Volume 213 — Pennsylvania State Reports

<p>Appeal, No. 19, Jan. T., 1905, by plaintiff, from order of C. P. Delaware Co., Dec. T., 1903, No. 110, refusing to take off nonsuit in case of Elias Talbot v. Charles A. Sims, trading as Charles A. Sims & Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The facts relating to the accident are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 35, Jan. T., 1904, by The Lackawanna Iron and Steel Company from order of C. P. Lackawanna Co., Sept. T., 1902, No. 1470, dismissing exceptions to report of viewers In re Costs and Expenses of Sewer, Section G. Seventeenth Sewer District of the City of Scranton.</p> <p>„ Exceptions to report of viewers. Before Newcomb, J.</p> <p>Amongst the exceptions was the following :</p> <p>“ Fourth: The plans prepared for the said work and filed in the bureau of engineering, and which are distinctly referred to and made part of said ordinance, included as a portion of the territory to be sewered by said sewer certain lots and blocks, situate south of Gallagher court, which said lots and blocks were eliminated by the city engineer after the passage of said ordinance and after approval of the said plans and specifications, and were not taken into consideration by the o viewers so that ,the viewers’ report is based upon a different territory from that which is involved in the ordinance and in the plans and specifications prepared for said work. This change of territory invalidates the ordinance completely.”</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to report of viewers.</p>

<p>Appeal, No. 191, Jan. T., 1904, by Sally A. Merwine, from decree of O. C. Luzerne Co., No. 414, of 1901, dismissing appeal from, register of wills in Estate of</p> <p>Hannah B. Keisler, deceased.</p> <p>Appeal from register of wills. Before Freas, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing appeal from register of wills.</p>

<p>Will — Codicil—Construction—Effect of codicil.</p> <p>A gift once made by will is not to be cut down by a subsequent codicil unless the intention of the testator to that effect appears clearly, or by necessary implication.</p> <p>Where a gift is made of an estate, a revocation will not be implied unless no other construction can be placed upon the language.</p> <p>Testator, after giving certain legacies, gave the balance of his estate to the heirs of himself collectively. On the same day-he executed a codicil by which he gave certain sums to three persons who were his heirs, concluding with the words “and no more.” Held (1), that the words “and no more” applied to the amounts named in the codicil, and not to the balance of the estate given to the heirs by the will; (2) that the three heirs mentioned in the codicil were entitled to share in the balance of the estate.</p>

<p>Appeal, No. 78, Jan. T., 1905, by Albert Sigel et al., from decree of O. C. Warren Co., Sept. T., 1904, No. 19, distributing estate of Charles Sigel, deceased.</p>

<p>Theaters — Tickets—Contract—Trespass—Form of action.</p> <p>The proprietor of a theater is a private individual, engaged in a strictly private business, which, though for the entertainment of the public, is always limited to those whom he may agree to admit to it. There is no duty, as in the case of a common carrier, to admit every one who may apply and be willing to pay for a ticket, for the theater proprietor has acquired no peculiar rights and privileges from the state, and is, therefore, under no implied obligation to serve the public. When he sells a ticket he creates contractual relations with the holder of it, and whatever duties on his part grow out of these relations he is bound to perform, or respond in damages for the breach of his contract, if it is of that only that complaint can be made.</p> <p>A theater ticket being a mere license to the purchaser which may be revoked at the pleasure of the theatrical manager, upon such revocation, if the person attempts to enter, or if, having previously entered, he refuses to leave upon request, he becomes a trespasser, and may be prevented from entering or may be removed by force, and can maintain no action of tort therefor. His only remedy is by an action on the contract to recover the money paid for the ticket and damages sustained by the breach of the contract implied by the sale and delivery of such ticket.</p> <p>In an action against the proprietors of a theater it appeared that the plaintiff held two reserved seats for a particular performance. Before the evening of the performance the municipal authorities ordered certain end seats of aisles to be removed. This was done, and in the confusion resulting from the sale of seats thereafter, the seats of the plaintiff were sold to other parties. The plaintiff’s two seats had been originally purchased in connection with six others, all to be used by one family. When the plaintiff and his family presented their coupons they were informed that they could not under the circumstances be given the seats called for. They were offered eight other seats farther back, or seats in two of the boxes. All of these were refused, and the party becoming noisy were invited to go into the corridor. Explanation was made to them of the cause of the trouble, and their money was tendered back to them. Plaintiff refused this, left the theater, and subsequently brought a suit in trespass for the price of the tickets, and for the inconvenience, annoyance, mortification and humiliation suffered by him. Held, that an action of trespass would not lie.</p>

<p>Mines and minimj — Coal lease — Sale of coal — Estate in coal — Sheriff’s sate —Royalties.</p> <p>A coal lease gave to the lessee the right to mine and remove 80,000 tons of coal annually, and was to determine and end when all the minable coal should be removed, unless the term should be sooner ended under other provisions contained in the lease. An annual rental of 120,000 was to be paid to the lessors. It was further provided that if the lessee “shall pay twenty thousand dollars rent in any one year, as is hereinbefore provided, and during that year less than eighty thousand tons of coal, of the pounds aforesaid, be mined and removed, the said party of the second part may, in any subsequent year within six years thereafter, during the continuance of this lease, mine and move sufficient coal to make up the deficiency.” On default in the payment of “an installment of rent, or any part thereof,” for a period of sixty days, it was covenanted that the lessors, in their option might declare the term of the “lease” at an end, and the “lease” was thereupon to absolutely cease and determine. The royalties were duly paid, and more than six years after the date of the lease a judgment was entered against one of the lessors, and all “his right, title and interest in and to all the coal in and under” the land embraced in the lease was sold at sheriff’s sale, and thereafter the share of the royalties previously paid to the defendant in the execution was paid to the purchaser at the sheriff’s sale. Held, (1) that under the terms of the lease the lessor retained an interest or estate in the coal to which a lien of a judgment would attach; (2) that after the sheriff’s sale the royalties were properly paid to the purchaser of the lessor’s interest; (3) that although añ ordinary coal lease may in a sense be a sale of coal in place, yet the rules applicable to sales are not to be applied indiscriminately to such instruments, but each is to be construed like any other contract by its own terms.</p> <p>In the above case until the coal was mined, the legal title remained in the lessors, and if not taken from them within six years during the continuance of the lease in the manner stated, the money paid them belonged to them as rental for their land which had been occupied by the lessee, although not used and appropriated by it as it had the right to do.</p> <p>Mestrezat, J., dissents.</p>

<p>Appeal, No. 91, Jan. T., 1905, by plaintiff, from decree of C. P. Luzerne Co., March T., 1903, No. 1, dismissing bill in equity in case of Martin Howley v.' The Central Valley Railroad Company.</p> <p>Bill in equity for an injunction to restrain the construction of a railroad company to be operated by electricity. Before Halsey, J.</p> <p>From the record it appeared that the defendant company was incorporated under the Act of April 4, 1868, P. L. 62.</p> <p>The prayer of the bill was as follows:</p> <p>“That the court issue a perpetual injunction directed to the defendant, restraining said defendant and all persons claiming to act under its authority, direction or control from constructing or operating an electric railway over and upon the above described land appropriated from the plaintiff or between the cities of Wilkes-Barre and Pittston, and further restraining the defendant from laying over and upon the above described land a “ third rail ” or any other appliance or thing peculiarly and solely adapted to the equipment or operation of an electric railway.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 251, Jan. T., 1904, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 13, affirming judgment of C. P. Blair Co., Jan. T., 1902, No. 109, on verdict for plaintiff in case of Bridget ITads v. Thomas J. Tiernan. Appeal from the Superior Court. The facts are stated in the opinion of the Supreme Court and in 25 Pa. Superior Ct. 14. Error assigned was the judgment of the Superior Court.

Appeal No. 293, Jan. T., 1904, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1903, No. 228, on verdict for plaintiff in case of Jane Chase v. Clearfield Lumber Company, Limited. Trespass to recover damages for injuries to land by the cutting of timber. Before Wilson, P. J., of the Eighteenth Judicial District specially presiding. The facts are stated in the opinion of the Supreme Court.

<p>Constitutional law — Title of statute — Courts—Juvenile court — Trial by jury —Class legislation — Act of April 23, 1903, P. L. 274.</p> <p>The Act of April 23, 1903, P. L. 274, entitled an act “Defining the powers of the several courts of quarter sessions of the peace, within this commonwealth, with reference to the care, treatment and control of dependent, neglected, incorrigible and delinquent children, under the age of sixteen years and providing for the means in which such power may be exercised,” is constitutional. The act is sufficient in title, and does not contain more- than one subject. It does not create a new court; nor does it deprive juveniles charged with crime of their constitutional right of trial by jury; nor is it class legislation.</p>

<p>Railroads — Mortgage—Foreclosure—Decree of court — Estoppel—Laches.</p> <p>Whore purchasers of a railroad in a mortgage foreclosure proceeding have availed themselves of the permissive decree of the court to use bonds as purchase money, and the amount due upon the bonds has been specifically fixed by the court, and the purchasers relying upon the decree have purchased bonds therein designated, and applied them on their bid, received a deed for the property, formed a new corporation, and expended large sums of money, other bondholders who had full notice of the decree and proceedings thereunder, and of the action of the purchasers, have no standing, long after the transaction has been consummated, to petition the court to change the decree so as to correct an alleged inequality amongst the bondholders.</p>

<p>Appeal, No. 116, Jan. T., 1905, by Duncannon National Bank, from order of C. P. Perry Co., Aug. T., 1903, No. 29, on bill in equity in case of The Real Estate Trust Company of Philadelphia v. The Perry County Railroad Company.</p>

Appeal, No. 295, Jan. T., 1906, by R. Thomas Garrett and others, candidates named in a certificate of nominations, from order of C. P. Chester Co., sustaining exceptions to said certificate of nomination filed by Thomas Lack and others. The court sustained the objections. Objections to certificate of nominations. Hemphill, P. J., filing the prevailing opinion from which Butler, J., dissented. The facts are stated in the opinion of the Supreme Court.

<p>Ejectment — Voluntary appearance — Proof of possession by defendant.</p> <p>Where a defendant in an ejectment enters a voluntary appearance without service of a writ upon him, or notice given as directed by any statute to appear and plead to the action, the plaintiff will be entitled to judgment, but only by proof of title in himself, and possession by the defendant of the lands in controversy.</p> <p>The plaintiff in an ejectment is not in a position to ask for the application of the Act of March 29, 1824, P. L. 167, where he himself has not complied with the directions of the act.</p> <p>Ejectment — Service of writ — Nonresident defendant — Publication of rule to appear and plead — Possession—Practice, C. P. — Acts of April 13, 1807, 4 Sm. L. 476, April 14, 1851, P. L. 612, and April 13, 1858, P. L. 256.</p> <p>Where a sheriff’s return to a writ of ejectment for unseated land shows that the land was unoccupied, that the defendant did not reside in the county, and had no agent in charge of the land in the county, and that notice of the suit was given personally to the defendant in another county, and the record further shows an appearance for the defendant, but fails to show a rule on him to appear and plead with publication thereof as provided by the Acts of April 14, 1851, P. L. 612, and April 13, 1858, P. L. 256, the return and the record raise no presumption that the defendant was in possession of the land described in the writ.</p> <p>Ejectment — Title from commonwealth — Abandonment—Adverse possession.</p> <p>A perfect title passing by the commonwealth’s patent is in no danger from the doctrine of abandonment, unless, in consequence of abandonment, adverse possession is taken by another and held for the period of the statute of limitations.</p>

<p>Appeal, No. 100, Oct. T., 1905, by defendants, from decree of C. P. No. 2, Allegheny Co., April T., 1905, No. 186, on bill in equity in case of James W. Morgan v. Mary Olive Morgan Reel et al.</p> <p>Bill in equity for partition.</p> <p>The case was heard by Over, J., a judge of the orphans’ court of Allegheny county, specially presiding at the request of the judges of the common pleas under the provisions of the act of April 18, 1905.</p> <p>From the record it appeared that on March 24, 1870, Conrad Reel died seized in fee-simple of certain real estate, and that on May 31, 1886, his widow died seized also of certain real estate in her own right. They left to survive them as heirs at law four children, Jacob G. Reel, Annie E. McGuire, John A. Reel and William H. Reel. John A. Reel died on January 24, 1893, leaving to survive him, as his heirs at law, a widow and seven children, all named as defendants in the bill. William H. Reel died on May 26,1901, intestate, seized of the undivided one-fourth of the real estate of his father and mother. He left to survive him as his heirs at law, a widow, Catherine T. Reel, and two daughters, Stella C. Reel and Catherine Pauline Matthews, and two grandchildren, James W. Morgan and Mary Olive Morgan. These two grandchildren were the children of William H. Reel’s deceased daughter, Rosanna. C. Morgan. On November 14, 1885, William H. Reel and his wife, Catherine T. Reel, by proper proceedings in the court of common pleas No. 1, at No. 578, December Term, 1885, adopted his said granddaughter, Mary Olive Morgan, under the name of Mary Olive Reel, she being then a minor about four years old. James W. Morgan filed this bill for the partition of the lands of his grandfather, Conrad Reel, and his grandmother, Rosanna Reel.</p> <p>The court held that Mary Olive Reel, who was named as one of the defendants, was entitled only to a child’s share of the estate of her adopted father, and was not entitled to share with her brother in the portion which their deceased mother would have taken if she had lived. The court also decided that Judge Over had a right to hear the case.</p> <p>Error assigned was the decree of the court.</p>

<p>Trusts and trustees — Restraint of marriage — Condition—Limitation.</p> <p>Where a cestui que trust is given the income of a fund “ during the term of her natural life, or so long as she remains unmarried,” with a gift over “in case of her death or marriage,” the gift is upon a limitation in favor of 'the cestui quo trust during the period she remains unmarried, and is valid. Such a provision is not to be construed as an unlawful condition in restraint of marriage.</p> <p>In Pennsylvania the right of a man to do as he will with his own has always been liberally construed. Accordingly, a donor, not under any obligation to give, may give with such conditions as he pleases, subject only to the restriction that the conditions shall not be clearly illegal. Thus a man may not settle his own property on himself so as to keep it out of the reach of his creditors, for that would lead directly to fraud. But a parent or other person, not bound to give at all, may give on a spendthrift trust though the gift is thus placed beyond the reach of the donee’s creditors. In considering any Restriction there is no presumption of illegality. On the contrary, the presumption is in favor of innocence and validity.</p>

Appeal, No. 216, Jan. T., 1905, by defendant, from order of O. & T. Phila. Co., Sept. T\, 1903, No. 734, refusing a new trial in case of Commonwealth v. Louis O. Hine. Rule for a new trial after verdict of murder in the first degree.

<p>Appeal, No. 117, Oct. T., 1905, by Safe Deposit & Trust Company, Trustee et al., from decree of O. C. Westmoreland Co., Nov. T., 1899, No. 43, dismissing exceptions to auditor’s report in Estate of Laura C. Mace, deceased.</p> <p>Exceptions to report of Edward B. McCormick, Esq., auditor.</p> <p>Steel, P. J., filed the following opinion:</p> <p>A careful examination of the testimony, exceptions, papers and repórt in the case convinces us that all the interest that could fairly have accrued on the money and securities in the. hands of the accountant has been charged against him, and that the proper amount of premium on the bonds sold has been accounted for. There is no proof that he improperly received anything for transferring the $10,000 of four per cent government bonds for the longer term five per cent school bonds. And there can be no doubt but that the trade was of advantage to the estate both in the amount of interest to be received and the ultimate value of the bond. The contestants had their day in court and as the time for the review of the original account had expired they were not entitled to have that decree opened.</p> <p>And now, to wit: May 6,1905, the exceptions are dismissed and the auditor’s report is confirmed absolutely.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 188, Oct. T., 1905, by W. E. Barubart, Exr. of Mrs. O. IT. Stark, deceased, from order of G. P. Westmoreland Co., Aug. T., 1900, No. 552, dismissing exceptions to auditor’s report in case of Mrs. C. TI. Stark, Assignee of W. R. Barnhart et al., v. W. S. Byers, Exr. of C. H. Stark, deceased.</p> <p>Exceptions to auditor’s report. H. W. ~Walkinshaw, Esq., auditor.</p> <p>From the record it appeared that the fund for distribution before the auditor was raised in foreclosure proceedings under a mortgage created by Caleb H. Stark in his lifetime. The mortgage originally amounted to $20,000, and $4,000 of this had been assigned by Barnhart to Mrs. C. H. Stark in her husband’s lifetime. Stark by his will gave his wife a life interest in his real and personal property.</p> <p>Other facts appear by the auditor’s report which was in part as follows:</p> <p>' In the verdict fixing the amount due Mrs. C. H. Stark, the court refused to allow any interest to her, except up to the time her life estate began, and it further decided that she was liable for the payment of the interest accumulated on this mortgage during her life tenancy. That portion of the opinion of his honor Judge McConnell, which bears on this question, and was filed at that time, is as follows :</p> <p>There is no dispute between the parties about the fact that Mrs. C. H. Stark, through these assignments, became possessed of the right to $4,000 of. the mortgage debt, and is yet the owner of it. The verdict ascertains that she is the widow of C. H. Stark, deceased, and through his will is possessed of a life estate in the mortgaged premises. It also ascertains that this life estate vested in her by the death of her husband on January 1, 1899.</p> <p>There is but one question of law involved in this special state of facts, and that is, whether Mrs. C. H. Stark can collect interest on her share of the mortgage since the time she became tenant for life of the mortgaged premises through her husband’s will. It is the duty of a life tenant to pay the interest falling due on incumbrances; interest on a mortgage is payable by the life tenant whether the mortgage was created by the testator who devised the life estate or by a former owner: Derr’s Est., 18 Phila. 224; Pennock v. Imbrie, 8 Phila. 140; Gross’s Est., 18 Phila. 154; Fidelity Ins., etc., Co. v. Dietz, 132 Pa. 36; Stoops’s Est., 31 Pitts. L. J. 34; Lang’s Est., 31 Pitts. L. J. 173; School’s Est., 1 Pitts. 358; McDonald v. Heylin, 4 Phila. 73 ; Jewell’s Est., 1 W. N. C. 404; Schurr’s Est., 13 Phila. 353.</p> <p>Mrs. Stark was therefore liable for the payment of the interest that has accumulated on this mortgage during her life tenancy of the mortgaged premises. The original mortgagee and his assignees, other than Mrs. Stark, are not compelled to regard the existence of this duty which had its inception since the making of the mortgage, but may enforce the mortgage against the entire title as it existed in the mortgagor when the mortgage was given.</p> <p>A widow, tenant for life, is bound to keep down encumbrances, pay taxes, water rent and repairs in exoneration of those entitled in remainder : Schurr’s Est., 13 Phila. 353.</p> <p>When a life tenant neglects to pay the taxes and the remainder-man pays the taxes, the latter may recover the amount of such payments from the estate of the deceased life tenant: Shue’s Est., 5 York, 25.</p> <p>There is no apparent reason why this would not be true of interest which it was the duty of the life tenant to pay. The law does not favor such circuity of action.</p> <p>The question arises whether, if Mrs. Stark, the life tenant, neglected to pay the interest due during her life estate on that part of the mortgage assigned to Mrs. Mary M. Barnhart, to wit: the sum of $1,277.20, and the interest on that part of the mortgage assigned to W. R. Barnhart, to wit: the sum of $3,057.89, for the same period, under the law and the direction of the court at the time of the rendition of the verdict aforesaid the auditor can deduct this amount of interest from the sum coming to the estate of Mrs. C. II. Stark out of this fund.</p> <p>The estate of Mrs. C. H. Stark is liable to the remainder-man for these amounts of interest, and they could be collected by him out of her estate, if they had been collected from him. It is from the estate of Mrs. G. H. Stark as represented in this distribution that the auditor proposes to deduct these amounts of interest. It is simply having her estate do that which the law compels her to do. If her executor had paid it he would be entitled to repayment from the funds of the estate after-wards coming into his hands: Gross’s .Est., 18 Phila. 154; MeKerrahan v. Crawford, 59 Pa. 390.</p> <p>Other portions of the auditor’s report are quoted in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

Appeal, No. 118, Oct. T., 1905, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1904, No. 274, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Clara Y. Strieker and Oscar .1. Strieker, executors of Julius Strieker, deceased, v. J. J. McDonnell. Scire facias to revive a judgment. Rule for judgment for want of a sufficient affidavit of defense.

<p>Negligence — Street railways — Infants—Nonsuit.</p> <p>In an action against a street railway company to recover damages for the death of a child five years old, run over by a car, a nonsuit is properly entered, where the only witness who saw the accident testified that the child was playing behind a pile of earth about five or six feet from the track and suddenly ran out on the track when the car was not more than four feet away.</p>

<p>Evidence — Facts—Opinion—Witness—Ejectment.</p> <p>In an action of ejectment the only question involved was the location of a boundary lino. A surveyor who made investigations on the ground was asked this question: “Where, in your opinion, is the line between Nos. 83 and 84?” The trial court ruled that as the investigation made by the witness on the ground was for the purpose of ascertaining the boundary line, and as he had given the facts as he learned them, he should be permitted to answer the question. Held, to be proper, inasmuch as the evidence was not a mere opinion of the witness, but a summary of his observations on the ground, and therefore testimony to a fact.</p>

Appeal, No. 25, Oct. T., 1905, by Emma T. Scott, from decree of O. C. Beaver Co., refusing an issue devisavit vel non in estate of James Wilkinson, deceased. Petition to set aside the probate of a will. Before Wilson, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was decree refusing an issue.

<p>Railroads — Right of way — Disputed title — Equity—Injunction.</p> <p>Where a railroad company organized under the general railroad law of Pennsylvania enters upon lands and lays its tracks with the consent of a person who had long been in possession of the lands under a claim of title, and thereafter takes title to such land from the person in possession, another railroad company which has acquired an adverse title to the land has no right to enter upon them and tear up the tracks of the first company, and if it does so it will be restrained by injunction from a repetition of such action, but such injunction will be subject to the right of the parties to establish their rights in the land in a court of law.</p>

Appeals, Nos. 32 and 33, Oct. T., 1905, by defendant, from orders of C. P. No. 3, Allegheny Co., Aug. T., 1903, Nos. 240 and 241, refusing rules to open judgment in cases of Frank P. McDermott v. Laura Biggar Bennett and Aaron E. Johnston v. Laura Biggar Bennett. Petition for rule to open judgment.

Appeal, No. 85, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co.,, Oct. T., 1901, No. 300, on verdict for plaintiffs in case of John C. Sheehan et al. v. City of Pittsburg. Assumpsit on a municipal contract for the construction of a street. Before Frazer, P. J. At the trial it appeared that on September 16,1896, the city of Pittsburg entered into a contract with W. E. Howley & Co. for the construction of a street known as the Grant Boulevard.

Appeal, No. 274, Jan. T., 1905, by defendant, from decree of C. P. York Co., Aug. T., 1905, No. 2, appointing a receiver in case of Simeon M. Jones v. Thomas Weir. Bill in equity for an injunction and a receiver. Before BitTENGER, P. J. From the record it appeared that the court entered a decree appointing a receiver without any findings of fact or opinion filed. Error assigned was the decree of the court appointing a receiver.

Appeal, No. 69, Oct. T., 1905, by Margaret F. Campbell, from decree of O. C. Butler Co., refusing an issue devisavit vel non in Estate of Araminta Masseth. Petition for an issue devisavit vel non. Before Galbreath, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was decree refusing an issue.

<p>Public officers — Board of revision — County officers — Appointment—Judicial functions — Constitutional law.</p> <p>The three persons who compose the board for the assessment and revi- . sion of taxes created by the Act of March 24, 1905, P. L. 47, for counties containing a population of not less than 300,000, nor more than 1,000,000, are not county officers, and the direction of the' act that they shall be appointed by the courts of common pleas of the proper county, is constitutional. Sección 2 of article XIV of the constitution which declares that county officers shall be elected at the general elections, has no application to the board created by the act of March 24, 1905.</p> <p>The provision in section 21 of article V of the constitution, that judges shall-be exempt from the imposition of nonjudicial duties, applies only to judges of the Supreme Court.</p>

Appeal, No. 176, Oct. T., 1905, by-plaintiff, from order of C. P. Cambria Co., Sept. T., 1904, No. 376, refusing to take off nonsuit in case of Margaret J. Burns v. Johnstown Passenger Railway Company. Trespass to recover damages for death of plaintiff’s husband. Before O’Connor, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Negligence — Master and, servant — Dangerous machinery — Risk of employment — Notice to master.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, the plaintiff testified that he considered the cogwheels on a machine at which he worked were dangerous, and that he had complained of it to the defendant’s master mechanic. In reply he was told by the master mechanic that the latter would like to change the position of the cogwheels, but that the superintendent would not give him time to do so, but, he added, “I will change them on Sunday.” The change was not made then, and thereafter plaintiff repeatedly called the attention of the master mechanic to the condition of the cogs. He testified that he did this as often as three or four times a week during a period of some six weeks, and that the answer was that the change would be made on Sunday, when the machinery was idle. Finally, on a certain Monday, plaintiff again called attention" to the fact that the change had not been made, and again the promise was renewed, that the cogwheels would be changed the following Sunday. The plaintiff continued to work during that week. On the succeeding Monday morning he went to the mill at a very early hour, about three o’clock in the morning, as was his duty, and he then found that the promise had again been broken, and no change in the position of the cogwheels upon the emptier had been made. He began work, however, and during the manipulation of the machinery in the effort to get it started, the sleeve of his right arm caught in the cogs, his arm was drawn in, and so badly mangled, that amputation was necessary. Held, that it was error to enter a compulsory nonsuit.</p> <p>Under the peculiar circumstances of this case, the conclusion as to whether the plaintiff was negligent in continuing his work on the morning of the accident, was a question of fact, which should have been left to the determination of the jury.</p>

<p>Negligence — Electric light company — Exposed wire — Pleadings—Construe-live notice.</p> <p>In an action against an electric light company to recover damages for death of plaintiff’s son, the statement charged that defendant maintained and operated two lines of wires extending from its main line to the cross arms of a pole which sustained a number of telephone wires; and that it “negligently and carelessly allowed and permitted said two wires without proper insulation to be placed on a cross arm of said pole thereby charging said arm and braces attached with a powerful current of electricity.” The case was tried upon the theory that the placing of the wire on the cross arm was a part of the construction. Held, (1) that the averment gave notice to the defendant that the plan of construction was brought into question; (2) that if there was doubt as to the sufficiency of the averment, it was too late to raise it after a trial on the merits.</p> <p>In an action against an electric light company to recover damages for death caused by an exposed wire, there was evidence tending to show that the manner in which the electric wires were carried through a network of telephone wires was faulty, and that the wire alleged to have caused the injury had been in use a number of years, and had sagged, and that its insulation had worn off. The court charged that with respect to faulty construction, notice was unnecessary since the defendant must be held to have notice of what it had designedly done; and with respect to a defective state of repair, it must be held to know that which supervision reasonably exercised would have disclosed. Held, that the instruction was correct.</p> <p>In an action against an electric light company to recover damages for the death of plaintiff’s son, an employee of a telephone company, it appeared that the defendant for a consideration permitted the telephone company to string a large number of telephone wires on one of its poles. The telephone wires were in themselves harmless, and death by electricity could have been caused only by the deceased coming into contact with some object charged with a powerful current. It appeared that there were eleven cross arms, and that the electric light wires were attached to the faces of the seventh and eighth cross arms. Under the cross arms were iron braces. The covering of the electric light wire on the seventh cross arm was worn off at its point of contact with an iron bolt which passed through a brace. It was customary for persons inspecting the wires to use the braces as an aid in climbing and as supports. The deceased while engaged in the duty of inspecting, was killed by an electric shock, and his body was found on the wires supported by the fifth cross arm.. There was no direct evidence that the deceased was killed by coming into contact with the charged iron brace, but the position of his body indicated that he had been above the fifth cross arm and in close proximity to the brace of the seventh cross arm. Held, that the evidence was sufficient to sustain the finding of the jury that the death was caused by contact with the charged iron brace.</p>

<p>Negligence — Railroads—Grade crossing- — “Stop, look and listen ” — Death—• Presumption — Evidence.</p> <p>The presumption is that one about to cross a railroad track at grade did his duty by stopping, looking and listening, and this presumption can only be overcome by testimony showing or tending to show that he failed to observe the precautions required by law.</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband at a grade crossing, the evidence tended to show that at the place of the accident the railroad tracks ran north and south a short distance west of and parallel with a river. Between the river and the railroad was a public road, also running north and south, on which the deceased was driving. An ice house 739 feet and a battery wall 363 feet, both south of the crossing, were located between the public road and the railroad. From the battery wall there was a down grade until the road reached a bridge which crossed a small stream 109 feet south of the crossing. The road at the bridge was twelve feet below the level of the railroad tracks. At the crossing there were five tracks. The deceased was driving his team north on the road. At the ice house he stopped his team and looked for trains. He again stopped at the battery wall, got off his wagon, walked around his horses, then stood on the wheel of his wagon and once more looked for trains. He then proceeded on his way until he reached the bridge, where 'he stopped and looked another time. He was not seen by any one, so far as the testimony disclosed, from the time ho stopped at the bridge, until he was struck and killed by a train running north on the third track. Held, that it was error to enter a compulsory nonsuit.</p>

Appeal, No. 118, Jan. T., 1905, by-defendant, from judgment of C. P. Cumberland Co., Nov. T., 1904, No. 131, on verdict for plaintiff in case of Charles H. Dempwolf v. John D. Grey bill. Ejectment for land in the borough of Carlisle. Before Sadler, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Corporations — Officers—Two corporations with same treasurer.</p> <p>Two corporations, if they so choose, may have the same person act as the treasurer of each. In so doing, however, the relations, duties and liabilities of the two corporations are in no way changed, and are just the same as if a different individual had acted as treasurer of the respective companies.</p> <p>If the treasurer of a brewing company who is also the treasurer of a trust company, opens an account in the trust company with the brewing company’s moneys, and misappropriates such moneys, the trust company cannot in the absence of fraud or collusion on its part be held liable for the moneys misappropriated.</p> <p>Where the president of a brewing company is also a director of a trust company, the trust company cannot by reason of this fact alone, without evidence of fraud or collusion, be held liable to the brewing company for a loss resulting to the latter from the misfeasance of its president.</p> <p>Equity — Equity practice — Misjoinder of party defendant.</p> <p>A bill in equity which joins separate respondents, acting in different capacities, upon different rights, and not chargeable with any joint liability or interest in the relief sought, is defective.</p> <p>Equity — Equity jurisdiction — Discovery—A ccount.</p> <p>Where there is no right to the main relief sought by a bill in equity, and discovery is merely incidental to this relief, it will not be granted. In a bill seeking an account and discovery, the discovery is prima facie merely incidental to the account, and if a right to an account is not disclosed the bill will be held bad on demurrer.</p>

<p>Deed — Plan of lots — Streets—Dedication—Equity—Estoppel.</p> <p>A sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public, and operates as a dedication of it to public use.</p> <p>The proprietor cannot revoke the dedication, and the purchaser of a lot abutting on one of the streets as well as all other persons owning lots in the general plan may assert the public character of the street and the right of the public to use it.</p> <p>The fact that the plan of lots does not appear on the maps of the municipality is immaterial as between parties claiming under the original owner and affected with knowledge of his plan.</p> <p>Where a corporation encroaches with a building upon one of the streets shown in the plan, and its successor in title, another corporation, purchases all of the lots on the plan, except lots owned by one person, the latter has a right to compel such corporation to remove the encroachment from the street, and this he may do by a bill in equity.</p> <p>In such a case where the owner has not consented to or acquiesced in the placing of the obstruction on the street, his mere silence will not prevent him from demanding the removal of such obstruction. The rule applies that “if the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel.”</p> <p>On a bill in equity by a purchaser of a lot according to a plan of lots against another purchaser who has obstructed a street shown on the plan of lots, the question of irreparable damages does not enter, and the jurisdiction of equity will be maintained, because the law does not afford an adequate remedy.</p>

Appeal, No. 179, Oct. T., 1905, by plaintiff, from judgment of G. P. Armstrong Co., June T., 1905, No. 81, on verdict for defendant in case of T. W. Phillips Gas and Oil Company v. The Pittsburg Plate Glass Company and J. B. Barker. Ejectment for land in Valley township. Before Patton, P. J. The facts are stated in the opinion of the Supreme Court. At the trial the evidence of J. B. Barker was, inter alia, as follows: “ Q. When did Mr. Woll first come to your house ?

<p>Appeal, No. 147, Oct. T., 1905, by Jane B. Stuart, from decree of O. C. Westmoreland Co., Aug.T., 1904, No. 63, distributing Estate of Anna McCausland, deceased.</p> <p>Appeal from distribution of estate. Before Steel, P. J. The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 190, Oct., T., 1905, by plaintiffs, from order of C. P. Armstrong Co., March T., 1905, No. 110, refusing to take off nonsuit in case of Mary Silver et al. v. IT. G. Bush and the Pittsburg Plate Glass Company. Trespass for injuries to land.

<p>Partition — Master—Compensation—Discretion of court — Appeals.</p> <p>The Supreme Court will not reverse a decree of the court below fixing the fee of a master in partition, where it is not convinced that there has been any abuse of the discretion of the lower court.</p>

<p>Ejectment — Proceeding to quiet title — Act of June 10, 1893, P. L. 415.</p> <p>Where a person is in the occupancy of land under a contract based upon a valuable consideration with the owner, that the latter shall will it to the occupant, and the owner in violation of the contract conveys the land to another for life with remainder over to other parties, and then dies, the occupant may proceed under the Act of June 10, 1893, P. L. 415, and if he serves both the life tenant and the remainder-man with notice of the proceedings, a judgment in favor of the occupant in the resulting ejectment, will bar not only the life tenant, but also the remainder man, and vest a good title in fee simple in the occupant.</p>

Appeal, No. 76, Oct. T., 1905, by plaintiff, from judgment of C. P. Westmoreland Co., May T., 1908, No. 68, for defendant non obstante veredicto in case of Duplex Printing Press Company v. Clipper Publishing Company, John S. Sell, receiver, and James K. Clarke, intervener. Replevin for a printing press.

<p>Practice, C. P. — Trial—Reservation of question of law.</p> <p>The rules for reserving a question of law at a trial are: 1. The question of law reserved must be one of law purely, unmixed with any question of fact. 2. It must be one that rules the case so completely that its decision will warrant a binding instruction. 3. The question must be clearly stated, and the facts upon which it arises must be admitted on the record or found by the jury. A reservation that violates any of these rules is incurably bad, and a judgment entered in pursuance of it will be reversed whether an exception has been taken or not.</p> <p>A point which asks for binding instructions because on all the evidence the plaintiff is not entitled to a verdict, or because a particular fact has not been established by a preponderance of the testimony, is incurably bad.</p> <p>Contract — Sale—Agreement to repurchase.</p> <p>On an issue to determine what was due on a confessed judgment which had been opened without terms, it appeared that the plaintiff at one time owned and conducted a country store. He was elected to a county office for the term of three years, and sold the defendant the real estate for $3,000 and the stock of goods and fixtures at a price to be determined by an appraisement, and he received a judgment note in part payment. At the time he agreed in writing that at the end of three years, if the defendant at that time desired to sell, he would purchase the real estate and the stock of goods the defendant then might have in hand on the same terms and conditions on which he had sold. The defendant agreed that he would keep up the stock of goods and, in the event of a sale to the plaintiff, that he would pay a reasonable rental for the real estate for the time ho had occupied it. The defendant gave due notice of his desire to sell, as provided by the agreement, and tendered a deed for the real estate. The plaintiff failed to purchase, and the defendant’s heirs afterwards sold the real estate at private sale for $1,500. Held, (1) that if it should be established to the satisfaction of the jury that the plaintiff’s failure to comply with his agreement was without adequate reason, he was not thereby precluded from recovering anything on the judgment; (2) that the defendant’s obligation was not to pay the purchase money if he elected to retain the store, but to pay in any event and at fixed times; (3) that the plaintiff’s obligation was not to take back what he had sold at the option of the defendant and in discharge of his debt, but to repurchase the real estate, and to purchase a stock of goods which was not then in existence, but might be on hand at the end of three years; and (4) if by reason of the plaintiff's breach of the agreement the defendant sustained damages, he might set-off his loss against any balance due on the judgment.</p>

Appeal, No. 105, Oct. T., 1905, by defendant, from decree of C. P. Lawrence Co., Sept. T., 1908, No. 5, on bill in equity in case of William W. Eichbaum v. Lutlier LI. Sample. Bill in equity to compel a retransfer of bank stock. Before Porter, P. ,1. The opinion of the Supreme Court states the case. .Error assigned was the decree directing a retransfer of the stock upon payment of tlie sum of $7,002.26 to the defendant.

Appeal, No. 57, Oct. T., 1905, by Hannah I. Moulds, from order of C. P. Beaver Co., Dec. T., 1904, No. 2, dismissing exceptions to auditor’s report in case of Assigned Estate of Logan & Moulds. Exceptions to report of Edwin S. Weyand, Esq., auditor. The opinion of the Supreme Court states the case. Error assigned was the order of the court.'

<p>Water companies — Boroughs—Permit from borough.</p> <p>A borough ordinance requiring a water company to obtain a permit from the town council before proceeding to lay its mains through the streets of the borough, is a reasonable regulation. The borough has a right to know what streets are to be occupied, how long they are to be torn up while the company is excavating and laying pipes; and at what place and in what manner the mains are to bo laid.</p> <p>Under such an ordinance the application must bo made to the town council and not to the burgess.</p>

Appeal, No. 155, Oct. T., 1905, by defendant, from judgment of C. P. Butler Co., Sept. T., 1905, No. 65, on verdict for plaintiff in case of Eleanor C. Little v. The Central District and Printing Telegraph Company. Trespass to recover damages for personal injuries. Before Galbreath, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court.

<p>Road law — Assessment for damages — Widening—Grading.</p> <p>An assessment of damages, costs and expenses of a street improvement against land, is not illegal because there were included in one proceeding the opening of part of a street on a new location, the widening of the part that hadjoeen opened before, and the grading of the whole, where it appears that the whole improvement was provided for by one ordinance and done under one contract.</p>

Appeal, No. 75, Oct. T., 1905, by plaintiff, from decree of C. P. Butler Co., Dec. T., 1902, No. 3, dismissing bill in equity in case of H. C. Milleman and J. C. Milleman, trading as Milleman Bros., v. Mary S. Kavanaugh, administratrix of Win. Kavanaugh, deceased, Mary S. Kavanaugh et ah, trading as William Kavanaugh & Company, and the Wm. Kavanaugh Company, incorporated. Bill in equity for an account.

<p>Deed — Plan of lots — Streets and alleys — Dedication.</p> <p>A sale of lots according to a plan implies a grant or covenant to each purchaser that the streets and alleys on the plan shall be forever opened to the use of the public, and operates as a dedication of them to public use. Such dedication cannot be revoked by the vendor, and the purchaser of each lot abutting on one of the streets or alleys, as well as all other persons purchasing and owning lots on the plan, may assert the public character of the streets and alleys, and the right of the public to use them.</p> <p>Eminent domain — State normal school — Condemnation of streets — Act of July 10,. 1901, P. L. 632.</p> <p>There is nothing in the Act of July 10, 1901, P. L. 632, which authorizes a state normal school to condemn for a campus, streets and alleys dedicated by a plan of lots to public use.</p> <p>Property already devoted to public use is subject to eminent domain and may be taken for other public uses; but, while this is true, it cannot be taken without legislative authority expressly conferred or arising by necessary implication.</p>

<p>Railroads — Right of way — Agreement with landowner — Contract—Severable contract.</p> <p>Where an agreement between a railroad company and a landowner contains a grant of a right of way “for and in consideration of the benefits and advantages” from the construction of a railroad through the land, and also contains a release of damages, provided that the railroad company should pay a certain sum in money, make cattle guards, and give five wagon roads over its tracks, the contract is severable, and the rights to the wagon roads arc private rights of way owned by the owner, and may be condemned by the railroad company under the Act of March 17, 1869, P. L. 12, in widening its roadway.</p> <p>The right of a railroad company to make the necessary improvements contemplated by the Act of March 17, 1869, P. L. 12, was intended in large measure to be exercised for the public good, and it will not be presumed in the absence of clear words that the company intended to barter away that right, and thus disable itself wholly or in part to perform those public functions it had undertaken.</p>

<p>Appeal, No. 58, Oct. T., 1905, by defendant, from judgment of C. P. Washington Co., May T., 1903, No. 54, on verdict for plaintiff in ease of William T. Rabe v. Shoenberger Coal Company.</p> <p>Trespass to recover damages ror injuries to land by alleged negligent mining operations. Before Taylor, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>On measure of damages the court charged as follows:</p> <p>[The measure of damage, gentlemen of the jury, in a case of this kind, as laid down by the Supreme Court and the one which you are to follow, is: “ For the measure of damages for failure to furnish surface support is the actual loss the owners of the surface have sustained to their land ” — the surface in this case including the building thereon, — ■“ by reason of the cave in.” The actual loss would mean the real loss, if any, that was sustained by the plaintiff by reason of any springs that he may have lost on this portion of the farm, because the farm as yet is not affected as a whole, but the loss here is confined to some forty or sixty acres, or thereabouts, although I believe the defendant’s engineer claimed, — the principal engineer in charge of that mine, — that the coal was only mined out from twenty or twenty-one acres of this plaintiff’s farm.] [4]</p> <p>[When you come to the question of loss here, and damage, because it is not denied that there is some for which the defendant is liable, and they have told you what that was, you take the elements of actual loss, the actual loss to the plaintiff here, and the cost that it would be to him to restore his buildings or his farm, if possible, to make him as good as he was before, is the measure of damages you will apply in this case. When you come to consider the loss of the spring — you are not bound by any arbitrary estimate that a witness on the one side or the other may place on a spring or the buildings that may be gone or damaged. You take this farm — this portion of the farm that is in controversy here, and if it would appear to you that there were other springs on this farm that supplied a flow of water that was sufficient to keep úp the supply necessary to carry on the farming, when one of these springs disappeared, it would be for you to say whether the plaintiff would be as much damaged if there was no other water on his place that he could get. And if the spring at the house could be supplied from another spring without diminishing appreciably the supply that was necessary for another part of the farm, the flow through that, would not the actual loss be what it would cost to pipe the water to the house, etc. ? That is what I mean when I say you are not bound by the arbitrary estimate of loss that the defendant puts on this plaintiff’s spring or springs, or that the plaintiff and his witness themselves may put upon them, — but you are to use' your own good judgment, considering all the facts and circumstances in the case, taking that part of the land that is affected by the loss of the springs here for all of the purposes for which it could be used in the shape it was made, for farming purposes and for the laying out of lots. You are to use your own good judgment, gentlemen of the jury, guarded within the lines at least of what the witnesses say on both sides here as to how many cracks there were and how they interfere with the cultivation of the surface, or whether they are of such a nature as would be dangerous for stock running in the field, whether they could be filled up and made as safe as they were before any cracks appeared. What is the extent of damages, by way of actual loss to the surface, if you find his farm left in that condition.] [5]</p> <p>Verdict and judgment for plaintiff for $6,500. Defendant appealed.</p> <p>Errors assigned among others were (4, 5) above instructions, quoting them.</p>

Appeal, No. 96, Oct. T., 1905, by Washington Hospital, from decree of O. O. Washington Co., Nov. T., 1904, No. 9, refusing petition to sell real estate in Estate of Mary A. Gregg, deceased. Petition by Washington Hospital et al. to sell real estate. Before Taylor, J. The opinion of the Supreme Court states the case. Error assigned was decree of the court refusing the petition.

<p>Husband and wife — Desertion—Evidence—Burden of proof — Act of May 4, 1855, P. L. 430 — Party dead.</p> <p>In an action of ejectment where the question involved is whether a husband had wilfully and maliciously deserted his wife for one year prior to her death so as to deprive him of his curtesy, as provided by the Act of May 4, 1855, P. L. 430, the burden is on the husband to show a reasonable and lawful cause for the desertion. If the husband shows that he had made repeated attempts to effect a reconciliation with his wife, but had been repeatedly repulsed, had been locked from his house, and notified by his wife not to continue his visits, a verdict and judgment in his favor will be sustained.</p> <p>In such a case a witness for the plaintiff may be permitted to testify to a conversation not in the presence of the deceased wife, where the purpose of the testimony is to contradict a son of the plaintiff who was one of the parties defendant.</p>

<p>Liquor law — Petition—Omission of names of surety — Bond.</p> <p>Where a bond in proper form is attached to and filed with a petition for a liquor license which is regular in all respects, except that the space left for the names of the proposed sureties is not filled in, the defect is not substantial, and will not defeat the application.</p> <p>In such a case an amendment of the petition by inserting therein the names of the sureties, is not only unnecessary, but improper in view of the fact that it would introduce into the petition other facts than those stated therein when the jurat and certificate were made.</p> <p>Mestrezat and Potter, JJ., dissent.</p>

Appeal, No. 167, Oct. T., 1905, by defendant, from judgment of C. P. Cambria Co., June T., 1904, No. 248, on verdict for plaintiff in case of Catherine Burns v. Pennsylvania Railroad Company. Trespass to. recover damages for death of plaintiff’s husband. Before O’Conn on, P. J. The facts are stated in the opinion of the Supreme Court. At the trial plaintiff was asked this question : “ Q. Please state whether there were any gates or watchmen stationed at that crossing.

Appeal, No. 99, Oct. T., 1905,by plaintiffs, from decree of C. P. Washington Có., No. 1322, in equity, on bill in equity in case of William McClane, Mary McClane, Bessie McClane and Rebecca McClane, a minor, by her next friend, Mary McClane, v. Ebenezer McClane et al., Executors of M. W. McClane, deceased, Arthur Kennedy and the Washington & Canonsburg Railway Company. Bill in equity for an injunction.

Appeal, No. 164, Oct. T., 1905, by defendant, from judgment of C. P. Washington Co., Nov. T., 1904, No. 128, on verdict for plaintiff in case of W. C. Kelly v. A. M. Keys, C. D. Greenlee, and the Southern Oil Company. Ejectment for oil in land in Smith township. Before Taylor, J. The facts appear by the opinion of the Supreme Court.

<p>Equity — Conveyance—Assignment—Sale.</p> <p>Where a person purchases a share of a one-half interest in the profits of a real estate transaction, and receives as his only evidence of interest therein a receipt for the money, he may compel the vendor by a bill in equity to execute a formal assignment of the share, and it is no answer to such a bill that there could be no severance of interests until the transaction was closed at the end of twenty-five years thereafter.</p>

<p>Appeal, No. 31, Oct. T., 1905, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1900, No. 137, on bill in equity in case of The Park Steel Company v. The Allegheny Yalley Railway Company.</p> <p>Bill in equity for an injunction. Before Rodgers, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a decree in accordance with the prayers of the bill.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Election law — ■Payment o} tax — Assessment—Qualified elector.</p> <p>Where real estate is assessed in a firm name, and it appears that the property is actually owned by the two members of the firm as tenants in common, and that the tax has been paid, the members of the firm have paid a tax sufficient to become qualified electors within the meaning of the election laws.</p> <p>The constitution makes no requirement that the tax shall be assessed against the elector by name, or personally, or as owner of property in severalty. If it is against ascertained property, and he, being in fact the owner, pays it, the requirement is fulfilled, A blunder of the assessor in the form of the assessment cannot deprive the elector of his constitutional right.</p> <p>On a judicial inquiry into an elector’s right to vote the court may go behind the tax records and ascertain the real facts.</p>

Appeal, No. 43, Oct. T., 1905, by plaintiff, from order of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 479, refusing to take off nonsuit in case of Prank McNeil v. Clairton Steel Company. Trespass to recover damages for personal injuries. Before Kennedy, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was order refusing to take off nonsuit.

<p>Appeal, No. 36, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct-Term, 1902, No. 433, on verdict for plaintiff in case of George McKee v. The Crucible Steel Company of America.</p> <p>Trespass to recover damages for personal injuries. Before Frazier, P. J.</p> <p>At the trial plaintiff’s counsel asked witnesses the following questions:</p> <p>“ Q.. Mr. Guenther, if you had known there was no bolt here, or that it had been allowed to get out and had not been replaced, would you have regarded that as a safe place to work ?</p> <p>Objected to by Mr. Castle as incompetent, irrelevant and immaterial, and not binding upon defendant in this matter.</p> <p>Objection overruled and bill sealed. [2]</p> <p>“ Q. Mr. Baer, if you had known that this bolt, if it ever had been put in, had gotten out, and that there was nothing supporting it except this hanger without any bolt, would you have regarded it as safe ? A. I would have gotten it fixed.</p> <p>■ Objected to by Mr. Castle : This is objected to as not the test of negligence.</p> <p>Objection overruled and bill sealed. [8]</p> <p>“ Q. Well, Mr. Holdred, when they were carrying the material out to the end of this rail, would you have considered it safe to have used it, if you had known that the bolt had gotten out and had not been replaced at that end ? ”</p> <p>Objected to by Mr. Castle : Your honor will note my objection as before, and in addition now, we have discovered that the employees are using that for some other purpose than it was evidently designed for. I add that as a further objection.</p> <p>Objection overruled and bill sealed. [4]</p> <p>Verdict and judgment for plaintiff for $4,200. Defendant appealed.</p> <p>Errors assigned were (1) in not giving binding instructions for defendant; (2-4) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeals, Nos. 59 and 60, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1903, No. 460, on verdict for plaintiff in case of Patrick and Mary Grogan v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before McClung, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for Mary E. Grogan for $3,000 and for Patrick Grogan for $485. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Negligence — Street railways — Crossings—Evidence—Presumption.</p> <p>In an action to recover damages for the death of plaintiff’s son a non-suit is properly entered where it appears that the deceased, a man thirty-six years of age, was struck by one of the defendant’s cars at midnight, at or near a street crossing; that the car was brilliantly lighted so that it could be seen 250 or 300 feet away, and there is no evidence of undue speed, or of a failure to give notice of the car’s approach, although there is a doubt as to whether the front headlight was burning.</p>

<p>Appeal, No. 67, Oct. T., 1905, by A. L. Rich, trustee, from order of C. P. No. 3, Allegheny Co., Feb. T., 1892, No. 187, refusing to rescind order confirming report of jury of view In re Tioga street.</p> <p>Rule to rescind order confirming report of jury of view.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 70, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dee. T., 1902, No. 776, on verdict for plaintiff in case of Josephine Dougherty v. Pittsburgh Railways Company. Trespass to recover damages for personal injuries. Before MacFarlane, J. At the trial it appeared that the accident was due to the failure of the brakes to work on the car on which the plaintiff was riding as a passenger. The brakes did not work because of a broken chain.

<p>Equity — Specific performance — Agreement to secure creditors- — Trusts and trustees.</p> <p>Equity has jurisdiction to decree the specific performance of an agreement on the part of a solvent person, to pledge all his estate, real and personal, to a trustee named to secure creditors named.</p>

Appeal, No. 74, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 684, on verdict for defendant in case of Fred. Buel, Jr., a minor, by his father and next friend, Fred. Buel, Sr., v. Daniel A. Bergman. Trespass for malicious prosecution. Before Collier, P. J. The opinion of the Supreme Court states the case. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was the charge of the court.

Appeal, No. 82, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1902, No. 198, on verdict for plaintiff in case of E. N. Reed v. Tarentum Borough. Trespass to recover damages for personal injuries.

<p>Will — Devise—Restriction on alienation.</p> <p>As a restriction of alienation on the grant of a fee is against the general rule of law, it must be construed strictly.</p> <p>Testatrix, after having directed payment of all her debts, devised four-sevenths of the residue of her estate, which consisted of real and personal property, to her daughter, but provided, “that no part or parcel of said property be sold or disposed of until after the death or demise of my daughter, but that it be rented or leased and the sum realized to be divided according to the above provisions.” By a codicil testatrix directed “that if it becomes necessary to dispose of or sell my real estate prior to, or after my death, my daughter shall be entitled to and is hereby authorized to receive her portion annually until the death of her husband, after which she is to receive the full amount of her share.” Held, (1) that under the will there was no restriction upon the daughter but only a direction of the testatrix to her executors; (2) that after the death of the daughter’s husband there was an absolute right in the daughter, or her assignee, to receive the proceeds of the sale of the real estate, and that a title in fee simple was in her under the codicil without regard to the will.</p>

<p>Appeal, No. 87, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1903, No. 451, on verdict for defendant in case of Sophia R. Himes v. City of Pittsburg.</p> <p>Appeal from report of jury of view. Before Evans, J.</p> <p>The court charged in part as follows:</p> <p>What was the value of the life estate immediately after this ordinance was passed taking ten feet from this property and giving to the property a sixty-foot street ?</p> <p>Those two questions are not so readily solved, I imagine, by the jury, as the ordinary questions involved in such cases as this, for the simple reason that the ascertaining of the value of a life estate is more difficult than ascertaining the value of a fee. They are not in the market to the same extent that fee simple titles are, and, therefore, it is more difficult to determine that question. For that reason we have permitted other evidence not directly bearing upon the question of the value of this life estate, and therefore not directly the measure of damages in this case but having some relation to the value of the life estate and throwing some light upon the true measure of damages in this case, namely, the value of this ■property before and after the taking of that ten feet and the widening of the street. We have, therefore, permitted the plaintiff to show what was the rental value of this property and what was the actual rent being paid for it, and what was the cost of putting the property in necessary repair to conform to the new situation after the widening of the street. All these questions l\ave been admitted here and you have heard witnesses testifying in regard to those questions, namely, as to the ordinary rental value of such property as that at the present time and the rent which this life tenant was getting and what it cost to change this property to conform to the new street as it has been widened by the citjr.</p> <p>[Let me say to yon again that those facts are not the basis upon which you find your verdict. That is, the cost to this woman of changing this property, not necessarily the amount of damages which she suffered. They throw some light upon that subject, but the amount of damages which she suffered, if she suffered any at all, is the difference between the value of her life estate before and after the widening of this street.] [1] Keeping that measure of damages in view all the time, you consider these other questions, and if you find that she has been damaged — that her life estate is worth less by reason of the widening of this street and the taking of ten feet off of this land — then to the extent of that depreciation she is entitled to a verdict.</p> <p>[If you find that her life estate was worth just as much after this as it was before, then you find for the defendant; because in determining this question you must, of course, take into consideration two facts: This property has lost ten feet of its ground; if is situated now upon a sixty-foot street instead of a fifty-foot street as it was before ; and the testimony of witnesses is that ordinarily the widening of a street benefits the property, but it is for you to determine — -taking those two questions into account, namely, that the property has lost ten feet of its length and that it has a sixty-foot street instead of a fifty-foot street — this question as to whether this property has been depreciated by reason of this improvement.] [2]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 95, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 585, on verdict for plaintiff in case of Mattie Hanforth and James Hanforth, her husband, v. Tarentum Traction Passenger Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before McCluno, J.</p> <p>Verdict and judgment for plaintiff for 12,250.</p> <p>In support of a motion for a new trial the following affidavit was filed:</p> <p>“ My name is W. D. Hill. I reside at Oakmont. I was one of the jurors in the case of Mrs. Hanforth and her husband against the Tarentum Traction Passenger Railway Company, in which case verdicts were rendered for the plaintiffs on the day of February, 1905.</p> <p>“ I am employed by the P. C. & Y. Railway Company, and my office is in Pittsburg at the Lake Erie Railroad station, south side, Pittsburg. I am chief clerk to the secretary and accountant. On the evening of the day on which the verdicts were rendered, at about five o’clock, I boarded a street car at the P. & L. E. depot to come to Pittsburg. As soon as I entered the car I saw the plaintiff, Mrs. Hanforth, her daughter, her daughter-in-law and a young lady who testified in the case; they were all seated on the north side of the car, that is, the left side going towards the Union station. The daughter-in-law had her child with her, and lifted the child onto her knee : the child seemed to me to be standing up on its mother’s knee, but whether or not it was standing or not I do not know, at any rate it was in an upright position, not sitting. Mrs. Hanforth, the plaintiff, was sitting next to her daughter-in-law and reached up with both hands to the child’s bonnet strings and seemed to be tying them; her face was towards me, and she did this without the least expression of pain on her face, in fact, she was smiling, apparently at the child. She raised both arms and extended them towards the child, up to, or nearly at right angles, with her body. Her movement was very much freer and greater than that she displayed ■ to the jury on the trial of the case. When the car reached the Pittsburg side of the river, along about Third or Fourth avenue, she threw the elbow of her left arm up onto the window sill, or the top of the back of the seat, into a position at full right angle with her body, and then raised her hand above or opposite to the top of her head, and apparently was rubbing the steam or frost off the car window.</p> <p>“ I watched her pretty closely, because I was interested in the case, as a matter of curiosity, and the movements of her arm on the car convinced me that her testimony, given in the trial of the case, was misleading, and so much so that, if the facts had been known to me before the verdict had been rendered, I could not have agreed to a verdict in her favor.”</p> <p>McCluNG, J., filed the following opinion :</p> <p>The testimony submitted upon the reargument of this case would not justify us in concluding that the plaintiff had fraudulently misrepresented the fact as to the extent of her disability as to the use of her arm.</p> <p>Taking the testimony altogether, we have practically the same case that was submitted to the jury.</p> <p>The verdict expresses the judgment of the jury as to the damages sustained, and we cannot disturb it. The rule for a new trial must be discharged.</p> <p>Error assigned was refusal of new trial.</p>

<p>Xegligen.ce — Xatural gas companies — Pipe lines — Master and servant— Presumptions — Evidence.</p> <p>In an action against a natural gas company by one of its employees to recover damages for personal injuries sustained while repairing a pipe, it appeared that at the point where the explosion occurred a landslide had pushed some of the sections of the pipe from their original location; to what extent did not appear, but sufficient to cause a leak where two of the pipes joined. Plaintiff had no control over the work but simply obeyed orders; and while the work was being done the company did not check or moderate the flow of the gas, although this could have been done. The defendant claimed that the accident was the result of a latent defect in the pipe. The evidence showed that at the time of the accident there was a pressure upon the pipe of about 225 pounds to the square inch, that the pipe had been in the ground for four years subjected continuously to a usual pressure of about 400 pounds. Before it had been placed in the ground it had been subjected to a test of 800 pounds, and after it had been placed in the ground it had been subjected to another test of 450 pounds. Held, that the case was properly submitted to the jury inasmuch as the circumstances connected with the happening of the accident were sufficient to warrant an inference of negligence in failing to shut off the gas or regulate its flow.</p>

<p>Railroads■ — Safety gates — Boroughs—Ordinance—A ct of April 3,1851, P. L.' 320 — Powers of borough.</p> <p>A borough organized under the general borough Act of April 3, 1851, P. L. 320, has no power to require a railroad company at the latter’s expense to erect, maintain and operate safety gates at street crossings in the borough.</p> <p>Municipal corporations possess and can exercise only such powers as are granted in express words or are necessarily or fairly implied in or incident to those expressly granted, or those which are indispensable to the declared objects and purposes of a municipality.</p> <p>In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that there be no division of this great responsibility with others, — ■ not even with municipalities through whose limits railroads may run — for division of it would be the shifting of it in every case of accountability for failure to properly operate the road or run the cars. But while this is true, corresponding duties of the highest order are imposed exclusively upon those having the control and management of railroads. One of these is to adopt and use suitable and adequate means to give notice of approaching trains at grade crossings, which are always more or less dangerous, and the failure to perform this duty is negligence, for the consequences of which those are responsible upon whom it is imposed. What particular means, however, shall be employed to protect the public when using streets or highways at railroad crossings is left to the company operating the road, the law merely demanding and requiring reasonable care in view of all the circumstances. There is no common-law duty on the part of the company to station a flagman or erect gates at a crossing; but the failure of the company to do so is to be considered with other facts in every given case in determining whether the company was negligent. Per Bkown, J.</p>

<p>Appeal, No. 86, Oct. T., 1905, by plaintiff, from judgment of Superior Court, April T., 1904, No. 106, affirming judgment of C. P. No. 2, Allegheny Co., Oct. T., 1901, No. 832, on verdict for defendant in case of Nicolette Lumber Company v. People’s Coal Company.</p> <p>Appeal from judgment of Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court and by the report of the case in 26 Pa. Superior Court 575.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 90, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 47, on verdict for plaintiff in case of -Maria L. McGunnegle v. Pittsburg and Lake Erie Railroad Company!</p> <p>Appeal from report of jury of view. Before Kennedy, P. J.</p> <p>At the trial defendant made the following motion :</p> <p>Mr. Smith: I desire to present this morning an amendment in the bond case at No. 314, February Term, 1903, and in this proceeding which is as follows :</p> <p>And now, to wit: October 24, 1904, comes the Pittsb.urg & Lake Erie Railroad Company by its counsel and moves the court to amend the description of the land to be condemned by striking out the words together with all the land lying between the harbor line and the low-water .line of the Ohio river.”</p> <p>Mr. Ferguson: That is objected to as too late. It is specially objected, that the railroad company having elected to condemn and having filed its bond, it is now too late to abandon the condemnation, either in whole or in part.</p> <p>Motion refused.</p> <p>To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [1]</p> <p>D. K. McGunnegle, a witness for the plaintiff, was asked this question:</p> <p>“ Q. Do you know where the low-water line of the Ohio river was in front of your mother’s property, before the Davis island dam was constructed, with reference to the harbor line ? ”</p> <p>Mr. Smith: What do you propose to prove ?</p> <p>Mr. Ferguson: We propose to prove in connection with the petition of the railroad, filed in this case, defining what it condemned, that the low-water line of the Ohio river, in front of the property of the plaintiff, was between the harbor line, as shown on the petition, and Brunot island.</p> <p>Objected to as incompetent and irrelevant for the reason that, under the laws of this state, “ pool full ” being the stage of the water when the water is just abreast of Davis island dam is, for the purposes of this case, and for any other purpose, low-water line. Counsel for the defendant desire to state also, that in this proceeding it is not the intention, or it was not the anticipation that any rights whatever could be possibly acquired under this proceeding beyond the harbor line, the intention being merely to take whatever title Mrs. McGunnegle had under the grants from the commonwealth and the mesne conveyors.</p> <p>The Court: Objection overruled.</p> <p>To which ruling of the court counsel for defendant except. Exception allowed and bill sealed. [2]</p> <p>Mr. Ferguson : Q. How is that, Mr. McGunnegle ? A. The low-water line is outside of the harbor line through our property.”</p> <p>J. W. Mayes, a witness for the plaintiff, was asked this question :</p> <p>“ Q. If that laud had been filled up out to the harbor line, would you put the value at 1100,000, or what would you put it at ? ”</p> <p>Objected to.</p> <p>The Court: Objection overruled.</p> <p>To which ruling of the court counsel for defendant except. Exception allowed and bill sealed. [3]</p> <p>“ A. No, if that was filled up I would add considerable to the price of that land, at least one-third.”</p> <p>At the request of counsel for the defendant, the court stated the following for the record :</p> <p>Addressing counsel for defendant, the court asked whether he would guarantee that this company, the defendant, would not fill beyond “ pool full ” line. This remark was made during the argument of counsel, counsel for plaintiff arguing that the railroad company, as the successor of the plaintiff, had a right to build to the harbor line, and counsel for the railroad company arguing that they had not.</p> <p>Now, counsel for defendant move the court to withdraw a juror and continue the case.</p> <p>Motion refused. [4]</p>

<p>Will — Trusts and trustees — Devise—Perpetuities—Violation of rule against perpetuities — Vested and contingent interests.</p> <p>Testatrix after making certain bequests directed as follows: “The rest of my estate I give to my husband in trust for my children and grandchildren." Numerous active duties were given to the trustee, together with very extensive discretionary powers. The income was devised to the immediate children for life, and at their death to their spouses for life. In case any child died without leaving either spouse or issue, its share of the income was to go to the surviving coheirs. Testatrix then continued as follows: “After the decease of the last of my immediate children and the lapse of ten years from the date when my youngest grandchild shall become of age, the principal of the whole estate shall be equally divided among my grandchildren." Held, (1) that the estate in the grandchildren was a contingent remainder; (2) that the period fixed by the will for the gift to the grandchildren to take effect was too remote, and that the will violated the rule against perpetuities; (3) that as the gift to the grandchildren failed, the antecedent particular estate also failed, and the property covered by the trust passed to the heirs at law under the intestate laws.</p> <p>Where a gift is only implied from a direction to pay it is necessarily inseparable from the direction, and must partake of its quality; insomuch that if the one is future and contingent, so must the other be. •</p> <p>A vested remainder is an estate to take effect after another estate, for years, for life, or in tail, which is so limited that if the particular estate were to expire or end in any way at the present time, some.certain person would become thereupon entitled to the immediate enjoyment.</p>

<p>Appeal, No. 112, Oct. T., 1905, by The Fidelity Title & Trust Company, from decree of O. C. Allegheny Co., Sept. T., 1904, No. 346, dismissing exceptions to adjudication in Estate of Peninah W. Kountz, deceased.</p>

Appeal, No. 93, Oct. T., 1905, by defendant, from judgment of O. P. No. 3, Allegheny Co., Feb. T., 1903, No. 449, on' verdict for plaintiff in case of Jacob Roth v. Henry Reiter. Assumpsit on promissory notes. Before McCltjng, J. The opinion of the Supreme Court states the case. Verdict and judgment for plaintiff for $5,945.09. Defendant appealed. JError assigned was in giving binding instructions for plaintiff.

<p>Appeal, No. 126, Oct. T., 1905, by-defendant, from judgment of O. P. No. 3, Allegheny Co., Feb. T., 1904, No. 1, for plaintiff in case of E. H. Riggs v. H. C. Bair.</p> <p>Feigned issue to determine the ownership of certain coffee.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Evans, J., after stating the facts, delivered the following opinion:</p> <p>Binding instructions were given for the plaintiff, subject to the question of law reserved, to wit: whether there was any evidence to go to the jury to sustain the plaintiff’s claim to this coffee. The real question reserved was whether the setting apart of the coffee as narrated above constituted such a delivery as would make the sale a valid one against execution creditors.</p> <p>The rule of law that a sale of personal property without a delivery to the vendee is a fraud against creditors has long been the rule in this state and has not been modified by any recent decisions. But as to what will constitute a delivery in a particnlar case has been reformed to meet the changed requirements of business from what they were 100 years ago. This modification, and the reason therefor, has been so well set forth by Mr. Justice Dean in the case of the Keystone Watch Case Company v. Bank, 194 Pa. 535, that we quote at large from that opinion:</p> <p>“ In the eighty years that have elapsed since the decision of Clow v. Woods, 5 S. & R. 275, the rigor of the rule laid down in that case, and it is the leading one in this state, has been greatly relaxed. Nor, considering the progress in population and wealth and the change in methods of conducting business, could it have been strictly adhered to without great obstruction to business and hardship to individuals. Under that ruling the cases were rare where as to creditors the ownership of chattels could be in one and the possession in another; in such circumstances, with few exceptions, the transaction was constructively fraudulent as to creditors. But in the long line of cases following it, step by step, the rule has been so softened that now it may be said, with few exceptions, where the purpose of the contracting parties was as between themselves an honest one, and there was no concealment, as to creditors, of its true nature, the contract is not constructively fraudulent; in other words, the law will be slow to hold the parties scamps constructively if the contract, in view of its purposp, was actually an honest one.”</p> <p>We do not understand the court to have meant in the case just quoted that there was any change in the rule laid down in Clow v. Woods, but that what would be a sufficient delivery of possession now, owing to the changed conditions of business, might not have been a good delivery at the time the latter case was decided. And this is the meaning of the opinion of the court in White v. Gunn, 205 Pa. 229.</p> <p>“ Bess than a year ago we said ‘ There has been no deviation from the general rule that delivery of possession is indispensable to transfer of title by the act of the owner that shall be valid against creditors.’ What, however, would be a sufficient delivery of possession and retention of it in one case might not be in another ; and in saying that the rigor of the rule requiring the purchaser to take and keep possession of property purchased by him has beon relaxed, nothing more was meant thau that the law does not have nor set up an unbending test of the sufficiency of delivery and retention of possession to be applied in all cases, but that in passing upon the sufficiency of possession taken by"the purchaser in a particular case, there must be taken into consideration the character of the property, the use to be made of it,-the nature and object of the transaction, the position of the parties and the usages of trade or business.”</p> <p>Let us apply this rule to the case in hand: the purchaser was buying coffee from the company that roasted his coffee, and the Huff Company it must be borne in mind, were not only dealers in coffee; they stored coffee and roasted it for the trade. The transaction was an honest one. The price paid for the coffee was the current price for that article. The purchaser paid part cash and gave bankable notes for the balance, which he subsequently paid. He left his coffee with the Huff Company to be roasted, as he had been doing for seven or eight years. We do not understand the defendant to contradict the proposition that he could leave the coffee with Huff and still make the sale to him valid as against creditors. Certainly no one would insist that Riggs should have shipped his coffee to Wellsville and reshipped it back to Pittsburg in order to have it roasted. But it is contended that the separation from the coffee of the vendor was not complete. True, they might have placed Riggs’ coffee all in one pile; they might have marked every individual sack; but how that would have been more of an identification of his coffee than what was done in this case we are at a loss to see. Each pile was marked by a tag which told to the person who looked at it that that coffee was sold to E. H. Riggs, giving the number of bags so sold, which corresponded with the number of bags in the row. And if there was a row of coffee on either side of this Riggs row belonging to the Huff Company, it was separate and distinct from it, both by actual space and by the markings on the Riggs’ coffee. And so as to the weighing of the coffee. It is alleged that this was not an accurate weighing, and that there would have to be another weighing out before the actual shipment of the coffee to Riggs. Certainly with the weighing that was done Riggs could have demanded and received all of the coffee that had been set apart to him; and that is all that is in question in this ease. If all pf his poffee had not been set apart to him, and if, as between liim and Huff, he had a claim for other coffee, that is not material here, as he is only claiming what was set apart; but if Huff had weighed out to him in the manner in which he did more than 7,000 pounds of coffee, still Riggs could claim the amount set apart. And as the evidence goes to show that this was the ordinary, customary way of weighing out large quantities of coffee such as this, there can be no question but what this was a proper weighing. “ Unusual and unnecessary formalities in such transactions are generally a badge of fraud rather than of honesty: ” Garretson v. Hackenberg, 144 Pa. 107.</p> <p>We are of opinion that the admitted facts in this case show that a delivery of the coffee was made to Riggs, and the sale was valid against execution creditors of the Huff Company.</p> <p>Judgment should be entered for the plaintiff on the verdict.</p> <p>Error assigned was in entering judgment -on verdict for plaintiff.</p>

Appeal, No. 127, Oct. T., 1905, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1905, No. 345, discharging rule for judgment for want of a sufficient affidavit of defense in case of Glassport Lumber Company v. Nicholas Wolf, James J. Butler and Anna Wolf. Assumpsit on an injunction bond. Before Brown, J. The facts are stated in the opinion of the Supreme Court. Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 193, Oct. T., 1905, by-defendant, from order of C. P. No. 1, Allegheny Co., Oct. T., 1905, No. 535, making absolute rule for judgment for want of a sufficient affidavit of defense in case of United States of America for the use of Frank A. Bailey and Richard Jones, partners as Wilson Bailey & Company, now for the use of Frank Shannon v. The Mercantile Trust Company of Pittsburg. Assumpsit on a bond. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 196, Oct. T., 1905, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1902, No. 6, refusing attachment in case of First National Bank of Pittsburg v. The McKinley Coal Company, W. H. McKinley and Ernest H. McKinley. Bill in equity by a judgment creditor against a corporation, its officers and stockholders for an account. The case resulted in a decree quoted in the opinion of the Supreme Court.

Appeals, Nos. 79 and 80, Oct. T., 1095, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1905, Nos. 387 and 388, on verdict for plaintiff in case of Fidelity Title and Trust Company, Guardian of George L. White, Robert G. White and Gladys L. White, minor children of William J. White, deceased, and Jennie E. White, v. Illinois Life Insurance Company. Action of assumpsit on two policies of life insurance.

<p>Appeal, No. 1, Oct. T., 1906, by defendant, from judg’ment of O. & T. Lawrence Co., March T., 1905, No. 1, on verdict of guilty of murder of tbe first degree in case of Commonwealth v. Frank Johnson.</p> <p>Indictment for murder.</p> <p>Tbe opinion of tbe Supreme Court states tbe case.</p> <p>Verdict of guilty of murder of tbe first degree.</p> <p>Errors assigned appear by tbe opinion of the Supreme Court.</p>

<p>Appeal, No. 186, Oct. T., 1905, by plaintiffs, from decree of O. C. Butler Co., June T., 1904, No. 88, refusing an issue devisavit vel non in case of Mary E. Masseth et al. v. Charles B. Masseth et al.</p> <p>Appeal from register of wills. Before Galbreath, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree refusing the issue.</p>

<p>Appeal, No. 2, Oct. T., 1905, by defendant, from judgment of C. P. Cambria Co., March T., 1903, No. 37, on verdict for plaintiff in case of P. M. Brown v. Forest Water Company.</p> <p>Appeal from report of jury of view. Before O’Connor, P. J. •</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $2,500, $750 having been remitted. ■ Defendant appealed.</p> <p>Errors assigned appear by the opinion of the Supreme Court.</p>

<p>Appeal, No. 258, Jan. T., 1905, by plaintiff, from order discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Plaintiff brought suit September 2, 1902, claiming $889.70 with interest from March 16, 1892. At that time the claim with interest was less than $1,500. On March 27, 1905, the court below discharged a rule for judgment for want of a sufficient affidavit of defense, from which, on August 22, 1905, plaintiff appealed to the Supreme Court. At both these later’ dates the claim with interest exceeded $1,500. Appellant obtained from the court below and printed in his paper-book a certificate that the amount really in controversy exceeded $1,500.</p> <p>The Act of May 5,1899, P. L. 248, provides as follows :</p> <p>“ Section 4. The amount or value really in controversy shall be determined as follows :</p> <p>“ In actions of ejectment, either legal or equitable, and in all other actions or issues in the common pleas or in the orphans’ court that involve the possession of or the title to real property, or chattels, real or personal, the judge hearing the case shall certify whether the value of the land or of the interest or of the property really in controversy, is greater than fifteen hundred dollars, and his certificate shall be conclusive proof of such value for the purposes of this act.</p> <p>“ In any suit, distribution or other proceeding in the common pleas or orphans’ court, if the plaintiff or claimant recovers damages either for a tort or for a breach of contract, the amount of the judgment, decree or award shall be conclusive proof of the amount really in controversy, but if he recovers nothing the amount really in controversy shall be determined by the amount of damages claimed in the statement of claim, or in the declaration.”</p>

<p>Appeal, No. 104, Oct. T., 1905, by defendants, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 205, on verdict for plaintiffs in case of T. C. McElroy et al., trading as McElroy & Boyle, v. Albert J. Harnack et al.</p> <p>Trespass for conspiracy. Before McClung, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendants presented the following points :</p> <p>5. That there is no evidence in the case sufficient to sustain the allegations of the plaintiffs that the four defendants in this case conspired together to give a fictitious value to the bonds of the United States Fireproofing Association by fictitious sales and purchases on the floor of the Pittsburg Stock Exchange. Answer : This is refused. [1]</p> <p>7. That if the jury find that the purposes of the defendants, Harnack and Gartner, in the organization of the United States Fireproofing Association, and in accepting the issuing of the bonds in said corporation, was to enable them by the sale or use of the said bonds to raise funds to improve the properties conveyed by Harnack to said corporation, and to acquire other properties and enlarge the business of the said corporation so that the said corporation should be enabled to do business as a manufacturing corporation, such conduct cannot be held to be actionable as a conspiracy by the plaintiffs under the evidence in this case. Answer: This is affirmed; but, of course, an honest purpose in organizing the corporation will not protect them from responsibility for subsequent fraudulent use of its securities, if you find the fact as to such use against them. [2]</p> <p>9. That there is no natural or probable connection between the acts of Harnack and Gartner with reference to the issuing of the bonds of the United States Fireproofing Association, and the pledging of such bonds by Hamilton and Powelson in personal, private stock speculations. Answer: This is affirmed. You, of course, take that affirmance in the light of the general •charge suggesting how many of these things might throw light on other evidence in the case, although they themselves do not contain sufficient evidence to charge the parties with responsibility. [3]</p> <p>12. That the plaintiffs’ statement throughout alleges a joint tort in every particular participated in at every stage by all of the defendants ; and unless the jury find that these allegations are true, there can be no recovery in this case. [4] Answer: This means that you can find against all of the defendants or against none of them, even if you are convinced that some pf them are liable, 1 refuse-this. I have explained in the general charge the principles that govern in matters of that sort.</p> <p>13. That under all the evidence in the case the verdict must be for the defendants Harnack and Gartner. Answer: Refused. [5]</p> <p>Verdict and judgment for plaintiffs for $3,816. Defendants appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

<p>Appeal, No. 119, Oct. T., 1905, by plaintiff, from decree of O. P. No. 2, Allegheny Co., July T., 1904, No. 1085, dismissing bill in equity in case of George B. Boswell v. Boggs & Bubl, a corporation, Russell H. Boggs, Henry Buhl, Jr., J. F. McCandless, A. Bion Boggs, David Roney, Elizabeth B. Rae and William B. Denny.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Promissory notes — Accommodation indorser — protest—Waiver of protest— Consideration.</p> <p>' Where the indorser on a promissory note, eighteen months after its maturity, with knowledge that no demand for the payment of it had been made, and no notice of its dishonor had been given, without any new consideration, indorses on the note a waiver of protest, he will be bound by the waiver, and liable on the note.</p> <p>From the nature of an indorser’s contract a new consideration is not required to support a waiver of protest before or after the maturity of the paper.</p> <p>Affidavit of defense — Practice, C. P. — Fraud—Promissory notes — Waiver of protest — Indorser.</p> <p>Where the indorser on a promissory note seeks to avoid the effect of a waiver of protest signed by himself, on the ground that certain misrepresentations were made to him at the time he signed the waiver, he must go further and avor in his affidavit of defense that he was induced to sign the waiver by such misrepresentations.</p>

<p>Negligence — Railroads—Passenger—Alighting from train — Custom..</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband, occurring while as a passenger he was alighting from a train, the plaintiff is not entitled to recover where the evidence shows that the train was stopped for a proper railroad purpose at a point about half a mile from the terminal station where the passengers were to change cars, that at this point there were numerous tracks, and within the yard limits; that the deceased without any invitation, or notice from the trainmen, and solely for his own convenience, alighted from the side of the train opposite to where the trainmen were standing, and was thrown under the wheels of the car by the starting of the train, and killed.</p> <p>In such a case an offer to show a custom of the railroad company to stop its trains at the place of accident for general railroad purposes, and that when trains so stopped passengers frequently got off and on, is inadmissible, where there is no offer to show that the deceased had knowledge of such custom.</p> <p>When a custom is set up to assert a right or justify an act, the party relying on the custom must show that he had knowledge of it.</p>

Appeal, No. 145, Oct. T., 1905, by defendant, from orders of C. P. Cambria Co., March T., 1905, No. 82, discharging rules to set aside sale of personal property in case of Annie Margo v. Pennsylvania Railroad Company. Rules to set aside sale of personal property. The facts appear by the opinion of the Supreme Court. Errors assigned were orders discharging rules to set aside sale of personal property.

<p>Negligence — Railroads—Infant of tender years — Nonsuit.</p> <p>In an action against a coal company to recover damages for injuries to a child two years of age, struck by an electric car operated by the defendant, a nonsuit is property entered where it appears that the accident occurred at a point 200 yards from a public crossing on ground owned by the defendant; that the car was running at the rate of from six to ten miles an hour; that the motorman while in the proper conduct of his car was so engaged that he did not see the child until within twenty-five or thirty feet ,of it, and that the conduct of the motorman was in no way wanton or willful.</p>

<p>Appeal, No. 133, Oct. T., 1905, by H. C. Estep, in his own right, from order of C. P. Cambria Co., June T., 1904, No. 480, refusing to take off nonsuit in case of Burdine Estep by his father and next friend, H. C. Estep, and H. C. Estep in his own right v. Webster Coal and Coke Company.</p>

<p>Appeal, No. 189, Oct. T., 1905, by plaintiff, from judgment of C. P. Cambria Co., June T., 1904, No. 63, on verdict for defendant in case of J. M. Troxell, Perry Troxell and George L. Glasgow v. Tbe Anderson Coal Mining Company.</p> <p>Assumpsit for coal royalties. Before O’Connor, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was (12) answer to plaintiff’s seventh point, point and answer being quoted in the opinion of the Supreme Court.</p>

<p>Partition — Equity—Pleading—Demurrer.</p> <p>Objection cannot be taken by demurrer to a bill in equity for partition, because the bill did not include all the property held in common by the parties, where there is no averment in the bill that the parties were the owners in common of any other realty than that set out therein.</p> <p>A demurrer to a bill in equity in partition will not be sustained where the ground of demurrer is that the court had acquired jurisdiction of the subject-matter in a previous suit in equity, but an inspection of the record of such suit shows that that subject-matter of controversy in it was only a one-third interest in the lands involved in the second suit.</p> <p>There is nothing in the equity rules of Pennsylvania, nor in the well-settled equity practice, to sustain the position that a demurrer overrules a plea.</p>

<p>Appeal, No. 130, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 52, on verdict for plaintiff in case of John Henkel v. The Wabash Pittsburg Terminal Railroad Company.</p> <p>Appeal from report of viewers. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff' for $66,300. Plaintiff appealed.</p> <p>jErrors assigned were (1-4, 5) various rulings on evidence.</p>

<p>Wills — Fee simple estate — Heirs—Rule in Shelley’s Case.</p> <p>Testator devised as follows: “I give and bequeath to my son and his heirs after him all my real estate.” Held, that the son took an estate in fee simple.</p>

<p>Practice, C. P. — New trial — Perverse verdict — Review.</p> <p>Where a verdict is so manifestly perverse, and contrary to the undisputed documentary evidence in the case as to elicit from the trial judge a declaration that it is “shocking to every fair sense of justice and right,” it is the duty of the lower court to set the verdict aside, and if it fails to do. so the appellate court will so order.</p> <p>In all cases where the court is satisfied that the finding of the jury is against the truth, justice will not be administered unless it is set aside, for it is not vere dictum on which alone judgment can be justly entered. But for the power lodged in courts to set aside untrue findings, the infliction of injustice could not be avoided, for, great as may be the jury system, whims, sympathies, prejudices and caprices at times influence and control the judgment of men, even when sworn to be guided only by the law and the evidence in the case. The remedy for a perverse verdict, or for one so clearly against the weight of the evidence that it will result in wrong, if allowed to stand, is to set it aside and grant a new trial, and the power to do so, existing in the trial court, ought to be unflinchingly exercised.</p> <p>Beneficial associations — Fraud.—Age limit — Evidence.</p> <p>In an action against a beneficial association to recover a death benefit, where the defense is that the member was over fifty years of age when he was initiated, which was beyond the age limit permitted by the constitution of the association, and there is offered in evidence" a statement by the deceased under oath made in naturalization proceedings showing that the deceased at the time of his initiation was over fifty-six years of age, and this evidence is unimpeached, a verdict should be directed in favor of the beneficial association.</p>

<p>Appeal, No. 152, Oct. T., 1905, by Bertha Hartón Orr, from decree of O. C. Allegheny Co., May T., 1905, No. 3, dismissing exceptions to adjudication in Estate of G. Bruce Hartón, deceased.</p> <p>Exceptions to adjudication.</p> <p>The fact are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to adjudication. .</p>

<p>Appeal, No. 153, Oct. T., 1905, by Margaret Fertig, from decree of O. C. Allegheny Co., May T., 1905, No. 3, dismissing exceptions to adjudication in Estate of G. Bruce Hartón, deceased.</p>

<p>Appeals, Nos. 158 and 159, Oct. T., 1905, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, Nos. 936 and 937, on verdict for defendants in case of The Grossbaum Ceramic Art Syndicate v. The German Insurance Company of Freeport, Illinois, and The Grossbaum Ceramic Art Syndicate v. The Potomac Insurance Company of the District of Columbia.</p> <p>Assumpsit on a parol contract of insurance. Before Brown, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>. The court charged in part as follows :</p> <p>In measuring the value of testimony in this case, and in all cases, it is important to keep in view certain leading ideas that help you to measure the force of the testimony. In some cases the testimony, perhaps all of the way through, may be truthful, or some witnesses may be mistaken, and innocently mistaken. You may fail to believe their testimony, or rather fail to give credence or weight to it on the ground that you believe they are innocently mistaken — simply mistaken. On the other hand; you may fail to give value to the testimony because you may believe it bears the impress of perjury.</p> <p>Another thought is, that the manner and appearance of witnesses upon the stand may help you, to some extent, to determine the value of the testimony. So that the testimony in a case of some witnesses may be as genuine as a standard coin; of others it may be as worthless as a counterfeit. It may measure up to par, or be absolutely worthless. Some of it may impress you as being that simply of witnesses who did not intend to testify falsely, or who perhaps were careless, or whose memory as to the facts was wrong.</p> <p>Coming then to this case, with these suggestions in measuring the testimony, the main turning point is the question whether there was a contract executed here which bound these insurance companies to pay the insurance. There is no contest as to the amount of the loss, and no contradiction of the testimony showing exactly what the loss was. There is no dispute that proofs of loss were sent. But the fact that there was a loss, and the fact that proofs of loss were sent in, does not make a contract. I cannot compel you to pay a loss, arising from fire or from any other source other than a tort, where you do a willful wrong or injury — I cannot compel you to pay the same, based on a contract, simply because I claim it. If you dispute my right, or deny that there was any contract between us, the burden is upon me to show that contract and establish it by the weight of the evidence.</p> <p>So here, when the plaintiff, the Grossbaum Ceramic Art Syndicate, comes along with claims, based upon contracts, which the company alleges were made with these insurance companies, and the insurance companies contest the point that there were contracts, the burden is upon the plaintiff to satisfy you, by the weight of the evidence, that there was a contract.</p> <p>A contract for what? A contract covering ceramic art goods located, we will say, at Atlantic City — perhaps not necessarily there, because if the testimony is to be believed, it was, substantially, that a floater policy, which it is alleged was the kind of policy contracted for here, is just what the term floater means — floating about from point to point. I may not recall exactly the cities, but, as illustrating the manner of their business, there was some testimony that in three months they exhibited at perhaps Chicago, Cleveland, Boston, New York and Pittsburg. So that a floater meant a policy that floated around with these goods, and insured them to the extent that the Understanding of the parties agreed they should be insured.</p> <p>. Now, was there a contract made? If there was no contract, no binding agreement between these parties, that is the end of the plaintiff’s case. The plaintiff must show a contract which binds the defendants. It is for you to determine whether there was a contract, and if so, what it was. It is alleged by the plaintiff that it was a floater .policy, and the meaning of that I think is quite clear from the testimony. These policies were policies to the extent of $5,000.</p> <p>There is some dispute as to whether the goods were to be in Atlantic City. Probably, within the fair atmosphere of all the testimony, the policy was intended to be — but that is for you to say — a floater policy covering Atlantic City, to run a year at the rate of three per cent, and covering any other points within the express arrangement of the parties, if there was an express, definite arrangement made.</p> <p>It takes three links to make the contract. Two out of the three will not make it. All of the links must be established. If it is clear ■ that the first link in the contract is established, that the' minds of these two agents met, and it was clearly understood to be a floater policy to the extent of $5,000, covering ceramic art goods, and then if it is clear that that meant a floater policy — vlherever the goods might be, that part of the link would be established, unless the expression, “wherever they might be,” was qualified by some other definite arrangement.</p> <p>If it was definitely understood between them that, while it was to be a floater policy, which meant floating from point to point, the insurance was not to cover every place that these goods might float, or be placed, but was only to cover, say, the best hotels, or high-class hotels and railroad depots; if that is all, even if their minds met to that extent, that is the second point in the case. If they were to cover simply those points, then there could be no recovery in this case, because stores, no matter how good they were, were not part of the arrangement. If the arrangement was generally to cover hotels, depots and good stores, and if this was a fairly good store — which perhaps cannot very well be disputed — then the policy would cover the store. If it did not cover the store, in the sense that the parties agreed, if they agreed at all, but simply covered railroad stations or depots and good hotels, then of course the plaintiff cannot recover.</p> <p>Then another step or link which would be essential, even if it is all established up to that point, is what were the terms of payment ? The rate was three per cent. That cannot be disputed, and if the testimony of Mr. Hast is to be believed, it was to cover a year. It is asserted here, as a principle of law, that because the premium was not actually paid at the time, there could be no recovery. That might, or might not, be a good proposition, but leaving that out of the case, as not for your consideration, we have a set of facts which settle that question, if you believe the testimony.</p> <p>On the question of payment, within the general scope and method in which those two agents did business with each other, there is testimony that Logue & Brother and Mr. Hast, in the interchange of business — amounting sometimes, as Mr. Hast says, to nine or ten policies a day — and in the hurry of business necessarily, and in accordance with the general custom of all the insurance agents in the city of Pittsburg, credit was extended, in the sense of running accounts — perhaps as a clearing house would run — and clear at the end of twenty or thirty days, or whatever the custom was as between Logue & Brother and Mr. Hast, to settle the balance as shown by the contra accounts. Whatever business Logue & Brother had charged against Hast would be summed up in an account. Whatever business Hast had against Logue & Brother would be summed up, and the difference between the two accounts would represent the cash balance due from one to the other, and then a settlement would be made and the cash paid. If it is true that there was this general custom, not only between these two parties, but generally among the agencies here, insurance agents, to run a line of credit and conduct the business in that way, then it is fair to imply that this transaction, being one of perhaps dozens and dozens had between the parties, went into the account in that way, and therefore it was a sufficient contract, as to that link, and bound these companies.</p> <p>Mr. Logue, of Logue & Brother, who represented these insurance companies, testifies that the contract was not closed. Of course you are to take your own recollection, and from that point of view weigh the value of the testimony, but I believe Mr. Logue’s testimony is that Mr. Hast came to see him — and there is no dispute about that. There was some talk about a floater policy and Mr. Logue said to him that he would'like to know where these goods were. Mr. Hast replied that he was not sure, but he judged they were at Atlantic City, because the telegram came from there. [Mr. Logue’s testimony is that he refused to bind himself, refused to make a contract, unless the location of the property in the floater policy was limited to railroad depots or stations and high class or first class, or best hotels. Now if that story is true, if that is exactly what he agreed to do, and to that extent he was willing to make a contract, and did make a contract, he would be bound only to that extent. If the contract did not include stores, then there was no contract as to stores, and of course these companies would not be liable, and the plaintiff could not recover.] [3]</p> <p>[Then there is a letter that is important here. Mr. Hast said, in chief, when he was on the stand, that he made an absolute contract. That is, he made a closed contract with Mr. Logue. Not a contract that was subject to any restrictions; not a contract subject to any condition which left the actual full contract open, to be settled afterwards, but that he made a full contract. Mr. Logue denies that. Is Mr. Hast supported in his allegations that at the time he alleges the contract was made, it was actually made, a completed full contract, containing all of the essential links that bound the parties. Is that true ? It is for you to judge, to some extent, as to that, from the letter which Mr. Hast subsequently wrote to Mr. Grossbaum, who is now dead, but who was the president of the plaintiff company at that time.</p> <p>Mr. Hast wrote Mr. Grossbaum on April 1, 1902, after he had had this alleged conversation with Mr. Logue “We wired you this morning in reply to your telegram as follows, ‘ $5,000 covered, subject to condition, particulars by mail,’ which we now beg to confirm.” The condition referred to is, “ that it will be absolutely necessary to incorporate the full coinsurance clause in the form in order to get the company to accept the floater business.” Now if his testimony in the first instance was, regardless of this letter, that he had actually made a full contract, complete in all its terms, clearly understood by all of the parties, and binding upon the parties, why did he write this letter ? “ The, condition referred to is, that it will be absolutely necessary to incorporate the full coinsurance clause in the form — ” absolutely necessary to do that in order to do what ? In order to get the company to accept the floater business.</p> <p>From that would you, or would you not, infer that he had not completed his contract ? If you infer that he had not completed his contract with Mr. Logue, that the terms were not all fully agreed itpon, that there was still something to be done — -if that is the true interpretation, there could be no recovery here by the plaintiff, and your verdict would be for the defendant. If the completion of the contract depended upon Mr. Grossbaum’s wiring or writing back in reply to this letter, “ That is entirely satisfactory, you may close the contract,” — ■ there never was any telegram and never was any letter back from Mr. Grossbaum, prior to the fire, stating he was satisfied to add the coinsurance clause and therefore close the contract. Not having done that, the contract, not having been closed prior to the fire, the defendant would be entitled to a verdict.</p> <p>I do not know that there is anything more to say, gentlemen, unless we have overlooked something. If there is anything counsel would like to have us call the attention of the jury to, we would be glad to do it. In a general way, and by way of repetition, it is for you to say whether there was a completed contract, completed in the sense that there was no condition attached to it. Completed in the sense that Mr. Logue and Mr. Hast mot and talked about it, and agreed that the insurance should be placed, and should be placed in the sense that it was absolutely binding and fixed, and no condition whatever attached to it, and that it covered the goods, in the floater sense, in stores. As before stated, even if the minds of the parties met upon a contract, and that contract did not cover stores, but did cover railroad depots and good hotels, these insurance companies would not have to pay. If they did not contract in their floater arrangement to cover stores, it does not matter how good the stores were, or where they were, they would not be bound to pay. If the contract was to cover merely railroad stations, goods in transit and in good hotels, then that is what the parties agreed upon and are bound by-] [i]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 8) portions of charge as above, quoting them; and (2) the charge as a whole was inadequate and misleading.</p>

<p>Appeal, No. 161, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 302, on verdict for plaintiff in case of Duquesne Borough v. Leonora Keeler.</p> <p>Appeal from report of jury of view.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant presented, inter alia, the following points:</p> <p>2. The plaintiff, having offered no evidence that the council authorized the signing of the contract for the grading, paving and curbing of Duquesne avenue, or that the burgess approved of the signing of the said contract by ordinance or otherwise, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: Refused. [14]</p> <p>3. If the jury find from the evidence that the borough of Duquesne undertook to grade,- pave and curb Duquesne avenue in accordance with the provisions of the act of assembly passed May 16,1891, upon the petition of a majority in number and interest of the owners of property abutting thereon, and that without further petition by the property holders, the council did not grade, pave and curb Duquesne avenue as petitioned for, but did grade, pave and curb a portion thereof to a greater width than that embraced within the lines of the street at the time the same was petitioned for, without the consent of the petitioner, in that event the plaintiff cannot recover in this action, and the verdict should be for the defendant. Answer: Refused for the reason that there is no evidence that they did not. [15]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Errors assigned among others were (14, 15) above instructions, quoting them; (17) refusal of binding instructions for defendant.</p>

<p>Appeal, No. 168, Oct. T., 1905, by-defendants, from judgment of O. P. No. 2, Allegheny Co., April T., 1905, No. 997, on verdict for plaintiff in case of Eliza Michell v. Mary A. Low et al.</p> <p>Issue to try the validity of a will. Before Young, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

Appeal, No. 171, Oct. T., 1905, by-plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1905, No. 933, dismissing bill in equity in case of Gus Trau and Philip Loevner, trading as Trau & Loevner v. William L. Sloan, Earl Sloan and Leopold Vilsack. Bill in equity for specific performance. The opinion of the Supreme Court states the facts of the case. The court entered a decree dismissing the bill. Error assigned was the decree of the court.

<p>Statute of limitations — Mutual insurance company — Assessments—Receivers.</p> <p>The statute of limitations begins to run in favor of a member of a mutual insurance company against his liability to pay an assessment to the receiver of the company from the date of the decree of court authorizing the assessment, and not from the date of the declared insolvency of the company.</p>

<p>Appeal, No. 163, Oct. T., 1905, by-plaintiff, from decree of O. P. No. 2, Allegheny Co., July T., 1905, No. 63, dismissing bill in equity in case of John H. O’Donnell v. S. W. Vandersaal and Homer L. Castle.</p> <p>Bill in equity for a reconveyance of real estate.</p> <p>The bill alleged that the plaintiff was the owner of a certain lot of ground in the city of Pittsburg, upon which he had in course of erection an apartment house; that he was indebted to certain contractors, represented by Homer L. Castle, one of the defendants, as attorney, and was also indebted to S. W. Vandersaal, the other defendant, for certain loans. ' That in April, 1904, he agreed to convey the land in question to Mr. Castle, upon an agreement that he was to hold it as trustee, to secure the payment of creditors he represented; and that he was to complete the building. That afterwards he entered into an agreement in writing (exhibit “ A,” of the bill), with Castle and Vandersaal, which agreement recites that Castle holds the legal title to the land, that the plaintiff, O’Donnell, has an equitable interest in it, and that Vandersaal holds a mortgage on it, and by which it is agreed that Castle shall borrow $45,000 on the land, and with the proceeds pay the creditors for whom he was trustee, and a portion to Vandersaal; and that thereupon Castle should convey the land to Vandersaal, subject to the mortgage, and that Vandersaal should give to Castle a mortgage, the proceeds of which were to be divided between the parties represented by Castle and Vandersaal, and that the rents should be equally divided between Vandersaal and Castle, and that the plaintiff might purchase the property subject to the two mortgages above mentioned, at any time within eight-months from the date of the article, upon paying to them, and each of them, all their claims.</p> <p>The agreement designated as exhibit “ A ” was as follows :</p> <p>“ Homer L. Castle holds the title to a piece of ground in the nineteenth ward of the city of Pittsburg, state of Pennsylvania, consisting of lot No. 73 and part of lot No. 72 in Mellon’s orchard plan of lots, fronting ninety-four feet on Euclid avenue, and extending 61.86 feet along Margaretta street, which property J. H. O’Donnell convoyed to the said Ilomer L. Castle by deed dated and in which property the said O’Donnell has an equitable interest, and against which property S. W. Vandersaal holds a mortgage.</p> <p>“ Said Homer L. Castle holds the above title as trustee or attorney for certain clients named in his contract with J. H. O’Donnell, dated April 18, 1904.</p> <p>“ Now it is agreed between Homer L. Castle, J. H. O’Donnell and S. W. Vandersall as follows : That said Homer L. Castle shall borrow on his mortgage and on said premises from the Fidelity Title & Trust Company of Pittsburg the sum of forty-five thousand ($45,000) dollars, for three years, at 5.4 per centum per annum, payable semi-annually, and that after deducting all expenses of procuring the loan, the said Homer L. Castle shall pay to the following named persons the following amounts in satisfaction on their liens or claims upon said property.</p> <p>-*• -*• # Sfc #</p> <p>“ Said distribution having been made, the said Castle shall convey to S. W. Vandersaal his title and interest to said premises subject to the said $45,000 mortgage ; and the said Vandersaal at the time of such conveyance shall make and execute to the said Homer L. Castle a mortgage in the sum of $14,500, which is recited as a purchase money mortgage, to be disposed of as hereinafter provided.</p> <p>“ Said S. W. Vandersaal shall also deliver to the said Homer L. Castle a proper instrument in writing showing that he holds said premises one-half for himself and the other half for the said Homer L. Castle, or those whom he may represent as trustee.</p> <p>“ Said Homer L. Castle shall hold said second mortgage, and when the same can be sold, all the proceeds from said mortgage shall, after payment to S. W. Vandersaal, of $819.81 be divided equally between the said S. W. Vandersaal and the said Homer L. Castle, and go as credits upon the sums due the clients of the said Castle, and to S. W. Vandersaal.</p> <p>“ It is further agreed that while the said S. W. Vandersaal holds said property, all the net rents received shall be equally divided between the said Vandersaal and the said Castle, to be applied to the liquidation of their claims upon said property.</p> <p>“And the said S. W. Vandersaal and the said Homer L. Castle agree that the said J. H. O’Donnell may purchase the property above described, subject to the above mortgage of $45,000 and the mortgage of $14,500 at any time within eight months from this date, upon paying to them, or each of them, all their claims, interest and expenditures on account of the said premises, less all amounts received theretofore and applied to the payment and extinguishment of their debts from any source.”</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 172, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 1001, on verdict for defendant in case of L. O. Hays, Sr., v. Forest Oil Company.</p> <p>Assumpsit on an oil lease. Before Frazer, P. J.</p> <p>The facts appear by the opinion of the Supremo Court.</p> <p>Frazer, P. J., charged, inter alia, as follows :</p> <p>[As we understand this agreement, defendant is not liable for the $500 rental, in this action at least; under the clause we have just read to you, if the defendant failed to complete the well within three months that was the end of the lease; it required no forfeiture; it required no action upon the part of the plaintiff to end the term and enable him to get possession of his property; that was the end of the lease, and plaintiff had the right to go upon the land, take possession of it and oust defendant. As we read the contract, there is no covenant or agreement upon the part of Mr. Thompson to pay the $500 ; he does not agree to pay that sum, but, under the lease if the well was not completed within the three months, lessee might secure an extension of another month by paying $500. There is nothing, however, in the contract requiring him to do so.</p> <p>If the well was not completed within the three months and he ' did not see fit to continue the lease he could surrender it by failing to make the payment. As we understand that clause, and reading it in connection with the case of Glasgow v. Gas Company, which you have heard counsel read, we are of the opinion, plaintiff, under the circumstances of this case, is not entitled to recover the rental here sued for.] [2]</p> <p>[In addition to what we have said, there is another reason set up by defendant which, in our opinion, is sufficient to prevent- plaintiff from recovering. That is, the completion of the well; who had the right to determine when the well was completed ? In the absence of bad faith upon the part of the lessee, we think that was his right. If there was any bad faith it would, perhaps, be a question for the jury; but without that it seems to us the driller, the lessee in this case, would have the right to say whether -the well was completed or not. In a recent case the question was as to what was meant by “ producing oil in paying quantities,” and the Supreme Court used this language, and I see no reason why the principle laid do'wn there should not be applicable to this case:</p> <p>“ So long as the lessee is acting in good faith on business judgment, he is not bound to take any other party’s judgment, but may stand upon his own. Every man who invests his money and labor in a business does it on the confidence he has in being able to conduct it in his own way. No court has any power to impose a different judgment on him, however erroneous it may deem his to be. Its right to interfere does not arise until it has been clearly shown that he is not acting in good faith on his business judgment, but fraudulently, with intent to obtain a dishonest advantage over the other party to the contract.”</p> <p>[We do not recall any testimony in this case that would indicate any intent on the part of the lessee to obtain a dishonest advantage over the plaintiff. It appears the well was drilled as deep as .other wells in that hundred foot sand, that in other wells in that field the pay streak was from the top of the sand, and the weight of the testimony is clearly in favor of there being but one pay streak in that sand, and that the upper pay streak. Lessee having invested his money in the venture, and being liable for any expense there was in drilling, had a right to determine when the well was completed, and having determined that it was completed after going below the first pay streak, he was not obliged to take any risks for benefit of somebody else, so long as he acted in good faith.] [2]</p> <p>[We therefore direct you to render a verdict in favor of the defendant.] [4]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (2-4) above instructions, quoting them.</p>

<p>Appeal, No. 178, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. 947, on verdict for defendant in case of C. L. Flaccus, trading as The C. L. Flaccus Company, v. The West Penn Gas Company.</p> <p>Assumpsit on a contract in writing. Before Shafer, J.</p> <p>The facts arc stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 200, Oct. T., 1905, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1905, No. 169, on bill in equity in case of The S. Jarvis Adams Company v. Sanford A. Knapp.</p> <p>Bill in equity for an injunction. Before Young-, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 201, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 295, for defendant on case stated in suit of James Walker Todd v. John H. Armstrong. Case stated to determine the marketable title to real estate. The facts are set forth in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant.

<p>Negligence — Contributory negligence — Streets—Ice on footwalh — Knowledge of defect — Province of court and fury.</p> <p>In an action against a municipality to recover for personal injuries it appeared that plaintiff while going the usual and direct route to his work about noon stepped on ice, fell and was injured. The street was unpaved, with a cinder sidewalk on each side about five feet in width. At the point of the accident there was a depression or hole in the sidewalk, in which ice had accumulated, five or six feet in length, two inches deep and fifteen to eighteen inches wide. The ground was covered with an inch of snow which had fallen during the morning. Plaintiff and other persons had constantly used the walk and but one person had fallen. At the time of the accident plaintiff was walking carefully. Held, that the plaintiff was net as a matter of law guilty of contributory negligence but that the question was for the jury.</p> <p>Where in a suit for damages for injuries received by falling on an accumulation of ice on a sidewalk it appears that all streets were icy and slippery at the time of the accident and that the roadway was in a condition which might render it dangerous, the question as to whether there was a safer route which the plaintiff could have taken is for the jury.</p> <p>If one is injured in the use of a street known by him to be defective, and the evidence shows that when he entered upon it the danger was imminent and immediate, the court as a matter of law may declare him guilty of negligence, but when the testimony shows a defect of such character that the street can be used with safety by the exercise of reasonable care, notwithstanding its defective condition, whether the injured person performed the duty required of him under the circumstances is a question for the jury.</p> <p>A person is not guilty of contributory negligence in using a-road known by him to be defective unless the danger is so apparent that in the use of ordinary care he ought not to have undertaken its passage.</p> <p>One who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination, is not necessarily -guilty of negligence because he does not take the safer route. If the alternative route has dangers of its own and the dangers of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent, careful people from using it, the question of contributory negligence of a person injured in using it is for the jury.</p> <p>The law will not convict a pedestrian of negligence who, while using a sidewalk of a city street, is injured by a defect in the walk of which he was ignorant.</p>

<p>Equity — Jurisdiction—When and how question of jurisdiction, may he raised.</p> <p>The question of jurisdiction in equity may be raised at any time before findings of fact and conclusions of law, but the better practice is to meet the bill with a demurrer.</p> <p>Actions — Assumpsit—Moyiey had and received — Inability of defendant for money that he ought to have received — Equity.</p> <p>In an action for money had and received a recovery may be had for money that a defendant ought to have received, and if money due the plaintiff remains in the hands of a third party because of a scheme on the part of the defendant to defraud or delay the plaintiff, he cannot be heard to assert as a matter of defense that he has not received it. In such a case equity has no jurisdiction.</p> <p>Equity — Money had and received — Adequate remedy at law.</p> <p>The allegations in a bill in equity were that defendant assigned to plaintiff one-half interest in certain inventions, and also a one-half interest in all improvements made in connection therewith; that at the time of the assignment there was an outstanding license to a third person for the use of the inventions in consideration of certain royalties and that there had been paid to defendant on account of these royalties a fixed and specified amount which he unjustly detained; that defendant with plaintiff’s consent and with the express understanding and agreement that both were to share equally in the transaction, sold the entire interest in the letters patent for a large sum, one-half of which had been paid to defendant, the other half being retained by the vendees in consequence of a notice from the defendant that he did not recognize the right of plaintiff to a share of the purchase money and requesting them to retain it as stakeholders. Held, that the plaintiff had an adequate remedy at law and that a decree dismissing the bill should be affirmed.</p>

<p>Husband and wife — Loan by wife to husband — Transfer of property for loan —Bankruptcy.</p> <p>In a proceeding by bill in equity by a trustee in bankruptcy to recover a leasehold transferred by the bankrupt to his wife in consideration of money loaned, the court below found as facts that the loan was of the wife’s own money, not received from her husband; that the transfer was on account of the loan and was made in good faith without intent to defraud; that it was not out of proportion to the debt; that the husband was solvent at that time and was not adjudicated bankrupt until more than a year later; and that it did not appear that any of his present creditors were creditors then. Held, that a decree dismissing the bill should be affirmed.</p>

<p>Appeal, No. 204, Oct. T., 1905, by plaintiff, from order of C. P. No. 2 Allegheny Co., April T., 1905, No. 1069, discharging a rule for judgment for want of a sufficient affidavit of defense in case of R. G. Mattern, collector of delinquent taxes of the County of Allegheny, v. Rt. Rev. R. Canevin, Roman Catholic Bishop of the diocese of Pittsburg, Trustee for St. Paul’s Roman Catholic Congregation of the city of Pittsburg.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Frazer, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order discharging the rule for judgment.</p>

<p>Actions — Mesne profits- — Action for, after recovery in ejectment — Trespass —Assumpsit—Oil and gas lease.</p> <p>A plaintiff who by ejectment has recovered possession of land cannot maintain an action of assumpsit for the value of oil mined upon the land by the defendant while in possession. Trespass for mesne profits is' the appropriate remedy.</p> <p>Assumpsit cannot be sustained unless there is an express contract, or the facts are such that the law will imply a contract.</p>

<p>Practice — Order of Supreme Court — Province of court below.</p> <p>Where in remanding a case to the orphans’ court the Supreme Court makes an order “for leave to parties to offer additional evidence as to the purpose for which the money represented by the checks in evidence .... was paid by the appellant to the decedent; and for leave to the orphans’ court thereupon to reconsider the case on that point” the order carries its limitation upon its face and the orphans’ court has bo authority to review the whole case over again.</p>

Appeal, No. 237, Jan. T., 1905, by defendant, from judgment of O. & T. Bradford Co., Dec. T., 1904, No. 13, on verdict of guilty of murder of the first degree in case of Commonwealth v. Charles Johnson. Indictment for murder. Before Fanning, P. J. The opinion of the Supreme Court states the case. Verdict of guilty of murder of the first degree on which judgment of sentence was passed. Defendant appealed. Errors assigned were various rulings on evidence.

<p>Beneficial associations — Insurance—Application—Misstatement—Bisk— Married worn,an — Affidavit of defense.</p> <p>In an action against a beneficial association to recover death benefits, it appeared that the member was a married woman, and that at the time she made application for membership she was nineteen years old, and had been ten months married. The constitution and by-laws of the association provided that married women might bo members, and a condition printed on the back of the certificate showed clearly that the association anticipated the probability of the pregnancy of such a member during the life of the policy. An affidavit of defense filed by the association set up that the deceased falsely stated that she was not pregnant at the time the application was made. The affidavit asserted that she was pregnant, and that a few months afterwards she gave birth to a child, and “thereafter died from the effects of illness contracted during the time of her confinement.” The affidavit averred merely that this statement was material to the risk, but did not set forth any facts to show that this was the case, or that the association would have refused the risk, or increased the premium, if it had known the truth. Held, that the court committed no error in entering judgment for want of a sufficient affidavit of defense.</p> <p>A fact is material, to the risk when, if known to the underwriter it would have caused him to refuse the risk, or would have been a reason for his demanding a higher premium.</p>

<p>Trusts and trustees — Trust ex maleficio — Executor—Power of sale — Decedents’ estates — Jurisdiction of equity — Jurisdiction of orphans’ court — Real estate.</p> <p>Where an executrix with a discretionary power of sale under a will containing no trusts, sells real estate situated in the county of decedent’s domicil, and wrongfully invests the proceeds thereof in her own name in real estate situated in another county, and thereafter leaves the state, the court of common pleas of the county wherein the purchased real estate is situated, has jurisdiction in equity to declare that the executrix holds such real estate as a trustee for the beneficiaries under the will.</p>

<p>Appeal, No. 175, Oct. T., 1905, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1892, No. 167, on verdict for defendant non obstante veredicto in case of Mary Rees et al., Executrix and Executors of James Rees, deceased, v. Lewis N. Clark et al.</p> <p>Assumpsit for material and work. Before Rodgers, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for defendant non obstante verdicto.</p>

<p>Equity — Specific performance — Purchase of equitable title — Countervailing equities.</p> <p>The purchaser of an equitable title takes it subject to all the countervailing equities to- which it was subject in the hands of the person from whom he purchased it.</p> <p>■ Beal estate — Option—Contract—Variance from, option.</p> <p>An acceptance of an option to be good must be such as to conclude an • agreement or contract between the parties. To do this it must in every respect meet and' correspond with the offer, neither falling within nor going beyond the terms proposed but exactly meeting them at all points and closing them just as they stand.</p> <p>An offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept, or the other may withdraw his offer and either rejection or withdrawal leaves the matter as if no offer had ever been made. A proposal to accept or an acceptance of an option, upon terms varying from those offered, is a rejection of the offer and puts an end to the negotiation, unless the party who made the original offer renews it or assents to the modification suggested. The other party, having once rejected the offer, cannot afterwards revive it by tendering an acceptance.</p> <p>Where a person makes an offer to purchase on terms different from those set forth in an option, but according to an agreement to be subsequently made, which is not made, a decree of specific performance will not be made, although the intended buyer paid the required hand money and subsequently agreed to purchase under the terms of the option.</p> <p>Equity — Specific performance — Vendor and vendee — Principal and agent — ■ Fraud — Option—Effect of failure to accept option in its entirety.</p> <p>On a bill in equity for specific performance it appeared that M employed C to endeavor to get an option from B for property owned by her. C obtained an option in writing for himself, his nominee or assigns, for thirty days, with the distinct oral understanding that the option was procured for M. M was informed that the option had been procured, said he believed the price was too high but would consider it. C was treasurer of a corporation engaged in the business of buying and selling real estate, and employed by the corporation to transact business exclusively for it. Subsequently C agreed to sell the property to H giving a receipt in the name of the corporation for cash paid for hand money for the property sold “as per agreement made this day.” An agreement between B and H, different in terms from the option, was prepared and signed by H, but B refused to sign it. Three days before the expiration of the option H offered to accept the option in its entirety and tendered the purchase money. On the same day M, with full knowledge of the dealings with H, gave notice of his acceptance of the option and later the property was conveyed to him. H then filed a bill for specific preformance. Held, (1) that C was the agent of M in procuring the option; (2) that M’s equities were countervailing and superior to any that could be asserted by H; (3) that the failure of H to accept the option in the first instance in its entirety was a rejection of it and that B was not bound by the subsequent offer to accept it; (4) that a decree dismissing the bill should be affirmed.</p>