Volume 212 — Pennsylvania State Reports

<p>Appeal, No. 214, Jan. T., 1904, by plaintiffs, from decree of C. P. No. 5, Phila. Co., June T., 1904, No. 1127, dismissing bill in equity in case of John Oughton, J. Claude Bedford, John Story Jenks, Walter C. Lippincott and Walter F. Hall v. Hugh Black, Jacob Wilde-more and Charles P. Donnelly, city commissioners.</p> <p>Bill in equity for an injunction.. Before Ralston, J.</p> <p>From the record it appeared that the complainants were eandidates for several offices in tbe city of Philadelphia. The bill prayed “ for an injunction to restrain the defendants from printing the ballots for the election to be held on November 8, 1904, in the county of Philadelphia in such form that ‘ there shall be printed on the extreme left of the ballot, and separated from the rest of the ballot by a space of at least one half inch, a list of the names of all the political parties or groups of nominees represented on such ballot, and presenting candidates to be voted for at such election,’ and so printed that ‘ a square, of sufficient size for the convenient insertion of a cross mark, shall be placed at the right of each party name or appellation.’ ”</p> <p>The defendants demurred to the bill..</p> <p>The court in an opinion by Ralston, J., sustained the demurrer and dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 90, Jan. T., 1904, by H. W. Palmer, John T. Richards and L. A. Watres, Executors of John Handley, deceased, from decree of O. C. Lackawanna Co., Series 692, sustaining exceptions to executor’s account in Estate of John Handley, deceased.</p> <p>Exceptions to executor’s account.</p> <p>From the record it appeared that the House of the Good Shepherd contended, that the executors erred in including in their general administration account an item of $12,000, received from the Delaware and Hudson Company for coal leased or sold to said company, for the reason that all the income from the testator’s coal, timber and mineral lands is specially bequeathed to St. Patrick’s Orphan Asylum, the House of the Good Shepherd and the city of Winchester, Virginia,, in the proportion of thirtjr-three and one third per centum to each, and is not subject to general administration expenses. •</p> <p>It was also contended that the executors erred in not distributing the item of $12,000 to these two institutions' and the city of Winchester.</p> <p>The court in an opinion by Sando, P. J., sustained the exceptions.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 54, Jan. T., 1905, by defendants, from order of C. P. Northampton Co., Dec. T., 1904, No. 26, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Jerome J. Bonstein, executor of Susanna Wagner v. Frank C. H. Schweyer, Albert S. Rabenold and W. II. Deshler.</p> <p>Assumpsit for balance of purchase money.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Schuyler, P. J., stated the facts to be as .follows:</p> <p>One John Wagner being seized of a certain farm died intestate, leaving to survive him a widow, Susanna, and three daughters to wit: Susanna, Eva and Rebecca. After his death, his widow and the two daughters, last named, executed a release to the remaining daughter, Susanna, of all their right, title and interest in and to said farm. On the same day Susanna, the daughter, executed two mortgages on the farm, one to the widow for $4,250, and the other to Eva for $2,883.34, both of which were entered for record simultaneously. As a next step the latter mortgage was foreclosed resulting in a sheriff’s sale of the farm to Susanna, the daughter. At the sheriff’s sale .a written notice was given to the sheriff by Eva and Rebecca as follows : “ The farm to-day to be sold by you is sold subject to a dower in favor of Susanna Wagner, the principal payable at death by Susanna Wagner, widow of John Wagner, deceased. The amount of the dower so charged is two-thirds of $4,250.” Subsequently the daughter Susanna having died in the interim, her executor, the present plaintiff, sold the farm to the defendants. A dispute having arisen, as foreshadowed by the above notice, it was agreed between the parties in interest that the purchasers might retain two-thirds of the $4,250, to' wit : $2,833.34 to await a “ decision of the court ” as to which of the claimants is entitled to the money. It is admitted that if the lien of the $4,250 mortgage was discharged by the sheriff’s sale, then the money belongs to the plaintiff, and that otherwise it belongs to Eva and Rebecca. The present action has been brought to recover the said $2,833.34 representing as it does the balance of the purchase money admitted to be due.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court..</p>

<p> Appeals—Assignments of errors—Answers to points—Exceptions. </p> <p>Assignments of error based on answers to points will not be considered whore’the record shows that no exceptions were taken to such answers.</p> <p>Married women—Principal and surety—Evidence—Act of June 8, 1893, P. L. 344.</p> <p>Where a married woman is sought to be held on an obligation as to which she claims that she is a surety for her husband, her liability is not determined alone by the form of the obligation,, if the object was to evade the disability created by the statute. The fact, not the form, will determine her liability.</p> <p>In an action against a married woman where it appears that the defendant agreed in consideration of the leasing of her property by plaintiff and the employment by him of her husband as superintendent of the business to be carried on in the premises, to become liable for one-half of plaintiff’s losses in such business, evidence is admissible to show that the liability of the defendant was assumed on the importunity and solely at the request and for the benefit of defendant’s husband, and without any negotiations between the plaintiff and the defendant.</p>

<p> Negligence—Railroads—Passengers—Getting on train. </p> <p>It is the duty of the crew of a passenger train, the conductor and brakemen having it in charge, to see that all passengers boarding it, or manifestly intending to board it, are safely on it before the signal is given to the engineer to start. Failure to do so is negligence, and if a passenger is-thrown from the step or platform of a car by the starting of it before he is safely on it, the. railroad company is liable for the injuries sustained.</p> <p>While it is the duty of those having a train in charge to sée that it is not started until all passengers are safely on it, they are not to be regarded as careless, and their company through them, negligent, if they give the signal to start after everyone reasonably to be regarded as a passenger is safely on the train and subsequently, one not only not seen by them, and, even if seen, not reasonably to have been regarded as an intending passenger, steps on the platform just as the train starts and is thrown off and injured.</p>

<p> Basement—Right of way—Alley. </p> <p>An easement of a right of way over another’s property is appurtenant to the particular piece or lot of land of the dominant owner with which it is granted and is not personal to the owner authorizing him to use it in connection with other real estate he may own abutting on the right of way:</p> <p>Where the owners of lots abutting on an alley have the right to use the alley “as and for a passageway and water course,” the owner of one of the lots who is also the owner of a theater situated on the other side of the alley, has no right against the objection of a lot owner having an easement in the alley to erect a fire escape consisting of two balconies on the wall of the theater overhanging the alley opposite the lot of the objecting owner.</p> <p>Alley—Obstruction—•Tenant for 999 years.</p> <p>A tenant of land for 999 years has a right while in possession of the premises to protect his easement in an alley on the premises against third persons by an action at law or a suit in equity.</p> <p> A lley—Basement—Obstruction—Fire escape. </p> <p>The owner of an easement in an alley for a passageway and water course may enjoin the owner of the land on the opposite side of the alley who has no easement therein, from erecting a fire escape on his wall so as to overhang the alley, although the use of the easement is not materially impaired.</p>

<p> Mortgage—Payment—Keeping mortgage alive—Future advances—Creditors—Notice. </p> <p>The parties to a mortgage, as between themselves may, by agreement, continue its lien notwithstanding payment in full has been made by the debtor; and after such payment, if future advances are made, even in excess of the original loan for which the mortgage was given, subsequent creditors with notice of the agreement are bound by it.</p> <p>Notwithstanding the recording acts an unrecorded mortgage is good as against the mortgagor, or anyone claiming under him with notice.</p>

<p>Appeal, No. 238, Jan. T., 1904, by defendant, from order of C. P. Luzerne Co., Oct. T., 1902, No. 17, discharging rule to open judgment in case of Rush Trescott v. The Co-operative Building Bank.</p> <p>Rule to open judgment.</p> <p>The court discharged the rule.</p> <p>Errors assigned were as follows:</p> <p>1. The court below erred in discharging the rule to open the judgment.</p> <p>2. The court below erred in discharging the rule to open the judgment placed on the argument list in violation of the rule of court providing for ten days’ notice to opposing counsel of- ordering a case on said list after it was made up.</p> <p>8. The court below erred in discharging the rule to reinstate the rule to open the judgment.</p> <p>4. The court below erred in discharging the rule to strike off the judgment.</p> <p>5. The court below erred in holding the defendant guilty of laches in applying for the rule to strike off the judgment, where it was averred and not denied by the plaintiff that the defendant had made diligent efforts to have depositions taken upon the rule to open the judgment, which had been promptly taken, but that in consequence of the plaintiff’s deception and action in violation of the rules of court, the defendant and its counsel did not become aware that the rule was on an argument list and discharged until nine months later, and where the defendant promptly moved to reinstate the rule to open, and whereupon the court’s refusal to reinstate the rule,. the defendant promptly took the rule to strike off the judgment.</p> <p>6. The court below erred in holding that the defendant in moving to open the judgment had waived all irregularities where among the reasons assigned in support of the rule to open, irregularities in the entry of the judgment were set up which are apparent upon the face of the record.</p>

<p>Appeal, No. 249, Jan. T., 1904, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1902, No. 818, refusing to take off nonsuit in case of Thomas H. Smith, trustee, v. J. J. Myers and Michael Smith.</p> <p>Ejectment for land in Nescopeck township. Before Ferris, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 269, Jan. T. 1904, by defendant, from judgment of C. P. Luzerne Co., May T., 1902, No. 42, on verdict for plaintiff in case of Mary A. McGroarty v. Lehigh Valley Coal Company.</p> <p>Trespass to recover damages for injuries to land caused by flooding from a coal washery. Before Fereis, J.</p> <p>The plaintiff called a number of witnesses as to value, who qualified by stating that they were familiar with the value of lands in the neighborhood, knew the particular land in question, of the character of the injury done to it, and of its availability for building purposes.</p> <p>Verdict and judgment for plaintiff for $1,781.81. Defendant appealed.</p> <p>.Errors assigned were various rulings on evidence and instructions.</p>

<p> Negligence—Mines—Master and servant—Evidence—Presumption. </p> <p>In an action against a coal mining company to recover damages for the death of plaintiff’s husband, where the substance of the testimony is that the deceased was found just at the mine door with injuries on his body that seemed to indicate that he had been crushed, the plaintiff cannot prevail on a theory which while consistent with defendant’s negligence does not exclude the contributozy negligence of the deceased.</p> <p>The doctrine res ipsa loquitur, dangerous and uncertain at best, is never to be applied except whei-e it not only supports the conclusion contended for, but also reasonably excludes eveiy other.</p> <p>Where a coal miner is found dead at the mouth of the mine, and there is no evidence as to the cause of his death, the presumption that the deceased was innocent of negligence, is equally balanced by the same presumption as to his employer.</p> <p>Mines and mining—Ventilation—Negligence—Acts of June 2, 1891, P. L. 176 and April 20, 1899, P. L. 65.</p> <p>The provisions of the Act of June 2,1891, P. L. 176, as amended by the Act of April 20,1899, P. L. 65 relating to an attendant at mine doors, have reference solely to ventilation, and not to the safety of persons using the gangways.</p>

Appeal, No. 88, Jan. T., 1905, by-Antonia Kern, from decree of O. C. Luzerne Co., dismissing appeal from Register of Wills in Estate of Leonard Kern, deceased. Appeal from register of wills. Before Fbeas, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was the decree of the court.

Appeal, No. 32, Jan. T:, 1905, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1902, No. 190, on verdict for defendant in case of Joseph Mitchell v. Frederick E. Mitchell, Polly Mitchell et al. Ejectment for land in the city of Wilkesbarre. Before Halsey, J. At the trial it appeared that Frederick E. Mitchell was indebted to his brother, Joseph Mitchell, in the sum of 1100.

<p>Appeal, No. 56, Jan. T., 1905, by plaintiff, from judgment of C. P. Columbia Co., Sept. T., 1905, No. 4, for defendant on case stated in suit of Michael Madden v. Lehigh Valley Coal Company.</p> <p>Case stated in action of trespass for failure to afford surface support. Before Little, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering judgment for defendant on the case stated.</p>

Appeal, No. 64, Jan. T., 1905, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1903, No. 3, on bill in equity in case of Delaware, Lackawanna & Western Railroad Company v. Charles D. Foster. Bill in equity for an interpleader and an injunction. Before Ferris, J. ■ From the record it appeared that the plaintiff was the lessee of coal under a lease in which one Sarah Horton had an interest.

Appeal, No. 131 Jan. T., 1904, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1900, No. 751, on bill in equity in case of Provident Life & Trust Company v. J. Wesley Durham and H. Gilbert Cassidy, assessors, and Simon Gratz, Rinaldo A. Lukens and Isaac H. Shields, members of the board of revision of taxes. Bill in equity for an injunction.

<p>Appeal, No. 328, Jan. T., 1904, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 765, refusing to take off nonsuit, in case of Stuart Martin by his father John Martin and the said John Martin in his own right v. Edwin H. Vare and George A. Vare, copartners, trading as Vare Brothers.</p> <p>Trespass to recover damages for personal injuries. Before Willson, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>■ Error assigned was refusal to take off nonsuit.</p>

<p> Negligence—Fall of stone from building—Contractor—Independent contractor—Evidence—Contributory negligence. </p> <p>In an action to recover damages for the death of plaintiff’s husband caused by the fall of a window sill from a building in the course of construction, it appeared that the owner of the building, the defendant, had made a contract with a contractor for the erection of the building, and the contractor in turn made a subcontract for the brickwork. One of the workmen on the brickwork negligently pushed the sill so that it fell onto the pavement below, killing the plaintiff’s husband. It appeared that some time prior to the accident the contractor had thrown up the contract, and that the owner, desiring to retain him upon the work, employed him as superintendent at weekly wages. The owner thereafter was constantly at the work, directing its progress and employing men. It also appeared that on two occasions before the accident he had refused the workmen permission to coverv the sidewalk with a shed’. There was evidence that the deceased was standing on the pavement looking at the building when the sill fell. The deceased lived only five or six doors away from the place of the accident. Held, that the question of the owner’s negligence and the deceased’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p> <p>■ Negligence—Building operation—Shed to protect pavement—Municipal ordinance.</p> <p>In an action for death'caused by the fall of a stone from a building in construction, without a shed to protect the pavement, it is not error to admit in evidence a municipal ordinance requiring sheds to be erected where building operations are going on, if the court charges that if the jury should find that a reasonably prudent person, under the circumstances, would not have erected a shed over the pavement, or given warning of the danger from the erection of the building to those on the pavement, the defendant was not negligent, notwithstanding the ordinance.</p>

<p>Appeal, No. 24, Jan. T., 1905, by defendant, from judgment of C. P. Lebanon Co., June T., 1904, No. 255, for plaintiff on ease stated in suit of John Adam Beckley y. L. Raymond Riegert.</p> <p>Case stated to determine marketability of title to real estate.</p> <p>From the case stated it appeared that plaintiff was in possession of a farm in South Lebanon township containing fifty acres devised to him by the will of his father, John Beckley. The material portion of the will is quoted in the opinion of the Supreme Court. Plaintiff entered into an agreement to sell the land to the defendant, but the defendant on examination of the title refused the deed tendered to him.</p> <p>The court entered judgment for plaintiff on the case stated. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

Appeal, No. 40, Jan. T., 1905, by plaintiff, from judgment of C. P. Berks Co., April T., 1908, No. 7, on verdict for defendants in case of Adam .Darius Richards v. William Bentz, Levi D. Kalbach and Henry P. Obold. Ejectment for land in Jefferson township. Before ErmenTROUT, P. J. From the record it appeared that Jacob Haag devised the land in question to his grandson, Adam H. Potteiger. The material portions of his will are quoted in the opinion of the Supreme Court.

<p>Appeal, No. 256, Jan. T., 1904, by plaintiff from order of C. P. Lycoming Co., Sept. T., 1902, No. 327, making absolute rule to open judgment in case of The Fidelity & Casualty Company of New York v. Err H. Harder and Henry J. Shadle.</p> <p>Rule to open judgment. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule to open judgment.</p>

<p> Equity—Injunction—Preliminary injunction—Water—Pollution of stream. </p> <p>A preliminary injunction will be granted against a coal company where on the hearing it is developed that the defendant was pumping impure water which had accumulated in a coal mine into a stream where it polluted •the supply of drinking water for more than 30,000 people, when by the construction of a flume at trifling expense the mine water could be discharged into another water course where it would injure no one.</p>

Appeal, No. 53, Jan. T. 1905, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1902, No. 282, sustaining demurrer to statement in case of Bernard Corr v. City of Philadelphia. Ejectment for land in the thirty-eighth ward of the city of Philadelphia. The statement averred that the land had been appropriated, in 1884, by the city for a reservoir.

Appeal, No. 82, Jan. T., 1905, by-plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1904, No. 4757, on verdict for defendant in case of William J. Long, a minor, by his next friend and mother, Catharine Long, v. City of Philadelphia. Trespass to .recover damages for personal injuries.

<p>Appeal, No. 193, Jan. T., 1904, by defendant, from order of C. P. Luzerne Co., Oct. T., 1902, No. 809, dismissing exceptions to report of referee in case of George Lazarus et al. v. Michael W. Morris.</p> <p>Ejectment for land in Hanover Township.</p> <p>Exceptions to report of Felix Ansart, Esq., referee.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The referee reported in favor of the plaintiff.</p> <p>Exceptions to referee’s report were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to report of referee.</p>

<p>Appeal, No. 216, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 211, on verdict for plaintiff in case of Elmer E. Wagner and Nellie Wagner v. Lehigh Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Lynch, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff Elmer E. Wagner for $2,000 and for Nellie Wagner $4,000. Defendant appealed.</p> <p>Errors assigned were various instructions, particularly in refusing binding instructions for defendant.</p>

<p> Will—Codicil—Execution—Publication—Evidence. </p> <p>Testator having by his will devised a house and lot to a charity, subsequently wrote to his attorney as follows: “I would like to add a codicil to my will as follows: I leave the house and lot .... to E. (his housekeeper). Make it as strong as possible, as I wish her to have them. Will you have it done as soon as possible, and let me sign it at once.” This letter was signed by the testator. At the time the letter was written testator made a copy of it and enclosed it in an envelope on which he indorsed the words “Copy of codicil to my will.” The endorsement on the envelope was not signed by the decedent. The attorney never prepared the codicil, and refused to do so. E. testified that she saw the testator put away the copy of the letter in his desk, calling her attention to the compartment in which he placed it. That after the attorney’s refusal to make the codicil, he said to E, “It does not make any difference, you have that paper and that is all right;” that she said to testator “put that away carefully, it may be good to me some day.” To which he replied: “Yes, I will, that is all right.” The testimony of E. was unsupported by that of any other witness. Held, that the letter to the attorney with the endorsement on the envelope and E.’s testimony were not sufficient taken together to establish a valid codicil.</p> <p>Scott’s Estate, 147 Pa. 89, and Harrison’s Estate, 196 Pa. 576, distinguished.</p>

<p>Railroads—Negligence—“Stop, look and listen”—Signals—Evidence— Charge.</p> <p>In a grade crossing accident case where the plaintiff and two other witnesses testify that no whistle was blown nor bell rung, and eight or nine witnesses for the defendant testify that a whistle was blown and bell rung at the proper places before the train approached the crossing, it is the duty of the court to call the attention of the jury to the kind and character of the testimony offered so that intelligent consideration may be given and correct conclusion may be reached.. If the charge as a whole meets this requirement, and no specific request for instructions on this subject is asked for, the court cannot be convicted of error.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing, it appeared that plaintiff drove towards the crossing and stopped at the usual place and looked up and down the tracks while a freight train was passing. He waited until this train had passed the crossing upwards of 300 feet. He then stood up in his wagon and saw a freight train about three-fourths of a mile away, coming in the same direction and on the same track as the one that had just passed. He also saw a work train of five or six flat cars standing on the second switch about thirty feet to the south side of the crossing. He looked up and down the track before starting his team, but his general view was obstructed by the freight train which had slowed down, and to some extent by the work train and the breaker. He did not see the approaching passenger train which struck him, on the north bound main track, until it was about 100 feet distant from the crossing. He could not then save himself and extricate his team from the impending danger. Held, that the ease was for the jury gnd that a verdict and judgment for plaintiff should be sustained,</p> <p>Where there is doubt as to the inference to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care required varies with the circumstances, the question of negligence is necessarily for the jury.</p>

<p>Appeal, No. 288, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Jan. T., 1904, No. 212, on verdict for plaintiff in case of Annie Levisou v. George K. Davis.</p> <p>AssuTnpsit against a husband for the cost of wearing apparel furnished his wife. Before Halsey, J.</p> <p>From the record it appeared that plaintiff claimed $2,243.50 for expensive clothing and millinery furnished Mrs. Davis during the month of October, 1902. It appeared that there .had been a previous course of dealing between the parties, and that the defendant had paid the plaintiff $1,600 for expensive clothing furnished his wife from March 22, to July 18, 1902. The court admitted under objection and exceptions the following letter:</p> <p>“ Bar Harbor, Me., Aug. 11.</p> <p>“ Dear Miss Levison : Yours received. Please send your bill to Mrs. Davis at East Hampton, Long Island, N. Y., care of Mrs. James Gallatin. Address communications to her, as she is keeping her own accounts.</p> <p>“ Yours G. K. Davis.”</p> <p>Verdict and judgment for plaintiff for $2,420.19. Defend-, ant appealed.</p> <p>Errors assigned were (2) in refusing binding instructions for defendant; (4-6) rulings on evidence.</p>

<p>Appeal, No. 108, Jan. T., 1905, by plaintiff, from judgment of C. P. Luzerne Co., Feb. T., 1904, No. 53, on verdict for defendant in case of Bridget Garland v. City of Wilkes-Barre.</p> <p>Trespass to recover damages for personal injuries. Before Wheaton, J.</p> <p>At the trial it appeared that on January 9, 1904, at about half-past nine in the evening, plaintiff fell on the ice and snow at a public crossing in the city of Wilkes-Barre. The evidence as to the condition of the street is set forth 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. 290, Jan. T., 1904, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1899, No. 304, on verdict for defendant in case of Mary Blotz v. Le-high Valley Railroad Company. Trespass to recover damages for death of plaintiff’s son. Before Febeis, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

<p>Appeal, No. 2, Jan. T. 1905, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1903, No. 15, on verdict for plaintiff in case of The William H. Moudy Manufacturing Company v. Pennsylvania Railroad Company.</p> <p>■ Appeal from report of viewers. Before Woods, P. J.</p> <p>The court charged in part as follows:</p> <p>[In the case before you, the Pennsylvania Railroad Company desiring additional ground, proceeded under the law to condemn and take some of the ground of the William H. Moudy Manufacturing Company, the plaintiff in this case, and it now becomes your duty, gentlemen of the jury, to say how much this plaintiff is entitled to receive from the said.railroad company for the damages, which it has sustained by reason of this taking.] [1]</p> <p>■ It is not denied that the said defendant company has taken ■some of the land of the plaintiff company, but it is contended .by. the plaintiff that there is a strip of thirty feet by 300 feet which has been taken by the defendant company, but on the other hand the defendant company contends that part of the land taken was a public street, which would reduce the land taken from the plaintiff company by the defendant company to a strip twenty feet wide by 300 feet in length. Now, gentlemen of the jury, if you'believe from the evidence that the .borough of Mount Union adopted the plan, which has been submitted to your view for consideration, then we say to you, in arriving at your verdict, you should only consider the strip twenty feet in width by 300 feet long. The plaintiff company has produced a number of witnesses who testify that the damages sustained by reason of this taking range from §8,000 to §20,000. The plaintiff, by William H. Moudy himself, claims the damages amount to §15,000; other witnesses say §8,000 and still others range between that amount and §20,000.</p> <p>[It is also in evidence by William H. Moudy himself that he paid §1,401 for the whole of the land, including the part taken, subject to a mortgage amounting with interest to §12,090, making §13,491 paid for this land. Now, gentlemenof the jury, in arriving at your verdict you must consider this sale in connection with the other evidence.] [2]</p> <p>The plaintiff company on the other hand have produced witnesses who state that the damages sustained by the plaintiff range from §500 to §5,000. The question is a matter of - fact for you to determine from the preponderance of the evidence, and by that I do not mean the evidence of the party who calls the greater number of witnesses, but the evidence which appeals to you as most fair and reasonable.</p> <p>[Now, gentlemen of the jury, in making up your verdict, as to how much damages the plaintiff company has sustained, you must consider the value of the land taken; and secondly, what disadvantages has the plaintiff sustained by reason of the taking, what disadvantages have been cast upon the plaintiff and also what advantages has he gained. These are matters of fact to be considered by you in determining this case.] [3]</p> <p>[There has been a great deal of stress laid on this mine roller saw. You must bear in mind that the defendant company does not deprive the plaintiff company of the use of this saw; it is still the property of the plaintiff company and can be used by it. You must consider all the damage, which has been done to the plaintiff company in making it hard to operate said saw and other machinery in said building. The machinery is still there, and, as I said, it still belongs to the plaintiff company to use in any way they see fit. What inconvenience would the plaintiff be put to in operating this machinery in the place where it is now located or in some other way ? As I said before they have the machinery and you should not allow plaintiff the full value of the machinery, simply because it cannot be operated in the place it now is.] [4]</p> <p>Verdict and judgment for plaintiff for $6,229.16. Defendant appealed.</p> <p>Errors assigned among others, were (1-4) above instruc- . tions, quoting them.</p>

<p> Mortgages—Record—Judicial sale—Test of priority. </p> <p>In determining the priority of liens against a property sold at a judicial sale, the only test of priority is the record as it stands at the time of the sale. This furnishes the only safe guide to the bidder at the sale.</p> <p>The liens against a property sold at a master’s sale in partition were (1) a mortgage given by a person who was then sole owner, with nothing on its face to indicate that it was an advance money mortgage; (2) mechanics’ liens and (3) a second mortgage. The last record date of the mechanics’ .'lien was long after the date of the recording of the first mortgage. The owner of the first mortgage claimed to show by evidence outside the record that no money was paid to the mortgagor until after the date of the commencement of the work on the ground, and that the mechanics’ lien was ■therefore prior to the mortgage, and that the mortgage was divested by the sale. The owner of the first mortgage bought in the property at the sale and claimed to share in the fund. Held, (1) that the evidence, dehors the'record was inadmissible; (2) that the mortgage was prior in lien to'the mechanics’ lien, and therefore not' divested.</p>

<p>Appeal, No. 199, Jan. T., 1904, by M. "W". Lipper, from decree of C. P. No. 2, Pbila. Co., March T., 1899, No. 145, on bill in equity in case of Richard Y. Cook and George H. Earle, Jr., Assignees, for the benefit of creditors of the Chestnut Street Trust and Saving Fund Company v. Richard L. Carpenter and forty others including M. W. Lipper, Stockholders.</p> <p>Bill in equity to enforce stock subscriptions. Before Sulzberger, P. J.</p> <p>The answer to the bill averred that the company incorporated on June 8, 1888, started business with paid in capital of fifty per cent of its authorized capital, and that for upwards of six years thereafter the company remained in a sound financial condition, and there was no necessity for any additional capital ; that there was no call or demand from July 1, 1888, until March 25,1898, when a suit at law (subsequently discontinued) was instituted. The answer set up as defenses : (a) no equitable jurisdiction, and (b) statute of limitations.</p> <p>The court entered a decree in favor of the plaintiffs.</p> <p>Error assigned was the decree of the court.</p>

<p> Corporations—Transfer of stock—Liability for unpaid stock subscription. </p> <p>Where an act under which a corporation is chartered provides that shares shall be transferable on the books of the company “subject to such regulations as the by-laws may prescribe,” and the by-laws provide that no transfer shall be made while the books are closed, a stockholder who sells his stock at public auction while the books are closed, and by reason of the closing of the books does not get the stock transferred to the purchaser, the insolvency of the company happening in the meantime, is not relieved from liability for the unpaid amount due on the original subscription to the stock. The principle of the decisions is that the transfer must be complete and in accordance with the by-laws of the corporation to fix the liability of the transferee and release the transferror.</p>

<p> Sheriff’s sale—Resale—Defaulting bidder—Measure of damages—Damages. </p> <p>A defaulting bidder is liable for a loss occasioned by his failure to comply with the terms of a sheriff’s sale, and the measure of damages is the difference of price on a resale fairly conducted upon terms not less advantageous to the purchaser than the first.</p> <p>A defaulting purchaser at a sheriff’s sale is not liable to respond in damages for loss on resale of the property if it appears that under the first sale he would have acquired a more valuable title than that which passed to the purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the resale; and it is immaterial whether a change in the terms is by act of the sheriff, the plaintiff, or the court. Singerly v. Swain’s Admrs., 33 Pa. 102, distinguished.</p> <p>Such cases belong to the class in which the certainty of the legal rule fixing the rights of parties is more important than the theoretical perfection of the rule itself.</p>

<p>Appeal, No. 55, Jan. T., 1905, by William F. Deakyne, from order of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 2187, dismissing exceptions to auditor’s report in case of Joseph W. Pepper, Successor of John W. Pepper and H. H. Pigott, Guardians of the Estate of Minor Children of J. Howard Gibson, Deceased, v. William F. Deakyne, Mortgagor and the Arlington Hotel and Improvement Company, Real Owner.</p>

<p>Appeal, No. 274, Jan. T. 1904, by plaintiff, from order of C. P. No. 3. Phila. Co., March T., 1904, No. 1881, dismissing exceptions to auditor’s report in case of James L. Miles, High Sheriff of Philadelphia County, v. Anna R. Bradley.</p>

Appeal, No. 204, Jan. T., 1904, by-plaintiff, from order of C. P. Schuylkill Co., May T., 1908, No. 300, refusing to take off nons-uit in case of Charles E. Christ, Trustee of the Estate of Emma C. Kintz, trading as Kintz & Co., v. Jacob Zehner. Assumpsit to recover money alleged to have been derived from an unlawful preference. Before Marr, J. The facts are stated in the opinion of the Supreme Court.

<p> Mines and mining—Royalties—Change of methods—Accounting—Lease. </p> <p>Where on a bill in equity for an accounting of royalties under a coal lease, it appears that by a change in the machinery and methods of preparing coal used at the time of the lease and for some years thereafter, the amount of larger royalty coal was greatly diminished and the amount of waste and smaller sizes of coal, paying a lower rental, was largely increased, it is imperative upon the court below to find as a fact the proportion of the mine product which was royalty coal under the former as well as the later methods of preparing the coal. Absence of such finding is ground for reversing the decree. The evidence taken in the case and the decision in Wright v. Warrior Run Coal Company, 182 Pa. 514, establish that such a finding is possible.</p> <p>Mitchell, C. J., and Potter, J., dissent.</p>

<p>Appeal, No. 258, Jan. T., 1904, by plaintiff, from order of C. P. Luzerne Co., Dec. T., 1897, No. 484, refusing to take off nonsuit in case of Charles R. Holland v. Lidclon Flick and R. J. Flick.</p> <p>Trespass to recover damages for libel. Before Lynch, P. J.</p> <p>At the trial it appeared that the libelous article was as follows:</p> <p>“ Brave Men These.</p> <p>“ Held Up by Highwaymen on Carey Avenue, Monday Morning.</p> <p>“It is seldom that highwaymen attempt these dastardly acts in. the precincts of this well protected city, yet if the story of Detective Charles Holland, George Dewey and the well-known actor, Bart W. Wallace, is to be believed, they did invade Carey avenue early Monday morning in search of game, Messrs. Holland, Dewey and Wallace being detained in this city by important business until long after the street cars had ceased to run Sunday night. As they jogged along over the asphalted streets Mr. Holland, the terror of the Beach Haven evildoers, related startling tales of adventure which he had participated in along Hunlock’s Creek and valorous arrests of desperate criminals he had made on the Delaware, Lackawanna & Western. While in the midst of one of these thrilling recitals the sudden 'cry of ‘ halt ’ rang out from the roadside and the cab stopped short. Detective Holland was the first to divine the meaning of the order and without waste of time he industriously began to hide himself uiider the seat, but owing to the fact that he is a large man and the hiding place was so small he had squeezed only part way in, when he stuck fast and could move neither way. In the meantime Wallace had struck the theatrical attitude of retreat and Dewey, with upraised hands, was left alone to face the music. Rapidly the bandits plundered the pockets of the trio, and finishing in disgust pronounced the whole outfit ‘busted.’ They were allowed to pursue their way in peace towards Plymouth, the journey being taken up in extricating Holland from his uncomfortable situation.”</p> <p>The court entered a nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsúit.</p>

Appeal, No. 326, Jan. T., 1904, by defendant, from decree of C. P. Luzerne Co., March T., 1896, No. 2, on bill in equity in case of John D. Hoyt et al. v. The Kingston Coal Co. Bill in equity for an account of coal royalties. Before Halsey, J. The opinion of the Supreme Court states the facts. Errors assigned were various findings quoted in the opinion of the Supreme Court, and the decree for an account.

Appeal, No. 265, Jan. T., 1904, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1903, No. 12, on verdict for plaintiff in case of I. N. Foust v. Pennsylvania Railroad Company. Trespass to recover damages for injuries to a mill property. Before Woods, P. J. The facts are stated in the opinion of the Supreme Court. Defendant presented the following points: 7. That under all the evidence in the case their verdict must be for the defendant. Answer: Refused. [1] 4.

<p>Appeal, No. 303, Jan. T., 1904, by defendant, from decree of C. P. McKean Co., June T., 1904, No. 2, on bill in equity in ease of Hiram S. Stickles, Jacob Stickles, Lydia Smith, Jay Stickles and Adelbert E. Stickles v. G. O. Oviattetal.</p> <p>Bill in equity for partition. Before Bouton, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree awarding partition.</p>

<p> Equity jurisdiction—Remedy at law—Fraud. </p> <p>Equity jurisdiction will not attach, where there is a full, complete and adequate remedy at law; and this is the case even where fraud is alleged.</p> <p>A creditor’s bill cannot be maintained to declare fraudulent deeds of property executed by a debtor to a third person, for a reconveyance of the same to the debtor, and for an injunction to restrain the debtor from executing conveyance of the property to third parties, or in any manner incumbering the same until the claims of the creditor were established. In such a case the creditor has a full, complete and adequate remedy at law by a sheriff’s sale on an execution, a purchase of the title followed by an action of ejectment.</p>

<p> Negligence—Railroads—Grade crossings—“Stop, look and listen”—Case for fury. </p> <p>In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing, the case is for the jury where the evidence tends to show that the plaintiff approached the crossing riding in an open carriage drawn by two horses; that he was familiar with the crossing, and knew that a train was about due; that he stopped when the horses’ heads were ten or twelve feet from the tracks, and looked and listened for a train; that there was no other place from which he could have seen the train at a greater distance, and this was admittedly the best place at which to stop; that neither seeing nor hearing the train he concluded that it had passed the crossing and drove on without looking again until his horses were on the track; and that his horses were struck by a train running backwards, of the approach of which no signal was given.</p>

<p>Appeal, No. 60, Jan. T., 1905, by plaintiff, from order of C. P. Bedford Co., Sept. T., 1904, No. 273, refusing mandamus in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, upon the petition of D. C. Cypher, M. W. Ford and Daniel Cypher v. S. S. Baker, Robert 0. Smith and George H. Appleman, Commissioners of Bedford County.</p> <p>Petition for mandamus. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in refusing writ of mandamus.</p>

<p>Appeal, No. 164, Jan. T., 1904, by Samuel Sinclair, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Rebecca Plankinton, deceased.</p> <p>Exceptions to report of A. P. Reid, Esq., auditor.</p> <p>In addition to the facts stated in the opinion of the Supreme Court it appeared that Samuel Sinclair was a nephew of Rebecca Plankinton, and that for many years he had attended to her business affairs. Sinclair claimed that the mortgage had been assigned to him by the decedent as a gift and not as compensation for services. The auditor surcharged Samuel Sinclair as executor with the amount of the mortgage.</p> <p>Exceptions to the auditor’s report were dismissed by the court.</p> <p>. Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 349, Jan. T., 1904, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1902, No. 2265, on verdict for plaintiff in case of National Bank of Brunswick v. Sixth National Bank.</p> <p>Assumpsit on a promise to accept drafts drawn on a third person. Before Finletteb, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned among others were in admitting in evidence letters of June 17, 1902 and various drafts, in refusing binding instructions for defendant, and in entering judgment for the plaintiff on (he point of law reserved.</p>

Appeal, No. 94, Jan. T., 1905, by defendant, from judgment of C. P. York Co., Aug. T., 1904, No. 112, on verdict for plaintiff in case of Edward C. Peeling v. The County of York. Appeal from report of county auditors.

Appeal, No. 244, Jan. T., 1904, by plaintiffs, from decree of C. P. No. 1, Phila. Co., Sept. T., 1903, No. 4065, dismissing bill in equity in case of John J. McCloskey and Louis A. Levin v. A. Loudon Snowden et al. Bill in equity for discovery, account and payment.

<p> Negligence—Mastea' and servant—Railroad siding—Signals—Contributory negligence. </p> <p>In an action against a steel company to recover damages for the death of plaintiff’s husband in a chipping shop of the defendant, it appeared that a railroad siding ran through the chipping shop, on which cars were run and loaded. The width of the shop was less than the length of two cars. The siding curved sharply from the entrance to the building, and when cars were standing on it in the chipping shop, cars moving towards the building from the outside were invisible to those in the inside. When two ears were run on the siding the end of the first projected through'a doorway opposite the entrance, and the second was partly outside of the entrance. Unless the two cars on the siding in the chipping shop were sepa^ rated, access across it from one part of the building to another was cut off. That this access might not be interfered with by the cars standing on the siding, it had been the custom from the time the shop was constructed to separate them, leaving a space between them of from two to three feet, to be used as a passageway by the employees. There was testimony to show that this space was kept open by direction of the man in charge of the chipping shop, and was constantly used by the many employees of the defendant. The deceased in passing through the opening was caught between the cars and killed. There was testimony that the eoupling engine approached with no signal by bell or whistle, which might have been heard above the noise of the shop. A witness who saw the deceased approaching the tracks testified that when within four feet of them he stopped. Held, that the question of the defendant’s negligence and the deceased’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p> Municipalities—Ordinances—Regulation of bill boards—Equity. </p> <p>A municipality has no power to enact an ordinance forbidding citizens to erect billboards on their own property merely because such boards are unsightly, or may create a nuisance. Any citizen against whom such an ordinance is sought to be enforced is entitled to the protecton of a court of equity.</p> <p>Under the police powers of a municipality it may prohibit the erection of insecure billboards within its limits, prevent the exhibition from secure ones of immoral or indecent advertisements or pictures, and protect the community from any actual nuisance resulting from the use of them, but it can go no further.</p> <p>All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health, or comfort of the public, but a limitation without reason or necessity cannot be enforced.</p>

Appeal, No. 41, Oct. T., 1905, by Martha A. Shirley, from order of C. P. Armstrong Co., Dec. T., 1904, No. 169, directing issue of peremptory mandamus in case of John W. Miller v. Harry B. Henderson, register of wills. Petition for mandamus. Before Patton, P. J. Tlie facts are stated in the opinion of the Supreme Court. Error assigned was order awarding mandamus.

<p> Executors and administrators—Joint executors—Trust company—Renunciation. </p> <p>A trust company which has been appointed an executor of a will jointly with one of the children of the testatrix, is justified in refusing a request made to it by the testatrix’s children and residuaiy legatees to renounce its executorship.</p> <p>Where a son of testatrix and a trust company have been appointed executors, and the son has proceeded with the appraisement and distribution of the estate to the entire exclusion of his coexecutor, the trust company may compel the son to file an account, not only that it may be protected against citation from unknown creditors, but also that it may have an opportunity to present its claim against the estate for commissions, expenses incurred and counsel fees. Wickersham’s App., 64 Pa. 67, distinguished.</p>

Appeal, No. 248, Jau. T., 1904, by plaintiff, from judgment of O. P. Lancaster Co., Jan. T., 1902, No. 6, on verdict for defendant in case of Anna Grossman v. Mary Forney Thunder, executrix of Susan C. Forney, deceased. Assumpsit for services.

<p> Evidence—Burden of proof—Pleading. </p> <p>A party, whether plaintiff or defendant, asserting the affirmative of a question in dispute assumes the burden of proving it. And the rule is equally imperative whether the proof required be of affirmative or negative matter. Whenever whether in plea, or replication, or rejoinder, or surrejoinder, an issue of fact is reached, then whether the party claiming the judgment of the court asserts an affirmative or negative proposition, he must make good his assertions. On him lies the burden of proof.</p> <p>On the trial of a plea to the jurisdiction of the court where the plea sets up an alleged defective service of the summons, the burden is on the defendant to establish the facts averred in the plea. If thei'e is no evidence to impeach the correctness of the return it is error to give binding instructions for defendant.</p> <p>Pleading—Practice, C. P.—Plea to the jurisdiction—Defective service— Delay—W aiver—A ppearance.</p> <p>Where a defendant files a plea to the jurisdiction of the court it is his duty to have it enforced promptly. If the defendant fails to do so, or if he takes any steps looking to a trial of the cause on the merits he must be held to have waived the right to insist upon his plea; and if he has entered a conditional appearance, such appearance will become general.</p> <p>. Practice, C. P.—Appearance—Withdrawal of appearance.</p> <p>It is improper practice to permit defendant’s counsel to withdraw their general appearance without notice to the plaintiffs or their counsel. The proper practice is to require defendant’s counsel to file a petition setting forth the reasons for withdrawing their appearance, and thereupon to grant a rule.</p>

<p> Constitutional law—Title of statute—Adulteration of food—Drink. </p> <p>The Act of June 26, 1895, P. L. 317, entitled, “An act to provide against the adulteration of food, and providing for the enforcement thereof,” which states in section 2 of said act that “the term food, as used herein, shall include all articles used as food or drink by man, whether simple, mixed or compound,” is unconstitutional as applied to drink, and violates the provision of sec. 3, art. Ill of the constitution of Pennsylvania, relating to the title of statutes.</p> <p>The right of the legislature to define the terms it uses is beyond question and the meaning it so attaches is mandatory upon the courts in the construction of the statute. But where such meaning is given to the words describing the subject of the act, and is not that which attaches to them in the common understanding, the constitution requires that the title shall express such special meaning with at least' sufficient clearness to put readers on inquiry as to the full provisions.</p> <p>The words food and drink in common usage and understanding are complementary and associate terms, denoting the two prime necessities of life, but they are so far from synonymous that they import a plain and fundamental distinction, as universal as language and as- old as the human race.</p> <p>No tongue is so primitive that it lacks different words to indicate them and different words to express the sensations of want of them, as hunger and thirst.</p> <p>The adulteration of drink is nowhere made an offense in the Act of June 26, •1895, P. L. 317.</p>

Appeal, No. 101, Jan. T., 1905, by defendant, from judgment of 0. & T. Fayette Co., Dee. T., 1904, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth v. James W. Ezell. Indictment for murder. Before Reppert, P. J. At the trial it appeared that on September 10,1904, William G. Porter, assistant yard master at Newell Station on the Pitts-burg and Lake Erie Railroad, was killed by James W. Ezell, night telegraph operator at the same station.

Appeal, No. 84, Oct. T., 1905, by defendant, from judgment of 0. & T. Cambria Co., Dee. T., 1904, No. 3, on verdict of guilty of murder of the first degree in case of Commonwealth v. Stephen Fellows. Indictment for murder.

<p>Appeal, No. 119, Jan. T., 1905, by defendants, from decree of C. P. Elk Co., April T., 1905, No. 1, on bill in equity in case of N. T. Arnold' et al. v. Russell Car & Snow Plow Company and J. W. Russell.</p> <p>Bill in equity for an injunction and receiver.</p> <p>The court entered a decree overruling the demurrer and requiring the defendant to answer over.</p> <p>Errors assigned among others were as follows :</p> <p>1. The court erred in its order of December 8, 1904, appointing a receiver and granting a preliminary injunction.</p> <p>2. - The court erred in its order of January 6,1905, continuing the injunction and receiver..</p> <p>3. The court erred in not dismissing plaintiff’s bill.</p>

<p> Assignment for creditors—Payment to creditors—Surcharge—Beni of office. </p> <p>Where an assignee for creditors after diligently trying to sell the equities in a number of mortgaged houses owned by the estate'fails to do so, and then conveys the houses to certain of the creditors in extinguishment of their claims, the assignee will not be surcharged with the difference between the appraisement and the rate at which the houses were taken by the creditors, if the weight of evidence shows that the appraisement was too high, and that the arrangement made by the assignee was as favorable a one as he could reasonably be expected to make.</p> <p>Where the assignee of a corporation secures a tenant for the building occupied by the corporation, and conducts the business of the assignment at his own private office, he is entitled to the credit for one-third rent of his office, where the evidence shows that the arrangement was an advantageous one to the assigned estate and resulted in a net profit to it of several hundred dollars.</p>

<p>Municipal claims—Continuance of lien—Alias writ of scire facias—Service—Registered owner—City of Philadelphia—Acts of March 29, 1867, P. L. 600, June 10, 1881, P. L. 91, May 16, 1891, P. L. 69, and July 26, 1897, P. L. 420.</p> <p>A scire facias sur municipal lien fatally defective in its service and a nullity for the purpose of obtaining judgment thereon has not sufficient potentiality to continue the lien beyond the time of its expiration so as to give validity to a judgment attempted to be secured on an alias scire facias sued out after the lien of the original claim had expired by efflux of time.</p> <p>Where a scire facias sur municipal lien is issued in Philadelphia within five years from the time when the claim was filed, and is returned nihil habet without the filing of an affidavit averring that the registered owner is a nonresident or cannot be found, and an alias scire facias is issued more than five years after the claim was filed but within five years from the exit of the first writ, the alias writ is invalid and should be stricken from the record.</p> <p>Fell and Potter, JJ. dissent.</p>

<p> Corporation—Contract—Consideration—Ultra vires—Principal and agent ■—Transfers. </p> <p>A corporation may not avail itself of ultra vires as a defense where a contract has been entered into and executed in good faith by the other party and the corporation has received the benefit of the performance.</p> <p>It is repugnant to every sense of justice and fair dealing that a principal shall avail himself of the benefits of an agent’s act, and at the same time repudiate his authority.</p> <p>A corporation deposited certain of its bonds with trustees who were to deliver them to such persons as the board of directors should designate. A purchaser received some of the bonds with a power of attorney in blank to transfer them. Subsequently the same person loaned money to the company under an agreement by which he was to receive additional bonds as collateral. When the loan was made, three of the board of directors, one of whom was the secretary, one the treasurer, and the other the general manager of the company requested the trustees, one of whom was also a director, to deliver the bonds to the person making the loan, and this request was complied with, but no further power of transfer was given. Subsequently the corporation was adjudged a bankrupt and its real estate sold under proceedings on a mortgage prior in lien to the mortgage by which the bonds were secured. The trustee in bankruptcy claimed the whole fund as against the holder of the bonds on which the loan had been made, on the ground that the transfer of the bonds had not been authorized by the directors as a board, and because no power to transfer had been executed by the trustees. Held, that the claim was unfounded, and that the loan should be repaid out of the fund.</p>

Appeal, No. 257, Jan. T., 1904, by William Potter et al., executors, from decree of O. C. Montgomery Co., April T., 1904, No. 7, confirming the report of the collateral appraisement in estate of Louis C. Vanuxem, deceased. Appeal from appraisement of collateral inheritance tax.

<p> Ejectment—Boundaries—Evidence—Question for jury. </p> <p>In an action of ejectment where three out of four boundaries are fixed by-calls for adjoinders, and the issue is purely one of fact as to whether the fourth boundary was a straight line, or a different character of line, and the evidence is conflicting, the case is for the jury.</p>

<p> Executors and administrators—Accounting—Trust and trustees. </p> <p>The orphans’ court commits no error in directing.the administrator of a deceased executor to file an account after the death of the widow of the deceased where it appears that over forty years prior to the death of the widow, the executor filed an administration account showing a balance in his hands the interest upon which was to b$ paid to the widow during her life and the principal to other parties after her death, and that the principal was to be secured during the widow’s life by a bond and mortgage on real estate.</p>

<p>Appeal, No. 157, Jan. T.,1904, by • plaintiff, from judgment of C. P. Northampton Co., Dec. T., 1902, No. 46, on verdict for defendant in case of Cora Alice Abel v. Northampton Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Schuyler, P. J.</p> <p>The circumstances of the accident were stated in the opinion of the Supreme Court.</p> <p>George Lehman, a witness for plaintiff, was asked this question :</p> <p>“ Q. Was there a man at Fourth and Northampton streets, Easton, announcing that there was a train provided by the trolley company? A. During the early part of the day ? Q. Yes. A. Yes, sir.”</p> <p>Objected to as immaterial and irrelevant.</p> <p>The Court: The objection is overruled and bill sealed for plaintiff. [5]</p> <p>Lawrence P. Meyers was asked this question :</p> <p>“ Q. What were your instructions ? A. My instructions was to go to the corner of Fourth street at 11 o’clock in the morning to make an announcement to take the cars—”</p> <p>Objected to, for the same reason that we objected to the testimony of Mr. Lehman; that it is irrelevant and immaterial as to what took place at Fourth and Northampton streets, and also what took place at the park, what announcements were made by the witness at the park with reference to taking the railroad train in preference to the trolley.</p> <p>The Court: The objection is overruled and bill sealed for plaintiff. [6]</p> <p>Defendant’s witness, Wilbur Bender, was asked this question :</p> <p>“ Q. Was he under the influence of liquor in the evening? ” Defendant proposes to prove by the witness that at the time of the accident Percy Abel was in an intoxicated condition. Also propose to prove his habits, and frequent intoxication, for the purpose of illustrating the condition of his health and probable life, and as upon the question of contributory .negligence.</p> <p>So much of the offer as relates to the offer to prove that he was intoxicated at the time of the accident plaintiff objects to that as being immaterial and irrelevant to the issue.</p> <p>The Court: The objection is overruled and bill sealed for plaintiff. [7]</p> <p>“Q. Did you see him talking to Mr. Hay? A. I did. Q. Did you hear what Mr. Hay said to him ? A. I can’t recall the words. Q. Can you give us the substance of what he said? Did he say anything to him about taking the train ? ”</p> <p>Mr. Stewart: This is objected to as immaterial and irrelevant. The testimony as to what 'occurred between Mr. Abel and Mr. Hay which the witness says he overheard is objected to as immaterial and irrelevant.</p> <p>Mr. Fox : This is to be followed by proof, by Mr. Hay, that he had .this conversation with Mr. "Abel and induced him to take this train, and actually took him to the train.</p> <p>The Court: The objection is overruled and bill sealed for plaintiff. [8]</p> <p>Mr. Zinn was asked this question-:</p> <p>“ Q. What was the arrangement you made with reference to the train?”</p> <p>Mr. Fox: Defendant proposes to prove by the witness that he was a member of the committee of the labor union that arranged with the officers of the trolley company with reference to the transportation of the crowd that day and that the arrangement included provision for a steam train; to be followed by proof that the labor union also arranged to have Mr. Meyers there for the purpose of announcing to the public generally the provisions that weré made for the accommodation of the public.</p> <p>Objected to as immaterial and irrelevant what arrangement was entered into by the labor union and the railroad company with reference to transportation of the crowds to and from the park.</p> <p>The Court: The objection is overruled and bill sealed for plaintiff. [9]</p> <p>Thomas A. H. Hay was asked this question:</p> <p>“ Q. Did the traction company pay the entire cost of the running of the train? A. We paid the entire cost.”</p> <p>Objected to for the same reason, the amount paid and who it was paid to, as utterly incompetent and irrelevant.</p> <p>The Court: Same ruling and bill sealed for plaintiff. [10]</p> <p>Plaintiff was asked this question:</p> <p>“ Q. After you went to Philadelphia did you take some steps towards procuring a divorce? A. No, I did not. Q. Not at any time prior to his death? A. Only at one time I asked what could be done with reference to that. I never applied for a divorce.”</p> <p>Objected to, as not cross-examination. The testimony would be incompetent and irrelevant for any purpose at any time in the case.</p> <p>The Court: The objection is overruled and bill sealed for plaintiff, [11]</p> <p>Plaintiff’s witness, C. J. Abel, on cross-examination was asked this question:</p> <p>“ Q. After that time did you contribute to her support in any way ? A. Well, I paid some money out of my own pocket. He wouldn’t pay it. Q. You paid some of the alimony out of your pocket? A. Yes, sir,”</p> <p>Objected to as not cross-examination.</p> <p>The Court: The objection is overruled and bill sealed for plaintiff. [12]</p> <p>Mr. Stewart: Plaintiff offers to prove by the witness that at the time of the collision when the decedent, Percy Abel, was struck by the car coming from Easton, that other passengers were injured by the same collision.</p> <p>Objected to as incompetent and irrelevant and as not a part of the res gestee, and that it would tend to raise collateral issues as to which the court in the action now pending could not inquire.</p> <p>The Court: The objection is sustained and bill sealed for plaintiff. [13]</p> <p>The court charged as follows:</p> <p>Between 9 and 10 o’clock in the evening of Labor Day, 1902, plaintiff’s husband was struck by a car of the defendant, receiving injuries from the effect of which he died a few hours later. The present action has been brought to recover damages for the loss thus sustained on the theory that it was occasioned by the negligence of the defendant. [I do not think there is any evidence that would justify you in finding that the injury complained of was the result of defendant’s negligence. But even if the fact were otherwise it is clear that the negligence of the deceased contributed to the injury.] [1] The only eyewitnesses of the accident were two women, friends of the deceased, who stood near him at the time, both of whom testify that when he was struck he was standing on the track over which the offending car was moving. There is no evidence that he was forced into this position or that it was not his own voluntary selection. True, these women were defendant’s witnesses. It is also true that one of the plaintiff’s witnesses testified that a very short time, if not immediately before the accident, the deceased was standing on the running board of a crowded car pointed in a different direction from the offending ear, but this witness did not see the accident, and frankly admitted that he did not know where the deceased was standing when it occurred. [This leaves wholly uncontradicted the testimony of the two women, which, if believed, and no reason has been assigned why it should not be-believed, clearly establishes contributory negligence on the part of the deceased.] [2]</p> <p>[But this is by no means the only evidence bearing upon the question of contributory negligence. The accident happened at a station erected by the defendant company near a" pleasure resort known as Bushkill Park. On the opposite side of the park, and also near to it, the D., L. & W. R. R. Co. had a branch road leading, as did the defendant’s road, to Easton, the home of the deceased. The defendant, anticipating a great crowd beyond the capacity of its ears, hired a train of cars from the D., L. & W. Co., to ply between the park and Easton on the day in question, and also constructed a well defined path, lighted at night by electricity,.leading through the park to the D., L. & W. trains. The fare on both roads was the same. The defendant also employed L. P. Meyers, familiarly known for his stentorian voice, to announce,, from time to time the existence and movements of these trains, and this was done at the defendant’s station and in the park during the evening. Moreover, Mr. Hay, the president of the defendant company, met the deceased, whom he had known from childhood, a very short time before the accident, and advised him to take the train for safety, and walked with him’ a short distance in that direction, the deceased being somewhat under the influence of liquor. None of these facts are disputed, and it is not pretended that either the train or the path to it was unsafe, or that the train was unduly inaccessible. A clearer case of contributory negligence than is thus presented it would be difficult to conceive of: Smith v. City o£ New Castle, 178 Pa. 298; Musselman v. Hatfield Boro., 202 Pa. 489, and many other cases. I therefore direct you to return a verdict in favor of the defendant.] [3]</p> <p>The defendant presented this point:</p> <p>3. Under all the law and the evidence the verdict must be for the defendant. Answer: Affirmed. [4]</p> <p>Errors assigned were (1-4) above instructions, quoting them; (5-13) ruling on evidence, quoting the bill of exceptions.</p>

<p> Negligence—Municipalities—Defect in sidewalk—Contributory negligence. </p> <p>It is the duty of a municipality to use reasonable care to keep its streets in repair and in a safe and proper condition for the use of the public by day or night. A sidewalk is a part of the street and the duty to repair it is as obligatory as the duty to keep the carriageway in a proper condition.</p> <p>Pedestrians are not compelled to remain off the streets of a city because it is dark, but using the care demanded by the circumstances they may go at any hour where business or inclination takes them, and they may assume that the municipality has performed its duty in keeping the streets in a safe condition for use both at night and during the day.</p> <p>In an action by a woman against a city to recover damages for personal injuries sustained by falling over the curb pf a sidewalk into the cartway of the street, the case is for the jury and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the night when the accident happened was very dark and the street was not lighted at the point at which the plaintiff fell, that the sidewalk had been paved, and was in use by the public to its full width, that next to the curb the brick pavement of the sidewalk was sunken from three and a half to four'inches lower than the curb, and that the sunken or depressed condition of the sidewalk had existed for a sufficient length of time to visit the city with notice of it.</p> <p>Guinter v. Williamsport, 208 Pa. 587, and Martin v. Williamsport, 208 Pa. 590, distinguished.</p>

<p> Mortgage—Defenses—Fraud and duress—Evidence. </p> <p>On the trial of a scire facias sur mortgage, evidence that the execution of the mortgage was procured by fraud and duress is properly excluded, where it is admitted that the mortgagee was not present at the interview at which it is claimed that fraud and coercion were used, and no evidence is offered that the mortgagee had notice of the alleged fraud or coercion, or that he was in possession of facts which should have led him to believe that the mortgage had been thus procured.</p> <p> Mortgage—Notes—Delivery—Waiver. </p> <p>Where a mortgage and notes secured by the mortgage bear the same date, and it appears that some of the notes were actually paid, the mortgagor cannot, on a scire facias sur mortgage to recover the balance due, set up as a defense that the notes and the mortgage were never delivered, and this is the case although some of the payments may have been made prior to the actual delivery of the mortgage.</p> <p> Mortgage—Fraud and duress—Illegal contract—Threatened criminal prosecution. </p> <p>On a scire facias sur mortgage it cannot be contended as a defense that the mortgage was given to stop a threatened criminal prosecution against the mortgagor’s husband, unless it is shown that there was an agreement not to prosecute if the mortgage was given.</p>

<p>Road law—Vacation—Damages—Act of May 16, 1891, P. L. 75.</p> <p>The vacation of a public road is not an injury to the abutting landowners for which compensation must be made.</p> <p>Neither the constitution of 1874 nor the Act of May 16, 1891, P. L. 75, gives a right to damages for the vacation of a public highway.</p> <p>The Acts of May 16, 1891, P. L. 65, 69, 71 and 75, explained. Daughters of American Revolution v. Schenley, 204 Pa. 572, followed.</p>

<p>Appeal, No. 210, Jan. T., 1905, by plaintiff, from judgment of C. P. Lebanon Co., Sept. T., 1901, No. 116, on verdict for defendant in case of Cyrus Deitrich v. Jacob Kettering.</p> <p>Trespass to recover damages for personal injuries sustained by the bite of a dog alleged to have been vicious.</p> <p>At the trial when Charles Kratzer, a witness for plaintiff, was on the stand, he was asked this question :</p> <p>Mr. Ulrich: We desire to prove with this witness that the dog attacked him, and that he brought notice home to Mr. Kettering.</p> <p>Mr. Capp : Objected because it does not state when it was.</p> <p>Mr. Ulrich: Before this injury the attack upon Mr. Deitrich—</p> <p>The Court: Proceed.</p> <p>“ Q. Mr. Kratzer, did this dog attack you or attempt to attack you at any time ? A. No, sir, he did not; not outside of the fence. He many a time jumped up at the fence that I passed, and barked loud, but not outside; that is, he never took hold of me. Q. Was Mr. Kettering there at the time? A. Been in the yard different times ; yes, sir. Q. When the dog growled at you and jumped at you ? A. Yes, sir. That is, understand, not at me; he was inside of the fence, and I was out."’</p> <p>Cross-examination by Mr. Capp : “ Q. Tell us in your own way what the dog did when you went by the place. A. Oh, well, he jumped up at the fence, you know, and reached outside of the fence and barked, you know, as though he was in the act of getting hold of me; but he never did, understand; I was outside and he was in. Q. He was a young dog, wasn’t he ? A. I don’t know how old he was. He was grown out, I think, because he was a dog very near as high as these boxes here. I judged him to be grown' out, and probably two or three or four years old. Q. He did not jump up against the fence in such a way as to make an effort to break through ? A. I would rather say it was. I think if the fence had been frail, and it would not have stood the jumping against, I think he would have come out and got at me; I think he would. Q. How often did this occur ? A. I don’t know. It occurred repeatedly. I passed there often. I would not say how often it occurred. Q. Where was Mr. Kettering ? A. Sometimes he was in the yard; he ain’t always there. Q. Relate to us an occurrence that Mr. Kettering was in the yard. Relate to us one occurrence that Mr. Kettering was there. A. I could not just tell you the time, you know, but I know that he had often been in his yard ; probably sitting on the back porch or standing in the yard that the dog jumped up against the fence when I passed ; I could not exactly tell whén. Q. Relate to us one occurrence that Mr. Kettering was there, and tell us what the dog did at that time. A. I know at one time that he was sitting on the back porch, the dog was laying in the yard close by the fence, probably three feet near the fence, and the dog jumped up at the fence ; of course, I walked on ; he did not hurt me. Q. How high was this fence ? A. Oh, well, probably four feet high. Q. What kind of a fence was it? A. An iron fence. Q. What is the size of the dog ? A. Well, the dog may measure— Q. An ordinary shepherd dog, isn’t it? A. Well, I think he was a little larger than the ordinary shepherd dog; he may measure probably two feet and a half ; I don’t know; I never measured him ; but he is larger than the ordinary shepherd dog. Q. That is the only occurrence that' you say Mr. Kettering was on the porch? A. Yes. Q. When was that, Mr. Kratzer ? A. I didn’t keep a date. Q. Which one of these occurrences were prior to the time that Deitrich was bitten, if any? A. I could not tell you that. Q. Then you could not tell whether this occurred before or after the accident to Deitrich ? A. I could not; no, sir.”</p> <p>Redirect examination by Mr. Ulrich : “ Q. Don’t jtou know whether this occurred before or after Mr. Deitrich’s accident ? A. No, sir ; I don’t know. I am not positive whether it was before or afterwards. Q. This accident occurred this last July a year ago, that was 1901 ? A. Yes ; I remember the time the accident occurred, but I would not say; I didn’t keep a note, you know, whether this was before or afterwards.”</p> <p>Mr. Capp : I move to strike out this' testimony as not conforming to the offer, in this that the witness cannot state whether these occurrences were before or after Deitrich complains of.</p> <p>The Court: We will permit this testimony to stand for the present. Exception to the defendant. We may rule on it later on in the case, however, definitely.</p> <p>After the testimony was closed the court ruled as follows :</p> <p>We will allow the motion which was made as to the striking out the testimony of Charles Kratzer. Exception to the plaintiff.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was ruling on evidence as above, quoting the bill of exceptions.</p>

<p>Appeal, No. 246, Jan. T., 1904, by Emma M. Reinoehl, Executrix, from decree of O. C. Lebanon 'C61,“'í\íay T., 1903, No. 6, dismissing exceptions to auditor’s report”' iii Estate of George H. Reinoehl, deceased.'</p> <p>Exceptions to report of C. V. Henry, Esq¿ auditor.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 273, Jan. T., 1904, by plaintiff, from order of C. P. Schuylkill Co., July T., 1901, No. 136, refusing to take off nonsuit in case of John Wiszginda by his next friend and father, George Wiszginda, v. Schuylkill Traction Company. Trespass to recover damages for personal injuries. Before Shat, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusing to take off nonsuit.

Appeal, No. 358, Jan. T., 1904, by defendants, from decree of C. P. Schuylkill Co., Sept. T., 1903, No. 4, on bill in equity in case of Mary E. A. Gaynor et al. y. Elizabeth G. Quinn et al. Bill in equity to enforce a trust, and for an account. Before Marr, J. The court entered a decree in accordance with the prayer of the bill. Error assigned was the decree of the court.

Appeal, No. 306, Jan. T., 1904, by-Hunter F. Bright, from decree of O. C. Schuylkill Co., sustaining appeal from register of wills in estate of Anna B. Bright. Appeal from register of wills. The opinion of tbe Supreme Court states the case. Error assigned was decree sustaining the appeal and in reversing the register of wills.

Appeal, No. 308, Jan. T., 1904, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1901, No. 353, on verdict fordefendant in case of H. V. Ferber v. Gazette and Bulletin Publishing Association. Trespass for libel. Before Hart, P. J. At the trial it appeared that plaintiff was a writ server connected with an alderman’s office. In the publication complained of he was charged with being a party with others in a scheme to blackmail.

<p>Appeal, No. 302, Jan. T., 1904, by-plaintiff, from judgment of Superior Court, No. 10, Jan. T., 1904, reversing order of Q. S. Lackawanna Co., Oct. T., 1903, No. 286, overruling peremptory challenge to juror in case of Commonwealth v. David B. Evans.</p> <p>Appeal from Superior Court. See Commonwealth v. Evans, 25 Pa. Superior Ct. 239.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Negligence—Municipalities—Defect in sidewalk—Contributory negligence— Evidence—Question for jury.</p> <p>In an action by a woman to recover damages for personal injuries sustained by a fall in a hole on a sidewalk in a city, it appeared that the accident occurred about eleven o’clock in the morning. The hole was about five feet from the curb line, and was nineteen inches long and eighteen inches wide. A tree had formerly stood there, but had been cut down several months before. Plaintiff had no knowledge of the hole. Just before she reached the pavement in which the hole existed, a crowd of twenty-five or thirty men approached her with suit cases and bags in their hands. Plaintiff was carrying a large market basket and a butter kettle. The crowd separated and allowed her to pass through, and almost immediately after emerging from the crowd she stepped into the hole and fell. On her examination in chief she stated that she stepped into the opening almost the instant she got through the crowd that had concealed it from her. On cross-examination she gave the distance as six or eight feet, after repeatedly saying she did not know what it was. Held, that it was error to enter a nonsuit, and that the jury should have been instructed that if they believed, after plaintiff had passed through the crowd she had an opportunity to see the opening, and by the exercise of ordinary care in looking where she was going, ought to have avoided it, she could not recover; but that if she stepped into it just as she*got through the crowd, without having had an opportunity to see it, or if, burdened as she was, she stepped into it after having emerged from the crowd, and, under the circumstances, could not be reasonably expected to have seen it before stepping into it, her negligence was not a bar to her right to recover.</p>

<p> Insurance—Fire insurance—Contract—Place of contract—Conflict of laws. </p> <p>Where a policy is required to be countersigned by an agent in another state the contract is to be governed by the law of the state where the agent resides.</p> <p>Where a property is insured under a policy in the standard form prescribed in the New Jersey statutes, the insured is bound to know the contents of the policy.</p> <p> Insurance—Fire insurance—Vacant premises. </p> <p>Where a fire insurance policy provides that if the premises be or become vacant or unoccupied and so remain for ten days, the policy shall be void, the vacation of the premises for such a period will render the policy void either under the law of New Jersey, or under the law of Pennsylvania, and the fact that the premises were reoccupied after such time does not avoid the forfeiture.</p> <p> Insurance—Fire insurance—Contract—Obscuring words of policy by U. S. stamps. </p> <p>In an action on a fire insurance policy it appeared that it contained this provision: “This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void .... if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant, or unoccupied, and so remain for ten days.” In affixing United States revenue stamps to the policy, the company’s agént completely covered the words “this entire policy unless otherwise provided by agreement indorsed hereon or,” so that they could not be seen or read. Held, that the insured could not set up a claim that he had no notice of the existence of the covenant as to the occupancy of the building.</p>

<p> Negligence—Defective pavement—Landlord and tenant. </p> <p>Where premises are in good repair at the time they are let, and the landlord is not bound by the lease to keep them in repair, the tenant in possession and not the landlord, is liable for an injury resulting from failure to repair the pavement in front of the premises.</p> <p>A landlord out of possession cannot he held liable for personal injuries sustained by a fall due to a hole in a pavement caused by the removal of a single brick, where there is no evidence that the defect had existed for any length of time, or that the defendant had notice of it or had refused to repair it in disregard of a covenant in the lease.</p> <p>Mintzer v. Hogg, 192 Pa. 137, overruled.</p>

<p>Appeal, No. 145, Jan. T., 1904, by plaintiff, from decree of C. P. Luzerne Co., May T., 1904, No. 3, dissolving preliminary injunction in case of Nanticoke Suburban Street Railway Company v. People’s Street Railway Company of Nanticoke and Newport.</p> <p>Bill in equity for an injunction.</p> <p>On a motion to continue the preliminary injunction Wheaton, J., found the following facts which were agreed to in this court:</p> <p>The plaintiff company was incorporated February 18, 1904, under the Act of May 14, 1889, P. L. 211, and the amendments thereto.</p> <p>The plaintiff company has made no attempt, as yet, to secure municipal consent to occupy said streets.</p> <p>The defendant company was incorporated September 27, 1892, under the act of May 14, 1889, and its supplements.</p> <p>It was chartered to build and operate a street railway from Nanticoke borough along some of the streets thereof (designated in the charter) to the village of Glen Lyon, in Newport township, and has operated a street railway on said line since November 23, 1895.</p> <p>December 10, 1903, two months and eight days before plaintiff’s charter was granted, the defendant company, by resolution of its directors, duly resolved to extend its line of railway over and upon certain designated streets and roads of the borough of Nanticoke, which resolution was duly recorded in the office for recording deeds, etc., in and for Luzerne county, on December 19,1903, in charter book No. 6, page 88, etc., and a duly exemplified copy of said record was filed in the office of the secretary of the commonwealth on December 24, 1903.</p> <p>On December 23, 1903, the borough council of the borough of Nanticoke passed an ordinance authorizing and giving municipal consent to the defendant company to use and occupy the streets named in said extension resolution with its railway, which said ordinance was duly signed by the burgess of said borough, December 24, 1903, and entered and signed in the ordinance book of said borough before January, 15, 1904.</p> <p>Among the streets thus covered by the extension proceedings and municipal consent, are nearly all of the streets after-wards set out in plaintiff’s charter.</p> <p>About March 28, 1904, the defendant company began the construction of its said extension and had constructed about 300 feet on Green street when the preliminary injunction was granted.</p> <p>Further progress of construction will bring defendant to one of the disputed streets at the next street corner.</p> <p>A third street railway company, the second in point of date of incorporation, named the Nanticoke and Hanover Street Railway Company, was incorporated February 11, 1902, under the act of May 14, 1889, and the amendments thereto, and the streets, highways and bridges upon which this company was authorized to lay and construct its railway, and which formed the circuit of its route, were, inter alia, the same as some of those upon which the defendant company seeks to extend, and the same as those upon which the plaintiff company now claims a chartered right.</p> <p>February 3, 1903, the Nanticoke and Hanover company sought the consent of the-local authorities of Nanticoke—-the borough council—to occupy, etc., the streets named in its charter.</p> <p>February 19, 1903, an ordinance to grant the franchise sought was defeated on third reading by the unanimous vote of the councilmen present and voting.</p> <p>The franchise sought was afterwards refused by the council twice—once on first reading of the proposed ordinance and once on third reading.</p> <p>The final refusal was December 17,1903.</p> <p>The municipal consent to occupy the streets, etc., was never given to the Nanticoke and Hanover company.</p> <p>The court entered a decree dissolving the preliminary injunction.</p> <p>Error assigned was the decree of the court.</p>

<p> Bailment—Contract—Agreement to insure—Custom of trade—Corporation. </p> <p>In an action against a corporation engaged in the business of bookbinding, to recover damages for the loss of books delivered to the corporation to bind, but destroyed by fire, evidence is admissible that the manager of the corporation agreed as a part of the contract of bailment to insure the books against loss by fire, and that there existed a general custom of bookbinding establishments to insure the property of patrons left with them for binding. It is reversible error to reject such evidence.</p>

Appeal, No. 372, Jan. T., 1904, by defendants, from judgment of C. P. Luzerne Co., May T., 1904, No. 805, for plaintiff on case stated in suit of the Hudson Coal Company v. Joseph W. Ogden, Gustav E. Kissel and Leslie S. Ryman, executor of W. P. Ryman, deceased. Case stated to determine liability for a tax. The opinion of the Supreme Court states the case. Error assigned was judgment on case stated.

<p>Negligence—Railroads—Running behind schedule time—Speed—Signals— Evidence—Grade crossing.</p> <p>It is not negligence for a railroad company to run a passenger train after midnight, twenty-five minutes behind its schedule time.</p> <p>It is not negligence for a railroad company to run a fast passenger train in the nighttime over a country crossing at the rate of thirty-five miles an hour.</p> <p>Where the exact rate of speed of a train shown by its schedule and fixed by the train record made by the conductor at the time shows a rate of thirty-five miles an hour, the court will consider of no value the testimony of a witness who states that the train was running very fast, but does not state how fast, nor fix any standard by which the speed of the train could be ascertained.</p> <p>In a railroad grade crossing accident case, the negative testimony of nine witnesses that they did not hear the whistle blown nor the bell rung on a stormy and windy night, amounting only to a scintilla, cannot prevail against the overwhelming and positive testimony of fourteen witnesses, which conclusively established the fact that these duties were performed. In such a case the trial judge is warranted in giving binding instructions to the jury to return a verdict in favor of the defendant.</p>

<p>Corporations—Railroads—Bonds—Fraud—Act of May 7, 1887, P. L. 94, sec. 3.</p> <p>The presumption is that holders of negotiable railway bonds are bona fide holders for value, but if fraud in the inception of the bonds is shown, the holder, to be entitled to protection as a bona fide holder, must show that he is such; his mere possession of the bonds is insufficient.</p> <p>Where bonds of a corporation have been illegally issued and have been pledged for a debt, the amount of which is much less than the face value of the bonds, stockholders of the corporation who have knowledge of the illegality of the bonds, and the circumstances under which they were pledged, cannot, after they have purchased the bonds from the pledgee for substantially the amount required for their redemption, recover from the corporation more than the amount thus paid.</p> <p> Equity—Equity practice—Multifariousness—Demurrer—Answer. </p> <p>Objection that a bill in equity is multifarious must be raised by demurrer before answer filed.</p>

<p> Deeds—Receipts—Evidence. </p> <p>Receipts, whether contained in deeds or elsewhere, are not conclusive of the payment of money, but only prima facie proof and always open to explanation. Thus, an acknowledgment of the purchase money in the body of a deed and a receipt indorsed, are not conclusive evidence of such payment. A receipt for the purchase money indorsed on a deed is only prima facie evidence and may be rebutted by evidence.</p> <p>Where a deed makes no mention of a mortgage which is a lien on the land conveyed and the receipt in the deed is for the full amount of the purchase money, a finding of fact by an auditor and the court below that the mortgage was part of the consideration mentioned in the deed, will not be reversed by the appellate court, where the finding was based on sufficient widence, and there was no manifest error.</p> <p> Executors and administrators—Sale—Discretion of court. ■ </p> <p>The matter of allowing an administrator to purchase at his own sale, is one which addresses itself to the sound discretion of the orphans’ court, and the Supreme Court will not revise that discretion where there is nothing to show that it has been abused.</p> <p> Executors and, administrators—Surcharge—Raising of fund—Counsel fee. </p> <p>Where in proceedings in the orphans’ court, a creditor succeeds in surcharging the accountant, and it does not appear that the accountant was guilty of bad faith or gross neglect, such creditor will not be entitled to the whole amount of surcharge as against other creditors; and another creditor will not be excluded from the benefits of the surcharge merely because his attorney was also attorney for the accountant.</p> <p> Executors and administrators—Promissory note—Possession of note. </p> <p>Mere possession by an executor of a note or bond payable by the decedent to the executor will not prevent a recovery. In such a case in the absence of fraud it is not necessary for the executor to prove negatively that he did not hold the note in his individual right.</p> <p> Executors and administrators—Orphans’ court sale—Purchase by administrator. </p> <p>When an administrator purchases lands at his own sale, by permission of court and the sale to him is confirmed by the court, he acquires a title in fee simple and is not responsible to the estate for any profits be may realize on the transaction.</p> <p>A finding of fact by an auditor, based upon sufficient evidence and confirmed by the orphans’ court, that trust moneys in the hands of a decedent had been invested in real estate standing in decedent’s name, will not be reversed by the Supreme Court in the absence of manifest error.</p>

<p>Appeal, No. 66, Jau. T., 1905, by Frank P. Beam, from decree of O. C. Huntingdon Co., No. 17, of 1905, dismissing exceptions to report of auditor in Estate of Porter W. MePherran, deceased.</p> <p>Exceptions to report of John D. Doris, Esq., auditor. Before Woods, P. J.</p> <p>The facts are stated in the opinion of the Supreme-Court.</p> <p>Error assigned was decree dismissing exceptions to auditor’s report.</p>

<p> Evidence—Release of damages—Parol evidence—Negligence. </p> <p>In an action to recover damages for personal injuries where the defendant sets up a release of damages, the court commits no error in charging that the release is an effectual bar to recovery, where it appears that the release was not given until several months after the accident, that the plaintiff’s testimony that he signed it merely as a receipt for money given him as a donation, is not corroborated and is contradicted by two witnesses, and that the plaintiff who could not read, did not request that the release should be read to him, or that its contents should be made known to him through a disinterested person.</p> <p>It is error to submit a question of fraud to a jury to overturn a written instrument upon slight parol evidence. The evidence of fraud in such cases must be clear, precise and indubitable, otherwise the case should be withdrawn from the jury.</p> <p> Evidence—Cross-examination—Witness—Harmless error. </p> <p>A party cannot complain that he was not allowed to cross-examine a witness as to a matter alleged to be pertinent, where it appeared that he subsequently called the witness himself, and had full opportunity to have him testify as to the matters contained in the rejected offer.</p>

<p>Appeal, No. 14, Jan. T., 1905, by S. A. Davenport, from decree of O. C. Erie Co., Sept. T., 1900, No. 8, sustaining exceptions to auditor’s report in Estate of Anua C. Cunningham, deceased.</p> <p>Exceptions to report of E. L. Whittelsey, Esq., auditor.</p> <p>From the record it appeared - that Anna C. Cunningham, testatrix, died January 18, 1866, leaving a will by which she appointed Joseph M. Sterrett and S. A. Davenport, executors. She left to survive her children of a granddaughter, and an adopted daughter, Mary Cunningham, who in 1876 married F. E. Barrows. By the will the executors were authorized to sell the whole or any part of the real estate “ in such parcels and at such times as they shall deem advisable, and to make all necessary deeds and leases.”</p> <p>The auditor reported, inter alia, as follows :</p> <p>Twenty-ninth ; To the 81st of January, 1880, the accountant had sold real estate amounting1 to $58,882.50, and received from the personal estate $1,374.76, making a total of $60,207.26, exclusive of the interest on the purchase money. The accountant bad paid out at this time $5,505.76, besides payments made by him to legatees, not including any charge for his compensation, leaving a balance of $54,701.50.</p> <p>If this whole amount had been paid in cash and a distribution thereof then made to and among the legatees named in the will, Mary C. Barrows would have been entitled to ten-forty seconds of the same, or $13,024.10.</p> <p>The accountant had paid her, prior to January 31, 1880, $14,858. There was therefore nothing in the hands of the accountant belonging to Mary C. Barrows at the time of the interview between her husband, the accountant and herself, on January 81, 1880.</p> <p>At this interview, the accountant promised to advance Mrs. Barrows $1,000 on her share in the estate.</p> <p>This promise and advancement is referred to in a letter dated April 19, 1880, from Mary C. Barrows to S. A. Davenport, in which she says:</p> <p>“We will not call upon you for any more money than is positively necessary. It costs so much to get started, stoves, carpets and furniture we must have. We owe about $150 on what we have. Can you send us $200 now ? ”</p> <p>There was much other correspondence to the same effect, the most important of which are the following:</p> <p>On February 28, 1881, Mrs. Barrows wrote a letter to Mr. Davenport, in which she says: “Now Mr. Davenport could you advance us $1,500 on those lots, letting us pay interest on it ? If you do not think that best perhaps you would buy my share which would please us better. You told the doctor and also wrote in the statement that you thought those lots were worth $3,500. We have talked it over and think that if you would give us $2,500 for them, deducting the money that you have sent us with interest from that sum we would have sufficient money to pay half down and then pay our remaining debts ....</p> <p>“We do hope that you will think it best to take the land at that price or if you will allow us $2,400, we can then get out of debt and pay the half on the lot.”</p> <p>Mr. Davenport replied to this by letter dated March 2,1881, as follows :</p> <p>“ Yours of the 28th of February has been received.</p> <p>“ If I was to sell the remaining real estate belonging to the estate of your grandmother at present prices, I should not be able to realize $2,500 for your interest in it or near that sum in all probability : but by waiting I trust to get that much for it and more too. I am anxious that you should realize as much as possible out of the property and in order to do this, it certainly is not advisable to force the sale of the property at present, and it is equally plain to me that you ought not to sell y our interest. IE yon would surely be able to buy property so low as to justify making a sacrifice in Erie, then you might with propriety do so, but from what you have written me, I very much question the propriety of your buying the property referred to, inasmuch as you will be able to pay only one-half of the purchase money even if I can find any one to pay you for your remaining interest $2,400.</p> <p>“ Do act carefully and remember you have but little left, and unless it is well cared for will speedily be gone. If you insist upon selling write me again and I will see what can be done.”</p> <p>On May 17,1882, Mrs. Barrows wrote:</p> <p>“• I have been thinking for some time if you could sell that land, or perhaps buy it yourselE and settle up with us it would be so much better. Of course, we have to pay the interest for two years on the money you lent us, and if the property is held longer, when it is sold we will realize nothing from it.”</p> <p>Mr. Davenport replied in letter dated June 3,1882, in which he says : “ .... Now it appears to me that it would be foolish to sell the unsold real estate left of your grandmother’s estate, at present. It is constantly increasing in value and eventually I hope to sell it for enough so that you will have more than sufficient to reimburse me what I have advanced for you. As for your selling any possible interest you may have, it seems to me that it will be more than difficult to ascertain its value. Until the land has been sold, no one can tella how much it will sell for. My advice is to wait and will get all out of it I possibly can. You know I am anxious to aid you, but I don’t want to go too far nor do I suppose you will ask me to make advances which in all probability I shall never get. Of course, if you insist, I will try in some way to close out the balance of the property at some price and pay you any balance there may yet be due you. '</p> <p>In a letter written by Mary C. Barrows to the accountant, dated October, 1882, she says:</p> <p>“ For a number of weeks I have been at the point of writing to you asking you if you were willing to give us $500 for those lots and take a deed for them. You have written that they are worth more than that, and having them in your possession you may realize a nice profit on them. We are so hard up now and cannot get money anywhere without security. . . . I know doctor wrote to you asking for the money on mortgage but I was afraid you might not want to give it in that way and thought that perhaps you might think it best to give us the $500 and call our indebtedness to you cancelled. If you can see it in the same light I shall be happy. I know you will be too not to have any more worrying letters from us. If you wish to do so please send me a deed and I will sign it over to you.”</p> <p>The accountant replied by letter dated October 16, 1882, in which he says :</p> <p>“ Both your letter and the doctor’s received. I have been out of town and only returned Saturday evening. I regret that circumstances seem to require you to sell your remaining interest in the Cunningham estate, because I had hoped that real estate would so appreciate that you might yet receive considerably more than you have. I wish I was able to make a loan, but I am not, and so can only try and obey your behest and borrow from someone else or sell. I don’t believe I can borrow and will probably have difficulty in finding a purchaser, still I will see what can be done at once and write you fully.”</p> <p>In a letter from Mrs. Barrows to Mr. Davenport, dated October 18, 1882, apparently a reply to the letter of October 16, 1882, she says: “ .... I know that you have always been interested in me and wanted to do the best for me that you could. I did not like to go against your judgment regarding that property but as have written we are in quite a dilemma. It seems to me that if you sell the land for as much as possible it -írould enable, us to settle up with everyone and if anything remains we can put it in the bank to draw interest.</p> <p>On October 25, 1882, Mr. Davenport wrote to Mrs. Barrows as follows:</p> <p>“I have at last found a purchaser for your remaining interest in the Cunningham estate, if you still desire to sell. John F. Miles, after looking into the matter carefully and figuring on the amount I have already paid you, has stated to me that he will pay you $500 for your interest, but desires you to give him a statement of the amounts you have received from me. I assured him I had your receipts, but he replied that he wanted something to show which he could hold so I have prepared the within statements, which, if correct, both you and the doctor will please sign and then send it to me. Mr. Miles has written the enclosed conveyance which both you and the doctor will sign and acknowledge before a notary public, who has a seal, or before a Justice of the Peace..... This much I have done at your request; now, if you can get along without selling by all means do so. My reason for giving you this advice, I have stated to you again and again. I can’t sell the property at present, excepting at a sacrifice. I believe real estate is advancing in price and that eventually I shall be able to get you more than $500 out of the estate. I would like to have you get all I possibly can for you, therefore I again write you as I do. Hoping you may devise some plan by which you will not be obliged to sell, I am, etc.”</p> <p>On October 28, 1882, Mrs. Barrows wrote a letter to Mr. Davenport, as follows, viz.: “ Theletter and papers are received. I hope the conveyance is made out satisfactorily. We are obliged to sell there is no alternative. We both thank you for attending to the business so promptly. We are packing our goods now, preparing to leave next. When we see the five hundred dollars we shall be happy mortals. I will let you know occasionally how we get along.</p> <p>“ The statement is correct. I have written in haste.”</p> <p>Thirty-second: Some time in October, 1882, before Mr. Davenport wrote the letter of Oct. 25, John'F. Miles agreed to purchase Mrs. Barrows’ interest in the estate of Anna C. Cunningham and pay therefor the sum of $500. He talked with Mr. Davenport, the accountant, about it, who showed him letters from Mrs. Barrows in which she expressed a desire to sell; examined the real estate belonging to the estate as far as he knew and went over the account and the amount that had been paid to Mrs. Barrows; also examined the map or plot of the land that had been sold; the amount for which each lot had been sold was marked on the map or plot and the account of the sales as shown by the books kept by Mr. Davenport. He asked Mr. Davenport to prepare a statement of payments made to Mrs. Barrows showing that the several amounts charged to her on Mr. Davenport’s book were correct, to be signed by Mrs. Barrows and her husband that he, Miles, could keep. Accordingly statement was prepared for that purpose. Mr. Miles himself wrote an assignment from Mary C. Barrows and her husband to himself. The two papers were sent by mail by Mr. Davenport to Mrs. Barrows at West Winsted, Connecticut. Mr. Miles purchased a New York draft for $500 and left it with Dr. Davenport to be sent to Mrs. Barrows on receipt by him of the two papers properly executed; the papers were returned to Mr. Davenport properly executed ; and he delivered them to Mr. Miles and forwarded the draft for $500 to Mrs. Barrows.</p> <p>Exhibit “ O,” as delivered to Mr. Miles is as follows, viz.:</p> <p>“ Know all men by these presents that we, F. E. Barrows and Mary C. Barrows, his wife, of West Winsted, Connecticut, for and in consideration of the sum of five hundred ($500.00) dollars to us in hand paid by John F. Miles, of Erie, Penna., do hereby sell, assign and convey and unto the said John F. Miles, his heirs and assigns, all of the remaining interest of the said Mary C. Barrows, tobe the same real estate or personalty of in and to the estate of Anna C. Cunningham, late-of Erie, Penna., deceased, and the said John F. Miles is hereby entitled’ to receive and hold as his own property all of my said remaining interest in the estate of said decedent what ever the same may be; the understanding being that said Miles hereby takes the said interest subject to all payments and advances heretofore made to me as one of the legatees of said named deceased and as and is’subject-to all of the rights and equities under the will of said decedent as the said Mary C. Barrows would have been, had she not sold her interest as stated above to said Miles, his heirs and assigns.”</p> <p>Thirty-third: All of the negotiations for the sale by Mrs. Barrows of her interest in the estate of Anna C. Cunningham to John F. Miles, were by letters which passed between Mr. Davenport and Mrs. Barrows, he being at the time in Erie, Pa., and she in West Winsted, Ct. John F. Miles did not see and talk with Mrs. Barrows or have any correspondence with her in relation’' to it.</p> <p>Thirty-fourth: The accountant is an attorney at law in active practice and had been doing a large amount of business for many years for John F. Miles and was also a joint owner in real estate with him. That on November .16, 1900, the accountant had a settlement with Miles, in and by which, among other things, he gave Miles a receipt in full for services rendered by the accountant to Miles and transferred to Miles some lots on Nineteenth street, in the city of Erie. In consideration of which Miles gave the accountant exhibit “ P,” which is as follows, viz.: “Reed. Erie, Pa., Novr. 16th, 1900, from S. A. Davenport, the Executor of the Estate of Mrs. Anna C. Cunningham, deed., payment and satisfaction in full of the proportion of her Estate (10-42) to which Mrs. Mary C. Barrows, late Mary C. Cunningham, was entitled, which was bought from her by me October 25, 1882.</p> <p>“John F. Miles.”</p> <p>Thirty-fifth: Mrs. Barrows had knowledge as to the increase in the value of the land belonging to the Cunningham estate, before the settlement between Davenport and Miles, as appears by letter from Mi'S. Barrows to Mr. Davenport, dated September 23, 1890, exhibit No. 9, in which he says : “ Your note has just been forwarded to me from Clinton. How I regret now that I have no final interest in the settlement of affairs—just to think how that property has increased in value is perfectly wonderful. If I had not sold out my interest I would have been able to do at great advantage to myself. What a pity that we cannot see into the future. A man from Erie came to me several years ago and wanted me to resell my interest to him. I told him I had given it up and could do nothing else. We have been waiting all these years to get ahead a little so as to go west into a larger field. My husband is nearly killing himself with a country practice. I often think of that foolish sale giving up all title, for now I would have had a couple of thousand dollars to start somewhere else. Mr. Miles has made a great deal, but ‘ there is no use crying over spilt milk.’</p> <p>Appellant was twenty-one the 12th of April, 1873, and made no objection to the sale to Miles until the hearing before the auditor September 3, 1901, when she appeared by attorney and objected to the admission of the assignment from herself and husband to John F. Miles.</p> <p>Thirty-six : The accountant paid to Mrs. Barrows to apply on her share of the estate, the sum of $15,698, which added to the $500 received from the sale of her interest to John F. Miles, makes a total of $16,468 received by her for her interest in the estate.</p> <p>The auditor reported, amongst others, the following conclusion of law.</p> <p>10. Mary Cunningham Barrows is not entitled to participate in the distribution; she having sold and conveyed all of her interest in the estate to John F. Miles.</p> <p>Exceptions to the auditor’s report were sustained by the court, Miller, P. J., specially presiding and Mrs. Barrows was awarded the sum of $7,741.87 with interest from September 1, 1898.</p> <p>Errors assigned were in sustaining exceptions to the auditor’s report.</p>

<p>Parent and child—Adoption—Intention—Decree of court—Act of May 19, 1887, P. L. 125—Evidence—Ambiguity.</p> <p>The cardinal fact in the adoption of a child is the intention of the adopting parent, and not the literal decree of the court. The court has veto power to refuse to sanction the adoption unless satisfied that the'welfare of the child will be promoted by it, but beyond that, its action is only confirmatory of the action of the parent.</p> <p>A husband petitioned the court for leave to adopt a child. The petition was in the singular number. Before a decree was entered the wife signed the petition and the prayer thereof was changed for a decree that the child might “have all the rights of a child and heir of the petitioners.” The decree also recited that the welfare of the child “will be promoted by the adoption as the child and one of the heirs of the petitioners." The wife treated the child as her own child during a long subsequent life. Held, that the child was entitled to participate as a beneficiary in the distribution of the estate of the wife after the latter died intestate.</p> <p>Where ambiguity is introduced into a writing by verbal changes which either should have been made in additional places, or not made at all, the presumption in favor of the validity of affirmative action should prevail.</p>

<p>Judgment—Opening judgment—Record—Evidence—Set-off—Forgery—Consideration. '</p> <p>On the trial of an issue to determine the validity of a judgment opened generally and without conditions, the record of the judgment is not admissible in evidence. In such a case the court cannot limit the issue to the question of the forgery of the note on which the judgment was entered; nor will the defendant be permitted to offer evidence as to set-off, but he may show want of consideration or payment.</p>

<p>Corporation—Water companies—Quo warranto—Ouster—Impure water— Acts of June 14, 1836, P. L. 621, and April 29, 1874, sec. 34, P. L. 73.</p> <p>The remedy of quo warranto against a water company for supplying impure water, as provided by the Act of June 14, 1836, P. L. 621, is in no way affected or repealed by section 34 of the Act of April 29, 1874, P. L. 73, which provides a method of relief to an individual citizen who may make complaint of the impurity of water furnished.</p> <p>A judgment of ouster on a verdict for the commonwealth on quo warranto proceedings against a water company will be sustained where the evidence for the commonwealth, although contradicted, tends to show that the defendant’s line was connected with a mill pond into which the sewage of the town was discharged, and that during five years at periods of low water, and when fires occurred, water from the pond was pumped 'into the main service lines of the company, and that such water polluted the other water, and frequently rendered it injurious and unwholesome and unfit for drinking or cooking, and even for washing. In such a case it is immaterial that the company was under an agreement with the borough to maintain a connection with the mill pond.</p>

Appeal, No. 281, Jan. T., 1904, by Jennie M. Smith, from decree of O. C. McKean Co., Dec. T., 1903, No. 8, dismissing exceptions to auditor’s report in Estate of William Haskell, deceased. Exceptions to report of George A. Berry, Esq., auditor. The facts are stated in the opinion of the Supreme Court. Error assigned was in reversing the auditor.

<p>Appeal, No. 310, Jan. T., 1904, by plaintiff, from decree of C. P. McKean Co., June T., 1902, No. 2, dismissing bill in equity in case of John G. Gray and Carl B,. Bard, trading as Gray Chemical Company, to use of The Gray Chemical Company v. The Citizens’ Gas Company of Port Allegheny.</p> <p>Bill in equity for specific performance. Before Thomas, P. J., specially presiding.</p> <p>From the record it appeared that the defendant company contracted in 1896 to furnish John G. Gray sufficient natural gas to operate a chemical factory then owned by Gray and subsequently conveyed to the Gray Chemical Company. The bill alleged the failure of the defendant to supply the gas for which the contract was made. The prayer of the bill was for specific performance. The court below found the facts in favor of the complainant, but in addition found the following fact:</p> <p>32. By reason of the permanent improvements made by the defendant company, such as the drilling of additional wells in “ lasting territory ” and the increase of the capacity of their lines, the said defendant is now and since March 9, 1903, has been furnishing an adequate supply of gas to plaintiff, and it is as reasonably certain as the nature of the business can so make it that they will be able and willing to continue such supply indefinitely.</p> <p>The court refused to enter a decree. Upon exceptions to the adjudication Thomas, P. J., filed an opinion which was in part as follows :</p> <p>It is maintained by the plaintiff that in any event the bill should be held with leave to the plaintiff to hereafter apply for an order of specific performance, in case an occasion therefor should arise. We have given this phase of the case very careful consideration but, in view of the nature of the case and the facts involved we are persuaded that, while we have power so to do, it would not be a proper exercise of that power. The acts on the part of the defendant that have defeated plaintiff’s right of recovery were acts of permanent improvements on their property which resulted in their ability to comply with their contract with the plaintiff.</p> <p>We do not understand how an occasion might arise such as would entitle the plaintiffs to a decree without first bringing before the court allegations not found in their present bill for the support of which additional testimony, would be required. In other words, new averments and proofs amounting to a new cause of cptnplaint would have to be alleged and shown, and there is no reason why such may not be accomplished by a new bill as speedily and effectively as under the present one.</p> <p>Were the facts such that the plaintiff’s right of recovery had been defeated by such conduct of the defendants as might be performed or withheld, either temporarily or permanently, at the will of the defendant then there might be ample reason for holding this bill as suggested by the plaintiff. But in view of the facts found and the nature and character of the business we are persuaded that this bill should be disposed of, though the plaintiff might possibly hereafter acquire a right of specific performance of his contract for reasons others than averred in this bill.</p>

<p>Promissory notes—Non-megotiable paper—Estoppel—Banks and hanking— Discount.</p> <p>Where a non-negotiable note or order is presented to a bank for discount, and the bank on making inquiry of the maker receives such an answer as induces it to discount the paper, the maker cannot subsequently deny liability on the note, and it is immaterial that the bank gave no notice of the discount.</p>

Appeal, No. 107, Jan. T., 1905, by defendant, from judgment of C. P. Huntingdon Co., May T., 1900, No. 1, on verdict for plaintiff in case of Laura McGregor v. Pennsylvania Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Before Bell, P. J., specially presiding. At the trial it appeared that on November 8,1899, plaintiff’s husband, H. R. McGregor, a freight brakeman, was killed in the defendant’s yards in the city of Altoona.

Appeal, No. 272, Jan. T., 1905, by plaintiff, from order of C. P. Cumberland Co., Sept. T., 1904, No. 127, discharging rule to appoint viewers in case of Thomas B. Rockafeller v. The Northern Central Railway Company. Petition for the appointment of viewers to assess damages for injuries alleged to have been caused by the vacation of a public road. The defendant filed an answer in which it was alleged, inter alia, as follows : 3.

<p>Appeal, No. 114, Jan. T., 1905, by plaintiff, from decree of C. P. Erie Co., Feb. T., 1903, No. 1, dismissing bill in equity in case of Matthew H. Taylor, Charles H. Strong, Richard H. Townsend, Jr., and John W. Little, Trustees of the Real Estate of William L. Scott, deceased, v. The Erie City Passenger Railway Company and Erie Electric Railway Company.</p> <p>Bill in equity for an injunction. Before Walling, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Railroads—Private or public use—Eminent domain—Act of June 19, 1871, P. L. 1360.</p> <p>On a bill in equity filed under the Act of June 19, 1871, P. L. 1360, to restrain a railroad company regularly incorporated under the Act of April 4, 1868, P. L. 62, from exercising the right of eminent domain, on the ground that its charter had been obtained solely for a private use, the burden is upon the plaintiff to show clearly that the railroad is being constructed for a private and not a public use. The mere fact that the railroad is being constructed through an undeveloped country whore there are no communities or settlements and no mineral developments is no reason for denying to the company the right to exercise its corporate franchises.</p>

<p> Practice, C. P.—Amendment—Master and servant—Negligence. </p> <p>Where an action of trespass is brought for the death of a person alleged in the statement of claim to be an employee of the defendant, the statement may be amended after the period of the statute of limitations has expired, by an averment that the deceased was an employee of a third party, and not of the defendant.</p> <p> Negligence—Railroads—Private ■ railroads—Proximate and remote cause. </p> <p>In an action against a corporation owning a private railroad, to recover damages for the death of plaintiff’s husband, it appeared that at the time of the accident the decedent was working on some standing cars, and that certain other cars which were being loaded on the same branch track further up a grade, broke away, ran down the grade, collided with the car upon which the deceased was standing, and killed him. The evidence showed that on a Sunday night the defendant switched the cars which broke loose, to the point where they were to be loaded, and after setting the brakes and propping the wheels with wood, delivered them over to the employees of another company or a contractor for such company. Before the loading began the foreman in charge put additional props under the wheels. As the loading progressed the increased weight of the car caused the shoes of the brake to settle away from the wheels, and loosened them, causing the cars to break away. The brakes were not tightened up as the loading progressed, although this was customary. The accident occurred on Tuesday. It was claimed that additional safety switches should have been placed by the defendant along the tracks, in anticipation of such an accident. It was shown that the use of such a switch would tend to make more dangerous the ordinary operations of the cars over the tramway, and that, as a rule, they were .only placed at the lower end of the branch track, so as to protect the mainline. Held, (1), that as the cars which broke loose were not in the possession of, or under the control of the defendant at the time of the accident, the latter was not liable; (2) that the absence of a safety switch was not, under the circumstances, the primary or proximate cause of the accident; and (3) that binding instructions should have been given for defendant.</p>

<p>Appeal, No. 10, Jan. T., 1905, by plaintiff, from order of C. P. Elk Co., Oct. T., 1904, No. 171, setting aside arbitration proceedings in case of Maria P. Johnson v. George H. Crawford and Walter S. Yothers, trading as Crawford & Yothers.</p> <p>Rule to set aside arbitration.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order setting aside arbitration proceedings.</p>

<p>Appeal, No. 126, Jan. T., 1905, by D. D. Weschler et al., executors, from decree of O. C. Erie Co., Feb. T., 1904, No. 42, dismissing exceptions to auditor’s report in Estate of Jacob Weschler, deceased.</p> <p>Exceptions to report of Joseph M. Force, Esq., auditor.</p> <p>The auditor reported as follows :</p> <p>Jacob Weschler, at the time of his death, was engaged in the malting business, in the city of Erie, and had been so engaged for a number of years prior thereto.</p> <p>By his will he directed that his malting business should be continued for at least five years after his death, under the management and control of his son, Daniel D. Weschler, at a salary of f4,000 per year, with the provision that if at the end of five years, all his children then living so desired, it should be continued for a longer period, and further directed that at least once in the year, so much of the net profits of the business as could be divided without impairment of the capital or injury to the business, should be paid, one-fifth to his son, D. D. Weschler; one-fifth to his son, Joseph J. Weschler; one-fifth to his son, Andrew Weschler; one-fifth to his daughter, Mrs. Bena Leary, and the other one-fifth to his daughter, Mrs. Prances Brown.</p> <p>He further provided that when the business should be closed up the capital invested therein should be divided into five equal parts, one-fifth to be given to each of his two sons above mentioned, and the other two-fifths to be held by Daniel D. Weschler, and J. L. Sternberg, in trust, to pay the interest and income thereon to his daughters, Mrs. Bena Leary and Mrs. Frances Brown, during their respective lives, and at the death of either of them, the one-fifth held in trust for the mother to be divided among her children, share and share alike.</p> <p>He also gave to his daughter, Mrs. Leary, the use of the house in which she resided, said property after her death to go to her children, in fee.</p> <p>Ho gave to Mrs. Frances Brown the dwelling house and lot where she resides, for and during her life and after her death to go to her children, in fee simple, the value of these two houses and lots to be charged against the one-fifth interest in his estate given to Mrs. Brown and Mrs. Leary.</p> <p>The rest and residue of his estate he divided into five parts, giving to each of his sons one-fifth in fee simple, and to Daniel D. Weschler and J. L. Sternberg, the other two-fifths in trust, the same to be invested and the net income thereof to be paid, one-fifth to'Mrs. Bena Leary, and one-fifth to Mrs. Frances Brown, during the life of each of them, and at the death of either of them the one-fifth held for the mother, to be paid to her children, share and share alike.</p> <p>Under the direction in said will, Daniel D. Weschler took charge of the business at the death of his father, and conducted it as manager until its sale to the American Malting Company, in October, 1897.</p> <p>While acting as manager said D. D. Weschler furnished annually to the heirs and legatees a statement showing the condition of the business, which said statements were offered in evidence.</p> <p>A statement showing the condition of the business October 1, 1893, gives the net profit from the business for the preceding year as $16,932.36.</p> <p>A statement showing the condition of the business October 1, 1894, gives the net profit from the business for that year as $28,980.22.</p> <p>A statement showing the condition of the business October 1, 1895, gives the net profits from the business for that. year as $28,818.16.</p> <p>A statement showing the condition of the business on September 1, 1896, gives the net profit of the business for that year as $42,441.18.</p> <p>A statement showing the condition of the business on September 1, 1897, gives the net profits in the business as $34,557.36.</p> <p>The evidence also shows that at the date of Jacob Weschler’s death the net profits for the preceding year amounted to $16,932.36, being the same amount given above in the statement of October 12,1893.</p> <p>During the time Daniel D. Weschler acted as manager of the business, George W. Schlindwein had charge of the books and made all the statements furnished to the heirs. Mr. Schlindwein explains the methods by which he arrived at the profits for any given year, showing that it was ascertained by finding the difference between the cost of the raw material with expense of manufacturing and value of stock on hand added to the amount of sales received during the year.</p> <p>Mr. Schlindwein, in his testimony, gives the net profits for the time the business was managed by D. D. Weschler as $130,076.37, a slight variation from the amount shown in the statement prepared by him and furnished the legatees, and which have been offered in evidence. Of this amount $44,472.45 was distributed to the legatees, the exceptants, Mrs. Brown and Mrs. Leary, receiving $8,894.49.</p> <p>According to the testimony it appears that when the property was sold to the American Malting Company the executors received therefor $253,500.37 in excess of the actual cost of the plant. It is contended by the exceptants that the sum so received in excess of the amount invested in the plant should be treated as net profits and divided among the legatees, Mrs. Brown and Mrs. Leary, each being entitled to receive one-fifth thereof.</p> <p>Instead of this being done, one-fifth of this amount, together with one-fifth of the balance of the $130,076.37, the net profits earned under the management of Daniel D. Weschler, was by the executors turned over to Daniel D. Weschler and J. L. Sternberg, trustees under the will, to be held by them for the benefit of exceptants during their lives, and to be paid their children at their death.</p> <p>This is the principal question raised by the exceptions filed, whether the $130,076.37 and the $253,500.37 are “net profits ” within, the meaning of the will of Jacob Weschler, one-fifth of which are to be given to each of.his children, or whether these sums or either of them instead of being net profits are to be treated as a part of the capital of the estate, and one-fifth thereof to be held by said trustees, as provided in said will.</p> <p>Is the amount for which the plant sold in excess of the cost thereof, apart of the profit which Jacob Weschler intended should be distributed among his five children in equal shares, or did he have in mind the net earnings derived from the management of his business by Daniel D. Weschler during such time as it was conducted by him ?</p> <p>If instead of accepting the offer of the American Malting Company the executors had refused the same, would the increase in the value of the plant, as indicated by the offer, have been considered as profits to be equally divided among the five children of Jacob Weschler?</p> <p>Was this $253,500.87 for which the property was sold in excess of its cost, a profit arising during the time business was continued, or was it a gain derived from the sale of the plant on the discontinuance of the business, and could it have been within the mind of the testator when he provided that “so much of the net profits as can be divided without impairment of the capital or injury to the business, shall be divided and paid as follows,” when this gain or profit was only acquired by a discontinuance of the very business referred to ?</p> <p>Was this sum profit or was it a part of the capital and included within a later clause of the will which provides. “ when the business shall be closed up I give and bequeath the capital therein as follows : ”</p> <p>If this $253,500.37 was part of the capital of the business, then two-fifths thereof was properly given by the executors to J. L. Sternberg and Daniel D. Weschler, the trustees under the will.</p> <p>If it was not a part of the capital, but was part of the profits from the business while conducted by Daniel D. Weschler as manager, then two-fifths thereof should be distributed to the exceptants.</p> <p>This was part of the selling price of the malting plant, which consisted of the buildings, machinery, tools, horses, wagons and all things used in and necessary to carry on the-malting business as it had been theretofore conducted.</p> <p>It can hardly be claimed that this excess over the cost of the plant all accrued after the death of Jacob Weschler, and if it or any part thereof accrued prior to his death, that part, under the principle declared in Earp’s Appeal, 28 Pa. 368, would be part of the principal fund, and would therefore be capital and not profit within the contention of exceptants.</p> <p>I am of the opinion that the net annual profits derived from the business as conducted by- Daniel D. Weschler, was the fund which Jacob Weschler intended to have divided annually between his children, and that he had no thought or intention of making division in any manner of any sum for which his malting plant might be sold by his executors, in excess of the cost of the same.</p> <p>Unless, therefore, the rules of construction as laid down by the courts of this commonwealth, require this $253,500.37 to be treated as profits, under the terms of this will, it should not be so treated.</p> <p>In the cases cited by counsel for exceptants, the income devised was the earnings of money invested in stock or bonds, and the questions decided were mostly concerning accumulations of dividends or interest thereon. This was not an accumulation in the sense of increasing the capital by combining with it certain earnings of the business, but it was an increase of the value of the capital itself, unaided by any act of the manager.</p> <p>Nor do I regard this as a doubtful case or one where the will is either ambiguous or obscure, where it becomes necessary to apply the rules of construction declared in the case cited by counsel for exceptants.</p> <p>The intention of the testator seems perfectly clear that his children should share equally in the profit derived from the conduct of the business under the manager he had provided by his will, and that his daughters, Frances Brown and Bena Leary, should each have the income from one-fifth of his estate after it was divided, and in addition so much of the principal of said fifth as might be necessary for her comfortable support, the balance of said principal to go to the children of said daughter, at the death of the mother.</p> <p>I am, therefore, of the opinion that the total amount realized from the sale of the malting plant, was “ capital ” within the meaning and intention of the will of Jacob Weschler, and that the exceptants are not entitled to any portion thereof, but that two-fifths of the sum was properly paid by the executors to J..L. Sternberg and Daniel D. Weschler, in trust, the income from one-fifth to be paid by said trustees to Mrs. Frances Brown, and the income from the other fifth to be paid to Mrs. Bena Leary during the life of each.</p> <p>I am also of the opinion that Mrs. Frances Brown and Mrs. Bena Leary, the exceptants, are each entitled to receive the sum of $17,120.78 from' the fund paid by the executors to J. L. Sternberg and Daniel D. Weschler, trustees, that being their respective one-fifth share of the undivided profits amounting to $130,076.37 earned during the time the business was operated by Daniel D. Weschler as manager.</p> <p>Exceptions to the award of a share of the undivided profits to Frances Brown and to Bena Leary were filed by the executors and were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Deed—Parent and bhild—Fraud—Support and maintenance—Evidence— Presumption.</p> <p>Where an elderly woman feeling herself unable to continue the management of her real estate conveys it to her son in consideration of support and maintenance for her life, and it appears that the income will only be sufficient to support her, and that her support remains a charge on the land, no fraud or unfair practice will be presumed from the conveyance, and in the absence of evidence of fraud and actual undue influence such conveyance will be sustained. In such a case the absence of a power of revocation in the deed is immaterial.</p>

Appeal, No. 323, Jan. T., 1904, by defendant, from judgment of C. P. Union Co., May T., 1900, No. 34, on verdict for plaintiff in case of George W. Keefer v. Union County and the County of Northumberland. Assumpsit to recover a balance alleged to be due for the construction of a bridge, over the west branch of the Susquehanna river, between Milton in Northumberland county and West Milton in Union county.

Appeal, No. 21, Jan. T., 1905, by plaintiffs, from judgment of C. P. Fayette Co., Dec. T., 1903, No. 44, for defendants non obstante veredicto in case of Jemima A. Chalfant et al. v. Francis Rocks, William F. Soisson and Rocks Coal & Coke Company. Ejectment for three acres of coal in Redstone township. Before Umbel, J. At the trial it appeared that the defendants claimed title through one James A. Lynn who died in 1883.

Appeal, No. 286, Jan. T., 1904, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 47, reversing judgment of Q. S. Schuylkill Co., March T., 1903, No. 175, on verdict of guilty in case of Commonwealth v. John T. Shoener. Appeal from Superior Court. The facts are stated in tile O~1fl1Ofl of the Supreme Court. Error assig~zed was judgment of the Superior Court.

<p>Constitutional law—Local legislation—City of Pittsburg—City of Allegheny —Act of April 20, 1905, P. L. 221.</p> <p>The act of April 20, 1905, entitled, “An Act providing that where two cities are contiguous, and in the same county, the smaller may be annexed to the larger, prescribing the method of proceeding and the effect of annexation; providing for the division of such enlarged cities into wards, for the apportionment of common council, and for the indebtedness of such cities,” violates article III, section 7, subdivision 2, of the constitution, which provides that the general assembly “shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, borough or school districts,” inasmuch as the only two cities in the commonwealth that “are contiguous and in the same county,” are the cities of Pittsburg and Allegheny, and the clear intent of the act is to legislate locally for them alone. In determining that the act is unconstitutional the court will consider as without merit the contention that some time in the future there may be two other cities which may become contiguous and in that event can be consolidated under the provisions of the act.</p> <p>Potter, J., dissents.</p> <p>Citizens and taxpayers of Allegheny City may maintain a bill in equity to restrain the city of Pittsburg and its municipal officers from taking any proceedings under the act of April 20, 1905, to annex the city of Allegheny to the city of Pittsburg.</p> <p>A statute providing for the annexation of one city by another is a law “regulating the affairs” of cities within the meaning of article III, section 7, subdivision 2 of the constitution of Pennsylvania.</p>

Appeal, No. 59, Jan. T., 1905, by plaintiff, from order of C. P. Northampton Co., Dec. T., 1903, No. 36, refusing to take off nonsuit in case of Sarah Elizabeth Huston v. Freemansburg Borough. Trespass to recover damages for death of plaintiff’s husband. Before Scott, J. At the trial the court entered a compulsory nonsuit on the ground that the injuries sustained were from fright or shock alone, unaccompanied by any injury to the person.

<p>Appeal, No. 123, Jan. T., 1904, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1903, No. 3572, on verdict for plaintiff in case of Henry B. Neely, executor of Charles Blanchard, deceased, v. Philadelphia.</p> <p>Appeal from report of viewers.</p> <p>At the trial when James Lewis, a witness for plaintiff was under cross-examination, he was asked this question : “ Q. You have heard read here two deeds, where Mr. Blanchard sold the portion of his property abutting on the bed of the street to Mr. Hancock, and he sold the portion in rear of that also, fronting on Glenwood avenue, and under the law, and under those circumstances, the bed of the street, as far as the title remained •in Mr. Blanchard, was subject to an easement both of Mr. Hancock and Mr. Strong, their heirs and assigns. Now, I ask you under those circumstances, this piece of property being subject to an easement or right of way of the abutter, what is the value of that property in 1896 ? ”</p> <p>Objected to. Objection sustained. Exception for defendant. [1]</p> <p>“ Q. If the piece of property lying in the bed of Glenwood avenue belonging to the Blanchard estate were subject to the right of way of the abutters, Mr. Hancock and his heirs, as well as subject to the easement of the property adjoining it towards Twentieth street, what would have been the value in 1896 of this piece of ground? ”</p> <p>Objected to. Objection sustained. Exception for defendant. [2]</p> <p>Similar questions were asked other witnesses; and objections were sustained. [3-6]</p> <p>Defendant presented, inter alia, the following point:</p> <p>3. Under the facts of the ease, the plaintiffs are entitled to recover only the value of the lot subject to the right of way or easement which’ they gave their grantees, and they could not use it in such a way as to interfere with their right to have a front on Glenwood avenue. Answer : Refused. [9]</p> <p>Verdict and judgment for plaintiff for $3,500. Defendant appealed.</p> <p>Errors assigned were (1-6) rulings on evidence, quoting the bill of exceptions; (9) above instructions, quoting them.</p>

<p>Appeals, Nos. 205 and 206, Jan. T., 1904, by defendant, from order of C. P. York Co., Jan. T., 1901, No. 195, and Jan. T., 1902, No. 228, opening judgment and allowing an appeal nunc pro tunc in case of York County v. William O. Thompson.</p> <p>Petition to open a judgment entered against the county treasurer on report of county auditors, and for leave to appeal nunc pro tunc. Before Bitteng-er, P. J. *</p> <p>After Zeigler’s Petition, 207 Pa. 181, was decided, and the record of the case returned to the lower court, depositions were taken which tended to show that the county was defrauded, and that the defendant was a party to the fraud. The court made an order opening the judgment and permitting the county to appeal nunc pro tunc.</p> <p>JError assigned was the order of the court.</p>

<p>Appeal, No. 131, Jan. T., 1905, by defendant, from judgment of C. P. Lancaster Co., April T., 1905, No. 11, on case stated to determine marketable title to real estate in case of Elizabeth B. Cooper v. Jere M. Leaman.</p> <p>Case stated to determine marketable title to real estate.</p> <p>By the terms of the case stated it appeared that Harriet Brandt died on June 13,1904, leaving a last will and testament, dated January 9,1878, in which she provided, inter alia, as follows : “ I give, bequeath and devise all my estate, real and personal, which I may die seized and possessed of, to my only daughter, Lizzie Shearer, and to her heirs ; and, in the event of my daughter, Lizzie Shearer, should die single, unmarried and without issue, it is my will, and I do hereby give and bequeath and devise all my said estate, real and personal, as aforesaid, to my dear beloved mother, and to her heirs.” Mary Brandt, who was the mother of Harriet Brandt, died before the daughter, leaving no other heir, and Lizzie Shearer, who is the plaintiff, was married November 26, 1895, to Amos Cooper, and she had two children, both of whom, however, died prior to the death of testatrix.</p> <p>The plaintiff agreed, in consideration of the sum of $1,600, to convey to the defendant, in fee simple, a lot of ground, and tendered him a deed of conveyance and demanded the purchase money, but he refused to accept the said deed, alleging that the title was defective, in that the will of Harriet Brandt only vested in her a life estate.</p> <p>The court in an opinion by Landis, P. J., entered judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

Appeal, No. 144, Jan. T., 1904, by defendant, from judgment of C. P. Lancaster Co., May T., 1901, No. 69, on verdict for plaintiff in case of Abram B. Dietrich v. City of Lancaster. ' Trespass to recover damages for personal injuries. Verdict and judgment for plaintiff for $2,500.

Appeal, No. 252, Jan. T., 1904, by defendant, from judgment of C. P. Lancaster Co., Oct. T., 1902, No. 221, on verdict for plaintiff in case of Jacob Beaclx v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Landis, P. J. The facts are stated in the opinion of the Supreme Court. Defendant presented the following points : 2.

<p>Appeal, No. 287, Jan. T., 1904, by defendant, from judgment of Superior Court, Oct. T., 1908, No. 176, affirming judgment of C. P. Potter Co., June T., 1896, No. 289, dismissing exceptions to report of referee in case of C. L. Pattison & Company to use of Anna S. Pattison and Orville Pattison, Executors of Charles L. Pattison, deceased v. PI. II. Cobb.</p> <p>Appeal from judgment of Superior Court. ,</p> <p>The facts appear by the opinion of the Supreme Court, and Pattison v. Cobb, 26 Pa. Superior Ct. 72.</p> <p>. Errors assigned amongst others was the judgment of the Superior Court.</p>

Appeal, No. 301, Jan. T., 1904, by plaintiff, from judgment of Superior Court, Oct. T., 1903, No. 18, reversing judgment of C. P. Lancaster Co., April T., 1901, No. 2, on verdict for plaintiff in case of George E. Rumsey v. P. B. Shaw. Appeal from Superior Court.

Appeal, No. 360, Jan. T., 1904, by' defendant, from judgment of C. P. Lancaster Co., Nov. T., 1902, No. 7, on verdict.for plaintiff in ease of Sarah B. Carpenter v. City of Lancaster. Trespass to recover damages for injuries alleged to have been sustained by the pollution of a stream in the construction of a sewer. Before Hassler, P. J. ' Defendant presented, inter alia, the following points : 1.

Appeal, No. 297, Jan. T., 1903, by defendant, from judgment of C. P. Mifflin Co., Aug. T., 1902, No. 141, on verdict for plaintiff in case of Henry ~W. Miller to use of Sarah J. Miller, Administratrix, v. Lewistown Electric Light, Heat & Power Company. Trespass to recover damages for personal injuries.

<p> Partnership—Interest—Accounting. </p> <p>Interest should not be allowed on partnership accounts before there has been an accounting or settlement of the same, unless under the peculiar facts and circumstances surrounding the case the equities demand that interest be charged.</p> <p>Where a liquidating partner has had exclusive control of the finances and business of the firm, and has made no demands for a settlement, and no claim for interest on moneys withdrawn by his copartner-, no interest should be allowed in an accounting, on the moneys withdrawn by the copartner.</p>

<p> Insurance—Fire insurance—Examination of books and accounts. </p> <p>Where a policy of fire insurance provides that the insured after a loss shall produce his books and accounts at such reasonable place as the company may designate, and it appears that the company had its principal office out of the state, and no office within the state where books and accounts might be submitted, and the company after a loss notifies the insured that he would be required to produce his books and accounts at such reasonable place as may be designated by the company, but the company does not thereafter designate such place, the failure of the insured to produce his books and accounts is not a ground for a defense by the company in an action upon the policy.</p> <p>Mitchell, C. J., dissents.</p>

<p>Appeal, No. 12, Jan. T., 1905, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1904, No. 635, refusing a preliminary injunction in case of Philip Wunderle v. David M. Ellis.</p> <p>Bill in equity for an injunction and to compel the assignment of a mortgage.</p> <p>The bill averred: that plaintiff was tenant of premises 445-47 New Market street, Philadelphia, under a lease dated July 27, 1899, for a term not to exceed eleven years. That the owners of said premises (Trouts by name) had executed a mortgage on said premises, dated December 16, 1895, which had been assigned to defendant (Ellis) March 28,1904, and a writ of scire facias had been issued in common pleas No. 4 of Philadelphia county, of June Term, 1904, No. 635, and on the same day said premises had been conveyed to one Brown.</p> <p>That under the terms of said.lease, tenant had the right to pay out of the rents, interest on said mortgage, taxes, etc., and had in fact paid the same, and there was due him from the property about $100, on account of over-payments by him.</p> <p>That said premises had been combined with other premises to form a large plant, and were used for the manufacture of candy by the plaintiff.</p> <p>That at the time suit was brought on the mortgage no interest was due.</p> <p>That the plaintiff had tendered the whole amount of debt, interest aiid costs in said mortgage suit, and requested an assignment of said bond and mortgage, and this was refused.</p> <p>That plaintiff is willing and ready to pay all of said debt, interest and costs, and a sale of said premises would be of irreparable damage to him.</p> <p>The bill prayed for an injunction and for an assignment of the mortgage.</p>

Appeal, No. 121, Jan. T., 1905, by the York Haven Water & Power Company, from decree of C. P. Lancaster Co., Trust Book No. 19, p. 257, dismissing appeal from assessment by county commissioners. Appeal from tax assessment. Hassler, J., filed the following opinion: The York Haven Water & Power Company is a corporation organized for the purpose of supplying water and power and of generating electricity by means of water power.

Appeal, No. 133, Jan. T., 1905,'by plaintiff, from judgment of C. P. Lancaster Co., June T.; 1902, No. 26, on verdict for defendant in case of Mardula J. Weaver v. Tlie Pennsylvania Railroad Company. Trespass to recover damages for personal injuries.

<p> Will—Estate in fee simple—Defeasible estate—Tenants in common—Statute of limitations—Trust and trustees. </p> <p>Testator who died in 1859, directed as follows: “I give and devise unto my beloved wife and to my son, all my property, both real, personal and mixed to be held for herself and in trust for my said son—provided, however, that if my said wife should again marry then I give and devise the property before mentioned to my son and his heirs forever, and the trust thereby created in favor of my son shall after such marriage be null and void.” The widow did not marry again, and was in possession of the real estate and the enjoyment of it until her death in 1891. In 1880 the son’s interest was sold by the sheriff under a judgment against the son. In Í905, the grantee of the purchaser of the real estate brought an action of ejectment against the committee of the son who had been declared a lunatic. After the death of the widow the real estate remained'either in the possession of the son or of his committee, who exercised all the right of exclusive ownership, collecting the rents and appropriating them to their own use, after paying taxes and making alterations and repairs. Held (1), that the widow took a defeasible fee simple estate in the undivided one-half of the real estate which became an absolute fee simple; (2) that the statute of limitations defeated a recovery of the one-half interest in the son; (3) that a verdict and judgment in favor of the committee of the son should be sustained.</p> <p>Open, notorious and uninterrupted possession of the whole by a tenant in common for more than t-wenty-one years, claiming the whole land as his own, and taking the whole profits exclusively to himself is evidence from which a jury may draw the conclusion of an ouster, and an adverse possession.</p>

Appeal, No. 202, Jan. T., 1903, by plaintiff, from order of C. P. Lancaster Co., Nov. T., 1900, No. 64, refusing to take off nonsuit in case of Harry H. Moore v. City of Lancaster. Trespass to recover damages to land. Before Landis, P. J. The opinion of the Supreme Court states the case. Error assigned was the order refusing to take off nonsuit.