, the plaintiff was not legally qualified and authorized on June 21, 1902, when he brought this action, to institute any suit or action in behalf of said estate, and cannot recover in the present action, and the verdict of the jury must be for the defendant. Answer : Refused. [4]</p> <p>5. That it is incumbent upon the plaintiff in such case as' the present to aver’the insolvency of the bankrupt at the time of the transaction in question, February 17, 1902, and also that at that time there were other creditors of the alleged bankrupt for whose use and benefit the present action is being prosecuted, and the plaintiff having failed to do so at the trial of this cause, he cannot recover and the verdict of the jury must be for the defendant. Answer : The certificate of adjudication of bankruptcy, made by a court of competent jurisdiction, discloses that William Chimelewsky was adjudged a bankrupt on April 29, 1902, upon the petition of Rothschild & Baum, Schwartz, Strouse & Company and L. Strouse & Company, from which it is evident that such petitioners were creditors of William Chimelewsky at the time of the referred to adjudication ; and we do not think that the trustee is called upon to show that these creditors were paid before proceding with this case. We, therefore, refuse this request. [5]</p> <p>6. That the first count in plaintiff’s statement charges that Chimelewsky, with intent to cheat and defraud his creditors, gave to the defendant the sum of $5,000 without consideration, and the defendant accepted the same for the purpose of cheating and defrauding the creditors of said Chimelewsky, for there is no evidence in this case that the. said Chimelewsky had any other creditors at the time in question, or that anybody was injured or prejudiced by the transactions here complained of, and, therefore, the plaintiff has failed to make out his case, and the verdict of the jury must be for the defendant. Answer: The sixth request is refused and, therefore, not read. [6]</p> <p>9. That under all the evidence in this case, the plaintiff has failed to sustain his claim as to the first count in the statement or declaration filed by him in this case, and' as to this count the verdict of the jury must be for the defendant. Answer: The ninth and fourteenth requests are refused and, therefore, not read. [7]</p> <p>14. Tliat the said Chimelewsky himself could not recover at law from this defendant the money paid him, even if such payment had been made for an improper purpose, and the rights of the present plaintiff are no greater than those of Chimelewsky himself would be, unless it be shown that'Chimelewsky had creditors who were injured or prejudiced by the alleged improper conduct of the parties, and that he is prosecuting this case in behalf of such injured persons, and there being no such evidence in this case, the plaintiff cannot recover. Answer ; The ninth and fourteenth requests are refused and, therefore, not read. [9]</p> <p>Verdict and judgment for plaintiff for 15,579.53. Defendant appealed.</p> <p>Errors assigned were (1-9) above instructions, quoting them; (13, 14, 15, 16) refusal to admit notes of the testimony of the bankrupt taken at a preliminary proceeding before the referee.</p>

<p>Appeal, No. 102, Jan. T., 1904, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1898, No. 108, M. L. D., on verdict for plaintiff in case of City of Philadelphia to use of John M. Mack v. James E. Hood, Registered Owner.</p> <p>Scire facias sur municipal lien.</p> <p>From the record it appeared that the defendant filed a special plea which was as follows :</p> <p>And for a further plea the said defendant says that the contract for the paving, for which this lien is filed, was not awarded according to law, the proposal therefor not having been advertised as required by the ordinance and by the acts of assembly.</p> <p>The only authority for this paving was an ordinance of councils of the city of Philadelphia, approved July 8, 1891 (ordinances of 1891, page 268), which provides as follows :</p> <p>' “ That the director of the department of public works be, and is hereby, authorized and directed to enter into a contract with a competent paver or pavers for the paving of East Mount Pleasant avenue, from Germantown avenue to the Reading Railroad, with vitrified brick, without a sewer being first constructed, cost to the city not to exceed $2,450. . . . The conditions of which shall be that the contractor or contractors shall collect the cost of said paving from the owners of property respectively fronting on said streets, and shall also enter into an obligation to the city to keep said streets in good repair for three years after the paving is finished ; provided, said streets shall be first dedicated or properly opened, and that the director of the department of public works first advertise for proposals for paving said streets, and award the contract to the lowest bidder; and that the owners of property fronting on said streets shall not be charged more than the contract price.”</p> <p>The work authorized by this ordinance was advertised on February 11, 1892, and bids were received on February 24, 1892, including the bid of John M. Mack, the use plaintiff in this case, and no subsequent advertising for said work was made and no further proposals for the same were thereafter received by the said city, nor was any contract then made with the use plaintiff.</p> <p>More than five years afterwards, to wit: on June 23, 1897, without any further advertising for proposals and without the receipt of any others, a contract for this paving was entered into by the director of public works with said John M. Mack, who subsequently proceeded to pave the said street.</p> <p>The proposal or bid of the said John M. Mack for this work is attached to the contract and is marked “ 2-24-92.”</p> <p>By reason of which facts it appears that no advertisement was made in respect to bids for this work, and no proposals for the same were received for a period of more than five years before the said contract was made, and the property owners were thereby deprived of the benefit of more advantageous bidders who might subsequently have been willing to bid upon the same.</p> <p>And this the defendant is ready to verify.</p> <p>The plaintiffs demurred as follows :</p> <p>And the said plaintiffs, according to the form of the statute in such, case made and provided, state and say to the court the following causes of demurrer to the said plea:</p> <p>1. That the facts in the said plea contained, if proved as therein alleged, are no defense to the case of the said plaintiff.</p> <p>2. Because the said plea is in every respect uncertain, informal and insufficient.</p> <p>The court sustained the demurrer. The case went on to trial and resulted in a verdict of $1,549.98 upon which judgment was entered.</p> <p>Error assigned was in sustaining demurrer to plea.</p>

<p> Evidence—Charge—Assignments of error. </p> <p>Where evidence has been properly admitted and its admission is assigned as error, the appellate court cannot consider or correct an error alleged in a portion of the charge relating to such evidence, where that portion of the charge has not been assigned as error. The appellate court can correct only-such errors as are assigned.</p> <p> Negligence—Evidence—Damages. </p> <p>In an action to recover damages for personal injuries, the plaintiff, a bartender, may testify as to what his occupation had been, as to how much he had made per week, and that by reason of the accident he could no longer follow his occupation.</p> <p> Negligence—Railroads—Crossings—Signal by gateman—Evidence—Contributory negligence. </p> <p>In an action against a railroad company to recover damages for personal injuries, it appeared that the plaintiff at the time of the accident was standing on the rear step of an ice wagon. The wagon when near a railroad crossing was stopped by a trolley car in front of it, which had been stopped by the lowering of the gates. Another man was standing on the step of the wagon beside plaintiff, to the right, with his left arm around plaintiff’s body, holding on to a strap with his left hand. The flagman was on the track, and after a north-bound train had passed, and the gates been raised, he signaled to the motorman of the traction car to come on. The car moved toward and across the tracks, followed by the ice wagon. When the wagon approached the gates the driver either stopped or was about to stop. Plaintiff testified that he himself looked and listened, although his view to the south was obstructed by standing cars. Apprehensive that there might be danger, he called to the driver, “you had better stop and take another look.” The driver then asked the gateman, “How is it?” and the reply of the gateman, as he beokoned them on, was “All right, come on.” The wagon then proceeded and was struck by a train from the south, and the plaintiff was injured. The man who was standing on the step beside the plaintiff, having a better view, saw the approaching train, and jumped and escaped. Held, that the question of plaintiff’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 132, Jan. T., 1904, by defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 567, discharging rule to open judgment in case of Marie Mellerio to use of Marguerite Lafferty to use of Samuel Chubb v. John S. Freeman.</p> <p>Rule to open judgment.</p> <p>The facts appear by the opinion of the Supreme Court, and by the report of Freeman v. Lafferty, 207 Pa. 32.</p> <p>JError assigned was order discharging rule to open judgment.</p>

Appeal, No. 241, Jan. T., 1903, by plaintiff, from judgment of G. P. No. 2, Phila. Co., June T., 1898, No. 748, on verdict for defendant in case of The Land Title and Trust Company v. Northwestern National Bank. Assumpsit to recover the amount of a check. Before Wilt-bank, J. The facts appear by the previous report of the case in 196 Pa. 230, and by the opinion of the Supreme Court. The court gave binding instructions for defendant. Plaintiff appealed.

<p> Appeals—Jurisdictional amount—Superior Court—Supreme Court. </p> <p>Where an appeal is taken to the Supreme Court from a decree of the orphans’ court disallowing two separate and distinct claims against an estate, one over $1,500, and one under $1,500, the Supreme Court will remit to the Superior Court the appeal from the disallowance of the smaller claim, but will review the larger claim.</p> <p> Decedents’ estates—Claim far stock—Findings of fact—Evidence. </p> <p>Where a trustee in bankruptcy claims from the estate of a decedent a certain number of shares of stock of a corporation, evidenced by a duebill given by the decedent to the bankrupt four years before the former’s death, a finding by the orphans’ court that the stock had been sold by the bankrupt to the decedent, and that it really belonged to the legatee to whom it had been specifically bequeathed, will not be reversed, where it appears that the stock was in possession of decedent at the time of his death, that' for four years the bankrupt had never claimed it or asserted any interest in the corporation, and the declarations of both decedent and the bankrupt showed that the stock had been sold to the decedent by the bankrupt.</p>

<p>Appeal, No. 184, Jan. T., 1904, by Philadelphia Trust Safe Deposit and Insurance Company, from decree of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 4147, dismissing petition for removal of trustee in Assigned Estate of Charles Henry Hart.</p> <p>Petition for removal of trustee.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing the petition.</p>

<p> Equity—Jurisdiction—Accounting—Discovery—Principal and agent. </p> <p>Equity will take jurisdiction on the ground of account notwithstanding that the accounting involved is on one side only if it is so complicated as seriously to embarrass the remedy at law and in cases where discovery is needed and is sought. But it will not take jurisdiction where there is no relation of trust and the accounting is not complicated and is merely a basis for ascertaining damages.</p> <p>In a bill seeking an account and discovery, the discovery is prima facie merely incidental to the account, and if a right to an account is not disclosed the bill will be held bad on demurrer.</p> <p>The plaintiff in a bill in equity averred that he had expert knowledge of the shoe business, and a control of trade acquired by his experience as a traveling salesman; that he was employed by the defendants as a general sales agent, and was discharged without sufficient reason before the end of the period of his employment; that he was to receive as compensation a fixed commission on sales made by the defendants, with some exceptions, whether made by him or not; that the defendants, in violation of their agreement, failed to render correct monthly statements of sales, and to pay him the commission due; and that they improperly claimed to recoup against the balance due him certain commission that had been allowed him on accepted orders. The bill prayed for an account and discovery. Held, that the bill was properly dismissed on demurrer on the ground that the plaintiff had an adequate remedy at law.</p>

Appeal, No. 334, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 321, refusing to take off nonsuit in case of Sarah Cohen v. Philadelphia & Reading Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Before Biddle, P. J. From the record it appeared that the suit was begun by Jonas Cohen, and that upon his death his administratrix was substituted as party plaintiff.

<p>Infants—Capias ad respondendum—Arrest—Bail—Act of July 9, 1901, P. L. 614.</p> <p>Where a writ of capias ad respondendum against a minor for assault and battery is regularly issued by a court of competent jurisdiction, the writ cannot be quashed because the plaintiff instead of having the writ served as a summons, fixes an amount of bail, and notifies the father of the infant of his action, and the father under fear of his child’s arrest enters the bail demanded.</p> <p>An original writ can be quashed only where it is irregular, defective or improper.</p> <p> Actions—Process Service. </p> <p>Unless the statutory mode of service of a writ is observed it is not a service and the defendant is not compelled to obey its command.</p>

Appeal, No. 196, Jan. T., 1904, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1903, M. L. D. No. 3564, making absolute rule to strike off mechanic’s lien in case of George H. Thirst v. Samuel W. Evans, Owner, and George W. Pierson, Contractor. Rule to strike off mechanic’s lien. The facts appear by the opinion of the Supreme Court. Error assigned was the refusal of permission to amend the mechanic’s lien.

Appeal, No. 236, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1908, No. 916, refusing to take off nonsuit in case of William Laven v. Samuel E. Moore. Trespass to recover damages for personal injuries.

<p>Will—Testamentary gift—Advancement—Settlement—Intestacy—Trust and trustees—Act of April 8, 1833, P. L. 315.</p> <p>A testamentary trustee was authorized in his sole and absolute discretion, to give a portion, or all, of one third of the principal of the estate to the surviving husband of the testatrix, or either of her two sons while the three lived. Upon the death of one, the authority was to give, in the exercise of such discretion, one half of the principal to either of the two surviving, and upon the death of one of them, there was authority to pay the survivor the whole of what remained. The trustee gave to one of the sons a portion of the principal. The father survived the two sons, and upon his death there was an intestacy as to a portion of the estate of testatrix. Held, that the only child of the son to whom a portion of the principal had been given by the trustee was entitled to a full share of the portion of the estate of her grandmother passing under the intestate laws, without any deduction for the sums paid to her father.</p> <p>In such a case the sums paid to the father were neither advancements nor settlements within the meaning of the Act of April 8, 1833, P. L. 315, but were testamentary gifts from the testatrix.</p>

<p> Negligence—Master and servant—Safe place to work—Contributory negligence—Province of court and jury. </p> <p>The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice principal whose neglect is the neglect of the employer.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, the case is for the jury where the evidence shows that the plaintiff was at work on a dangerous pile of stones, that he had protested to defendant’s superintendent of the dangerous condition of the place where he was working and refused to work, that the superintendent had reprimanded him for his refusal to work, and had ordered him to go on, promising him to remove the danger.</p>

<p>Insurance—IAfe insurance—Application—Evidence—Custom—Act of May 11, 1881, P. L. 20.</p> <p>It is the duty of an insurance company to attach a copy of the application and by-laws to a policy of insurance, and, unless it is attached, they are not a part of the contract of insurance, and are not evidence on the part of the insurance company in an action by the beneficiary on the policy; nor in an action by the company to enforce against the insured the payment of assessments levied in pursuance of their provisions.</p> <p>An insurance company cannot show that the application and by-laws had been attached to a particular policy at the time it was issued by proving the method and custom of the company in attaching a copy of the applies tion and by-laws when policies were issued.</p>

<p> Executors and administrators—Administrator d. b. n. c. t. a.—Distribution —Legatees. </p> <p>In proceedings on the account of the administrator of a deceased executrix where it appears that the indebtedness of the testator has been paid and there are no debtors to or claimants against the estate, distribution may be made directly to the legatees instead of to an administrator de bonis non cum testamento annexo.</p>

<p>Appeal, No. 235, Jan. T., 1904, by-defendant, from judgment of C. P. Berks Co., Dec. T., 1902, No. 34, on verdict for plaintiffs in case of Isaac Eckert and A. B. Commings v. Pennsylvania Railroad Company.</p> <p>Trespass against a carrier for loss of horses. Before EndLICH, J.</p> <p>At the trial the court submitted the ease to the jury reserving a question of law.</p> <p>The jury returned a verdict in favor of plaintiffs for $5,000.</p> <p>On a rule for judgment non obstante veredicto Endlich, J., filed the following opinion :</p> <p>1. This is an action of trespass, in which the plaintiffs declare against defendant as a common carrier, alleging that they delivered to it and it received six valuable race horses for transportation from Reading to Readville, Mass., there to be delivered to plaintiffs in good condition, the car selected for the purpose being a Burton car; that in disregard of its duty and negligently, defendant, in the course of transportation, removed the horses from said car into one unsuited for their safe carriage; and that by reason thereof the horses were injured and reached their destination in a damaged condition. The essential part of this averment is the neglect of the defendant to perform its common-law duty of safe carnage, not the failure to carry the horses to their destination in a Burton car. In view of the allegation of negligence, the change of cars was in itself of no moment. It was the unsuitableness of the substituted car for the transportation of horses of the character and value of these, i. e., the failure to observe due care according to the circumstances, with the consequent injury to the horses, that furnished the cause of action laid. 'Neither the relation of the parties to each other, nor the defendant’s duty resulting-therefrom to exercise due care, however, sprang from the terms of the express contract. They arose from the defendant’s receipt of the horses for transportation as a common carrier and its legal obligations as such in respect thereto, which could not be bargained away. It cannot, therefore, be successfully maintained that the action ought to have been in assumpsit upon the express contract. The rule is stated in 1 Chitty, Pldg, p. * 151—that “ although there be an express contract, still if a common-law duty result from the facts, the party may be sued in tort for any neglect or misfeasance in the execution of the contract.” And accordingly it has been settled in this state, at least as far back as Smith v. Seward, 8 Pa. 342, and Porter v. Hildebrand, 14 Pa. 129, that a common carrier is liable for his negligence in carrying goods intrusted to him in an action ex contractu or in an action ex delicto at the election of the party suing.</p> <p>2. The contract comtemplating transportation to Readville, Mass., and payment being made for the whole of it, it became a part of defendant’s duty to deliver the horses to the connecting carrier at Jersey City in proper shape for further transportation. It might perhaps have been claimed on behalf of plaintiffs under another form of action that the defendant by its contract had agreed that the whole of the trip should be made by the horses in the Burton car; see R. R. Co. v. Schwarzenberger, 45 Pa. 208, 215, and that in substituting another it took every risk of injury attributable to the change regardless of the question of negligence in the selection, etc., of the substituted car. But that is not the claim made, and its admissibility need not therefore be considered. The plaintiffs’ case is founded on an allegation of negligence by defendant in the performance of a duty strictly within what it assumed by its contract. The defendant had accepted the horses for transportation in the Burton car. As agent for the owners of that car it had received payment for the use of it over, and as carrier payment for, the entire trip to Readville, Mass. It had encouraged the plaintiffs to expend money and to intrust to it and risk their property upon' the faith of an undertaking which it entered into without having informed itself as to its ability to carry it out and which it found itself unable to carry out. When, at Jersey City, the connecting carrier refused to accept the Burton car because of its size, defendant was not absolved from the remainder of its bargain. Safe delivery is included in the undertaking to transport: Graff v. Bloomer, 9 Pa. 114, 115—in this case, safe delivery to the connecting carrier : R. R. Co. v. Schwarzenberger, 45 Pa. 208. Necessarily that means delivery in good condition and in such shape as to be handled by the connecting carrier. Defendant could neither keep the horses at Jersey City for the owner to come and take them away, nor unload them and turn them adrift. It was bound to forward their shipment towards the final destination named in the contract, doing the best it could both in selecting a car reasonably adapted for the purpose, and the best adapted that could be had, and in seeing to it that the car selected was in suitable condition to receive and carry the horses with safety. In so doing it was bound to have regard to all the conditions of which it had notice—the season, the length of the journey accomplished and still ahead, the delay already experienced with its natural effect upon nervous animals, the character and value of the latter, and so on—in a word to use proper care according to the circumstances. A failure of duty in any of these particulars would constitute negligence. And if, either by a negligent selection of the car into which the horses were to be removed, or by an inadequate preparation of it for their reception, defendant exposed the animals to undue risk of injury, it is difficult to see by what method of reasoning it can be exonerated from the consequences attributable to such want of care.</p> <p>3. It will not do to say that the horses being attended, under the contract, by plaintiffs’ employees, their submission to a removal into the car designated by defendant was tantamount to an approval of it by the plaintiffs. The references in the contract to such employees very clearly show that their function was well understood on all hands, being simply to look after the wants of the animals and take care of the shippers’ property while being transported according to the contract. There is nothing in the latter which would invest them with any power to vary the contract or release the carrier from any duty devolving upon it under the same. So far as the contract goes, they had nothing whatever to do with the means of transportation or the method or manner in which defendant might choose to carry out its contract in respect thereto. It was their business to stay with the horses, feed them, water them, keep them in order, and do the best they could for them in whatever situation the defendant might place them. It is, of course, true that greater powers might have been given them by the plaintiffs. But of such there is no evidence in the case. It cannot be presumed that the owners of racing stock as valuable as this, who went to the trouble themselves to select and inspect the car in which the animals should travel, and who themselves made the contract with the defendant specifying that car, would delegate to employees such as these the right to annul their action and agree to the substitution of something else regardless of its fitness. The case of Squire v. R. R. Co., 98 Mass. 239, is distinguishable from the present one on a variety of grounds, one of which is that there the making of the contract itself was delegated by the shipper to his employee who attended the shipment, and who thus occupied, upon the face of the transaction, a very different position from that of plaintiffs’ employees in this case.</p> <p>4. Whether, in truth, the defendant’s choice of another car was a negligent one under the circumstances, and whether the injuries sustained by the horses were due to its defective condition, the slipperiness of the floor, etc., taken together with its peculiar construction, were under the testimony controverted questions of fact, determinable only by the jury. The defendant was not, of course, responsible for injuries resulting wholly from rough handling by the connecting road. But if the defective condition of the car contributed to the injurious effects of such handling and aided in bringing about the injuries, the defendant was responsible on the familiar principle that where an injury is produced through the negligence of a third party concurring with that of defendant, the latter is nevertheless liable: Cooley, Torts, p. 684; Patterson, Ry. Accid. Law, p. 413; Lockhart v. Lichtenthaler, 46 Pa. 151; Bunting v. Hogsett, 139 Pa. 363.</p> <p>5. The requirement in the contract of notice of injury and claim of damages to be given under affidavit to a designated office of the defendant company at Philadelphia within five days from the date of the removal of the stock from the ear, was one which the defendant might waive, its purpose being protection to the carrier: Pavitt v. R. R. Co., 153 Pa. 302, 307, 309. There are indeed, authorities under which what took place in this case on the arrival of the horses at Readville between one of the plaintiffs and the agent of the connecting road might be held to dispense with the notice and claim of damages: Ry. Co. v. Koch, 47 Kans. 753 (28 Pac. Repr. 1013). But it is not necessary to invoke the principle of those decisions, that the agent of the connecting carrier at the place of delivery is, in cases of through consignments, to be treated as the agent of the receiving carrier for the purpose of affecting it with notice of the condition of things-at the time of arrival, etc. It has been so often decided, that a reference to the recent cases of Weiss v. Ins. Co., 148 Pa. 349, and Roe v. Ins. Co., 149 Pa. 94, is more than sufficient, that where an insurer receives without objection notice of loss not complying with the exact requirements of the contract either in form or in point of time, and refuses payment on grounds not involving the technical insufficiency of such notice, he is precluded thereafter from defending on that ground, being deemed to have waived it. Inasmuch as the relation of a common carrier to the shipper is practically that of an insurer, generally at common law, restrictedly under a limited contract, the same rule applies as regards similar requirements of notice, etc., in actions by the shipper against the carrier under such contract for loss or injury of goods shipped: Merrill v. Express Co., 62 N. H. 514; and see R. R. Co. v. Brown (111.), 39 N. E. Repr. 273 ; Hudson v. R. R. Co. (la.), 60 N. W. Repr. 608 ; Rice v. Ry. Co., 63 Mo. 314. The application of this principle to the undisputed facts in this case is too obvious to call for discussion.</p> <p>6. The contention that the contract limiting the liability of defendant for injury, through negligence or other causes, to $100 for each horse, the jury ought to have been told that that was the maximum of any possible recovery in the case, is answered by the principle, firmly established in this state, that there can be no valid limitation upon the liability of a common carrier for the results of its negligence : R. R. Co. v. Schwarzenberger, 45 Pa. 208, 215 ; Farnham v. R. R. Co., 55 Pa. 53, 58; R. R. Co. v. Raiordon, 119 Pa. 577; Willock v. R. R. Co., 166 Pa. 184; Ruppel v. Ry. Co., 167 Pa. 166; Allam v. R. R. Co., 183 Pa. 174; Crary v. R. R. Co., 203 Pa. 525, 528. The allegation here was negligence in defendant and injury resulting therefrom. That was the question submitted to the jury. Its verdict must be understood to declare negligence. Hence the limitation in the contract upon the amount recoverable was out of the case. And for this reason, if for no other, it would have been error to instruct the jury, as requested by defendant, that plaintiffs were bound by the terms of the contract.</p> <p>What has been said seems to cover all the points raised by the learned counsel for defendant in support of the rules for a new trial and for judgment non obstante veredicto. If the conclusions reached are correct, there is no room for sustaining either.</p> <p>The rules to show cause are discharged.</p> <p>Error assigned was in entering judgment on the verdict.</p>

<p> Negligence—•Master and servant—Laundry—Mangle—Absence of guard rail—Province of court and jury. </p> <p>In an action by a woman against the proprietor of a laundry to recover damages for injuries to her hand received while working at a mangle, it appeared that while the plaintiff was absent from her work for about two weeks the defendant had substituted for the mangle at which plaintiff worked another and different kind of mangle. She was set to work at the new mangle without any instructions, and was immediately injured. Plaintiff testified that the mangle was fitted with no guard in front to protect the operator. In this she was to some extent corroborated by a witness for defendant. Three witnesses for the defendant testified that the machine was fitted with a guard while plaintiff was operating it. Held, that the defendant’s negligence and plaintiff’s contributory negligence were for the jury, and that a verdict and judgment for plaintiff- should be sustained.</p> <p>A servant has the right to expect his employer to provide machinery, tools and appliances that are reasonably safe for his use, and he assumes no risk growing out of their defective character, unless he has been fully advised that they are defective and dangerous.</p> <p> Negligence—Controverted questions of fact—Evidence—Province of court and jury. </p> <p>All controverted questions of fact, supported by testimony, are for the jury to ascertain and determine from the evidence. The duty of the court and jury respectively does not depend upon the number of witnesses testifying on either side. There may be but one witness called to support the plaintiff’s case, while on the other hand, the defendant may support his contention by a great many witnesses, yet the court would unquestionably invade the province of the jury, if, for this reason, it entered a nonsuit against the plaintiff.</p>

<p> Equity—Specific performance—Incumbrance—Public road—Notice—Railroad. </p> <p>A decree for specific performance will not be made unless the legal obligation is clear and no injustice will result from its enforcement.</p> <p>An incumbrance is a burden on land which depreciates its value, as a lien, easement or servitude, and includes any right to or interest in the land which may subsist in third persons to the diminution of the value of the land, but consistent with the conveyance of the title.</p> <p>A contract to purchase a strip of land, free of incumbrances, for railroad purposes, will not be specifically enforced in equity, where the evidence shows that running lengthwise within the strip was a public road which had been practically abandoned by the public years before, that the public used another road laid out by the county near by, that the old road had the appearance of a private lane, and that its existence as a public road was not known to the officers of the company when the contract was made.</p>

<p> Corporations—Treasurer—Distribution of money—Dividends. </p> <p>The treasurer of a corporation is personally liable to the corporation for moneys of the company which he has distributed to himself and other stockholders without any authority from the board of directors, and without any dividend having been declared.</p>

Appeal, No. 377, Jan. T., 1904, by defendant, from judgment of C. P. Lycoming Co., June T., 1904, No. 381, on case of Maggie Huber, Executrix of Milton Huber, deceased, v. T. B. Hamilton. Assumpsit to recover balance of purchase money. The case turned on the marketable title to real estate and was tried by the court without a jury.

Appeal, No. 51, Jan. T., 1905, by plaintiff, from order of C. P. Bradford Co., Dec. T., 1902, No. 435, refusing to take off nonsuit in case of Ella M. Lane v. Sayre Land Company. Trespass for an alleged wrongful seizure of goods by an unlawful process. Before Fanning, P. J. The opinion of the Supreme Court states the case. Error assigned was the action of the court.

<p>Appeal, No. 333, Jan. T., 1904, by Frederick A. Shower, Sarah E. Baxter and Clara Shirk, from decree of O. C. Phila. Co., Jan. T., 1880, No. 351, dismissing exceptions to adjudication in estate of Frederick A. Shower, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Brrors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 329, Jan. T., 1904, by plaintiffs, from decree of C. P. No. 5, Phila. Co., June T., 1904, No. 3922, sustaining demurrer to bill in equity in case of Robert Wetberill and Richard Wetherill, copartners, trading as Robert Wetherill & Company, v. Francis G. Gallagher, S. Arthur Love, Emma R. M. Love, The Fidelity Trust Company, surviving executor of Henry Gibson, deceased, and the Downing Paper Company, and James I. Lineaweaver, trustee in bankruptcy of the Downing Paper Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in sustaining the demurrer and dismissing the bill.</p>

<p>Practice, C. P.—Service of process—Proceedings to quiet title—Act of June 10, 1893—Answer—Waiver.</p> <p>Where on a petition under the Act of June 10, 1893, P. L. 415, to quiet title to coal land, the rule to show cause is not served on nonresident respondents “at their residence or place of business outside of the county or state where the land lies,” but is served upon them personally, the service is invalid; but if the respondents voluntarily file an answer submitting themselves to the court on the merits of the controversy, they will be deemed to have waived the defect in the service.</p> <p>Practice, C. P.—Cloud on title—Framing issue under the Act of June 10, 1893, P. L. 415.</p> <p>Where on an issue under the Act of June 10, 1893, P. L. 415, to quiet title to coal land, the respondents file an answer in which they assert the existence of a valid contract entitling them to purchase at a future time the land of which the petitioner was in possession, and they insist upon their right to have such contract continued as a cloud upon his title, the respondents are properly made plaintiffs in the issue, and the burden is upon them to establish the right which they claim.</p> <p>Practice, C. P.—Trial—Venire—Act of April 14, 1834, sec. 96, P. L. 333, and April 18, 1876, P. L. 29.</p> <p>Where an issue is framed after a venire has issued, the issue may be tried before the jury summoned under the venire, if it appears that the venire was issued more than thirty days before the day set for trial.</p> <p> Practice, C. P.—Rules of court—Trial—Suspension of rules—Continuance. </p> <p>The court may suspend a rule requiring trial lists to be prepared and publicly posted for at least six weeks before the commencement of the trial term, where it appears in the particular case as to which the rule was suspended that thirty-seven days elapsed between the framing of the issue and the trial, that every opportunity had been given to the parties to prepare for trial, and that the court had offered to give more time if it were needed for preparation.</p>

<p>Mines and mining—Coal—Surface support—Skillful and careful mining—1 Agreement to indemnify—Contract.</p> <p>If the owner of the whole fee in land conveys the coal in the land in general terms, retaining the residue of the tract, the purchaser acquires the coal with the right to mine and remove it, provided he does so without injury to the superincumbent estate. His estate in the coal, like that of the owner of the surface, is governed by the maxim sic utere tuo ut alienum non tedas. The owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law. This right which the servient estate owes to the dominant estate does not depend upon whether the mining operations are conducted skillfully or negligently and carelessly.</p> <p>Where owners of coal under land, the surface of which is owned by another, convey all of the coal to a third person, and give the grantee an obligation conditioned that they will “well and truly protect and indemnify the grantee from any liability for any damage which may result to the surface of the tracts of land overlying the coal land purchased .... by reason of the skillful and careful mining and taking away the said coal,” the words “skillful and careful mining,” are to be construed as relating to the manner of working the coal, and do not impose upon the grantee in operating the coal the duty of leaving proper and sufficient supports for the surface. If, therefore, the grantee exercises care and skill in his mining operation, he may mine and remove all the coal, and the grantors must indemnify him against 'any damage resulting from injury to the surface which he may be compelled to pay the surface owner.</p> <p>Dean and Brown, JJ., dissent.</p>

<p> Pleadings—Evidence—Parties—Allegata—Probata. </p> <p>Where a plaintiff declares against four persons on a joint liability, but at the trial fails to produce testimony to show a liability on the part of one of them, his case fails.</p> <p> Executors and administrators—Wrongful payments—Evidence. </p> <p>Where the administrator of a deceased partner, with the knowledge of all the other surviving partners, pays to one of them, on his withdrawal from the firm, moneys out of the funds in his hands as administrator in settlement of the withdrawing partner’s share in the business, the withdrawing partner, the other partners and the administrator are liable to the estate of the deceased partner for the repayment of the funds of the estate misapplied by the administrator.</p>

<p>Appeal, No. 15, Jan. T., 1904, by George A. Cotton, from order of C. P. No. 3, Phila. Co., Dec. T., 1901, No. 399, dismissing exceptions to referee’s report in case of Dilwortb P. Hibberd, administrator d. b. n. c. t. a. of George K. Hubbard, deceased, v. George L. Hubbard et al.</p>

<p>Appeal, No. 276, Jan. T., 1904, by Fidelity Trust Company et al., executors, from decree of O. C. Phila. Co., July T., 1898, No. 56, dismissing exceptions to adjudication in Estate of Andrew M. Moore, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 167, Jan. T., 1904, by Albert H. Moore, from decree of O. C. Phila. Co., July T., 1898, No. 56, dismissing exceptions to adjudication in estate of Andrew M. Moore, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 229, Jan. T., 1904, by George M. Moore, from decree of O. C. Phila. Co., July T., 1898, No. 56, dismissing exceptions to adjudication in Estate of Andrew M. Moore, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

Appeal, No. 158, Jan. T., 1904, by plaintiff, from judgment of C. No. 5, Pliila. Co., Sept. T., 1901, No. 3043, for defendant on demurrer to statement in case of George W. Carr, trustee of Mary Myers, in bankruptcy, v. Lillie Myers, Elsie Myers and Bella Myers. Demurrer to statement. The averments of the statement of claim are set forth in the opinion of the Supreme Court. Error assigned was in sustaining demurrer to statement.

<p>Appeal, No. 142, Jan.T., 1904, by defendant, from judgment of C. P., No. 3, Phila. Co., June T., 1903, No. 294, on verdict for plaintiff in case of Philadelphia to use of McAvoy Vitrified Brick Company v. Aaron M. Neill and the Lincoln Savings & Trust Company.</p> <p>Assumpsit on the bond of a municipal contractor. Before McMichael, J.</p> <p>At the trial counsel for plaintiff offered in evidence the bond.</p> <p>Mr. Porter: I object to the admission in evidence of this paper because it has been stated by counsel that it is the foundation of his action and he has not pleaded the bond as the basis of his action. One other objection is that this bond which is attempted to be offered is not in accordance with the terms of the ordinance of 1896. And another ground of objection is that under the ordinance of 1885 the bond itself must be drawn in the office of the city solicitor and that has not been shown.</p> <p>Objection overruled and bond admitted in evidence. Exception for defendant. [1]</p> <p>A witness for defendant was asked this question:</p> <p>“ Q. What does your examination of those books show after deducting the note of $8,000 which has been referred to in the testimony?”</p> <p>Objected to.</p> <p>Mr. Porter: I offer to prove by the witness upon the stand that he is qualified as an expert accountant; that he has examined the ledger, cash book and journal of the plaintiff company in the account with Neill, one of the defendants; that the result of his examination of those accounts shows that crediting the $3,000 note spoken of, and as to which certain testimony has been adduced as to its acceptance as payment, shows that the total balance due by Neill to the plaintiff company other than upon obligations still retained by the plaintiff company amounts to $346.49.</p> <p>Objected to.</p> <p>The Court: I sustain the objection. I do not think expert testimony is necessary or admissible here.</p> <p>Exception for defendant. [2]</p> <p>The court read to the jury the statement of claim and affidavit of defense. [3, 4.]</p> <p>The court charged in part as follows:</p> <p>Now, gentlemen of the jury [it has been objected, first, that the statement is not a suit upon the bond of the Lincoln Savings and Trust Company. Questions of law are for the court and not for the jury, and with the question of the sufficiency of the legal pleadings you have nothing to do, your function being to determine the questions of fact which will be left to you by the court for your determination. The trial judge is of opinion that the statement of claim is sufficient.] [5] It contains in substance the allegation of facts which are sufficient to enable the plaintiff to recover from the defendant, if properly substantiated by proofs and not overcome by countervailing proofs. If the statement be inaccurate in matter of form, it should have been attacked at an earlier stage of the case, either by a rule for a more specific statement or by demurrer.</p> <p>The system introduced by the ordinance of 1896 was, as is stated in the title of the ordinance, for the protection of subcontractors, as well as for persons furnishing materials and labor for the construction of buildings for the city of Philadelphia or for any other city work, and was to remedy an evil which had grown up, which resulted in great loss to mechanics and material men who supplied work and material to contractors for the city of Philadelphia, and also resulted in poor and skimped work for the city of Philadelphia. For, although the contractors with the city of Philadelphia were pretty sure to get their money if they completed their work according to contract, yet the subcontractors, material men and mechanics, who worked and furnished material for them, were often deprived of just payment for their work or materials, because dishonest or insolvent contractors refused or neglected to pay them, and there was no right of lien against a public work. And in the earlier suits upon bonds similar to the one given by the Lincoln Savings and Trust Company in this case, appeals were taken to the Supreme Court, and it was there settled that there was nothing ultra vires (that is, beyond the powers) or contrary to public policy in the city exacting from a contractor the condition that he should give a bond to pay subcontractors and material men. And it was further decided that where an ordinance requires a bond to be given by a -municipal contractor to secure payment to workmen, material men and subcontractors, and the ordinance provides that “ any person ” who has supplied labor or material shall be furnished with a copy of the bond upon application, and that such person “ shall have a right of action, and shall be authorized to bring suit in the name of the city; ” each person for whose benefit the bond was given may maintain against the contractor a separate suit in the name of the city to his own use.</p> <p>[And in a suit brought by the same plaintiff against the same defendants, in this same court, of the number and term immediately preceding the one on trial, an action upon a bond given by the defendants to the city of Philadelphia under the ordinance of March 30, 1896, for the protection of subcontractors and persons furnishing materials to contractors for city work, was sustained, the form of the action being similar to the present one.] [6]</p> <p>These and other questions of law have been ruled by me as trial judge, in accordance, I think, with the most recent cases in our Supreme Court, and, subject to review hereafter, you will take the law from me. But questions of fact are for the jury, and two questions of fact are for your determination in this case. [The first question of fact for you to determine is, what was the contract between the McAvoy Vitrified Brick Company and Aaron M. Neill? and the second is, were the bricks charged against Neill sold on his sole personal credit, or were they furnished and supplied to the work which Neill contracted with the city of Philadelphia to do, namely, the paving of Howarth street from Frankford avenue to Willow street ?] [7]</p> <p>I desire to call your attention to these two points and to the evidence which has been given in reference to them a little more distinctly. The testimony of the witnesses as to what the contract was between the McAvoy company and Neill does not seem to me to vary very much, both parties testifying, if my recollection is correct (though the ultimate recollection of testimony is always for the jury), that some time prior to the letting of the city contracts Neill went to the McAvoy company and asked for a price for vitrified bricks to be furnished in large quantities and was told the price would be $11.00 a thousand. Then bricks were furnished from time to time in large quantities, and prior to the letting of the city contracts Neill used the bricks for paving private streets, and, according to the testimony, paid for them. After the city contracts were let bricks were furnished to Neill f. o. b. the cars of the Reading Railroad at various points, and on the part of the plaintiff Mr. John C. McAvoy testified : “ Mr. Neill came to our office in the fall of that year (1899) and ordered from me personally 500,000 paving brick for the paving of Wake-ling, Howarth and Dyer streets. . . . He told me they were for those three streets. Those three streets were right together. The order was taken and the bricks were shipped to Frankford and used in the paving of those three streets. This one in particular, Howarth street, the brick was sent to him, and they were not paid for. . . . The brick was guaranteed to pave fifty-eight to the square yard, laid on edge as in paving.” And the witness further stated: “ I was on all three of those streets and I saw them paving the brick on those streets. It was my business to go on the streets at certain times.”</p> <p>There was also the testimony of the surveyor of the city that the amount of paving on Howarth street, including intersections, was 2660.75 square yards.</p> <p>Mr. John C. McAvoy was cross-examined, at considerable length, and it is for you to say whether or not his recollection is accurate, or whether he is telling the truth about it.</p> <p>[As to the amount of the claim, you will have to determine that from the data given. The bricks were sold at $11.00 a thousand. The testimony of Mr. McAvoy is that there were fifty-eight to the square yard, and there were 2660.75 square yards in Howarth street.] [8]</p> <p>There was other testimony which you may think was corroborative of Mr. McAvoy’s direct testimony—the testimony of Mr. Neill under cross-examination, and the testimony of Mr. Thomas B. McAvoy; or you -may think this testimony was contradictory of Mr. McAvoy’s. These witnesses were examined and cross-examined, and it is for you to determine how far their recollection of the facts is accurate.</p> <p>On the other hand, on the part of the defendant, there was an extended cross-examination of Mr. John C. McAvoy to show that the McAvoy Vitrified Brick Company has been paid, all except a small balance of some $300, for all the bricks furnished to Neill, and they claim that the books of the McAvoy company themselves and the whole testimony in the case show that nothing was due to the McAvoy Vitrified Brick Company for bricks furnished to Neill for paving Howarth street. This is a question of fact for you which you will determine from the whole evidence.</p> <p>[I declined the offer of expert testimony -to explain the books, because I did not think it was admissible, the accounts being not very complicated in their nature.] [9]</p> <p>There is one matter, I think, however, that I should allude to, and that is whether or not the promissory notes given by Mr. Neill were accepted in full payment for their face value.This is a question of fact for you to determine, but the law is that the note, even of a third party, is collateral security, or at most, conditional payment only. To make it payment absolute, there must be an express agreement by the creditor to receive it as such, the burden of proof of which is upon the debtor. [I leave it to you, however, as a question of fact under all the evidence to determine whether the promissory notes appearing in plaintiff’s account were taken in payment or not.] [10]'</p> <p>[Another question of fact for you to determine is as follows : Were the bricks used in the paving of this particular street sold to the defendant Neill on his individual credit and not for the paving of this particular street, and did the use plaintiff (that is, the McAvoy Brick Company) agree to look to the defendant, Neill, for payment therefor and not bring suit on the bond given to the city upon which suit is brought in the present case? This is the defense upon which one of the defendants, the Lincoln Trust Company, largely relied. One of the conditions of the bond of the trust company was to pay for labor and materials furnished and supplied in and about said work. If the bricks were not supplied in and about Howarth street, plaintiff cannot recover. The great advantage to the city of the ordinance ought not to be frittered away, but a general balance of indebtedness or a lunning account between merchants is not what was contemplated by the ordinance, nor is it within the terms of the bond. You have heard the cross-examination of the witnesses and Lave had the books of the plaintiff before you, introduced and offered by the defendant, without objection on the part of the plaintiff. These questions of fact have been fully argued. They are, perhaps, not without difficulty, but you should determine from the whole evidence, without prejudice and without sympathy, whether the plaintiffs furnished and supplied bricks to Howarth street], [11] the paving of which was the work contracted for between Neill and the city of Philadelphia, and also whether those bricks have been paid for or have not been paid for.</p> <p>Verdict and judgment for plaintiff for $2,045.50. Defendant appealed.</p> <p>Errors assigned were [1, 2] rulings on evidence, quoting the bill of exceptions ; (3-11) above instructions, quoting them.</p>

Appeal, No. 169, Oct. T.,'1904, by Fidelity Title & Trust Co., guardian, from decree of O. C. Allegheny Co., March T., 1904, No. 91, dismissing exceptions to adjudication in estate of Thomas Mifflin Jones, Jr., deceased. Audit of executor’s account. The account showed a balance for distribution of about $600,000. By a stipulation filed the following facts appeared: Thomas M. Jones, Jr., the decedent, on April 9, 1896, married Mary E. Brown (now Speer).

<p>Appeal, No. 195, Jan. T., 1904, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 2201, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia to use of James V. Watson, trading as Rittenhouse Quarry v. George W. Pierson and The Lincoln Savings & Trust Company.</p> <p>Assumpsit on a bond of a municipal contractor.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Supreme Court states the case. ■</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 345, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1898, No. 545, sustaining exceptions to referee’s report in case of Michael McManus v. City of Philadelphia.</p> <p>Exceptions to report of George W. Harkins, Esq., referee.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in sustaining exceptions to report of referee and in staying the execution pending the equity suit.</p>

<p>Appeal, No. 247, Jan. T., 1904, by defendant, from judgment of C. P. Chester Co., Jan. T., 1904, No. 77, on verdict for plaintiffs in case of Mary J. Hope and Clarence B. Hope, Administrators of Thomas Hope, deceased, v. Philadelphia & Western Railroad Company.</p> <p>Appeal from award of jury of view. Before Hemphill, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiffs for $8,350. Defendant appealed.</p> <p>Errors assigned were in overruling objections to, and admitting evidence of, certain witnesses for plaintiffs.</p>

<p>Appeal, No. 315, Jan. T., 1904, by plaintiff, from order of C. P. Del. Co., Dec. T., 1904, No. 177, refusing to take off nonsuit in case of Lizzie H. Owens, by her next friend and father, Robert J. Owens, and Robert J. Owens in his own right v. Thomas Kent Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Savtdoe, P. J., specially presiding.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p> Equity—Accounting—Profits—Trust and trustees—Corporation. </p> <p>Where a corporation is organized with a large capital, and the organizers pay in in cash only one tenth of the capital stock, and thereafter one of the. organizers sells to his brother a portion of his stockholdings at par, paying himself with moneys which he had received from his brother for investment and subsequently the organizers develop the company by means of moneys borrowed on the company’s notes with their own indorsements, and thereafter the company, together with certain subordinate companies which it owned, are sold at a very large profit, the organizer who sold stock to his brother must account to him for profits received in proportion to their respective holdings of capital stock, and not in the proportion of the funds furnished by the brother to all the money invested in the enterprise whether paid on account of stock, or borrowed on the company’s notes.</p>

<p>Appeal, No. 86, Jan. T., 1904, by plaintiff, from judgment of C. P. Berks Co., Feb. T., 1902, No. 35, on verdict for plaintiff in case of John Shepp v. Reading Belt Railroad.</p> <p>Appeal from award of jury of view. Before Endlich, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was answer to plaintiff’s first and second point, quoted in the opinion of the Supreme Court.</p>

<p> Negligence—Railroads—“Stop, look and listen.” </p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband, it appeared that plaintiff approached a grade crossing, in a borough, driving a sled. There was evidence from one witness that he stopped at a point about twenty feet from the crossing from which place he could have seen the train that struck him, if it had been within 800 feet of the crossing. Five witnesses for the defendant testified that the deceased did not stop, but drove at a slow trot on the track in front of the train. Held, that the case was for the jury and that a judgment and verdict for plaintiff should be sustained.</p> <p> Evidence—Scintilla—Conflict in testimony—Province of court and jury. </p> <p>Where the testimony in support of an action is a mere scintilla and that opposed to it is so overwhelming that no real controversy is raised, and where the jury could not find for the plaintiff without a capricious disregard of apparently truthful testimony, probable in itself and not at variance with any admitted or proved facts, a verdict may be directed for the defendant. Such cases are rare and they do not arise where there is a real conflict of testimony.</p>

<p>Appeal, No. 34, Jan. T., 1905, by defendant, from order of C. P. Berks Co., April, T., 1903, No., 85, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry A. Muhlenberg and Kate S. Muhlenberg v. The Mutual Fire Insurance Company of Sinking Spi'ings, Bei'ks County.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The affidavit of defense was in effect that the plaintiff prior to the fire had neglected to pay an assessment legally made. The only authority for making the assessment and declaring a forfeiture for nonpayment was contained in the charter of the company, which was not attached to the policy.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 48, Jan. T., 1905, by plaintiff, from decree of C. P. Berks Co., equity docket 1903, No. 846, dismissing bill in equity in ease of John S. Wagner v. Horace Fehr and Francis F. Seidel. Bill in equity for a reconveyance of real estate. Before EndLICH, J. The material averments of the bill and the grounds of demurrer are set forth in the opinion of the Supreme Court. Error assigned was decree dismissing the bill.

<p> Contract—Saks on commission—Master and servant. </p> <p>Where an ice company agrees in writing to give to an individual the right to sell all of its product for the term of five years on a commission of “one dollar per car for ice shipped from the company’s plant” the contract does not establish the relation of master and servant, but constitutes an employment to make sales on commission. If the sales agent thus employed makes no sales and is discharged before the end of his term, he can recover nothing from the corporation.</p>

<p> Negligence—Telephone company—Obstruction on sidewalk. </p> <p>In an action against a telephone company to recover damages for personal injuries sustained by falling after dark over a pile of stones on a sidewalk of a dimly lighted street, the case is for the jury where the testimony for. plaintiff is that a few days before the accident the defendant company secured a permit to lay conduits on the street and had begun work and was occupying the street for that purpose, that on the day of the accident the paving stones had been removed from the cartway and piled on the pavement, the conduits laid and the trench filled with earth; and that on the morning after the accident the same workmen who had removed the stones from the street and piled them on the pavement, placed them back on the street.</p>

<p> Negligence—Street railways—Death—Evidence—Nonsuit. </p> <p>In an action against a street railway company to recover damages for the death of plaintiff’s husband, a nonsuit is properly entered where all that is shown is that the deceased was run over by one of defendant’s cars at the middle of a block, after midnight; that the gong was not sounded; that the highest rate of speed testified to did not exceed nine or ten miles an hour; that the car was stopped on a down grade and on a slippery track within sixty feet, and that both the street and the car were well lighted.</p>

<p>Appeal, No. 50, Jan. T., 1905, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1901, No. 8995, refusing to take off nonsuit in case of Matthew M. Tobin v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries.- Before Ralston, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Ht'ror assigned, was order refusing to take off nonsuit.</p>

<p>Trusts and trustees—Charity—Failure of trustee—Discretionary power— Act of April 26, 1855, P. L. 328.</p> <p>Where testator gives discretionary power to his three executors to distribute a large sum of money among charitable institutions, except missionary societies, with a direction that the fund should be divided among as large a number of associations “as my said executors may think best calculated to secure the greatest amount of good from this donation,” and all the executors die without having made any distribution of the fund, the charitable bequest will not -fail, but the court will, under the Act of April 26, 1855, P. L. 328, appoint a trustee to carry it out.</p>

<p> Will—Probate—Issue devisavit vel non—Forgery—Fraud—Evidence. </p> <p>On an issue to determine the validity of a will alleged to have been left by testator but destroyed after his death, where the defense is that the paper in question came into existence, if at all, by fraud and forgery, declarations and statements of the decedent are admissible, where it appears that they are inconsistent with the existence and validity of the will, and contradictory of the story of the proponents in regard to the execution of the instrument.</p> <p> Practice, C. P.—Trial—Charge—Expression of opinion. </p> <p>The trial judge may in his charge express his opinion and make comments on the testimony, witnesses or parties, provided he leaves the jury free to decide the case on the evidence.</p>

Appeal, No. 91, Jan. T., 1904, by plaintiff, from decree of C. P. No. 1, Phila., Sept. T., 1903, No. 1238, setting aside service of bill in equity in case of Allan B. Wallace v. United Electric Company of New Jersey and United Gas Improvement Company. Bill in equity for discovery and an accounting. Motion to set aside service of the bill. The facts are stated in the opinion of the Supreme Court. Error assigned was the order setting aside the service of the bill.

<p>Taxation—Street railways—Property tax—Lácense tax—Act of March 7, 1901, P. L. 20, sec. 3, Art. 19, Pars. 4 and 22.</p> <p>A tax imposed by a city of the second class of twenty-five cents per foot “for each lineal foot of track laid, maintained or operated” by a street railway within the city, exclusive of such tracks as may be in its yards or buildings, is a property tax, and cannot be maintained as a license tax or fee within the meaning of article 19, sec. 3, paragraphs 4 and 22 of the Act of March 7, 1901, P. L. 20, although the tax in the ordinance is designated as a license tax.</p>

<p>Appeal, No. 10, Oct. T., 1905, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1904, No. 151, on bill in equity in case of Allegheny County Light Company v. City of Pitts burgh and John F. Steel, Treasurer of the City of Pittsburg.</p> <p>The tax in this case was one half cent per lineal foot of pole line or wire, or five cents per lineal foot of conduit.</p>

<p>Appeal, No. 11, Oct. T., 1905, by-defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1904, No. 152, on bill in equity in case of Consolidated Gas Company of the City of Pittsburg v. City of Pittsburgh and John F. Steel, Treasurer of the City of Pittsburg.</p> <p>The tax on this case was three cents per foot for each lineal foot of pipe laid.</p>

<p>, Oct. T., 1905, by defendants, from decree of C. P. No. 2, Allegheny Co., July T., 1904, No. 154, on bill in equity in case of Philadelphia Company v. City of Pittsburgh and John F. Steel, Treasurer of the City of Pittsburg.</p> <p>The tax in this case was three cents per foot for each lineal foot of pipe laid.</p>

<p> Evidence—Witnesses—Competency—Party dead—Decedents’ estates—Act of May 23, 1887, sec. 5, clause (e), P. L. 158. </p> <p>Where upon the death of both husband and wife, the husband’s executors claim at the audit of the account of the wife’s administrator, that a bank deposit in the wife’s name was really the property of the husband, a daughter of both the deceased parties is not a competent witness under the Act of May 23, 1887, P. L. 158, in support of the claim of the wife’s administrator, since the daughter is a party testifying in interest adversely to the father’s estate.</p> <p>In the distribution of the estate of a deceased person where a claim is presented in the ordinary way against such estate, the heirs, legatees and other interested parties are competent to testify in favor of such estate but incompetent to testify adversely to'it.</p> <p>Evidence—Competency of witness—Party—Act of May 23, 1887, P. L. 158.</p> <p>The provisions of the Act of May 23, 1887, P. L. 158, relating to the incompetency of witnesses on account of interest where a party to the subject in controversy is dead, applies to civil proceedings before any tribunal in the commonwealth.</p> <p>Orphans’ court—Jurisdiction—Dispute as to title to property—Evidence— Husband and wife.</p> <p>While it is the general rule that no one can claim in the distribution of a fund in the orphans’ court except through the decedent, as creditor, legatee or next of kin, there is an exception where the fund is shown to be wrongfully included in the account, either because, though in the name of the decedent, it is really a trust, or where title or ownership is in another person. Thus where an administrator of a wife includes in his account a deposit in bank in the wife’s name, and the executor of the husband claims the deposit as a part of the husband’s estate, the orphans’ court has jurisdiction to pass upon the question of title.</p> <p> Husband and wife—Money deposited in wife’s name—Gift—Presumption —Evidence. </p> <p>Money on deposit in the name of a wife is prima facie her money, and where it is claimed by her husband at her death or by the husband’s executor, the burden is upon the claimant to prove that it is his property.</p> <p>Bank deposits stood in the name of a wife at her death. The husband took out letters of administration on her estate, setting forth in his petition that the estate consisted of goods and chattels, rights and credits amounting exactly to the amount of deposits. He gave his bond for double this amount. He died before the expiration of the year from her death without having completed administration of his wife’s estate, and without having claimed the deposits as his own. His executors subsequently filed the husband’s account as administrator of his wife, in which they included the deposits, but at the audit of the account they claimed that the deposits belonged to the husband. The evidence in favor of the wife’s ownership was supported by declarations of the husband, and the contrary evidence was meager, loose and unsatisfactory. Held, that the court’s finding that the fund was the property of the wife was sufficiently supported by the evidence and would not be reversed by the Supreme Court.</p>

<p>Appeal, No. 314, Jan. T., 1904, by plaintiff, from judgment of Superior Court, Oct. T., 1903, No. 49, affirming judgment of C. P., No. 1, Phila. Co., Dec. T., 1900, No. 440, sustaining exceptions to report of referee in case of Walter C. Louchheim v. Somerset Building and Loan Association.</p> <p>Appeal from Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court and by the report of the case in 25 Pa. Superior Ct. 325.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 218, January T., 1904, by defendant, from judgment of O. & T. Phila. Co., April T., 1903, No. 154, on verdict of guilty of murder of the first degree in case of Commonwealth v. Catharine Danz. Indictment for murder. Before Martin, P. J. The facts appear by the opinion of the Supreme Court. When Robert McKenty was on the stand he was ashed this question: “ Q. She made the remark you have testified to and then went on toward the cell? A. We went on to the cell.

<p>Sewers—Boroughs—Sewer company—Permissive right—Contract—Act of May 16,1891, P. L. 75.</p> <p>A mere permission, by a borough, to a sewer company, organized under the Act of June 10, 1893, P. L. 435, to construct a system of sewers under the borough streets, does not give to the sewer company the exclusive right to use the streets for such purposes; but the borough may thereafter install a sewer system of its own, using some or all of the same streets without any liability to the sewer company for indirect or consequential damages for the reduction of the earning power of the company’s system.</p> <p>The provisions of the Act of May 16, 1891, P. L. 75, relating to sewers, which requires the viewers “to determine the damages for property taken, injured or destroyed,” means the actual and physical appropriation of or injury to the property of persons injured, and does not cover indirect or consequential damages to the business of a sewer company with which the municipality had no contract.</p> <p>The Act of April 3, 1851, P. L. 320, confers no power upon boroughs to provide a sewage system by contract. In this particular the rights of a borough as to a sewage system and a water supply are essentially different.</p>

Appeal, No. 335, Jan. T., 1904, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1902, No. 615, on verdict for defendant in case of Singer Manufacturing Company v. Frank P. Christian. Assumpsit for goods sold and delivered.

<p> Criminal law—Murder—Jury—Opinion of jurors—Challenges. </p> <p>Where on the trial of an indictment for murder, the prisoner has not exhausted his peremptory challenges, the acceptance of jurors challenged on account of opinions formed and expressed by them, does him no harm, and is no ground for reversing a verdict and judgment of guilty.</p> <p>In determining whether a juror should be rejected for an opinion formed, the established test is whether or not he can throw aside his impression or opinion and render an impartial verdict on the evidence alone. That question the juror alone can answer, and the weight of his answer is not to be determined exclusively by his words as they appear in print in the record, but by his words, manner and bearing, as to which a fair measure of discretion must be allowed by the court below which had the juror before it.</p> <p> Criminal law—Murder—Evidence—Dying declaration. </p> <p>On the trial of an indictment for wife murder, where the killing is admitted and the only defense is insanity, the dying declaration of the deceased, when offered as a whole and only a general objection is made, is admissible although in addition to matters relating to the res gestae it contains statements as to prior threats. Whether it would have been admissible even if specifically objected to, not decided.</p>

<p> Criminal law—Murder—First degree—Evidence—Self-defense. </p> <p>On the trial of an indictment for murder the case as presented by the commonwealth was that the prisoner and deceased while playing cards in a room got into a wordy dispute which led to a challenge to go out and fight; whether the challenge was given by the deceased or the prisoner was disputed, but the deceased got up and went out; followed by the prisoner, who as he arose put his hand to his hip pocket and partially drew a revolver; he then went out the door and almost immediately fired the shot that killed the deceased. There was other testimony that the prisoner had exhibited the revolver some time before and remarked that it was for certain persons including the deceased. The prisoner alleged that he shot in self-defense when the deceased was advancing upon him with a razor. Held, that the evidence was sufficient to support a verdict of guilty of murder of the first degree.</p> <p> Criminallaw—Murder—Malice—Presumption—Evidence—Deadly weapon. </p> <p>Legal malice as an ingredient of murder is presumed from the use of a deadly weapon against a vital part of the body.</p> <p>Where the evidence clearly negatives the crime of manslaughter the judge is under no obligation to charge the jury on that grade of homicide.</p> <p> Criminal law—Murder—Charge—Witness. </p> <p>On the trial of an indictment for murder the trial judge is under no obligation to charge the jury as to the possible or probable bias of a brother of the deceased who is called as a witness for the commonwealth.</p> <p>In general, the weight and credibility, including favor or prejudice, of witnesses, is for the jury.</p>

Appeal, No. 20, Jan., T., 1905, by defendant, from judgment of 0. & T. Lancaster Co., Aug., T., 1904, No. 13, on verdict of guilty of murder of the first degree in case of Commonwealth v. Lee Furman and John O’Brien. Indictment for murder. Before Landis, J. At the trial Elmer Eshleman, a boy eight years old, was called by the commonwealth, and examined as follows: The Court: “ Q. Where do you go to school ? A. Down along the pike there. Q. Whereabouts? Down near the tollgate?

<p> Contract—Letters—Telegrams—Copy. </p> <p>Under the procedure Act of May 25, 1887, P. L. 271, a plaintiff must set out in his declaration the whole of his contract and his proofs will be limited to his allegations. If he has not set out the whole of his contract and his evidence offered in support of his averments, discloses the fact, the evidence will be stricken out as being at variance with the allegations, but a plaintiff is not bound to set out in his declaration all his written evidence and it cannot be said that there has been a variance between the averments and the proofs because the writing offered in support of the contract declared on, also contains words not pleaded if those words do not in themselves alter the meaning of the words pleaded.</p> <p>In an action of assumpsit plaintiff declared on a contract consisting of an offer by the defendant contained in a telegram. At the trial plaintiffs offered a letter from the defendant of the same date as the telegram, containing a copy of the telegram but with the additional words “letter received.” The letter confirmed the telegram. The admission of the letter was objected to on the ground that the copy of the telegram contained in it, differed from that set out in the statement and that it disclosed prior correspondence which plaintiff was bound to set out as a part of the written contract. Held, that the letter was properly admitted inasmuch as the words “letter received” did not alter the effect of the defendant’s offer.</p> <p>In such a case the additional words did not in themselves indicate that the letter referred to related to the defendant’s offer or even to the same subject.</p> <p>If the contract declared on and established by the plaintiff was not the whole of the contract between the parties, this was a matter of defense. As long as the plaintiffs’ testimony tended to prove the contract they had pleaded and did not disclose any other, the defendant could not complain.</p>

<p>Railroads—Eminent domain—Dwelling house—Curtilage—Widening road —Act of March 17, 1869, P. L. 12.</p> <p>Under the Act of March 17, 1869, P. L. 12, relating to the widening of rights of way of railroad companies, a single taking does not exhaust the power.</p> <p>A railroad company will not be restrained from taking a strip of land from the curtilage of a dwelling house, for the purpose of widening its roadbed, where there is no evidence to show that there was an abuse of power, nor that the facilities and capacity for the transportation of traffic did not require the widening of the road, nor that any less ground would answer for the safety of persons and property in the operation of the railroad, in view of the elevation of the railroad and the necessity for embankments to support the slope.</p>

<p>Practice, C. P.—Service of process—Summons—Infants—Dwelling house —Act of July 9,1901, P. L. 614.</p> <p>Service of summons in trespass against a minor will not be set aside where the return is as follows: “Served S., Jr., by handing, November 19,</p> <p>1903, a true and attested copy of the within writ to an adult member of his family at his dwelling house, said adult being his father S., Sr.,” and the only ground for setting the service aside is that the dwelling house was that of the father and not that of the son.</p>

Appeals, Nos. 373 and 374, Jan. T. 1904, by defendants, from order of C. P. Montgomery Co., Oct. Term, 1904, No. 70, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lower Merion Township v. Levi S. Cline and the Bryn Mawr Trust Company. Appeal from settlement of accounts of township treasurer. Before Weand, J. The opinion of the Supreme Court states the case.

<p>Appeal, No. 14, Oct. T., 1905, by plaintiff, from judgment of Superior Court, April T., 1904, No. 110, affirming judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 113, affirming justice of the peace in case of John Beltz v. City of Pittsburg.</p> <p>Appeal from judgment of Superior Court.</p> <p>The only question raised in the lower court was the constitutionality of the Act of June 7, 1901, P. L. 493.</p> <p>Error assigned was the judgment of the lower court.</p>

Appeal, No. 83, Jan. T., 1904, by-defendant, from judgment of C. P. Del. Co., Dec. T., 1902, No. 20, on verdict for plaintiff in case of William B. Harvey v. City of Chester. Trespass to recover damages for personal injuries. Before Johnson, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $4,897.88. Defendant appealed.

Appeal, No. 119, Jan., T., 1904, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1903, No. 286, on verdict for defendant in case of Pottsville Bank v. Minersville Water Company. Held: which is immaterial, to Mr. Heblieh’s possession and custody, and these certificates which are in controversy were found in his office after his death.

<p>Constitutional law—Public officers—Removal of elected officers—Act of March 7, 1901, P. L. 20.</p> <p>The legislature has the power to remove, or to authorize directly or indirectly the removal of an elected municipal officer.</p> <p>The city recorder of the city of Scranton has the power to remove an assessor previously elected. Neuls v. City of Scranton, 20 Pa. Superior Ct. 286, followed.</p> <p>The Act of March 7,1901, P. L. 20, is constitutional. Com. v. Moir, 199 Pa. 534, followed.</p>

<p>Appeal, No. 8, Oct. T., 1905, by defendants, from judgment of C. P. Armstrong Co., Sept. T., 1903, No. 33, on verdict for plaintiffs in case of Valentine Neubert et al., Executors of G. C. Orr, deceased, v. Armstrong Water Company et al.</p> <p>Petition for mandamus. Before Reed, P. J.</p> <p>Tbe facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[Therefore, if you are convinced upon the whole evidence that the plaintiffs were approached by the defendants for the purpose of buying their stock, and the plaintiffs informed the defendants that they would not sell until they could examine into the financial condition of the company, for the purpose of determining the value of the same, and that they subsequently made a demand for the books upon the persons having their possession and control, at a proper time and place, stating their purpose to be the inspection and examination of the books to learn what their stock was worth, then they complied with the requirements of a proper and legal demand, and if you so find, your verdict should be for the plaintiffs, otherwise it should be for the defendants.] [3]</p> <p>[Perhaps before concluding my instructions I should refer to one particular demand which the plaintiffs allege was made on William Walker, treasurer of the company, by letter. The plaintiffs offered evidence to show that a letter, a copy of which has been introduced in evidence bearing date February 12,1903, and marked “ exhibit No. 13,” that this letter was prepared and signed by Mr. Orr Buffington; that it was then put into an envelope and addressed to Mr. Walker, at his residence number, in the city of Philadelphia. That it was properly stamped and deposited in the post office at Kittanning and sent to Mr. Walker by registered mail. These facts, standing alone, would raise a presumption that Mr. Walker received that letter. If there was nothing else in the ease, you would be warranted in so finding. But the presumption is only one of fact, and may be overthrown by testimony that the letter was not received. Mr. Walker was called, and he testified positively that he never did receive it. If you credit his testimony and deem it sufficient to overthrow the presumption that he did receive the letter, arising from the fact that it was addressed and mailed to him as stated, then that letter, or copy of which has been offered in evidence, would drop out of the case and will not be considered by you at all in arriving at your verdict.] [5]</p> <p>Defendant presented these points :</p> <p>5. The plaintiffs having shown by their evidence that the only purpose of the inspection of respondent company’s books and the papers, disclosed before the filing of the petition in this case, was the ascertaining the value of the plaintiff's stock, and the petition shows that the purpose thereof was entirely different, viz.: To file a bill for the correction of alleged mismanagement of the corporate affairs, on the part of the respondent company’s officers; such alleged demand is not a legal and proper one, and the verdict of the jury must be for the respondents. Answer : Refused. [8]</p> <p>6. In order to sustain a verdict in behalf of the plaintiffs in this case it must appear of record that this court has jurisdiction, not only of the parties respondent but of the subject-matter of the complaint as well. Answer : Refused. [9]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>JErrors assigned were (3, 5, 8, 9) above instructions, quoting them.</p>

Appeal, No. 80, Jan. T.,1905, by plaintiff, from judgment of C. P: No. 5, Phila. Co., March T., 1903, No. 2805, on verdict for defendant in case of Bradley S. Duffin and Hannah Duffin v. Alfred H. Dawson and John P. Adams. Trespass to recover damages for personal injuries against the owner of a building. Before Davis, J. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant.

Appeal, No. 367, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1902, No. 2846, on verdict for defendant in case of James H. Boring v. Union Traction Company. Trespass to recover damages for personal injuries. Before Davis, J. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for defendant. Verdict and judgment for defendant. Plaintiff appealed.

<p> Corporations—Officers—Compensation—Contract. </p> <p>A corporate officer cannot recover compensation for services rendered tho corporation unless there was an express contract of employment before the services were performed.</p> <p>In an action against a corporation to recover compensation for services it appeared that the plaintiff and other organizers of the corporation defendant, in order to conceal their connection with it placed their stock in the names or persons who had no interest in it but held it solely for them. The real owners of the stock had exclusive control of the affairs of the company. The plaintiff during the whole period for which he claimed compensation for services was an acting director and a member of the executive committee of the board of directors. The plaintiff claimed on a quantum meruit for services alleged to have been rendered as superintendent and manager. Held, that a verdict and judgment for defendant should be sustained.</p>

Appeal, No. 42, Jan. T., 1905, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1901, No. 1394, refusing to take off nonsuit in case of George Byrne by his next friend and father Peter Byrne and Peter Byrne in his own right v. City of Philadelphia. Trespass to recover damages for personal injuries. Before WlLTBANK, J. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeals—Delay—Penalty under Act of May 19, 1897, P. L. 67—Superior Court.</p> <p>The Supreme Court will not grant á motion to remit an appeal to the Superior Court where the motion was not made until after eight months from the time the appeal was taken with a session of the Superior Court intervening, and it appears that no assignments of error have been filed and no paper-book printed by the appellant. In such a case the court will quash the appeal, and impose the penalty provided by the Act of May 19, 1897, P. L. 67.</p>

Appeal, No. 261, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1900, No. 358, dismissing exceptions to referee’s report in case of Edmund P. Jennings v. William McK. Morris and Edwin J. Morris, trading as Morris & Co. Assumpsit for balance due on purchases and sales of cotton by plaintiff for defendants’ account.

<p>Appeal, No. 262, Jan. T., 1904, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1900, No. 281, dismissing exceptions to referee’s report in case of William McK. Morris and Edwin J. Morris, trading as Morris & Company v. Edmund P. Jennings.</p>

<p>Appeal, No. 234, Jan. T., 1903, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1902, No. 19, on verdict for defendant in case of Emily E. Taylor v. Caroline Beekley and M. F. Beekley.</p> <p>Ejectment for land in Honeybrook Township. Before Butleb, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

Appeal, No. 263, Jan. T., 1904, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1905, No. 1661-2 in mandamus proceedings in case of Commonwealth ex rel. Firemen’s Relief Association v. Frank S. Barker, city treasurer, and M. T. Lavelle, city clerk of the City of Scranton. Mandamus against a city treasurer and city clerk.

<p>Appeal, No. 22, Jan. T., 1905, by Commonwealth, from decree of O. C. Lackawanna Co., Series C., 607, sustaining appeal from collateral tax appraisement in estate of Frank J. Belcher, deceased.</p> <p>Appeal from collateral tax appraisement.</p> <p>From the record it appeared that testator died March 18, 1901, leaving no widow or children. By his will he gave his estate to his father and mother and brothers and sisters. The material portions of the will are quoted in the opinion of the Supreme Court.</p> <p>The appraisers taxed the life estate of the brothers and sisters at $4,195.76. This amount was paid by the executors, but a tax upon the remainders amounting to $3,138.11 was resisted.</p> <p>The executors appealed from the appraisement. It did not appear that they had any notice of the appraisement, and the appeals were taken after the expiration of thirty days from the date of filing the appraisement. The orphans’ court sustained the appeal.</p> <p>Error assigned was the decree of the orphans’ court.</p>

<p> Negligence—“Stop, look and listen ”—Grade crossings—Death—Nonsuit. </p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband, killed at a grade crossing of a public road, where the evidence shows beyond dispute that the deceased could not have stopped, looked and listened at any reasonably proper place before driving upon the track, it is immaterial what may have been the speed of the train, or what was the distance from the crossing at which the train might have been seen by the deceased, or that the sound of the locomotive whistle was liable to be obscured by a hedge; or whether or not the crossing was particularly dangerous. These principles are applicable to a case where the deceased hired the driver and buggy in which he was riding, and was not driving himself at the time of the accident.</p>

Appeal, No. 337, Jan. T., 1904, by Commonwealth, from decree of O. C. Berks Co., dismissing exceptions to adjudication in Estate of William L. DeBorbon, deceased. Exceptions to adjudication. The opinion of the Supreme Court states the case. jError assigned was in dismissing exceptions to adjudication.

<p>Appeal, No. 47, Jan. T., 1904, by plaintiff, from order of C. P. Munroe Co., Feb. T., 1901, No. 11, refusing to take off nonsuit in case of Richard F. Schwarz v. The Delaware, Lackawanna & Western Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s son and for the killing, of two horses and the destruction of a wagon. Before Ferris, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Appeal, No. 28, Jan. T., 1905, by Q. P. Abl, administrator, from decree of O. C. Franklin Co., dismissing exceptions to auditor’s report in Estate of Henderson G. Skiles, deceased.</p> <p>Exceptions to report of D. Watson Rowe, Esq., auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Lunacy—Weak-minded persons—Evidence—Act of June 19, 1901, P. L. 574.</p> <p>Before an estate can be taken from the owner and transferred to a guardian under the Act of June 19, 1901, P. L. 574, it must be established that the respondent is so weak in mind that he is unable to take care of his property, and in consequence thereof is liable to dissipate or lose the same and to become the victim of designing persons.</p> <p>The act is for the protection of the respondent and is not intended to prevent the owner of an estate from doing with his own what he pleases in order that his children may inherit a greater amount; nor is favoritism of one child over another evidence that the respondent is the victim of a designing person.</p> <p>Proceedings were instituted'under the Act of June 19, 1901, P. L. 574, against a woman seventy-six years old. The proceedings were instituted by five of the seven children of the respondent. Her estate consisted of about $50,’000) largely in bonds. The bonds were left in the hands óf a friend and neighbor who was the vice president of a bank. The latter had charge of them for twelve years. The income was deposited in bank and drawn'by checks signed by a daughter who lived, with her mother and took care of her. During respondent’s illness she encroached slightly on her principal, and she also presented to the daughter who lived with her a horse and harness costing $650. She also gave her daughter other presents amounting to about $2501 The total encroachment on capital was about $1,200. Respondent appeared in court and seemed to possess the mind and memory usually found in. persons of her age. A number of disinterested witnesses testified'to her capacity. Held, that the petition was properly dismissed.</p>

Appeal, No. 98, Jan. T., 1905, by defendant, from judgment of O. & T. Bradford Co., Dec. T., 1904, No. 11, of sentence of guilty of murder of the first degree in case of Commonwealth v. Bigler Johnson. Indictment for murder. The facts are stated in the opinion of the Supreme Court. Error assigned was the sentence of the court,

<p> Trusts and trustees—Accounts—Findings of fact—-Finality—Review. </p> <p>Where a master and the court below have passed upon the accounts of a trustee and have found from sufficient evidence that there were no errors or omissions in the accounts, the decree of the court below will not be disturbed.</p>

<p>Constitutional law—Title of act—Oleomargarine—Act of May 29, 1901, P. L. 327.</p> <p>The Act of May 29, 1901, P. L. 327, relating to the sale of oleomargarine is constitutional.</p>

<p>Appeal, No. 73, Jan. T., 1905, by plaintiff, from order of C. P. Clearfield Co., May T., 1904, No. 112, refusing to take off nonsuit in case of J. S. Fox v. Clear-field Wooden Ware Company.</p> <p>Trespass to recover damages for personal injuries. Before Smith, P. J.</p> <p>The opinion of tbe Supreme Court states the case.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 21, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 143, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and John Dunlap as defendant.</p>

<p>Appeal, No. 27, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 149, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and Emma Harbison et al., as defendants.</p>

<p>Appeal, No. 23, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 145, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and Solomon Dunmire as defendant.</p>

<p>Appeal, No. 36, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 158, on verdict for defendant in issue framed between W.'H. Stamey, J. C. King and E. D. Carter as plaintiffs and Della J. McCurdy et al., as defendants.</p>

<p>Appeal, No. 37, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 159, on verdict for defendants in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and A. McCreery as defendant.</p>

<p>Appeal, No. 42, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No 165, on verdict for defendant iii issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and A. S. Templeton as defendant.</p>

<p>Appeal, No. 46, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 171, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and Abram Bowman as defendant.</p>

<p>Appeal, No. 47, Oct. T., 1904, by plaintiffs, from judgment of C. P. Indiana Co., June T., 1903, No. 172, on verdict for defendant in issue framed between W. H. Stamey, J. C. King and E. D. Carter as plaintiffs and J. E. Waddle as defendant.</p>